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Washington Policy and Regulatory Updates

Our ENS Federal Report provides a summary and the status on select legislative and regulatory actions.
We normally issue a Report when both Chambers are in session.

ENS Federal Report

January 8, 2021

Calls for Invoking the 25th Amendment and Impeachment Grow in the Hours after the Storming of the Capitol

Used with permission of E&E News Francis Chung/E&E News.

The political backlash to the rioting, damage and deaths at the Capitol has led to resignations of more than ten key Executive Branch officials and bipartisan calls for invoking the 25th Amendment to remove the president.  At the same time, the House Democratic Caucus early Friday agreed to proceed with articles of impeachment in the remaining week and a half of the Trump Administration. House Members are expected to return to Washington next week to pursue impeachment.  Senate action on impeachment seems equally plausible as some Republican Senators seem open to receiving articles of impeachment.  According to congressional observers, the import of impeachment lies in the fact that, if impeached and convicted, the president would be barred from holding federal office in the future, lending additional intrigue.

The prospect of invoking the 25th amendment, or as it is colloquially known, the Disability Clause, seems challenging at this point in time. Adopted in 1967, it has rarely been invoked with the exception of times when a President was undergoing surgery.  The Secretaries of Transportation and Education resigned since Tuesday and it is unclear whether the mandate for 8 cabinet votes to remove the president could be achieved with acting Secretaries.  Additionally, Vice President Pence, who must convene the Cabinet and initiate the process, appears reluctant to invoke the amendment.

Political Calculus Changes After Day of Capitol Rioting with Consequences for Policymaking; The First 100 Days Could Feel Like Four Years of an Administration

 January 6, 2021 will go down in the nation’s history as a seminal moment when democracy and the orderly transition and transfer of political power reached a fork in the proverbial political road.  With five people dead, damage and looting of the Capitol building and individual congressional offices, the Constitutional responsibility to certify the presidential electors’ votes was delayed.  When order was restored in the early morning hours of January 7, after a failed effort to overturn Arizona and Pennsylvania’s electors’ votes, Congress declared President-Elect Biden and Vice President-Elect Harris to be the duly elected winners. The rioting has been called an insurrection and the scenes broadcast around the world were likened to the modern equivalent of the War of 1812 when, in 1814 the British set fire to the Capitol and the White House.  Unlike 1812, the past week’s acts of violence were home grown and ripped asunder what should have been a perfunctory, ministerial affirmation of the November elections. The inevitable investigations into how the rioting was fomented, how the security of the Capitol was breached, by rioters carrying crowbars, baseball bats and weapons; when entering the Capitol campus on any normal work day could be complicated by a key chain triggering a metal detector, and how the massive federal, state and local agencies’ security presence was an after the fact response compared with past years’ responses to social disorders in cities across the country will be one of priorities for Congress in the coming months and will likely take the form of a 911 Commission approach.

From a general policymaking process, in the aftermath of the challenge to the Constitutional process and the ensuing violence, it seems that the incoming Biden-Harris Administration could enjoy a deeper and lengthier political honeymoon to secure enactment of policies that could have been jeopardized by similar polarization that led to congressional gridlock of the past years.  With Democrats in total control, albeit by the slimmest of margins, of the House, Senate and White House, the passage of another COVID-19 relief package that would include increased economic assistance, state and local governmental assistance to offset revenue losses and other measures to stabilize the nation appear more than doable as the first order of business in late January when both chambers will be under Democratic control.  Budget hawks that might fight the passage of another relief package, could be hampered.  The House-passed rule exempting any COVID assistance from budget caps and “pay go” mandates, making points of order on the impact of increasing the deficit moot and, thereby, removing the one tool to stop spending votes.

Following enactment of such assistance, and the Senate confirmation of the Biden Cabinet officials, expect Congress and the White House to move on an infrastructure package with a focus on climate resiliency, in addition to core water, roads, telecommunications and other infrastructure program needs.  The White House will have its own recommendations it will transmit to Congress.  For now, the $1.5 trillion Moving Forward Act, which the House passed last year, may serve as a foundation upon which a comprehensive policy could be grafted. The cost of such an initiative will probably force Congress to rely upon the budget reconciliation process.  This process limits congressional debate and, for the Senate, only requires a simple majority to pass a reconciliation measure, eliminating a filibuster situation.  Reconciliation has served to secure enactment of big-ticket policies, including the Affordable Care Act and tax cuts, setting the precedent for Congress to secure passage.

The more mundane matters of governing such as the Biden Administration developing a fiscal year 2022 budget is probably already underway. Under the Budget Control and Impoundment Act, the budget is to be sent to Congress on the first Monday in February.  However, with the unusual transition, coupled with the normal challenges of a transfer of power, the first official Biden budget will likely be delayed until sometime in March.  Nonetheless, the timing would lend itself to package the budget and top tier priorities, such as infrastructure, into the reconciliation process and set the stage for a staggering level of efficiency not seen for several years.

