Air Pollution

EPW Committee staff director Wheeler discusses prospects for 'Clear Skies' bill

Senate Environment and Public Works Committee majority staff director Andy Wheeler discusses the move for a markup of "Clear Skies" legislation, prospects for breaking the rumored 9-9 split in the EPW panel and getting 60 votes on the floor, and the chances of including CO2 cap language in the legislation.


Colin Sullivan: Welcome to OnPoint. I'm Colin Sullivan. Today we're joined by Andy Wheeler, the majority staff director for the Senate EPW Committee and Darren Samuelsohn, the senior reporter for E&E Daily and Greenwire. Mr. Wheeler thanks for being here.

Andy Wheeler: Thank you for inviting me in today.

Colin Sullivan: Sure. Bridging a pivotal lead for the president's Clear Skies initiative in the EPW Committee, you have a scheduled markup on Wednesday. Is that markup going to go forward? You've also said that you need to move that bill either out of committee or out of the Senate before the Easter recess. What's the timetable? Are you going to stick to that timetable?

Andy Wheeler: Yes, we are going to stick to that timetable. The important date is that we have to have the bill out of committee before the mercury and the CAIR rules go final on March 15. So in order to get this bill done and the highway bill done this month, we have to markup Clear Skies this week.

Darren Samuelsohn: Andy, what's different than two weeks ago when you had planned to markup, brought everybody into the room, members came in and then you stepped out and then you came back and you announce two weeks of postponement. What's happened in the last two weeks with different? Why hold the markup now?

Andy Wheeler: The Democrats requested that we postpone the markup to give both sides some time to talk over the issues to see if we could reach some common ground. There was a members meeting the day after the scheduled markup two weeks ago and we have another members meeting scheduled tomorrow and hopefully by that point we're breaking the logjam and we can move forward with the markup and report the bill out of the committee favorably.

Darren Samuelsohn: A members meeting tomorrow? So Tuesday you're going to be meeting, everybody's coming together and you're going to be sitting down talking about the bill --

Andy Wheeler: Yes.

Darren Samuelsohn: Will staff be in the meeting or is it going to be pretty much members only?

Andy Wheeler: At this point, I would say probably no staff, but that's of course, a member's call.

Darren Samuelsohn: OK. In terms of members, you're not in the room, but members are talking about Clear Skies. I mean, can you give any sense, what are they talking about? Are they actually negotiating? Are they saying, you take this and I'll take that? How does that --

Andy Wheeler: Well, we certainly hope so. Senator Inhofe and Senator Voinovich, Senator Inhofe being the chairman of the committee and Senator Voinovich the subcommittee chairman, have certainly acknowledged that they can move off of the original Clear Skies as introduced, which was, as you saw in our chairman's mark and also in the first-degree amendment that we filed before the markup last time. Just about every issue is on the table, and we're very interested to see what other members need in order to vote for the bill.

Colin Sullivan: There's been a widely reported rumor that there was going to be a 9-9 tie in committee if you had voted two weeks ago. So some of the members, it had been reported, that you might be trying to take off are Baucus, Chafee, Obama, all on the committee. Can you give us any kind of, first of all, are those the members that you're targeting? And secondly, can you give us any kind of indication what specific compromises you might be floating with those specific members?

Andy Wheeler: Over the last week and a half we've been meeting with all the members of the committee who want to sit down and meet with us and I believe that every Democrat on the committee and also Senator Jeffords, the independent, have had staff in those meetings at one point or another. We are willing to talk to all of them and any of them as we have been throughout the entire process. We are not specifically sitting down with one member or two members, but there are of course, from what I've read in the press, several of the members are more likely to vote for something less than mandatory CO2 for example, which seems to be a sticking point with several of the Democrats on the committee.

Darren Samuelsohn: That's been something that we've been hearing over the course of the last couple of weeks. Senator Baucus has said he's not wedded to a CO2 cap.

Andy Wheeler: Yes.

Darren Samuelsohn: Senator Chafee's chief of staff said that last week as well, but then they also say, it's sort of an important caveat, is for Baucus, who was the conference chairman in 1990 of the Clean Air Act, he doesn't want to see what he wrote in 1990 get pulled back and Senator Chafee has said that he doesn't want to see some of the pieces to the Clean Air Act removed. I mean, are those things on the table as you're in these negotiations, like New Source Review, toxic requirements for industry and those kind of things?

