NRI Standing Committee Newsletter | Feb. 16, 2021

2/16/2021

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, Kristen Hildreth (kristen.hildreth@ncsl.org) and I’ll will point you in the right direction—my colleague Ben Husch will be away on parental leave through May 2021.

Top Stories

Senate Confirms Secretary of Transportation

Pete Buttigieg was confirmed 86-13 as Secretary of the U.S. Department of Transportation. Buttigieg previously served as the mayor of South Bend, Ind. He is a graduate of Harvard College and Oxford University and was an officer in the U.S. Navy Reserve.

SCOTUS Takes Up Eminent Domain Case Concerning State Land

The Supreme Court agreed to hear PennEast Pipeline Co. v. New Jersey, and will decide whether a private natural gas company may use the federal government’s eminent-domain power to claim state land.

The Natural Gas Act (NGA) authorizes private companies like PennEast to obtain necessary rights of way through eminent domain to build pipelines. PennEast asked a federal district court to condemn 42 properties which belong to New Jersey to build a pipeline. New Jersey claims that the 11th Amendment's sovereign immunity prevents a private company from taking it to court as the amendment prohibits states from being sued in federal court unless they have consented to suit. New Jersey argued that “the federal government cannot delegate its exemption from state sovereign immunity to private parties like PennEast,” in front of the U.S. Court of Appeals for the Third Circuit which agreed. The United States government filed an amicus brief at the petition stage. It encouraged the court to hear the case and reverse the Third Circuit, arguing that that the “text, structure, and history of the NGA make clear” natural gas companies may “acquire state-owned property necessary for constructing” approved interstate pipelines.” For more information read the NCSL’s blog on the case. Separately, the Federal Energy Regulatory Commission, issued an order seeking input on potential changes to its eminent domain proceedings. The commission is looking to place more stringent rules to empower property owners affected by natural gas pipelines or export projects following the commission’s loss in federal court on its previous eminent domain process.

Agriculture

USDA Announces Suspension of Coronavirus Food Assistance Program Payments

The U.S. Department of Agriculture announced the suspension of processing and payments via the Coronavirus Food Assistance Program and has halted implementation until the department reviews the program. Local Farm Service Agency offices will continue to accept applications during the evaluation period. Additionally, the agency paused debt collection and foreclosures for over 12,000 farmers who borrow under its direct loan and farm storage facility loan programs. Overall, FSA lends to more than 129,000 farmers, ranchers and producers. 

USDA Announces Agricultural Conservation Easement Program Final Rule

USDA released the final rule for its Agricultural Conservation Easement Program (ACEP) which enables agricultural producers and private landowners to protect farmlands, grasslands and wetlands with conservation easements. The program offers financial and technical assistance to protect productive farm and ranch lands from conversion to other uses and to restore and protect the nation’s wetlands. The 2018 Farm Bill called for an update of the ACEP.

U.S. Farm Income Anticipated to Fall in 2021; Remain Well Above Long-Term Average

USDA released it February Farm Income Forecast, which anticipates $111.4 billion in net farm income in 2021—10% less than 2020 (accounting for inflation). Despite this decline, 2021 net farm income would be 21% above its 2000-19 average of $92.1 billion.

Energy

Vineyard Wind Environmental Review Process Resumed

The Bureau of Ocean Energy Management resumed the environmental review process for Vineyard Wind’s proposed offshore wind project off the coast of Massachusetts. The project, if approved, would be the largest offshore wind power plant in the United States. The previous administration terminated the proposal after developers requested a pause following changes to the projects design, primarily the use of a newer, more powerful turbine that would allow for a reduction in the total number of turbines while still generating the same amount of power. The restart comes following an executive order pausing new oil and natural gas leasing in offshore waters, and directing DOI to review siting and permitting processes in offshore waters, and find ways to increase renewable energy production in those waters, with the goal of doubling offshore wind by 2030.

Energy Consumption May Not Reach Pre-Pandemic Levels until 2050

The Energy Information Administration (EIA) released its annual energy outlook, which indicated it could take between three and thirty years for U.S. energy consumption to return to pre-pandemic levels. Per the report, energy demand across residential, commercial, transportation and industrial sectors fell to 90 percent from 2019, and in a webinar hosted by the Bipartisan Policy Center, EIA staff said that in comparison to the 2008 financial crisis, “the COVID-19 related decline in total delivered energy demand is about 70% larger.”

