NRI Standing Committee Newsletter | Feb. 1, 2021

2/1/2021

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 (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 Biden Signs Environmental and Energy Orders

President Joe Biden issued several presidential actions surrounding environment and energy issues–ranging from a required review of rules, the revocation of existing federal permits and changes to national land and sea monuments.

Notably, the president revoked the Keystone XL Pipeline Permit, rejoined the U.S. to the Paris Climate Accord, ordered a review of several national monument boundaries, including the Bears Ears National Monument and the Grand Staircase-Escalante National Monument, and ordered a temporary moratorium on oil and gas drilling in the Arctic National Wildlife Refuge. The president also directed the federal agencies to review over 100 energy and environment rules, including methane emission standards, greenhouse gas emission and fuel economy standards for motor vehicles, energy efficiency standards and scientific transparency. For a full summary read NCSL’s Info Alert here.  

Additionally, the president issued an executive order aimed at “combating climate change,” across the federal government. Notably, the order temporarily suspends new oil and gas leases on federal land and offshore waters pending a review, while also directing federal agencies to research and implement his administration’s ability to eliminate fossil fuel subsidies and explore measures related to clean energy technologies and infrastructure. Additionally, the order directs the White House Council on Environmental Quality and the Office of Management and Budget to ensure that any federal infrastructure investment is made with the reduction in pollution in mind, and reverses rules from the previous administration which prohibited federal agencies from considering the effects of greenhouse gas emissions and climate change in their environmental reviews.

Further, the USDA is called upon to solicit input from farmers, ranchers, and others within the agriculture community on how to best use federal programs to encourage agriculture practices which increase carbon storage and reduce carbon emissions.  

The order also aims to address environmental justice issues by establishing new commissions to address concerns of those communities that live near pollution sources and begins an incentive to ensure 40% of federal investments within energy, transit and other programs are diverted to historically disadvantaged communities.

For a more in depth summary of the order, visit NCSL’s webpage on Executive Actions here.

Federal Agencies Announce New Biden Administration Staffers

While the Senate continues to slowly confirm President Biden’s cabinet nominees, federal agencies announced new political appointments for lower level positions that do not require Senate confirmation. You can find a full list for the Department of Transportation (DOT), Department of Agriculture (USDA), Department of Energy (DOE), Environmental Protection Agency, and Department of Interior.

USDA Issues Final Rule Regulating Hemp Production

The United States Department of Agriculture (USDA) issued its final rule implementing the legalization of hemp production from the 2018 Farm Bill. This rule is a follow up to Interim Final Rule (IFR), though the new final rule does make some changes to the IFR to provide hemp producers with additional flexibilities, including a few which were requested by NCSL. However, it does leave in place the requirement that hemp must be tested at a facility licensed by the Drug Enforcement Administration. This final rule will go into effect March 22 though it is unclear how the incoming administration may change or pause the rule given its release just prior to Biden taking office. For additional details on the final rule, read NCSL’s Info Alert.

Agriculture

USDA Announces Suspension of Farmer Debt Payments

The USDA will temporarily suspend past-due debt collections and foreclosures for farmers borrowing under two major loan programs administered by the Farm Service Agency. The department will also seek to stop foreclosures and evictions already in progress.

USDA Expands its Coronavirus Food Assistance Program

The USDA announced it will provide additional assistance through the Coronavirus Food Assistance Program (CFAP), expanding eligibility for some agricultural producers and commodities as well as updating payments to accurately compensate some producers who already applied for the program. Some of these changes were to align with the Consolidated Appropriations Act of 2021, while others are discretionary. The USDA expanded CFAP so that contract producers of swine, broilers, laying hens, chicken eggs, and turkeys, are eligible for assistance, as well as for producers of pullets and turfgrass sod. A previous provision required ownership of the animal, which ultimately disqualified contract growers.

Oversight of Genetically Modified Animals Moved to USDA, Against FDA’s Preference

The HHS and USDA agreed to transfer regulatory authority for reviewing the safety of genetically modified animals for food from the Food and Drug Administration (FDA) to the USDA, though the FDA will retain oversight of other, non-agricultural, gene edited products, such as biopharma. The Memorandum of Understanding, which the FDA specifically spoke out against, requires the USDA to “consult” with the FDA on food safety and agriculture amenable species developed via genetic engineering related matters. To date, the FDA has only approved two genetically engineered animals for consumption–salmon, and pigs.

