What are the prospects for climate legislation in the House?

I think Energy and Commerce Committee Chair Waxman (D-CA) may be making both a strategic and a tactical mistake in pushing to get a climate bill out of committee by Memorial Day. I say this as someone who was delighted Waxman defeated Dingell for the chairmanship.

Strategically, as an extended must-read analysis in E&E Daily (subs. req’d, reprinted below) explains:

in the Energy and Commerce Committee, it is often stated that a legislative victory there foretells success when the bill reaches the entire House. “If you do it in committee, I think you do a huge amount of what you need to do for the floor,” said Manik Roy, vice president of federal outreach at the Pew Center on Global Climate Change.

Obama isn’t going to see a climate bill on his desk this year (see “Sen. Boxer makes clear U.S. won’t pass a climate bill this year”). Even Speaker Pelosi was originally skeptical the House would pass cap and trade this year.


Obama certainly isn’t going to devote a lot of time and political effort to raising the issue’s profile in the next three months — nor should he (“Obama can get a better climate bill in 2010. Here’s how”).

So why push such an important and difficult vote before the ground has been laid for it, when you will be operating with one hand tied behind your back — at a time when the Administration, public, and media are focused squarely on the greatest economic mess since the Depresssion? Even if Waxman succeeds under such circumstances, he may be stuck with a weaker bill than he otherwise could have gotten.

I will explore what I see as Waxman’s tactical mistake — trying to put energy legislation into his climate bill — in a later post.

Here is the full E&E Daily story:

The House has long been quiet on global warming. But that’s about to change.

Democratic leaders envision a fast-paced year of debate on curtailing greenhouse gas emissions, starting with dozens of hearings and a markup before the Memorial Day recess on a comprehensive climate and energy policy bill in the Energy and Commerce Committee, led by new Chairman Henry Waxman (D-Calif.).

House Speaker Nancy Pelosi (D-Calif.) — after an outcry from environmentalists — has promised a first-ever floor vote in 2009 on cap-and-trade legislation. Pelosi cited Waxman’s commitment to establish a price on carbon-based fossil fuels despite the otherwise heavy legislative agenda focused on the U.S. economic recovery.

More important, Democrats now have White House support for action on climate change. President Obama supports cap and trade as a principle ingredient to a new U.S. climate policy that he hopes to hold up during U.N.-led climate negotiations scheduled for December in Copenhagen.

Yet even with their eyes on a historic floor debate later this year, Pelosi and Waxman are largely working from a blank slate, a big contrast from their Senate colleagues who have taken three floor votes on cap and trade over the last seven years. Advocates in the House have some serious educating — and negotiating — to do to get their fellow lawmakers ready for a full-fledged climate and energy battle. And it will not be easy.

Looking down the road, cap-and-trade advocates would appear to have the inside track on passing a bill given the size of the Democratic majority (253–178, with two vacancies). Across the aisle, a few Republicans have already sized up the political landscape and see Obama and the Democrats eventually pulling it off.

“If Barack Obama is pushing for it, and Nancy Pelosi is pushing for it, and [Senate Environment and Public Works Chairwoman] Barbara Boxer is pushing for it and Henry Waxman is pushing for it, it probably happens,” said Rep. Roy Blunt (R-Mo.), the former majority whip. “But that doesn’t mean it happens in the right way, or the right time frame.”

Environmentalists have been preparing for this moment for years. Several green groups consult their own private whip charts that break members up into different shades of “yes,” “maybe” and “no.” The Environmental Defense Fund has lobbied between 200 and 300 Democratic and Republican House members on the cap-and-trade debate.

E&E Daily also has projections on how a cap-and-trade bill will fare in the House, an analysis based on interviews with dozens of Democratic and GOP sources, as well as past environmental votes and cosponsorships of several previous cap-and-trade proposals written by Waxman, and Reps. Ed Markey (D-Mass.), John Olver (D-Mass.), Lloyd Doggett (D-Texas), Thomas Petri (R-Wis.) and former Rep. — now Sen. — Tom Udall (D-N.M.).

