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Shutdown Averted: Disaster Assistance Appropriated, Flood Insurance and FAA Authorization
President Biden signed a stopgap measure Sept. 30 to keep the federal government funded for 45 days. In addition to providing regular government funding and preventing a shutdown, H.R. 5860 also authorized the Federal Aviation Administration for the same length of time, giving lawmakers some flexibility to negotiate a full five-year reauthorization. The House passed its version, but the Senate bill has not yet moved. While the stopgap did not include aid for Ukraine, it did include $16 billion in supplemental disaster relief for the Federal Emergency Management Agency and reauthorized the National Flood Insurance Program through November 17.
EPA Updates WOTUS and Expands State Authority on Infrastructure Projects
The Environmental Protection Agency has issued two major rulemakings. The first revises the Waters of the United States, or WOTUS, final rule and redefines which wetlands and waterways are protected by the Clean Water Act, in compliance with the Supreme Court’s decision in Sackett v. EPA, which narrowed the federal government’s interpretation. The revised rule keeps the traditional jurisdictional waters categories, but it removes the “significant nexus” test from consideration when identifying waters as federally protected. It also revises the adjacency test when identifying federally jurisdictional wetlands, clarifies that interstate wetlands do not fall within the interstate waters category, and clarifies the types of features that can be considered under the “additional waters” category. The rule is currently in effect and, like previous iterations, is anticipated to be challenged in court.
The second rulemaking, which followed the WOTUS revision, reverses a rulemaking by the previous administration that significantly limited state authority under Section 401 of the Clean Water Act to certify, condition or deny federal permits and licenses for projects that would result in the discharge of pollutants into a water body categorized as a WOTUS. Specifically, the 2020 rule barred states from considering factors not directly related to water quality impacts from “point source” discharges only (previously, all potential sources of pollution from a project were reviewable.) The new final rule expands states’ scope of consideration to include not just direct discharges, but the potential water-quality-related impacts of the overall activity associated with the project. It also extends the length of time states have to consider project applications. The final rule is now in effect and applies to all new decisions made under the 401 processes, including those in progress before the rule’s enactment. The EPA has noted that as a result of the new final WOTUS rulemaking, there “will be significantly less waters under federal protection, and therefore fewer federally licensed projects that will need to go through the 401 program.”
Making America’s Railroads Safer, More Efficient
Following a series of high-profile railroad incidents this year, two significant regulatory changes to the rail industry and new federal grant funding have been announced. First, the Surface Transportation Board put forward a proposed rule that would implement a practice known as “reciprocal switching” for railroads that fail to meet certain reliability standards. If enacted, this rule would require underperforming railroads to share tracks with their competitors, allowing those competitors to bid for previously inaccessible consumers’ business. In addition to increasing competition and lowering costs by giving consumers choices, the rule is intended to improve overall railroad reliability and efficiency.
Second, the Biden administration revoked approval for the shipment of liquified natural gas by rail, a reversal of the previous administration’s policy. The change will remain in effect until the Pipeline and Hazardous Materials Safety Administration completes a final rulemaking or until June 30, 2025.
Funding for railroad safety and infrastructure has also been a focus. The Federal Railroad Administration and the Department of Transportation announced the release of $1.4 billion from the Infrastructure Investment and Jobs Act. This money will be used to repair bridges and tracks and improve overall railroad infrastructure safety and capacity throughout the country. The demand for funding was demonstrated by the volume of eligible applicants, whose collective funding requests reached $6.1 billion. The selected projects are expected to benefit both freight and passenger rail.
Revamping Mining on Public Lands
A federal interagency working group has produced a report, Recommendations to Improve Mining on Public Lands, recommending over 60 legislative, policy and regulatory changes. The recommendations include significant potential changes to the General Mining Act of 1872, which has steered mining on public lands in the United States for the past 151 years, and improvements to the mining approval and permitting process. Specifically, these recommendations include ensuring access to and use of federal lands, including the establishment of a leasing system; ensuring fair return and diligent development, including imposition of royalty payments on extracted minerals; streamlining the permitting process, including required agency and department collaboration on environmental and programmatic reviews; increasing transparency; incorporating tribal recommendations, including outlining incentives for tribal preapproval and buy-in; updating operational standards to promote consistency; addressing mine closures and closed mines; and increasing government and private sector capacity. The report is a part of the administration’s broader efforts to improve the domestic critical mineral supply chain.
