Federal Advocacy Update: Week of July 2, 2019
In this issue:
- SCOTUS Throws Out Citizenship Question…For Now
- July 9 Housing Task Force Panel and Report
- Senate Introduces Companion Bill to Overturn FCC Small Cell Order
- EPA, Army Corps Seek Comments on Potential Revisions to Mitigation Rule
- Local Government Lawsuit Against FCC Small Cell Order Moves Forward
- Federal Advocacy Committees SBLM Recaps
Brian Egan, 202.626.3107
On June 27, the Supreme Court (SCOTUS) partially upheld a lower court’s ruling that the way the administration added a citizenship question to the 2020 Census violated the Administrative Procedure Act (APA). Specifically, the Court found that Commerce Secretary Ross’s claim that the Justice Department required block-level citizenship data to properly enforce the Voting Rights Act was pretextual. The opinion acknowledged the administration’s right to add questions and remanded the case back to the agency.
The decision is now back in the hands of the Department of Commerce. Secretary Ross can presumably offer a new justification, which would likely be further challenged in the courts. Conversely, if he chooses not to offer another justification, the question will not appear on the 2020 Census. There is still uncertainty, but for the moment, it seems unlikely the question will appear on the final forms, which are scheduled to go to print later this year.
NLC has opposed the addition of an untested question since the proposal was first announced and also joined as an amicus in the Department of Commerce v. New York case. Read more about the case here, or visit www.nlc.org/census to learn more about how your community can prepare for 2020.
Housing is in a state of crisis in America. Rising home prices and stagnant wages have resulted in tremendous strain on housing markets across the country, putting local leaders on the front lines to help their communities find housing solutions.
There is no longer time to talk about the issue—it is time for action.
To uncover how we ended up in this crisis, and how we can solve it, more than 20 local leaders and elected officials from across the country came together to form the National League of Cities (NLC) Housing Task Force. The product of this work—a comprehensive guide with recommendations for all levels of government—will be released next week.
On July 9, NLC is hosting a Housing Task Force panel to discuss their findings and how they are taking action in some of America’s most acutely affected cities. The panel will include:
- Muriel Bowser, Mayor of Washington, D.C.
- Karen Freeman-Wilson, Mayor of Gary, Indiana, and President, National League of Cities
- Teresa Mosqueda, Councilmember, Seattle, Washington
- Clarence Anthony, CEO and Executive Director, National League of Cities
The panel will also be live streamed. Register for the event here.
Angelina Panettieri, 202.626.3196
On June 27, Senator Dianne Feinstein (D-CA) introduced the Restoring Local Control Over Public Infrastructure Act of 2019 (S. 2012), which would roll back the FCC’s 2018 small cell preemption order. The act is a companion bill to the Accelerating Broadband Development by Empowering Local Communities Act of 2019 (H.R. 530), which NLC also supports. The bill was introduced with Senators Chuck Schumer (D-NY), Michael Bennet (D-CO), Kamala Harris (D-CA), Ron Wyden (D-OR), Ben Cardin (D-MD) and Richard Blumenthal (D-CT) as original cosponsors.
Both the House and Senate bills currently need more cosponsors, particularly Republican cosponsors. To send your congressional delegation a letter in support of the bill, click here. For a template version that you can customize and send on city letterhead, click here. If you use the template, please share a copy with Angelina Panettieri at email@example.com.
Carolyn Berndt, 202.626.3101
On June 20, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) held a briefing for state and local government organizations on pre-proposal revisions to the jointly-promulgated regulations on “Compensatory Mitigation for Losses of Aquatic Resources” (Mitigation Rule).
Section 404 of the Clean Water Act authorizes the Corps (or a State or Tribe that has assumed the 404 Program) to issue permits for discharges of dredged or fill material in waters of the United States. During the review of applications for Department of the Army permits, the Corps is required to consider mitigation. When there is a proposed discharge, all appropriate and practicable steps must first be taken to avoid and minimize impacts to aquatic resources. For unavoidable impacts, compensatory mitigation may be required to replace the loss of wetland, stream and/or other aquatic resource functions.
In 2008, the agencies issued joint regulations clarifying compensation requirements for losses of aquatic resources. The regulation recognizes three mechanisms for providing compensatory mitigation: mitigation banks, in-lieu fee programs and permittee-responsible mitigation.
In February 2018, the administration’s Legislative Outline for Rebuilding Infrastructure in America called for reducing inefficiencies in environmental reviews by removing duplication in the review process for mitigation banking by eliminating the interagency review team, among other items.
The forthcoming rulemaking is aimed at implementing this provision. The agencies are considering the following actions:
- Whether the Interagency Review Team process should be eliminated or modified;
- Whether other administrative changes are needed to improve mitigation bank and in-lieu fee program review process;
- Whether the agencies should make changes to address the Miscellaneous Receipts Statute;
- Whether changes need to be made to the requirements associated with in-lieu fee program accounts;
- Whether clarity is needed to facilitate multipurpose compensation projects;
- Approaches to quantify stream mitigation credits that better reflect the total amount of stream ecosystem restored, enhanced or preserved in rivers and larger streams, and stream-wetland complexes, while maximizing available credits and opportunities for larger compensatory mitigation projects within a given watershed.
