Update from Washington D.C.
House Votes on Disaster Relief Supplemental Spending Package
May 10, 2019
Earlier today, the House approved a new disaster relief supplemental spending package (HR 2157). The $17.2 billion measure is roughly $3 billion more than a bill (HR 268) that the House approved in January. Some of the additional funding would provide assistance to victims of recent tornadoes in Alabama and floods in the Midwest. In addition, the legislation would extend the National Flood Insurance Program (NFIP) – which is currently set to expire on May 31 – through September 30. Finally, the bill would bar the use of Defense Department and military construction funds for any purpose that is not described in the measure, such as building a wall along the U.S.-Mexico border. (Additional details on the legislation are available below.)
During floor consideration, the lower chamber approved several amendments, including two proposals that were endorsed by CSAC. The first, sponsored by Congressman Jared Huffman (D-CA), would prohibit the Federal Highway Administration (FHWA) from withholding funding for Emergency Relief (ER) projects that are being built in the aftermath of the 2017 storms, as well as subsequent disasters.
The impetus for the Huffman amendment is a recent FHWA decision to deny time-extension requests for 66 (of 73 submitted) county ER projects stemming from recent disasters in California. Pursuant to current FHWA regulations, ER projects must be advanced to the construction obligation stage by the end of the second fiscal year following a disaster occurrence to be eligible for federal program funding. While FHWA has routinely provided project sponsors with a one-year (or series of one-year) time extension(s) to advance projects if delays were caused by the need for extensive environmental evaluation, litigation, or complex right-of-way acquisition, FHWA recently began issuing denials of requests for additional time to complete such projects.
Another amendment, offered by Congresswoman Cindy Axne (D-IA), would increase funding for FHWA’s ER program by an additional $500 million. These measures would benefit California’s counties, and as such, CSAC encouraged the California congressional delegation to vote favorably on both amendments.
Similar to a previous version of the disaster relief supplemental, HR 2157 was approved largely along party lines, although 34 Republicans joined Democrats in this effort. Meanwhile, negotiators continue to work on a bipartisan, bicameral deal that the administration would also support. While an agreement continues to elude congressional leaders, HR 2157 would at least represent the latest bid from the House.
Below are some additional highlights from the bill that are of particular interest to California’s counties:
Department of Housing and Urban Development
- $2.21 billion in Community Development Block Grant (CDBG) funding – $150 million of which is designated for unmet infrastructure needs from the 2017 California wildfires – that could be used for disaster relief, long-term recovery, infrastructure restoration, housing, and economic revitalization. It should be noted that this is more than double the amount included in previous House and Senate disaster aid bills.
Department of Transportation
- $1.65 billion for the Federal Highway Administration’s (FHWA) Emergency Relief (ER) program to repair damaged roads. The Axne amendment increases funding for the ER program to $2.15 billion.
Department of Agriculture
- $3 billion for expenses related to crop losses. The legislation stipulates that assistance could be provided in the form of block grants to states. Pursuant to the legislation, producers receiving disaster payments would be required to purchase crop insurance for the next two crop years.
- $720.3 million for Wildland Fire Management, although this funding would be used to repay other accounts from which the U.S. Forest Service drew funding to cover shortfalls for wildfire suppression during fiscal year 2018.
- $500 million for the Emergency Conservation Program to repair damage to farmlands.
- $150 million for grants through the Rural Community Facilities Program.
- $21 million for hazardous fuels management activities.
U.S. Army Corps of Engineers
- $908 million to dredge Federal navigation projects damaged by a natural disaster.
- $510 million to prepare for flood, hurricane, and other natural disasters, as well as to support emergency operations and repairs.
Department of Health and Human Services
- $250 million for the Social Services Block Grant.
- $60 million for Head Start programs.
Economic Development Administration
- $600 million for flood mitigation, disaster relief, long-term recovery, and infrastructure restoration.
Environmental Protection Agency
- $849.4 million for capitalization grants to state revolving loan funds supporting water infrastructure projects. Notably, Region 9 would only be eligible for $349.4 million.
Bureau of Reclamation
- $17 million for fire remediation and suppression emergency assistance related to wildfires in 2017 and 2018
Carcieri Legislation Pulled from the House Floor
This week, Democratic leaders pulled from the House floor legislation that would reverse the U.S. Supreme Court’s Carcieri v. Salazar decision. Championed by Representative Tom Cole (R-OK), the so-called “clean Carcieri fix” bill (HR 375) was approved on May 1 by the House Natural Resources Committee on a 29 to seven vote.
