Searching for Votes in the Senate

Q: Can the Dems scrounge up the votes to block anti-environment actions? A: Maybe.

Paul Ryan and Donald Trump have vowed to roll back many environmental protections.  The Senate seems to be the one barrier against anti-environmental moves by Congress.  How strong is that barrier?

The answer depends in part on whether the filibuster option remains open. If the filibuster rule remains intact, the Democrats’ 48 votes in the Senate give them plenty of leeway in halting anti-environmental initiatives, even if they lose several votes.

But there are some end runs around the filibuster under the Congressional Review Act (for overturning Obama regulations) and reconciliation bills.  (It appears that the CRA only allows Congress to review rules issued after late May of 2016, so some important EPA rules should be exempt). In addition, we don’t know at this point whether the filibuster rule will survive, particularly if Democrats make aggressive use of it.  So it’s worth looking to see where Democrats might be able to scare up an extra few votes to get to a majority.  If the Democrats hold together as a block, they’ll need three extra votes from the other side of the aisle.

Obviously, there are people in D.C. who know a lot more about this than I do, both within the Senate and among environmental lobbyists. Still, it seemed worth exploring the prospects for a Senate “save” for the environment. As a first cut on this issue, I took a look at the League of Conservation Voters (LCV) scores for Senate Republicans.  These are the Republicans who look most promising in terms of LCV scores:

Senator                                  2015            Lifetime          

Susan Collins (R) ME             60%                65%

Lamar Alexander (R) TN        24%               20%

Rob Portman (R) OH               8%               20%

Shelley Capito (R) WV              4%               18%

John McCain   (R) AZ               4%               21%

Chuck Grassley (R) IA              4%               20%

Lisa Murkowski (R) AK            4%               18%

The two most promising are clearly Collins and Alexander.  Collins votes on environmental matters more or less like a moderate Democrat.  Alexander’s lifetime score is the same as the remaining Republicans, but he stayed firm last year when the others caved in.  The idea of scrounging up a third vote or even a fourth one doesn’t seem hopeless, especially if the House passes some really radical changes in environmental law.

Looking beyond information about their environmental stances, 538.org had a recent post about Republican Senators who are in general most likely to split from Trump.  Collins, McCain, Murkowski and Portman are among the top 10 on that last, too.  Capito is #14.  Grassley is in the middle of the list, but his vote might be a possibility on renewable energy issues where Iowans have an economic stake. Lamar Alexander is lower on the list, making him less likely in general to defect from Trump, but his voting record in the past year on environmental issue may point in the opposite direction.

The idea of scrounging up a third vote or even a fourth one doesn’t seem hopeless, especially if the House passes some really radical changes in environmental law.

But there are some warning signs as well.  Joe Manchin from West Virginia is the softest Democratic vote on environmental issues, and Heitkamp from North Dakota is in a similar position.  They’re both high on 538’s list of Democrats who might defect to Trump. The others who are high on that list have better environmental records and are less likely to be a problem. So, at least on some issues, Democrats may need four or five Republican votes instead of three, which would be much tougher.

If a proposal to strip EPA of jurisdiction over greenhouse gases reaches the Senate floor and can’t be filibustered, Caputo, Manchin, and Murkowski would probably fade away.  McCain (not to mention Lindsey Graham) at one point supported cap-and-trade.  Graham and McCain ran for cover after 2008, but maybe they could be prevailed upon to step forward again to defend climate action. (Especially since McCain doesn’t really need to worry about reelection). Portman might stand up for EPA on this issue, or he might not.  Murkowski is probably not going to be there, although perhaps growing concern in Alaska about the impact of climate change could sway her.   Finally, it’s possible that a state that produces a lot of natural gas might be ambivalent in terms of climate regulations that restrict the use of coal, though getting those votes seems like a long-shot. In short, blocking a congressional rollback on climate change rules  could be a heavy lift without the help of a filibuster, but it’s not necessarily impossible.

Thus, without the help of a filibuster, the Senate is not necessarily a reliable safeguard for Obama’s rules.  But even without the filibuster, it seems likely that there are enough votes to block radical legislative changes in our environmental statutes and perhaps congressional overrides of some of the Obama rules.

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Reader Comments

3 Replies to “Searching for Votes in the Senate”

  1. As regards coal, it is worth noting that the average fire to wire efficiency for the natural gas electrical generation fleet is about 32% higher than for the coal fleet and getting higher – the most recent combined cycle natural gas plants are getting efficiencies of 60%, and this is baked into the basic physics – you can’t run a gas turbine (for the top end of the cycle) on coal, so you are stuck at the thermal limits of boilers and Carnot efficiency for a pure Rankine cycle plant.

    So, even disregarding any cost per BTU differential between coal and gas, and the difficulty of handling rock vs. gas and getting rid of fly ash and so on, natural gas is a much better economic solution than coal and will only get better with time.

    Building a new coal elec plant is silly, and as the older steam plants age out they will be replaced or they might even be converted to gas turbine top ends, which again will be natural gas.

    Coal is also used for metallurgy, but most steel is obtained by recycling, not reduction of ore.

    Coal is rapidly dying regardless of government action. This will help a good deal as regards CO2, though not as much as we need.

  2. Dan said;
    “…..The Senate seems to be the one barrier against anti-environmental moves by Congress….”

    Dear Dan,
    As you know, we do not need to waste time and resources dealing with Congress. Recently, Mr. ROBERT DRESDNER addressed this forum and clearly explained our best path forward:

    “…..Easiest cheapest option with very little risk of bad press is for Trump to do exactly what every Administration has done so far: cut Agency budgets and staff, cut EPA oversight of state implementation, cut enforcement of rules and permits, undercut citizen suits with sweetheart settlements, look the other way on criminal violations, shelve rulemakings, and ignore statutory deadlines. My guess is this what Trump will do beginning from Day One–Step One. Step Two is push through all the aggressive, high visibility bad stuff, relax rules, open door wide to pipelines and fracking…..”

    As we continue to implement this strategy, reasonable objections and alternative opinions would be addressed through administrative procedures so that we arrive at good policies that protect the environment.

    All previous attempts to mitigate climate change have completely failed to produce any tangible results so we can safely abandon these past failures, learn from our mistakes, move forward together and make America great again. Have a great day.

  3. Dan, one reason we are losing the battle to protect the environment is, as Chancellor Dirks said (referring to Hofstadter 1963 book “Anti-Intellectualism in American Life”) in a 2013 CALIFORNIA magazine interview:
    “– so many intellectuals don’t want to take on the sort of complications and impurities that come with being public.”

    This is also the type of lesson that Hillary and so many democratic congressional candidates learned the hard way in this election because they have marginalized the working class for at too long, so Trump won and the republicans shall now control the presidency, congress and SCOTUS. That’s a hell of a price to pay for Ivory Tower elitism.

    We can’t save the environment if we continue to ignore a most important class of We The People, one of the lessons of history we continue to fail to learn at our rapidly increasing peril as the arctic ice melts.

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Dan Farber

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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