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Nuclear Option? Boxer Considering Toxic Maneuver
October 30, 2009

Posted by Matt Dempsey matt_dempsey@epw.senate.gov

In the News... 

Excerpts:

"Democrats could also break with a long-standing EPW Committee precedent that requires two minority members to be in attendance for a markup to even begin. According to the committee rules, Boxer appears to have an exception available that would pave the way for votes on both amendments and the overall bill so long as a majority of the committee's members are present."

"Going this route, according to one former Senate Democratic aide, could spell trouble for the overall legislation as Boxer and her allies continue their search for 60 votes among moderate Democrats and Republicans. 'That product is totally toxic," the former staffer warned. "It's basically worthless.'"

E&E News 

Republicans on track to boycott Senate EPW panel's markup (10/30/2009)

Darren Samuelsohn, E&E senior reporter

Link to Article

Senate Republicans are planning to boycott Tuesday's global warming markup in the Environment and Public Works Committee until they get more data on the sweeping proposal from U.S. EPA and the Congressional Budget Office.

EPW Committee ranking member James Inhofe (R-Okla.) said last night that Republicans had a "unanimous expression" ready for release as soon as Democrats go public with their official markup notice. Inhofe also told the Tulsa World that the GOP is preparing its own counter hearing on the climate bill.

Republicans are demanding a larger set of EPA economic modeling runs on the climate bill, including less optimistic assumptions about the long-term growth of nuclear power. Sen. George Voinovich (R-Ohio), a senior member of the committee, first made his information request to EPA in July and placed a "hold" on Robert Perciasepe's confirmation to be EPA deputy administrator until he got answers.

EPA Administrator Lisa Jackson in August denied Voinovich's request, saying that the Energy Information Administration had done much of the work he wanted (E&ENews PM, July 13). Voinovich said yesterday that his information request to EPA now dovetails with the GOP committee members' broader plan to block Democrats from holding the markup.

"Even from a public relations point of view, to be able to say, 'We took the time. We got the analysis,' I think that would be very, very good," Voinovich said.

EPW Chairwoman Barbara Boxer (D-Calif.) is expected to notice the Tuesday markup later today despite the boycott threat. Boxer yesterday told reporters she is "going to use every tool at our disposal to get this done."

She added, "My chief of staff and chief counsel tell me that we can go next week, according to the rules, according to what we've got available. And that's our intention. That's our plan. And that's our hope."

Boxer did not go into specifics on how she would move the bill, but there appear to be several options. For starters, Boxer and Senate Democratic leaders could use Senate Rule 14, which allows the majority to discharge legislation out of a committee and bring it directly to the floor.

Democrats could also break with a long-standing EPW Committee precedent that requires two minority members to be in attendance for a markup to even begin. According to the committee rules, Boxer appears to have an exception available that would pave the way for votes on both amendments and the overall bill so long as a majority of the committee's members are present.

Going this route, according to one former Senate Democratic aide, could spell trouble for the overall legislation as Boxer and her allies continue their search for 60 votes among moderate Democrats and Republicans. "That product is totally toxic," the former staffer warned. "It's basically worthless."

In anticipation of a markup Tuesday, Senate Democrats have been busy today preparing a new chairman's mark that encompasses last-minute negotiations with moderate committee members, including Sens. Max Baucus (D-Mont.) and Arlen Specter (D-Pa.), as well as other technical changes to the legislation.

Amendments to the bill are also expected to be due by mid-morning Monday, according to Senate aides.

Several sources tracking the debate said they expect Boxer to accept a brief delay -- perhaps to the week of Nov. 16 or Nov. 30 -- while EPA and CBO produce more information.

"I think they just need to wait it out and the Republicans will show up eventually," the former Senate Democratic aide said. "What's the rush in marking it up? In getting it done ahead of Copenhagen? Get it done the first week of December and you still have a decent message."

Obama officials are pushing for Senate committee action in advance of a major round of U.N. climate negotiations Dec. 7-18 in Copenhagen, Denmark.

Andrew Wheeler, a former EPW Committee GOP staff director, said Inhofe and Voinovich are on solid ground asking for the EPA data now. "If they don't insist on that before the markup, then when would they get the information?" he said.

With Democrats holding a 12-7 majority, Wheeler said Republicans are well aware that the bill could pass without any of their support. "You're not in a situation where the minority will never agree to a markup."

"It seems close to a parody of a card game at a Wild West saloon: Is someone (or everyone) bluffing?" said Frank O'Donnell, head of the Clean Air Watch.

Industry attorney Scott Segal said there is "an awful lot of bipartisan common ground" to be found on climate legislation.

"It's a shame that some legitimate process concerns are making consensus so difficult to achieve," added Segal, a lawyer at Bracewell & Giuliani who represents the electric utility and petroleum refinery industries. Segal compared the current Senate EPW Committee standoff to a largely bipartisan effort that led to passage of the 1990 Clean Air Act amendments.

"In that case, markups were inclusive and both sides had substantial amendments adopted," Segal said. "Also, the [George H.W. Bush] administration was an active player in making recommendations and reacting to proposals. Clearly, there are some missing ingredients this time around."

EPA spokeswoman Betsaida Alcantara defended the work the agency has done to date.

"Administrator Jackson believes that the Oct. 23 analysis should be perfectly adequate at this stage of the process, given the rigorous analysis, the lack of numerous, detectable legislative changes since the House-passed bill, and the large number of computer modeling runs in the very recent past on very similar legislative provisions," she said.

Meanwhile, Sen. John Kerry (D-Mass.) this week asked EPA "to conduct a full economic modeling of the bill that will be voted on by the full Senate," Alcantara said. "EPA has committed to doing that modeling and will continue to work with Sen. Voinovich to answer any concerns he has with this modeling."

Spokespersons for Senate Majority Leader Harry Reid (D-Nev.) and the White House declined to comment today on the prospect of a standoff in the EPW Committee.





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