NRI Standing Committee Newsletter | Oct. 15, 2021

10/18/2021

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, 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 Kicks ‘Appropriations Can’ Down the Road

Federal transportation funding was not included in the short-term continuing resolution Congress approved to fund the federal government through Dec. 3. This was an effort to force the House to approve the Senate infrastructure bill. When the House chose not to vote on that bill, Congress was forced to take immediate action to undo the lapse in federal transportation funding. The lapse lasted only two days, but the action caused 3,700 federal transportation workers to be furloughed and halted payments to states. A monthlong transportation funding extension was signed by the president Oct. 2. Expect another short-term extension if the House does not vote on the Senate’s bill by then.

EPA Issues Final Rule Establishing Program to Phase Down HFCs

In accordance with the American Innovation and Manufacturing (AIM) Act, enacted in December 2020, the Environmental Protection Agency issued a final rule establishing a comprehensive program to cap and phase down the production and consumption of hydrofluorocarbons (HFCs) by 85% over the next 15 years. The final rule establishes the HFC production and consumption baseline levels from which reductions will be made, establishes an initial methodology for allocating HFC allowances for 2022 and ’23, and creates a robust, agile and innovative compliance and enforcement system. Additionally, the rule outlines how the EPA is issuing allowances for specific applications listed in the AIM Act, such as mission-critical military applications.

DOI Announces Oil and Gas Lease Sale for Gulf of Mexico

The Bureau of Ocean Energy Management announced it will hold an oil and gas lease sale for the Gulf of Mexico in compliance with an order from a U.S. District Court. The November lease sales would be the first the Biden administration conducts after announcing a pause in sales while the department reviews the regulations surrounding the process in January 2021.

White House CEQ Proposes Changes to a 2020 NEPA Regulation

The White House Council on Environmental Quality (CEQ) proposed changes to a 2020 National Environmental Policy Act (NEPA) regulation that would again direct federal agencies to consider all "direct," "indirect" and "cumulative" environmental impacts from projects and decisions. NEPA is the law requiring environmental reviews on many types of infrastructure projects, from highways and natural gas lease sales to pipelines and electric transmission lines. The 2020 regulation did away with cumulative considerations, meaning federal agencies only needed to calculate the effects from siting, building and operating a project. The changes will require, for example, including the greenhouse gas emissions from constructing a natural gas pipeline along with the emissions from burning the fuel it would transport for generating electric power.

Agriculture

USDA Will Use Commodity Credit Corp. Funding for Climate Smart Farm Projects

The U.S. Department of Agriculture announced it would use approximately $3 billion from the Commodity Credit Corp. to address challenges facing America’s agricultural producers associated with drought, animal health, market disruptions for agricultural commodities, and school food supply chain issues. The USDA also outlined and requested public comments on a proposed climate partnership initiative designed to create new revenue streams for producers via market opportunities for commodities produced using climate-smart practices. Of the $3 billion, the USDA will provide $500 million to support drought recovery and encourage the adoption of water-smart management practices; up to $500 million to prevent the spread of African swine fever; $500 million for relief from agricultural market disruption; and up to $1.5 billion to help schools respond to supply chain disruptions.

Additionally, the USDA announced a new Climate-Smart Agriculture and Forestry Partnership Initiative that will support pilot programs creating new market opportunities for commodities produced using climate-smart practices, and position U.S. farmers, ranchers and forest landowners as leaders in addressing climate change. The request for information will close on Nov. 1, 2021.

Additional COVID-19 Relief Funding for Meat and Poultry Processing

The USDA announced a new $100 million loan guarantee program to support community and private sector lenders with the aim of expanding meat and poultry processing. The funds are another portion of the March COVID-19 relief package, which provided money to the USDA to address pandemic-caused supply chain disruptions. The funding is part of the USDA’s Build Back Better Initiative, a comprehensive plan to invest $4 billion to strengthen the resiliency of America’s food supply chain while promoting competition. 

USDA Announces Establishment of an Equity Commission

The USDA announced it will establish an equity commission as a result of the American Rescue Plan, which directed the department to “address historical discrimination and disparities in the agriculture sector…[through] one or more equity commissions to address racial equity issues within USDA and its programs.” The commission will advise the secretary of agriculture by identifying programs, policies, systems, structures and practices that contribute to barriers to inclusion or access and to systemic discrimination, or that exacerbate or perpetuate racial, economic, health and social disparities. The USDA is soliciting nominations for membership.

