Appropriations and the Bipartisan Innovation Act at the Top of the Legislative Agenda

The House and Senate are out of session until June 7, but members of the House Judiciary Committee have returned for an emergency session to vote to markup gun legislation. Recent actions are mapping out legislative and administration agendas as lawmakers face a shrinking window of time before the midterm elections will likely halt any meaningful legislating on Capitol Hill.

Appropriations and the Bipartisan Innovation Act at the Top of the Legislative Agenda
House and Senate committee staff will remain busy working on appropriations and reconciling the Bipartisan Innovation Act.  Leaked documents have revealed that Congressional leadership is pursuing a very ambitious timeline for the China anti-competitiveness bill that combines the Senate’s United States Innovation and Competition Act (USICA) with the House-passed America COMPETES Act.  According to the documents, leaders in both chambers have agreed on the monumental task of filing the conference report by June 21.  House Speaker Nancy Pelosi (D-CA) reiterated the optimistic schedule in her weekly press conference on May 17, saying she hopes the bill will pass by July 4. Most in Washington are skeptical that differences between the bills can be resolved so quickly, especially considering the two chambers’ track record on even agreeing to hold a conference in the current political environment.

There is a persistent rumor circulating that the trade title may be removed altogether because of the significant bicameral differences between the House and Senate bills. The trade title is the most controversial part in both bills, with the least bipartisan agreement between the two parties.  However, the ranking member on the Senate Finance Committee, Mike Crapo (R-ID), insists he remains committed to reaching an agreement. The Vinyl Institute is advocating the Miscellaneous Tariff Bill (MTB), which would provide tariff relief to many U.S. companies, to be included in the trade title.

Controversial Nominee Says EPA Ready for SCOTUS Ruling on West Virginia v. EPA
The Senate Environment and Public Works (EPW) Committee held a hearing May 25 on the nomination of Joe Goffman to be permanent head of the EPA’s Office of Air and Radiation. The office is responsible for developing agency policy on conventional pollutants and greenhouse gasses. Goffman, who is currently principal deputy assistant administrator and performs the duties of air chief, has faced considerable opposition from Republican lawmakers given his role in developing climate and air rules for power plants, vehicles, the oil and gas sector, and other industries.

Ranking Member Shelley Moore Capito (R-WV) criticized Goffman for his lack of response to her congressional oversight requests and questioned his involvement in drafting the Obama-era Clean Power Plan (CPP), which is among the regulations before the Supreme Court. She pressed Goffman on the question of whether the agency can regulate greenhouse gases (GHG) beyond a power plant’s “fenceline,” the central issue in West Virginia v. EPA. The CPP set strict carbon limits for each state and encouraged states to meet those limits by transitioning to alternative energy sources. The Trump administration repealed the rule and the Biden administration says it will rewrite the rule, but has not yet done so.

The expected SCOTUS decision on the scope of EPA ‘s authority to limit GHGs from the power sector is expected in the coming weeks and will also determine whether EPA ‘s current and future rules may potentially see the same pattern of flip flopping from one administration to the next.  Goffman says EPA is prepared to respond to the SCOTUS ruling, and told senators that EPA has already identified regulatory options for proceeding depending on the “nature and contours” of the authority that the Court determines.

Senate EPW Committee member Cynthia Lummis (R- WY) has placed a hold on most of Biden’s EPA nominations because the administration’s reversal of a Trump-era proposal that would keep coal-fired power plants operating in the state. Lummis’ spokesperson has confirmed the senator will block Goffman’s nomination when it is reported out of committee.

