Energy Policy Act of 2005
ENERGY POLICY ACT OF 2005
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Mr. BINGAMAN. Mr. President, let me speak also in opposition to the Feinstein amendment. Federal jurisdiction over the siting of import and export terminals is constitutional, it is appropriate, it is a necessary part of this energy bill, in my view, and of any rational national energy policy.
Obviously, as the Senator from Tennessee was just pointing out, an adequate natural gas supply is extremely important to our Nation's economy. The regulation of foreign commerce, such as import and export terminals for LNG, is a Federal role under our Constitution.
The States have a legitimate interest, an interest in protecting their environment and the health and safety of their citizens. But the Feinstein amendment is not necessary because State participation authority in the LNG siting process is already very robust. For us to add another provision of law that says after the NEPA process is completed a Governor can come in and veto the siting of an LNG facility would be bad policy. In my view, the amendment being offered ignores the current State authority and turns the process on its head.
Today, for both offshore and onshore LNG proposals, State agencies with environmental expertise and related permitting authority are active participants in the NEPA process. Furthermore, an applicant must obtain all of the required State and local permits before that applicant can construct and operate an LNG terminal.
The bill which we have reported out of the committee does not take away any existing State authorities related to the LNG siting process. And the key Federal statutes that provide States permitting authority--those statutes are explicitly protected in our committee bill. It strikes a balance between Federal and State interests.
The Deepwater Port Act Gubernatorial veto, which has been referred to by the Senator from California, is not a good model for us to follow in this legislation. It was enacted in 1974 to provide a process for siting deepwater oil ports. The Governors' veto authority in the Deepwater Port Act has never been utilized. We are not certain why, but I would argue it is an artifact from a time when the environmental statutes that States currently can use were very new and were untested. The National Environmental Policy Act, NEPA, of 1969, was just in its infancy in 1974.
The NEPA process has evolved since the 1970s to require a thorough and wide-ranging public review of the environmental impacts of Federal actions and a consideration of alternatives to the proposed actions. Many other environmental statutes--the Coastal Zone Management Act mentioned by the Senator from Tennessee, the Federal Water Pollution Control Act, and the Clean Air Act--were also enacted in the early 1970s. These Federal statutes delegate significant permitting authority to the States.
The Feinstein amendment is not workable as it is currently drafted. It allows the Governor to veto a proposed terminal after the entire NEPA process has been completed and a final environmental impact statement has been issued. Yet the amendment does not require the Governor or the relevant State agencies to participate in that same NEPA process. This is a process that can take up to a year to complete. It is a process that is designed to involve all interested parties and to identify all of the significant environmental and safety issues that need to be resolved.
The amendment also allows the Governor to require the FERC to impose conditions on the LNG project to make it consistent with State environmental laws. But the veto and the consistency provisions in the Feinstein amendment duplicate authorities the States already have under other laws. The Coastal Zone Management Act requires that an applicant seeking a Federal permit to construct an LNG terminal in a coastal area prove to the State that the activity will be consistent with the State's coastal laws. If the State denies the consistency determination, the Federal permit cannot be issued. This effectively vetoes the project. There is a limited right of appeal to the Secretary of Commerce.
The Clean Water Act requires that an applicant obtain from the State a section 401 certification that the facility will comply with the act, including the State's water quality standards. Denial of this certification effectively vetoes the project as the only appeal that is provided for is to the State courts.
The committee bill does not take away any of these powers, nor does it affect the State and local laws that require project developers to obtain dozens of permits for LNG facilities.
I ask my colleagues: Why do we need to add this additional authority? It will discourage States from engaging in the NEPA process for a project that is in its early stages, when alternative sites can be identified and safety measures can be required. Indeed, the prospect of the Governor waiting to interject himself and the State at a later point in the project after the environmental impact statement is done will discourage industry from developing the LNG terminals that the country will need in the future.
Let me mention one other fact. I know the Senator from Rhode Island was talking about problems. He mentioned the KeySpan project in his State. FERC currently is actively engaged in assuring that these facilities are sited in safe locations. The Energy Daily, on May 23, had an article in it with the headline ``FERC Staff Flunks Rhode Island LNG Facility on Safety.''
