APPROPRIATIONS

GOP challenges Obama to veto showdown over EPA riders

President Obama has repeatedly threatened to veto legislation that rolls back environmental protections, but Republicans are apparently planning to test his resolve.

The fiscal 2016 Interior, Environment and Related Agencies spending bill marked up by the Senate Appropriations subcommittee of the same name yesterday contains numerous riders that would hamstring the administration's ability to regulate greenhouse gases, fracking and other forms of air and water pollution, to name a few (E&ENews PM, June 16).

All of these provisions fall squarely in the realm of policies that the administration has vowed to defend, but Republicans are brushing aside the warnings, arguing that they're fulfilling their legislative duties in doing so.

Interior-Environment Chairwoman Lisa Murkowski (R-Alaska) in the past has expressed a dim view of the legislative brinkmanship that led to the 2013 government shutdown but said yesterday the riders respond to a chorus of lawmaker complaints over executive overreach.

"If I lay awake worrying about what the president was or wasn't going to be doing with an appropriations bill or any other bills that we have in front of us, I'd never get any sleep," she told E&E Daily after the markup. "What I'm doing as a lawmaker is doing my job, which is as chairman of the Interior Appropriations Committee, trying to put a bill together that represents the sentiments and concerns and wishes of the committee and other members, and we will move through the process."

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Sen. John Hoeven (R-N.D.), who led efforts to include a provision defunding the recently finalized Waters of the U.S. Clean Water Act rule, said Republicans tried to craft the more contentious riders in "a way that is workable."

The bill text won't be publicly released until tomorrow, but Hoeven cited a provision that he said would ensure that states that have regulatory regimes maintain "primacy" in regulating hydraulic fracturing.

Asked if Republicans are essentially daring Obama to veto the bill over riders attacking the Clean Power Plan and EPA's planned ozone update, Hoeven said it would depend on the legislative context.

"First we have to get it through the Congress, and then we'll see," he said. "But remember, it depends on how this tracks forward from the standpoint of which actual bills move individually and then which bills are part of a larger package and then what's in that overall package. In other words, the president may have to look at the bill in its entirety -- and Democrats will have to look at the bill in its entirety and then make a decision. And so I don't know that they can look at any one issue and say that's going to make the determination as to whether or not he vetoes the bill."

But in the event the shaky appropriations process falls apart, Hoeven added that Obama may reconsider vetoing a broader omnibus bill that contains unpalatable riders.

"We obviously could end up at the end of the year with some sort of larger package, and yes, it will be a negotiation as to how many of these items we're able to keep in the underlying legislation, and we'll just have to see how that goes," he said.

But environmentalists see little room for compromise on riders. David Goldston, director of government affairs for the Natural Resources Defense Council, said yesterday that negotiations over riders will proceed concurrently with talks over how to address across-the-board sequestration spending cuts. But Goldston said he did not see any riders that congressional Democrats or the White House would easily accept.

"On things that actually have real meaning, there's not a lot of second-tier stuff here," he said during a briefing yesterday. "And I think the administration has learned that if you give an inch, they take a mile, and that there's not much benefit from getting this other stuff. The fact that they're having this macro debate about the numbers I don't think makes them more likely to give on other things. I think it means we're going to the mat on this whole set of stuff."

Here are some key provisions of the bill and the agencies they would affect:

EPA

The bill would provide $7.6 billion for EPA in fiscal 2016, which represents a cut of $538.8 million below current funding levels but is slightly higher than would be provided by the House's spending plan for the agency.

Core regulatory programs at EPA would take a cut of $57.1 million, part of a broader attempt by Republicans to curtail agency regulatory activities. EPA would not receive the $25 million in state grants and $26 million in technical assistance requested by the Obama administration to help states put in place its rules over carbon dioxide emissions from power plants.

EPA's air and water programs would be cut by $75 million, while its civil and criminal enforcement would see a reduction of $7.5 million.

Among the policy riders in the bill are several aimed at EPA's regulatory activities. The bill would prohibit EPA from putting in place a federal implementation plan for states that don't comply with the Clean Power Plan to reduce carbon dioxide emissions at power plants. Democrats yesterday objected to the provision, saying it would block progress in addressing climate change by allowing states to back out of the CPP without any consequences.

Although not specific to EPA, the legislation also would include language that appears aimed at preventing the Obama administration's draft guidance that seeks to streamline how federal agencies address the causes and effects of climate change in National Environmental Policy Act reviews for projects. The Council on Environmental Quality issued the guidance in December, drawing cheers from environmentalists.

According to a summary by Appropriations Democrats, the bill unveiled yesterday would prevent agencies from using a consistent standard for accounting for climate change in NEPA reviews.

In the area of water policy, EPA would be blocked from putting in place its final Waters of the U.S. rule to amend the scope of water bodies that receive automatic protection under the Clean Water Act.

The bill also includes a provision that would halt EPA from tightening the national ozone standard until 85 percent of counties meet the current standard -- which is similar to a provision that the House Appropriations Committee added to its Interior-EPA spending place yesterday.

Also similar to the House spending legislation, the Senate version contains a policy rider that would promote biomass by requiring all biomass emissions to be treated as carbon neutral. It comes as EPA is considering whether biomass energy generation should be considered a zero-emission substitute for fossil fuels under its Clean Power Plan for reducing greenhouse gas emissions from power plants.

Other language would block a law that requires industry to make financial plans for cleaning up potential future hazardous waste contamination, which Democrats say would place the burden of cleanup costs on taxpayers.

Interior, Forest Service

The Senate's fiscal 2016 funding bill contains a significant new provision to reform how the Forest Service budgets for wildfires, and it also contains controversial policy riders to restrict the Bureau of Land Management's hydraulic fracturing rule and to allow construction of a road through the Izembek National Wildlife Refuge.

