June 18, 2020

House Committee Marks Up Surface Transportation Bill

This week, the House Transportation and Infrastructure (T&I) Committee began marking up legislation that would provide a long-term reauthorization of the nation’s surface transportation programs. The bill (HR 2), which is sponsored by T&I Committee Chairman Peter DeFazio (D-OR), would authorize nearly $500 billion in federal spending over five years, including: $319 billion for highways; $105 billion for transit; $5 billion for highway safety; $5 billion for motor carrier safety; and, $60 billion for rail – a roughly 60 percent increase over the investment levels found in the nation’s current surface transportation law (the FAST Act).

Despite the ambitious funding targets included in HR 2, House Democrats have yet to release a proposal for how to pay for the new spending. As of this writing, it remains unclear when the Ways and Means Committee, which has jurisdiction over revenue matters in the House, will produce such a measure.

As was widely anticipated, HR 2 includes a number of provisions aimed at addressing climate change. Among other things, the bill would require the U.S. Department of Transportation to establish a new greenhouse gas emissions performance standard. The legislation also would create a new apportioned program to support various carbon pollution reduction activities, with states given broad authority to invest in programs and projects to help them meet new climate change goals.

Unlike many previous surface transportation measures that have emerged from the House T&I Committee, the Democratic-sponsored HR 2 does not have bipartisan backing. For their part, committee Republicans have charged that they were largely cut out of the bill drafting process. Furthermore, GOP members have characterized the legislation as a vehicle that would further congressional Democrats’ “Green New Deal” rather than support the core functions of the nation’s transportation system.

Looking ahead, the T&I Committee is expected to approve HR 2 on a party-line vote. According to House Democratic leaders, the transportation measure will subsequently be combined with several other infrastructure-related bills and considered on the floor of the House before the July 4 recess.

To follow are a number of key provisions of the House transportation reauthorization bill:

Emergency Relief Program

HR 2 includes a provision requested by CSAC that would safeguard federal funding for disaster-recovery transportation projects. Specifically, the language, which was championed by Representative John Garamendi (D-CA), would provide local agencies with a six-year statutory timeframe to advance Federal Highway Administration (FHWA) Emergency Relief (ER) projects to the construction obligation stage.

It should be noted that current federal regulations provide states and localities with two years to advance ER projects. If a project sponsor is unable to meet the deadline, the FHWA may, at its discretion, provide the sponsor with additional time if “suitable justification” is furnished to the agency.

The impetus for the Garamendi language is a series of recent decisions by FHWA to deny time extension requests for a number of local ER projects in California. If a project is denied a time extension, the sponsor is no longer eligible to be reimbursed for any costs incurred after a certain time period. Furthermore, sponsors are also required to repay the federal government any preliminary engineering costs if the project ultimately cannot be completed with local funds.

On a related matter, Congressman Garamendi is expected to offer an amendment to HR 2 that would provide the same six-year expenditure authority for ER projects that fall under the purview of the Federal Transit Administration.

Bridges

In a victory for California’s counties, the House legislation places a major emphasis on bridge investment. Specifically, the bill would require states to spend 20 percent of their National Highway Performance Program (NHPP) and Surface Transportation Program (STP) dollars on bridge repair and rehabilitation projects. In addition, HR 2 would increase the local off-system bridge set-aside to over $1 billion annually, up from the roughly $770 million under current law.

COVID-19

In response to the COVID-19 pandemic, HR 2 would provide $83.1 billion in FY 2021 funding for states, local governments, tribes, and transit agencies to administer programs, advance projects, and preserve jobs due to impacts from the health crisis. Highway, transit, and safety funds for the first year of the reauthorization period would be made available at a 100 percent Federal share, thus eliminating the usual state and local match.

Resiliency

HR 2 would create a new program to fund emergency evacuation needs. Under the bill, states and metropolitan planning organizations would be required to develop an infrastructure vulnerability assessment to help guide investments under the program. The measure also would make resilience a core part of the Federal-aid highway program and would allow states to spend dollars from other apportioned programs in order to enhance resiliency.

Discretionary Grant Programs

The House bill would establish a number of discretionary grant initiatives, including a program for “Projects of National and Regional Significance.” Under the legislation, $9 billion would be available for large highway, transit, and freight projects that reduce congestion on roadways and that cannot be funded through annual apportionments or other discretionary sources. Furthermore, a new “Community Transportation Investment Grants” program would provide $600 million annually to local government applicants covering a wide variety of highway and transit projects. Twenty-five percent of the program’s funds would be set aside for rural areas.

Judiciary Committee Advances Comprehensive Policing Reform Legislation

On June 17, the House Judiciary Committee approved a major law enforcement reform package (HR 7120) on a party-line vote. As outlined in a previous edition of the Legislative Bulletin, the bill – known as the Justice in Policing Act of 2020 – would reduce the threshold for defining police misconduct from “willfully” violating constitutional rights to doing so with knowing or reckless disregard. If approved, this change to the so-called “qualified immunity” doctrine would make it easier to sue individual police officers accused of violating an individual’s constitutional rights.

