Reprinted from the Spring 2006 issue of Texas Journal of Oil, Gas, and Energy Law.
There is an oft-quoted Texas expression that, "there’s nothing in the middle of the road but yellow stripes and dead armadillos."1 To that dubious list, we might also add energy legislation, which seemingly can only emerge from the middle of the confusing and contradictory roadways of congressional politics. The most recent effort, the Energy Policy Act of 2005,157 was signed into law by President George W. Bush on August 8, 2005 at Sandia National Laboratories in New Mexico, and constitutes the first major piece of comprehensive energy legislation adopted in over twelve years.2 While reasonable minds can differ on the subject of just how comprehensive this or the last energy bill3 were, there is no doubt that the legislation at least touches on every major aspect of energy production and consumption.
This article will provide some description of the politics and context that produced the Energy Policy Act of 2005 ("Act"). Then, the article will provide a summary of the Act, with a particular emphasis on oil and gas issues. Last, the article will examine future challenges in energy policy-making, including the President’s recent call to action in the State of the Union address of January 31, 2006.4
1. Political Context that Produced the Energy Policy Act of 2005
In Washington, there is hardly any greater hearty perennial than energy legislation. Because energy is so inextricably tied to commerce, national security and even environmental protection, the production, distribution, and consumption of energy in all forms has long been thought of as an acceptable province of federal authority. In fact, "energy" and "agriculture," alone among commodities, are represented as cabinet-level agencies.6
It came as no surprise that this particular Administration made the promulgation of energy policy a high priority. First, both President Bush and Vice President Cheney had a strong affinity for energy issues, having both served in varying capacities in the energy industry and both hailing from energy-producing states.7 Second, the time was ripe for energy legislation.8 It has long been said that Congress will not act on matters until an emergency presents itself. In the case of energy legislation, sustained high prices in both the transportation9 and natural gas markets10 constituted one such emergency. Blackouts were another threat, and the national security implications of untrammeled reliance on foreign crude oil in the period after September 11, 2001 constituted another.11
From virtually the beginning of the Bush Administration, senior officials of the government had planned to make energy policy a priority. In January 2001, Vice President Cheney convened a special task force to develop a national energy plan pursuant to the President’s executive order. The task force contained senior White House staff, together with detailees from cabinet agencies, including the United States Department of Energy. The work of the task force yielded a comprehensive plan, many provisions of which ultimately found their way into the Act.12 The process of developing legislative proposals through executive branch leadership is hardly new. The process has been used previously in the energy context as well as in other policy areas such as medical care. In this case, critics of the process argued that private sector input converted the task force proceedings into a process regulated by the Federal Advisory Committee Act ("FACA").13 Because the task force was not charted under FACA and did not conform to other provisions of that act, critics contended that the task force was acting in violation of the statute. After refusing to abide by a district court’s in camera discovery order, the case eventually made it to the Supreme Court, resulting in a remand and dismissal by the Court of Appeals for the District of Columbia Circuit.14 Despite this legally inauspicious beginning, Congress nevertheless dedicated itself to the task of energy legislation—a task that would take over four years to complete.
Energy legislation often reflects a variety of interests, most of which are regional in character. Whereas the Midwest may favor expanded ethanol mandates given its proximity to corn production, the coasts do not prefer such mandates given the difficulty of bringing ethanol to those markets. Sunny climates may prefer federal tax credits for solar energy production, but colder climates may be more concerned with low-income assistance for home heating. Whereas Texas and Louisiana may prefer to develop offshore oil and gas resources, California and Florida take a contrary view. In fact, calls for conceptual unity or overarching philosophy in energy legislation often simply fall on deaf ears.15
Politically, the diffuse opinions regarding energy policy among the several states can make it difficult to pass legislation through both houses of Congress. The House of Representatives, for its part, is governed by practical rules of debate that favor strong control by the chamber’s leaders.16 Since the House Leadership at the time—Speaker Dennis Hastert (R-IL) and Majority Leader Tom DeLay (R-TX)—were of like mind on energy policy, working majorities (however slight) were found to advance energy legislation much along the lines of the Bush Administration’s plan, with additional changes made by the House’s point person on energy, Chairman Joe Barton (R-TX) of the House Energy and Commerce Committee.17
The road was considerably bumpier in the United States Senate. There are two principal reasons for this difficulty: first, Senate rules allow for forty senators to keep debate going on a given bill indefinitely, making the votes needed for energy legislation a supermajority of sixty senators;18 second, the regional differences regarding energy policy (as discussed above) are magnified because each region has equal representation in the Senate, regardless of the region’s population.18 In short, energy legislation kept dying in the Senate.
