Environmentalists, Industry Seek Final Say in Highway Bill

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Nov. 17 — Environmental groups want to nix Republican-backed environmental streamlining provisions—including a pilot permitting program—from a multiyear highway bill in conference this week, but it isn't clear how many conferees are ready to champion the issue.

Meanwhile, the hazardous materials industry is facing a smoother path to achieving sought-after policy changes, such as alterations to the Transportation Department's crude-by-rail rule. Other interested groups are also continuing to lobby for changes—such as water infrastructure funding measures—to the long-awaited multiyear surface transportation bill.

“I hope we end up with a law that moves us forward instead of backward,” Deron Lovaas, state and federal policy practice director for urban solutions at the Natural Resources Defense Council, told Bloomberg BNA. “Based on what's on the table now, that's a long shot.”

The House and Senate are set to go to conference on the bill, with 41 total conferees announced across both chambers. The group is vying to meet a Nov. 20 deadline when a short-term transportation patch that includes authorization for hazmat transport programs expires.

That deadline will probably be pushed back, as the House passed by a voice vote Nov. 16 a short-term extension (H.R. 3996) through Dec. 4. That bill will now be sent to the Senate.

The first public meeting of the conference on the House versus Senate multiyear bills will occur on Nov. 18.

Environmental Reviews

Several environmental groups are most concerned with National Environmental Policy Act environmental permit and review streamlining provisions within both bills (214 DEN A-14, 11/5/15).

The Senate bill (H.R. 22) that was passed in July included the U.S. Chamber of Commerce-supported Federal Permitting Improvement Act (S. 280), authored by Sens. Rob Portman (R-Ohio) and Claire McCaskill (D-Mo.). S. 280 would require coordination by the various agencies reviewing a given major infrastructure, energy or manufacturing project and significantly limit the amount of time allowed for opponents of a project to challenge a decision for a permit.

Meanwhile, the House bill—also referred to as H.R. 22 after adopting the base Senate language—incorporated the Senate's S. 280 language, and then added an amendment to further overhaul the policy act. The amendment offered by Rep. Tom Marino (R-Pa.) and House Judiciary Committee Chairman Bob Goodlatte (R-Va.) was approved by a voice vote in the House and made changes to the S. 280 language, such as making it harder for deadlines related to permitting to be extended by agencies. Some of these changes were in line with the House's RAPID Act (H.R. 348) (216 DEN A-4, 11/9/15).

The House bill also includes language based on what conferee Rep. Jeff Denham (R-Calif.) initially introduced in the House as the NEPA Reciprocity Act (H.R. 2497), which would allow the transportation secretary to certify for rail and highway projects that a state's environmental review process satisfies the federal NEPA process. Denham's bill, which essentially appears as a pilot program, was initially co-sponsored by at least two other conferees—Blake Farenthold (R-Texas) and Cresent Hardy (R-Nev.)—and is supported by the National Association of Counties. But it was opposed by Rep. Raul Grijalva (D-Ariz.) and certain other Democrats.

Members of the League of Conservation Voters, Earthjustice and the NRDC noted process and substantive concerns with these provisions as they move into conference, labeling it their top measure or set of measures to nix or at least reduce severity of during conference. Lovaas said he hopes that the nontransportation focused provisions are taken out and emphasized that while the Senate language “is problematic, it doesn't compare to the House version.”

The Transportation Department also has come out against several environmental streamlining provisions in both bills. For example, Transportation Secretary Anthony Foxx opposed several provisions in a Nov. 13 letter to House Transportation and Infrastructure Committee Chairman Bill Shuster (R-Pa.), including the pilot program based on Denham's H.R. 2497.

The U.S. Chamber of Commerce has in the past expressed support for S. 280, calling it similar to H.R. 348, saying in a May statement that “[c]ommonsense reforms to the permitting process would ensure that the environment is protected while giving businesses greater certainty and confidence to invest in job-creating projects.” The chamber declined to comment for this article.

Potential Champions

Lovaas pointed to Sen. Barbara Boxer (D-Calif.), ranking member of the Senate Environment and Public Works Committee, as a potential champion for the environmentalists' side of the issue, saying she and Committee Chairman Jim Inhofe (R-Okla.) work well together.

However, when asked by Bloomberg BNA if eliminating the environmental streamlining provisions would be a top priority for her in conference, Boxer said “Well, streamlining—that's not a danger to the environment.”

“But if they're trying to overturn laws, environmental laws, I won't allow that,” Boxer told Bloomberg BNA. She added, “I don't see any bumps in the road at this point on that front.”

Zach Drennen, a legislative associate for the League of Conservation Voters, told Bloomberg BNA that on the House side it was “too bad” that Grijalva, who had worked to exclude these provisions in the House, wasn't included as a conferee; however, he said there are still a number of other “environmental champions” among the conferees.

“We are confident that they are aware of this provision and working to take it out,” Drennen said of some of the House conferees.

Reaching out to each conferee's office and a review of recent news releases didn't reveal many staunch advocates of rejecting these provisions, although some, like Rep. Jerrold Nadler (D-N.Y.), do note their opposition to anti-environmental provisions of the bill. However, this is far from the full picture.

