July 19, 2001

Federal Legislative Update

Holland & Knight Newsletter
Rich Gold

The outlook for environmental legislation changed drastically when Senator Jim Jeffords (I-VT) announced he was leaving the Republican party on May 24, thus handing control of the United States Senate to the Democrats. As a result, Democrats will assume the chairmanships of all Senate committees, control the legislative agenda on the Senate floor, and play an important role in the judicial and political appointee confirmation process.


Given the crisis in California and increasing energy costs nationwide, it was likely that Congress was going to enact some sort of energy package prior to the Jeffords switch. Now, under a Democratically controlled Senate, any package is likely to include more emphasis on renewable energy sources, energy efficiency and conservation than under the proposal released by the White House on May 17. The Republican proposal calls for increased production of coal, oil, gas and nuclear energy.

Senator Jeffords will play a major role in this debate as the new Chairman of the Senate Environment and Works (EPW) Committee. The EPW Committee has jurisdiction over a wide range of policy areas such as clean air and clean water. Senator Jeffords has repeatedly been ranked as the "greenest" Republican by several national environmental interest groups. He has publicly opposed drilling for oil and natural gas in environmentally sensitive areas and has introduced legislation, S. 556, calling for reductions of four major pollutants: nitrogen oxide, sulfur oxide, mercury and carbon dioxide. The new EPW Subcommittee Chairmen will include Senator Barbara Boxer (D-CA) for Superfund, Waste Control and Risk Assessment; Senator Joseph Lieberman (D-CT) for Clean Air, Wetlands, Private Property and Nuclear Safety; Senator Bob Graham (D-FL), for Fisheries, Wildlife and Water; and Senator Max Baucus (D-MT), for Transportation and Infrastructure.

As a result of the Jeffords switch, Senator Jeff Bingaman (D-NM), will assume the Chairmanship of the Senate Energy and Natural Resources Committee. Senator Bingaman is generally regarded as a strong supporter of nuclear power, opposes drilling in the Arctic National Wildlife Refuge (ANWR), favors shorter-term energy solutions such as price controls on wholesale electricity on the West coast, and is a supporter of construction of a new natural gas pipeline linking the continental United States to Alaska. Key areas of debate on energy policy will include a review of clean air regulations, fuel efficiency standards for automobiles and oil exploration in ANWR.


Prior to the Jeffords switch, on April 25, the Senate unanimously passed S. 350, the "Brownfields Revitalization and Environmental Restoration Act of 2001." The bill would authorize more than $1 billion in federal grants over five years for cleanups, limit some liability for landowners and developers, and give states the lead role in cleanup decisions. In addition, the bill contains a provision that would limit EPA's ability to reassess a site once it was declared clean. In many cases, the bill would protect neighbors and new owners of formerly contaminated property from cleanup requirements. Former Senate Environment and Public Works Committee Chairman Robert Smith, (R-NH) indicated he hopes S. 350 will be passed by the House in its current form to avoid a conference committee.


On May 22, the House unanimously passed H.R. 1831, the "Small Business Liability Protection Act." The bill, among other things, would shield companies that disposed of or transported less than 110 gallons of liquid waste or less than 200 pounds of solid, non-hazardous waste to a Superfund site prior to April 1, 2001. In addition, it would exempt nonprofit groups, homeowners and businesses with 100 or less full-time employees that dumped household garbage at facilities that subsequently were categorized as Superfund sites. The bill also would codify EPA's practice of reducing fines for businesses unable to afford cleanup costs.

On May 21, the Administration released a statement favoring the bill's provisions that would reduce "needless lawsuits." It is unclear when or if the Senate will consider H.R. 1831. Some senators have indicated they may wait to consider the bill until the House acts on S. 350, legislation to facilitate cleanup of brownfields sites.


Following the switch of just one senator, the Republican's brief control of Congress came to an end. How long the current Senate ratio will remain this way is uncertain. With several aging senators considering retirement and others facing serious re-election races, it is unclear which party will control the Senate following the 2002 mid-term elections. With just a six-seat majority, the forecast for the House is equally uncertain. Any action or inaction on environmental and energy legislation during the next year may influence which party is in the majority in the next Congress.

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