EarthJustice is called out by McNamee for their post-election fundraising. While the EJ logo is on the screen, he says: "They’re going to try and wait us out, litigate us out, and they’re going to try and return to the administrative tyranny that they’ve been pushing for so long"
Later in the presentation McNamee says: "Part of the reason that we see that the green movement is always talking about more government control is because it’s the constant battle between liberty and tyranny." 1/2
McNamee (cont): "It’s about people who want to say I know what’s better for you. Groups are saying I want to be the one in charge and I know what’s good for you, and I’m going to ration it."
It appears like he's going to be confirmed to be a FERC Commissioner and will then judge comments and complaints filed by the very same groups that he associated with tyranny in a speech earlier this year.
At some point, someone is going to formally call him out for these comments and ask for his recusal. The legal test is intended to be "objective" - would he appear to be biased to a reasonable person who knows all of the facts?
On the one hand, he's expressing personal policy views, and those are not ordinarily grounds for recusal. On the other hand, he's not just disagreeing with these groups; he's calling them out as a threat to freedom. How can he walk that back? Can he appear to be be a fair judge?
His participation in any docket that includes comments from the "green movement" - and especially any docket started with a complaint filed by an enviro group - creates a legal vulnerability. There's a chance a court would invalidate FERC's order solely due to his participation.
Case law does not establish a hard line with regard to bias. Challenging McNamee's decision not to recuse himself from a docket based on filings from enviro groups is certainly not a slam dunk. But he's a procedural liability for FERC. All risk, no gain.
And if the Administration thinks McNamee will be their man on the inside who will push their coal bailout over the finish line, they are deeply mistaken. McNamee is legally disqualified from those matters. More on that soon.
