As the annual march toward funding the U.S. government continues for fiscal year 2023, let’s pause to examine the process for how that funding is accomplished, and how it can be used to advance key environmental initiatives. Then let’s look at what the House and Senate have accomplished thus far, with an eye toward generating the strongest possible—and greenest—funding package this fall.
If you’re reading this blog, you’re probably aware that NRDC advances its pro-environment goals not just through its renowned litigation work but through its policy advocacy efforts as well. At the national level here in the United States, those efforts include both advocating for amendments to our existing federal environmental statutes and advocating for new laws to help protect our shared resources and the planet that we all call home.
This can be challenging work! In the American system of governance, legislating is difficult by design, and often occurs in fits and starts. For example, most of the U.S.’s core environmental laws were enacted in a small window of time approximately 50 years ago and, since then, have seen only sporadic updates or reforms. This is because, for an initiative to become federal law in the United States, you need, broadly speaking: (1) a supportive majority in the House of Representatives; (2) a similarly agreeable majority in the Senate (and, for the passage of most measures, a three-fifths majority); and (3) a sympathetic executive in the Oval Office who is willing to sign that legislation into law. Even when those stars align in your favor, you still need to convince each of the preceding parties that your objective is of sufficient import to deserve their valuable time, effort, and political capital. In short: Turning an idea into a bill, and a bill into law, is hard work.
One way to better your odds of legislative success is to identify bills that are regularly enacted into law, with an eye toward improving or amending those bills as they make their way through Congress. One set of measures that must pass every year without fail are the annual appropriations bills, which allocate funding across the federal government. But what do these bills look like? How do they work? And what kind of environmental goals can they really support, given their seemingly narrow intent? The purpose of this blog is to answer each of those questions, and to examine how the pending fiscal year 2023 appropriations process has the potential to score some big wins for the environmental community. So, let’s dive in!
The appropriations process
Article I of the U.S. Constitution sets out the power of the legislative branch, and in doing so, it provides that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law…” In other words, no one in the U.S. federal government can spend a dime unless the Congress gives its OK. For most purposes, that OK takes the form of 12 annual appropriations bills, each of which targets a different area of governance: There’s one for defense spending, one that’s energy-centric, one focused on foreign affairs, et cetera. Nearly every office of the federal government is covered somewhere in these bills, and those offices must pare through these measures each year to find out how much money they’ve been given and how they’re permitted to spend it.
These 12 bills each cover spending over a fiscal year that begins annually on October 1 and ends the following September 30; the appropriations bills that are currently pending in Congress are for fiscal year 2023, which starts on October 1, 2022. Practically speaking, in the modern era, these bills are often slowed by arduous political negotiations and are enacted late, i.e., after the start of the fiscal year that they are supposed to cover. The lag between the start of a fiscal year and the late enactment of appropriations for that fiscal year is usually bridged by a “continuing resolution,” which maintains funding at the prior fiscal year’s level until new appropriations are enacted. This is a damaging phenomenon, as it fails to account for updated spending needs during that period, and it leaves newly created programs entirely unfunded. Absent a continuing resolution, however, the government shuts down altogether, and that is a far worse result.
Even if the appropriations bills are late, they (almost) always are eventually signed into law, often making them opportunities for urgent legislative priorities. That said, they are hardly open oceans into which any legislative proposition can leap. Each house of Congress has rules that forbid the inclusion of non-appropriative policy in the 12 general appropriations bills. These rules often are waived to allow in an array of legislative directives, but they create a presumption against the inclusion of policy-centric initiatives until those initiatives accumulate a baseline level of popular support. Also notable is the Senate’s 60-vote threshold to embark on the consideration of most legislation—including appropriations bills—so this means that no measure can carry a policy provision that is so divisive that it loses the support of more than 40 senators. Finally, it’s worth bearing in mind that each of the 12 appropriations bills are assigned “top-line” numbers that cannot be exceeded. In other words, each bill is allocated a certain dollar amount, and if any priority causes a bill to exceed that amount, it becomes a nonstarter.
