In long KXL debate, something for everyone — to interpret and learn from

By Nick Juliano | 02/02/2015 07:17 AM EST

In what states does the lesser prairie chicken live? How many police officers work for U.S. EPA, and how often do they need to use their guns? These were the questions Democratic senators and aides were trying to answer late one Thursday evening when the new Republican majority leader pulled a power play that ultimately threatened to sink the first bill under consideration in the Senate’s 114th session.

In what states does the lesser prairie chicken live? How many police officers work for U.S. EPA, and how often do they need to use their guns?

These were the questions Democratic senators and aides were trying to answer late one Thursday evening when the new Republican majority leader pulled a power play that ultimately threatened to sink the first bill under consideration in the Senate’s 114th session.

The Senate was into its third week deliberating S. 1, a bill approving the Keystone XL pipeline that Republicans made their No. 1 legislative priority for the year, although President Obama’s looming veto threat made the exercise feel a little bit like spring training. Nonetheless, both parties demonstrated an eagerness to return to the hardball tactics of regular order, although it was clear that some of the muscles necessary to excel at high-stakes legislating had atrophied over the last six or so years, when rollicking amendment debates became a rarity in the upper chamber.


Recent history also has created an intense level of distrust between the two parties. In the end, numerous aides and senators from both sides of the aisle said the debate stayed on track thanks in large part to the tenacity of the two women charged with managing it, Sen. Lisa Murkowski, the Alaska Republican who chairs the Energy and Natural Resources Committee, and the committee’s top Democrat, Sen. Maria Cantwell of Washington.

"What we were willing to do is put our cards on the table, both of us, about what we wanted to have happen," Cantwell recalled in a brief phone interview after the bill passed last week. "People definitely were looking at different ways of testing the process, but she and I had a lot of faith in the ability to just negotiate straight up. … There was a moment when we were calling it a gentlewoman’s agreement of trust."

Signs of trouble

That trust faced its biggest test the night of Thursday, Jan. 22, according to senior aides and senators involved in the process on both sides. It was the longest of the 14 days the Senate spent on the bill throughout the month.

The first sign of trouble came during a midafternoon vote series when the Senate was set to vote on a pair of contrasting climate change amendments from Sens. Bernie Sanders (I-Vt.) and Joe Manchin (D-W.Va.). Both posited that climate change was a result of human activity but split on the question of whether the solution requires an eventual end to the use of fossil fuels.

Democrats were expecting both amendments to get a vote on their merits based on the agreement Murkowski and Cantwell had worked out earlier in the day. However, when Murkowski asked unanimous consent to schedule the series of votes — each subject to a 60-vote threshold — she omitted a clause "that no amendments, motions, or points of order be in order" prior to the vote. Democrats mistakenly assumed that language was part of the agreement because of a miscommunication during the negotiations, but instead Murkowski was able to move to table the amendments.

The move produced some unanticipated drama on the floor, as Cantwell briefly halted the proceedings with a quorum call and entered into a tense few minutes of negotiations among the bill managers, parliamentarians and other senior officials. Throughout, Majority Leader Mitch McConnell (R-Ky.) was nearby but not directly participating, sitting in his seat near the center aisle with a satisfied grin on his face.

Democratic aides and senators said they sensed a shift in the bill’s broader trajectory with the votes to table the Sanders and Manchin amendments. "Fine, it’s a vote," one aide recalled thinking, "but not the spirit of what they’ve been saying this entire time."

But it was later that night that the process came closest to fully derailing.

Around 7 p.m., after the Senate had cast its 15th vote on the bill — surpassing the total for all amendments considered in 2014 — senators began offering up alternating Democratic and Republican amendments for another series of votes until 12 were pending in the queue.

Meanwhile, Republicans were trying to arrange votes on four of the amendments that night and the remainders the following morning. Democrats objected, saying the amendments — though just a few pages long — needed to be more fully studied.

