Tax Extenders, Toxic Substances Bills Dominate Fall Energy Agenda

The energy industry has two major pieces of legislation to watch this fall as Congress returns from its August recess — an “extenders” package of various expiring tax provisions and a toxic substances reform bill. These measures stand the best chance of getting debate time on the House and Senate floors.

Sponsors of the Toxic Substances Control Act (TSCA) reform bill, Sens. Tom Udall (D-N.M.) and David Vitter (R-La.), say they are confident their legislation will get a vote before 2016. The measure represents several years of bipartisan talks to update the national standards governing toxic substances. It would be the first time that’s happened in almost 40 years.

In July, Morning Consult reported that Majority Leader Mitch McConnell (R–Ky.) was on the fence about whether to prioritize a highway authorization bill or TSCA once the chamber finished an education bill. He decided that funding the nation’s roads and bridges took precedence, putting TSCA on the back burner. The Senate then passed the highway bill but must wait for the House to act on it. The well-cooked toxics bill, which has 52 cosponsors from 33 states, is still high on the majority leader’s legislative queue.

The House in June passed its own TSCA bill, which is slimmer than the Senate version, on a 398-1 vote. Some House members have expressed concern about the Senate bill, but the differences aren’t expected to be irreconcilable. “The Senate bill is far more complex,” said Sen. Barbara Boxer of California, the ranking member on the Environment and Public Works Committee, in a statement. “Its preemption provision is complicated and will lead to the courthouse.”

On tax extenders, renewable energy advocates are fighting a two-front battle. The wind industry is seeking a two-year extension of the production tax credit (PTC). Solar energy advocates are pushing for an amendment to the investment tax credit (ITC) for solar projects.

The wind tax credit, for the moment, has the better chance of inclusion. The Senate Finance Committee in July approved a legislative package that includes a two-year extension of the PTC, which also benefits geothermal, biomass and landfill gas projects.

Solar proponents are holding out hope that the final bill will also include language to alter the “commenced construction date” for commercial-scale solar projects. The change would make utility-scale solar developers eligible for the 30 percent tax deduction up until the date of the ITC’s expiration, Dec. 31, 2016. Under current law, those projects need to be completed before developers can claim the credit. That means the tax credit has more or less run its course, even though it doesn’t expire for another year.

Scott Hennessey of SolarCity, the largest U.S. residential rooftop installation company, said lawmakers were beginning to warm to the idea that the way the current law is written is unfair to project developers. If they begin a project now, there is no guarantee it will be completed in time to take advantage of the credit.

Hennessey said solar companies and trade groups are positioning themselves to lobby hard for the solar credit change when the extenders bill hits the floor. Their allies in Congress are committed to getting this done this year, he said. “We’ve got bipartisan support from a team of folks” like Democratic Sens. Chuck Schumer (N.Y.), Michael Bennet (Colo.) Maria Cantwell (Wash.) and Ron Wyden (Ore.), along with Republican Sens. Dean Heller (Nev.) Rob Portman (Ohio) and possibly Finance Committee Chairman Orrin Hatch (Utah).

The House is expected to consider its own package of tax extenders as well, but the fate of the two energy tax credits is less clear. Aides on the Ways and Means Committee will say only that they are working on tax legislation to see votes this fall.

Comprehensive energy bills in both chambers might not get floor time until late this year or possibly 2016. In the House, the Energy and Commerce Committee is expected to approve its version of a broad energy bill before the end of the year, squaring it up for a potential vote before Christmas. The broader Senate version has been approved by the Energy and Natural Resources Committee, but many analysts think that given the packed floor schedule, it’s not likely to get a vote until next year.

On the regulatory front, things won’t get easier for the embattled Environmental Protection Agency. EPA officials will testify in front of four congressional committees — the Senate Committee on Indian Affairs, the Senate Committee on Environment and Public Works, the House Natural Resources Committee, and the House Committee on Science, Space and Technology – for the agency’s role in last month’s toxic wastewater spill at Gold King Mine in Colorado.

The Science, Space and Technology panel kicks things off Wednesday. EPA Assistant Administrator Mathy Stanislaus has been called to testify. The three remaining hearings will take place the following week.