Legislative Update: A Potential New Plastics Recycling Bill Could Shift the Recycling Political Debate in the 118th Congress

With the 118th Congress in full swing, the usual plethora of recycling and plastics bills are expected to be reintroduced, but a new bill more favorable to industry provides an “alternative framework” to the Break Free From Plastic Pollution Act that could be introduced soon. The ACC President and CEO said that there will soon be a bill offering a different approach to the Break Free bill and that the ACC is having bipartisan conversations with multiple members of Congress. The ACC’s five-point plan, which was unveiled in mid-2021, serves as a starting point for discussions on the potential bill.

The Break Free From Plastic Pollution Act, first introduced by Democrats on Capitol Hill in 2020, includes elements opposed by the plastics industry, such as restrictions on permitting new plastics facilities while the government updates its emissions regulations, Extended Producer Responsibility (EPR) provisions and bans on certain plastics. A new bill based on the plan from ACC is likely to receive broad political support from industry groups that have already successfully passed advanced recycling legislation in 21 states. Discussion on the new bill coincides with the administration’s recent move to invest in research and development to improve existing plastics recycling technologies and find solutions to production concerns. As we reported in February, the Department of Energy’s recently released Plastics Innovation Strategy for Plastics Innovation (SPI) report calls for advancing certain chemical recycling technologies, improving mechanical recycling, and promoting biodegradable and bio-based plastics technologies.

In other recycling news, the National Stewardship Action Council (NSAC) hosted a webinar on Feb. 23, with more than a dozen representatives from nonprofits, activist groups and brands to make the case for deposit return systems as the best way to reduce waste and increase recycling. Advocates for bottle bills in the U.S. are gearing up to start working to pass new state and federal legislation. Each year, many bottle bill updates are introduced in state legislatures, few of which are adopted due to numerous political hurdles and complex stakeholder issues. A major problem is a disagreement among stakeholders over the structure of the program. The 10 U.S. states with bottle bills each have slightly different programs, some of which are operated by distributors and others by the government. Differing opinions among material recovery facility (MRF) operators and haulers also pose challenges. Many MRF operators argue that bottle bills divert valuable materials away from curbside recycling and MRFs, resulting in lost revenue and higher operating costs.

Even the term “bottle bill” has become polarizing because of the politics behind the years-long effort to update the laws. Advocates, including NSAC, are now calling it “recycling refunds” because that term is better received and describes the intended outcome of the bill. NSAC and proponents of a national bottle bill plan to introduce a national container deposit bill soon and hope to gain more support from legislators.

Senate Agriculture Committee Farm Bill Hearing on Conservation

The Senate Agriculture Committee has started its review of the Farm Bill last month.  On March 1, it held a hearing focusing on conservation and forestry programs. The five-year Farm Bill, which expires Sept. 30, is one of the few must-do items for Congress this year. Last year, Democrats boosted the farm bill’s conservation programs through the Inflation Reduction Act (IRA). With the Senate and White House under Democratic control, Republicans are unlikely to cut funding for these programs. However, some Republicans are taking a tougher stance against the programs that support President Joe Biden’s agricultural climate agenda.

Sen. Chuck Grassley (R-IA) questioned Agriculture Department officials about whether the administration is using the Farm Bill’s conservation programs to meet the goals of President Biden’s “America the Beautiful” initiative, also known as 30×30, which aims to protect 30% of U.S. lands and waters by 2030. Grassley and other Republicans are concerned that the initiative could come at the expense of U.S. food security.

Zach Ducheneaux, administrator of USDA’s Farm Service Agency (FSA), confirmed that the department has discussed the Conservation Reserve Program as part of Biden’s 30×30 pledge, but emphasized that the program aims to improve the long-term health of farmland and not take it permanently out of production. Ducheneaux said the department is focused on “conservation of the lands that will preserve future production opportunities” and is looking at ways to continue “some meaningful ag production while taking the conservation steps that will build soil health and improve our ability to continue to grow our production into the future.”

Some Republicans are focusing more on the nature of the conservation work rather than the number of acres covered. Sen. John Thune (R-SD) wants to make the program more flexible to allow more livestock grazing on conserved lands. Ranking Member John Boozman (R-AR) views the Farm Bill’s conservation programs as a means to support agricultural production, rather than replace it. He urges the administration to expand conservation efforts subsidized by USDA and calls for more local input and a focus on non-climate issues such as water quality. Sen. Boozeman pointed out that conservation needs are diverse based on how they grow and what land they are planted on. For example, he pointed out that cover crops may not work in dry climates, but that water capture and erosion prevention are important resource practices that farmers and ranchers can use and that funding and flexibility should be in place to do so.

