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Capitol to Capitol | May 31, 2023

May 31, 2023

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NCSL Update

NCSL Supports Restore the Partnership Act

NCSL joined a sign-on letter in support of the Restore the Partnership Act as members of Congress prepare to introduce the bill in the current Congress. The bill would reconstitute the U.S. Advisory Commission on Intergovernmental Relations. The original commission, which operated from 1959 to 1996, included governors, state legislators, mayors and county officials and focused on federal aid simplification and management, unfunded mandates and federal preemption. The bill would establish a new commission of 31 members, including four state legislators, to address the appropriate allocation of governmental functions, responsibilities, revenues and expenditures among the levels of government. U.S. Reps. Gerry Connolly (D-Va.) and Marc Molinaro (R-N.Y.) are co-sponsors of the bipartisan resolution, which was first introduced in the 116th Congress.

Congressional Updates

Debt Ceiling Negotiations: Compromise Reached

The White House and Congress negotiated a path forward that will raise the debt ceiling while putting in place spending caps for fiscal years 2024 and 2025 that keep nondefense discretionary spending roughly flat with fiscal year 2023.

In addition, the deal:

  • Slightly increases defense spending and veterans’ medical care.
  • Makes no changes to Medicaid.
  • Codifies that the student loan pause ends at the end of August but makes no other changes to student loans. 
  • Changes the work participation rate (WPR) that states must meet to receive federal TANF funds. The WPR is the percentage of a state’s work-eligible TANF participants who are engaged in work or work activities. There are two WPRs that a state must meet: 50% of all families receiving TANF assistance must be engaged in work activity at least 30 hours per week, and 90% of two-parent families must be engaged in work activity for a minimum of 35 hours per week. States can reduce their mandated percentage with a “caseload reduction credit” that lowers the WPR by 1% for every 1% decline in the state caseload since FY 2005. In FY 2021, 32 jurisdictions had a 0% after-credit WPR. The debt ceiling agreement would recalibrate the caseload reduction credit by only counting reductions in the number of families receiving assistance since FY 2015.
  • Phases in a requirement that able-bodied adults who are 55 and younger and do not have dependents must work or perform work activities to receive SNAP benefits; current requirements apply to recipients ages 18-49. Under the agreement, the age requirement would phase up to age 54 beginning in fiscal year 2025. Recipients are exempted from the requirements if states can identify them as experiencing homelessness, veterans or individuals 24 years old or younger who are transitioning from foster care. Current law exempts only those unable to work because of a physical or mental disability or pregnancy. These changes would sunset on Oct. 1, 2030. The agreement also reduces the percentage of participants that states can waive in areas with high unemployment from 12% to 8%.
  • Rescinds unspent COVID-19 relief and rescinds and redirects upward of $21 billion previously earmarked for the IRS.
  • Includes a two-year time limit on conducting environmental impact statements and a one-year limit for environmental assessments under the National Environmental Permitting Act.
  • Directs the North American Electric Reliability Corp. to complete a study within 18 months on interregional transfer capability transmission concerns.
  • Rescinds $2.2 billion in unobligated funds authorized by the FY 2021 omnibus for the Federal Highway Administration’s infrastructure programs, which provide funds for highways, bridges and tunnels. Infrastructure Investment and Jobs Act funding is not impacted.
  • Approves all remaining permits to complete the Mountain Valley natural gas pipeline, which the White House supports. Directs the U.S. Army Corps of Engineers to issue the water quality certification necessary, bypassing any approval or denials from the West Virginia Department of Environmental Protection, which had previously approved the project but whose decision was vacated by the 4th U.S. Circuit Court of Appeals.

The House will begin consideration of the Fiscal Responsibility Act of 2023 this week with the goal of passing it before reaching the debt limit, which the Treasury Department has updated to occur on June 5.

Congressional Review Act Action Update

House Passes Legislation to Block Federal Student Debt Relief Plan: Using the Congressional Review Act, the House voted 218-203 to overturn the Biden administration’s one-time student loan forgiveness plan and end the student loan pause. The president has promised to veto the bill should it pass the Senate. Read more.

House Fails to Override President’s Veto of Action to Rescind Pause on Solar Import Tariffs: The House fell short of the required two-thirds majority, 214-205, to override President Biden’s veto of a Congressional Review Act resolution that would have nullified a rule suspending duties on certain solar panels that were completed in Cambodia, Malaysia, Thailand or Vietnam when using components manufactured in China.

For more information on the Congressional Review Act, visit NCSL’s overview and tracking webpage.

House Appropriations Move on FY 2024 Spending Bills

The House Appropriations Committee began moving fiscal year 2024 spending bills forward as several subcommittees recently held legislative markups. The process begins without a customary topline number, known as a 302(a) allocation, that would set overall caps for discretionary and nondiscretionary spending. Subsequently, the process does not provide for spending caps for each of the 12 spending bills, referred to as 302(b) allocations. The GOP-led committee is using the topline of nearly $1.5 trillion for discretionary spending as provided in the Limit, Save, Grow Act of 2023, which passed the House 217-215 in April. Four subcommittees have approved bills—Agriculture, Homeland Security, Legislative Branch, and Military Construction and Veterans Affairs. Full committee markups have been delayed by the ongoing debt ceiling crisis. Below are select highlights.

