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See all the Last-Minute Changes to the Climate Change Bill

July 1, 2009 - by Donny Shaw

Last week when House Democratic leaders decided at the last minute to add several hundred pages of changes to the Waxman-Markley cap-and-trade bill and rush it to the House floor for a vote, the bill’s opponents and some good-government groups raised serious objections to the opacity of the process. Rich Lowry at the National Review wrote, “no one could be sure what he was voting for — not after the 1,200-page bill had a 300-page amendment added at 3:09 a.m. the day of its passage.” And Paul Blumenthal at the Sunlight Foundation, noting that the 300-page amendment was the product of a many behind-the-scenes meetings on the Hill, asked, “what lobbyists were involved in those meetings?”

We may never get the details of the back-room negotiating that took place leading up to the bill’s passage in the House on Friday, but with OpenCongress’s legislative versioning tool we can see exactly what was changed in the bill in the process and then start to figure out why. Just go to the text of the bill as passed by the House and select “Show Changes.” You can scan the entire bill and see, with color-coded text, exactly what was changed – red, stuck-out text denoting changed or removed sections in the bill, and green text denoting sections that were inserted or modified.

I just spent 30 minutes scanning through the bill and its changes, here are a few things that stood out to me.

Transparency of Carbon Offsets

It appears that during the negotiations, language was added to the bill to bring a little more transparency to the carbon offsets program. There’s a lot of skepticism surrounding the carbon offsets idea, so this is significant. Basically, the program would allow polluters to buy an offset or pay someone else to reduce or capture carbon instead of actually reducing their own carbon emissions. If the offsets program isn’t rigorous enough, carbon levels won’t actually be reduced to meet the bill’s carbon targets.

The changes made to the bill would require the administrator of the program to make offset applications and the administrator’s decision to accept or reject the application publicly available. It’s unclear what “publicly available” means for the purposes of this section, but if it’s done properly – posted online in a searchable format – then the prospect of public accountability could help the administrator make responsible decisions that will keep the program on track to reach the bill’s carbon targets. Here’s how the section of the text appears when the recent changes are highlighted with our versioning tool:

‘(d) Approval and Notification- Not later than 90 days after receiving a complete approval petition under subsection (a), the Administrator shall make the approval petition publicly available,

approve or deny the petition in writing and, if the petition is denied, provide the reasons for denial, and make the Administrator’s written decision publicly available. After an offset project is approved, the offset project developer shall not be required to resubmit an approval petition during the offset project’s crediting period, except as provided in section 734(c )(4).

Weaker International Efforts

Part F of the bill, “Ensuring Real Reductions in Industrial Emissions,” has two stated purposes: “to promote a strong global effort to significantly reduce greenhouse gas emissions” and “to prevent an increase in greenhouse gas emissions in countries other than the United States as a result of direct and indirect compliance costs incurred under this title.”

But a change made to the version of the bill passed by the House appears to weaken the section in what seems to me like a significant way. The original version of the bill, as introduced, stated that it was United States policy to work proactively to establish binding agreements “committing all major greenhouse gas-emitting nations to contribute equitably to the reduction of global greenhouse gas emissions.” But the version passed by the House on Friday removes any mention of setting U.S. policy and instead states that the purpose of the section is to to “induce foreign countries, and, in particular, fast-growing developing countries, to take substantial action with respect to their greenhouse gas emissions.”

Here’s how the portion of text appears when version changes are displayed:

‘SEC. 762. INTERNATIONAL NEGOTIATIONS.‘(a) Finding- Congress finds that the purposes of this part, as set forth in section 761, can be most effectively addressed and achieved through agreements negotiated between the United States and foreign countries.‘(b) Statement of Policy- It is the policy of the United States to work proactively under the United ‘(c ) Purposes of Subpart 2- The purposes of subpart 2 are additionally-

‘(1) to induce foreign countries, and, in particular, fast-growing developing countries, to take substantial action with respect to their greenhouse gas emissions consistent with the Bali Action Plan developed under the United

Nations Framework Convention on Climate Change, and in other appropriate forums, to establish binding agreements, including sectoral agreements, committing all major greenhouse gas-emitting nations to contribute equitably to the reduction of global greenhouse gas emissions.‘(c ) Notification of Foreign Countries- Not later than January 1, 2020, the President shall notify foreign countries that an International Reserve Allowance Program, as described in subpart 2, may apply to primary products produced in a foreign country by a sector for which the President has made a determination described in section 767(c ); and

‘(2) to ensure that the measures described in subpart 2 are designed and implemented in a manner consistent with applicable international agreements to which the United States is a party.

Protecting U.S. Intellectual Property in Clean Tech

A provision from the House’s Foreign Relations Authorization bill protecting U.S. intellectual property rights in global climate change treaties was brought to my attention through a Slashdot posting a few weeks ago. The posting quoted Peter Zura’s patent blog noting that the Foreign Authorization vote had come “in anticipation of the upcoming negotiations in December as part of the U.N. Framework Convention on Climate Change. … Previously, there was sufficient chatter in international circles on compulsory licenses, IP seizures, and the outright abolition of patents on low-carbon technology, that Congress felt it necessary to clarify the US’s IP position up front.’”

Not surprisingly, a scan through the revised climate change bill as passed by the House shows that similar text was added to it in several spots, particularly in the “”">Exporting Clean Energy" subtitle. Language putting intellectual property considerations at the forefront of clean tech implementation in developing countries was dropped in at the last minute in several sections of the subtitle. Here’s one example:

(b) Purposes- The purposes of this subtitle are-

(1) to provide United States assistance and leverage private resources to encourage widespread implementation, in developing countries, of activities that reduce, sequester, or avoid greenhouse gas emissions; and

(2) to provide such assistance in a manner that-

(A) encourages such countries to adopt policies and measures, including sector-based and cross-sector policies and measures, that substantially reduce, sequester, or avoid greenhouse gas emissions;


promotes the successful negotiation of a global agreement to reduce greenhouse gas emissions under the United Nations Framework Convention on Climate Change; and

(C ) promotes robust compliance with and enforcement of existing international legal requirements for the protection of intellectual property rights, as formulated in the Agreement on Trade-Related Aspects of Intellectual Property Rights referred to in section 101(d)(15) of the Uruguay Round Agreements Act (19 U.S.C. 3511(d)(15)) and in applicable intellectual property provisions of bilateral trade agreements.

These findings are from a quick scan of the bill and they don’t include the most substantial changes to the bill that have been reported already. With more time, I’m sure there is a lot more that can be discovered. I encourage everyone to take a few minutes to scan through the text and see if anything strikes them as particularly interesting and worth more investigation.

To see the last-minute changes that were made to the bill before it was brought to the House floor go here and click the “Show Changes” link. Scroll down until you find some text in red or green; that’s where changes were made. If you scroll over the text, the option to leave a comment or create a permalink will appear. If you find anything, please mark it by leaving a comment and post the permalink in the comments of this post so the rest of us can check it out. Happy digging!

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