Special Policy News 5: The Transition
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In This Issue:
An executive order directs the Council on Environmental Quality to speed review of “high priority” projects.
EPA, USDA, DOE and others swept by confusing and contradictory guidance pending approval of new “interim procedures.”
Four confirmed by Senate and sworn in; many hearings, votes and delays in a crush Tuesday.
Congressional and Legislative Updates
House active introducing and moving bills of environmental and policy concern; Senate largely distracted by crush of nomination hearings.
Administration Focus on “Expedited Environmental Reviews and Approvals”
President Trump signed an executive order Tuesday, January 24, directing the still unnamed chair of the White House Council on Environmental Quality to exercise broad authority for “expediting environmental reviews and approvals for high priority infrastructure projects,” mandating a thirty day decision timeline. President Trump commented, “And if it’s a no, we’ll give them a quick no. And if it’s a yes, it’s like let’s start building.” That goal, however, could be complicated by existing provisions of the National Environmental Policy Act, as well as potential state challenges.
The expedited review order is seen as benefitting the Dakota Access and Keystone XL pipelines and possible infrastructure projects such as highways, airports, transmission lines and ports. The National Governors Association (NGA) has circulated a list of more than 300 potential “emergency and national security projects,” purportedly received as a spreadsheet from the Trump transition team, which could benefit from the new order. However, White House spokeswoman Lindsay Walter and a representative of the transition team both contend the list did not originate with them. Elena Waskey, a NGA spokeswoman replied, “If they’re saying it’s not a transition team document, I don’t really have an answer for you.”
The NGA sent a December 16 letter to the states seeking 3 to 5 project suggestions from each state “. . . that might be incorporated into a future infrastructure investment program.” Projects named include a new terminal for the Kansas City airport, I-95 improvements in North Carolina and Pennsylvania, as well as dams, water projects, and rail lines. A purported copy of the priority list was obtained by McClatchy’s Kansas City Star and The News Tribune and posted online.
The order will also likely ease regulatory approval for construction of the “border wall,” which the President expects to begin “within months.” Legal scholars anticipate challenges to both the Dakota Access and Keystone pipelines. The Dakota pipeline, under the Mineral Leasing Act, must await a review by the Army Corps of Engineers of the impacts on the Sioux nation and tribal treaty rights. The Keystone project, however, would likely be immune to legal challenge as it would be advanced under a presidential permit process for cross-border pipelines, first established in 1968 by President Lyndon Johnson and subsequently upheld by courts as unreviewable.
Bill Snape, senior counsel at the Center for Biological Diversity, observed, “I’m not sure at this point what the NEPA process is going to yield us as an action at the president. This is why electing the president matters.” He continued, “The president does get some authority to decide this international permit.”
Muzzling Administrative Agencies
The first days of this week saw tremendous disarray and confusion as an apparent Administrative directive instructed several agencies, including the Environmental Protection Agency (EPA), the U.S. Department of Agriculture (USDA) and its Agricultural Research Service (ARS) and the Department of Health and Human Services, to halt release of any public facing documents, pending approval of “interim procedures” until new administrators are in place.
The strong wording of the emails circulated on Monday, January 23, elicited a sharp recoil and rebuke by many of the agencies’ scientists. For example, ARS chief Sharon Drumm’s email said: “Starting immediately and until further notice, ARS will not release any public-facing documents. This includes, but is not limited to, news releases, photos, fact sheets, news feeds, and social media content.” EPA’s guidance included a freeze on grants programs and a directive to remove the climate change web page from its site. Indeed the White House’s own climate change web page was already gone less than an hour after President Trump was sworn in.
The ARS memo appears to have been issued independent of any coordination within the USDA. Acting USDA deputy administrator Michael Young commented, in an interview with The Washington Post, “The ARS guidance was not reviewed by me. I would not have put that kind of guidance out.”
By Tuesday afternoon, however, the Administration began walking back the directives, characterizing the agency emails as a misinterpretation and overreaction to comments made by “beachhead” teams, the teams coordinating operations in advance of administrators’ arrivals. Myron Ebell, of the Competitive Enterprise Institute and a prominent climate change denier who led the EPA’s transition team, commented, “My guess is the web pages will be taken down, but the links and information will be available.”
Reviews of the original, internal USDA memo by Reuters and other media outlets characterized the actions as largely similar to those taken by the Obama administration in January 2009. The new memo, however, differs in that it sought to centralize media inquiries and social media through the Secretary, and it prohibited USDA agencies from closing an office or notifying local officials of pending office closures.
