January 22, 2010

In This Issue


The chances of a climate law in 2010 are slim. With unemployment in the double digits, a still-weak economy, and midterm elections on the way, the Obama Administration and Democrats in Congress will likely focus almost entirely on creating jobs.

Working to keep climate change in the picture, the administration has been looking for actions that will reduce both unemployment and greenhouse gas emissions—President Obama has continued to tout the economic and environmental importance of green jobs and technologies, and he recently announced $2.3 billion in tax credits for clean-energy manufacturing projects.

In the Senate, Majority Leader Harry Reid (D-NV) has reiterated plans to proceed with a combined climate and energy bill in the spring, noting the challenge that the busy calendar will present. Reid is currently waiting for Senators John Kerry (D-MA), Joe Lieberman (I-CT) and Lindsey Graham (R-SC) to draft a climate bill with energy provisions capable of earning 60 Senate votes. According to Graham, while the senators have yet to put anything on paper, he has been making progress in conversations with his fellow Republicans. Energy independence has been an important source of common ground for lawmakers otherwise divided along state and party lines. With Republicans pushing for a variety of energy provisions (expanded nuclear power and offshore drilling, for example) and many Democrats pushing for emission controls, Graham and his co-authors are attempting to strike a compromise that satisfies both demands. For more information on the Kerry-Lieberman-Graham effort, see the December 22 edition of the ESA Policy News at: https://www.esa.org/pao/policyNews/pn2009/12222009.php

In spite of these efforts, observers suspect that the looming election will push the congressional climate debate into the background as Democrats scramble to win back moderate voters with action on jobs and the economy. Even if there is time for a vote, Senators facing reelection will likely shy away from controversial votes, making the already distant 60-vote threshold seem that much farther away.

Although an equal number of Democratic and Republican senators will be up for reelection in the November, many Democrats—including Reid—will face serious challenges, while almost all the Republicans are expected to win.

Further complicating matters for climate bill advocates are two recent blows to the Democratic party: The Supreme Court’s rejection of corporate campaign spending limits and Republican Scott Brown’s upset victory in the Massachusetts special election to replace the late Ted Kennedy (D).

  • Supreme Court: On January 21, the Supreme Court ruled 5-4 in favor of rejecting two precedents that had long limited the amount of money corporations could donate to political campaigns. This change could have a tremendous effect on the upcoming elections, given that Republicans generally draw a great deal of support from corporations. The cap has also been lifted for labor unions, which are a major source of campaign funding for Democratic candidates, although corporations have a great deal more financial power. In the long term, some observers speculate that the inevitable influx of money from unions and corporate interests will have a profound impact on the US political system, reducing the power of both the Democratic and Republican party and potentially spawning new, single-issue parties.
  • Brown Victory: Although climate change was not in the spotlight during the race, Brown expressed skepticism about anthropogenic global warming, particularly in light of the recent controversy over hacked Climate Research Unit emails. “I think the globe is always heating and cooling,” he said. “It’s a natural way of ebb and flow. The thing that concerns me lately is some of the information I’ve heard about potential tampering with some of the information.” Pointing to scientific credibility as a major point of hesitation, he added, “I just want to make sure if in fact … the Earth is heating up, that we have accurate information, and it’s unbiased by scientists with no agenda. Once that’s done, then I think we can really move forward with a good plan.” Kennedy had been firmly behind climate legislation efforts.

With Brown’s victory, Senate Democrats also lose their filibuster-proof 60-seat majority, although this won’t factor into the climate debate as much as it will in more cleanly partisan matters. Regional interests have been the most significant dividing factor in climate negotiations, with several Democrats very likely to oppose mandatory emission caps. Republican support, in other words, has always been necessary to reach the 60-vote threshold.

Perhaps more damaging to climate efforts is the symbolic power of a Republican victory in what has traditionally been a liberal stronghold, a shakeup that Republicans say is indicative of the public’s distaste for a big-government agenda. Moderate Democrats may feel particularly vulnerable and therefore less likely to risk a controversial vote.

