For Immediate Release:
March 26, 2014

Craig Richardson
[email protected]

E&E Legal Sues FERC to Compel Production Under FOIA of Emails Relating to Former Chairman’s Efforts to “Burrow” Political Appointee Norman Bay as Career Employee, Ensuring Continued Influence as He Prepared to Depart for Private Law Practice

Washington, D.C. – The Energy & Environment Legal Institute (E&E Legal) along with its counsel, the Free Market Environmental Law Clinic (FME Law), has filed suit in the U.S. District Court for the District of Columbia against the Federal Energy Regulatory Commission (FERC), for that agency’s refusal to produce any content from any record responsive to an October 2013 request under the Freedom of Information Act (FOIA). These emails and other records, which FERC acknowledges exist, relate to an apparent effort by then-FERC Chairman Jon Wellinghoff to reclassify one of his political hires, Norman C. Bay, as a “career” employee in a coveted Senior Executive Service (or SES) position.

This practice known as “burrowing” is frowned upon by the SES, particularly during election years, given the potential for abuse. Mr. Bay, who did not have a background in the energy industry prior to joining FERC with the incoming Obama administration, has now been tapped to replace Mr. Wellinghoff, who left for private law practice late last year and is conflicted from representing his new clients before FERC for a one-year “cooling off” period. E&E Legal understands that this particular move was aborted apparently after a career employee complained.

E&E Legal and FME Law filed a FOIA request on October 2, 2013 seeking e-mails, text messages, instant messages, and other records to or from FERC’s Office of Enforcement and the Office of the Executive discussing or referencing FERC filling the position of Director, Office of Enforcement. FERC advertised that position in an official job posting although with the apparent intention of filling it with the incumbent appointee, Mr. Bay, only converted into a career slot.

“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 FME Law attorney Christopher Horner, who filed the request and lawsuit. “The only conceivable outcomes are ensuring his influence at FERC, particularly during this time when he is prohibited from contacting the Commission. 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.  The latter prospect makes this the latest in a series of troubling nominations by this administration.”

E&E Legal has been informed that, when asked about his apparent departure from the position of Director of Enforcement given the advertised opening, Bay indicated he was not in fact leaving but was being burrowed as a career employee at the request of his boss and patron, Wellinghoff.

Despite FERC’s admission that such records exist it has refused to turn over even one item of basic factual information — e.g., To, From, Date, Subject — in even one of the documents.  FERC’s wholesale refusal to release any information whatsoever is what led E&E Legal, and its attorneys at FME Law, to file suit against the agency to compel them to release all non-exempt portions of these records.   Basic identifying information is the sort required in a “Vaughn” index of withheld records, which are not required to be submitted under seal but which information is inherently releasable.

“We understand that certain personnel documents, such as those containing sensitive personal information, should be protected by the employer, and therefore can be excluded legally from FOIA requests,” said Dr. David Schnare, E&E Legal General Counsel. “However, FERC refuses to segregate any non-sensitive, factual, or other releasable information. There is nothing in FOIA that provides an agency a blanket exemption for these records. The oddity of FERC’s complete and total withholding combined with a possible desire to move past Senate scrutiny of this nomination certainly raises questions.”

In January, the Obama Administration nominated Bayto replace Wellinghoff as FERC Chair. The White House’s first attempt last summer to nominate Ron Binz to fill this post was soundly defeated in Congress due to Binz’s overt efforts to lead the “war on coal,” as well as ethical concerns arising from his service on Colorado’s Public Utility Commission and his candor during the confirmation process.

“Whether it’s ambassadorial nominees who can’t find ‘their’ country on a map, or a political hire whose resume is extraordinarily light on qualifications to chair this most important federal energy regulatory agency, one that National Journal notes has been targeted as a vehicle for ‘Obama’s stealth war on global warming.’ this Administration’s clumsy, overly political appointments to key government posts is worrisome,” added Craig Richardson, E&E Legal Executive Director. “FERC’s wholesale refusal to release any information at all about this abortive move to ‘burrow’ Mr. Bay only adds to these concerns.”

The Energy & Environment Legal Institute (E&E Legal) is a 501(c)(3) organization engaged in strategic litigation, policy research, and public education on important energy and environmental issues. Primarily through its petition litigation and transparency practice areas, E&E Legal seeks to correct onerous federal and state policies that hinder the economy, increase the cost of energy, eliminate jobs, and do little or nothing to improve the environment.

The Free Market Environmental Law Clinic (FME Law) provides litigation and research services to qualified clients. We concentrate on cases involving landmark free-market pro-environmental litigation; use of open records and data quality laws to force greater governmental accountability and transparency; and, cases that allow the Clinic to help create the next generation of free market oriented attorneys.