[Congressional Record Volume 164, Number 192 (Wednesday, December 5, 2018)]
[Senate]
[Pages S7300-S7304]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



            Unanimous Consent Agreement--Executive Calendar

  The PRESIDING OFFICER. Under the previous order, the time until 4 
p.m. will be equally divided between the two leaders or their 
designees.
  The Senator from Oregon.
  Mr. WYDEN. Mr. President, the Senate is going to soon vote on the 
nomination of Bernard McNamee to be a Commissioner of the Federal 
Energy Regulatory Commission.
  If Mr. McNamee takes a seat on the Commission, it will mean that 
Christmas is coming early for the executive who wants big, dirty energy 
bailouts.
  Mr. McNamee has had for some time a plan to bail out some of the 
oldest, dirtiest plants in America, and he wants typical Americans to 
pay for it with higher utility rates. That is right--a bailout for some 
of the dirtiest, oldest facilities--and a pretty small number of them 
at that--and then a big spike in rates for working families and seniors 
across the country. We shouldn't sugarcoat the McNamee plan. It is a 
rip-off, plain and simple.
  All of this doesn't come out of thin air. Mr. McNamee, in fact, was 
directly responsible for this miserable proposal while he was at the 
Trump Energy Department. The plan was to interfere with utility 
companies' private business decisions, to force them to actually 
prevent utility companies from shutting down those dirty, old 
powerplants--some of them coal plants--even when the utilities wanted 
to move to cleaner, newer plants. So much for the free market. The 
utilities actually wanted to move to cleaner plants. Yet this would 
have prevented them from shutting down dirty, outdated plants to go to 
the more efficient, newer ones. So much for the free market. So much 
for protecting consumers.
  This proposal was so flawed that every member of the Commission 
joined in a vote to reject it. Let me repeat that. Every member of the 
Federal Energy Regulatory Commission that Mr. McNamee is so eager to 
join voted against his plan to stick it to all the consumers with a 
rate spike.
  For a period, I chaired the Energy and Natural Resources Committee, 
and we always saw that, traditionally, if a flawed proposal gets met 
with enormous rejection, the typical person in a rational way says: 
Hey, we had better get back to the drawing board and take a different 
tack. That is not so with the Trump administration.
  The Federal Energy Regulatory Commission wouldn't green-light Mr. 
McNamee's rate-hiking plan to prop up the executives at these dirty 
facilities. So the President wants to put Mr. McNamee on the inside and 
give him a seat on the FERC. I have to say that I haven't seen anything 
like this sort of deliberate effort to hijack sound market-oriented 
principles that would naturally take you to cleaner power rather than 
to dirty old coal facilities. But what we have here is, in effect, an 
individual who has shown a track record of wanting to do the bidding of 
special interests.
  FERC is supposed to be an independent, apolitical energy regulator.
  As I said during the committee's hearing on this nomination, this is 
not a question of the fox guarding the henhouse. This is a question of 
putting the fox inside the henhouse. That is what this will do if the 
Senate makes a flawed judgment to approve this nomination. Several of 
us at the Energy Committee hearing--myself and other colleagues--asked 
Mr. McNamee if he would recuse himself from matters that he worked on 
that relate to this flawed bailout for dirty, outdated plants. He 
refused to commit to that.
  Since the hearing, new evidence of his energy policy biases has come 
to light in the form of video footage where he candidly expresses that 
he is just plain, old biased against renewable power. The video reveals 
Mr. McNamee speaking frankly about his skepticism of wind and solar 
power. He basically says: You shouldn't regulate carbon dioxide as a 
real pollutant. His comments, joined with his recent actions, which I 
have described as the ``Trump Energy Department,'' make it clear to me 
that he is not going to bring the judicious, objective approach, if he 
is confirmed as FERC Commissioner, to these critical issues. He 
certainly is not in this to protect the American