One amendment, from Alaska Sen. Dan Sullivan, would have barred EPA’s 180 law enforcement officers from carrying weapons. The freshman Republican was trying to fulfill a campaign promise stemming from a 2013 complaint by small-scale miners in his state that they were intimidated by armed EPA officers during a raid investigating potential Clean Water Act violations.

Another Republican amendment offered by Kansas Sen. Jerry Moran would have removed Endangered Species Act protections from the threatened lesser prairie chicken.

Democrats said it would have been unfair to vote on the amendments so late at night without any time to properly debate them. Behind the scenes, aides were rousting officials at EPA, the Fish and Wildlife Service and other agencies and outside groups scrambling to learn the full implications of the amendment.

Federal law enforcement officers ended up rallying against the Sullivan amendment, which critics said would set a dangerous precedent that could extend to officers at other agencies, and the measure ultimately was not brought up for a vote (Greenwire, Jan. 29).

At one point in the evening, close to 11 p.m. or so, Murkowski took a break and retired to her hideaway in the Capitol. She popped open a Mason jar of smoked salmon — using a letter opener specifically reserved for the task — and "scarfed" the pungent, oily Alaska treat, the first thing she had eaten that day. "I’ve got salmon breath, but I can go for a couple more hours," Murkowski later recalled thinking.

Back on the floor, Democrats said they should wait until the next day, Friday, to hold the votes. They reminded McConnell of his previous calls to spend more days in session and questioned whether he was eager to avoid a Friday session so some Republican senators running for president could attend a private retreat hosted by the billionaire Koch brothers — a frequent rhetorical weapon employed by Democrats to try to tie the GOP to wealthy donors.

Instead, McConnell decided to play hardball. He used his prerogative as leader to begin a series of votes tabling five of the six Democratic amendments that had been pending, even objecting to Democratic requests for a minute of floor time to discuss the measures before they were killed.

But the new majority leader was trying to make a point: "regular order" did not mean an endless opportunity for Democrats to keep hammering the same points, especially given that it took just a matter of days for him to schedule as many amendment votes as his predecessor, now-Minority Leader Harry Reid (D-Nev.), allowed in a year. Furthermore, nine current Democratic senators had voted to approve KXL less than two months earlier without any amendments being considered when former Louisiana Sen. Mary Landrieu (D) was trying to save her seat.

"McConnell wanted to show we could table amendments," recalled a senior GOP aide closely involved in the process.

Democrats were livid, including some who had previously supported the underlying KXL bill.

"I said to some of my Republican friends, including some in leadership, ‘What was that all about?’" recalled Sen. Tom Carper (D-Del.) in an interview last week. "That’s not what we bargained for."

Carper was one of five Democrats who switched their previous positions to support a filibuster that stalled the bill last Monday, citing the shutdown of the amendment debate. When that cloture vote failed, it reminded Republicans that victory on the bill was no sure thing and revived negotiations for another series of amendment votes throughout the week. Ultimately, Democrats were able to secure an additional 10 amendment votes before the bill finally passed.

"There’s always the threat that it might not have passed," recalled Sen. Rob Portman (R-Ohio), predicting Democrats would have stuck together if they had felt wronged by the amendment process.

While Cantwell and Murkowski are as ideologically distant as any pair atop the Energy Committee in recent memory, they have a good personal relationship and share a pragmatic approach to legislating that is vital to allowing regular order to function.

"I think [Cantwell] always had a very simple and a very clear view of this. And that is even though she didn’t like the underlying bill and was going to vote against it; she wanted to give members on her side the opportunity to offer amendments," Portman (R-Ohio) told E&E Daily following the final vote. "And I think that, in a way, that worked to everybody’s benefit, not just Democrats."

"If it had been a different ranking member who had gone along with the idea that we should slow this down and obstruct it, it would have been a different result," he added.

Democrats also faced a vacuum at the top of their caucus, with Reid absent all month after being seriously injured in an exercise accident, leaving Minority Whip Dick Durbin of Illinois and New York Sen. Charles Schumer, the No. 3 Democrat, to fill in the gaps. And because Democratic members wanted to highlight climate change and environmental protection during the debate, Environment and Public Works Committee ranking member Barbara Boxer (D-Calif.) played a key role managing that aspect of the process.

