Policy: Environment & Energy

Energy regulator nominates unqualified crony, refuses to respond to FOIA request

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Beltway Confidential,Opinion,Ashe Schow,Energy and Environment,FOIA

Classic Washington: hire someone based on political reasons and not actual qualifications, and hope no one notices.

And if someone notices: ignore, ignore, ignore.

That's the path chosen by the Federal Energy Regulatory Commission, which has refused to turn over documents relating to an October 2013 Freedom of Information Act request regarding the reclassification of a political hire.

Former FERC Chairman Jon Wellinghoff hired Norman Bay in July 2009. Bay, a law professor and former U.S. attorney general for New Mexico, had no energy experience prior to becoming FERC’s director of enforcement. From that position, Bay dealt with energy market manipulation and supposed wrongdoing.

Before Wellinghoff left for private law practice last year, he reclassified Bay as a “career” employee to replace him as chairman. “Career” status would grant him tenure. This is known as “burrowing,” and is frowned upon by the Senior Executive Service because of potential abuse.

Enter the Energy and Environment Legal Institute, which filed a Freedom of Information Act request for documents pertaining to Bay’s reclassification and has not received them. E&E Legal and its counsel, the Free Market Environmental Law Clinic, are now suing the FERC to release those documents.

“From what we are able to gather it seems that, as former Chairman Wellinghoff prepared to move on to private practice, he initiated a controversial move with no meaningful benefit to the taxpayer,” said Chris Horner, a lawyer for FMELC who filed the lawsuit. “The only conceivable outcomes are ensuring his influence at FERC, particularly during this time when he is prohibited from contacting the Commission.”

Wellinghoff is prohibited from representing his private practice clients before FERC for one year, so it would make sense (from a cronyism standpoint) to put someone in charge whom he could keep tabs on.

“Alternately, the move might have put a better face on any move to elevate Mr. Bay, who had no background in the issues regulated by a previously non-political commission he is now nominated to chair,” Horner added. “The latter prospect makes this the latest in a series of troubling nominations by this administration.”

E&E Law believed that Bay was being promoted to chairman because, well, Bay’s former position as director of enforcement was listed as available on a hiring website. Bay told E&E Law that he was not leaving, but that he was being burrowed. Apparently, the position was listed with the intent to hire Bay but as a career employee.

E&E Law is trying to get to the bottom of the confusion, but FERC won’t turn over the requested documents.

FERC has considerable regulatory authority, so the chairman of the commission is important. Ron Binz was the initial choice to replace Wellinghoff, but was conflicted out of the position due to his previous job as chairman for the Colorado Public Utilities Commission. But to show how important the position is, the coal industry opposed Binz because of his assistance in writing a state law that would shut down coal plants.

His confirmation to the position would have been another example of the Obama administration's “war on coal.”

Whoever leads FERC will have considerable behind-the-scenes power, so the nominees need to be scrutinized.

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