The Senate Energy Bill: The Perils of a Medium-Sized Bill

By all measures, the Energy Policy Modernization Act – also known as the Senate Energy bill – should have had a relatively easy path through the Senate floor this winter.  It is the result of extensive collaboration and cooperation among Democrats and Republicans and was approved by the Senate Energy and Natural Resources Committee on a strong bipartisan vote.

The bill includes good policy provisions that are supported across regional and party lines and while the Administration expressed a few concerns there was no real opposition to the legislation. And yet, the bill has now been stalled for more than a month and the prospects of finishing the legislation are getting dimmer with each passing week. What happened?

The problem is that in today’s Senate, medium-sized bills like this one are the hardest to pass.

The most successful bills in the United States Senate fall into two categories: either they are small enough to slide through without debate or amendment or controversy or, frankly, much attention at all.  Or they are big enough to have momentum of their own, and enough heft to either carry controversial amendments or slough them off.

The Senate Energy bill had the misfortune of coming down right in the middle.  Not small enough.  Not big enough.

Scores of bills get approved by the Senate through unanimous consent:  no procedural machinations, no amendments, and little or no debate time.  But the Energy Policy bill was too big to move through that expedited process.

This bill has provisions with broad-based support, including energy efficiency proposals, efforts addressing energy infrastructure, provisions that help the National Park Service – a perennial favorite – the Land and Water Conservation Fund and common sense provisions to streamline LNG export applications.

All of those provisions made it too significant to avoid a full floor debate, yet not big enough – not considered an urgent enough priority – to compel closure on controversial amendments and either force them off the bill or carry them along.

First, the bill was delayed by extensive debates about the Flint water clean-up efforts.  Once that was resolved, a new problem popped up: a potential amendment to change the revenue sharing provisions for off-shore drilling. The main opponent to that provision has said he won’t even negotiate on it.  So the Energy bill languishes caught in legislative limbo.

Contrast that to other big omnibus bills that Congress moves each year, such as large spending bills or major defense or national security bills.  In December 2015, the Congress passed a significant appropriations bill that carried some controversial pieces – think of the provision lifting the oil export ban – and fended off others – think of the provisions aimed at blocking the Waters of the U.S. rule.

Any heavyweight bill is an attractive legislative vehicle because it will end up on the President’s desk and that gives it the power to push through a messy amendment process.

The Senate Energy bill is a solid piece of legislation with many commendable policy pieces.  But sometimes good policy is not enough.

Elizabeth Gore is policy director at Brownstein Hyatt Farber Schreck’s Washington, D.C. office. She has more than 20 years of experience in Democratic politics and advocacy.