Legislative Update: House Convenes with Rocky Start But Starting to Take Shape

After 15 rounds of votes and contentious negotiations with a bloc of Republican members of the House Freedom Caucus, Kevin McCarthy (R- CA) is now Speaker of the House for the 118th Congress. While the Senate remains in recess until January 23, House members are now sworn in. The House also passed its rules package that includes eliminating the pandemic-triggered proxy voting and remote committee meetings, renaming some House committees, adopting budget procedures to limit mandatory spending increases, provisions around “PAY-GO” rules, and repealing of collective bargaining rules adopted last year.  McCarthy also agreed to a new motion to vacate rule, which allows a member to bring forward a motion to remove the Speaker from their role at any time.  Other concessions made in the negotiations with the Freedom Caucus include reinstating the “Holman rule” which can be used to reduce the salary of or attempt to fire federal employees during the appropriations process, requiring spending cuts to accompany efforts to raise the debt ceiling, and establishing a “Select Subcommittee on Weaponization of the Federal Government” under the Judiciary Committee.”

The House Steering Committee met on Jan. 1 to decide on the Committee chairs, including the selection of Jason Smith (R-MO) to chair the House Committee on Ways and Means which will oversee trade issues. Smith announced the following 10 new Republicans were also assigned to the Committee:  Rep. Brian Fitzpatrick (PA); Rep. Claudia Tenney (NY); Rep. Greg Steube (FL); Rep. Randy Feenstra (IA); Rep. Michelle Fischbach (MN); Rep. Nicole Malliotakis (NY); Rep. Blake Moore (UT); Rep. Michelle Steel (CA); Rep. Beth Van Duyne (TX); Rep. Mike Carey (OH).

House Energy and Commerce Chair Cathy McMorris Rodgers (R-WA) announced nine newly selected members: Rep. Randy Weber (TX); Rep. Rick Allen (GA); Rep. Troy Balderson (OH); Rep. Russ Fulcher (ID); Rep. Kat Cammack (FL); Rep. Diana Harshbarger (TN); Rep. Mariannette Miller-Meeks (IA); Rep. Jay Obernolte (CA); Rep. August Pfluger (TX).

The Appropriations Committee will now include Reps. Andrew Clyde (GA) and Michael Cloud (TX) who are Freedom Caucus members who voted against McCarthy on the first 11 ballots during McCarthy’s attempt to win the gavel. Both are expected to bring an anti-spending edge to committee. Other members named to the committee include: Reps. Stephanie Bice (OK), Jerry Carl (AL), freshman Juan Ciscomani (AZ), Jake Ellzey (TX), Scott Franklin (FL), Michael Guest (MS), Jake LaTurner (KS), and Ryan Zinke (MT).  House Appropriations Chairwoman Kay Granger (R-TX) has not announced whether she will provide waivers to five term-limited senior appropriators seeking to lead their preferred subcommittees, but reportedly, she going to stick with conference rules and planning to tap Rep. Chuck Fleischmann (TN) to lead the Subcommittee on Energy and Water instead of term-limited Mike Simpson (ID). A committee spokesperson says the roster and recommended subcommittee chairs could change and will need to be ratified by the GOP steering committee when they meet next week.

Administration Quietly Releases WOTUS Rule and Environmental Justice Guidance

On the last business day of the year, the Biden Administration quietly released the final rule defining the “Waters of the United States” (WOTUS). The 514-page rule, issued by the Environmental Protection Agency (EPA) and the Army Corps of Engineers, rescinds the Trump administration’s 2020 Navigable Waters Protection Rule and is the first of two steps in determining which waters and wetlands are subject to the Clean Water Act (CWA) jurisdiction. The EPA plans to issue a “refining” rule according to its long-term action plan on the agency’s regulatory agenda. The rule will “reduce uncertainty from changing regulatory definitions, protect people’s health, and support economic opportunity,” according to an EPA press release. “The final rule restores essential water protections that were in place prior to 2015 under the Clean Water Act for traditional navigable waters, the territorial seas, interstate waters, as well as upstream water resources that significantly affect those waters.”

Agriculture groups, other industries, and states are expected to take legal action against the rule. They argue that the regulation is “federal overreach” and is inconsistent with the Clean Water Act. The incoming chairman of the House Agriculture Committee, Glenn Thompson (R-PA), called the regulation an “egregious government land grab,” while members of the Congressional Western Caucus released statements criticizing the rule and EPA for not waiting until the Supreme Court had ruled on the Sackett V. EPA case. The Supreme Court is currently considering EPA jurisdiction under the Clean Water Act leaving open whether this will be the final definition.

Also on Dec. 22, the Office of Air and Radiation (OAR) issued guidance on the principles for EPA to address environmental justice (EJ) concerns in air quality permitting as part of the administration’s priorities to direct agencies to make achieving EJ and equity part of their mission. The agency says the guidance, which uses a case-by-case approach, provides a framework of eight principles and recommendations for the EPA region, using “existing Clean Air Act (CAA) authorities and discretion, federal civil rights laws, as well as other federal and state laws that may help to mitigate potential adverse and disproportionate effects of a permitting action.” The agency also notes that the legally non-binding document does not modify or supersede any requirements of the CAA or its implementing regulations, any EPA-approved CAA permitting program, or Title VI of the Civil Rights Act, nor does it constitute a regulation.

EPA’s Goal to Convert to a “Whole Chemical” Model Moves Forward

The EPA published revised risk determinations for carbon tetrachloride (CC14), 1-bromopropane (1-BP)), and n-methylpyrrolidone (NMP). In all three cases, the main elements of the drafts published earlier this summer were retained, but industry arguments that the whole chemical approach violates the Toxic Substances Control Act (TSCA) were also rejected. The new determinations also expand the lists of uses that are considered to pose an unreasonable risk, according to the new policy from EPA — which no longer assumes workers will use effective personal protective equipment (PPE) to prevent or mitigate occupational exposures. “[W]ithout the assumed use of PPE, inhalation exposures to workers now also drive the unreasonable risk and, in addition to there being risks of cancer effects from dermal exposures, risks of non-cancer effects (specifically liver toxicity) from dermal exposures are now also driving the unreasonable risk,” EPA says.

The Agency’s unified agenda of rulemaking shows that it is planning to finalize seven of its first 10 Toxic Substances Control Act (TSCA) risk management rules by late 2024, with proposals coming this year. The EPA’s proposed ban on current uses of chrysotile asbestos, which it proposed in April, has been moved up the schedule. EPA also shifted some TSCA rules to 2025, likely due to budgetary limitations.  The Agency also plans to revise its industry fee schedule; report rules for per- and polyfluoroalkyl substances (PFAS) and asbestos; and rework versions of the five Trump-era rules governing “persistent, bioaccumulative and toxic” chemicals.

OIG Finds EPA Overestimated Fee Receipts for TSCA

According to the Environmental Protection Agency’s (EPA) Office of Inspector General (OIG), the Agency overestimated the Toxic Substances Control Act (TSCA) fees it would collect in FY2019 and FY2020 while underestimating its ability to offset costs with fees by nearly $25 million.  The resulting underfunding may potentially strengthen the Agency’s case for finalizing a rule that would sharply increase fees. “EPA anticipated collecting approximately $20 million, which represented around 25 percent of its estimated costs of $80.2 million,” in its 2018 fees rule, OIG’s Dec. 29 audit report shows.  “However, during FYs 2019 and 2020, the EPA collected relevant TSCA service fees totaling significantly less: approximately $2.7 million and $3 million, respectively. This difference largely occurred because the EPA overestimated the number of actions that would trigger fees in the TSCA fees rule.”