Although Democratic leaders continue to focus on cap-and-trade, lawmakers now have a variety of options to consider, although it remains unclear whether any will be more viable in the current political climate. Senator Graham says that he believes Congress will eventually settle on a hybrid approach.

  • Energy-Only: Many moderate Democrats feel that a standalone energy bill represents the Senate’s best hope for moving climate-friendly legislation in the near future. Looking to last summer’s energy bill, which cleared the Energy and Natural Resources Committee with bipartisan support, lawmakers including Energy and Natural Resources Chair Jeff Bingaman (NM), Agriculture Chair Blanche Lincoln (AR), and Policy Chair Byron Dorgan (ND) have encouraged Obama to change course and push for an energy-only bill. But Carol Browner, Obama’s top energy adviser, says that the administration remains committed to a “comprehensive bill” that includes cap-and-trade provisions. Several environmental groups have said that they would not support an energy bill without language on regulating emissions. For more information on the 2009 energy bill, see the June 19 edition of the ESA Policy News at: https://www.esa.org/pao/policyNews/pn2009/06192009.php
  • Cap-and-Dividend: Senators Maria Cantwell (D-WA) and Susan Collins (R-ME) have proposed a “cap-and-dividend” model, which has already attracted interest from both parties. In lieu of a trading scheme, the approach calls for a full carbon auction, with 75 percent of the revenue going back to consumers to offset higher energy costs. Senator Lisa Murkowski (D-AK) has indicated that she could become a co-sponsor of the bill; Energy and Natural Resources Chair Jeff Bingaman (D-NM) has signaled some interest as well.
  • Air Pollution Control: Senators Tom Carper (D-DE) and Lamar Alexander (R-TN) plan to introduce a bill that would curb conventional air pollutants like sulfur dioxide, nitrogen oxides and mercury—but not carbon dioxide. Carbon emissions have appeared in previous versions of the legislation, Carper said they will tackle that matter later. “We’re not going to start there,” he said.
  • Power Plant-Only: Senator Richard Lugar (R-IN) and other moderate lawmakers are considering a cap-and-trade approach that would only regulate emissions from power plants. This plan would avoid many of the political dilemmas involving the regulation of the manufacturing and automotive industries, but would not be able to achieve the same reductions as an economy-wide approach. Said Kerry of the approach: “The problem is you lose countless numbers of entities. It becomes far more expensive, and they don’t get the help you get [with an economy-wide cap-and-trade system]. You get no transitional cost help that way, so it becomes more expensive. And in fact, you lose three-quarters of the support for the legislation.”


With climate action on hold in the Senate, attention is shifting to the Environmental Protection Agency (EPA), which is expected to move forward with plans to regulate greenhouse gas emissions under the Clean Air Act in the near future. The decision follows the EPA endangerment finding made in 2009, which declared that greenhouse gas emissions pose a threat to human health. For more information on the finding, see the April 23 edition of the ESA Policy News at: https://www.esa.org/pao/policyNews/pn2009/04232009.php

In March, EPA is set to roll out federal standards regarding greenhouse gas emissions from automobile tailpipes, a move that would automatically trigger requirements that power plants and other stationary sources install the “best available control technology.” The agency also plans to launch a “tailoring rule” designed to shield smaller facilities—those emitting less than 25,000 tons of carbon dioxide equivalent annually—from the economic impacts of the new standards.

On January 21, Senator Lisa Murkowski introduced a “disapproval” resolution to prevent EPA from moving forward by retroactively vetoing the endangerment finding. Murkowski believes that emissions regulations would be best handled legislatively, a view she shares with the rest of Congress and the Obama Administration—including EPA. In 2009, EPA leadership urged Congress to act swiftly on climate, stating that the agency would impose regulations if necessary but favored the legislative route as well. But Murkowski has also been adamant about proceeding carefully on the matter and has called EPA’s recent work “the centerpiece of a highly coercive strategy” to drive hasty action in Congress. 

