Federal Update: Agriculture & Energy Committee Environment Committee

Updated April 12, 2011

President's State of the Union 2011 Outlines Clean Energy Goals

During his State of the Union Address January 25, President Obama made the topic of energy an important component of his message, calling for a target of producing 80% of the country’s electricity consumption from clean energy sources by the 2035. To meet the 80% goal, the President highlighted the importance of using all currently available clean energy technologies, which includes nuclear, clean coal, wind, solar and natural gas. The President also proclaimed that the country should aim at becoming the first nation to have one million electric vehicles on the road by 2015 and to build an infrastructure for high speed rail in the next 25 years that would be accessible to 80% of Americans. To meet the goal of one million electric vehicles, the President’s plan aims to support the vehicles manufacturing through customer rebates, investments in R&D and by creating competitive grant programs. Although he was less specific on his approach to creating high speed rail infrastructure, he noted how such a system could halve the time it takes to travel by car and how such a system is vital to the nation’s economy.

The President’s message stressed continued investment and research. Specifically, the President focused on investment in biomedical research, information technology, and clean energy technology, the latter of which he said will “strengthen our security, protect our planet, and create countless new jobs for our people.” To realize these goals, the President’s budget will propose increasing clean energy funding by a third compared to FY2010, expanding the Department of Energy’s (DOE) advanced research program and by doubling the number of DOE innovation hubs.

Obama Proposes Cutting Foreign Oil Dependence by One-Third

On March 30, President Obama called on the country to reduce our dependence on foreign oil by one third over the next decade. To achieve this, the president proposed increased domestic production of oil and natural gas, increased use of alternative energy sources and greater efficiency standards. As the president and his cabinet will be focusing on energy security more intently throughout the year, these four key areas to reduce the nation’s dependence on foreign oil are important for his domestic agenda.

In terms of domestic oil production, a Department of interior report showed that 2.4 million acres were leased by oil companies in 2010, out of 37 million acres offered. The report also found that more than 70 percent of the tens of millions of offshore acres currently under lease are inactive. The President stated that there are massive supplies of American energy waiting to be tapped and there should be better incentives to promote development of these resources. [Interior's report, “Oil and Gas Lease Utilization—Onshore and Offshore,” may be found at: http://www.doi.gov/news/pressreleases/loader.cfm?csModule=security/getfile&pageid=239255]

The second area the president focused on was natural gas. He stated that there are tremendous reserves of natural gas, but they must be developed in a way that does not impact the nation's ground water supplies. He also remarked that the Federal Government can do more to encourage the use of the resource such as additional incentives to use natural gas in cars, trucks, city buses and other fleets.

The third area was the idea of developing and producing biofuels and investing in advanced fuel technologies. While corn ethanol is making a contribution to reducing the nation’s oil dependence, he said that going further will require commercialization of advanced biofuel technologies.

Finally, President Obama’s speech focused on energy efficiency and making cars and trucks more efficient. While the administration has already achieved a goal of higher standards for vehicles in model years 2012-2016, the administration intends to bring together states, Democrats, Republicans, environmentalists, labor unions, and automakers for the next round of auto standards.

Beyond oil, Obama reaffirmed his commitment to a clean energy standard, including wind, solar, hydropower, efficient natural gas, clean coal, and nuclear power. The president reiterated that the clean energy standard he proposed during his State of the Union address is one of the main ways to achieve his goal of generating 80 percent of U.S. energy from clean sources by 2035.

House, Senate Republicans Unveil Bill to Expand Offshore Drilling, Block EPA Rules

On March 31, House and Senate Republicans introduced companion legislation that would expand offshore drilling, open up the Arctic National Wildlife Refuge coastal plain, and block regulation of greenhouse gas emissions. Entitled the “Domestic Jobs, Domestic Energy, and Deficit Reduction Act,” it has been billed by Republicans as their alternative to President Obama’s energy policy.

