Congressional negotiators and President Biden were able to avert a default on the federal government’s debt by coming to an agreement to suspend the debt limit. Both the House and the Senate were able to pass the negotiated compromise agreement with the Republican-controlled House voting 314 to 117 to approve the bill, and the Democrat-controlled Senate voting 63 to 36. President Bident signed the bill on June 3, 2023, just two days before the estimated June 5 “x date” provided by Treasury Secretary Janet L. Yellen.
Under the Fiscal Responsibility Act of 2023, the debt limit is suspended until January 1, 2025. Additionally, the Act imposes spending caps for six years, however, these caps will only be enforced during the first two years. The agreed-upon plan sets the defense budget limit at President Joe Biden’s requested amount of $886 billion for fiscal year 2024. Simultaneously, non-defense spending will be reduced to $704 billion, however, congressional appropriators are allowed several additions outside of the caps that keep domestic funding roughly flat. The bill grants a 1 percent increase for both defense and non-defense spending in FY25, putting the FY25 nondefense spending topline at $711 billion and defense spending at $895 billion. For FY26-FY29, the bill continues the 1 percent increase each year, however, these caps are just recommendations without the force of law.
The bill also contains a provision requiring Congress to pass the annually required legislation to fund the government by December 31. If Congress cannot do that, any continuing resolution (CR) to fund the government past the end of the calendar year would automatically include a one percent cut to defense and non-defense funding. Once all 12 appropriations bills are passed, the cuts are reversed. This applies to FY24 and FY25.
The deal rescinds a portion of IRS funding included in the Inflation Reduction Act as well as clawing back about $30 billion in unspent COVID relief funding. Republicans were able to secure work requirements for federal aid programs for people up to 55 years old and require an end to the pause in federal student loan repayments.
The bill also includes several provisions making changes to the National Environmental Protection Act (NEPA) to streamline permitting. The agreement would require a single lead agency to develop environmental reviews as well as set time limits for those reviews; one year for an environmental assessment and two years for a full environmental impact statement. Also included is a provision to expedite the approval of all permits for the Mountain Valley natural gas pipeline in West Virginia.
SCOTUS Opinion to Impact WOTUS Rule
On May 25, 2023, the Supreme Court (SCOTUS) reached a decision in the case of Sackett v. EPA, which pertained to the federal regulation of wetlands under the Clean Water Act (CWA) by the Environmental Protection Agency and the Army Corps of Engineers. Justice Alito authored the unanimous opinion, while other justices submitted concurring opinions expressing some objections to certain aspects of the Court’s reasoning.
The Court ruled unanimously in favor of the Idaho couple, Michael and Chantell Sackett, who brought the case, but split 5-4 in its reasoning.
In a concurring opinion written by Kavanaugh and joined by the three liberal justices, Sotomayor, Kagan, and Jackson, Kavanaugh argued that the majority’s adoption of the “continuous surface connection” test deviated from the statutory text, long-standing agency practices, and prior precedents set by the Court.
Kavanaugh cautioned that by narrowing the scope of the CWA, certain wetlands that have been regulated for a long time may no longer be protected under the law. This could have significant consequences for water quality and flood control across the nation.
According to the CWA, discharging certain pollutants into navigable waters, defined as “the waters of the United States (WOTUS), including the territorial seas,” without a permit is prohibited. However, the statute does not provide an exact definition of WOTUS.
The recent Court opinion narrows the interpretation of the CWA. It concludes that the law only applies to wetlands that have a “continuous surface connection” with regulated WOTUS or a relatively permanent water body connected to traditional interstate navigable waters. This decision presents challenges in determining the precise boundaries between wetlands and the waters covered under WOTUS.
The Court’s ruling undermines the WOTUS rule implemented by the Biden administration, which incorporates both the “relatively permanent” and “significant nexus” standards that were rejected by the Court. The final interim definition proposed by the Biden administration in December 2022 interprets WOTUS to include traditional navigable waters, the territorial seas, interstate waters, most impoundments of WOTUS (such as reservoirs), tributaries to traditional navigable waters, interstate waters, the territorial seas, and impoundments that meet either the relatively permanent or significant nexus standard, wetlands adjacent to other jurisdictional waters that meet either standard, as well as “other waters” meeting either standard.
Although the SCOTUS case did not directly address the WOTUS rule, the Court’s decision invalidates certain crucial provisions of the rule. Consequently, the EPA and Army Corps of Engineers will need to make adjustments to align the rule with the Court’s ruling. Opponents of the rule are urging the Biden administration to completely rescind the regulation.