Cantwell’s message focused on the importance of the ongoing review of the Keystone XL pipeline at the State Department, which proposed various special conditions for KXL builder TransCanada to meet in exchange for its border-crossing permit, and on the president’s authority to ultimately decide whether the project is in the national interest. Boxer and her staff provided substantial background on the environmental issues at play, and Cantwell recalled a Boxer staff paper on petcoke — a dirty byproduct of oil sands extraction — that helped get her up to speed on the issue.

Boxer also helped direct traffic around the dozens of climate-related amendments Democrats had filed throughout the month and was "very helpful in convincing our side to say, ‘Let’s go. Let’s get these votes,’" Cantwell recalled.

‘Hoevenizing’ a climate amendment

The Senate ultimately took 41 roll call votes on amendments and motions to table last month, providing a robust record of senators’ positions on issues ranging from climate change to tax policy to endangered species and land protections.

It was clear from the start that Democrats were going to demand votes on climate change science in an effort to paint Republicans as out of step with the consensus view that industrial greenhouse gas emissions contribute to hotter temperatures, rising sea level and more extreme weather. The idea was to create headaches for blue-state Republicans running for re-election in 2016, such as Illinois Sen. Mark Kirk or New Hampshire Sen. Kelly Ayotte, as well as those eyeing a run for president, where an appeal to moderate voters would be required for success in a general election.

Democrats began with a two-pronged approach from Sens. Sheldon Whitehouse (D-R.I.), perhaps the upper chamber’s most vocal advocate of combating climate change, and Brian Schatz (D-Hawaii), who has focused heavily on the issue since joining the Senate in late 2012. Whitehouse’s amendment simply said that climate change is "real" and "not a hoax." Schatz went further and declared that human activity is "significantly" to blame for a changing climate, based on excerpts from the State Department’s environmental review of KXL’s permit application.

When Republicans saw the Whitehouse amendment, which did not mention humanity one way or another, "We said this is perfect; this is a gift," an aide recalled later.

Just before the vote, the chamber was buzzing with anticipation. It was clear Republicans had something up their sleeve, but no one was sure what it was. Then, Sen. James Inhofe (R-Okla.), author of a book called "The Greatest Hoax: How the Global Warming Conspiracy Threatens Your Future," took the floor.

"I ask unanimous consent that I be added as a co-sponsor to the Whitehouse amendment," the chairman of the Environment and Public Works Committee said, pointing to "archaeological" and "biblical" evidence that the climate has always changed over time. The hoax, Inhofe said, is anyone thinking human activity has any appreciable effect.

As senators went to cast their votes, Inhofe handed out cards his staff had prepared outlining his argument against EPA rules on greenhouse gas emissions and other air pollutants while also urging support for the Whitehouse amendment.

The Whitehouse amendment ended up passing 98-1, with Mississippi Republican Sen. Roger Wicker the lone dissenter. Wicker said he had warned Inhofe ahead of time that he disagreed with the tactic, worrying that the vote could lead Democrats to claim wider support than truly exists for various climate policies.

"We had a few light moments wherein I told him I had managed to find a way to get to his right on the issue of climate change," Wicker said in an interview last week.

Schatz’s amendment proved tougher for Republicans to respond to, including apparent divisions over how far to go in acknowledging a human role. Sen. John Hoeven (R-N.D.) ended up offering a last-minute side-by-side amendment that cut out the word "significantly" and quoted from sections of the KXL review emphasizing pipelines’ smaller greenhouse gas footprint compared to other modes of transporting oil. But it still acknowledged at least some link with human activity.

Murkowski and the Republican leaders had planned to oppose the Schatz amendment on the grounds that divisions remain over how much humans are to blame and therefore it would be too much to declare human contribution significant. But some moderate senators wanted more of a middle ground between the Schatz and Inhofe positions and sought out Hoeven to give them that option, sources familiar with the debate said.

