After the Highway Bill, What Does the Future Hold for the Keystone Pipeline and Coal Ash Legislation? By William Clarkson

by King & Spalding

On Friday, June 29th, Congress passed a comprehensive 27-month transportation bill after weeks of feverish negotiations among the bill's House and Senate conferees. A number of contentious issues had to be resolved before the bill conferees and Congressional leaders were able to finalize a deal, probably none more contentious than House GOP-backed provisions related to approval of the Keystone XL pipeline and EPA regulation of Coal Combustion Residuals ("CCRs" or "coal ash").

In response to President Obama's January decision not to approve TransCanada's proposed pipeline route, Rep. Lee Terry (R-NE) succeeded in including language in the House-passed transportation bill that would expedite the pipeline, after TransCanada agreed to re-route it away from the ecologically sensitive Sandhills region of Nebraska. While Congressional supporters of Rep. Terry's Keystone XL provision were hopeful that the transportation bill conferees would keep the provision in the final conference report, it is likely that the high-profile, politically-charged nature of the issue ultimately doomed its chances for inclusion in the conference report or another legislative vehicle this year.

In order to counter EPA rulemaking that would potentially classify coal ash as a hazardous substance under the Resource Conservation and Recovery Act (RCRA), Representative David McKinley (D-WV) introduced legislation, the Coal Residuals Reuse and Management Act (H.R. 2273), to prohibit such a classification and create national CCR management guidelines to be implemented by the states. H.R. 2273 passed the House last year with over 30 Democrats voting in favor of it. It was then passed by voice vote as an amendment to the House transportation bill. The Senate version of the McKinley bill (S. 1751), introduced by Senators Kent Conrad (D-ND) and John Hoeven (R-ND), also enjoyed bipartisan support, but was never voted on in the full Senate. Up until the last day of conference committee negotiations, it appeared that that the transportation bill conferees would include "compromise" CCR language, based on the McKinley bill. In the end, however, CCR language was not included in the conference report.

Given the strong Congressional support for Representative McKinley's bill, particularly among key swing-vote Senate Democrats, it is likely that there will be another House-led effort to attach some version of the McKinley language to another legislative vehicle, perhaps as part of tax or deficit reduction legislation expected to be considered during a November-December "lame-duck" session. Another option would be to include "limitation" language in the Fiscal Year 2013 Interior-EPA Appropriations bill prohibiting EPA from using any federal funding to implement a regulation classifying CCRs as "hazardous waste." Yet another option, which was reportedly mentioned by Rep. Ed Whitfield (R-KY), a House conferee, would be to rescind the EPA regulation under the Congressional Review Act ("CRA"). Enacted as a means of giving the legislature an additional “check” on executive rulemaking, the CRA requires that Congress be given 60 days to pass a disapproval resolution on a rule before it takes effect. If the resolution passes both Houses within 60 days of the rule’s submission and is subsequently signed by the President, the rule won’t take effect. In March 2001, President George W. Bush signed S. J.Res. 6, Congress’ joint resolution to rescind the Department of Labor's November 2000 ergonomics rule, marking the first and only time a final agency rule has been rescinded by the CRA.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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