NRI Standing Committee Newsletter | July 19, 2022

7/20/2022

ncsl newsletter

Good morning! 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, 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.

NRI Committee Policy Review Call

As a reminder, all committee members are invited to attend a full-committee virtual meeting (Zoom) on Friday, July 22, 2021, at 2 p.m. ET. The meeting will give members another chance to review the items on the committee’s business meeting agenda for the 2022 NCSL Legislative Summit in Denver. 

Top Stories

Biden Announces Support for Suspension of Federal Gas Tax

President Joe Biden announced his support for a three-month suspension of the federal taxes on gasoline (18.4 cents per gallon) and diesel (24 cents per gallon). However, it’s unclear if the proposal can pass Congress as thus far the reaction to the proposal has not been positive. If enacted, the move would reduce revenue by about $70 million per day and would follow the actions of six states to suspend their own gas taxes.

Supreme Court Restricts EPA’s Authority to Regulate Carbon Dioxide Emissions

The Supreme Court held 6-3 that the U.S. Environmental Protection Agency lacked congressional authority to establish a cap on carbon dioxide emissions via generation shifting.

The Clean Air Act gives the EPA the authority, for new and existing power plants, to develop air emission standards that reflect “the best system of emission reduction.” However, the court ruled that generation shifting—the act of shifting electricity production from coal-fired power plants to natural-gas-fired plants and wild and solar energy—exceeded the EPA’s authority because the agency doesn't have “clear congressional authorization” to regulate in that manner. The decision, however, leaves intact the agency’s authority to continue setting technology-based standards to improve emissions reductions. Because the Clean Power Plan rulemaking was repealed by the Trump administration, and its replacement—the Affordable Clean Energy rule—was vacated and remanded to the EPA, the decision will not immediately impact states as currently no federal obligation for states exists. For more information read the blog post by the State and Local Legal Center here.

Recovering America’s Wildlife Act Passes House of Representatives

The U.S. House of Representatives passed the Recovering America’s Wildlife Act of 2021, 231-190, on June 14. The bill would amend the existing Pittman-Robertson Act, which funds the restoration and improvement of wildlife habitat and management, to provide an additional $1.3 billion annually for states and territories to assist in their efforts to conserve, restore and protect habitats via the congressionally mandated State Wildlife Action Plans. Additionally, the bill provides $97.5 million annually for tribal wildlife conservation efforts. The bill awaits action in the Senate, where a slightly different version advanced 15-5 out of the Environment and Publics Work Committee. It’s unclear when the bill will see Senate action as questions remain over “pay-fors.”

EPA Issues Health Advisory Levels for PFAS Chemicals, Releases $1B in IIJA Funding

The EPA announced drinking water health advisories for several per- and polyfluoroalkyl (PFAS) chemicals under the Safe Drinking Water Act. Specifically, the agency released two interim health advisories for PFOA and PFOS, and two final advisories for GenX and perfluorobutanesulfonic acid, which were developed as PFOA and PFOS replacements, respectively. A health advisory level is the concentration of drinking water contaminant for a specific exposure duration, at or below which exposure is not anticipated to lead to adverse human health effects. The EPA’s health advisories are nonenforceable and nonregulatory and provide technical information that federal, state and local officials can use to develop monitoring plans, investments in treatment solutions, and future policies to protect the public from PFAS exposure. The agency’s actions align with its PFAS Action Plan and with its plan to propose a PFAS National Drinking Water Regulation in fall 2022.

Relatedly, the EPA also opened its process for states and territories to apply for $1 billion—the first of $5 billion in grant funding from the federal infrastructure law—to address PFAS and other emerging contaminants in drinking water. States are to use the funding for eligible emerging-contaminant projects or activities in small or disadvantaged communities, or both. To receive funding, states and territories should submit a letter of intent by Aug. 15, 2022.

USDOT Proposes Rule Requiring States to Measure Transportation Emissions

The Federal Highway Administration proposed a rule that would require states and metropolitan regions to set targets for carbon dioxide emissions reductions and report on their progress. In its proposal, the agency said 24 states and Washington, D.C., are already setting transportation emission targets. The agency proposed a similar rule in 2016, though it was never implemented. Should the rule be finalized, it will almost certainly face a lawsuit in light of the Supreme Court’s ruling earlier this year limiting the federal government’s power to regulate carbon emissions.