[[Page S7301]]

consumer, because his policies would pick their pocket with higher 
rates.
  Finally, the nomination comes at a particularly troubling time, just 
after the scientists for the Federal Government released the ``National 
Climate Assessment.'' The report warned that without substantial and 
sustained measures to reduce emissions, climate change and worsening 
climate change would wreak havoc on our economy. Yet juxtapose or put 
right next to what the Federal scientists said about climate change 
worsening and then say: Here is going to be a Trump nominee who, if 
chosen for the Federal Energy Regulatory Commission, is going to say: 
Let's double down on support for the dirty, outdated facilities for 
generating electricity.
  It doesn't sound very viable to me in terms of our economic future. 
On the entire matter of confronting the imminent threat of climate 
change, I think we have to recognize that this administration is 
defying the will of the American people. We are no longer talking about 
far-off theories.
  In Oregon and across the country, we have seen Americans watch fires 
getting bigger and hotter. They are ripping through populated areas. 
They are not your grandfather's fires. In our part of the world, we saw 
a fire leap over the Columbia River. We have seen hurricanes making 
landfall with Biblical, unprecedented winds. Each year almost sets a 
new high mark for the hottest year on record.
  The policies that this nominee is advancing are misguided. They would 
accelerate the problems that the scientists for the Federal Government 
cited last week.
  I will close by way of saying that what the scientists said last week 
is that dealing with cleaner, more efficient energy and promoting it is 
urgent business right now because there is no time for going backward. 
What the McNamee nomination is all about, in one concept, is this: It 
is going backward--backward to bailouts and backward to supporting 
dirty, outdated plants.
  We ought to be going forward.
  Mr. President and colleagues, I urge that this nominee be rejected.
  I yield back.
  The PRESIDING OFFICER. The Senator from Washington.
  Ms. CANTWELL. Mr. President, I come to the floor to urge my 
colleagues to vote no on the nomination of Bernard McNamee to be a 
member of the Federal Energy Regulatory Commission. I thank my 
colleague from Oregon for coming out here to explain why this 
nomination matters and why my colleagues on both sides of the aisle 
should turn it down.
  This is a very important time as we move forward on energy policy in 
the United States. I am pretty sure that my constituents probably 
already know what the Federal Energy Regulatory Commission does 
because, when it came to the Enron crisis, they had to count on the 
Federal Energy Regulatory Commission to make sure energy markets were 
properly policed. In the end, the FERC did do that, protecting 
consumers from what were unjust and unreasonable rates.
  However, the fact is that a lot of Americans don't understand what 
the Federal Energy Regulatory Commission does. That is because the job 
of the Commission can range from overseeing the reliability of the 
electricity grid to ensuring that wholesale electricity and natural gas 
rates are just and reasonable. That was what we argued in the Enron 
case. They were going to make utilities pay for 9 years on what were 
fraudulent contracts. We emphasized: How could fraudulent Enron 
contracts ever be just and reasonable if they had admitted to 
manipulating them?
  The Federal Energy Regulatory Commission also oversees the licensing 
of hydroelectric dams and approves construction of natural gas 
pipelines. We also rely on FERC to protect the electric and national 
gas markets, as I mentioned, from manipulation.
  After Enron, we ended up putting even stronger language in the law to 
make sure the definition of manipulation was clear and people were 
protected. I remember my colleagues from Texas joining me in getting 
that language passed because they knew how much the Enron manipulation 
cost all of us and our economy.
  These are important responsibilities. The Federal Energy Regulatory 
Commission deserves due diligence of their record done by Members of 
the Senate because FERC decisions affect many energy projects and how 
people will pay to heat their homes and keep the lights on. It is also 
about how we protect our energy infrastructure for the future. Trust 
me, the number of cyberattacks that are going on in energy, we want to 
exercise strong oversight of these nominees.
  It is important that the Commission remain independent and impartial 
because its role is quasi-judicial. Like judges, they need to be 
impartial, making decisions about important energy projects that get 
built around the United States.
  For this reason, one of the qualifications written into the law 
creating the Commission is that members be ``individuals who, by 
demonstrated ability, background, training, or experience, are 
specially qualified to assess fairly the needs and concerns of all 
interests affected by Federal energy policy.''
  I would add that it is the duty of the Senate to make sure that these 
commissions remain free from political influence. I know that, from 
time to time, people have been on the Commission and there have been 
issues about how those on the outside have tried to influence them. We 
must continue to make sure that the Federal Energy Regulatory 
Commission remains above this kind of political influence and that they 
remain unbiased as decision makers on these important policies. I 
believe that this nominee, Mr. McNamee, does not meet this standard. I 
believe that he is too ideologically motivated to undertake a job where 
fact-based decision-making is essential to outcomes that affect 
people's individual energy rates.