A subsequent email Tuesday evening rescinded the previous guidance: “Yesterday, we sent an email message about Agency informational products like news releases and social media contact,” wrote ARS administrator Chavonda Jacobs-Young. She continued, “This internal email was released prior to receiving official Departmental guidance and is hereby rescinded.”
However, anonymous USDA sources noted that some restrictions are still in place. A Forest Service Director commented, in an interview with Gizmodo, that “We are still embargoed from certain forms of communications, such as posting any notices in the Federal Register.” The source continued, “I have been in the Forest Service for decades and during political transitions things like hiring freezes are common, as are reviews of regulations. No biggie usually, we’re professionals and we roll with it. In this case, the clamp-down has been weirdly draconian.”
Another change in science communication worth mentioning is the decision by the Centers for Disease Control and Prevention (CDC) to abruptly cancel a long-planned conference on climate change and health. An anonymous co-sponsor of the event was told by a CDC contact that the agency was concerned about how the Trump administration would view the conference. However, as of today, the conference is back on, but is being sponsored by NGOs rather than the CDC. Al Gore was a key player in making this happen.
The new administration and Republican Congress have already overwhelmed the news cycle, mainly with distracting issues such as Inauguration Day crowds, allegations of hugely massive voter fraud, agency “gag orders,” and disappearing web pages. Meanwhile, both congressional chambers have introduced legislation affecting science, conservation, and the environment.
House Republicans introduced and moved along many bills of concern to the Ecological Society of America. Some have even been passed, such as the REINS Act and Midnight Rules Relief Act. The Senate also has introduced a number of bills, but legislative action there has been largely crowded out by the crush of Administration nomination hearings. Four nominations have been approved, some are proceeding, and some nominations have been stalled.
Senate Confirmation Hearings:
As of Tuesday, January 24, four of President Trump’s cabinet nominations have been confirmed by the Senate before it adjourned that evening for Republican and Democratic planning retreats continuing through Friday.
Secretary of Defense, General James Mattis (U.S. Marine Corps, Retired), confirmed 98-1 on January 20 and was sworn in that evening by Vice President Pence.
Secretary of Homeland Security, General John Kelly (U.S. Marine Corps, Retired), confirmed 88-11 on January 20 and was also sworn in that evening.
Director of Central Intelligence, former Representative Mike Pompeo (R-KS), confirmed 66-32 on January 23 and sworn in that evening.
United Nations Ambassador, former Governor Nikki Haley (R-SC), confirmed 95-4 on January 24 and sworn in the next morning by Vice President Pence.
Secretary of State nominee, Rex Tillerson (former ExxonMobil CEO) was advanced by a party-line 11-10 vote of the Senate Foreign Relations Committee Monday, with a confirmation vote of the full Senate expected next week.
Environmental Protection Agency nominee, Oklahoma Attorney General Scott Pruitt (R-OK) faced a heated hearing before the Senate Committee on Environment and Public Works on January 18. Pruitt’s nomination raises troubling questions about legal conflicts of interest. As Oklahoma’s attorney general, he has filed or joined at least 13 lawsuits against the EPA; eight are still pending. Lawsuit topics include challenges to “haze reduction” rules; ethanol fuel mandates, the Clean Power Plan; regulation of greenhouse gasses; Clean Water Act rules; regulations on methane emissions at oil and natural gas sites; and suits to compel Freedom of Information Act requests for communications records between federal agencies and nonprofit environmental groups. In that hearing, Pruitt asserted that these suits would not present a conflict of interest affecting his role as EPA Administrator, if confirmed.
Senator Tom Carper (D-DE), ranking committee member, led a Democrats-only panel reviewing Pruitt’s record as attorney general on January 25. Participants in the panel unanimously agreed that Pruitt has initiated no lawsuits defending the environment, rather broadly opposing clean air and water protections. Senator Carper released over 200 questions asked to Pruitt with his responses during his hearing. A new hearing or vote on Pruitt’s nomination is not yet scheduled.
Health and Human Services nominee, Representative Tom Price (R-GA) faced a heated Senate Finance Committee hearing Tuesday morning with Democrats pressing him on potential conflicts of interest involving his purchase of medical and pharmaceutical stocks. Price was questioned sharply about the future of the Affordable Care Act.
Attorney General nominee, Senator Jeff Sessions (R-AL) saw a scheduled Tuesday vote postponed by the Senate Judiciary Committee, of which he is a member. Ranking minority member Senator Dianne Feinstein (D-CA) requested the delay, which was routinely approved under established procedure. A committee vote is now expected on January 31.