As each iteration of a new energy bill progressed, the list of controversial items kept narrowing. Whereas the House of Representatives was willing to consider proposals to allow for oil and gas exploration and development in the Arctic National Wildlife Refuge ("ANWR"), the Senate was not.20 Whereas the House of Representatives was willing to consider limited liability provisions for federally-mandated fuel additives like methyl tertiary butyl ether ("MTBE"), the Senate was not.21Indeed, the limited proposals eventually gathered together as comprehensive legislation were in large measure a result of the Senate’s make-up and rules.
2. View from the Middle of the Road: the Energy Policy Act of 2005
The Act, eventually adopted as Public Law 109-58, was a lengthy enactment running 550 pages and eighteen titles.22 The Act covered such diverse topics as energy efficiency, renewable energy, oil and gas exploration and production, clean coal development, Indian energy, nuclear power, vehicles and fuels issues, and major reforms regarding the economic regulation of electricity.23 From ceiling fans to sugar cane, from daylight savings to microturbine power plants, the Act touched on virtually every energy topic while mastering few.24
Critics of the Act, perhaps more concerned with appropriate commentary for direct mail advertising than the facts,25 claimed that the Act was particularly generous to the oil and gas sector. Such a case is difficult to make when viewed through the lens of the actual lobbying on the bill. Indeed, the oil industry’s two most important legislative initiatives, the development of ANWR and the appropriate treatment of MTBE liability, were both left on the cutting room floor as a result of intense negotiations between the House of Representatives and the Senate in conference. Despite this result, the Act does contain some provisions that deal with oil and gas exploration and development, as well as transportation fuels and oil shale and tar sands.
a. General Review of Oil and Gas Provisions
Title III of the Act deals specifically with oil and gas issues. According to the Senate Energy and Natural Resources Committee ("ENR"),26 which together with the House Energy and Commerce Committee constituted the principal committees of jurisdiction for the bill, summarized the oil and gas provisions, stating that the bill:
- includes provisions to streamline oil and gas development on existing federal lease sites to bring the fuels to market sooner;27
- the bill permanently authorizes the Strategic Petroleum Reserve28 and authorizes the DOE Secretary to fill the reserve to 1 billion barrels;29
- calls for a Department of Interior inventory of oil and gas resources on the Outer Continental Shelf30 to enable the federal government to better assess the extent of these resources;31
- facilitates the construction of needed gas infrastructure by improving and streamlining the process to permit pipeline infrastructure with the Federal Energy Regulatory Commission32 ("FERC") as the lead agency and with a consolidated record;33
- provides coastal impact assistance of $1 billion over four years to energy-producing states to encourage ongoing production by assisting in coastal enhancement and conservation programs;34
- ensures an adequate supply of natural gas in the coming years, including clarification of FERC’s exclusive authority to site liquefied natural gas ("LNG")35 facilities.36 The bill further ensures supply by creating a clear process for siting natural gas infrastructure such as pipelines and storage.37
The Act also contains specific provisions dealing with transportation fuels. Title XV of the Act specifically establishes "an ethanol mandate requiring fuel manufacturers to use 7.5 billion gallons of ethanol in gasoline by 2012."38
Other provisions of the bill, dealing, for example, with energy efficiency, corporate average fuel economy for automobiles and trucks, or even global climate change, arguably have an effect on the demand for oil and gas and their derivative products. These provisions are, however, beyond the scope of this article.
