Federal Advocacy Update: Week of December 4, 2018


In this Issue: 

For Cities, Lame-Duck Session is Anything but Lame

Michael Wallace, 202.626.3025 

Before the new 116th Congress is gaveled open on January 3, 2019, the 115th Congress must convene one last time for a special “lame-duck” session of Congress. Returning, retiring and defeated Members of the 115th Congress have returned to Washington to cast their final votes as federal office-holders. As a result of the tumultuous political climate leading up to the November midterm elections, Congress delayed action on several important and must-pass bills and their outcome will be determined during this lame-duck session.  

For cities and towns, first and foremost among legislative priorities are the seven remaining Fiscal Year (FY) 2019 Appropriations bills that have not yet passed Congress. The Transportation-HUD bill, which funds the U.S. Departments of Transportation and Housing and Urban Development, is among the bills that still need to pass. Congress now has until December 21 to pass all seven bills, as they plan to send a two-week extension of interim government funding to President Trump this week. Any appropriations bill that is not signed into law by December 21 will result in a lapse of federal funding and a partial government shutdown. NLC remains steadfastly opposed to any shutdown of the federal government.  

For the White House, the highest remaining funding priority in the lame duck session is a request for $5 billion to fund construction of a wall along the U.S. southern border.  The Senate has included $1.6 billion for the President’s priority.  At present, President Trump has sent mixed signals on the possibility of a veto if funding remains below the full $5 billion.  A veto would result in a government shutdown.

If confronted with a veto, Congress has alternatives to approving the FY2019 bills, including passing another short-term stop-gap funding bill, or passing a year-long Continuing Resolution that would simply extend Fiscal Year 2018 spending levels through Fiscal Year 2019 for the remaining bills.  Both options would still require President Trump’s approval.

To see the status of each appropriations bill, visit NLC’s budget tracker.

While Appropriations are the only “must-pass” bills in the lame duck, their consideration must still compete for time within a lame duck agenda crowded with priorities for cities and towns. These include bills on federal flood insurance, the farm bill that includes SNAP benefits, criminal justice reform, and tax extenders and technical corrections to recently enacted federal tax reform.

Congress Once Again Extends NFIP Before Deadline

Yucel Ors, 202.626.3124

On November 29, NLC sent a letter to House and Senate leadership urging them to ensure there is no lapse in the authorization of the National Flood Insurance Program. This vital program, which is administered by the Federal Emergency Management Agency (FEMA), helps millions of people recover from the flooding disasters occurring more frequently and more drastically across the country. That evening, the House and Senate agreed to extend the NFIP through December 7. The Senate also passed a six-month extension bill to allow for extra time to consider reforms to the NFIP in a long-term reauthorization bill. This week, legislators agreed to extend the NFIP for another two weeks by attaching it to the stopgap funding bill, H.J. Res. 143, unveiled Monday to fund the federal government through December 21.

The NFIP is the primary source of flood insurance coverage for residential properties in the United States. As of May 2018, the NFIP had over 5 million flood insurance policies providing over $1.28 trillion in coverage, with approximately 23,000 communities in 56 states and jurisdictions participating.

Since September 30, 2017, Congress has passed seven short-term extensions for the NFIP. While Congress needs to pass another short-term extension while legislators negotiate additional reforms to the program, NLC is concerned that there is still considerable uncertainty about the fate of the program and how the proposed reforms will impact flood insurance rates for primary, non-primary and business properties.

If Congress allows the NFIP to lapse again, FEMA’s authority to provide new flood insurance or renew existing contracts will expire, while flood insurance contracts entered before the expiration would continue until the end of their policy term of one year. In addition, the authority for NFIP to borrow funds from the Treasury will be reduced from $30.425 billion to $1 billion, which could potentially put severe limits on FEMA to pay out new claims for flood damage.

In past NFIP lapses, borrowers were not able to obtain flood insurance to close, renew, or increase loans secured by property that were designated to be in flood zones. During the lapse in June 2010, it is estimated that over 1,400 home sale closings were canceled or delayed each day, representing over 40,000 sales per month.

NLC is concerned that Congress’s inability to pass a long-term reauthorization of the bill will have a long-lasting impact on local economies that could potentially reduce residential and commercial property values and severely impact local government programs.