Commerce nominee, Wilbur Ross (billionaire investor and Republican donor) was advanced without objection by a voice vote of the Senate Commerce, Science and Transportation Committee Tuesday, Jan. 24.
Transportation nominee, Elaine Chao, (former Secretary of Labor under President George W. Bush and wife of Majority Leader Senator Mitch McConnell, R-KY) was advanced by that same Commerce Committee voice vote.
Office of Management and Budget nominee, Representative Mick Mulvaney (R-SC) faced a hearing of the Senate Budget Committee in the morning and another by Homeland Security and Governmental Affairs that afternoon.
Other Tuesday Senate confirmation action saw Housing and Urban Development nominee, Dr. Ben Carson (retired neuro-surgeon and former presidential candidate) advance without objection by a voice vote of the Senate Banking Committee; Health and Human Services nominee, Representative Tom Price (R-GA) faced a hearing by the Senate Finance Committee; Small Business Administration nominee, Linda McMahon (former World Wrestling Entertainment CEO and onetime Republican Senate candidate) faced a hearing of the Senate Committee on Small Business and Entrepreneurship where she was introduced by her home state of Connecticut Senators Richard Blumenthal (D-CT) and Christopher Murphy (D-CT), her onetime opponents in 2010 and 2012 respectively.
Energy nominee, former Governor Rick Perry (R-TX and former presidential candidate) and Interior nominee, Representative Ryan Zinke (R-MT) had been scheduled for Tuesday morning votes by the Senate Energy and Natural Resources Committee. However, those votes were postponed “indefinitely” without explanation by committee Chairwoman Senator Lisa Murkowski (R-AK). Ranking Member, Senator Maria Cantwell (D-WA) has voiced concern about Perry’s plans for Energy and possible budget and program cuts, though she identified no outstanding issues with Zinke’s nomination. Observers have speculated that Democrats will likely allow Zinke to advance and be confirmed, in part to remove him as a potential challenger to Senator John Tester (D-MT) in 2018.
Education nominee, Betsy DeVos (Republican activist, billionaire) has seen her scheduled Tuesday vote postponed by the Senate Committee on Health, Education, Labor and Pensions until January 31 due to unresolved financial and ethical disclosures. DeVos serves on several of her family’s trusts, positions she intends to retain. At least one of those trusts has an indirect financial stake in a chain of for-profit colleges.
Secretary of Agriculture, former-Governor Sonny Perdue (R-GA), was nominated Monday, January 23. Hearings before the Senate Committee on Agriculture, Nutrition, and Forestry are not yet scheduled.
Governor Perdue has a strong background in agriculture—raised on a farm, trained as a veterinarian, owned a grain and fertilizer business—and agriculture is the largest business sector in Georgia. Many are concerned that Perdue favors large-scale agribusiness at the expense of family farms, environmental protection and animal welfare. Perdue, in a May 2014 article in the National Review, characterized climate science as a “running joke among the public” and “so obviously disconnected from reality.”
Governor Perdue is a cousin of Senate Agriculture member David Perdue (R-GA), but is not related to the Perdue chicken interests.
Climate Solutions Caucus Adds New Members
The bipartisan House Climate Solutions Caucus has added five new members – four Republicans and one Democrat. Three Republicans – Rep. Elise Stefanik (R-NY), Rep. Brian Fitzpatrick (R-PA), and Rep. Mia Love (R-UT) – replace members from the 114th Congress who retired or lost their seats. The two others – Rep. Don Beyer (D-VA) and Rep. Brian Mast (R-FL) – grow the caucus’s ranks to 20. The caucus, focused on finding solutions to climate change, is evenly divided between Democrats and Republicans.
House Appropriations Subcommittee Republican Rosters Announced
On Jan. 11, House Appropriations Chairman Rodney Frelinghuysen (R-NJ) announced GOP membership for the twelve Appropriations subcommittees. View the press release and list of subcommittee members and chairs.
House Energy and Commerce Subcommittee Democratic Rosters Announced
On Jan. 12, Energy and Commerce Ranking Member Rep. Frank Pallone, Jr. (D-NJ) announced the Democratic membership for the six Energy and Commerce subcommittees. View the press release and list of subcommittee members.
House Agriculture Subcommittee Chairmen Announced
On Jan. 13, House Agriculture Committee Chairman Mike Conaway (R-TX) announced the subcommittee chairmen for the 115th Congress. View the press release and list of chairs.