b. Intersection of Environmental Regulation and Oil and Gas Production
The Act does contain a variety of provisions designed to address environmental obstacles to oil and gas exploration and development. One of the surviving House of Representatives’ proposals was aimed at permit simplification for oil and gas projects on federal lands. The provision also authorizes the Secretary of Interior to exempt certain operations from the National Environmental Policy Act ("NEPA"). NEPA requires the familiar environmental impact statement process with ample opportunities for public comment, litigation, and delay. The NEPA exemption applies to "individual surface disturbances" resulting from oil and gas operations of less than five acres on leases no larger than 150 acres and only when an initial site-specific analysis of environmental impact already has been completed.39
Another victory for oil and gas development came in the form of provisions dealing with hydraulic fracturing.40 Hydraulic fracturing, according to the United States Environmental Protection Agency ("EPA"), is a "technique" that "allows oil or natural gas to move more freely from the rock pores where they are trapped to a producing well that can bring the oil or gas to the surface."41 Specifically, the technique is described as follows:
After a well is drilled into a reservoir rock that contains oil, natural gas, and water, every effort is made to maximize the production of oil and gas. One way to improve or maximize the flow of fluids to the well is to connect many pre-existing fractures and flow pathways in the reservoir rock with a larger fracture. This larger, man-made fracture starts at the well and extends out into the reservoir rock for as much as several hundred feet. The man-made or hydraulic fracture is formed when a fluid is pumped down the well at high pressures for short periods of time (hours). The high pressure fluid (usually water with some specialty high viscosity fluid additives) exceeds the rock strength and opens a fracture in the rock. A propping agent, usually sand carried by the high viscosity additives, is pumped into the fractures to keep them from closing when the pumping pressure is released. The high viscosity fluid becomes a lower viscosity fluid after a short period of time. Both the injected water and the now low viscosity fluids travel back through the manmade fracture to the well and up to the surface.42
The controversy surrounding hydraulic fracturing was intensified due to a federal court decision43 that prompted EPA to begin a process to regulate the practice. Previously, EPA had taken the position that the fluids were not injected for purposes of disposal, but rather to improve the geological properties of the formation. Supporters of the practice essentially argued that environmental impacts were de minimus, that the process was important for efficient oil and gas production, and that any regulation must be highly site-specific rather than national and proscriptive in nature.44 Opponents of the process, such as the mercurial Robert F. Kennedy, Jr., contend that it can contaminate water sources with benzene, a chemical present in certain mixtures.45 For its part, the Act resolves the controversy in favor of the oil and gas sector by restoring the status quo prior to the court decision.46
c. Offshore Oil and Gas Exploration and Development
Though the Outer Continental Shelf Lands Act of 1953, as amended,47 permits the exploitation of certain offshore oil and gas projects on the OCS, it does so only "in a manner that protects the environment and returns revenues to the federal government in the way of bonus bids, rents, and royalties."48 The program to develop OCS lands has been controversial, resulting in a moratorium in all OCS areas other than Texas, Louisiana, Alabama, and some parts of Alaska.49 The moratorium was put in place by a 1990 Presidential Directive issued by President George H. W. Bush and at the strong urging of California, Florida, and certain environmental organizations.50 While the original moratorium was to last ten years, President William J. Clinton extended it until 2012.51
The Act does not directly address the moratorium on OCS leasing, but it does stick its toe in the water. The Act establishes a "comprehensive inventory" of oil and natural gas assets on the OCS.52 Section 357 of the Act bars the Interior Department from actual drilling in conducting the inventory, which is due in February 2006.53 Even this inventory raised substantial environmental hackles as a first step towards to exploiting the OCS.54
Beyond OCS consideration, the Act as adopted also simplifies the regulatory and permitting requirements for natural gas development on federal lands. Under § 366 of the Act, the Secretary of Interior is given ten days to notify applicants whether their permits have been rejected.55 Even development projects that are not approved at the outset may receive a deferral of up to two years to allow the applicant to perfect their submission to the Department of the Interior.56
d. Liquefied Natural Gas
The Act mandates that the Department of Energy undertake a study on the cumulative risks and benefits of the various offshore LNG facilities "reasonably assumed to be constructed" in the Gulf of Mexico.57 This development is predicated on the further development of OCS resources. The report, mandated under § 1828 of the Act, is supposed to deal with the environmental and marine impacts of the "open-rack vaporization systems," necessary to extract LNG.58 Title III of the Act also clarifies the FERC’s jurisdiction for siting, construction, expansion, and operation of import-export facilities located onshore or in state waters.59 The section does not provide FERC with eminent domain authority over siting LNG facilities, however.60
While it is unclear whether the Act’s limited LNG provisions will facilitate substantial additional construction of facilities, the importance of doing so cannot be overstated. Senator Pete Domenici (R-NM), chairman of the Senate ENR Committee, observed:
[W]e have some difficult choices ahead that require federal leadership. The Energy Information Agency tells us we must increase our importation of LNG nearly 30-fold by 2025 to meet domestic demand. The American Gas Foundation yesterday warned that natural gas prices could double in the next 15 years if we don’t increase domestic production, build LNG ports and diversify our sources of electricity.61
e. Oil Shale and Tar Sand
According to the U.S. Geological Survey, the United States has approximately 2 trillion barrels of crude petroleum in oil shale formations, particularly in the western part of the U.S. Beyond that, the nation also has 80 billion barrels of oil in tar sands.62 The Act creates a task force to recommend policies to facilitate oil shale and tar sands leasing, and also creates a research and development program to bring new technologies to bear on these resources.63 The Act authorizes sales of commercial shale leases when the situation warrants.64 Federal land leasing of this sort for shale and tar sands is likely to focus on Colorado, Utah, and Wyoming, with private operations to receive leases by late 2007. These projects are not exempt from the environmental impact assessment process, however.65