This leaves the following needle to be threaded: If a member of Congress has a policy priority that they want to move in an appropriations bill, it needs to be: (1) sufficiently supported so as to draw at least some broad-based backing; (2) not so partisan as to threaten the passage of the bill in which it is placed; and (3) not so expensive that it threatens its bill’s top line. Thus, it is best to think of the annual appropriations process not as an avenue to significantly shift policy; rather, it should be considered a useful tool to facilitate incremental change.
With this in mind, let’s take stock of where the fiscal year 2023 appropriations bills presently stand, how the narrow majorities in the House and Senate are advancing key environmental priorities in those measures, and areas for improvement as the annual march toward funding the government moves forward.
This year—in the House
In mid-July, the House passed 6 of its 12 appropriations bills in one fell swoop; it did so by combining those bills into a single package, colloquially called a “minibus” (that is, a miniature version of a 12-bill omnibus). This minibus contained two of the most significant appropriations bills to the environmental community—the measures commonly known as the “Energy and Water” and “Interior and Environment” bills—along with several other bills of relevance to green groups (those focused on agriculture and transportation, for example). The House Committee on Appropriations has put out a compelling statement that highlights some of the higher-profile environmental wins in the package. In addition to the successes noted by the committee, there were a spate of other, lower-profile—but still vitally important—victories that we at NRDC would like to uplift.
In the Interior, Environment, and Related Agencies bill
- Robust funding for:
- The insertion of the on- and offshore oil and gas inspection fee regime that was originally included in the House-passed version of the onetime Build Back Better package.
- The continuation of a prohibition on funding for new offshore oil and gas leasing.
- The re-inclusion of a bar on funding to advance oil and gas leasing within the Chaco Culture National Historic Park.
- Report language that encourages the EPA to reconsider chemical recycling, and to continue regulating gasification and pyrolysis technologies under the Clean Air Act.
In the Energy and Water Development, and Related Agencies bill
- Much-needed funding for:
- Advanced zero-emission technologies and low-carbon fuels for off-road vehicles
- Integration programs to connect floating offshore wind farms to the power grid
- Electric vehicle workforce development activities
- Report language that provides unambiguous support for the Department of Energy’s Grid Deployment Office (GDO), which focuses on the development of new and upgraded high-capacity electric transmission lines nationwide and the deployment of transmission and distribution technologies to improve the resilience of the nation’s electric infrastructure.
In the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies bill
- Strong funding for multiple key initiatives, including:
- The National Organic Program
- Oversight and enforcement of the Packers and Stockyards Act
- Extension, research, and capacity at 1890 and 1994 Land Grant and Hispanic-serving institutions
- Agricultural research programs
- The inclusion of strong report language:
- extolling the use of regenerative agriculture practices that help farmers while addressing the multiple challenges our nation faces regarding climate change, land degradation and risk, biodiversity, water security, and food access;
- recognizing the critical importance of regenerative soil policies in helping agriculture rebuild the soil health of agricultural lands; and
- highlighting the Pandemic Cover Crop Program, which helps producers maintain their cover crop systems amid the COVID-19 pandemic while encouraging important conservation practices.
In the Transportation, and Housing and Urban Development, and Related Agencies” bill
- Solid financial backing for:
Another piece of great news had to do with what wasn’t in the House-passed bills. The minibus was almost entirely devoid of harmful “legacy riders,” which are long-standing policy addenda that inhibit certain key environmental priorities and are often tacked onto appropriations measures. These riders have historically defunded the listing of individual species (like the greater sage grouse) under the Endangered Species Act, prevented the use of Clean Air Act permitting tools to control greenhouse gas emissions from factory farms, and are often dropped into these bills with little in the way of engagement or committee process. These riders should remain in the appropriators’ dustbin as their work continues.
What’s more, the House subjected the minibus to a robust amendatory process as it was considered on the floor, which resulted in the adoption of a number of amendments that NRDC strongly supported. These include:
- An offering by Representative Jimmy Panetta (CA-20) that allocates funding to provide grants for states, tribes, and federal land management agencies to carry out pollinator-friendly practices on roadsides and highway rights-of-way, as authorized under section 11528 of the Infrastructure Investment and Jobs Act (23 U.S.C. § 332).
