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Energy and Natural Resources Committee Sends Contrasting Energy Bills to Senate

August 26, 2015

On July 30, the Senate Energy and Natural Resources Committee voted to send to the full Senate two energy bills that originated in the Committee. One, the Energy Policy Modernization Act of 2015 (EPMA) is broad in its substantive scope, incremental in its approach, and received bipartisan support in the Committee. The other, the Offshore Production and Energizing National Security Act of 2015 (OPENS Act) focuses on petroleum, would reverse a longstanding federal ban on export of crude oil and make substantial changes in the outer continental shelf oil and gas lease program. The latter bill (in Committee, at least) received party line support from Republicans and opposition from Democrats. Neither bill has a clear path to becoming law, and the differences in the two bills highlight the challenges for Congress in passing legislation to guide national energy policy.

I. The Energy Policy Modernization Act of 2015: “Something for Everyone” Legislation

EPMA was jointly introduced by Senator Lisa Murkowski of Alaska, Chair of the Energy and Natural Resources Committee, and Senator Maria Cantwell of Washington, the Ranking Member. It was reported out of Committee on an 18-4 vote, with ten Republicans and eight Democrats voting in support.

The legislation reflects the incremental approach to development of energy policy in other bills that have become law over the past two years – dating back to when Senator Murkowski was the Ranking Member and Senator Ron Wyden (D-Or) was the Chair. Two bills from 2013, the Hydropower Regulatory Efficiency Act[1] and the Bureau of Reclamation Small Conduit Hydropower Development and Rural Jobs Act,[2] garnered bipartisan support for sensible reforms that removed regulatory obstacles to development of hydropower resources. But where those bills were narrowly focused, EPMA is sprawling.

EPMA’s provisions defy easy summarization; the Committee’s section-by-section analysis covers 18 pages and the bill itself exceeds 350 pages. Whether the legislation is intended to promote an “all of the above” national energy policy or simply to gain congressional support the old-fashioned way – by including something on everyone’s wish list – the result is a bill that addresses nearly every energy resource in some manner.

EPMA is divided into five titles, the first four of which are focused on energy issues:

  • Title I, “Efficiency,” includes subtitles addressing Buildings, Appliances, and Manufacturing, respectively. Title I is dominated by provisions related to energy use in federal buildings, requirements for studies, and reauthorization of existing programs. For example, the Weatherization Assistance Program under Section 422 of the Energy Conservation and Production Act (ECPA)[3] would be extended through fiscal year 2020 with an authorized appropriation of $350 million annually. In a reversal of policy perhaps reflecting the abundance of domestic natural gas, Section 1015 would repeal Section 305(a)(3)(D) of ECPA,[4] which required new federal buildings, or federal buildings undergoing major renovations, to be designed so that fossil fuel-generated energy consumption of the buildings is reduced (as compared to 2003) by 65 percent by 2015 and 100 percent by 2030. While energy efficiency remains a goal for federal buildings, elimination of fossil fuel use does not.
  • Title II, “Infrastructure,” addresses cybersecurity, the Strategic Petroleum Reserve, trade, electricity and energy storage, and computing. The latter category sets forth perhaps the most ambitious goal: the development of two or more “exascale” computing systems – systems capable of an “exaFLOPS” (a billion billion calculations per second). The bearing on energy policy is left to the imagination, although one can imagine many energy control applications. The most significant provision with respect to “trade,” Section 2201, would require the Secretary of Energy to issue a final decision on any application for export of natural gas to non-free trade countries within 45 days after FERC or the Maritime Administration has concluded environmental review under the National Environmental Policy Act (NEPA) for the associated liquefied natural gas export facility.
  • Title III, “Supply,” is devoted almost entirely to renewable energy, including hydroelectric, geothermal, marine hydrokinetic, and biomass. The only provision specific to fossil fuels is Section 3101, which amends and reauthorizes a statute concerning research into the commercial viability of methane hydrate as an energy source. Although production of methane from methane hydrate remains largely theoretical, the potential is immense:

    Methane hydrate is a cage-like lattice of ice inside of which are trapped molecules of methane, the chief constituent of natural gas. If methane hydrate is either warmed or depressurized, it will revert back to water and natural gas. When brought to the earth’s surface, one cubic meter of gas hydrate releases 164 cubic meters of natural gas.

