September 27, 2016

The White House Office of Management and Budget held a planning call on Friday Sept. 23 with government agencies, as is required one week before agency spending runs out. Federal agencies are prohibited from spending any funds in the absence of enacted appropriations measures. The previous day, Sept. 22, Senate Democrats rejected a stopgap continuing resolution (CR) proposed by Senate Majority Leader Mitch McConnell (R-KY) to keep the government funded until Dec. 9. The CR was offered as an amendment to the Legislative Branch Appropriations Act of 2017 (H.R. 5325), which was previously passed by the House of Representatives.

 

The measure was rejected Sept. 22, in part, because it did not include any funding for the Flint, MI water crisis. However, it did include $1.1 billion to combat Zika and $500 million in initial emergency funding for flood-damaged communities in Louisiana, Maryland, and West Virginia. Portions of the Senate bill also provided full fiscal year funding for the Veterans Administration, military construction, and overseas military operations. A controversial rider included in the CR would maintain language prohibiting the Securities and Exchange Commission from requiring that publicly traded corporations disclose their political spending.

 

Senator Barbara Mikulski (D-MD), ranking member on the Appropriations Committee, said, “We Democrats can’t vote for that.” Senator Barbara Boxer (D-CA), ranking member on the Environment and Public Works Committee said, “We have to help people who are in dire need in this country and not pick and choose which American families we’re going to help.” Other Democrats quickly branded the resolution as “a Republican-only bill.”

 

Gone from the proposed CR were limits on funding to Planned Parenthood as part of the Zika fight and a waiver of Environmental Protection Agency Clean Water Act rules for permitting use of mosquito killing pesticides. “We are not going to have a repeal of the Clean Water Act in the CR,” said Senator Boxer. The mosquito rider was no longer expected in the CR and Boxer said that she was unaware of any other environmental provisions in play.

 

Senator Boxer was doubtful, however, that Flint funding would make it into a CR. Republican promises to include Flint funding in other spending legislation, such as the Water Resources Development Act (WRDA), drew weary shrugs from Democrats. The Senate-passed version of WRDA (S.2848) included $220 million for the Flint crisis. The still-pending House bill (H.R.5303) has no provision for Flint, although it was reported by the   Natural Resource Committee on Sept. 22 for a floor vote.

 

The same basic scenario played out again on Sept. 27, when a procedural vote to advance the CR was soundly defeated by a vote of 45-55 with a dozen Republicans joining in opposition with all but four Democrats. Majority Leader McConnell also voted no to retain the ability to offer the measure again. Because of Senate rules, this defeat could force a brief government shutdown unless all 100 Senators agree to waive procedural hurdles.

 

The sticking point, once again, was funding for flood victims but not for Flint, MI. Democrats continued to insist that the citizens of Flint, after two years of unsafe water, were also deserving of assistance. Republican leaders fear that including Flint funding in the CR would bring a revolt from House  members who fear voting for a spending bill could bring a future primary challenge. Senate Majority Whip John Cornyn (R-TX) commented that Flint funding in the CR would “jeopardize their ability” to get the bill through the GOP-controlled House. “We can’t ignore that,” he said.

 

Late Tuesday night, however, House Speaker Paul Ryan (R-WI) and Minority Leader Nancy Pelosi (D-CA) appeared to have found a deal. Their plan would have the House vote Wednesday on an amendment to the House WRDA bill (H.R.5303) to fund up to $170 million for communities such as Flint whose water infrastructure is plagued by “chemical, physical, or biological” contaminants. The strategy was hailed as a bipartisan agreement and Senate Democrats are optimistic, though they have not yet seen the House amendment.

 

Amending the House bill is far from certain. Just Monday, Congressman Pete Sessions (R-TX) defeated an attempt to include Flint funding in the WRDA, considering it an earmark. Transportation and Infrastructure Chairman Bill Shuster (D-PA), the bill’s sponsor, has said that Flint’s trouble “was caused at a state level,” adding, “I think the solution, the dollars … have to be driven by the state.”

