NRI Standing Committee Newsletter | Jan. 15, 2021

1/15/2021

ncsl newsletter

We hope you are all staying healthy and safe given the tumultuous events our nation has borne witness to at the start of the year. NCSL has released a statement regarding last week’s events at the U.S. Capitol. 

Continuing on with our biweekly 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

Congress Enacts FY 2021 Appropriations Package, President Signed Into Law 

Congress passed all 12 appropriations bills for fiscal year (FY) 2021 in a single omnibus measusre by a 359-53 vote in the House and 92-6 in the Senate. The $1.4 trillion package fully funds the federal government through Sept. 30, 2021. Within the omnibus package is funding for six of the major federal agencies covered by NCSL’s Natural Resources and Infrastructure (NRI) Committee: the U.S. Department of Agriculture (USDA), the Department of Energy (DOE), the Department of Interior (DOI), the Department of Transportation (DOT), the Environmental Protection Agency (EPA) and the Army Corps of Engineers (the Corps). For a full summary, read NCSL’s Info Alert here.

Notable increases and decreases in funding included:

  • $3.9 billion for rural development programs via the USDA, with $730 million to expand broadband service.
  • $62.5 million for the State Energy Program and $310 million for the Weatherization Assistance Program.
  • Full funding for the Land and Water Conservation Fund as required by the Great American Outdoors Act, of which $405 million is for federal land acquisitions and $495 million is for financial assistance to states to administer grants for qualifying projects.
  • $49.1 billion for the Federal Highway Administration, $166 million below 2020 levels, with $46.4 billion of those funds suballocated to state and local governments.
  • $4.31 billion for State and Local Tribal Assistance Grants via the EPA–a $68 million increase.
  • $7.8 billion for the Corps, $145 million higher than FY 2020, with construction and operations and maintenance receiving increases.

Additional COVID-19 Relief Passed by Congress

In addition to funding provisions, the omnibus measure discussed above also included $900 million in COVID-19 relief provisions. While direct payments and unemployment benefit extensions were the most expensive provisions, the bill did include relief for areas covered by the committee. Specifically, the bill includes $13 billion in new agricultural aid, including direct payments to farmers and producers, protections for food and agriculture workers, and specific support for smaller producers. The transportation sector was also allocated $45 billion. Most important to states is the $9.8 billion directly allocated to state departments of transportation through the Surface Transportation Block Grant Program, though now with a 100% federal share and are available until Sept. 30, 2024. The bill also included $14 billion for transit agencies though a significant percentage of these funds is for urban transit systems. For a summary on NRI-related COVID-19 relief provisions, read NCSL’s Info Alert here. For a full summary on the provisions, visit NCSL’s website.

Biden Administration will Halt All Action on Non-Finalized Rules

The incoming White House press secretary–Jen Psaki–announced President-elect Joe Biden will issue a memo effective Inauguration Day that will freeze new rules that have been announced, but not yet published in the Federal Register.

Agriculture

USDA Seeking Members for Urban Agriculture Committee

The USDA announced they are seeking members for a new advisory committee on urban agriculture. The committee will advise the secretary of agriculture on the development of policies and outreach relating to urban, indoor and other emerging agricultural production practices as well as identify any barriers to urban agriculture. Interested individuals or organization may nominate themselves or others by March 5. 

USDA Announces Continuation of Farmers to Families Food Box Program

The USDA announced it will purchase an additional $1.5 billion worth of food for nationwide distribution through the Farmers to Families Food Box Program. Additional funding for the program was included in the COVID-19 relief package. It is the fifth round of purchases by the USDA and will again purchase combination boxes to ensure access to fresh produce, dairy products, fluid milk and meat products, as well as seafood products, which will also be included in this round.

USDA Plans Future Rulemaking on Genetically Engineered Animals

The USDA announced an advanced notice of proposed rulemaking (ANPR) concerning federal regulations of agricultural animals modified or produced by genetic engineering. This ANPR would transition portions of the Food and Drug Administration’s (FDA) pre-existing animal biotechnology regulatory oversight to the USDA, though the USDA proposes to continue consulting with the FDA to ensure reviews benefit from the FDA’s expertise, while providing developers with a one-stop-shop for their products at the USDA.

Energy

Energy Act of 2020 Signed Into Law

Congress passed the Energy Act of 2020 as part of the FY 2021 omnibus appropriations bill.  It includes provisions from both House and Senate proposals released earlier this year and is the first major comprehensive update to the nation’s energy policies in 13 years. Overall, the bill prioritizes research, development, and demonstration across a broad spectrum of energy technologies within the DOE, including solar and wind power, energy storage, grid modernization, energy efficiency, nuclear power, carbon capture utilization and storage, and more. For a summary of the provisions, read NCSL’s Info Alert here.

