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Policy News Update

May 07, 2009

In this issue: [Contract All : Expand All]


Earlier today, President Obama released his $3.4 trillion budget proposal for fiscal year 2010, setting the stage for the 2010 appropriations process in Congress. The proposal includes many significant increases for renewable energy and environmental programs, along with $17 billion in proposed spending cuts, about half of which come from non-defense spending. Many of these cuts target earmarked programs and will likely face opposition in Congress. Still, leaders on the Hill have expressed their desire to cooperate with the reductions, although many Republicans have criticized the proposal for its high spending levels, spending cuts notwithstanding.

Highlights include:

National Science Foundation: $7.045 billion (an increase of over $550 million), including increases in graduate research fellowships (1200 to 1600), an emphasis on high-risk/high-reward transformative research, climate change and climate change education (K-12 to graduate, in addition to the general public), computer modeling, and clean energy research.

Environmental Protection Agency (EPA): $10.5 billion ($3 billion increase) including additional funding for air, water and climate programs:

The proposal eliminates several local and regional programs that duplicate broader federal efforts. Cuts include:

Energy Department (DOE): The proposal maintains 2009 spending levels ($26.4 billion) for DOE, citing the almost $40 billion provided earlier this year in stimulus funding. Still, the proposal calls for some reshuffling of funds, resulting in boosts for several renewable energy and efficiency programs. A number of nuclear programs would be phased out. Of particular note:

Interior Department: $12 billion, in addition to $3 billion from the stimulus package.

Agriculture Department (USDA): $26 billion, including $20 billion for rural development activities.

National Oceanic and Atmospheric Administration (NOAA): $4.479 billion for NOAA, compared to $4.4 billion in 2009. NOAA received $600 million in the stimulus package.


Amid ongoing negotiations to secure votes and GOP demands for additional hearings, Representatives Henry Waxman (D-CA) and Ed Markey (D-MA) postponed the subcommittee markup of their draft energy and climate bill, which had been scheduled to start last week. Waxman says he still plans to have a bill out of committee by his Memorial Day deadline, which could require going straight to the full committee without subcommittee markup. Many of the subcommittee’s Republicans and conservative Democrats have voiced their concerns about fast-tracking the process, although many other lawmakers have been sympathetic, noting the numerous time constraints placed on the bill. For now, the details of the markup schedule remain vague.

The draft bill’s stalling has raised a number of questions about its viability. Potential barriers to passage include:

Concerns about passage in the Senate: Climate legislation is less likely to pass in the Senate, where the Democratic majority is slimmer—some lawmakers are questioning whether it might be wiser to delay floor action. In spite of these concerns, House Majority Leader Steny Hoyer (D-MD) has stated that House Democrats will continue to move forward with attempts to pass a bill this year. Meanwhile, Senate Majority Leader Harry Reid (NV) said he plans to wait for House action on climate and energy before putting it on the Senate schedule: "I'm anxious to see what the House comes up with," he said. "I think we're going to follow them, and not do anything until they get theirs done."

Concerns from Republicans: The delayed subcommittee vote came partly in response to Republican requests for another set of hearings. One of the principal GOP concerns, the allocation of emission allowances, is left vague in the draft, prompting Representatives Joe Barton (R-TX) and Fred Upton (R-MI) to argue that additional hearings will only be productive after Democrats produce legislative language explaining their allocation process. But with Democrats still divided on the topic, a vote could be a week or more away.

Concerns from moderate Democrats: Democrats are divided along regional and political lines, with fiscally conservative or industry state Representatives remaining on the fence about the bill. Rick Boucher (D-VA), who has been a leader among the committee’s more moderate Democrats, recently met Waxman to discuss four major issues: the stringency and timetable of the cap-and-trade program's emission limits, the use of offsets to ease industrial compliance costs, the allocation of emission allowances, and the details of the nationwide renewable electricity standard.

In an effort to achieve a consensus among liberals, President Obama recently invited the 36 Democrats on the Energy and Commerce Committee to a White House meeting, where he urged them to reach an agreement by Memorial Day so they could redirect their attention to health care reform. Obama also said he would be open to providing industry with some free emissions credits as a way of reducing the economic impact of the transition period and protecting trade-sensitive industries. This represents a departure from the President’s budget proposal, which called for all allowances to be auctioned. Many of the bill’s proponents hope that White House intervention and guidance will give it some additional traction among fence-sitters.


In the Senate, Majority Leader Harry Reid (D-NV) has announced plans to address climate and energy legislation in a single bill. Until recently, the Senate had planned to handle the issues separately, but following a meeting with House Speaker Nancy Pelosi (D-CA), Reid decided to adopt the House approach. Although many lawmakers support combining the bills, a move they say will lead to more balanced legislation, others are more skeptical. Climate change legislation will be much harder to move than an energy package, raising concerns that the more contentious issue of cap-and-trade may bog down efforts to act on important energy issues.

Senate Energy and Natural Resources Chairman Jeff Bingaman (D-NM) is leading the current energy effort. His committee is currently reviewing a number of prominent issues, including a renewable energy standard (RES), a national transmission or “smart” grid, carbon capture and storage, and clean energy financing. A new national grid is of particular importance, since many alternative energy projects set to receive funding from the 2009 stimulus package require an updated transmission system. Although markups for the transmission section of Bingaman’s bill were recently postponed, the Senator plans to move the legislation as quickly as possible, and is concerned that climate negotiations will not be able to keep pace.