Endangered Species Act Rulemakings Vacated, Habitat Rule Revised

The U.S. District Court for the Northern District of California vacated three Trump-administration rulemakings surrounding the Endangered Species Act, going beyond the Biden-administration’s request to merely remand them back to their respective agencies. The rulemakings vacated were a “blanket” rule that had extended "take" protections applying to endangered species to threatened species as well; a rule that allowed regulators to factor in economic impacts when making listing decisions and critical habitat designations; and the final that revised interagency consultation procedures.

Relatedly, the Fish and Wildlife Service and the National Marine Fisheries Service issued a joint rule repealing the Trump administration’s definition of habitat, concluding that a one-size-fits-all definition could impede the protection of critical habitats.

BLM Allows Permitting of Carbon Capture and Sequestration on Federal Land

The Department of the Interior’s Bureau of Land Management released a memorandum stating that it will allow carbon capture and sequestration on BLM land in the Western U.S. Pipelines, storage tanks, pumps, compressor stations, power plants, electric transmission lines, injection wells and other facilities would be permitted under the policy. BLM “may” complete an environmental review of its program permitting CCUS, and any rights of way must comply with the Safe Drinking Water Act and be permitted by the EPA’s underground injection control program. No such storage projects have yet been permitted, but applications exist in Montana and Wyoming.

DOI Releases Proposed 5-Year Plan for Offshore Oil and Gas Leasing

The Department of the Interior issued its first proposed plan for the next five-year (2023-28) offshore oil and gas leasing program. The proposal includes two main alternatives: one would have the department offer up to 11 oil and gas auctions over the five years, though only in areas that have existing infrastructure; the other would not offer any new auctions.

FY 2023 Appropriations Continue Without Agreement to Ensure Passage

The U.S. House of Representatives is planning to vote on all 12 of the annual appropriations following their approval by the Appropriations Committee. However, the House is proceeding without an agreement with the Senate, which has not yet approved any of the 12 bills at the committee level. Congress will need to enact short-term continuing resolutions until both chambers and parties agree on spending levels and other policy provisions. 

White House Releases Spring 2022 Unified Agenda

The White House released the 2022 Spring Unified Agenda of Regulatory and Deregulatory Actions, which identifies the executive branch's plans through 2023 for finalizing new rules and issuing new proposals. The agenda offers details of pending rules and deadlines for anticipated completion, though these are often guesstimates and are regularly pushed further out into the future.

Infrastructure Investment and Jobs Act Updates

For a summary of the Infrastructure Investment and Jobs Act, visit NCSL’s webpage. Updates on agency actions are broken down below by policy topic.

Energy

DOE Announces $2.3B Grid-Resiliency Formula Program

The Department of Energy announced the start of its new $2.3 billion formula grant program aimed at improving the resilience of states’ electric grids against wildfires, extreme weather and other natural disasters. States must apply annually to the DOE for their funding, with grants made according to a formula that includes such parameters as population, land area and the historical precedence for experiencing disruptive events. States can use the funds, which were included in the Infrastructure Investment and Jobs Act, on a range of projects, including hardening the grid, building distributed energy resources and setting up microgrids.

  • DOE Publishes $550 Million in Formula Amounts for Energy Efficiency and Conservation Block Grant Program for Local Governments, States and Tribes—read more
  • DOE Opens Up $500 Million for Carbon Capture and Underground Storage Projects in New Infrastructure Funding—read more

Environment

Report on Defining Disadvantaged Communities Released 

The EPA released a report for states defining disadvantaged communities (DACs). States have broad discretion in defining DACs, establishing loan rates and loan terms, deciding how much of their capitalization grant to award as additional subsidy, and establishing criteria for the distribution of additional subsidy.

The federal infrastructure bill amended the Safe Drinking Water Act to expand the forms of additional subsidy states may provide for projects serving disadvantaged communities. Grants; negative interest loans and loan forgiveness; and buying, refinancing or restructuring debt are allowable forms. The law also increased the minimum amount of additional subsidy that states must provide to disadvantaged communities, from 6% to 12% of their annual federal capitalization grant.

As many of the state DACs were developed prior to the passage of the infrastructure law, the EPA released the report to serve as a resource for states interested in revising their DAC assistance programs.

Interior Announces $36M to Safeguard Water Supplies, Funds Water Efficiency Projects

The Department of the Interior announced a $36.1 million investment, including $26.7 million in funds from the federal infrastructure law, to safeguard local water supplies in the wake of record drought across the West. Twenty-seven projects in 12 states and a first-ever project in Puerto Rico will be awarded funding to advance quantifiable and sustained water savings by protecting watersheds impacted by wildland fire, restoring aquatic habitats and stream beds, and advancing other environmental restoration projects to mitigate drought-related impacts.

