August 10, 2010

In the weeks leading up to the August recess, all eyes were on Senate Majority Leader Harry Reid (D-NV), who has been weighing options for moving forward with climate, energy, and offshore drilling legislation.  The House has completed work on all three items, passing a comprehensive climate and energy package (HR 2454) last year and clearing its oil spill reform package (HR 3534) last month.  But Senators adjourned for the break empty handed and with little hope of tackling climate change before the end of the year.

“Energy Lite”

On July 22, Senate Majority Leader Harry Reid decided to pursue a stripped-down, energy-only bill (S 3663)—one with neither greenhouse gas regulations nor the renewable energy standard (RES) included in the energy bill cleared by the Senate Energy and Natural Resources (ENR) Committee last year.  That bipartisan bill—which was expected to provide much of the energy language in the broader Senate bill—calls on utilities to derive 15 percent of their power from renewable sources by 2021.  Just over a fourth of this requirement could be met by implementing energy-efficiency measures.  This RES was one of the more controversial pieces of the ENR bill.  Many liberal senators have been pushing for a more stringent mandate (in the ballpark of 20 to 25 percent), while conservatives would like to see the RES expanded into a “clean energy standard” that includes nuclear power and “clean coal.”

Reid’s strategy is now to proceed with an uncontroversial bill capable of winning 60 votes with little debate.  But lawmakers, including Senators Mark Udall (D-CO) and Sam Brownback (R-KS), argued that the RES would not have been a deal-breaker and should still be included.  Udall—one of the Democrats pushing for a more stringent RES—counted 62 senators who would likely support an energy bill with a RES; Brownback, a wind-state senator, will seek to include an amendment to effectively restore the RES, setting the standard at 15 percent by 2020.

Reid may not allow amendments, however, particularly on controversial topics like a RES, which would trigger an extended and potentially damaging debate.  While there may indeed be 60 votes for such a standard, they may not correspond with the 60 votes for the energy package Reid hopes to move.  This “energy lite” package would address offshore drilling regulations, encourage natural gas use in transportation, and create a residential energy efficiency program.

Of his decision, Reid said: “To be clear, we are not putting forth this bill in place of a comprehensive bill.  But we will not pass up the opportunity to hold BP accountable, lessen our dependence on oil, create good-paying American jobs and protect the environment.”  Indeed, the Majority Leader has not ruled out tackling a climate and energy package in the fall—days ago, he told reporters, “There’s a chance we’re going to bring back a broader bill.”

Vote Postponed Until September; Lame-Duck Climate Remains a Faint Possibility

Reid had originally planned to hold test votes on two energy and oil spill measures before the August recess—a Democratic proposal and a Republican alternative.  But even with the narrowed scope, neither bill was expected to earn the necessary 60 votes, largely because of disputes over the liability cap for oil drilling companies (the Democratic bill would eliminate the cap entirely), revenue sharing (absent in the Democratic bill), and the question of whether to lift the Obama Administration’s moratorium on deepwater drilling.  Reid later punted the matter until September, a move that disappointed some Democrats but left others hopeful a broader energy package will in fact surface in the fall. 

Senator John Kerry (D-MA), who has been leading the Senate’s climate push, says he still plans to bring a carbon-pricing bill to the floor this year.  He has been meeting with Senate Energy and Natural Resources Chairman Jeff Bingaman (D-NM) and other lawmakers to discuss when a climate bill could come to the floor and what form it would take.  Kerry has not yet provided details about the legislation, saying simply that it would entail a scaled-down version of the economy-wide cap that he and Senator Joe Lieberman (I-CT) originally laid out.  Whether this bill would be incorporated with oil spill response legislation has yet to be seen.  Whatever the nature of the bill, its best shot may be after the November elections, though a September vote remains a possibility. 

Few in Congress are as optimistic as Kerry—even Lieberman has said that he doesn’t expect a vote on climate legislation this year.  The White House, however, has been providing continued support for such a push, with both Climate Czar Carol Browner and White House Press Secretary Robert Gibbs speaking optimistically in recent weeks.  Gibbs suggested that a House-Senate conference committee could add back the climate provisions that Reid dropped from Senate bill.

