Who's on first? FERC cannot say who's in charge
[Editor's note: This story originally was published by Real Clear Wire.]
By Kevin Mooney
Real Clear Wire
Go in search of official documentation naming who is charge of the Federal Energy Regulatory Commission (FERC) and those records will prove to be elusive. In fact, court filings show that at least until recently the commission itself claimed could not locate those records.
This peculiar turn of events is currently at issue in ongoing Freedom of Information Act litigation now before the U.S. District Court for the District of Columbia. FERC has until Oct. 2 to respond to a discovery motion that cuts to heart of who is actually running the commission. The litigation in question initially probed into the relationship between FERC and climate activists in the Biden White House. But in the past few months, the records requests have focused more attention on the influence anti-energy advocacy groups have been exerting on the commissioners.
Along the way, FERC revealed an inability to produce documentation underpinning its current leadership, which curiosity itself backs into a longer story involving the Biden administration’s “whole of government” approach to climate.
Before the commissioners backpedaled away from proposed policy changes impacting natural gas pipeline projects, climate activists were poised to have a field day in court.
That was back in February 2022 when Richard Glick, a former legal counsel for U.S. Senate Democrats, and wind industry lobbyist, was still serving as chairman of the Federal Energy Regulatory Commission (FERC). Although President Biden had renominated Glick to serve a second five-year term, he left office this past January after Sen. Joe Manchin, D-W.Va., chairman of the Senate Energy and Natural Resources Committee, declined to hold a confirmation hearing. Manchin had been a critic of the proposed rule changes and what he viewed as “additional road blocks” obstructing vital infrastructure projects. The senator was hardly alone in voicing his concerns.
Kenny Stein, a policy analyst with the Institute for Energy Research (IER), a Washington-based nonprofit group that supports free market energy policies, detected “new avenues” within the updated regulations advanced under Glick’s watch that would spur “frivolous opposition to development from anti-pipeline extremists, as well as creating new opportunities for litigation to slow or stop pipeline construction.”
Although FERC ultimately abandoned its pursuit of new rules that would likely benefit litigious environmental groups, the Institute for Energy Research has obtained records through multiple Freedom of Information Act requests and lawsuits highlighting the influence outside advocacy groups appear to be exercising within FERC at the expense of the public interest. Allison Clements, a commissioner appointed in December 2020, has maintained a steady chain of communication with her former employers at the National Resources Defense Council, a group headquartered in New York with close ties to China’s government, and the Energy Foundation, a San Francisco-based left-leaning grant maker (which also has a robust China operation).
So, who is in charge now?
A press release from the commission claims President Joe Biden announced his naming of Willie Phillips as “acting chair” on January 3, 2023. But as part of its litigation against the commission, the Institute for Energy Research, a Washington-based nonprofit, has been unable to obtain any documentation verifying the appointment, and no such announcement posted anywhere even if its existence was widely parroted in the press. Until days ago, the commission in its court filings over a January 2023 request claimed it has not been able locate any document appointing Phillips as Chair or “Acting Chair,” either.
So what gives?
While addressing the missing documentation in a September 8 court filing, IER makes the point that the appointment of a chairman or acting chairman involves “a core agency record, one without which it cannot operate as it does, and is certain to be readily accessible to the agency.” In its filing, IER informs the court that FERC has claimed to the Court it is unable to locate any records backing up Biden’s appointment of Phillips, which FERC touted in the January press release.
“Mr. Phillips is no doubt acting as Chairman, as the public record (including many judicially-noticeable hearings and transcripts) shows Mr. Phillips chairing FERC hearings,” the filing says. “Presumably Mr. Phillips is receiving Chairman’s pay from the Treasury.”
Phillips, a former legal counsel to the North American Electric Reliability Corporation in Washington, is identified as the acting chair on FERC’s website. FERC includes five commissioners who are appointed by the president and confirmed by the U.S. Senate. There may be no more than three commissioners from any one party serving at the same time. Glick’s departure leaves the commission evenly split between the two parties.
IER’s motion seeking limited discovery, to get to the bottom of FERC’s purported inability to find a foundational document, suggests that the White House is playing games with Phillips’s appointment for purposes of leverage.
“The agency either has such a document or it does not, such that the agency’s denial of the existence of any such appointment order, then failure to address the issue, and now studious effort to further postpone addressing this record in any way despite several minute orders from and status reports to the court is itself difficult to understand. But the implications regarding such a failure raise even more questions about the agency, its authority, its public claims, and of course the role of the White House as it seeks to convert FERC into a climate agency,” Chris Horner, an attorney for IER, said. “It may be as simple as FERC has wanted to not reveal the document in order to maintain leverage over Mr. Phillips, or in negotatiions with the Senate, but political concerns do not excuse its refusal to answer and now clear evasion of the request.”
Although Congress established FERC as an independent agency in 1977, the correspondence between Clements, and her benefactors with the NRDC and the Energy Foundation, uncovered through FOIA, indicate the commission is carrying the water for climate activists.
"It’s odd that the FERC would go through such great lengths to prevent a seemingly simple but regardless foundational order from seeing the light of day. They clearly had to have some basis for reorganizing FERC after Commissioner Glick’s departure,” said IER President Thomas Pyle.
“The presidential order designating a FERC commissioner as chairman is plainly a public record and subject to no reasonable claim of privilege. Either FERC lost the order or doesn’t want the public to see it because for some reason the White House prefers to slap the label ‘Acting’ in front of Chairman Phillips. Either way, it’s not a good look,” Pyle added.
FERC has acknowledged that somewhere in the neighborhood of 2,000 records are responsive to IER’s request at issue in this particular case, but none of them purported to appoint Mr. Phillips. The commission “has declined to review them in any reasonable fashion,” according to a motion from IER, which offers a more pointed assessment: “Plaintiff submits on information and belief that the Order responsive to Part 4 of the request at issue exists, dated January 3, 2023, and “hereby designate[s] Willie L. Phillips, Jr. as Chair of the Federal Energy Regulatory Commission,” signed by the President of the U.S. Plaintiff further submits on information and belief that this designation running contrary to the administration’s insistence that it only appointed Mr. Phillips in an Acting capacity, for possible future elevation (or replacement) should the White House so deign, explains the refusal to release the Order, plainly a public record and subject to no reasonable claim of privilege.”
On Tuesday, after the court ordered FERC to state if it opposes IER’s motion seeking to depose FERC staff about oddities in the case, FERC indicated it has, at long last, found the appointment order, and the White House counsel and now cleared it for release making discovery unnecessary. Notably, FERC did not release the order, but informed IER it would, later.
FERC then, on Wednesday (Sept. 20), asked the court for an extension of time to offer its view on the propriety of discovery.
“Whatever games the White House is playing with political appointments, it has no bearing on the public’s right to know about FERC’s astounding claim for months, including expressly made in a court filing, that it has no documentation appointing him to serve,” Horner said.
Suggesting the White House has stalled FERC out of embarrassment over revelation about the inaccurate claim for over eight months about Phillips’s status, Horner added, “it certainly adds to the mystery that FERC suddenly admitted an order exists after IER laid out these machinations in a motion seeking discovery, and has now had to ask for an extension to straighten out its position, including on the remarkable grounds that IER hadn’t adequately “vetted” its motion in the face of these gross irregularities.”
Since May 2022, and particularly after its first request revealed inconsistencies about FERC’s denial of coordination with the White House, IER has filed a total of 15 FOIA lawsuits.
Kevin Mooney is an investigative reporter with both the Commonwealth Foundation and the Heritage Foundation.
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