Federal Government Returns to Full Throttle Levels for Now
With an agreement to reopen those federal agencies without fiscal budgets until February 15 and to permit a global agreement on border security funding, Congress is attempting to return to normalcy. A select congressional committee of seventeen leaders are working to fashion an agreement on border security and to fund agencies operating under the stopgap funding. President Trump continues to demand $5.7 billion and the Speaker is resisting, calling for funding of high-tech security measures, increasing border guards, and providing limited fencing.
Any spending agreement reached by the select committee that does not include $5.7 billion for a wall, faces a veto threat or a national emergency declaration from the president, that could trigger another partial shutdown on February 15. If this scenario plays out, the matter of congressional backlash looms large.
In the Senate, rumors are swirling that as many as seventy-five Senators are prepared to override a presidential veto. As Senators appear exhausted with the inability to put fiscal year 2019 spending decisions to sleep, sixty-six votes are required to override a veto.
But in the House, the dynamic is more complex. The Speaker has 240 votes in her caucus but requires 290 votes to override a veto. With approximately forty Freedom Caucus votes on the Republican side of the House, which would be unlikely to vote to override, the Speaker would need to find fifty votes from 150 remaining Republican Members, and that would not consider any Democrats that might defect from a veto override. Since overriding a veto would effectively damage the political clout of the White House, going forward and signal a shift toward increased congressional clout, the odds are increasing that if no wall compromise is reached, a national emergency declaration would be made. This would immediately inject the courts into the process and resolution of the matter would take weeks under the best of scenarios.
But as is the new Washington, everything could be upended on February 5, when President Trump goes before Congress to give the State of the Union Address. It is possible that the Address could become a vehicle to put Congress on notice that a national emergency declaration will be executed on February 15, sidestepping Congress and its preferred approach to conclude the budget impasse, before its negotiations reach the end of the line on February 15.
As the budget negotiations arise from the ashes of the shutdown, new policy challenges are also emerging. The most important matter involves the budget for fiscal year 2020. It is customary for the administration to transmit its budget to Congress on the first Monday in February. However, the shutdown, and the ongoing spending negotiations have conspired to delay the finalization of a budget. It now appears that a final budget request may not be provided to Congress until March at the earliest. This could have ramifications for developing a budget for the coming fiscal year 2020 and complicate the ability to pass final spending bills before October 1. In addition to the challenge of developing a budget, a new wrinkle has been identified. Congress and the administration will need to agree to increase the debt limit to avoid a federal default on governmental borrowings. In the recent past, this effort has been plagued by political posturing over the federal deficit and spending. Given the strong likelihood for a political game of chicken over the matter, it may become even more challenging to return to legislating spending priorities and avoiding the start of a new fiscal year with anything other than a continuing resolution. In the final analysis, the circumstances that have governed the first few weeks of the 2019 may in fact be the new normal for the remainder of 2019.
New Bill to Invest in Water Recycling
During the week of February 11, Representative Grace Napolitano (D-CA) is expected to introduce the “Water Recycling Investment and Improvement Act.” The bill would increase the U.S. Bureau of Reclamation’s Title XVI Program authorization under the Water Infrastructure Improvements for the Nation Act (WIIN) from the current $50 million to $500 million. Key provisions include:
- Makes the WIIN Act Title XVI program permanent (it currently expires in 2021).
- Strikes the requirement that the projects need to be designated in an appropriations legislation.
- Increase the limitation on the federal share of individual Title XVI projects from the current $20 million in October 1996 prices to $30 million in January 2019 prices. It does not change the 25% federal cost share.
A full summary of the legislation can be found HERE.
New Buy American Executive Order
This week, the President signed a new Executive Order (EO), entitled Strengthening Buy-American Preferences for Infrastructure Projects, to expand Buy American mandates to Federal financing assistance programs. The EO encourages federal agency heads to mandate the use of American produced and manufacture goods, products, and materials to new infrastructure projects that receive federal assistance under the assistance programs defined by the EO.
The EO defines infrastructure projects as projects that develop public or private physical assets that support or provide services to general public, and it identifies water resources, stormwater, and sewer infrastructure projects.
The EO specifically addresses new projects that are awarded federal financial assistance for the alteration, construction, conversion, demolition, extension, improvement, maintenance, reconstruction, rehabilitation, or repair.
The EO states that within 90 days of the date of the EO, Executive Departments and Agency heads administering covered programs will encourage recipients of new Federal financial assistance awards to pursue, to the greatest extent possible, the use of American-made iron, aluminum, steel and other manufactured products. Agency heads are directed to report on how their plans are to be implemented. In 120 days of the date of the EO, Agency heads will report to the White House tools, techniques, terms, or conditions that have been used or could be used to further enhance the policy set forth in the EO. In 2017, the Administration released a Buy American EO to enhance to use American made iron, steel and aluminum in infrastructure projects, and the hiring of American workers.
