August 23, 2013

Congress has adjourned for the August district work period leaving a full plate of must-dos when members return after Labor Day. Many items on their list will  need to be addressed before the end of September.

The largest item will be the completion of the appropriations cycle. While it is typical for many (if not most) appropriations bills not to have been sent to the president’s desk at this stage, the current party divide between the House and the Senate had added an extra layer of contention to the appropriations cycle in recent years. The Democratic-controlled Senate must reach a consensus with the Republican-controlled House on spending levels for 12 appropriations spending bills in order to prevent a partial or full shutdown of the government on Sept. 30, when Fiscal Year (FY) 2013 ends.

The partisan tension is heightened by the continued budget sequestration, given that Republicans in the House are drafting their non-defense discretionary spending assuming the sequestration continues through FY 2014 while Senate Democrats are drafting their bills in line with the much higher spending caps originally mandated in the Budget Control Act in 2011. Nonetheless, unless the House and Senate can either come up with a deficit reduction alternative to the existing sequester or vote to nullify it altogether, sequestration by law will continue to be implemented through FY 2014 and beyond.

Congress must also reach a consensus on reauthorization of the farm bill, which also runs out on Sept. 30. Both the House and Senate have passed farm bills, but the legislation differs substantially both in funding and scope. The Senate bill, which passed by a bipartisan vote of 66-27, also includes a requirement that farmers meet certain conservation requirements in order to receive federal subsidies for crop insurance. The House farm bill, which passed by a narrow vote of 216-208 with no Democratic support, does not include the conservation provisions and lacks a food stamp extension as House Republicans were not able to reach a consensus on food stamp funding prior to the August recess. It also differs from the Senate in that it includes provisions that waive regulatory rules related to pesticide control and environmental reviews of forestry projects.

Over the course of the August district work period, House Agriculture Committee Chairman Frank Lucas (R-OK) announced a proposal to cut food stamps by as much as $40 billion over the next decade.  Senate Agriculture Committee Chairwoman Debbie Stabenow (D-MI) indicated that the number is a non-starter. The Senate bill only cuts food stamp funding by $4 billion. House Agriculture Committee Ranking Member Collin Peterson (D-MN), who supported the original House bill that included a $20.5 billion cut to food stamps, indicated that the larger number dooms chances of reaching a bicameral consensus on a farm bill this year.

On August 1, House Agriculture Subcommittee on Conservation, Energy and Forestry Ranking Member Tim Walz (D-MN) sent a letter to House Speaker John Boehner (R-OH) requesting that he appoint conferees to move the farm bill to a conference committee before the Senate adjourns to give members time during the August recess to formally work out an agreement. The letter was cosigned by 49 House Democrats. Speaker Boehner, however, did not appoint conferees, leaving members only a few weeks to work out a compromise when they return.

Another major issue Congress will have to tackle around the same time is the national debt ceiling, which is projected to be reached around the start of the new fiscal year. Members of Congress have so far been unsuccessful in reaching an agreement on a deficit reduction alternative to the existing sequester. Bipartisan groups such as the Bipartisan Policy Center have said that both mandatory/entitlement spending cuts and  revenue increases need to be on the table. House Republicans have indicated they may seek mandatory spending cut concessions from the administration as an alternative to continuing the sequester.

President Obama has called for an increased debt limit not tied to  spending cuts, although Speaker Boehner has indicated there are not the votes in the House to pass such a bill. House leadership is deliberating whether to hold a vote on a “clean” increase as a negotiation tactic for deficit reduction legislation. House Republican leadership used the tactic before in 2011 with success as the failed vote led to the legislation that became the Budget Control Act, the law that included provisions that set “trigger” for the sequestration cuts to  discretionary spending that went into effect March 1, 2013.

In the wake of the recent strong disagreement over legislation to curtail the National Science Foundation’s merit review process, another “war of words” has broken out between the chairman and ranking member of the House Science, Space and Technology Committee – this time in regard to the Environmental Protection Agency’s (EPA) scientific processes for issuing regulations.