Environment

Lawmakers Ask EPA to Take Action on PFAS, While EPA Reverses Toxicity Assessment

A group of 132 Republicans and Democratic lawmakers, many of whom are on the PFAS Congressional Task Force, sent a letter to the president asking him to direct federal agencies to take immediate actions to protect communities from “harmful per-and polyfluoroalkyl” substances, and lamented on the “slow[ness]” of EPA, the Food and Drug Administration, and the Department of Defense in addressing the risks posed by PFAS. The letter called on the administration to quickly finalize a national drinking water standard, designate the chemicals under CERCLA, and place a moratorium on the introduction of new PFAS chemicals, among others.

Following that letter, but not explicitly called on to do so, Environmental Protection Agency (EPA) announced it was removing 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 was finalized during the previous administration and is not a regulation but intended to serve as a scientific foundation for health risk assessment decision making. The agency said it was being removed due to “Improper political interference.”

EPA Asked DOJ to Pause Rule Litigation – WOTUS Litigation Targeted

The administration filed requests with the district courts in Maryland and D.C. asking that challenges to the Navigable Water Protection Rule be placed on hold to allow officials to “review the rules and determine whether the rules should be maintained, modified, or otherwise reconsidered.”

Senate Majority Leader Calls for Additional Climate Change Related Hearings

Senate Majority Leader Chuck Schumer directed new chairs of “all relevant committees to begin holding hearings on the climate crisis,” as the Biden administration has made combatting climate-change a priority of theirs. Speaker of the House Nancy Pelosi established the Select Committee on the Climate Crisis in 2019, but it is unclear on whether or not the Senate will form a similar, formal committee this Congress. 

Court Vacates Parts of EPA’s Ozone National Ambient Air Quality Standards

The U.S. Court of Appeals for the District of Columbia Circuit, the second highest federal court, found that three part of EPA’s 2015 and 2018 rules implementing the National Ambient Air Quality Standards for Ozone did not comply with the Clean Air Act. The court wrote that the rules either “contravene the statute’s unambiguous language,” or relay on an “unreasonable interpretation” of the Clean Air Act.  Specifically, the court found issue with EPA’s trading program, which allowed the use of permitting offsets to comply with ambient air quality standards—meaning states can no longer swap reductions of NOx for reductions of VOCs, or vice versa.  Additionally, the panel struck down two other provisions as well—one which allowed states to demonstrate they achieved air quality milestones via implementation-based measures instead of qualitative data, in addition to vacating requirements for contingency measures that must be included in state air plans in the event they miss their attainment deadlines. The 2018 rule allowed for measures that were already implemented to count as contingency plans, but the panel ruled that Congress had banned previously implemented measures from qualifying as contingency measures.

U.S. Fish and Wildlife Service Upholds Delisting of Grey Wolf

The U.S. Fish and Wildlife Service (FWS) sent a letter to several environmental organizations stating the previous administration’s decision to remove Endangered Species Act protections from grey wolves was made “using the best scientific and commercial data available,” and that it will be “implementing post-delisting management in cooperation” with government stakeholders. The FWS delisted the wolves in late 2020—stating that there were now more than 6,000 grey wolves in the contiguous U.S.

Additional Input Sought on Migratory Bird Rule, Implementation Delayed

The U.S. Fish and Wildlife Service delayed the implementation of the Migratory Bird Treaty Act to allow for additional engagement, and public comment opportunities, until March 8, 2021. The rule would bar prosecution of industrial activities which may inadvertently kill or injure protected species though a previous attempt to formalize this policy through agency guidance was struck down by federal courts.

Transportation

Litigation Paused over Revocation of California Waiver

Judges on the U.S. Court of Appeals for the District of Columbia agreed to pause litigation over the revocation of California’s Clean Air Act waiver, which allowed the state to regulate greenhouse gas emissions from vehicles more stringently than that of the federal government. The administration is likely to quickly issue new emissions requirements that fall somewhere between those issued by Presidents Obama and Trump. However, as these standards would only apply for vehicles through 2025 there is likely to be considerable negotiations over standards for 2026 and beyond.

USDOT Formally Announces COVID-19 Aid for State DOTs

The Department of Transportation announced the availability of aid for state departments of transportation provided in the Coronavirus Response and Relief Supplemental Appropriations Act passed by Congress in December. The aid includes  the apportionment of just under $10 billion in emergency aid through the department’s Surface Transportation Block Grant program which can be used for a wide variety of purposes beyond construction projects, including operations and administrative costs. The aid will remain available until Sept. 30, 2024, and does not require matching funds from the states.

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

Best,

Kristen

Additional Resources