The Energy & Environment Legal Institute (E&E) has filed a lawsuit in the U.S. District Court for the District of Columbia in which it claims FERC has refused to release documents in response to an October 2013 Freedom of Information Act (FOIA) request related to alleged maneuvering by former Chairman Jon Wellinghoff to have Norman Bay, President Obama’s nominee to head the Commission, follow him to that position.

Emails and records that E&E says the Federal Energy Regulatory Commission “acknowledges exist,” could demonstrate that Wellinghoff  attempted to reclassify Bay as a career employee in a Senior Executive Service (SES) position.

“This practice, known as ‘burrowing,’ is frowned upon by the SES, particularly during election years, given the potential for abuse,” E&E said.

Obama in January nominated Bay, current director of FERC’s Office of Enforcement (OE), to the Commission and to be designated chairman upon appointment by the U.S. Senate (see Daily GPI, Jan. 31). Wellinghoff, who resigned last year (see Daily GPI, May 30, 2013), “aggressively advocated on behalf of Bay for a Commission slot,” according to Christine Tezak at ClearView Energy Partners LLC. It was Wellinghoff who brought Bay to OE in 2009, though Bay had no prior energy industry experience (see Daily GPI, June 19, 2009). Since then, Bay has brought several high-profile enforcement actions against and settlements with energy market participants (see Daily GPI, Nov. 21, 2013a).

According to E&E, Wellinghoff lobbied to have Bay placed at the head of the Commission to ensure his own continuing influence there, or “to put a better face on any move to elevate Mr. Bay, who had no background in the issues regulated by a previously non-political commission he is now nominated to chair. The latter prospect makes this the latest in a series of troubling nominations by this administration.”

Bay is Obama’s second nominee to fill the spot vacated by Wellinghoff. Last year Obama tapped former Colorado regulator Ron Binz (see Daily GPI, July 1, 2013). But the nomination of Binz, a renewable energy and consumer advocate, was met by stiff resistance in the Senate Energy and Natural Resources Committee, and he withdrew his name from consideration (see Daily GPI, Oct. 2, 2013).

In November, Obama tapped FERC Commissioner Cheryl LaFleur to be acting chairman of the agency, and prognosticators had seen her as one of the possible successors to Wellinghoff (see Daily GPI, Nov. 21, 2013b). In a speech at the Natural Gas Roundtable in Washington, DC, Thursday, LaFleur steered clear of any discussion of the chairmanship or a possible successor (see related story).