NRI Standing Committee Newsletter | Dec. 21, 2020

12/18/2020

ncsl newsletter

Below are 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 (COVID-19) resources, please reach out to me, Ben Husch (ben.husch@ncsl.org), or my colleague Kristen Hildreth (kristen.hildreth@ncsl.org), and we will point you in the right direction.

Top Stories

President-elect Biden Announces Choices for DOT, DOE, USDA, and White House Climate Positions

President-elect Joe Biden nominated former South Bend, Indiana Mayor Pete Buttigieg to be transportation secretary. The U.S. Department of Transportation (DOT) comprises 55,000 employees, an $87 billion budget and more than a dozen administrations, with responsibility for managing the nation’s airspace, maintaining pipeline safety, and cooperating with states to run the interstate highway system. The president-elect also plans to nominate former Michigan Governor Jennifer Granholm for energy secretary. The Department of Energy (DOE) oversees billions of dollars in federal energy research along with the nation’s premier set of national laboratories as well as the maintenance and safety of the U.S. nuclear weapons stockpile. Granholm, who served two terms as Michigan's governor will likely be tasked with strong promotion of an electric vehicle adoption. For the U.S. Department of Agriculture (USDA), President-elect Biden announced his plan to nominate former Agriculture Secretary Tom Vilsack.  Vilsack served as secretary for eight years under President Barack Obama.

The president-elect will also name former Environmental Protection Agency (EPA) Administrator Gina McCarthy as head of the White House Office of Domestic Climate Policy. She served as EPA's air chief in Obama's first term and as EPA administrator in his second term. Ali Zaidi, who is New York Governor Andrew Cuomo's deputy secretary for energy and environment will serve as deputy director for the White House Office of Domestic Climate Policy. The president-elect also nominated Brenda Mallory to lead the White House Council of Environmental Quality (CEQ). The CEQ oversees implementation of the National Environmental Policy Act. Mallory was the council’s former general counsel under Obama.

Agriculture

House Agriculture Committee will Have First Black Chairman in 2021

House Democrats chose Representative David Scott (Ga.) as the first Black chairman of the House Agriculture Committee following the election loss of current chair, Representative Collin Peterson. House Republicans chose Glen ‘GT’ Thompson (Ga.) to be the new ranking member for the Agriculture Committee.

U.S. Farm Profit Rises to Seven Year High

The USDA reported that U.S. farm income this year will surge to nearly $120 billion, the highest since 2013 and 40% greater than last year, primarily the result of federal aid from coronavirus payments and trade relief programs, which represented nearly 39% of total income.

FCC Report Stresses Critical Need for High-Speed Internet for Farmers

A new report from The Federal Communications Commission (FCC) highlighted how high-speed internet access is critical for farmers, as the industry becomes more reliant on data, automation, and digital tools. Specifically, the report found “robust evidence that improved connectivity using a threshold of at least 25 Mbps download and 3 Mbps upload speeds result in higher crop yields” for corn, cotton, hay, soybeans and wheat. The paper also found that better broadband access was associated with significantly lower fertilizer and seed costs due to having more accurate weather information but allows and implementation of precision agriculture for real time data on crops.

The week before the report’s release, in an effort to provide high-speed internet service to rural parts of the country, the FCC announced the awarding of $9.2 billion as part of the first phase of a $20 billion Rural Digital Opportunity Fund that aims to subsidize the buildout of broadband infrastructure in rural parts of the country. Phase one is focused on providing service to unserved areas, while the second phase will include partially served parts of the country.

USDA Announces Expansion of Hemp Crop Insurance

The USDA announced it was expanding the hemp crop insurance pilot program to counties in four new states—Arizona, Arkansas, Nevada and Texas—and in 13 counties in states where coverage is currently offered. The changes take effect in 2021.

US Begins Trade Enforcement Action Against Canadian Dairy

U.S. Trade Representative Robert Lighthizer announced the implementation of an enforcement action under the U.S.-Mexico-Canada Agreement (USMCA) in response to Canadian dairy policy. The enforcement action targets tariff-rate quotas, or TRQs, that Canada established for its dairy industry in June, before the USMCA took effect on July 1, 2020. Lighthizer indicated that the provisions unfairly protect Canadian firms in violation of the deal. If formal consultations between the U.S. and Canada cannot resolve the issue the U.S. trade representative, “may request the establishment of a USMCA dispute settlement panel to examine the matter.”

FDA Authorizes First Genetically Engineered Pig

For the first time, the Food and Drug Administration (FDA) approved a line of genetically engineered pigs for food use and for human therapeutics. The genetic engineering eliminated alpha-gal sugar, which can cause people to have an allergic reaction to red meats. Prior to this action, the FDA had approved four genetically altered animals—three for medical use and one for food use—a genetically engineered salmon in 2015.

