By Rich Heidorn Jr.

WASHINGTON — Tom Hassenboehler used to work for Sen. James Inhofe, the Oklahoma Republican who famously brought a snowball to the floor of the Senate in 2015 to make the case that the Earth couldn’t be warming.

Has the level of debate improved since then?

Yes, said Hassenboehler, former chief counsel for energy and environment at the House Energy and Commerce Committee, noting his last bosses in Congress were Reps. Greg Walden (R-Ore.) and Fred Upton (R-Mich.).

“They started off [2019] in hearings with the Democrats … acknowledging climate [change] is real and not wanting to have a science debate anymore and … focusing on what is the solution now,” said Hassenboehler, now with The Coefficient Group. “While it may seem small to some folks, I think it is a big step. … Republicans have to be on the same side — of figuring out what their solution is.”

Republican Colin Hayes, former staff director at the Senate Energy and Natural Resources Committee, also sees a change. “The shift in rhetoric is usually a leading indicator of policy change,” said Hayes, co-founder of lobbying firm Lot Sixteen. “And then it’s a conversation about the policy prescription and what it takes to get the requisite number of ‘yes’ votes to make an actual change. That conversation is underway now in a more energized away than it has been.”

Hassenboehler and Hayes spoke Tuesday on an energy policy panel moderated by former Montana regulator Travis Kavulla, now director of energy policy for the R Street Institute, a “free market” think tank, at the Capitol Visitor Center.

Although the two former GOP congressional aides agreed their party is beginning to shed its climate denial, neither predicted major legislation to address the issue anytime soon.

To pass major legislation, “you need a catalyst that often times comes in the form of a crisis,” said Hayes. “Constituents are just ticked off … and so they pick up their phone and call their congressman. I’ve never seen anything get done on the Hill, at least in the energy space, because it was a means to recognize some aspirational, more wonderful world than the one we have. It is almost always a response to people being ticked off.”

Hassenboehler said Congress is responding not only to their constituents but also to Fortune 500 companies that have begun assessing their climate risks in public disclosures. “And that goes for not just tech companies, but to oil and gas and fossil companies as well.”

Lessons from the Failure of Cap and Trade

What does a solution look like?

The failure of the Waxman-Markey proposal — which cleared the House in 2009 but never received a vote in the Senate — means cap and trade is unlikely to be the centerpiece of any future legislation, Hassenboehler said.

Waxman-Markey may have failed in part because President Barack Obama decided on health care as his top legislative goal, Hassenboehler said. “But … it had more to do with the lack of compromise on the proponents’ side … and their kind of one-size-fits-all solution. They didn’t want to see the Senate … shape that bill in a way that was different from the Waxman-Markey proposal. … If the other side had compromised a little more, they would have gotten it done.

“It did lasting damage, frankly, to the brand of cap and trade, which is an efficient way of managing carbon pollution potentially,” Hassenboehler continued. “You’ve got examples all across the states and in other parts of the world that have cap-and-trade programs. We don’t talk about that barely at all anymore. Could that be a potential piece of the pie in the future? Sure, I still think it could come back, but it’s never going to be the lead in a climate bill again in my view.”

Hayes said a “forgotten” lesson of the episode was “it wasn’t Republicans who killed it.”

“It passed the House; it came over to the Senate, then controlled by [Democrats]. … That gave them the votes they needed on health care. That didn’t give them the votes they needed on cap and trade because of the regional nature of these issues,” with opposition from rural lawmakers concerned about the plan’s cost.

FERC Filling the Gaps

Tuesday’s discussion also touched on FERC’s interpretation of the Federal Power Act’s directive to ensure just and reasonable rates.

“Even though the law talks about rates and charges, FERC has looked at this language over time and said, ‘You know what: If utilities aren’t planning their transmission grid in the right way, if they’re not cooperating regionally to plan the transmission grid, that might lead to rates that are unjust or unreasonable,’” Kavulla said. “‘And therefore, we’re asserting jurisdiction over the way the grid is planned for, paid for and built.’”

Hassenboehler said Congress should be “more assertive” in giving FERC direction, through letters and oversight hearings, such as that held by the Senate Energy and Commerce Committee in June. (See FERC Probed on RTO Governance, Market Issues.)

“The way things are rapidly innovating in the electric space, there’s a lot of tough questions out there that FERC is struggling with … and it really all comes down to the power of states versus the feds. … And there’s been no consensus or leadership on that issue in a while. … I think legislation is building over the next several years for that.”

Hayes said FERC’s interpretation of the FPA is a recognition of the limits of legislation on complex issues. “Congress can oftentimes get itself 80, 90, 95% of the way through to the answer on a policy question or problem and secure the votes that are required to make some associated change. But that last 5% can be the technically challenging, politically challenging [issues]. You may just run out of time to answer the question” in a two-year congressional term.

Hayes said he’d like to see the federal government assert jurisdiction over the environmental performance of electric generation.

“Some folks, states’ rights advocates … don’t want them to have that because they are fine with the [state-by-state] patchwork” of environmental policies.

“But I think that those environmental issues are decidedly global in nature. At a minimum … they are national in nature as policy questions. They’re not confined to a single state. You’ve got to get to all 50 [states], or you haven’t really addressed the issue.”

Hassenboehler agreed there are some issues on which the federal government should assert jurisdiction, noting, “We don’t have 50 different labels for food [ingredients].”

He said Congress should tackle the issue of “how data is utilized in the [energy] system: who gets to collect it; who gets to own it.”

“This is energy data, emissions data, things that are being collected across the energy supply chain,” Hassenboehler said. “There’s a lot of need for some systematic consistency.”