The Senate bill was introduced by Sen. David Vitter (LA) and the House bill by Rep. Rob Bishop (UT). “The … Act would unleash our vast domestic energy potential to create American jobs, help free us from our reliance on foreign oil, and begin to reduce our $14 trillion dollar national debt,” Vitter said. “This legislation seeks to shift the paradigm from energy reliance to energy independence,” Bishop said. The legislation would mandate offshore oil and gas lease sales, open up the coastal plain of the Arctic National Wildlife Refuge, require agencies to issue drilling permits, limit the time frame for environmental and judicial reviews, block the Environmental Protection Agency from regulating carbon emissions on energy projects, expedite approval of the proposed Keystone XL oil sands pipeline, and create an alternative energy trust fund.

House Passes Legislation Limiting EPA Authority to Regulate GHGs

On April 7, the U.S. House of Representatives passed legislation (Energy Tax Prevention Act of 2011, H.R. 910) to block the regulation of greenhouse gasses (GHG) under the Clean Air Act (CAA) by the EPA. The 255-172 vote for final passage of the legislation saw nineteen Democrats joined the entire republican caucus in voting in favor of the legislation. Previously, the House considered 12 Democratic amendments to the bill, adopting one, sponsored by Jerry McNerney (CA), which would clarify that voluntary programs addressing climate change would be exempt from the bill’s prohibitions, and rejecting nine other amendments by roll call vote and two by voice vote.

At the heart of the legislation is language that would prohibit the Administrator of the EPA from promulgating any regulation concerning, taking action relating to, or taking into consideration the emission of a greenhouse gas (GHG) to address climate change. The legislation would also exclude GHGs from the definition of an air pollutant for the purposes of addressing climate change. While the legislation does provide for certain exemptions from these restrictions, it specifically enumerates 12 EPA actions (both regulations and agency determinations) that would be repealed and made ineffective. Also included in the legislation is language that would invalidate waivers given by the Administrator before the enactment of this Act and would ban states from adopting or enforcing standards relating to the control of emissions from new motor vehicles or engines with respect to GHG emissions for model year 2017 or any subsequent model year.

The President has already said he would veto the legislation if it was to make it to his desk for signature. (http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/saphr910r_20110405.pdf)

A companion bill, S. 482, has been introduced in the Senate by Sen. James Inhofe (OK) who is the ranking member of the Senate Environment and Public Works Committee. While there has not been any action on the stand alone legislation in the Senate several votes were taken on amendments related to EPA regulations during consideration of S. 493, the SBIR/STTR Reauthorization Act of 2011. (See related story below.)

Senate Takes Up EPA Amendments To SBIR/STTR Reauthorization Act of 2011

On April 6, the Senate to action on a series of amendments to the S. 493, the SBIR/STTR Reauthorization Act of 2011, that had been holding up consideration of the underlying bill. Under the unanimous consent agreement that paved the way forward consideration of these amendments the Senate also raised the required number of votes for passage to 60 as opposed to a simple majority. Four of the six amendments under consideration would limit EPA authority in some fashion with regards to the regulation of greenhouse gasses. The final two amendments deal with a recent GAO report on unnecessary, duplicative and overlapping government programs calling on the Office of Management and Budget to act in response to the report and take action to limit such duplication. (See related story below.)

There was some controversy over the order in which the four EPA amendments were taken up by the Senate but final consideration occurred with the fist vote being on an amendment by Sen. Max Baucus (MT), which would codify EPA's rule exempting agriculture and small emitters from carbon dioxide regulations and modify the Clean Air Act New Source Review rules for carbon and carbon requirements for fuels under the 2007 renewable fuel standard. The next vote was on the amendment offered by Sen. Debbie Stabenow (MI) which includes many of the same provisions as Sen. Baucus' amendment but would also delay EPA rules for stationary sources of carbon for two years and reauthorize a tax credit for manufacturers of renewable energy equipment and make it refundable. An earlier version of the amendment had included a preemption of the California waiver authority in the CAA which allows for the state of CA to petition EPA for authority to implement regulations on motor vehicle emissions standards different from the federal government. Both the Baucus and Stabenow amendments failed by a vote of 7-93.