Leaked, USEPA To Not Recognize PFAS
It was reported this week that the U.S. Environmental Protection Agency (USEPA) will not seek to set legal limits for per- and polyfluoroalkyl substances (PFAS) in drinking water. PFASare commonly used chemicals in the industrial and commercial sectors due to the substances’ resistance properties to water, heat, and oil. However, researchers have determined these substances pose danger to human health. Ironically, USEPA is proposing to list the pollutants under Superfund to aid in site recovery. The agency has yet to release an official response to this reporting.
This issue could complicate the confirmation of USEPA Acting Administrator Andrew Wheeler’s nomination to become USEPA Administrator. Wheeler’s nomination is currently awaiting committee confirmation in the Senate Committee on Environment and Public Works. Prior to this reporting, Wheeler’s nomination was expected to pass the Senate on a party-line vote. However, Wheeler might lose crucial Republican support from Republican Senators whose states have experienced threats from high-levels of PFAS contamination. Wheeler has yet to make a statement on the issue. The committee vote on Wheeler’s nomination is scheduled for February 5.
House Announces Subcommittee Assignments
Democrat and Republican party leadership has announced further committee assignments for the 116thCongress. Below is a list of the new announcements.
U.S. House of Representatives
- Committee on Oversight and Reform announced subcommittee assignments and leadership. In a key leadership selection, freshman Representative Harley Rouda (D-CA) will be the Chairman on the Subcommittee on Environment.
- Committee on Natural Resources announced subcommittee leadership positions. Representative Jared Huffman (D-CA) will chair the Subcommittee on Water, Oceans, and Wildlife. Representative Alan Lowenthal (D-CA) will chair the Subcommittee on Energy and Mineral Resources.
House Democrats Set to Kick Off of Climate Hearings
[Next week, House Democrats will hold a series of hearings to examine the impacts of climate change and identify responses to reduce its harmful effects. Below are the committees that have scheduled hearings next week.
House Committee on Natural Resources– “Climate Change: Impacts and the Need to Act.” Scheduled to testify are: Governors Roy Cooper (D-NC) and Charlie Baker (R-MA); climate scientist Kim Cobb; Youth Climate March co-founder Nadia Nazar; environmental justice advocate Elizabeth Yeampierre; Hip Hop Caucus president Lennox Yearwood and environmental policy advisor Paula DiPerna. Chairman Raul Grijalva (D-NM) has announced plans for subcommittee hearings on climate change to be held in February and field hearings starting in March.
House Committee on Energy and Commerce, Subcommittee on Environment and Climate Change– “Time for Action: Addressing the Environmental & Economic Effects of Climate Change.” Witnesses have yet to be announced. In announcing the hearing, Chairman Paul Tonko (D-NY) stated, “This will be the first of many hearings on this growing global crisis.”
House Committee on Transportation and Infrastructure– “The Cost of Doing Nothing: Why Investing in Our Nation’s Infrastructure Cannot Wait.” Chairman Peter DeFazio (D-OR) announced that the hearing will focus on the nation’s infrastructure repair and maintenance needs and how federal inaction on these issues is increasing costs. Witnesses have yet to be announced.
H.R. 852, To amend the Safe Drinking Water Act to address lead contamination in school drinking water. – Rep. Brenda Lawrence (D-MI)
H.R. 843, To amend the Federal Water Pollution Control Act to clarify when the Administrator of the Environmental Protection Agency has the authority to prohibit the specification of a defined area, or deny or restrict the use of a defined area for specification, as a disposal site under section 404 of such Act, and for other purposes. – Rep. Bob Gibbs (R-OH)
H.R. 885, Rep. Scott Peters (D-CA), which would create an agency to help communities develop natural disaster resilience strategies.
Reports and Regulation
The Complexities of Wildfires (Nature Geoscience)
Congress Next Week
Senate to consider S. 47, the Natural Resources Management Act, a package of public lands measures that includes a provision providing permanent reauthorization of the Land and Water Conservation Fund.
Senate Committee on Environment and Public Works – Business Meeting to consider nomination of Andrew Wheeler to be Administrator of the Environmental Protection Agency.
House Committee on Natural Resources – Hearing on Climate Change: Impacts and the Need to Act
House Committee on Transportation and Infrastructure – Hearing on The Cost of Doing Nothing: Why Investing in Our Nation’s Infrastructure Cannot Wait.”