OSHA Advisory Committee Advances Recommended Elements for Heat Standard
On May 31, 2023, the National Advisory Committee on Safety and Health (NACOSH) held a full committee meeting. One order of business on the agenda was to receive recommendations from the Heat Work Group on a potential Occupational Safety and Health Administration (OSHA) standard on injury and illness prevention. OSHA is considering proposing a rule to regulate indoor and outdoor work environments when the heat index exceeds 80 degrees Fahrenheit.
The Work Group extensively analyzed a range of sources, including existing standards, laws, programs, frameworks, proposed regulations and standards, industry and organizational initiatives, consensus standards, peer-reviewed research, stakeholder comments, as well as the collective experience and expertise of its members. NACOSH was instructed to develop broad recommendations to facilitate discussions during the rulemaking process, rather than providing specific regulatory text.
The recommendations forwarded to OSHA outline the core elements of a standard that should be included in any regulatory text. Some of the core elements included in the document include the development of a written heat illness prevention plan, training for workers and supervisors, environmental monitoring, and workplace control measures.
While the Committee voted to forward the recommendations to OSHA without any substantive amendments, there was discussion on additional issues for OSHA to consider regarding a standard’s training and reporting requirements. The Work Group focused their recommendation for training on everyone in the workplace knowing the written exposure plan, but some members of the Committee questioned if there should be a minimum number of first aid or emergency response trained personnel, even going so far as to enquire if the standard should require a medically trained individual on-site, such as an EMT or nurse. The OSHA representative at the meeting stated that OSHA would have to examine the economic feasibility of having such a requirement. The Committee also discussed the inclusion of reporting procedures in written exposure control plans, requiring employees to report incidents.
Likely this fall, the Labor Department is likely to request that the Small Business Administration’s Office of Advocacy convene a Small Business Regulatory Enforcement Fairness Act (SBREFA) panel to review the impact of a possible rule on smaller entities. One Voice will continue working with regulators and partners in Washington raising concern over the impact of such a proposed rule.
EPA Staff Issue Draft Report on Secondary NAAQS
In a draft policy assessment (PA) EPA staff presented options for the “secondary,” or welfare-based national ambient air quality standards (NAAQS) for nitrogen oxides (NOx), sulfur oxides (SOx) and particulate matter (PM), including tightening some of the limits or retaining all of them.
EPA faces a February 9, 2024, consent decree deadline to propose secondary standards for NOx as part of a combined rulemaking that would also set secondary limits for sulfur oxides (SOx) and particulate matter (PM). EPA must finalize the combined rule by December 10, 2024. Primary NAAQS are required by the Clean Air Act to protect public health, while secondary standards are designed to protect the environment.
The secondary standard for NOx is set at 53 parts per billion (ppb) of nitrogen dioxide (NO2) annually, the same level it has been at since 1971. The SOx secondary standard stands at 500 parts per billion (ppb) of sulfur dioxide (SO2) over three hours, a level also set in 1971. The secondary annual PM2.5 standard now stands at 15 micrograms per cubic meter (ug/m3), and the secondary daily PM2.5 standard at 35 ug/m3. The secondary daily limit for larger “coarse” PM, or PM10, stands at 150 ug/m3.
In the draft PA, EPA staff outlines options for tighter standards including a range of 200 ppb to 400 ppb using the 3-hour daily maximum form or 10 ppb to 22 ppb for SO2, using an annual averaging time for SOx; as low as 40 ppb for NOx; and tightening the annual limit from 15 ug/m3 to as low as 12 ug/m3, which is the same level as the existing “primary,” or health-based NAAQS for PM2.5.
New secondary standards for SOx and NOx were due in 2017, while new secondary standards for PM were due in 2018.
Suspension of 232 Steel Tariffs on Ukraine Extended
The United States is extending the suspension of Section 232 tariffs on Ukrainian steel for another year as the war against Russia continues in Ukraine. Initially declared in May 2022, the suspension of the 25 percent tariffs was intended to last for one year starting from June 1, 2022.
This extension was recently announced by the Department of Commerce, in accordance with a proclamation issued by President Biden on May 27, 2022. The proclamation not only extends the suspension but also broadens its scope to encompass “steel articles from Ukraine further processed in a member country of the European Union.” This expansion acknowledges that the disruption faced by the Ukrainian steel industry has led to some steel articles from Ukraine being processed in EU countries, as specified in the proclamation.
In 2018, the Trump administration imposed 25 percent tariffs on steel imports from multiple countries, including Ukraine. These tariffs were authorized under Section 232 of the Trade Expansion Act of 1962, with the claim that such imports posed a threat to national security.