From the Hill – Fall 2008

Congress adjourned for its August recess having made little progress on appropriations for fiscal year (FY) 2009, which begins October 1. None of the 12 appropriations bills had been passed by both the House and Senate, although the House passed one of them. With the November elections looming and Congress in conflict with the White House over spending levels, most spending decisions are unlikely until at least November.

In action so far, congressional appropriators have endorsed large increases for the three physical sciences agencies (the National Science Foundation (NSF), National Institute of Science and Technology (NIST), and the Department of Energy (DOE) Office of Science) in the president’s American Competitiveness Initiative, human spacecraft development, biomedical research in the National Institutes of Health (NIH), as well as other parts of the federal R&D portfolio.

R&D was given a boost in June when Congress passed and the president signed a supplemental spending bill. The bill contained $338 million in FY 2008 spending for science programs—$150 million for NIH and $62.5 million each for NSF, the DOE Office of Science, and the National Aeronautics and Space Administration (NASA). The money would, among other things, restore funding for the Fermi National Accelerator Lab, which was forced to lay off employees because of cuts in the FY 2008 budget.

More recently, a second FY 2008 supplemental appropriations bill was proposed by Senate Appropriations Committee chair Robert Byrd (D-WV). The bill includes $500 million for NIH, $250 million for NASA, and $150 million for the DOE Office of Science.

In addition, Sen. Tom Harkin (D-IA) and Arlen Specter (R-PA) introduced a bill that would give NIH $5.2 billion in supplemental funding in 2008 to fully restore the agency’s budget to its 2003 funding level after adjusting for biomedical research inflation. But the prospects for a vote on a bill are highly uncertain.

Consumer product safety changes approved

Despite a packed legislative calendar and industry opposition, the House and Senate passed the Consumer Product Safety Modernization Act just before the August recess. The bill, signed into law on August 14, updates product standards, establishes new toy-safety regulations, and provides more enforcement tools for the Consumer Product Safety Commission.

As the bill went to conference, the most contentious provision was a ban on phthalates in children’s toys. Phthalates are a class of chemicals often used as softening agents in plastics and are commonly used in consumer products, especially toys. Although research has attributed certain deleterious health effects to exposure to these chemicals, questions remain about the levels of exposure and dosage necessary to pose health risks. The U.S. Chamber of Commerce and many industry groups had argued that the ban was not based on science and that it would lead only to increased litigation, but many consumer groups disagreed. At a House hearing in June, lawmakers sparred over the level of evidence necessary to warrant regulation.

In the end, House and Senate conferees agreed to permanently ban toys containing more than 0.1% of any of three specified phthalates, effectively prohibiting use of the plasticizing chemicals in toys. Three other types of phthalates will be banned until a safety review is conducted.

Higher Education Act reauthorized

After six years of work and stalemate, Congress in late July finally reauthorized the Higher Education Opportunity Act, a cornerstone piece of legislation with the primary function of authorizing spending for a variety of higher education financial aid programs. President Bush signed the bill on August 14.

Although the bill contains provisions supported by the education community, including financial aid for low-income students, it also includes a number of new reporting requirements that higher education institutions opposed because they would increase administrative costs.

The bill will increase Pell grants to low-income students to $8,000 a year (up from $5,800) by 2014 and will allow part-time students to use the grants for a full calendar year. It includes a program that forgives up to $10,000 in loans for students enrolling in high-needs areas. Eligible fields include nursing, child welfare, applied science, technology, engineering, and mathematics.

Some of the new reporting requirements that higher-education groups expressed concerns about involve rising tuition rates. According to the bill, universities and colleges that increase tuition or fees by a significant percentage must submit a report to the Department of Education explaining the rationale behind the increase and any measures it plans to implement to reduce costs.

Another example of a new reporting requirement addresses peer-to-peer file sharing—of music, for example. Each institution must certify to the department that it has created plans for combating illegal file sharing, describe if it plans to implement technologies to deter such practices, and to the extent practicable offer students alternative legal mechanisms for sharing files.

One aspect of the reauthorization that the higher-education community was pleased to see—but is not embraced by the Bush administration—is language that prohibits the Department of Education from setting standards for accreditation, a task normally done by independent accrediting agencies. The issue of the federal government’s role in accreditation initially arose with the release of a report by the department’s Commission on the Future of Higher Education. After the commission questioned the quality of university education, the department floated the idea of inserting control over the accreditation process as a means to impose change and increase accountability.

Currently, the accreditation process is a peer-review system managed primarily through independent, private organizations. Needless to say, neither universities nor the independent accreditation groups embraced the notion of the government determining standards for higher education.

In a statement issued in February, the White House expressed opposition to language that “would restrict the Department of Education’s authority to regulate on accreditation.”

EPA delays decision on regulating greenhouse gases

The Environmental Protection Agency (EPA) has effectively delayed until the next administration any decision on whether greenhouse gases must be regulated under the authority of the Clean Air Act.

