Volume 16, Issue 10  3/16/09

 

Back Issue Archive

STATE AUTHORITY PREVAILS IN COURT RULING

Two weeks ago the U. S. Supreme Court gave two thumbs up to state authority and federalism in a 6-3 decision in Wyeth v. Levine. The key federalism issue at stake centered on whether U.S. Food and Drug Administration regulations preempt conflicting state laws in a case involving a drug company’s failure to warn of drug use dangers. NCSL and nearly all state attorneys general submitted amicus briefs making three primary arguments. One was that the FDA regulation overstepped agency authority. The second was that it defied Executive Order 13132 on Federalism requiring agencies to determine federalism impacts of proposed rules and consult with state and local governments. The third was that the FDA failed to allow NCSL and state officials to comment on the rule initially published in 2000 and made final six years later. The Supreme Court held that the absence of congressional intent to preempt and the defects in the rulemaking process meant that the plaintiff’s position rested on an “untenable interpretation of congressional intent and an overbroad view of an agency’s power to preempt state law.” (NCSL staff contacts: Susan Parnas Frederick, Joy Johnson Wilson)

FY 2009 APPROPRIATIONS SEASON ENDS

On March 11, 2009, President Barack Obama signed H.R. 1105 (P.L. 111-8), making FY 2009 appropriations for more than a dozen federal agencies and for a wide array of state-federal discretionary, mandatory and entitlement programs. States will share approximately $10 billion in increased domestic discretionary spending while state-federal mandatory and entitlement programs will be boosted by $17.5 billon. Generally, the majority of discretionary programs remained at or near their FY 2008 funding levels. However, Congress gave sizeable percentage increases for Byrne Justice Assistance Grants, the Low Income Home Energy Assistance Program, the Children’s Health Insurance Program and the Emergency Food and Shelter program. Single digit percentage increases found their way in for state administration of unemployment insurance, special education, the Women, Infants, and Children nutrition program (WIC) and Title I (education). Medicaid, food stamp administration and child nutrition programs received substantial increases on the entitlement/mandatory program side. Next up on the budget front will be the unveiling of President Obama’s FY 2010 budget expected in early April followed closely by congressional adoption of a FY 2010 budget resolution. (NCSL staff contacts: Molly Ramsdell, Jeff Hurley)

NCSL INTRODUCES NEW ECONOMIC RECOVERY TOOL

For more than two months, NCSL has used its webpage, conference calls, on-site technical assistance and a host of other tools to keep state legislators and state legislative staff as informed as possible on myriad elements of H.R.1, the American Recovery and Reinvestment Act of 2009 (ARRA). You can now use a newly launched electronic discussion board to pose questions to NCSL staff and to other legislators and staff on the nuances and opportunities of the law, and subsequent agency guidance and announcements. The discussion board is also designed to give you a forum for exchanging ideas, insights, best practices and budget decisions with each other. This service is available only to state legislators and legislative staff. Those wishing to take advantage of this service must register before gaining access to the board. To register, click on http://www.websitetoolbox.com/mb/ncsl_webforum. You can also register by proceeding to NCSL’s economic stimulus page. Your questions and your comments on this service are most appreciated. (NCSL staff contacts: Molly Ramsdell, Jeff Hurley)

WHITE HOUSE LAUNCHES ARRA IMPLEMENTATION EFFORT

On March 12, 2009, President Barack Obama, Vice President Joe Biden, Energy Secretary Stephen Chu, the Vice-President’s ARRA implementation czar Earl Devaney and a host of federal agency representatives conducted the first broad state-federal implementation forum. The event brought together representatives of NCSL, governors, treasurers, auditors, procurement officers and public information officers to raise questions regarding ARRA and to make recommendations for its implementation. The meeting dovetailed with other federal agency outreach efforts to NCSL and state and local governments to discuss the funding, timing, regulatory, reporting and transparency components of ARRA. The meeting clarified reporting requirements, with the initial recipient of any funds being the primary reporting agent. It also illustrated that some agencies are much further along than others, that much of the desired agency guidance remains a work in progress, and that, in the words of one federal agency representative, “We are building the plane while we are flying it.” NCSL is posting federal agency documents, announcements, program allocations and related information as soon as they are available to the Economic Stimulus page. NCSL also encourages you to visit www.recovery.gov, the federal government’s home for ARRA data and public input. (NCSL staff contacts: Michael Bird, David Shreve, Molly Ramsdell)

HERE COME THE AUDITORS

At the ARRA implementation summit, the Government Accountability Office announced, as required in ARRA, that it would begin its oversight of state and other funding recipients’ implementation efforts this month. The following have been chosen for early visits: Arizona, California, Colorado, Florida, Georgia, Illinois, Iowa, Massachusetts, Michigan, Mississippi, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Texas and the District of Columbia. The visits will include a review of each state’s auditing, oversight, program evaluation, transparency and accountability systems, and the development of contacts. The 16 states in the first round will receive two-thirds of the ARRA program funding. NCSL will provide further details as they become available. (NCSL staff contacts: Michael Bird, David Shreve, Molly Ramsdell)

OVERLOAD HITS “GRANTS.GOV.”

Peter Orszag, director of the Office of Management and Budget, has instructed federal grant-making agencies, through a March 9, 2009, memorandum, to identify alternative methods for accepting competitive grant applications through the federal government’s main portal Grants.gov. This site is where states, the private sector, nonprofits and others will file their applications for competitive grants (for example, some highway funding, some Byrne Justice Assistance Grants and alternative/renewable energy programs) authorized by ARRA. Grants.gov is apparently already experiencing performance problems. The U.S. Department of Health and Human Services (operator of Grants.gov) and the General Services Administration are collaborating in an effort to improve the site in addition to the multi-agency search for alternative solutions. (NCSL staff contacts: Molly Ramsdell, Jeff Hurley)

THE REGULATORY PROCESS FOR GREENHOUSE GAS REPORTING IS UNDERWAY

On March 11, 2009, the U.S. Environment Protection Agency (EPA) discussed an overview of its proposed rule for mandatory reporting of greenhouse gases with state government representatives, including NCSL. The FY 2008 omnibus appropriations bill requires EPA to “use its existing authority under the Clean Air Act” to both develop the rule and to include in the rule, as deemed appropriate by the EPA administrator, “the reporting of emissions resulting from upstream production and downstream sources.” The rule overview is the result of numerous outreach efforts involving NCSL, states, tribes, trade associations and non-government organizations. For now, additional information can be obtained through www.epa.gov/climatechange/emissions/ghgrulemaking.html. (NCSL staff contacts: Tamra Spielvogel, Amanda Naughton)

NCSL SPRING FORUM

Join state legislators and legislative staff from all over the country as they share their experiences with shaping public policy, crafting new laws and managing the legislative institution at the 2009 Spring Forum meeting of NCSL's Standing Committees. Everyone is welcome. NCSL's 12 Standing Committees, with jurisdictions similar to those of state legislative committees, meet at the Spring Forum to discuss critical issues facing the states. The Standing Committees develop policies that guide NCSL's lobbying efforts in Washington, D.C. For more information visit NCSL Spring Forum page.