FERC Unveils New Cyber Incentives

The Federal Energy Regulatory Commission issued proposed a rule to create incentives for utilities to add cybersecurity protections beyond the current minimum requirements. Specifically, the proposal seeks to incentivize utilities to go beyond the North American Electric Reliability Corporation's minimum Critical Infrastructure Protection requirements by allowing utilities to recoup certain costs.

DOI Holds Oil and Gas Lease Sale in the ANWR and Opens Arctic Coast to Oil and Gas Development

The DOI held an oil and gas lease sale in the Arctic National Wildlife Refuge, which resulted in only $7 million of federal revenue. In total, just 11 of the 22 sections of the ANWR's coastal plain offered for sale received bids, and in all but two cases Alaska’s Industrial Development and Export Authority was the sole bidder. It is unclear if any of the parcels will see future production. Additionally, the DOI opened 80% of the mineral estate in the National Petroleum Reserve–Alaska to oil and gas development. The National Petroleum Reserve-Alaska is the largest single block of federal land in the nation.

DOE Issues Order Regarding Chinese-made Electrical Equipment

The DOE issued a Prohibition Order Securing Critical Defense Facilities designed to reduce the risk that entities associated with the People’s Republic of China pose to the U.S. bulk-power system. It forbids the "acquisition, importation, transfer, or installation" of Chinese-made electric equipment installed by a utility anywhere between a military base and the next nearest substation. The order took effect on Jan. 15 but does not appear to call for removing existing equipment.

Final Carbon Capture and Storage Tax Credit Rule Released

The U.S. Department of Treasury issued a final rule outlining guidelines for those companies using a tax credit for carbon capture and storage projects.

Environment

of the known or potential LSLs in the inventory at the time of which the action level was exceeded. This is a reduction; previously water systems were required to remove 7% of known or potential LSLs if the action level is exceeded at more than 10% of the taps sampled.

Additionally, the rule will now require water systems to take drinking water samples at 20% of elementary and childcare facilities annually, excluding those that were built or which had complete plumbing replacement after January 2014. The current rule does not require such testing, and this addition has sparked concern that the new rule institutes an unfunded mandate on state and local governments. For more information, read NCSL’s Info Alert here.

Relatedly, the EPA also issued a final rule to reduce the allowable amount of lead in dust on a surface following the completion of an abatement activity. Those levels match the EPA’s 2019 updated standards describing volumes of lead-containing dust that endanger children’s developing brains.

EPA Retains 2015 Ozone NAAQS

The EPA announced it was maintaining the 2015 ozone National Ambient Air Quality Standards (NAAQS). The Clean Air Act requires the agency to set NAAQS for criteria pollutants in addition to reviewing and revising them periodically should the agency deem it necessary to ensure the standards provide protection for public health. The 2015 standards increased the stringency of levels of ozone to 70 parts per billion (ppb) from the 2008 standard of 75 ppb. 

SCOTUS Will Review Refinery Waivers

The Supreme Court agreed to hear an appeal regarding the Renewable Fuel Standard and the EPA’s authority to grant small refineries exemptions from the biofuel-blending mandates following a January 2020 ruling from the 10th Circuit Court of Appeals in which the EPA was found to have wrongly issued waivers to certain refineries.

House Will Allow Climate Change Legislation to Avoid PAYGO Requirements

The House of Representatives included a provision when adopting its rules for the 117th Congress that would exempt legislation dealing with climate change from pay-as-you-go or PAYGO requirements. PAYGO typically requires provisions that would increase the deficit to be offset with spending cuts or revenue increases elsewhere.

EPA Finalizes the “Strengthening Transparency in Regulatory Science” Rule

The EPA finalized a rulemaking which requires the agency, when promulgating significant regulatory actions, or developing scientific information, the EPA to give greater consideration to studies where the data is public and available for independent validation.  The “Strengthening Transparency in Regulatory Science” rule has already been challenged, with petitioners arguing that the rule itself is in violation of the Administrative Procedures Act. It will almost assuredly be undone by the incoming administration.

Congress Overrides President’s Veto of the FY 2021 NDAA

Congress overrode the president’s veto of the FY 2021 National Defense Authorization Act (NDAA), HR 6395. It is first time overriding a veto from this president. 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 study on the health effects of PFAS exposure among service members.
  • Establishing an interagency body to coordinate federal research on PFAS.
  • Prohibiting the Department of Defense from purchasing certain PFOA or PFOS containing products such as cookware, furniture or other products.
  • 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 (GHG). The Pentagon report released last year disclosed that in 2017, the agency had more carbon dioxide emissions than 140 countries.