There are, technically speaking, a number of avenues through which Democratic leaders could add a carbon cap during conference negotiations.  And since such negotiations would likely occur during a lame duck session (after the November elections) campaign pressures would be off, and some Senate Republicans who have supported climate measures in the past—particularly those who are retiring—might be more willing to go out on a limb.  Retiring Republican swing votes include Senators George Voinovich (OH), George LeMieux (FL) and Judd Gregg (NH).  Still, Republicans will likely pick up seats in the Senate, which could make them less inclined to negotiate with Democrats after elections.

Furthermore, House lawmakers who voted for HR 2454 might not support a climate bill in a conference vote.  Ag Committee Chair Collin Peterson (D-MN), a critical swing vote during the House climate debate, said he would vote against cap-and-trade if it returned to the floor.  For more information on Peterson and HR 2454 see the July 2, 2009 edition of the ESA Policy News at: https://www.esa.org/pao/policyNews/pn2009/07022009.php

Observers optimistic about a climate bill have suggested that previous “no” voters could change their minds, given the imminence of Environmental Protection Agency emissions regulations.  For more information, see the “ENDANGERMENT FINDING” article below.

On July 30, the House passed the Consolidated Land, Energy, and Aquatic Resources, or CLEAR Act (HR 3534) by a vote of 209-193.  The bill is a revised version of energy legislation first introduced by House Natural Resources Committee Chair Nick Rahall (D-WV) last year.  For more information, see the July 16 edition of the ESA Policy News at: https://www.esa.org/pao/policyNews/pn2010/07162010.php

The CLEAR Act would:

• Formally reorganize the Minerals Management Service (MMS), which oversees offshore oil and gas drilling
• Strengthen offshore worker and environmental safety standards
• Remove the liability cap on companies drilling offshore
• Establish an Ocean and Coastal Competitive Grant Program, which would support research, education, modeling and monitoring projects related to marine ecosystems and resources.  The program would receive 10 percent of the Ocean Resources Conservation and Assistance Fund, administered by the Secretary of Treasury.
• Impose new ethics standards on federal drilling regulators
• Create a restoration program to coordinate efforts to rehabilitate the Gulf of Mexico
• Create an industry-funded endowment to protect oceans
• Provide full, dedicated funding to the Land and Water Conservation Fund
• Impose new fees on onshore and offshore production.
• Require dispersant manufacturers to release their products’ chemical ingredients
• Institute a temporary moratorium on dispersant use until the US Environmental Protection Agency (EPA) concludes a rulemaking on safe application.

In an effort to drum up support from conservatives and oil-state Democrats, an amendment from Representatives Charlie Melancon (D-LA) and Travis Childers (D-MI) would exempt some companies from the Obama Administration’s moratorium on deepwater drilling if their rigs met the Interior Department’s new safety standards.  Opponents called for the moratorium to be lifted entirely, arguing that the proposal would not do enough to restore the Gulf Coast’s energy-driven economy, and would grant the Interior secretary too much discretion in issuing drilling permits. 

Thirty-nine Democrats voted against the measure; two Republicans—Representatives Vernon Ehlers (MI) and Tim Johnson (IL)—voted for it.  But with similar legislation delayed in the Senate, Congress was unable to move forward before the August recess.

Ecological Impacts

Though the Senate has not yet voted on oil spill-related legislation, the disaster in the Gulf has remained at the forefront of many senators’ minds.  Several committee hearings have examined the ecological impacts of the oil in the Gulf, as well as the more than 1.8 million gallons of dispersants used to break it up.  Estimates of the financial damage done to the Gulf ecosystem could have important legal ramifications as impacted parties ask BP for compensation.  More than 20 years after the Exxon Valdez spill, debate continues over its long-term impacts and Exxon’s liability. 

Chemical dispersants have concerned lawmakers and the public since the early days of their application—since little is known about their environmental impacts, EPA and the Coast Guard issued a directive in May, ordering BP to curb the dispersant sprays in the Gulf except in “rare cases.” But recently released documents indicate that the Coast Guard granted BP almost daily exemptions, raising new concerns about the extent of application and its possible impacts.  BP reported spraying 272,000 gallons of surface dispersant in the four weeks following the directive, but congressional staff uncovered discrepancies between those totals and the total dispersant volumes BP referenced in its requests for Coast Guard exemptions.

