Questions continue to swirl around the delayed swearing in at FERC of prospective Chairman Kevin McIntyre and prospective Commissioner Richard Glick, whose nominations were confirmed by the Senate more than two weeks ago.
Swearing in ceremonies at the Federal Energy Regulatory Commission customarily come within a few days of Senate confirmation votes. But McIntyre and Glick were confirmed Nov. 2 and, as of Friday afternoon, they had not been sworn in.
McIntyre, an attorney with Jones Day who currently serves as co-head of the global energy practice, was nominated by President Trump to a term at FERC that expires next June 30, and an additional term expiring June 30, 2023. McIntyre, a Republican, would become chairman upon his swearing in.
Glick, a Democrat who has been general counsel for the Senate Energy and Natural Resources Committee, was nominated by Trump to serve the remainder of a five-year term expiring June 30, 2022.
NGI's questions to Washington D.C. officialdom as to the unprecedented delay in the swearing in of the two prospective commissioners, nominated by the president and confirmed by the full Senate, have met a brick wall. That leaves the door open to rampant speculation on the Hill and at the traditionally independent FERC.
The president's signature on the confirmations, which is usually a formality, may be the sticking point. Initially, there was speculation that Trump's recent trip to Asia was postponing action. But, according to one source, Trump signed similar items while on the trip; the FERC nominees were the only exceptions.
If the problem is a paperwork delay at the White House, it would be a first. So other possibilities have been advanced.
One theory has it that the administration wants Acting Chairman Neil Chatterjee, a former energy adviser to Senate Majority Leader Mitch McConnell (R-KY), to remain at the helm until at least Dec. 11, when FERC is expected to take action on the Department of Energy's controversial notice of proposed rulemaking (NOPR).
That theory is dependent upon the belief that Chatterjee and at least one of the other two seated commissioners -- Republican Robert Powelson and Democrat Cheryl LaFleur -- are in favor of DOE's proposal to reform the reliability and resiliency of the electricity grid by supporting coal and nuclear power. A tangential theory is that the two laggards want to avoid voting on the ‘hot potato’ NOPR, which has been opposed by FERC’s natural gas pipeline and producer constituency.
There also has been some conjecture that the White House has delayed swearing in Glick and McIntyre to give Chatterjee time to make appointments within FERC that would help advance the Trump agenda.
Names floated have included John Estes to head the Office of Enforcement and Travis Fisher to head the Office of Energy Market Regulation. Estes is an attorney who heads the energy regulation and litigation group at Washington, DC-based firm Skadden, Arps, Slate, Meagher and Flom LLP, which focuses on FERC litigation. Fisher is a senior Department of Energy adviser and former FERC economist who worked on DOE's grid study this year.
It isn't the first time McIntyre and Glick's paths to FERC have hit stumbling blocks, despite unanimous approval by the Senate Energy and Natural Resources Committee. Last month progress was delayed in the Senate when Sen. Jim Inhofe (R-OK) objected to a motion by Sen. Lisa Murkowski (R-AK) for their confirmation by unanimous consent.
At FERC's monthly meeting Thursday, Chatterjee implied that the McIntyre and Glick's swearing in ceremonies were imminent. In adjourning the meeting, he said it would be "the last time I will wield this gavel."