3. A Look to the Future: Can Unfinished Energy Business Get Out of Traffic?
The Act produced a good start for oil and gas legislation and certainly raised a number of questions for future policy makers to resolve. While beyond the scope of this article, the Act’s tax provisions66 are designed to stimulate future investment in the oil and gas sector. But despite all of its successes, the Act was open to the criticism that it stressed supply-side solutions over demand-side solutions; that is, while the Act sought to encourage the development of additional oil and gas resources, it was less enthusiastic about encouraging efficiency or conservation. This argument, however, is based more on perception than reality because the Act has substantial provisions regarding the energy efficiency of appliances67 and even some provisions on automobile efficiency.68
The Act’s final passage was in part a reaction to gasoline and natural gas prices that exceeded historical averages at the time debate on the Act intensified. Gasoline prices actually began to decline as the final conference on the energy bill got underway. By the end of August 2005, however, Hurricane Katrina made landfall, and took substantial energy assets off-line. Predictably, gasoline prices once again began a significant upward climb. The call went out immediately to revisit energy legislation, despite the fact that the ink on the Act was barely dry.69
The Act had been considered over a four-year process, allowing ample time for debate of all the major constituent issues. Only its final adoption was presaged by significant energy price concerns. Despite this pedigree, the emergence of the twin hurricanes impacting the Gulf Coast caused a serious rethinking.70 While no legislation was adopted in answer to this call—the political capital generated by the hurricanes was diverted to supplementary appropriations measures71 and oversight of the recovery72—it is instructive to observe the energy proposals that were advanced at the time. These policy options included a renewed interest in development of ANWR, increases in automobile fuel economy standards, conversion of the mere OCS inventory to additional leasing, further efforts to encourage refinery construction, and, of course, the requisite call for additional authority to deal with so-called "price gouging" in the fuels market.73
Like the proverbial gift that keeps on giving, circumstances calling for rational and effective oil and gas policy remain constant, and the federal government cannot resist additional efforts to tinker with major energy proposals. On January 31, 2006, President Bush delivered his State of the Union address to the U.S. Congress.74 Arguing that the nation remains "addicted to oil," President Bush called for an ambitious replacement of seventy-five percent of foreign oil imported from the Middle East with domestic energy sources (like ethanol and other alternatives) by the year 2025.75 While reasonable minds can differ about the possibility of reaching this outcome,76 it is hard not to admire the goal of making significant in-roads into the nation’s fossil fuel dependence.
Daniel Yergin, a noted energy consultant and author of The Prize, recently observed, "Every Administration since the early 1970’s has struggled with the issue of rising oil imports and the right mix of policies to deal with them."77 While the oil and gas sector will undoubtedly find its way in light of the impacts of the Act and the pace of its implementation, the only certainty is that our democratic institutions will continue to fight over the appropriate road map.
Footnotes
1. See, e.g., JIM HIGHTOWER, THERE’S NOTHING IN THE MIDDLE OF THE ROAD BUT YELLOW STRIPES AND DEAD ARMADILLOS : A WORK OF POLITICAL SUBVERSION (1998).
2. Energy Policy Act of 2005, Pub. L. No.109-58, 119 Stat. 594 (codified as amended in scattered sections of 42 U.S.C.).
3. Press Release, The White House, President Signs Energy Policy Act (Aug. 8, 2005) (on file with author), available at http://www.whitehouse.gov/news/releases/2005/08/20050808-6.html [hereinafter White House Transcript].
