Washington – Yesterday, Lisa Murkowski, chairwoman of the Senate Committee on Energy and Natural Resources, began to publicly discuss the repercussions of the decision of the federal First Circuit Court of Appeals, which may force her to deal with a confirmation process for the members of the Board overseeing the public finances of Puerto Rico.
“We can confirm people in 90 days, (the issue) is when does that clock start”, said Republican Murkowski, in answering questions after the hearing on the situation of the U.S. territories.
In her opening statement, Murkowski acknowledged the uncertainty created by the decision of the First Circuit of Appeals by declaring unconstitutional the process followed to appoint the seven members of the Board.
“While narrow in its ruling – that the Board members are principal officers of the United States and subject to the Senate’s advice and consent – the panel’s finding on congressional authority under the Territorial Clause could have broader consequences down the road if left to stand. We are still reviewing this here on the Committee and could possibly take up in the future,” she said.
As Chairwoman of the Committee, Murkowski will lead any confirmation process for the members of the Board. But, before thinking about that stage, it will be necessary to have a final and firm judicial decision and it will be also necessary to know if President Donald Trump´s intention is to ratify the current members until their appointments expire in August or to reconstitute the Board.
The holding pattern that prevailed in Washington since the decision of the First Circuit Court seems to be reflected on the fact that Joe Manchin, Democratic spokesman for the Committee on Energy and Natural Resources, said he had no position about what the next step should be.
Murkowski, however, asked Governor Ricardo Rosselló Nevares, who testified in the hearing, about the impact of the First Circuit of Appeals decision on the Board´s daily operation.
"There has been uncertainty," Rosselló replied, without referring to his threat to advance budget items without the Board´s authorization.
Although he did not propose any specific amendment, he used the question to demand an answer to his complaint regarding the Board´s intention to influence public policy over the elected government.
Rosselló Nevares considered that “the spirit of the law (PROMESA) was not to control the public policy of Puerto Rico or (to make the Board) be involved with the day-to-day working of the government.”
Rosselló Nevares said that following the decision of the First Circuit he anticipates the need for a closer approach both to Congress and the Executive branch to ensure that the corresponding actionsdo not jeopardize the progress made to date and to support the route towards PROMESA core objectives.
He also said that despite tensions and differences with the Board, created by PROMESA, and an "aggressive litigation" from certain creditors, he is proud that they have made real progress “towards fiscal responsibility."
At the end of the hearing, when she was asked if she thought it prudent to review the authority of the Board over the government of Puerto Rico, Murkowski answered the process to evaluate the law is through hearings and the questions that arise during those hearings.
And added that questions over the powers of the Board or if it was correct to establish them are fair questions.“Is it a fair question to ask whether the power should be reviewed? Did we do right in setting it up? Those are fair questions”, she said.
The Republican senator warned that although she voted against PROMESA dissenting with the structure it created, now her goal is to ensure that the Board works for the people of Puerto Rico, for the federal government and for the country. “Once we passed the law we want to make sure that its functions as we had intended… If it needs to be corrected, we address it”, she said.
A few days ago, the chairman of the House Committee of Natural Resources, Raúl Grijalva (Arizona), said he does not believe that a short-term review of PROMESA is necessary, if the decision of the Court of Appeals prevails.
Grijalva has previously expressed interest in analyzing the powers of the Board. But, like other House Democrats, he is clearly aware that the possibilities of pushing forward amendments to PROMESA are very complicated, especially in a very divided federal government.
For the spokesperson of the Puerto Rico House Popular Democratic Party (PPD) Rafael "Tatito" Hernández - who proposes to eliminate the Board and replace it with a trustee with less powers - the governor was soft in his expressions on PROMESA and he should have used Murkowski's question to ask for specific changes to the statute.
Hernandez was at the session with other PPD colleagues.
On February 15, a three-judge panel decided that the mechanism used to appoint the seven members of the Board failed to comply with the constitutional appointments clause.
Under PROMESA, former President Barack Obama appointed six of the seven Board, based on recommendations from Congress leaders. Obama appointed the seventh member directly, but also without consent from the Senate.
For the panel, contrary to the provisions of PROMESA, the members of the Board are principal federal officers, so they have to be proposed by the U.S. President and confirmed by the Senate.
However, the appellate court validated the powers of the Board and the process of debt adjustments and restructuring. The court gave the President and the Senate 90 days to confirm the current members of the Board or to reconstitute it.
The parties are still evaluating whether they go to the Supreme Court.
For his part, Democrat Manchin was interested on the future of the power grid and said he felt "frustrated with the lack of meaningful progress towards the grid’s recovery.”
Meanwhile, Rosselló Nevares presented a report on the recovery and reconstruction process, including government plans to convert units into natural gas plants and promote renewable energy sources just over 17 months after Hurricane María.
Rosselló Nevares stressed that unfortunately, as academic studies have found, the federal response in terms of funds and resources allocated to hurricanes Harvey and Irma, in Texas and Florida, was faster and more generous when compared to that for Hurricane María in Puerto Rico.
Beyond the problems with the federal response that even FEMA has admitted, the governor argued that the colonial situation and the lack of political powers in Washington are the main causes of unequal treatment to the island.
Rosselló Nevares also focused on his claims for FEMA to speed up disbursements, the approval of permanent projects and the inclusion of preconditions in the costs of permanent works on critical infrastructure.
With the support of Democratic Senators Mazie Hirono (Hawaii) and Catherine Cortez Masto (Nevada), Rosselló Nevares also called for the approval of new measures to mitigate the disaster caused by Hurricane María, such as the additional $ 600 million in nutrition assistance he requested and the waiver from FEMA matching of funds requirements for emergency works and debris removal.