EPA Issues New Rule Limiting Its Ability To Regulate in the Future

The EPA finalized a new rule concerning GHG emissions that establishes a 3% benchmark for any future regulation of GHG  from oil and gas production, refineries and several other industries. Specifically, any stationary source whose industrywide emissions make up less than 3% of U.S. GHG pollution—which appears to include all but the electric utility industry—“are necessarily insignificant without consideration of any other factors” and would therefore not qualify for regulation under Section 111(b) of the Clean Air Act: “EPA is basing a decision to apply a threshold of 3 percent on the relative contribution of regulating source categories that contribute significantly to the overall impact of climate change,” Power plants make up 27% of total U.S. GHG emissions, according to the EPA. Setting the threshold at 3% effectively cuts off all other industries from regulation. The next three biggest categories—oil and gas production, refineries and industrial boilers—fall between 2.5% and 3%.

EPA Approves Florida to Regulate Federal and State Wetlands

The EPA approved Florida's request to become only the third state (in addition to Michigan and New Jersey) to take over wetland regulation under section 404 of the Clean Water Act (CWA). Developers of projects that affect state and federal jurisdictional wetlands or surface waters must currently obtain both a state permit and a Section 404 dredge or fill permit and this approval will allow Florida to handle both.

Army Corps Enacts Changes to its Implementation of Clean Water Act

The Corps issued many changes to its streamlined CWA permitting program, commonly referred to as Nationwide Permit 12, that allows swift approval of pipelines, utility lines, water and sewer pipes and other projects that can be used on projects the Corps determines will have minimal impact on federally protected streams and wetlands. The changes would reduce the types of projects eligible though the changes also reduce several previously existing requirements on project developers.

NOAA Reported 22 Disasters in 2020 and the Fifth Warmest Year On Record

The National Oceanic and Atmospheric Administration (NOAA) reported an “unprecedented” 22 billion-dollar disasters in 2020 with total damages exceeding $95 billion for all 22 events. Along with that cost, the NOAA reported that the average temperature across the contiguous U.S. in 2020 was 54.4 degrees F (2.4 degrees above the 20th century average), making 2020 the fifth warmest year on record. Per the NOAA, the events signal a trend of growing disasters that have causes $2.2 trillion in damage since 1980.

EPA Finalizes GHG Standards for Aircraft

The EPA finalized GHG emission standards for new airplane designs and in-production varieties in 2028. The rule aligns with that of the International Civil Aviation Organization’s standards to reduce GHG emissions set in 2016.

New Rule Will Allow Interior Department to Consider Cost of Protecting Habitat

The DOI released a new final rule allowing the department to choose not to protect the habitat of imperiled plants and animals if it’s deemed too costly. Specifically, the rule allows the secretary to exclude areas from “critical habitat” designations due to the economic impact of restricting development and land uses in those areas. National security and other factors also can be reasons to avoid protecting critical habitat.

FWS Issues Two Major Rules on Federal Bird Protections

The Fish and Wildlife Service (FWS) finalized a rule that will make changes to what the federal government considers violations of the Migratory Bird Treaty Act 1918, which protects over 1,000 species. The final rule codifies that prohibitions of the law applying only to actions specifically directed at protected birds, nests or eggs, such as illegal hunting—not activities that may inadvertently harm or kill birds, such as energy production. The Interior Department issued a memo in 2017 announcing this change, though the memo was withdrawn following a federal court ruling. It is unclear if the new rule will be undone by the incoming administrator or by the same court.

The FWS also finalized a new and streamlined special permit system for states aimed at ridding fisheries and other facilities of double-crested cormorants, a federally protected bird. States and tribes must use nonlethal methods before resorting to lethal control.

EPA and DOJ Impose Largest Ever TSCA Fine

The EPA and Department of Justice reached a $20.75 million settlement with Home Depot USA Inc. for widespread violations of EPA rules. The penalty is the largest ever under the Toxic Substances Control Act (TSCA) after the EPA identified hundreds of instances of violations of the EPA's Lead Renovation, Repair and Painting rule.

Transportation

FAA Finalizes New Drone Rules for Operations Over People, at Night, and Remote ID

The Federal Aviation Administration (FAA) issued two new final rules for unmanned aerial systems (UAS), more commonly known as drones. The new rules pertain to flights over people, moving vehicles, and at night as well as the remote identification of drones, commonly referred to as Remote ID. These two rules represent key actions towards integrating drone operations more fully into the national airspace and everyday life. One of the new rules allows for four categories of operations at night and over people, which was previously prohibited without an FAA waiver, and applies to drone pilots during commercial operations. The second covers Remote ID, provides for the identification of drones in flight as well as the location of their control stations, providing crucial information to law enforcement partners and other public safety officials. For more information, read NCSL’s Info Alert here.