  The Commission has to police and regulate energy markets without 
regard for fuel source, market power, or political lens. I want to see 
Commissioners who have the words from the Federal Power Act of ``just 
and reasonable rates'' practically tattooed into their psyches. Why? It 
is the standard by which they should judge our nation's energy 
projects.
  Like many of my colleagues, I have been troubled by this 
administration's effort to try to subsidize high-cost, coal-fired power 
plants at the expense of American ratepayers. According to a July 
report by experts at the Brattle Group, the administration's bailout 
plan would have cost consumers $34 billion over 2 years. That would 
have been a $34 billion tax on American consumers. How would they have 
done that? By saying that you have to use coal-fired electricity as a 
way to keep the grid reliable. I disagreed with that. I would say, 
probably, many members of the Energy and Natural Resources Committee 
disagreed with that, and, clearly, members of the Federal Energy 
Regulatory Commission, as it is currently comprised, also disagreed 
with that.
  Why was there such an adamant reaction? It is almost as if you were 
saying that, instead of letting the market make these decisions, people 
were going to force utilities to do projects that included coal--
forcing coal onto the grid, even though the renewable energy was 
driving down costs and helping consumers to diversify. This is 
important because the bailout proponents have argued that coal is 
needed to ensure the grid is always working. When you look at this 
analysis, it does not hold up under the scrutiny. Trying to prop up 
uneconomical coal plants for the sake of the reliability of the grid is 
a fake rationale that the administration tried to use, and it would 
have impacted the free market and consumers.
  I know that these rate increases would hurt manufacturers--because we 
have a lot of manufacturers in the State of Washington--who rely on 
affordable hydro to help drive down the cost of manufacturing. I think 
the cost of doing business and electricity rates all through the United 
States are going to be key issues for how we drive manufacturing 
competitiveness in the future. I certainly don't want to see a mandate 
by this administration that you have to use coal and drive up the costs 
for that manufacturing base and our consumers.
  A fuel security report that was issued last month by the PJM 
Interconnection, which extends from Pennsylvania to New Jersey and all 
way to Illinois, found that there was no need to prop

[[Page S7302]]

