Wednesday, December 27, 2017

Briefing: Environmental Legislative, Policy Opportunities, Challenges, Court Actions In 2018

The environmental agenda facing Pennsylvania-- both in legislation and policy-- presents challenges and opportunities in 2018, especially since it’s an election year.  
Actions taken need to be judged by one simple rule-- how they support local and state environmental protection and restoration efforts in the most effective and efficient ways.
The PA Supreme Court and Commonwealth Court are also expected to issue additional decisions that could have major impacts on environmental policies, programs and the budget in Pennsylvania in 2018.
Legislative/Policy Opportunities
Here are just a few of the legislative and policy challenges and opportunities facing the Commonwealth in the coming year--
-- A Large Chunk Of DEP’s Budget No Longer Supports Environmental Protection Efforts That Meet Minimum Federal Requirements: The U.S. Environmental Protection Agency notified DEP last year the resources the state allocates to enforce Safe Drinking Water Act are not adequate to meet minimum federal standards.  While DEP is finalizing an increase in permit fees for the program, it will not be finalized until sometime past mid-year at the earliest, years late to address the real needs.  Some water companies are also opposing the fee increases meaning there could be legislative action to block the increases at the same time the General Assembly has cut General Fund dollars to support this and other programs.
Pennsylvania has received similar notices from other agencies about not meeting minimum federal standards in the air quality, surface coal mine regulation, the critical MS4 stormwater management program, Chesapeake Bay cleanup and drinking water and wastewater revolving fund programs.  Click Here for more.
With the General Assembly cutting General Fund support for DEP programs, to survive, DEP will have to rely even more on increasing fees on those it regulates.  Half of DEP’s budget now comes from permit fees, 30 percent from the federal government and only 20 percent from the General Fund and that’s apparently how the Legislature likes it.
With the Independent Fiscal Office saying the state faces a nearly $1 billion budget shortfall in FY 2018-19 funding and the Governor’s Budget Office saying no revenue increases or supplemental appropriations are needed in the coming year, these budget issues will again be front and center.
Federal Funding Cuts
DEP is also facing cuts in federal funds paid to the state to administer federal programs that DEP Secretary Patrick McDonnell said have an “immediate and devastating effect” in Pennsylvania.  While some cuts were mitigated somewhat by Congress in 2017, it will continue to be a threat.
-- Special Fund Transfers To Balance The Budget Will Kill Local Environmental Restoration, Recreation, Land Conservation Projects: A core group of conservative House Republicans believes, all evidence to the contrary, there is “unused” and “surplus” money just laying around in special funds, in particular those that support local environmental restoration, recreation and land conservation projects.  They succeeded in getting a version of their proposal passed by the House in 2017 that would have cut $317 million from environmental funds alone to balance the General Fund budget.  The final budget directed the Governor to withdraw $300 million from special funds of his choice to balance the budget.  The House Appropriations Committee has a hearing on DEP, DCNR special funds set for January 25 signaling strongly this issue is not dead.
Note: The Senate and House had a $94.9 million surplus in their legislative special fund accounts in FY 2016-17.
These efforts are part of an overall strategy by some: Step 1: Starve environmental agencies for money to cut staff and resources [accomplished]; Step 2: Cut funding for local environmental, restoration and recreation projects to get at the other end of state programs-- the local communities [underway]; Step 3: eliminate environmental protection laws and programs themselves [already suggested in a number of bills and by one House Republican who said he wants to get rid of the mandate to recycle and added in response to a question on the Growing Greener Program-- “Two-thirds of the state is covered by woods, so “how much greener should we be?”]
Budget pressures and election year politics will no doubt drive this issue.
-- Doing Nothing Allows The General Assembly To Block Environmental Regulations: The Senate has already passed legislation-- Senate Bill 561 (Disanto-R-Dauphin)-- that allows the General Assembly to block major environmental and other regulations by doing nothing.  The bill is now in the House State Government Committee which held multiple hearings on “regulatory overreach” and whose Chair has already said he wants to adopt similar regulatory “reforms.”  Election-year politics will no doubt drive this issue.
