Legislative Update: House Republicans Look for New Leadership, But Future is Uncertain

House Republicans Seek New Leadership

House Republicans chose Majority Leader Steve Scalise (R-LA) as their candidate for speaker in a secret ballot, narrowly edging out competitor House Judiciary Chairman Jim Jordan (R-OH) in a 113-99 vote.  (Three of those votes are from delegates representing territories that don’t get to vote on the House floor).  Scalise’s bid will take considerable work to win the support of several conservatives and moderates vowing to vote against him on the floor. He can only afford to lose four Republican votes, making it difficult to reach the 217 votes needed to become Speaker. And currently, many more than that are publicly opposed to him.

Scalise would replace the former speaker, Kevin McCarthy (R-CA), who was removed from his role by eight Republicans and all House Democrats after Rep. Matt Gaetz (R-FL) filed a motion to vacate the speaker position last week.  In the interim, McCarthy chose  Rep. Patrick McHenry (R-NC) as speaker pro tempore to serve in the office until a new speaker is chosen.

If Scalise becomes Speaker, Rep. Kevin Hern (R-OK) announced that he would run to become the next House majority leader.  House Majority Whip Tom Emmer (R-MN) has also expressed interest in the position but has not formally announced his running. There is speculation that House GOP Conference Chair Elise Stefanick (R-NY) and Byron Donalds (R-FL) may also throw their hat in the ring for the leadership post.

Hern is chair of the Republican Study Committee, the largest block of House conservatives, had contemplated joining the race for speaker, but he never formally entered the race.

House Schedule and Appropriations Come to a Halt

It is not yet known when the House will hold the vote on Scalise’s nomination, but the possibility of a government shutdown looms as the House faces uncertainty in the absence of a Speaker.   Congress narrowly avoided a shutdown after the House rallied to pass 335-91, a seven-week Continuing Resolution (CR) on Sept. 30.  With the current continuing resolution (CR) to expire on November 17, legislative activity in the House, including consideration of appropriations bills, has come to a standstill.

The House was set to vote on the FY2024 Energy and Water and Legislative Branch (H.R. 4394) funding after House Republicans pushed for deeper cuts to federal energy and climate programs in the spending bill. This includes an additional $1 billion reduction from the Office of Energy Efficiency and Renewable Energy (EERE). The House Rules Committee greenlit 61 amendments to H.R. 4394, allowing debate on riders designed to dismantle key components of the Biden administration’s climate agenda and the Inflation Reduction Act (IRA) beyond what the Appropriations Committee had previously approved.

Notably, the amendment made in order for debate by Rep. Matt Rosendale (R-Mont.) would reduce the bill’s topline by an additional $1.55 billion.  Rosendale also got an amendment that would cut funding for the Army Corps, which manages many of the nation’s water infrastructure projects, by $620 million to match fiscal 2022 levels.

The Rules Committee also approved a rule for the fiscal 2024 Legislative Branch appropriations bill (H.R. 4365) that would eliminate a requirement to reduce plastic waste across the legislative branch.

Democrats on the Rules Committee have criticized these cuts, viewing them as threats to American energy security that could increase costs. They also pointed out that the bill is unlikely to clear the Democratic-controlled Senate.

EPA Seeks to Resume First-Ever Challenge to TSCA Chemical Testing Order

The EPA is moving forward with the Vinyl Institute (VI) v. EPA case, marking the first-ever challenge to a Toxic Substances Control Act (TSCA) chemical testing order. After a temporary pause of two months, the EPA on Oct. 10 requested that the U.S. Court of Appeals for the District of Columbia Circuit resume proceedings. This case is of great significance as it has the potential to establish critical  precedents regarding the EPA’s authority to issue chemical testing orders under the reformed TSCA, particularly those related to industry-funded tests and the utilization of alternative methods, such as computational or in vitro assays, as alternatives to animal studies.

VI had raised concerns in June regarding the feasibility of an avian toxicity test involving 1,1,2-trichloroethane. They specifically pointed out issues with maintaining stable chemical concentrations in the feed intended for birds and their hatchlings. However, during the litigation pause, the EPA conducted preliminary tests on the chemical’s recovery in the feed, ultimately determining that it met the required dose specified in the Test Order. Consequently, the EPA has given the green light for the testing to proceed.

This recent development introduces the issue of feasibility in the ongoing lawsuit, which had previously revolved around arguments related to the EPA’s consideration of existing data, chemical analogs, and the prioritization of non-animal methods (NAMs) over live vertebrate testing, in line with the directives of the TSCA. The outcome of this case could have broader implications for challenges against the other eight orders issued by the EPA in 2022 and may set a significant precedent regarding the criteria the EPA must satisfy when justifying future chemical testing orders.

Supreme Court Rejects Review of Congressional Use of CRA to Roll Back Environmental Rule

The U.S. Supreme Court has declined to review lawmakers’ use of the Congressional Review Act (CRA) in 2017 to repeal an Obama-era rule designed to safeguard streams and waterways from coal mining pollution. This decision comes in response to a petition filed by Citizens for Constitutional Integrity and Southwest Advocates Inc. The advocacy groups had argued that the CRA unconstitutionally empowers Congress to overturn executive branch decisions.

The groups contended that Congress used the CRA and Senate cloture rules to bypass the separation of powers and nullify a U.S. Department of the Interior regulation to minimize the environmental impact of coal mining on surface water and groundwater. The Republican-controlled Congress repealed the rule, which had been created during President Barack Obama’s administration.

Advocacy groups expressed disappointment in the decision, emphasizing the novel notion that the Administration, and not the Congress should have the last word in policy making.

EPA Faces Legal Challenge Over Missed Chemical Risk Evaluation Deadlines

Chemical industry groups, including the American Chemistry Council (ACC), are urging the Environmental Protection Agency (EPA) to uphold its commitments related to conducting manufacturer-requested risk evaluations (MRREs) for specific chemicals under the Toxic Substances Control Act (TSCA). The ACC and the Texas Chemical Council (TCC) issued a formal notice of intent to sue the EPA after the agency missed its July deadline to publish the MRREs.

The industry requested and funded these evaluations to ensure the safety of diisodecyl phthalate (DIDP) and diisononyl phthalate (DINP), chemicals used in various commercial and consumer products. The industry contends that these chemicals are safe when used as intended, and the MRREs are essential for enhancing confidence in their safety. Furthermore, the industry emphasizes that these evaluations have broader implications for future reviews under the reformed TSCA.

While the EPA has accepted the requests for evaluations, delays in completing them have prompted industry groups to demand that the EPA fulfill its obligations promptly.

The notice letter underscores the EPA’s obligations towards the industry and accuses the agency of failing to fulfill a non-discretionary duty regarding the completion of MRREs. This mirrors a recent lawsuit by environmentalists, challenging missed deadlines for evaluations of chemicals, including diisodecyl phthalate (DIDP) and diisononyl phthalate (DINP), as well as 20 other chemicals prioritized for evaluation. Both parties argue that the EPA has violated TSCA section 6(b)(4)(G) by not meeting statutory deadlines for risk evaluations and not releasing draft assessments for these substances.

The industry letter demands that the EPA perform its non-discretionary duty to complete the MRREs promptly, though it does not specify potential remedies.