In order to appreciate the challenge of shepherding measures through the American legislative process that would constitute a “comprehensive” approach to climate change and clean energy, it is necessary to keep in mind that 6 US Senate committees have jurisdiction over aspects of the climate change issue: Energy and Natural Resources, Environment and Public Works, Agriculture, Commerce, Finance and Foreign Affairs. Hence the decision of US Senators Kerry and Lieberman, following the demise of the climate bill championed by Senate Environment Committee Chairman Barbara Boxer of California, to work outside of the Committee process in order to broaden the basis of support for comprehensive climate legislation within the Senate. Hence as well the delicate dance that must be performed, and the due deference that must be displayed, by Senators Kerry and Lieberman as they bring a 900-plus page “discussion draft” of their American Power Act back into the Committee process.

For example, understanding the sensibilities within the Senate legislative process makes more understandable the existence of a myriad of blank square brackets in the discussion draft, particularly taxation matters within the purview of the Senate Finance Committee chaired by Senator Baucus of Montana.

To fully appreciate the American approach to climate change and clean energy, it is also necessary to read the draft legislation just unveiled by Senators Kerry and Lieberman in conjunction with other bills.

One is the Energy Independence and Security Act of 2007 (EISA). EISA is the legislative foundation for the updated Renewable Fuels Standard for liquid biofuels (RFS2) that was recently unveiled by the Environmental Protection Agency (EPA). EISA is also the source of certain statutory definitions of greenhouse gas lifecycle emissions that will influence the eventual determination of “carbon content” levels in various transportation fuels, as required in the provisions of the American Power Act relating to the allowance system for refined petroleum products.

A second important piece of legislation to keep in mind is the American Clean Energy Leadership Act (ACELA) passed in June of 2009 by the Senate Committee on Energy and Natural Resources that is chaired by Senator Bingaman of New Mexico.

When Democratic Senate Majority Leader Reid talks of placing “clean energy” or “energy-only” legislation on the floor of the US Senate, rather than the American Power Act, he is referring to Senator Bingaman’s ACELA, which focuses on a variety of “popular” subjects, like the promotion of renewable energy and energy efficiency measures. A central concept within the ACELA is the creation of a national Renewable Electricity Standard (RES) requiring increased use of “renewable” energy, such as wind and solar power. (Currently, there are a number of relatively similar, but different standards in various states).While the American Power Act speaks in broad policy terms of the importance of mandates for renewable energy, and proposes a variety of fiscal measures to promote the development of nuclear and “clean coal” power generation, Senators Kerry and Lieberman have been careful to respect the jurisdictional turf of Senator Bingaman and others on the Energy and Natural Resources Committee and have not sought to usurp their role as the lead actors or champions of renewable energy and efficiency.

In short, it would appear that Senators Kerry and Lieberman are taking great care to ensure, in general, that no Senator feels threatened by their initiative; and in particular, that Senator Bingaman and his Energy committee colleagues see them as allies in a common cause – not as rivals.

Put another way, it appears reasonable to expect that the ACELA as passed by the Senate Energy Committee will either (i) move forward as a complement to the American Power Act (contents still-to-be-determined) within a truly comprehensive American approach to climate change, with political credit and concessions having being distributed as necessary to secure legislative passage of the latter; or (ii) enter 2011 as “stand-alone” legislation (or perhaps more accurately, as “last statute standing”) that will complement not the American Power Act, but new EPA regulations requiring large stationary emitters to reduce their GHG emissions through the use of best commercially available technologies.

Conveniently, and perhaps not coincidentally, a reminder to Senators that the real choice is not “legislation or no legislation” but rather “legislation or regulation” was issued one day after the unveiling of the draft American Power Act, when the EPA released its final “tailoring” rule designed to shield small emitters from rigid Clean Air Act regulations that are on track to commence in 2011.