Murkowski could force a floor vote on her resolution but has thus far remained vague on timing. The measure will need 51 votes to pass, and 35 of the 41 Senate Republicans are already co-sponsors, including Senator Lindsey Graham (R-SC), who is working on a bipartisan climate bill with Senators John Kerry (D-MA) and Joe Lieberman (I-CT). If the rest of the party follows in suit, Murkowski will need 10 additional votes from across the aisle. The Senator has been in discussions with a number of Democrats, and so far three have signed on as co-sponsors: Agriculture Committee Chair Blanche Lincoln (AR) and Senators Ben Nelson (NE) and Mary Landrieu (LA). Lincoln expressed concern over the economic impact of any cap on emissions—whether instituted by EPA or Congress—and said that Congress should instead work to reduce emissions via the energy bill that cleared the Senate Energy and Natural Resources Committee in 2009.

The White House is currently working with Senate leadership to prevent the resolution from passing. But even if the measure clears the Senate, President Obama will have the option to veto it. Some observers therefore suggest that Democrats may see this as a “free vote”—one without ramifications that could still win them points with industry. But fence-sitters who vote “yes” will likely cite their desire to address climate via legislative process, which will put some pressure on them to follow through with an energy and/or climate bill.

Meanwhile, Murkowski, known for being a moderate Republican willing to engage with Democrats in the climate debate, has drawn additional criticism because of her energy industry ties. Last year she received more campaign funding from the electric utility industry than any other member of Congress, and more from the oil and gas industry than all but two lawmakers—Senators Blanche Lincoln (D-AR) and David Vitter (R-LA). Observers suggest that Murkowski has been a focus of the industries partly because of her rise in Republican leadership and her position as ranking member on the Energy Committee.


A new Environmental Protection Agency (EPA) proposal—the first of its kind for any state—would set nitrogen and phosphorous levels in Florida waters. Aimed at improving the drinking water quality and preventing harmful algal blooms, the move has received praise from environmental groups, several of which sued EPA for the ruling last year. Industry groups, meanwhile, say that complying with the standards will cost billions of dollars—doubling the cost of water and sewer services in some areas—and disrupt Florida’s existing efforts to reduce nutrient pollution.

States have had more than a decade to set their own nutrient limits. In accordance with the Clean Water Act, EPA pledged in 1999 to establish federal standards if states did not develop their own by 2004. The 2010 proposal, which marks the agency’s first attempt at following through with this pledge, could pave the way for similar actions in other states. Although the standards were developed using methodology specific to Florida, observers say that the proposed limits could serve as a template for action in other states.

Wisconsin could be next—citing numerous algae-related pet deaths, human health problems, and beach closures, environmental groups have threatened to sue EPA if it does act quickly to set limits for the state.

The Florida proposal covers freshwater lakes, rivers, streams, springs, and canals; EPA plans to propose a rule for coastal waters early next year.


Both sides of the climate debate have recently urged the White House Council on Environmental Quality (CEQ) to address whether greenhouse gas emissions should factor into Nation Environmental Policy Act (NEPA) reviews. NEPA requires environmental impact statements for federal agency projects and policies.

In response to a letter from Republican Senators John Barrasso (R-WY) and James Inhofe (R-OK), CEQ Chair Nancy Sutley restated the Obama Administration’s commitment to addressing energy and climate matters through legislative process, and said that NEPA “cannot be used to regulate greenhouse gas emissions.” At the same time, though, Sutley said that “NEPA compels Federal agencies to consider environmental effects before undertaking significant actions or policies. CEQ sees no basis for excluding greenhouse gas emissions from that consideration.”

Barrasso and Inhofe, two of the Senate’s most prominent climate change skeptics, alleged that NEPA has caused unnecessary delay in many important projects, while “providing no meaningful environmental benefits”—a problem they say would only be exacerbated by introducing climate impacts into the mix. To this, Sutley responded by pointing to environmental reviews recently completed for projects funded by the 2009 economic stimulus package, which she said demonstrated “successful wide-scale application of NEPA without slowing economic recovery.” In addition, she said that in many cases, agencies have already chosen to consider the impact of emissions and climate change as part of their environmental statements.

Sutley also responded to a 2008 petition calling for CEQ to expand NEPA to include climate change, indicating that her office plans to issue draft guidance for agencies on the matter. The draft is still under development and would be opened for a public comment period. Since it is still under development, there is currently no timeline in place for the guidance.


