House clears “midnight rules” bill; would allow wholesale rejection of all regs issued in last year of presidency

The Republican-controlled U.S. House of Representatives has passed a bill that would allow Congress to reject all federal regulations finalized since January in one fell swoop.

Labeled the Midnight Rules Relief Act of 2016, H.R. 5982 would allow the 115th Congress to sidestep the current requirement that each regulation that is the subject of an override attempt be the subject of a separate resolution.

So-called “midnight rules” are regulations that an administration completes during the time between a presidential election in November and the inauguration of a new President on the following January 20.

Sometimes these late regulations are used by an outgoing administration to assure that its policy initiatives can endure for a time. The Administrative Procedure Act requires that agencies develop a new factual record before they may repeal or significantly modify existing rules.

Most midnight rules are not controversial, though. A 2012 study by the Administrative Conference of the United States concluded that are “relatively routine matters not implicating new policy initiatives by incumbent administrations” and that the “majority of the rules appear to be the result of finishing tasks that were initiated before the Presidential transition period or the result of deadlines outside the agency’s control (such as year-end statutory or court-ordered deadlines).”

The Congressional Review Act, enacted into law in 1996, permits Congress to reject regulations in a process that bypasses the usual risks of legislative gamesmanship in the U.S. Senate.

Under the CRA, amendments to a resolution that rejects a “major” federal regulation are not permitted. No holds by individual senators, and no filibusters by opponents of a resolution that would eliminate a federal regulation, are allowed.

Congress has 60 days following the date on which both chambers of Congress have received a notice that a regulation has been issued in which to pass a CRA resolution that disapproves it. The 60 day-long clock resets at the beginning of a new Congress if the regulation was issued during the final 60 “session” days, in the case of the Senate, or the final 60 “legislative” days in the case of the House of Representatives, of the preceding Congress.

Although opponents of various regulations have introduced dozens of CRA resolutions in the 20 years since enactment of that statute, it has been invoked only one time. An Occupational Health & Safety Administration rule that addressed ergonomics, which the Clinton administration had finalized in November 2000, was turned away in 2001.

H.R. 5982 would need to pass the Senate and be signed by the President to become law. The Senate has not yet taken up the measure. Moreover, President Barack Obama has threatened to veto H.R. 5982, which cleared the House Nov. 17 by a 240-179 vote.

“[P]roviding for an arbitrary packaging of rules for an up-or-down vote, as this bill does, is unnecessary,” a statement issued by the Executive Office of the President on Nov. 12 said.

Three House Democrats voted with the majority GOP to pass the bill.

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House to vote on Senate-passed KXL bill next week

The U.S. House of Representatives will vote next week on whether to adopt the KXL pipeline bill approved by the Senate.

The chamber’s majority leader, Rep. Kevin McCarthy, R-Calif., announced Tuesday his intention to move the controversial proposal to President Barack Obama’s desk.

“Next week we will take up the Keystone pipeline as passed by the Senate and send it to the President’s desk,” McCarthy said during a press conference.

If the House, as expected, passes S.1 without changes, then Obama will soon be in a position to impose a promised veto of the legislation.

Senate votes approval of KXL pipeline bill

The U.S. Senate approved Thursday the contentious bill to cut the President out of the process of deciding whether to authorize the KXL oil pipeline.

The vote followed two more days dedicated, in part, to debate on a series of amendments to the bill.

Nearly all of those amendments failed to reach the 60-vote threshold for adoption.