Meanwhile, lawmakers are working to craft the oil and gas section of the bill, which could include a major new assessment of offshore energy from both fossil fuels and renewable sources. In an April report, the Interior Department called for an inventory to fill data gaps identified on a number of offshore energy and environmental issues (For more information, see the April 2 edition of the ESA Policy News at:

http://www.esa.org/pao/policyNews/pn2009/04022009.php). Although there is bipartisan agreement on the importance of an inventory, many Republicans also want to open up new drilling areas in the immediate future, before additional data collection takes place.


The Senate Environment and Public Works Committee is preparing to review a bill aimed at clarifying language in the Clean Water Act (CWA) to better protect wetlands. S 787, sponsored by Senator Russ Feingold (D-WI), follows two Supreme Court Decisions (Rapanos-Carabell in 2006 and Solid Waste Agency of Northern Cook County v. US Army Corps of Engineers [SWANCC]in 2001) that confused or limited CWA jurisdiction over wetland permitting. The CWA grants the federal government authority over “navigable waters” and bodies of water that are connected to navigable waters. The 2006 casesaddressed whether landowners could develop over wetlands that were either distantly linked to (Rapanos) or completely isolated from (Carabel) traditional “navigable waters”; SWANCC questioned federal authority over “intrastate and isolated waters” that provided habitat for migratory birds crossing state lines.

Proponents of Feingold’s bill say that the Supreme Court rulings narrowed or obscured CWA jurisdiction over more isolated wetlands, arguing that there are necessary ecological ties between wetlands and other natural resources, regardless of hydrological connectivity. To more explicitly acknowledge these ties, the bill would replace “navigable waters” with “waters of the United States” in the CWA, and would insert the following definition:

“The term  ‘waters of the United States’ means all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing, to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.”

The bill’s opponents are concerned that it extends beyond the intent of the CWA and would result in lawsuits and problems for farmers and developers. Although the bill has yet to acquire any Republican cosponsors, lawmakers expect divisions to be most pronounced along regional rather than party lines. Lawmakers from agricultural states, for example, are particularly concerned about the bill’s repercussions on constituents.

In the House, Transportation and Infrastructure Chairman James Oberstar (D-MN) plans to reintroduce a companion bill this session.

Meanwhile, the Obama administration has expressed its support for the legislation. Environmental Protection Agency (EPA) Administrator Lisa Jackson recently pointed to ambiguity over wetland permitting as a significant drain on EPA resources, and called upon Congress to more clearly define federal jurisdiction over the matter. The agency estimates 20 million acres of wetlands and isolated waters lost protection as a result of the ambiguous Supreme Court decisions.


On May 5, the Environmental Protection Agency (EPA) released a draft rule to implement the 2007 expansion of the national biofuels mandate. The mandate, which expanded the national renewable fuels standard to reach 36 billion gallons by 2022, also set limits on the lifecycle emissions of biofuels (the total emissions resulting from production, refining, and use). It requires biofuels to have lower lifecycle emissions than gasoline—20 percent less for corn-based ethanol and 50-60 percent less for advanced biofuels. According to EPA Administrator Lisa Jackson, ethanol currently represents only a 16-percent improvement over conventional gasoline, although there are numerous ways to improve performance. Still, the requirement, which applies only to plants constructed after 2007, is largely symbolic: The mandate limits annual ethanol production to 15 billion gallons, and existing plants are already on track to produce 10 billion gallons this year.

There has been a great deal of debate over what “lifecycle emissions” should encompass,  following studies showing that indirect land-use changes—clearing land to accommodate the agricultural demands of biofuels—will release stored carbon. For more information, see the March 5 edition of the ESA Policy News at: http://www.esa.org/pao/policyNews/pn2009/03052009.php

EPA does not take a stance on the issue in its draft rule, but will instead seek formal peer review of its methods for assessing emissions from land-use changes. Additional information is available at the EPA website: http://www.epa.gov/OTAQ/renewablefuels/index.htm#regulations

The EPA rule coincided with an Obama administration announcement of the new Biofuels Interagency Working Group. The group, to be led by the secretaries of Energy and Agriculture and the EPA administrator, will be tasked with the following:

Obama also called for the Department of Agriculture to accelerate the biofuel spending authorized in the 2008 farm bill. More than $1.1 billion will be available for investments such as loan guarantees for building and retrofitting biofuels refineries, grants for demonstration-scale projects, and funding for biofuels producers to produce next-generation biofuels from nonfood feedstocks. The Energy Department will direct an additional $786 million from the economic stimulus package towards next-generation biofuels research, development, and production.


Open for Public Comment:

OSTP is requesting public input to aid in developing the guidelines—visit http://edocket.access.gpo.gov/2009/E9-9307.htm for more information. The comment period ends May 13, 2009.

Just Introduced

Under Subcommittee Review

Passed by Committee

Wild horse protection (HR 1018): The House Natural Resources Committee recently cleared legislation calling for an overhaul of the Bureau of Land Management (BLM) strategy for managing the 34,000 wild horses and burros under its care. The bill, which is largely in response to a recent BLM announcement that inadequate funding and space could force the agency to slaughter thousands of animals, would protect healthy animals from slaughter, expand the areas on which they can roam and create sanctuaries for them on federal lands. These measures raised objections from western Republicans, who are concerned that most of this new habitat will be in their home states, placing demands on constituents as well as existing wildlife populations in the area. They also argued that the bill does not adequately address alternative management practices like mass sterilization. In response, the committee adopted several GOP amendments, including ones to permit the removal of the horses in the event that they threaten water quality or wildlife, or conflict with energy and minerals development

Passed in the House

Sources: Environment and Energy Daily, Greenwire, Politico, The New York Times, The National Council For Science and the Environment, The Washington Post, The Coalition for National Science Funding

Send questions or comments to Piper Corp, Science Policy Analyst, piper@esa.org or Nadine Lymn, ESA Director of Public Affairs, Nadine@esa.org

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