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DC gridlock bleeding into historically bipartisan pipeline safety bill

Democrats and Republicans have substantial differences to resolve ahead of a looming deadline to reauthorize the nation's pipeline safety agency, stoking concerns that Washington rancor is creeping into what has historically been a relatively bipartisan process.

Congress will return from its August recess with just three weeks until funding for the U.S. Pipeline and Hazardous Materials Safety Administration's program to oversee the nation's roughly 3 million miles of pipelines expires. But a handful of proposed reforms threatens to create an impasse, and some lawmakers could draw out the process to get a better deal on issues dear to their base.

House Democrats and civil society groups have proposed reforms they believe would allow the Pipeline and Hazardous Materials Safety Administration, or PHMSA, to implement more stringent regulations and impose harsher penalties on pipeline operators. Republicans and industry groups are fighting efforts to allow citizens to sue PHMSA and attempts to repeal a cost-benefit analysis process adopted in the late 1990s during a GOP push to rein in regulation.

SNL Image

House Democrats' reauthorization bill "removes the duplicative and rigged cost-benefit analysis from current law while still ensuring PHMSA rules are subject to the same economic analysis that every other major rule receives," Rep. Frank Pallone, D-N.J., said during a June 26 markup.
Source: Associated Press

PHMSA observers widely expect Congress to miss its Sept. 30 deadline to reauthorize PHMSA's funding, although they note that has happened before and Congress has several options to keep the agency functioning. But signs the process is getting bogged down in wider Washington, D.C., partisanship are nevertheless troubling, according to some.

Among those concerned is Cynthia Quarterman, a senior fellow at the Atlantic Council's Global Energy Center who led PHMSA between 2009 and 2014.

"My view? It's just Washington today. I think everything is much more contentious than it should be," Quarterman said in an interview.

PHMSA reathorization remains a relatively cooperative process by D.C. standards, but the tension in the 2019 proceedings reflects the growing public interest in pipelines during a decade-long boom in U.S. gas production, according to Keith Coyle, an energy attorney at Babst Calland who previously served as a PHMSA legal adviser and legislative counsel to Rep. Kevin Brady, R-Texas.

"Those sorts of pressures at the ground level — at the grassroots — have started to push their way up to Washington, and I do think it has become a little more contentious over time," he said.

Simmering issues reach a boil in the House

The 2019 reauthorization got off to a rocky start when Democrats in control of the House Energy and Commerce Committee introduced a reauthorization bill without first reaching out to minority members for feedback.

House Republicans criticized Democrats for freezing them out, and during a subcommittee markup, the majority conceded on several proposals. But a handful of contentious reforms remained in the bill introduced by Rep. Bobby Rush, D-Ill.

One would overturn a federal statute that requires the Secretary of Transportation to determine that the benefits of a proposed PHMSA safety standard justify its costs before the agency issues the standard. Liberals have long complained the statute limits PHMSA's rulemaking ability and allows industry representatives on the agency's advisory committee to soften regulations. Conservatives and pipe trade groups claim the statue lets stakeholders share their expertise and imposes discipline on regulators.

A 1993 executive order would still require PHMSA to complete a cost-benefit analysis for new rules, so the change would not make much difference under an administration like the current one, which is pursuing an ambitious deregulation agenda, according to Carl Weimer, executive director of the Pipeline Safety Trust, which advocates for robust pipe safety rules. But the reform could empower an administration more likely to tack on regulations, he said.

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Federal courts threw out San Francisco's attempt to sue PHMSA for its alleged failure to enforce safety statutes in California prior to the fatal 2010 San Bruno gas explosion. A Democratic proposal would allow these so-called Mandamus suits.
Source: Associated Press

Democrats also want to establish a so-called Mandamus clause that would allow citizens to sue PHMSA in order to compel the agency to do its duty. The push arose from San Francisco's failed attempt to sue PHMSA in connection with the 2010 San Bruno gas explosion. In that instance, federal judges ruled the Pipeline Safety Act does not allow citizens to bring Mandamus-style suits against the agency.

The Rush bill would also lift the cap on civil penalties that PHMSA can collect for safety rule violations. It would additionally make it easier to imprison pipeline executives and workers by changing the language in the federal code to apply the criminal standard to anyone who "knowingly and recklessly" — rather than "knowingly and willfully" — violates safety standards.

These issues have been simmering for years, which partly explains why they are now boiling over, Weimer said. However, the proposals also strike at ideological differences over the proper scope of regulation and highlight how the parties have allied themselves with groups that are often in conflict, he said.

"Republicans seem to trust that industry and private enterprise will do the right thing ... and the Democrats don't have that same level of trust," he said. "So the Republicans are listening to the industry side, and the Democrats are listening to people like me."

Senate advances bipartisan bill but risks remain

The Senate Commerce, Science and Transportation Committee advanced a bipartisan reauthorization bill on Aug. 1 after hammering out most of the details behind closed doors. That bill must still be resolved with the House version, and some PHMSA observers caution against expecting a glide path to reauthorization in the upper chamber.

"I've heard some people say, 'Well who cares if we reauthorize at all? Let's wait for a new administration.' Because if they don't get reauthorized, it's not like they shut down," Weimer said.

The Senate's usual path to passing reauthorization bills provides an opportunity for lawmakers to extract concessions. This so-called hotline process allows legislation to advance without debate on the Senate floor, but it requires unanimous consent of the chamber's 100 members. That means a single lawmaker can hold up the process by insisting on inclusion of his or her priority.

Sen. Tom Udall, D-N.M., is retiring next year and could be emboldened to fight for his amendment to regulate planet-warming methane leaks, which was not included in the Senate reauthorization bill, prompting him to vote against its advancement. The hotline process would also give Democrats an opening to push the cost-benefit analysis and Mandamus provisions.

Babst Calland's Coyle does not doubt Democrats could deploy the tactic in light of deadly 2018 gas explosions and fires in Massachusetts' Merrimack Valley and upcoming elections.

"I think that Democrats think this issue works for them, and I wouldn't be surprised if you got some people who tried to drag it out," he said.

In a sign lawmakers are trying to avoid gridlock, Democrats on the House Transportation and Infrastructure committee are taking a bipartisan approach and drafting a bill with input from Republicans, according to two Capitol Hill staffers from opposite sides of the aisle who are familiar with the negotiations.

Democrats on the committee are not actively seeking a Mandamus clause, but they are still pursuing the same contentious changes to cost-benefit analysis, civil penalties and the criminal standard their Energy and Commerce committee colleagues are pushing, one of the staffers said. However, if Democrats and Republicans cannot reach a compromise on their priorities, it could simply mean they put forward a skinnier bill, as was the case in the Senate committee in August, according to the source.

For some PHMSA observers, that would be a sign the bipartisan process still works.

"They've got a Democratic House and a Republican Senate, and so I think they'll come together and produce a bill that probably nobody is happy with, which many define as a success," said Susan Olenchuk, a partner at Van Ness Feldman LLP. "Nobody gets everything they want."