For example, Sen. Ron Wyden (D-Ore.), who is a conferee, told Bloomberg BNA that he is aware and “very focused on” these provisions. But he said he wouldn't hazard a guess at whether it would or wouldn't be included in the final bill.

Meanwhile, several Republicans and some Democrats in both chambers have publicly touted support for the provisions to cut the red tape behind permitting. For example, Reps. Bob Gibbs (R-Ohio) and Elijah Cummings (D-Md.), both conferees, also told Bloomberg BNA that they support environmental streamlining provisions from the House bill.

Senate Commerce, Science and Transportation Committee Chairman and conferee John Thune (R-S.D.) told reporters that he is interested in those provisions.

“My guess is that—hopefully—the final bill will have some streamlining in it,” Thune said, adding that the provisions would “probably” look more like the Senate bill version.

Marty Hayden, vice president of policy and legislation for Earthjustice, said the odds of getting these provisions that have “no business in the highway bill” out are unknown.

“Conferences are always a challenge, but you never know what can happen until you try,” Hayden said.

Crude-by-Rail

Meanwhile, a number of crude-by-rail provisions that appear in the House and the Senate bills—many aiming to address the Pipeline and Hazardous Materials Safety Administration's rule finalized earlier this year to regulate large shipments of crude oil and other flammables by rail—have open proponents among the conferees.

Even a cursory review of conferees reveals several champions for the issue. Rep. Corrine Brown (D-Fla.) has expressed support for emergency responder notification requirements, Reps. Lou Barletta (R-Pa.) and Rick Larsen (D-Wash.) have noted support for additional “top fittings” requirements, and Sen. Dick Durbin (D-Ill.) has highlighted support for comprehensive oil spill response requirements.

In October, House Subcommittee on Railroads, Pipelines and Hazardous Materials Chairman Denham praised at the House markup the crude-by-rail provisions within the House bill, saying the measure would “significantly strengthen the safety of crude-by-rail shipments.”

Some of the crude-by-rail provisions aren't touted as loudly, such as provisions requiring the Transportation Department to reconsider electronically controlled pneumatic brake requirements in the final crude-by-rail rule that are opposed by oil groups and railroads, but are included in both bills. Inclusion in both bills is a signal the provision will probably be included in the final bill.

The Transportation Department is still hoping, according to Foxx's Nov. 13 letter, that some of these provisions will be taken out. For example, Foxx pointed to the brake provisions included in the House and the Senate bills as “new obstacles” to improving the safety of crude-by-rail transportation.

The provisions on brakes has the backing of Thune, who called the provisions “reasonable,” and hasn't been identified as a key priority for many conferees.

Industry seemed largely on board with these provisions. While Ed Greenberg, Association of American Railroads spokesman, declined to comment on the pending legislation, Sabrina Fang, American Petroleum Institute spokeswoman, said the oil group is “encouraged by the attention being given to enhancing the safety of rail transportation.”

Scott Openshaw, American Chemistry Council spokesman, told Bloomberg BNA in an e-mail the trade association supports the recently passed House highway bill's approach to “fixing the flammable tank car rule.” He specifically emphasized support for a provision in the House bill that would prioritize retrofitting and use of new tank cars for oil and ethanol unit trains.

“We'll be working to ensure this provision remains intact and is a part of the final package,” Openshaw said.

Other Provisions

When it comes to the rest of hazardous materials, Cynthia Hilton, co-facilitator for the Interested Parties for Hazardous Materials Transportation, said the stage seems largely set. The Senate and House bills already have been broadly similar for many hazmat issues—for example, both declining to include an administration requested user fee for hazmat programs—and the differences they do have probably aren't controversial, she said.

The area where there “might be a wrinkle” is first responder grant reforms, Hilton said, noting the potential for increased fees to pay for these changes. Industry also will be looking to ensure there is accountability for these grants as well, to make sure the grant funds are used “efficiently and effectively” and that there is proof of it, she said.

And other groups—environmental and others alike—are working to ensure their own interests are in or out of the bill.

For example, the American Water Works Association, Association of Metropolitan Water Agencies and three other water groups sent a letter Nov. 9 to the chairmen and ranking members of the Senate Environment and Public Works and the House Transportation and Infrastructure committees urging them to include an alteration to the Water Infrastructure Finance and Innovation Act that would allow communities to use these loans and tax-exempt debt to finance water infrastructure.

The provision that is included in the Senate bill, but not the House version, is a priority for Gibbs, chairman of the House Subcommittee on Water Resources and Environment, to get included in the final bill, he told Bloomberg BNA.

Additionally, Drennen said the League of Conservation Voters is continuing to work to keep out some of the most problematic amendments out of the bill during conference, such as those identified in a Nov. 4 letter from the League and nine other environmental groups to House members.

At the end of the day, the importance of what comes out of conference, especially for environmental provisions, is that provisions within the bill could be difficult to reverse. Hayden emphasized this concern to Bloomberg BNA regarding environmental review provisions.

“Were this to become law,” Hayden said, “I think it would take a better Congress to rescind it.”

To contact the reporter on this story: Rachel Leven in Washington at rleven@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com