House Adopts New Rules for 117th Congress

On Monday, the first legislative business day of the 117th Congress, the House passed its first major legislative package, adopting the rules package (H.Res.8) on a party-line vote of 217-206.  H.Res.8 establishes the procedural rules governing the new Congress.  It was also the first major test of the Democrats’ unity after it suffered unexpected losses in the November 2020 elections.

H.Res.8 includes three key procedural changes.  First, it weakens the tool of the “motion to recommit” (MTR), which is an important tool used by the minority party to state its opposition towards bills crafted by the majority party.  Under the new rules, a motion to recommit would prevent the minority to amend a bill on the floor of the House.  Instead, an MTR would cause the bill in question to return to the committee level where the majority party could easily override the minority’s objection or kill the bill.   Second, the package establishes limited exemptions to PAYGO.  PAYGO requires any new proposed spending measures to be offset with new revenues (taxes) or reductions in existing program spending to offset any increase in the deficit.  H.Res.8 waives this requirement if the new spending is related to COIVD-19 or climate change.  It provides authority to the Chairman of the Committee on the Budget to determine what is considered COVID-19 or climate change related measures.  This rule change allows lawmakers to no longer declare emergency spending measures in order to pass funding targeted for COVID-19 relief activities.  It will make it easier to pass comprehensive climate change legislation.  Finally, the package enhances congressional oversight measures.

The package reauthorized the Select Committee on the Climate Crisis that was established last year to develop policy recommendations on how the Federal government should respond to the impacts from climate change.  It also authorized the creation of a new Select Committee on Economic Disparity and Fairness in Growth to develop and provide policy recommendations to the standing committees of jurisdiction for how to address economic fairness, education access, and workforce development.  Both committees would not have authority to develop and approve legislation.

Interestingly, earmarks, which are a spending tool that allow lawmakers to target funding for specific projects or activities in spending bills, were not addressed in the package.  For the last decade, Congress has banned the use of earmarks in each of the past congressional rules packages.  In the absence of a statement on earmarks in H.Res.8, it could mean that earmarks may be a deemed eligible again.  If earmarks are reinstated, they are likely to be governed by strict rules, as determined and developed by the leadership.

Congress Announces Schedule for 2021  

The House and Senate have released their schedules for 2021.  On January 3, the House and Senate met on the House and Senate floors to officially convene the 117th Congress. While House Members have begun introducing new legislation, the Senate agreed to delay introduction of new bills until after Inauguration Day on January 20.

USEPA Office of Water Assistant Administrator To Depart

U.S. Environmental Protection Agency (USEPA) Assistant Administrator for the Office of Water, David Ross, left the Agency this Thursday after serving three years in the position.  USEPA Administrator Andrew Wheeler announced Ross’ departure to Agency staff in a memo earlier this week.  The Office of Water is responsible for implementing the Clean Water and Safe Drinking Water Acts, managing water infrastructure financing programs, carrying out regulatory actions on water quality measures, and protecting and restoring the nation’s water resources and aquatic ecosystems.  Anna Wildeman will serve as the Acting Assistant Administrator for the Office of Water with Ross’ departure. Wildeman currently serves as the Principal Deputy Assistant for the Office of Water.  The position of Assistant Administrator for the Office of Water requires Senate confirmation.  President-Elect Biden has yet to officially announce a nominee.

House Committee Make-Ups In 117th Congress To See Change

As the 117th Congress begins, congressional leadership will finalize in the coming weeks on the committees’ membership.  At the beginning of each Congress, party leadership determine committee sizes and membership ratios between the majority and minority parties.  Due to the electoral upsets in the House during the November elections, committee sizes and ratios will be different compared to the 116th Congress.  In the House, Democrats maintained the majority, but lost nine seats and Republicans picked up ten seats.  Below is a summary of committee membership vacancies as a consequence of the elections for the committees with jurisdiction over water infrastructure, energy, and environmental protection policies.

Committee on Transpiration and Infrastructure

In the 116th Congress the committee had a total of 66 members, Democrats occupied 37 seats and Republicans 29 seats.  After the elections, there are three Democratic vacancies and three Republican slots to fill.

Committee on Energy and Commerce

In the 116th Congress the committee had a total of 55 members.  Democrats held 31 seats and Republicans 24 seats. After the elections, there are three Democrat and five Republican vacancies.

Committee on Natural Resources

In the 116th Congress the committee had a total of 42 members.  Democrats held 23 seats and Republicans 19 seats.  After the 2020 elections, there are four Democratic vacancies and two Republican vacancies.

New Legislation This Week

H.R. 227, To provide dedicated funding for the national infrastructure investment program and the capital investment grant program, and for other purposes. – Rep. Alcee Hastings (D-FL)

Reports and Regulation

California’s Wildfire and Forest Resilience Action Plan – January 2021 report detailing a collaborative approach between state agencies and federal agencies plan to reduce wildfire risk and increase forest resiliency.

Congressional Research Service WRDA 2020 Summary – Summary report from the Congressional Research Service outlining the provisions passed in the Water Resources Development Act (WRDA) of 2020.