Commentary
Alaska State Senator Kim Elton has been appointed Director of Alaska Affairs at the U.S. Department of the Interior. His appointment comes as Alaska once again grabs headlines. Last week, Senators Lisa Murkowski and Mark Begich challenged efforts by Members of Congress and the Obama Administration to include a provision in the Omnibus Appropriations bill to allow the Administration to roll back Endangered Species Act regulations for the polar bear without standard notice and comment proceedings. On Thursday, the joint effort by Murkowski and Begich to amend the provision failed, and last night, Congress passed the $410 billion omnibus bill with the polar bear rider attached. In February, Congress passed a $743 billion stimulus bill, which included $43 billion in funding and incentives for renewable energy and energy efficiency. Senator Murkowski introduced an innovative new ANWR bill that would allow development of some of the Refuge's oil and gas resources without permitting surface occupancy. Interior Secretary Ken Salazar announced that the Administration will reconsider national oil and gas leasing policy in the coming months. And, the House Committee on Natural Resources held three hearings on national offshore drilling policy, while the Senate plans to hold a hearing on offshore drilling policy in March.
CONGRESS
The Congress has spent the last few
weeks working on two massive spending bills: a $743 billion
economic stimulus bill, formally known as the "American
Recovery and Reinvestment Act," (Pub. L. 111-5) and the
"Omnibus Appropriations Act" (H.R. 1105) which provides
the remainder of fiscal year 2009 funding for the federal
government.
Last night, the $410 billion Omnibus
Appropriations bill passed the Senate by voice vote. President
Obama is expected to sign the bill shortly.
Yesterday, Senate Majority Leader
Harry Reid (D-NV) was able to garner the 60 votes he needed to cut
off debate and pass the omnibus bill. The vote on cloture was
62-35, with eight Republicans joining 54 Democrats to allow the
bill to move forward. Republicans who supported invoking cloture on
the bill included Senators Lisa Murkowski, Thad Cochran (R-MS),
Richard Shelby (R-AL), Lamar Alexander (R-TN), Roger Wicker (R-MS),
Arlen Specter (R-PA), Kit Bond (R-MO), and Olympia Snowe (R-ME).
Congress will now turn to the FY 2010 appropriations process.
Stimulus Bill Funds
Significant Renewable Energy and Energy Efficiency
Measures
With more than $43 billion in grant
funding, loan guarantees, and tax incentives, renewable energy and
energy efficiency programs fared very well in the final version the
economic stimulus bill signed by President Obama on February 16.
For a breakdown of the final numbers in a recent policy update,
please refer to "Renewable Energy and Energy Efficiency
Programs Emerge as Winners in American Recovery and Reinvestment
Act," on the Van Ness Feldman website at
http://www.vnf.com
Omnibus Appropriations Rider
Allows Obama Administration to Issue New Polar Bear Rule without
Notice and Comment
Democrats in the House of
Representatives attached a rider to the Omnibus Appropriations bill
that gives the Secretary of the Interior the authority to overturn
certain regulations that the Bush Administration adopted under the
Endangered Species Act (ESA). One of the regulations is the Polar
Bear Special 4(d) Rule, which was issued in an effort to provide
legal certainty to the application of the ESA in Alaska's
arctic region. The other regulation allows federal agencies greater
leniency to determine for themselves whether a project is likely to
present a threat to protected species. The rider gives the
Secretary of the Interior 60 days to withdraw or
"reissue" the regulations.
The Polar Bear 4(d) Rule adopts
existing conservation regulatory requirements under the Marine
Mammal Protection Act of 1972 and the Convention on International
Trade in Endangered Species of Wild Fauna and Flora as the
appropriate regulatory provisions for the polar bear. The polar
bear was listed as threatened last May.
It is unclear what actions the
Secretary may now take to reissue the Special Rule for the polar
bear, and the legislative history of the bill does not explain how
Congress intends the term "reissue" to be interpreted.
