February 2023 Vol. 78 No. 2


Inside Infrastructure: After Surprising Election, Chaotic Start, 118th Congress Begins Its Work

Eben Wyman |Wyman Associates 

EDITOR’S NOTE: Eben Wyman is a veteran advocate for key underground utility and pipeline associations. He can be contacted at eben@wymanassociates.net. 

(UI) — In what turned out to be a very unpredictable 2022 midterm election, Democrats managed to avoid the dreaded “wave” that is so common, where the party of the sitting president is often subject to significant losses in both chambers of Congress.

However, last year’s midterms resulted in Republicans winning control of the House while, surprising to many, Democrats gained one seat in the Senate, expanding their majority from 50–50 (with Vice President Kamala Harris serving as the tie breaker) to 51–49. 

The first week of the 118th Congress was a tough one for the new GOP majority in the House, as Rep. Kevin McCarthy (R-Calif.) spent several days and a lot of political capital over 15 ballots needed to secure his confirmation as Speaker of the House. After what was considered an embarrassingly public display of political chaos, the 118th Congress began its work in earnest the second week of January. 

A few things were clear. Republican control will slow down consideration of some overzealous climate proposals, at least in the House of Representatives. Democratic control of the Senate will allow for harmful energy proposals to be considered and advanced. The onslaught of regulatory proposals and executive actions from the Biden Administration should not be expected to go away anytime soon. 

With the GOP controlling the House agenda, President Biden has made no secret about his plans to achieve his climate objectives through executive action and agency rulemaking, rather than through traditional legislation. 

Congressional oversight, however, will mean increased scrutiny of not only new initiatives coming out of the White House, but also implementation of the bipartisan Infrastructure Investment and Jobs Act (IIJA) and Inflation Reduction Act (IRA). These included many overzealous climate provisions and related tax increases, as well as expansion of beneficial tax incentives related to generation of future energy sources, including carbon capture and hydrogen projects. 

In one of the first Biden Administration post-election actions to reflect its intent to stay the course on regulatory actions to combat climate change, the Environmental Protection Agency (EPA) issued a supplemental proposal seeking expanded scope of its long-anticipated rule to limit methane emissions. Despite EPA’s already significant plans, the EPA also included a new methane tax subject to emissions that will take effect in January 2024. This year, House Republicans are sure to try to prevent the methane tax from being implemented, to the extent possible. 

Renewables need gas, pipeline infrastructure 

It has become clear to thoughtful stakeholders in the energy industry that America simply will not achieve its lofty clean energy goals without the help of natural gas, and the increasing hostility toward it, as a sustainable source of American energy, is largely misplaced. In addition, significant expansion of our gas pipeline network will be needed if we are serious about moving toward alternatives to conventional fossil fuels for power generation. 

Hydrogen is a great example. While considered a promising fuel source, transporting it to facilities such as power plants, industrial sites and fuel distribution hubs, will require an extensive buildout of hydrogen pipeline systems. Carbon capture, use and storage (CCUS) efforts are also considered critical to America’s energy future, but new infrastructure is needed to transport captured CO₂. Pipeline transportation brings a track record of success and continues to be the safest method of transporting American energy, including CO₂ and hydrogen. 

Nearly $20 billion for CCUS and hydrogen energy projects was provided in the IIJA, and tax incentives for both were included in the IRA last year. In the energy sector, forward-thinking construction associations are working to make sure that demonstration projects and other efforts to promote and advance the role of pipeline transportation for hydrogen and CO₂ are a top priority, as implementation of these laws continues. 

Renewable natural gas gains traction 

Renewable natural gas (RNG), also known as biogas, is collected from waste of agricultural facilities, food waste, wastewater treatment plants and other sources that emit surface-level methane during the decomposition process. Processes and technologies exist that can capture methane from waste streams and prevent it from being released into the atmosphere. Federal lawmakers should advance legislation this year that opens the door to opportunities for RNG. 

RNG can be very helpful to maintain a diverse range of energy sources needed to address climate change. Because it is storable, dispatchable and can be combined with other fuel, heat, and power generation resources, RNG should be considered a complement to other renewable energy sources and a legitimate tool in America’s energy tool box. 