-- Environmental Permit “Reforms” That Would Eliminate DEP Review Of Permits: Several proposals, some passed by the Senate and agreed to by the Wolf Administration, would have eliminated DEP review of environmental permits and delegated that function to third party land surveyors, landscape architects, geologists or engineers without regard to their expertise; establish “deemed approved” programs that stops DEP permit reviews after a certain number of days; or takes away the authority of DEP to establish general permit requirements for methane emissions in favor of a legislatively dominated approval panel.  These particular changes were part of the debate over a natural gas severance tax.  Click Here for more.
There were other permit review “reforms” introduced in the House specific to one or more programs with one intent-- to take away all or part of DEP’s ability to review environmental permits.  Click Here for more.
Of course the primary cause of permit backlogs and longer review times has been cuts in DEP’s budget and 25 percent cut in staff by the General Assembly and Governors since 2003; but no mention has been made of this handicap.
DEP has a number of permit reform initiatives underway within its very limited resources to address these issues that aim to make permit reviews and inspections more efficient and just as effective.  Click Here for more.
Sen. John Yudichak (D-Luzerne), Minority Chair of the Senate Environmental Resources and Energy Committee, has introduced Senate Resolution 226 to require the Legislative Budget and Finance Committee to do an independent performance evaluation of the two DEP permit programs most critical to development-- the Chapter 102 (Erosion and Sedimentation) and Chapter 105 (Water Obstruction and Encroachment).
This represents a much more thoughtful approach to looking at the entire scope of the permit review problem.  Click Here for more.
Election-year politics will no doubt drive this issue.
-- Developing A Data-Driven Plan To Meet Pennsylvania’s Water Quality Cleanup Obligations: 2018 will be a make or break year in terms of decisions on how to meet Pennsylvania’s water quality cleanup obligations, particularly with respect to the Chesapeake Bay Watershed which covers more than half of the state.  
2017 started optimistically with the bipartisan members of the Chesapeake Bay Commission writing to all members of the Senate and House to outline the need to address the state’s water pollution cleanup problems and propose a potential solution - a dedicated Clean Water Fund for Pennsylvania.  But nothing ever came of it during budget discussions.
Legislation is moving in the Senate and now on the Calendar to regulate the application of lawn fertilizer that can be a source of nutrient pollution-- Senate Bill 792 (Alloway-R- Franklin).
On the negative side, there is a resolution on the House Calendar urging Congress to eliminate the MS4 Stormwater Pollution Reduction Program which is critical to meeting Pennsylvania’s clean water obligations and legislation has stalled in the Senate to allow communities to fund local stormwater and flood reduction projects needed to make up for the lack of state funding.
The PA Chesapeake Bay Steering Committee is now preparing the plan needed for Pennsylvania to live up to its nutrient and sediment reduction commitments in the Chesapeake Watershed.  The Phase III Watershed Implementation Plan is due in December to EPA.
Data-driven decisions to identify the best on-the-ground pollution reduction measures with multiple benefits, geographically how they should be targeted to get the biggest bang for the buck and what additional resources are available to meet those requirements will all be issues the Committee will wrestle with in 2018.  
Green infrastructure improvements that have the triple benefit of nutrient, sediment and stormwater pollution, flooding reduction need to be favored over single sector, single solution options to both make the most of scarce resources and gain the most benefits.  These solutions are hands-down the most effective pollution reduction options data shows.
There also needs to be an effective way to bring more private money into the system to provide these triple benefits through expanding tax credit programs and the newer pay-for-success models.
It is important to note the decisions and programs developed to meet the Chesapeake Bay obligations have served in the past to help meet pollution reduction obligations in federally-required Total Maximum Daily Load Plans all across the state.
