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The Energy 202: How Democrats may try getting around the filibuster on climate change

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with Alexandra Ellerbeck

Some Democratic lawmakers are throwing their weight behind the idea of circumventing an arcane Senate rule to pass a major piece of President Biden’s climate plan — with just 51 votes.

Biden has spent his first two weeks in office kick-starting his climate agenda through executive action. But he will need the help of Congress to meet one of his most ambitious goals — eliminating greenhouse gas pollution from the power sector by 2035.

Standing in his way is the Senate filibuster, requiring most bills to get 60 votes to pass. Democrats have a razor-thin 50-50 edge in the Senate, with Vice President Harris casting the tiebreaking vote.

Now handful of Democrats are now eyeing a process called budget reconciliation to require electric utilities to wind down their emissions. 

They're not considering using the current budget bill, which passed early Friday morning and allows Senate Democrats and President Biden to push through the president's $1.9 trillion coronavirus relief bill if they can't come to agreement with Republicans. Instead, they're thinking about using the next budget bill to allow passage of climate-related legislation.

“I am open to all of the tools that we might have available to us to get a clean electricity standard passed,” Sen. Tina Smith (D-Minn.) told reporters Thursday.

On Thursday, a pair of left-leaning environmental groups, Evergreen Action and Data for Progress, outlined several methods of designing zero-emissions requirements on utilities that can be included in a bill ostensibly meant to set federal taxes and spending.

They propose several ways of doing so, including tying funding to states for adopting carbon-free electricity or having the federal government pay for utilities to produce power from solar, wind, nuclear or other emissions-free sources.

“President Biden embraced a 100 percent clean-electricity standard by 2035 as a — not just part of his plan, but as a central feature in his climate agenda,” said Evergreen co-founder Sam Ricketts, a co-writer on the report.

“We see it is incumbent now that Congress takes action on it,” he added.

Momentum is building among Democrats to explore the strategy for passing climate legislation.

In addition to Smith, New Mexico's Sens. Ben Ray Luján (D) and Martin Heinrich (D) have also endorsed the idea of trying to tackle greenhouse gas emissions in the electricity sector through the budget, as did Rep. Paul Tonko (D-N.Y.).

“Congress must explore the full range of options outlined in the report,” said Tonko, who chairs the House Energy and Commerce Committee’s subcommittee on the environment and climate change. 

And crucially, Senate Majority Leader Charles E. Schumer (D-N.Y.) has said he is willing to use budget reconciliation to address climate change.

“We're looking at how we [can] fit as much of it into reconciliation as we can,” Schumer said of Biden’s climate plan during an interview with MSNBC’s Rachel Maddow.

Passing a clean-energy standard is going to be a tough task — no matter what.

For budget reconciliation to work, every Democrat would need to be onboard. That includes moderate Democrats such as Sen. Joe Manchin III (W.Va.), a crucial swing vote when it comes to energy policy.

During a Bipartisan Policy Center event Thursday, the coal-state senator suggested he was open to including a clean-energy standard in a broader infrastructure bill — as long as it invested in technology that helps coal- and gas-fired power plants capture their emissions. “We have new technology coming on now, and we can make it feasible,” he said.

But any final decision about budgetary matters will be up to the Senate parliamentarian, Elizabeth MacDonough, a career congressional staffer who enforces the body's byzantine rules and traditions.

Scott Segal, a lawyer with Bracewell LLP, which often represents energy companies in Washington, thought the idea of passing sweeping new rules for power plants through reconciliation was “wishful thinking.” 

“It is an old Washington parlor game to see what you can fit in a budget reconciliation bill, regardless of how much the effort might violate parliamentary constraints,” he said.

Correction: An original version of this story inaccurately said President Biden's coronavirus relief bill contained $1.9 billion of stimulus. The figure is $1.9 trillion.

Power plays

The Biden administration continues unwinding Trump-era environmental decisions.
  • On Thursday, the Interior Department delayed implementing a rule gutting protections for migratory birds, HuffPost reports. Critics said the Trump administration's changes would let companies get away with gross negligence. But now, Interior officials said that the rule, which was slated to take effect on Feb. 8, would be subject to a review and 20-day public comment period.
  • Meanwhile, the Bureau of Ocean Energy Management cancelled a public comment period on potential oil and gas drilling in Alaska'a Cook Inlet, per the Anchorage Daily News. The move is consistent with Biden's broader halt on issuing new lease for oil and gas drilling on federal lands and waters nationwide.
  • And the Forest Service is requiring any activities in roadless areas such as road building, timber harvesting and mining to be subject to special review, per a memo from Agriculture Department Acting Deputy Undersecretary for Natural Resources and Environment Chris French. For now, the move brings back certain protections for much of Alaska's Tongass National Forest, one of the world's biggest intact temperate rainforests, taken away under Trump.

