National Tribal Environmental Council

With Health Care legislation finally passed by Congress and signed by the President, one must ask what next? Does the President have the political capital to successfully move climate change legislation in 2010 with a Congress that is deeply divided? Can Congress focus its attention on something of such major proportions when the November elections are close in sight? Senators John Kerry (D-MA), Lindsey Graham (R-SC) and Joseph Lieberman (I-CT) seem to think so, having spent considerable time meeting behind closed doors to draft legislation (KGL bill) that can secure the 60 votes necessary to pass climate change legislation in the Senate. Time is short, however, as it’s already April and the three senators don’t expect to unveil their bill until April 22nd – i.e., Earth Day. Stranger things have occurred, however, as many folks thought health care legislation was dead on arrival once Scott Brown was elected Senator of Massachusetts. Only two months later, a bill was signed into law although to the chagrin of many in Congress who seem less willing to stretch their proverbial necks out with elections just around the corner. Time will only tell, however, if the passage of climate change legislation will come to fruition this year.

The Road to KGL

In November of last year, the Senate Environment and Public Works Committee successfully passed the Clean Energy Jobs and American Power Act (CEJAPA), intended to “cut carbon pollution and stimulate the economy by creating millions of jobs in the clean energy sector.” What many soon learned is that the legislation would be a non-starter in the Senate as it didn’t have many of the items important to moderate Democrats and Republicans such as sufficient nuclear provisions and offshore drilling components. The CEJAPA was also modeled off the House of Representative’s American Clean Energy and Security Act (ACESA), legislation that was deeply criticized by senators from both sides of the political aisle.

 With the CEJAPA likely to go nowhere in the Senate, Senators Kerry, Graham and Warner decided to take a different approach, one that would be more bipartisan than previous climate change legislation introduced in Congress. Their first step was to release a working framework for drafting this bipartisan legislation, done so during the 15th United Nations Climate Change Conference held in Copenhagen, Denmark, which included the following broad components:

• Better jobs, cleaner air;
• Securing energy independence;
• Creating regulatory predictability;
• Protecting consumers;
• Encouraging nuclear power;
• Ensuring a future for coal;
• Reviving American manufacturing by creating jobs;
• Creating wealth for domestic agriculture and forestry;
• Regulating the carbon market;
• Climate change is a global problem that requires a global solution; and
• Building consensus

Moving beyond this broad first step has been a slow process and a secretive one as well. It’s also been problematic for Indian tribes and their representatives who have worked painstakingly to insure that forthcoming legislation properly addresses their needs and concerns. Without legislation to work from, tribes have been forced into a wait-and-see mode with April 22nd giving them the first opportunity to respond to legislation finally placed on paper.

Some senators have been eagerly awaiting a chance to have a floor debate on climate change legislation for quite some time now and felt that it would happen with the former Lieberman-Warner Climate Security Act of 2007. Lacking the votes to do so, however, Senate Majority Harry Reid (D-NV) had to pull the bill from consideration at the last minute. Many of these same senators wanting to debate such legislation, like Amy Klobuchar (D-MN) and Patty Murray (D-WA), recently sent a letter to Senator Reid that calls for floor action on a comprehensive energy and climate change bill this year.

NTEC has also been encouraged by the ongoing efforts of the three senators to forge a bipartisan agreement on climate change legislation. As a result, our organization recently joined nineteen others in issuing a statement that supports these efforts, acknowledging the senators’ commitment to cutting greenhouse gases (GHGs) below 2005 levels by 20 percent in 2020 and 83 percent by 2050, the type of commitment that would translate to job creation, increased energy security and the protection of public health. To read the statement, please go to www.cleanenergyworks.us/press/03-19-10-groups-kgl.html.

What to Expect from KGL

While no one knows for certain what to expect from the forthcoming KGL bill as Senators Kerry, Graham and Lieberman have held their proverbial cards close from the very beginning, some of the following elements have slowly leaked out over the past month or so:

• First-ever price on carbon emissions;
• Partial or whole prevention of GHG regulation under the Clean Air Act (CAA);

• Preemption of state and regional cap-and-trade programs;
• Regulation of power plant GHG emissions under a cap beginning in 2012;
• Carbon caps on manufacturers not phased in until 2016;
• Transportation fuels tax;
• Hard “price collar” that limits price increase of GHG allowances;

• Expansion of domestic oil, gas and nuclear energy production;
• Offshore drilling with state opt-in and opt-out provisions;
• Carbon Capture and Sequestration development; and
• Consumer rebates from the sale of pollution permits

As to consumer rebates, this is likely a melding of the Carbon Limits and Energy for America’s Renewal bill (S. 2877) introduced in November of last year by Senators Maria Cantwell (D-WA) and Susan Collins (R-ME) in which the senators call for 75 percent of the revenue generated by the legislation to go back to consumers to compensate them for increased energy costs. The remaining 25 percent of revenue would go toward clean energy research and other related efforts.

