Legislative Update: Supreme Court Rules Against EPA on Clean Water Act

In another blow to the Administration, the Supreme Court made a 5-4 decision in the case of Sackett v. EPA to curtail EPA’s authority and narrowed the Clean Water Act (CWA) scope regarding wetlands. The court ruled that only ” indistinguishable ” wetlands from adjacent jurisdictional waterbodies can be protected under the law. This decision effectively overturns the wetlands provisions in the Biden administration’s Waters of the United States (WOTUS) rule and raises doubts about other aspects of the policy.

The high court’s opinion, written by Justice Samuel Alito,  stated that the agency’s interpretation of wetlands covered by the CWAt is inconsistent with the law’s text and structure. The court determined that the law applies only to wetlands that have a continuous surface connection to bodies of water that are considered “waters of the United States” in their own right.

The court acknowledged that temporary interruptions between bodies of water, caused by weather and climate events such as low tides and dry spells, can occur. However, it emphasized that wetlands protected under the CWA should generally be indistinguishable from other regulated waters.

The decision from the high court is the latest in cases to realign EPA’s overreaching authority to police pollution after the court limited the agency’s power to regulate greenhouse gas emissions from power plants.

EPW Ranking Member Shelley Moore Capito (R-WV) released a statement praising the Supreme Court’s ruling saying, “We already knew the EPA’s recent regulatory actions were harmful to American consumers, workers, and employers, but with two straight losses in major environmental cases – WV v. EPA and now Sackett v. EPA – the Court has confirmed the Biden administration’s pattern of environmental overreach is illegal. I was proud to both support the petitioners on this case last year and lead a successful effort this year in Congress to overturn the Biden WOTUS rule, and am thrilled with the Court’s decision today, which is a major win for individual freedom.”

 

EPA Seeks to Change Confusing and  Misleading Recycling Symbol

The Environmental Protection Agency (EPA) is urging the Federal Trade Commission (FTC) to replace the chasing arrows recycling symbol for plastics with a solid triangle outline. The EPA argues that the current symbol, combined with a resin identification code, is confusing and misleading for consumers, implying that all plastics are recyclable when many are not financially viable to recycle. Both environmentalists and the plastic industry support EPA’s recommendation.

The proposed change is part of the EPA’s efforts to address low recycling rates and combat the global plastic pollution crisis. The current symbol was not intended to indicate a product’s recyclability according to the ASTM, an international standards organization. The EPA suggests that adopting ASTM’s standard, which uses a solid triangle outline for all plastics, would reduce consumer confusion and prevent the entry of non-recyclable plastics into recycling facilities.

The plastics industry agrees that the current use of the resin code as a consumer communication tool is inappropriate. They support correctly using the resin identification code and believe a new standard could help increase plastic recycling. However, some critics argue that simply changing the symbol is insufficient and advocate for a broader phaseout of all single-use plastics.

 

Freight Rail Industry Testifies on Ongoing Supply Chain Challenges

The House Transportation and Infrastructure Subcommittee on Railroads, Pipelines, and Hazardous Materials on May 11 held a hearing titled “Getting Back on Track: Exploring Rail Supply Chain Resilience and Challenges.” The hearing included witnesses from the freight rail industry, unions, and the American Chemistry Council (ACC) representing shippers.   The hearing aimed to assess the state of freight railroad transportation networks and the persistent challenges in the supply chain.

Chairman Troy Nehls (R-TX) discussed the COVID pandemic’s far-reaching effects on US supply chains and railroads.  He criticized the Biden administration for being slow to act on the supply chain crisis, saying that specific policies have contributed to the ongoing challenges.  He noted that the committee plans to review the Surface Transportation Board’s (STB) initiatives after hearings last year on the Board’s proposals and activities to address rail service challenges.

Ranking Member Donald Payne (D-NJ ) introduced the Freight Rail Workforce Health and Safety Act to guarantee seven paid sick days for all freight railroad workers.  He shared his disappointment that the railroad industry didn’t provide them independently.

The rail industry witnesses, Association of American Railroads President and CEO Ian Jefferies and American Short Line and Regional Railroad Association President Chuck Baker, highlighted the many service-related challenges they face, naming their inability to find and keep employees at the top of their list.  Several witnesses also suggested that permitting reform would be key to solving a range of problems.  Association of American Railroads President and CEO Ian Jefferies said that streamlining the process for obtaining Clean Water Act permits would be particularly helpful.

ACC President and CEO Chris Jahn also called for permitting reform while pushing for the STB to move forward with reciprocal switching.  He supported establishing minimum service delivery standards, conveying shippers’ frustrations with needing more recourse when service issues such as late shipments occur.

Marc Scribner, senior transportation policy analyst for the Reason Foundation, called for letting the freight rail industry pursue technological advances and innovation, including greater deployment of autonomous track inspection.

