BRIEF-Delcath prices underwritten public offering at $3.00 per share
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By John Kemp
LONDON, March 12 Only intense lobbying by the president himself ensured the latest congressional bid to approve the Keystone XL pipeline was defeated in the U.S. Senate last week.
But if Keystone's opponents won the latest skirmish, it appears they are losing the war. The vote revealed deep divisions among Senate Democrats as well as the waning influence of environmentalists and the growing power of the oil and gas lobby in Congress.
It seems only a matter of time before the controversial northern section of Keystone, which goes from Canada to Cushing, Oklahoma, is given the go-ahead. It will probably happen once the November elections are out of the way.
But Keystone's approval may be only the first salvo in a broader post-election effort to roll back ambitious environmental regulations enforced by the Environmental Protection Agency (EPA) and other parts of the federal government, which critics blame for hampering the development of domestic oil, gas and coal resources.
Senate Republicans, many of whom are deeply hostile to the agency's policies on pollution control and climate change, are likely to find a growing number of allies among Democrats from industrial, energy-producing and conservative states who have broken with environmentalists over Keystone (2011) and cap and trade (2010) and are becoming disenchanted with the broad economic effects of EPA rule-making.
On March 8, senators voted by 56 to 42 in favour of an amendment (S Amdt 1537) to the highway construction bill (S 1813) proposed by North Dakota Republican John Hoeven that would have authorised TransCanada to build and operate a pipeline crossing the border.
The Hoeven amendment invoked Congress's power under the foreign commerce clause (Article 1 Section 8 of the U.S. Constitution) to authorise the pipeline, bypassing the need for the president to issue a permit to cross the U.S.-Canada border.
Despite being endorsed by a clear majority, the amendment was rejected because it had been put to a vote under a unanimous consent agreement between the two parties stipulating it needed 60 "yes" votes to pass.
The agreement was the only way to ensure the chamber could discuss a series of amendments to the bill without the threat of a filibuster, which would have needed 60 votes to break. But the condition for the agreement was an increased threshold of 60 votes to adopting the more controversial amendments.
In effect, the agreement allowed senators to cast symbolic votes on a series of controversial topics important to constituents and lobbyists without giving up the normal requirement for a 60-vote super-majority to break the deadlock.
Hoeven's amendment received solid support from fellow Republicans. Of 47 members of the Republican caucus, 45 backed the Hoeven language and the other two were not present.
But Senate Democrats splintered. Of 53 Democrats and their allies, 42 followed the advice of the leadership and White House, voting against the amendment. But 11 defied party leaders, joining the Republicans voting to approve the pipeline.
Of the 11 rebels, six are up for election in November (out of a total of 23 Democrats facing the voters this year): Missouri's Claire McCaskill, Montana's Jon Tester, North Dakota's Kent Conrad, Pennsylvania's Robert Casey, Virginia's Jim Webb and West Virginia's Joe Manchin.
Of those six, three are considered vulnerable, according to the latest survey published by the non-partisan Cook Political Report (): McCaskill in Missouri, Tester in Montana and Conrad in North Dakota. All are Democrats in conservative states that voted for John McCain rather than Barack Obama in 2008.
Of the five rebels not on the ballot this year, Mark Begich of Alaska, Mark Pryor of Arizona, Louisiana's Mary Landrieu, and Max Baucus of Montana all represent conservative or toss-up states that voted for McCain.
The last rebel, Kay Hagan, sits for North Carolina, a state which Obama narrowly carried in 2008 but which went for George W. Bush in both 2000 and 2004 and has voted for the Republican in eight of the last 10 presidential contests.
ISOLATED AND VULNERABLE
Environmental groups and the president were able to rally only 42 senators to uphold the president's decision to refuse Keystone a permit.
That is barely enough to block legislation approving Keystone by using the filibuster (which needs just 41 senators), though plenty to sustain a presidential veto (which needs 34 senators).
But the margin is a lot less secure than it looks. Even small losses in November could wipe out the extra Democrats willing to block Keystone using a filibuster. And Republicans will keep searching for a piece of legislation that is vital to the president to attach the pipeline language to in a bid to prevent him from vetoing it.
Keystone got very close to being approved. It is only a matter of time before it finds the extra couple of votes needed to pass, and Republican strategists find a piece of legislation the president will not want to lose.
The problem for pipeline opponents is that they have become isolated politically. They still have a powerful friend in the White House. But they have increasingly lost the argument in Congress.
The entire congressional Republican Party has swung behind the oil and gas industry in making Keystone approval a symbolic priority. Democrats are split. Many continue to support the arguments of environmental and clean energy groups opposing the line. But those from conservative and energy-producing states have clearly decided that supporting the line is a matter of survival.
The president and environmental groups have turned Keystone into a high-profile partisan issue. But instead of running between the two major parties, the dividing line runs through the middle of the Democratic Party itself, undermining the party's internal cohesion and threatening to exact a price in the voting booth.
Democrats like Conrad, Tester and McCaskill have done their best to immunise themselves by casting a vote in favour of the line; whether it will be enough to protect them remains to be seen.
There is a real danger environmental groups and clean energy lobbyists are over-reaching and risking a major setback. On Keystone, as with a host of other energy and environment issues, they have earned the wholehearted enmity of the congressional Republican Party without securing total support from the full spectrum of Democrats.
This is the second time the environmental movement has over-reached and split the Democratic Party. It did the same thing during the cap-and-trade debate, when Democrats from industrial and coal states joined many Republicans in successfully blocking the signature energy and climate bill back in 2010.
Therein lies the danger. Many coal-state and industrial-state Democrats who broke with the environmental movement to vote against emission controls have nonetheless supported the president and voted against Keystone.
If the Democrats who oppose emission controls were to make common cause with those who favour the pipeline and congressional Republicans, they have a filibuster-proof and probably veto-proof super-majority.
All three groups have reason to be suspicious of some rule-making by the EPA and rigorous enforcement of other environmental regulations. Between them they have the votes to curb the EPA's authority and provide greater protection for fossil-fuel producing and consuming industries. The question is whether they will use it.
EPA and environmental lobby groups have made a lot of enemies. So far they have been able to stave off congressional attempts to curb the agency's powers and overturn scientific environmental assessments. But isolation is perilous.
On Keystone, environmental opponents will probably lose the battle once the election is out of the way. But unless they start building bridges to Republicans and sceptical Democrats by showing a greater willingness to compromise, the loss on Keystone may be the least of their problems.
* Delcath prices underwritten public offering of common stock and warrants
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