NRI Standing Committee Newsletter | March 1, 2021

3/1/2021

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, 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 President Biden Cabinet Members

Two of President Joe Biden’s cabinet members were confirmed - Tom Vilsack was confirmed 92-7 as Secretary of the U.S. Department of Agriculture (USDA). Vilsack served as Agriculture secretary for eight years during the Obama administration, and Jennifer Granholm was confirmed 64-35, as Secretary of the U.S. Department of Energy (DOE). Granholm was previously a two-term governor of Michigan.

EPA Asks Court to Freeze Clean Power Plan Repeal Litigation, Tells States CPP Not Revived

The Environmental Protection Agency (EPA) asked the U.S. Court of Appeals for the D.C. Circuit to freeze an order vacating the president’s repeal of the 2015 Clean Power Plan final rule, ensuring that the rule would not go into effect and create new obligations for states while the EPA develops new standards for power plant greenhouse gas emissions.

The action was followed by a memo to regional offices from the EPA’s Office of Air and Radiation which made clear that the vacatur of the Affordable Clean Energy (ACE) Rule would not result in any obligations for states to submit Greenhouse Gas Emission plans in the interim period between rulemakings, as the court “did not expressly reinstate the CPP,” and states also do not have to meet ACE’s July 2022 deadline for submitting plans to reduce GHG emissions.

Greenhouse Gas Emissions and Air Toxics Emissions Down in 2019

According to the U.S. Environmental Protection Agency’s Draft Annual Greenhouse Gas (GHG) Inventory, overall GHG emissions fell 1.8% in 2019, and in total—after accounting for sequestration—were nearly 13% below 2005 levels. Carbon dioxide in the transportation sector increased by 1.2%, while electric power generation decreased by 8.4%. The agriculture sector saw 2.6% increase from 2019, continuing a nearly 30-year trend. The agriculture data could spur additional action from the U.S. Department of Agriculture which was directed in the January 27 executive order to solicit input from farmers, ranchers, and others within the community on how to best use federal programs to encourage agriculture practices which increase carbon storage and reduce carbon emissions.

Additionally, according to EPA data, emissions for three criteria air pollutants and mercury from powerplants fell within the contiguous United States. Sulfur dioxide and nitrogen oxide emissions fell by 19% and 16%, respectively, while carbon dioxide emissions and mercury fell by 11% and 17% respectively. The agency indicated low electricity demand as a contributing factor in the decrease.

Agriculture

U.S. Farm Profits Won’t Reach 2020 Levels for a Decade

The USDA projected that despite a continuous rise in agricultural sales through 2030, profits are anticipated to be lower—dropping from $121.1 billion in 2020, to $100.1 billion in 2021, and the fluctuating between $99.3 and $109.8 billion through 2030. Direct federal assistance payments accounted for more than a third of U.S. farmers’ $121.1 billion in net income in 2021.

EPA’s Office of Inspector General Says Changes Needed for State Pesticide Registration Program

The EPA’s Office of Inspector General released a report stating that the agency’s state pesticide registration program—the Special Local Needs Program—needs significant management-control and other improvements to effectively promote risk reduction and pollution prevention. The program allows states to register pesticides where a federally registered pesticide product is not available, or for use of pesticides which are already registered but not yet approved for a specific crop or use such as existing or imminent pest problems in specific states.

U.S. Farm Exports to China Expected to Hit a Record High

Per the USDA’s latest quarterly outlook for U.S. Agricultural Trade, U.S. farm exports are projected to be $157 billion, with China expected to hit a record $31.5 billion during 2021—remaining the largest U.S. agricultural market in FY 2021, followed by Canada and Mexico. Soybean exports are forecasted to be $1.1 billion higher to $27.4 billion, and livestock, dairy, and poultry exports are forecast up $300 million to $32.6 billion.

EPA Agrees with Limiting of Biofuel Quota Waivers for Refineries

The EPA announced that it will side with renewable fuel producers in HollyFrontier Cheyenne et al. v. Renewable Fuels Association et al., agreeing with a Tenth Circuit Court of Appeals ruling that found refineries are only eligible for waivers exempting them from federal biofuel blending mandates if they have continually received the exemptions beginning when the program began in 2011. The previous administration told the court in 2019 that all small refineries should at least be eligible to request exemptions.

