Legislative Update: Republicans and Democrats Remain far Apart on Environmental Justice and its Role in Plastics Manufacturing

On  June 15, the Senate Environment and Public Works Subcommittee on Chemical Safety, Waste Management, Environmental Justice and Regulatory Oversight held a hearing on “Impacts of Plastic Production and Disposal on Environmental Justice Communities,” showcasing the deep divisions between Democrats and Republicans on the contentious issue, which is also one of the Biden administration’s priorities. This is the second in a series of hearings the Subcommittee is holding on the environmental and public health dangers involved in the production, use, and disposal of plastics.

Republicans argued that Democrats and the Biden administration are distorting the meaning of environmental justice (EJ) and applying it unfairly. They argued that EJ has been transformed into a progressive movement that pushes policies under the guise of social and racial equality. Sen. Dan Sullivan (R-AK) also criticized the Biden administration’s double standard on environmental justice in Alaska and the benefits it brings to the indigenous communities in his state.  Republicans also emphasized plastic’s importance in reducing emissions, being a key component in electric vehicles, and health and safety in its packaging uses.

On the other hand, Democrats emphasized the need to address pollution and high cancer rates in communities near petrochemical zones Subcommittee Chair Jeff Merkley (D-MO) acknowledged the valuable uses of plastics while addressing health concerns, recycling issues, and microplastics. Merkley suggested that they seek to distinguish the necessary uses of plastic and look at ways to reduce those that are not necessary, therefore reducing the amount produced and the harm to communities.  Furthermore, they hoped to explore manufacturing methods that are less detrimental to communities.

Sen Sheldon Whitehouse (D-RI) said he planned to reintroduce his Reduce Act bill that would tax virgin plastic with a 20-cent-per-pound fee on new plastic sold for single-use products. He also called on companies in the plastic industry to commit to a “reasonable minimum standard” such as the one used by Unilever that would commit to removing “a pound of plastic” for “every pound produced.”

The hearing also included opposing views. Industry witnesses emphasized that plastics manufacturing is industrial development that provides vital economic opportunities and questioned the claims that there are clear links between factory emissions and disease.  They also noted that U.S. manufacturers are subject to the strictest environmental standards in the world.  Republicans expressed concerns about the need to improve recycling rather than limiting manufacturing.

After stumping one of the anti-plastic witnesses by pointing that many of the items she was relying on at the hearing were made of plastic, (i.e. eyeglasses, iPhone, water bottle…”Subcommittee Ranking Member Markwayne Mullin (R-OK) said. “We don’t have a plastic problem, we have a recycling handling problem. Instead of halting infrastructure projects or manufacturing development that results in U.S. job loss and more reliance on countries like China to produce critical material needed for modern life, why would we not refocus in improving recycling?” The witness later acknowledged she would start with banning single use and then “get back to” the Senator about replacements for the items he highlighted.

Republicans Press Administration on its Plans to Implement WOTUS Definition After Sackett Decision

House and Senate Republican committee leaders requested a briefing by June 28 on the next steps of the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) following the Supreme Court’s decision in Sackett v. EPA that found the Biden Administration’s definition of WOTUS is illegitimate.  The letter to the agency heads was signed by Senate Environment and Public Works ranking member Shelley Moore Capito; EPW Subcommittee on Fisheries, Wildlife, and Water ranking member Cynthia Lummis (R-WY.); House Transportation and Infrastructure Chair Sam Graves (R-MO), and Transportation and Investigation Subcommittee on Water Resources and Environment Chair David Rouzer (R-NC).

The letter expresses concerns about the delay in implementing the Court’s decision, warning the agencies not to “slow walk” the Supreme Court’s decision. Some Corps districts have announced a temporary halt in the review and issuance of approved jurisdictional determinations, which unnecessarily delays the permitting process for projects. The letter urges the EPA and the Corps to promptly align the application of WOTUS with the Supreme Court’s ruling. It highlights the need for immediate direction for regional and district offices to apply the decision to evaluate jurisdictional determinations and permits. Delays and confusion could hinder project development across the country, including those authorized by the Infrastructure Investment and Jobs Act.

Discord Between Appropriators Begins At the Starting Line

The appropriations race begins as Republicans are scrambling to get all 12 appropriations bills to the floor before government funding expires on Sept. 30.  The House Appropriations Committee, in a 33-27 party-line vote, approved FY24 subcommittee allocations that are lower than the caps set in the debt limit suspension law. Chairwoman Kay Granger (R-TX) deviated from the debt limit package negotiated between Speaker Kevin McCarthy (R-CA) and President Joe Biden. Granger set the topline funding levels for FY22 at $1.47 trillion instead of $1.59 trillion.

