April 23, 2009

In This Issue


On March 31, Representatives Henry Waxman (D-CA) and Ed Markey (D-MA) of the House Energy and Commerce Committee unveiled their draft climate and energy bill (for more information, see the April 2 edition of the ESA Policy News at: www.esa.org/pao/policyNews/pn2009/04022009.php), which is slated for a full committee markup during the week of May 11. House Speaker Nancy Pelosi (D-CA) is planning a floor debate in July.

Of the bill’s four titles (Clean Energy, Energy Efficiency, Reducing Global Warming Pollution, and Transitioning to a Clean Energy Economy), House Energy and Commerce Committee Republicans have pledged to work with all but Title III (“Reducing Global Warming Pollution”), which would create a national cap-and-trade program. Title III closely follows many of the guidelines provided by the United States Climate Action Partnership, a coalition of business and environmental groups advocating market-based climate action, but many Republicans remain uncomfortable with a cap-and-trade program, which they say could threaten the nation’s already tenuous economy.

While there is a good deal of GOP interest in contributing to the energy and climate package, there is also concern about devoting time to legislation they say they could ultimately vote against. “Absolutely, we want to help,” said Representative Ed Whitfield (R-KY), “But at the same time, if you’re reaching a point where you think what they’re doing is wrong, then you have to just take a stand, and ultimately the voters of the United States would decide.” Whitfield said the climate and energy bill could ultimately become a political wedge in the 2010 elections.

Pelosi has expressed her desire to achieve bipartisan support but says that she will move forward with the legislation regardless of what Republicans decide. With a 254-178 majority, House Democrats won’t likely have trouble passing the bill; cap-and-trade opponents are instead looking to the Senate as the primary battleground.

Meanwhile, Republicans may be more likely to support another bill recently introduced by Representative Chris Van Hollen (D-MD) of the Ways and Means Committee, which has jurisdiction over all revenue provisions. The bill takes a cap-and-dividend approach, shifting regulation upstream, from electrical utilities and factories to the producers of coal, crude oil, and natural gas. Unlike the Waxman-Markey bill, it would not reserve free permits for trade-sensitive industries, opting instead for a 100-percent auction from which all proceeds would go back to consumers as a “monthly consumer dividend.” Republican Senator Bob Corker (R-TN) and New York Mayor Michael Bloomberg, who have sought ways to address climate change without increasing energy prices, have already spoken out in favor of this approach.

As has been typical of the climate debate, splits are not only occurring along party lines, but also between regions. In particular, Democrats are divided on how to spend the funds raised—potentially hundreds of billions of dollars—by the new system. The draft legislation is purposely vague on the topic, opening the matter for discussion in Congress and inviting input from stakeholders. President Obama has advocated using the majority of the revenue for tax credits and renewable energy products, an approach for which many Democrats have expressed their support. Still, many lawmakers from manufacturing states are pushing to help industries comply with the new system by using a percentage of the revenue to provide free allowances. This approach, they say, would prevent industries from having to outsource from less-regulated countries.

Other regionally based concerns include:

Auto industry: John Dingell (D-MI), a key auto industry ally, praised the legislation but said it should include more assistance for automakers retooling to meet higher fuel economy standards. He suggested directing 1 percent of the emissions allowance toward such efforts. The current draft includes an Energy Department program specifically aimed at the production of plug-in electric vehicles. Dingell also pushed for including the Obama-supported “cash for clunkers” program, which would provide rebates for Americans who trade in their vehicles for more fuel-efficient ones.

Renewable Energy Standard: Many southeastern lawmakers are worried that their states lack the solar and wind energy capacity necessary to meet the bill’s renewable energy standard (RES). House Science and Technology Chairman Bart Gordon (D-TN) suggested a variety of changes to the standard, such as including nuclear power and “clean coal” among acceptable renewable energy sources and giving the Secretary of Energy authority to add future technologies to the list. Gordon also called for lower “alternative compliance” payments for utilities that do not meet the RES targets.

Oil Refineries: Gene Green (D-TX) expressed concern that a cap-and-trade program would drive refining capacity outside the country, and said that refineries should be included in the bill’s list of vulnerable or “trade-exposed” industries, which would receive free emissions allowances to help them remain competitive.


