By Kevin Mooney
Congressional figures responsible for conducting oversight are in position to corral green activists who have burrowed into federal agencies while jeopardizing the domestic availability of energy.
For starters, they can revisit the potential conflicts of interest swirling around Allison Clements, a member of the Federal Energy Regulatory Commission (FERC), an “independent agency” Congress established in 1977.
Almost exactly one year ago on March 17, 2022 minority members of the House Oversight and Reform Committee sent a letter addressed to Clements inquiring about disclosures she made and did not make to FERC or to the Office of Government Ethics. At the time, her husband was employed by a solar energy company based in Washington D.C.
“Your spouse, Ray Henger, is currently employed by Sol Systems, LLC (Sol Systems)—a renewable energy company—but the disclosures you have made to OGE make no reference to this connection,” the letter said. “Your position as a regulator of your spouse’s industry requires you to identify matters that may implicate your personal financial interests and make the appropriate recusals as required by law. This lack of transparency is particularly troubling given recent efforts by FERC to block natural gas pipelines—making the United States more dependent on Russian energy.”
In February 2022, FERC released two policy statements creating new avenues for litigants that would either slow or obstruct natural gas pipeline construction. Renewable outfits like Sol Systems would stand to benefit. But FERC reversed course after the Senate Energy and Natural Resources Committee held a hearing on March 3, 2022, probing into the policy changes. Henger left Sol Systems a few weeks after the congressional letter was sent. In April 2022, he was tapped to serve as CEO of Copia Power, a renewable energy outfit committed to “net zero” policies in line with the Biden administration: “an energy transition company committed to developing, constructing and owning large-scale infrastructure assets in the U.S. to accelerate decarbonization in all areas of our economy.”
The “potential conflicts of interest” and “lack of transparency” on the part of Clements that elected officials cited in their year-old letter appear to be more applicable now than ever. Copia is a creation of the Caryle Group, a global investment firm headquartered in Washington D.C. with a significant stake in green energy platforms. For this reason alone, Rep. James Comer, R-K.Y., a signatory to the letter who now chairs the Oversight Committee, has ample cause to revisit his previous requests for ethical documentation. But there’s now added intrigue.
Thanks to the heavy lifting of the Institute for Energy Research, a nonprofit that advocates for free market energy policies, it has become evident that Clements has maintained a steady chain of communication with green activist groups opposed to natural gas production including particularly, and most remarkably, her former employers and clients. Since last May, IER has filed more than a dozen Freedom of Information Act lawsuits that have produced records of Zoom calls, Zoom chats, text messages, calendar records, phone bills, and emails that indicate Clements served as a conduit for outside pressure groups to transform FERC into a tool for climate activism.
Prior to joining FERC, Clements served as the director of the Energy Foundation’s energy markets program for two years and then had EF as a client of her firm Goodgrid, LLC, serving as EF’s “policy advisor consultant”. She also previously worked as a senior attorney with the Natural Resources Defense Council (NRDC) for about 10 years, directing its SustainableFERC project. Both groups have a long history of supporting progressive green energy causes, according to Influence Watch, a project of the Capital Research Center.
FOIA records show Meredith Wingate, a program director with the Energy Foundation, invited Commissioner Clements to brief the foundation’s funders.
“Not sure if this is appropriate to ask or not,” Wingate said in a December 2021 message to Clements, “— would you be interested/willing/available to talk to funder group about FERC 2022 priorities.” Wingate then informs Clements of a meeting that following January 10, which Clements did address on, according to a text she sent Wingate, “FERC as an opportunity” for the funders. Email records show that Jason Mark, the CEO of the Energy Foundation, also sought meetings with Clements last April.
Another key player in the correspondence is John Moore, an NRDC attorney who serves as director for the group’s Sustainable FERC Project, a position Clements also held during her time with the NRDC. FOIA records show Moore sent several emails to Clements, and other FERC officials, where he organized meetings between the NRDC and the commissioner.
One of several emails from Moore that stands out is dated Jan. 31, 2002, and is addressed to Matthew Christensen, FERC’s general counsel, Kim Smanczniak, a former attorney to Earthjustice, and Miles Farmer, a former NRDC attorney and policy advisor to Governor Andrew Cuomo in New York now working for Clements. “Several of us would appreciate a meeting with you to discuss pending FERC rulemaking and other priorities…” Moore says in the email to the FERC officials.
Other emails show Clements agreed to Zoom calls hosted by the Energy Foundation and Microsoft Teams meetings hosted by the NRDC. By circumventing FERC as the host, the outside activists can maintain custody of “chats” that are technically federal records.
Chris Horner, an attorney in Washington representing IER in its FOIA lawsuits, describes how FERC has “slow walked” and “resisted” releasing records that are in the public interest. In two among numerous examples IER has pointed out to the U.S. District Court in Washington, D.C. as showing FERC behavior goes far beyond mere bureaucratic sloth, but extends to an intentional stonewall, when the anticipated confirmation for a second term for then-Chairman Richard Glick was abandoned, in mid-November 2022, FERC reversed a months-long course and dropped its withholding of information related to Mr. Glick in many records. These showed close coordination with the Biden White House on “National Climate Strategy.”
