FERC Is Now Rotten. Is There Nothing Biden Hasn’t Polluted?

Background on IER’s transparency efforts is available here.

John Moore, a senior attorney with NRDC, and director of the group’s “Sustainable FERC” project, sent several emails to Clements, and other FERC agents, where he organized meetings between the NRDC and the commissioner. In one message dated April 4, 2022, Moore asked Clements if she could meet with Manish Bapna, the NRDC president since August 2021 (it appears that Clements left the NRDC umbrella in late 2016, and the two never overlapped), “…to discuss matters within the FERC’s jurisdiction.” Clements responded that she would agree to a meeting “within the bounds of ex parte restrictions” – an ostensible reference to ethical guidelines.

The FOIA records suggest Clement is not operating in the public interest, Tom Pyle, president of IER observes.

“Who is Commissioner Clements serving?” he asks. “Is it the ratepayers, or is she doing the bidding of her former employers? FERC is dragging its feet in responding to our request for ethics and guidance about recusals. FERC either has something to hide or it’s manipulating the FOIA process. If a GOP commissioner behaved this way, there would be a huge outcry. It appears that Clements, and by extension  some of her FERC colleagues, are taking stage direction from outside activists she previously worked with who are opposed to reliable, affordable energy.”

Calendar records obtained through FOIA suggest Clements did have breakfast with Bapna but rather obscured it with just the initials “MB” (the pair’s paths at NRDC appear to have missed by several years). Emails show that, days after Glick was grilled before the Senate Energy Committee about FERC’s possible climate coordination with the White House, Clements also obscured on her calendar a meeting with White House Climate Advisor Gina McCarthy (the calendar listed only “HOLD: Arianna meeting”, the first name of McCarthy’s then-Special Assistant, with no mention of McCarthy). Further, her calendar repeated listings of “Sustainable FERC” meetings, including a July 9, 2021 “Quarterly call”.  Clements, who previously served as an attorney for the New York-based NRDC for about 10 years, also previously served as director for the group’s “Sustainable FERC” program.

Because of this close coordination between Clements and her former colleagues, and concerns that the extent of Clements’ dealings suggested a broader attitude at FERC, last September IER submitted a FOIA request focusing on Clements and Glick that asked for: “all memorandum or opinions produced, sent or received by employees within FERC’s Ethics Office which address, discuss or pertain” to the two commissioners and any recusal obligations they may have. The request also asked for “all records produced by or received by employees with FERC’s Ethics Office” regarding meeting requests for Glick or Clements. The same FOIA also asked for any ethics documents or training forms that were signed by FERC commissioners.

But in its “initial determination” dated Oct. 17, 2022, FERC produced just one record in response to the first part of the request seeking memorandum and opinions. On Oct. 25, 2022, FERC did release five documents that were responsive to the request for signed ethics documents. But all five involved Glick with no mention of Clements.

The one Clements document was an already publicly available record pertaining to Clements’s ethics obligations; regarding her compliance, FERC merely acknowledged that it had other records but refused to state how many or whether FERC was claiming they were exempt. FERC instead promised more in twenty days and since has refused to further address the matter. This was in October.

Chris Horner, an attorney in Washington representing IER in its FOIA suits, says that when IER sued, FERC’s lawyers claimed they needed an extension of time to file an answer as, Horner says, FERC has done with IER with some frequency even though an “Answer” is the most rudimentary filing.

“Almost four months after that first acknowledgement, FERC seems to be waiting until a court orders it to provide IER the most basic information such as: do any such records seeking guidance about these briefings of former clients, and their “funders,” exist, i.e., did Clements even seek ethics advice? How many, what is their status? FERC owed IER this information in October yet, even though it ought to be one of the simpler FOIA requests to process, FERC has clamped shut.”

Horner says that IER has pointed out to the DC District Court, in several cases, what is an undeniable “affirmative approach of delaying processing or production in response to [IER’s] FOIA requests.”

FERC’s reticence to release documents responsive to FOIA is not limited to the NRDC or those records which, if they exist, directly address officials’ adherence to their ethics restrictions. The agency also declined to release parts of text message discussions between Clements and the Energy Foundation, a left-leaning grantmaking institution based in San Francisco.

