January 26, 2005

A Look at the 109th Congress

Holland & Knight Newsletter
Michael Galano


The 109th Congress convened on January 4, 2005. As a result of the November 2, 2004, elections, Republicans hold 55 of the 100 seats in the Senate, not enough to defeat a filibuster, but closer than in the past two years when they held 51 seats. Additionally, the GOP is assured of at least 232 of the 435 House seats, three more than it held in the prior Congress. This article will discuss pending nominations, committee changes, and environmental issues which could be addressed in this session of Congress.

Pending Nominations

Early in 2005, the Senate will consider three nominations that will have a major impact on environmental policy and enforcement issues in President Bush’s second term.

First, President Bush will nominate a new EPA Administrator. Current EPA Administrator Michael Leavitt has been selected to lead the Department of Health and Human Services (HHS). President Bush is not expected to name Administrator Leavitt’s replacement at EPA until the HHS confirmation is complete. The next EPA Administrator will face a reduced budget since Congress appropriated $8.1 billion for EPA for fiscal year 2005, a $278 million reduction from fiscal year 2004.

Second, on December 10, 2004, President Bush named Treasury Deputy Secretary Samuel Bodman as Secretary of the Energy Department. Previously, Mr. Bodman taught chemical engineering at MIT, served as president of Fidelity Investments, and ran a chemical company. If confirmed by the Senate, Mr. Bodman will be faced with several immediate challenges. The first is getting Congress to enact energy legislation, which may include an effort to open the Arctic wildlife refuge in Alaska to oil drilling. Additionally, Mr. Bodman will attempt to address both legal and financial problems related to developing a nuclear waste dump in Nevada. In 2004, Congress did not include enough funding to keep the Yucca Mountain waste project on schedule. Finally, Mr. Bodman may address concerns over high oil prices.

Third, Attorney General nominee Alberto Gonzales may face questions regarding environmental enforcement issues. Although, it appears he will receive less aggressive scrutiny than his predecessor, John Ashcroft, since Mr. Gonzales has a limited record on environmental issues as he has never run for elected office. In contrast, Attorney General Ashcroft, took strong positions on the environment over one term as a Republican senator from Missouri and eight years as governor. Mr. Gonzales currently serves as White House Counsel. He is a longtime friend and adviser to President Bush. Mr. Gonzales previously served as a justice on the Texas Supreme Court and as Texas secretary of state.

Congressional Committee Changes

Democratic committee assignments will change the look of the Senate Environment and Public Works Committee (EPW) in the next Congress. New Senate Minority Leader Harry Reid (D-NV) has relinquished his seat on the committee, while Bob Graham (D-FL) has retired and Ron Wyden (D-OR) has chosen a new committee assignment. With the loss of four senate seats in the November 2004 election, the Democrats will have one less seat on the committee. New members will include Senators Frank Lautenberg (D-NJ) and Barak Obama (D-IL). Senator Jim Jeffords (I-VT) will continue as ranking member of the full committee.

Potential Environmental Agenda

Members have only recently returned to begin organizing for the 109th Congress. As a result, the environmental agenda is still being formulated.

Senator James Inhofe (R-OK), Chairman of the Senate Environment and Public Works Committee, has indicated that during the 109th Congress he will consider the Administration’s “Clear Skies” bill, designed to reduce emissions of three major pollutants. This legislation has not advanced since President Bush first announced the policy in 2002. Environmentalists oppose the legislation because they believe it would weaken the Clean Air Act. The Senate Environment and Public Works Committee may hold a hearing the week of January 24 to examine the legislation. Committee staff has said a markup on Clear Skies may occur before the President’s Day recess starting February 21. Meanwhile, in the House, Congressman Joe Barton (R-TX), Chairman of the House Energy and Commerce Committee, recently told reporters that he will focus on telecommunications issues and health care this year, rather than Clean Air Act legislation. However, Congressman Barton indicated he would consider moving a Clean Air Act bill if the Senate showed interest in the issue.

Senate Energy Committee Chairman Pete Domenici (R-NM) has indicated his desire to consider natural gas legislation early in the 109th Congress. Senator Domenici has asked for legislative proposals on supply and demand issues from interested parties. A markup on energy legislation could take place early in 2005. Additionally, Chairman Domenici also has indicated he wants to set an aggressive timetable for opening the Arctic National Wildlife Refuge to energy development through the budget process early in the 109th Congress.

House Resources Chairman Richard Pombo (R-CA) said that the Endangered Species Act is ineffective and burdensome to property owners. In 2005, possible legislative action could include changes to reform the process setting aside land for species and a requirement to use “sound science” in decisions. On April 28, 2004, the House Committee on Resources held a hearing on H.R. 2933, the Critical Habitat Reform Act of 2003. The bill, sponsored by Representative Dennis Cardoza (D-CA), would amend the Endangered Species Act of 1973 to reform the process for designating critical habitat.

Finally, Congress is likely to address a major water projects bill during the 109th Congress. In September 2003, the House passed the 2003 Water Resources Development Act (WRDA) (H.R. 2557) that authorized approximately $4 billion for Army Corps of Engineers flood control, dredging and other water projects. The Senate version (S. 2773) passed committee in June 2004, but never reached the Senate floor. WRDA is traditionally enacted every two years. However, the most recent version is delayed due to a debate on how to reform the way the Corps plans and evaluates water projects. The Government Accountability Office (GAO) has reported that the Corps exaggerated the benefits and underestimated the negative effects of such projects. This legislation was delayed over the same issue during the 107th Congress. The last time a water bill was enacted was in 2000 (P.L. 106-541). The House passed bill (H.R. 2557) requiring non-binding independent reviews of projects considered controversial or costing more than $50 million. The version that was approved by the Senate Environment and Public Works Committee (S. 2773) would have included a wider range of projects in the review process.

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