by Craig Richardson
E&E Legal Executive Director
On October 21, E&E Legal and FME Law once again sued the Federal Energy Regulatory Commission (FERC) under FOIA to compel production of key federal records. The records relate to FERC having conditioned its stalled approval of Constellation Energy’s merger with Exelon Corporation upon payment of a then-record settlement to resolve a FERC enforcement action. The issue is of significant interest since the merger formed one of the largest electric utilities in the world, but also on its face raises alarm about FERC’s operations.
The tying of the merger approval to settling the enforcement action was also the focus of U.S. Senate questioning of Norman Bay during his nomination process to be FERC Chair. Recently, Senators Susan Collins and John Barraso requested FERC’s Inspector General to look into the matter. This is the second time the groups have had to sue FERC, over related records; Friday’s suit has substantial overlap with an E&E Legal case filed in March of this year.
Chris Horner, counsel for E&E Legal and FME Law, said “It’s unfortunate that we have once again had to drag FERC to court to obtain pubic records. This is part of a pattern with FERC giving the impression the Commission is protecting the man expected to be named FERC’s Chairman next year.”
In the suit, we note that this pattern of behavior began after FME Law obtained e-mails under FOIA that complicated former nominee Ron Binz’s approval; Binz ultimately withdrew his nomination. In this most recent suit, E&E Legal details how FERC continues to withhold most responsive records in full, including basic factual information, despite the legal obligation to segregate, redact, and produce responsive non-exempt information, including factual content (“who”, “what”, “where”, “when”).
This issue is of great importance to the public due to the problematic nature of the apparent quid pro quo involving the merger. In addition, during his confirmation to chair FERC Mr. Bay assured the Energy Committee that he was peripheral to the matter despite at the time being FERC’s Director of Enforcement.
Emails which FERC released to E&E Legal, after E&E Legal filed an earlier lawsuit, cast serious doubt on Mr. Bay’s claim. Specifically, they show James Pederson, chief of staff to FERC’s then-Chairman, arguing that “the Constellation settlement” was indeed a major qualification of Mr. Bay for a senior FERC position. This was because of the settlement’s “game changing role for the Commission,” all of which was a result of “the complete overhaul of [Office of Enforcement] that has occurred under Norman” Bay. Mr. Pederson wrote this in an email, into which he also typed “Copying the Chairman”, to FERC’s Chief Human Capital Officer Eduardo Ribas asking Mr. Ribas to emphasize this qualification to the White House.
Bay presently serves on the Commission in an unprecedented apprenticeship until April 2015. The complaint notes that FERC’s continued withholding serves an important political purpose just as previous delays did to obtain Senate approval of Mr. Bay’s “apprenticeship”. It also details FERC’s practice of broad overwithholding of records relating to Mr. Bay, only to later release improperly withhold portions once certain political events have passed.
This unique political apprenticeship arrangement arose after the Senate Energy Committee, concerned about Bay’s fitness to chair FERC in part due to the Constellation quid pro quo and the fulsomeness of his responses to related questions, instead approved him to serve as a regular Commission member in with an eye toward possible elevation to Chair in 2015. The Senate narrowly approved this arrangement on July 14, 2014, by a vote of 52-47, at the same time it approved another FERC Commissioner, Cheryl LaFleur by a vote of 90-7.
For months members of the Senate have sought information shedding further light on this matter, including asking very specific questions, but eliciting only vague responses. FERC released the Pederson-Ribas email to E&E Legal several hours after the Energy Committee’s business meeting concluded on Bay’s nomination to serve as FERC Chairman. FERC thereby denied the Committee the opportunity to consider these records when evaluating Mr. Bay’s responses to specific questions, including his assertion that he was tangential to the controversial Constellation matter. These revelations led E&E Legal to file the FOIA request at issue in this suit.
If it were not for E&E Legal FOIA pursuits to obtain critical information, the public would not know of the disconnect between FERC’s privately stated position and Mr. Bay’s publicly stated position on this matter of profound importance in regards to a major and important domestic industry, by an agency with substantial regulatory, policy and enforcement powers.
Horner concluded, “Our mission as a watchdog group is to secure information that informs the pubic and their representatives prior to, not hours after, important votes for a position of significant public trust. This is precisely the sort of information for which FOIA exists.