First Session of Congress Ends in Swirling Vortex of Activities and Historic Votes
The First Session of the 116th Congress ended Friday, capped by a series of legislative votes. The House voted along almost party-lines to approve two Articles of Impeachment. Only Democrats Colin Peterson (D-MN) and Jared Golden (D-ME) voted against the Articles. Golden split his vote, supporting the first Article alleging abuse of power and opposing the second Article, obstruction of Congress. The final votes were taken after six hours of floor debate that displayed the back forth arguments the two parties have made over the past three months. As reported, the next phase of the impeachment process is a Senate trial, but the schedule is now in question. It could begin by mid-January. Over the next few weeks, House and Senate leaders will determine who will serve as de-facto attorneys to litigate the charges rendered by the House. With the requirement that sixty-seven Senators must vote to convict, it appears all but certain that the Senate will not convict the President given the 53-47 majority and the public statements of many Senators on how they view the charges. The only outstanding question, for now, is what the rules of engagement will be for any trial, including whether witnesses will be called to testify on the Articles of Impeachment. Senate Majority Leader Mitch McConnell (R-KY) and Democrat Leader Chuck Schumer (D-NY) must agree on the trial’s rules and procedures and any agreement must be approved by the full Senate on a simple majority vote. The outcome of any agreement will likely determine how long any trial may last.
While the Impeachment debate dominated the news cycle of the final days of the congressional session, the business of legislating was dramatic and productive, illustrating that the Legislative and Executive Branches can conduct the people’s business in the midst of one of the most politically contentious periods in Washington in decades. As Congress and the White House laid down their rhetorical weapons and headed home for the holidays, they achieved a number of successes and made progress on important legislation, setting the stage for what promises to be a momentous final session in the coming new year.
Fiscal Year 2020 Budget Agreement Delivers On Bipartisan Basis
With a potential governmental shutdown looming on December 20, congressional and White House budget leaders hammered out a final spending agreement to fund the federal government for the remaining nine months of FY 2020. The House and Senate approved the bill and the President signed the measure with just hours to spare. The agreement is notable for the bipartisan agreement to boost spending by $50 billion and to fund numerous programs that were hanging in the balance absent an agreement. Among the highlights in the two spending bill packages were: funding for the border wall, establishing a sixth military branch (the Space Force), restarting funding for research into gun-related violence, increasing funding into chemical contaminants of drinking water, enhancing climate change research, and supporting water infrastructure funding to address drought conditions. The agreed-upon legislation runs more than 2,000 pages, but some of the highlights include:
- $3 billion to support USEPA clean water and drinking water SRF’s
- $63 million to support USBR water recycling infrastructure
- $55 million to support USBR water innovation and conservation projects
- $565 million to support USEPA National Estuary Program
- $70 million to develop USBR groundwater banking and surface water conservation projects
- $11 million for USGS and USEPA to conduct research and standards setting related to the treatment and monitoring standards of forever chemicals known as PFAS
- Increasing USGS funding of national streamgage networking system
- $510 million to support USEPA geographic water quality programs, including Great Lakes Initiative, Chesapeake Bay, and San Francisco Bay
- $134 million to support USBR authorized water storage projects in California
- $40 million to support Interior fisheries and habitat restoration projects in California
- $28 million to support grants to address combined sewer overflows
- $26 million to support address of lead contamination in schools and $19.5 million to address lead contamination in drinking water
- Senate report language encourages USEPA to prioritize applications for WIFIA financing for projects that address lead and emerging contaminants, including PFOA and PFAS
- Restoration of USEPA WaterSense Program
- $56.5 billion to support Housing and Community Development homeless assistance programs, this is a $900 million increase over FY2019.
- $5.5 billion to support U.S. Forest Service Wildland Fire Management programs, this is $1.6 billion above FY2019.
Since the spending agreement includes substantially increased levels of funding beyond the Administration budget request, the bills include directives to federal agencies to provide details on how the increased spending will be allocated. The requested information, generally, must be provided to Congress within forty-five days of December 20.