FEMA’s Climate Protection Program
The Federal Emergency Management Agency announced funding for the Safeguarding Tomorrow Revolving Loan Fund Program, or STORM. The program, which is intended to help strengthen community resistance to extreme weather and other climate impacts, has a similar fiscal structure to EPA revolving loan fund programs. STORM will fund state-level entities, enabling them to lend low-interest funds to municipalities for construction projects that protect communities from natural hazards; as the loans are repaid, the state can provide new loans with the returned funds. Disadvantaged communities are a target for the new funds, and the program is designed to be more accessible by streamlining the burdensome application process and funding up to 75% of project costs. Communities may offset the remaining 25% of costs with other funding sources and are ultimately required to pay only the loan interest. The program will use an initial $50 million to fund programs in seven states and the District of Columbia. The remaining $450 million will be distributed over the next three years.
Managing Spent Nuclear Fuel
The management of spent nuclear fuel has been the subject of a decadeslong dispute. In the Atomic Energy Act, the storage of spent nuclear fuel was authorized on-site and at federal facilities. In the 1980s, the federal government selected Navada’s Yucca Mountain as the designated federal repository; however, deposits have yet to be made due to ongoing challenges. The federal government in the meantime has turned to temporary private storage to manage its spent nuclear fuel. This strategy recently hit a roadblock when the Nuclear Regulatory Commission’s license for temporary private storage was struck down by the 5th U.S. Circuit Court of Appeals. The ruling was made using the so-called “major questions” doctrine, which reviews federal statutes to determine if current agency actions are authorized. A judge found that the Atomic Energy Act did not encompass off-site temporary private storage and therefore the NRC has no authority to issue the license. It is currently unclear whether Congress will take up the issue of spent fuel storage.
Short but Sweet, More News Below!
Energy
- The Action Plan for Offshore Wind Transmission Development in the U.S. Atlantic Region, is a collaborative blueprint for preparing the nation’s electric grid for the transition away from fossil fuels. The plan, which includes growing offshore energy production and improving high-powered transmission lines, was recently released by the Department of Energy and the Interior Department. Learn More.
- The Department of Housing and Urban Development recently awarded grants and loan subsidies to help HUD-assisted multifamily properties improve energy efficiency, implement renewable energy and improve climate resilience via the Green and Resilient Retrofit Program. Learn More.
- The DOE recently announced the availability of $400 million to help state and local governments update building codes to encourage climate resiliency and energy efficiency during major renovations and new building construction. Learn More.
- The Biden administration recently launched the $4.6 billion Climate Pollution Reduction Grants program to help states and municipalities develop climate action plans. Learn More.
Environment
- The EPA announced the largest investment in recycling in 30 years. $100 million will be made available to 25 communities to improve waste management systems, build and upgrade equipment and facilities, and improve recycling planning and data collection. Learn More.
- Fire suppressants free of per- and polyfluoroalkyl substances (PFAS) have received approval from the FAA for use at airports to fight jet fuel and liquid fires on land. Learn More.
- Ten states have brought joint litigation against the EPA to compel its compliance with the Clean Air Act’s mandated timetable for reviews of published federal emissions rules. The lawsuit seeks revisions to the federal Stove Pollution Control Program and a prompt assessment of and revision to the existing 2015 wood stove emissions rule.
Transportation
- A bill that would preempt states from banning the sale of new gas-powered cars in favor of electric vehicles was recently passed in the House. However, the legislation is unlikely to see movement in the Senate. Learn More.
- The DOE has announced a number of policy and funding initiatives to spur the production and adoption of electric vehicles. Funding includes $10 billion in loans and $2 billion in grants to help car manufacturers upgrade facilities to allow for EV and hybrid manufacturing compatibility. Learn More.
- The Federal Highway Administration is releasing $100 million in grants to improve charging infrastructure and accessibility, by bringing over 6,000 inoperable EV chargers back online. The effort is intended to help increase the availability of public charging stations and reassure Americans of the reliability of EV chargers. Learn More.
- In July, the EPA published the Renewable Fuel Standards Rule for 2023, 2024 and 2025, establishing volume and percentage standards and targets for total renewable fuel, advanced biofuel, biomass-based diesel and cellulosic biofuels. After the rule went into effect on September 11, a number of lawsuits were filed alleging that the new volume targets are too low, challenging the lack of sufficient lead time for the new rule and disputing the lack of an exemption for small refineries. Learn More.
Agriculture
- The European Union has released the first of several anticipated new regulations around PFAS. This regulation, which sets an allowable limit of PFAS in food, may potentially impact U.S. exports and will likely trigger a greater focus on the presence of certain chemicals in the soil and water on U.S. farms. The U.S. Department of Agriculture, the Food and Drug Administration and the EPA recently shared study results showing that U.S. food is largely devoid of PFAS. Learn More.
- The U.S. Forest Service recently announced $1 billion for developing green space in disadvantaged urban communities. The program will plant trees to help mitigate the effects of extreme weather. Learn More.