On December 6 and December 18, 2018, various environmental groups filed a motion and comments with FERC requesting that Commissioner Bernard McNamee recuse himself from FERC’s two ongoing grid resiliency proceedings. The groups argued that because Commissioner McNamee represented the Department of Energy (“DOE”) when the agency proposed compensating “fuel-secure” units for their contribution to the resilience of the electrical grid, recusal is appropriate because he is already a party to the proceedings, and in any event, may have already “prejudged” central matters of law and fact relevant to those dockets.

In October 2018, McNamee was nominated to fill the vacancy left by former FERC Commissioner Robert Powelson. During his confirmation hearing before the Senate Committee on Energy & Natural Resources (“Committee”), McNamee faced tough questions on his ability to be impartial regarding the grid resiliency proceedings, given his position at DOE (see November 20, 2018 edition of the WER). Despite being pressed on the issue, McNamee ultimately was voted favorably out of the Committee. The full Senate confirmed McNamee on December 6, 2018. Shortly thereafter, the Harvard Electricity Law Initiative filed comments arguing for Commissioner McNamee’s recusal in FERC’s grid resiliency proceedings, followed by a similar motion on December 18, 2018 from the Natural Resources Defense Council, Sierra Club, and the Union of Concerned Scientists (collectively, “Environment Advocates”).

In their respective filings, Environment Advocates argued that Commissioner McNamee is already a participant in the grid resiliency proceedings, because he signed the DOE Notice of Proposed Rulemaking (“NOPR”) on grid resiliency and served as the DOE’s sole legal advocate before FERC with the goal of advancing the concept of compensating “fuel-secure” units. FERC rejected DOE’s approach in one docket, RM18-1, and opened a new docket in AD18-7 to independently explore “the resilience of the bulk power system in the regions operated by regional transmission organizations (‘RTOs’) and independent system operators (‘ISOs’).” Notwithstanding the different docket designations, Environment Advocates asserted, the new docket “encompasses the very same factual questions that were answered by the Department, and by Commissioner McNamee on behalf of the Department, in the DOE NOPR: whether the grid is threatened by retirements of so-called ‘fuel-secure’ power plants.” As such, it is very possible, that FERC could address the very same issues that it did in the first docket, rendering Commissioner McNamee’s recusal in both dockets appropriate, Environment Advocates argued.

Environment Advocates also maintained that Commissioner McNamee should recuse himself from the proceedings because he was “intimate[ly] involve[d]” with the DOE’s preparation of its grid resiliency arguments. Although Environmental Advocates acknowledged that recusal is not an admission of actual bias, they nonetheless argued that Commissioner McNamee’s involvement “produce[s] an appearance of prejudgment.” For example, they noted Commissioner McNamee developed and publicly defended the factual assertions and legal positions of the DOE, and advised his client, DOE, on the merits of its position. As Environment Advocates asserted, these acts could lead “a disinterested observer to conclude that [he] had in some measure adjudged the facts as well as the law” before even analyzing all the evidence in the new docket. Thus, according to Environment Advocates, Commissioner McNamee’s recusal would serve as a “critical prophylactic to safeguard due process, rule of law, and perceptions of fairness.”

The December 6, 2018 Comments of the Harvard Electricity Law Initiative can be found here.

The December 18, 2018 Motion of Environment Advocates can be found here.