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Policy: Environment & Energy

Protecting Norman Bay is the Obama administration's latest stonewall

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Opinion,Op-Eds,Barack Obama,Senate,FERC,Energy and Environment

Supporters of a pro-growth energy policy breathed a sigh of relief when President Obama's nominee as chairman of the Federal Energy Regulatory Commission withdrew from consideration.

That was Ron Binz, a supporter of "all of the above" energy policies unless the energy happens to come from beneath the ground.

He would have wreaked great havoc chairing FERC, one of those previously sleepy agencies with enormous latent powers that National Journal described as a front in "Obama's Stealth War on Global Warming."

This relief appears to have been premature. Obama then replaced Binz with Norman Bay. Bay is a political appointee currently heading FERC’s Office of Enforcement, his first job in the industry over which he is now poised to serve as chief regulator.

This absence of a relevant paper trail is highly unusual, particularly for a presumptive agency head. It also does not appear to be an accident, after the Binz nomination collapsed under scrutiny of his record as a strident advocate for expensive, intermittent and long-failed “renewables.”

Obama’s intentions for FERC have not changed, but with this Bay move his approach certainly has. And, while a blank-slate nominee begs answers, FERC is pulling out every stop to hide whatever record exists.

At least until Bay is safely confirmed. So much for "most transparent administration ever," Part XXXVII.

Bay’s career is in criminal law, as an Assistant U.S. Attorney, a U.S. Attorney, and as a law professor at the University of New Mexico.

At FERC, Bay has alleged energy market manipulation like an overzealous prosecutor, seeking big scalps and large settlements rather than providing clarity and predictability to the markets, a primary FERC objective. This has instead created such uncertainty as to what conduct is lawful that investors are fleeing.

Bay’s conduct is now more troubling for what it signals lies ahead should he be confirmed. I and colleagues at the Free Market Environmental Law Clinic have twice filed suit for FERC’s refusal to turn over any information, not even one word, relating in any way to Bay.

Like Bay's actions, this blanket stonewalling is highly unusual, and raises more red flags. The Freedom of Information Act specifically requires the government to release any records not properly exempted under the law.

Agencies are to redact exempt information but also have to release all factual information unless it is simply not feasible to do so without compromising what it may properly keep secret. "To," "From" and "Date" fields in emails are obvious examples.

FERC, on lock-down after two of our FOIA requests nailed the coffin shut on Binz's nomination, is withholding even those details in every single email we have sought involving Bay.

These many hundreds of records, relating to various curious activities, shout out for attention before The Man Without a Record is placed in the chair.

For example, one of the requests we have had to file suit over concerns efforts to "burrow" Bay into a career slot prior to his elevation as an otherwise substantively inexperienced chairman.

That move — since abandoned after an apparent complaint by career Senior Executive Service types — obviously would have provided the nomination better optics. The fact of the move proves quite a lot; hiding all records relating to it proves too much.

We also are interested in Bay's sudden pursuit of energy traders, driving capital from the market. This regulatory agency has now gone from acting too much like a prosecutor -- a troubling trend in the current administration, given the lack of adequate due process protections -- to behaving too much like a criminal defense attorney.

Faced with apparently tyrannical requests for transparency, FERC blocks all access to information and uses every legal trick at its disposal to delay, and deny.

To execute this stonewall, FERC claims numerous exemptions none of which plausibly apply to every single word in every one among hundreds of documents.

When it came time for FERC to answer the first lawsuit we were forced to file, FERC demanded a remarkable extension of time to answer, by coincidence getting it beyond Bay's May 20 Senate confirmation hearing. Sadly, courts routinely grant extensions and our objections went nowhere.

FERC is also withholding its responses to other FOIA requests, which we asked for and which other agencies post publicly without being asked.

If released, they would illustrate by comparison the administration’s stone wall built up against requests having to do with the nominee who apparently must be protected at all costs.

All of these tactics got FERC and Bay past his May 20, 2014, Senate confirmation hearing. The next hurdle to pass without damaging disclosures is his confirmation vote in the full Senate.

The nominee presented as Mr. Clean Prosecutor, the guy who will make sure other people obey the rules to the letter or he comes down on them, could put an end to this charade.

He, or the Obama administration, could demonstrate their commitment to transparency, allowing the Senate and public to know about this paper trail-free nominee.

Instead, mindful of the Binz encounter with transparency and, apparently, of what lies in the records, neither Bay nor FERC show any interest in doing so.

The only question now is whether the Senate will continue to tolerate these abuses.

Christopher C. Horner is director of litigation at the Free Market Environmental Law Clinic

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