GAO Report Finds Issue with EPA’s Farm Worker Protection Standard

The Government Accountability Office (GAO) issued a report finding the Environmental Protection Agency's (EPA) Agriculture Worker Protection Standard, which aims to reduce pesticide poisonings and injuries among agricultural workers and pesticide handlers, is flawed. The GAO indicated that farmworkers need more information about pesticide exposure illnesses, and also recommends the EPA coordinate with states to collect information on the “designated representative,” and that the agency outline its expectations regarding the appropriate use of such information, including a description of potential misuse of such information.

Energy

2nd Highest Federal Court Vacates Trump Administration’s Major GHG Rule

The U.S. Court of Appeals for the District of Columbia vacated the Trump administration’s 2019 Affordable Clean Energy (ACE) Final Rule, which was developed as a replacement to the Obama administration’s 2015 Clean Power Plan Final Rule—which was never implemented by the EPA or ruled on by federal courts. The ACE established emission guidelines for states to develop plans to address greenhouse gas (GHG) emissions from existing coal-fired power plants, without setting individual state GHG emissions limits. In its ruling the court stated that the EPA’s argument that the CAA only allowed the agency to develop emissions restrictions that apply directly “at the source,” had “no basis—grammatical, contextual, or otherwise.” The court’s decision sends the rule back to the EPA allowing the new Biden administration the opportunity to regulate GHG emissions from the power sector. NCSL advocated for states during both the development of the 2015 Clean Power Plan and the Affordable Clean Energy Rule and looks forward to working in tandem with the new administration to ensure the principles of cooperative federalism and state priorities are upheld.

Federal Energy Regulatory Commission Chairman Chosen

Richard (Rich) Glick was announced as the next Federal Energy Reserve Chairman through June 2022. Glick was nominated to the Federal Energy Regulatory Commission by President Donald J. Trump in August 2017 and confirmed by the U.S. Senate on Nov. 2, 2017. Prior to his time at FERC, he was general counsel for Democrats on the Senate Energy and Natural Resources, and before that served as a lobbyist at an energy firm. While the commission will remain in 3-2 control by Republicans, it will likely revert to Democrats when Commissioner Neil Chaterjee’s term expires in June.

DOE Reorganization Under Biden Administration

The DOE announced its first reorganization under the new administration—for example, the office of environmental management now reports to the secretary’s office (instead of the undersecretary for science), and the new undersecretary for science and energy oversees the office of nuclear energy and other energy programs, thus bringing all of the energy programs under one undersecretary.

Just prior to the reorganization, the prior administration’s the DOE announced the establishment of a Division of Minerals Sustainability, which was created to improve “the domestic availability and supply of critical minerals, including rare earth elements.” As created, the division would report to Fossil Energy’s Office of Clean Coal and Carbon Management. The division is not on the DOE’s reorganization chart.

FERC Denies Certification Requests from Natural Gas Project Developers and Hydropower

The Federal Energy Regulatory Commission (FERC) denied construction requests for three national gas projects, citing environmental justice concerns—noting that the projects did not take the projects effect on front-line, typically disadvantaged communities, or air pollution impacts on those with COVID. Additionally, the commission voted to not allow the Mountain Valley Pipeline to continue construction while it awaited additional environmental permits.

Additionally, the FERC denied a petition to waive a Clean Water Act water quality certification for hydropower projects, meaning that California’s final water quality certification for the projects will stand unless overturned on appeal.

Federal Court Upholds Ruling Requiring Additional Reviews of Dakota Access Pipeline

The U.S. District Court of Appeals from the District of Columbia Circuit upheld a previous ruling, which found that the Dakota Access Pipeline’s operations at the Missouri River crossing near the Standing Rock Sioux Reservation did not undergo proper environmental review via the National Environmental Policy Act, thus requiring the U.S. Army Corps of Engineers to proceed with another environmental review. It is unclear what the future holds for the Dakota Access Pipeline since the president canceling the Keystone XL Pipeline Permit on his first day in office.

Biden Department of Interior Restricts Staff Ability to Issue Fossil Fuel Authorizations

Acting Department of Interior (DOI) Secretary Scott de la Varga, suspended all but high-level staff’s ability to “issue any onshore or offshore fossil fuel authorization, including but not limited to, a lease, amendment to a lease, affirmative extension of a lease, contract or other agreement, or permit to agree.”

Gulf of Mexico Marine Sanctuary Tripled in Size

The National Oceanic and Atmospheric Administration (NOAA) announced an expansion of the Flower Garden Banks National Marine Sanctuary, increasing the Gulf of Mexico’s only national marine sanctuary from 56 square miles to 160 square miles. The expansion shields the area from oil and gas exploration and production, as well as other activities related to fishing and salvaging.