On Aug. 1, the House Science Space and Technology Committee voted 20-18 along partisan lines in support of a resolution to subpoena EPA for the “secret science” it uses in the issuance of its regulations. In a press statement, Chairman Lamar Smith (R-TX) contended “This subpoena could have been avoided. Unfortunately, we’ve been put in this position by an agency that willfully disregards congressional requests and makes its rules using undisclosed data. After two years of failing to respond, it’s clear that the EPA is not going to give the American people what they deserve—the truth about regulations.” EPA contends that it has already provided all the data it has to the committee. The resolution set a deadline of Aug. 19 to provide the data. Subsequently, EPA and the science committee confirmed documents did change hands on the 19^th, but the content of the documents and whether they will satisfy the science committee’s demands is not yet known.

The resolution came after a July 22 ultimatum letter to EPA Administrator Gina McCarthy stating that EPA must provide “all original data and analysis” on its science methods in issuing regulations by July 31 or the science committee would be forced to take action. According to Chairman Smith, Republicans have, since 2011, repeatedly requested documents from then-EPA Assistant Administrator for Clean Air and Radiation McCarthy to provide the committee details on the data used to form its Clean Air Act regulations, but have yet to receive a response, even with McCarthy now heading the agency. “The EPA’s lack of cooperation contributes to the suspicion that the datasets do not support the agency’s actions,” said Smith.

The resolution sparked a testy exchange between Chairman Smith and Ranking Member Eddie Bernice Johnson (D-TX) who accused Smith of requesting the data in order to pass it along to “industry hacks.” Smith countered, saying that in all his years on the committee that he has never attacked anyone personally and requested that Johnson refrain from questioning his motives. After a 10 minute recess to review the transcript of their exchange, the committee reconvened and Johnson withdrew her “industry hacks” statements while maintaining her assertion that the resolution disregards the scientific process and compromises the privacy of individual health records obtained through studies on how pollution affects human health. Republicans countered that they would remove any information that identifies individuals before making the information public.

 “There are so many problems with both this resolution and with the process you have used to get here, that it is difficult to know where to start,” asserted Ranking Member Johnson. Referencing Chairman Smith’s correspondence to EPA, she asserted “it is insinuated that both the Harvard Six Cities Study and the American Cancer Society Study [which EPA cites as the scientific basis for its clean air rules] are bad science or ‘secret science.’  However, you provide no evidence to support your claims…Of course, neither of those claims is true.  In fact, these studies are seminal works which are widely respected in the scientific community.  Moreover, there has been extensive peer review, re-analysis, and validation work on these studies.  And these facts should come as no shock to you, as the EPA has pointed this out repeatedly.” Many of Johnson’s refrains were stated in a July 30 letter she had penned to Smith in response to his July 22 letter.

The week following the hearing, Ranking Member Johnson sent another letter to Chairman Smith further questioning his motivation for the subpoena. In the letter, she noted that of the two researchers he cited as being denied access to the data, one, Jim Emstrom, was a paid consultant on behalf of the tobacco industry and was terminated by the University of California, Los Angeles in 2012. The other researcher Smith cited, Stanley Young, was not requesting the information on behalf of his organization, the National Institute of Statistical Sciences. NISS’s director responded that his entity does not have the resources to adequately undertake an analysis of EPA’s data. Johnson added “I would note that when the Health Effects Institute conducted a thorough re-analysis of the Harvard Six Cities Study and the American Cancer Society related study, it took a team of 30 researchers three years to complete their work.  It certainly seems unlikely that one statistical researcher, acting on his own, could replicate this task in a useful timeframe.”

Ranking Member Johnson’s letter was countered with a response letter from Chairman Smith: “I have made clear that any personal health information that may be in the subpoenaed data will be protected and removed before the data are made public. However, I have also made clear that the American taxpayers have a right to see this de-identified information and determine whether the EPA is basing its regulations on sound science,” maintained Chairman Smith. “Further, if this information cannot be made public in a manner sufficient for validation and re-analysis while protecting confidential information, EPA should not be using it to justify major regulations,” he continued.