- An amendment by Representative Doris Matsui (CA-06) that increases funding at the Department of Energy's Office of Energy Efficiency & Renewable Energy (EERE) for three vital programs that reduce pollution and greenhouse gas emissions from our nation’s transportation sector: the Vehicle Technologies Office; the “SuperTruck III” initiative; and the Clean Cities program.
- A provision by Representative Deborah Ross (NC-02) that prohibits the use of funds to enforce the withdrawal of certain areas of the outer continental shelf from offshore wind leasing activities off the coasts of Florida, Georgia, North Carolina, and South Carolina.
In short, the House minibus package represented a significant win for the environment, of which the House appropriators should rightly be proud. Still, there were several aspects of the package that NRDC would mark for improvement moving forward, notably:
- Its nuclear power–related provisions: (1) funding the development of High-Assay Low-Enriched Uranium (HALEU) reactors, which require fuels that are less stable and are easier to weaponize than low-enriched uranium; and (2) calling upon the Nuclear Regulatory Commission to develop a plan for the continued operation of the divisive Diablo Canyon nuclear power plant in California. As NRDC has strenuously argued, if substantive nuclear policy provisions are going to be included in appropriations bills, the appropriators should also take steps to ensure that the deadly waste resultant from these policies is dealt with equitably. To this end, the least they can do is to ensure that the issue is properly studied so that communities are not involuntarily saddled with radioactive pollutants, and the inclusion of the Nuclear Waste Task Force Act of Representative Mike Levin (CA-49) and Senator Ed Markey (MA) would achieve this end. It should be included in whatever appropriations legislation is ultimately enacted into law.
- Report language that unnecessarily calls into question recent commonsense EPA regulations under the American Innovation and Manufacturing (AIM) Act that will gradually end the use of environmentally harmful, single-use disposable refrigerant cylinders. Disposable cylinders are ubiquitous in the United States today but are not a solution of the future. They are frequently and effectively used in the illegal trade of hydrofluorocarbons (HFCs) worldwide; they result in avoidable, environmentally harmful emissions of HFCs during use and disposal; and scrapping them increases the solid waste footprint of meeting our economy’s heating and cooling needs. Under the AIM Act, EPA promulgated a phased-in prohibition on disposable cylinders over the next five years through the appropriate notice-and-comment regulatory process. Seemingly in response to this action, this report language appeared, calling upon EPA to “study alternatives to refillable cylinders” to see if there are technologies that can be added to disposable cylinders to make them less harmful. EPA’s ability to efficiently implement and enforce the AIM Act should remain unencumbered by such eleventh-hour inquiries.
- The absence of express support for the Department of Housing and Urban Development’s Green and Resilient Retrofit Program, an initiative that would provide funding to the owners of multifamily-assisted properties to rehabilitate them to be more energy efficient, healthier, and more resilient to extreme weather events. This is an eminently worthy cause that deserves unequivocal backing from Congress.
Even with these caveats, however, the bills that have passed the House thus far have largely been environmental wins. Of course, six bills remain for the House to act upon—including a State, Foreign Operations, and Related Programs bill that has serious ground to cover to make up for a woeful shortfall in international climate funding last fiscal year—and NRDC stands ready to help the House achieve that end.
This year—in the Senate
The Senate appropriators, faced with evenly split subcommittees and the requirement of a 60-vote majority to embark on debate of general appropriations bills on the Senate floor, exist in a different political reality from their counterparts in the House. Absent an agreement on basic parameters for their work—such as top-line numbers, about which the Appropriations Committee’s minority apparently have been unwilling to negotiate—there is no real avenue for the consideration of standard appropriations bills in committee or on the floor of a 50-50 Senate. Still, it is important that the Senate appropriators get their ideas out into the world in preparation for the negotiation of a final funding package later this year.
In July, they fulfilled this responsibility admirably, publicly releasing text for all 12 of their general appropriations bills (and their associated reports, styled as “explanatory statements”), replete with a series of important environmental successes. Here are a few that might not make it into news coverage but are important to note.
- Encouraging funding levels for:
- The Wildlife Services program in the Department of Agriculture’s Animal and Plant Health Inspection Service to implement nonlethal strategies to reduce human-predator conflicts;
- NOAA’s North Atlantic right whale conservation efforts;
- Implementation of NOAA’s Seafood Import Monitoring Program;
- the Centers for Disease Control and Prevention’s Climate and Health Program; and
- the Department of Energy’s Weatherization Readiness Fund, which is geared toward helping those in need repair structural issues and prepare homes for weatherization assistance.