4. The last energy bill was the Energy Policy Act of 1992, Pub. L. No. 102-486, 106 Stat. 2776 (codified as amended in scattered sections of 42 U.S.C.).
5. President George W. Bush, State of the Union Address (Jan. 31, 2006), available at http://www.whitehouse.gov/stateoftheunion/2006/ [hereinafter SOU Transcript].
6. For descriptions of the federal role in energy policy, see 42 U.S.C. 7131(2000) (establishing the Department of Energy and a Secretary of Energy, effective October 1, 1977); Exec. Order No. 12009, 42 Fed. Reg. 46,267 (Sept. 13, 1977). 7. Interview by Ben Greenman with Nicholas Lemann, Staff Editor, NEW YORKER (May 7, 2001), available at http://www.newyorker.com/online/content/articles/010507on_onlineonly01 ("…both men [Cheney and Bush] grew up in oil boomtowns, long before they worked in the industry.").
8. See, e.g., Pennsylvania Governor Edward G. Rendell, Speech to the National Press Club: An American Energy Harvest Plan: Jobs, Prosperity, Independence (Dec. 1, 2005), available at http://www.governor.state.pa.us/governor/cwp/view.asp?a=3&q=444223 ("America needs a sound forward-looking energy policy. And it needs federal leadership. The time is ripe.").
9. Editorial, Fossilized Fuel Legislation, LA TIMES, Apr. 20, 2005, at B12 ("With prices at the gas pump near $3 a gallon, the Senate this year should figure out that the time is ripe for a better-designed energy bill. The public is ready to hear not just about lower gas prices but also real conservation.").
10. Justin Blum, Natural Gas’s Danger Signs, WASH. POST, Oct. 7, 2005, at D1 ("Andrew N. Liveris, chief executive of Dow Chemical Co., told a hearing yesterday before the Senate Energy and Natural Resources Committee that the country is in a ‘natural gas crisis…How can I recommend investing here?’ Liveris said. U.S. natural gas prices are among the highest in the world.").
11. The White House Transcript states the following: We’ve had some ideas, but we have not had a national energy policy. And as a result, our consumers are paying more for the price of their gasoline, electricity bills are going up. We had a massive blackout two summers ago that cost this country billions of dollars and disrupted millions of lives. And because we didn’t have a national energy strategy over time, with each passing year we are more dependent on foreign sources of oil. White House Transcript, supra note 158, at 2; U.S. Dep’t of Energy, The Energy Bill & You, http://www.energy.gov/about/584.htm (last visited Mar. 28, 2006) ("On July 29, 2005, Congress passed the first comprehensive energy legislation in over a decade. This historic bill follows many of the principles outlined by President Bush to strengthen our nation’s electrical infrastructure, reduce our dependence on foreign oil, increase conservation and expand the use of clean renewable energy.").
12. A comprehensive discussion of the deliberations and process of the Vice President’s energy task force can be found at U.S. GEN. Accounting Office, Energy Task Force: Process Used to Develop the National Energy Policy GAO-03-894 (2003), available at http://www.gao.gov/new.items/d03894.pdf. On January 29, 2001, President George W. Bush issued a memorandum establishing the National Energy Policy Development Group (NEPDG) within the Executive Office of the President for the purpose of developing a "national energy policy designed to help the private sector, and government at all levels, promote dependable, affordable, and environmentally sound production and distribution of energy for the future." The President named Vice President Cheney chairman and assigned cabinet secretaries and other federal officials to serve with the Vice President. Five months later, the NEPDG issued its final report to the President. As the President directed, the NEPDG ceased to exist as of "the end of fiscal year 2001," that is, September 30, 2001. In re Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005) (en banc).
13. 5 U.S.C. App. 2 (1996) (Under FACA, membership of "advisory committees" cannot be "composed wholly of full-time, or permanent part-time, officers or employees of the Federal Government.").
14. In re Cheney, 406 F.3d 723 at 729.
15. Carolyn Lochhead, Showdown Looms Over Energy Bill, S.F. CHRON., Nov. 15, 2003, at A1 (quoting one energy lobbyist, "In the end, regional politics always tends to win out.").