The Aug. 1 mark-up also included a vote on a bill to modify an EPA study on hydraulic fracturing, currently underway. H.R. 2850, the “EPA Hydraulic Fracturing Study Improvement Act of 2013 would call on EPA, in addition to outlining the potential for the hydraulic fracturing to cause water pollution, to also specify the probability of such pollution actually occurring. Rep. Suzanne Bonamci (D-OR) cautioned that there has been no hearing on the legislation and thatthe committee is not aware of what the additional requirement will have on EPA’s resources, noting that the current House appropriations bill for the agency would cut the agency’s budget by 34 percent if enacted.

To view the committee mark-up meeting, click here.

To view Chairman Smith’s initial July 24 letter to EPA, click here.

To view Ranking Member Johnson’s July 30 response letter to Chairman Smith, click here.

To view Ranking Member Johnson’s Aug. 6 letter to Chairman Smith, click here.

To view Chairman Smith’s Aug. 8 response letter to Ranking Member Johnson, click here.

On August 1, the House Science, Space and Technology Subcommittee on Oversight convened for a hearing examining the Environmental Protection Agency’s (EPA) regulatory assessment of a plan to operate mining in Alaska’s Bristol Bay watershed.

Committee Republicans contend that EPA may have overstepped in assessing Pebble LP’s plan to allow gold and copper mining near Bristol Bay, an area which is also home to more than half of the world’s sockeye salmon. The Nushagak and Kvichak rivers flow into Bristol Bay watershed and provide for the harvest of an estimated 30 million salmon each year from the region.  Concerned members claim that EPA should have followed National Environmental Policy Act (NEPA) protocols before carrying out its watershed assessment. NEPA requires federal agencies to detail a proposed project’s environmental impact. Opponents of the mine contend that waiting for the full NEPA process to be implemented would provide more uncertainty for all parties involved. Supporters of the mine assert that EPA’s watershed assessment could lead to a preemptive veto.

“I have serious questions about how a mine can coexist with the fish in Bristol Bay,” said Oversight Subcommittee Chairman Paul Broun (R-GA).  “But I have reservations about EPA’s actions in regard to a potential Pebble mine.  I cannot support actions by a federal agency that disregards laws that already exist that provide a level playing field for both industry and environmentalists alike. We must allow due process under the law to find the facts.  Law and facts should drive the decision.” 

“EPA’s Bristol Bay study both is more general and more limited than an EIS [Environmental Impact Statement] would be,” said Lowell Rothshild, Senior Council with Bracewell & Guiliani LLp. “It covers far fewer subjects than would be analyzed in an EIS and lacks the detail needed to fully understand the impacts of an eventual project, even for the resource impacts it does exempt.  As a result, EPA’s assessment is not an adequate substitute for an EIS and even for the resources it does analyze its impact assessment is less informed and is therefore less useful than the analysis which would occur under a project specific EIS.” Rothschild contended that while the EPA assessment focuses on wildlife, an EIS would analyze multiple natural resources impacts (air, noise, groundwater, wildlife) and human resources impacts (economic, socioeconomic and environmental justice impacts).

EPA contends it has authority to conduct the assessment under the Clean Water Act. “EPA, in its role as a risk manager along with its responsibilities under the Clean Water Act, now has the information and duty to fulfill the Congressional mandate to protect our nation’s waters,” asserted Wayne Nastri, a former EPA regional administrator (2001-2009) invited to testify at the hearing. Nastri said that EPA needs to finalize the assessment “as soon as possible.” He noted that the draft assessment has received 841,411 comments and asserted that “more than 94 percent of those commenting from the Bristol Bay region supported EPA’s watershed assessment.”

“The draft assessment is solid science that demonstrates hard rock mining cannot coexist side by side with salmon without harm to the salmon, to the fishing and sportsman’s economy, and to the native communities,” said Oversight Subcommittee Ranking Member Dan Maffei (D-NY).  “I think we have to be honest with ourselves about where such projects can work and where they simply do not make sense.”