The subcommittee allocations do not incorporate the $115 billion appropriators plan to retrieve from previously allocated but unspent funds to mitigate the impact of the cuts. However, adjustments of $25 billion above the base caps are permitted, primarily for disaster relief purposes. During the markup, Democrats pushed back on the decision saying they were led to believe the appropriations bills would reflect the spending levels outlined in the debt limit deal.  Granger emphasized that the debt limit bill established a spending ceiling but not a spending floor for the FY24 bills.  Republican appropriators exempted the Defense, Military Construction-VA, and Homeland Security bills from cuts.

Another possible hurdle to overcome is Senate Republican appropriators who are indicating they will support their own chamber’s subcommittee allocations when their panel starts considering their topline spending levels on Thursday.  Republican Senators have been vocal in their disagreement with the House’s moves to decrease defense spending.   Senate Energy-Water Appropriations Ranking Member John Kennedy (R-LA) said he didn’t know how he would vote on the allocations.

A disagreement over the distribution of earmarks in the upcoming appropriations bills has emerged among House Democratic and Republican appropriators. In the previous Congress, when Democrats held the majority, an agreement was in place where Democrats received around 63 percent of earmarked funds in the initial House spending bills, with Republicans receiving 37 percent. House Republicans have decided to maintain a similar split between the majority and minority in the current Congress.

Ranking Member Rosa DeLauro (D-CT), who was responsible for bringing back earmarks in the last Congress after a decadelong absence, argued that Democrats and Republicans agreed when the process returned in 2021 that the two parties would deal with earmark allocations based on the number of requests made. Democrats had submitted around two-thirds of overall requests that year.

In the fiscal year 2023, House bills drafted by the Democratic majority, Democrats were allocated approximately $5.1 billion in earmarks across 3,198 projects, while Republicans received just over $3 billion across 1,165 projects, resulting in a split of around 62-38. This year, Republicans submitted requests for $10.2 billion in earmarks across 1,864 projects, while Democrats sought $9.2 billion across 3,203 requests.

As the first three appropriations bills—Agriculture, Homeland Security, and Military Construction-VA— went to mark up and earmarks were allocated, Democrats argued that the split was unfair and deviated from the approach taken in the previous Congress.  Overall, Republicans received around three-quarters of the earmarked funds, with $720.7 million for Republicans and $236 million for Democrats.

Republicans countered by stating that Democratic committee members set a precedent for earmark allocations in the previous Congress and that Republicans expected to be treated fairly now that the majority had changed. They also highlighted the similarity in the total dollar amounts of earmark requests submitted by both parties to justify their decision.

House Advances Energy-Water Appropriations

The House Energy-Water Appropriations Subcommittee approved its $58 billion FY24 funding bill through a voice vote on June 14.  The full committee is scheduled to mark up the bill, including funding for continued water resource infrastructure improvements, on Thursday, June 22.

The bill would provide $9.6 billion to the U.S. Army Corps of Engineers, increasing funding by $1.3 billion above last year’s levels, including $2.8 billion for the Harbor Maintenance Trust Fund.

It also provides $5 million in administrative expenses to carry out the direct and guaranteed loan program authorized by the Water Infrastructure Finance and Innovation Act.

Democrats raised concerns about specific provisions. The proposed legislation also includes measures to revoke the rule defining the “waters of the U.S.” under the Clean Water Act that the EPA and the Corps of Engineers in December 2021 finalized. It also seeks to prevent the Energy Department from finalizing energy efficiency standards for distribution transformers. Subcommittee ranking member Marcy Kaptur (D-OH) referred to these and others as “poison pill policy riders that have nothing to do with our bill.”

EPA Extends Comment Period on Power Plant Standards

The Environmental Protection Agency (EPA) has decided to extend the comment period for its proposals to set more rigorous power plant standards. This decision comes in response to pressure from Republican representatives who requested additional time for public input.

Initially, the EPA had set a deadline of July 24 for the public to submit comments on the draft rules concerning new and existing natural gas and coal plants. However, after receiving multiple requests for an extension, the agency has published a notice indicating that the comment period will be extended 15 days beyond the usual 60-day timeframe.

The new deadline for submitting comments is August 8, which allows a total of 77 days since the proposals were initially published. This extension aims to accommodate the concerns and input from stakeholders, ensuring a more comprehensive and inclusive decision-making process.  Sen. Shelley Moore Capito (R-WV), the ranking member of the Environment and Public Works Committee, and 27 other Republican colleagues had written a letter requesting a 60-day extension, citing the complexity and significance of the proposals.

Senator Capito strongly criticized the new draft rules, labeling them as “illegal” and accusing the Biden administration of deliberately trying to shut down power plants and eliminate jobs in the American energy sector. She has expressed her intention to employ the Congressional Review Act (CRA) as a means to reject the rules and has introduced legislation aimed at preventing the EPA from implementing them.