Post image for Congressional Update: Votes Likely for Energy Tax Prevention Act of 2011 [Updated 5:45 PM]

The House of Representatives is scheduled to debate and vote on final passage of H. R. 910, the Energy Tax Prevention Act.  The Rules Committee is allowing the Democrats to offer twelve amendments to weaken or gut the bill.  (It is worth recalling that on 26th June 2009, the Democrats allowed only one Republican amendment and couldn’t even provide an accurate copy of the bill, since 300 pages had been added in the middle of the night, but the new sections hadn’t been put in their proper places in the 1200 page bill that had been released four days before.)  No Republican amendments to strengthen to the bill will be allowed.  The rule can be found here.  It is quite possible that the vote on final passage will be delayed until tomorrow.

Senate Majority Leader Harry Reid (D-NV) has scheduled votes on amendments offered by Sens. Mitch McConnell (R-KY), Jay Rockefeller (D-WV), Max Baucus (D-MT), and Debbie Stabenow (D-MI) amendments to S. 493, a re-authorization bill for small business subsidies, for some time after 4 PM today.  The McConnell amendment is the Senate version of the Energy Tax Prevention Act, S. 482.  The other amendments are attempts to give some ground without blocking EPA regulation of greenhouse gas emissions permanently (that is, until Congress authorizes such regulations).  This shows how far the debate has shifted.  It appears that the three straddling amendments may each get fifteen to thirty votes.  It appears that the McConnell amendment (#183) will get 51 or perhaps even 52 votes, but will not be adopted because it is not a germane amendment and therefore requires 60 votes to survive a point of order.  All 47 Republicans are expected to vote for it plus Sens. Joe Manchin (D-WV), Mary Landrieu (D-LA), Ben Nelson (D-NE), and Mark Pryor (D-AR).  Maybe one more Democrat, such as Sen. Claire McCaskill (D-MO).  Senate Majority Leader Harry Reid could of course still change his mind.

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Post image for This Week in the Congress

House Ready To Pass Upton Bill Next Week

The House has scheduled H. R. 910, the Energy Tax Prevention Act, for floor debate and passage on Wednesday, 6th April.  This could still slip given the wrangling that is going on between the House and the Senate over the Continuing  Resolution to fund the federal government for the rest of FY 2011 after the current CR runs out on 8th April.

Energy and Commerce Committee Chairman Fred Upton’s (R-Mich.) bill will pass easily with over 250 votes.  That most likely includes all 241 Republicans and 12 to 20 Democrats.

The Rules Committee has not yet met to decide which amendments will be in order.  Conservative Republicans in the Republican Study Committee are considering offering several amendments to strengthen the bill.

H. R. 910 as marked up by the Energy and Commerce Committee prohibits the EPA from using the Clean Air Act to regulate greenhouse gas emissions, but does not prohibit the Administration from using other existing statutes to regulate emissions.  Nor does it ban common law nuisance lawsuits against emitters of greenhouse gases, such as power plants, manufacturers, railroads, airlines, and cement producers.

Thus one obvious amendment would be to ban common law nuisance suits.  The Supreme Court is currently considering such a case.  It may find that such suits may proceed, but even if it does not it could do so for the wrong reason—namely, that the EPA is regulating emissions and has thereby pre-empted common law.

Democrats led by Rep. Henry Waxman (D-Beverly Hills) will undoubtedly offer some of the same silly, irrelevant grandstanding amendments that they offered in committee.  Waxman was reported this week as expressing confidence that the bill has no chance in the Senate.

That was certainly true of his Waxman-Markey cap-and-trade bill in the last Congress.  One significant difference is that Waxman-Markey barely passed the House, 219-212.  The Upton-Whitfield bill will pass by a much wider margin.

Moreover, cap-and-trade was swimming against strong public opposition, while blocking EPA’s attempt to achieve cap-and-trade through the regulatory backdoor is swimming with public opinion.  That’s why, for example, Senator Claire McCaskill (D-Mo.) is still undecided about voting for the McConnell amendment (which is identical to the Senate version of H. R. 910) in the Senate.  She doesn’t want to vote for it, but she’d like to be re-elected in 2012.

Will the Senate Ever Vote on the McConnell Amendment?

The Senate spent another week without voting on Senator Mitch McConnell’s (R-Ky.) amendment to block EPA from using the Clean Air Act to regulate greenhouse gas emissions or either of the two Democratic alternatives.  It is quite possible that there will be votes next week.  It is also quite possible that Majority Leader Harry Reid (D-Nev.) will work out a deal with McConnell to dispose of many of the amendments to the underlying bill without votes and proceed to passage of the Small Business Innovation Research Re-Authorization Act.  Or Reid may keep stalling.

McConnell originally introduced his amendment (#183 if you’re keeping track) to S. 493 on 15th March.  It is identical to Senator James M. Inhofe’s (R-Okla.) Energy Tax Prevention Act, S. 482, which is identical to the House bill of the same name, H. R. 910.

Senator Jay Rockefeller (D-WV) introduced an amendment to try to provide cover for fellow Democrats and thereby siphon support from McConnell’s amendment.  Rockefeller would delay EPA regulations for two years.

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