AGC's Construction Legislative Week in Review - 10/15/2015 (Plain Text Version)
Court Issues Nationwide Stay of EPA/Corps Regulation Redrawing Clean Water Act Jurisdiction
The United States Court of Appeals for the Sixth Circuit has issued a nationwide stay of the new federal regulation redefining “waters of the U.S.” (WOTUS) for the purposes of the Clean Water Act. The U.S. Environmental Protection Agency and U.S. Army Corps of Engineers finalized the new regulation in an effort to clarify the scope of the statute’s requirements. The questions that lie at the heart of this and several other cases is whether the federal agencies went further than the Clean Water Act statute permits and whether they followed the appropriate procedures. The court’s order blocks the implementation of the new rule nationwide and preserves the status quo until the court can decide whether it has jurisdiction over the case. In an odd twist, the 18 states that filed the lawsuit were the ones arguing that the case actually belongs in a lower court.
The court exercised its discretion to freeze the status quo for several reasons. The “sheer breadth” of the new rule and its “ripple effects” on the 18 states were certainly among them. The uncertainty that this and other pending cases have created was another. However, the most interesting reason was the court’s determination that the petitioners had “demonstrated a substantial possibility of success on the merits of their claims.” The court found it “far from clear” that the new regulation is “harmonious” with the Supreme Court’s prior rulings on the statute. The court also found that the federal agencies had “not persuasively rebutted” the state’s claims that the agencies had improperly failed (1) to give the public proper notice that they might write certain “distance limitations” in the new rule or (2) to identify scientific support for the limitations they chose.
One judge did dissent, but he did not, in the process, comment on the merits of the case. Rather, he insisted that it was inappropriate for the court to exercise its discretion to issue a stay before the court had determined that it has the power to decide its merits.
This ruling comes on the heels of a lower court ruling that also cast doubt on new regulation. In late August, the U.S. District Court for the District of North Dakota issued a preliminary injunction against the implementation of the new rule in the 13 states that had requested the injunction. "The risk of irreparable harm to the States is both imminent and likely," he wrote, adding that, "on the whole, the greater public interest favors issuance of the preliminary injunction."
AGC Needs Your Help Focusing on California Members on Hours of Service Relief
Visit AGC’s Action Center at www.agc.org/TakeAction, Now!
One of the numerous issues AGC is working on in the highway & transit bill is to provide some relief from hours of service restrictions on construction industry drivers. For the past 20 years, current law has provided a limited construction industry exemption which has had no negative impact on driver safety. The Federal Motor Carrier Safety Administration recently provided an additional similar exemption for certain construction material deliveries. AGC is seeking to modernize the existing exemption to meet the challenges of construction material and equipment delivery.
The House Transportation and Infrastructure Committee is about to mark up their highway & transit bill. Congressmen Ribble (R-Wisc.) and Hanna (R-N.Y.) are working on an amendment to the bill to expand the construction industry exemption by extending the distance drivers can drive and still be covered by the exemption. However, in order to get this amendment adopted, it needs bipartisan support. We need to build Democratic support for the amendment. If your representative is a Democrat on the House Transportation & Infrastructure Committee (a list can be found here), please contact them and ask them to support the Ribble/Hanna amendment.
House Transportation & Infrastructure Committee Schedules Mark Up
House Transportation and Infrastructure Chairman Bill Shuster (R-Pa.) announced Wednesday that the committee is scheduled to take up transportation legislation on Thursday, Oct. 22. Details on the bill will start to be released tomorrow to allow time for committee members to review the text before the markup begins next week. The current extension of highway and transit programs ends Oct. 29 and it is expected that another short-term extension will be necessary to allow time for the House to complete action and conference with the Senate to negotiate the final bill. The Senate passed its version of a multi-year highway and transit bill, called the DRIVE Act, back in July. That legislation authorizes six years of funding with modest annual increases but only provides enough additional revenue to cover three years of the shortfall. The revenue comes from a transfer of general fund revenue that is offset by a variety of tax code tweaks and other revenue enhancers. Some of these pay-fors are controversial.
AGC sent a letter to the House Ways and Means Committee strongly encouraging that they consider a combination of increasing existing user fees and dedicating new fees to the Highway Trust Fund as options to fill the six-year shortfall and create a basis for long-term trust fund solvency. AGC again provided a chartwhich identifies multiple sources of revenue tied to transportation that could be used to fund the highway and transit programs long term. AGC has provided this list of options on numerous previous occasions.
Who Won the Democratic Debate? Depends Who You Ask.
Five Democratic candidates squared off Tuesday evening in their party’s first presidential debate. Among the issues discussed were the economy and environment, as well as college affordability, foreign policy, guns, income inequality, and race.
According to virtually all media reports, former Secretary of State Hillary Clinton easily dispatched her competition – former Governor Lincoln Chafee (D-R.I.), former Governor Martin O’Malley (D-Md.), U.S. Senator Bernie Sanders (I/D-Vt.), and former U.S. Senator Jim Webb (D-Va.) – and delivered what many have described as a knock-out performance. However, that assessment by the media may be at odds with the rank-and-file members in the Democratic Party. In a Fox News focus group of 28 Democrats from the swing state of Florida, the overwhelming majority believed the debate winner was Senator Sanders. Although half of the group began the debate supporting Ms. Clinton, only a handful remained committed after its conclusion. Similar sentiments were shared by participants in CNN & Fusion focus groups.
Data from social media helped expose this difference as well. On various platforms, 43 percent of the chatter was about Mr. Sanders. On Twitter, he added 35,163 new followers during the debate, more than all of his challengers combined (23,219). He was also the most discussed candidate on Facebook. With the rank-and-file abuzz about a Sanders’ candidacy, it is easy to understand why he raised $1.3 million in the first four hours following the debate.
While all the candidates can breathe a sigh of relief that their first debate is over, they will only have one month to prepare for the next one. On to Iowa!
The upcoming debates include:
2015 AGC Highway Contractors Conference Session Highlight:
Transportation Debate: Maintain a Strong Federal Role in Transportation vs Devolve the Program to the States
Don’t miss this dynamic session where Michael Sargent with The Heritage Foundation and Shant Boyajian with the Senate Committee on Environment and Public Works debate what role the federal government should play in building our nation’s transportation infrastructure. Hear arguments for both maintaining a strong federal transportation program and eliminating the federal program and delegating that responsibility to the states.
AGC/CFMA Construction Financial Management Conference Session Highlight:
How to Retain, Maintain and Incentivize Key Employees in a Construction Environment
Construction companies face overwhelming and unique challenges. One of the most overlooked challenges for the industry relates to retaining key employees. This session will provide participants the opportunity to contrast/compare approaches taken by various construction companies to attract and retain key employees and the next leadership. Visit meetings.agc.org/agc_cfma for more information about this session and to register for the 19th Annual AGC/CFMA Construction Financial Management Conference, held Nov. 4-6, 2015 at Caesars Palace in Las Vegas.
This three-day conference offers programs and workshops designed specifically for financial professionals in the construction industry. The 32 interactive sessions will cover the latest industry issues and their financial implications.
Participants may earn up to 20 continuing professional education (CPE) credits for attending.