- The strong support for international climate finance in the Senate’s State, Foreign Operations, and Related Programs bill. It keeps alive a pathway to meet President Joe Biden’s pledge of $11.4 billion per year in international climate finance by 2024. The U.N. Climate Change Conference in Glasgow (COP26) stressed the urgent need for increased adaptation finance, and the funding levels proposed by the Senate would result in a fivefold increase in U.S. adaptation finance compared to fiscal year 2022, reaching 40 percent of U.S.-appropriated international climate finance. Furthermore:
- Multilateral accounts are all funded at the levels requested by the president. The Senate bill supports $1.6 billion for the Green Climate Fund (GCF). If this funding level holds, and if the administration is able to provide at least $400 million for the GCF from fiscal year 2022 allocations, it would mean the United States can finally deliver on the remainder of the $3 billion pledge made in 2014 ahead of the fund’s second replenishment in the fall of 2023. In addition, $100 million is allocated for contributions to the multilateral Adaptation Fund and Least Developed Countries Fund, which are particular priorities for developing countries and will help build confidence ahead of COP27.
- While bilateral accounts are funded lower than the president’s requested level, the Senate has proposed increases on the House levels offered for the clean energy and adaptation accounts, which are a welcome improvement.
- Report language that encourages the Department of Energy to update the Weatherization Assistance Program’s calculation of its Savings to Investment Ratio to reflect total whole home savings and to account for the total value measures that keep homes prepared for future climate conditions.
That said, there were some provisions in the Senate appropriations package that fell on the negative side of the environmental ledger. Those included:
- The funding levels for water infrastructure in the Senate’s Interior, Environment, and Related Agencies bill. The State Revolving Loan Funds and combined sewer overflow grant program are well below the levels authorized by the bipartisan infrastructure law last year. Indeed, many of the water programs authorized by that law received no funding at all.
- Section 310 of the Senate’s Energy and Water Development bill (S. 4660), which contradicts the Nuclear Waste Policy Act to enable a pilot program that would license, construct, and operate federal consolidated storage facilities to provide interim storage for spent nuclear fuel and high-level radioactive waste. Moving forward with the creation of interim storage facilities on an ad hoc basis—before a broader system is in place to obtain the consent of host states, units of local government, and affected Indigenous tribes—is a mistake, and this is especially so given that the two states presently targeted for interim facilities have expressly not consented and have lodged ferocious objections. Section 310, along with any report language similarly encouraging the creation of interim storage facilities, should be scrapped.
That said, though there are always areas for improvement, the Senate has put forward a fantastic opening bid as it heads into the difficult government funding negotiations that surely will come this fall and winter. We encourage the Senate appropriators to continue their good work to ensure that the government is adequately funded with the above environmental interests in mind, rather than languishing under a continuing resolution, for fiscal year 2023.
Of course, notwithstanding all the good news set out above, the process to fund the government for the upcoming fiscal year is far from complete! Now, using the above-described measures as jumping-off points, the hard work begins to cobble together a funding package that can: (1) pass the House; (2) similarly make its way through the Senate (while attaining the support of 60 senators); and (3) be signed into law by the president.
Ticking off all of the above boxes is hard, and necessarily requires compromise. During the difficult dealmaking that undoubtedly lies ahead, we at NRDC strongly urge the appropriators in both houses to stick to the following principles:
- Keep out environmentally harmful legacy riders of the type described above.
- Take into account the input regarding the appropriations bills already in existence by the environmental community, such as the suggestions set out in this blog.
- Fight to maintain the highest responsible “top lines” for these measures, as the important work done by the federal government to help save our planet has been sorely underfunded for too long.
- Most importantly, get the job done. The worst outcome (short of a disastrous shutdown) is a government operating under the obsolete assumptions of, and starvation-level funding that would be contained within, a continuing resolution.
By adhering to the above principles, Congress can successfully fulfill one of its essential constitutional responsibilities—funding our federal government—and help us to make the world a better, safer, and greener place.
This blog was updated with new information and links on September 6, 2022.