U.S. House Passes WRDA 2024

The U.S. House of Representatives last Monday passed the Water Resources Development Act of 2024 (WRDA) in an overwhelmingly bipartisan 359-13 vote. WRDA is passed biennially, and authorizes funding for U.S. Army Corps of Engineers (USACE) projects. Previous WRDA bills have authorized the Soo Locks and the Brandon Road Lock and Dam. The Senate Committee on Environment and Public Works advanced its version of WRDA back in May.

As in the Senate version, the House bill includes a feasibility study for modifications to the Middle Neebish Channel in the St. Mary’s River. As NEMWI reported back in December, Jim Weakley of the Lake Carriers’ Association drew attention to this issue in a hearing. The Channel currently has two different authorized depths, a relic of a different era of shipping that now causes difficulties and poses a safety hazard. Both bills also include an extension of the Cumberland Valley pilot project of the bioacoustic fish fence (BAFF) that was scheduled to be completed in 2024, but could now be extended until at least 2029.

The House bill also includes provisions that are not in the Senate bill. It includes a request for a report on the security of the Soo Locks that would highlight the economic or supply chain impacts and the impact on the Great Lakes Navigation System “that would result from a malfunction or failure of the Soo Locks.” It also requests a progress report on the report on the economic impacts of Great Lakes boating that was included in WRDA 2022. Notably, unlike the Senate version, the House bill does not include a provision increasing the Brandon Road Operation and Maintenance federal cost share to 90%.

NEMWI will continue to monitor the progress of WRDA 2024.

A comparison of the House–passed WRDA bill and the WRDA bill now pending in the Senate is below:

Appropriations Process Continues on Capitol Hill

While the goal of the House Republican leadership for several months was to pass all 12 appropriations bills before the August recess, on Thursday members headed home to their districts having made little progress. Though all 12 bills have advanced out of committee, just five have passed the full House: Military Construction and Veterans’ Affairs; State and Foreign Operations; Homeland Security; Defense; and Interior and Environment. The Legislative Branch funding bill failed on the House floor.

All of the bills were passed on party-line votes – of the 1,060 “yea” votes cast across the five bills, just 16 were from Democrats, and of the 1,003 total “nay” votes, just 15 were from Republicans. The bills contain significant cuts to the EPA and NOAA, among other agencies, but there are also some bright spots for the region. The GLRI would be funded at $368 million, equal to FY24 levels, and IOOS funding would see an increase. See NEMWI’s Great Lakes summary of the bills here.

The Senate is also making slow progress. No appropriations bills have yet passed the chamber, and just seven have advanced out of committee. On Thursday, the Appropriations Committee reported out four bills: Interior and Environment; Energy and Water; State and Foreign Operations; and Transportation and Housing and Urban Development. In contrast to the lower chamber, Senate bills have garnered broad bipartisan support in committee. The bills would keep EPA funding essentially flat, but would increase NOAA funding by six percent. They include $371 million for the Great Lakes Restoration Initiative, modest increases in funding for many Great Lakes NOAA programs, and significantly increased funding for the Port Infrastructure Development Program. The Senate Appropriations Committee is scheduled to markup the final five bills on Thursday.

Read NEMWI’s report, which will be updated as more bills advance, here.

House Committee Holds Hearing on

Post-Chevron Legislating

The Committee on House Administration held a hearing on July 23 titled “Congress in a Post-Chevron World,” addressing how Congress should engage in lawmaking now that the Chevron doctrine has been struck down by the Supreme Court. The Chevron deference doctrine was a precedent decided in 1984 through the Supreme Court Case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. The decision stated that if a legislative delegation is implicit and not explicit, a court cannot substitute its own statute, but instead the reasonable interpretation will defer to the administrative agency. In June 2024, the Supreme Court overturned the Chevron doctrine in Loper Bright Enterprises v. Raimondo. In last week's House hearing, House representatives and witnesses discussed the possible implications of the overturning of Chevron on Congress, agencies, and the courts.

Among the witnesses at the House Administration hearing were The Honorable Paul J. Ray, Director of the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation; Satya Thallam, the Senior Vice President of Government Affairs with Americans for Responsible Innovation; Dr. Kevin Kosar, a Resident Senior Fellow for the American Enterprise Institute; Wayne Crews, a Fellow in Regulatory Studies for the Competitive Enterprise Institute; and Dr. Josh Chafetz, an Agnes Williams Sesquicentennial Professor of Law and Politics at the Georgetown University Law Center.

Committee Chair Bryan Steil (R-WI) opened the hearing by talking about the Constitution. Steil claimed our founders meant for the legislature to be the most powerful of the three branches of federal government. Yet in recent years, he said, Congress has lost its authority and became the weakest branch. Steil said that the Supreme Court made a mistake establishing Chevron, and the overturning of this precedent restores power to Congress, not federal agencies, to make and interpret laws. Steil continued, quoting the concurring opinions of Justices Thomas and Gorsuch. Steil highlighted that the decision gives Congress the opportunity to “rein in the administrative state” and “correctly restores legislative power where the Constitution actually assigns it in the legislative branch.”