Senators voted on about a dozen amendments this week, following a successful filibuster of S.1 by minority Democrats late last week, and several of them implicated the nation’s environmental policy:

• A  proposal by Sen. Benjamin Cardin, D-Md., to assure that communities along the pipeline route are notified of the risks of leaks or ruptures was defeated, 37 ayes to 67 nos.
• Sen. Gary Peters, D-Mich., sought to require a certification by federal pipeline regulators that they have adequate resources to assure safety; it was beaten back by Republicans, 40-58.
• An amendment by Sen. Bernie Sanders, I-Vt., to provide tax rebates for solar energy systems failed on a 40-58 vote.
• An attempt by Sen. Jerry Moran, R-Kan., to force the removal of the lesser prairie chicken from the federal list of endangered and threatened species was voted down, 54-44.
• Montana GOP Sen. Steve Daines offered an amendment that would have forced presidents to obtain the approval of state governors and legislatures before designating national monuments; it failed, 50-47.
• An amendment by Sen. Chris Coons, D-Del., that would have put the Senate on record as recognizing the impacts of climate change on the nation’s infrastructure was voted down, 47-51.
• Alaska’s senior senator, Republican Lisa Murkowski, proposed to end wilderness study area status for all areas not designated by Congress as wilderness within one year of being considered; that amendment was rejected on a 50-48 vote.
• Sen. Richard Burr, R-N.C., offered an amendment that would have permanently re-authorized appropriations into the Land and Water Conservation Fund; that amendment lost by one vote, 59-39.
• An effort by Sen. Tom Udall, D-N.M., to include in the bill a federal renewable energy standard was defeated, 45-53.

After debate and votes on all amendments, Democrats again sought to delay a vote on the merits. This time they were unsuccessful, as the Senate shut off debate with a 62-35 vote for cloture.

Democrats Michael Bennet of Colorado, Thomas Carper of Delaware, Robert Casey of Pennsylvania, Joseph Donnelly of Indiana, Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia, Claire McCaskill of Missouri, Jon Tester of Montana, and Mark Warner of Virginia voted with all of the chamber’s Republicans to move to a final vote on the bill.

The final vote mirrored that margin, with the same Democratic senators voting with the majority GOP.

S.1 now moves back to the House of Representatives, where Republican Speaker John Boehner of Ohio will have to decide whether to ask that chamber to vote to approve the amendments approved by the Senate or, instead, send the different House and Senate versions to a conference committee.

Josh Earnest, a White House spokesperson, reiterated Thursday that President Obama will veto any bill that attempts to deprive him of authority to decide whether to grant the permit necessary for a Canadian corporation to build the KXL pipeline across the U.S.-Canada border.

“[O]ur position on the Keystone legislation is well known,” Earnest said. “And if, in fact, the legislation that passed the House also passes the Senate, then the President won’t sign it.”

Senate kills two more proposals to acknowledge anthropogenic climate change

The U.S. Senate again refused on Thursday to acknowledge the human role in climate change, voting down two proposals that would have forced members to go on record as recognizing scientific reality.

Senators first rejected an amendment to the underlying bill authorizing the KXL oil pipeline that specified that climate change is “real” and “caused by human activities” and “has already caused devastating problems in the United States and around the world.” The proposal, offered by Sen. Joe Manchin, D-W.Va., also included language that encouraged research into “clean fossil fuel technology.”

The Senate tabled the amendment, 53-46, with only one Republican – Mark Kirk of Illinois – voting with Democrats to allow floor debate on its merits.

Later, an amendment introduced by Sen. Bernie Sanders, I-Vt., that also acknowledged human impacts on the atmosphere and oceans and that emphasized the importance of developing non-fossil fuel energy sources was also tabled.

The chamber, with every one of 54 majority Republicans opposed to it, voted 56-42 to table it. Democratic senators Heidi Heitkamp of oil-producing state North Dakota and Claire McCaskill of Missouri also voted to deny consideration of its merits.

Majority leader Mitch McConnell, R-Ky., announced late Thursday night that the Senate would not consider additional amendments to S.1. A vote on whether to cut off floor debate on the bill itself is expected early next week.

President Barack Obama has threatened to veto any bill that interferes with his authority to decide whether or not to grant the permit required to construct the KXL pipeline across the U.S.-Canada border.

Report: Congressional Republicans will consider use of Congressional Review Act to block GHG regs

A report in TheHill.com on Monday said that Congressional Republicans are considering the use of an obscure law in an attempt to block the Obama administration’s proposed greenhouse gas emission rules from taking effect.

