NRI Standing Committee Newsletter | April 6, 2021

4/6/2021

ncsl newsletter

Below you will find some of the latest agriculture, energy, environment and transportation policy issues we are following in Washington, D.C. If you have questions about any of the stories below or NCSL’s coronavirus resources, please reach out to me, Kristen Hildreth (kristen.hildreth@ncsl.org), and I’ll point you in the right direction. My colleague Ben Husch is away on parental leave through May 2021. 

Top Stories

White House Unveils Infrastructure Plan

The White House unveiled the American Jobs Plan, a $2 trillion infrastructure package focused on investments in transportation; home infrastructure, including broadband and water; manufacturing and supply chains; schools and child care facilities; as well as home- and community-based care for older and disabled individuals. The package, which will likely be split into multiple bills with individual components needing broad congressional support, has a long road to travel.

The plan directs over $600 billion to repairing road and bridges, modernizing public transit, investing in passenger and freight rail service, supporting electric vehicle growth, and upgrading the nation’s ports, waterways and airports. Specifically, the plan includes:

  • $115 billion to modernize bridges, highways, roads and main streets in most critical need of repair.
  • $85 billion to modernize existing transit and help agencies expand their systems to meet rider demand.
  • $80 billion to address Amtrak’s repair backlog, modernize the Northeast Corridor and support passenger and freight rail safety, efficiency and electrification.
  • $174 billion for the electric vehicle market, including grant and incentive programs for state and local governments, and the electrification of at least 20% of the school bus fleet and the entire federal fleet.
  • $25 billion for airports, including funding for the American Improvement Program.
  • $17 billion for inland waterways, coastal ports, land ports of entry, and ferries.

Additionally, the plan includes $20 billion for a program to address historic inequities in transportation infrastructure and to “ensure new projects increase opportunity, advance racial equity and environmental justice, and promote affordable access.”

Water infrastructure would receive $111 billion, including:

  • $45 billion in funding and grants to replace 100% of the nation’s lead pipes and lead service lines and to reduce lead exposure in schools and child care facilities.
  • $56 billion in grants and low-cost flexible loans to modernize drinking water, wastewater and stormwater systems across the nation.
  • $10 billion to monitor and remediate per- and polyfluoroalkyl substances, known as PFAS, in drinking water, and to invest in rural water systems and household well and wastewater systems, including drainage fields.

The nation’s power infrastructure would receive $100 billion for building a more resilient electric transmission system; modernizing power generation and delivering clean energy; investing in the workforce to plug oil and gas wells and reclaim abandoned mines; and remediating and redeveloping brownfield and Superfund sites. The plan also directs $180 billion to critical technologies and research and development, and $50 billion to safeguard critical infrastructure and services; to support vulnerable communities; to maximize the resilience of land and water resources, including support for agricultural resource management and protection from extreme wildfires; and to build costal resilience to sea-level rise and hurricanes. A $100 billion investment in broadband would bring affordable, reliable high-speed internet to every household, with funds set aside to ensure infrastructure on tribal lands.

The plan includes a 10-year extension and phase-down of tax credits for clean energy generation and storage aimed at modernizing power generation. It would also reform and expand the bipartisan Section 45Q tax credit, which applies to carbon dioxide sequesteration, and direct $10 billion to the Civilian Climate Corps for work on public lands and waters.  

To pay for the infrastructure investments, the plan would make several changes to the tax code, including increasing the corporate tax rate to 28%. A White House summary of the American Jobs Plan can be found here.

Senate Confirms Secretary of Interior

Debra A. Haaland was confirmed 51-40 to serve as secretary of the U.S. Department of the Interior (DOI). Haaland served as the representative for New Mexico’s U.S. House District 1 from 2019 to 2021.

Agriculture

USDA Announces Additional Aid for Farmers

The U.S. Department of Agriculture (USDA) announced $12 billion in new farm aid and indicated it would expand assistance to producers that weren’t covered under previous coronavirus relief programs, with the funding coming from unspent portions of earlier aid packages. The department will also reopen the application period for previous aid programs on April 5.

The USDA will use money left from prior rounds of aid to retroactively boost the size of the checks sent to some farmers and ranchers last year. The new round also includes $1.1 billion in aid for cattle producers and an additional $4.5 billion for producers of major crops such as corn, hemp, soybeans, sugar beets and wheat.

The agency also said it would devote $6 billion to expanding support for farmers and sectors that struggled to get payments during previous rounds of coronavirus relief; included are renewable fuel producers, specialty crops, beginning farmers, dairy farmers who donated milk, and livestock and poultry producers who were forced to euthanize animals when meatpacking plants shut down. The USDA is also committing an additional $500 million to existing programs, including those supporting local agriculture, specialty crops, producer training and animal disease prevention.