The gambit may have backfired, as Hoeven ultimately was forced to vote against his own amendment in order to keep it from getting 60 votes, reasoning that its attachment would act as a poison pill to the underlying KXL bill — on which he also was the lead sponsor.

Democrats were quick to coin a new term — "Hoevenize" — to describe when someone would have to reverse course so quickly. Even some Republicans took to the joke, asking about this or that Democratic amendment, "Are we coming up with a side-by-side, or does that Hoevenize it?"

Hoeven’s amendment drew support from 15 Republicans, including potential presidential candidates like Kentucky’s Rand Paul and South Carolina’s Lindsey Graham; freshman Mike Rounds of South Dakota; and four committee leaders: Foreign Relations Chairman Bob Corker of Tennessee, who would have jurisdiction over approval of international climate agreements; Finance Chairman Orrin Hatch of Utah, whose committee oversees tax policy; Armed Services Chairman John McCain, a previous backer of cap-and-trade legislation; and Murkowski.

Five Republicans backed both the Hoeven and Schatz amendments, including New Hampshire’s Ayotte and Illinois Kirk, who face tough re-elections next year.

Democrats remained united behind both the Hoeven and Schatz amendments, although they faced defections later in the week, such as when West Virginia Sen. Joe Manchin (D) voted with Republicans on an amendment to hamper international climate agreements and Sens. Heidi Heitkamp of North Dakota, Claire McCaskill of Missouri and Mark Warner of Virginia joined Republicans in voting to table the Sanders climate amendment.

Still, there was some optimism that the votes established an important foundation for the defenses Democrats will need to deploy throughout the year protecting their No. 1 climate change priority, the suite of rules being implemented or developed by EPA to control power plants’ greenhouse gas emissions as well as related efforts aimed at making cars more efficient to reduce transportation-related emissions and to target the powerful heat-trapping gas methane, which can leak during natural gas extraction.

Substantial support for other measures

While the climate amendments captured the bulk of the attention last month, the marathon series of amendments also clarified senators’ positions on a few other issues and demonstrated supermajority support for proposals related to energy efficiency, reauthorization of the Land and Water Conservation Fund and closing a tax loophole that spares oil sands producers from contributing to a spill liability trust fund.

The spill loophole was a frequent target for Democrats, who argued that it was unfair for oil sands production to not be subject to an 8-cent-per-barrel tax for the spill liability trust fund, especially given the unique nature of the crude that would make up the bulk of KXL’s more than 800,000-barrel-per-day load.

Murkowski offered a nonbinding "sense of the Senate" amendment acknowledging that the loophole should be closed. That passed 75-23 — with 30 Republicans voting in favor — but several Democratic amendments attempting to actually impose the liability tax on oil sands were voted down.

Actually changing the tax law on the KXL bill would have put the bill on a collision course with a House "blue slip" that could have sunk the overall pipeline legislation, because anything dealing with taxes or spending must originate in the lower chamber, Murkowski warned. But she said she discussed the underlying issue with Energy and Commerce Chairman Fred Upton (R-Mich.) during the Republican retreat last month and is optimistic that legislation could move later in the year.

Democrats also used the debate to highlight issues related to pipeline safety, an issue Michigan freshman Sen. Gary Peters (D) campaigned on amid local concern surrounding a 50-year-old pipeline that runs under the Mackinac Straits between the state’s two peninsulas. Peters offered an amendment to establish additional requirements for the Pipeline and Hazardous Materials Safety Administration to certify and study proposed pipelines.

The Peters amendment only won 40 votes — gaining support from Republican Kirk while losing a half-dozen Democrats — but he and Murkowski said it sparked a conversation they hope can lead to new legislative work later this year.

"I had some discussions with her afterward," Peters said. "I think she’s open to talking about that."