up uneconomical power plants. They were confident that their grid--
which is the world's largest competitive wholesale electricity market--
would remain reliable over the next 5 years without having this mandate 
to use coal-fired electricity.
  And this conclusion has nothing to do with the temperature outside. 
Even in a severe cold snap, the grid would continue to operate. In 
fact, the Washington Examiner--hardly a newspaper from which I quote a 
lot on the Senate floor, but I am going to in this case--reported that 
the largest power grid operator dismisses the threat of coal and 
nuclear power plant closures. It was referring to this report. It was 
referring to the PJM report that basically says: No, we don't have to 
worry about our grid reliability. This report dismisses the notion that 
the coal plant closures would somehow put us all at risk.
  People are asking: What does that proposal have to do with Mr. 
McNamee?
  As a senior political appointment at the Department of Energy, Mr. 
McNamee had a key role in promoting and defending this policy. He had a 
hand in ignoring the other experts at the DOE, who basically told him 
that his facts were wrong. He ignored the fact that this bailout 
proposal would place an undue burden on ratepayers and, as I mentioned, 
would impact our economy moving forward. He ignored the fact that we 
are seeing changes in clean energy markets--that they are cheaper and 
more effective than coal--and that this proposal, even though he 
continued to push it, was not going to help us keep an open and free 
electricity market.
  Part of what the energy regulators do is to make decisions about 
projects moving forward that are based on what the market is bringing 
them. It is based on pure economics. Their job is to determine the 
return and the rates that would impact consumers. That is where the 
term ``just and reasonable'' comes into play. Their job is not to pick 
winners and losers in the market. Their job is to determine whether 
there will be just and reasonable rates for the individual consumers in 
those markets. It is their job to make sure that there are not 
excessive prices but true competition in the market--not to favor a 
high-cost fuel source like coal and try to protect it from other fuel 
sources that might be more economical for consumers.
  As the Supreme Court has said, FERC is the guardian of the public 
interest in these matters. The duties of Commissioners is to protect 
the public interest, not the private interest, and they are to make 
sure there are fuel supplies for the future.
  I view this threat of really trying to disrupt the free market as one 
of the most important things we need to continue to protect. Why? 
Because innovation shifts markets over time. We are trying to make 
decisions about distributed energy, and there will be major discussions 
by the Federal Energy Regulatory Commission on how to achieve that, 
particularly as we deal with the impacts of climate change.
  Our historic energy system is at an inflection point, but it doesn't 
mean we should hold on to more expensive sources to generate 
electricity. It means that we should make sure that the Federal Energy 
Regulatory Commission does its job as a quasi-judicial arbiters and are 
not politically motivated or coming to issues with non market-based 
rate solutions.
  The fact the cost of wind has declined an incredible 69 percent over 
the last 9 years and solar a whopping 88 percent. If coal or nuclear 
costs had dropped that much, we would be having a different 
conversation about their future, but it hasn't. Even in States where 
coal has been a big part of the mix, building renewables is cheaper 
than keeping existing coal plants open.
  According to the Northern Indiana Public Service Company's 2018 
Integrated Resource Plan, they found that they could save their 
constituents $4 billion over 30 years by ramping down the amount of 
coal it uses from two-thirds of its generation today, to 15 percent by 
2023, and by eliminating coal entirely by 2028.
  I would like to have taken Mr. McNamee at his word when he came 
before the Senate's Energy and Natural Resources Committee and said 
that he would be a ``fair, objective, and impartial arbiter.'' That is 
what you want from a Federal Energy Regulatory Commissioner. He also 
said that he would decide matters that would come before him based on 
the law and not based on politics. Yet, after his committee hearing, 
which I still remain very concerned about, we asked further questions. 
And a video of a speech Mr. McNamee gave earlier in the year on fossil 
fuels surfaced. I believe it shows that he has a continued bias beyond 
the President's asking him to draft a coal bailout. And he has tried to 
push it through the Federal Department of Energy even when scientists 
and others have told him that the facts just did not support the 
proposal.

  Mr. McNamee's words reveal a very strong bias in favor of fossil 
fuels against renewable energy. For example, he claimed that fossil 
fuels were ``key not only to our prosperity'' but ``to a clean 
environment.'' And he continued to make comments that, I think, are 
demonstrably false. Now, as a private citizen, he is free to say 
whatever he wants. Yet, when you are hired to put a report out and have 
scientists within the agency correcting your false information and you 
are continuing to push these ideas, I think it puts you in a different 
category. It is hard to believe that you will be quasi-judicial and a 
fair arbiter.
  I know that he has had many conversations, and I include the 
information in the video. One of his most striking statements is this: 
``The green movement'' is in a ``constant battle between liberty and 
tyranny.'' Then he said that his son should just deny climate science 
even if it hurts the boy's grades. These are not the words or 
sentiments, I believe, of someone who is going to play that role of an 
arbiter for Federal energy regulatory policy.
  And these policies will come up before the Commission. I know the 
administration plans on continuing to find ways to have coal mandated 
into the market instead of allowing the free market to take place. I 
want to make sure that the Federal Energy Regulatory Commission does 
not subject itself to some sort of bias in this process.
  If Mr. McNamee becomes a Federal Energy Regulatory Commissioner and 
if he continues to try to overturn relevant FERC decisions in court by 
arguing against these things, what kind of process will we see at the 
Federal Energy Regulatory Commission in response to his biases?
  To me, you have the threat of legal uncertainty. Projects could be 
put on hold. Investments could be further delayed. Grid reliability 
rules could be impacted. Why? Is it because he is right? No, people 
already believe his previous statements have shown sufficient bias that 
would put in question his decisions on the Federal Energy Regulatory 
Commission. These energy policies, particularly in the area of cyber 
security, are going to be so critical for us to move forward on. Every 
day, our grid is impacted by these attacks by foreign entities. It is 
so important that we get about the task of making our grid more 
reliable and better protected against cyber security, not getting 
weighed down in a bunch of arguments against someone who does not 
appear, in my opinion, to have that quasi-judicial approach of making 
sure that the market and market decisions are fair and reasonable and 
just and reasonable rates for consumers. All of this is particularly 
distressing as Mr. McNamee's speech surfaced just days before the U.S. 
Global Change Research Program released its fourth quadrennial report.
  Why is this important? Because the report showed the cost to the 
Federal Government and individual citizens of continued fossil fuel 
use. We all know that we need to have a diverse sources of energy. We 
know that we have to do better than what we are doing today. Yet, by 
pushing Mr. McNamee's name forward, this administration is simply 
trying to hold onto the past.
  That approach could cost taxpayers trillions of dollars over the next 
few decades. The climate assessment basically estimates that, if we do 
nothing, by the end of the century the impacts will cost the United 
States upward of a half trillion dollars a year in crop damage, labor 
loss, and extreme weather damages. We can't afford that. We need to 
keep moving forward, and we need to let the market do its job.
  For over 40 years, an independent and impartial Federal Energy 
Regulatory