EPA Administrator Announces New Agricultural Advisor

EPA Administrator Michael Regan named Rod Snyder as his agricultural advisor. “Snyder will lead outreach and engagement efforts with the agricultural community for EPA, working to advance the Biden-Harris environmental agenda for farmers and rural communities,” the EPA said in a statement. Since March 2014, Snyder has served as president of Field to Market: The Alliance for Sustainable Agriculture, which the EPA described as “the largest multi-stakeholder initiative working to advance the sustainability of commodity crop farming in the United States.”

Energy

GAO Calls on FERC, DOE to Tackle Climate, Cyber Risks to the Electric Grid, Issues Voluntary Cybersecurity Guidelines

The Government Accountability office called on the Federal Energy Regulatory Commission and the Department of Energy to do more to fortify the grid against extreme weather and cyber threats. The GAO said the Energy Department should create a climate and extreme weather strategy, and that FERC must assess the climate risks the grid faces. The GAO issued a report in March 2021 with several similar recommendations, including that the DOE more fully address risks to the grid’s distribution systems from cyberattacks—including their potential impact—in its plans to implement the national cybersecurity strategy.

Relatedly, the Departments of Commerce and Homeland Security issued voluntary cybersecurity guidelines for the software that critical infrastructure companies rely on when transporting products like oil, water and food supplies. The DOE also unveiled its Clean Energy cybersecurity accelerator that will allow utilities to work with DOE employees to test new approaches to secure their systems.

Federal Court Sends Oil Lease Sale Back for Review

A federal judge in Colorado sent the results of a Trump-era Interior Department oil lease sale back to the agency for review, saying the administration’s environmental review was insufficient. The ruling from the U.S. District Court for the District of Colorado remanded the June 2018 lease sale of about 60,000 acres in the state and sent the review back to the Interior’s Bureau of Land Management to do over.

EIA Finds Drought, Heat Responsible for Hydropower Drop as Bureau of Reclamation Declares Water Shortage

According to the Energy Information Administration, U.S. electricity generation from hydropower is expected to drop 14% this year compared with 2020 due to drought and record-breaking heat waves impacting the Columbia River Basin states, including Washington, Oregon, Idaho and Montana. In 2020, hydropower plants in these states generated 136 billion kilowatt hours (kWh) of electricity, representing 54% of U.S. hydropower generation that year. Additionally, in California alone, the EIA expects hydropower to be 49% lower than in 2020. The news comes as the Bureau of Reclamation declared the first shortage on the Colorado River, meaning that Arizona, Nevada and Mexico will get less water than normal beginning January 2022.

FERC Allows Implementation of PJM Proposal to Alter Existing MOPR

FERC commissioners deadlocked, 2-2, in a vote to determine whether to approve a proposal from PJM, the regional transmission organization for the mid-Atlantic, to alter its existing minimum. Because the commissioners deadlocked, the PJM proposal is allowed to take effect, which means that many of the energy sources impacted by the original version, will no longer be penalized. A few states had threatened to leave PJM if the original price offer rule continued. The price rule, instituted in 2019, required minimum bids for certain energy sources if they received state subsidies, such as wind, solar and nuclear.

President Nominates Massachusetts Legislator for DOE Assistant Secretary

President Joe Biden nominated Massachusetts Representative Maria Robinson (D) to be assistant secretary of the Department of Energy, Office of Electricity. In her role as a state legislator, she leads the Massachusetts House’s Clean Energy Caucus, serves as the state lead to the National Caucus of Environmental Legislators and is a member of Environmental Protection Agency’s Clean Air Act Advisory Committee.

Environment

EPA and Other Federal Agencies Publish 2021 Climate Adaptation Plans

Federal agencies released a Climate Adaptation Action Plan describing steps they will take to address the impacts of climate change. All federal agency plans can be found here.

GAO Says Congressional Action Needed on Permanent Nuclear Waste Disposal System

The GAO released a report recommending that Congress “take action to break the impasse over a permanent solution” for spent nuclear fuel, to amend the Nuclear Waste Policy Act of 1982 (NWPA) to authorize a new consent-based siting process, to restructure the Nuclear Waste Fund, and to direct the DOE to develop an integrated waste management strategy. The DOE is required to dispose of spent nuclear fuel in accordance with NWPA and specifies that the only site that may be considered for permanent disposal of spent fuel is at Yucca Mountain—for which funding has been terminated. The GAO also recommended the DOE follow through with finalizing the structure for a consent-based siting process. The department began the process in 2015 but has yet to finalize it. Appropriators provided $27 million for fiscal 2021 to the DOE to explore pathways to establishing a consent-based interim storage program—an action the department is likely to take in FY 2022 as well.