-- Assuring Continued Local Environmental Project Funding From Act 13 Drilling Impact Fees: A Commonwealth Court decision in March on the definition of stripper well in Act 13 threatens to reduce revenue from the Act 13 drilling impact fee by another 10 percent ($16 million) a year.  Although the Public Utility Commission is appealing the decision, Rep. Pam Snyder (D-Fayette) introduced House Bill 1283 in April to fix the problem (sponsor summary).  The bill is in the House Environmental Resources and Energy Committee.  Click Here for more.
The whole debate over a natural gas severance tax is not mentioned here because the proposal most actively being considered in the House-- House Bill 1401-- provides no benefit to environmental programs.
The Senate, with the Wolf Administration’s blessing, did pass a severance tax in July that provided some money to backfill declining Act 13 drilling fee revenue, but provided no new funding.  
In October a bipartisan group of 11 Senators did encourage a portion of any new severance tax to go to at least go to the Environmental Stewardship (Growing Greener) Fund, but nothing ever came of that.
-- Public Costs Of Pipeline, Other Protests Paid By Protesters: With issues surrounding federal and state decisions on natural gas pipelines expected to continue to be controversial in 2018, legislation introduced by Sen. Scott Martin (R-Lancaster)-- Senate Bill 754-- that could impose any public costs for dealing with any “public assembly, meeting or gathering” entirely on the individuals doing the protesting if they are convicted of a felony or misdemeanor in connection with that demonstration could see action.  He introduced the bill because he was concerned about what those against the Atlantic Sunrise Pipeline project going through Lancaster would do.  Many groups view this as a limitation on free speech and the right to protest.  Click Here for more.
-- House Republican Clean Power Climate Plan: In October, Rep. John Maher (R-Allegheny), Majority Chair of the House Environmental Resources and Energy Committee, announced his intention to introduce his own version of a PA Clean Power Climate Plan.  No language is available, but it is something to watch for in 2018.
-- Bipartisan Energy-Related Initiatives: A number of bipartisan energy-related initiatives have been introduced in the General Assembly and hope to see action in 2018, including--
  -- Local Clean Energy Funding: House Bill 1722 (Harper-R-Montgomery) would authorize local governments to create energy improvement districts to help fund energy efficiency, renewable energy and water conservation projects by commercial and industrial buildings to reduce their operating costs is pending in the House Local Government Committee (sponsor summary).  Thirty-three other states have adopted similar PACE Programs.
A companion bill-- Senate Bill 234 (Blake-D-Lackawanna)-- was reported out of Committee on October 24, amended on the Senate Floor and is now in the Senate Appropriations Committee.  Click Here for more.
  -- Electric Grid Resiliency: Rep. Stephen Barrar (R-Delaware) introduced and hearings were held in June and in November by the House Veterans Affairs and Emergency Preparedness Committee on House Bill 1412 that proposes a regulatory framework to encourage energy storage and microgrids to improve electric grid resiliency during disaster emergencies and other circumstances.  This bipartisan issue that could unlock more potential for renewable energy.
  -- Alternative Natural Gas, Electric Ratemaking: Rep. Sheryl Delozier (R-Cumberland) introduced House Bill 1782 providing for alternative ratemaking for natural gas and electric distribution companies designed to encourage energy efficiency improvements and distributed energy resources such as renewable energy projects. A hearing was held on the bill in November by the House Consumer Affairs Committee.
  -- Electric Transportation Infrastructure Bill: Rep. Marguerite Quinn (R-Montgomery) introduced House Bill 1446 related to establishing an electric vehicle transportation infrastructure. A hearing was held on the bill in November by the House Transportation Committee.
-- Updating Act 101 Municipal Waste Recycling, Planning: 2018 marks the 30th anniversary of the passage of the state’s basic recycling and waste planning law-- Act 101-- and legislators in both parties and DEP have begun to take a look at what kinds of updates are needed.  
Rep. John Maher (R-Allegheny), Majority Chair of the House Environmental Resources and Energy Committee, said several times during 2017 there is a need to update Act 101.  The Joint House/Senate Conservation Committee held a hearing on the issue in June and received lots of suggestions.  
The PA Resources Council held two regional roundtables on updating Act 101 one in Delaware County and another in Allegheny County.
The PA Recycling Markets Center released a study in October showing recycling is responsible for over 66,000 jobs and $22.6 billion in economic activity to the state.  