Forever Chemicals Remain a Top Priority in Second Session
Congressional efforts to legislate a response to the regulation and cleanup of PFAS/PFOS chemicals collapsed when a proposed compromise to designate a limited number of the thousands of PFAS chemicals was deemed insufficient to House Democrats. They preferred to address the issue next year. Supporters of regulating PFAS had sought to use the National Defense Authorization Act (NDAA) to legislate a federal PFAS policy. However, the initiative to designate PFAS as hazardous substances under Superfund law to bring to heel polluters and force them to pay for cleanups, crashed into the reality that such a designation would expose public water and wastewater agencies to liability, simply because the agencies received PFAS contaminated waters or solid wastes. Instead, the NDAA compromise settled upon efforts to enhance research into PFAS contamination, support U.S. Environmental Protection Agency (USEPA) to advance efforts to establish PFAS monitoring and treatment standards under the Safe Drinking Water Act, and to respond to groundwater contamination at military bases. It is important to highlight that the collapse of a comprehensive agreement on PFAS was mitigated by the decision to provide funding in the spending agreement for FY 2020 to the U.S. Department of the Interior’s U.S. Geological Survey and USEPA to conduct research into the presence of PFAS in the environment.
Because of the collapse of the effort to legislate liability and funding of cleanups, the House Committee on Energy and Commerce swiftly approved H.R. 535, a comprehensive PFAS package, that includes Superfund liability and strict deadlines for the establishment of drinking water standards, as well as funding authorizations for cleanups and health screenings. After the NDAA agreement was finalized, House Majority Leader Steny Hoyer (D-MD) announced that floor action on H.R. 535 would be scheduled for January upon the return of the House. Representative Paul Tonko (D-NY), Chairman of the Subcommittee on Environment and Climate Change that has jurisdiction over the issue, stated that the subcommittee plans to advance legislation in order to establish a Safe Drinking Water Act standard for PFAS chemicals next year. The Senate is expected to resist efforts to legislate PFAS as a hazardous substance under Superfund because it opposes creating Superfund liability. These differences set up what could become a major legislate debate over public health, drinking water safety and funding of cleanups in the run-up to the congressional elections.
Clean Water Infrastructure Legislation
Congress moved forward on developing water infrastructure legislation, although in a limited fashion. The House Committee on Transportation & Infrastructure, on a bipartisan basis, approved H.R. 1497. It would for the first time since 1987, renew the Clean Water Act’s State Revolving Loan Fund Program (SRF). H.R. 1497 would, among other matters, provide $14 billion over five years, authorize the extension of NPDES permit terms for a period of up to ten years, renew the expired Alternative Water Sources Act to provide grants to communities to construct water recycling and other water supply projects, increase to $1 billion authority to fund CSO grants assistance, and increase commitments to disadvantaged communities, green infrastructure, and resiliency needs. A House vote to pass H.R. 1497 is likely in late January at the earliest.
The outlook for H.R. 1497 hinges on how the Senate may proceed. At this writing, the Senate Committee on Environment and Public Works has signaled that there is little interest in developing a stand-alone clean water infrastructure bill. Instead, any such measure is expected to become part of an expanded Water Resources Development Act (WRDA) that funds the U.S. Army Corps of Engineers. WRDA is a must do bill according to House and Senate WRDA leaders. The House has resisted such an approach in passing H.R. 1497. This sets up a situation that final consideration of any clean water infrastructure bill may only be possible as part of a WRDA rewrite. This has precedent as the Senate has relied on past WRDA legislation to develop policy on water supply and infrastructure assistance for drinking water, water storage and water recycling projects. If this speculation becomes reality, prospects for final action on any bill probably will extend into the fall of 2020 and maybe a Lame Duck session, depending upon the outcome of the congressional and presidential elections.
Wildfire – Forest Health Legislation
In 2019, Congress continued to focus on the need to develop a comprehensive wildfire response federal policy. A series of congressional hearings were held to review existing federal wildfire mitigation and suppression programs and to consider strategies to improve on the manner in which health and environmental impacts from wildfires are addressed, investigate electric grid reliability, examine wildfire management technologies, and, identify strategies to improve community resiliency to wildfire including the hardening of critical infrastructure. This “deeper dive” led to the introduction of several bills to promote active forest management and support community wildfire resiliency
- H.R. 2607, Resilient Federal Forests Act of 2019 – Rep. Bruce Westerman (R-AR), S. 1849, Accelerating Forest Restoration Act of 2019 – Sen. Martha McSally (R-AZ), H.R. 5218, Proven Forest Management Act of 2019 – Rep. Tom McClintock (R-CA)
- These bills promote active fuels treatment, such as forest thinning, fuel breaks and prescribed fire to protect at-risk communities and critical watersheds and to expand opportunities for forest management partnerships between the Forest Service, states, local governments and non-governmental organizations.
