Environment Update
An Information Service of the NCSL Standing Committee on
Environment and Natural Resources
An Information Service of the NCSL Standing Committee on Environment and Natural Resources
Volume VI, Number 5
August 9, 2005
Previous Issues
EPA Appropriations Bill Finalized, Cuts In Water Infrastructure Funds Survive Conference. NCSL, water administrators, local governments and infrastructure and security groups made an all-out effort to stem the tide of reductions to the Clean Water State Revolving Fund. NCSL urged Congress and the administration to fund the CWSRF at its FY2004 funding level of $1.34 billion. The FY2005 funding level was $1.1 billion. Those pleas fell on resistant ears as the administration sought to reduce funding to $700 million. The House managed to find $800 million for the CWSRF and the Senate went into conference on H.R. 2361 (annual appropriations for Interior/Environment) at $1.1 billion. When conferees closed out their negotiations, the CWSRF was funded at $900 million, a $191 million reduction and virtually the sum of the entire cut to USEPA for FY2006.
In related action, S.1400, legislation reauthorizing the CWSRF seeks $35 billion in authorized spending for the CWSRF, Safe Drinking Water SRF and rural communities’ technical assistance over five years. Its companion, H.R. 2864, seeks $25 billion over the same range of years. Both bills have bipartisan co-sponsorhip. Both bills acknowledge the tens of billions of funding needs for water infrastructure over the next 20 years. Though these authorizations may seem high readers should remember that authorizations are far easier to secure than actual appropriations. Because of this, some advocates are seeking authority for issuance of private activity bonds or the creation of a trust fund to get around general fund appropriations constraints. S. 1400 has passed out of committee.
National Energy Bill Overcomes Final Hurdles as Conferees Meet Ambitious Timetable. As July opened many questioned whether the conference committee on H.R.6, the Energy Policy Act of 2005, would be able to send a final bill to the President’s desk prior to the August recess as promised. However, in under 20 days the conference report was submitted to Congress and approved by both chambers. The conference report on H.R. 6 passed the House by a 275-176 vote on July 28 and the Senate by a vote of 74-26 on July 29 completing years of negotiations on a comprehensive energy bill. The passage of H.R. 6 was aided by the omission of controversial subjects like methyl tertiary butyl ether (MTBE) legal protection, and a controversial proposal to drill for oil in the Arctic National Wildlife Refuge. While the final legislation includes a number of preemptions, such as state authority of electric transmission line siting and LNG terminal siting, many of the potential unfunded federal mandates were dropped in conference including the MTBE liability waiver and a compromise proposal to establish a trust fund for the cleanup costs associated with MTBE. The president signed H.R. 6 on August 8 at the Department of Energy’s Sandia National Laboratories in Albuquerque, New Mexico.
National Energy Bill Completed But the Debate Continues. Despite final passage of the legislation numerous related debates await Congress when it returns from the August recess. The issues surrounding MTBE liability and cleanup may resurface during future legislative debates such as the budget reconciliation and appropriations process. In addition, Congressional opponents to the inventory of the Outer Continental Shelf (OCS) resources included in H.R. 6 are planning to seek appropriations language to stop the Interior Department from spending any money to conduct the survey. The OCS inventory is seen as a precursor to lifting the current ban on new oil and gas leases. However, proponents for new offshore drilling also failed in their attempts to add language to the Senate version of H.R. 6 that would have provided a state-opt-out of the drilling ban.
