By Kevin Mooney
Finally, a federal judge has ordered energy regulators to declare what documents they have responsive to inquiries involving potential ethics violations with implications for American consumers, and when they plan to release them.
Deadlines for the Federal Energy Regulatory Commission (FERC) to comply with Freedom of Information requirements in two cases involving its senior officials, including former chairman Richard Glick, have come and gone in recent weeks.
One attorney involved in FOIA litigation against the commission says it is “slow-walking” three FOIAs seeking information about Glick’s and his team’s collaboration with the Biden White House, and ethics issues of another Commissioner. These records should, by their description, provide insight into just how seriously outside pressure groups have influenced FERC policy, how seriously FERC officials took their ethics obligations, and the internal scrambling over troubling revelations when they emerged.
The Institute for Energy Research (IER), a Washington-based nonprofit that supports free market energy policies, has acquired emails, Zoom call schedules and chats, Microsoft Team chats, text messages, calendar records, and phone bills that demonstrate how FERC has been converted into a tool for climate activism under Biden’s watch. But the process has been slow going since attorneys representing FERC have only released a paucity of records with many heavily redacted and most still withheld during what IER calls in court filings a targeted “slow-walking” of its requests.
Chris Horner, an attorney representing IER, finds that the commission has been refusing to process IER’s requests until it is compelled into compliance through court order.
“Really, they have just been gaming the judicial system,” Horner said in an interview. “The law is clear that the public have a legal right to timely production, but FERC remains highly selective in what they release and needlessly dragging matters out with dribs and drabs, with at most tens of documents every few months while claiming to be swimming in thousands requiring processing. FERC refused for months to reveal even how much they are withholding. When pressed by a court, FERC changed its story — dramatically so. The law is not working at the speed of relevance and FERC is seizing on that to keep the details of its problems from the public.”
The commission justified doing nothing, for months, on a particular FOIA request seeking certain items sent to or from the General Counsel pertaining to certain FERC controversies — one of just three FOIA requests from IER that FERC claims to be actively processing — complaining it was hamstrung generally by a too-inquisitive requester, IER, whose demand for (public-record) text messages, emails and attachments in this case amounted to “thousands of potentially relevant documents.”
In a recent court filing, ordered by a judge who noticed FERC’s reluctance to provide specifics, the public learned that claim was false.
In the face of IER requesting a hearing to air these problems, one judge ordered FERC to start revealing details of what it has, and when it plans to release it. The parties filed their response late in the day Monday.
“Fortunately,” Horner continued, “by pressing FERC to get specific one court has now forced the commission to say, after seven months, ok, really there were only 89 records at issue. Not thousands. So much for that excuse. Indeed, the rest of FERC’s intemperate filing strongly suggest the reason FERC has stonewalled IER requests is that it is unhappy about IER’s requests.”
IER initiated its FOIA requests after Glick testified before the Senate Energy and Natural Resources Committee on March 3, 2022, during a hearing where FERC policy statements came under scrutiny for potentially opening new avenues for environmental advocacy groups to litigate against pipeline projects.
During the hearing, Sen. Bill Cassidy, R-La., asked Glick “has anyone higher up in the [Biden] administration ever spoken to you in regards to somehow slow-walking or otherwise impeding or otherwise accentuating policy that would have the effect of impeding the development of natural gas pipelines.” In response, Glick said, “no” and IER proceeded to file FOIA requests to test the veracity of his statements.
After initial releases drew the attention of the Wall Street Journal editorial page, FERC began what Horner describes as its “affirmative approach of delaying processing or production in response to [IER’s] FOIA requests.” Subsequent to the hearing, FERC issued a new order redesignating the pipeline policy as a draft statement effectively making the previous order inoperative. However, the records IER obtained in several FOIA cases indicate that FERC is continuing to take stage direction from climate activists inside and outside the White House.
Although Congress established FERC as an “independent agency” in 1977, heavy interaction between FERC’s senior officials and White House climate operatives suggest otherwise, as does correspondence between Commissioner Allison Clements and her aides with Clements’ former employers and clients the Natural Resources Defense Council, Sustainable FERC, and the Energy Foundation.
