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Capitol to Capitol | May 15, 2023

May 15, 2023

Questions? Please use the email icon at left to contact NCSL’s State-Federal Affairs Division.

Congressional Updates

Senate Votes to Repeal Endangered Species Act Protections

Using the Congressional Review Act the Senate voted 50-48 to overturn a rulemaking listing two populations of the lesser prairie chicken under the Endangered Species Act; 51-49 to overturn a rulemaking that would reinstate a Trump-era rule narrowing the definition of critical habitat under the ESA; and 51-49 to overturn a rulemaking that would repeal the ESA listing for the northern long-eared bat. The president has vowed to veto all of the disapprovals should they reach his desk. For more information on the CRA, visit NCSL’s Congressional Review Act | Overview and Tracking webpage.

Administration Updates

COVID-19 Public Health Emergency Ends; Telehealth Flexibilities Continue

The federal public health emergency for COVID-19, in effect since January 2020, expired on May 11. The end of the emergency may bring changes to the way patients access and pay for vaccines and treatments. A transition away from the federal government to the traditional health care market is expected over the next several months. At that time, Medicare, Medicaid and private insurance will cover costs without cost sharing for most people. For uninsured Americans, vaccines and treatments will be available via the HHS Bridge Access Program for COVID-19 Vaccines and Treatments. Access to COVID-19 testing will also be affected based on coverage provided by Medicare, Medicaid and private insurance. Additional details can be found here.

SAMHSA and the DEA announced on May 10 that, in response to 38,000 public comments, telemedicine flexibilities for prescribing controlled medications without an in-person appointment will be extended through Nov. 11, 2023. Practitioner-patient relationships established by that time will continue to have access to these flexibilities until Nov. 11, 2024. The extension will give the agency additional time to consider the public responses.

Click here for links to the most recent guidance from CMS and here for SAMHSA’s announcement.

EPA Rolls Out Proposed Standards for New and Existing Coal and Natural Gas-Fired Power Plants

The Environmental Protection Agency proposed regulations for new and existing fossil-fuel-fired electric generating units. The rule would require new and existing gas-fired plants to capture 90% of their emissions by 2035, and require existing coal-fired plants to capture 90% by 2030, but only if they were to remain online in 2040. The proposed rule may require the installation of carbon capture and storage technology or co-firing with hydrogen as the “best systems of emission reductions.”

Under section 111(d) of the Clean Air Act, states must submit plans to the EPA that provide for the establishment, implementation and enforcement of standards of performance for existing sources. This proposed rulemaking would require states to submit plans to the agency within 24 months of the rule’s finalization and would allow for trading and averaging for state plans under certain circumstances. Additionally, the proposal requires that states engage “meaningfully” with affected stakeholders in establishing emission guidelines for existing fossil-fuel-fired, steam-generating electric utility units. The rulemaking, while intended to fill the place of the Obama-era Clean Power Plan rule, which the Supreme Court struck down 6-3, is sure to be challenged. Read more.

Court Updates

Supreme Court Upholds State Animal Welfare Law, Protecting Commerce Clause

In a 5-4 decision, the U.S. Supreme Court upheld “the ability of states to regulate goods sold within their borders.” The law in question, California’s Proposition 12, sets animal welfare standards for pork and veal sold in the state. Petitioners argued that the law’s enactment would violate the Constitution’s dormant commerce clause by forcing out-of-state pork producers to adopt an extraterritorial regulatory scheme with national implications. The doctrine, an unwritten principle of federalism that prohibits states from interfering with interstate commerce, has often divided the court along nonideological lines. In recent years, dormant commerce clause challenges have also been raised against state clean energy statutes and other environmental regulations, including a coal export ban in Washington and fuel economy standards in Oregon.

NCSL Updates

Register for NCSL Policy Week

As a member of NCSL, you are invited you to participate in NCSL’s annual Policy Week, June 20-26. This will be an opportunity for all legislators and legislative staff to learn about NCSL Standing Committee policy processes and to discuss existing policy directives and resolutions scheduled for consideration at the Legislative Summit, Aug. 14-16 in Indianapolis. Register here.

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