E2 Law Blog : Environmental Lawyers & Attorneys : Greenberg Traurig Law Firm : Climate Change, Energy Legislation

The article states: 

The backlash against climate science is also about the way in which leading scientists allied themselves with politicians and activists to promote their cause. Some of the IPCC’s most-quoted data and recommendations were taken straight out of unchecked activist brochures, newspaper articles, and corporate reports—including claims of plummeting crop yields in Africa and the rising costs of warming-related natural disasters, both of which have been refuted by academic studies. 

Just as damaging, many climate scientists have responded to critiques by questioning the integrity of their critics, rather than by supplying data and reasoned arguments.…None of this means we should burn fossil fuels with abandon. There are excellent reasons to limit emissions and switch to cleaner fuels—including an estimated 750,000 annual pollution deaths in China, the potential to create jobs at home instead of enriching nasty regimes sitting on oil wells, the need to provide cheap sources of power to the world’s poorest regions, and the still-probable threat that global warming is underway. At the moment, however, certainty about how fast—and how much—global warming changes the earth’s climate does not appear to be one of those reasons.

KL is, first and last, a "climate change" bill.  It assumes dangerous climate change is a scientific certainty, and thus justifies handing effective control over US economic policy and growth to the EPA.  Yet, imposing pervasive federal controls over the economy is a heavy lift under any circumstances, and especially during the worst economic times in the past forty years.  Therefore, climate change believers need the mainstream media fully on board in order to help sell legislation that will, inevitably, impose additional economic pain.  This Newsweek article, however, suggests that even the most mainstream of media outlets no longer buys the climate change narrative.  If so, the Bill has crossed the Rubicon, and arguably passed the point of no return.   

2. There will be a gasoline tax, though its not called that. Refiners get some breaks in the form of free allowances.  There will be very extensive and expensive building and home efficiency requirements - this means commercial real estate owners and developers are facing increased costs and regulatory requirements. There will be more money for solar/wind development. There will be a "robust" nuclear title, with reforms in permitting, insurance, siting requirements, etc. to speed deployment. There will be provisions for continued use of coal provided there is carbon capture and sequestration (CCS) technology available. No viable CCS, no coal. The bill contains no liability relief or siting assistance for CCS operations, further complicating deployment. There may be siting assistance for new transmission lines, but nothing else. Off shore drilling is still in, but may be out by the time the draft is made available to the public (supposedly next week). Nothing for natural gas - the drafters said that the bill will drive people away from coal, and encourage the use of natural gas trucks, so their market is made without more.

3. There will be "rebates" to consumers to cover higher utility bills. However, these will be in the forms of tax credits and/or grants to community organizations, not necessarily in the form of checks. Only the "vulnerable populations" will qualify for direct cash rebates.   Also, some of the allowance revenue will be "recycled" in the form of funding for the highway trust fund, grants for solar arrays or wind farms, battery research, etc. No real analysis of job losses or economic impact has been done.

4. The drafters tacitly admitted that the bill, if enacted, will not have any material impact on the increase in worldwide CO2 levels. They said that they hope China and India will agree to reduce CO2 emissions based on our example. The trade provisions in the bill are still under discussion.

5. There is not so much preemption. EPA cannot call CO2 a hazardous air pollutant, or set a NAAQS for GHGs, and state CO2 registries and exchanges are out of business. That's it. EPA may continue to regulate mobile sources (cars and trucks). Tort suits go forward. Claims under ESA, CWA, NEPA, state laws, etc. all in play. Also, the bill leaves the door open for EPA to step back in and re-regulate GHGs if worldwide levels exceed an as of yet undefined benchmark.

6. The bill will be about 1500 pages long. It will incorporate provisions of three other energy bills now kicking around the Senate. If passed, there may be a conference to reconcile with Waxman-Markey. Alternatively, they'll use reconciliation ala health care. The primary difference between this bill and Waxman-Markey seems to be more effort has been made to buy off coal state Democrats and to strengthen nuclear power development to reduce Republican opposition.   Substantively though, the bills are very similar.

No matter what anyone says, it seems that the primary purpose of the bill is to "transform the US economy." It will be pitched as a jobs bill and an energy security bill for political reasons, however, there are no data/studies supporting these claims. 

The bill is very much a work in process, but the basic outlines are unlikely to change in any material way.