“As many as 2,000 Oregon jobs are supported by the Bristol Bay salmon fishery,” asserted Environment Subcommittee Ranking Member Suzanne Bonamici (D-OR). “My constituents have made it clear to me that they are concerned about the impact the proposed mine would have on the ecosystem and on their livelihood. It is important that we get the science on this right.”

View the full hearing, here.

On Aug. 6, the Bicameral Task Force on Climate Change released a report recommending 20 steps the Department of Energy (DOE) can use as guidance in the implementation President Obama’s Climate Action plan.

These steps include strengthening energy efficiency standards, accelerating the development of low-carbon energy technologies, analyzing climate change’s impacts on the export of natural gas as well as expanding energy saving measures in federal buildings and other reforms related to utilities and infrastructure. According to the lawmakers, the recommendations come from a wide range of stakeholders, varying from environmental and energy advocacy groups, Fortune 500 companies, experts from academia and former DOE officials.

The taskforce is co-chaired by House Energy and Commerce Committee Ranking Member Henry Waxman (D-CA), Sen. Sheldon Whitehouse (D-RI), Sen. Ben Cardin (D-MD) as well as recent new co-chairs Reps. Bobby Rush (D-IL), Earl Blumenauer and the transition of recently elected Ed Markey (D-MA) as a Senate co-chair.

View the full report here.

Three researchers with wolf expertise, who signed a May letter criticizing the Department of Interior’s proposal to remove Endangered Species Act protections for the gray wolf, have been blocked from participating in an independent peer review panel of the proposal.

Roland Kays of North Carolina State University, John Vucetich of Michigan Technological University and Robert Wayne of the University of California, Los Angeles were among 16 scientists who signed the letter, addressed to Interior Secretary Sally Jewell and US Fish and Wildlife Service (FWS) Director Dan Ashe. “There is a growing body of scientific literature demonstrating that top predators play critical roles in maintaining a diversity of other wildlife species and as such the composition and function of ecosystems,” the authors wrote. “Given the importance of wolves and the fact that they have only just begun to recover in some regions and not at all in others, we hope you will reconsider the Service’s proposal to remove protections across most of the United States.”

The delisting plan itself is the subject of an accelerated peer review conducted by a private consultant firm, AMEC, which had won a contract from FWS to lead the independent peer review. A representative from AMEC informed the three scientists of their removal via email. FWS maintains that the scientists’ letter constitutes a form of advocacy and contend that a letter supporting the removal would have also have raised concern.

The proposal to remove federal protections for gray wolves in the United States was first announced in June. FWS has set a deadline for peer reviews to be completed by Sept. 11, 2013 the same date by which public comments are due. Information on how to comment is available here.

View the May 21 scientists’ letter here.

A report from the Department of Housing and Urban Development’s Hurricane Sandy Rebuilding Task Force asserts that climate change needs to be taken into consideration when drafting recovery plans for affected regions along the East Coast.

The report specifically references President Obama’s agency-wide Climate Action Plan and emphasizes the importance of protecting communities against future extreme weather events. “While scientific evidence does not yet tell us definitively whether storms like Sandy are growing more common, evidence indicates climate change is already altering environmental conditions in a way that suggests there may be changes in the frequency, intensity, duration, and timing of future extreme meteorological events, which may lead to unprecedented extreme weather events,” the HUD report notes. Citing the high cost of infrastructure losses from natural disaster events, the report concludes that increasing resiliency will save billions in taxpayer dollars.

The report also asserts that “science needs to be an integrated part of post-disaster response and recovery efforts.” The report highlights the pivotal role data obtained from science agencies such as the National Oceanic and Atmospheric Administration and the United States Geological Survey played in preparation, response and recovery during Hurricane Sandy. The task force also highlights its coordination with the White House Office of Science and Technology Policy and the Department of Interior to formulate science working groups to ensure “the best available science was used to inform its policy recommendations.”