Andy Wheeler: Well, everything is on the table, but I think you have to remember that the purpose, and why we're moving forward with multi-emissions legislation, is to take the lessons learned from the 1990 amendments and how those amendments have played out over the last 15 years. The most successful part of the 1990 amendments was the acid rain program, the cap-and-trade program for acid rain. What we're trying to do here in multi-emissions is to take that program and apply it to the rest of the utility emissions, which is the important thing for people not to forget on why we're moving forward on multi-emissions. It doesn't really makes sense to just set a new cap without taking away some of the regulatory burdens so that industry can pick whatever technology they need in order to reach those reduction targets in the time that we give them. This is the whole point of moving forward with multi-emissions, is to give some regulatory flexibility. So we're moving away from the command and control the mindset from the 1970s and moving it up into the next century, which is cap-and-trade on the model of the acid rain program.

Darren Samuelsohn: Litigation aside, can you guarantee that whatever bill, if it comes out of your committee, is going to reduce emissions compared to current law?

Andy Wheeler: Our current bill as written will reduce emissions as opposed to current law. I don't think you can just set aside litigation. There was a recent decision last week on the WRAP [Western Regional Air Partnership], which totally throws that whole process back into question again. Every aspect of the Clean Air Act has been litigated and relitigated and continues to be litigated, except for the acid rain program, which is why if we were to take that program and expand it to all the utility emissions we would get much greater reductions faster.

Darren Samuelsohn: I just want to keep on this for one second, on the litigation point. We've had Frank O'Donnell on the show and I've heard from environmentalists as well who say industry is just as responsible for litigation though as environmental groups. In fact, they say environmental groups are trying to force EPA to put things into place that the Clean Air of 1990 amendments called for, whereas, industry has been trying to slow things down. Litigation is coming from both sides at EPA --

Andy Wheeler: It is and that's an important point. It's coming from both sides not just industry, but also the environmentalists. You also have some state litigation as well, but most of it, industry and environmentalists.

Darren Samuelsohn: But where you're talking about environmental groups or from states, they're pushing EPA to, I guess, enact things from the Clean Air of 1990 amendments. Where mostly it seems like from industry things have been coming from the other direction where they're saying, hold on a second. We want you to study things more, etc., etc. I mean, isn't the litigation argument sort of more in favor of where the Democrats and the environmentalists, I guess, and the people who are trying to keep the Clean Air Act as it stands?

Andy Wheeler: Not necessarily and I think the Mercury MACT, when it comes out March 15, I'd be very surprised if environmentalists don't sue under that. They seem to believe you can get 95 percent reduction and there's no technology out there right now that'll get 95 percent. If they follow the rhetoric they've been saying over the last couple of years, if it's not exactly 95 percent reduction, immediately, they will probably sue under that regulation.

Darren Samuelsohn: OK.

Colin Sullivan: Now if those rules are enacted, the 15th, mercury and then possibly CAIR after that, does that undercut your legislation completely? If you haven't moved out of committee and you haven't moved off the Senate floor, does that mean, or do you go forward with the legislation at that point despite the role enactment?

Andy Wheeler: If we have the bill reported out of committee, by March 15, I think we can go forward on the floor. I think if we have to wait until after March 15 then we'd have to take a complete look at the regulation and then you'd have fallout from the lawsuits and I think we'd have to pretty much start over again in the committee if we were to postpone markup until after the 15th.

Colin Sullivan: OK. Even if you do go to the Senate floor and maybe you go to the floor with a 10-8 voting committee, which gets it out of committee, what does that say about your chances on the floor? I mean, you probably don't have 60 votes. Have you done a whip count on whether or not you have 60 votes on the Senate floor?

Andy Wheeler: We've not done a whip count yet, although we have been approached from Democrats who are not on our committee who are interested in the legislation, and no I won't name names as far as who those might be, but I think there will be broad support outside of the committee to bring the bill up on the Senate floor.

Darren Samuelsohn: One of the criticisms, I guess, of Senator Inhofe has been not bending in being open to kind of trying to get large majorities, I guess, through, getting bills through with large majorities and people have said that past environment public works committee bills, going back, I guess, to the 1990 amendments, moved with larger majorities. I mean, if you had to move it, 10-8 or 11-7, does that send a signal, I guess, that this has been a partisan process as opposed to some of the bipartisan processes before?