- S. 2882/H.R. 5091, Wildfire Defense Act – Sen. Kamala Harris (D-CA) / Rep. Jared Huffman (D-CA)
- This legislation supports community wildfire defense plans, provides grant funding to protect critical infrastructure (transportation, communications, water and power utilities), and, promotes strategies to protect energy distribution grids to help prevent wildfires and peremptory power shutoffs (enhanced design and construction, vegetation management, utilization of drones, remote cameras).
In the House, the Committee on Natural Resources is expected to consider legislation next year. This effort will likely target developing approaches to assist communities to develop approaches to mitigate threats from catastrophic wildfires. The Senate Committee on Energy and Natural Resources leadership has signaled an interest in developing legislation that would blend forest management approaches with community and environmental concerns . Committee staff expects that the committee will hold oversight hearings to examine the Administration’s progress in implementing the 2018 Farm Bill’s forest management provisions. Based on the review, they anticipate developing legislative options to address identified needs to support improved forestry management, health and wildfire suppression needs. While the precise nature of these options remain to be designed, the pending legislation, identified above, represents the kind of policies that we expect will be debated in the development of any final wildfire legislation in the next session.
Climate and Coastal Resiliency
Catastrophic hurricane seasons, severe droughts, and other extreme weather events have placed a spotlight on the vulnerabilities of the nation’s infrastructure, coastal shores and ecosystems’ exposure to, and ability to, withstand drought and storm events. The need to increase the resiliency of the nation’s infrastructure and to the damage brought about by extreme weather events became a top issue for Congress this year, starting with the Green New Deal and evolving into a slew of targeted proposals. House and Senate committees held several hearings to explore how and what the best options are for the federal government to help communities harden infrastructure by establishing programs and policies to mitigate impacts from extreme weather events. Information gleaned from the various hearings culminated in the introduction of various bills to establish federal climate and coastal resiliency programs that could assist agencies develop enhanced resiliency. Generally, the bills focused on four overarching legislative themes: 1) requiring that resiliency be a focal point within federal departments and agency program initiatives, 2) establishing federal grant programs to assist projects that proactively manage and protect coastal shorelines through the use of natural and green infrastructure, 3) directing federal agencies to establish programs that support projects that include resiliency into the infrastructure, and 4) requiring agencies to study and research coastal sustainability and resiliency to ensure that the federal government continues to support the implementation of resilient projects.
Prior to leaving for the year, the House passed legislation (H.R. 729) that would enhance the resiliency of infrastructure, including clean water infrastructure, and protect coastal shores. Below are key bills that were considered in the House and Senate this year that could be acted upon and sent to the president in the next session or be incorporated into other pending legislation.
- H.R. 3115, Living Shorelines Act of 2019 – Rep. Frank Pallone (D-NJ). Directs NOAA to award grants to state or local governments, Indian tribes, or nonprofit organizations to implement climate-resilient living shoreline projects; and encourage innovation in the use of natural materials to protect coastal communities, habitats, and natural system functions. Passed the House as part of H.R. 729.
- S. 1730, Living Shorelines Act of 2019. – Sen. Kamala Harris (D-CA). Directs NOAA to award grants to state or local governments, Indian tribes, or nonprofit organizations to implement climate-resilient living shoreline projects; and encourage innovation in the use of natural materials to protect coastal communities, habitats, and natural system functions. Passed the House as part of H.R. 729.
- H.R. 3919, Creating Opportunity and Sustainability Through Science Act. – Rep. Seth Moulton (D-MA). Requires research in coastal sustainability and resilience, to ensure that the Federal Government continues to implement and advance coastal resiliency efforts, and for other purposes.
- S. 1932, Drought Resiliency and Water Supply Infrastructure. – Sen. Cory Gardner (R-CO). Supports water infrastructure throughout the western U.S.
- S. 1069, Digital Coast Act. – Sen. Tammy Baldwin (D-WI). Requires the Secretary of Commerce, acting through the Administrator of the National Oceanic and Atmospheric Administration, to establish a constituent-driven program to provide a digital information platform capable of efficiently integrating coastal data with decision-support tools, training, and best practices and to support collection of priority coastal geospatial data to inform and improve local, State, regional, and Federal capacities to manage the coastal region.
- H.R. 2189, Digital Coast Act. – Rep. Dutch C. A. Ruppersberger (D-MD). Requires the Secretary of Commerce, acting through the Administrator of the National Oceanic and Atmospheric Administration, to establish a constituent-driven program to provide a digital information platform capable of efficiently integrating coastal data with decision-support tools, training, and best practices and to support collection of priority coastal geospatial data to inform and improve local, State, regional, and Federal capacities to manage the coastal region. Passed House as part of H.R. 729.