Farm Workforce Modernization Bill Passes House

The House of Representatives passed the Farm Workforce Modernization Act of 2021, 247-174. The bill would make changes to the H2-A agricultural worker visa program, including expanding the seasonal worker program to include full-time year-round workers, setting up a pilot program to allow visa holders to switch jobs without completing a new application process, and implementing a nationwide agricultural employment eligibility verification system modeled after E-Verify. The bill would also provide farmworkers an opportunity to receive a five-year Certified Agriculture Worker (CAW) visa to work in U.S. agriculture. If the worker meets minimum agriculture working days, he or she can work in the U.S. with unlimited five-year renewals. Additionally, CAWs can earn the opportunity to apply for a green card by paying a penalty and continuing to work in agriculture for at least eight years. If a CAW can prove 10 years of prior work in agriculture, they can apply for a green card after four years.

EPA Delays Biofuel Blending Mandate Deadlines, Awaiting SCOTUS Decision

The Environmental Protection Agency (EPA) finalized a rule extending the compliance deadlines for small refiners to meet obligations under the Renewable Fuel Standard for 2019 and 2020 as the Supreme Court considers exemption eligibility. The court is expected to hear oral arguments in late April as a result of an appeal of a 10th Circuit Court of Appeals ruling that refineries are only eligible for waivers exempting them from federal biofuel blending mandates if they have continually received the exemptions starting when the program began in 2011. The previous administration told the court in 2019 that all small refineries should at least be eligible to request exemptions.

USDA Requests Information on Climate Smart Agriculture and Forestry Strategy

The USDA is requesting public input on a climate-smart agriculture and forestry strategy, as directed by the Jan. 27 executive order Tackling the Climate Crisis at Home and Abroad. The notice seeks information on four topics: climate-smart agriculture and forestry; biofuels, bioproducts and renewable energy; catastrophic wildfire; and meeting the needs of disadvantaged communities through the USDA’s climate strategy. It is available for public input until April 30.

Department of Defense and USDA Working to Identify PFAS Contamination on Agricultural Land

The Department of Defense is working with the USDA to identify landowners and farms located within a 1-mile radius of military bases so that they can be informed that contamination from “forever chemicals” has spread to surrounding agricultural land, per the DOD’s principal deputy assistant secretary of defense for sustainment at a congressional hearing. As of Sept. 30, 2020, the Pentagon has identified 114 Base Realignment and Closure (BRAC) locations where the military may have used or potentially released PFAS, and is conducting PFAS assessments at these installations, including the potential of off-installation migration of chemicals into drinking water. Notifications to agricultural operations is required by the National Defense Authorization Act for Fiscal Year 2021.

Energy

Court Rejects Challenge to National Fuel’s Northern Access Pipeline, FERC Publishes 401 Rule

The U.S. Second Circuit Court of Appeals rejected the New York Department of Environmental Conservation’s challenge to the Federal Energy Regulatory Commission’s (FERC) finding that the agency waived its authority to certify, condition or deny its Clean Water Act (CWA) Section 401 water quality certification. The FERC waived the authority as the state did not act within the one-year time frame as set by the Clean Water Act Section 401 Certification Rule. Under section 401 of the CWA, a state has authority to certify, condition or deny any activity that would result in the discharge of pollutants into waters of the United States within their boundaries. The 2020 rulemaking places significant new limits on state authority, including reducing the length of state timelines for review and certification. For more information, read NCSL’s Info Alert

The FERC also published a final rule establishing a categorical reasonable period of time for a state or tribal certifying authority to act on a water quality certification request for proposed natural gas and liquified natural gas projects. The FERC is allowing certifying authorities up to one year after receipt of a request for water quality certification, filed in connection with a requested commission-issued section 7 certificate of public convenience and necessity or section 3 authorization under the Natural Gas Act, to grant or deny the request.

DOE Proposes Reversal of Efficiency Standard Rule

The DOE issued a proposal to reverse the previous administration’s process rule, which governs how the agency formulates efficiency standards for household and commercial appliances. In January 2020, the previous administration finalized the process rule, which set an energy-saving "threshold" that updated or new rules must meet and allowed the use of industry-led test procedures to determine standards. The process rule raised the bar for the amount of energy efficiency improvements a standard must achieve before the department would consider implementation.

Administration Unveils Plan to Boost Offshore Wind, and Reduce Solar Costs

The administration unveiled plans to deploy 30 gigawatts of offshore wind power by 2030, in accordance with the president’s January 2020 executive order. The DOI announced a new priority wind area off the coasts of New York and New Jersey, with a lease sale as soon as late 2021, and also announced a shared goal with the Departments of Energy and Commerce to deploy 30 gigawatts of offshore wind in the U.S. by 2030. The administration also committed to approving 16 offshore wind projects by 2025 and said it would direct $230 million in federal transportation dollars to fund port infrastructure and dedicate $3 billion in loan guarantees from the DOE. The DOE also announced $8 million for 15 new offshore research and development projects through the National Offshore Wind R&D Consortium.