USDA Issues New Rule on Meat Industry Competition to Better Protect Farmers

The USDA finalized a rule aimed at more specifically defining unfair and uncompetitive treatment to determine whether a meatpacker is giving “undue” preference to one farmer over another. The rule was required by the 2008 Farm Bill.

Grain Standards Reauthorization Act of 2020 Signed Into Law

The U.S. Grain Standards Reauthorization Act of 2020 was signed into law. The Federal Grain Inspection Service establishes official marketing standards for grains and oilseeds under the authorization of the U.S. Grain Standards Act, which was first signed into law in 1916. The existing authorization law, which was enacted in 2015 expired on Sept. 30.

Congress Enacts New Update for Food Allergy Label

Congress passed S 3451, the FASTER Act, a bipartisan bill that would add sesame to the list of major food allergens, requiring the ingredient to be explicitly labeled on food packaging, like milk, soy, nuts, shellfish and other common allergens.

Energy

Rule Allowing Companies to Develop Their Own Energy Efficiency Methods Finalized

The DOE finalized a rule allowing companies to develop their own methods for testing the energy efficiency of their products. Currently, the DOE determines how companies must test their products to determine whether they meet energy efficiency standards, but under the finalized rule companies would be able to develop their own testing procedures. The rule would apply to everything from refrigerator motors to air conditioners to lightbulbs. Relatedly, the DOE issued two final rules concerning the energy efficiency of household appliances. The first rule covers clothes washers and dryers, and the second rule covers showerheads, though both rules would allow for less efficient version to qualify for federal standards.

DOE Issues New Guidance for State Energy Program

The DOE issued new guidance for State Energy Program grantees, which details how grantees may use funds to establish and operate financing programs, including revolving loan funds, loan loss reserves, interest rate buy-downs, and others.

Senate EPW Committee Approves Aid for Existing Nuclear Plants

The Senate Environment and Public Works Committee approved the American Nuclear Infrastructure Act, 16-5, (S 4897) that would aid nuclear energy production. Most importantly, the bill would authorize a new federal program that could provide federal "credits" to economically struggling nuclear plants through fiscal year 2026. The bill would also authorize a national uranium reserve as well as attempt to reduce the amount of time Nuclear Regulatory Commission environmental reviews will take for advanced reactor license applications.

GAO Report Calls for Better Planning at WIPP

The Government Accountability Office (GAO) reported that better planning is needed at the Waste Isolation Pilot Plant (WIPP), the federal government's only underground nuclear waste storage facility, could run out of room if the number of drums shipped to the site increases. The report specifically points to the need for adding more physical space at the repository before it becomes full, which the DOE estimates could happen as soon as 2025.

DOI Disburses $8 Billion From Energy Production on Federal Lands

The Department of the Interior (DOI) disbursed $8.1 billion in mineral revenues for fiscal year (FY) 2020, which are derived from energy production on federal and Native American lands and are distributed through various funds to states and local governments, and others. In total, $1.8 billion will be disbursed to states and local governments, compared to $2.4 billion in FY 2019, which represents a reduction of more than $3 billion.

Offshore Wind Rollout Delayed as DOI Issues New Legal Opinion

The DOI issued a new, stricter interpretation of when to permit offshore wind farms if they might "interfere" with fishermen and other ocean users. The new opinion reverses an opinion provided by the department only a few months ago and comes shortly after the department terminated the application for the first commercial offshore wind power plant instead of its request to pause its application.

NERC Issues Report Noting Potential Energy Shortfalls in Coming Years

The North American Electric Reliability Corp., a federal agency overseen by the Federal Energy Regulatory Commission, issued its annual reliability findings, which stated that the growth of wind and solar power on the grid could lead to energy shortfalls during peak demand in upcoming years. The report did state there's still time to head off potential problems by building additional transmission and generation infrastructure.

Environment

EPA Finalizes New Cost-Benefit Analysis Rule

The EPA finalized a new rule, establishing new processes and requirements the agency must undertake in promulgating regulations under the Clean Air Act. Under the rule, the EPA will be required to make decisions about air regulations based on a narrower look at their potential costs and benefits, focusing squarely on those effects directly tied to specific pollutants targeted by rules and not any additional environmental improvements. The agency will also be directed to focus closely on U.S. benefits, a shift that could affect future rules aimed at fighting the global problem of climate change. The EPA could still analyze those additional effects—but they could not drive decisions about whether a regulation is warranted. The rule will take effect immediately once published in the Federal Register. It is likely the rule could be repealed via notice and comment rulemaking by the incoming Biden administration

EPA Publishes New Guidance Following Maui and Proposes Criminal Negligence Standard for State Clean Water Act 402 and 404 Programs.