    While global estimates vary considerably, the energy content of methane occurring in hydrate form is immense, possibly exceeding the combined energy content of all other known fossil fuels.[5]

The provisions of Title III regarding hydroelectric power would continue the trend of the 2013 legislation mentioned above. Section 3001 states the “Sense of Congress” that “hydropower is a renewable resource for purposes of all Federal programs” and that “the United States should increase substantially the capacity and generation of clean, renewable hydropower resources.,” EPMA would amend the licensing provisions of the Federal Power Act to clearly establish FERC’s authority to set a binding schedule for all federal authorizations for hydropower permitting, to extend the term of preliminary permits, and to allow more time to begin construction of project works. Geothermal energy also would receive a boost, though less concrete, stating in Section 3005 a “Sense of Congress” that the Secretary of the Interior “shall seek to approve a significant increase in new geothermal energy capacity on public land” and that the U.S. Geological Survey “should identify sites capable of producing a total of 50,000 megawatts of geothermal power, using the full range of available technologies.”

  • Title IV, “Accountability,” offers a smorgasbord of requirements for studies, reports and information gathering. Perhaps most interesting are three sections, 4501 through 4503, that would mandate an investigation of “the effect of increased financial investment in energy commodities on energy prices and the energy security of the United States,” leading to recommendations for “laws (including regulations) that may be needed to prevent excessive speculation in energy commodity markets in order to prevent or minimize the adverse impact of excessive speculation on energy prices on consumers and the economy of the United States.” The investigation and recommendations would be the responsibility of a new “Working Group on Energy Markets” comprised of the Secretary of Energy, the Secretary of Commerce, the Administrator of the Energy Information Administration, and the Chairmen of the Federal Energy Regulatory Commission, the Federal Trade Commission, the Securities and Exchange Commission, and the Commodity Futures Trading Commission.

Title V, by contrast, would permanently reauthorize the Land and Water Conservation Fund and the Historic Preservation Fund and would establish a new National Park Service Maintenance and Revitalization Conservation Fund. Authorization for both the Land and Water Conservation Fund and the Historic Preservation Fund will expire by statute on September 15, 2015.[6] Title V is an outlier in EPMA: its only relationship to the “modernization” of energy policy is the funding source. The two existing funds are statutorily authorized to receive revenue from rentals, royalties and other sums paid under leases under the Outer Continental Shelf Lands Act. Under EPMA, the new National Park Service Maintenance and Revitalization Conservation Fund likewise would receive a portion of the revenue -- $150 million per fiscal year -- under Section 9 of the Outer Continental Shelf Lands Act.[7] The Fund could be used only “for high-priority deferred maintenance needs” of the National Park Service “that support critical infrastructure and visitor services.” Use of the Fund for land acquisition would be prohibited.

For such wide-ranging energy legislation, little in EPMA directly addresses nuclear energy. Section 3501 would require the Department of Energy to submit a report to Congress on “assessing the capability of the Department to host privately funded fusion and fission reactor prototypes up to 20 megawatts thermal output and related demonstration facilities at sites owned by the Department.”

II. The Offshore Production and Energizing National Security Act of 2015: A Turnabout in Petroleum Policy?

On the same day the Energy and Natural Resources Committee voted on EPMA, the Committee voted out a separate bill with a much narrower focus, more significant change to established energy policy, and lacking bipartisan support. The Offshore Production and Energizing National Security Act of 2015 (OPENS Act) would repeal a nearly 40-year ban on exports of U.S. crude oil and would make substantial changes to the oil and gas leasing program on the Outer Continental Shelf. It passed out of Committee on a 12-10 party-line vote.

A. The export ban: has it run its course?

The export ban was enacted as part of the Energy Policy and Conservation Act of 1975 (EPCA)[8] in reaction to the oil embargo of 1973 by Arab nations belonging to the Organization of Petroleum Exporting Countries. EPCA’s energy policy initiatives have proven to be enduring: in addition to the export ban, EPCA created Corporate Average Fuel Economy (CAFE) standards and the Strategic Petroleum Reserve.

The ban on export of crude oil produced in the United States is not without exceptions. Most notably, legislation signed into law by President Clinton in 1995[9] reversed a ban on export of crude oil from Alaska’s North Slope; that ban was put in place in 1973 as part of the Trans-Alaska Pipeline Authorization Act.[10]

Most recently, the U.S. Commerce Department informed members of Congress earlier this month that it intends to approve a limited program through which Mexico’s national oil company, PEMEX, will be able to trade heavy Mexican crude for light crude produced in the United States.[11] PEMEX has sought approval to trade up to 100,000 barrels per day. Mexico’s crude production has declined and has shifted from light crude toward heavier crude, leaving the nation’s refineries short of the light crude for which they were designed. Refineries in the U.S. Gulf region are generally better suited to processing heavier crudes, rather than the light crudes produced in increasing volumes from U.S. shale plays.