There is broad bipartisan support in the Senate for revising rules on dispersant use, and Senator Frank Lautenberg (D-NJ) recently introduced a bill that mirrors many of the dispersant provisions in HR 3534.  Still, given the full agenda, it’s unlikely that the Senate will pass such a measure as a stand-alone bill.  Rather, most senators expect it to be rolled into the broader oil drilling reform package that the chamber will take up in September.

Scientific Objectivity

Both the Senate and the House have also held hearings to investigate the accuracy and objectivity of studies characterizing the ecological damage caused by the Deepwater Horizon oil disaster.  The Oil Pollution Act of 1990 established the Natural Resource Damage Assessment and Restoration Program, which formally assesses the environmental damage caused by oil spills and the amount that the responsible party should pay to restore habitat to pre-spill conditions.  But since the responsible party—in this case BP—finances the assessment, lawmakers such as Senate Water and Wildlife Subcommittee Chair Ben Cardin (D-MD) are questioning how independent the studies really are.  He and other lawmakers have expressed doubts about the accessibility of research findings when scientists sign nondisclosure agreements with BP in exchange for grants.

BP has contributed $45 million for the damage assessment so far, and has set aside $500 million for independent scientists to study the spill’s impact over the next 10 years.  The company maintains that it does not restrict academics from speaking about scientific data, but media reports indicate that contracts prohibit researchers from publishing their findings for three years or until after the government approves a Gulf restoration plan that specifies BP’s liability.

In a committee hearing, Cardin and others on his panel questioned representatives from the Fish and Wildlife Service and the National Oceanic Atmospheric Administration (both of which have central roles in the damage assessment) about the funding, peer review, and objectivity of their studies.  Testimony from the scientists validated the senators’ concerns, pointing to the “bidding war for experts” that followed the Exxon Valdez spill.  An alternative, some said, would be to conduct the assessment through scientists in government agencies and universities.

In a House-side hearing, Democrats questioned BP about the media reports concerning scientist confidentiality agreements.  The lawmakers also asked for copies of all spill-related BP contracts with third-party consultants, scientists and academics. 

Now that the Senate has—at least temporarily—abandoned its climate push, many lawmakers are revisiting efforts to block the US Environmental Protection Agency (EPA) from regulating greenhouse gas emissions under the Clean Air Act.  While the Obama administration and climate supporters in Congress have been clear that they would prefer to cap emissions with a climate law, EPA regulations may still be leveraged to urge quick action in Congress.

But many lawmakers—including some climate bill supporters—think the EPA regulations would take too high an economic toll.  Senator Jay Rockefeller (D-WV) has proposed a bill to put EPA emission rules on hold for two years.  Senate Majority Leader Harry Reid (D-NV) agreed to allow a vote on the bill this year, as part of a previous effort to dissuade senators from backing Senator Lisa Murkowski’s (R-AK) broader plan to revoke the “endangerment finding” that necessitated the new rules.  For more information on the Murkowski plan, see the “ENDANGERMENT FINDING” article in the May 21 edition of  ESA’s Policy News at: https://www.esa.org/pao/policyNews/pn2010/05212010.php

Rockefeller’s bill could face legislative opposition from two fellow Senate Democrats.  Senators Tom Carper (D-DE) and Bob Casey (D-PA) are readying a provision to exempt small sources from EPA climate rules while allowing the agency to regulate the largest polluters.  Carper and Casey would aim to draw support away from the Rockefeller bill by assuring lawmakers that EPA climate rules would not affect small sources.  The proposal would be very similar to EPA’s “tailoring” rule, but would offer legislative certainty—vital, given concerns that the EPA rule will be tossed out in court, leaving small sources vulnerable to greenhouse gas regulations.  For more information, see the “EPA” article in the May 21 edition of the ESA Policy News at: https://www.esa.org/pao/policyNews/pn2010/05212010.php

Outside of the Senate, the prospects for Rockefeller’s bill are no better.  In the House, leaders are unlikely to give floor time to their chamber’s counterpart, and the effort could face a presidential veto even if passed by Congress.  The White House has not commented on the Rockefeller proposal, though Obama previously vowed to veto the Murkowski resolution.

 Carper, who chairs the Clean Air Subcommittee, said he also plans to move forward with the clean air bill that he and Senator Lamar Alexander (R-TN) are co-sponsoring.  This bill does not address carbon dioxide emissions but would institute steep cuts in nitrogen oxide, sulfur dioxide and mercury from electric utilities over the next decade.  For more information on this bill, see the “AIR POLLUTION” article in this edition. 