Following a 6-3 loss at the Supreme Court of the United States (SCOTUS) (Maui v. Hawaii Wildlife Fund) earlier this year, the EPA published new draft guidance concerning the Clean Water Act, Section 402 National Pollutant Discharge Elimination System (NPDES) permit program for point source discharges that travel through groundwater before reaching Waters of the United States. The guidance indicates that the SCOTUS decision did not alter the statutory or regulatory structure, but rather identified an additional analysis that should be conducted in certain scenarios to determine whether an NPDES permit is required. Though the agency is collecting comments on the draft guidance, it is unclear if it will be finalized by the incoming administration. Relatedly, the EPA issued a proposed rule intended to support state NPDES programs and would give the EPA the ability to approve state or tribal programs that allow for prosecution based on any criminal negligence standard.

FWS Finalizes First Ever Definition of Critical Habitat under Endangered Species Act

In response to a ruling from the SCOTUS concerning endangered species, the Fish and Wildlife Service (FWS) released its final definition of the term habitat, which will be used for designating critical habitat under the Endangered Species Act (ESA). The agency had previously left this term undefined but will now require the species under consideration for protection to at least periodically live in a place for it to be considered their “habitat.” The Endangered Species Act requires the federal government to consider the economic impact of specifying an area as a critical habitat and authorizes the secretary to “exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat.” Legal experts and members of Congress expect the incoming Biden administration to revisit the definition, which is set to take effect on Jan. 15.

FWS Declines to List Monarch Butterfly as Endangered, Though Criteria Met

The FWS announced that it would not list the Monarch Butterfly as endangered even though it meets the required criteria. “We conducted an intensive, thorough review using a rigorous, transparent science-based process and found that the monarch meets listing criteria under the Endangered Species Act,” Aurelia Skipwith, the director of the FWS, said in a statement. “However, before we can propose listing, we must focus resources on our higher-priority listing actions.” As part of the decision, monarchs’ status will be reviewed each year by the agency and conservation efforts will continue.

EPA Review Finds Risk to Endangered Species From Glyphosate

The EPA released a draft biological evaluation finding that glyphosate, a popular pesticide, “is likely to adversely affect a significant percent of endangered species and critical habitats.” Specifically, the evaluation found that glyphosate adversely modifies critical habitat for 759 endangered species, or 96% of all species for which critical habitat have been designated under the ESA. Glyphosate is used to control weeds on 298 million acres of soybean, corn, cotton, and other crops each year, and has been the subject of a few lawsuits related to its use and associated impacts.

Related, the EPA issued a proposed interim rule that would allow for the continued use of chlorpyrifos, an insecticide, though it would now require additional label restrictions with the aim of reducing the risk of exposure to infants and children. Among possible new limits, the EPA announced it would add label restrictions to reduce risk to water supplies and might restrict chlorpyrifos use to 11 "high benefit" or "critical uses" in certain regions.

EPA Retaining Existing Soot Standards

The EPA announced it would retain the existing National Ambient Air Quality Standards for fine particulate matter (PM2.5), commonly referred to as soot, and coarse particulate matter (PM10) for the next five years. Between 2000 and 2019, the average PM2.5 concentrations in the U.S. fell by 44% and average PM10 concentrations similarly fell by 46%. The soot determination bypassed the findings of the EPA air office employees, who concluded in this year’s report that the existing annual limit on soot exposure could be too weak to prevent "a substantial number" of premature deaths each year.  Over the past four years, the EPA has redesignated 57 nonattainment areas to attainment with standards for six key criteria air pollutants: carbon monoxide, ground-level ozone, lead, nitrogen oxides, PM and sulfur oxides. This includes nine areas for PM2.5 and twelve areas for PM10.

PFAS Measures Included in FY 2021 Defense Authorization

Congress passed the FY 2021 National Defense Authorization Act (NDAA), HR 6395, the House by a vote of 335-78 and the Senate 84-13. Though the president has announced he will veto, both chambers approved the bill with veto-proof margins.  The bill includes a few per- and polyfluoroalkyl substances (PFAS) related provisions, including an increase in funding for a Centers for Disease Control and Prevention (CDC) study on the health effects of PFAS exposure among service members; establishment of an interagency body to coordinate federal research on PFAS; prohibiting the Department of Defense from purchasing certain perfluorooctanoic acid or perfluorooctanesulfonic acid containing products such as cookware, furniture or others. The NDAA includes more than $1 billion for remediation and cleanup at military facilities, including PFAS. Additionally, the bill includes provisions requiring the military to update its adaptation road map to increase resilience against the effects of climate change, and also mandates that the department determine its agencywide greenhouse gas emissions. The Pentagon report released last year disclosed that in 2017, the agency had more carbon dioxide emissions than 140 countries.