Trump DOE Issues Final Rule Creating New Classes of Appliances

The Trump administration’s Department of Energy issued a final rule creating new classes for products that do not recapture waste heat, i.e., water heaters and home furnaces—in step with the creation of new classes of dishwashers and clothing washing machines and dryers. The actions essentially exempt the products from current efficiency standards. Additionally, the rule withdraws a 2016 proposed rule that would have increased efficiency standards for home furnaces and commercial water heaters.

Environment

EPA Took a Number of PFAS Related Actions

The EPA, at the close of the Trump administration, announced a number of actions related to addressing per- and poly-fluoroalkyls, more commonly referred to as PFAS. The agency took a major step towards issuing a drinking water standard under the Safe Drinking Water Act via the issuance of a final regulatory determination for PFOA and PFOS, which found that the chemicals were indeed in need of regulation. Additionally, the agency proposed requiring drinking water utilities to test for 29 type of PFAS during the next mandatory sampling in 2023-2025 via the Unregulated Contaminant Monitoring Rule.

The agency also issued an advanced notice of proposed rulemakings, in early January, seeking comment on whether or not the agency should take additional steps towards regulating PFOA and PGOS in the environment and whether they should be listed as hazardous substances under Superfund. Also, the EPA announced next steps to address PFAS in industrial wastewater, and has requested comments on whether or not such discharges should be regulated under the effluent limitation guidelines program.

Relatedly, the Trump administration issued the final toxicity assessment for PFBS—another “forever chemical,”—which is used in firefighting foam, carpeting and food packaging, and served as replacement to its predecessor PFOS. The toxicity assessment is not a regulation, but to serve as a scientific foundation for health risk assessment decision making.

EPA Asked DOJ to Suspend Rule Litigation

The EPA requested the Department of Justice (DOJ) suspend litigation involving any rule the agency promulgated between Jan. 20, 2017, and Jan. 20, 2021.  The request follows Biden’s directive for federal agencies to review the previous administration’s environmental rules and freeze any pending regulations. In the event the DOJ cannot get an abeyance, or stay issued, the agency has requested the department seek extensions for the proceedings.

EPA Issued Final Guidance Clarifying Wastewater Permits Under the Maui Decision

The EPA issued guidance that clarifies how the Supreme Court’s County of Maui v. Hawaii Wildlife Fund decision should be applied under the National Pollutant Discharge Elimination System (NPDES) permit program. The SCOTUS ruled that an NPDES permit is required for a discharge of pollutants from a point source that reaches a “waters of the United States,” after traveling through groundwater if that discharge is the “functional equivalent of a direct discharge from the point source into navigable waters.” NCSL was part of an amicus brief in support of Maui’s defense that an NPDES permit is only required when a point source or series of point sources is “the means of delivering pollutants to navigable waters.”  

Toyota Fined Nearly $200 Million for Clean Air Act Violations

The DOJ and EPA announced that Toyota will have to pay a $180 million civil penalty for delaying filing reports which indicate the presence of a defective emissions control part between 2005 and 2015, as well as for the failure to alert the EPA to 20 voluntary recalls for emissions-related components. Federal law requires automakers to notify the agency if more than 25 vehicles in a single model year have a defective emissions control part. The $180 million penalty is the largest civil penalty for violation of the EPA’s emission-reporting requirements.

Transportation

Court Upholds Federal Preemption of California Meal and Rest Break Rules

The Ninth Circuit Court of Appeals held that the Federal Motor Carrier Safety Administration’s (FMCSA) determination that federal law preempts California’s meal and rest break rules, as applied to drivers of property-carrying commercial motor vehicles is valid. In 2018 the FMCSA concluded that federal law preempts California’s meal and rest break rules when a driver is subject to federal hours-of-service requirements. NCSL sent comments to the FMCSA on the determination.

DHS Launches Nationwide REAL-ID Campaign

The Department of Homeland Security launched a new nationwide public awareness campaign to promote the awareness of REAL ID requirements prior to the Oct. 1, 2021 enforcement deadline. Passed by Congress in 2005 following a 9/11 Commission recommendation, the REAL ID Act establishes minimum security standards for state-issued driver’s licenses and identification cards and prohibits federal agencies, like the Transportation Security Administration, from accepting licenses and identification cards for official purposes from states that do not meet these standards.

NHTSA Exempts Driverless Autonomous Vehicles from Safety Standards

The National Highway and Traffic Safety Administration issued a final rule which intended to modernize Federal Motor Vehicle Safety Standards, and address “ambiguities” in occupant protection standards in driverless automated vehicles. The new rule also amends several crashworthiness regulations to clarify safety standards for automated vehicles without manual driver controls, while exempting automated vehicles not designed to carry any human occupants from crashworthiness standards.

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

Best,

Ben and Kristen

Additional Resources