The third vote scheduled was on an amendment offered by Sen. Jay Rockefeller (WV) that would delay implementation of the EPA rules for two years to allow further time for Congress to consider and act on the issue. Sen. Rockefeller had hoped that his amendment would be voted on following the McConnell amendment in the hopes that if it failed to draw the requisite 60 votes his amendment would have the best chance of drawing additional Republican support. The Rockefeller amendment failed by a vote of 12-88. The forth vote was on the amendment offered by Sen. Mitch McConnell (KY), the Minority Leader, which would eliminate EPA authority to regulate greenhouse gas emissions as they relate to climate under the CAA. While several Democrats did vote in favor of the McConnell amendment, the closest in language to the House passed policy rider, Republican Senator Susan Collins of Maine voted against the amendment making the final vote 50-50.

These votes were also seen as symbolic indicators with regards to the FY 2011 budget discussions where EPA related policy riders remained in play until the very end of negotiations concerning funding for the federal government for the remainder of the current fiscal year. While the policy riders were eventually dropped in the final budget agreement, which is expected to be voted on some time during the week of April 11, it is clear that the debate on the issue is not over. All told, a total of 64 Senators voted for some version of limitation on EPA authority and proponents are expected to continue to look for a legislative vehicle to limit, postpone or prohibit EPA greenhouse gas regulations.

GAO Releases Report On Potential Duplication in Government Programs

On March 1 the Government Accountability Office (GAO) released a report on “Opportunities to Reduce Potential Duplication in Government Programs, Save Tax Dollars, and Enhance Revenue” (GAO-11-318SP). This report is the first annual report to Congress following the enactment of a new statutory requirement that GAO identify federal programs, agencies, offices, and initiatives, either within departments or government wide, which have duplicative goals or activities. Among the areas mentioned in the report under agriculture, is the “fragmented food safety system.” While the Department of Agriculture’s (USDA) Food Safety and Inspection Service and the Food and Drug Administration (FDA) are the primary food safety agencies there are an additional 15 agencies involved in some way and GAO claims that this has “caused inconsistent oversight, ineffective coordination, and inefficient use of resources.” Under energy, GAO cites problems with both federal fleet energy goals and the federal efforts to increase ethanol production. In both cases multiple federal agencies play a role in implementing programs or providing oversight such as the U.S. Department of Energy and the General Services Administration with regards to the oversight of fleet energy goals or EPA and the Treasury Department with regards to domestic ethanol production. To read the full report on-line go to: http://www.gao.gov/new.items/d11318sp.pdf.

In response to this report, two amendments were submitted to S. 493, the SBIR/STTR Reauthorization Act of 2011, in an effort to address the issue. The Senate adopted an amendment on April 6 by a vote of 64-56 by Sens. Tom Coburn (OK) and Mark Warner (VA) that would save the federal government approximately $5 billion by consolidating overlapping government programs. A less prescriptive amendment offered by Sen. Daniel Inouye (HI) was defeated by a vote of 57-43. As with the other amendments to S. 493, the vote for passage was raised to 60 from a simple majority under a consent agreement.

Interagency Task Force On Electronics Stewardship Seeks Comment On National Framework

On March 1, the EPA posted a notice in the Federal Register soliciting stakeholders’ input on the development of a national framework for electronics stewardship. This effort is a part of an effort being developed by the Interagency Task Force on Electronics Stewardship co-chaired by the Environmental Protection Agency (EPA), General Services Administration (GSA), and Council on Environmental Quality (CEQ). The task force was established on November 8, 2010 by CEQ Chair Nancy Sutley to provide a national strategy and recommendations for areas of Federal agency operational and managerial improvement associated with electronics stewardship. It is expected that the task force will deliver to CEQ a national framework for electronics stewardship by May 6, 2011. Efforts by CEQ and EPA to outreach to state officials gave clear indication that the task force was looking to learn from existing state efforts and possibly determine how a national framework could or should interact with the existing state programs now enacted in 25 states.

On March 14, NCSL submitted comments to the task force (http://www.ncsl.org/default.aspx?tabid=22422) addressing the nature of the state-federal partnership in the management of electronic waste and providing the recommendation that the task force focus its efforts on the development of best practices and incentive programs that will help develop and advance the necessary national infrastructure needed to manage this waste stream.

