A few hours after a key Senate panel deadlocked on the Bush administration's "Clear Skies" initiative, the president took to a podium yesterday in Columbus, Ohio, to demand Congress pass the controversial legislation.
Without mentioning the fact that a 9-9 committee vote had just ended debate on the issue for the immediate future, Bush spelled out his call for action on the bill. "To protect the environment, to protect jobs here in Ohio and around our country, Congress needs to get a good Clear Skies bill to my desk now," the president said.
The line drew applause from the audience, but it appeared to have little effect on the lawmakers in the Senate Environment and Public Works Committee who are charged with oversight on the issue. As anticipated, seven Democrats yesterday joined with EPW ranking member Jim Jeffords (I-Vt) and Sen. Lincoln Chafee (R-R.I.) to all but halt the bill's progress to the Senate floor.
Action on Clear Skies now remains a significant uncertainty, with attention turning to the U.S. EPA and a pair of regulations for power plants that will be issued today and next week. The chairman of the EPW panel, Sen. James Inhofe (R-Okla.), said he would focus next on moving a highway reauthorization bill before the current law expires at the end of May.
As for bringing Clear Skies up as an amendment to another bill later this session, Inhofe refused to rule out the chances. "We had to get to this point," he said. "Now we'll see from here."
Another chief Clear Skies cosponsor, Sen. George Voinovich (R-Ohio), indicated a reluctance to stay on Clear Skies, noting that the Senate has a number of high priority items on its plate this year including Social Security reform and fiscal year 2006 appropriations bills. Asked if Clear Skies may return, Voinovich said the threshold for moving forward would require a deal that had 60 Senate votes to overcome procedural hurdles.
"It's got to be a bipartisan effort," he said. "It's got to be a consensus."
During opening remarks at the markup yesterday, Voinovich said a recent proposal to set an even stronger sulfur dioxide cap, as well as a softening of language that would limit a state's ability to petition for help from upwind emission sources, garnered no support from critics on the EPW Committee.
But Voinovich did note that his idea had won over Sen. Lamar Alexander (R-Tenn.), who last year cosponsored a different Clean Air Act bill that represented much stronger emission controls on power plants. Of Alexander, Voinovich said, "He understands that this is a work in progress. He understands that if this bill were to pass the committee that there would be additional work before and during floor consideration to develop a compromise to get the 60 votes that we need."
For their part, EPW Committee Democrats, Jeffords and Chafee formed a unified front, insisting their concerns remained unaddressed during negotiations in recent weeks. Sen. Joe Lieberman (D-Conn.) criticized Republicans for not agreeing to stronger language on SO2, nitrogen oxide and mercury, saying he was willing to drop carbon dioxide demands for tougher provisions on the three pollutants.
"That's how serious I think the damage from those particular pollutants is," Lieberman said.
Chafee complained that he had received no assurance from Republicans that the concessions discussed over the last few weeks would survive a House vote on the legislation or a conference committee.
And Sen. Tom Carper (D-Del.), another key figure in recent negotiations, maintained his criticism of the White House for allegedly blocking EPA from providing senators with a full analysis of the effects of Clear Skies compared with other legislative alternatives. "They've been constrained from doing this," Carper said of EPA. "That's got to end."
Voinovich responded that EPA provided more than 10,000 pages of analysis on the legislation, a point he sought to make more apparent by stacking the documents on a table in front of the committee room dais. Both he and Inhofe questioned whether Democrats were being sincere in their criticism of the White House and EPA officials.
Still, Carper said Clear Skies could live to see another day later in the session. "A tie vote, a 9-9 vote, does not mean the end. It means find another way," he said.
Attention turns to EPA regulations
For now, the legislative prospects for Clear Skies will take a back seat to the regulatory front. The EPA later this afternoon will enact a final rule to control power plant emissions of NOx and SO2. The Clean Air Interstate Rule, which establishes a "Clear Skies" like cap-and-trade program for 29 Eastern states and the District of Columbia, is being touted by the Bush administration as a major step in helping 450 counties across the country come into compliance with recently enacted federal air quality standards for fine particulate matter and ozone.
Several environmentalists interviewed yesterday said they welcomed the benefits from the CAIR plan, though they argued the requirements could be stronger and the deadlines tighter. Pressed to say if litigation was possible, all said their next step hinges on the details. "It depends on what's in it," said Nat Mund, an air quality advocate at the Sierra Club. "We don't know."
From the industry end, Edison Electric Institute spokesman Dan Riedinger said his organization would not yet comment on the chances of litigation. Riedinger did say that the general concept of a trading program for controlling NOx and SO2 pollution in CAIR aligns with the electric utility industry's perspective as the "best way to leverage significant new emissions reductions, while keeping prices low for consumers."
Several other key electric utility industry sources who many say could be leaders in a lawsuit against CAIR could not be reached for comment.
Separately, EPA by Tuesday must issue a rule to control mercury emissions from power plants. Bush provided a peek into the final mercury rule during his speech yesterday, indicating the plan will call for a 70 percent reduction from today's 48 ton emission level down to 15 tons by 2018.
Environmentalists and state attorneys general are likely to sue EPA over the mercury rule. They claim the agency did not follow the requirements of the Clean Air Act to set an even stronger standard that requires emission controls on nearly all of the nation's 1,300 power plants.
The threat of litigation hanging over the CAIR and mercury rules has been one of the primary arguments made by proponents of Clear Skies for the legislation's enactment, with Inhofe explaining that a delay in the courts would stymie emissions benefits. In his speech yesterday, Bush made a similar case. "These rules provide some of the same benefits as Clear Skies, but they are not a substitute for effective legislation," the president said.
John Walke, a senior attorney at the Natural Resources Defense Council, challenged Bush, Inhofe and industry officials who say Clear Skies would end the need for litigation. "It's a mighty convenient thing for them to say when [EPA] issues an illegal rule and then industry uses the argument that the Clean Air Act doesn't work," Walke said. "That's cynical in its extreme."