By Kevin Mooney
After making repeated attempts to determine how much influence environmental advocacy groups are exerting over federal energy policy including what level of assistance progressive agency appointees are providing them, a transparency project that is now a year old scored a direct hit during a May 4th Senate hearing.
That was when Sen. Josh Hawley, R-MO, questioned Allison Clements, a commissioner with the Federal Energy Regulatory Commission (FERC), about the “closed-door” meetings she had with the funders of a left leaning grantmaking institution known as the Energy Foundation. That Foundation was Clements’s client immediately before she took the position as FERC Commissioner. Hawley inquired about emails and text messages obtained through the Freedom of Information Act that show Clements briefed an EF “funders event” that delved into her agency’s 2022 priorities, specifically in her view addressing “FERC as an opportunity.” Hawley asked Clements “who are the donors that attended that session?”
In response, Clements told Hawley fundraising did not occur at the meeting in question. Instead, she described the event as a “convening of foundation staff from across the country” that resulted in “straightforward, above the board conversation about 2022 priorities” that were subject to her ethics agreement. Clements also insisted that she only gave her standard “stump speech.” However, one email after the event thanked her and declared “[w]e greatly enjoyed having an hour to discuss these thorny issues.” That email showed that participants included the litigious, pro-renewable energy activist groups Sierra Club, EarthJustice, and Natural Resource Defense Council (another former Clements employer).
Clements also said she had “an open-door policy” and meets with “all kinds of stakeholders.” Hawley countered by pointing out that the FOIA emails show the event was advertised “as a funders’ only session.” He again asked Clements: “who were the funders?” Clements agreed to provide a list of attendees and said there was no money raised at the meeting.
A YouTube of the full exchange is available here.
Just before his time expired, Hawley asked Clements if she thought it was appropriate to speak to advocacy groups at a “donors only” session.
Clements responded by saying she thinks it is appropriate for her to speak to foundations that have an interest in the energy sector.
Hawley questioned Clements as part of the U.S. Senate Energy and Natural Resources Committee’s latest oversight hearing of FERC.
“I’m concerned now, by what you describe as a pattern, practice of speaking to donor groups that have financial interests in the industry you are regulating,” Hawley told Clements.
A Washington-based nonprofit called the Institute for Energy Research (IER) obtained the FOIA records cited during the hearing after filing more than a dozen FOIA lawsuits against FERC beginning in May of last year. The emails, Zoom calls, Zoom chats, Microsoft Team chats, text messages, calendar records, and phone bills the nonprofit has produced through litigation provides insight into how climate activists have burrowed into FERC. But it has been slow going.
In April, Tom Pyle, president of IER, sent a letter addressed to House and Senate members describing how FERC has resisted freedom of information requests.
“Despite statutorily shortened timeframes recognizing the priority of the public’s right to know, FOIA litigation — particularly when conducted with delay and denial as an objective — is unfortunately not conducive to resolving these disputes at the speed of relevance,” Pyle wrote. “Such serious episodes warrant institutional attention, of course, and also increase the importance of FERC adhering to its transparency obligations, yet it has instead conducted what has every hallmark of a stonewall campaign to delay and block release of records to the public further explaining these matters.”
Pyle proceeds to call on congressional figures with oversight authority to “review FERC’s pattern of behavior” and work to ensure that the agency satisfies its legal obligations. Hawley’s line of questioning suggests Pyle’s letter is resonating on Capitol Hill.
In another new development, the House Committee on Oversight and Accountability sent a letter addressed to Clements that marks a continuation of the committee Republicans’ previous, apparently stymied investigation into what the letter says are her “potential conflicts of interest.” The letter dated May 8, 2023, is signed by Rep. James Comer, chairman of the oversight committee, R-K.Y., and Rep. Pat Fallon, R-Texas, chairman of the Subcommittee on Economic Growth, Energy Policy, and Regulatory Affairs.
“Your position as a regulator on an independent commission necessitates transparency regarding outside group influence in policy decisions,” the letter says. “The committee is concerned your connections to the industry FERC regulates may violate federal laws and regulations regarding conflicts of interest, and run contrary to FERC’s mandate under the Federal Power Act. Committee Republicans previously wrote you concerning your lack of transparency regarding your personal financial interests and appropriate recusals as required by law, to which you failed to adequately respond. As such, we reiterate prior requests and make new requests for documents.”
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 Sustainable FERC project. Both groups have a long history of supporting progressive green energy causes, according to Influence Watch, a project of the Capital Research Center.
The House Oversight Committee letter informs Clements that the “level and nature of access former employers” have had to her office “warrant an evaluation of the ethical disclosure documents” relevant to her federal position. The letter then proceeds to ask for ethics documents.