House Natural Resources Subcommittee Ranking Members Announced
On Jan. 24, House Natural Resources Committee Democrats announced five subcommittee ranking members. View the press release and list of ranking members.
- H.R.72 – GAO Access and Oversight Act of 2017. This bill, introduced by Rep. Earl Carter (R-GA), strengthens the Government Accountability Office, the top congressional watchdog. It allows GAO to take civil action against agencies to obtain records, and it gives GAO access to a federal database of new hires. The bill passed the Senate on Jan. 17 and was presented to the president on Jan. 23.
Passed in the House
- H.R.5 – Regulatory Accountability Act of 2017. This bill, introduced by Rep. Bob Goodlatte (R-VA), would reform the process by which federal agencies analyze and formulate new regulations and guidance documents, clarify the nature of judicial review of agency interpretations, and ensure complete analysis of potential impacts on small entities of rules, among other things. The bill currently has 25 cosponsors. It passed in the House on Jan. 11.
- H.R.255 – Promoting Women in Entrepreneurship Act. This bill, introduced by Rep. Elizabeth Esty (D-CT), would authorize the National Science Foundation to support entrepreneurial programs for women. The bill currently has 44 cosponsors. It passed in the House on Jan. 10.
- H.R.321 – Inspiring the Next Space Pioneers, Innovators, Researchers, and Explorers (INSPIRE) Women Act. This bill, introduced by Rep. Barbara Comstock (R-VA), would inspire women to enter the aerospace field, including science, technology, engineering, and mathematics, through mentorship and outreach. The bill currently has 68 cosponsors. It passed in the House on Jan. 10.
- H.R.589 – Department of Energy Research and Innovation Act. This bill, introduced Jan. 20 by Rep. Lamar Smith (R-TX), would establish Department of Energy policy for science and energy research and development programs, and reform National Laboratory management and technology transfer programs. The bill currently has 20 cosponsors. It passed in the House on Jan. 24.
Introduced in the House
- H.R.458. Preserve Our Lakes and Keep Our Environment Safe Act. Introduced Jan. 11 by Rep. David Trott (R-MI), this bill would require the Secretary of Transportation to conduct a study on the economic and environmental risks to the Great Lakes of spills or leaks of oil. Referred to the House Committee on Transportation and Infrastructure and the House Committee on Energy and Commerce.
- H.Res.44. Introduced Jan. 11 by Rep. James Himes (D-CT), this resolution expresses support for designation of February 12, 2017, as “Darwin Day” and recognizes the importance of science in the betterment of humanity. Referred to the House Committee on Science, Space, and Technology.
- H.R.469 – Sunshine for Regulatory Decrees and Settlements Act of 2017. Introduced Jan. 12 by Rep. Doug Collins (R-GA), this bill would impose certain limitations on consent decrees and settlement agreements by agencies that require the agencies to take regulatory action in accordance with the terms thereof. Referred to the House Judiciary Committee. Companion bill is S.119.
- H.R.481. Introduced Jan. 12 by Rep. Ken Calvert (R-CA), this bill would amend the National Environmental Policy Act of 1969 to authorize assignment to states of federal agency environmental review responsibilities. Referred to the House Committee on Natural Resources.
- H.R.502. Introduced Jan. 12 by Rep. Raúl Grijalva (D-AZ), this bill would permanently reauthorize the Land and Water Conservation Fund. Referred to the House Committee on Natural Resources.
- H.R.513. Introduced Jan. 12 by Rep. Don Young (R-AK), this bill would provide for the exchange of certain National Forest System land and non-federal land in the state of Alaska. Referred to the House Committee on Natural Resources. The Senate companion bill is S.131.
- H.R.527. Introduced Jan. 13 by Rep. Rob Bishop (D-GA), this bill would provide for the conservation and preservation of the greater sage grouse by facilitating state recovery plans. Referred to the House Committee on Natural Resources.
- H.R.621. Introduced Jan. 24 by Rep. Jason Chaffetz (R-UT), this bill would direct the Secretary of the Interior to sell certain federal lands in Arizona, Colorado, Idaho, Montana, Nebraska, Nevada, New Mexico, Oregon, Utah, and Wyoming, previously identified as suitable for disposal. Referred to the House Committee on Natural Resources.
- H.R.622. Introduced Jan. 24 by Rep. Jason Chaffetz (R-UT), this bill would terminate the law enforcement functions of the Forest Service and the Bureau of Land Management and provide block grants to states for the enforcement of federal law on federal land under the jurisdiction of these agencies. Referred to the House Committee on Natural Resources and the Committee on Agriculture.