Pipeline safety back in play 

Although it may seem early, this year’s energy debate will include reauthorization of the Pipeline and Hazardous Materials Safety Administration (PHMSA) and the nation’s pipeline safety program in general. Passed in 2020, the last reauthorization bill focused on gas distribution systems. As this year’s pipeline safety measure is developed, pipeline industry organizations are putting together their agendas for consideration on Capitol Hill. 

Damage prevention to underground pipelines will likely be a part of the next pipeline safety debate. Ensuring a safe worksite has always been fundamental to pipeline contractors, and damage prevention continues to be front and center to achieving that goal. Many contractors were pleased to see that the last PIPES Act included language that would require operators of gas distribution pipelines to identify and manage traceable, reliable, and complete records, including maps and other drawings. 

Geographic information systems (GIS) are widely considered the most effective way to identify and document a range of data about the underground infrastructure in a given area. Some stakeholders are looking at ways to incentive use of GIS mapping to bolster pipeline safety. GIS can create, manage, visualize, analyze and map different layers of data related to underground facilities. 

When it comes to federal policy, many damage prevention issues addressed in pipeline safety legislation impact other underground construction markets. While not regulated by PHMSA or other federal agencies, state and local damage prevention requirements that emulate PHMSA policy can affect construction operations related to broadband deployment, electric grid improvements, water and sewer upgrades, etc. 

In other words, if GIS mapping is increasingly adopted within the pipeline industry, its benefits are likely to spread to other underground utility markets. 

It is clear that GIS mapping is increasingly utilized to ensure accurate locating and marking of underground facilities. Some construction groups are discussing the need for increased use of this critical tool in the next pipeline safety bill. More on GIS and pipeline safety later this year. 

Permitting reform 

Comprehensive reforms to the permitting process for energy projects remains a priority for any entity interested in initiating projects to improve America’s dilapidated underground infrastructure. This has become a bipartisan issue after a $1.2-trillion-dollar infrastructure bill was enacted and getting projects off the ground was in the best interest of the White House and every lawmaker who voted for the IIJA. 

The irony was not lost to many, as the same support for expediting permit approvals was coming from the very people who spent decades ensuring the procedural hurdles that have delayed critical infrastructure projects, remain. 

That said, progress has been made, and permit reform may end up being one of the few opportunities for Democrats and Republicans to find a compromise. Energy policy is expected to be considered in early 2023, which may provide for bipartisan negotiations on ways to expedite the prolonged and outdated permit process for energy and other infrastructure projects. 

As American businesses face increasing pressure to pursue environmental, social and governance (ESG) programs, GOP leaders are likely to pursue actions that would limit the impact of ESG frameworks intended to influence business decisions. ESG represents a more stakeholder-focused approach to doing business, setting non-financial principles that investors use to measure a company’s sustainability. 

Environmental factors look at the conservation of the natural environment; social factors examine how a company treats people both inside and outside the company; and governance factors consider how a company is run. 

Key Republicans proposed previous legislation intended to roll back the influence of ESG obligations in financial decision making, and these proposals are sure to continue in the 118th Congress. However, the GOP should not expect proponents in Congress to concede any progress they’ve made in encouraging ESG considerations within the American business community. 

Showing up 

The 118th Congress will be a busy one. Capitol Hill is finally opening up, and “in-person” visits are already being held after almost three years of zoom meetings, virtual conferences and other interpersonal restrictions stemming from the COVID pandemic, and security concerns in the wake of Jan. 6, 2021 events. 

The days of “stay-home” advocacy enjoyed by many are thankfully over – it’s time to show up and make the case for the underground construction industry. 

Opening the doors to the public means opening the door to public influence, and industries that don’t show up will end up getting what the government gives them. Those in the underground construction industry need to stay engaged as this new Congress delves into these and other impactful issues.

WYMAN ASSOCIATES offers strategic consulting with its clients and direct advocacy before the United States Congress and executive branch agencies. Working with several allies in Washington and around the country, provides clients a constant voice in the national debate. 

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