Analysis by Energy Workforce SVP Government Affairs & Counsel Tim Tarpley
The path forward for the bipartisan $579 billion infrastructure is foggy following a number of vague statements by President Biden last week that indicated he would refuse to sign it unless it was accompanied by another bill that includes his other infrastructure priorities.
In response to President Biden’s statement, Sen. Lindsey Graham and others indicated they may be backing away from the deal. If the bipartisan deal can be enacted only with additional provisions passed through reconciliation, there’s no reason for Republicans to support the deal in the first place.
The Biden Administration has spent the past several days walking back the president’s comment in an effort to save the deal.
Transportation Secretary Buttigieg attempted to add clarity: “I’m not sure it’s clearly defined — other than people who are interested in the process — what that even means,” Sec. Buttigieg said. “I mean, is it going to be linked in the sense of this being one single piece of legislation that moves all at once? No, I don’t think it is.”
“[Biden] wants both bills, and he’s going to campaign for both bills,” Secretary of Energy Granholm said during an appearance on CNN over the weekend. “But he did not issue — or he wanted to make clear — he wasn’t issuing a veto threat.”
This statement contradicts what the president actually said last week and has added additional confusion to the situation. Given that President Biden must sign any bill into law, the linkage discussions are critical.
If the bills aren’t linked, the bipartisan package would likely pass and the fate of other provisions would rest on the ability of the president to convince Sen. Joe Manchin and other moderates to approve other priorities through the reconciliation process, which could be accomplished on a party-line vote. This could be difficult once the moderates have passed their priorities in the first package.
To make matters more complex, Speaker Pelosi said she will not consider the bipartisan package in the House unless the Senate first uses reconciliation to pass remaining priorities not covered in the bipartisan agreement. This decreases the likelihood that Republicans will stay on board because, in essence, a vote for the bipartisan bill would be like voting for the whole thing.
While this impasse appears formidable, senators who support the compromise, as well as the White House, are working to salvage the deal. Meanwhile, the clock is ticking as there are only four weeks remaining before the scheduled August recess.
Supreme Court Decides Important Eminent Domain Case
On Tuesday, on a 5-4 vote, the Supreme Court upheld the right of private companies to use eminent domain for large infrastructure projects. The state of New Jersey had sued to stop PennEast from seizing private land to construct a 116-mile natural gas pipeline between Pennsylvania and New Jersey.
Over the past few years, activists have used opposition to eminent domain as a tool to stop energy infrastructure projects. The Court’s five-justice majority ruled that states gave up their sovereign immunity from eminent domain condemnations when they agreed to the constitutional convention in 1787.
Writing for the majority, Chief Justice John Roberts held that a natural gas pipeline is not any different than a turnpike, bridge or railroad and that the legal tradition of the country has permitted the use of eminent domain for such endeavors. The minority, made up of justices Amy Coney Barrett, Clarence Thomas, Elena Kagan and Neil Gorsuch argued against the principle that states had surrendered their eminent domain powers at the convention.
This ruling puts a significant damper on the coordinated strategy of attacking the use of eminent domain by private companies to prevent construction of pipelines and other infrastructure. It also calls into question the constitutionality of bills passed by state legislatures to limit eminent domain for certain projects.
For more information on the Council’s advocacy efforts or to get involved, contact SVP Government Affairs & Counsel Tim Tarpley.
Tim Tarpley, SVP Government Affairs & Counsel, analyzes federal policy for the Energy Workforce & Technology Council. Click here to subscribe to the Council’s newsletter, which highlights sector-specific issues, best practices, Council activities and more.