“It’s a big time out,” said Trout Unlimited President Chris Wood, whose group represents anglers across the country and had pushed to preserve protections in the Tongass. "It’s a return to the status quo, pre-Trump.” 

A congressional report found toxic heavy metals in baby foods.

The report from the House Oversight Committee’s subcommittee on economic and consumer policy found high levels of arsenic, lead, cadmium and mercury in some of the most trusted baby food brands — including Gerber, Beech-Nut, Happy Baby and Earth’s Best Organic. The committee said that the Food and Drug Administration had failed to warn consumers of the threat to infants’ neurological development and health, our colleague Laura Reiley reports.

Toxic elements are present in the environment and enter the food supply through soil, water or air; they cannot be completely removed, the FDA said in a statement. 

Still, some lawmakers want are calling for more rigorous regulation. "It’s shocking that parents are basically being completely left in the lurch by their government," subcommittee Chair Raja Krishnamoorthi (D-Ill.) said.

Liberal Democrats are pushing Biden to declare a climate emergency.

Sen. Bernie Sanders (I-Vt.) and Reps. Alexandria Ocasio-Cortez (D-N.Y.) and Earl Blumenauer (D-Ore.) introduced legislation that would require the president to declare a national climate emergency, the Hill reports.

“The long shot resolution follows a statement from [Schumer] suggesting that Biden could declare a climate emergency to be able to take additional actions using emergency powers,” the Hill writes. “However, it would face an uphill battle to cross the 60-vote threshold to become filibuster-proof and could also face opposition from moderate Democrats.”

Proponents say an emergency declaration is not merely symbolic but would give the president more executive powers to combat climate change, for instance allowing him to funnel military money to the construction of renewable energy projects, as we've previously reported.

A lawyer who represented Native American tribes will serve as a top Interior Department official.

Natalie Landreth, a member of the Chickasaw Nation in Oklahoma, will become deputy solicitor for land at the Interior Department, the Associated Press reports. Landreth worked for 17 years with the Native American Rights Fund, which represents tribes in cases related to treaty rights, public lands and environmental law.

Other new appointees include Mili Gosar, a Biden-Harris campaign alum, as deputy chief of staff for operations and Amanda Lefton as director of the Bureau of Ocean and Energy Management. Lefton previously served as a top energy and environment official for New York, E&E News reports.

It's the end of a bruising earnings week for the oil industry.

Conoco Phillips announced this week that it lost $2.7 billion in 2020. BP and Chevron each lost just over $5.5 billion. ExxonMobil posted a loss of $20 billion,” our colleague Will Englund reports

And although Royal Dutch Shell announced a profit of $4.85 billion, it was “down 71 percent from the year before and less than had been expected.” The S&P Global Ratings agency has said that it will place Exxon, Chevron, Shell and the French company Total on a “credit watch,” which puts them at danger of a downgrade. 

Per Englund: “A bad global economy, a promise by the Biden administration to get serious about climate change and growing confidence in a future of all-electric vehicles have started to raise questions about just how viable these companies will be.” 

Still, many oil companies are not going to collapse anytime soon. The price of oil has been rising this past week and there is optimism over increased demand as vaccines offer hope for an end to the pandemic. Meanwhile, some major firms are trying to pivot and ramp up their green portfolios.

Extra mileage

The avocado in your Super Bowl guacamole may be bad for the environment.

“You can’t watch the Super Bowl, the No. 1 at-home party event of the year, without guacamole. In fact, according to the Hass Avocado Board, almost 220 million pounds (equivalent to about 1,400 space shuttles) of avocados (Persea americana) were shipped here last month from Michoacán, the only Mexican state allowed to export avocados to the United States,” Suzanne OConnell writes for The Post.

But there are serious ethical concerns about much of the Michoacán avocado trade, including its role in fueling deforestation and the fact that drug cartels extort money from farmers. Avocados also use up scarce water supplies, which can be further degraded by pesticides or fertilizer. 

That doesn’t mean that you ought not to eat Super Bowl guacamole. Michoacán has a high rate of poverty and farmers are in need of agriculture revenue. The solution, OConnell writes, is to purchase sustainability-certified avocados, which can lessen the negative environmental impact and ensure that the workers and growers get a fairer share of the money.

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