Policy News Update

May 21, 2010

In this issue: [Contract All : Expand All]


On May 12, Senators John Kerry (D-MA) and Joe Lieberman (I-CT) unveiled their much-awaited draft climate bill. As expected, Senator Lindsey Graham (R-SC) who had until recently been part of the effort to arrive at a bipartisan climate and energy package, did not attend the unveiling for political reasons. For more information on why Graham left the effort, see the May 7 edition of the ESA Policy News at: www.esa.org/pao/policyNews/pn2010/05072010.php

The Kerry-Lieberman bill includes seven titles: Domestic Clean Energy Development, Global Warming Pollution Reduction, Consumer Protection, Job Protection and Growth, International Climate Change Activities, Community Protection from Global Warming Impacts, and Budgetary Effects.

Highlights include:





The EPA analysis of the bill is currently underway and should wrap up in June. Senate Majority Leader Harry Reid (D-NV) has scheduled a June 7 meeting with chairs from committees with jurisdiction over the matter; the following week he will convene all 59 Democratic senators to discuss whether a climate bill will be viable. Depending on how those meetings go, Reid could either move forward with a comprehensive climate and energy package or opt for the energy-only approach advocated by a number of Senate moderates. In the latter scenario, the floor vote would likely be on S 1462—the bill passed by the Energy and Natural Resources Committee last summer. In a comprehensive package, S 1462 would still comprise a large portion of the language on energy.

The additional time will also allow Democratic leaders to continue their work for Republican votes and give the White House more opportunity to step in. Climate supporters both on and off the Hill continue to urge the President to put his weight behind the effort, as he did in the final days of last summer’s House debate and at the UN climate summit in Copenhagen. Many observers see strong White House involvement as a must for the bill to gain the necessary momentum. While the Obama Administration has continued to support climate action, the President’s focus has been on passing Wall Street reform and responding to the oil disaster in the Gulf. Presidential commitment could be especially critical in winning over undecided lawmakers like Republican Senator George LeMieux (FL). “If they want to do something, it's going to have to come from [President Obama],” he said. "His leadership is going to be required on any of these issues that are left. He's not going to just be able to leave it to Congress.”

LeMieux, along with other swing vote Republicans like Senators Olympia Snowe (ME), Scott Brown (MA), and Judd Gregg (NH) have been in recent meetings with Kerry and Lieberman, though no agreements have been reached. Chief among their concerns is the current economy—“the idea,” Snowe said, “of exactly what can we do in this moment of time, given the economy and to ensure that we do not create any adverse effects ... on the cost to consumers and cost to business in the short term."


As recovery efforts continue in the Gulf, Congress is rethinking the federal permitting and oil company accountability to guard against future disasters. Following a week of hearings with industry executives and representatives, congressional committees spent the last several days grilling Obama Administration officials on the offshore permitting process.

The Interior Department’s Minerals Management Service (MMS) is responsible for issuing offshore energy permits and has therefore been particularly under fire. Already notorious for ethical digressions in previous years, the disaster has drawn attention to more recent infractions. For example, the Center for Biological Diversity has filed a notice of intent to sue over an apparent disregard for endangered species and marine mammal welfare during the permitting process. According to documents obtained by The Washington Post, MMS has, since January 2009, issued three lease sales and hundreds of permits for drilling, seismic activities, and energy exploration in the Gulf of Mexico without first securing permits under the Marine Mammal Protection Act or Endangered Species Act.

Congressional efforts, meanwhile, are focusing on permitting process, assessing whether the permit for the Deepwater Horizon rig was legally issued and how agencies and permitting protocols might be restructured to reduce risks. Noteworthy developments include:

Meanwhile, various lawmakers are engaged in efforts to hold oil companies accountable for disasters by raising the liability cap. Damages related to the Gulf disaster have already exceeded the existing $75 million cap, and while BP leadership has vowed to pay all “legitimate claims” for damages beyond the cap, lawmakers are skeptical.


The US Environmental Protection Agency (EPA) is on track to regulating greenhouse gas emissions under the Clean Air Act next year, as mandated by Supreme Court ruling. The agency, Congress, and President Obama would all prefer that emissions be handled  legislatively, but climate supporters view regulatory action as a reasonable, if temporary, alternative, and many hope that it will encourage Congress to act quickly.  For more information, see the April 23, 2009 edition of the ESA Policy News at: www.esa.org/pao/policyNews/pn2009/04232009.php)

But Congress could respond in any number of ways. The sweeping climate bill from Senators John Kerry (D-MA) and Joe Lieberman (I-CT) is currently undergoing EPA analysis and could be ready for debate in June if the political climate is right. And in the next few weeks, Senator Lisa Murkowski (R-AK) will likely call for a vote on her disapproval resolution, which would strip EPA of its authority to enforce the regulations. The Senator will make use of the Congressional Review Act, which will allow her to take the resolution straight to the floor and avoid filibuster. The deadline for a vote is the week of June 7— also the week that Senate Majority Leader Harry Reid (D-NV) plans to meet with committee leaders to discuss the possibility of climate legislation. Reid wants to decide by mid-June whether to take up a comprehensive climate and energy bill on the floor, or whether to go the energy-only route and hold a vote on the S1462 which the Senate Energy and Natural Resources Committee passed last year. For more information on S1462, see the June 19, 2009 edition of the ESA Policy News at: www.esa.org/pao/policyNews/pn2009/06192009.php

It is highly unlikely that Murkowski’s efforts will succeed, particularly since the resolution is opposed by the Obama Administration—even if it were to clear both the House and the Senate, it would require President Obama’s signature to go into effect. Still, many will look to how it fares in the Senate as an indication of how prepared the chamber is for a full-fledged climate debate.

