DEFENSE

Negotiators release NDAA: What's in and what's out

This story was updated at 10:30 a.m. EST.

House and Senate negotiators yesterday released the fiscal 2021 National Defense Authorization Act with multiple provisions on energy and the environment.

Some big-ticket items, including major public lands legislation, did not make the cut. Neither did broad nuclear energy and carbon capture legislation.

Unlike some previous years, discussions on energy and the environment took a back seat, particularly compared with other policy fights between the White House and Capitol Hill.

President Trump had threatened to veto the NDAA if it contained a provision to rename military bases and facilities that honor Confederate leaders. The agreement unveiled yesterday does.

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More recently, Trump said the bill would need to include a repeal of certain liability protections for the technology sector. The compromise does not.

"Looks like certain Republican Senators are getting cold feet with respect to the termination of Big Tech's Section 230, a National Security and Election Integrity MUST," tweeted the president. "For years, all talk, no action. Termination must be put in Defense Bill!!!"

Still, both Democratic and Republican negotiators have continued pushing their bill despite the president's bluster.

Here's what's in and what's out:

Chemicals

Both the House and Senate version of the NDAA included several provisions on per- and polyfluoroalkyl substances.

The military has used the chemicals in firefighting foam. As a result, they pollute bases and nearby lands and waters.

The legislation includes $1.4 billion for remediation and cleanup at military sites, with some funding for PFAS.

The bill would establish an interagency body to research PFAS and would increase funding to $15 million for a Centers for Disease Control and Prevention health assessment on the chemicals.

The final NDAA keeps a House provision requiring the departments of Defense and Agriculture to work together to inform agricultural operations about any potential exposure to PFAS due to military-linked activities.

Also authorized would be $17.5 million for research on PFAS in gear and equipment worn and used by firefighters.

Funding for additional research on the development of PFAS-free firefighting agents is similarly included.

Left out of the bill are several major House provisions, including a provision requiring DOD to disclose the results of any testing for PFAS at current or former military sites, along with an attempt to ban the incineration of aqueous film-forming foam.

Another provision requiring DOD to disclose the results of any testing for PFAS at current or former military sites was struck, along with an attempt to ban the incineration of aqueous film-forming foam.

Efforts to cover the cost of PFAS-related blood testing and requiring manufacturers to disclose to EPA all discharges of PFAS over 100 pounds for inclusion in the Toxics Release Inventory also failed to make the cut.

"Tragically, this bill will do little to clean up the existing legacy contamination at bases and nearby communities and does nothing to hold polluters or the Pentagon accountable when they fail to act to protect us," Scott Faber, senior vice president of government affairs for the Environmental Working Group, said in a statement.

"What's more, the bill fails to expand PFAS blood testing to all service members, even though growing evidence suggests that the PFAS in our blood make vaccines less effective."

Public lands

Conservation advocates lost battles to secure several public lands protections in the final defense bill — priorities that were adopted as amendments in the House-passed NDAA but not in the Senate's and fell to the wayside in the final stages of negotiating a bicameral product.

One of those priorities was S. 823, the "Colorado Outdoor Recreation and Economy (CORE) Act," which would guarantee the state about 73,000 acres in new designated wilderness and around 80,000 acres of new recreation and conservation management areas.

The "CORE Act" is widely supported throughout the state and championed on Capitol Hill by Colorado Democratic Sen. Michael Bennet and Rep. Joe Neguse.

Critics, however, have been uneasy about the bill's prohibition on new oil and gas development on Colorado's Thompson Divide.

Sen. Cory Gardner (R-Colo.) was also seen as a roadblock to passing the "CORE Act," saying he would not "stand in the way" of its advancement but also refusing to use his leverage to move it through the pipeline and insisting the bill needed additional local buy-in.

With the distinction of being one of the GOP's most vulnerable incumbents in the 2020 election cycle, Gardner was at one point seen as having tremendous clout with Senate Republican leaders who might have been willing to give the lawmaker whatever "wins" he needed to hold on to his seat.

"CORE Act" supporters were furious that he refused to use that clout to promote the legislation earlier this year (E&E Daily, Aug. 12).

Following Gardner's loss to Democrat John Hickenlooper in November, advocates of the "CORE Act" thought he might no longer be a roadblock to allowing the bill to remain a part of the final NDAA. That hope was ultimately misplaced.