Clean Diesel Efforts Supported in Energy Bill and FY 2006 EPA Appropriations. The conference agreement on H.R. 6, national energy legislation, contains a title that is a mirror image of S. 1265 (Sens. George Voinovich, R-Ohio and Tom Carper, D-Delaware), NCSL-supported bipartisan legislation that would establish diesel emissions reduction grant and loan programs. S. 1265 passed the Senate Environment and Public Works Committee unanimously – but the most important action was Senator Voinovich’s insertion of similar language into the Senate version of H.R. 6. The legislation would authorize $1 billion over 5 years for voluntary retrofits of public and private fleets and would include school buses, marine vessels, locomotives, agricultural equipment and construction equipment. Funds could also be directed to anti-idling projects. NCSL also backed the House in its effort to fund the School Bus USA program for FY2006 at no less than its FY2005 $10 million level. The Senate proposed slicing the program down to $1 million, and conferees ultimately agreed to a $7 million funding figure for FY2006 in H.R. 2361 (FY2006 appropriations for Interior/Environment)
Long Awaited Transit Bill Sent to the President. H.R. 3, the transit reauthorization bill, was cleared for the President on July 29, 2005 when both the House and Senate passed the conference report. Amongst numerous other issues in this prolonged debate has been changes to the environmental provisions associated with transportation funding. Primary focus has been on changes to environmental streamlining; coordination of the environmental review process for historic resources, parkland, and wildlife refuges; the Safe Routes to School program; and air quality conformity. Key points in legislation include clarification of the transportation agencies' lead role in the National Environmental Policy Act review process; establishment of a 180-day statute of limitations for legal challenges to project permits, licenses, or approvals; establishment of a pilot program to allow full delegation of federal streamlining authority, on a pilot basis, to five states: Alaska, California, Ohio, Oklahoma, and Texas; and the inclusion of wildlife conservations in transportation planning. One controversial provision that Conferees decided to drop from the final bill was a Senate mandate requiring a 2% set aside of construction dollars for a highway storm water discharge mitigation program.
Supreme Court Ruling Paves The Way For New Debate On Takings & Eminent Domain. Efforts to block the federal, state and local governments from taking private property for “economic development” purposes have burgeoned in the aftermath of the June 23, 2005 U.S. Supreme Court decision in Kelo v. City of New London. Legislation, resolutions and riders to appropriations measures have surfaced. The first action saw Rep. Scott Garrett (R-New Jersey) add language to H.R. 3058 (FY2006 appropriations bill for Transportation-Treasury) preventing the use of highway, mass transit and highway safety funds for purposes affirmed with the Kelo decision. On June 30, the U. S. House of Representatives voted 365-33 on H.Res 340, non-binding legislation disagreeing with the Kelo decision, agreeing with Kelo’s dissenting opinions and stating that eminent domain should only be used for the “public good” and should involve just compensation. Three introduced bills (S.1313, H.R. 3087 and H.R. 3083) concisely state that eminent domain can be exercised for public use and not for economic development (which is undefined). H.R. 3268 would exclude from gross income gain realized from conversion of property because of eminent domain. H.R. 3135 would bar state use of eminent domain for economic development purposes when federal funds are involved and stipulates that the federal government shall not use economic development as a reason for exercise of eminent domain authority. At stake, in part, is state authority to determine when and how to use its eminent domain authority. Congress is very likely to further pursue this issue in September after its summer recess.
Despite Congressional Hearings Little Movement On E-waste Legislation Evident. The House Energy and Commerce Subcommittee on Environment and Hazardous Materials & the Senate Environment and Public Works Subcommittee on Superfund and Waste Management each held their first hearings on e-waste in July 2005. Testimony revolved around current and prospective activities on e-waste and electronics recycling around the country. Despite an overwhelming call for federal leadership from witnesses little progress has been made in moving legislation through Congress on the issue. Conferees on H.R. 6, the Energy Policy Act of 2005, dropped the Senate recycling tax credit provision and instead mandated a one year recycling study in the final bill. Report language included in the Senate passed version of H.R. 2361, the FY2006 Interior appropriations bill, supporting a national approach to electronic product stewardship was dropped from the final bill as well. While additional hearings are expected the prospects for further legislative action this year are unclear as stand alone House and Senate bills have seen no action as of yet.
International Flow Of Solid Waste Questioned. For years, the Congress has unsuccessfully attempted to authorize states to control solid waste imports. This year, the scene has shifted to international trash movement, particularly from Canada. H.R. 2491 (Rep. Paul Gillmor, R-Ohio) and S. 1198 (Michigan’s Democratic Sens. Debbie Stabenow and Carl Levin). Their bills would permit states to enact laws restricting the receipt and disposal of foreign municipal waste. The bills call on U.S. EPA to enforce a 1992 municipal waste agreement with Canada regulating shipments of hazardous wastes. H.R.2491 has cleared committee. The Canadians have raised questions about how this legislation might conflict with the North American Free Trade Agreement. Legislation restricting interstate and perhaps international waste movement always draws interstate commerce concerns and could again fade from the congressional agenda.
