Eye on Washington: September 2021

by Dan Sealy, Legislative Analyst 


Recess is Over

Congress took most of August and the first week of September off to return to their districts, meet with constituents and fundraise for the upcoming 2022 elections. (Yes, that has started. If, in fact, it ever ends.)  As the House left Washington, the Senate pushed forward with reconciling their budget legislation with the Biden Administration’s budget proposal. The final Senate Infrastructure package will be waiting. Speaker Pelosi (D-CA) will have just two and a half weeks after Labor Day to reconcile budgets and get them to the President for signature. Otherwise, there will be “continuing Resolutions” (stalling tactics) or close down the federal government. This promises to be a bumpy road with an evenly split Senate, many of whom are happy to defy the President. The budget will be a test of Biden’s much-lauded bipartisan deal-making.

US Senate: Three Steps Forward and Maybe Two Steps back? 

The “Infrastructure Investment and Jobs Act” as advanced in the Senate is long and encompasses a lot, but here is a glimpse. The Act would create $550 billion in new federal spending over the next five years with $110 billion toward roads, bridges and similar large projects. It also includes funds to plan, construct and design on-road and off-road trail facilities for pedestrians, bicyclists, and other non motorized forms of transportation; $66 billion for rail transportation; $65 billion to rebuild the nation’s electricity grid; $65 billion to increase access to broadband Internet access; and $39 billion to modernize and expand transit systems. In addition, the Act provides $55 billion for water infrastructure, $15 billion of which could be used for replacing lead pipes to foster clean drinking water.  The legislation results from a broader bipartisan cooperation and includes many of the provisions lauded by progressives to fund opportunities to address climate change, such as electric vehicle charging stations and more efficient community street-lighting, as well as a switch to new technologies.  The legislation includes language that would create jobs and help the Forest Service plant over a billion trees on national forest lands, as well as establish a commission to study wildfires and make recommendations to prevent them. 

On the flip side, a letter sent to both the Senate and House signed by eight national green organizations pointed out seven sections of the proposed legislation of considerable concern. These concerns relate to so-called “streamlining” or limiting the public environmental review of federal projects under the National Environmental Policy Act (NEPA)  and lack of guarantee that the projects will use all the best available science. In particular, the letter called out the “Daines Amendment” to the Environmental Impact Assessment process that would result in the elimination of nearly all environmental review and public input for prescribed management activities, such as application of pesticides and timber cuts on projects up to 3000 acres. Unfortunately another provision would reauthorize a little-known agency, the Federal Permitting Improvement Steering Council, that limits time and information in the environmental permitting for major federal projects. That Council tried to greenlight mining projects and oil pipelines as well as renewable resource projects during the Trump Administration and was called out by conservation organizations for its lack of keeping with the spirit of NEPA.   “By design, the whole point is not to get to better outcomes, it’s to get to faster outcomes,” said Brett Hartl of the Center for Biological Diversity, one of the groups who signed the letter. 

Green groups have also pointed out that the Transportation bill and Senator Manchin’s (D-WV) “Energy Infrastructure Act” could result in “sweeping erosion” of environmental reviews such as permits for emergency actions even though the law already provides for reasonable alternatives. Provisions could eliminate environmental reviews for some pipelines while moving decision-making to states where review can be more lax. 


What is and what is not protected Under the Clean Water Act? This discussion has been at loggerheads for over a decade. Clearly wetlands and seasonal tributaries affect water quality. But where does the federal law stop? The law was written to protect “navigable waters.” Clearly a large portion of wetlands and small tributaries are not navigable in the traditional sense but are part of (or have a nexus to) navigable waters and protection of navigable waters is hitched to all those other resources. In an attempt to provide certainty to the agencies who regulate wetland protections and water quality, the Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps), as well as builders and developers who own those resources, the Obama administration attempted to draw a clearer line between what was protected in the law and what was not. Lawsuits upended that attempt. During Trump’s tenure, his administration attempted to draw the line more to the benefit of landowners at the expense of resource protection and that ruling currently stands.  Now President Biden’s EPA and Corps are working to craft a somewhat more conservation-minded regulation that can withstand legal challenges. 

Arctic National Wildlife Refuge (ANWR) 

In early August, Interior Secretary Haaland announced Interior will reopen the environmental review of the ANWR’s oil and gas leases following the Biden Administration’s earlier determination that the Trump administration’s assessment was “flawed.”  Haaland had previously suspended more than a dozen oil and gas leases that had been sold in the final days of the Trump administration. “As we continue to face a worsening climate crisis, there is no place for the rushed, inadequate Arctic Refuge oil and gas plan finalized under the previous administration,” said Kristen Miller, acting Executive Director of the Alaska Wilderness League, in a statement. Native tribes are torn in this dispute since some depend directly on the migrating caribou herds as a food source while others would gain economic benefits from the leases. The Sovereign Iñupiat for a Living Arctic, a group representing some Alaska Natives, see this as a first step for long-term protection of the refuge and its resources.