Bipartisan PFAS and Public Lands Amendments Added to House 2022 NDAA

The House included an amendment to the 2022 National Defense Authorization Act from Representatives Elissa Slotkin (D-Mich.) and Brian Fitzpatrick (R-Pa.) requiring the EPA to set a federal drinking water limit. The amendment also requires the EPA to obtain “reference standards”—essentially samples of individual chemicals—from PFAS manufacturers so the agency can develop scientific methods to test for them in water, air, soil or materials. The amendment would also close loopholes in industrial reporting requirements. The House also included portions of two other bills: the Protecting America’s Wilderness and Public Lands Act, which would designate roughly 1.5 million acres of public lands as wilderness and withdraw more than 1.2 million acres of public land from new drilling and mining, and the Colorado Outdoor Recreation and Economy Act, which would establish new wilderness, conservation and recreation areas in the state. The House version will need to be reconciled with the Senate version.

DOI Finalizes Repeal of 2020 Migratory Bird Treaty Act Rule

The Interior Department has finalized its repeal of a rule from the previous administration concerning the implementation of the Migratory Bird Treaty Act of 1918 that aimed to prohibit the prosecution of companies that incidentally kill protected birds. More than 1,000 species are protected under the act. Companies typically could avoid prosecution if they took reasonable mitigation steps. Following the repeal, Interior also issued an advance notice of proposed rulemaking regarding incidental “takes” of birds.

EPA Withdraws Memo Allowing Protections for Major Emitters

The EPA withdrew an October 2020 memo that allowed states to include “narrowly tailored” protections for major emitters that exceed pollution limits under certain circumstances. In 2015 the EPA ordered three dozen states to update their Clean Air Act implementation plans to remove provisions shielding industry from penalties during periods of startup, shutdown or malfunction, covering times when pollution controls are not fully operational and emissions can increase, often impacting nearby communities. With this action, it’s likely numerous states will have to submit another round of implementation plans, including Iowa, North Carolina and Texas.

EPA Publishes Formal Notice of Recission of Maui Guidance

The EPA rescinded previously issued guidance concerning the U.S. Supreme Court’s ruling in County of Maui v. Hawaii Wildlife Fund. The ruling created a new test to determine if a release of pollution into groundwater, which is regulated at the state level, was the functional equivalent of a release into federally controlled waters. The EPA’s Office of Water is evaluating appropriate next steps. In the interim, consistent with past practice and informed by the factors specified by the Supreme Court, the EPA will continue to apply site-specific, science-based evaluations to determine whether a discharge from a point source through groundwater that reaches jurisdictional surface water requires a permit under the Clean Water Act.

EIA Finds Population Growth to Spike Global Carbon Dioxide, EVs Would Account for 30% of Cars on Road

The Energy Information Administration released a report finding that population growth will cause global carbon dioxide emissions to spike through 2050 unless countries change their current laws and regulations. The report indicates the growth in emissions of CO2, a pollutant and main contributor to climate change, will come despite renewable energy becoming the source of most new electricity generation projects, as increasing populations in developing countries use more energy from all sources. Relatedly, in another report, the EIA found that while electric vehicles may make up a significant portion of sales by midcentury in regions such as China and Europe—roughly 80%—they would account for only about 30% of cars on the road.

Transportation

FMCSA Issued Rule With New Requirements for State Driver’s Licensing Agencies

The Federal Motor Carrier Safety Administration issued a final rule instituting additional requirements for State Driver’s Licensing Agencies using information obtained through the Drug and Alcohol Clearinghouse. Licensing agencies are now precluded from issuing, renewing, upgrading or transferring a commercial driver’s license, or commercial learner’s permit, for any individual prohibited under the safety administration's regulations from performing safety-sensitive functions, including driving a commercial motor vehicle, due to one or more drug and alcohol program violations. Most state agencies don’t receive drug and alcohol violation information about the commercial drivers or permit holders licensed in their state.

FAA Urges Airports to Limit Use of PFAS

The Federal Aviation Administration urged U.S. airports to use firefighting foam containing PFAS chemicals only during emergencies due to the environmental and public health risks. In 2018, Congress directed the FAA by Oct. 4, 2021, to “not require the use of fluorinated chemicals to meet” firefighter performance standards.

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

Best,

Kristen and Ben

Additional Resources