Climate Change Emerging as Congressional Priority

Carolyn Berndt, 202.626.3101

While addressing climate change has been a low priority for Congress and the administration over the past two years, it’s likely to be a key area of focus for the upcoming Congressional session, particularly among newly-elected House Democrats. 

Last week, a bipartisan group of House lawmakers introduced the Energy Innovation and Carbon Dividend Act (H.R. 7173), creating a market-based solution to reducing greenhouse gas emissions and incentivizing the use of clean energy. Sponsored by Representatives Ted Deutch (D-FL), Brian Fitzpatrick (R-PA), Tom Rooney (R-FL), John Delaney (D-MD), and Charlie Crist (D-FL), the bill would establish a carbon fee and return 100 percent of the net revenue to consumers. 

House Democrats are also eyeing a potential infrastructure bill next Congress as a vehicle for passing clean energy legislation. Among the provisions that could gain bipartisan support from the Energy and Commerce Committee, the lead committee responsible for drafting climate-related legislation, are improving energy efficiency in publicly funded projects, grid modernization to better integrate renewable sources, rebuilding transmission and distribution lines to make them more resilient to severe weather events and wildfires, accelerating the deployment of electric vehicle charging stations, and providing incentives for local governments to purchase electric buses.

Meanwhile, House Minority Leader Nancy Pelosi has floated the idea of bringing back the Select Committee on Energy Independence and Global Warming, first formed in 2007. There is debate whether the select panel is necessary and how much authority it should have. Representative-elect Alexandria Ocasio-Cortez (D-NY) is championing a stronger version of the committee that would craft a “Green New Deal” to combat climate change within a decade by reducing fossil fuel use across economic sectors, transitioning to 100 percent renewable energy, and creating a national, energy-efficient “smart” grid.

This all comes on the heels of the federal government’s Fourth National Climate Assessment, which confirms that climate change is already having adverse impacts on communities across the country. The climate assessment, which is compiled by hundreds of experts across more than a dozen federal agencies and is mandated by Congress to be released every four years, warned that the U.S. would face hundreds of billions of dollars in economic loss in the coming decades without “substantial and sustained reductions” in greenhouse gas emissions. 

Climate Assessment Image

At the NLC Annual Business Meeting last month during City Summit, NLC members approved resolutions urging the federal government to take urgent action to reduce carbon emissions and mitigate the effects of climate change and to partner with local governments to support local action on climate change adaptation and resilience. NLC does not have a specific position on a carbon fee model for reducing greenhouse gas emissions. 

With Bipartisan Support, Criminal Justice Reform Bill Stalls

Yucel Ors, 202.626.3124

While a bipartisan criminal justice reform bill sailed through the House in a 360-59 vote in May of this year, the FIRST STEP Act (H.R. 5682) continues to stall in the Senate. The National League of Cities (NLC) applauded the administration and Congress for their bipartisan efforts underway to deliver much-needed reforms to our federal criminal justice system. While the bill that is being considered in the Senate is not perfect, NLC believes the compromises made in the bill take a thoughtful and balanced approach to reforming the federal criminal justice system. The bill will allow greater flexibility in sentencing, improve prison programs and reduce recidivism rates.

NLC is working with cities to reduce the number of people going to jail by helping cities implement pre-arrest diversion programs, mapping out mental health, and substance abuse treatment services as alternatives for incarceration. While the reforms proposed in the legislation are the first step in restoring the balance in the federal criminal justice system, Congress must do more to improve outcomes for non-violent offenders by investing in local programs that look to reintegrate those returning to our communities from prison.

NLC is concerned that when people are released from incarceration, many of them have difficulty finding a job and a place to live, and more than two-thirds struggle to succeed because of the lack of opportunities. Congress should also consider legislation that would remove some of the federal and state barriers that prevent non-violent offenders returning to the community from finding affordable housing and well-paying jobs.

City leaders know that sufficient federal support and funding for local programs aimed at transitioning people back into the community can support safe and healthy communities. That is why NLC has long supported the Second Chance Act (H.R. 2899), which supports state, local, and tribal governments and nonprofit organizations in their work to reduce recidivism and improve outcomes for people returning from prisons. This legislation, which authorizes federal grants for vital programs and systems reform aimed at improving the reentry process, unfortunately, has not been reauthorized in quite some time. NLC urges Congress to pass legislation that would provide a long-term reauthorization of the Second Chance Act.


NLC to FCC: Don’t Create Cable Handouts

Angelina Panettieri, 202.626.3196

Last month, NLC joined a number of other local government organizations in filing comments with the Federal Communications Commission (FCC) opposing proposed drastic changes to the way that cable franchises are calculated. As previously reported, the FCC proposal could seriously limit or eliminate franchise revenues for local governments by allowing cable companies to deduct the value of in-kind contributions such as school or government connections, channel capacity for PEG stations, and electronic program guides from their franchise fees.

NLC and its allies urged the FCC not to move forward with this proposal, arguing that the change to franchises would represent a handout to cable operators, while causing serious fiscal harm to local governments. The comments also argue that the proposal is in direct opposition to the legislation that authorizes cable franchising, and that the legislation never intended for in-kind contributions to be counted against separate franchise fees.

Numerous other organizations, including many cities, local PEG stations, state municipal leagues and a number of U.S. Senators, have filed comments in opposition to the proposal. If your city would like to add its voice to the opposition, reply comments may be submitted through the FCC’s online system using Docket Number MB 05-311 until December 14.

NLC Submits Comments on EPA Wet Weather Rulemaking 

Carolyn Berndt, 202.626.3101

In October, NLC submitted comments on the U.S. Environmental Protection Agency’s (EPA) rulemaking effort aimed at providing certainty surrounding the management of peak wet weather flows at Publicly Owned Treatment Works (POTW). The rulemaking would apply to treatment plants with separate sanitary sewer collections systems. 

Through this rulemaking, EPA will evaluate changes to its National Pollutant Discharge Elimination System (NPDES) regulations and aims to develop a rule that will support a consistent approach to permitting, allow for innovative flexibility, and protect human health and the environment.

EPA solicited input on any issue related to the topic of peak flow management at POTW treatment plants with separate sanitary sewer collections systems. In its comments, NLC requested that the agency reverse its current determination to apply the 8th Circuit Court of Appeals ruling in Iowa League of Cities v. EPA solely in the 8th Circuit, and instead apply the ruling uniformly nationwide. 

In the Iowa League of Cities case, the Court held that EPA’s use of guidance documents to institute a policy decision to ban blending went further than EPA’s statutory authority allowed. The Court held that EPA must follow the formal rulemaking process, as laid out under the Administrative Procedure Act, which would allow impacted communities and others to submit comments on any proposed rule before the Agency could make such a far-reaching policy decision. The Court also found that EPA’s blending prohibition, which restricted how municipalities could design facilities to address peak flow processing, exceeded the Agency’s statutory authority under the Clean Water Act and was inconsistent with both EPA’s secondary treatment rule and the bypass rule.

After the ruling, EPA stated that the decision was only binding within the jurisdiction of the 8th Circuit (which includes Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota). Outside of the 8th Circuit, EPA has attempted to ban blending on a case-by-case basis. The lack of a uniformly applied standard has caused tremendous delay and confusion for local governments and has greatly increased local costs.

Additional information about the rulemaking is available on the EPA website

Feedback Opportunity for Cities on Federal Wireless Infrastructure Database

Angelina Panettieri, 202.626.3196

As part of the MOBILE NOW Act, passed as part of the appropriations omnibus earlier this year, the General Services Administration (GSA) has been tasked with providing a report and recommendations to Congress on how best to encourage voluntary state and local government participation in gathering data on possible locations for broadband infrastructure. The GSA report is intended to cover what incentives would be most appealing for state and local governments to voluntarily submit data on what assets they own that could be used to host broadband infrastructure, and how that information might be incorporated into a database.

GSA has requested feedback through a brief online survey to better understand what benefits and challenges state and local governments would have with data gathering and submission, including what kinds of data they maintain about their own property and what concerns they have about sharing that data with others.

To provide feedback on behalf of your city, complete the survey online here, or contact Jennie Campbell, Office of Government-wide Policy at 202-694-8131 or jennie.campbell@gsa.gov no later than December 14. 

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