Senate confirms nominations of LaFleur, Bay to FERC

FERC Seal

The U.S. Senate confirmed July 15 President Obama's nominations of Cheryl LaFleur and Norman C. Bay to the Federal Energy Regulatory Commission.

The Senate voted 90-7 to confirm LaFleur and 52-45 to confirm Bay.

Prior to the vote, Senate Minority Leader Mitch McConnell, R-Ky., urged his colleagues to vote against the Bay nomination, saying he failed to see what qualified Bay, a Democrat on the FERC staff, to serve as commission chairman. Obama indicated he planned to name Bay chairman over LaFleur, who has been serving as acting chairman since November.

McConnell said he found it "shameful" that Obama would displace a well-qualified woman with a less-qualified man for the position as FERC chairman. The minority leader also said Bay was expected to foster the Obama administration's "anti-coal" energy policy.

Chairman Mary Landrieu, D-La., of the Senate Energy and Natural Resources Committee, told the Senate a compromise had been reached in which LaFleur would continue to serve as FERC chairman for nine months while Bay "will train, if you will." Landrieu said some members of the Senate oppose all of Obama's nominees because they have different priorities.

Sen. Lisa Murkowski, R-Alaska, the ranking minority member on the Senate Energy and Natural Resources Committee, told the Senate "a weird drama has played out" involving the deal in which the administration would allow LaFleur to continue as chairman for nine months while Bay gained experience as a commissioner. Murkowski said there has been no confirmation that such a deal would occur. She added that if LaFleur is allowed to remain as chairman, there is a question whether she would have full authority or whether Bay would be a "shadow chairman."

Earlier in the day, senators voted 85-10 and 51-45 to formally end debate and allow votes on LaFleur and Bay respectively.

In a contentious meeting June 18, the Senate Energy and Natural Resources Committee endorsed the two Obama nominees. The committee endorsed Bay, 13-9, and LaFleur, 21-1, sending the nominations to the full Senate.

Murkowski led most of the committee's Republicans in voting against Bay. Bay would replace LaFleur as chairman, a post she has held on an acting basis since November in the wake of the withdrawal of Obama's nomination of controversial Colorado consultant Ronald J. Binz to be a member, and chairman, of the commission.

Murkowski questioned Bay's lack of experience as a utility regulator and argued that LaFleur should not, in effect, be demoted from the chairmanship.

In addition to concern about Bay's lack of experience, Murkowski said she is concerned about his possible need to recuse himself from more than 40 cases pending before the commission due to his current position as director of FERC's Office of Enforcement. She also questioned his knowledge of the effect of the Environmental Protection Agency's new carbon regulations on electricity system reliability. She also pointed to criticism of the fairness of the enforcement office under Bay's leadership.

"Bay's responses to my questions on any number of important policy issues facing FERC did not provide the level of clarity needed to win my support," Murkowski said. "Whether it's where he stands on recusals, the cumulative impact of the EPA's recent environmental regulations, or FERC's current and future course, his responses were not forthcoming or worse."

Obama renominated LaFleur to the commission in May. Prior to joining the commission, LaFleur, a Democrat, had more than 20 years' experience as a leader in the electricity and gas industries, retiring in 2007 as executive vice president and acting chief executive of National Grid USA. The former New England Electric System, National Grid USA delivers electricity to 3.4 million customers in the Northeast.

Obama nominated Bay to a commission seat in February, with the intention to name Bay chairman once he is confirmed by the Senate. If confirmed, Bay would succeed FERC Chairman Jon Wellinghoff whose commission term expired in June 2013.

Since July 2009, Bay has been director of FERC's Office of Enforcement, responsible for protecting energy market consumers from fraud or market manipulation affecting FERC-regulated wholesale natural gas and electric markets. Before joining the commission staff, he was a law professor at the University of New Mexico, teaching criminal law, evidence and constitutional law.

From 2000-2001, Bay, a Democrat, was U.S. attorney for New Mexico. From 1989-2000, he was an assistant U.S. attorney in the District of Columbia and in New Mexico. Prior to his Justice Department service, he was attorney-adviser in the Office of Legal Adviser at the State Department.

There are three other sitting FERC members. The other Democrat on the commission is John Norris, whose term expires in 2017. A published report in July quoted Norris at a power industry conference saying he would not seek another term and that he could not win Senate confirmation because he is too pro-consumer.

Republicans on the panel are Philip Moeller, whose term expires in 2015, and Anthony Clark, whose term expires in 2016.

No more than three members of the same party may serve on the five-member commission.

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