Outlook 2006: Legislative Progress Unlikely, though Midterm Elections May Provide Needed Attention

by Jaydee Hanson

The second session of the 109th Congress will likely wrap some of its most significant environmental legislation into budget bills. The prospect of passing improvements in existing environmental law is slim. Moderate Republicans hold the key to preventing the watering down of major environmental initiatives.

Final 2005 Actions of Congress

Congress wrapped up its first session late, meeting until December 22. After a dramatic filibuster vote, the Senate removed language calling for drilling in the Arctic National Wildlife Refuge1 from the Defense Appropriations bill 2 (HR 2863). Congress passed that bill, adjourned, and went on recess until late January.

Sen. Stevens (R-AK), chair of the Appropriations Committee, added Arctic drilling to the must-pass Defense bill, after House Democrats and moderate Republicans defeated attempts to include it in the budget reconciliation bill. After a vote to end the filibuster of the Defense bill fell three votes short of the 60 needed, the Senate voted to remove the drilling provision, 48-45, so the Defense bill could be approved.

Senate Energy and Natural Resources Committee chair Domenici (R-NM) said he plans to include the provision in the FY07 budget, where only 51 votes are needed for passage.

Also on December 22, the Senate narrowly approved a budget reconciliation bill after making alterations to the measure that will require another vote in the House in early 2006. (The House must approve budget bills first; they approved the bill Dec. 19, 212-206). Vice President Cheney cast the deciding 51st vote for the Senate bill, which has $39.7 billion in spending cuts, including $2.7 billion to agriculture and conservation spending. Many damaging provisions were removed from the final bill, however, including ones that would have opened the Arctic to drilling, encouraged offshore oil exploration and development, and allowed the federal government to sell off up to 350 million acres of public lands for private development.

NEPA

The National Environmental Policy Act (NEPA), passed by Congress and signed into law by President Nixon, is the backbone of U.S. environmental law. The phrase "environmental impact assessment" literally entered the English language through the requirements of this seminal law.

On December 21, a House Resources Committee task force finally released a long awaited report proposing a set of 22 recommendations to update the 35-year-old National Environmental Policy Act. The task force, chaired by Rep. McMorris (R-WA), held a series of field hearings during 2005 that were widely criticized for failing to consider input from NEPA supporters and for stacking hearings with NEPA critics. Many of the 22 recommendations for legislative and regulatory action are similar to ideas that House Republicans have advanced in recent years to limit NEPA's scope. The House Resources Committee is expected to issue specific proposals based on the task force's recommendations as early as February. Watch for fierce debate over these proposals, which will probably end in late session Senate filibusters to prevent the weakening of this key law.3

Endangered Species Act (ESA)

The Senate stands poised to consider ESA reauthorization following House passage of HR 3824, the Threatened and Endangered Species Recovery Act (TESRA) introduced by Chairman Pombo (R-CA) of the House Resources Committee.

Rep. Pombo's bill was put on the fast track through the Resources Committee and the House floor, following the breakdown of negotiations with Ranking Member Rahall (D-WV). The final legislation was circulated September 19, 2005, with a legislative hearing two days later and a mark-up the day after that. On September 29, just 10 days after its introduction, the House approved Pombo's controversial rewrite, 229-193, significantly closer than Rep. Pombo predicted. At the same time, the House narrowly defeated a substitute bill authored by Reps. Boehlert (R-NY) and Miller (D-CA), by 206-216.

HR 3824 does nothing to improve the current law, and it makes it more difficult to move wild- life along the road to recovery. It requires owners with species on their land to be paid to protect endangered species, forcing wildlife agencies to choose between enforcing the ESA's prohibition against harming or killing endangered species, or writing large checks to developers to obey the law. HR 3824 repeals the ESA's critical habitat provision, without replacing it with adequate and enforceable habitat protection.

The Senate is also looking to legislate on the ESA. Chairman Chafee (R-RI) of the Fisheries, Wildlife, and Water Subcommittee of the Environment and Public Works Committee has held hearings this session, and has called for a Keystone Center dialogue among various stakeholders to provide recommendations for implementing critical habitat. That process has begun; a final report is expected in February.4

Senators Crapo (R-ID) and Lincoln (D-AR), recently introduced5 S 2110, The Collaboration and Recovery of Endangered Species Act (CRESA). Its authors claim CRESA provides new incentives to promote recovery of endangered and threatened species and to enhance the role of states in the recovery. But the bill contains provisions that would undermine or weaken current law, and in doing so actually makes recovery harder. The bill rewrites key provisions of the ESA, including the process for determining critical habitat, providing for recovery, and permitting incidental take. In each case, the bill weakens current law.

The Senate is unlikely to vote on Rep. Pombo's bill itself, but may vote on CRESA, or Senator Chafee may introduce a comprehensive bill of his own. The stakeholder dialogue on critical habitat requested by Senator Chafee will conclude by mid-February; he may introduce a bill which includes those recommendations, parts of CRESA or other provisions.

Given the crippling provisions contained in the House-passed bill, the Senate must proceed carefully with any reauthorization of ESA. Any legislation must explicitly define and provide for the protection and management of habitat needed for species' recovery; ensure that all federal actions are held to a recovery standard; and be based on the best available science. One concern is that legislation coming from the Senate would need to be resolved in conference with the severely flawed House bill. The resulting compromise could do serious harm to America's ability to protect its most vulnerable wildlife.

