Speculation continues regarding whether the government will face a shutdown once fiscal year (FY) 2013 funding expires on September 30, 2013. The House, originally scheduled to be out this week, will return late on Wednesday. The lower chamber passed House Joint Resolution 59 late last week, which funds the government through December 15, 2013 but also defunds the 2010 Affordable Care Act (commonly known as “Obamacare”) (P.L. 111-148; P.L. 111-152). Passage of the stop-gap measure temporarily held the House GOP caucus together. The Senate is certain to reject it and will probably send a “clean” government funding measure back to the House. This circumstance assures a difficult week for House leadership, who likely will struggle to keep at bay conservatives who oppose any stop-gap funding measure that does not defund the President’s health care reform law. If leadership decides to bring to the House floor the Senate’s “clean” continuing resolution (CR), they will have to rely on Democratic support for passage, a step the GOP leadership seeks to avoid because it violates a GOP caucus tradition known as the “Hastert Rule,” which requires that only bills with majority support from the majority party are considered on the House floor. Further, House Democratic leaders have indicated they will leverage their position to restore funding cuts made as a result of sequestration. The CR maintains government funding at the existing level of $986 billion. Finally, Speaker Boehner (R-8-OH) could ask House Republicans to modify the Senate’s “clean” CR and send it back to the Senate resulting in a legislative “ping-pong” scenario with both chambers trying to make sure that they are not the one holding the spending bill on October 1, 2013.
Separately, but importantly, House leaders could also unveil legislation this week that would extend the debt ceiling past the 2014 mid-term elections. GOP conservatives will probably attempt to attach defunding of the Affordable Care Act to this measure as well. In addition to raising the debt limit for a year and including mandatory spending program funding cuts, the bill, could also include tax reform measures in addition to other energy provisions. The tax provisions could mirror a measure, which passed the House in 2012, that included two tax brackets, one for 10 percent and one not higher than 25 percent and also a tax revenue goal that did not exceed 19 percent of GDP. This same bill was not considered by the Senate.
EPA Issues Proposed Carbon Emission Standards for New Power Plants
Consistent with the schedule laid out in the President’s June 2013 Climate Action Plan, Environmental Protection Agency (EPA) Administrator Gina McCarthy announced on Friday, September 20, the Agency’s re-proposal regulating carbon dioxide (CO2) emissions from new electric generating units (EGUs) under the Clean Air Act’s New Source Performance Standards (NSPS). The proposed NSPS standard replaces EPA’s April 13, 2012, proposal, which EPA will rescind at the same time it publishes the revised proposal. As reported in last week’s Washington Energy Update, the revised proposal includes separate standards for coal-and natural gas-fired EGUs. The proposal maintains strict emissions limits for coal-fired EGUs that will require carbon capture and storage (CCS) for any new coal-fired facility. Specifically, the re-proposed standard is very close to the original standard, which called for a standard of 1,000 pounds of CO2 per megawatt hour (lbs CO2/MWh) for both coal and natural gas. Under the revised rule, coal-fired EGUs, petroleum coke-fired EGUs, and integrated gasification combined cycle units currently covered by NSPS subpart Da (Electric Steam Generating Units) will be subject to an emissions limit of 1,100 lbs CO2/MWh, based on a 12-month rolling average compliance period.
EPA is also proposing an alternative standard between 1,000 and 1,050 lbs CO2/MWh based on an 84-month rolling average compliance period. EPA asserts that “partial” CCS will be necessary to achieve either standard. See Sidley’s Environment Update for more detailed information.
Predictably, Republican policy makers, and some Democrats (Senator Manchin (D-WV)), responded to the announcement with strong statements against the proposal. On the Senate side, Senate Minority Leader McConnell (R-KY), indicated he would file a Congressional Review Act (CRA) resolution of disapproval in an effort to nullify the proposal. Procedurally, a rule can be nullified if both congressional chambers of Congress were to adopt such a resolution pursuant to a simple majority vote. Realistically, passage of a CRA resolution is unlikely given the current make up of the Congress, and Congress’s inability to override a certain Presidential veto, were such a CRA to make it to the President’s desk. A CRA resolution of disapproval has only been adopted once since its inception. On the House side, Energy and Power Subcommittee Chairman Ed Whitfield (R-KY), head of the subcommittee with House jurisdiction over Clean Air Act-related issues, has also indicated his intent to quickly hold hearings on the proposal and take “every step possible” to prevent the advancement of the regulation.
Senate Unlikely to Consider Energy Efficiency Bill This Week; Measure Remains Stymied
Having taken up, in early September, the first energy bill the Senate has considered in six years, the Senate’s consideration of the Energy Savings and Industrial Competitiveness Act of 2013 (S. 1392), was quickly halted when Senator Vitter (R-LA) objected to further proceedings without assurances of a vote on his proposal to adjust how the health reform law applies to congressional staff and various other government officials. This past week an agreement was reached that would have allowed a vote on Vitter’s amendment to go forward. The bill hit an additional roadblock, however, after Republicans called for votes on other non-germane amendments that addressed health care reforms and other amendments designed to limit EPA’s regulatory authority. With the Senate focused on fiscal related issues, the bill is unlikely to be considered this week. There is also a broader question of whether the bill will be brought back up for consideration given the difficulty of reaching an agreement that would limit the amendments to be considered on the measure. S. 1392, a bi-partisan bill with industry and environmental group support, is designed to update energy efficiency regulations in state building codes and incentivize energy efficient manufacturing.
Nominee to Chair the Federal Energy Regulatory Commission in Trouble
Amidst controversy surrounding recently released emails between Ron Binz, and various Democratic operatives, Binz came before the Energy and Natural Resources Committee last week and did not appear to move Members in his direction. None of the 10 Republicans on the panel will support him; further Senator Manchin has indicated he will be a “no” vote as well. Insiders believe that the current vote count is 11-11, in which case his nomination could be reported by the Committee with the notation “reported with a neutral recommendation” or should another Democrat vote no, Binz could still be reported albeit with a “negative recommendation.” Procedurally, whether the committee votes out the nomination is contingent on a majority vote to do so. Should Binz succeed, Senate Majority Leader Reid (D-NV) could still bring up the nomination for a vote, although in every other similar instance in the past, the nominee was unsuccessful. Senate Minority Leader McConnell has indicated his opposition to Binz, indicating a potential Republican push for a cloture motion that would require a 60-vote threshold. Binz will have until later this week to respond to post hearing questions and the committee business meeting, at which a vote will be taken, could occur as early as the first week of October.