Congress Passed the 2020 Water Resources Development Act

As part of the FY 2021 omnibus appropriations bill, Congress passed the Water Resources Development Act of 2020 (WRDA), 359-53 in the House and 92-6 in the Senate. The bipartisan bill is a compromise measure negotiated between House and Senate lawmakers based on each chamber’s own version. The WRDA, a biennially authorized bill, plays a key role in protecting, maintaining, and further developing our nation’s water infrastructure systems, including ports, waterways and historically clean and safe drinking water. Its passage provides states with added stability and certainty to meet certain water transportation infrastructure needs while also supporting the safety, environmental protection, and economic development of communities across the nation. The WRDA 2020 did not include provisions authorizing funding and financing opportunities to undertake clean and safe drinking water infrastructure projects, but NCSL will work with Congress to ensure these vital funding mechanisms are reauthorized in 2021. For more information on the WRDA 2020, read NCSL’s Info Alert here.

U.S. Railroads Compliant with Positive Train Control Measures

The Federal Railroad Administration announced that U.S. railroads have completed the installation of positive train control technology on all 57,536 required freight and passenger railroad route miles, prior to the Dec. 31, 2020 statutory deadline set forth by Congress via the Rail Safety Improvement Act of 2008. Positive Train Control (PTC) systems are designed to prevent train-to-train collisions, over-speed derailments, incursions into established work zones, and movements of trains through switches left in the wrong position.

U.S. Vehicle Fuel Economy Falls in 2019

EPA reported that average U.S. vehicle fuel economy fell in model year 2019–averaging 24.9 mpg, a decrease of .2 mpg of the first in five years. Preliminary data for model year 2020 vehicles—which may change before the EPA finalizes its next report in 2022—projects improvements of 0.8 mpg and 12 grams, which would represent new records. Automakers will use credits of compliance in previous years to account for the lower MPGs. This report showing a reduction in MPGs and an increase in emission standards is likely to pose a challenge to the incoming administration as it is anticipated to revise and strengthen vehicle emission requirements.

Federal Transit Administration Releases $14 billion in Aid for State and Local Governments

The Federal Transit Administration (FTA) announced a total of $14 billion in federal funding allocations provided through the Coronavirus Response and Relief Supplemental Appropriations Act of 2021 (HR 133) passed at the end of December. Specifically, $13.27 billion is allocated to large and small urban areas, with $678.2 million allocated to rural areas and tribes, and $50 million allocated for the enhanced mobility of seniors and individuals with disabilities. Similar to the CARES Act, the supplemental funding will be provided at 100% federal share, with no local match required, while also allowing recipients to use this funding for payroll and other operational needs. Answers to Frequently Asked Questions about this funding will be available on FTA’s website.

NHTSA Expands AV Pilot Program for State and Local Governments

The National Highway Traffic Safety Administration (NHTSA) announced its Automated Vehicle Transparency and Engagement for Safe Testing pilot program would become a full department program for all stakeholders, including state and local governments. The program provides an online, public-facing forum for sharing automated driving system on-road testing activities displaying whether companies or authorities are testing autonomous vehicles in certain areas within the U.S. and provides information about the testing taking place, including vehicle types, uses, dates, frequency, vehicle counts and routes.

The DOT also published an updated plan for regulating autonomous vehicles though it largely restates steps the administration has taken or proposed.

Nationwide Traffic Fatalities Likely Increased in 2020

NHTSA released updated 2020 traffic fatality projections showing an estimated 28,190 people died in the first nine months of 2020, representing an increase of 4.6 percent over the same period in 2019. This increase comes despite the fact that the number of miles driven was down by about 14.5% during that time. The agency said that it was “too soon to speculate on the contributing factors or potential implications of any changes in deaths on our roadways.”

DOT Finalizes Pipeline and Hazardous Materials Safety Administration Rule

The DOT finalized a rule amending the Federal Pipeline Safety Regulations to reduce “regulatory burdens on construction, maintenance, and operation of gas transmission, distribution, and gathering pipeline systems.” Under the Pipeline and Hazardous Materials Safety Administration’s current regulations, pipeline companies must report leaks, fires, explosions, and other incidents if they cause a death, a serious injury or more than $50,000 in property damage, among other criteria. The new rule would raise the threshold to $122,000 although companies will still have to report incidents that cause injuries or deaths. Other parts of the rule would allow companies to preform corrosion control inspections of exposed pipelines every five years instead of three.

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

Best,

Ben and Kristen

Additional Resources