Ranking Member Joseph Morelle (D-NY) then provided his opening statement, which took the opposite point of view. Morelle noted that this is not the first time the conservative majority on the Supreme Court has reversed long-standing legal precedent, and this decision in particular will “inhibit successful regulation” and emphasized that agencies have the expertise necessary to fill in the gaps left by Congress. Overturning the Chevron doctrine inhibits successful regulation, Morelle said, and empowers not Congress, but the Judiciary. He says that judges will make “extreme and ill-informed decisions impacting every American’s daily life” and suggested that “reversing Chevron and implementing Trump’s Project 2025 are interconnected.” Indeed, he stated, one of the witnesses at the hearing, Mr. Ray, was involved in Project 2025. Finally, Morelle cited Congress’ dysfunction, including recent appropriations cycles, as evidence that Congress is not equipped to deal with the fallout of a Supreme Court decision that would require specific, proactive, and agile legislating.

In his opening statement, Mr. Satya Thallam referenced the original Chevron decision from 40 years ago that “ultimately permitted agency discretion in that case and was what most people agreed was a deregulatory direction.” The original Chevron case was decided to give the EPA more flexibility in regulations, making the existing rule less constraining. Mr. Thallam then claimed that “Congress is worse off” due to the reversal of the Chevron decision because “the total number of Congressional staff has actually decreased…gone down by a few percent in the last 30 years, the number of committee staff has gone down by 40%.” Mr. Thallam concluded that Congress is not equipped to function post-Chevron.

After opening statements, Chairman Steil asked each of the witnesses whether they think Congress is currently structured to be able to review the rules coming out of the administrative state, and each witness answered no. Steil then asked the witnesses how they think Congress can be reconstructed to increase its ability to do so. Mr. Ray suggested that Congress hire more staff with subject matter expertise in the short term. Mr. Thallam suggested empowering the GAO to assign a task force to conduct “a pilot project along these lines.” Dr. Kosnar suggested that Congress hire staff that can work in the CBO to provide oversight support. Mr. Crews suggested ensuring the Congressional Review Act is followed. Dr. Chafetz suggested that because committees already have the obligation to conduct oversight within their jurisdiction, “beefing up committee staff and in particular committee staff with substantive expertise in the areas that they’re overseeing would allow them to evaluate regulations coming out of the executive branch.”

Congresswoman Norma Torres (D-CA) questioned Mr. Ray specifically on his involvement in Project 2025 and the Heritage Foundation, specifically noting its elements of climate denialism and plans to downsize the EPA and NOAA. Representative Torres stated that the overturning of the Chevron Doctrine was a “dangerous Supreme Court decision” and expressed her concern for the future of agencies like EPA and NOAA under a conservative majority and claims that the Republicans in the Appropriations Committee have included funding decreases to these agencies in their budget. Mr. Ray said that he did not contribute to the parts of Project 2025 that pertain to climate denialism.

Representative Morelle asked Dr. Chafetz how the decision might affect the ability of agencies to respond quickly to advances in technologies. Dr. Chatez responded that agency rules take time to produce and their interpretation does not stay consistent over time. Chafetz suggested that this decision is a problem because “facts on the ground change over time” and with Chevron being overturned, agencies will be locked into their initial decision even if new technology arises.

Witnesses agreed that Congress is ill-equipped to enter a post-Chevron era, and that action is required. Proposed remedies included creating a whole new oversight committee or new office specifically for regulations, hiring more staff with expertise, writing legislation with more specificity, or long term regulatory budgeting.

Reported by NEMWI Intern Julia Mozingo, Mount St. Mary’s University

House Subcommittee Holds Hearing on Rail Safety

The House Subcommittee on Railroads, Pipelines, and Hazardous Materials held a hearing on July 23 to examine the state of rail safety in the aftermath of the 2023 Norfolk Southern train derailment in East Palestine, Ohio. The derailment led to a controlled “vent and burn” of multiple cars worth of vinyl chloride, posing extensive environmental and health risks within the surrounding region.

Subcommittee Chair Troy Nehls (R-TX)'s opening statement began with support for the Railroad Safety Enhancement Act of 2024, a bill that he introduced with Congressman Seth Moulton (D-MA). The bill includes the language of S.576, the Railway Safety Act, with four main additions in the wake of the National Transportation Safety Board (NTSB)’s recently published report on the East Palestine disaster. First, the bill requires that all Class I railroads enroll in the Confidential Close Call Reporting System for a period of two years, which would enable railroad employees to report close calls and unsafe incidents to a neutral third party. Second, the bill adds more functionality to the Ask Rail app, which provides real time data about trains and their contents to first responders, and would require state departments of transportation (DOTs) to notify first responders of the app. Third, the bill authorizes $1 billion for a railroad crossing elimination grant program. Fourth, the bill authorizes $100 million for the Federal Railroad Administration (FRA) to create a grant program to install onboard freight railcar telematics systems to record live data of train components. Nehls addressed his Republican colleagues directly to ask for their support for the bill, saying that some private railroads have improved their safety measures but “we can do more” and “the idea that we do not evolve in the safety realm is indefensible.”