Additionally, the DOE announced plans to reduce the cost of solar energy by 60% within the next decade, while also providing $128 million to lower costs, improve performance and speed the deployment of solar energy technologies. The solar goal calls for reducing utility-scale solar energy’s current cost of 4.6 cents per kilowatt-hour to 3 cents by 2025 and 2 cents by 2030.

DOI Announces $249 Million in FY 2020 Energy Revenues to GOMESA States

The DOI announced nearly $249 million in FY 2020 energy revenues to the four offshore gulf oil and gas producing states. The funds, disbursed annually based on oil and gas production revenue, are used to support coastal conservation and restoration projects, hurricane protection programs, and activities to implement marine and coastal resilience plans. The Gulf of Mexico Energy Security Act (GOMESA) of 2006 created a revenue-sharing model for oil and gas producing gulf states to receive a portion of the revenue generated from oil and gas production in the Gulf of Mexico. The act also directs a portion of revenue to the Land and Water Conservation Fund. The disbursement is the second largest since 2009, when they began.

Environment

EPA Finalizes Revised Cross State Air Pollution Rule Update

The EPA finalized the Revised Cross State Air Pollution Rule (CSAPR) Update for the 2008 ozone National Ambient Air Quality Standards. The CSAPR requires upwind states to reduce power plant emissions that travel with wind patterns and contribute to ozone and fine particle pollution on downwind states. The rule would require 12 states to make additional emissions reductions of nitrogen oxides (NOx) from powerplants. Those states include Illinois, Indiana, Kentucky, Louisiana, Maryland, Michigan, New Jersey, New York, Ohio, Pennsylvania, Virginia and West Virginia. Previously, 21 states were subject to “good neighbor” obligations under the 2008 ozone NAAQS, but a review found that for nine of the 21, projected 2021 emissions do not significantly contribute to the nonattainment or maintenance issues for downwind states. The EPA is issuing new, or amended, Federal Implementation Plans for those 12 states.

The rulemaking is in response to a 2019 ruling by the U.S. Court of Appeals for the D.C. Circuit that remanded the 2016 CSAPR update back to the EPA for failing to fully eliminate significant contribution to nonattainment and for interference with maintenance of the 2008 ozone NAAQS from these states.

Senate Aims to Use Congressional Review Act for Methane Rule

Senate Majority Leader Chuck Schumer (D-N.Y.) announced the Senate will use the Congressional Review Act (CRA) to overturn the previous administration’s reversal of the 2016 methane rule on new oil and gas wells. Lawmakers had an April 4 deadline to introduce CRA resolutions to use a “fast track” procedure to overturn recent regulatory actions, allowing the Senate to act with a simple, filibuster-proof majority, with a vote required by mid-May. The joint resolution to disapprove of the rule, “Oil and Natural Gas Sector: Emission Standards for New, Reconstructed and Modified Sources Review,” has been introduced in both the Senate and House. For more details on the Congressional Review Act, visit NCSL’s website here.

Drinking and Clean Water State Revolving Fund Availability Announced

The EPA announced the availability of $2.7 billion for State Revolving Funds (SRF) to assist states, tribes and territories with infrastructure projects to provide safe drinking water and protect surface waters across the nation. The EPA made more than $1.1 billion in new federal grants available for the Drinking Water SRF that can be used to help drinking water systems remove lead service lines, install treatment for emerging contaminants such as PFAS, and improve system resiliency to climate-driven disasters. Approximately $1.6 billion in new federal grant funding is provided for the Clean Water SRF, which is available for modernizing wastewater infrastructure and addressing storm water issues, among other uses. The EPA also announced a new $12 million grant program to aid wastewater utilities that serve small, rural and tribal communities in providing training and technical assistance.

Senate EPW Committee Passes Drinking Water Infrastructure and Funding Bill

The Senate Environment and Public Works Committee unanimously passed the Drinking Water and Wastewater Infrastructure Act of 2021. The bill authorizes more than $35 billion for water resource development projects with a focus on upgrading aging infrastructure, climate resiliency, investing in new technologies, and assistance to marginalized and disadvantaged communities. Of the total, more than 40% can be used to aid small, disadvantaged, rural and tribal communities through additional subsidies from the State Revolving Loan Funds (SRF) or grant programs. The legislation would reauthorize the Drinking Water SRF at $2.4 billion in fiscal year 2022 and gradually increase its funding level to $3.25 billion in fiscal years 2025 and 2026. The Clean Water SRF would be authorized at the same funding levels as the DWSRF, and the Water Infrastructure Finance and Innovation Act Program would be funded at $50 million annually through FY 2026. The bill would also increase the EPA’s funding level for lead reduction projects to $100 million annually through FY 2026. The bill has not yet been scheduled for a floor vote but is anticipated to receive one. The House is considering its own broad infrastructure package, the Leading Infrastructure for Tomorrow’s America Act and the Water Quality Protection and Job Creation Act. Both measures contain similar efforts, but if the bills pass, differences will need to be resolved in conference.