A workgroup on DEP’s Solid Waste Advisory Committee met several times in 2017 to develop recommendations on how to update Act 101 and developed lots of background information.
Recommendations for updating Act 101 are expected from these initiatives in 2018.
-- Fixing The Electronics Waste Recycling Program: Another opportunity for bipartisan action is fixing Pennsylvania’s electronics waste recycling law.
In July, Sen. Richard Alloway (R-Franklin) introduced Senate Bill 800 which totally revamps the whole electronics waste recycling law and puts in its place a new system that he believes will fix many of the problems.
The Senate Environmental Resources and Energy Committee held a hearing on the bill on October 23.
-- Littering Penalties: On July 8 the Senate passed Senate Bill 431 sponsored by Sen. Mario Scavello (R-Monroe) to significantly increase fines for littering. Currently, fines for littering under Title 18 (Crimes and Offenses) run from $50 to $300 for a first-time offense, and $300 to $1,000 for a second and subsequent offense.  Under Senate Bill 431, fines would be increased up to $2,000 for multiple offenses, based on the size and weight of litter.  The bill is now in the House Transportation Committee.
-- Game, Fish Commission Fees: Bipartisan legislation passed the Senate in March giving the Game and Fish and Boat Commissions the ability to set their own fees by regulation is now stalled in the House Game and Fisheries Committee.  
Senate Bill 30 (Eichelberger-R-Blair) authorizing the Fish and Boat Commission to adopt its own fees saw no action on the bill in Committee.  Senate Bill 192 (Stefano-R-Fayette) authorizing the Game Commission to adopt its own fees was Tabled in the Committee.  Click Here for more.
-- Designating Eastern Hellbender PA’s State Amphibian: A project of the Chesapeake Bay Foundation’s Student Leaders group, Sen. Gene Yaw (R-Lycoming), one of Pennsylvania’s members on the interstate Chesapeake Bay Commission, introduced Senate Bill 658 in May to name the Eastern Hellbender as Pennsylvania’s state amphibian.
The bill was reported out of the Senate State Government Committee on June 14, passed the Senate November 15 and is now in the House Environmental Resources and Energy Committee.  Click Here for more.
It’s worth remembering that any legislation not on the Governor’s desk by the November 30, 2018 end of the session will die and have to start over in 2019.
Court Actions
Two important environmental cases will be the subject of additional action by the PA Supreme Court and Commonwealth Court in 2018--
-- Environmental Rights Amendment Decision: The PA Supreme Court issued a decision in June saying actions by the General Assembly and the Governor to transfer funds from DCNR’s Oil and Gas Lease Fund to balance the state budget and for other purposes was unconstitutional.  The Court said it violated the Environmental Rights amendment to the constitution and the “public trustee” role that amendment establishes.  
The Court remanded the case to Commonwealth Court to sort out how it will affect the $1.1 billion at stake in these transfers, including from the FY 2017-18 budget settlement.  The Court is expected to have a hearing on the case in the first part of 2018.
The “public trustee” principle established in the June decision may have a much broader application to all actions by the General Assembly and the Governor beyond just the budget.  It could also be applied to state and local decisions about changing programs and on individual permit decisions.
These ramifications will not be known until this all unwinds in future court decisions.
-- Fundamental Challenges To How Environmental Penalties Are Calculated:  Last January EQT drilling won a Commonwealth Court ruling challenging the way DEP calculates its penalties for pollution, specifically, that each day is a separate offense.  
This same language is included in almost all major state environmental statutes.  If successful, it will drastically reduce pollution fines in the state to practically nothing.
DEP appealed the decision to the PA Supreme Court and filed briefs on the case in May.  EQT drilling also appealed a decision by the Environmental Hearing Board on another penalty to Commonwealth Court in July.
These are not the only environmental and energy challenges and opportunities Pennsylvania will face in 2018, but they are some of the more important ones.
Let’s see how it goes and carefully measure the results!  Afterall, 2018 is an election year for the Governor, all of the House and half of the Senate.
(Photo: Artwork by then Penns Manor 6th Grade student Matthew Cramer for the PA Recycling Poster/Calendar Contest in 2002.  Matthew would be about 27 now.)
Related Stories:

No comments :

Post a Comment

Subscribe To Receive Updates:

Enter your email address:

Delivered by FeedBurner