In this article they point out that ``the Federal Energy Regulatory Commission staff, in a final environmental impact analysis, said Friday that a controversial liquefied natural gas terminal project in Rhode Island would flunk Federal safety standards with inadequate earthquake protection and an insufficient fire buffer.''
Then the article goes on to say:
..... it is highly unlikely that FERC would vote to approve the project over the findings of the final [environmental impact statement] which said rather bluntly: ``KeySpan's LNG's proposed LNG import terminal would not meet current LNG safety standards ..... [and] KeySpan LNG has not provided any data to show that the proposed import terminal can be brought into compliance with the current safety standards.''
I cite that to make the point that FERC is doing its job. They are not trying to put facilities or permit facilities at locations that are unsafe. They are taking into account the concerns of the local community and the concerns of the States. They are flunking applications where those concerns are valid.
We have tried to protect the rights of States and local communities in this legislation. I believe we have done that. I urge that we not adopt the Feinstein amendment.
I yield the floor.
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Mr. BINGAMAN. Mr. President, let me speak briefly. I thank my colleague for yielding me some time to conclude my remarks here, and I compliment him on his statement. The Constitution is very clear. It says in article I of the Constitution--and Senator Byrd isn't on the floor, but he is usually reading this to us--that ``the Congress shall have the power''--then it lists a whole bunch of things--``to regulate commerce with foreign nations and among the several States and with the Indian tribes.''
This is a question of siting import and export terminals, so that we can conduct business with foreign nations. Clearly, there are major authorities that States and local governments have to participate in this process and to object. Anybody who has tried to site one of these terminals--and I have talked to several of them--will tell you there are a lot of people in the process who can say ``no'' and that ``no'' will stick.
The States clearly are in that position. The States, under the Coastal Zone Management Act, have the ability to say no, if they do not determine that the permitting or that the applicant who is seeking a permit is consistent with the State's coastal laws. Under the Clean Water Act, the State can say no and deny a certification under section 411 if they determine that the proposal has not complied with the State water quality standards. There are a variety of places where the State can say no and, of course, local communities as well.
What we have tried to do in the underlying bill is to be sure that once the need for process is completed, once the State has signed off on various permits and certifications, then there is not an additional problem that can be raised by the Governor of the State. Presumably, that government will have been involved in every stage of this process, and that State's appropriate agencies will have been involved in every stage of the process. But we need to have some finality to this, and we need to be able to be sure FERC can go ahead with the siting if they determine, after all this has been done, that in fact this is a safe project that makes sense and ought to be permitted. That is all we are trying to do in the bill.
The amendment of the Senator from California would have the effect of saying to Governors that you have the final word. Regardless of what FERC determines, regardless of what the process reveals, regardless of any of that, if you still don't like it, you can say no. That is not a good process. That will not give the confidence and assurance that is needed.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. BINGAMAN. Mr. President, I urge defeat of the amendment.
I yield the floor.
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The Senator from New Mexico [Mr. Bingaman], for himself, Mr. Domenici, Mr. Specter, Mr. Alexander, Ms. Cantwell, Mr. Lieberman, Mr. Lautenberg, Mr. McCain, Mr. Jeffords, Mr. Kerry, and Ms. Snowe, proposes an amendment numbered 866, as modified:
At the end of title XVI, add the following:
SEC. 16__. SENSE OF THE SENATE ON CLIMATE CHANGE.
(a) FINDINGS.--Congress finds that--
(1) greenhouse gases accumulating in the atmosphere are causing average temperatures to rise at a rate outside the range of natural variability and are posing a substantial risk of rising sea-levels, altered patterns of atmospheric and oceanic circulation, and increased frequency and severity of floods and droughts;
(2) there is a growing scientific consensus that human activity is a substantial cause of greenhouse gas accumulation in the atmosphere; and
(3) mandatory steps will be required to slow or stop the growth of greenhouse gas emissions into the atmosphere.
