NRI Standing Committee Newsletter | Oct. 28, 2020


ncsl newsletter

If you have questions about NCSL’s coronavirus (COVID-19) resources or any of the stories below, please reach out to me, Ben Husch (, or my colleague Kristen Hildreth (, and we will point you in the right direction. Below are some of the latest agriculture, energy, environment and transportation policy issues we are following in Washington, D.C.

We wanted to thank all of you who were able to attend the live meetings of NCSL’s fall 2020 energy, environment and transportation webinar series. For those of you who were unable to attend, the recordings of the webinars can be found here.

NRI Federal Information Update

Montana Resource Management Plans Invalidated

The same Federal District Court of Montana, which ruled that acting head of the Bureau of Land Management, William Pendley, had been serving illegally since July 2019. His appointment violated the Federal Vacancies Reform Act and invalidated three resource management plans in Montana that Pendley had authorized. Although the court denied a request from four conservation groups who sought to join the lawsuit to submit other Pendley actions that could be open for review, it was noted in the ruling that the groups "remain free to file suit in the appropriate federal district court to challenge land management decisions they have identified as potentially unlawful." The groups have previously laid out land use plans they say should be invalidated, spanning nearly 30 million acres of public lands and minerals.

Court of Appeals Upholds California Proposition 12

The Ninth Circuit rejected a challenge to California’s Proposition 12—a ballot initiative approved in 2018 that requires farmers to provide more space for hens, pigs and calves while forbidding the sale of products that were housed in violation of the standards, including animals raised outside of state. By rejecting the challenge brought by the North American Meat Institute, the standards will go into effect in 2022.

EPA Renews Controversial Herbicide

The Environmental Protection Agency (EPA) announced it is renewing certain uses of the weedkiller dicamba for five years. It will add new restrictions such as bigger buffer zones around fields where it's applied and establish a nationwide cutoff date each growing season for "over-the-top" use—June 30 for soybeans and July 30 for cotton. Farmers must also mix in a buffering agent with dicamba products to lower its volatility, as well as follow an increased downwind buffer. The renewal follows a ruling from U.S. Court of Appeals for the 9th Circuit in June that vacated the product's pesticide registrations because it said the EPA underestimated the chemical's risks. The new restrictions are in response to the herbicide’s tendency to “drift” onto nearby fields. The U.S. Department of Agriculture's (USDA) Economic Research Service said a survey of farmers showed about 4% of soybean fields were damaged by off-target dicamba in 2018.

EPA Publishes Revision to Cross State Air Pollution Rule

The EPA proposed a revision to the Cross State Air Pollution Rule (CSAPR), which would reduce the number of states that were facing potential “good neighbor” obligations to curb emissions to address their downward impacts. The CSAPR is intended to target air pollution, which moves from downwind to neighboring states. Prior to this proposal 21 states would have to have taken additional actions to reduce summertime power plant emissions that raise ozone levels in neighboring states–the remaining 12 states that would have to take action are Illinois, Indiana, Kentucky, Louisiana, Maryland, Michigan, New Jersey, New York, Ohio, Pennsylvania, Virginia and West Virginia. The revision is a result of recent analysis that concluded 2021 emissions for the nine states, which if removed would not significantly contribute to “nonattainment” for ozone levels for downwind states.

USDA Reports Organic Farm Growth

Organic farms increased by 17% from 2016 to 16,585 operations in 2019, according to the USDA. Organic acreage has risen as well, up to 5.5 million, and more farmers plan to make the switch—there are 315,671 acres in transition, and 29% of organic farmers intend to increase their acreage over the next five years. California remains the state with the highest total sales of organics with $3.6 billion in sales, accounting for 36% of the U.S. total and four times that of any other state.

DOT Awards Funding to Improve Port Facilities

The U.S. Department of Transportation awarded more than $220 million in discretionary grant funding to improve port facilities in 15 states and territories through the Maritime Administration’s Port Infrastructure Development Program. The program aims to support efforts by ports and industry stakeholders to improve facility and freight infrastructure, and to ensure our nation’s freight transportation needs, present and future, are met. The program provides planning, operational and capital financing, and project management assistance to improve their capacity and efficiency.

USDA Authorize Additional Purchases for Food Box Program

The USDA authorized $500 million for a fourth round of purchases for the USDA Farmers to Families Food Box Program for deliveries of food boxes from Nov. 1 through Dec. 31, 2020. In the fourth round, as in the third round, states have been allocated boxes based on the internal need of the state. The program will continue the purchase of combination boxes to include fresh produce, dairy products, fluid milk and meat products.

EPA Finalizes Rule to Amend NSR Requirements

The EPA issued its final rule amending the preconstruction review requirements for projects at major stationary sources under the Clean Air Act. The rule, known as the Project Emissions Accounting Rule, changes the calculations of resulting emissions to determine whether a project may constitute a major modification. The rule is expected to reduce the number of sources who qualify for the new source review program.

Relatedly, EPA Administrator Andrew Wheeler signed a guidance memo declaring that states can implement rules that allow power plants, refineries and other industrial sources to avoid punishment for exceeding pollution limits during startup, shutdown and malfunctions. Under the memo, the EPA argues the agency was wrong to bar exemptions or affirmative defense provisions from state air plans under the National Ambient Air Quality Standards program because of redundancies in how those pollutants are regulated and the need for "state autonomy and flexibility" under the program.

Trump Signs Executive Order Establishing a Water Subcabinet

President Donald Trump signed an order, “Modernizing America’s Water Resource Management and Water Infrastructure,” which establishes a Water Subcabinet of senior federal agency officials to facilitate the management of federal water supplies and systems while also eliminating duplication between agencies. The order also requires the development of a national water strategy focusing on the reliability of our water supplies, water quality, water systems and water forecasting. The president signed a separate order aimed at advancing his commitment to the One Trillion Trees initiative by establishing a council tasked with furthering federal efforts on "growing, restoring, and conserving trees."

EPA Issues Final Revising Coal Combustion Residuals Closure Regulations

The EPA issued a final rule allowing coal-fired plants to prove to the agency, and/ or a state regulator that their impoundments do not harm groundwater, which is based on ongoing monitoring data and thus allowed to continue to operate their impoundments. The EPA rewrote its 2015 coal ash disposal rule after environmental and industry groups challenged it in court–the 2015 rule required all leaking coal ash disposal facilities without protective liners between the ash and the ground to stop receiving ash, and either install liners or close permanently.

DOE Awards Funding for Advanced Reactors

The U.S. Department of Energy (DOE) selected two teams led by TerraPower LLC and X-energy to receive a total of $160 million in initial funding under the Advanced Reactor Demonstration Program. These projects are part of the department’s plans to create partnerships between the DOE and the private sector to develop and build advanced nuclear reactors within five to seven years of the award that will generate carbon-free electricity to help meet the nation’s carbon reduction goals.

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


Ben and Kristen

Additional Resources