The report emphasizes the importance investing in “green infrastructure” can play in post-hurricane adaptation and restoration efforts. “Communities at increasing risk from coastal storms can use green infrastructure approaches that restore degraded or lost natural systems (e.g., wetlands and sand dune ecosystems) and other shoreline areas to enhance storm protection and reap the many benefits that are provided by these systems. There is also quantitative evidence supporting the importance of protecting intact systems where they exist because these systems may provide some wave attenuation capability, particularly in low-energy storm surges.”

Click here to view the full report.

On Aug. 16, US Forest Service Chief Tom Tidwell issued a memorandum to employees noting that, because it has run out of congressionally appropriated funds, the agency will halt spending on restoration, employee travel and other administrative costs in order to support agency wildfire mitigation efforts.

The number of wildfires (32,000) and acres burned (over three million) this year is lower than in previous years. According to the National Interagency Fire Center, last year was the second worst fire season on record with 67,000 fires burning 9.3 million acres. However, this year’s fire duration has increased and many fires have been closer to urban areas, increasing the need  to protect surrounding communities.

Borrowing funds from other parts of the agency to pay for firefighting is not new. Over the course of seven years beginning in 2002, the Service has transferred $2.2 billion from other accounts to pay for fire suppression efforts. Congress traditionally has been willing to make up the difference. This is the second straight year the FS has needed to use money from other accounts to pay for fire suppression. Congress sought to address this disruption to other agency functions in 2009 with the establishment of the FLAME fund, but the account has been depleted, according to the Service.

The agency is also stymied by the budget sequester cuts to discretionary spending, which eliminated $115 million from the federal wildland fire program’s budget. According to US Department of Agriculture Secretary Tom Vilsack, this resulted in 500 fewer firefighters. The agency has also had to shift money from fire prevention efforts to pay for fire suppression. Among prevention efforts that will lose funding through the shift are the hazardous-fuels-reduction program, whose responsibilities include hiring contractors to remove combustible material that fuel fires.

This summer, the Obama administration announced a series of measures intended to protect the Great Lakes from Asian carp invasion. The 2013 Asian Carp Control Strategy Framework builds upon the administration’s 2010 plan to prevent the fish from establishing themselves in the Great Lakes. 

Updates specified in the 2013 framework include the following:

• Design and construction of a mobile electric dispersal barrier in the Chicago Area Waterway System for experimental and emergency situations in addition to construction of a permanent barrier.
• Development and field testing of Asian carp control tools, including water guns, netting and chemical controls.
• Identifying controls, including hydrologic separation scenarios, to prevent the transfer of invasive species between the Great Lakes and Mississippi River basins.
• Increasing bi-national collaboration to deter the spread of Asian carp beyond US borders. 

A summary of the framework is available here.

Read the full framework here.

On Aug. 16, the US Fish and Wildlife Service (FWS) announced an extended deadline for its proposal to add a categorical exclusion to the existing exclusions concerning invasive and injurious species.

A categorical exclusion is a class of actions under the National Environmental Policy Act that do not individually or cumulatively have a significant effect on the human environment. They also increase efficiency in that they allow federal agencies to expedite the environmental review process for proposals that typically do not require more resource-intensive environmental review.

The proposed categorical exclusion open for public comment relates to adding species to the injurious wildlife list under the Lacey Act. Given that the existing listing process can take several years, refining this process could increase the capability of stopping an invasive species at the border before it becomes irreversibly established.

Comments must be received by October 15, 2013. To view the notice as well as information on how to comment, click here. 

For additional background, click here.

The United States Geological Survey (USGS) has opened a public comment opportunity for a registry of climate change vulnerability. The registry intends to improve nationwide climate change mitigation tactics through the collection and display of information on climate change adaptation projects across the country.

The plan is in accordance with President Obama’s second-term prioritization of implementing climate change mitigation practices across all federal agencies and fostering collaborative efforts with state and local entities nationwide. USGS will make the collected information available on a website in the form of a simple registry-type database. The site will be available for use by the general public, scientists, resource managers and other interested parties.

Comments must be received by Oct. 21, 2013. Additional information is available here: