Federal Advocacy Update: Week of January 29, 2019

US Capitol Building
US Capitol Building

In this issue:

For Cities, A Costly Government Shutdown Ends with Uncertainty

Michael Wallace, 202.626.3025

The longest partial government shutdown in history has ended, but its lasting consequences cannot be ignored. Last week, public services were pushed to the brink, resulting most visibly in airline groundings at understaffed airports. Less visibly, city leaders put out a wide array of completely avoidable and unnecessary fires resulting from the shutdown. Despite those troubling circumstances, and in contrast to federal lawmakers, city leaders managed to continue performing the services residents have come to expect and depend on.

Cities, towns and villages rerouted budgets to protect both furloughed federal workers and their most vulnerable residents. Denver, Washington, D.C., and other cities created emergency funds to offer no-interest loans to those missing paychecks. Detroit and New Orleans offered extensions on taxes. Cities like San Jose, California, saw the shutdown accelerate what is already a crisis in affordable housing and passed ordinances prohibiting evictions for anyone who could not make rent as a result of the shutdown. Almost every city across the country experienced longer lines at food pantries that required extra attention. These and other stores are available on NLC’s shutdown resource center.

To learn more about the impacts of the shutdown, visit NLC’s blog, CitiesSpeak.

Eshoo Introduces Bill to Overturn FCC Small Cell Preemption

Angelina Panettieri, 202.626.3196

Rep. Anna Eshoo (CA-18) introduced legislation to overturn the FCC’s September order preempting local authority over small cell wireless infrastructure on January 14, the day the order took effect. The bill, the Accelerating Wireless Broadband Deployment by Empowering Local Communities Act of 2019 (H.R. 530), was endorsed by NLC, the City of San Jose, California, the National Association of Telecommunications Officers and Advisors, and the National Association of Counties. 

While the bill would not preclude future FCC or congressional preemption of cities on wireless infrastructure, it would halt the FCC’s harmful preemption order, which ignored the input of hundreds of local governments. The bill also complements ongoing efforts to overturn the FCC order in federal courts, and the investigation by congressional leaders into alleged attempts by the FCC to thwart that litigation. No companion bill has been introduced in the Senate yet.

Rep. Eshoo is currently seeking cosponsors for this legislation and has sent a “Dear Colleague” letter to other representatives asking that they cosponsor the bill. You can support this legislation by sending a letter to your members of Congress. 

Join NLC with a Letter to Your Members of Congress on Infrastructure

Brittney Kohler, 202.626.3164

This January, the United States welcomed a historic number of energized new members to the 116th Congress, but, unfortunately, the federal government shutdown delayed policy conversations in Washington, D.C., and caused a ripple of consequences for cities across the country. After this long and damaging shutdown, cities must influence Congress’s next priority. You can help us tell Congress that they need to work together to create an infrastructure package that can promote job growth and improve the structures in our cities, villages, and towns. 

This week, NLC’s leadership took their stand by sending a letter to congressional leaders, and we want you to join them by sending your own. Here is a draft letter for you to personalize for your three Members of Congress. Considering the urgency, we recommend that you send these either via email or their online portals as soon as possible. Last year, cities laid the groundwork for legislation to rebuild America’s infrastructure, but we need Congress to refocus on a bipartisan infrastructure package that would provide communities in their districts with needed maintenance to existing structures and expand access to resources. Thank you for taking the time to send a letter to your Members of Congress, and if you would like to share your letter on social media or tweet about infrastructure, do not forget to tag @leagueofcities! 

The Shutdown Ends as Tax Season Begins

Brian Egan, 202.626.3107

Tax filing season officially started on January 28, despite a prolonged government shutdown that included the Internal Revenue Service (IRS). The IRS called back thousands of workers to handle peak season operations without pay during the final week of the shutdown, but mass employee callouts resulted in limited preparations. The agency is also racing to finalize a mountain of pending rules and guides needed in the wake of the passage of the Tax Cuts and Jobs Act of 2017, which made the largest changes to the tax code in more than three decades. On January 24, Secretary Mnuchin declined an invitation to testify on the subject before the House Ways and Means Committee. While it remains unclear exactly how the shutdown will impact tax returns, tax refunds may be delayed. 

Finally, and perhaps most pressing, the IRS temporarily ceased processing the 8038 Forms during the shutdown. During the Great Recession, many cities issued Build America Bonds (BABs), which were taxable bonds that came with a federal subsidy to offset higher interest costs for issuers. While the last BABs were issued in 2010, many cities have outstanding BABs, and these cities continue to complete 8038 forms to receive their subsidy. It remains unclear how the halt in processing will impact ongoing BAB payments. Cities that budget for these subsidies should be aware of the potential for delayed payment. 

Upcoming Webinar: What’s Next for WOTUS and the Federal Clean Water Act?

Carolyn Berndt, 202.626.3101

“Waters of the United States” (WOTUS) is a controversial regulatory phrase used in the Clean Water Act (CWA) to define the geographic scope of federal jurisdiction over rivers, lakes, streams, wetlands, and other aquatic features. The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Army Corps) recently proposed a new regulation that seeks to withdraw the 2015 definition, which was finalized during the Obama Administration, and replace it with a narrower version of “waters of the United States.” 

Samuel Brown, a partner with Hunton Andrews Kurth LLP and a former EPA attorney, will provide a summary of the proposed regulation and the potential practical implications on state and local governments during an upcoming webinar hosted by the State and Local Legal Center on February 4, 2018 at 1pm EST. Click here to register.

Due to the partial government shutdown, the EPA and the Army Corps announced that publication of the proposed rule in the Federal Register is delayed and that the public hearing will be rescheduled. The agencies will accept public comment on the proposed rule for 60 days following publication in the Federal Register. A pre-publication version of the Federal Register notice is available on the EPA website

Court Strikes Down Citizenship Question: Case Likely to Make It to SCOTUS 

Brian Egan, 202.626.3107

On January 15, a Southern District of New York federal judge ruled that the addition of a citizenship question in the 2020 Census questionnaire violated the Administrative Procedure Act (APA), which prohibits federal agencies from acting in a manner that is arbitrary and capricious or not in accordance with law. The administration is expected to appeal the ruling to the Second Circuit, and the case will likely be fast-tracked to the Supreme Court. A final ruling from the highest court is anticipated before the final questionnaires are printed, beginning in June 2019. 

Earlier this year, NLC joined a large group of bipartisan voices to express concerns about the manner in which the question was added and its expected impacts on census participation. Many believe that the addition of the question will result in fewer people self-reporting, increasing the need for costly non-response follow-up (NRFU) and, ultimately, resulting in lower quality counts for our cities, towns, and villages. Cities rely on accurate census counts for a host of applications, including: allocation of political representation, infrastructure planning, socioeconomic research, and distribution of state and federal funds. 

While it remains uncertain how the case will fare in the appellate system, the first ruling documented a strong case against the question’s addition. To learn more about the court’s ruling visit NLC’s blog, CitiesSpeak. In addition, local leaders can access NLC’s guide, Cities Count: Preparing for the 2020 Census, to learn more about our work on the Census.


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