In taking the subject of supply chain problems further than just railroads, Committee Chairman Sam Grave (R-MO) published an op-ed in the Washington Times outlining his plan for the committee to advance standalone and targeted bills that will gain bipartisan support to strengthen US supply chains and alleviate disruptions.  On May 23, the Committee approved several of these bills, including the Supply Chain Improvement Act (H.R. 3365) introduced by Rep. John Duarte (R-CA).  Also notable, the committee passed the Save Our Seas 2.0 Amendments Act (H.R. 886) during the markup.

 

Senator Carper Announces His Retirement and New Green Friendly Permitting Bill  

Senate Environment & Public Works Committee (EPW) Chairman Tom Carper (D-DE) announced he will not seek re-election in 2024. This decision provides an opportunity for another Democrat to lead the key environmental committee if Democrats maintain their majority in the upcoming election. Carper, who has served in the Senate since 2000, became the top Democrat on EPW in 2017 and assumed the chairmanship after the 2020 elections. The next most senior Democrat on the committee is Senator Ben Cardin (MD), who is also retiring. Senators Bernie Sanders (I-VT) and Sheldon Whitehouse (RI) follow in seniority but currently serve as chairs of other Senate committees. Senator Jeff Merkley (OR) is the next to hold the most seniority on the EPW panel to hold the most seniority.

On May 18, Senators Carper and Brian Schatz (D-HI), along with several other Democrats, introduced a discussion draft of permitting legislation that works in conjunction with the Inflation Reduction Act, aiming to expedite green  energy projects, particularly transmission lines. The measure joins several other permitting reform bills, which are more focused on accelerating more traditional  (including fossil) fuel projects, in addition to green initiatives.   It also comes as congressional leaders and the White House are discussing permitting reform as part of a possible debt limit deal.

Carper said he would only back a permitting package resulting in a lower emission profile. The Promoting Efficient and Engaged Reviews (PEER) Act sets a two-year timeline for projects that reduce planet-warming emissions or help safeguard communities from climate-related effects. In contrast, Republican bills, such as the one introduced by EPW counterpart, Sen. Shelley Morro Capito (R-WV), and Senator Joe Manchin’s (D-WV) proposal seeks a two-year timeline for all projects, regardless of their source.

The Democrats’ bill focuses on speeding up reviews and grants federal regulators more authority in planning transmission lines. It emphasizes considering cumulative impacts, which involves assessing how a project’s effects interact with those of existing polluting or harmful projects to understand the overall impact on a community. The bill also introduces the concept of Community Benefits Agreements, allowing agencies to require project proponents to enter into agreements that offset significant harms caused by the project.  The bill serves as a marker for discussions surrounding NEPA modifications as Democrats are recognizing that the current NEPA review process takes too long – especially given their goals towards net-zero emissions – and aims to carve out an accelerated process for green projects only.

Democratic Senators Sheldon Whitehouse (RI), Tina Smith (MN), and Chris Murphy (CT) are the other cosponsors of the legislation.

 

Debt Limit Talks Continue Mixed Messages

According to the Treasury Department’s most recent projection, there are seven days until the earliest possible federal default on the national debt.  As of Wednesday evening, negotiations between President Joe Biden and House Speaker Kevin McCarthy (R-CA) have been described as productive but have not yet resulted in a resolution. Negotiators left without making public statements after a four-hour meeting at the White House. McCarthy expressed cautious optimism, stating that things are going a little better and that progress is being made. However, he acknowledged that the two sides are still far apart on proposals, particularly regarding spending cuts and work requirements for social safety net programs.

There is speculation that a deal might be closer than it appears, with signals of progress on spending caps and energy permitting. Up until now, the White House has only offered a spending freeze for next year, but Republicans are demanding that any agreement must reduce discretionary spending.  The White House and Republicans anticipate finding some common ground on unspent COVID aid dollars.  Worker requirements on social programs remain a sticking point.

While House Speaker McCarthy expects the majority of House Republicans to support any deal he negotiates, it is unlikely that hardline GOP members will accept compromises with the White House. White House aides believe that to pass an agreement and avert a default; they may need around 100 Democratic votes in the House of Representatives.  This sets the parameters the White House will use in what they can negotiate and get across the finish line.

House lawmakers are heading home for Memorial Day recess after votes on Thursday morning.  Leadership announced that lawmakers would get 24 hours notice before having to return to Washington for votes.  Speaker McCarthy also promised a 72-hour period for reviewing final legislation.  A Monday vote is unlikely due to the holiday, leaving Tuesday as the next possible day to vote before Thursday, June 1, which has been named “X Day.”

In a long-shot bid, House Democrats announced on Wednesday that they have unanimously endorsed the discharge petition to force a vote on legislation to hike the debt ceiling and prevent a default. With 213 signatures, Democratic leaders still need to find five Republicans for the petition to be successful. This is unlikely considering the ongoing bipartisan talk appears to be moving and that only two discharge petitions have been successful in the last two decades.