It should be noted that HR 375 was scheduled to be brought up under Suspension of the Rules. Under such a scenario, House floor debate would have been limited to 40 minutes and members would not have been allowed to offer any amendments to the bill. In order to clear the chamber, the legislation would have needed to garner the support of two-thirds of the members present and voting.
In advance of Wednesday’s floor vote, the ranking member of the Natural Resources Committee, Representative Rob Bishop (R-UT), wrote to committee Chairman Raúl Grijalva (D-AZ) to express frustration that HR 375 was scheduled for a floor vote just one week after committee markup of the bill. According to Rep. Bishop, such a move disregards what he believed was a bipartisan agreement to work on an amendment to the legislation to improve consultation between the Bureau of Indian Affairs (BIA) and states and counties to mitigate the impacts of taking land in trust in their jurisdictions.
Furthermore, Representative Bishop’s letter highlighted CSAC’s recent correspondence to the leadership of the Natural Resources Committee in which CSAC reiterated counties’ longstanding, valid concerns with the process for taking land into trust. Rep. Bishop also noted that CSAC has submitted proposals to resolve the inherent defects in the BIA’s trust-acquisition process.
It appears as though the decision to remove HR 375 from floor consideration was prompted by a tweet from President Trump in which he stated that Republicans shouldn’t vote for another unrelated tribal bill (HR 312). That particular measure would reaffirm the Mashpee Wampanoag Tribe’s reservation as trust land in the state of Massachusetts.
In Carcieri, the Supreme Court determined that the secretary of the Interior’s trust land acquisition authority is limited to those tribes that were “under federal jurisdiction” at the time of the passage of the Indian Reorganization Act (IRA) of 1934. The effect of the landmark ruling was the creation of two classes of Indian tribes: those that can have land taken into trust on their behalf by the U.S. Department of the Interior (pre-1934 tribes) and those that cannot (post-1934 tribes).
Since the Court’s decision, many Indian tribes have demanded that Congress pass a clean Carcieri fix, which would simply reverse the now decade-old ruling. In contrast, county governments – led by CSAC – have urged lawmakers to include comprehensive legislative reforms in the Interior Department’s deeply flawed fee-to-trust process as part of any legislation that addresses Carcieri.
Although HR 375 was removed from House floor consideration, Democratic congressional leaders are expected to look for the next available opportunity to advance the bill. Even if the House ultimately approved the legislation, it will face very uncertain prospects in the upper chamber. In past years, Senate opposition has thwarted Carcieri clean fix bills, with various senators echoing CSAC’s calls for the inclusion of provisions that would overhaul the fee-to-trust process. Additionally, a number of senators have attempted to include as part of previous Carcieri legislation controversial amendments to the Indian Gaming Regulatory Act (IGRA), further complicating a legislative solution to Carcieri.
Trump Administration Files Brief Supporting Full ACA Repeal
In a reversal, the Department of Justice (DOJ) recently filed a brief supporting the complete overturn of the Affordable Care Act (ACA). The Trump administration had previously argued that the more popular aspects of the law, such as prohibiting insurance companies from discriminating against individuals based on pre-existing medical conditions, could remain in effect even if the individual mandate were to be struck down. However, according to the latest filing, DOJ no longer believes it can defend that position because it would interfere with the role of Congress to determine which provisions remain in place.
It should be noted that the reversal was spurred by a recent U.S. District Court ruling in Texas which held that the entire law should be invalidated because Congress in 2017 eliminated the tax penalty for individuals failing to purchase health insurance. The plaintiffs in the case argued that this action made the ACA’s minimum coverage provision unconstitutional, and therefore, the rest of the law should be struck down.
In response, California Attorney General Xavier Becerra weighed in on behalf of 20 states and the District of Columbia, arguing that the U.S. District Court judge wrongly concluded that the individual mandate provision was unconstitutional and that there was no legal basis for declaring the rest of the ACA invalid. Moreover, Becerra contends that Congress has had the opportunity to make sweeping changes to the ACA, but it chose not to do so. For its part, CSAC – along with 35 counties and cities throughout the country – filed an amicus brief in support of continuing the ACA’s expansion of the Medi-Cal program. A copy of the CSAC brief can be accessed here.
On Capitol Hill, a number of Republicans have distanced themselves from the new DOJ position. To date, 36 states, including some Republican-led states, have expanded their Medicaid programs. GOP lawmakers from these states and others are concerned that they will bear the brunt of the blame if the Court invalidates the popular ACA provisions.
Looking ahead, the conservative 5th U.S. Circuit Court of Appeals will hear oral arguments on the case in July. Regardless of the result, the case will likely be appealed, giving the Supreme Court another opportunity to rule on the ACA. It should be noted that the Court has previously found most of the law to be constitutional.