On January 19, House Science and Technology Chairman Bart Gordon (D-TN) announced his agenda for the year—the centerpiece of which will be reauthorizing the America COMPETES Act—and listed a National Oceanic and Atmospheric Administration (NOAA) organic act among his legislative priorities. An organic act would give the agency congressional authorization for the first time since it was created by President Nixon, via executive order, in 1970.

Congressional authorization—long recommended by oceans commissions and advocated for by ocean and environmental groups—would give lawmakers the ability to set NOAA priorities and expand its authority. In addition, an organic act could:

  • Improve NOAA’s ability to collaborate with other agencies
  • Make it more difficult for Congress or the executive branch to eliminate NOAA, as Republicans threatened to do to the entire Commerce Department in the 1990s. At present, NOAA could be negated with an executive order, although such an effort is deemed unlikely and would be complicated by the many bills granting NOAA authority over fisheries and scientific research.
  • Grant NOAA more authority to deal with climate change or the recommendations from the presidential ocean task force, or establish an ocean zoning system.
  • Establish NOAA as its own agency, independent of the Commerce Department. Although many ocean advocates say this would be ideal, it is unlikely that Congress would take such bold action.

Most other federal agencies already have congressional authorization, which lays out their mission and organizational framework. NOAA, meanwhile, functions under its executive order and numerous issue-specific statues. Over the past 40 years, lawmakers have introduced over 20 measures to codify the agency. One of the primary challenges to this effort has been getting lawmakers to prioritize it and to cooperate among the multiple committees with jurisdiction.

Indeed, while Energy and Environment Subcommittee Chair Brian Baird (D-WA) is planning action on the NOAA organic act early in the year, Gordon acknowledged that the Science Committee represents only the first step in a process that may not be completed this year. Ocean groups say that an act would only make an impact if it addressed all NOAA issues, many of which fall under the jurisdiction of other committees. But significant progress could be made in 2010, with House Natural Resources Chairman Nick Rahall (D-WV) expressing interest in working on the issue this year. In the Senate, the Commerce Committee is largely in charge of NOAA oversight—although the chamber’s calendar is already quite full, Commerce has remained open to advancing a bill.



Public Housing Efficiency (S 2897): On January 13, Senator Michael Bennet (D-CO) introduced a bill that aims to improve water and energy efficiency in federally subsidized housing by 25 to 40 percent. Half of the resulting utility cost savings would be given as annual dividends to owners of affordable housing who made efficiency-related upgrades; the remainder would be used to provide loans for upgrades and to reduce the roughly $5 billion that the government currently spends on its 6 million housing units. According to Bennet, the bill could reduce the utility costs of the program by more than $1 billion. The bill, which has already garnered industry support, has been referred to the Banking, Housing, and Urban Affairs Committee; its House counterpart (HR 4099) has been referred to the Financial Services Committee.


Timber contract extension (HR 3759): The House passed a measure that would allow the Interior secretary to grant three-year timber contract extensions on Bureau of Land Management. The measure, passed by voice vote, was prompted by the economic toll that the depressed building market has taken on timber companies. The Senate Energy and Natural Resources Committee is currently reviewing the companion bill, S 2791.


New Virgin Islands historic site (HR 3726): All 169 Republicans present and 4 Democrats voted against a bill to establish the Castle Nugent National Historic Site in the US Virgin Islands.  The site is home to the Virgin Islands’ largest remaining black mangrove stand, as well as coral reefs and sea turtle nesting areas. Although 241 Democrats voted in favor of the measure, they did not reach the two-thirds majority necessary for passage under suspension of the rules. Chief objections were the cost of acquisition—between $40 million and $50 million—and an outstanding Park Service analysis. Opponents said the measure should be tabled until the analysis is complete. Supporters, meanwhile, argued that immediate action is necessary to protect the site because local private landholders face pressures to develop their property.

Sources: Environment and Energy Daily, Greenwire, ClimateWire, Politico, the Washington Post, the New York Times, The New Yorker, The Miami Herald, CNN