Although the Bush administration has long opposed regulating greenhouse gases under the act, in April 2007 the Supreme Court ordered EPA to determine whether or not carbon dioxide (CO₂) emissions from automobiles endanger public health and welfare and therefore must be regulated under the act.

On July 11, under pressure from Senate Environment and Public Works Committee Chair Barbara Boxer (DCA) and House Oversight and Government Reform Committee Chairman Henry Waxman (D-CA), the EPA released an Advance Notice of Proposed Rulemaking (ANPR) on regulating greenhouse gases under the Clean Air Act. The document outlines how such regulation could work, but does not find that CO₂ emissions endanger public health. The ANPR merely requests comments on the proposed regulation and how best to approach the matter.

An introductory statement to the ANPR by EPA Administrator Stephen Johnson argues that the Clean Air Act is not an appropriate legal framework under which to attempt such regulation. This position was repeated in additional letters from the director of the Office of Management and Budget’s Office of Information and Regulatory Affairs and the Secretaries of the Departments of Agriculture, Commerce, Energy, and Transportation. The letters argue that the regulations would cause unnecessary damage to the economy. The ANPR was published in the Federal Register on July 30. The public will have until November 28 to make comments.

On July 22, Boxer held a hearing with former EPA associate deputy administrator Jason Burnett as its principle witness, in which she sought more background information regarding reports that the Bush administration had planned to issue an “endangerment finding,” but retracted it in favor of an ANPR. Burnett, who resigned from the agency in June, testified that the position of policymakers and scientists at the EPA and across the administration was that the public was endangered by greenhouse gas emissions and that such a determination was the only suitable response to the Supreme Court’s order.

The decision to not release the endangerment finding and instead prepare an ANPR was, according to a July 18 interview that Burnett had with the House Select Committee on Energy Independence and Global Warming, made by the White House. Burnett said that the administration’s objective in choosing the ANPR over the endangerment finding was to delay action on the Supreme Court’s mandate until the next administration.

Yucca Mountain’s future examined

In the wake of the Department of Energy’s (DOE’s) submittal in June 2008 of an 8,600-page application for the licensing of the Yucca Mountain nuclear waste repository, the House Energy and Commerce Committee’s Energy and Air Quality Subcommittee held a July 15 hearing to assess the program’s future. In 2002, Congress designated the Yucca Mountain site in south-central Nevada as the permanent repository for spent nuclear fuel and radioactive waste, but the program has been fraught with bureaucratic delays, increasing costs, and considerable opposition from Congress and citizens alike.

The witnesses at the hearing, however, were optimistic about the program’s future. Edward Sproat, director of DOE’s Office of Civilian Radioactive Waste Management, estimated that after the Nuclear Regulatory Commission formally licenses the facility, construction could begin in 2013 and open as early as 2020. However, Sproat said, these predictions are contingent on funding being made available from the Nuclear Waste Fund, which contains $21 billion from industry fees on nuclear power. DOE cannot access these funds without congressional approval, even though the 1982 Nuclear Waste Policy Act requires that they be used for construction of a geologic repository.

Witnesses commended DOE’s progress in completing the license application, but they also identified operational and technical obstacles that could further delay the project. For example, B. John Garrick, chairman of U.S. Nuclear Waste Technical Review Board, noted design issues with canisters being developed to transport and store the waste. Currently, he said, the technology for these canisters does not exist, nor does adequate technology for drip shields, which would be necessary to protect the canisters once inside the repository.

Safety concerns were raised by Rep. Shelley Berkley (D-NV), whose district includes the Yucca Mountain site. Berkley, acting as a witness, said that Nevada residents have long opposed the program because of unresolved safety issues, including lack of radiation standards for the region, the site’s geologic instability, waste transportation risks, and inadequate storage technologies. She also criticized the program’s $90-billion lifecycle cost, saying that onsite waste storage would be a cheaper and safer alternative.

Berkley’s concerns were echoed by Democrats on the subcommittee, including Rep. Jim Matheson (D-UT), who proposed the Interim Storage Bill (H.R. 4062) as an alternative plan. The bill would mandate federal responsibility for onsite waste storage rather than the current practice in which owners of nuclear plants are responsible for storing their own waste onsite.

Subcommittee members also debated the Yucca project in the context of the energy crisis and the role of nuclear power. Rep John Shadegg (R-AZ), frustrated with the project’s delays and the 2020 opening timeframe, said that nuclear energy would be essential for meeting the U.S. energy needs and called for the project to proceed as quickly as possible, whatever the cost. Rep. Fred Upton (R-MI) spoke of a U.S. “nuclear renaissance” and argued that expanding Yucca’s legal storage capacity could be the final piece of the nuclear energy puzzle. Matheson challenged these views, saying that although nuclear power could be an energy solution, its future does not depend solely on the Nevada repository. He pointed out that DOE has yet to evaluate the cost effectiveness of an onsite waste storage approach.

“From the Hill” is prepared by the Center for Science, Technology, and Congress at the American Association for the Advancement of Science (www.aaas.org/spp) in Washington, D.C., and is based on articles from the center’s bulletin Science & Technology in Congress.