To start, E&E’s analysis shows supporters can count on a core group of 163 lawmakers in the “yes” column. This is a group made up almost entirely of Democrats who think a climate bill must adhere to some key fundamentals, including that it measure up to the scientific warnings about global warming. Members include Waxman, Pelosi, Majority Leader Steny Hoyer of Maryland, Reps. George Miller of California and Earl Blumenauer of Oregon.

Next comes the fence sitters, a group of 126 lawmakers with a significant number of concerns about how the bill will affect the U.S. economy and keep energy and fuel prices at sustainable levels. Reps. John Dingell (D-Mich.) and Rick Boucher (D-Va.), the former leaders of the House Energy and Commerce Committee, stand out as the most prominent members of this group, which includes large voting blocs from the electoral battleground states of Pennsylvania, Ohio, Florida and Michigan.

It is members from this group whom Pelosi, Waxman and other climate advocates must work if they want to pass climate legislation. In an interview last week, Waxman acknowledged as much. “We’re going to reach out to Republicans and Democrats from all over the country to deal with this national and international problem,” he said. “I don’t think it’s a partisan issue. We’re hoping to develop as broad a consensus as possible, both in the committee and in the House.”

As they woo the fence sitters, Pelosi and her whip team can reach the all-important 218 threshold by following any number of strategies. For one, they could choose just to lobby their own. Most of the maybes are Democrats (97). And they also are largely from states that Obama won in last November’s election (91).

But the fence sitters are not likely to swing to the “yes” column without some concessions. Depending on how it is written, a climate bill could be costly, which does not bode well for the 32 members in the fence sitter column who also are part of the Democratic Blue Dog coalition, a group of fiscal conservatives.

The fence sitter category also includes a sizable number of lawmakers (56) who won their 2008 races with less than 60 percent of the vote — making their position on a controversial issue like climate change all the more important as they face voters again in less than two years. The fence sitters also include 34 first-term Democrats and Republicans, a disproportionate share of the 56-member freshman class in the 111th Congress.

Both book ends to the climate debate deserve scrutiny as well, including Democrats who support aggressive greenhouse gas targets but could get turned off by their own leadership’s compromises, as well as rank-and-file Republicans who wince at the prospect of the Obama administration writing climate regulations under Supreme Court precedent from Massachusetts v. EPA.

Considering those dynamics, most vote counters say Pelosi and Boxer will have plenty of work to do before they can start planning for a White House signing ceremony.

“That last little bit to accomplish your goal is hardest,” said David Goldston, former Republican staff director for the House Science Committee. “To be 40 or 50 short on an issue like this, no matter the pool, that’s a heavy lift.”

Rep. Darrel Issa (R-Calif.) said he questions whether cap-and-trade sponsors will be successful considering there are almost 100 House Democrats who do not begin the year in the “yes” column. “As soon as you’ve lost that many of the majority in lock step, you have a problem,” Issa said.

Waxman does have the experience factor on his side. The 18-term congressman is likely to quarterback the climate bill when it hits the floor. And he will bring with him legislative skills renown on Capitol Hill, plus a staff led by longtime adviser Phil Barnett, and counselors Greg Dotson, Alexandra Teitz and Lorie Schmidt. Also working on Waxman’s side is Phil Schiliro, the congressman’s former chief of staff who is now serving as Obama’s top congressional liaison.

“There are few people as astute as those guys,” said Goldston, a visiting lecturer at Harvard University’s Center for the Environment. “They’ll know what they’re getting into.”

Trying to make Waxman look like a moderate

The climate bill’s first test will come in Waxman’s Energy and Commerce Committee.

Democrats hold a 36–23 ratio advantage there. But those numbers are deceptive considering at least a dozen of the majority party’s members represent heavy industrial districts, with perspectives on environmental issues that do not typically line up with their new chairman (E&E Daily, Feb. 9, 2007).

Waxman has pledged to move his climate and energy bill through regular order, which means Rep. Ed Markey’s (D-Mass.) newly created Energy and Environment Subcommittee will be the starting point for legislation. “We’ll ask them to do that before, to the extent they can get all those issues resolved,” Waxman said last week. “And what they can’t get resolved in subcommittee, we’ll deal with in full committee.”

