US Energy Commissions Confront Big Agendas With Empty Seats

As President Joe Biden presses for climate action in 2024, two independent energy commissions are working on major rulemakings with empty seats, raising pressure on the White House to nominate new members during a busy election year.

The Federal Energy Regulatory Commission and Nuclear Regulatory Commission are weighing rules that have direct ties to meeting the Biden administration’s climate goals of decarbonizing the power grid by 2035.

The NRC oversees nuclear licensing and is weighing extensions of the current US fleet of nuclear reactors while creating a new regulatory pathway for potentially dozens of advanced reactors in coming years. FERC oversees electric grid reliability and is aiming to finalize a rule to make it easier to plan regional transmission lines that can connect renewable power.

Both panels have five members at full strength. But FERC is down to three members with no nominees issued yet by the White House. The renomination of its previous chairman, Richard Glick (D), was blocked by Sen. Joe Manchin (D-W.Va.) at the end of 2022, and another commissioner, James Danly (R), departed at the end of last year after his term expired.

FERC risks losing a quorum on June 30, when the term of Commissioner Allison Clements (D) expires. Clements can stay on the commission until the end of the current session of Congress, effectively the end of 2024.

Meanwhile, the NRC has been down to four members, split 2-2 between the political parties, after the renomination of Commissioner Jeff Baran (D) was blocked by the Senate. The White House has decided not to renominate him this year, according to sources familiar with the matter.

The NRC’s chairman, Christopher Hanson (D), sees his term expire on June 30. Unlike FERC, the NRC requires members to leave the commission the day their terms are through.

Confirmation Uncertainty

Adding to the uncertainty, Sen. John Kennedy (R-La.,) pledged this week to block all Biden nominees to the Energy Department and State Department in retaliation for the White House’s move last week to pause liquefied natural gas (LNG) export licenses.

“It’s going to apply to all the nominees—we’re going to look at them one by one,” Kennedy said in an interview Jan. 30 at the Capitol. “What President Biden is proposing to do is to have America commit energy suicide for purely political reasons.”

With the administration and lawmakers consumed by the election cycle and a packed Congressional agenda—border security, lingering appropriation issues, debate over aid to Ukraine and Israel amid a widening Middle East conflict—commission nominees may end up being lower priority.

“While we do not rule out getting two new members confirmed, we think the odds are low,” a team of Vinson & Elkins lawyers wrote in a Jan. 16 note focused on FERC.

The team cautioned it expects FERC to operate smoothly in the short-term. There’s no legal distinction between an order issued on a 5-0 versus 2-1 basis, the lawyers pointed out.

The three commissioners “all get along personally with each other, which is helpful in maintaining the dialogue needed to achieve agreement on key issues,” the note stated. “Practically, we expect the three remaining commission members to be able to reach consensus on many issues and orders.”

FERC didn’t respond to a request for comment on the status of the nominees and whether any conversations were happening with the White House or lawmakers on the importance of keeping a quorum.

Over the last year, FERC Chairman Willie Phillips (D) routinely pointed out the commission moved major rulemakings with four members split between the political parties. FERC unanimously issued a rule last July to speed up clean energy connections to the power grid, but the transmission planning rule is seen as more contentious.

Split Commission

An NRC spokesman said the commissioners prefer to have a full complement of five members. “The commission has, however, operated effectively many times over the past couple of decades with fewer than five members,” the spokesman, Scott Burnell, said in an email.

Baran’s renomination highlighted the debate over the NRC’s rules for advanced reactors. He was blocked by a handful of Senate Democrats as well as Republicans after advanced nuclear supporters argued Baran supported burdensome regulations that hinder new technology.

Now with a split commission, and Chairman Hanson heading toward an expired term, those divides could sharpen, said Stephen Burns, who chaired the commission from 2015 to 2017 and identifies as an independent.

“You have the possibility of more 2-2 splits,” Burns said. Those contentious issues “will languish until you get other people on the commission.”

Senate Environment and Public Works Chairman Tom Carper (D-Del.) said despite the efforts of the White House and others, Baran wasn’t going to get through the Senate.

“The better part of valor here is to say, ‘well that’s not going to happen, let’s find somebody who can do a good job, be a good commissioner,’” Carper told reporters last week.

“The importance of the NRC cannot be overemphasized,” Carper added, citing the agency’s role in helping the administration meet its emissions reduction targets. Asked if he had any potential nominees in mind to replace Baran, Carper said “not right now.”

Energy advocates are pressing the White House to emphasize nominees as soon as possible.

“Baran was a champion of environmental justice who also understood that nuclear energy can be an important tool to address climate change and air pollution, and the withdrawal of his nomination is a loss,” said Jackie Toth, deputy director of Good Energy Collective, a Washington nonprofit that advances community-centered nuclear energy policy.

“We urge President Biden to renominate Chris Hanson and another Democratic nominee as soon as possible, and for the Senate to prioritize their confirmations, so that the NRC can return to a full complement of five commissioners as it makes key decisions about the regulation of nuclear reactors and materials going forward,” Toth said.

—Kellie Lunney contributed reporting.