The amendment debate also demonstrated that at least 62 votes exist for reauthorizing the land and water conservation fund, although Sen. Richard Burr’s amendment to do so was not ultimately attached to the bill. The North Carolina Republican would have permanently reauthorized the LWCF, which expires in September, and set aside some of the funds to increase recreational access to public lands.

But Republican leaders ultimately persuaded three of their members to switch from "yes" to "no," keeping the amendment one vote short of passage, an outcome they feared could have made it impossible to get the amended bill through the House (Greenwire, Jan. 29).

Wild card

One wild card on the Republican side of the aisle was Texas Sen. Ted Cruz, another likely presidential candidate. Cruz floated three amendments early in the debate, one of which was especially disconcerting to his GOP colleagues: a proposal to lift the decades-old ban on exporting crude oil.

Murkowski took it largely upon herself to elevate the crude export ban as an issue last year, but she has been adamant that legislation would be premature at this point. Oil industry supporters of lifting the ban also worry about the possibility of backlash over gasoline prices and have been working deliberately to make the case that exports would be good for consumers. Several studies have been released in the last year showing a link between exports and reduced prices, but substantial work remains to continue building support for the proposal.

When House and Senate Republicans were meeting in Hershey, Pa., last month for their annual retreat, House Energy and Commerce Chairman Upton pulled Murkowski aside and issued a warning.

"Just know that if [Cruz] offers it and it fails, it’s done," Upton told her, according to his later recollection.

Cruz ultimately was persuaded to drop the crude export amendment after Murkowski told him she planned to hold committee hearings on the topic. He also dropped an amendment that mirrored legislation Hoeven introduced last year to make it easier to build cross-border pipelines. But Cruz did secure a vote on his amendment to accelerate exports of liquefied natural gas (LNG).

The amendment was far broader in scope than a bipartisan LNG bill making its way through the energy committee. Cruz would have eliminated the Department of Energy’s role in determining whether there is a national interest in LNG exports as long as the gas would be sold to a member of the World Trade Organization. The committee bill from Sens. John Barrasso (R-Wyo.) and Martin Heinrich (D-N.M.) would merely set a deadline on DOE to make a decision.

Cruz’s amendment failed 53-45, with Heitkamp and Sen. Susan Collins (R-Maine) as the only members to vote against the majority of their caucuses. But supporters are optimistic that the deadline-setting bill has significantly broader support. A similar bill passed the House last week, without drawing a veto threat from the White House, and Heinrich said he believed enough Senate Democrats would soon come on board to get it through the upper chamber. But Murkowski said it was not yet decided whether McConnell would bring the LNG bill to the floor as a stand-alone measure or wait until it can become part of a larger energy bill later in the year.

The very first amendment added to the KXL bill came from Portman and Sen. Jeanne Shaheen (D-N.H.). It was a slimmed-down version of a modest efficiency bill the pair offered up last year, and its 94-5 passage demonstrated a strong potential for efficiency legislation to move later this year, despite the veto that awaits this particular bill. Collins also secured an amendment via voice vote aimed at boosting efficiency in school buildings.

"I really am happy that a bunch of votes happened on energy efficiency, and you can just see that there’s a lot of agreement on it," Cantwell said in the interview.

The debate also featured votes on such perennial issues as the production tax credit, with a nonbinding Heitkamp amendment for a five-year extension drawing 47 votes in support, and renewable energy more broadly. Sen. Tom Udall (D-N.M.) debated throughout the process over whether to offer his nonbinding amendment proposing a 25-percent-by-2025 renewable energy standard but ultimately decided to put it up for a vote on the final day of consideration, when it failed 45-53.

Despite the losses, clean energy supporters were encouraged by the results, which demonstrated that Democrats would have enough support to filibuster a tax bill that did not extend the PTC and brought renewed attention to broader priorities like the RES that have not received much debate at the federal level in recent years.

"I feel like this next phase [of the year], tax reform starts and we’re going to talk about an energy bill at the same time, there’s an intersection and opportunity on the energy tax credits," Cantwell said. "In the debate, we learned some things about where our colleagues were on a path forward they can agree on, and I think that’s helpful."