SCOTUS Rules in Favor of New Mexico in Water Dispute with Texas

The SCOTUS ruled 8-0 in favor of New Mexico in a case with Texas over water rights along the Pecos River. The court agreed with a previous ruling from a court appointed “river master,” which found that New Mexico was entitled to a credit for water it was storing that then evaporated in response to Tropical Storm Odile in 2014. This case is expected to be the first of many over water rights in response to changing water levels due to drought and other climate shifts. The court is set to hear a case between Florida and Georgia later this term, also on the issue of water rights.

GAO Report Says Pollution Monitoring Network in Disrepair

The GAO, Congress’s investigative agency, issued a report following a 2 1/2 year audit. It disclosed that the U.S. air pollution monitoring network has fallen into disrepair after years of budget cuts and neglect leaving tens of millions of Americans vulnerable to undetected bad air quality from events ranging from wildfires to industrial pollution. Federal funding for the air monitoring network, which is overseen by the EPA and operated and maintained by state and local environmental agencies, has declined by about 20% since 2004, after adjusting for inflation according to the GAO report. "Several state and local agency officials and regional air quality association representatives also said that the funding challenges forced agencies to triage their investments, often at the expense of the programs in the longer term," wrote the GAO. The EPA has agreed to create an "asset management framework" and a modernization plan for the monitors and has added monitoring requirements without allotting state and local agencies more money to carry them out, the report indicated. 

CDC Announces Study of COVID-19 and PFAS

The CDC will measure PFAS levels in health care workers and first responders and will probe the association between the chemicals and the risk of contracting the coronavirus. The study "will also evaluate the association of PFAS levels and antibody response to SARS-CoV-2, infection, and waning of antibodies over time, which may shed light on the potential impact of PFAS exposure on vaccine response and potential duration of vaccine protection."

House Select Committee on Climate Will Return

House Speaker Nancy Pelosi (D-Calif.) announced that both the House Select Committee on the Climate Crisis and its Chairwoman Kathy Castor (D-Fla.) will return for the 117th Congress.

Transportation

DOT Announces Vaccine Transport Rules for Aircraft and Trucks

The DOT issued new rules to allow for the rapid shipment of COVID-19 vaccines via aircraft and commercial trucks. The aircraft rules establish safety requirements for dry ice and flammable batteries while reducing restrictions on how long flight crews involved in the effort can work. The new rules for trucks provide more flexibility in hours-of-service requirements to conduct COVID-19-related deliveries.

FRA Issues New Final Rule Requiring States to Develop Highway-Rail Grade Crossing Action Plans

As mandated by the Fixing America’s Surface Transportation Act, the Federal Railroad Administration published a final rule requiring 40 states and the District of Columbia to develop and implement highway-rail grade crossing action plans to improve public safety. Additionally, the 10 states that were already required to develop those action plans via the Rail Safety Improvement Act of 2008 and subsequent implementing regulation, are required to update their plans and report on their implementation progress.

NCSL Sends letter to DOT and FAA on Drones

NCSL, along with several other national state and local associations, sent a letter to the DOT and the Federal Aviation Administration (FAA) following the release of a GAO report. The report highlighted an ongoing effort within the agency to issue “unified legal position” concerning unmanned aerial systems by the agency’s Joint Lawyers Working Group on Federal Preemption and the Regulation of Unmanned Aircraft Systems. Given the many unresolved legal, technical and policy questions regarding drones, the groups requested the opportunity to engage in more formal consultations with the agencies and that they engage in a public rulemaking with the appropriate notice and comment opportunities. Only a few days after the letter’s issuance, the Western Texas District Court dismissed with prejudice portions of a lawsuit challenging a Texas drone law establishing no-fly areas around critical infrastructure.

House will Allow Earmarks in 2021; Senate Plans Remain Unclear

Democratic leadership, including Majority Leader Steny Hoyer (D-Md.) and Transportation and Infrastructure Committee Chairman Peter DeFazio (D-Ore.), announced the return of earmarks in the upcoming 117th Congress. The two noted their hope that earmarks would increase support for a large-scale infrastructure bill expected to be a focal point in the first half of 2021. The total amount of funding for earmarks will be capped as well as include a ban on benefits for for-profit companies and requirements to post the requests online. It is unclear if Republicans in the Senate or House will agree to their inclusion.

National Transportation Safety Board Recommends State Licensing Changes

As part of the National Transportation Safety Board preliminary findings of a Randolph, N.H., fatal crash involving a pickup truck driver under the influence of drugs and a group of motorcyclists, the board recommended “state licensing agencies to review existing procedures or develop new ones to accurately and expeditiously (1) process notifications received from other states about infractions and suspensions committed by the home state’s drivers in those jurisdictions, and (2) notify other jurisdictions of infractions and suspensions committed in the home state by drivers licensed in those jurisdictions.”

Thanks for reading. We will be back in 2021 to fill you in on other federal happenings—stay healthy and safe.

Best,

Ben and Kristen

Additional Resources