Wetlands Guidance Raises Questions For State And Local Government

On March 11, NCSL along with the Council of State Governments, National League of Cities, US Conference of Mayors, National Association of Counties and International City/County Management Association sent a letter to Jacob Lew, Director of the Office of Management and Budget (OMB) regarding pending guidance under review by OMB. The Clean Water Protection Guidance submission (RIN: 2040-ZA11) from the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) has the potential to expand the definition of waterways covered under the Clean Water Act and preempt existing state jurisdiction. To date the guidance has not been released by OMB though neither has it been returned to the EPA and the Corps for further review. In both the letter and meeting with OMB staff NCSL and others urged OMB to return the guidance document to the agency in order to provide an opportunity for consultation under with state and local governments given the potential federalism implications involved. Members of Congress as well as potentially impacted stakeholders have also raised questions regarding the guidance focusing on many of the same issues raised by NCSL and the other state and local elected official organizations. Water Resources and Environment Subcommittee Chairman Bob Gibbs (Ohio) is currently circulating a congressional sign letter asking lawmakers to sign his letter to EPA and the Corps protesting the guidance due to the potential impact of the state-federal partnership under the Clean water Act (CWA), the potential economic impact of the guidance and whether such issues should be addressed using an informal guidance document.

President Obama Signs Executive Order on Regulations

On January 18, President Barack Obama signed Executive Order 13563, Improving Regulation and Regulatory Review (http://www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf), which in part called on federal agencies to facilitate the periodic review of existing significant regulations in order to “consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” As a part of developing the review process the U.S. Environmental Protection Agency (EPA) solicited comments on the design of the plan for reviewing existing significant regulations. NCSL submitted comments to the agency that urged it to incorporate a review of state and local costs into the review process as well as an effort to examine when and how consultation with state and local elected officials occurred. The full letter of comment submitted by NCSL is available online at: http://www.ncsl.org/default.aspx?TabId=22510. For more information on EPA activities surrounding the implementation of Executive Order 13563 go to: http://www.epa.gov/improvingregulations/.

Forthcoming EPA Cooling Water Intake Rule Raises Concern

On December 10, 2010 a letter was sent to EPA Administrator Lisa Jackson from the co-chairs of the NCSL Energy Supply Task force on a forthcoming EPA regulation on cooling water intake mechanisms at electric generation and manufacturing facilities (http://www.ncsl.org/default.aspx?tabid=22134). The co-chairs raised concern that the regulation would require a one-sized fits all response that might not be reasonable for all facilities. In a January 5 response, EPA indicated that the Administrator does not favor a one-size-fits-all mandate and that the intent is to issue a proposed rule that “reflects a common sense approach that reasonably accommodates site-specific circumstances and at the same time minimizes adverse environmental impact.” On March 28, EPA opened a 90 day public comment period on the draft regulation. The Administrator must take final action by July 27, 2012. For more information on the proposal including the federal register notice and an EPA fact sheet go to: http://water.epa.gov/lawsregs/lawsguidance/cwa/316b/index.cfm

USDA Biobased Labeling Announcement

On January 19, the United States Department of Agriculture (USDA) launched a new Biobased Product Label in an effort to boost demand for products made from renewable commodities and to support green jobs. The final rule, published on January 20, initiated a voluntary product certification and labeling program for qualifying biobased products. The new label will clearly identify products that are composed wholly or significantly of biological ingredients, which includes renewable plant, animal, marine or forestry materials. The final rule applies to product manufacturers and distributors who meet the USDA standards and who wish to label their products with the distinctive product mark.

USDA estimates that there are 20,000 biobased products currently being manufactured in the United States and that the growing industry as a whole is responsible for over 100,000 jobs. To see an example of USDA's new BioPreferred product label, visit www.biopreferred.com.


Did you miss the Fall Forum in Phoenix?

Material from the committee sessions at the December 2010 NCSL’s Fall Forum can be found on-line at:


Max Behlke, Policy Associate

(202) 624-5400

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