The Senate failed to advance a measure to repeal a rule loathed by oil and natural gas companies, as Senate Majority Leader Mitch McConnell suffered a rare legislative defeat by just one vote.
The 49-51 procedural vote means a resolution to nullify the regulation from the Bureau of Land Management falls short after passing the House. Democrats united against the measure and were joined by Republican Senators Lindsey Graham, Susan Collins and John McCain. Graham and Collins had long said they opposed the repeal, but McCain was a surprise no vote.
“We actually thought we had just enough,” said Senator John Hoeven, a North Dakota Republican who supported the repeal. “But as it turns out we lost three and didn’t get any help from the Democrats.”
The vote followed a tense Senate session as the Capitol was reeling from President Donald Trump’s surprise firing of FBI Director James Comey the night before. All Democratic members were urged to attend the chamber’s opening statements, during which McConnell rejected calls for a special investigative committee to probe Russian involvement in the presidential election. McCain was one of the Republicans who had called for the special committee.
Dick Durbin, the No. 2 Senate Democrat, also objected to a routine request to allow committees to continue meeting longer than two hours, citing the firing of Comey.
BGOV OnPoint: Congressional Review Act, May 5 Update
Before the vote, two Democratic Senators, Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota, were mentioned by lobbyists as possible supporters of the methane measure, but both opposed it in the end. Vice President Mike Pence was at the Capitol in case his vote was needed as a tie breaker in a sign that McConnell thought the vote would be close.
Hoeven said McCain had initially said he would vote with Republicans, but then late last night told proponents he “had some concerns.”
McCain said he was concerned that Bureau of Land Management would be barred from regulating on the issue again, because the the Congressional Review Act bars agencies from issuing new regulations that are substantially similar.
“Improving the control of methane emissions is an important public health and air quality issue,” McCain said in a statement after the vote. “While I am concerned that the BLM rule may be onerous, passage of the resolution would have prevented the federal government, under any administration, from issuing a rule that is ‘similar.’ “
Mark Brownstein, vice president of the climate and energy program at the Environmental Defense Fund said “Once again, John McCain demonstrates that he is a voice of common sense and reason in the Senate.”
Wyoming Senator John Barrasso said the failure to get majority vote to proceed means the measure is dead. “The time has expired,” the Republican chairman of the Environment and Public Works Committee said.
The rule, finalized by the Obama administration in November, requires oil and gas companies to plug accidental leaks of methane, the primary component of natural gas, and scale back the practice of intentionally venting or burning the gas as they extract more profitable crude oil. It is estimated to cost companies such as EOG Resources Inc., XTO Energy Inc. and other producers on federal lands $279 million annually.
The Interior Department is already reviewing the venting and flaring regulation. Interior Secretary Ryan Zinke has been critical of the “waste” associated with venting and flaring. “It’s the taxpayers’ oil and gas resource,” Zinke said in an interview. “To waste it, for future generations, I’ve never been very comfortable with that.”
The loss also was a defeat for oil producers that had been aggressively pushing Senate leaders to hold the vote.
The American Petroleum Institute, which criticizes the rule as “technically flawed” and overlapping with existing state regulations, said it would push for the administrative changes.
“While it is disappointing that the Senate did not act to correct the rule more quickly, we look forward to working with the administration on policies that continue our commitment to safely produce the energy that Americans rely on,” Erik Milito, an API group director, said in an emailed statement.
The vote took place under the expedited procedures of the Congressional Review Act. Until President Donald Trump was elected, the act, created in 1996, had only been used once in 2001 to overturn a regulation a Labor Department ergonomics rule issued by the Clinton administration.
Trump has signed into law more than a dozen CRA measures to block regulations issued by his predecessor, including rules related to bear hunting by airplane in Alaska, gun purchases by the mentally ill and protections for streams from the effects of coal mining.
And now time is running out to use the measure. Congress only has 60 legislative days of a rules’ enactment to pass a CRA under a simple majority vote, and that is estimated to expire Thursday.