Related, the department also announced a $25.5 million investment in water efficiency and drought-resilience projects in eight Western states via WaterSMART grants funded by the infrastructure bill. Fourteen projects will be awarded funding to help local communities improve water-use efficiency by lining canals, upgrading water meters, installing automated gates to control water flow and making other infrastructure improvements.

Interior Announces $103M for Wildfire Mitigation and Resilience

The Department of the Interior announced $103 million in fiscal year 2022 for wildfire risk reduction efforts and the creation of an interagency wildland firefighter health and well-being program, as directed by the infrastructure law. The breakdown: $80.9 million will go to accelerating the pace and scale of fuels management work, which reduces risk through strategic removal of potential wildfire hazards, and $19.4 million will go to accelerating the pace and scale of the Burned Area Rehabilitation Program, which supports post-wildfire landscape recovery.

Transportation

  • Federal Transit Administration Makes Nearly $300 Million in New Infrastructure Funds Available for Expanding Ferry Service—read more
  • USDOT Announces All 50 States, DC and Puerto Rico Now Have Alternative Fuel Corridor Designations; Required Step in Receiving Federal Infrastructure Funds—read more
  • Federal Aviation Administration Announces Nearly $1 Billion in Infrastructure Law Funding for New Airport Terminals—read more
  • Federal Railroad Administration Opens Up $573 Million in Available Funding for the New Infrastructure Law Program, Railroad Crossing Elimination Program—read more

Agriculture

  • The Senate Committee on Agriculture, Nutrition and Forestry approved two bills—S.3870 and S.4030­—aimed at making the meat industry more competitive. The first establishes an oversight office for meat and poultry markets, and the second would require packers to buy a set amount of cows in an open cash market versus outside negotiations.
  • The EPA proposed new limits on atrazine, a herbicide for grasses and weeds, with the aim of preventing the pollutant from entering the nation’s waters. The proposal includes an aerial ban, application limits when soil is saturated, and chemical weight limits per acre. Read More

Energy

  • The Federal Energy Regulatory Commission Proposes Interconnection Reforms to Address Queue Backlogs—read more
  • DOE Announces New Partnership with 11 States to Help Develop the U.S. Offshore Wind Supply Chain—read more
  • DOE Begins Process of Establishing a National Uranium Reserve—read more
  • DOE Proposed Increasing Energy Efficiency Standards for Home Furnaces—read more

Environment

  • The EPA announced $6.5 Billion for FY 2022 for the Water Infrastructure Finance and Innovation Act (WIFIA) program and the State Infrastructure Financing Authority WIFIA (SWIFIA) program. Read More
  • The DOI released $549.4 million in payments in lieu of taxes funding for FY 2022; more than 1,900 state and local governments will receive the funding. Read More
  • The Federal Emergency Management Agency’s Resilient Nation Partnership Network released a new resource for building climate resiliency aimed at a variety of stakeholders. Read More
  • The EPA released an initial list of programs covered under the Biden administration’s Justice40 Initiative, which aims to deliver 40% of the overall benefits of climate, clean energy, affordable and sustainable housing, clean water, and other investments to disadvantaged communities. Read More
  • GAO releases report discussing harmful algal blooms and hypoxia, calling on agencies to take more action to manage risks associated with the two. Read More

Transportation

  • President Biden Nominates Phil Washington, CEO of Denver International Airport, as Next FAA Administrator—read more
  • Federal Aviation Administration Grants Beyond Visual Line of Sight (BVLOS) Drone Waiver for Power Line Inspection in 7 states—read more
  • USDOT Publishes First-Ever Airline Passengers With Disabilities Bill of Rights—read more
  • NHTSA Finalized a Rule Requiring Rear-Impact Guards on Trailers and Semitrailers to Protect Occupants of a Car—read more
  • SCOTUS Rules in Favor of State Meal and Rest Break Laws Over Airlines—read more
  • USDOT Awards $75 Million in Emergency Funds to Repair Yellowstone National Park—read more
  • FAA Proposes New Fuel Efficiency Requirements for Commercial Airplanes Starting in 2028—read more
  • U.S. House of Representatives Passes AIIM Act to Provide Federal Funds for Air Taxis and Vertiports—read more

Thanks for reading! We’ll be back next month to fill you in on other pressing federal news!

Best,

Kristen and Ben

Additional Resources