EPA Extends Comment Period on TSCA Rule
The Environmental Protection Agency (EPA) announced that it would extend the comment period on its proposed Toxic Substances Control Act (TSCA) rule to ban chrysotile asbestos after receiving requests from industry and health groups.  In a May 25 Federal Register notice, the agency extended the comment deadline 30 days, from June 13 to July 13, 2022. Stakeholders have said they needed more time to weigh the complex legal, economic and scientific issues underlying the proposal and prepare rebuttals. Business groups and the chemical industry requested the extension, saying they needed more time to respond effectively to the EPA rule, which overestimates worker exposure at chlor-alkali facilities, especially by not considering existing Occupational Safety and Health Administration (OSHA) safety regulations are not being considered.  In addition, these groups say they would need more time to address the misleading and inaccurate claims about the safety of current industry practices and the availability of proven and economically viable non-asbestos technologies, as well as the significant impacts on the already strained U.S. chlorine supply chain and water utilities’ supply of chlorine for drinking water treatment.  Meanwhile, the Senate EPW Committee has scheduled a subcommittee hearing for June 9 on an bill to ban asbestos introduced just last month by Sen. Jeff Merkley (D-OR) that currently has no Republican support and failed to pass in previous introductions.

EPA official sees “10-year Horizon” for TSCA New Chemicals Initiative, While EPA Seeks Input on Use of AI in Chemical Reviews
Science advisor Anna Lowit, said the agency could take up to 10 years to conclude its multi-year research plan focused on modernizing its TSCA reviews of new chemicals.  The process will span several administrations, although EPA hopes to begin adopting individual reforms as they happen, adding that some of the reforms could be ready in as little as three years.  During the Interagency Coordinating Committee on the Validation of Alternative Methods (ICCVAM) annual symposium on May 26, Lewit remarked they are still in the process of starting work on “all aspects” of the plan, but “the real work will start in next fiscal year.” EPA has issued a call for nominees to serve on a Board of Scientific Counselors (BOSC) panel that will meet this fall to review the research plan. Nominations are due June 30. EPA has not yet announced a date for the actual review, but Lowit told ICCVAM attendees that she expects the BOSC to meet in late October or November.

Meanwhile, at the National Academy of Sciences (NAS) May 25-26 workshop on the use of AI in systematic reviews, Kris Thayer, director of the Chemical and Pollutant Assessment Division within EPA’s Office of Research and Development (ORD), highlighted the agency’s ongoing work with AI, noting that EPA researchers have “over the past few years had a lot of success onboarding machine learning for screening” for studies relevant to chemicals risk analyses, including TSCA evaluations. Thayer said the agency asked the NAS to convene the workshop in May to gather input on the “next wave” of technologies that can be applied to systematic review, which significantly reduces the time required to identify relevant data from studies that are typically conducted manually.

SCOTUS Denies GOP States’ Request to Reinstate a Block on the Social Cost of Carbon Metric
The Supreme Court ruled in favor of the Biden administration on May 26 in the closely-watched Louisiana et al. v. Biden case, letting stand an appellate ruling that allows EPA and other federal agencies to continue using the social cost of carbon (SCC) metric in analyzing policies that affect greenhouse gases. The case was brought by a petition from ten Republican-led states that pushed to enforce a district court injunction against using the tool while their legal challenge proceeded through the system.  The ruling was just on the injunction, not the legality of the metric itself.

Department of Transportation Issues Temporary Waiver of Buy America Requirements for Construction Materials
On May 19, the U.S. Department of Transportation (DOT) issued a temporary waiver of Buy America requirements for construction materials on all federally funded projects for a period of 180 days due to lack of adequate compliance processes in place. The waiver applies to awards that are obligated on or after May 14 and before Nov. 10, 2022.  During this period, DOT expects states, industry, and other partners to begin developing procedures to document compliance. It also provides time for feedback and information gathering on existing procurement of construction materials, as well as development of strategies to increase domestic production of these materials.

The Infrastructure Investment and Jobs Act (IIJA) expanded Buy America’s applicability and required the Office of Management and Budget (OMB) to promulgate guidance extending the current Buy America requirements regarding iron and steel and manufactured products to cover construction materials, including plastic and polymer-based products. OMB issued initial IIJA- implementing guidance effective May 14, 2022. OMB also issued a request for information seeking public comments on the guidance and recently extended the deadline for comments to June 6, 2022.