Dive Brief:
- The Senate voted Monday to advance the Bipartisan American Affordability and Jobs Act, a major piece of permitting reform legislation, but some experts and lawmakers have voiced skepticism about its future in the lame duck session following midterm elections in which Democrats handily won control of both chambers of Congress.
- Immediately following the election results, analysts at TD Cowen cut their outlook for the bill’s success from about 40% to around 25%. Democrats’ large victory “likely emboldens voices” arguing the BAAJA gives too many concessions to the oil and gas sector, and that the party should delay reform until 2027 when it can pursue a “party-line, renewable-focused bill,” the analysts said.
- The version of the bill that advanced this week included a manager’s amendment, added over the weekend, that sought to address some concerns, including tribal consultation and Federal Energy Regulatory Commission authority. But Democrats in both chambers, including at least one senator who voted to advance the bill, have said they want to see more changes.
Dive Insight:
The cloture vote to advance the bill received 73 yesses, 25 nos and two abstentions. Among the nos were Sen. Cory Booker, D-N.J.; Sen. Adam Schiff, D-Calif.; Sen. Bernie Sanders, I-Vermont; and Sen. Jeff Merkley, D-Ore.
According to Politico, Schiff said he was voting no following President Donald Trump’s comment Monday that he supports the bill but “will not approve wind turbines,” adding, “The bill hasn’t been fully negotiated.”
“He has not changed course in any way when it comes to renewable energy, and any wiggle room left in the bill to prioritize oil and gas over renewables he’ll make full use of,” Schiff told Politico.
In a Monday release, Merkley said he “strongly supports” the parts of the bill that seek to increase transmission and clean energy, and ensure fair cost allocation for data centers, but said the legislation has “features that merit careful analysis” and “robust consideration of the bill should be a priority in the new Congress.”
“At the demand of the fossil fuel titans, this bill also accelerates the extraction and burning of fossil fuels,” Merkley said. “This bill could make it easier to build more data centers powered by ‘behind the meter’ natural gas plants. And it impacts the sovereignty and rights of Tribes.”
Sen. Catherine Cortez Masto, D-Nev., voted to advance the bill but warned in a Monday release that tribes in Nevada still have concerns regarding the legislation’s changes to the National Historic Preservation Act, and if those aren’t struck from the bill, she will not vote for final passage.
“The manager’s amendment to BAAJA does not adequately address the serious concerns raised by Tribal Nations across the country,” a coalition of tribal organizations said in a Sunday release.
In a research note sent Monday following the vote, Jefferies analysts said the manager’s amendment “largely preserves” the bill’s original framework “but is incrementally better for transmission, offshore-wind projects, nuclear, and non-RTO utilities, and worse for large BTM gas configurations, incumbent RTO utilities and projects relying on strong permit certainty.”
“Senate passage is possible, but enactment remains unlikely without a clear House strategy,” the note said. “The irony is that the bipartisan Senate coalition has made meaningful progress just as the opportunity to convert that progress into law is narrowing. House Democratic leaders argue that the Senate bill falls short, while Republican support for accepting the Senate product also appears uncertain.”
The analysts said the bill could see more revisions to reflect House concerns.
Some of those concerns were voiced by Rep. Adelita Grijalva, D-Ariz, who was reelected last week.
“Just one week after voters resoundingly rejected the Trump agenda, Congress should not be rushing to pass a bill that gives him even more unilateral authority to bypass our laws,” she said in a Monday statement. “I am a hard NO on BAAJA.”
On Sunday, the Sierra Club said in a release that the manager’s amendment was released amid a “continued rush to hold a vote during the lame duck session,” adding that while the amendment “partially addressed” the group’s previously outlined concerns, “major substantive issues remain.”
Former FERC Chairman Mark Christie said in a Monday LinkedIn post that the manager’s amendment had not “at all” addressed two of his three major concerns with the legislation.
“The ‘public interest’ standard in the bill remains a blank check for FERC to override the states and order trillions of dollars in new transmission built to fit the policies of a President or more likely, special interest lobbying of RTOs,” Christie said.
He added that the legislation doesn’t give states authority over cost allocation for large transmission projects “that will cost their consumers tons of money.”
“The transmission provisions are a DC lobbyists' dream list,” Christie said. “Massive expansion of federal power that will cost consumers literally trillions of dollars.”
Paul Cicio, CEO of the trade association Industrial Energy Consumers of America and chair of the Electricity Transmission Competition Coalition, criticized the bill in a Monday LinkedIn post, saying it “fails to unleash transmission competition and deliver cost savings to ratepayers.”
“Without competition, a monopoly utility has zero incentive to reduce costs,” he said. “Section 2105 codifies existing exceptions to competition that are used by the monopoly utilities to evade competition.”
Cicio also objected to a change the manager’s amendment made to Section 2104 of the bill, saying it “now gives FERC the ability to dismiss a state's request to investigate actions by a utility to evade competition and actions that would harm consumers.”
Editor’s note: This story has been updated to include additional reporting from Politico about the bill’s ongoing negotiations.