The law at issue, known as the Congressional Review Act, has been successfully used only once. While a resolution in the Senate that call on it to block executive and independent agency regulations cannot be filibustered, the resolution could not become law without the President’s signature.

President Barack Obama warned during his State of the Union address on Tuesday night that he will veto efforts by the GOP-dominated Congress to undermine or block his administration’s planned regulations to limit greenhouse gas emissions.

GOP Senate, considering contentious amendments to KXL pipeline bill, declines to acknowledge human cause of climate change

Sen. Brian Schatz, D-Hawaii, sponsored an amendment to a controversial pipeline bill that would have put the U.S. Senate on record as acknowledging that humans are responsible for ongoing climate change. Courtesy Wikimedia.

The Senate refused today to acknowledge that humans are causing climate change, defeating an amendment to the controversial KXL pipeline bill by a Hawaiian legislator that would have recognized that “human activity significantly contributes to climate change.”

Sen. Brian Schatz, a Democrat, filed the amendment.

“This amendment affirms something very simple; that is, climate change is real and human activities significantly contribute to climate change,” Schatz said when  he introduced the amendment Tuesday. “It also states that a warmer planet causes large-scale changes, including higher sea levels, changes in precipitation, and altered weather patterns, such as increases in more extreme weather events.”

“The purpose of this amendment is simply to acknowledge and restate a set of observable facts,” he continued. “It is not intended to place a value judgment on those facts of suggest a specific course of action in response to those facts.”

The amendment was defeated, 50-49, on a motion to table.

Sen. Lisa Murkowski, R-Alaska and the influential chairperson of the Senate Energy & Natural Resources Committee, urged her Republican colleagues to oppose the Schatz amendment because it contained the word “significantly.”

Earlier, senators accepted another amendment that acknowledges that climate change is occurring but that does not include language that admits human culpability. That provision, proposed by Sen. Sheldon Whitehouse, D-R.I., earned 98 “aye” votes. Only one member of the chamber, Sen. Roger Wicker, R-Miss., voted “no.”

According to a report in Science Insider, even climate change denier Sen. Jim Inhofe, R-Okla., voted for the Whitehouse amendment, explaining that “climate has always changed” and that “the hoax is that there are some people who are so arrogant to think that they are so powerful to think they can change climate.”

The Republicans also introduced an amendment addressing climate change. That measure, sponsored by Sen. John Hoeven, R-N.D., specified that climate change is happening and that humans are responsible, but also specified that the KXL pipeline would not contribute to the phenomenon. It failed on a 59-40 vote, falling one vote short of the needed sixty.

The Hoeven amendment was voted own despite support from all but one of the chamber’s Democratic and independent members. The only senator from that group who did not vote for it was Democratic minority leader Harry Reid of Nevada, who is recovering from an injury and has not been present or cast any votes since the 114th Congress opened earlier this month.

Only 15 Republicans voted “yes” for their own party’s amendment to recognize the reality of anthropogenic climate change. Even its sponsor, Hoeven, voted “no.” The only GOP senators to support the amendment were Lamar Alexander of Tennessee, Kelly Ayotte of New Hampshire, Susan Collins of Maine, Bob Corker of Tennessee, Jeff Flake of Arizona, Lindsey Graham of South Carolina, Orrin Hatch of Utah, Dean Heller of Nevada, Mark Kirk of Illinois, John McCain of Arizona, Lisa Murkowski of Alaska, Rand Paul of Kentucky, Rob Portman of Ohio, Mike Rounds of South Dakota, and Pat Toomey of Pennsylvania.

Yet another climate change-related amendment, this one by Sen. Bernie Sanders, I-Vt., may yet come to the floor.

Other amendments likely to be considered in coming days include one by Nebraska Republican Deb Fischer that would add to the prerequisites to be met before a President could designate a national monument and another by Utah Republican Mike Lee that would cap attorney fees recoverable by plaintiffs under the Endangered Species Act.