PFAS Effluent Limitation Guidelines Advanced Notice of Proposed Rulemaking

The EPA published an advanced notice of proposed rulemaking to solicit data and information regarding manufacturers of per- and polyfluoroalkyl substances (PFAS) and the presence and treatment of PFAS in discharges from this industrial category. The EPA is also requesting information regarding PFAS formulators, which are facilities that produce a variety of PFAS products and materials from PFAS feedstocks. Both PFAS manufacturers and formulators are currently regulated under the Organic Chemicals, Plastics and Synthetic Fibers category. The action is consistent with both the EPA’s PFAS Action Plan, which indicated the agency was taking steps to evaluate if industrial sources warranted regulation to address PFAS discharges, and the EPA’s January 2021 ELG Plan, in which it announced it would be seeking new data to draft a PFAS ELG rule.

SCOTUS Rejects Challenge to Marine Monument, but Considers Restrictions on Antiquities Act Usage

The U.S. Supreme Court rejected a challenge to former President Barack Obama’s creation of the Northeast Canyons and Seamounts Marine National Monument, but Chief Justice John Roberts indicated he was open to new restrictions on presidential authority to designate monuments via the Antiquities Act. The act grants the president “broad authority” to designate areas as national monuments, but Roberts opened the door for challenges to consider the scope of that authority and the smallest area requirement of the act.

Supreme Court Rejected Apportioning Apalachicola-Chattahoochee-Flint River Basin Resources

The U.S. Supreme Court unanimously held Florida couldn’t prove Georgia’s irrigation of rivers flowing into Apalachicola Bay caused its oyster fisheries to fail, and indicated it is not up to the justices to determine a complex scientific issue. The court found Florida did not meet the burden required to force the court to implement an apportionment of the basin’s water resources, but also held emphasized Georgia “has an obligation to make reasonable use of the basin waters in order to help conserve that increasingly scarce resource.” 

Transportation

House Republicans Vote to Restore Earmarks as Democrats Revive the Practice

Republicans in the House voted 102-84 in support of restoring earmarks during their conference meeting. The vote to restore included a requirement that all earmarks must be publicly disclosed with written justification and verification that the member has no financial interest in the project. Earmarks allow lawmakers to ensure funds for specific projects; they were banned in 2011. Under the new process outlined by House Democrats, lawmakers can request funding for up to 10 projects possessing “community support,” and earmarked funds overall will be capped at 1% of discretionary spending, with no money going to for-profit interest. The Government Accountability Office will audit the earmarks and submit its findings to Congress.

In 2019, Senate Republicans voted in favor of a “permanent ban” on earmarking inside their conference, but with the House decision, it is anticipated that they will decide whether to lift their ban in the near term. Senate Appropriations Chairman Patrick J. Leahy (D-Vt.) has indicated he will bring earmarks back into the chamber and will “divide it equally between Republicans and Democrats,” should they wish to partake in the process.

Department of Transportation Repeals “Rule on Rules”

The USDOT issued a final rule repealing the “rule on rules” that was established under the previous secretary, Elaine Chao; directing DOT subagencies to eliminate two regulations for every new one created; and creating the Regulatory Reform Task Force. The rule repeals the DOT’s 2018 policies and procedures for rulemakings, a 2018 general counsel memorandum on the “review and clearance of guidance documents,” a 2019 general counsel memorandum on “procedural requirements for DOT enforcement actions,” and a 2019 rule on administrative rulemaking, guidance and enforcement procedures.

FTA Announces Formula Allocations From American Rescue Plan

The Federal Transit Administration announced formula allocations from the $30.5 billion in pandemic aid for transit. Of that funding, $26 billion will go to the Section 5307 Urbanized Area Formula Funding program and $276 million to the Section 5311 Formula Grants for Rural Areas program, with an additional $2.2 billion of discretionary funding allotted to those two programs together for communities that “demonstrate additional pandemic-associated needs. “Capital investment grants will make up $1.7 billion of the aid. The remainder will be split among competitive planning grants ($25 million), mobility for seniors and people with disabilities ($50 million), rural transit ($6 million), and transit on American Indian reservations ($30 million formula and an additional $5 million in discretionary funding). The apportionment tables have already been made public.

Thanks for reading. We will be back later this month to fill you in on other federal happenings.

Best,

Kristen

Additional Resources