After the demise this week of a Senate bid to kill U.S. EPA's mercury regulations for power plants, the utility sector has been left wondering whether there will be a Plan B for changing the rule that it has blamed for the closure of several coal-fired power plants around the country.
The chances for a second try in Congress appear to be slim.
Sens. Lamar Alexander (R-Tenn.) and Mark Pryor (D-Ark) have proposed a bill that would delay implementation of the co-called Utility MACT rule until 2018, and some of the moderate Democrats who voted against Sen. James Inhofe's (R-Okla.) resolution of disapproval this week have expressed an interest in it.
But unlike Inhofe's measure, the bill might not even come to the Senate floor for a vote. It is unlikely it would be vetted by the Environment and Public Works Committee, headed by Sen. Barbara Boxer (D-Calif.). It might be offered as an amendment to another bill but would need 60 votes to be adopted.
And all that assumes it is ever introduced at all. Alexander and Pryor say they first plan to send a letter to President Obama asking him to issue an executive order providing the entire U.S power sector with an additional two years to comply with the rules.
An aide to Alexander said the senators expected to write to Obama next week.
But both environmentalists and die-hard coal advocates -- in a rare moment of comity -- say the Clean Air Act would not allow Obama to comply with that request, even if he wanted to.
"The president would not have the authority to approve a blanket two-year extension without meeting the statutory criteria and conditions," said John Walke, clean air director for the Natural Resources Defense Council. These include a determination that the rule is not technologically feasible in the time allotted and that requiring power plants to meet the statutory deadline would cause a national security risk.
A Republican aide on the Environment and Public Works Committee said that if Obama tried to assume the authority Pryor and Alexander ascribe to him, it would only lead to litigation and increased uncertainty for utilities.
"The Clean Air Act does not provide for this kind of idea of an executive order extending the compliance time frames," he said. "It is fanciful."
Nor is there agreement that the three-year delay would be an improvement over the status quo.
"The approach you are describing is allowing the tail of ad hoc anxiety to wag the dog that is the vast majority of the coal fleet that will adopt controls or retire in a timely fashion under" the mercury rule, said Walke in a recent email. "There has been no demonstrated need for blanket extensions, no fact-finding at legislative hearings to begin to justify across-the-board amnesty for an additional 3 years."
The GOP committee aide didn't think the Alexander-Pryor proposal would fix much, either.
"They're only looking at one half of the issue here," he said. The proposal would give existing power plants a little extra time to meet the standard, he added, but it would not allow new coal-fired power plants to be built without controls.
"It has eliminated coal's future," he said. "That's actually the bigger concern."
The aide said that Inhofe, the EPW Committee ranking member, would likely propose some amendments to address new coal plants if Alexander-Pryor ever arrives on the Senate floor.
The administration and its allies have said that natural gas prices are the cause of the apparent lack of industry interest in building new coal plants in the near future, and EPA rules have not played a significant role in tipping the scales.
But will it help them at the polls?
Whatever the policy implications of Alexander-Pryor, advocates on both sides of the issue said they saw little political advantage in senators supporting it.
Inhofe has called the proposed bill a "cover vote" for vulnerable coal-state Democrats who otherwise would have felt pressure to vote for his resolution. And that was a message he repeated yesterday, predicting that Sens. Claire McCaskill (D-Mo.), Sherrod Brown (D-Ohio), Bob Casey (D-Pa.) and Jon Tester (D-Mont.), who are all up for re-election this year and face varying degrees of danger, would hear the most from their constituents about their decisions to vote "no" on his measure Wednesday.
"There are four of them -- there are four huge coal states -- and that's going to create a problem for them," he said. "There's no question about that."
Tom Smith (R), the former coal industry executive who is challenging Casey for his seat, has already moved to make Casey's vote an issue.
Industry advocates also said a vote for Alexander-Pryor would not compensate for a vote against Inhofe.
Libertarian activist Phil Kerpen, who was vice president of Americans for Prosperity before starting a new group called American Commitment, said Republicans as well as Democrats would pay for opposing the resolution.
He called it the defining vote on preserving coal-fired power generation and warned that attempts at compromise will not get lawmakers off the hook for what he called a "wrong" vote.
"We already knew Alexander-Pryor was a phony bill," he said.
Alexander, who is not up for re-election until 2014, showed little concern that his vote against Inhofe would cost him at the polls. Instead, he railed against what he called "Washington special interests" lobbying on the issue. He said Tennesseans would largely understand and approve of his position.
"I am in very good shape with Republicans and conservatives and tea party members and Democrats," Alexander said. "Now that could all change and I am taking nothing for granted. I feel like I'm standing up for Tennessee, and we'll see what they think in a couple of years."
But Kerpen said his group would continue to drive its message home using social media and advertising to target the Inhofe resolution's opponents. "We intend to follow through very aggressively."
Environmentalists, meanwhile, said a vote against Inhofe's resolution would not inoculate a senator if he or she later voted to delay the mercury rule.
Sierra Club lobbyist Melinda Pierce said environmentalists want to recognize and thank those who voted against the Inhofe resolution but would not let down their guard.
The campaign Sierra Club and others launched before the Inhofe vote would be "training wheels to defeat their second-best option, which seems to be delay," she said.
Pierce added that she did not believe coal state Democrats would suffer with their constituents for opposing the resolution.
"This particular vote had to do with mercury, which is a deadly brain poison," she said. Even citizens from states that depend on coal for the bulk of their electricity -- like Missouri, Ohio, Pennsylvania and Montana -- see mercury advisories for fish and make the connection to power plants, Pierce added.
"So it was an easier vote to take," she said.
Coal's priority: a different president
Coal advocates spent yesterday taking stock of their options after the defeat of Inhofe's amendment.
Paul Bailey, senior vice president for federal affairs and policy for the American Coalition for Clean Coal Electricity, told reporters that the industry had worked to secure votes in the days and weeks before Inhofe's resolution came to the floor.
He said he was "pleasantly surprised" that both Virginia Democratic Sens. Mark Warner and Jim Webb voted for the measure. "Warner is up [for re-election] in 2014. I would guess there was a concern about the southern, southwest part of the state," he said.
McCaskill, who is in a tough battle for re-election, is one lawmaker the coal lobby couldn't convince. "We put a lot of effort into trying to persuade her to vote for the resolution," Bailey said.
Coal-state lawmaker Sen. Jay Rockefeller (D-W.Va.) not only voted against the Inhofe resolution but also delivered what Bailey called a "harsh" speech targeting the industry (Greenwire, June 20). The veteran senator, who faces voters again in 2014, urged the industry to modernize and spoke against what he called "scare tactics."
"We weren't surprised by that," Bailey said about Rockefeller's position. "I think the way he spoke about the coal producers was a bit of a surprise to us."
Despite other potential measures in the works to roll back EPA's regulatory plans, the coal industry is not putting much stock in a congressional solution. Ultimately, the fate of the agency's plans may depend on who wins the White House in November.
"That's about all you can do right now is wait for the election," Bailey said. "I think Governor [Mitt] Romney's strategy would be aligned with what we think is reasonable."
Romney, the presumptive Republican presidential nominee, has been increasingly talking about coal in stump speeches. Bailey said he expected the "war on coal" message to intensify, especially in Midwestern states and other places that depend on coal-fired power.