16. For information on the rules of the House of Representatives, see STANLEY BACH & STEVEN S. SMITH, MANAGING UNCERTAINTY IN THE HOUSE OF REPRESENTATIVES: ADAPTATION AND INNOVATION IN SPECIAL RULES (1988); LEWIS DESCHLER, DESCHLER’S PRECEDENTS OF THE UNITED STATES HOUSE OF REPRESENTATIVES, H.R. Doc. No. 94-661 (1976).
17. Author Amanda Griscom offered one view on unified House Leadership and passage of the energy bill: For more than a month, the Republican House leadership has been planning a much-touted "energy week" centered on legislation that mimics nearly verbatim the Energy Policy Act–that same old bill that sailed through the House last fall with avid support from the White House, but was then defeated twice by filibusters in the Senate. Amanda Griscom, Energy Kabuki, GRIST MAG., June 14, 2004, available at http://www.grist.org/ news/muck/2004/06/15/griscom-energy/.
18. Id.; see also U.S. Senate, Filibuster & Cloture, http://www.senate.gov/artandhistory/
19. history/common/briefing/Filibuster_Cloture.htm.(last visited March 20, 2006) 2. That the Senate does not feature proportional representation is axiomatic. "The Senate of the United States shall be composed of two Senators from each State. " U.S. CONST. art. I, § 3, cl.1.
20. Liz Ruskin, Energy Bill Omits ANWR Drilling, ANCHORAGE DAILY NEWS, June 29, 2005, at B2, available at http://www.adn.com/news/alaska/anwr/story/6659534p-6546375c.html.
21. Press Release, Nat’l Petrochemical & Refiners Ass’n, NPRA Comments on Senate Passage of Energy Bill (June 28, 2005), http://www.npradc.org/news/releases/detail.cfm?docid=1942&archive=1. NPRA President Bob Slaughter stated in part the following: Most concerning is that the [Senate] bill does not contain a MTBE limited liability provision like the House bill. . . . . . . . We believe that the limited liability protection for MTBE against defective product claims is a must-do item in any comprehensive energy bill, and we will work with Congress to ensure that this provision is included in the final package. Id.
22. Energy Policy Act of 2005, Pub. L. No.109-58, 119 Stat. 594 (codified as amended in scattered sections of 42 U.S.C.).
23. See id.
24. See id.
25. Tom Knudson, Mission Adrift in a Frenzy of Fund Raising, SACRAMENTO BEE, Apr. 23, 2001, available at http://www.sacbee.com/static/archive/news/projects/environment/ 20010423.html (discussing the propensity of environmentalist direct mail appeals to cause distortion of environmental facts).
26. U.S. SENATE COMM. ON ENERGY AND NATURAL RES., 109TH CONG., HIGHLIGHTS OF THE BIPARTISAN ENERGY BILL (Aug. 1, 2005), http://energy.senate.gov/public/_files/ Conferencereportoverviewexpanded080105.doc [hereinafter SENATE HIGHLIGHTS].
27. Id. at 7.
28. The United States Department of Energy describes the Strategic Petroleum Reserve as the following: [T]he largest stockpile of government-owned emergency crude oil in the world. Established in the aftermath of the 1973-74 oil embargo, the SPR provides the President with a powerful response option should a disruption in commercial oil supplies threaten the U.S. economy. It also allows the United States to meet part of its International Energy Agency obligation to maintain emergency oil stocks, and it provides a national defense fuel reserve. U.S. Dep’t of Energy, Office of Fossil Energy, U.S. Strategic Petroleum Reserves, http://www.fossil.energy.gov/programs/reserves/ (last visited Mar. 26, 2006). 29. SENATE HIGHLIGHTS, supra note 181, at 7.
30. According to the Minerals Management Service, a bureau of the United States Department of the Interior, The Outer Continental Shelf (OCS) consists of the submerged lands, subsoil, and seabed, lying between the seaward extent of the States’ jurisdiction and the seaward extent of Federal jurisdiction. The continental shelf is the gently sloping undersea plain between a continent and the deep ocean. The United States OCS has been divided into four leasing regions. They are the Gulf of Mexico OCS Region, the Atlantic OCS Region, the Pacific OCS Region, and the Alaska OCS Region. In 1953, Congress designated the Secretary of the Interior to administer mineral exploration and development of the entire OCS through the Outer Continental Shelf Lands Act. U.S. Dep’t of the Interior, Minerals Mgmt. Serv., What is the Outer Continental Shelf?, http://www.gomr.mms.gov/homepg/whoismms/whatsocs.html (last visited Mar. 26, 2006).