COMMENTARY: Inhofe’s distortions and ignorance demean Senate and debate over oil pipeline

That famous climate change-denying curmudgeon James M. Inhofe is at it again, and this time his willful denial of facts and slander of scientists is casting a sad shadow over the U.S. Senate as it starts a new Congress with a debate over the controversial KXL oil pipeline.

Inhofe, a Republican from Oklahoma, is well-known for his refusal to accept that human-caused emissions of greenhouse gases are changing the climate of Earth. Among the greatest hits of this man’s obtuse failure to recognize reality are these memorable comments:

• “[T]his 97% [of climate scientists accepting human-caused global warming], that doesn’t mean anything. I named literally thousands of scientists on the floor…and these were top people.” – Source
  
• “Regarded as the ‘greatest scandal of our generation’ by the UK Telegraph, “Climategate,” as the scandal is called, discloses what scientists over the years had been telling me: the so-called ‘consensus’ is simply wrong.” – Source
  
• “In short, some parts of the IPCC process resembled a Soviet-style trial, in which the facts are predetermined, and ideological purity trumps technical and scientific rigor. ” – Source
  
• “The claim that global warming is caused by man-made emissions is simply untrue and not based on sound science.” – Source
  

During the 114th Congress, which started earlier this month after an election in November that saw Republicans gain control of the Senate and expand their majority in the U.S. House of Representatives, Inhofe will chair the Senate Environment & Public Works Committee. He is, therefore, in an influential position and one might expect that, as such, he might choose his words more judiciously. Unfortunately, the 80-year old from Tulsa continues to display both both belligerence and ignorance.

Last week, Inhofe added to his infamy. During a debate on a proposed amendment to ban the export of oil carried in the KXL pipeline, Inhofe marred the Senate’s deliberation by lambasting scientists and by, again, raising the false accusation that climatologists are lying about mankind’s impact on the planet’s climate. He also misrepresented the meaning of a scientific paper to give credence to his misguided beliefs.

“[E]ven if someone is a believer that the world is coming to an end, that global warming is going to kill everybody and it is all due to man-made gas, if they truly believe that still, even in spite of that, it is not going to reduce worldwide emissions. I guess that is what they want to do, so we hear about the consensus,” Inhofe said.

“I remember at that time I made a speech on this floor questioning the science. I said, ‘I assume there are scientists out there are not part of the IPCC – that is the Intergovernmental Panel on Climate Change – and that those scientists know better. They know what the reality is,'” Inhofe continued. “I started getting phone calls. I got phone calls from scientists.”

Inhofe explained that 58 “recognized scientists,” including climate change denier Richard S. Lindzen of the Massachusetts Institute of Technology, had contacted him.

He later explained that there is no consensus in the scientific community that climate change is happening because “63 percent of weather-casters believe any global warming that is occurring is the result of natural variation and not human activities.”

Inhofe also claimed that a paper published in Nature during 2013 casts doubt on the reality of anthropogenic climate change.

“Nature journal, which is a well-respected journal, in their 2013 paper said that there is considerable uncertainty as to whether [increases in extreme climate variability] is occurring,” the Oklahoman said.

He was referring to an August 2013 paper that concluded only that, in a warmed world, the range between high and low temperatures would not necessarily expand. The paper articulated no conclusions about the impact of climate change on mean temperatures. As lead author Dr. Chris Huntingford, a climatologist at the Center for Ecology and Hydrology in the United Kingdom, explained in an email message:

“Our Nature paper strictly analyzes only year-to-year variability (fluctuations) in temperature, and demonstrates that in some parts of the world, this is actually going down. Elsewhere it is going up. This may be seen in both direct measurements and in supporting climate model simulations. This goes against the view
that maybe, as general global warming occurs, everywhere will additionally see larger year-to-year swings in temperature.