Agriculture, Rural Development, Food and Drug Administration Bill: The House bill would provide $25.1 billion in nondefense discretionary funds, 2% below the FY 2023 enacted level and 12.5% below the president’s FY 2024 budget request.

The bill includes $17.1 billion for the Department of Agriculture, more than $8 billion less than FY 2023 funding levels. Line items to note include just over $1 billion for the Animal and Plant Health Inspection Service, a decrease of $2.1 million, but an increase of $10 million for animal disease traceability. Additionally, the bill provides $1.2 billion for the Food Safety and Inspection Service, an increase of $38.8 million to fund meat and poultry inspectors. Further, the measure cuts $30 million from the Natural Resources Conservation Service, eliminating funding for equity 

initiatives and climate change programs. The bill also includes a clawback provision, rescinding $3.3 billion for rural clean energy programs and $2 billion for loan forgiveness for borrowers of Farm Service Agency loans, both provided in the Inflation Reduction Act.

Environment and Energy

In addition to several other changes, if passed the bill would usher in:

  • Time limits on environmental reviews of new projects, including a two-year time limit on conducting Environmental Impact Statements, and a one-year time limit for environmental assessments under the National Environmental Permitting Act.
  • A study of the power grid: Directing the North American Electric Reliability Corporation to complete a study within 18 months to explore interregional transfer capability transmission concerns.
  • Approval of the Mountain Valley natural gas pipeline: The bill approves all remaining permits to complete the pipeline, of which the White House is supportive of to meet the energy security needs of the nation.
  • The bill also directs the U.S. Army Corps of Engineers to issue the water quality certification necessary, bypassing any approval or denials from the West Virginia Department of Environmental Protection, who had previously approved the project but whose decision was vacated by the Fourth Circuit Court of Appeals.

Homeland Security

The key proposed appropriations prioritize substantial investment in the country's border security apparatus. Among the provisions, the bill would allocate:

  • More than $2 billion for the construction of a southwest border wall.
  • $496 million for 22,000 new Customs and Border Protection agents.
  • $3.5 billion for U.S. Immigration and Customs Enforcement detention facilities.
  • $655 million for removal operations and associated transportation.

To pay for these increases, the bill would completely defund many offices and programs within the DHS, including the planned new Joint Processing Center for migrants at the border, emergency food and shelter for migrants, a case management pilot plan for migrants, the Office of the Immigration Detention Ombudsman, the Family Reunification Task Force, and the proposed $4.7 billion Southwest Border Contingency Fund.

In addition, the bill would rescind $312 million allocated by the Inflation Reduction Act of 2022 for climate change-activities. Many other DHS programs and offices would have their funding slashed in addition, including an over 50% cut to Citizenship and Immigration Services as well as prohibiting asylum officers from making final determinations in asylee cases. The committee markup of the bill on May 18 progressed with no proposed amendments, but several lawmakers expressed concern about the large-scale cuts and how they will affect the department’s capacity to process migrants at the border in a humane manner. Read more.

Administration Updates

Department of Education Releases Proposed Rule on Gainful Employment for Postsecondary Education

The rule would require for-profit higher education institutions and all nondegree career training programs to show that graduates can afford their annual debt payments and that they can earn more than adults in the state with only a high school diploma or equivalent. The proposed rule addresses five topics: financial value transparency and gainful employment, financial responsibility, administrative capability, certification procedures, and ability to benefit. Read more.

NCES Releases 2023 Condition of Education Report 

The report, from the National Center for Education Statistics, compiles the most recent national data on a variety of topics in pre-K through higher education, including enrollment, K-12 teacher openings, pandemic recovery, student characteristics and student achievement. Read more.

Supreme Court Updates

Supreme Court Rules That EPA’s WOTUS Rule Is Too Broad

In Sackett v. Environmental Protection Agency, the Supreme Court narrowed the federal government’s interpretation of which wetlands and waterways may be considered “waters of the United States” and thus protected by the Clean Water Act (CWA). The Waters of the United States, or WOTUS, as the rule is known, aims to determine the scope of federal authority to regulate such water, and when states, local governments and others must seek federal permits to develop land because it contains such waters.

The court ruled that the current interpretation of WOTUS was too broad and created a narrower “test” to determine what waters qualify under the CWA. Under the decision, only wetlands with a “continuous surface connection,” or those that are “indistinguishable” from larger streams, lakes and rivers, can qualify. Following the decision, the Environmental Protection Agency announced it plans to review the ruling and consider next steps, as the current WOTUS rulemaking is frozen in 26 states as a result of injunctions from the U.S. District Court for the District of North Dakota and the U.S. District Court for the Southern District of Texas.

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