On April 17, the Environmental Protection Agency (EPA) released a proposed finding that greenhouse gases threaten public health and welfare. This “endangerment finding” follows a 2007 Supreme Court order for EPA to reevaluate the impact of the gases on human health, and could trigger a suite of far-reaching regulations on industrial emissions under the Clean Air Act.

Although the finding has been long-awaited by advocates of government action against climate change, many policymakers would still prefer to see emissions regulated via legislation instead of federal regulation. “The Clean Air Act provides EPA with an effective toolbox for cutting greenhouse gas emissions right now,” said Senator Barbara Boxer (D-CA), who chairs the Environment and Public Works Committee. “However, the best and most flexible way to deal with this serious problem is to enact a market based cap-and-trade system which will help us make the transition to clean energy and will bring us innovation and strong economic growth.” White House Chief of Staff Rahm Emanuel has also spoken in favor of allowing Congress to take a first shot at regulating emissions.

Meanwhile, Republicans are concerned that regulations resulting from the endangerment finding will cripple industry. House Minority Leader John Boehner (R-OH) recently spoke out against the finding, adding that efforts to regulate greenhouse gases must carried out in cooperation with other world powers in order to be successful.

EPA will open the draft for a 60-day comment period and plans to hold two public hearings in May.


Maryland, Virginia, and the US Army Corps of Engineers recently announced their decision to ban the Asian oyster, Crassostrea ariakensis, from the Chesapeake Bay. For several years, resource managers had considered using the species to fill the niche of the Bay’s native species, the Eastern oyster (Crassostrea virginica) whose population is now at 1 percent of its historic peak. Although the two species have similar environmental requirements and tolerances, the Asian oyster is resistant to the two diseases presently plaguing Eastern populations.

The decision followed a 5-year, $17 million dollar study to determine whether Asian oysters posed a significant risk to the ecosystem. Virginia officials supported the introduction, while Maryland and federal officials argued that it wouldn’t be worth the risk. Officials opened the environmental impact statement for public comment last October, and the Ecological Society of America urged its Mid-Atlantic and invasive species members to weigh in (see the October 17 Press Release at: https://www.esa.org/pao/newsroom/pressReleases2008/10172008.php). Virginia ultimately acquiesced, under the condition that the other parties remain open to resuming the debate in the event of new findings.

Asian oysters currently in the Bay—roughly one million, contained in experimental shellfish “farms”—will be removed within the coming month, according to officials. Meanwhile, the officials expressed plans to invest millions in revitalizing the native species, which was critical in filtering the Bay’s water and sustaining the local seafood industry. Authorities have already spent $58 million between 1994 and 2008, although the population has continued to decline. They estimate that a comeback could require an annual funding increase from the average, $5 million, to as much as $50 million.


Prodded by a 2007 petition from the Center for Biological Diversity, the Environmental Protection Agency (EPA) is reconsidering standards aimed at preventing the acidification of marine waters. The petition points to studies demonstrating the impact that carbon dioxide concentrations have on oceans, which absorb roughly 22 million tons of the gas from the atmosphere every day.  The resulting changes in seawater chemistry have had a marked impact on many marine animals and ecosystems; the petition alleges that these impacts are not sufficiently accounted for in existing pollution restrictions, which EPA has not updated since 1976.

In response, the agency issued a Federal Register notice seeking information on possible changes in ocean acidity, and said it will decide whether the pH standards should be revised within a year.

If the standards are revised, the Clean Water Act will require states to follow in suit, tightening their own standards to at least match the limit set by EPA. States will also have to take measures to reduce pollution in bodies of water that are out of compliance. As is the case with the Clean Air Act (see the “Endangerment Finding” article above), this Clean Water Act requirement could force states to regulate the emission of carbon dioxide, which is largely responsible for recent increases in acidification.