“However, we do not at any point offer evidence against a general on-going background and upwards warming trend. Detection and attribution statistical studies show that the observed average increasing temperatures are almost certainly a consequence of the burning of fossil fuels.”

Inhofe also invoked the discredited “Climategate” claim that climatologists have fabricated research. Multiple reviews have concluded that such claims are false.

“Climategate was when they analyzed some of the things IPCC had said and they had all these quotes and emails that totally debunked the credibility of IPCC,” Inhofe asserted. “Still today they are talking about it.”

These arguments, steeped in a deeply flawed understanding about the nature of science and a willingness to deceive the American people about what scientists know about our changing climate, are despicable. The question whether the Obama administration should grant the permit needed to build the KXL pipeline across the Canada-U.S. border is an important one; some members of Congress who support the pipeline argue that constructing it will result in lower overall greenhouse gas emissions than blocking it. Others make the point that the oil that would move through it is filthy and likely to further delay a needed transition away from fossil fuels. Whatever their perspectives, many contributors to the debate on KXL that has happened in both chambers of Congress this month have made their arguments cogently, honestly, and intelligently.

That is, unfortunately, not the way that Mr. Inhofe has done it. He’s not the only one, of course, but here’s the thing that bears emphasis: Members of Congress have a privilege to say whatever they want on the floor of the Senate or the House of Representatives, but they should not abuse that privilege by making comments that are utterly foolish and that do nothing to advance an intelligent discussion of either energy policy or an American response to the growing climate change crisis.

Mr. Inhofe should do the people of this country the courtesy of learning what science is, how it works, and why it indisputably teaches that the buildup of greenhouse gases in the atmosphere will change the climate before he knocks the efforts of climatologists. And is it too much to ask that he, or at least his staff, read a scientific paper before, yes, lying about its conclusions on the floor of the United States Senate?

Obama warns Congress against challenge to greenhouse gas rules

President Barack Obama delivered the annual State of the Union address on Tuesday night and included a stern warning to the GOP-dominated Senate and House of Representatives that he would veto bills that seek to block tighter limits on greenhouse gas emissions.

The chief executive’s words came during a four-paragraph riff on climate change.

“The best scientists in the world are all telling us that our activities are changing the climate, and if we do not act forcefully, we’ll continue to see rising oceans, longer, hotter heat waves, dangerous droughts and floods, and massive disruptions that can trigger greater migration, conflict, and hunger around the globe,” Obama said. “The Pentagon says that climate change poses immediate risks to our national security. We should act like it.”

Obama said he would not go along with any effort by Congress to reverse course on climate policy.

“I am determined to make sure American leadership drives international action. In Beijing, we made an historic announcement — the United States will double the pace at which we cut carbon pollution, and China committed, for the first time, to limiting their emissions,” the President said. “And because the world’s two largest economies came together, other nations are now stepping up, and offering hope that, this year, the world will finally reach an agreement to protect the one planet we’ve got.”

A website maintained by the House of Representatives’ GOP caucus later posted a poorly-edited version of the State of the Union address, in which some of Mr. Obama’s comments about climate change were omitted.

Among the regulations aimed at limiting greenhouse gas emissions proposed by the administration are two that affect new and existing coal-fired power plants. Republicans on Capitol Hill want to block those rules.

House of Representatives clears KXL bill on same day Nebraska court rejects challenge to route

The Republican-dominated U.S. House of Representatives passed on Friday a bill that would strip President Barack Obama of the authority to decide whether to authorize the controversial Keystone XL oil pipeline to cross the U.S.-Canada border.

The action came hours after the Nebraska Supreme Court removed one of the causes of delay in the administration’s review of the project. That court reversed a state trial court ruling that the statute under which former GOP Gov. Dave Heineman approved the pipeline route violated the Nebraska constitution.

The White House said again Thursday that President Obama would not decide whether or not to grant a permit allowing the pipeline to proceed until the litigation in Nebraska was resolved.

