Below you will find some of the latest news on 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 Kristen Hildreth (kristen.hildreth@ncsl.org).
Top Stories
Supreme Court Rules That EPA’s WOTUS Rule Is Too Broad, EPA Appeals
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 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 (EPA) submitted an appeal with the U.S. Court of Appeals for the Eighth Circuit in an effort to overturn the current U.S. District Court for the District of North Dakota’s injunction freezing WOTUS implementation in 24 states. The court initially granted the injunction pending the outcome of Sackett v. EPA. The EPA faces a similar injunction in the U.S. District Court for the Southern District of Texas which it has previously appealed in the U.S. Court of Appeals for the Fifth Circuit. Since the SCOTUS decision. These freezes require the EPA and the U.S. Army Corps of Engineers (USACE) to use a regulatory interpretation dating back to 1989, though this regulation is also undermined by the SCOUTS decision. USACE has since paused the processing of jurisdictional WOTUS determinations. It is anticipated that a new WOTUS rulemaking could come by September.
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 plan 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 providing 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. The EPA recently extended the 60-day comment period for the proposed Greenhouse Gas Standards and Guidelines for Fossil Fuel-Fired Power Plants rule to 120 days. Comments are now due by Aug. 2023.
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.
Rule Requiring Rail Industry to Report Hazardous Materials to Communities Proposed
The Pipeline and Hazardous Materials Safety Administration proposed a rule which would require railroads to provide accurate and timely information about the types and quantities of hazardous materials that trains are carrying to emergency crews in the communities their trains pass through as soon as the company becomes aware of a crash or suspected release. The rule goes beyond the FAST Act mandate that was limited to Class 1 railroads, and instead extends the requirements to all classes of railroads. NCSL sent a letter to Congress on rail safety encouraging, among other requests, unhindered access to mandatory safety data on all chemicals, including the sharing of that information with state and local governments, health and environmental professionals, and first responders, to protect the public and those potentially exposed to such hazardous chemicals.
Agriculture
EPA released the final Renewable Fuel Standards Rule for 2023- 2025—the requirements include more than 15 billion gallons of conventional biofuels like corn- based ethanol, while the remaining include other fuels including those made from switchgrass, animal fats, or methane from dairy farms and landfills.
Congress recently introduced legislation in both the House and Senate to prevent China from purchasing U.S. farmland. The bills are directed at prohibiting the purchase of farmland from countries of concern by imposing a significant excise tax. The federal action follows an uptick in state legislation across the nation from 2022 to 2023.
U.S. Department of Agriculture (USDA) recently approved the commercial sale of lab- grown or “cell-cultivated” chicken.
Energy
The U.S. Treasury department recently released proposed clean energy tax break rules that use “direct pay” and transferability technical provisions to distribute approximately $370 billion in Inflation Reduction Act tax credits and grants. This rule isintended to encourage a national transition to green energy by making energy project construction easier.
The BLM recently released a proposed rule in the Federal Register to streamline renewable energy permitting and decrease fees associated with wind and solar power project rental and capacity by amending BLM renewable energy and right-of-way program regulations. Public comment period for the proposed rule closes on Aug. 15, 2023.
Sen. Joe Manchin (D-W.V.) introduced the Building American Energy Security Act of 2023, which is intended to reform federal permitting for energy projects by accelerating the process, limiting court challenges, and adjust the length of NEPA reviews. Manchin’s previous substantively similar bill introduced in 2022 failed to pass Congress.
Environment
The EPA proposes broadening the number of coal ash combustion residual disposal sites that would be subject to oversight, requiring site owners to monitor for contamination at inactive coal ash ponds, landfills and other sites. The 2016 Water Infrastructure Improvements for the Nation Act allows states to act as the primary regulatory enforcers of coal ash once their state permit programs are established.
The Recovering America’s Wildlife Act – which would provide $1.4 billion to states, territories and tribes to support the conservation and management of species within their boundaries – was reintroduced in the Senate. NCSL supports the legislation and shared a letter of support.
EPA finalized its “Good Neighbor Plan,” for the 2015 Ozone National Ambient Air Quality Standards, setting a federal ozone standard in 23 states.
The EPA was found to have failed to regulate levels of perchlorate, a chemical found in explosives and rocket fuel, in drinking water. The U.S. Circuit Court of Appeals for the District of Columbia Circuit found that the EPA, under the Safe Drinking Water Act, must regulate the chemical and that the EPA does not have the authority to withdraw regulatory standards as it did in 2011.
The National Oceanic and Atmospheric Administration announced in early June that $2.6 billion of Inflation Reduction Act funding will be sent to predominantly coastal communities for the investment in climate resilience objectives, specifically marine resource restoration, tribal priorities and disaster protection and mitigation efforts.
A federal appeals court upheld the EPA’s regulation that phases out the use of hydrofluorocarbons (HFC) through a cap-and-trade system; however, it rejected two key provisions of the rule: the use of refillable containers for the transport of HFCs mandate and the HFC containers QR code tracking mandate.
Transportation
The U.S. Department of Transportation (DOT) awarded more than $2.2 billion from the RAISE discretionary grant program to 162 different infrastructure projects across the country with half of the FY2023 funding going to rural areas and the other half to urban areas. The RAISE grants replaced the DOT’s Transportation Investment Generating Economic Recovery, or TIGER, grants.
The DOE and DOT announced the National Charging Experience Consortium, a new program focused on improving charging stations for electric vehicles by addressing the three most prominent challenges: payment processing and user interface, vehicle- charger communication, and diagnostic data sharing.
NCSL Updates and Resources
Transportation
Gas taxes make up the largest share of state transportation revenue, but that revenue will continue to decline due to the proliferation of electric and more fuel-efficient vehicles. The NCSL Foundation for State Legislatures has kicked off a partnership to study alternative transportation user fees and convene state lawmakers, legislative staff, and private sector partners to learn more about the benefits and challenges of various user fee options.
This year, at least 17 states have introduced so-called “move-over” legislation, which requires drivers to move over a lane or slow down when approaching a stationary vehicle. NCSL’s brief, Preventing Roadside Deaths: State Action on ‘Slow Down, Move Over’ Policies, covers the issue of preventing roadside deaths, the state policy landscape and federal funding opportunities for the states.
Environment and Agriculture
States are getting creative with disaster management. Resilience offices, one way states are working to address disasters, can come in a variety of forms and offer a collaborative, whole-of-government way to prepare for and recover from natural disasters. Check out NCSL’s new State Resilience Offices Resource.
In its most recent iteration, the FDA Food Code offers significant updates for allergen training, retail food donation, pets on patios, and more. NCSL’s Policy Snapshot, Food Safety – Updated Food Code and State of the States, covers how the newest framework, available for immediate adoption, can streamline regulatory structure.
States are rapidly expanding their efforts to address PFAS with legislation relating to cleanup and remediation and prohibitions from consumer products. The EPA also recently announced proposed PFAS drinking water standards that would have significant state impacts. NCSL’s report Per- and Polyfluoroalkyl Substances (PFAS) | State Legislation and Federal provides an overview of current state and federal action.
States continue to establish task forces, commissions, and councils to evaluate the threats and impacts of pollution on marginalized communities, and many are incorporating the principles of environmental protection into a wide variety of legislation. NCSL’s report State and Federal Environmental Justice Efforts provides anoverview of current state and federal action.
Energy
Human-driven physical threats to energy infrastructure increased by 70% in 2022. State legislatures are working to mitigate these threats by taking preventative action. NCSL’s report Human-Driven Physical Threats to Energy Infrastructure provides an overview of current state action.