A Bennet spokesperson wrote in an email, "Michael is disappointed that the CORE Act wasn't included in the final defense authorization bill, especially because it's had a Senate hearing, passed the House, and has strong bipartisan support across Colorado. He'll continue to pursue every opportunity to pass this critical bill for Colorado."

Another conservation priority, the "Protecting America's Wilderness Act," was also not included in the NDAA agreement.

The legislation, H.R. 2546 — a package of six individual bills to protect nearly 1.3 million acres of wilderness and designate more than 1,000 miles of rivers across Colorado, California and Washington state — was, like the "CORE Act," adopted as an amendment to the House version of the NDAA but not in the Senate's.

Negotiators jettisoned a House-authored provision that would have permanently banned new mining claims around Grand Canyon National Park.

The Obama administration issued a temporary prohibition on new uranium mines in that region in 2012, but it will expire after 20 years.

President-elect Joe Biden endorsed the continued ban on the practice in his bid for the White House (Greenwire, Nov. 16).

After the bill's release, the president tweeted, "A provision is in the NDAA for the renaming, or even desecration, of National Monuments in National Parks. This is not what our Country wants!"

It's unclear exactly what the president is discussing, other than a commission for the renaming of military facilities that honor Confederates.

Grounded in Nev.

Lawmakers opted to renew public lands withdrawals for a pair of military training facilities in Nevada but stopped short of granting significant expansions sought by both the Navy and Air Force.

Instead, both the Nevada Test and Training Range (NTTR) at Nellis Air Force Base and the Fallon Range Training Complex at Naval Air Station Fallon will be allowed to continue using their current public lands allocations for another 25 years.

The Navy had pushed for a 666,000-acre expansion of its site near Reno, Nev., in addition to its existing 202,000 acres of Bureau of Land Management-administered lands.

Nevada Democratic Sen. Catherine Cortez Masto in October called for transferring authority over 382,000 acres of public land to the Navy, while also establishing 585,000 acres of wilderness in the state, but her proposal did not make the final NDAA (E&E Daily, Oct. 9).

Similarly, the Air Force has long sought to grow its NTTR by taking control of the 1.6-million-acre Desert National Wildlife Refuge (E&E Daily, July 15).

The NTTR is a 2.9-million-acre site northeast of Las Vegas, but most of its land is overseen by BLM and the Fish and Wildlife Service.

But while lawmakers declined to grow either site, the conference report instructs the Navy and Air Force, respectively, to work with Nevada's delegation as well as state and tribal leaders to achieve a "mutually-agreed upon expansion" at both sites.

The measure also calls for the creation of interagency committees on land use at both installations.

The Center for Biological Diversity, which opposes the expansions, cheered the report as a "monumental victory, for public lands, wildlife and the people of Nevada."

"We were told we had to cut a deal or risk losing everything. But this coalition showed steely resolve and it paid off. Our public lands have been saved from military seizure," said CBD Nevada State Director Patrick Donnelly.

He added that the organization will continue to oppose any expansion: "We know the military will be back, and the coalition will be ready to protect our public lands. When this campaign began we said 'not one acre.' We meant it."

Energy

Defense bill negotiators dropped a pair of energy proposals that senators had attached to their version of the NDAA.

Provisions from Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) to bolster the development and deployment of advanced nuclear reactors failed to make the cut.

The proposal, based on Murkowski and Sen. Cory Booker's (D-N.J.) "Nuclear Energy Leadership Act," S. 903, would direct the government to form a cross-agency national strategy for the development of advanced reactors, among other goals.

The final NDAA would direct the Defense Department to conduct a study on the use of microreactors at its bases. Such technology — measured at less than 20 megawatts — could prove attractive to military bases looking to close off their electric grids.

Also dropped was the "Utilizing Significant Emissions With Innovative Technologies Act," S. 383, from Environment and Public Works Chairman John Barrasso (R-Wyo.), which similarly failed to make the NDAA last year.

The proposal would promote carbon capture technologies through better use of the 45Q tax credit. It would also streamline reviews for carbon dioxide pipelines and launch a prize program for direct air capture technology demonstrations.

The final NDAA has a provision to clarify how the secretary of Energy and DOD's Nuclear Weapons Council should handle the budgetary request process for DOE's National Nuclear Security Administration.

A problem with the process earlier this year prompted Senate Armed Services Chairman Jim Inhofe (R-Okla.) to push language giving the Pentagon more power over NNSA (E&E Daily, Sept. 18).