Just Introduced

  • Shark conservation: On April 22, Senator John Kerry (D-MA) introduced legislation to tighten restrictions on shark finning, a practice that currently claims as many as 100 million sharks each year. The bill would ban the existing practice of slicing off the fin and leaving the shark to sink and die, instead requiring commercial fishers to land sharks with their fins still attached. This change would allow for better enforcement and quota monitoring. The House passed a similar version of the bill earlier this year (HR 81), and the European Commission is currently considering similar improvements to its existing ban on shark finning.
  • National bottle deposit: Representatives Ed Markey (D-MA) and Jim Moran (D-VA) reintroduced legislation to establish a nationwide 5-cent deposit on recyclable beverage containers. Markey, who first introduced the “Bottle Recycling Climate Protection Act” in 2007, attempted to win support by suggesting that it would save energy and oil currently used to produce plastic bottles, while supplying the aluminum and glass industries with inexpensive materials. The eleven states with deposit programs already in place have recycling rates twice as high as those without; they would be exempt from the national deposit so long as they maintained their high recycling rates.
  • National plastic bag fee: Representative Jim Moran (D-VA) introduced the “Plastic Bag Reduction Act,” which would place a tax on single-use bags, such as those currently provided by supermarkets, dry cleaners, take-out restaurants, and retail stores. The charge per bag would be 5 cents starting January 1, 2010, and would increase to 25 cents on January 1, 2015. Two cents from each charge would go toward paying off the national debt; the remaining three cents would be divided equally among the retailer, state and local trash reduction and watershed protection programs, and pollution cleanup efforts via the Land and Water Conservation Fund.

Under Committee Review

  • Invasive Species Prevention (HR 669): On April 23, the Insular Affairs, Oceans, and Wildlife Subcommittee heard testimony on the Nonnative Wildlife Invasion Prevention Act (HR 669), which would require scientific assessment for all imported nonnative animal species. The Ecological Society of America issued an action alert to all members, encouraging them to support the legislation. For more information, see the February 5 edition of the ESA Policy News at: https://www.esa.org/pao/policyNews/pn2009/02052009.php

The pet industry has objected to the bill, saying that since it regulates only intentional importation, it would cause a serious blow to business without significantly improving the invasive species problem. Industry officials have pointed to shipping ballast and international trade as more promising avenues for preventing nonnative introductions.

Passed by Committee

  • Coral reef protection (HR 860): On April 22, the House Natural Resources Committee approved a bill to give the National Oceanic and Atmospheric Administration additional authority to respond to actions harming coral reefs. For more information on HR 860, see the March 5 edition of the ESA policy news at: https://www.esa.org/pao/policyNews/pn2009/03052009.php

Passed in the House

Wildlife protection (HR 388 and 411): On April 21, the House passed two wildlife protection bills: The “Crane Preservation Act” and the “Great Cats and Rare Candids Act.” The former (HR 388) would fund projects rehabilitating crane populations and habitat, while the latter (HR 411) would establish a separate account for studying and preserving rare felid and candid species under the Multinational Species Conservation fund. Versions of both bills passed in the House last year before stalling in the Senate.

  • E-waste reduction research (HR 1580): On April 22, the House passed a measure authorizing EPA to provide grants for research aimed at improving the efficiency of recycling and collection programs, as well as enhancing the environmental friendliness of materials used in electronics. The grants would also go towards improving public awareness of electronic waste management.

Federal Rules

  • Offshore Renewable Energy: The Interior Department has finalized a rule governing offshore renewable energy projects, enacting the agreement spelled out in a recent memorandum from the Federal Energy Regulatory Commission (FERC) and Interior. The memorandum aimed to resolve a longtime jurisdictional dispute by splitting the oversight of offshore renewable projects between the two entities: Interior will handle leasing, while FERC will handle licensing. For more information, see the March 19 edition of the ESA Policy News at: https://www.esa.org/pao/policyNews/pn2009/03192009.php

The wind industry had been awaiting the finalization of the rule, which is widely deemed critical to the industry’s success. Whereas FERC already had the ability to permit offshore hydropower projects, neither FERC nor Interior was able to permit wind projects until the rule was in place. Earlier this month, an Interior report indicated that the most promising offshore wind projects could provide more than 20 percent of coastal states’ power.

  • Aquaculture Oversight: The Interior rule also includes language to place the National Oceanic and Atmospheric Administration (NOAA) in charge of aquaculture oversight. Although the rule reverses a Bush administration proposal aimed at fast-tracking offshore aquaculture permits through Interior’s Minerals Management Service, White House officials made it clear they will continue to pursue aquaculture opportunities, including those in federal waters, albeit in a different manner. The previous administration’s rule was criticized for its lack of protections for wild fish—shifting oversight to NOAA is an attempt to ensure that adequate protections are included in the new administration’s guidelines.

Sources: Environment and Energy Daily, Greenwire, Politico, The Washington Post, The New York Times