Bypassing a Republican boycott, Democrats on the Senate Environment and Public Works Committee Nov. 5 approved climate change legislation without amendments by a vote of 11-1, with Sen. Max Baucus (D-Mont.) casting the lone vote against the measure.

All seven Republican members of the committee were absent from the vote.

Environment Committee Chairman Barbara Boxer (D-Calif.) said she had little choice but to report the bill (S. 1733) on an up-or down vote without debating amendments to bypass the Republican boycott of the committee markup, which began Nov. 3. With Democrats outnumbering Republicans 12-7 on the committee, approval of the bill was not in doubt, but the boycott denied Boxer a quorum under committee rules requiring two members of the minority party to be present to amend the bill.

Boxer told reporters that she had expected Baucus to vote against the bill given his concern that the legislation's target to reduce U.S. greenhouse gas emissions 20 percent by 2020 from 2005 levels is too aggressive. Baucus has argued that a 20 percent cut would disproportionately hurt Western states such as Montana as well as Southern and Rust Belt states that largely rely on coal-fired power plants for electricity.

“He wanted to move the 󞪔] goal down and I felt I had the sweet spot of the committee” given that all other Democrats supported retaining the 20 percent emissions-reduction target, Boxer told reporters after the vote. “I had to hold my committee together and I did that. I wished I had had everyone. I lost him [Baucus], but I couldn't go where he wanted to go.”

Committee Vote Clears One Hurdle.

Boxer pushed ahead with the up-or-down vote after discussing with Senate Majority Leader Harry Reid (D-Nev.) how to end the impasse with Republicans on the committee. Reid and Boxer met the evening of Nov. 4, with Reid recommending the chairman move forward, Democratic committee aides said.

Committee Republicans had vowed to boycott the markup until the Environmental Protection Agency completed a more detailed cost analysis on the legislation.

The committee's approval of the Clean Energy Jobs and American Power Act clears one hurdle in the drive to find 60 votes to bring the measure to a Senate floor vote. The environment committee, however, is only one of six committees with jurisdiction over various portions of the legislation. But approval by the environment committee--when combined with House passage in June of a similar climate bill (H.R. 2454)--could help guide U.S. negotiators as they head to Copenhagen in December for talks on a new international climate agreement to cut greenhouse gas emissions.

Baucus told fellow Democrats before the vote that he was disappointed the Republican boycott prevented amendments on the bill because he would have sought a more modest emissions cap that might have secured his support for the legislation.

Baucus, who chairs the Senate Finance Committee that has jurisdiction over part of the bill, said he voted “no” only “on this particular bill.” He vowed to continue to work “to get climate change legislation that gets 60 votes” in the Senate and that can be signed into law.

Baucus Wants China to Make Similar Cuts.

Baucus told reporters after the vote that he supports provisions that would trigger a 20 percent emissions target only if China and other fast-developing nations take comparable action to cut their own greenhouse gas emissions. Otherwise, he said he would support a 2020 target in the range of the 14 percent emissions reduction President Obama offered in his fiscal 2010 budget plan or the 17 percent reduction included in H.R. 2454 that the House approved in June (40 ER 1545, 7/3/09).

“I just feel that it is OK to work up to 20 but not start at” that level, Baucus said. “With a trigger, it might be [set] at 17 and then triggered to 20” if developing countries commit to their own emissions reductions, he said.

Revisions by Boxer.

The version of the legislation reported out of the environment committee is the most recent version of the bill, a substitute amendment, or revised chairman's mark, that Boxer released Oct. 23. The climate legislation was introduced by Sens. John Kerry (D-Mass.) and Boxer Sept. 30.

Boxer's revised version would codify an Environmental Protection Agency proposal to control greenhouse gas emissions at stationary sources that emit more than 25,000 tons per year--a proposal known as the “tailoring rule.”

Boxer's substitute also would codify a 25,000-ton threshold for applying operating permit requirements under Title V of the Clean Air Act.

In addition, Boxer's substitute would exempt greenhouse gases from EPA authority to set national ambient air quality standards under Section 108 of the Clean Air Act. EPA, for its part, has said it will not set air quality standards for greenhouse gases.

It also would exempt greenhouse gas emissions from regulation under Section 112, which governs hazardous air pollutants, and under Section 115, which governs international air pollution.

EPA Permitting Requirements.

The proposed tailoring rule was published by EPA on Oct. 27 to establish a 25,000-ton threshold for applying prevention-of-significant-deterioration rules to stationary sources of greenhouse gas emissions. EPA said that for sources emitting fewer than 25,000 tons, it would delay a decision on applying PSD requirements for six years. After that, they could apply streamlined permitting requirements (74 Fed. Reg. 55,292; 40 ER 2508, 10/30/09).

Under the Clean Air Act, new and modified sources must undergo PSD permitting, during which the state permitting authority determines the “best available control technology” (BACT) to limit emissions.

The Clean Air Act applies PSD to new and modified sources with emissions greater than 250 tons per year.

EPA proposed the tailoring rule with the 25,000-ton threshold to prevent a situation in which thousands of sources each year--including schools, hospitals, and small businesses--have to undergo PSD permitting because their emissions are greater than 250 tons per year.

EPA also proposed applying the 25,000-ton threshold to Title V permitting requirements to prevent more than 6 million sources, including almost 4 million single-family residences, from having to obtain Title V operating permits. The Clean Air Act requires sources with emissions exceeding 100 tons per year to obtain Title V permits every five years.

Environmental Group Supports Action.

David Bookbinder, senior climate counsel for the Sierra Club, praised the Boxer language. “This is precisely what we've been saying makes sense, and I'm not surprised to see it in the bill,” he said. Bookbinder has advocated exempting greenhouse gas emissions from air quality standards and Section 112 hazardous air pollutant requirements.

During an Oct. 29 hearing on the climate bill, Sen. Arlen Specter (D-Pa.) questioned whether language preempting Clean Air Act authority over greenhouse gas emissions from coal-fired power plants is necessary.

Similar legislation (H.R. 2454) passed June 26 by the House would preempt most Clean Air Act authority over stationary sources and replace it with an emissions cap-and-trade plan.

Energy industry representative Frank Maisano said Specter may seek to offer an amendment during markup that would preempt Clean Air Act authority over greenhouse gas emissions.

Maisano also said that Sen. Max Baucus (D-Mont.), who has said the bill's emissions-reduction targets are too aggressive, may offer an amendment to prevent EPA from finalizing the proposed tailoring rule.

By Dean Scott

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Full text of Sen. Boxer's revised chairman's mark of S. 1733 as distributed for markup is available at http://op.bna.com/hl.nsf/r?Open=thyd-7xhmnx.

Copyright 2009, The Bureau of National Affairs, Inc.