A committee of the U.S. Senate acted Thursday to approve a bill to expedite the pipeline. That chamber’s Energy & Natural Resources Committee, where Republicans have a 12-10 advantage, gave S.1 a green light with the help of one Democrat – West Virginia’s Joe Manchin.

The vote on the House bill, the proposed Keystone XL Pipeline Act, was 266-153. Every Republican except Justin Amash of Michigan voted “aye.” They were joined by 28 Democrats. Amash voted “present.”

Despite the lopsided sentiment in the chamber in favor of sidelining President Obama and forcing approval of the pipeline, the number of “aye” votes is not enough to override an expected veto of H.R. 3.

Over in the Senate, backers of similar legislation – S.1 – appear to have the 60 votes needed to cut off any attempt to filibuster the bill and approve it. It is not likely that 67 senators would vote to override a veto.

According to a report in The Hill newspaper, Senate majority leader Mitch McConnell, R-Ky., has scheduled a cloture vote on the Senate bill for Monday, Jan. 12.

The House and Senate bills have identical text, which means that the proposed legislation would proceed immediately to President Obama’s desk if the Senate rejects a filibuster of S.1 and then approves it.

The Nebraska Supreme Court ruling did not involve any of the seven justices finding that the law allowing approval of the pipeline route through the state was constitutional. Four justices said the statute violated the state constitution and three opined that the plaintiffs in the case lacked standing to bring the lawsuit. Under Nebraska law five justices must agree that a state law violates the state constitution in order to hold the statute invalid.

New Congress opens with GOP effort to push through KXL pipeline

The 114th Congress, with Republicans in charge of both chambers, opened Jan. 6 with the new majority showing a determination to move quickly on an attempt force approval of the KXL pipeline.

Sen. Mitch McConnell, R-Ky., the new majority leader, said on Dec. 16 that he would bring a bill that strips President Barack Obama of the authority to reject the KXL pipeline to the floor as the first act of the new GOP majority in the chamber.

The Senate Energy and Natural Resources Committee planned to conduct on Wednesday a hearing on S1, the KXL pipeline bill, but it was postponed after an objection by Sen. Dick Durbin, D-Ill., on behalf of the Democratic caucus.

Whether the delay will affect a mark-up of the bill that is scheduled for Thursday is not yet clear.

A Jan. 6 report in The Hill online newspaper said that there are 63 votes in the Senate to support the planned GOP legislation, including Democrats Michael Bennet of Colorado, Tom Carper of Delaware, Robert Casey of Pennsylvania, Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia, Claire McCaskill of Missouri, Jon Tester of Montana, and Mark Warner of Virginia.

All of the chamber’s 54 Republicans are co-sponsors of the bill.

The House of Representatives, under GOP control since Jan. 2011, repeatedly passed bills to approve the pipeline during the 112th and 113th Congresses and is expected to again pass such legislation within the week.

The White House press secretary, Josh Earnest, said Tuesday that President Barack Obama would veto any bill that seeks to eliminate the president’s authority to decide whether to grant permission for the pipeline to cross the international border separating the United States from Canada.

“I mean, the fact is this piece of legislation is not altogether different than legislation that was introduced in the last Congress, and you’ll recall that we put out a statement of administration position indicating that the President would have vetoed had that bill passed the previous Congress,” Earnest said. “And I can confirm for you that if this bill passes this Congress the President wouldn’t sign it either.”

Even if an attempted override of a presidential veto could secure the necessary two-thirds affirmative vote in the House of Representatives, it is unlikely that such an attempt would succeed in the Senate. In that chamber 67 votes would be needed to enact the KXL pipeline bill into law over Obama’s objection.

The Department of State’s review of the application for the permit needed to build the pipeline across the U.S.-Canada border is currently delayed by litigation in the Nebraska state courts.

A Lancaster County district judge ruled in February that the state law invoked by the state’s former Republican Gov. Dave Heineman to justify approval of the pipeline route through the state violated the Nebraska constitution.

That decision is now before the Nebraska Supreme Court, which heard oral arguments in the case in September.