The US Forest Service (FS) has issued a national roadmap to guide short- and long-term responses to climate change.

 This blueprint calls on FS managers to take action in three areas:

• Assessing risks, vulnerabilities, policies and knowledge gaps: Immediate activities include providing basic and applied science to help managers respond to climate change, conducting workshops, utilizing national monitoring networks, furnishing more predictive information, developing vulnerability assessments, tailoring monitoring and aligning service policy and direction.  Longer-term activities will focus on expanding the agency’s capacity for assessing the social impacts of climate change, implementing a genetic resources conservation strategy, and fortifying internal climate change partnerships.
• Engaging employees and external partners: The plan aims to avoid duplication and build on complementary efforts by developing partnerships between FS and other agencies, communities, and interested groups.  It also places increased focus on employee training and public education and outreach.
• Managing for adaptation and mitigation: On-the-ground management responses include improving sustainable consumption; enhancing carbon sinks; treating overgrown forests to make them less vulnerable to wildfire, pathogens and insect attack; controlling insects and invasive species; and quickly restoring ecosystems after fires, hurricanes and other disturbances.  The plan also calls on the FS to manage carbon stocks by reforesting lands damaged by disturbances, conserving forests, and encouraging urban greening and conservation.  Ongoing management actions include protecting infrastructure threatened by floods or other impacts, facilitating demonstration projects, promoting the use of woody biomass, reducing the FS environmental footprint, and protecting rare species.

The national roadmap stems from the Forest Service’s 2010-2015 strategic plan and a 2008 strategic framework for responding to climate change.  It includes a performance scorecard system for measuring compliance—each national forest and grassland must rate itself annually in 10 categories, including monitoring, external partnerships, carbon assessments, and adaptation activities.

On July 19, the Obama Administration rolled out its new suite of guidelines for managing oceans and the Great Lakes.  The policies are the product of a White House-appointed taskforce, assembled last year and led by Nancy Sutley, chair of the White House Council on Environmental Quality.  For more information on the taskforce, see the August 28, 2009 edition of the ESA Policy News at: https://www.esa.org/pao/policyNews/pn2009/08282009.php

The Obama administration’s effort is intended to elevate the importance of oceans in federal decision-making and coordinate efforts between the 20 federal agencies that deal with ocean policy.

The new plan would:

• Establish a National Policy for the Stewardship of the Ocean, Coasts, and Great Lakes.
• Create a National Ocean Council—a group similar to the National Security Council—wherein top-level officials would guide the new “ecosystem based” approach to ocean management.
• Launch plans for marine spatial planning, a controversial process that would effectively zone the ocean for energy projects, recreation, fishing, and other activities that may conflict with one another.  Ocean experts and the Obama Administration have been pushing for a marine planning effort to address and prevent such conflicts.

Senators Tom Carper (D-DE) and Lamar Alexander (R-TN) have introduced a three-pollutant clean air bill (S 2995), which would strengthen emissions cuts beyond those mandated by the US Environmental Protection Agency (EPA) and give EPA permission to establish a nationwide trading program for sulfur dioxide, nitrogen oxides, and mercury emissions from coal-fired power plants.  The sponsors hope to see their proposal included in the Senate energy package, though they will proceed with stand-alone legislation if necessary. 

The bill has received support from Senator James Inhofe (R-OK), ranking member of the Environment and Public Works Committee (EPW), who sees it as a means of reducing industry uncertainty as the federal government attempts to address air pollutants that blow across state lines under EPA’s recently proposed transport rule.  Inhofe and other Republicans remain concerned about the speed and scale of the emissions reductions in the proposal, however, and may seek to temper them with amendments. 

Recently obtained documents from the office of Senator George Voinovich (R-OH) outline several such amendments, most notably a three-year hold on the newly proposed limits.  Several environmental and public health groups say these amendments would severely weaken the legislation.  Eight of these groups have formally urged the bill’s sponsors to oppose the measures, but it remains unclear how the sponsors will proceed.  An aid for Carper stated that the Senator hopes to gather broad support for the bill, but will not compromise in areas that could diminish the legislation’s capacity to improve air quality.

EPW Chair Barbara Boxer (D-CA) has promised the Carper-Alexander bill a markup, but has not finalized any plans.