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Senate Democrats decry FERC nominee’s refusal to concede need for recusal

Today’s lede: McNamee’s refusal to acknowledge need for recusal. At Thursday’s confirmation hearing Senate Democrats repeatedly pressed Bernard McNamee, President Trump’s nominee to fill the vacant seat at the Federal Energy Regulatory Commission, to recuse himself from a pending proceeding at the commission that is an outgrowth of the administration’s proposal (RM18-1) to impose consumer subsidies to support uneconomic coal and nuclear plants in wholesale power markets.

McNamee, who has been in and out as a political appointee at the Department of Energy over the course of the past two years of the Trump administration (interrupted by a short stint at a conservative think tank where he advocated the benefits of fossil fuels), reportedly was the author of the proposed rule to impose consumer subsidies for baseload coal and nuclear plants, which FERC unanimously rejected earlier this year. But while the proposal was rejected, the commission initiated a proceeding (AD18-7) to examine the “resilience” of the power grid and whether FERC should reconsider its rules overseeing competitive wholesale power markets to somehow prevent coal and nuclear generation plants from closing because they are no longer economic resources in the markets.

McNamee in both his prepared testimony and remarks before the Senate Energy and Natural Resources Committee repeatedly said he would be an “impartial arbiter” respectful of FERC’s role as an independent agency and quasi-judicial agency. But he declined to say whether he needed to recuse himself, given his past roles that clearly represent a conflict of interest. He appeared to imply that he could participate in that proceeding if he is confirmed since FERC rejected the proposed rule “and opened a new docket.” Repeatedly pressed about whether he would recuse himself from the proceeding, McNamee said he would consult with ethics counsel.

Sen. Ron Wyden, D-Ore., described McNamee’s appointment as not a case of the fox guarding the henhouse, but placing the fox inside the henhouse. “I believe you need to recuse yourself,” Wyden said.

Sen. Angus King of Maine, an independent who caucuses with the Democrats, recited the pertinent law to declare that McNamee had a clear legal obligation to recuse himself from the proceeding.  King said he was surprised and disappointed by McNamee’s response that he would consult with ethics counsel, rather than acknowledge the clear need for recusal.

Sen. Lisa Murkowski, R-Alaska, the committee’s chairman, said she expected the committee to advance McNamee’s nomination later this month.