Energy Secretary Dan Brouillette said the process would undercut his department's statutory power over NNSA.

The compromised bill would direct the two sides to work together, although DOE would have the final power to submit NNSA's budget request to the White House. Any comments from the Nuclear Weapons Council would be attached as an appendix.

Nord Stream 2 sanctions

As expected, the final bill includes expanded sanctions against companies involved in building the controversial Nord Stream 2 natural gas pipeline, which would carry gas across the Baltic Sea from Russia to Germany.

The Gazprom-backed project — dubbed "Putin's pipeline" — was sanctioned in last year's NDAA, prompting one Swiss company to walk away from the project.

But a Russian-owned vessel later appeared in the Baltic Sea, prompting congressional critics of the pipeline to offer new legislation that made clear the sanctions apply broadly to vessels and facilities that assist in construction (E&E Daily, June 5).

As work continued on the fiscal 2021 NDAA, a trio of Republican senators in August took the unusual step of notifying a company that operates a German port that it and its employees would face "crushing" sanctions if they continued to provide support for pipeline construction (E&E Daily, Aug. 6).

The Republicans' threat did not go over well in Germany, with a member of the Bundestag warning of retaliatory measures (E&E Daily, Aug. 19).

Climate and extreme weather

The final bill contains a provision, originally from the House version, that would require the Department of Defense to submit a report on its greenhouse gas emissions in the last 10 fiscal years.

The U.S. military is one of the world's single largest emitters of greenhouse gases, but the Pentagon does not consistently report its emissions or use of fossil fuels.

One study last year from Brown University's Costs of War project estimated that the military emitted 1.2 billion metric tons of greenhouse gases between fiscal 2001 and 2018, with greater annual emissions than many countries.

Lawmakers also agreed to require the Pentagon to submit a separate report on how extreme weather affects military installations and training.

It would build on another report required in the fiscal 2018 defense authorization bill that required DOD to list the bases most vulnerable to the effects of climate change (Greenwire, June 17, 2019).

Other provisions

The final NDAA, as many before, includes language meant to safeguard the supply of critical minerals needed for defense systems.

Also included was a provision to establish a national cyber director as recommended by a panel on cybersecurity concerns.

Lawmakers also included compromise language expressing concern about imports of Russian uranium for nuclear plants.

Outlook

Absent from the conference report is a repeal of Section 230 of the Communications Decency Act, which provides immunity to online platforms from civil liability for third-party content and the removal of some content.

Conservatives have rallied around repeal of the provision, alleging bias by Twitter, Facebook and other platforms, and Trump in recent days has threatened to veto the NDAA if it does not repeal the provision.

Trump also tweeted, "Very sadly for our Nation, it looks like Senator @JimInhofe will not be putting the Section 230 termination clause into the Defense Bill. So bad for our National Security and Election Integrity. Last chance to ever get it done. I will VETO!"

Inhofe, who earlier this week was overheard discussing the issue with Trump on speakerphone as he walked through the Russell Senate Office Building, said yesterday that he agreed "wholeheartedly that we need to do something about 230."

"However, it just doesn't fit on the NDAA. ... It has nothing to do with the military," Inhofe told reporters. "My mission is to make sure we get a defense authorization bill that is good. And we have one that's good; it's ready to go."

Shortly before the NDAA conference report was released yesterday, the New York Post published an Inhofe op-ed calling for the repeal of Section 230.

Senate Commerce, Science and Transportation Chairman Roger Wicker (R-Miss.), who has jurisdiction over the matter, said the repeal sought by Trump is a "complete non-starter" with Democrats. "It is a very tall order," he said yesterday.

By leaving Trump's demands unheeded, House and Senate leaders are signaling that they expect the NDAA to clear both chambers by two-thirds majorities, enough to override a veto if the president makes good on his threats.

It would be the first veto override of Trump's presidency and would mark the second time Inhofe has led efforts to nullify a veto by a Republican president.

In 2007, Inhofe and then-Sen. Barbara Boxer (D-Calif.) overrode President George W. Bush's veto of the Water Resources Development Act — the first veto override of Bush's presidency.

Click here for the final NDAA text.

Click here for an explanatory statement.

Reporters Emma Dumain, Jennifer Yachnin, Nick Sobczyk, E.A. Crunden and Jeremy Dillon contributed.

Clarification: This story was updated to clarify the final bill containing funds for PFAS cleanups.

Twitter: @ManuelQEmail: mquinones@eenews.net

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