The bill would provide about $11 billion to the Interior Department agencies under the subcommittee's jurisdiction.

It would also provide $5.12 billion for the Forest Service, a $67 million bump over current spending levels that includes funding boosts for hazardous fuels reduction, road maintenance and construction and logging.

In a major break from the House's proposed spending bill for Interior and the Forest Service, the Senate bill includes a "fire cap adjustment" that would provide disaster assistance for wildfire response once fire expenditures have exceeded the 10-year average cost of suppression.

While the precise language of the bill has not been released, the provision appears to be a partial victory for the Obama administration, which has asked Congress to provide disaster funding for the most catastrophic wildfires, thereby sparing the Forest Service from having to "borrow" money from non-fire accounts when suppression funds run out.

The move was one of the few points of bipartisan harmony in the Senate bill.

"The reforms proposed for the wildland firefighting budget are a little different than the bipartisan legislation we've seen from Sens. [Ron] Wyden [D-Ore.] and [Mike] Crapo [R-Idaho]," said Sen. Tom Udall (D-N.M.), the subcommittee's ranking member. "But the language that [Murkowski] has included will help us work toward the goal that I know we both share: ending the cycle of fire borrowing."

Murkowski's bill would also provide $1.054 billion in emergency spending for wildfire programs -- separate from the panel's discretionary allocation -- to be used if all discretionary appropriations are exhausted.

Republicans and Democrats parted ways on a bevy of other wildlife and energy provisions.

The Senate bill would authorize a land exchange and the construction of a road through the Izembek National Wildlife Refuge in Alaska, a key priority for Murkowski, who has argued that a 10-mile gravel road is crucial for public safety in King Cove, Alaska.

The provision would overturn Interior Secretary Sally Jewell's decision in December 2013 to reject the road to protect the refuge's wilderness values and migratory birds.

"My approach in this bill -- to cherry-stem a very small road out of a wilderness area -- is neither unusual nor unprecedented, but instead quite common," Murkowski said in a statement yesterday. "With the health and safety of nearly 1,000 Alaskans at stake, it is decades past time for us to offer the same simple protections to King Cove."

Conservation groups have long opposed the road, arguing that Congress has already earmarked tens of millions of dollars to improve safety in King Cove and warning that a road would set a dangerous precedent.

"The Izembek road was a terrible idea in 1998 when it was first proposed," said Don Barry, senior vice president for conservation programs at Defenders of Wildlife. "It was a terrible idea when Secretary Jewell heroically rejected it in 2013, and it remains a terrible idea today. It should be defeated."

The Senate bill also includes a provision "giving states flexibility related to the BLM hydraulic fracturing rule," according to a summary provided by committee Republicans.

A summary provided by committee Democrats said the bill "forces BLM to accept state or tribal standards related to hydraulic fracturing on public lands -- even if those standards are weaker than BLM's."

The provision appears to roll back one of the Obama administration's signature energy regulations on public lands. BLM's final rule, released last March and set to take effect next week, seeks to enhance the safety of hydraulic fracturing at thousands of wells that are drilled annually in the West. It is being challenged in court by industry and some Western states that argue it is duplicative of state rules.

The provision may mirror an amendment that was added to the House's fiscal 2016 Interior-EPA spending bill at full committee markup yesterday that would prohibit "funding to implement, administer, or enforce" BLM's fracking rule.

Like the House measure, Murkowski's bill also would continue a prohibition on the Fish and Wildlife Service listing the greater sage grouse as a threatened or endangered species. It also followed the House bill's lead by meeting the Obama administration's request for $60 million to conserve the species throughout its 11-state Western range.

The funding boost in both bills may help Fish and Wildlife determine in September that sage grouse no longer need protection under the Endangered Species Act. That decision will be influenced heavily by the extent to which Congress decides to curb BLM's administrative efforts to enhance sage grouse protections on public lands where the majority of the birds live.

According to Senate committee Democrats, the upper chamber's funding bill also includes language to delist wolves in the Great Lakes and Wyoming and to bar the federal government from regulating lead ammunition or fishing tackle. The House bill contains similar measures.

According to Senate committee Republicans, the upper chamber's bill also provides:

  • $1.18 billion for BLM, an increase of $65.5 million above the enacted level. It rejects the Obama administration's proposed new inspection fees for onshore oil and gas drillers.
  • $2.72 billion for the National Park Service, a boost of $113 million above the enacted level that includes "important increases for construction backlog, maintenance, and new park units established under the National Defense Authorization Act of 2015." There is also an additional $110 million for the Centennial Initiative.
  • $1.43 billion for Fish and Wildlife Service, roughly level with current funding. The bill boosts funding for state and tribal wildlife grants and the North American Wetlands Conservation Act.

Mining

The Senate language mirrors the House in including a rider to prevent EPA from issuing new financial assurance requirements for hardrock mines. Murkowski has for years called the pending rules, supported by environmentalists, duplicative of existing agency and state requirements.

Murkowski's office said the bill also includes provisions to make BLM work more cooperatively with small-scale miners on reclamation, another of her top concerns.

However, unlike the House version, Senate spending bill summaries don't mention a rider against the Office of Surface Mining, Reclamation and Enforcement's stream protection rule. The agency's spending topline is also forthcoming.

The summaries are also silent on whether the legislation includes abandoned coal mine reclamation funding to help Appalachian communities or a block on the administration's changing the definition of fill material, a step that could restrict mining.

Prohibitions on a fill rule rewrite are already in the Senate's Army Corps of Engineers spending legislation, plus both the House EPA and Army Corps spending bills.

Reporters Manuel Quiñones and Nick Juliano contributed.

Twitter: @geofkossEmail: gkoss@eenews.net

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