This story was updated at 4:49 p.m. EDT.
Willie Phillips is still acting chair of the Federal Energy Regulatory Commission, a White House official said Wednesday, despite the release of a document signed by the president that lists him as chair.
Phillips began leading the commission in January following the departure of former FERC Chair Richard Glick. At the time, a White House official said that Phillips, a Democrat, would be FERC’s acting chair until the Biden administration could nominate and confirm a “permanent” chair.
Then this week, the Institute for Energy Research publicly released a document signed by President Joe Biden dated Jan. 3 that designated Phillips as “Chair” of FERC. The document, which FERC confirmed and POLITICO reported, has ignited a debate over the meaning of an “acting” FERC chair and raised questions about Phillips’ official title.
According to the White House, however, nothing has changed.
“It’s standard procedure to name an acting chair in a situation like this,” the White House said in a statement Wednesday to E&E News, confirming that Phillips is “still acting chair.”
The Institute for Energy Research — which obtained the document about Phillips through a Freedom of Information Act request — is a conservative nonprofit that is critical of renewable energy.
Lobbyists and lawyers familiar with FERC say there’s no functional difference between an acting FERC chair and a permanent one. In both roles, the individual sets the commission’s agenda and serves as a de facto voice for the agency. The president also has the power to designate any sitting FERC commissioner as chair at any time.
Nonetheless, the term “acting chair” could signify that the president may revise the designation if circumstances change, FERC observers said. And supporters of Phillips — who is the first Black person to lead FERC — have been frustrated with the “acting” moniker, which has appeared in commission decisions as recently as this month.
The Congressional Black Caucus, for example, wrote to the White House in July that Phillips’ title should simply be chair. The caucus did not provide a comment to E&E News on the issue Wednesday.
“I think the question that’s looming for all of us … is, ‘Why is he still acting after all of this time?’” said Colette Honorable, who was a Democratic FERC commissioner during the Obama administration. “To the extent that anyone in the White House is wondering whether he can serve, he’s fully answered that question and he’s doing it completely and with distinction.”
Asked about the new letter published by the Institute for Energy Research, FERC spokesperson Mary O’Driscoll said this week that it “reflects accurately that President Biden designated Willie Phillips to lead FERC on January 3, 2023.”
“Since that date, Chairman Phillips has served fully and faithfully as Chair of the Commission, and continues to carry out all of his responsibilities for the executive and administrative operation of the Commission,” O’Driscoll said in a statement.
Thomas Pyle, president of the Institute for Energy Research, criticized the White House statement that Phillips remains acting chair.
“What do they suppose that even means? What are they attempting to gain by sticking with this ‘acting’ charade?” Pyle said in an email. “The order from President Biden says he is Chairman. Either you are the chair or you are not.”
‘Shouldn’t surprise anybody’
Although Phillips is often described as chair of FERC in official news releases, he is still described at times on the agency’s website and in FERC decisions as “Acting Chairman.” O’Driscoll did not respond to questions about that discrepancy and referred questions about the use of the term “acting” to the White House.
It “shouldn’t surprise anybody” to see a document from the White House describing Phillips as simply the chair, said Rob Gramlich, a former FERC employee who is now president of the electric power consulting group Grid Strategies. That’s because someone always needs to be leading the agency, Gramlich said.
“But on the flip side, it’s up to the president to designate who is the chairman on any given day or month, so I think it’s also meaningful whether the president says he intends for an individual to be the long-term chair verses the chair for now,” Gramlich said.
While Phillips is very qualified and is excelling in the job, Gramlich continued, “I don’t think the president has said yet that he’s the intended long-term chair.”
Phillips, who joined the independent agency in December 2021, is the fifth person to serve as acting FERC chair since the 1980s, according to the agency’s website. In Phillips’ case, he was tapped for the job at the same time as another seat on the commission became vacant.
Prior to FERC, he was chair of the Public Service Commission of the District of Columbia. Phillips’ current term at FERC expires at the end of June 2026.
FERC has five seats. One is vacant, the others are split between Democrats and Republicans.
Last year, the White House nominated Glick, the former Democratic chair, to serve a second term leading the commission. But Sen. Joe Manchin (D-W.Va.), chair of the Senate Energy and Natural Resources Committee, effectively blocked his nomination, saying through a spokesperson in November that he was “not comfortable” holding a hearing for Glick.
By naming Phillips acting chair and describing the position as temporary, the White House was “trying to manufacture leverage over Manchin,” said Neil Chatterjee, a Republican who was FERC chair during much of the Trump administration. That strategy failed, Chatterjee said, noting that FERC still has a vacant seat, to the frustration of clean energy advocates.
The White House did not provide a comment Wednesday on Chatterjee’s assertion. A spokesperson for Manchin also did not provide a comment this week, but referred to remarks the senator made in May asserting that there is “no such thing” as an acting FERC chair and praising Phillips’ leadership at the agency.
At FERC, acting chairs lack “any meaningful significance,” said Harvey Reiter, a partner at the law firm Stinson whose focus includes the agency.
Unlike at an executive agency, such as the Department of Energy, FERC is independent, and Senate confirmation is not required for someone to become FERC chair or acting chair, Reiter said. There also appears to be no limit on how long a FERC commissioner can serve as chair in an acting capacity, he said.
Still, the term could suggest that the president might eventually appoint someone “more permanent,” Reiter said.
“It may just be sending a signal that, ‘We could fill this with somebody else,’ although they already have that power,” Reiter said, referring to the White House.