Nonetheless, the ban on crude oil exports has largely remained intact. With U.S. crude oil production soaring from 5,350 thousand barrels per day (bbd) in 2009 to 8,715 thousand barrels per day in 2014,[12] however, pressure to modify or repeal the ban has been mounting.

Since speaking to the Energy Security Initiative at Brookings in January 2014,[13] Senator Murkowski has been an open advocate for repeal of the ban on crude oil exports.

Section 501(a) of the OPENS Act would sweep the 40-year ban aside in one sentence:

Notwithstanding any other provision of law, to promote the efficient exploration, production, storage, supply, and distribution of energy resources, any domestic crude oil or condensate (other than crude oil stored in the Strategic Petroleum Reserve) may be exported without a Federal license to countries not subject to sanctions by the United States.

B. The Outer Continental Shelf: expanding opportunities and sharing revenue

The OPENS Act would expand and enhance opportunities for oil and gas leases on the outer continental shelf in the Gulf of Mexico, in a new “Nearshore Beaufort Sea Planning Area” and in the “South Atlantic Planning Area” off the coast of Virginia, North Carolina, South Carolina and Georgia. The Secretary of the Interior would be required to implement, with some modifications, the Proposed Final Outer Continental Shelf Oil & Gas Leasing Program (2017-2022). The Secretary also would be required to make available for leasing “any outer Continental Shelf planning area in the Gulf of Mexico that – (i) is estimated to contain more than 2,500,000,000 barrels of oil; or (ii) is estimated to contain more than 7,500,000,000,000 cubic feet of natural gas.”

For such required lease sales that are not part of the Proposed Final Outer Continental Shelf Oil & Gas Leasing Program (2017-2022), analysis under NEPA would be restricted: the Secretary would not be required to identify any non-leasing alternatives to the proposed action, and would only be required to consider one preferred leasing action and one alternative leasing proposal.

The OPENS Act also would establish timelines (not limited to activities in oil and gas exploration) for the processing of applications for incidental harassment authorization under the Marine Mammal Protection Act. Further, the bill would legislatively determine that an authorization for “incidental taking” under Section 105(a)(5)(D) of the Marine Mammal Protection Act[14] could not be considered an action likely to jeopardize the continued existence of an endangered or threatened species, an action likely to result in the destruction or adverse modification of critical habitat, or subject to the consultation requirement of Section 7 of the Endangered Species Act.[15]

The OPENS Act also would expand a precedent from Section 105 of the Gulf of Mexico Energy Security Act of 2006[16] requiring that revenue from certain oil and gas leases in the Gulf of Mexico be shared with Gulf states. Sections 104, 203 and 305 of the OPENS Act expand the revenue sharing concept respectively within the Gulf, Alaska and the four states adjoining the South Atlantic Planning Area.

III. Conclusion

The legislative future of both bills is uncertain. Although bipartisan support for EPMA in the Energy and Natural Resources Committee bodes well for passage by the Senate, it remains to be seen whether the plethora of new or reauthorized loan and grant programs, pilot programs, studies and new agency offices authorized by EPMA’s “something for everyone” approach will win favor in the more conservative House.

The OPENS Act faces a different set of challenges. The bill must garner at least some support from Democrats in order to make it to a vote in the Senate. Although Speaker Boehner has signaled his support for ending the ban on export of U.S. crude oil, House members may not be convinced that lifting the export ban and freeing oil producers from selling to U.S. refineries at prices below world markets will ultimately redound to the benefit of Americans pulling up to the gas pump by further reducing prices on the world market. President Obama has not taken a public position on lifting the export ban.

[1] Pub. L. 113-23.

[2] Pub. L. 113-24.

[3] 42 U.S.C. § 6872.

[4] 42 U.S.C. § 6834(a)(3)(D).

[5] http://energy.gov/fe/science-innovation/oil-gas-research/methane-hydrate

[6] 54 U.S.C. § 200302; 54 U.S.C. § 303102.

[7] 43 U.S.C. § 1338.

[8] Pub. L. 94-163.

[9] Title II of the Alaska Power Administration Asset Sale and Termination Act, Pub. L. 104-58.

[10] Pub. L. 93-153.

[11] http://www.wsj.com/articles/u-s-approves-limited-crude-oil-trade-to-mexico-1439570613

[12] U.S. Energy Information Administration, “Crude Oil Production.”

[13] Brookings Now, “Senator Murkowski Calls for End to Crude Oil Export Ban,” Jan. 7, 2014.

[14] 16 U.S.C. § 1371(a)(5)(D).

[15] 16 U.S.C. § 1536.

[16] 43 U.S.C. § 1331 note.

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