Climate Change

A growing number of Members of Congress have expressed support for legislation that addresses climate change. While most of the recent debate and action on policy proposals has occurred in the Senate, the House has held several committee hearings in recent years and is expecting more debate at the committee level in 2006.

In the Senate, McCain (R-AZ) and Lieberman (D-CT) offered as an amendment a new version of their Climate Stewardship Act. The new version limits greenhouse gas emissions in the U.S., establishes a market-driven system of tradable credits, and creates new nuclear power subsidies. The amendment to the Energy Policy Act failed 38-60, losing the votes of four Senators who did not want to vote for a measure that contained direct subsidies for nuclear power.

The Senate did support a Sense of the Senate resolution on climate change proposed by Senator Bingaman, which said,

"Congress should enact a comprehensive and effective national program of mandatory, market-based limits and incentives on emissions of greenhouse gases that slow, stop, and reverse the growth of such emissions."

Global warming provisions featured prominently in several amendments in the debate over HR 6, the Energy Policy Act of 2005. Also, for the last several years, the Senate has included in the annual State Department authorization a resolution demanding that the U.S. resume its participation in international talks and negotiations on global warming. This directly rebuts the Bush Administration's decision to withdraw from the Kyoto Protocol and discussions about future international agreements under the auspices of the U.N. Framework Convention on Climate Change (UNFCCC).

In the House, Reps. Gilchrest (R-MD) and Olver (D-MA) introduced HR 759, the Climate Stewardship Act, companion bill to Sens. McCain and Lieberman's original proposal.

While nothing has been scheduled, it is quite possible that the Senate will be faced with another global warming vote in 2006. The most likely legislative proposals to receive a vote are Senators McCain and Lieberman's Climate Stewardship Act, whose authors have vowed to continue forcing votes on the legislation until it passes; and a bill sponsored by Senator Bingaman that would attempt to continue the momentum expressed in the 53 to 44 vote on the resolution.

The U.S. must adopt national global warming legislation now that begins the process of reducing our emissions. This can be done while generating new jobs and promoting economic growth, particularly in the automobile, power generation, and energy efficiency technology sectors. In addition, the U.S. must resume playing a constructive leadership role in the international arena.6

Oceans and Fisheries

On December 15, the Senate Commerce Committee unanimously approved S 2012 7 to reauthorize the Magnuson-Stevens Fishery Conservation and Management Act, the premier law governing management of our ocean fisheries. Spearheaded by Sen. Stevens (R-AK) and Sen. Inouye (D-HI), the bill proposes a number of significant changes to the act, including giving scientific advisory panels an elevated role in domestic fisheries management and strengthening oversight of fisheries and marine resources in international waters. The bill received qualified support from the fishing industry and conservationists, even though it would not require specific annual catch limits based on the number of fish that can be sustainably caught - a proposal explicitly called for by the U.S. Commission on Ocean Policy and strongly supported by the environmental community.

At the markup, Senator Kerry (D-MA) indicated that he would like to work with the Chairman to strengthen the watered-down language before it came to a vote.

In the House, Resources Committee Chair Pombo has indicated that the committee will take up the reauthorization early. He plans to introduce legislation for the committee's consideration. Rep. Gilchrest has also shown an interest in introducing legislation. Rep. Rahall has pushed for inclusion of provisions from his bill enhancing the role of science in fisheries management (HR 1431), and standards for individual fishing quota programs (HR 3278).

The Senate is expected to complete action on Magnuson reauthorization before March. The House will need to reconcile the expected competing bills before legislation is ready for action on the House floor. Final House action is not expected until May or June.

The Senate bill is expected to hold the line on, but not improve, the conservation provisions in current law; however, the House bill is expected to weaken existing conservation standards. A conference between the two will have to be carefully watched to ensure that the resulting compromise does not return us to the pre-1996 law that allowed U.S. fisheries to collapse.

No Clean Water Act Protection

In 2003, the Bush Administration established a policy to remove Clean Water Act protections from many of America's streams, wetlands, ponds and lakes. As a result, thousands of miles of streams and millions of acres of wetlands are at risk from unchecked development and pollution. The EPA estimates that 20 million acres of wetlands, 20 percent of the total wetlands in the continental U.S., could lose protection because of this policy.

In 2005, a new interpretation of the policy by the EPA, that would have allowed the mixing of untreated sewage with fresh water, was challenged in Congress. On May 19, 2005, just hours before a Congressional vote, the EPA withdrew its proposed revision to sewage dumping rules in the face of congressional opposition. Hours later, the House approved an amendment offered by Rep. Stupak (D-MI) and Shaw (R-FL) that would have blocked the policy,8 in case the EPA decided to pursue it anyway. EPA's withdrawal of the policy signaled that Congress heard the concerns about the economic, health and environmental costs of weakening sewage dumping rules.

It remains to be seen whether this victory will withstand continuing pressure for weaker pollution controls, and lead to cleaner, safer water over time. But the win added momentum for a longer-term campaign for new investments to help communities meet urgent cleanup needs. The extensive damage to sewer and water treatment systems caused by the hurricanes could pressure Congress to at least fully fund sewer and water projects, and strengthen the Clean Water Act.

Campaigns May Focus on Environmental Issues

The stalemate in Congress means that the major environmental issues of 2006 may be voted on only after the November 2006 midterm elections. If a more environmentally friendly Congress is elected, they may even be pushed in 2007 for votes.