Markey started laughing when reporters asked him last week about his subcommittee markup plans, pointing out that there are several holidays still to come before reaching Waxman’s Memorial Day goal. “Excuse me?” Markey said. “Have we hit Valentine’s Day yet? Have we hit St. Patrick’s Day yet? Have we hit Easter? Passover? May Day?”

Markey’s panel holds its inaugural hearing Thursday (see related story).

It is no doubt that Markey’s subcommittee will not be a very easy place to legislate. Boucher, the panel’s former chairman, was repeatedly forced to lower his expectations on a climate bill because of GOP resistance, led in part by the Bush administration. To this day, nearly all of the Republicans on Markey’s panel are skeptical of the type of climate bill its chairman envisions. And of the subcommittee’s 21 Democrats, 11 also have pointed concerns about cap and trade.

“You may not have a majority for anything,” said a former Democratic aide from the House Energy and Commerce Committee.

Instead, Markey’s most important role is a political one. “He’s going to try to make Henry Waxman look like a moderate,” the former Democratic aide said, before adding with a note of skepticism, “But that’ll take some doing.”

Another looming question is what Waxman actually has in mind for his “comprehensive climate and energy legislation.” He is likely to pull from previous versions of cap-and-trade legislation, including his and Markey’s proposals. There is also a Dingell-Boucher draft unveiled last fall that takes many of its core concepts from earlier global warming bills. As Waxman picks and chooses, he will need to resolve a series of complicated debates involving cost containment, emission allocations, greenhouse gas targets, offsets, technological availability, international competition and so much more.

On the energy side, a guessing game has broken out about what Waxman intends to include. Ideas on the table include Markey’s bill establishing a national renewable energy portfolio, Boucher’s proposal for a $1 billion fund to promote deployment of carbon capture and sequestration at power plants, an even more aggressive automobile fuel economy standard, incentives to promote development of a smart grid and a low carbon fuel standard akin to what California officials have implemented.

Waxman’s silence is a smart strategy, according to the former House Democratic committee aide. “That’s what a chairman is supposed to do,” the former staffer said. “That’s what Dingell would do. Why decide before you have to? Deciding means saying ‘no.’”

As he proceeds, the House chairman also must take into account the evolving debate in the Senate, where vote counting will be critical if a climate/energy bill is going to win 60 votes and overcome a filibuster. Senate Energy and Natural Resources Chairman Jeff Bingaman (D-N.M.) supports cap-and-trade legislation but for now his focus is on a renewable portfolio standard and other items left out of previous energy legislative packages. Boxer has also vowed to mark up her own “simplified” version of cap and trade, the first step in a lengthy process that will not be successful unless Senate Democratic leaders can convince their own fiscal conservatives and moderates — known as the “Gang of 15” — to come along.

Sen. George Voinovich (R-Ohio) said he welcomes Waxman’s entry into a global warming debate that the Senate has been waging since the start of the Bush administration. “It might be good for the House if they want to do something,” he said. “You get a chance to see the whites of their eyes. To see what they have and then figure out how does that fit in with some of the stuff we’re thinking about.”

Back in the Energy and Commerce Committee, it is often stated that a legislative victory there foretells success when the bill reaches the entire House. “If you do it in committee, I think you do a huge amount of what you need to do for the floor,” said Manik Roy, vice president of federal outreach at the Pew Center on Global Climate Change.

Where are the Republicans?

Republicans make up the other big element to the climate debate. While Arizona Sen. John McCain, the party’s presidential nominee in 2008, supported cap-and-trade legislation, only a few other members of his party’s congressional conference do too.

Gone are Reps. Sherwood Boehlert of New York, Christopher Shays of Connecticut and Wayne Gilchrest of Maryland, who is credited with bringing a handful of moderate Republicans along as cosponsors of cap-and-trade legislation.

In fact, E&E’s analysis shows that only three House Republicans belong in the “yes” column at the moment: Delaware’s Mike Castle and New Jersey’s Frank LoBiondo and Christopher Smith. By contrast, at least 147 House Republicans have records on the issue that place them in the “no” camp.

Several Republicans interviewed in recent weeks said they doubt they will support global warming legislation because of the current state of the U.S. economy. “Once we get our legs back under us economically, then I want to go with this full force and I’ll be a strong supporter,” said Rep. Phil Gingrey (R-Ga.). “But I’m in no hurry right now.”