Under one interpretation, the Secretary can now issue a revised
rule, with major changes, without having to comply with the
procedural requirements of the Administrative Procedure Act (APA)
or the ESA, including notice, comment and consultation rules.
Pursuant to the terms of the rider,
should the Secretary decide to withdraw the 4(d) Rule, the polar
bear would remain listed as a threatened species under the ESA, but
some activities currently covered, and protected, by the 4(d) Rule
would be at risk for incurring liability under the ESA, should a
"take" of a polar bear occur. This liability could extend
even to minor, incidental impacts on polar bears from otherwise
entirely lawful activities. Other activities and actions, such as
self-defense and most subsistence activities, would remain
protected by statute.
Last week, Senators Murkowski and
Begich jointly offered an amendment to the Omnibus Appropriations
bill that would have permitted the withdrawal of the Polar Bear
4(d) Rule, but only after the regular notice and comment procedures
of the APA had been followed. On Thursday, the Senate defeated the
Murkowski-Begich amendment by a vote of 52 to 42.
Last night, the Senate approved the
Omnibus Appropriations bill by voice vote, with the polar bear
rider attached. The bill now goes to the President for his
signature.
House Natural Resources
Committee Conducts Hearings on National OCS Drilling Policy; Shell
President Marvin Odum Suggests New Course of Action for
Alaska
The House Committee on Natural
Resources held three hearings in February on national offshore oil
and gas drilling policy, eliciting testimony from various
stakeholders.
An oversight hearing on energy
development on public lands and the outer Continental Shelf is also
scheduled for the Senate Committee on Energy and Natural Resources,
to be held on Tuesday, March 17, 2009. For further information,
contact Patty Beneke at (202) 224-5451 or Gina Weinstock at (202)
224-5684.
The first of the three House
committee hearings was decidedly anti-drilling, with several
representatives of environmental, tourism, and fishing interests
expressing opposition to offshore oil and gas development. Most
speakers encouraged Congress to re-impose the congressional
moratorium on expanded outer continental shelf (OCS) leasing. At
the second hearing, witnesses speaking on behalf of state interests
disagreed about the extent to which offshore oil drilling should be
permitted. However, most state representatives appeared to agree
with members of the conservation community that a permanent Ocean
Conservation Trust Fund, funded with OCS production royalties,
should be an element of any new drilling plans.
The third hearing featured
representatives of the oil and gas industry. Marvin Odum, President
of Shell Oil, talked at length about the difficulties his company
has had developing leases in Alaska's arctic region, an area
that holds an estimated 25 billion barrels of oil and 122 trillion
cubic feet of natural gas. Shell has purchased 434 offshore leases
in the Beaufort and Chukchi Seas, but Odum stressed that legal
challenges have resulted in what he deems a "de facto
moratorium" on development of the northern Alaska OCS.
Mr. Odum suggested that Congress
could take several important steps to improve the efficiency of the
regulatory process for offshore development in Alaska, including
(1) establishing a timeframe within which legal challenges to
federal permits must be resolved, (2) providing adequate funding to
federal agencies to conduct required environmental studies, and (3)
establishing a federal pilot office in Alaska to coordinate the
regulatory activities of agencies that address energy development
in the State.
Opponents of offshore drilling
focused on a range of concerns, including spills, dependency on
fossil fuels, climate change, impacts on marine mammals and fish
from exploratory activities, and drill mud contaminants, although
they generally appeared to recognize that technological
advancements have lessened overall environmental impacts. In
addition, citing a U.S. Energy Information Agency report, drilling
opponents noted that, at peak production in 2025, increased
offshore drilling would produce only 220,000 barrels a day, which
would account for less than 1 percent of current energy demand in
the U.S.
Proponents and opponents alike had
much to say about how to spend drilling revenues. Phillipe
Cousteau, grandson of Jacques Cousteau, challenged lawmakers to set
aside an ocean conservation fund. Other witnesses recommended
sharing more of the oil and gas revenues with affected states.