The agencies are seeking input from state, local and tribal partners as they develop the proposal. Comments can be sent to MitigationRuleAmendment@usace.army.mil and MitigationRuleStates@epa.gov by August 9.
On July 23, the agencies will hold a webinar from 1-3 pm eastern for state and local governments on the pre-proposal. To register, visit https://mitigationrulestates2019.eventbrite.com
Angelina Panettieri, 202.626.3196
In June, a coalition of local governments and municipal organizations, along with other parties, filed initial briefs in a suit to overturn the Federal Communications Commission’s (FCC) 2018 order preempting local authority over small cell infrastructure on public rights-of-way. NLC participated as a member of the local government coalition, which argued that the FCC misinterpreted the Communications Act in its justification of its preemption authority in the small cell order. The coalition brief also argues that the limits on fees, moratoria and shot clocks in the order are arbitrary and capricious under the law and should be overturned.
Several other private and public-sector entities also filed in the initial round of briefs. The American Public Power Association, which represents public utilities, made arguments similar to local governments about the lack of statutory standing for the FCC’s order. Montgomery County, Maryland, filed a separate brief from other local governments, raising concerns about the FCC’s failure to confirm that the current radiofrequency emissions standards, which date to 1996, are still valid in the case of small cell deployments. Many municipal governments, municipal associations and utility associations filed amicus briefs in support of local governments, as did a coalition of the Communications Workers of America, the National Digital Inclusion Alliance, and Public Knowledge.
The federal government must file its brief in the case in August, and all parties will have an opportunity to respond in September.
Irma Esparza Diggs, 202.626.3176
From June 25-27, NLC hosted its Summer Board and Leadership Meeting (SBLM) in Indianapolis. During this conference, the Federal Advocacy Committees convened to discuss their issue areas and get a head start on policy resolutions for City Summit. Below, there are brief summaries of the discussions that occurred.
Finance, Administration and Intergovernmental Relations (FAIR) Committee: FAIR convened to discuss the upcoming 2020 Census, ongoing tax policy and the status of the federal deficit. Committee members heard from representatives from the U.S. Census Bureau, the U.S. Department of Transportation, the CountMeINdy campaign, the City Controller’s Office, Crowe Horwath, and the Indiana Public Finance Authority. Finally, the committee toured the site of Indianapolis’ Central State project. The former site of the historic Central State Mental Hospital is undergoing a major redevelopment into a mixed-use village. Participants learned about the various funding and financing tools—including public-private partnerships, CDBG, various tax credits and Section 108 loan guarantees that the City has used and continues to employ to make this impressive project a reality. This summer, FAIR will work on potential tax policy changes, including separating Resolution #4: Defending City Priorities in the Federal Tax Code into three separate resolutions around the state and local tax (SALT) deduction, advance refunding bonds and bank qualified debt. FAIR will also work on potential additions and changes to our policy around the mounting federal deficit and the 40 percent excise (“Cadillac”) tax on high cost employee-sponsored health care plans. NLC FAIR Staff: Brian Egan, firstname.lastname@example.org
Energy, Environment and Natural Resources Committee (EENR): During the meeting, EENR focused on climate change and water infrastructure. Dan Bresette (Executive Director, Energy Efficient Codes Council and Senior Vice President, Alliance to Save Energy) discussed how cities can engage in the development of the 2021 International Energy Conservation Code to increase building efficiency to achieve emission reduction goals. Katie Robinson (Director, Office of Sustainability) and Brad Beaubien (Administrator, Division of Long-Range Planning, Department of Metropolitan Development for the City of Indianapolis) spoke about the city’s efforts through Thrive Indianapolis to develop a climate action plan, the first of its kind for the city. In 2018, Indianapolis was one of seven cities chosen for the NLC Leadership in Community Resilience program. Michal Freedhoff, Ph.D., Director of Oversight for the Senate Environment and Public Works Committee provided an update on the Senate’s efforts to address PFAS contamination in communities. Bipartisan legislation was approved by the Senate Committee last week and was adopted as an amendment to the National Defense Authorization Act, which the Senate passed on June 27. Finally, the committee reviewed and approved resolutions pertaining to water infrastructure funding, climate resilience and mitigation, PACE programs and PFAS. NLC EENR Staff: Carolyn Berndt, email@example.com.