 

Senate Environment and Public Works Chairman James Inhofe (R-OK), who helped win Flint funding in the Senate WRDA bill, urged Democrats to allow the House version of the bill to pass even without money for Flint, committing himself to fight for it in a resulting conference.

 

While the GOP Senate’s CR effort has failed repeatedly in recent days, a stopgap spending bill to keep the government funded is the must-pass measure before members can return to their electoral campaigns. If Ryan and Pelosi’s new bargain fails, a shutdown seems imminent. If it succeeds, it may be December before the House and Senate WRDA bills are reconciled, or that too could fail. Even under optimistic scenarios, the House is unlikely to see a CR from the Senate until late Wednesday or even Thursday. The House would then be voting a CR as the fiscal clock runs down. The work of passing appropriations for fiscal year 2017 still remains.

President Obama, on Wednesday, Sept. 21, signed a Presidential Memorandum on Climate Change and National Security “establishing a policy that the impacts of climate change must be considered in the development of national security-related doctrine, policies, and plans.”

 

The Memorandum requires that twenty federal agencies and offices with climate science, intelligence analysis, and national security policy development missions and responsibilities will collaborate to ensure the best information on climate impacts is available to strengthen our national security. Select agencies include the Department of Justice, the Millennium Challenge Corporation, the National Aeronautics and Space Administration (NASA), the National Oceanic and Atmospheric Administration (NOAA), the Central Intelligence Agency (CIA), the National Security Agency (NSA), and the Department of Defense, among others.

 

Together, the agencies will establish a working group, at the Assistant Secretary level, to identify national security priorities related to climate change. The working group, to be staffed by National Security Council and Office of Science and Technology Policy staff, will then develop a Climate Change and National Security Action Plan outlining how they will develop and share information on these risks. The plan will be written within 90 days from Sept. 21, ensuring a plan will be in place when President Obama leaves office. Each agency will further develop specific strategies to address climate-related threats-from impacts on the U.S. economy and food security to the flow of migrants and refugees.

 

The Presidential Memorandum coincided with the release of a report from the National Intelligence Council, “Implications for US National Security of Anticipated Climate Change,” identifying pathways through which climate change will likely pose significant national security challenges for the United States over the next two decades, including threatening the stability of other countries.

In addition to tackling climate change by reducing emissions, the Administration contends that there is a need for increased collaboration among the climate science, intelligence, and national security policy communities to prepare for what are now seen as unavoidable impacts that we can no longer avoid. For example, warming Artic seas prompted the Administration to call for accelerated funding for developing new icebreaker vessels to facilitate a greater U.S. presence in now open seas.

 

The National Intelligence Council report suggests that climate change will be “likely to pose significant national security challenges for the United States over the next two decades.” This includes conflicts over increasingly scarce water and arable land, threats to economic infrastructure and populations in vulnerable areas such as coastal or arid regions, and, interestingly, the possibility of unilateral geoengineering solutions that might benefit some regions at the cost of others.

 

The Presidential Memorandum is seen as part of the continuing Administration effort to embed climate change in U.S. national policy and international law.

 

At the recent G20 economic summit, President Obama and Chinese President Xi Jinping presented documents to United Nations (UN) Secretary-General Ban Ki-moon formally committing their nations to the Paris Agreement on climate change. In the opening days of the current annual meeting of the U.N. General Assembly, climate change dominated talks.

 

On Wed., Sept. 21, at the UN, 31 additional countries also formally joined the Paris Agreement. Sixty countries, representing 47.7 percent of global emissions, have now joined the agreement. The Agreement will come into force as international law once 55 countries, producing 55% of global carbon emission, adopt the agreement. The first part of that goal is met, the second is now very close.

 

Video messages from Germany (2.56% of global emissions), France (1.34%), the European Union, Canada (1.95%), Australia (1.46%), South Korea (1.85%), and others affirmed their commitment to ratify the Paris accord in the coming months. Prime Minister Narendra Modi of India (4.5%) announced, on Sept. 24, that his nation will ratify the accord on Oct. 2, Mahatma Gandhi’s birthday. Germany’s Environment Minister, Barbara Hendricks, said her country planned to ratify the deal “well ahead” of the next UN climate meeting Nov. Australia’s Prime Minister, Malcolm Turnbull, said his country will make its “best endeavours to ratify” in 2016.