Several witnesses suggested that revenues should help pay for
renewable energy infrastructure.
Senator Murkowski Proposes
Innovative Legislation to Develop ANWR's Oil and
Gas
During her annual address to the
Alaska Legislature, Senator Murkowski announced that she will
introduce federal legislation that would allow oil and gas from the
Arctic National Wildlife Refuge (ANWR) to be developed from state
lands and waters using directional drilling techniques. The
proposed legislation would permit limited oil and gas development
of ANWR's resources, while ensuring that no surface development
would occur in the federal refuge.
In 2007, the 110th Congress, with
strong Democrat majorities, approved "no surface
occupancy" development of oil and gas in a Wyoming wilderness
area when it passed the Wyoming Range Legacy Act of 2007, setting a
supportive precedent. Senator Murkowski's "best of both
worlds" ANWR bill likely will be the subject of serious public
discussion when the 111th Congress considers federal energy
legislation this spring.
Senate Energy and Natural
Resources Committee Issues Subcommittee Assignments
It's official: Democrats on the
Senate Energy and Natural Resources Committee have a three-vote
majority for the 111th Congress, with 13 Democrats and 10
Republicans, compared to 12 Democrats and 11 Republicans in the
prior Congress.
Democrats on the committee include
Senators Jeff Bingaman (D-NM), chairman; Byron Dorgan (D-ND); Ron
Wyden (D-OR); Tim Johnson (D-SD); Mary Landrieu (D-LA); Maria
Cantwell (D-WA); Bob Menendez (D-NJ); Blanche Lincoln (D-AR);
Bernard Sanders (I-VT); Evan Bayh (D-IN); Debbie Stabenow (D-MI);
Mark Udall (D-CO); and Jeanne Shaheen (D-NH). Republicans include
Senators Lisa Murkowski, ranking member; Richard Burr (R-NC), John
Barrasso (R-WY); Sam Brownback (R-KA); James Risch (R-ID); John
McCain (R-AZ); Robert Bennett (R-UT); Jim Bunning (R-KY); Jeff
Sessions (R-AL); and Bob Corker (R-TN).
Senators Cantwell and Risch will be
chairman and ranking member, respectively, on the Subcommittee on
Energy. Senators Wyden and Barrasso will be chairman and ranking
member of the Subcommittee on Public Lands and Forests. Senators
Udall and Burr will be chairman and ranking member of the
Subcommittee on National Parks. And, Senators Stabenow and
Brownback will be chairman and ranking member of the Subcommittee
on Water and Power. Senators Bingaman and Murkowski will be ex
officio members of each of the subcommittees.
Alaskans on the
Hill
Erik Elam, who has worked for
Congressman Don Young for just over a year, recently took over as
legislative assistant on issues relevant to Alaska Natives, public
lands, energy, mineral development, and other issues that fall
under the jurisdiction of the House Committees on Natural Resources
and Energy & Commerce.
Kevin Simpson recently joined the
Minority Staff of the Senate Committee on Energy and Natural
Resources. Kevin is from Juneau, Alaska and served through the end
of the 110th Congress as Senator Ted Stevens's legislative
assistant on energy issues. Kevin's issues include oil and gas,
oil shale, liquid natural gas, management of natural gas by the
Federal Energy Regulatory Commission, and management of oil and gas
by the Bureau of Land Management and Minerals Management Service
(MMS).
ADMINISTRATION
Interior Secretary Ken
Salazar Re-Evaluates U.S. Oil and Gas Policy
On Friday, January 16, 2009, four
days before the inauguration of President Obama, the Bush
Administration proposed a new five-year OCS oil and gas leasing
program that called for 31 offshore lease sales in 12 planning
areas between 2010 and 2015, including new sales in the Beaufort
and Chukchi Seas and in Cook Inlet off of Alaska.