Andy Wheeler: Well first of all I would take issue with Senator Inhofe being able to bend. If you look, if you remember back to the brownfields debate, he for years said that if we are going to do anything on Superfund it had to have liability reform. He saw that liability reform was a point that the Democrats could not agree on and the brownfields was important to move forward, so he went ahead and voted for the brownfields bill in committee and that came out in broad bipartisan support. We are asking for the same thing on the CO2 issue. CO2 is much like Superfund liability reform. It is a poison pill. Everybody agrees that we need to reduce the three pollutants, NOX, SO2 and mercury. CO2 is a poison pill. He has been willing to bend on the CO2. He has said that he will come off with absolutely no CO2. We are waiting to see what people who want something on CO2 are willing to offer, but he certainly has moved already quite a distance that nobody else expected him to do.

Colin Sullivan: So you haven't seen language from Senator Lincoln Chafee on CO2, in terms of what he's willing to accept? You haven't seen an actual proposal?

Andy Wheeler: No, at this point we've not seen any actual proposals.

Darren Samuelsohn: For Senator Inhofe, on CO2, it seems like it's purely something that, he questions the science behind climate change.

Andy Wheeler: Absolutely.

Darren Samuelsohn: Where you have someone like Senator Voinovich who is open to things like registries, or at least he said that he's willing to move. I mean, is there a disconnect between those two senators in terms of their beliefs on CO2 and climate change and how does that influence, from the Republican side, how things are moving forward?

Andy Wheeler: I don't believe there's a disconnect at all and as you know, I did work for Senator Voinovich at one point, neither Senator Voinovich or Senator Inhofe would support mandatory CO2. As far as what they would be willing to accept in order to move the bill forward, we're still in discussions with the Democrats and Senator Chafee and other interested people as far as what they would want to see, short of mandatory CO2.

Darren Samuelsohn: Questioning the science behind CO2, from Senator Inhofe's perspective, does that limit his interest? I mean, in even talking about the issue of, I guess, some people would say that it opens the door to doing a registry system. Does that scares Senator Inhofe to --

Andy Wheeler: Well registry would not be our first choice as far as how to deal with this issue. I think you saw our first choice two weeks ago when Senator Inhofe and Senator Voinovich suggested incentivizing IGCC technology. There's a big difference between incentivizing a technology like that that will have real pollution control aspects and as technology that we export to Third World nations, will help clean up not just CO2, but will help clean up NOX and SO2 emissions as well in countries like China or India. So that would be our first preference. We don't think a registry would be that good of a program because we don't believe that we'll ever be at a stage where we have a mandatory CO2 program in this country.

Colin Sullivan: If you do come up with compromise language that's acceptable to say Senator Lincoln Chafee or Senator Max Baucus what assurance do they have that that bill, even if it passes the Senate, won't get watered down in a conference committee with the House?

Andy Wheeler: We can never give 100 percent assurances. What Senator Inhofe has always said is that he will always argue the Senate position in conference. So if the Senate speaks and the Senate has a provision on a registry or on IGCC technology he will argue that in the conference committee.

Colin Sullivan: Don't you think that Senator Lincoln Chafee might want a stronger statement than that? If you're going to go to conference with the House and he's going to say, well I'm not going to support this bill in committee unless you say to me this is the least threshold that we're going to support going to conference.

Andy Wheeler: Well, that would of course be a member-level discussion, but I don't think any committee chairman would give an absolute guarantee that this bill will die if X is not agreed to in conference. We don't know what the House would pass in order to get to conference. In fact, they could do something on CO2 that Senator Chafee might like better than what we would have in the Senate bill. But Senator Inhofe's position has been and always will be that he will argue the Senate position in conference and fight to keep those provisions intact.

Darren Samuelsohn: Another key point too, if we get to this point, is the White House's position and where are they? Obviously, we're a long ways away from being in conference negotiations, but the bill that is right now out there is not the same Clear Skies bill that was originally introduced, I think, three years ago by Senator Smith. Do you have any indication, as things have changed over the course of the couple of years, that the White House is supportive of you as you go forward, as things change, as negotiations happen. When it comes down to it, would President Bush sign probably what Congress is finished with?

Andy Wheeler: Well, again, I can't speak for the White House, but I would certainly hope so and I don't have any reason to doubt otherwise. We have been working closely with the administration on the different iterations of the bill as we've gone forward and we believe that what we've put into the bill is very close to what they asked for and what they continue to ask for. I believe the statements for Mr. Connaughton, Chairman Connaughton, at the hearing that we had speak to that as well, that they are supportive of our bill in the bill moving forward.