31. SENATE HIGHLIGHTS, supra note 181, at 7.
32. The Federal Energy Regulatory Commission is defined as the following: [A]n independent, five-member regulatory agency within the Department of Energy that regulates the transmission and sale of natural gas for resale in interstate commerce; regulates the transmission of oil by pipeline in interstate commerce; regulates the transmission and wholesale sales of electricity in interstate commerce; licenses and inspects private, municipal, and State hydroelectric projects; oversees environmental matters related to natural gas, oil, electricity, and hydroelectric projects; administers accounting and financial reporting regulations of jurisdictional companies; and approves site choices as well as abandonment of interstate pipeline facilities. NAT’L ARCHIVES & RECORDS ADMIN., U.S. GOV’T MANUAL 213 (2005), available at http://frwebgate.access.gpo.gov/cgi-bin/ getdoc.cgi?dbname=2005_government_manual&docid=201944tx_xxx-39.pdf..
33. SENATE HIGHLIGHTS, supra note 181, at 7.
34.Id.
35. Liquefied Natural Gas (LNG) is defined as the following: [A] clear, colourless liquid that forms when natural gas has been cooled to -162C. It is odourless, non-toxic and non-corrosive. In its liquid form, natural gas is more efficiently stored and is economic to transport in dedicated LNG carriers overseas to receiving terminals. Indeed, converting natural gas into LNG is the only viable way to transport natural gas to places that are beyond the reach of pipeline systems. In liquid form, natural gas takes up 600 times less space than it does as a gas. It is like shrinking the volume of a beach ball to that of a ping-pong ball. Shell Gas & Power, Liquefied Natural Gas, http://www.shell .com (follow "Gas & Power" hyperlink; then follow "Products & Services" hyperlink; then follow "Liquefied Natural Gas (LNG)" hyperlink).
36. SENATE HIGHLIGHTS, supra note 181, at 7.
37. Id.
38. Id. at 1.
39. Dean Scott, Stormwater, Drilling Exemptions Survive, Oil, Gas Operations Get NEPA Exemption, DAILY ENV’T REPORT (BNA), Aug. 11, 2005, at A1.
40. The Act amends the Safe Drinking Water Act to read as follows: (1) UNDERGROUND INJECTION—The term "underground injection"— (A) means the subsurface emplacement of fluids by well injection; and (B) excludes— (i) the underground injection of natural gas for purposes of storage; and (ii) the underground injection of fluids or propping agents (other than diesel fuels) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities. Energy Policy Act of 2005 § 322, 42 U.S.C. 300h(d).
41. U.S. Envtl. Prot. Agency, Underground Injection Control Program, What Is Hydraulic Fracturing?, http://www.epa.gov/OGWDW/uic/cbmstudy/hfracdef.html (last visited Mar. 28, 2006).
42. Id.
43. Legal Envtl. Assistance Found., Inc. v. EPA, 118 F.3d 1467, 1477 (11th Cir. 1997).
44. Am. Ass’n of Petroleum Geologists, Policy Statement: Regulation of Hydraulic Fracturing, http://dpa.aapg.org/gac/papers/hydraulic_fracturing.cfm (last visited Mar. 11, 2006).
45. Robert F. Kennedy, Jr., The Junk Science of George W. Bush, THE NATION, Mar. 4, 2004, available at
http://www.thenation.com/doc/20040308/kennedy.46. Energy Policy Act of 2005 § 322, 42 U.S.C. 300h(d) (2006).
47. 43 U.S.C. §§ 1331-356(a) (2000).
48. MARC HUMPHRIES, CONGRESSIONAL RESEARCH SERVICE ISSUE BRIEF FOR CONGRESS, OUTER CONTINENTAL SHELF: DEBATE OVER OIL AND GAS LEASING AND REVENUE SHARING, CRS IB10149, at 3 (2005), available at http://cnie.org/NLE/CRSreports/ 05oct/IB10149.pdf.
49. Id.
50. Id.
51. Id.
52. Energy Policy Act of 2005 § 357, 42 U.S.C.§ 15912 (2006).
53. Id.
54. Press Release, U.S. Rep. Frank Pallone, Jr., Pallone, Calls OCS Inventory in Republican Energy Bill Unnecessary (Aug. 1, 2005), http://www.house.gov/apps/list/press/ nj06_pallone/pr_aug_OCS.html ("The unnecessary inventory included in the Republican energy bill is not about ‘seeing what is out there,’ but about pushing for oil and gas drilling in areas currently protected by the law.").
