Legislative Update: Following Recess, Congress Works to Avoid Shutdown

Senate and House Try to Avoid a Shutdown

After the August recess, lawmakers are back in session with a packed agenda and little time for action on FY 2024 government spending legislation.   In addition to funding the government by Sept. 30, Congress must reauthorize several expiring bills, including the Farm Bill.  Senate Majority Leader Chuck Schumer (D-NY) and House Speaker Kevin McCarthy (R-CA) found common ground to cooperate on a short-term continuing resolution (CR) that would keep the government funded until December, allowing time for regular appropriations bills move forward.  But Speaker McCarthy faces an uphill battle as he continues to negotiate with the more conservative Republicans in his caucus, who prefer a shorter CR and want spending cuts, increased border security funding, and impeachment proceedings against President Biden in exchange.

This week, the House initially planned to bring the Defense Appropriations Bill (H.R. 4365) to the floor. However, despite Speaker McCarthy moving forward with calling for an impeachment inquiry, the House has hit an impasse due to a lack of votes (I don’t think folks generally understand how the House has to pass a rule to limit action on a bill so let’s just say they don’t have the votes – same thing.  Conservative Republicans are still pushing for spending concessions, while Democrats stand united in their opposition.  The White House has also threatened to veto a Defense bill that includes conservative policy riders.

As the fate of the Defense bill hangs in the balance, House leadership is exploring their options.  One possibility is moving forward with a short-term continuing resolution, but finding an appropriate legislative vehicle remains a challenge. One approach being considered is bundling the Homeland Security and Pentagon bills with disaster aid funds and the previously passed Military Construction-VA bill. However, this would still require garnering support from House Republicans, given their narrow majority, and reaching a compromise with the Senate.

In the Senate, lawmakers are working on a three-bill minibus, using the House Transportation-HUD bill as a base and adding their own Military Construction-VA and Agriculture-FDA spending bills. The White House has offered its support with certain conditions. Senators plan to continue working on amendments and aim to pass the bill in the coming week.

STB Issues Proposed Rule Regarding Reciprocal Switching

The Surface Transportation Board (STB) on Sept. 7 unanimously voted to issue a long-awaited proposed “reciprocal switching” rule, allowing shippers to transfer their cargo from one railroad to another under specific circumstances, a move supported by the Vinyl Institute and will promote competition in the consolidated railroad industry.  The Rule sets new standards that would enable companies served by only one railroad to switch to a different one at the earliest opportunity as a “remedy for poor service” and to promote competition in the consolidated railroad industry. Notably, the standards are intended to be clear, uniform, and consistently applied across Class I rail carriers and their affiliated companies. The STB’s proposed standards include:

Service Reliability: This measures a rail carrier’s success in delivering shipments by the original estimated time of arrival (OETA) compared to actual delivery times. The success rate would start at 60% during the first year and increase to 70% in subsequent years.

Service Consistency: This is based on the transit time for shipments, with eligibility for relief if the average transit time increases by a certain percentage (e.g., 20% or 25%) compared to the previous year.

Inadequate Local Service: This measures a rail carrier’s ability to perform local deliveries and pick-ups of railcars within the applicable service window, with a success rate requirement of at least 80%.

The proposal also mandates Class I carriers to provide customers with historical data for these service metrics and allows for affirmative defenses for service failures beyond the rail carrier’s control, such as natural disasters.  Reciprocal switching agreements would typically last between two and four years, with the possibility of longer durations depending on feedback.

STB Chairman Martin Oberman emphasized that the rule will address competition concerns, promote predictability, and provide relief to rail customers suffering from poor service.

Comments on the Notice of Proposed Rule Making (NPRM) are due by Oct. 23, 2023, and reply comments are due by November 21, 2023.

Senate Environment and Public Works Hold Hearing on Water Infrastructure

During a Sept. 6 hearing on the implementation of the bipartisan infrastructure law, Senate Environment and Public Works Committee Chairman Tom Carper  (D-DE) highlighted the Environmental Protection Agency’s (EPA) assessment that drinking water infrastructure needs in the U.S. will amount to a staggering $625 billion over the next 20 years. The EPA’s Drinking Water Infrastructure Needs Survey and Assessment (DWINSA), published in April, formalized these estimates and included detailed information on the methodologies used to determine national and state-specific infrastructure needs.

The DWINSA report reflects a 32 percent increase in funding needs compared to the previous assessment conducted in 2018. The findings are crucial for determining funding allocations to states, including those from the Drinking Water State Revolving Fund (DWSRF), and will also influence how funds from the bipartisan infrastructure law are distributed.

On Sept. 11, Senator Elizabeth Warren (D-MA) and Ayanna Pressley (D-MA), along with nine colleagues, wrote a letter to Environmental Protection Agency (EPA) Administrator Michael Regan expressing concerns over a 44% reduction in funding for lead service line replacement (LSLR) in Massachusetts between the fiscal years 2022 and 2023. They are urging the EPA to reconsider the methodology used to determine each state’s funding needs for lead pipe removal.

Because many water systems are still developing service line inventories, the data used for allocation needs to be completed and may not accurately represent the needs of each state. The lawmakers are worried that this skewed data has resulted in Massachusetts receiving significantly less funding for LSLR projects in 2023, potentially jeopardizing access to safe drinking water, particularly in disadvantaged communities. They are urging the EPA to provide uniform guidance and review the allocation process to ensure communities receive appropriate funding for clean and safe drinking water.

UN Releases Legally Binding Draft Text of  Global Plastics Treaty   

The UN Environmental Programme (UNEP) has unveiled the “zero draft” of a legally binding global plastics treaty, representing an initial step in addressing the issue of plastic waste in the treaty process. While it’s important to note that this draft is a preliminary starting point and not anticipated to fully resolve major disagreements among participating nations yet, it is significant that it defers discussions on chemical recycling to a later stage. VI and global vinyl and plastics organizations, who support a comprehensive global plastics agreement but are concerned over the “absence of options” to accelerate plastics circularity.  The third of five planned formal negotiation sessions will be held November 13-19, 2023,  in Kenya, where the Intergovernmental Negotiation Committee (INC-3) will start debating proposed measures in the draft.

The draft includes options or placeholders for different language and possible measures. It calls for reducing plastic production but also provides language banning polymers and chemicals “of concern” and eliminating “problematic and avoidable plastic products, including short-lived and single-use plastic products.”  The Vinyl Institute does not support an agreement that bans or restricts polymers and products.  Broad bans and restrictions would lead to unintended consequences that are counterproductive to climate goals, forcing consumers to use products with a worse environmental profile, often with less tested performance properties.

Other proposed measures would mandate recycled content requirements and Extended Producer Responsibility (EPR), and waste management measures.   It also offers options for targets to be decided unilaterally or by states, accommodating different preferences among participating countries.