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 the FOIA records serve as an indication that green activists have burrowed into FERC to the point where they are exercising an oversized influence over energy policy that conflicts with the agency’s stated mission. IER’s Transparency Project website details its long history of FOIA litigation with FERC.
On the question of ethics, an email from Gillian Giannetti, a senior attorney with the Natural Resources Defense Council, addressed to FERC staff, that copies representatives of other environmental activist groups, including Earthjustice and the Sierra Club, does not appear to square with the narrative Clements presented to the Senate committee. In the email dated Feb. 4, 2022, Giannetti thanks FERC staff for arranging a meeting with the activist groups that same day. “We greatly enjoyed having an hour to discuss these thorny issues with all of you,” Giannetti writes in the email. “Please pass along our appreciation to the commissioner and the rest of the staff.”
Recall that in her responses to Hawley’s inquiries, Clements insisted “no inappropriate conversation” took place. She also invited the senator to “ask her ethics person.” This response would suggest that Clements received ethics guidance and that documentation from her “ethics person” is available upon request. As IER pointed out in its letter to the Hill, after eight months FERC still claims that it has yet to find any records of such ethics inquiry or guidance, despite IER having filed suit last year to force their release. Clements now indicates some such records must exist.
Even as they pursued political favors, some of the green activists expressed concern that they might be running up against ethics rules that called out for legal guidance.
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, according to a text she sent Wingate.
Chris Horner, an attorney representing IER in its FOIA lawsuits, says that “Commissioner Clements did neither FERC’s stonewall against releasing these records, nor the attorney conducting it, any favors by insisting they signed off on what even her former client suggested might be inappropriate.” Horner continued, “It was only a few short years ago that an official’s vastly more incidental interaction with former clients in the previous administration was deemed grounds not only for dismissal, but justified congressional intimidation of his former employer and clients. It’s almost as if there are two standards.”
Horner points to the example of Bill Wehrum, who served as the EPA’s chief air quality administrator under President Trump. Wehrum was hounded for months by green groups and congressional committees for having addressed a room in which two former clients were in attendance.
“Stone Wall of Anti-Transparency Rhetoric”
In its most recent court filing in late April, IER alleges that “FERC has not demonstrated that it conducted a search reasonably calculated to gather all responsive records.” IER also claims the agency has not justified its withholding of certain information under FOIA’s exemption rules. IER’s transparency efforts have been stymied by what the April filing describes as “FERC’s stone wall of anti-transparency rhetoric” in its correspondence denying access to information about FERC operations.
One area of IER interest is who Clements and others met with, about what. Yet agency officials, for instance, have even withheld the names of government officials and other individuals in position to influence FERC despite the act that courts have routinely in favor of releasing this type of information, according to the filing.
Another key point of contention concerns the heavily redacted calendars of both Clements and former Chairman Richard Glick where FERC has gone so far as to withhold the topics of meetings listed in the calendars. FERC has made the argument that some calendar entries can be withheld since they involve policy proposals that intersect the “deliberate process privilege” under FOIA. Even so, the agency tacitly acknowledges that some of the information it has declined to release may be in the public interest.
“FERC has not ruled out the possibility that one or more redactions could be the name of a powerful lobbyist or high ranking official whose actions are newsworthy and warrant disclosure,” the April filing says.
Apparently, there is no denying that FERC has declined to release a substantial number of documents responsive to IER’s information requests. In July 2022, FERC stated that it concluded its obligations to fulfill certain requests at issue at that time. However, “the absence of certain records,” specifically involving Clements’s interactions with former employers NRDC and SustainableFERC, motivated IER to “pressure-test the sufficiency of these responses,” with yet another FOIA, according to a March court filing.
What happened next is revealing.
FERC produced a “supplemental production” that doubled the number of responsive records. “Those documents which, we were told, FERC discovered after matters were long-ago closed happened to include the eye-opening materials about Clements’s close working relationship with her former clients,” Horner said.
What gives?
The March filing says FERC attributed its previous opaque response to “an inadvertent processing error.” The “supplemental production” included “many records reflecting Commissioner Clements’s close interactions with former clients,” according to the March filing. IER in turn has described FERC’s actions, in pleadings filed with the courts, as “ongoing examples of FERC serially delaying the public’s ability to understand in a timely way FERC’s operations… part of a broad and continuing pattern of delaying its responses to IER’s FOIA requests and seemingly for political purposes, i.e., because of an uncomfortable convergence of embarrassing information about its operation”.
The House letter asks Clements to turn over any ethics documentation no later than May 22, 2023.
Kevin Mooney is an investigative reporter with both the Commonwealth Foundation and the Heritage Foundation.
