Energy and the New Congress: Beyond Keystone

• The Keystone XL pipeline is likely to get another opportunity for approval once the new Congress is sworn in next January.
• However, it will not be the most important part of a new Congressional energy agenda, and it might not even be the most urgent.

Voters in the US mid-term election earlier this month might be forgiven for assuming that its result assures quick approval of the Keystone XL pipeline (KXL), notwithstanding the drama over a Keystone bill in the "lame duck "session last week. The pipeline has been under review by the Executive Branch for six years, yet despite its symbolic importance to both sides of the debate, and an apparent majority in both houses of the newly elected Congress favoring its construction, its future remains uncertain. Nor is KXL necessarily the most urgent or important energy issue that the new Congress is expected to take up.

It's worth recalling that the Senators who just lost their seats  were elected in the aftermath of the oil-price shock of 2007-8, amid great concern about increasing US dependence on imported oil and natural gas. They took office in 2009 with a President whose main energy policies focused on addressing global warming, with energy security inescapably linked to climate change. Largely as a result of the shale revolution, the new class of Senators will begin their jobs in an entirely different energy environment. That will have a bearing on both the priorities and approach of the new Congressional leadership.

The energy agenda for the two years of the 114th Congress will most likely include not just the status of KXL, but also restrictions on US crude oil exports, reform or repeal of the Renewable Fuel Standard (RFS), the extension of renewable energy tax credits for solar power (expiring at the end of 2016) and wind power (already expired),  regulation of greenhouse gases by the Environmental Protection Agency under the Clean Air Act of 1990, expanded oil and gas drilling on federal lands and waters, and a stalled piece of energy efficiency legislation that might be the least controversial energy bill, on its merits, that either chamber has considered in years. Support for nuclear power and the disposition of nuclear waste could get another look, too.

Tax incentives for both renewable and conventional energy may also be swept up in efforts to reform the US corporate and individual tax systems, a high priority for some incoming committee chairmen. The least likely measures to be considered, however, are comprehensive energy legislation along the lines of the Energy Independence and Security Act of 2007 or climate legislation similar to the Waxman-Markey bill of 2009 that subsequently died in the Senate.

It is also possible that the 113th Congress could clear some of its backlog of energy measures before handing off to the new Congress in January. The dynamics of the lame duck session will be different from the pre-election period, and the outgoing leadership could be motivated to strike deals on measures such as the restoration of the wind power tax credit (PTC) within a larger package of expiring tax measures called the "extenders bill."

Aside from KXL, perhaps the most pressing energy matter for the new Congress is to address is the question of US oil exports, which are restricted under 1970s-era laws and regulations. The urgency of debating oil exports is twofold: One company has already indicated its intention to export condensate, which is treated as crude oil under current regulations, without government approval. And with oil prices having fallen by 20-25% since summer, oil exports and related shipping regulations could provide a crucial relief valve as US producers of light tight oil (LTO) from shale deposits seek to reduce their costs and find higher-priced markets.  Senator Lisa Murkowski (R-AK) is slated to chair the Senate Energy & Natural Resources Committee, and this is one of her big issues.

However, the cooperation Sen. Murkowski will receive from the other party in getting export legislation to the Senate floor could depend on the result of December's runoff in Louisiana.  If Mary Landrieu, current chair of Energy & Natural Resources, falls to Representative Bill Cassidy (R-LA), her replacement as ranking member for the minority on that committee is expected to be Maria Cantwell (D-WA). Senator Cantwell appears to be more skeptical about oil exports, as well as on other issues the oil and gas industry might hope would advance next year. 

For that matter, while gaining approval of KXL and reining in the EPA are clearly part of the incoming Republican agenda for energy, other issues cut across party lines in ways that make their outcomes less easily predictable. For example, proponents of reforming or repealing the RFS may have as much difficulty getting traction in the 114th Congress as in the 113th. Geography, rather than party affiliation, seems like a better predictor of whether new Senators like Joni Ernst (R-IA) or Mike Rounds (R-SD) would support or oppose changing the rules for biofuels. That could apply to the wind tax credit, too.  Even an oil export bill might similarly split both parties.

That brings us back to Keystone XL. The election result put both chambers of Congress on the same page on this issue for the first time and has apparently increased support for KXL to the crucial 60-vote threshold. That would be sufficient to obtain "cloture" and prevent a filibuster, though not to overturn a presidential veto.

Before Senator Landrieu's bill came up short last week, the President's real position on KXL began to emerge from the opacity he maintained through two elections. Nor does the fallout from his recent actions on other issues bode well for striking a deal with the new Congress on Keystone, short of it being attached to some essential piece of legislation like the budget or defense authorizations. Other parts of the likely Congressional energy agenda could fall into the same gap, and I'm less optimistic than I was after November 4th about opportunities for cooperation on energy between the White House and a unified Congress. 

A different version of this posting was previously published on the website of Pacific Energy Development Corporation.