Legislative Update: Senate Passes WOTUS, But White House Expected to Veto

The Senate voted 53-43 to repeal the Biden Administration’s controversial Waters of the United States (WOTUS) rule. Four Democrats and one independent joined Republicans in their efforts to overturn the rule. Although President Joe Biden is expected to veto the measure (H.J. Res. 27), the vote represents a significant victory for Republicans, who have criticized the water rule as a vast federal overreach.

“By voting to overturn President Biden’s waters rule, we are sending a clear, bipartisan message that Congress, even a divided one, will defend working Americans in the face of executive overreach,” Sen. Shelley Moore Capito (R-WV), ranking member of the Senate Environment and Public Works Committee, said in a March 29 statement on the passage of her resolution. “I urge President Biden not to overrule the will of a bipartisan majority in Congress and instead draft a new rule that doesn’t unfairly penalize millions of Americans and jeopardize future growth in our country”

The Biden WOTUS rule, which expands the scope of Clean Water Act (CWA) protections, was supported by Democrats Joe Manchin (D-WV), Jacky Rosen (D- NV), Catherine Cortez Masto (D- NV), and Jon Tester (D- MT), as well as Kyrsten Sinema (I- AZ). The Congressional Review Act (CRA) resolution of disapproval expedited procedures and allowed the resolution to pass with a simple majority vote. The Biden administration described the rule as a middle-ground approach in the longstanding dispute over which waterways should be subject to the 1972 water law’s permitting programs. However, the rule has been met with widespread opposition from farmers, ranchers, and major industry groups, including homebuilders, oil and gas developers, and mining companies.

The resolution passed the U.S. House of Representatives on March 9. The resolution of disapproval is now headed to the President’s desk, where the White House has indicated that President Biden will veto it. Neither chamber appears to have the two-thirds majority necessary to override a veto. The Supreme Court is expected to rule on a case in June, potentially rendering the issue moot.

In other news, on March 20, a federal judge in Texas issued a preliminary injunction ruling that WOTUS does not apply in Idaho and Texas. District Judge Jeffrey Vincent Brown’s ruling rejects a request by 18 construction and trade groups for a nationwide injunction because they failed to demonstrate ” they or their members face irreparable harm” under the WOTUS rule.

 

Regan Defends President’s Budget as Republicans Call for Spending Cuts

Congress has kicked off its budget hearings for FY2024 federal spending. In the House, members of the Republican majority are scrutinizing federal spending and want to cap FY2024 discretionary spending at FY2022 levels, which would require cutting roughly 9% from current spending.

In a March 18 letter to House Appropriations Ranking Member Rosa DeLauro (D-CT), EPA’s Chief Financial Officer Faisal Amin warned that the GOP budget plans could result in “drastic cuts” of approximately $800 million, which would have a significant impact on EPA programs, staff, and operations. This could force the elimination or reduction of several new programs, halt the hiring of new staff, cut grant funding, delay water infrastructure improvements and PFAS remediation, and halt progress on environmental justice and climate change. Amin added that these proposals could impede EPA’s progress in protecting and cleaning up the environment in communities across the country and undermine critical improvements to drinking water and clean water infrastructure.

On March 28, at a Senate Environment and Public Works Committee hearing, EPA Administrator Michael Regan defended the agency’s $12.1 billion FY 2024 funding request, which represents a 19% increase over current funding levels and would add 1,900 full-time positions. Republicans expressed concern about the size of the request, fearing that the additional EPA staff would lead to more regulations and burdens on the economy. Democrats countered that it was time to fund the EPA, which has struggled with stagnant or declining budgets for years.

Regan stressed that the EPA needs more funding and resources to cope with its heavy workload. He noted that staff is already overworked and that additional resources are essential to meet the nation’s environmental needs. However, some Republican senators were skeptical about the EPA’s ability to absorb and responsibly spend the requested amount, especially since they will have to request more funding on top of the additional funding and hiring resulting from the bipartisan Infrastructure Investment and Jobs Act (IIJA) and the Inflation Reduction Act (IRA).