Darren Samuelsohn: Is there a point in time when legislation moving through the 109th Congress, big controversial legislation, can't go any further, particularly with the president in his second term and politics start to pick up again with midterm elections and a presidential election, I guess, four years away.

Andy Wheeler: No, absolutely, I think environmental issues in particular are very controversial in an election year, so I would think that this bill would need to be finished before we go into the election year, the midterm elections, which is one reason we notified Senator Jefford's staff this past November that we will be marking up Clear Skies in February. So that we could get it out of committee early, so that we could get some floor time and get it to conference. I think we have to get it on and off the floor before the Senate starts considering all the appropriation bills this summer.

Darren Samuelsohn: Another piece to this, last week, I guess, a couple of weeks ago there was a group STAPPA and ALAPCO, they came out and they released some information, we talked about this, claiming that Senator Inhofe was intimidating their ability as they question Clear Skies. You've responded that we're conducting a much larger grant management investigation of STAPPA, but just for the record, is Senator Inhofe, is he trying to intimidate particularly?

Andy Wheeler: Absolutely not. We started looking at STAPPA and several other state organizations last May, May of 2004. We'd had several requests, EPA for information. When Senator Jefford's staff informed us that they wanted to invite STAPPA to testify, we told them that we would be asking questions about their finances and the way they reached their decisions. We asked those questions and I think if we were to stop an investigation simply because somebody calls the group in to testify on another issue, we would be remiss in our duties. STAPPA receives apparently all if not, most if not all of their funding from the U.S. taxpayers. That is part of our legitimate oversight activities on grant oversight. It has nothing at all to do with Clear Skies.

Darren Samuelsohn: OK.

Colin Sullivan: If we can move on to the highway bill, there's other things going on in the EPW Committee besides Clears Skies, even though we're focused on that today. Senator Inhofe, is he going to support going forward with a $284 billion bill that the White House and the House support? He's been quoted as saying that's inadequate. There's been some rumors that if you go to the Senate floor with a $284 billion highway bill there's going to be all kinds of amendments to try to bump that up, maybe beyond the $300 billion ceiling. So is that the bill that Senator Inhofe will support once you go to highways?

Andy Wheeler: We do intend to mark up a highways bill before Easter recess and it's Senator Inhofe's intention to introduce a markup of the bill at the president's number. Once the bill goes to the floor we don't know what may or may not happen as far as the funding level. I think it's far too early to see how that will go. I think a good bellwether will be the budget debate on the Senate floor in three weeks. But we are committed to moving the president's number through committee and taking that bill to the floor.

Colin Sullivan: Can that bill with that number pass the Senate? Is that too low?

Andy Wheeler: I think it's possible. I don't know if you remember back seven years ago in the last highway bill, the bill that was reported out of the EPW Committee was significantly increased on the Senate floor. That could happen again this time. I don't know where the votes are.

Darren Samuelsohn: After Clear Skies and after transportation, which you've said kind of are on a pretty tight timeline with March --

Andy Wheeler: Yes.

Darren Samuelsohn: You've got several more months ahead. I'm just kind of curious, what else do you see on the environment, what are the works committee's agenda for the rest of the 109th Congress?

Andy Wheeler: We'll be looking at the Water Resources Development Act. We got very close to passing it last year. We're going to pick up where we left off with the water bill. In addition, we'll be turning to oversight and looking at some of the grant oversight that we started last Congress. We had two different reports issued last Congress, and I expect we'll have additional hearings and potentially more reports this year.

Darren Samuelsohn: And you could still be focused on Clear Skies over the course of the next couple of months, even though --

Andy Wheeler: Well of course, I mean, you said within the committee.

Darren Samuelsohn: Sure.

Andy Wheeler: We'll of course have the highway bill on the Senate floor, the Clear Skies on the Senate floor at some point and then go into conference, hopefully, on both of those. That will take considerable time as far as the committee process itself. We also want to take a look at the Endangered Species Act.

Darren Samuelsohn: OK.

Colin Sullivan: Andy Wheeler, thanks for being here today. Darren Samuelsohn thanks again. Join us tomorrow for another edition of OnPoint. Until then I'm Colin Sullivan for E&ETV.

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