U.S. Senate Makes Limited Progress Towards Vote on Energy and Climate Change Legislation; Spring 2010 New Target

December 8, 2009
Client Alert Newsletter December 2009

After the U.S. House of Representatives passed the American Clean Energy and Security Act of 2009 ("ACES") at the end of June, the U.S. Senate engaged in an effort to pass its own version of comprehensive energy and climate change legislation. Despite an initial ambitious schedule that targeted a floor vote before the United Nations' December climate change meetings in Copenhagen, limited progress towards a vote has been made, due in part to the congressional focus on health care legislation. Senate Majority leader Harry Reid has conceded that climate change legislation is unlikely to get to the Senate floor before Spring 2010.

In July 2009, the Senate Energy and Natural Resources Committee passed the American Clean Energy Leadership Act ("ACELA"), which included provisions similar to the energy titles of ACES, including a federal renewable portfolio standard, energy efficiency measures for buildings, appliances, manufacturing and other sectors, plus other energy incentives. Senate leadership, recently confirmed their preference to address energy and climate change in one comprehensive bill, and thus a floor vote on the ACELA provisions will likely be on hold pending further action on climate change legislation.

At the end of September 2009, Senators Barbara Boxer and John Kerry introduced the Clean Energy, Jobs and American Power Act (S. 1733) as a basic framework for a cap-and-trade program, but many key details were reserved for consideration by Senate committees with jurisdiction. Subsequently, on October 23, 2009, Senator Boxer released a "Chairman’s Markup" for review by the Senate Environment and Public Works committee starting November 3, 2009. The republicans on the committee, boycotted the hearings, arguing that more detailed economic analysis was necessary. As a result, committee rules required the bill to be voted upon without consideration of additional amendments, and the October 23, 2009 version was passed by the committee on November 5, 2009. Several other Senate committees including, (Finance; Commerce, Science and Transportation; Agriculture, Nutrition and Forestry; Foreign Relations; and Energy and Natural Resources) have jurisdiction over the climate change bill and have not yet held hearings. Senator Max Baucus, chairman of the Senate Finance committee has said he intends to hold a markup meeting in January 2010 in preparation for a floor vote in Spring 2010.

Separately, in an October 11, 2009 op-ed piece in the New York Times, Senators Kerry and Lindsey Graham described a bipartisan "framework" for climate change legislation that focused more upon domestic energy security. It has recently been reported that these two Senators, along with Senator Lieberman, have been negotiating with the Obama Administration and working on compromise language that could be added to S.1733 in an effort to gain 60 votes in the Senate.