There may be no more than three commissioners from either party serving on the five-member Commission. Clements, a Democrat, was selected in December 2020 in a deal with Republicans. Biden had renominated Glick, a former Democratic senate aide and wind industry lobbyist, to serve a second five year term as FERC chairman. But Glick left office in January after Sen. Joe Manchin, D-W.Va., chairman of the Senate Energy and Natural Resources Committee, declined to hold a hearing on Glick’s nomination. Glick’s departure left the Commission evenly split between the parties 2-2. FERC announced that Biden named Willie Phillips, a Democrat, to serve as “Acting Chairman.” But oddly enough, although this appointment is typically made via a one-page presidential order and it is necessary for Phillips to run commission meetings or receive the higher pay that comes with his position, Horner said FERC has been unable to locate any documentation showing the Phillips appointment ever in fact occurred.
“This is important, “Horner explained, “Because, although there is no doubt that Phillips has been appointed and, I am confident saying as ‘Chairman’ not to some acting position, the administration claim that Phillips was named “Acting Chairman” is an implicit threat of removal, to exert leverage over the more moderate regulator running a commission the White House views as key to its aggressive plan to turn FERC into a climate agency. This is outrageous.”
What began as an IER effort to uncover possible collusion between Glick and the Biden White House on FERC’s transformation into a “climate” regulator, which coordination Glick denied in the March 2022 Senate hearing, has now emerged into a much larger investigation into the relationship between Clements and anti-energy activist groups who previously employed her before she joined FERC. Clements served as director of the Energy Foundation’s energy markets program for two years and subsequently opened the way for the Energy Foundation to serve as a client of her firm Goodgrid LCC. She also previously worked as a senior attorney with the Natural Resources Defense Council for about 10 years directing its Sustainable FERC project. Both pressure groups have a long history of advancing progressive green energy causes, according to Influence Watch, a project of the Capital Research Center.
IER’s FOIA records have attracted the attention of congressional figures who were already inquiring about potential conflicts of interest on the part of Commissioner Clements. On March 17, 2022, then-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. known as Sol Systems.
“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,” the letter said. “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.”
Since the time of March 2022 letter, Clement’s spouse left Sol Systems to become CEO of Copia Power, yet another green energy group that falls within FERC’s regulatory purview. In May, the House Oversight Committee sent another letter reiterating its previous concerns about potential conflicts of interest while asking Clements to submit documentation that relate to any ethics waivers she may have received concerning her husband’s business activities.
Thus far, Horner, one of IER’s attorneys, says FERC’s productions in response to a request pertaining to Clements’s ethics issues confirm only one waiver Clements received covering her husband’s economic interests, in January 2021, but none that specifically covers her husband’s time with Sol Systems or Copia. FOIA records do show that in September 2021, Charles Beamon, FERC’s ethics official, sent a message to Clements indicating she did not need to update her ethics agreement.
If this is the case, then it would seem there is no reason to refrain from turning this information over to the House Oversight Committee, although that would further highlight the apparent absence of records pertaining to Copia. Last week, in a court filing, FERC acknowledged “105 [items], which combined total approximately 3,290 pages” potentially responsive to the FOIA request for Clements-related ethics correspondence and/or waivers. But FERC has released a total of zero of these records after almost eight months.
Sen. Josh Hawley, R-Mo., entered the fray during a May 4 Senate hearing when he questioned Clements about the “closed-door” meetings she had (in Clements’s words) about “FERC as an opportunity” with the funders of the Energy Foundation, left-leaning grantmaking institution, revealed in emails and text messages obtained by IER.
Hawley inquired about these records obtained through FOIA that show Clements briefed an EF “funders event” that delved into her agency’s 2022 priorities. In response, Clements denied operating inappropriately in her official capacity as a Commissioner.
A YouTube of the full exchange is available here.
There are two separate funders meetings in question: one in January 2022 and another in April 2022. But up until now, FERC has not produced any records in its FOIA responses substantiating the claims Clements made during the hearing that her actions had been cleared by internal ethics officials. IER’s attorneys say any such records would be covered by the FOIA request.
“You would think those would be the first documents FERC would want to release, given first the terrible appearances in these emails and texts and, second, Commissioner Clements’s unambiguous insistence that her activities had been approved of,” Horner said. “Yet FERC has to date proved unable to process much of anything on the topic. Both the public, and Congress in its oversight capacity, have a right to know what basis exists for these claims to Congress, that the ethics processes were also undertaken regarding a Commissioner giving private briefings to a former client, Energy Foundation, or participating in another’s quarterly call?”
The court order calling on FERC to come clean occurs in tandem with ongoing inquiries from the House Oversight Committee and Sen. Hawley aimed at highlighting climate activism undermining FERC’s assigned mission to operate in the public interest.