After a seemingly interminable wait, Senators John Kerry and Joseph Lieberman finally unveiled their climate and energy bill, the American Power Act, on Wednesday.
Mixed in with a cap-and-trade plan and expected incentives for the fossil fuel and nuclear industries is a compromise provision on offshore oil drilling aimed at addressing the impact of the Gulf oil spill. It allows for expansion of offshore drilling, but "directly impacted" states would be able to veto drilling plans within 75 miles of their coastlines.
The addition, clearly a reaction to the back-and-forth political conversation since the April 20 explosion on the Deepwater Horizon oil rig, raises a number of questions. Will the compromise appease those against offshore oil exploration? Will the oil companies lobby the provision without compromise? And if it did pass, would such a proposal face any sort of implementation barriers?
A cadre of major environmental groups have been outspoken about the Senate bill even before it made its appearance, as news of provisions it would include leaked out in advance. The offshore drilling provision has attracted unified opposition.
"I think it's a pretty lame compromise," said Bill Snape, senior counsel for the Center for Biological Diversity. "In our view the policy response to this disaster in the Gulf ought to be a moratorium on all offshore oil drilling. This envisions more offshore oil drilling, which seems to me to be both incorrect and frankly a bizarre response to perhaps the worst environmental disaster in American history. It's just the wrong policy."
The Natural Resources Defense Council has generally been a proponent of the various forms of climate legislation seen in Congress, and a statement from president Frances Beinecke today applauded the bill but stopped short when it came to offshore oil.
"We believe there must be a moratorium on new offshore drilling until the causes of the Gulf Coast disaster are fully and independently investigated and a stringent new safety inspection regime is put in place to protect our coastlines and marine life," she said.
She also pointed out that another provision in the American Power Act would provide financial incentives to states encouraging more offshore oil exploration. In fact, the bill stipulates that 37.5 percent of the revenues from such oil drilling would go back to the states in order to protect coastlines. Beinecke was unequivocal on this point.
"Financial incentives for states to allow more offshore drilling have absolutely no place in this bill, and NRDC will work with allies in the Senate to eliminate them as the process goes forward."
Erich Pica, president of Friends of the Earth, made clear that the organization opposed the Senate bill and singled out the offshore drilling move as being a handout to big business.
"The fact that the bill contemplates expanded offshore drilling while millions of gallons of oil are still gushing into the Gulf of Mexico underscores the extent to which it has been co-opted by polluters. It doesn't have to be this way," he said in a statement.
Beyond a theoretical opposition to expanding offshore drilling, the language of the bill leaves some unconvinced that it could actually deliver the protection it promises. Even if states can stop drilling within 75 miles of their shores, Snape questioned whether this could actually protect them from a catastrophic spill such as the one now being fought in the Gulf.
"This is an oil spill that might make it all the way to North Carolina by some estimates, when all is said and done," he said. Oceanographers have pointed out that the Gulf loop current could bring the spill all the way around Florida and up into waters off of Cape Hatteras.
Zygmunt Plater, a professor of law at Boston College who has focused on environmental issues and oil spills, said that in Alaska the Exxon-Valdez oil spill traveled 1,244 miles. He said that the legislators had to draw a line somewhere, but the bill is unlikely to survive in its current form anyway.
"The offshore drilling veto provision pretty clearly is riding a political wave of dismay [surrounding] this industry," he told SolveClimate. "And if indeed the oil hits the coast in a way that makes our TVs an unending theater of oily birds, and if it goes through the Keys and up the Gulf Stream, I'm thinking that the politics could change with the public perception, so the bill could actually get better."
Snape also argued that there are no real analogs to the idea of the state veto, and the implementation of such a complicated scheme might become very difficult.
"At the very least it would spawn more litigation and more policy confusion," he said.
He suggested that there could even be constitutional issues with the states vetoing each other's plans for drilling, but Plater and his colleague George Brown, a specialist in federal-state relations also of Boston College, said the move would not bring up such problems.
"It can't be one state ordering another state around," Plater said, but "essentially Congress will be delegating to state governments a regulatory role."
Environmentalists seem to agree, though, that the offshore drilling provision is little more than political cover in the wake of a widely covered drilling accident.
"It seems to me it is making major concessions to the industry point of view to try to avoid being dead on arrival," Plater said.