On January 7, 2019, FERC Commissioner Bernard McNamee signaled in a letter to members of the United States Senate (“January 7 Letter”) that he would not recuse himself from FERC’s pending grid resiliency proceeding in Docket No. AD18-7 unless the FERC proceeding began to “closely resemble” a Notice of Proposed Rulemaking (“NOPR”) issued in September 2018 by the Department of Energy (“DOE”). Commissioner McNamee helped draft the DOE NOPR, which also addressed grid resiliency issues and was rejected by FERC in Docket No. RM18-1 in January 2018 (see January 17, 2018 edition of the WER), when he was an attorney at the DOE. The January 7 Letter responded to a December 12, 2018 request from a group of Senators, led by Catherine Cortez Masto (D-NV), that Commissioner McNamee provide an update on the guidance he received from FERC ethics officials regarding his recusal from specific proceedings. According to that guidance, notwithstanding the similarities between Docket No. AD18-7 and the now-terminated Docket No. RM18-1 on the DOE NOPR, previous statements by Commissioner McNamee did not meet the legal standard for recusal, although the guidance urged “continued oversight to ensure that Docket No. AD18-7 does not develop in such a way as to replicate or closely resemble Docket No. RM18-1.”
The Senators’ request stemmed from Commissioner McNamee’s confirmation hearing before the Senate Committee on Energy and Natural Resources on November 15, 2018. A significant issue in that hearing was Commissioner McNamee’s ability to serve impartially, given his active role in drafting the DOE NOPR and his previous statements that the Senators characterized as “favoring fossil fuel and denigrating renewable resources.” When asked if he would recuse himself from future FERC proceedings to compensate coal and nuclear generating units, Commissioner McNamee testified that he would consult with FERC’s ethics attorneys concerning his recusal from specific proceedings (see November 20, 2018 edition of the WER).
The Senators also urged Commissioner McNamee to recuse himself from “future matters before FERC that might be characterized as pitting one fuel source against another” as well as any matters in which Commissioner McNamee’s “impartiality could be questioned based upon [his] past statements, positions, or work.” The Senators’ letter came as various environmental groups made similar requests for Commissioner McNamee’s recusal from FERC’s two ongoing grid resiliency proceedings (see December 21, 2018 edition of the WER).
Commissioner McNamee’s January 7 Letter included a memorandum from FERC’s Designated Agency Ethics Official (“DAEO”) summarizing ethics guidance regarding Commissioner McNamee’s potential recusal obligations. According to that guidance, although the proceedings are “related,” “Docket No. AD18-7 is a different proceeding than Docket No. RM18-1,” and “Docket No. AD18-7 is an administrative inquiry in which the Commission received over 200 comments suggesting various outcomes.” Citing the legal standard for recusal from an agency rulemaking proceeding, the DAEO concluded that Commissioner McNamee’s recusal in Docket No. AD18-7 was not required because his prior statements and position at DOE were not “demonstrative of an unalterably closed mind.” Ultimately, the DAEO emphasized “continued oversight” in case the pending proceeding developed in a way that would require recusal, and noted that challenges to Commissioner McNamee’s participation in any other matter would be considered on a case-by-case basis.