- H.R.637. Introduced Jan. 24 by Rep. Gary Palmer (R-AL), this bill would prevent the Environmental Protection Agency from exceeding its statutory authority in ways that were not contemplated by Congress. Referred to the House Committees on Energy and Commerce, Natural Resources, Transportation and Infrastructure, and Agriculture.
- H.R.673. Introduced Jan. 24 by Rep. Blaine Luetkemeyer (R-MO), this bill would prohibit United States contributions to the Intergovernmental Panel on Climate Change, the United Nations Framework Convention on Climate Change, and the Green Climate Fund. Referred to the House Committee on Foreign Affairs.
- H.R.674. Introduced Jan. 24 by Rep. Michael McCaul (R-TX), this bill would require each agency to repeal or revise 1 or more existing regulations before issuing a new regulation. Referred to the House Committee on Oversight and Government Reform and the Committee on the Judiciary.
- H.R.698. Introduced Jan. 24 by Rep. Scott Tipton (R-CO), this bill would require a land conveyance involving the Elkhorn Ranch and the White River National Forest in the state of Colorado. Referred to the House Committee on Natural Resources.
Introduced in the Senate
- S.101. King Cove Road Land Exchange Act. Introduced Jan. 11 by Sen. Lisa Murkowski (R-AK), this bill would provide for the exchange of federal land and non-federal land in the state of Alaska for the construction of a road between King Cove and Cold Bay. Referred to the Senate Committee on Energy and Natural Resources.
- S.110. Digital Coast Act. Introduced Jan. 12 by Sen. Tammy Baldwin (D-WI), this bill would require the Secretary of Commerce, acting through the administrator of the National Oceanic and Atmospheric Administration, to establish a constituent-driven program to provide a digital information platform capable of efficiently integrating coastal data with decision-support tools, training, and best practices and to support collection of priority coastal geospatial data to inform and improve local, state, regional, and federal capacities to manage the coastal region. Referred to the Senate Committee on Commerce, Science, and Transportation.
- S.119 – Sunshine for Regulatory Decrees and Settlements Act of 2017. Introduced Jan. 12 by Sen. Chuck Grassley (R-IA), this bill would impose certain limitations on consent decrees and settlement agreements by agencies that require the agencies to take regulatory action in accordance with the terms thereof. Referred to the Senate Judiciary Committee. Companion bill is H.R.469.
- S.129. National Sea Grant College Program Amendments Act of 2017. Introduced Jan. 12 by Sen. Roger Wicker (R-MS), this bill would reauthorize and amend the National Sea Grant College Program Act. Referred to the Senate Committee on Commerce, Science, and Transportation.
- S.131. Introduced Jan. 12 by Sen. Lisa Murkowski (R-AK), this bill would provide for the exchange of certain National Forest System land and non-federal land in the state of Alaska. Referred to the Senate Committee on Energy and Natural Resources. Companion bill is H.R.513.
- S.132. Introduced Jan. 12 by Sen. Mike Crapo (R-ID), this bill would amend title 54, United States Code, to provide for congressional and State approval of national monuments and restrictions on the use of national monuments. Referred to the Senate Committee on Energy and Natural Resources.
- S.141 – Space Weather Research and Forecasting Act. Introduced Jan. 12 by Sen. Gary Peters (D-MI), this bill would improve understanding and forecasting of space weather events. Referred to the Senate Committee on Commerce, Science, and Transportation.
- S.153. Introduced Jan. 17 by Sen. Bill Nelson (D-FL), this bill would ensure reliable observation of hurricanes. Referred to the Senate Committee on Commerce, Science, and Transportation.
- S.161. Introduced Jan. 17 by Sen. Marco Rubio (R-FL), this bill would improve hurricane forecasting. Referred to the Senate Committee on Commerce, Science, and Transportation.
- S.164 – Gray Wolf State Management Act. Introduced Jan. 17 by Sen. Ron Johnson (R-WI), this bill would direct the Secretary of the Interior to reissue the final rules relating to the listing of the gray wolf in the Western Great Lakes and the State of Wyoming under the Endangered Species Act of 1973. Referred to the Senate Committee on Environment and Public Works. Companion bill is H.R.424.
- S.192. Introduced Jan. 23 by Sen. Ron Wyden (D-OR), this bill would withdraw certain land located in Curry County and Josephine County, Oregon, from all forms of entry, appropriation, or disposal under the public land laws, location, entry, and patent under the mining laws, and operation under the mineral leasing and geothermal leasing laws. Referred to the Senate Committee on Energy and Natural Resources.
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