Energy

DOE Issued an Emergency Power Order for Texas Power Plants

The DOE issued an emergency power order for Texas as requested by the Electric Reliability Council of Texas (ERCOT), authorizing producers to operate at maximum output levels due to the rolling blackouts caused by the arctic freeze, and to exceed emissions requirements. The emergency order applied predominantly to coal and natural gas plants and stipulated that ERCOT should "exhaust all reasonably and practically available resources" to "minimize an increase in emissions."

DOI Postponed Additional Oil and Gas Lease Sales

The Department of Interior (DOI) postponed oil and gas lease sales scheduled in March for four Western states and rescinded the authorization for a planned sale of drilling rights in the Gulf of Mexico. The moves are consistent with President Joe Biden’s Jan. 27 executive order calling for a moratorium in federal oil and gas leasing until the government completes a “comprehensive review and reconsideration of federal oil and gas permitting and leasing practices.”

DOE is Reviewing Energy Efficiency Rules

The Department of Energy (DOE) announced that it would review several rules on energy efficiency standards for appliances issued by the previous administration for products such as furnaces, water heaters, clothes washers and dryers, shower heads, dishwashers and certain lightbulbs. The action is in line with the Jan.20 executive order which ordered an immediate review of federal agency actions taken during the previous administration, and if appropriate to consider suspending, revising, or rescinding the actions.

Bipartisan Bill to Extend Carbon Capture Tax Credit Reintroduced

Representatives David McKinley (R-W.Va.) and Marc Veasey (D-Texas) reintroduced legislation that would extend the federal 45Q tax credit until 2036 to incentivize carbon capture, utilization and storage (CCUS) projects. The current credit expires in 2026—the lawmakers originally introduced the bill at the end of last year, as lawmakers worked to extend a variety of energy credits, and Congress ultimately settled on a two-year extension for 45Q as part of the 2021 omnibus package.

Environment

Sage Grouse Land Withdrawal Cancellation Reversed

The U.S. District Court for Idaho struck down the 2017 decision by the Bureau of Land Management to cancel a proposed ban on new mineral mining claims within “sagebrush focal areas.” The Obama administration planned to withdraw roughly 10 million acres of sagebrush land in six states from new mining activity as part of its sagebrush protection plans and placed a two-year moratorium on new mining claims wile BLM conducted an environmental impact statement on the merits of such a withdrawal, which the Trump administration cancelled. The court’s order indicated that the Trump administration’s decision to cancel the proposal was in violation of the Administrative Procedures Act, and failed to provide a “reasoned justification,” for changing position on the need for withdrawing the lands, but rejected claims that BLM violated the National Environmental Policy Act. The ruling directs the administration to reconsider the 2017 decision and reevaluate whether the withdrawal is needed for sage grouse conservation. It is unclear right now whether the Biden Administration will formally reopen the proposal.

EPA Proposes Final Regulatory Determination for PFOA and PFOS

The EPA reissued final regulatory determinations for two per- and polyfluoroalkyl substances, or PFAS: perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), starting the process to set national drinking water standards under the Safe Drinking Water Act. The action follows a letter from Senator Shelley Moore Capito (R-W.Va.), Ranking Member of the Senate Environment and Public Works Committee, calling on the agency to promptly publish its proposed regulatory determination in light of the regulatory freeze prompted by the Biden administration.

White House Council of Environmental Quality Removes GHG Guidance

The White House Council of Environmental Quality (CEQ) rescinded the previous administration’s 2019 guidance which required agencies to take a federal project’s greenhouse gas (GHG) into account only when substantial to warrant quantification and practicable to do so. The decision aligns with the Jan. 20 executive order which directed CEQ to rescind the guidance and ordered the agency to review and update guidance on how to consider climate change when conducting reviews under the National Environmental Policy Act.