There are a number of other reforms that would impact local governments, including provisions that would require states and localities to make a series of certifications and meet specified requirements in order to be eligible for certain federal grant programs, namely Byrne Justice Assistance Grants and COPS Hiring Grants. HR 7120 is expected to be brought before the full House next week.

Across Capitol Hill, Senate Republicans – led by Senator Tim Scott (R-SC) – unveiled their own police policy overhaul this week that bears some resemblance to a number of provisions included in HR 7120. For example, the bill would require de-escalation training for local police officers, increase the use of body cameras, and make lynching a federal crime. However, the proposal would not make it easier to prosecute and sue law enforcement officers, a cornerstone of the House Democratic proposal. While some Senate Republicans have expressed an openness to creating some sort of accountability for officers, others have called the issue a “poison pill.” In another noticeable break from the House legislation, the Senate GOP bill seeks to encourage limits on, but not universally ban, chokeholds.

Senate Majority Leader Mitch McConnell (R-KY) has indicated that he will attempt to bring Senator Scott’s proposal before the full chamber next week, although consideration will ultimately depend on support from Democrats, who currently view the GOP proposal as inadequate.

For his part, President Trump on June 16 issued an Executive Order on Safe Policing for Safe Communities. Among other things, the Order would create federal incentives for local police departments that seek independent credentialing to certify that law enforcement is meeting higher standards for use of force and de-escalation training. The Order also would incentivize departments to help officers respond to encounters with individuals suffering from impaired mental health, homelessness, and addiction. In addition, the directive would require the Justice Department to create a federal database of police officers with a history of using excessive force.

Senate Gives Final Approval to Conservation Bill

After two weeks of consideration, the Senate on June 17 voted 73-25 to approve legislation – the Great American Outdoors Act (S 3422) – that would convert the Land and Water Conservation Fund (LWCF) to a mandatory spending program. If signed into law, the LWCF would no longer be subject to the annual appropriations process and would be guaranteed $900 million annually. In addition, S 3422 would create a new account – the National Parks and Public Lands Legacy Restoration Fund – to address the deferred maintenance backlog on public lands, which National Park Service officials estimate at over $20 billion. The new fund, which would be maintained by a portion of currently uncommitted energy development lease payments and related revenue, would be capped at $1.9 billion per year and would go toward priority projects across federal land agencies.

Action on the bill now shifts to the House, where it’s possible that the lower chamber could schedule a vote on the legislation before the July 4 recess. More information on the Great American Outdoors Act can be found here.

Supreme Court Rejects DACA Challenge

The Supreme Court on Thursday rejected the Trump administration’s attempt to dismantle the Deferred Action for Childhood Arrivals (DACA) program. Established eight years ago by the Obama administration, the policy has protected hundreds of thousands of undocumented immigrants brought to the country as children.

The 5 to 4 decision was written by Chief Justice John G. Roberts Jr, who was joined by the Court’s four liberal justices. The Court ruled that the Trump administration did not follow the proper procedures required by law and that the justifications for ending the program were insufficient. In addition, the White House did not properly weigh how ending DACA would affect those who had come to rely on its protections. Looking ahead, the administration could try to provide other reasons for ending the program, but that process is likely to last through the November elections.

California Delegation Pushes for California Inclusion on Rural COVID-19 Task Force

Senators Dianne Feinstein (D-CA) and Kamala Harris (D-CA), along with 11 members of the California congressional delegation, sent a recent letter to USDA Secretary Sonny Perdue highlighting the need for strong California representation on any Rural COVID-19 Task Force. The task force would help identify rural needs and tailor the allocation of available resources to address them. The letter can be accessed here. 

Northern California Lawmakers Introduce Utility Resilience Legislation

On June 11, Congressmen Mike Thompson (D-CA) and Doug LaMalfa (R-CA), along with nine other members from northern California, introduced legislation – the Utility Resilience and Reliability Act (HR 7186) – that would help strengthen the electrical grid. The bill, which is a direct response to the Public Safety Power Shutoffs that hit Northern California last year, would incorporate resiliency into Federal power standards and help provide programs and recommendations on responding to and mitigating the impact of extreme weather events. The full bill text is available here.

Secretarial Memorandum to Forest Service Chief

On June 12, USDA Secretary Sonny Perdue issued a memo to U.S. Forest Service Chief Vicki Christiansen that provides a blueprint for reforms to increase the productivity of National Forests and Grasslands. Among other things, the memo directs the Forest Service to streamline processes and identify new opportunities to reduce reliance on foreign countries for critical minerals, modernize management practices and reduce regulatory burdens to promote active management, and expedite broadband development on Forest System land. A copy of the memo can be accessed here.