Federal Facilities Proposal Revisited By Congress. The perennial attempt by the Department of Defense to gain exemption from various federal environmental laws appears to have ended this year in failure. Earlier this year, DOD sent its defense authorization text to the House and Senate. Sections 311-316 of Subtitle B (known as the Readiness and Range Preservation Initiative) of the text sought exemptions from the Clean Air Act, Superfund and the Resource Conservation and Recovery Act, and thereby exemptions from complementary and supplemental state laws and regulations. Also sought was authority to remove claims brought under the Clean Air Act and Safe Drinking Water Acts from state courts to federal courts. NCSL again opposed this request, reassured that the three laws still had viable national security exemptions, and reaffirmed that the testimony and experience did not point to state and local
government failure to cooperate with defense officials, The request did not find favor in either the House or Senate Armed Services Committees. The defense authorization bills will move toward enactment in September.
House Resources Committee Takes On Two Formidable Tasks. House Resources Chairman Richard Pombo (R-CA) set the agenda for his committee to include a reevaluation of an improvement to the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA). To that end the Chairman established a Task Force on Improving the NEPA headed by Rep. Cathy McMorris (R-WA) which was tasked with reviewing and making recommendations to the committee on improving NEPA. The Task Force, made up of 12 Republic and 10 Democratic members of the Resources Committee, has held three hearings to date in Washington, Arizona, and Texas. A final report from the Task Force will be forthcoming following the final three hearings still to be held in the Intermountain, Southeast, and Mid-Atlantic regions. Further information on the Task Force, its mission, schedule, and membership can be found at http://resourcescommittee.house.gov/nepataskforce.htm.
Also of interest to the committee this year has been the modernization of the Endangered Species Act (ESA). In May of 2005, the majority staff for the House Resources Committee released “Implementation of the Endangered Species Act of 1973” (http://resourcescommittee.house.gov/issues/more/esa/implementationreport.htm). Prior to the August recess Chairman Pombo put off introduction of his legislation on ESA in hopes of garnering Democratic support for the bill which could speed up eventual floor action. At the same time, members of the Senate Agriculture Conservation Subcommittee held a hearing to review the Conservation Reserve Program (CRP) of the Farm Bill. Both Subcommittee Chairman Mike Crapo (R-ID) and Ranking Member Sen. Blanche Lincoln (D-AR) expressed interest in working together on legislation that would leverage landowner incentives for conservation as a means to protect threatened and endangered species.
Climate Change Debate Rages On Both Domestically And in the International Arena. During the June floor debate over the energy bill the Senate voted numerous times on the issue of climate change. The first effort put before the senate was an amendment brought by Sens. John McCain (R-AZ) and Joe Lieberman (D-CT) for limiting greenhouse gas emissions to 2000 levels by 2010. It was defeated by a 38-60 vote. This amendment resembles earlier versions of the McCain/Lieberman climate change legislation though inclusion of certain nuclear power provisions cost the sponsors some support. Hours later the Senate agreed by voice vote to a Sense of the Senate resolution that put the chamber on the record for the first time saying greenhouse gas emissions are contributing to global warming. While non-binding the Sense of the Senate resolution offered by Sen. Jeff Bingaman (D-NM) did not include a deadline for emissions reduction while clearly indicating that such cuts should not adversely harm the U.S. economy. During the same debate the Senate rejected two other motions: one by Sen. James Inhofe (R-OK) who sought to table the Bingaman resolution failed by a vote of 43-54 and a second by Sen. John Kerry (D-MA), which would have committed the United States to a greater role in international global warming negotiations, failed by a vote of 46-49. As Congressional debate continues on Climate Change and the impact of greenhouse gas emissions the international playing field has shifted focus as post-Kyoto efforts take shape. On July 27, 2005 the Asia-Pacific Partnership on Clean Development and Climate agreement was announced. This agreement, signed by Australia, China, India, Japan, South Korea and the United States, does not call for emissions reductions but instead focuses on the development and sharing of new energy technologies. This agreement followed on the heals of the Group of 8 (G8) Communiqué released earlier that month at the end of the G8 summit in Scotland. The Gleneagles Communiqué included an action plan to cut greenhouse gas emissions, fight global warming, invest in clean energy technology and open up a dialogue with developing countries. It is interesting to note that the communiqué did address, if briefly, the issue of scientific uncertainty regarding climate science and the position of countries, such as the United States, who have not ratified the Kyoto protocol.