 

Morocco (0.16%) will host the upcoming 22nd Conference of Parties to the United Nations Framework Convention on Climate Change (COP22), Nov. 7-18 in Marrakech. It seems very possible that the Agreement will be in effect during that meeting and almost certainly by the end of 2016.

 

Meanwhile, back in Washington, Lamar Smith (R-TX), chairman of the House Science, Space and Technology Committee is asking the Administration for more information. In a letter to Brian Deese he writes, “The committee has genuine interest in the climate science and information that the administration claims impacts national security.” He has asked Deese to brief the committee by October 10. 

The House of Representatives passed the “Require Evaluation before Implementing Executive Wishlists Act of 2016” (H.R.3438), on Sept. 21, by a party-line vote of 244-180. Only four Democrats voted aye, one Republican voted no.

 

The bill allows “high-impact” rules-those estimated to cost the economy more than $1 billion per year-to go into effect 60 days after appearing in the Federal Register only if a lawsuit against it has not been filed during that period.

 

The bill was introduced by Congressman Tom Marino (R-PA) following the Supreme Court’s ruling June 2015 against the Environmental Protection Agency’s new mercury standards, Michigan v. Environmental Protection Agency.

 

Democrats object to the legislation, arguing that critical regulations could be stalled by litigation which can take months or years to resolve. Congressman John Conyers (D-MI), ranking member of the Judiciary Committee, called it “dangerous solution to a nonexistent problem”; emphasizing that “rather than ensuring predictability and streamlining the rulemaking process, this bill would have a completely opposite impact by making the process less predictable and more time-consuming.”

 

Calling it the “Unnecessary Delay of Rules Act,” the Administration argues the bill “would promote unwarranted litigation, introduce harmful delay, and, in many cases, thwart implementation of statutory mandates and execution of duly enacted laws.” Adding, “The legislation also would increase business uncertainty and undermine much-needed protections for the American public, including critical rules that provide financial reform and protect public health, food safety and the environment.” The “Statement of Administration Policy” promises a veto if it reaches President Obama’s desk.

The U.S. Fish and Wildlife Service and National Marine Fisheries Service  finalized new rules for petitioning listing of a species under the Endangered Species Act 9 (ESA) were announced on Sept. 26. The new rules (Document Citation: 81 FR 66461) come into force on Oct. 27.

 

There are two new requirements prominent under the new rules: Petitioners must provide each state’s wildlife agency affected by the proposed listing with notice of their intent to file for listing and/or reclassification a minimum of 30 days prior to the filing. Petitions are now limited to one “taxonomic species,” including multiple subspecies or multiple populations.

 

The Services contend that the notification requirement “will allow the Services to benefit from the States’ considerable experience and information on the species within their boundaries, because the States would have an opportunity to submit to the Service any information they have on the species early in the petition process.” This provision does not apply to foreign species that do not occur in the United States.

 

The requirement to petition for only one species was advanced by the Services as multi-species petitions in the past have often proven to be difficult to know which supporting materials apply to which species and has at times made it difficult to follow the logic of some petition. The single species petition requirement does not prohibit filing multiple petitions and allows for protect both the endangered or threatened species and the ecosystems on which they depend.

 

The Services note, repeatedly, that they retain discretion to consider petitions that only substantially comply with requirements for filing in appropriate circumstances, such as where an expedited listing may be warranted. They further note that while a petition may be screened out from consideration because it does not contain all the required elements of a petition and so cannot meet the statutory standard for demonstrating that the petitioned action is warranted, such a screening does not constitute a “finding.” In such a situation, the Services will explain to petitioners what information was missing so that they may cure the deficiencies in a new petition.

 

Particularly burdensome requirements contained in the original draft rule, such as certifying that they had provided all relevant information on the species of concern and a more narrow single species definition, were removed from the final, published rule.