55. § 366, 30 U.S.C. § 226(p) (2006).
56. Id.
57. Pub. L. No.109-58, § 1828, 119 Stat. 594, 1136.
58. Id.
59. § 311, 15 U.S.C. § 717b (2006.
60. Id.
61. Press Release, U.S. Senate Comm. on Energy & Natural Res., United States Must Build LNG Ports to Avoid Spiraling Natural Gas Prices, Domenici Says (Feb. 15, 2005) (on file with author), available at http://energy.senate.gov/public/index.cfm?FuseAction=PressReleases. Detail&PressRelease_id=232143&Month=2&Year=2005&Party=1.
62. SENATE HIGHLIGHTS, supra note 181, at 8.
63. Id.
64. Id. But see Randy Udall & Steve Andrews, Oil Shale May be Fool’s Gold, DENVER POST, Dec. 18, 2005, at E1 ("Buried underground in western Colorado are a trillion tons of oil shale. For a century, men have tried and tried again to unlock this energy source. But the rocks have proved stubborn, promising much, delivering little.").
65. Scott, supra note 194.
66. Energy Policy Act of 2005, Pub. L. No.109-58, § 1321-29, 119 Stat. 594, 1010-20 (codified as amended in scattered sections of 42 U.S.C.) (including tax provisions dealing with "Domestic Fossil Fuel Security").
67. § 131-41, 119 Stat. 594, 620-648.
68. CARL BEHRENS & CAROL GLOVER, CONGRESSIONAL RESEARCH SERV. ISSUE BRIEF FOR CONGRESS, GASOLINE PRICES: POLICIES AND PROPOSALS 8 (2005), http://fpc.state.gov/ documents/organization/54278.pdf (describing the Act’s limited CAFÉ provisions as follows: "P.L. 109-58 merely amends slightly the criteria NHTSA must follow in its rulemaking and authorizes appropriations of $2 million annually through FY2008 for that purpose.").
69. Id. at 3 ("[P]rices continued to surge, spiking at the end of August when Hurricane Katrina shut down refining operations in the Gulf of Mexico. The continuing crisis has renewed attention to some issues that were dropped or compromised in the debate over P.L. 109-58.").
70. Id. at 6.
71. The chairman of the appropriations subcommittee with jurisdiction over hurricane response noted the following: Over the past month, this Congress has provided over $62 billion with little justification from the Department and the Administration. We did so because everyone agreed the need was urgent—we could not let our response to one of the largest disasters this nation has ever faced be interrupted because of lack of funding. While we acknowledge that more financial assistance will be needed, the sense of urgency has subsided. FEMA has over $40 billion on hand to respond to any eligible request for assistance for the next several weeks. Press Release, Senator Hal Rogers, Hurricane Katrina Appropriations Hearing – Supplemental Spending Oversight (Oct. 6, 2005) (on file with author), available at http://halrogers.house.gov/ Read.aspx?ID=29.
72. See, e.g., Lara Jakes Jordan, Ex-FEMA Chief Shifts Katrina Blame to DHS, ASSOCIATED PRESS, Feb. 11, 2006 (as recently as Feb. 2006, ex-Federal Emergency Management Agency chief Michael Brown testified before the Senate regarding the "structural dysfunctionalities, even within the federal government" in responding to the hurricanes); see also Row Rages Over Katrina Response, BBC NEWS, Feb. 10, 2006, http://news.bbc.co.uk/2/hi/ americas/4702090.stm.
73. Behrens & Glover, supra note 223, at 6-8.
74. David Baker, A New World of Power: Bush’s Bold Energy Initiative Short on Funding, S.F. CHRON., Feb. 2, 2006, at C1; Elisabeth Bumiller, State of the Union: Energy: Bush’s Goals on Energy Quickly Find Obstacles, N.Y. TIMES, Feb. 2, 2006, at A1.; John J. Fialka & Jeffrey Ball, Bush’s Latest Energy Solution, Like its Forebears, Faces Hurdles, WALL ST. J., Feb. 2, 2006, at A1.
75. Bumiller, supra note 229.
76. Fialka & Ball, supra note 229.
77. Bumiller, supra note 229.
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