Ranking Member Frederica Wilson (D-FL) used statistics to highlight the safety risks of freight railroads: Over 1,500 “rail incidents” had occurred since the East Palestine derailment and 26 percent of the cars that did not derail in East Palestine had reportable defects despite being inspected prior to departure. Congresswoman Wilson endorsed a two-crewmember minimum provision for freight trains as the two-person crew aboard the East Palestine train was able to move the locomotive away from the fire, reducing the potential damage. This would have been significantly more difficult with a one-person crew.

Witnesses included a panel of six experts. The panel included Jennifer Homendy, Chair of NTSB; Amit Bose, Administrator of the Federal Railroad Administration (FRA); Tristan Brown, Deputy Administrator of the Pipeline and Hazardous Materials Safety Administration (PHMSA); Jeff Sloan, Senior Director of Regulatory and Scientific Affairs at the American Chemistry Council (ACC); David Arouca, National Legislative Director for the Transportation Communications Union; and Greg Hynes, National Legislative Director for the Transportation Division of the Sheet Metal, Air, Rail, and Transportation Union.

Several important railway safety issues were discussed throughout the question-and-answer segment. One was a systemic lack of adequate time for carmen (workers who build, repair, inspect and maintain railroad cars) to properly inspect rail cars within railyards. Mr. Arouca, whose union represents carmen, said that an FRA study uncovered an average per-car inspection time of only 44 seconds during which the carman was supposed to certify all the wheels, flanges, bearings, couplers, pins, and other car components. Mr. Arouca stated that this “was not enough time” and that carmen were pressured into completing rushed inspections by Class I railroads. The railroads further reduced carmen’s effectiveness by implementing forced overtime shifts of up to 24 hours, resulting in extreme fatigue. Additionally, freight railroads have shrunk their workforces over time, increasing responsibilities for the remaining workers. The result of this disregard for safety, Chair Homendy said, was a 50 percent increase in rail yard accidents in the past decade. Mr. Arouca said that there were two solutions to this problem: giving more time for carmen to inspect the cars or hiring more carmen. He also emphasized the need for more FRA inspectors in the field. The probable cause of the East Palestine derailment, an overheated wheel bearing which separated an axle, may have been mitigated if inspections had been more thorough.

Another recurring issue was the danger posed by DOT 111 tank cars, which experienced mechanical breaches following the East Palestine derailment. Chair Homendy stated that if the DOT 111s had not breached during the derailment, the decision to vent and burn the vinyl chloride from other cars would likely not have been made. Chair Homendy continued that one of the NTSB’s most important recommendations to Congress was an “aggressive phase out” of DOT 111s, which have had a history of accidents. Mr. Brown echoed Chair Homendy’s statement.

Multiple witnesses discussed the failure of Norfolk Southern to properly inform first responders of the materials carried by the East Palestine train. Chair Homendy said that it took over an hour for the information to reach first responders, which placed them at risk and contributed to “unneeded urgency” that led to the vent and burn decision. Chair Homendy stated that first responders “need gear, need radio interoperability, and need training.”

Mr. Hynes brought up the increasing length of freight trains, which require fewer people to operate but are more difficult to stop and cause more destruction when derailed. Long trains can also cut off intersections and make it more difficult for first responders to access emergencies.

While many of these issues have been reflected in NTSB recommendations to Class I railroads for years, railroads have chosen to not act on them. Chair Homendy said that 17 such “open recommendations” were in place for Norfolk Southern alone, and eight for all Class I railroads. When Congressman Dusty Johnson (R-SD) questioned Mr. Bose about the FRA’s timeline to investigate and implement binding regulations, Mr. Bose replied, “when you talk about regulations, you need to build in the opposition that we get from the industry when we try to do productive things.” While the FRA can fine railroads, many fines are settled, Homendy said, “for pennies on the dollar."

Multiple Congresspeople from both sides of the aisle and nearly all the witnesses endorsed the RSEA and the Rail Safety Act. When asked by Congressman Christopher Deluzio (P-PA) whether they trust the railroads to regulate themselves, every witness said no except for Mr. Sloan, who said that he did not feel qualified enough to answer. Representatives from Class I railroads BNSF, Union Pacific, and Canadian National were invited to the hearing but they did not attend.

Reported by NEMWI Intern Evan Kaye, Dartmouth College

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