Speaking at the Natural Gas Roundtable luncheon on Wednesday, Marnie Funk, a spokeswoman for Sen. Pete Domenici (R-NM), classified the mood surrounding the 2005 energy bill as "optimistic," adding that there is a good chance it could be on Bush's desk by late next week, prior to Congress' recess.
"We are very pleased at how well the energy bill conference is going right now," Funk said. "I would describe everyone as optimistic and exhausted. The odds on getting the energy bill to the president next week are 70% right now."
She noted that the mark-up went "very well" Tuesday night and said the hope is to have the last conference meeting next Monday. "We are hoping to close the deal Monday night," she said.
Funk said she believes the timing of the Supreme Court nomination is also playing a role in the expedition of the energy bill debate. If the energy bill gets on Bush's desk before the recess, then Congress can focus on confirming a Supreme Court nominee when they get back in September. "I do think it plays into this," she said.
Funk added that when an issue can't be agreed upon by the staff, the item goes in front of "the big four," which includes Sen. Domenici and Sen. Jeff Bingaman (D-NM) on the Senate side and Rep. John Dingell (D-MI) and Rep. Joe Barton (R-TX) on the House side. "They have a meeting right now to work out Monday's issues and they will also meet to work out Thursday's issues," she said. "They make a decision on the issue and cut the deals right there."
Despite the optimism, Funk noted that one of the reasons the conference is moving so smoothly and quickly so far is because they have been focusing on the easy issues first. She allowed that the methyl tertiary butyl ether (MTBE) issue could be a hanging point. "Will we have enough time to have an MTBE deal by Monday night?...I don't know," she added.
"One other thing we don't know is whether or not the tax boys will be able to finish by Monday," she said. "They told us they think they can be done [with a tax package] by Monday."
With Bush's nomination of appellate Judge John J. Roberts Jr., to the Supreme Court and growing speculation that Barton may abandon his effort to include liability protection for producers of MTBE in the energy bill, a Washington, DC-based research group on Wednesday raised its odds for passage of the omnibus energy bill measure year to 85% from its previous estimate of 60%.
The selection of Roberts, who currently sits on U.S. Court of Appeals for the District of Columbia Circuit, "is likely to avoid triggering a meltdown in the Senate that would threaten the ability of the chamber to enact legislation," wrote energy analyst Christine Tezak of Stanford Washington Research Group in an "Energy/Electricity Policy Bulletin."
"This choice has encouraged us to raise our odds on enactment based on the belief that Judge Roberts will likely have a noisy but successful confirmation process and that prospects that the energy bill conference report being a casualty of a Democratic-led filibuster fight over judges is now much lower. We're now at 85% chance of enactment this year," she said.
But "what is more important, however, is the speculation that if an MTBE deal is spurned by the Senate, Barton will abandon the effort in order to save the broader [energy] bill," Tezak noted. "This incremental change indicates to us that MTBE manufacturers may not succeed in securing the shelter from the defective product liability lawsuits they seek in the bill, and may be left with the status quo of protecting their interests in court."
Barton has been trying to reach a deal on product liability protection for producers of the gasoline additive MTBE in the form of a trust fund that would likely have both private and public funding components. Producers are facing lawsuits in more than a dozen states for MTBE contamination of the groundwater.
"Everything will depend on the size of the trust fund offered to the Senate. If indeed the manufacturers can reach agreement between them on what the allocation of private contributions will be between them, and the trust fund contributions make sense for them economically, then relief from the lawsuits may happen. The question is will the offer made by the manufacturers be anywhere near the requirements of the Senate," Tezak said.
Sen. Judd Gregg (R-NH), a key opponent of MTBE liability protection, said Wednesday the trust fund needed to be at least $15 billion, with an option to raise the amount if needed. "The open-ended nature of his request will be a hard feature [for] industry to accept," she noted.
"The most important change on this item...is the view held by increasingly more people in Washington that Barton may not hold the [energy] bill hostage to retain the MTBE provisions. Given the staunch opposition in the Senate, clearly he must craft a deal the Senate will accept or face a filibuster. The other option is to decide that, in spite of his best efforts, a deal can't be done and the provision must be dropped."
The MTBE issue sank the energy bill in 2003. Barton, as chairman of the conference committee on the energy bill, does not want to see a repeat this year.
Given the "conciliatory choice" of Roberts to replace Justice Sandra Day O'Connor on the Supreme Court, Tezak believes some of the pressure is off to get a energy bill conference report voted out by Congress by Aug. 1, as requested by President Bush. "We do not think that the bill being enacted in August is particularly material, and that a slip in time until after the August recess would not change our revised call raising our expectation for the bill's enactment this year. As long as Chief Justice William Rhenquist stays on the job, we think that this bill gets done. If he announces a sudden retirement or passes unexpectedly, we will have to revisit our analysis if it is feared that a replacement would be highly controversial."
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