The current OCS five-year program is
set to expire on June 30, 2012. Under the Bush Administration's
proposal, the current five-year plan would have been succeeded by
the new program two years ahead of schedule.
Criticizing the Bush
Administration's eleventh hour proposal as "a headlong
rush of the worst kind," based on "bad information,"
and tilted towards the "usual" energy players, on
February 10, 2009, Secretary Salazar announced a "new way
forward" on OCS planning that will consist of four
steps:
First, the Department of the Interior
(DOI) extended the public comment period on the Draft Proposed
5-Year OCS Oil and Gas Leasing Program for 2010-2015 by 180 days,
to September 21, 2009.
Second, Secretary Salazar directed
both MMS and the U.S. Geological Survey (USGS) to assemble by the
end of March a report detailing current information regarding all
offshore resources of the United States. This process, the
Secretary commented, will allow DOI to move forward on an OCS
development policy with a comprehensive understanding of U.S.
offshore resources, as well as an understanding of where
information about offshore resources is lacking. Based on the
report, DOI will determine the areas for which more information is
necessary and will develop a plan for gathering that
information.
Third, within 30 days of the issuance
of the report by MMS and USGS, DOI will hold four regional meetings
around the country regarding the Administration's next steps
with respect to OCS development. One meeting each will be held in
Alaska, on the Pacific Coast, on the Gulf Coast, and on the
Atlantic Coast. Meeting sites have not been finalized.
Fourth, and finally, the Secretary
promised to move forward as soon as possible on a final rulemaking
for development of offshore renewable resources. This rulemaking
will provide a framework for offshore renewables development,
including wind, wave and tidal energy development. Secretary
Salazar said that he hopes to issue the final rulemaking "in
the next few months."
Secretary Salazar clarified that DOI
is not proposing any substantive changes to the current five-year
OCS oil and gas leasing program, and that the Department will
continue to allow lease sales to move forward as scheduled. In
response to questions regarding contentious leases already
scheduled under the current plan, Secretary Salazar suggested that
while some scheduled leases could be the subject of litigation, the
Administration has no current plans to intervene or postpone such
leases.
Onshore, on February 4, Secretary
Salazar also cancelled oil and gas leases on 77 parcels of federal
land in Utah, reversing one of the Bush Administration's final
official acts. In December, BLM had auctioned off 116 parcels for
oil and gas development despite objections that development on most
of the parcels could harm protected lands in Nine Mile Canyon and
Arches National Park. Secretary Salazar commented he was canceling
the leases while DOI re-examines the studies that permitted the
contested parcels to be leased.
The latter action shows that
Secretary Salazar is willing to consider canceling oil and gas
leases after sales have been held, suggesting the
Secretary could consider canceling other planned lease sales. The
move has some wondering if the Administration could interfere in
planned offshore oil and gas lease sales in politically sensitive
regions like Alaska's arctic region. However, in his February
10 press conference regarding national OCS policy, Secretary
Salazar emphasized that the Obama Administration has no current
plans to intervene in or postpone any of the leases scheduled under
the current five-year OCS oil and gas leasing plan.
Senator Kim Elton Appointed
Director of Alaska Affairs at the Department of the
Interior
On Tuesday, Juneau's own Kim
Elton was appointed Director of Alaska Affairs at the U.S.
Department of the Interior. Elton was elected to the City and
Borough of Juneau Assembly in 1989, served as a member of the
Alaska House of Representatives from 1994-1998, and has served as
an Alaska State Senator since 1998.
Elton, a Democrat, served as a policy
aide to former Alaska Republican Lt. Governor Terry Miller and as
staff to the House of Representatives Democratic Caucus and
Legislative Affairs Committee. Elton has worked on commercial
fishing boats and has served as Executive Director of the Alaska
Seafood Marketing Institute.
Elton grew up in Southeast
Alaska.
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