(b) SENSE OF THE SENATE.--It is the sense of the Senate that 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 at a rate and in a manner that--
(1) will not significantly harm the United States economy; and
(2) will encourage comparable action by other nations that are major trading partners and key contributors to global emissions.
Mr. BINGAMAN. Mr. President, I went ahead and allowed the clerk to complete the reading of the amendment because it is short and because it is important that Members focus on what is contained in the amendment. We just had a significant debate on the Senate floor with regard to the proposal made by Senators MCCAIN and LIEBERMAN to cap greenhouse gas emissions. Some voted for it because they believed that this was an appropriate proposal. Others voted against it--some because they did not believe the issue is a valid one; some because they did not believe the effect on the economy was one they would favor; others because of the workability of it.
I have worked with Senator Domenici during recent weeks to see if we could come up with a proposal based on the National Commission on Energy Policy recommendations which would have done some of the same things but would have been a more modest beginning at containing and constraining carbon emissions going into the atmosphere.
We were not able, frankly, to get agreement among enough Senators that the proposal, as currently drafted, is workable in all respects. Therefore, Senator Domenici has indicated here on the Senate floor that he will try to have hearings and that we will be able in the next several months going forward to consider this with great deliberation in our Energy and Natural Resources Committee. There are other committees with jurisdiction as well over this same set of issues. I am sure they will have the opportunity to work on it.
The resolution that is before the Senate right now and that we are scheduled to vote on in another half hour is an effort to see if we can get agreement on some basic propositions. In my opinion, it is important that we demonstrate agreement on basic propositions in order that we can move ahead and deal effectively with this important and complex issue.
The propositions were as read. Let me go over them once again for my colleagues so that everyone knows what is contained in the resolution. Before I go through that, let me indicate the cosponsors of this resolution are Senators DOMENICI, SPECTER, ALEXANDER, CANTWELL, LIEBERMAN, LAUTENBERG, MCCAIN, JEFFORDS, KERRY, and SNOWE. I ask unanimous consent that they all be listed as cosponsors of the amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BINGAMAN. The amendment is a sense of the Senate. It reads:
Findings. Congress finds that greenhouse gases accumulating in the atmosphere are causing average temperatures to rise at a rate outside the range of natural variability and are posing a substantial risk of rising sea levels, altered patterns of atmospheric and oceanic circulation, and increased frequency and severity of floods and droughts.
I know this is an issue that some in this Senate disagree strongly with, and I am sure my colleague from Oklahoma will take great exception to this. I believe the science is well established that this is the case, and the National Academy of Sciences has stood behind that basic statement.
This is the second statement in the resolution:
There is growing scientific consensus that human activity is a substantial cause of greenhouse gas accumulation in the atmosphere.
Again, we may have Members here in the Senate who disagree with that conclusion. They are certainly free to do that. But I hope a majority of the Senate agrees with it.
The third finding set out in this amendment is that ``mandatory steps will be required to slow or stop the growth of greenhouse gas emissions into the atmosphere.''
There are some who have spoken in the Senate today who have said that mandatory steps are not required, that this problem will be solved by voluntary action, that the marketplace is solving this problem as we speak, and we do not need to be concerned about enacting any kind of mandatory provisions. I respectfully disagree with that perspective. I respectfully suggest that this is an issue that is going to require action of a mandatory nature by this Congress, and we need to acknowledge that.
The final part of the amendment is the sense-of-the-Senate provision. It says:
It is the sense of the Senate that 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 at a rate and in a manner that, No. 1, will not significantly harm the U.S. economy and, No. 2, will encourage other action and key contributors to global emissions.
I will point to two charts that are an outgrowth of the work of this National Commission on Energy Policy in order to indicate to my colleagues why we have the language of this provision written as it is.
This first chart is the Commission climate proposal timeline. What they have proposed in their recommendations is a system which has been criticized by some in the environmental community for being too weak and too modest. I can understand those criticisms. But it is a proposal that would slow the rate of increase of emissions for the first 10 years. Then about 2020, you would be into a period where emissions would no longer be growing, and then you would go into a phase where emissions would begin to decline.