Kerry and Lieberman are still working to negotiate support for their bill—something that will be critical in convincing Reid to tackle climate this year. Murkowski’s resolution needs 51 votes to pass, and already has 41 co-sponsors (including moderate Democrats like Mary Landrieu (LA), Blanche Lincoln (AR) and Ben Nelson (NE)). Some observers speculate that strong support for the measure—even if it fails to pass— could signal that the Senate is not in a position to move climate legislation. Conversely, Senator James Inhofe (R-OK) one of Congress’ most vocal climate skeptics, thinks Murkowski should only hold a vote if she’s certain of success. Anything short of victory, he says, could send the wrong message, indicating that climate bill opponents had revised their stance. Several other Republicans, meanwhile, see the vote as an important way to voice their opposition and “get on the record,” as Senator John Thune (R-SD) put it.

Both sides of the debate are ramping up efforts to influence the vote—more than 1,800 US scientists signed a letter to members of Congress urging them to reject Murkowski's measure. The letter said that the resolution was effectively rejecting “solid science”; it urged Congress to spend its time moving forward with a climate bill instead of working to block climate action. Meanwhile, nineteen free market groups wrote their own letter, urging lawmakers to support the Murkowski resolution and warning that regulating emissions via EPA could be considerably more costly than taking a legislative route.

Additional lawmakers have presented alternatives as well, though only Murkowski’s is guaranteed a floor vote. The others would be subject to filibuster and therefore require a 60-vote cloture motion, which is unlikely in all cases.


On May 14, the US Environmental Protection Agency (EPA) completed its “tailoring rule,” an addendum to its forthcoming emissions regulations designed to target big emitters while exempting—at least temporarily—minor sources like apartment complexes and small businesses. Under the rule, new facilities that emit more than 100,000 tons per year will be subject to regulation under the Clean Air Act, as will existing facilities that undergo extensive expansions or renovations. In total, 1,600 facilities, covering two-thirds of stationary source emissions, will be subject to regulation—900 for the first time. For more information, see the February 26 edition of the ESA Policy News at: www.esa.org/pao/policyNews/pn2010/02262010.php.

The Clean Air Act originally focused on conventional pollutants, which are produced by a relatively small number of emitters. Greenhouse gasses (GHGs) are produced by a far broader range of sources, however, and EPA received nearly half a million comments expressing concern over the burden new regulations would place on small-scale emitters. In response, EPA adjusted its original tailoring rule so that—through 2016—only sources emitting more than 50,000 tons of carbon dioxide equivalent annually would be regulated. As originally proposed, the rule would have set this threshold at 25,000 tons per year.

In an industry-friendly move, EPA also significantly raised the level of GHG emissions that would trigger reviews for existing sources. This change will help address an ongoing problem with the Clean Air Act, wherein plant owners hold off on renovations to older facilities to avoid triggering permit reviews for conventional pollutants.

But the tailoring rule will not be enough to reassure many of critics of EPA’s move to regulate emissions. Many argue that regulating even major emitters will reduce the global competitiveness of US industry—a major sticking point in congressional climate negotiations.  Other critics have characterized the rule as a “temporary construction ban,” since it would require many more construction projects to receive permits before breaking ground. The approval process now takes about 18 months—a period that could grow longer as companies line up. Still others worry that environmental groups could sue to bring small sources back under regulation, which could lead courts to nullify the tailoring rule altogether.

But environmental groups have been largely supportive of EPA’s actions, and many have been clear that they do not plan to take legal action to press the issue further. Still, some groups are urging the agency to regulate existing sources and move at a faster pace, implementing the regulations earlier than the January start date set by EPA Administrator Lisa Jackson.

Notably absent from the exemptions is biomass, something that surprised some industry representatives, who argue that biomass combustion is carbon neutral because it only releases the carbon previously stored by crops grown for fuel. The process, in other words, simply cycles carbon that would otherwise remain in the atmosphere. But others argue that carbon neutrality becomes more complex when changes in land-use are taken into account. EPA responded to concerns from both sides by leaving the door open for additional regulatory action and expressing plans to seek public comment on regulating biogenic emissions.


On May 19, the America COMPETES Act reauthorization bill failed to clear the House for the second time. It was reintroduced under suspension of the rules, an option that prevents amendments but requires a two-thirds majority for passage.

The week prior, Republicans blocked the bill from moving forward, largely because of its hefty price tag. House Science Committee Chair Bart Gordon (D-TN) responded by introducing a revised version of the legislation (previously HR 5116, now HR 5325) containing 52 amendments adopted during the previous floor debate, and two key compromises:

But opposition remained stiff amidst concerns about the federal deficit and the number of new programs contained in the bill, including Advanced Research Projects Agency-Energy (ARPA-E) and “innovation hubs,” both of which Republicans have motioned to remove.

According to Speaker of the House Nancy Pelosi, the chamber will take the legislation up a third time. "This is a big job creator," she said, though she did not provide much detail on timing. The original COMPETES Act is set to expire this year. For more information, see the May 7 edition of the ESA Policy News at www.esa.org/pao/policyNews/pn2010/05072010.php





Sources: ClimateWire, Environment and Energy Daily, Greenwire, Politico, the Washington Post, the New York Times, The Pew Center on Global Climate Change

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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