Senator Graham recently made an assertion that 60 percent of the revenue generated by the KGL bill would be directly returned to consumers, meaning that only 40 percent would remain to go toward such items as renewable energy/energy efficiency, natural resources adaptation, and domestic adaptation, priorities shown to be very important to Indian tribes. This is especially problematic for tribes which will be forced to fight with other groups over limited dollars in order to benefit their individual interests and concerns – i.e., more monies were available under former legislation. More than ever, tribal leaders will need to be engaged throughout the legislative process to insure that their voices are heard.

In the interim, Senators, Kerry, Graham and Lieberman have or will shortly send their proposal to the EPA and the Congressional Budget Office for an analysis that could take five to six weeks to complete. The results of this analysis could have large implications as to buy-in from the moderate senators who remain on the fence about passing climate change legislation this year.

What might end up happening is the fusing of the KGL bill with energy legislation passed by the Senate Energy and Natural Resources committee in June of 2009, namely the American Clean Energy and Security Act (H.R. 2454). Among other things, that bill includes a renewable electricity standard and increased incentives for oil and gas drilling, with the latter item being attractive to some of the aforementioned fence sitting senators. With respect to these senators, they serve states with such interests as coal that make up more than 40 percent of their energy supply; commercial nuclear industries; trade-sensitive industries such are iron ore, cement and glass; and oil and gas drilling.

In the end though, one group of senators may ultimately get their way. These are the senators who remain firmly committed to an energy-only bill, something they believe the Senate is more amenable to passing this year. One such Senator, Kent Conrad (D-ND), already has a letter drafted to Senator Majority Leader Reid on this matter with plans to circulate it if the direction of the KGL process warrants such a letter.

Attacks Against the EPA

On another front, a number of Senators and House members have taken direct actions to prevent the regulation of GHGs by the U.S. Environmental Protection Agency (EPA) under the CAA.

On the Senate side, Senator Lisa Murkowski (R-AK) took the early lead by introducing a Resolution of Disapproval (S.J. Res. 26) that would prevent the EPA from regulating GHG emissions under the CAA and also overturn a December 2009 EPA endangerment finding that GHG emissions threaten human health and the environment. Thus far, she has 36 Republican and 3 Democrat co-sponsors for a resolution enabled by the Congressional Review Act which allows Congress to effectively veto agency action (e.g., EPA) using expedited procedures that only require a simple majority vote in the Senate and House, and the President’s signature. Murkowski, however, has held off on seeking a vote on her resolution due to legislation recently introduced by Senator Jay Rockefeller (D-WV) that would suspend Agency authority to regulate stationary source GHG emissions until 2012. Having supported past climate change legislation, Senator Murkowski’s attempt to take the regulation of GHG emissions out of the hands of EPA is not unusual. If such regulation is necessary, however, Rockefeller’s approach is at least an attempt to address one of Murkowski’s main concerns about the impacts of regulating GHG emissions – i.e., delaying its economic impacts due to the administrative and financial resources that must be engaged.

On the House side, a resolution of disapproval has been introduced and is sponsored by Representatives Marsha Blackburn (R-TN) and Jerry Moran (R-KS). Like its Murkowski counterpart, H.J. Res 66 would overturn the same EPA endangerment finding, and also prevent regulation of GHG emissions under the CAA. Bills have also been introduced by Representatives Blackburn (H.R. 391), Earl Pomeroy (D-ND; H.R. 4396), and Ike Skelton (D-MO; H.R. 4572) on the same matter. It is the Skelton bill that is most interesting as it goes even further by preventing the Agency from incorporating the best science on the carbon footprint of biofuels, and also eliminates all natural resource and wildlife protections for biomass feedstocks.

Other NTEC Activities

While awaiting the KGL bill, NTEC has been actively engaged with the senate members and other matters related to climate change. Recently, our organization participated in a climate fly-in sponsored by the National Wildlife Federation (NWF) in which we actively engaged in a legislative briefing for tribal leaders and also made a number of visits to senate offices, calling for many of the same recommendations made by tribal leaders in the past with respect to climate change legislation.

During this same fly-in, NTEC staff participated in a telepresser with the national press concerning a report in which our organization, the Native American Rights Fund and Intertribal Council on Utility Policy collaborated with the National Wildlife Federation. The report, The New Energy Future in Indian Country: Confronting Climate Change, Creating Jobs, and Conserving Nature, provides an overview of the possibilities for renewable energy in Indian Country and details case studies of wind, solar, geothermal and biomass production, as well as energy efficiency/weatherization. To read a copy of this report, please go to www.nwf.org/News-and-Magazines/Media-Center/News-by-Topic/Global-Warming/2010/~/media/PDFs/Global%20Warming/Reports/03-23-10_NWF_TribalLands_LoRes.ashx.

Moving Forward

In August 2007, NTEC took on climate change legislation as one of its top priorities, taking the lead where no other tribal organization had done so before. Our organization’s commitment to this priority has never waned and remains strong. We strongly urge tribal leaders to become engaged in this issue as well and offer NTEC’s resources to assist in their efforts. Going forward, the proof will be in the pudding if the Kerry-Graham-Lieberman approach can produce a silver bullet for climate change legislation  and ultimately pass during the current legislative session. Nevertheless, our organization will do what it can do on behalf of the nation’s Indian tribes to insure that their needs and concerns are properly addressed.