“Right now the American people are focused on jobs and they know the best economic stimulus is a job,” added Rep. Marsha Blackburn (R-Tenn.). “I’d suggest this is not the time for that type of debate.”

John Mimikakis, a former House Republican staffer on the Science Committee now working for the Environmental Defense Fund, said the GOP opposition also stems from Rep. Joe Barton (R-Texas), the ranking member of the Energy and Commerce Committee and an outspoken skeptic on climate science. “Because he’s a prominent and respected member of the conference, it makes it challenging for someone to step up and be an alternative voice on the committee or even off the committee,” Mimikakis said.

Yet according to E&E’s analysis, Democrats will have a small group of about 29 Republican fence sitters to work with, lawmakers who come primarily from the mid-Atlantic states, Florida, Illinois and Ohio. “It’s the moderate Republicans,” said Rep. Stephen LaTourette (R-Ohio). “There aren’t very many of us left.”

LaTourette, who cosponsored Olver’s cap-and-trade bill in 2007, said he probably will be there again when the climate debate reaches the floor. “I’m going to be consistent,” he said. “But they can’t change it in a way that moves too far, too fast.”

Rep. Mark Kirk (R-Ill.) describes himself as the leader of the Republican House moderates. But Kirk said he has not been contacted yet by Democratic leaders on global warming, a complaint he has also been making along with other GOP members about the Obama-led push early this year to quick pass economic recovery legislation.

“You hope we act on climate change,” said Kirk, who is considering a run for Obama’s former Senate seat in November 2010. “If I was in a room with them, I’d say my advice is a bill which establishes a cap-and-trade system, which is more on the regulatory side, could achieve bipartisan support. A bill which put in carbon fees would collapse almost immediately in this environment.”

Rep. Roscoe Bartlett (R-Md.) signed up in 2007 as a cosponsor to Olver’s cap-and-trade bill at the encouragement of Gilchrest, the Maryland congressman who was defeated last year in the Republican primary by a more conservative opponent. In an interview last month, Bartlett said he is not so sure he will support a climate bill.

“Who’s the Solomon who’s going to ascribe the permissible CO2 levels for the different industries?” Bartlett said. Isn’t that going to be Congress’ responsibility? “That’s incredible,” Bartlett replied. “We are probably the least likely people to do it right.”

With McCain at the top of their presidential ticket, even some of the most conservative members of the Republican Party seemed open to the idea of cap-and-trade legislation. “I think McCain is moving in a responsible direction,” House Minority Leader John Boehner (R-Ohio) said in May 2008. “Clearly the issue of climate change is on the minds of a lot of people. Humans clearly contribute to this. It just really depends on what kind of a cap-and-trade system, what kind of safety valves are in there.”

Other House Republicans also expressed interest in climate legislation last year, though their comments were sufficiently vague and later followed by an equal amount of skepticism about the overall idea. Rep. Ed Whitfield (R-Ky.), for example, told E&E Daily last May that there were about 10 coal-state Republicans willing to work on cap-and-trade legislation so long as it took industry concerns into account (E&E Daily, May 15, 2008).

With McCain back in the Senate and Democrats leading the debate, Republicans remain a difficult group to gauge. According to Goldston, GOP members are likely to peel off like layers of an onion. “The first ones are committed personally on environmental issues, you can get them unless there’s some real concerns about some local interest,” he said. “I can imagine a level of political pressure because their districts want them to be good on this.”Another group of Republicans could follow as the scientific warnings grow, and depending on public perception of climate and energy. A shift in GOP leadership could also free up the rank-and-file members to vote for a global warming bill, especially if the party takes a moderate shift in image makeover following sweeping electoral defeats in 2006 and 2008.All things considered, Goldston said the process is still shaping up to be a long one. “Most of these bills take several cycles,” he said. “It’s a huge lift to try to do this without either the public or members having to get their teeth sunk into it before.”

Well, I don’t think this is going to take several cycles, even if you can’t last year’s Boxer- Lieberman-Warner bill as the first cycle. This needs to be done by the end of 2010, and Obama can get this done if he makes it a priority — and if Congressional leaders think both strategically and tactically.