Post-Election Analysis: Environment and Energy
Few policy areas have offered more visible examples of the President's "phone and pen" (Executive orders and regulation) approach that my colleague Tom Kelly referenced in his November 10th analysis than the environmental and energy space. With Congressional action on Presidential priorities stuck in complete gridlock, the past year in particular has seen major initiatives from the U.S. Environmental Protection Agency on greenhouse gas and other Clean Air Act regulations, a controversial jurisdictional statement defining the "waters of the U.S.," and actions on mining that only added to the rhetoric about the Administration's so-called "war on coal." All of these moves inflamed Republicans on the campaign trail and are now fueling intense speculation on what they will do with their new majorities in the House and Senate. Even if the Senate ends up with a 54-46 split, as many predict, however, that number is well short of the 60 votes needed to end a filibuster and even further from the 67 needed to override a veto, so it is clear that enthusiasm for change will need to be tempered by a realistic sense of what is actually achievable.
What Tools are Available? Given the numerical realities, any standalone bill to reverse EPA action will be vetoed, and presumably would only be pursued to make a political point. A similar obstacle applies to the Congressional Review Act, which allows Congress to rescind a major rule before it goes into effect, but only if the President signs the joint resolution; if he does not, Congress can overcome that block only by a 2/3 override vote.
If the Republicans really mean to try and undo EPA actions, the most likely path is through appropriations riders that are veto-proof in the sense that the President would rather allow them to go through than risk shutting down the EPA or other agencies covered by the appropriations bill. While newly empowered Senators and Senators-elect are no doubt making their lists and checking them twice, it will not be possible to load up the coming appropriations bills with every program reversal they would like to see, and some serious horse trading is about to commence. And although not a direct route to legislation, there is little question the coming session will see a major uptick in Senate oversight hearings – a method the House has used effectively since Republicans gained a majority there – to spotlight and question agency regulatory and policy decisions.
Who are the New Leaders? Few changes are expected in the leadership of House committees with jurisdiction over environmental and energy issues, and they will continue to exercise active oversight and appropriations authority. The one seat in contention is the race to succeed term-limited Rep. Darrell Issa (CA) as chair of the House Oversight and Government Reform Committee. Issa has used the post to launch tough investigations of alleged EPA mismanagement, and the leading candidates for the chairmanship, Reps. Jason Chaffetz (UT), Jim Jordan (OH), and Miker Turner (OH), all seem ready to continue in the same tradition.
On the Senate side, most observers believe Senator Jim Inhofe of Oklahoma is poised to resume the chairmanship of the Environment and Public Works Committee, a role he previously used for energetic oversight of EPA's initiatives. Inhofe is famous for his vocal skepticism of the human contribution to climate change, which puts him at odds with the basis for much of the EPA's recent rulemaking, setting the stage for likely clashes. Inhofe has already fired a shot over the bow with a November 12 USA Today Op-Ed, calling President Obama's climate change agreement with China "a non-binding charade."
Senator Lisa Murkowski (AK) is expected to chair the Energy and Natural Resources Committee, and will focus on increased domestic energy production and exports, along with other goals laid out in her "Energy 2020" report. And incoming Senate Majority Leader Mitch McConnell (KY) promised during his campaign to rein in EPA activities, particularly measures he views as anti-coal, and will be a strong force to reckon with in the new Congress.
What are the Key Issues? Even a partial list of issues being teed up for the new Congress goes on at length, but here is a sampling of the most likely items we will hear much more about in the coming months:
- The Keystone Pipeline. This is a divisive, hot-button issue that is already in play. Democrats want a quick vote to allow Sen. Mary Landrieu (LA), caught up in a runoff election, to demonstrate her backing for the pipeline, which presumably would be a political plus with the voters back home. Republicans see the same advantage for Landrieu's opponent, Cong. Bill Cassidy. This unusual alliance sets the stage for a potential veto showdown with President Obama, whose environmentalist base constituencies strongly oppose the pipeline.
- EPA's greenhouse gas, ozone, and mountaintop mining rules, which Republicans would like to overturn. Sen. Murkowski's concerns for grid reliability will be a part of the greenhouse gas regulatory discussions as well.
- EPA's proposed definition of "waters of the U.S.," another initiative Republicans would like to change.
- Expedited approvals of fracking and mining permits on public lands.
- Potential changes to Interior Department Endangered Species Act determinations.
- Energy exports.
- Renewal of the production tax credit for renewable (wind) energy.
- Regulatory reform proposals, including stricter review of agency guidance documents, Science Advisory Board procedures, including peer review requirements, and transparency in science relied upon by EPA and other agencies. These proposals have gotten traction in the House and counterparts are likely to be introduced in the Senate.
It remains to be seen how many of these issues will make it past the cutting room floor, but it seems a safe prediction that the next few months will be action-packed and events will be worth following closely.
Clark Hill Mexico City Grand Opening Reception
Celebrate our new Mexico City Office with a reception and educational event.
We will toast our new office space and location with a cocktails and small bites with Mexico and US-based colleagues and friends.
SECURE Act 2.0 Has Arrived
On December 29, 2022, President Biden signed the SECURE 2.0 Act of 2022.
Join us as we discuss these changes and what they may mean for employers.