[[Page S7303]]

Commission has provided Americans with decades of fuel-neutral 
competition, which has resulted, as I said, in those just and 
reasonable rates. Now, thankfully, technology advances are helping us 
to step up to new opportunities while still having the Commission 
oversight, based on just and reasonable rates. The Commission is making 
sure that we are doing all that we can to hold down the costs to 
consumers and move things forward in energy markets.
  I ask my colleagues to review the video and this nominee's remarks in 
the video and to come to the Senate floor to vote against this nominee 
in the hopes that we can get someone else to take this job at the 
Federal Energy Regulatory Commission. I hope my colleagues will realize 
the importance of this before it is too late and that we will move 
forward with someone who can help us continue to have a Federal Energy 
Regulatory Commission.
  Clearly, this is not viewed as just politics on our side. There are 
many people who are on the Federal Energy Regulatory Commission who 
have very strong political backgrounds. A few used to work right here 
in the Senate. So this is not about that. This is about somebody's 
having the quasi-judicial mindset to review these issues and not 
advocate, at all costs, a market-eroding notion that utilities should 
be forced to purchase uncompetitive coal and raise rates on consumers.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alaska.
  Ms. MURKOWSKI. Mr. President, in a few moments, we are going to have 
an opportunity to vote on moving to proceed to the nominee for the 
Federal Energy Regulatory Commission. I come to the floor this 
afternoon to speak in support of that nominee, Mr. Bernard McNamee.
  Mr. McNamee has been nominated to serve on the FERC--the Federal 
Energy Regulatory Commission--to complete the remainder of the term 
that runs through June 30, 2020.
  The FERC is an independent agency within the Department of Energy. 
For a long period of time, nobody really paid much attention to the 
FERC or was quite sure what the mission was. The agency itself is one 
that has a very key and a very critical role within our country in that 
it regulates the electricity, the hydropower, the natural gas, and the 
oil pipeline industries. That basically means that FERC plays a 
critical role in keeping the lights on and ensuring the deliverability 
of reliable, safe, and affordable energy to American homes and 
businesses. The FERC really is key to so much of what goes on in the 
world of commerce and our economy.
  It is important that we move forward with this vote today. If we 
confirm Mr. McNamee, FERC will once again have a full complement of 
five Commissioners on that agency. This is something we have worked 
hard to restore in this Congress for a period of time. The Commission 
was down to just three Commissioners. They have a lot of work to do. 
The responsibilities are hard. Making sure that they are at full speed 
must be a priority. It is necessary to enable the agency to address a 
substantial backlog of energy infrastructure project applications and 
decisions that are pending on a range of important energy matters.
  Let's talk about the qualifications Mr. McNamee has to serve at the 
FERC. Over the course of his career, he served in the Federal 
Government, including here in the Senate and in two State governments. 
He has also worked in the energy practice group of a major law firm. As 
a result of his work and his experience, Mr. McNamee has a deep 
understanding of energy issues, and I think a clear appreciation of 
FERC's mission. He has made a strong commitment to continue FERC's role 
as an independent and an impartial regulator, which to me is key. He 
also knows that it is FERC's duty to keep the lights on and not to 
carry out policy decisions that are made by other parts of the Federal 
Government. His mission within the FERC is pretty well defined.
  There has been some discussion about Mr. McNamee's prior position 
implementing policy during the brief tenure he had at the Department of 
Energy. This was at a time when the administration was considering 
whether it could provide economic relief to coal and nuclear 
powerplants. That has generated its own level of discussion. Some have 