Regan told the panel that the new funds from IIJA and IRA are for temporary positions that will expire in the next five or 10 years and, therefore, would not create an unsustainable hiring spree. The funds the administration is asking for in the FY24 budget would be used to hire 17,000 Full Time Equivalents (FTE) positions needed to support the agency’s core missions, Regan said, such as responding to environmental emergencies and meeting Toxic Substances Control Act (TSCA) duties and deadlines.

Sen. Moore Capito and other Republicans raised questions about EPA’s operating practices, its ability to prioritize regulations, and its efficiency in managing resources within the agency, especially after such a large infusion of funding from recent infrastructure laws. Capito highlighted the agency’s hybrid work schedule and government waste from heating and cooling large government buildings that house few employees. She also pointed to EPA’s decision to devote its time and resources to rewriting and finalizing the WOTUS rule despite the pending ruling in Sackett v. EPA as an example of whether the agency is properly prioritizing its resources.

 

House Readies Vote on Sweeping GOP Energy Bill

The Republican-led House is poised to pass a sweeping energy package known as the Lower Energy Costs Act (H.R. 1), which the Vinyl Institute supports. The bill would increase oil drilling and undo parts of President Biden’s climate agenda in order to lower gas prices. It is unlikely to pass the Democratic-controlled Senate;  Senate Majority Leader Chuck Schumer (D-NY) declared the bill “dead on arrival” and President Biden has vowed to veto it if it reaches his desk. Regardless, the bill underscores GOP priorities and will likely be important for future messaging.

The bill is primarily aimed at bolstering fossil fuels by promoting oil and gas production and sales. It includes provisions requiring the Department of the Interior to conduct at least four annual sales per state in at least nine states for oil and gas drilling rights, reducing the royalty rate for offshore drilling, and limiting the president’s authority to block cross-border energy projects such as pipelines. In addition, the bill would bar any pause on fracking and make it easier to sell U.S. liquified natural gas abroad.

H.R. 1 also seeks to boost mining and speed up the approval process for energy and infrastructure projects by setting time limits for environmental reviews. It would codify several Trump administration changes to the environmental review process under the National Environmental Policy Act (NEPA), including establishing a two-year time limit for conducting more rigorous environmental impact statements for major projects and a one-year limit for less stringent environmental assessments. It would also require anyone wishing to challenge a project’s approval to do so within 120 days.

Finally, H.R. 1 proposes repealing several programs from Democrats’ climate, tax, and health care legislation passed last year. These include cutting programs to reduce methane emissions from the oil and gas sector and eliminating funds provided to EPA for climate-friendly projects, particularly in disadvantaged communities.

After the vote, the House plans to adjourn for a two-week recess as a standoff with Biden over raising the debt limit continues and await a Republican budget proposal.

 

Senate Committee Examines Lifecycle of Plastics

The Senate Environment and Public Works Subcommittee on Chemical Safety, Waste Management, Environmental Justice, and Regulatory Oversight is launching one of six hearings the committee plans to hold on plastics. On March 30, the committee is holding a hearing titled “Petrochemicals to Waste: Examining the Lifecycle Environmental and Climate Effects of Plastic.” The committee is will examine the challenges encountered with the life cycle of plastics, from the extraction and transportation of raw materials to greenhouse gas emissions, refining and manufacturing of plastics, and dealing with waste management, including advanced recycling. Republicans and Democrats on the panel are deeply divided in their views on plastics. They have spent years debating plastics-related legislation aimed at finding solutions to balance the importance of petrochemicals and plastics in producing essential and innovative products for US consumers while finding ways to reduce plastics pollution and the greenhouse gas emissions that are a byproduct of their life cycle.  In some instances, Democratic legislators have proposed bills aimed at banning and halting the production of certain plastics.