James Danly, President Trump's nominee to fill one of the two vacant seats at FERC, received a mostly warm welcome at a hearing of the Senate Energy and Natural Resources Committee Tuesday, but lawmakers weren't as happy with the White House's inability to fill the agency's fifth seat.
"I view the role of FERC commissioner as being primarily that of an adjudicator," Danly told the committee. "And that should I be fortunate enough to be confirmed, is exactly how I would comport myself. This is the role of a judge more than a policy setter...I would conduct myself as an adjudicator and confine my decisions to the law and the record as it's developed. That's my philosophy on what the proper role of a commissioner is.”
Danly's nomination broke with tradition by putting forward the name of a Republican to fill one empty seat at the Federal Energy Regulatory Commission without including a Democrat to fill the other.
Committee Chairman Lisa Murkowski (R-AK), who said she supports Republican Danly's nomination, said the main source of opposition to his confirmation will be the lack of a matching nomination of a Democrat to FERC.
"I hope that will not be what drives anyone to oppose your nomination...FERC is set up to avoid the need for pairings," Murkowski said. "I think this is one of the misconceptions that has been out there. Back in 1990, Congress passed a law to stagger the five commissioners terms by one year each in an effort to make sure that we didn't have these double vacancies.
“Secondly, bipartisan pairings are not always the norm. More often, we've confirmed individual commissioners or had unbalanced pairings...and then the third point is that this seat was already previously paired. In 2017 we paired Kevin McIntyre with Rich Glick. Rich will continue to serve through mid-2022. So the slot we're now considering is to fill the remainder of Mr. McIntyre's term through mid-2023. And then the final point is the reality is we have one nomination in the committee now. We don't have two."
The name of one potential Democratic nominee -- presumably Allison Clements, a former senior attorney at the Natural Resources Defense Council -- "has been out there for some time, but we have not seen it sent up to the White House and sent to us for our action," Murkowski said.
The committee's ranking Democrat, Joe Manchin (D-WV), also referred to a likely Democratic nominee to FERC without naming Clements, hinting that the White House may soon make an announcement. Senate Democrats suggested Clements to the White House earlier this year, according to published reports.
"You're clearly very, very bright, Mr. Danly, and you understand this position very well, and I have no doubt that you'll be confirmed,” Manchin said. “But I think that we would be making a serious mistake by not considering this pairing. I'm still very hopeful...She's been vetted, she's gone through everything. The FBI reports, everything's back, ready to go, and we're hoping that the president in his wisdom in this next week will bring her forward and hopefully next week we can get move forward toward five members."
"I too have always believed that when you have a five-member Commission; it's best to have five members on the Commission," Murkowski said.
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.
Despite only three of its five seats being filled and published reports to the contrary, Chatterjee said recently FERC remains an independent agency and makes decisions in a bipartisan manner. Still, Chatterjee has said he believes FERC should have a full complement of five members on board to reach consensus on some major issues, including an ongoing review of the Commission's pipeline approval process.
Danly, who is general counsel of FERC, was nominated by President Trump last month to fill one of the two vacant seats at the Commission. If confirmed by the Senate, Danly would serve the remainder of a five-year term expiring June 30, 2023, effectively replacing former commissioner and Chairman Kevin J. McIntyre, who died Jan. 2.
Prior to his appointment to serve as FERC'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.
Also testifying at the hearing was Katherine MacGregor, who is nominated to be deputy secretary at the Department of Interior.