WASHINGTON, D.C. -Senate Republicans agreed to give up on their Energy Policy Act of 2003 and instead joined with Democrats to pass last year's Senate energy bill, which failed in the 107th Congress over party-line differences on oil and gas exploration and development in the Alaska National Wildlife Refuge.
The new bill now heads for a conference committee following Congress's August recess. The conference committee will attempt to iron out differences between the new Senate bill, and the parallel bill passed in the House of Representatives, H.R. 6. The House version does contain provisions that would open ANWR to development.
The House is already in recess; the Senate hopes to follow suit Aug. 1.
The implications of this compromise maneuver for the Native-specific section of the bill remain to be seen. The Native-specific section, Title III, was offered as an amendment to the larger act by Sen. Ben Nighthorse Campbell, R.-Colo., chairman of the Senate Committee on Indian Affairs. But Campbell withdrew it to attach further amended passages in deference to concerns raised most vocally by the Navajo Nation.
The primary concern of the Navajo, and like-minded tribes and organizations, is the amendment's provision for a waiver of federal liability in energy development projects where tribes choose to follow a "streamlined" Interior Department approval process. Environmental concerns, including the hypothetical scenario of opening ANWR to "back-door" development through streamlined initiatives of Alaska's Native corporations, have also been raised.
Campbell and his allies stoutly defend the streamlining provisions as a way to deliver Native projects from federal red tape and permit tribes to voluntarily take part in a national "energy solution."
Paul Moorehead, lead counsel to Campbell on the committee and his spokesperson on Indian affairs, said the senator expects to see his amendment signed into law by President Bush this fall.
"I think where we'll be is this doesn't change much for us ? Our amendment is our amendment."
Dan Pfeiffer, press secretary to Senate Minority Leader Tom Daschle, D-S.D., said Daschle prefers the Indian title in last year's energy bill to Campbell's 2003 amendment. Daschle had a hand in drafting last year's Indian-specific energy provisions, Pfeiffer said, and he prefers them because they would not force tribes to choose between energy development and tribal sovereignty. Daschle will resist any effort to write the Campbell amendment into the conference committee energy bill as a replacement Indian title, he added.
Sen. Pete Domenici, R-N.M., chairman of the Senate Energy and Resources Committee, is on record to the effect that ANWR would not be a part of the Energy Policy Act of 2003, authorized by Energy and Resources. The senior senator from New Mexico watched one energy bill "die in conference," as congressional parlance has it, during the 107th Congress, almost entirely due to ANWR-specific differences between the parties.
But he has also noted that he can't say "absolutely no" to ANWR provisions, and now in any case the Energy Policy Act of 2003 is in mothballs.
Domenici has declared himself satisfied with the compromise outcome because Republicans, as the majority party in both the House and the Senate, will control the post-recess conference committee that must report a final bill back to both chambers. In conference, he anticipates writing a new bill. This is where the Campbell amendment would have to be added. Domenici and Campbell worked in tandem to get the Campbell amendment through close votes at the committee level and in the full Senate.
Marnie Funk, of Domenici's Energy and Natural Resources Committee staff, did not return a voice-message on short notice seeking further detail on Domenici's plans for the new energy bill.
For the conference version of the latest energy bill to become law, the full House and Senate will have to approve it.
While the Campbell amendment, in one form or another, seems unlikely to be left on the shelf, there is simply no telling now how ANWR issues will play out in the conference version of the energy bill. One informed view from the sidelines would note, however, that Republicans are not unified behind oil and gas exploration and development in ANWR; and the Senate in particular may want to avoid going to conference on the unlikely compromise of July 31, only to report back an energy bill that cannot be passed into law.
Come what may, the late events of July 31 made it a "fascinating day" in this year's 108th Congress, according to Senate Majority Leader Bill Frist, R-Tenn. In comments following the late compromise vote, Frist added that the bill-swapping maneuver was "a little bit unusual."
Other observers consider that an understatement. "You gotta be kidding, Republicans control the Senate" was the first reaction of a Republican staffer in the recessed House of Representatives. That response echoed across Capitol Hill after a sudden afternoon mention on the Senate floor by Senate Minority Leader Tom Daschle, D-S.D., signaled that the compromise was in the works. Other accounts have ranged from "abrupt" to "extraordinary" in describing the compromise.
So perhaps a careful rehearsal is in order here: Senate Republicans entered the last week of July confident that they could pass the Energy Policy Act of 2003. But efforts to move it to a floor vote bogged down under a barrage of amendments and Democratic debate on other business before the Senate. With still other hard-fought policy and appropriations votes looming after the recess, Republican confidence of getting to a vote on the overall energy bill faded. Enter Daschle and the Democrats with an offer to pass last year's energy bill, crafted in the then-Democratic-controlled Senate, in place of this year's Energy Policy Act of 2003, crafted in a Senate controlled by the current Republican majority.
A conference committee, controlled by Republicans, will attempt to iron out differences between the new Senate energy bill from last year and a House version passed in April of this year. Generally in a conference committee, bargaining provisions and tradeoffs are essential to ironing out these differences. Provisions not in the Senate and House versions can be written into a bill's conference version, but generally lawmakers weigh votes carefully before writing in provisions that might doom a bill once it is out of conference. The full House and Senate will have to approve any bill reported out of conference if that bill is to become law.
Daschle's remarks after the compromise vote made it clear that Democrats preferred going to conference on a bill they approved last year rather than any version they were going to get this year. The Republican position in all this was less clear the day after, but the stated party line is that they got to a vote on a national energy bill, a more Republican-leaning version of which they hope to achieve in conference.