DOI Revokes Order Implementing Changes to LWCF—Including State Veto Power

The Department of Interior (DOI) rescinded an order that gave states and local governments veto power over land acquired under the Land and Water Conservation Fund (LWCF)—the order signed by former Secretary David Bernhardt required the state’s governor or local county government to sign off on any LWCF acquired land. Additionally, the DOI’s recent order directs the National Park Service to revise the LWCF Assistance Manual to remove the policies implemented in the previous order, and reinstate pre-existing implementation of the LWCF state assistance program and Outdoor Recreation Legacy Partnership program. The latter is a LWCF competitive grant program addresses recreation challenges in underserved areas. The decision followed a letter from 90 House Democrats and Republicans asking the DOI to reverse the changes, as they were “inconsistent with statute and contradict Congress’ express intent”

Funded by revenues from offshore oil and gas production, the LWCF provides funds for federal acquisition of land and waters, as well as grants to states for outdoor recreational facilities. It supports the protection of federal public lands and waters, including national parks, forests, wildlife refuges and recreation areas, along with voluntary conservation on private land. It also provides grants to states to acquire and develop public parks and other outdoor recreation sites, to protect and conserve the habitat of threatened and endangered species, and to protect environmentally sensitive forest lands. Overall, the LWCF has protected land in every state and supported more than 41,000 state and local park projects. The Great American Outdoors Act made annual funding for LWCF mandatory at $900 million. This amount is nearly double the funding Congress provided to the program in fiscal year 2020, and it is the first time the program has been guaranteed full, annual funding since its creation in 1964.

Lawsuit Challenging EPA’s Section 401 State Water Quality Certification Rule Paused

The U.S. District Court for the District of South Carolina is holding litigation as requested by EPA challenging EPA’s Clean Water Act Section 401 Certification Rule, which places significant new limits on state authority to certify, condition or deny any activity that would result in the discharge of pollutants into waters of the United States. EPA is in the process of reviewing the rule for “potential suspension, revision, or rescission,” in accordance with the president’s Jan. 20 executive order. NCSL was strongly opposed to the rule and its restrictions on state authority.

Public Lands Package Passes House with White House Support

The House of Representatives passed H.R. 803 -- the Protecting America’s Wilderness and Public Lands Act,--. 227-200. A multi-bill public lands package, the bill would designate approximately 1.49 million acres of public lands as wilderness and add more than 1,000 river miles to the National Wild and Scenic Rivers System. Additionally, the bill would withdraw more than 1.2 million acres of public lands from new oil and gas mining claims. Amendments to the bill include language authorizing the Outdoor Recreation Legacy Partnership (ORLP) initiative, a competitive grants program to build parks in underserved communities, and a proposal which would require both the DOI and USDA to gather data on the recreational permitting process and if it is working or not for environmental justice communities. Other amendments included one requiring a study to determine whether any land withdrawals facilitated by the legislation contain geothermal resources or minerals needed for battery storage, renewable energy technology or electric vehicles. The bill has been supported by the White House but is unclear if it will move in the Senate.  

EPA Extends Comment Period to Impose More Stringent NOx Limits on Individual State

The EPA has extended the comment period on whether or not to require Pennsylvania to revise its state implementation plan to include additional control measures to establish daily limits on nitrogen oxide emissions from coal-fired power plants, and whether or not the agency has the authority to take such action. The request for extension came from a majority of states with the Ozone Transport Commission

EPA Takes First Step Towards HFC Regulation

The EPA has taken the first step toward limiting hydrofluorocarbons (HFC) as directed by the American Innovation and Manufacturing Act of 2020, part of the FY 2021 Omnibus package. The agency is proceeding with setting production and consumption baselines to gauge the phase-down of HFCs. The bill authorized a 15-year phasedown of HFCs, greenhouse gases found in refrigeration and air conditioning, and pre-empts state and local governments from regulating essential designated HFC uses for a period of five years, unless extended by EPA to a maximum of 10 years should there still be no substitute chemical for replacement use. Those designated essential uses include defense sprays, medical inhalers, semiconductor manufacturing, and mission-critical military uses.

Transportation

DOT Announces 2021 INFRA Grant Notice

The Department of Transportation announced it is seeking applicants for the fiscal year 2021 round of Infrastructure for Rebuilding America (INFRA) Grants, with a new focus on transportation projects that not only improve safety, [and] apply transformative technology,” but also, for the first time, “explicitly address climate change and racial equity.” The 2021 funding total for INFRA Grants is $889 million. - INFRA grants were created in the Fixing America’s Surface Transportation Act of 2015 and may be used to fund a variety of components of an infrastructure project. Eligible INFRA project costs may include: reconstruction, rehabilitation, acquisition of property, environmental mitigation, construction contingencies, equipment acquisition, and operational improvements directly related to system performance.  

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

Best,

Kristen

Additional Resources