Energy Nominations after Reid Broke the Rules

July 16, 2014

Senate Democrats protect the president’s anti-energy agenda by curbing meaningful debate in Senate committees and on the Senate floor. Last November, Democrats went one step further, breaking Senate rules in order to place in administrative agencies and on judicial benches controversial appointees likely to support the administration’s agenda. Their implementation of the “nuclear option” reduced the threshold to confirm the president’s nominees from 60 votes to a simple majority. Yesterday, Democrats relied on this lower standard to confirm the president’s controversial choice of Norman Bay to be commissioner and eventual chairman of the Federal Energy Regulatory Commission.

Democrats Stack Government Against Fossil Fuels

When faced with last November’s vote to stack the executive and judicial branches with nominees likely to provide the president’s anti-energy agenda with another layer of protection, Democrats all too willingly gave their support. This was despite some energy-state Democrats’ claims to “support” fossil fuels.

“I will not sit back and watch any sort of power grab – especially from an Administration that has already demonstrated they do not understand core Alaska issues.” – Sen. Begich, 1/29/2014

When Democrats voted for the nuclear option last fall, they substantially reduced the amount of advice and consent the president must seek and ensured that Democrats could force through controversial nominees. This not only disenfranchised Republican Senators and the people they represent, but empowered Majority Leader Reid to ignore the opposition of up to four Democrats whose votes are no longer needed for confirmation. Many of the energy-state Democrats whose concerns about a nominee can now be disregarded actually voted for the nuclear option that reduces their clout. These Democrats helped set the stage for the president’s appointment of more politically charged, anti-energy policymakers and judges. Their constituents will suffer as a result.

Anti-Fossil Fuel Vote

Less Advice and Consent Means More Radical Nominees Confirmed

Yesterday, the Senate confirmed Norman Bay’s nomination by a vote of 52 to 45. Forty-five Senators voted against confirmation based on a variety of concerns, including:

Mr. Bay’s insufficient energy policy experience;
Bay’s largely unknown energy policy positions due to his limited record and his non-responsiveness to questions posed by Republican members of the Energy and Natural Resources Committee;
his strong endorsement by Majority Leader Reid and background as protégé of controversial former FERC chairman Jon Wellinghoff, which raises questions about his willingness to embrace a true “all of the above” energy strategy;
his controversial tenure as director of FERC’s Office of Enforcement, which was subject to allegations of unfairness in a detailed article published in a prominent law journal.

To address concerns about Bay’s inexperience, Democratic Senators sought a compromise that the president will not designate Bay as FERC chairman for six to nine months after his confirmation. During this “waiting period,” Bay will serve as a FERC commissioner, gaining “experience” under the leadership of FERC’s acting chairwoman, Cheryl LaFleur. This will enable him to discharge in time the responsibilities of FERC chairman. Ms. LaFleur is highly experienced and well-regarded. Although Republican Senators disagree with her on certain policy issues, they have questioned why the president insists on demoting LaFleur in the first place in order to promote Bay.

Had energy-state Democrats voted against the nuclear option last fall, they could have commanded a higher-caliber nominee than Norman Bay. Had energy-state Democrats on the Energy and Natural Resources Committee, including chairwoman Mary Landrieu, sided with their constituents instead of their party leaders, they could have blocked Bay’s nomination from ever being reported to the Senate floor. Energy-state Democrats repeatedly promote their support for every form of domestic energy at home, then quickly fall into line with their party’s agenda against coal, oil, and natural gas when they return to Washington.

Mr. Bay is not the only problematic nominee for energy states. For example, the president nominated Rhea Suh to serve as assistant secretary for fish, wildlife, and parks at the Department of the Interior. She once stated that “the pace and magnitude of this [natural gas] development is easily the single greatest threat to the ecological integrity of the West,” and asserted that leasing federal lands for energy development “precludes the possibility of any protection.” For years she worked hand in hand with radical, anti-fossil fuel environmental groups that pioneered the “sue-and-settle” strategy by which millions of acres of land are closed to energy production.

Nonetheless, Senator Landrieu, in one of her first acts as chairwoman, and other energy-state Democrats like Senator Mark Udall, rammed Ms. Suh’s nomination through the Energy and Natural Resources Committee. They not only locked and loaded the nomination for consideration on the Senate floor, but they effectively guaranteed the Senate would confirm such a radical nominee when they voted for the nuclear option last fall. Majority Leader Reid is expected to delay consideration of Ms. Suh’s nomination until after the November elections. That way, energy-state Democrats can continue to pay lip service to fossil fuels without having to worry about additional votes that might expose their insincerity.

Confirming Unneeded Judges Means More Obama Policies Protected

Of all the federal courts, the D.C. Circuit will rule on the legality of most of the president’s climate change agenda. As the most underworked appeals court in the country, the D.C. Circuit hardly needed more judges and Democrats certainly did not need to break long-standing Senate rules to deliberately lower our nation’s standard for confirming judicial nominees. They were motivated by an overwhelming desire to protect the president’s agenda from a D.C. Circuit that’s been critical of abuses of power.

The D.C. Circuit “controls all kinds of government decisions. And there are now four vacancies on that court and it’s dominated by the hard right ... We have to fill the D.C. Circuit.” – Sen. Schumer, 3/30/2013

In May 2014, the D.C. Circuit vacated a final rule by the FERC governing demand response resources, with the goal of incentivizing retail customers to reduce electricity consumption. “Because FERC’s rule entails direct regulation of the retail market – a matter exclusively within state control – it exceeds the Commission’s authority,” the court found. “The Commission cannot simply talk around the arguments raised before it; reasoned decisionmaking requires more: a ‘direct response,’ which FERC failed to provide here.”

In November 2013, the D.C. Circuit ordered the secretary of energy to zero out a nuclear waste disposal fee. It found the secretary’s position was “so obviously disingenuous” that the court had “no confidence” he would fulfill his statutory obligations. It called the secretary’s strategy for conducting a fee determination “truly ‘pie in the sky’.”

In August 2013, the D.C. Circuit ordered the Nuclear Regulatory Commission to continue the legally mandated Yucca Mountain licensing process. It found the commission was “simply flouting the law.” It remarked that it is “no overstatement to say that our constitutional system of separation of powers would be significantly altered if we were to allow executive and independent agencies to disregard federal law in the manner asserted in this case by the Nuclear Regulatory Commission.”

In February 2013, the D.C. Circuit vacated and remanded a rule promulgated by the Department of Energy regarding decorative fireplaces. “Congress has established – and DOE simply chose to ignore – the means by which DOE could extend its regulatory authority,” the court concluded.

In January 2013, the D.C. Circuit ruled that the Environmental Protection Agency’s methodology for projecting cellulosic biofuel production in connection with setting renewable fuel mandates was an “unreasonable exercise of agency discretion.” While Congress intended for renewable fuel mandates to promote that technology, the court was “not convinced that Congress meant for EPA to let that intent color its work as a predictor.”

Democrats are protecting the president’s war on fossil fuels not only from challenge in the Democrat-controlled Senate, but also from rigorous judicial review in the Democrat-stacked D.C. Circuit. Democrats are now rubber-stamping the president’s wish-list of anti-energy executive nominees. Since fewer votes are now needed for confirmation, Democrats can populate federal courts and agencies on the basis of political ideology rather than knowledge or impartiality. The president’s war on fossil fuels will be more secure – and more aggressive – as a result.