National Tribal Environmental Council

Climate Legislation Ends with a Whimper

How bright the line shone in June of last year when the House of Representatives passed the American Clean Energy and Security Act (ACESA), comprehensive climate and energy legislation drafted by Representatives Henry Waxman (DCA) and Edward Markey (D-MA). All bets were in favor of the Senate producing something comparable and passing its own legislation prior to international negotiations held in December of that same year in Copenhagen, Denmark. Now flash forward to September 7, 2010, the date on which Senate Majority Leader Harry Reid (D-NV) declared climate legislation dead in the current Congress. So what happened? It’s an interesting story indeed, but one with an unhappy ending that leaves Indian tribes without the necessary resources to address climate change and its impacts, not only for this year but likely for many more years to come.

Passage of the ACESA contributed to the recent death knell for getting anything passed in the Senate, largely based on the mass giveaways provided for in the legislation. If this wasn’t enough, a number of matters intervened alongside such as a sluggish economy with high unemployment that spoiled the appetite of some Senators previously in favor of passing climate legislation. In addition, the health care debate consumed the better part of the 111th Congress, particularly from August 2009 through March 23, 2010, the latter date on which President Obama signed the Patient Protection and Affordable Care Act. Not widely popular with the public, this legislation added to the growing unwillingness of many Senate and House members to go to the proverbial mat for any other major overhauls of the nation’s economy, particularly during an election year in which a number of members are in danger of losing their congressional seats.

Even where political will in the Senate remained to move climate legislation forward, there were those members who seemed to act inconsistently in their approach. For example, not even two weeks after Senators John Kerry (D-MA) and Barbara Boxer (D-CA) introduced the Clean Energy Jobs and American Power Act (CEJAPA), Kerry and Lindsey Graham (R-SC) announced a separate legislative effort to address climate change and energy. So which John Kerry were folks to believe, the one pushing the CEJAPA or the one moving on a separate bi-partisan approach? Regardless, Kerry continued to work alongside Boxer who helped get their legislation passed through the Environment and Public Works Committee, a committee for which she serves as chairperson. At that time, however, neither Senator saw a clear path to the 60 votes needed to overcome a filibuster and pass the CEJAPA, hence the legislation was effectively dead shortly after passing out of committee.

Further complicating the legislative process were the international climate negotiations mentioned above. Although initial hopes among participating countries were that something substantive could be agreed upon, the outcomes were far less than expected. Amidst these negotiations and apart from the resulting Copenhagen Accord which provided little in substantive global GHG emission reductions, the Obama Administration made a pledge on behalf of the U.S. to reduce the nation’s GHG emissions by 17 percent. This pledge now seems in jeopardy based on the inability of Congress to pass climate legislation which could have a subsequent and negative impact on the next set of climate negotiations slated for Tianjin, China in October 2010, and Cancun, Mexico in November-December 2010.

With renewed vigor after the Copenhagen negotiations, Senators Kerry, Graham and Joseph Lieberman (I-CT) worked fervently behind closed doors on drafting the aforementioned bi-partisan climate legislation, intending to make something public in March or April of this year. Just as the Senators were going to hold a public unveiling of their legislation, however, Reid indicated that the Senate would be taking up an immigration bill in light of Arizona’s widely publicized immigration law. As immigration reform had and continues to be a priority for Graham, the Senator bowed out of the legislative efforts related to climate change, believing that it was disingenuous to believe that Congress could debate and pass legislation on both matters with a limited number of days in the legislative session remaining. Graham went further in stating that he would not even vote for his own climate bill as long as immigration was on the table. Hence, the unveiling of the climate legislation, now known as the American Power Act (APA), took a bit longer and wasn’t ultimately made public until May 12th. Also, to obtain bi-partisan support, a number of olive branches were handed out to Senators in the legislation to obtain their vote such as incentives for nuclear energy and offshore drilling. It was this latter incentive that ended up being the proverbial fly in the ointment that further doomed climate legislative efforts during the current Congress.

On April 20th, British Petroleum’s Deepwater Horizon oil rig exploded in the Gulf of Mexico, not only leaving a number of workers dead, but also setting off an oil spill that continued into the early days of August. Suddenly, the attention shifted from passing climate legislation to oil spill reform with the number of Senate members coming out against offshore drilling almost seemingly growing each day. As such, all the fixes in the world weren’t going to satisfy enough Senators to pass the APA, even with President Obama’s call in June for comprehensive climate and energy legislation. Subsequent overtures by Reid and others about taking a limited legislative approach solely focused on the GHG emissions from utilities was also unable to attract enough Senators in favor of climate legislation. In fact, not even the American Clean Energy and Leadership Act, energy legislation approved by the Energy and Natural Resources Committee in June of last year which seemed to have early traction for passing in the Senate, is essentially dead in the water and will have to be reintroduced during the next Congress.

The road for the remainder of the current Congress now remains murky although as already noted, efforts to successfully move climate legislation are dead. The Senate and House will likely come back from their August-September recent recess and try to pass energy-related legislation, with one bill serving as a response to the Gulf oil spill, and another bill intended to pass and enact a national renewable electricity standard. The chances of passing either bill prior to the November elections, however, are slim to none as Congress wrestles with other legislative priorities such as extending the Bush tax cuts due to expire at the end of the year. Instead, there is a growing belief among some congressional members who believe that the “lame duck session,” the period between elections and the time that outgoing members leave office, provides the best opportunity to pass energy-related legislation as Senate and House members will no longer be under the political pressure of getting re-elected. Of course, those members who are reelected will probably think twice about going against the will of their constituents, otherwise it will be a very long and uncomfortable term for them. Hence, it is unlikely that the chances for passing such legislation will improve much after the November elections.

With the current Congress coming to a close, Indian tribes and their leaders must be vigilant more than ever as the Senate and House try to quickly push energy-related legislation forward, thereby giving little time or opportunity for such tribes, states, and frankly any other entities, to provide their input. There is a sense on the part of congressional members that they need to pass something as quickly as possible so as to have something to run on for the November elections. Unfortunately, this hasty approach to drafting and passing legislation comes at the sacrifice of tribes and others which will be most impacted by such legislation. This type of sacrifice by tribes started to rear its head in the APA where tribal resources for energy efficiency, domestic adaptation and woodstove changeout resources made available under previous legislation were stripped from the APA. Unfortunately, when push comes to shove, tribes often are the first to suffer, be it related to legislation or federal agency activities.

Understanding that Congress will no longer be moving on climate legislation in the near term, the heavy lifting will primarily be done by the Obama Administration and states which have taken and will continue to take their own actions in controlling and reducing GHG emissions. With respect to the Administration, Indian tribes must be aware that there will likely be future legislative attempts in Congress to prevent the regulation of GHG emissions under the CAA, such as a recent attempt made before the Senate floor by Lisa Murkowski (R-AK) in the form of a “resolution of disapproval” to overturn the U.S. Environmental Protection Agency’s endangerment finding on carbon pollution, and other attempts through the appropriations process to defund actions on the part of federal agencies to address GHG emissions. Tribes and their leaders must therefore be vigilant in strongly encouraging their Senate and House representatives to fight against all legislative rollbacks that would weaken the federal government’s attempts to control and reduce GHG emissions, but also implore these same representatives to fight for the interests and concerns of such tribes with respect to climate change and its adverse impacts on tribal communities across the nation. Otherwise, when the dust finally settles, there may be little if anything available to tribes to address climate change and ultimately preserve their ways of life.