February 2, 2017
By: Alan Kovski
There is an overflowing list of possible actions the House Natural Resources Committee could launch in 2017 after six years of sometimes rancorous stalemate on many of them between Congress and the Obama administration.
Rep. Rob Bishop (R-Utah), chairman of the committee, spoke Jan. 30 to Bloomberg BNA about many of the prospects. His remarks suggested a unifying thread: clarification of legal mandates governing federal agency activities.
Legislation, as described by Bishop, especially would be intended to reassert legislative control over policy and to require more cooperation with state and local governments. Federal agencies have been getting away with defying laws that mandate coordination with state and local governments, in Bishop's view.
There will be several legislative vehicles for advancing federal-state coordination. Bishop wants to see action by his committee to:
- reestablish and expand onshore and offshore energy leasing,
- streamline the permitting of pipelines and power transmission lines crossing federal land, especially as part of a bill to stimulate infrastructure development,
- manage federal forests and
- consider changes to the Land and Water Conservation Fund, the Endangered Species Act, the National Environmental Policy Act, the Outer Continental Shelf Lands Act and the Antiquities Act.
Facing Wildfires (and Senators)
It would be a busy schedule even if there were not a strong likelihood of opposition. The need to win 60 votes in the Senate for passage of most legislation means basic changes may be difficult, especially with the Republican majority reduced to 52 from 54 by the 2016 elections.
“I don't think the Senate is going to be more cooperative in the next few years than they were in the last two years,” Bishop said. “In some cases it may be worse, because it's tighter now.”
But some of the issues are essential to both parties, such as forest management to prevent wildfires and water storage in the dry West, he said.
“If we're dealing with wildfires burning up property, Democrat senators get that,” he said.
Litigation over timber harvesting and other forest management issues has been the second largest expense for the U.S. Forest Service after wildfire fighting, and Bishop said he thought senators will see the need to change that. That could involve reintroducing the Resilient Federal Forests Act, a 2015 bill to streamline permitting for timber harvesting with the idea of reducing wildfire potential and lawsuit potential at the same time.
“There's also a chance of doing something maybe even bigger and better,” Bishop said without elaborating.
Grounds for Hope Seen
Bishop became involved in negotiations in 2016 over legislation originally pulled together by Sens. Lisa Murkowski (R-Alaska) and Maria Cantwell (D-Wash.) as an uncontroversial package of energy policy ideas, such as electric grid security. In the House it acquired a much greater mix of energy, water, forest and other natural resource subjects.
It got farther than some people may have expected.
“That's one of the things that gives me hope, because I thought I had some very pleasant conversations with Murkowski as well as Cantwell,” Bishop said.
“As negotiations were going on, the resource portion of that bill actually was very close to reaching an agreement. I mean really close,” he said. “So I think we can build on that in the future.”
Much may depend on the new Senate minority leader, Charles Schumer (D-N.Y.).
“I don't know how Schumer is, or what his propensity will be to try and move things forward,” Bishop said.
More Water Storage Sought
House Republicans and Senate Democrats also compromised on water legislation in 2016.
The Senate expanded its Water Resources Development Act into a much broader water supply and water utility assistance bill. That drew Bishop and two other House committee chairmen into negotiations that produced the Water Infrastructure Improvements for the Nation Act, passed in December.
The water supply portion of the bill was dominated by drought response provisions to assist California.
“We did a good start with the California process in the last session. We need to build on that,” Bishop said. “We have to have increased capacity to store the water when we get it for the next drought, which will be soon.”
‘Coordination’ Definition Wanted
Federal cooperation with states over environmental regulation is mandated by several federal laws that are important to industries and state and local governments. State officials and congressional Republicans often insist the obligation for cooperation is being flouted.
“Everyone thought they knew what coordination means,” Bishop said. “It needs to be vigorously defined so that coordination does take place, because it's not happening right now.”
Bishop described the Dec. 20 stream protection rule from the Interior Department as a model example of federal regulators ignoring their legal mandate. Two days after Bishop's remarks, the House voted to repeal the rule through use of the Congressional Review Act, and the Senate planned to vote on disapproving it Feb. 2.
Thirteen states sued Interior Jan. 17 over the stream protection rule (RIN:1029-AC63). They said Interior illegally issued the rule “without providing for meaningful participation by the states.”
Similar objections have been raised over amended land-use regulations issued in 2015 by the Bureau of Land Management and the U.S. Forest Service to protect the greater sage grouse. State and local governments sued, saying the agencies ignored the obligations written into the Federal Land Policy and Management Act and the National Forest Management Act to coordinate regulations with states.
Unbanning Offshore Leasing
President Barack Obama used a Dec. 20 memo to put almost all federal waters in the Chukchi and Beaufort seas off limits to oil and gas leasing for “indefinite” time periods, excepting only rights under existing leases. Another Obama memo put 26 Atlantic underwater canyon areas off limits.
Bishop said the bans could be rescinded by President Donald Trump only to be reimposed by the next president. It would be better for Congress to address the subject, reducing the degree of uncertainty, he said.
He made it clear that he wants to eliminate any idea that one president's offshore leasing bans cannot limit a subsequent president's options.
That could mean amending the Outer Continental Shelf Lands Act. That also could provide an occasion for Bishop's intention to reinvigorate energy leasing.
NEPA, Antiquities Act Reviews
The National Environmental Policy Act is another candidate for review and change, in Bishop's eyes. It requires consideration of public comments, including the comments of state and local officials. It also has a declaration of policy that calls for cooperation with state and local governments.
NEPA was enacted in 1970 and has not been amended since 1982. “Anything that old needs to be reviewed,” Bishop said.
The Antiquities Act, a 1906 law, also troubles the committee chairman, as well as some state and local governments and industries. Obama used it Dec. 28 to declare the Bears Ears National Monument in southeastern Utah, angering Bishop and many other Utah residents concerned about the economic impact of such a decision.
Congress needs to define what is an antiquity and the meaning of “smallest footprint,” Bishop said. He was referring to the law's requirement for designations to be limited to “the smallest area compatible with proper care and management of the objects to be protected.”
Other proposals have been to require congressional approval of national monuments or require approvals from state legislatures. Environmental advocates say such strategies might create insurmountable barriers to more national monument designations.
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