 

Predictably, the new rule was attacked from different perspectives. The Center for Biological Diversity’s Brett Hartl said: “These new restrictions on citizen petitions are nothing more than a gift to industries and right-wing states that are hostile to endangered species…These new rules were premised on right-wing myths, not facts.” Meanwhile, many environmentalists viewed the revisions as a significant scaling back of the original proposals.

 

House Natural Resources Chairman Rob Bishop (R-UT) argued, “These revisions give the appearance that state input will improve and that closed-door settlements will no longer drive petition and listing decisions. Unfortunately, serial environmental litigation will continue to drive ESA policy, and there is nothing the agencies can do about it unless we reform the underlying statute.”

 

The original draft revisions, published in May 2015, received 347 comments, prompting the Services to revisit the proposed rule. The revised draft, published in April 2016, received 27 comments and the Services updated it once again before announcing the final rule.

Solicitations for Members

National Oceanic and Atmospheric Administration (NOAA)
NOAA Soliciting Members for Science Advisory Board

NOAA is soliciting nominations for members of the NOAA Science Advisory Board (SAB). The SAB is the only Federal Advisory Committee with the responsibility to advise the Under Secretary of Commerce for Oceans and Atmosphere and NOAA Administrator on long- and short-range strategies for research, education, and application of science to resource management and environmental assessment and prediction. The SAB consists of approximately fifteen members reflecting the full breadth of NOAA’s areas of responsibility and assists NOAA in maintaining a complete and accurate understanding of scientific issues critical to the agency’s missions. Members will be appointed for three-year terms, renewable once, and serve at the discretion of the Under Secretary.

Nominations must be received by October 17, 2016 and should be sent to noaa.sab.newmembers@noaa.gov.

 

The U.S. Global Change Research Program is mandated under the Global Change Research Act of 1990 to conduct a quadrennial National Climate Assessment. Sectoral and response chapters will be coordinated and led by federal agencies. Regional chapters will be coordinated and led by non-federal regional chapter leads, who in turn will collaborate with federal coordinating lead authors. NOAA is seeking public nominations for these non-federal leads.

Nominations are due by September 30 and should be submitted via links found on https://www.globalchange.gov/notices.  Questions may be addressed to Emily Therese Cloyd, (202) 223-6262, ecloyd@usgcrp.gov, U.S. Global Change Research Program.

National Oceanic and Atmospheric Administration (NOAA)
Nominations for the Marine Protected Areas Federal Advisory Committee and Notice of Public Meeting

The Department of Commerce is seeking nominations for membership on the Marine Protected Areas Federal Advisory Committee. The Committee advises the Secretaries of Commerce and Interior on strategies and priorities for developing the national system of marine protected areas and on practical approaches to further enhance and expand protection of new and existing areas. Additionally, a meeting of the Committee will be held via webinar on Monday, October 3, 2016 from 3:00-5:30 p.m. ET and is open to the public.

Nominations must be received before or on October 7, 2016 and should be sent to Nicole Capps at West Coast Region, Office of National Marine Sanctuaries, 99 Pacific Street, Suite 100 F, Monterey, CA, 93940, or Nicole.Capps@noaa.gov.

Register for the webinar meeting by contacting Nicole Capps at Nicole.Capps@noaa.gov or by telephone at (831) 647-6451.

Environmental Protection Agency (EPA)
Nominations of Experts to Augment the Science Advisory Board Ecological Processes and Effects Committee

The Environmental Protection Agency, Science Advisory Board staff office is requesting public nominations of scientific experts to augment the board’s Ecological Processes and Effects Committee for review of a draft EPA document entitled “Scope and Approach for Revising USEPA’s Guidelines for Deriving National Water Quality Criteria to Protect Aquatic Life.”

Nominations should be submitted by September 20, 2016 through the web-based form for nominating experts for this advisory activity. Questions may be addressed to Iris Goodman, SAB Staff Office, at 202-564-2164 or goodman.iris@epa.gov.

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