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Compromise In Congress Over Bipartisan Energy Reform
Law360, New York (April 27, 2016, 11:35 AM ET) -Against the backdrop of the presidential campaigns, stand-alone energy legislation is
advancing in Congress for the first time since 2007. On Wednesday, April 20, 2016,
the U.S. Senate voted, 82-12, to approve S. 2012, the Energy Policy Modernization
Act. Senate Energy and Natural Resources Committee Chairwoman Lisa Murkowski,
R-Ark., worked for months with ranking member Maria Cantwell, D-Wash., and
others in the Senate to craft the bipartisan bill.
Although the Senate began considering the bill in January 2016, a final vote had
been delayed by controversial proposed amendments dealing with leadcontaminated water in Flint, Michigan, and proposals to provide revenue-sharing
with coastal states from offshore oil and gas production. Ultimately, senators agreed
to consider the Flint package separately and to withdraw the offshore drilling
amendment, allowing the Senate to move quickly to conclude debate on, and pass,
the bill.
Now that the Senate has approved S. 2012, both chambers of Congress will need to
appoint conferees from the relevant committees to reconcile the Senate bill with a
House stand-alone energy bill passed in December 2015. Unlike the Senate, the
House passed its energy bill — H.R. 8, the North American Energy Security and
Infrastructure Act — mostly along party lines. House Energy and Commerce
Committee Chairman Fred Upton. R-Mich., who authored H.R. 8, praised the
Senate’s work and stated his intention to begin negotiations with the Senate quickly
in order to deliver an energy bill to the president’s desk.
Henry A. Terhune
James Romney
Tucker Jr.
The Senate bill contains provisions that promote renewable energy, improve the
energy efficiency of buildings, and direct substantial investments toward research
and development for new energy technologies, including energy storage,
hydrokinetic and marine energy development, and electric grid modernization. At
the same time, the bill modernizes critical mineral policies, enhances cybersecurity
protections for the electrical grid, reforms the U.S. Department of Energy’s loan
program, and promotes energy infrastructure initiatives.
Christopher A.
The House bill also contains provisions modernizing energy infrastructure with
Treanor
additional focus on grid reliability and natural gas pipeline and electric power rights
of way through federal lands. The House bill does not, however, contain the energy efficiency language
or new energy technology investments included in the Senate bill.
2) The most potentially controversial provisions in both versions of the legislation deal with natural gas and
liquefied natural gas (LNG) exports. For instance, a provision common to both bills would designate the
Federal Energy Regulatory Commission as the lead agency for all federal authorizations and National
Environmental Policy Act reviews related to natural gas transportation, including natural gas pipeline
permitting. The Senate version also would expedite the approval process for LNG exports, requiring that
agencies make a final decision on applications for LNG exports to countries with free trade agreements
with the U.S. within 45 days following completion of an environmental review.
The Senate bill also creates a pilot program to streamline other federal oil and gas permitting and
establishes a study of the regional economic impacts of LNG exports. Beyond provisions promoting
natural gas production and LNG exports, the Senate bill also includes a number of modest policy
changes, such as a package of energy efficiency measures contained in legislation that Sens. Jeanne
Shaheen, D-N.H., and Rob Portman. R-Ohio, authored, as well as provisions that provide the federal
government with greater flexibility to sell crude oil from the Strategic Petroleum Reserve.
President Barack Obama has not yet signaled whether he would sign an energy bill that emerges from a
House-Senate conference committee, thereby reserving judgment until a negotiated version of the
legislation emerges from conference. The president did signal opposition to the House bill when the
Office of Management and Budget issued a statement of administration policy (SAP) indicating that
White House senior staff would recommend that the president veto H.R. 8 if it were presented to the
president for his signature unchanged.
Specifically, the SAP raised concerns with the bill’s changes to the DOE’s ability to enforce its appliance
standards, changes to FERC’s role in managing the electricity grid and imposing deadlines on other
federal agencies. The SAP also outlines the administration’s opposition to the bill’s changes to
hydropower licensing and the ability of the DOE to fully consider the public interest impacts from LNG
exports. The White House has yet to comment on the Senate-passed bill, although Energy Secretary
Ernest Moniz said that the administration was “very encouraged” by the bill and lauded its “many
positive elements.”
A number of outside organizations praised S. 2012, including the U.S. Chamber of Commerce, the
nonpartisan energy efficiency coalition, the Alliance to Save Energy, and the International Brotherhood
of Electrical Workers. On the other hand, some leading environmental groups, such as the League of
Conservation Voters and the Natural Resources Defense Council, have expressed opposition to the fossil
fuel provisions in S. 2012. The conservative Heritage Foundation voiced its opposition to the “big
government interventionism” in the bill.
Despite these detractors, the Senate bill reflects significant bipartisan compromise that has been
somewhat rare in Congress in recent years, especially with respect to energy and environmental policy.
It remains to be seen whether that bipartisanship can be maintained during the conference committee
process. Sen. Murkowski and Congressman Upton have expressed interest in moving the legislation to
conference as soon as possible, with the goal of delivering a reconciled bill to the president’s desk
before Congress leaves in mid-July for the political conventions and an extended August congressional
recess.
Any bill emerging from conference will have to compete for floor time with other legislative priorities,
such as appropriations legislation, during the three months of legislative session remaining before
Congress recesses. As may occur with any significant legislation to be considered this year, House and
3) Senate floor consideration of the pending energy legislation may slip until a post-election “lame duck”
session, where its prospects are likely to be heavily influenced by the election results.
—By Henry A. Terhune, James Romney Tucker Jr., Christopher A. Treanor, Charles W. Johnson IV and
Ryan Thompson, Akin Gump Strauss Hauer & Feld LLP
Henry Terhune is a partner in Akin Gump's Washington, D.C., office. He represents clients on a variety of
public policy matters, with an emphasis on energy, environmental and pharmaceutical/health care
issues. He has previously served as an associate staff member on the Committee on Rules, U.S. House of
Representatives.
James Romney Tucker Jr. is a partner in Akin Gump's Washington, D.C., office. He combines this
knowledge with a network of government contacts to provide strategic advice to and advocacy on behalf
of clients at the federal and state levels. Christopher Treanor is an associate in Akin Gump's Washington,
D.C., office.
Charles Johnson IV is a partner in in Akin Gump's Washington, D.C., office. He represents clients on a
variety of public policy matters, with an emphasis on energy, environmental, automotive and health care
issues. Ryan Thompson is a senior policy advisor in Akin Gump's Austin, Texas, office. He has previously
spent 10 years working in the U.S. Senate.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its
clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general
information purposes and is not intended to be and should not be taken as legal advice.
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