Update from Washington, D.C. 07/02/2012
The nation’s capital was buzzing with activity last week as
lawmakers broke through the gridlock to reach agreement on a
major surface transportation bill and the Supreme Court handed
down a much-anticipated ruling on President Obama’s signature
health care reform law. While these issues garnered the majority
of the headlines, Congress also was under pressure to reauthorize
the National Flood Insurance Program (NFIP), extend user fees for
the Food and Drug Administration (FDA), and approve a student
loan interest-rate reduction measure.
After weeks of negotiations, the Senate on June 26th approved a
bipartisan five-year reauthorization (S 3187) of FDA user-fee
programs, which fund the agency’s approval process for
prescription drugs and medical devices. The legislation also
would create new user fees for generic drugs and generic
biological medicines, which is intended to speed up the review
process for those products. The current authorization (PL 110-85)
was set to expire at the end of September.
Also this past week, the House Natural Resources Committee’s
Indian and Alaska Native Affairs Subcommittee held an oversight
hearing on June 27th to examine the standards and procedures for
whether, how, and when Indian tribes should be newly recognized
by the federal government. The subcommittee heard testimony from
several tribal leaders, as well as from Napa County Supervisor
Diane Dillon.
In her testimony, Supervisor Dillon offered the perspective of
both Napa and Sonoma Counties regarding the tribal recognition
process. According to Supervisor Dillon, the counties believe
that lawsuits by congressionally-terminated California Indian
tribes – in which alleged plaintiff-tribes ask federal district
courts to restore their government-to-government relationship
with the United States and the Department of the Interior
acquiesces – represent a constitutionally impermissible
usurpation of congressional authority.
It should be noted that the counties’ views have been largely
derived from their experience in litigation now pending in the
United States District Court for the Northern District of
California. In the case of The Mishewal Wappo Tribe of Alexander
Valley v. Ken Salazar, the tribe contends that it was unlawfully
terminated by the federal government in the 1950s. The Wappo
tribe was one of 41 California tribes to have recognition
stripped through a law Congress passed called the California
Rancheria Act. For their part, Napa and Sonoma Counties joined as
intervenor defendants in the case in 2010 and continue to oppose
the Wappo’s bid to gain recognition on various grounds, including
concerns regarding land use and the potential impacts on local
communities.
The full text of Supervisor Dillon’s written testimony can be
accessed by clicking on the following link: Dillon
Testimony 6/27/2012. To view the hearing in its entirety,
including Supervisor Dillon’s oral presentation to the Indian and
Alaska Native Affairs Subcommittee, please click on the following
link: House
NRC Hearing – Recognition 6/27/2012.
In other developments, Congress is continuing efforts aimed at
renewing expiring federal agriculture and nutrition programs via
a new Farm Bill reauthorization. On June 18th, the Senate passed
its reauthorization package (S 3240) by a vote of 64-35, with the
support of Senators Dianne Feinstein (D-CA) and Barbara Boxer
(D-CA).
According to the Congressional Budget Office, the Senate Farm
Bill is projected to cost roughly $969 billion over the next ten
years. When compared to current funding levels, this equates to a
savings of $23.6 billion.
In terms of the Supplemental Nutrition Assistance Program (SNAP)
– formerly known as the Food Stamp program – the Senate rejected
a proposal by Senator Kirsten Gillibrand (D-NY) that would have
restored a $4.5 billion cut to the program. While both California
senators voted in favor of the amendment, it was defeated 66-33.
The Senate also voted down an amendment by Senator Jeff Sessions
(R-AL) that would have further weakened SNAP.
Across Capitol Hill, the House Agriculture Committee is working
on a draft bill that is expected to differ significantly from the
Senate legislation on the structure of farm support programs and
the level of cuts to the SNAP program. The House bill will likely
have a savings target of $33 billion over 10 years, with most of
the extra savings coming from deeper cuts to SNAP. The committee
is expected to consider its bill on July 11th.