Clements served as the director of the Energy Foundation’s energy markets program for two years just prior to joining FERC. Among the many pages of often [MOU1] redacted text messages from Clements, IER found several between Clements and this former client, according to an amended IER FOIA lawsuit against FERC in January.

In the text messages that were released, Meredith Wingate, a program director with the Energy Foundation, invited 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. Email records show that Jason Mark, the CEO of the Energy Foundation, also sought meetings with Clements last April.

 “FERC played games to avoid releasing numerous records including the rest of the Clements/Wingate “Funders” discussion, as we detailed over the course of several pages in a memo to the Court,” Horner said. “The waste FERC created with this effort to hide embarrassing records includes IER having to submit another FOIA, file suit on that as well, and then yet still another FOIA and lawsuit when FERC claimed it never received that next request. A claim that it later quietly acknowledged, in a filing in another case, was not true.”

Horner added:

“IER also has argued at length that this pattern of delay likely was at first driven at least in part by concerns over Richard Glick’s pending confirmation hearing. In the past several weeks since that nomination fell by the wayside, it does appear that continued FERC gamesmanship is driven by the next expected confirmation battle, over replacing Glick from within. What we already know is that FERC was running something of a lawless shop when it came to at least certain officials’ compliance with recordkeeping and other laws, with acquiescence and participation at the very top. FERC knows those same concerns should dog the rumored White House pick to replace Glick.”

Horner’s comments reference  additional intrigue at FERC involving the use of nongovernmental methods of communication to conduct official government business on the part of Glick and Clements, among other appointees. Phone records show that Glick was not using his government phone for FERC calls and texts, but was instead using his personal phone. IER also obtained a revealing text from Clements to Glick in May 2022 where she says “Hi Rich, this is Allison from my work phone (trying again to switch over).”

This message serves as indication that Clements typically texts from her personal phone and felt the need to identify herself to Glick when using the proper account. Further, emails showed Clements agreed to Zoom calls hosted by her former Energy Foundation colleagues rather than FERC, and Teams meetings hosted by former client NRDC, allowing the outside activist to maintain custody of the “chats” even though these are federal records, which IER has also filed suit to obtain. In its various lawsuits, IER makes the point that the use of nongovernmental phones, etc., has implications not just for FOIA but also the Federal Records Act.

IER initiated its FOIA requests after Glick testified before the Senate Energy and Natural Resources Committee on March 3, 2022, that revolved around FERC policy statements that could impede construction of natural gas pipelines while also opening up new avenues for environmental advocacy groups to pursue litigation 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,” or stonewalling.

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 its February policy statements and emails obtained by IER in its FOIA litigation, showing coordination on a “National Climate Strategy,” appear more in line with the demands of green advocacy groups and with the Biden administration’s “whole of government approach” to climate change.

Although FERC’s initial responses to the IER FOIAs were heavily redacted they did show that Glick was having regular meetings with a senior White House official in the months leading up to FERC’s updated “greenhouse gas” guidance involving natural gas pipelines. After the contentious Senate hearing, FERC issued a new order redesignating the pipeline policy as a draft statement effectively making them inoperative.

“IER’s FOIA inquiries began with an effort to pressure-test [MOU2] the veracity of Glick’s denial about collusion with the White House,” Pyle, the IER president, said. “But they have turned into something much bigger over time, thanks both to FERC’s answers and its evasions. Since the Biden White House was already influencing the SEC as part of its climate agenda, why would FERC be exempt from this effort since it plays a critical role in setting energy policy? FERC was delaying and minimizing its responses to the point where we needed to file suit. Since Glick was meeting with Climate Office at the White House while advancing his anti-pipeline agenda, how could they avoid these conversations? IER will continue to operate as a watchdog on behalf of ratepayers until FERC becomes more accountable and transparent.”

There may be no more than three commissioners from one party serving at any one time. Biden has selected Willie Phillips, a Democrat, to serve as “acting chairman.”