As I say, some who are on the environmental side say that is too modest, we can't do that little. But others, of course, say it is too onerous, and we can't do that much. What we have tried to do with this sense of the Senate is to say, OK, some think it is too onerous, some think it is too much. Can we at least get agreement that we have to put in place some type of system, some type of mandatory limits that will, in fact, begin to slow the rate of emissions, eventually stop the rate of emissions, and bring emissions down? That is what we are trying to do.
There is one other chart I wish to show. That relates to the harm to the economy. I know that much of the discussion on the McCain-Lieberman amendment was that if we were to enact that amendment, it would have a devastating effect on the U.S. economy. I disagree with that. But I am suggesting that there are ways--and the National Commission on Energy Policy concluded that as well--that we can responsibly act to contain emissions and to constrain the growth of emissions without significantly affecting our economy in an adverse way.
This chart shows that graphically. What it basically shows is that the economy is expected to grow very dramatically between 2005 and 2025. You can see that the growth of the economy will be $312.47 trillion. That is business as usual. We asked the Energy Information Agency, which is part of our own Department of Energy and the executive branch of our Government, to model this and determine what they thought the effect of the National Commission's recommendations on greenhouse gas would be to those figures. How much would it impact the economy? They concluded that under the NCEP proposal, you would see a very slight reduction in the amount of growth in the economy. So over that 20-year period, it would be $312.16 trillion instead of $312.47 trillion of economic growth in this country. You cannot have a more modest proposal than that as far as impact on the economy.
I am not here trying to persuade Members that this is the only way to proceed. I am saying this is evidence that we can, in fact, design a proposal for constraining the growth in greenhouse gases that will not adversely affect our economy, and that is exactly what we should be about, is trying to put that into place.
This resolution is nothing but a sense-of-the-Senate resolution. But it is important that we pass it. In my opinion, it is important that we pass it because the Senate is on record in 1997 as voting unanimously against going forward with the Kyoto treaty. I was one of those who voted not to proceed with signing on to the Kyoto treaty. That does not mean we should not take this step. This step would be the responsible thing to do. It would say this Senate is resolved to move ahead and try to enact legislation that will deal with this serious problem. And we recognize that doing so will require some mandatory limits on emissions.
I know that is something some Members in the Senate do not agree with. It is my hope that a majority of the Senate does agree with that, and it is my hope that a majority of the House of Representatives will agree with it, and that eventually we can persuade the administration to agree with this point of view as well. We need to move ahead with this issue--the sooner the better. This is a responsible way to do so.
I very much appreciate the good faith with which my colleague, Senator Domenici, worked with me to see if there was something that could be jointly proposed to deal with this issue as part of the Energy bill. It was his conclusion--which is certainly understandable--that there was too much complexity involved at this point and too many unanswered questions for us to proceed with an amendment to solve the problem as part of the Energy bill.
But I am very pleased that he is willing to cosponsor this sense-of-the-Senate resolution, indicating that even though we are not able to do it as an amendment to the Energy bill, we can in fact plan to go ahead.
Mr. BINGAMAN. Mr. President, I reluctantly rise to speak against this amendment. I do so for some very basic and sound reasons. I will just mention a few of them.
No. 1, this amendment moves in the exact opposite direction of the legislation that is before us. I have been working with Senators DOMENICI and ALEXANDER and others on the committee to develop a piece of legislation that would provide for the energy future of the country, would encourage domestic development of energy from all sources, all available sources. We are encouraging development of clean coal, natural gas, nuclear power, oil resources, hydrogen technology, renewable fuels, electricity; and in each case, we have tried to simplify the process that a person or applicant has to go through in order to develop these resources and meet the needs of the country, as we see them.
We have also put incentives in this bill so as to further the development of these resources. This amendment, with regard to wind power, does just the opposite of that. It raises obstacles, and it says that we are going to make it more and more difficult for people to proceed with development of wind power projects. How does it do that? It goes through and it says we are going to, first of all, designate what we call highly scenic areas. Highly scenic areas are fairly broadly defined; they are any area listed as an official United Nations educational, scientific, cultural or World Heritage site, as supported by the Department of the Interior, National Park Service, and International Council of Monuments and Sites. Any lands designated as a national park, national lakeshore, national seashore, national wildlife refuge, national military park, Flint Hills--it goes on and on. It says if you are a highly scenic area, then a so-called qualified wind project, which is any wind turbine project located in a highly scenic area or within 20 miles of the boundary of various of these things I have listed here--then it says over here a qualified wind project shall not be eligible for any Federal tax subsidy.