However, FERC quickly pivoted to renew its campaign to avoid releasing certain records — even refusing to make basic, required admissions like how many records exist responsive to a few particular and what Horner calls “apparently sensitive” requests. For example, FERC for six months refused to reveal the barest details about whether Commissioner Clements received, or even sought, ethics guidance about her role in former clients’ funder and quarterly meetings. They continue, in court, to drag out release of any such evidence.
“There’s something rotten on 888 First Street,” Tom Pyle, IER’s president said. “Why have FERC lawyers, led by General Counsel Matt Christiansen, fought so long to keep even basic information about Commissioner Clement’s ethics compliance from the public view? If FERC isn’t concerned that Commissioner Clements has crossed the line in relationships with former clients, and has an answer to the apparent statutory bar to her serving given her pecuniary interests, then this behavior makes no sense. The public has the right to know whether she should or even can continue serving.”
FERC is charged with the stated mission of providing consumers with “reliable, safe, secure, and economically efficient energy services at a reasonable cost through appropriate regulatory and market means, and collaborative efforts.” But FOIA records show there is at least one commissioner who is inclined to the carry the water for activist groups working to undermine affordable, reliable energy flows at odds with FERC’s mission. The Oversight letter sent to Clements last year highlighting her “failure to identify” her “connection with the green industry” is if anything an understatement of the possible ethical transgressions suggested in those records FERC’s lawyer Christiansen has let slip out. The relationship between Clements and former employers and clients only came to light in the past few months but FERC continues to fight release of much of the rest of the story.
A recent example of just how seriously these actions would be addressed were the parties reversed is that of Bill Wehrum, who served as the EPA’s chief air quality administrator during the Trump administration. He was compelled to resign in 2019 after House Democrats raised questions about the relationship between Wehrum and his former employers in the energy industry despite Wehrum having sought and received ethics instruction on managing any interactions.
Horner sees a double standard at work where Clements is concerned since FOIA records point to interactions between her and her former employers that overtly dealt with public policy changes initiatives advanced by green activists, which one former client even nodded to as possibly not appropriate.
“With the Wehrum history, and particularly given that kind of opening text message invitation from her former client, surely Commissioner Clements sought, received, and closely followed ethics advice on how to proceed, right?” Horner asks. “But we don’t know, as FERC clearly doesn’t want anyone to know. From which you can draw your own conclusions unless and until FERC drops the stonewall or the court intervenes.”
Under Chairman Comer, the oversight committee has an opportunity revisit the questions he asked Clements last year while raising new ones. For starters, committee members could point to the Federal Power Act, which arguably bars Clements from serving as a commissioner given her husband’s financial interests.
The relevant part of the act governing FERC states:
No person in the employ of or holding any official relation to … any person, firm, association, or corporation engaged in the generation, transmission, distribution, or sale of power, or owning stock or bonds thereof, or who is in any manner pecuniarily interested therein, shall enter upon the duties of or hold the office of commissioner.
Pyle, the IER president, suspects that rules are a little different for federal commissioners depending upon their political orientation.
“History makes clear that were this a Republican commissioner, the calls for her resignation would have been deafening even without the evidence for a review. But as the public again has been recently reminded, the rules are different for those connected with the agenda and interests on the left.”
The Department of Justice has its own guidelines prohibiting the conflicts of interest that appear to be operative within FERC. Where financial conflicts are concerned the DOJ states:
“An employee is prohibited from participating in any matter in which he has a financial interest. In addition to an employee’s own financial interest, certain interests are considered his (“imputed” to him), such as those of his spouse, minor children and business partners. However, an employee may participate in such a matter if he has a waiver.”
FERC includes five commissioners who are appointed by the president and confirmed by the U.S. Senate. There may be no more than three commissioners from one party serving at any one time. President Biden had renominated Richard Glick, a former Democrat Senate aide and wind industry lobbyist, to serve a second five year term as chairman.
But Glick left office in January after Sen. Joe Manchin, D-W.Va., chairman of the Senate Energy and Natural Resources Committee, refused to hold a hearing. Manchin had been critical of FERC’s approval process for natural gas pipelines. Glick’s departure leaves the commission evenly split between two Democrats and two Republicans with Willie Phillips, a Democrat, serving as acting chair.
Christiansen, the FERC general counsel, is reportedly being vetted to fill the open seat. But it is also worth noting that in his current position he sat at the epicenter of efforts to either obstruct or delay to release of documents responsive to IER’s open records requests. Under his watch, both Glick and Clements made liberal use of personal phones to conduct official government business, according to FOIA records. That’s a problem, legally, for the same reasons Hillary Clinton’s server was: federal records are to be in the federal government’s custody. Circumventing that requirement sets up violations of, at minimum, both FOIA and the Federal Records Act.
A joint status report from the opposing litigants on the number documents FERC has identified that are responsive to the most recent requests is due Friday. As of this writing, FERC has now after six months acknowledged it is still holding 35 records reflecting Clements’s ethics, e.g., restrictions and guidance, and trying to delay production beyond an expected House of Representatives Oversight Committee hearing in May.
“Congress needs to exercise its oversight function here,” Pyle said. “FERC commissioners should be working for ratepayers, not narrow special interest groups and certainly not for themselves.”
Kevin Mooney is an investigative reporter with both the Commonwealth Foundation and the Heritage Foundation.
Originally published by RealClearEnergy. Republished with permission.
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