Transportation Reauthorization
Late last week, House and Senate negotiators struck a
long-awaited agreement on a multi-year highway and transit
reauthorization bill (HR 4348). The deal comes 33 months after
the current surface transportation law (SAFETEA-LU) first expired
in September of 2009. Since that time, Congress has had to
approve nine separate short-term extensions of SAFETEA-LU in
order to avoid a lapse in federal transportation funding to
states and localities.
All told, the new transportation bill – which will be known as
the “Moving Ahead for Progress in the 21st Century Act,” or
MAP-21 – is expected to cost roughly $120 billion. Unlike the
Senate-passed measure (S 1813), which would have renewed surface
transportation programs through fiscal year 2013, the final
legislation will keep programs operational through the end of
fiscal year 2014.
Under the bill, the number of highway programs will be
consolidated by two-thirds. The legislation retains certain core
highway programs, including the Surface Transportation Program –
which provides funding to states and localities for a variety of
highway, bridge, and safety projects – as well as the Highway
Safety Improvement Program.
Just prior to adjourning for their week-long Independence Day
recess, both the House and Senate approved on Friday, June 30th
the Conference Report to HR 4348 (found at: MAP-21
Conference Report). It should be noted that President Obama
signed into law a one-week extension of SAFETEA-LU in order to
give time for the final reauthorization package to reach his
desk. The president is expected to sign the new bill in the
coming days. To follow are several key provisions of MAP-21:
Off-System Bridges
In a major victory for California’s counties, the final
transportation measure retains language from the Senate bill that
maintains a dedicated federal funding stream for off-system
bridges. The provision ensures that local bridge maintenance,
repair, and capital projects do not have to compete against other
capacity enhancement projects. CSAC worked diligently throughout
the reauthorization process with key members of the California
congressional delegation and other stakeholders to ensure that
local off-system bridges would continue to receive direct federal
funding.
Secure Rural Schools
In a victory for California’s forest counties, the highway bill
includes a one-year continuation of the Secure Rural Schools and
Community Self-Determination Act (SRS), as well as an additional
year of funding for the Payments-in-Lieu-of-Taxes (PILT) program.
California’s rural counties rely on both programs to maintain
local roads and other critical public infrastructure. CSAC, along
with the Regional Council of Rural Counties and other key
organizations, aggressively pushed for inclusion of the SRS/PILT
provisions.
Environmental Streamlining
MAP-21 includes various provisions aimed at shortening the length
of the transportation project delivery process. The bill, for
example, includes provisions that would expand Categorical
Exclusions and allow for early acquisition of rights-of-way. The
measure also would make permanent the Surface Transportation
Project Delivery Pilot Program, which has allowed California to
significantly streamline the process for the delivery of highway
projects. Additionally, under the bill, the program is expanded
to include rail, public transit, and multimodal projects.
Although the final package does not include provisions similar to
CSAC-endorsed legislation (HR 2389) that would establish a
program to eliminate duplicative state and federal environmental
reviews and approvals, it would require the Government
Accountability Office (GAO) to undertake a related study.
Pursuant to the bill, GAO will be required to review state laws
and procedures for conducting environmental reviews. The study
will also identify the states that have environmental laws that
provide protections and opportunities for public involvement that
are equivalent to those provided by federal environmental laws.
GAO must submit its findings to Congress no later than two years
after the date of the legislation’s enactment.
MPOs
With regard to transportation planning, the legislation would
ensure that existing Metropolitan Planning Organizations (MPOs)
retain their designation as an MPO. The conference report also
maintains the existing population threshold for the designation
of new MPOs (urbanized areas with a population of more than
50,000 individuals).
TIFIA
HR 4348 increases annual funding for federal credit assistance
under the Transportation Infrastructure Finance and Innovation
Act (TIFIA) from $122 million to $750 million in fiscal year 2013
and $1 billion in fiscal year 2014. The package also increases
the maximum share of project costs that can be funded under the
TIFIA program from 33 percent to 49 percent and sets aside
funding for projects in rural areas at more favorable terms.