That essentially says there are not going to be wind power projects constructed in any of these locations. I think if we have ever had a proposal that is a one-size-fits-all proposal, this is that. There are a great many of these sites. I point out, also, by way of just a historical note, I think this will be the first time, if this amendment is adopted, that the Congress has put in law a provision that essentially recognizes the significance of World Heritage sites designated by the United Nations. I remember debates on the floor in recent years where people objected to the whole notion that U.N. World Heritage sites were going to get some kind of special protection. In this amendment, we are saying they get special protection. We are not going to allow the construction of one of these wind projects within 20 miles of them.
To my mind, there are undoubtedly areas in this country where we don't want windmills. I agree. But I think that needs to be a decision that is made on the basis of the local circumstances, on the basis of the geography of the area, and I think what we are trying to do here is sort of pass a very broad prohibition against getting tax benefits. If you want to build a site that is within 20 miles of any of these things, then you are out of luck, as far as any Federal tax support. I think that is contrary to the whole thrust of the legislation. I think it is contrary to good sense. In my own State of New Mexico, we have several sites that are listed. I have a list that the Senator from Tennessee has been kind enough to give me called, ``Scenic Sites that are Protected by this Legislation.'' When you go down the list, in my State, you can see Carlsbad Caverns National Park. Well, I could conceive of the people in Carlsbad, NM, wanting a wind farm, a wind project within 20 miles of Carlsbad Caverns National Park. I can conceive of there being an area within that 20-mile radius that would be appropriate for a wind site. I don't know that that is the case, but I would hate to legislate a prohibition against it. The same with Chaco Culture National Historic Park and with Carlsbad Caverns National Park and the Pueblo de Taos, which has been exempted. I appreciate that.
The Senator from Tennessee--I mentioned to him there may be a desire on the part of people in the Taos area in my State to go ahead and have a wind project. I need to be legislating a prohibition against that--a prohibition on any Federal tax support in that circumstance. Each Senator can look at the list and see whether they want to do this to their home State. I think if people will look at this list carefully and get on the telephone and call back to their States, they may find this is not something they wholeheartedly embrace.
The Senator from Idaho, Senator Craig, has asked for 5 minutes. I yield him 5 minutes.
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Mr. BINGAMAN. Mr. President, let me speak for 30 seconds, and then I will yield to my good friend from Iowa, Senator Harkin.
I do think, as the Senator from Idaho pointed out, that this does raise a very substantial obstacle to the construction of wind projects in a great many areas of the country about which we are somewhat uncertain. As I say, in my State I can conceive of areas near these scenic locations that would be appropriate for consideration as wind projects. I do think there is ample opportunity for local communities to object. There is ample opportunity for States to object.
My experience is the burden is on the applicant to persuade all of the local government and all of the State government entities that have some claim on this.
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Mr. BINGAMAN. As the Senator from Wisconsin knows, I see ring fencing as an important issue and think that we should push FERC to protect small businesses and consumers from these abusive practices. The underlying bill, however, contains strong new authority for the Federal Energy Regulatory Commission to oversee mergers of public utilities. Congress directs FERC to use this new authority to assure that mergers are conducted appropriately and that consumers are protected from Enron-style abuses. We also direct FERC to use its existing authority to ensure Enron-style abuses do not happen again. The antimarket manipulation language also works toward this goal.
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Mr. BINGAMAN. I commit to the Senators from Wisconsin and Kansas that I will work on this important issue in conference and ensure that the Energy Committee holds a hearing on this important consumer protection, fair competition, and financial integrity issue. In addition, I agree to request, jointly with the Senators from Wisconsin and Kansas, a GAO investigation into the potential for abusive affiliate transactions by holding companies and affiliate businesses of public utility companies.
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