EPA Moves Forward on Two Related Mercury Rules. The Clean Air Mercury Rule was published in the Federal Register on May 18 after being finalized two months earlier. The CAMR seeks to cap mercury emissions from power plants at 38 tons by 2010 and 15 tons by 2018 through a cap and trade program managed under Section 111 of the Clean Air Act. On March 29, EPA promulgated a second mercury-related rule that rescinded EPA’s findings made in 2000 supporting a requirement that utilities should install maximum achievable control technology (MACT). Both rules have drawn legal challenges from some environmental groups and state attorneys general. A petition to stay the MACT-related rule was recently rejected. Three U.S. Senators (Leahy, D-Vermont, Collins, R-Maine, Jeffords, I-Vermont) introduced legislation seeking to use Congress’ administrative rule oversight authority to block CAMR. A discharge petition related to that resolution was filed July 19 and will be taken up in the fall. Its prospects are questionable because it needs a majority in both houses of Congress and a likely veto override should it get to the President’s desk. CAMR-like provisions can also be found in House and Senate Clear Skies legislation that appears blocked. There is also Senate legislation by Senators Snowe (R-Maine) and Leahy (D-Vermont) seeking 90 percent emissions reductions by 2010 that will have a hard time moving ahead in this year.
New Standards on Fine Particulates Expected This Fall. A rule requiring states to develop implementation plans to attain fine particle air quality standards is expected in September, 2005 according to USEPA’s air and radiation administrator. This announcement in a letter to U.S. Senator Jim Jeffords (I-Vermont) follows on the heels of July 1, 2005 USEPA staff paper laying out options for strengthening controls on fine particles with diameters of 2.5 microns or less (PM-2.5) and thoracic coarse particles (2.5 to 10 microns in diameter). This staff report followed an EPA Clean Air Advisory Review panel’s recommendation in May, 2005 to tighten PM-2.5 air quality standards and to establish new standards for coarse particles. One month prior to the review panel’s report, EPA announced that 208 counties in 20 states were in non-attainment for meeting national air quality standards for fine particles.
EPA Advances Efforts to Meet 8-hour Ozone Standard. On July 26, 2005 EPA took the next steps in implementing the standards for fine particulate pollution by identifying areas for which the 1-hour ozone standard has been revoked in favor of the more stringent 8-hour standard, which has now been upheld by the courts. In the final rule, EPA also revoked the national air quality standards for 1-hour ozone while requiring that certain emission control requirements for areas designated non-attainment under the 1-hour rule be maintained. In addition, exceptions were made for 14 "Early Action Compact" areas which will still be covered by the 1-hour standard. (EPA fact sheet available at http://www.epa.gov/ozonedesignations/documents/Jul05/factsheet.htm.)
Roadless Rule Deadline Approaches. States have until November 13, 2006 to exercise their option to petition the U.S. Department of Agriculture to seek individual rulemaking regarding management, conservation and use of the National Forest Service’s inventoried roadless areas. This process, promulgated in a May 13, 2005 rule, replaces a 2001 rule finalized in the waning days of the Clinton administration. The 2001 rule established prohibitions on logging, road construction and mineral extraction and has been the subject of nine legal actions. Federal acceptance of state petitions addressing land management plans is discretionary. If accepted, the Secretary of USDA would initiate a state-specific rulemaking addressing land management concerns identified in the petitions. There are 58.5 million acres of inventoried roadless areas, one-quarter of which are in Alaska and 97 percent of which are in a dozen Western states. Overall, 38 states and Puerto Rico are home to roadless areas on National Forest Service lands.
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