James Danly, who is general counsel of FERC, will be President Trump's nominee to fill one of the two vacant seats at the Commission, the White House announced Monday evening.
Prior to his appointment to serve as the Federal Energy Regulatory Commission's general counsel two years ago, Danly was a member of the energy regulation and litigation group at Skadden, Arps, Slate, Meagher and Flom LLP. He previously served as law clerk to Judge Danny Boggs on the U.S. Court of Appeals for the Sixth Circuit.
Danly has also worked as managing director for the Institute for the Study of War in Washington, DC, and served an International Affairs Fellowship at the Council on Foreign Relations. He holds a law degree from Vanderbilt University Law School and a bachelor’s degree from Yale University. Danly also is a former U.S. Army officer twice deployed to Iraq.
Trump intends to nominate Danly for the remainder of a five-year term expiring June 30, 2023, effectively replacing former commissioner and Chairman Kevin J. McIntyre, who died Jan. 2.
FERC currently has three members -- Chairman Neil Chatterjee and Bernard McNamee, who are Republicans, and Richard Glick, a Democrat. McNamee's term expires next year; Chatterjee's in 2021; and Glick's in 2022. Cheryl LaFleur, a Democrat who had served at FERC since 2010 and been chairman twice, left the Commission at the end of August.
By law, no more than three seats at FERC may be held by one political party. If Danly is confirmed by the Senate, Republicans would hold a 3-1 majority on the Commission.
The long-awaited nomination would break with tradition by putting forward the name of a Republican to fill one empty seat without including a Democrat to fill the other. There have been calls on Capitol Hill, from Sen. Joe Manchin (D-WV) and others, to pair any Republican nomination with a Democratic one.
Manchin, the ranking member of the Senate Energy and Natural Resources Committee, said Tuesday he was "disappointed" that Trump had announced his intention to nominate only a Republican commissioner.
"FERC has a strong history of operating in a bipartisan fashion and failing to honor the tradition of a bipartisan pairing sets a dangerous precedent moving forward. I remain hopeful the administration will quickly nominate a Democratic commissioner so we can consider nominations for both vacancies together and restore a fully functioning FERC," Manchin said.
Others, including Sen. Lisa Murkowski (R-AK), chairman of the Senate Committee on Energy and Natural Resources, have said they'd rather see one nomination cross their desks than endure a lengthy wait for a Democratic pairing.
Despite only three of its five seats being filled and published reports to the contrary, Chatterjee said recently that FERC remains an independent agency and makes decisions in a bipartisan manner.
The nomination, coming nearly 10 months after the seat was vacated, may have been prompted by White House concerns about recusals and a potential lack of quorum for some votes, according to analysts at ClearView Energy Partners LLC.
The White House reportedly granted McNamee a waiver recently to clear him to vote on issues in which his former employer, the McGuire Woods law firm, participates, and Glick has recused himself from votes involving his previous employer, Avangrid.
"We view Danly's nomination as an action by the White House to resolve this problem," ClearView said in a note to clients.
"Critically, the nomination of only one commissioner when there are two vacancies reflects a further erosion of long-standing norms and undercuts the independence and bipartisan decision making at FERC," said John Moore of the Natural Resources Defense Council. "The White House needs to nominate -- and the Senate needs to consider -- two nominees for two vacancies." Moore called on Senators to press Danly about how he would address "FERC's flawed climate review of pipelines" during the confirmation process.
In a joint statement Tuesday, the Natural Gas Supply Association (NGSA) and the Center for LNG cheered Danly's nomination.
"With his background as the FERC general counsel, he understands the important role of competitive markets as well as the critical role of pipeline infrastructure projects in promoting the role of natural gas in a clean energy future," said NGSA CEO Dena Wiggins.