Law and the Environment : Environmental Lawyer & Attorney : Foley Hoag Law Firm : Boston, Washington D.C.

Yesterday, Senator Lieberman (I -CT) confirmed that the climate bill that he, Senator Kerry (D-MA) and Senator Graham (R-SC) plan to announce next week will include preemption of state and federal initiatives, including EPA's Clean Air Act authority.  Leaving aside the potential in his statement for the bill to also preempt state renewable energy and efficiency programs, the goal of predictability and one nationwide cap-and-trade system is an approach that we endorsed a few weeks ago, and one that H.R. 2454 also contained, albeit with a 5 year moratorium, rather than a complete preemptive ban.

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What will happen to state and regional energy and carbon-related regulations if (perhaps when) federal climate legislation is enacted?  If the Attorneys General of California and 6 New England and Mid-Atlantic states have anything to say about it, very little.  

As E&E reported last night, the Attorneys General of Massachusetts, Delaware, Maine, Maryland, Rhode Island, Vermont and California sent a letter this week to Senators Kerry, Graham and Lieberman in which they urge the Senators to incorporate provisions in the climate bill expected to be announced later this month, which save existing state initiatives.  Drawing a parallel to California's emissions standards waiver under the Clean Air Act, they urge coexisting federal and State authority to spur energy independence and reduce global warming pollution.

Some suggestions make a lot of sense for both regulators and the regulated community: allowing time for industries participating in regional programs to transition to federal programs, providing for an exchange of RGGI allowances, and maintaining EPA's authority under the Clean Air Act to regulate in the absence of functional federal programs created by new legislation could all allow the transition between programs to flow more smoothly. 

However, their call to keep cap-and-trade initiatives like RGGI viable in the midst of federal cap-and-trade, and at most impose only a temporary moratorium for a fixed period of time, seems more like a land grab than good policy.  The AGs say it would provide a valuable incentive to ensure rigorous implementation and enforcement of the federal program.  No. Overlapping cap-and-trade programs would only create a mess.  A nationwide and comprehensive cap-and-trade program is clearly preferable, for both the economy and achieving reductions in carbon dioxide emissions. 

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Yesterday, Senators Kerry, Graham, and Lieberman sent to President Obama a “framework” for Senate climate change legislation. The framework is short on details and does not contain many surprises. For example, it proposes “near term” – near team is undefined – reductions of 17% from 2005 levels and “long-term” – also undefined – reductions of 80%. 

The framework is nonetheless noteworthy, particularly for its inclusion of strong support for both the coal and nuclear industries. Senator Kerry was must have loved writing “Additional nuclear power is an essential component of our strategy to reduce greenhouse gas emissions.” And this: “We will commit significant resources to the rapid development and deployment of clean coal technology.”

It is clear from the public statements that the Senators have made what this language really means. The translation is fairly easy, but for those not in the know, here goes:

“Nuclear power is essential” means “We need some Republican votes.”

“We will commit substantial resources to … clean coal” means “We need some coal-state Democratic votes.

If this weren’t so important to the environment and our economy, I might enjoy watching this.

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Environment & Public Works Chairwoman Barbara Boxer (D-CA) announced Tuesday that committee hearings on the Boxer-Kerry climate bill, S. 1733, will begin on October 27 and that a mark-up will be planned for early to mid-November. Meanwhile, the Energy and Natural Resources Committee is continuing its hearings on emission allocations, with the next hearing scheduled for Oct. 21.

After announcing the hearing, Boxer said she would try to win over all of the Environment & Public Works Committee Democrats, including coal-state Senators Max Baucus (D-MT) and Arlen Specter (D-PA).  Boxer said she does not expect to secure any Republican votes. She plans to release a modified version of the Boxer-Kerry bill before the legislative hearings begin, with only a handful of "tweaks" compared to the version unveiled last month.

This aggressive timetable might be enough to have a bill in hand before the Copenhagen discussion in December, a goal the White House is pressing very hard to meet.

One change that would be more than a tweak would be a boost to nuclear energy. The Boxer-Kerry bill has a modest nuclear title focused on worker training and research into waste management technologies.  But the bipartisan blueprint for a comprehensive energy and global warming bill that Sens. John Kerry (D-MA) and Lindsey Graham (R-SC) spelled out in their joint op-ed in the New York Times Sunday calls for additional incentives for nuclear power, stating that “nuclear power needs to be a core component of electricity generation if we are to meet our emission reduction targets.”   In the op-ed, Kerry and Graham called for a streamlined permit system that maintains vigorous safeguards while allowing utilities to secure financing for more plants.  As E&E reports, Tom Carper (D-Del) yesterday called for a nuclear energy amendment that could help bring aboard swing votes who support the industry, such as Senators Joe Lieberman (I-Conn.), John McCain (R-Ariz.) and Graham, who are seeking more federal financial backing and other support. Carper’s plan involves more funding to the Nuclear Regulatory Commission, rather than a focus on streamlining.

As notable as this change would be, one problem with basing a consensus for the climate bill on nuclear power is that it's nuclear. Puns aside, opinions run strong on the issue of nuclear power, particularly among the environmental lobby, and too much emphasis might lose more votes than it picks up.  With only a few legislative weeks left before the end of the year, it will be interesting to see if the fast-paced timetable holds, and whether a consensus can be built in time.

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