Community and Economic Development Committee (CED): The CED meeting focused on federal housing policy and promising practices within federally designated Opportunity Zones. Both topics are subject to separate Executive Orders signed by the president, and each one offers opportunities for local governments to be influential at the federal level. CED discussed areas of focus for NLC advocacy in pursuit of those opportunities. On December 18, 2018, the president signed Executive Order 13853, Establishing the White House Opportunity and Revitalization Council. Chaired by Housing and Urban Development (HUD) Secretary Ben Carson, the Council is tasked with carrying out the Administration’s plan to target, streamline, and coordinate Federal resources to be used in Opportunity Zones and other economically distressed communities. The council is also interested in highlighting best practices that stimulate economic opportunity, encourage entrepreneurship, expand educational opportunities, develop and rehabilitate quality housing stock, promote workforce development, and promote safety and prevent crime in economically distressed communities. The executive order also calls on state, local, and tribal leaders to leverage the work of the Council and to conduct similar reviews of their own programs and regulations. On June 25, 2019, the president signed an executive order—Establishing a White House Council on Eliminating Regulatory Barriers to Affordable Housing. Also chaired by HUD Secretary Ben Carson, the primary task of the Council is to identify federal, state, and local regulations that increase the cost of developing affordable housing. The council will not consider the role of federal funding or federal housing subsidies. As with the prior executive order, state, local, and tribal leaders are called on to identify and remove obstacles that impede the development of new affordable housing. Following a presentation from the Indianapolis Chamber of Commerce on Opportunity Zones, CED recommended NLC focus on equitable development within Opportunity Zones. And, after a preview of NLC’s Housing Task Force recommendations for federal and local action, CED recommended that NLC engage with the White House Council on Eliminating Regulatory Barriers to Affordable Housing. Lastly, the committee urged NLC to develop a standing set of resources and best practices for local leaders to draw on in case of any future federal government shutdown. NLC CED Staff: Mike Wallace, firstname.lastname@example.org
Human Development Committee (HD): The HD meeting focused on the issues of workforce development and substance use. Katie Spiker from the National Skills Coalition briefed members on the status of reauthorization of the Workforce Innovation and Opportunity Act (WIOA) and engaged members in a conversation around priorities for NLC. Federal investment in workforce development continues to be an area of priority for HD, including its inclusion in a congressional infrastructure package. HD participated in a joint session with the Public Safety and Crime Prevention (PSCP) Committee to hear from Kitty Dana of the Institute for Youth, Education and Families’ work on the intersection of mental health, substance use and homelessness, as well as a session with Dr. Dan O’Donnell, Chief of Indianapolis’s Emergency Medical Services, about how the city has been engaged in dealing with individuals with opioid addiction and other substance use disorders in the county. HD reviewed the Human Development Chapter of NLC’s National Municipal Policy, approving edits and changes to the standing policy as well as new resolutions on vaccines and WIOA. HD hopes to work with the PSCP Committee on updating the opioids resolution to include language on substance use disorder more broadly. Finally, the committee had a strategic conversation about their work to advance NLC’s Rebuild With Us campaign over the August recess. NLC HD Staff: Stephanie Martinez-Ruckman, Martinezemail@example.com
Transportation and Infrastructure Committee (TIS): The TIS meeting began with a mobile tour of Indianapolis’s brand new, bus rapid transit line set to open this summer. USDOT’s new Deputy Administrator of Intergovernmental Affairs joined TIS to discuss their transportation reauthorization priorities as NLC sets our policy for FAST Act reauthorization. TIS was briefed on NLC’s 2020 election planning and also heard from AARP, a new corporate partner who works extensively on transportation and mobility issues. NLC TIS Staff: Brittney Kohler, firstname.lastname@example.org
Public Safety and Crime Prevention Committee (PSCP): The PSCP June meeting focused on the issues of first responder post-traumatic stress disorder (PTSD) and the Federal Emergency Management’s Agency’s (FEMA) development and implementation of the national public infrastructure pre-disaster hazard mitigation grant program, which was authorized in the Disaster Recovery and Reform Act of 2018. PSCP also participated in a joint session with the Human Development (HD) Committee to learn about the Institute for Youth, Education and Families’ work on the intersection of mental health, substance use and homelessness, as well as a presentation by Dr. Dan O’Donnell, Chief of Indianapolis Emergency Medical Services, about how the city has been engaged in dealing with individuals with opioid addiction and other substance use disorders in the city and county. PSCP also held a joint session with the Information, Technology and Communications (ITC) Committee to learn about the progress FirstNet is making on building out the nationwide public safety broadband network for first responders. PSCP reviewed its chapter of the National Municipal Policy to consider edits and changes to NLC’s standing policy and resolutions. NLC PSCP Staff: Yucel (u-jel) Ors, email@example.com
Information Technology and Communications Committee (ITC): During its summer meeting in Indianapolis, ITC focused on a large-scale revision and update of its chapter of the National Municipal Policy. The committee discussed changes proposed by a working group of the committee membership, which included updating the chapter to reflect modern technologies, changing standards and needs for broadband access, federal preemption trends, and incorporating the concept of digital equity into the policy language. In addition, the committee met with Angela Smith-Jones, Deputy Mayor for Economic Development for the City of Indianapolis, to discuss the city’s 16Tech innovation district campus, its funding sources, and how the development of this district is impacting the surrounding communities. The committee also met jointly with the Public Safety and Crime Prevention (PSCP) Committee to discuss the current status of FirstNet, and what local officials need to know about the use of FirstNet by public safety officials and first responders in their communities. NLC ITC Staff: Angelina Panettieri, firstname.lastname@example.org