Sen. Lisa Murkowski is holding all the cards and thus far, the Alaska Republican isn't showing her hand.
By virtue of a unanimous consent agreement, Murkowski may force her fellow senators to vote next week on a plan to limit federal greenhouse gas regulations. Such a vote would be an early test of the appetite for cap-and-trade legislation, and the proposal has already run headlong into staunch opposition from Democratic leadership and environmentalists.
But Murkowski and her aides have not determined what their amendment will look like, even floating the possibility yesterday to introduce the Democrats' cap-and-trade bill simply in order to watch it fail (E&ENews PM, Jan. 12).
Determining what Murkowski, the ranking member of the Energy and Natural Resources Committee, will do has become something of a sport on Capitol Hill.
Murkowski is mulling several options to handcuff U.S. EPA's regulatory efforts, including an amendment to block the agency's power to regulate heat-trapping emissions from stationary sources for one year and a formal resolution to block EPA climate regulations altogether.
"I do not believe -- and I don't believe that most of my colleagues in the Senate believe -- that the EPA is the entity that is best suited to develop climate change policy for this country," Murkowski said yesterday. "I think most of us believe that it should be legislative action and the EPA moving forward at this point in time -- I don't think is in the best interest of this country's economy.
"I really need to kind of figure out the pros and cons of a one-year timeout versus moving forward with the resolution of disapproval," Murkowski added. "They both have their advantages and disadvantages."
Last fall, Murkowski introduced an amendment to prohibit EPA from regulating power plants and other industrial sources for one year. That approach, she said, would have allowed the agency to move forward on its rules to regulate greenhouse gas emissions from tailpipes. But Sen. Dianne Feinstein (D-Calif.) countered that approach with a second-degree amendment that would have codified EPA's "tailoring" rule, allowing the agency to regulate large industrial sources. Murkowski's amendment was never allowed a floor vote.
Under the unanimous consent agreement reached on the debt legislation, no second-degree amendments will be allowed. Democrats will be able to offer countermeasures to Murkowski's amendment, but each proposal will be voted on independently. Each of the amendments would require 60 votes to pass.
"They could do a separate amendment just on the tailoring rule," said Lou Hayden, a policy analyst with American Petroleum Institute. His group is concerned that the tailoring rule will not protect smaller emitters. "The Democrats are just as smart on parliamentary procedure as Republicans, so that is still a vulnerability," he said.
Several Democrats have already lined up in opposition to the rule. All 12 members of the Environment and Public Works Committee yesterday sent a letter to their colleagues urging them to vote against Murkowski's efforts to limit EPA's climate regulations (Greenwire, Jan. 12).
Off Capitol Hill, environmental groups are waging a public relations campaign against Murkowski. When recent news reports revealed that Murkowski's staff sought the advice of industry lobbyists when crafting her 2009 EPA amendment, environmentalists publicly blasted the Alaska senator for doing the bidding of Big Coal and Big Oil.
"The Senate will not want to take its first vote on this issue and cast it in favor of the big polluters," said Joe Mendelson, global warming policy director for the National Wildlife Federation.
PolluterWatch, a branch of Greenpeace, sent a letter yesterday to Sen. Barbara Boxer (D-Calif.), chairwoman of the Environment and Public Works and Ethics committees asking for an inquiry into the relationship between Murkowski's staff and the former George W. Bush administration officials who advised the senator's office on the amendment.
Murkowski's staff has also floated the idea of forcing a floor vote on the cap-and-trade bill from Sens. John Kerry (D-Mass.) and Boxer to prove that the legislation is doomed to fail.
But such an approach, although symbolic, would not achieve Murkowski's objective of limiting EPA regulations.
Regardless of what happens next week on the EPA amendment, Murkowski will have the opportunity to introduce a formal disapproval resolution to effectively veto EPA's finding that greenhouse gases endanger public health and welfare. That finding sets the stage for EPA's suite of forthcoming regulations.
Murkowski has until March to introduce the disapproval resolution, Dillon said yesterday, adding that the senator would likely introduce it between Jan. 21 and early February if she decides to move forward with it.
But Murkowski said that approach could have more trouble clearing the House than the Senate. "The reality is, the process for a resolution of disapproval is more favorable in the Senate because it allows for that expedited consideration and we don't have that similar treatment on the House side," she said.
In the Senate, the disapproval resolution requires 30 signatures and would be subject to expedited consideration on the floor and not subject to a filibuster. The House cannot use the same expedited procedure, although House lawmakers can use a discharge motion to bypass the committee of jurisdiction and bring the resolution to the floor. The House discharge motion requires 218 signatures (E&E Daily, Dec. 22, 2009).
The final hurdle: Any bill would have to be signed by President Obama to become law.
Andrew Wheeler, a former Republican staff director for the Environment and Public Works Committee who now works for B&D Consulting, said he expects that a measure to limit EPA regulations will ultimately clear the Senate.
"My feeling all along has been that an amendment from Senator Murkowski to limit EPA's authority under the Clean Air Act will succeed," Wheeler said, adding that timing will depend on when enough members understand the ramifications of EPA climate rules.
But Daniel Weiss, senior fellow at the Center for American Progress Action Fund, dismissed that theory. "Rather than try to solve a problem that's plaguing her state more than any other state in the Union, she's playing political games." Weiss said. "None of this will become law."
Senior reporter Darren Samuelsohn contributed.