Senate Sponsors of New Climate Change Legislation Try - and Hilariously Fail - to Cover Carbon Tariffs' "Competitiveness" Tracks (UPDATED)

Tomorrow, Senators John Kerry (D-MA), Lindsay Graham (R-SC) and Joe Lieberman (I-CT) will unveil their long-awaited legislation to completely re-jigger (technical term) the American energy sector.  The Hill has done some digging and uncovered the confidential internal summaries of the legislation, and it contains pretty much everything that we've expected for a while now: emissions caps, nuclear power, handouts to domestic energy producers and, of course, carbon tariffs.

The Hill links to the bill's long summary here (PDF), and just like the House climate change legislation (aka "Waxman Markey") and the Senate's old version (aka "Boxer-Kerry"), the bill isn't so forthrightbold as to actually call the carbon tariffs, well, "carbon tariffs" (or "border measures" or "border taxes" or anything anyone's ever actually heard of or been publicly concerned about.)  No, instead the legislation follows Waxman-Markey and calls its border measures an "International Reserve Allowance Program."  In particular, the summary states:

Sections 775. International Negotiations. Finds that the purposes of this subtitle can be most effectively achieved through international agreements and states that it is the policy of the United States to work proactively under the UNFCCC and in other forums to establish binding agreements committing all major-emitting countries to contribute equitably to the reduction of global greenhouse gas emissions.

Section 776. Presidential Reports and Determinations. Requires the President to submit a report to Congress no later than January 1, 2019, and every two years thereafter, regarding the effectiveness of the distribution of emission allowance rebates under Subpart I in mitigating the risk of increased greenhouse gas emissions in foreign countries resulting from compliance costs incurred under this bill. 

Requires the President to establish an International Reserve Allowance Program if a multilateral agreement consistent with the statement of policy described in section 775 has not entered into force by January 1, 2020, unless the President determines that such program would not be in the national economic or environmental interest of the U.S.  If the President establishes an International Reserve Allowance Program, this section requires the President to make a determination as soon as possible, but no later than June 30,2023, and every two years thereafter, for each eligible industrial sector, of whether not more than 70 percent of global production with respect to that sector is produced or manufactured in countries that meet specific criteria described in this section.

Section 777.  International Reserve Allowance Program. Directs the Administrator, with the concurrence of the Commissioner of Customs, to promulgate regulations establishing an international reserve allowance program. Includes provisions in addition to the reserve allowance program to mitigate or address carbon leakage by ensuring that eligible sectors may receive additional emission allowance rebates in an amount necessary to address those impacts.

It's much less controversial when completely unintelligible, you see?  But don't be fooled: those are stealth carbon tariffs, my friends. 

However, unlike Waxman-Markey (see Sec. 768) or Boxer-Kerry, it appears that the new Senate climate change legislation has, also as expected, ditched any discussion of how the border measuresinternational reserve allowances are intended to offset any domestic competitiveness concerns, and it instead has couched the carbon tariffs provisions in wholly environmental terms.  This environment-only focus is made abundantly clear in the sections above, and, as we've discussed before, it's part of a recent trend and probably quite intentional:

[T]he Senators' rhetorical shift [from competitiveness to environmental reasoning] is - shocking, I know - a rather ham-handed attempt to keep their cherished carbon tariffs consistent with WTO rules.  As Cato's Sallie James explains:

[T]he almost convincing attempt by these senators to cloak their protectionism in green-speak about the need to ensure that climate legislation is environmentally effective. They will have to keep that up, too, if they are to stay on the right side of WTO law, which says there must be a clear link between a trade measure and an environmental purpose if the measure is to be at least prima facie legitimate.  Imposing border measures to address adverse competitiveness effects of domestic environmental regulations, in other words, probably won’t cut it.

The bill's short summary (available here) also follows this new "green" road-map (and it's also a little more obvious about the bill's inclusion of border measures):

In order to protect the environmental goals of the bill, we phase in a WTO-consistent border adjustment mechanism. In the event that no global agreement on climate change is reached, the bill requires imports from countries that have not taken action to limit emissions to pay a comparable amount at the border to avoid carbon leakage and ensure we are able to achieve our environmental objectives. (Emphasis mine.)

You couldn't shoehorn more "environmental" references into this summary if you tried.  Only one small problem: this strictly "environmental" summary falls clearly under the main heading "Expanding America's Manufacturing Base," and the long summary of Sections 775-777 above comes under the main heading "Subtitle A - Protecting American Manufacturing Jobs and Preventing Carbon Leakage."  So did the Senate drafters really just take all that time purging all of the scary "competitiveness" language from their new bill's carbon tariffs provisions, only to keep them under a legislative subtitle that expressly denotes provisions dealing with domestic industrial competitiveness?

Well, the text of the bill isn't out yet, so we don't really know for sure.  But if so, this has gotta be one of the dumber drafting moves that I've seen since, well, ObamaCare.

Although I'm sure the Indian Government is just psyched.

UPDATE: Sallie James weighs in on the Kerry-Lieberman bill and finds even more proof of  really bad drafting.  Also, the legislation has been released and the headings, etc. are the same as the summaries.  Nice.