House Committee Advance Legislation Rescinding WOTUS Rule as Courts Keeps the Rule in Place for Now

The House Transportation and Infrastructure Committee has approved a resolution (S.J. Res 27) rescinding the Biden EPA’s recent revision of the definition of “waters of the United States” (WOTUS). Republicans on the committee voted by voice vote on Feb. 28 to approve the resolution, which advances the measure to the House floor. The Congressional Review Act (CRA) resolution was introduced by Reps. Sam Graves (R-MO) and David Rouzer (R-NC), charged that the definition contributes to significant burdens on regulated entities and that the EPA should have waited for a ruling from the Supreme Court decision in Sackett v. EPA.

GOP lawmakers stressed that they would be approving the resolution to protect farmers and landowners from what they consider significant overreach by EPA and the Army Corps of Engineers. They argue that the WOTUS definition is an example of bureaucratic overreach under the Clean Water Act (CWA). Democrats warned, however, that the measure would create uncertainty and prevent agencies from adopting a substantially similar rule.

The CRA establishes a simplified process by which Congress can repeal recent agency rules or guidance via joint resolutions, avoiding the Senate filibuster, amendments, and engaging in lengthy debate. Republicans hope that the effort will result in a few vulnerable Democrats joining them, forcing the White House to use its veto for the first time since Biden has taken office and that it will serve as an important messaging tool for them.

Republicans plan to use the CRA to several environmental rules, including the EPA rule on power plants and the Biden administration’s rewrites of the National Environmental Policy Act (NEPA). Once a resolution is enacted, the law prohibits agencies from writing measures that are “substantially similar” to what has been repealed. Democrats warned that passage of the resolution would create uncertainty about which regulations apply and prevent EPA from responding to changes that might result from the Supreme Court’s decision in Sackett v. EPA.

The move comes as a U.S. appeals court has ruled that the Trump-era rule will stay in place for now. The three-judge panel of the 9th U.S. Circuit Court of Appeals said a California federal judge lacked authority to eliminate the rule because he had not initially considered whether it was illegal. The panel added that judicially vacating regulations before examining the merits of a challenge would undermine the detailed repeal process established by Congress in federal administrative law.

Republicans Move Forward With an Energy and  Permitting Plan

The House Republicans are set to take action on numerous bills as part of their energy and permitting reform package. They aim to bring the package on the floor for a vote by the end of March. It is the first legislative product of their new majority to come from multiple committees. Republicans hope this package, which they campaigned on in the 2022 midterm elections, could become law in some form.

The Republicans’ plan to overhaul the federal permitting process for energy projects was met with skepticism by Democrats at a March 1 hearing of the House Natural Resources Committee. The GOP plan, the Building United States Infrastructure Through Limited Delays and Efficient Reviews (BUILDER) Act, aims to speed up environmental reviews by allowing project sponsors to assist in conducting environmental reviews, and limit lawsuits that could slow energy projects such as wind and solar, by requiring regulators to rely on existing data. Democrats, however, were split on the issue. Some vehemently opposed the plan and view National Environmental Policy Act (NEPA), which the bill seeks to overhaul, as a critical safeguard that should not be tampered with. Others expressed a desire to improve energy permitting capabilities but not with the GOP approach.

The overhaul of the permitting process comes after Senate Energy and Natural Resources Chair, Joe Manchin (D-WV), failed to advance his own permitting bills last year.

Rep. Mike Levin (D-CA) expressed concern about limiting the scope of the NEPA review and limiting the restriction of assessing potential climate impacts. Republicans emphasized that the bill was a discussion draft and that the hearing was an opportunity to solicit feedback. Rep. Garret Graves (R-LA), who was the lead on the bill, said he would revisit parts of the bill after the hearing, including a section on community access to information.

House Natural Resources Chairman Bruce Westerman (R-AR) expressed a desire for a bipartisan product and reminded Democrats that Biden administration officials have warned that billions of dollars earmarked for clean infrastructure development would be held up indefinitely without changes to NEPA. However, White House Council on Environmental Quality Chair Brenda Mallory, who was invited to testify, did not attend the hearing.

Lawmakers struggled to reconcile their desire to expand permitting for renewable energy projects with the framework presented by Republicans. Rep. Debbie Dingell (D-MI) acknowledged the need to modernize the laws but opposed gutting NEPA reviews for major projects. She expressed a desire to find common ground by bringing together environmentalists, union representatives, and others.