In order to arrive at a final deal, concessions needed to be made
on both sides. For example, House Republicans yielded to
congressional Democrats and the Obama administration in agreeing
to drop their insistence that the final bill include language
mandating approval of the cross-country Keystone XL oil pipeline.
For their part, Senate Democrats accepted many of the
environmental streamlining initiatives that were included in the
original House transportation bill.
Notably, congressional leaders made an eleventh hour decision to
include in the transportation measure a long-delayed
reauthorization of the National Flood Insurance Program (NFIP).
Under the bill, financing and programmatic authority for the NFIP
is extended through September 2017.
While the original Conference Report that was posted by the House
Rules Committee included language that would have mandated flood
insurance for property owners in areas protected by levees and
other flood control structures – known as so-called “residual
risk” areas – the highly controversial provision was removed from
the final bill after several key senators raised objections. CSAC
opposed the inclusion of the Senate NFIP bill’s insurance mandate
for residual risk areas, expressing its opposition in
correspondence to Senators Dianne Feinstein (D-CA) and Barbara
Boxer (D-CA). To see a copy CSAC’s letter to Senator Feinstein,
please click on the following link: CSAC
NFIP Letter to Sen. Feinstein.
Health Care Reform
In a historic decision, the U.S. Supreme Court upheld on a 5 to 4
decision the Patient Protection and Affordable Care Act (ACA),
which was enacted into law in 2010. Most significantly, the high
court ruled June 26 that the controversial individual mandate,
which is the centerpiece of the health care law, is allowable
under the Congress’ taxing authority in the
Constitution.
Aside from the individual mandate, the Supreme Court also ruled
on the law’s forthcoming Medicaid expansion. The ACA provides
extra funding as an incentive for states to expand their Medicaid
coverage, but also includes potential penalties for states that
fail to do so. The court determined that the federal government
could supply extra Medicaid funding to the states, but that it
could not penalize noncompliant states by withholding funds from
components of the Medicaid program that existed before the ACA
was signed into law.
Medicaid currently covers about seven million individuals in
California, and the ACA’s Medicaid expansion is likely to cover
an additional 1.7 million to more than three million new
individuals in the state. It should be noted that the federal
government will pay 100 percent of the benefits for newly-covered
Medicaid patients during the first three years of implementation
(2014-2016), eventually phasing down to 90 percent by 2020. In
addition, it has been estimated that 94 percent of California’s
population will be covered by a health plan under the ACA. This
would more than halve the number of the state’s uninsured, from
6.53 million to 3.10 million.
All of the other provisions of the ACA were upheld by the Supreme
Court, including the mandatory funding for the Prevention and
Public Health Fund, which funds state and local public health
departments and other entities for disease prevention, health
promotion and other public health initiatives. The Elder Justice
Act, which was attached to the ACA, also withstood the Court’s
scrutiny. The Act funds competitive grants to state and local
adult protective services through the annual appropriations
process.
The reaction to the court’s ruling from national leaders has
followed the tone of this year’s presidential campaign, signaling
that the political battle over the health care overhaul is not
over just yet. President Obama and Democratic leaders have
claimed victory, while congressional Republicans have vowed to
continue their efforts aimed at repealing the ACA. For their
part, House GOP leaders have already vowed to repeal the entire
law when they return from the upcoming Independence Day recess.
Any effort to scrap the Act, however, is likely to die in the
Democrat-led Senate.
Indeed, the ACA and the Supreme Court’s decision are sure to
feature prominently in the run-up to the November elections, with
the law’s fate likely to hinge on the outcome. If Democrats
retain the presidency and control of the Senate, implementation
will likely move forward. On the other hand, should Republicans
win the presidency and gain control of the Senate, efforts to
repeal or defund the law are sure to gain steam.