- H.R. 1317, Coastal Communities Adaption Act. – Rep. Harley Rouda (D-CA). Improves the resilience of the built and natural environment to natural disasters and climate change using, among other measures, natural and nature-based features.
- H.R. 3541, Coastal State Climate Preparedness Act of 2019. – Rep. Salud Carbajal (D-CA). Amends the Coastal Zone Management Act of 1972 to require the Secretary of Commerce to establish a coastal climate change adaptation preparedness and response program.
- S. 2636, Clean Water Infrastructure Resilience and Sustainability Act. – Sen. Ben Cardin (D-MD). Amends the Federal Water Pollution Control Act to establish a program to make grants to eligible entities to increase the resilience of publicly owned treatment works to natural hazards.
This year saw a heightened interest from lawmakers to address disadvantaged communities’ access to public health municipal services and ensure that robust environmental protections for low-income communities are provided. Concerned over contaminated drinking water resources and the costs associated with public health services, Congress introduced legislation to address inadequate drinking water quality, insufficient or failing water infrastructure systems, and disproportionate environmental and public health impacts on low-income communities. Various bills to help resolve the disparity were introduced and can be considered to fall under the policy label of “environmental justice.”
Key features included providing increased federal assistance through highly subsidized loans and grants to help low-income residents improve their access to water supplies, requiring the U.S. Environmental Protection Agency to study low-income communities’ access to water services, and providing technical assistance to support communities’ efforts to develop and deliver clean water. Legislation was also introduced to ensure that the federal permitting review process acknowledges and promotes environmental justice by considering the cumulative impacts of permitting decisions on such communities, require federal agencies to develop and enforce regulations and standards that support environmental justice, and provide residents equal access to public information and participation in federal decision-making that involve public health and environmental protection concerns.
Among the numerous bills introduced, the following bills could serve as a foundation to address the matter next year.
- S. 2466, Water Justice Act. – Sen. Kamala Harris (D-CA). Provides supplemental appropriations for safe and secure water.
- S. 2687, Low-Income Water Customer Assistance Programs Act of 2019. – Sen. Ben Cardin (D-MD). Amends the Safe Drinking Water Act and the Federal Water Pollution Control Act to establish pilot programs to assist low-income households in maintaining access to sanitation services and drinking water.
- H.R. 4033, Water Justice Act. – Rep. Dan Kildee (D-MI). Provides supplemental appropriations for safe and secure water.
- H.R. 3923, Environmental Justice Act of 2019. – Rep. Raul Ruiz (D-CA). Requires Federal agencies to address environmental justice, to require consideration of cumulative impacts in certain permitting decisions.
- S. 2236, Environmental Justice Act of 2019. – Sen. Cory Booker (D-NJ). Requires Federal agencies to address environmental justice, to require consideration of cumulative impacts in certain permitting decisions.
The issue of environmental justice will be a “hot topic” in the coming year. Any effort to move general water infrastructure is likely to included provisions to address the issue. The environmental justice issue is also expected to surface as part of other legislative initiatives. For example, addressing the issue of PFAS contamination in water supplies will be a focal point for Congress next year, and, the ability of impacted communities to secure safe and reliable water supplies is certain to capture environmental justice concerns. Because the issue crosses all manner of environmental legislation, the opportunities to attach any of the identified bills to other measures are many and could include WRDA, Omnibus water resources or clean water infrastructure legislation.
Second Session Outlook: Substantial Opportunities to Finalize Pending Policymaking Initiatives
The second session of Congress convenes January 7, 2020 and policy debates will occur within the swirling vortex of the upcoming fall elections. One lesson can be drawn from the first session of Congress, is that Congress and the White House can compartmentalize policy differences to deliver significant legislative accomplishments. However, the potential to address issues that can demonstrate success, such as water infrastructure financing needs and establishing policies to address threats from floods and drought, cross partisan lines.
2020 could become the year in which Washington makes a serious policy down payment to implement programs and funding mechanisms to serve as a catalyst to meet the public health and environmental protection needs of the twenty-first century. Generally speaking, the legislative vehicles to address the environmental and public health needs will exist based upon the past year’s legislative activities. It now depends upon the House, Senate, and White House to assemble compromises that can be acted upon and signed into law. All of this will come into clearer focus in January. Until then, we wish everyone Happy Holidays and a prosperous 2020.