suggested that Mr. McNamee's work at the Department raises questions 
about his independence and have compared him to Ron Binz. Mr. Binz was 
a former nominee for FERC Chairman back in 2013. I would remind 
colleagues that there is a difference here.
  Back in 2013, when the Senate was considering Mr. Binz, in fairness, 
we didn't actually have him up for consideration on the floor. Mr. Binz 
voluntarily withdrew his nomination from consideration, and that was 
based on bipartisan concerns that were raised about substantive 
comments of his and the approach he took to recruit support for his own 
nomination. I would rather not rehash history today, but I think there 
is a clear difference between the two nominees, and I believe the 
concerns about Mr. McNamee's independence are largely unfounded.
  First, the Department of Energy's proposal to FERC on coal and 
nuclear plants was unanimously rejected by FERC just about a year ago. 
The Commission is currently not considering any other administration 
proposal to assist coal or nuclear powerplants.
  I think it is also wrong to suggest that because someone has 
experience implementing policy somewhere that they should be 
disqualified from any role as an independent regulator. In fact, in 
this Congress alone, we have already confirmed two former Senate policy 
staff members to the Commission. The first one was Neil Chatterjee, an 
individual many, many of us know. He previously served as the majority 
leader's energy policy adviser. The second one was Mr. Rich Glick, who 
served as senior counsel to Senator Cantwell on the Energy and Natural 
Resources Committee.
  Like Chairman Chatterjee and Mr. Glick, Mr. McNamee's decisions as a 
Commissioner will not be contingent on the implementation of policy 
decisions in his prior roles. In private meetings and in his nomination 
hearing last month, Mr. McNamee repeatedly committed to be fair, to be 
objective, and to be an impartial arbiter in all of the cases that come 
before the Commission. He repeated this commitment in response to two 
rounds of questions for the record.
  I believe Mr. McNamee understands and understands well that FERC is 
an independent Agency and that it must continue to function as such. I 
take his commitment to uphold FERC's autonomy and maintain an 
independent role as a Commissioner at face value. I also expect him to 
be fuel-neutral and not a champion of one resource over another.
  As I mentioned, there is a lot of work that must go on at FERC. We 
need to have all five Commissioners in place to make sure that it 
happens. With a full set of Commissioners, FERC will be able to reduce 
or certainly work to reduce its backlog of energy infrastructure 
projects, including important natural gas pipelines and LNG export 
terminals.
  If we are going to remain a prosperous nation with strong growth and 
affordable energy, we need our interstate pipeline network and our LNG 
facilities to continue to meet customer demands for our natural gas.
  This resource serves a variety of critical needs, ranging from 
keeping us warm to enabling our manufacturing renaissance and, 
increasingly, to fuel our electric grid.
  LNG exports also represent a significant opportunity for States like 
Alaska, scores of communities, and, looking abroad, for America's 
friends and allies.
  FERC is also examining other important issues, including its 
regulations under the Public Utility Regulatory Policies Act--PURPA--
the integration of energy storage onto the grid, and the impact of 
State policies on interstate electricity markets. These issues are 
incredibly complex, and they have widespread implications for our 
economy.
  Again, it is key, it is timely, and it is important that we have a 
full complement on the FERC. Mr. McNamee is well qualified to join the 
other Commissioners in tackling these issues, and I urge all of my 
colleagues to support his nomination.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.

[[Page S7304]]

  The bill clerk proceeded to call the roll.
  Mr. SCHUMER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SCHUMER. Mr. President, I ask unanimous consent to speak on 
leader time before we have a vote.
  The PRESIDING OFFICER. Without objection, it is so ordered.