Rock Law

Brooke Wisdom

December 1, 2010

Expect the unexpected

Predictions for the election’s impact on infrastructure policy and safety law.

by Greg Louer

The 2010 election produced game-changing results for industries impacted by infrastructure policy and safety law. Washington, D.C. stands ready to embrace a new reality: in 2011, President Obama can no longer count on the Democratic Party’s majority to shepherd his agenda through the legislative process. After a lame duck session that will focus on taxes and jobs, but is unpredictable, Republicans will enjoy more than a 60-seat margin in the U.S. House and will likely elect Republican Leader John Boehner (Ohio-8) — the former Chairman of the House Education and Labor Committee — as the next Speaker of the House. On the Senate side, Republican Leader Mitch McConnell (R-Ky.) likely will be re-elected to lead a strengthened minority GOP conference, infused with at least six freshman members.

The lame duck session will permit the Democratic Congressional majority one last opportunity to advance its agenda before at least two years of a Republican-controlled House. For example, Senator Rockefeller (D-W.Va.) announced he will seek to pass his safety law amendments, S. 3671, including massive enforcement power and regulation increases for the mining and quarrying industries. While we believe the odds are against passage of the Rockefeller bill in the lame duck session — or Rep. George Miller’s (D-Calif.) companion bill (H.R. 5663) — vigilance and extensive industry opposition must continue as members and their staff are being educated regarding the legislation’s deficiencies.

Following the selection of each party’s leadership slate, the “steering committee” for each party selects the chairs and ranking members for key committee leadership positions. This process was expected to unfold after the Thanksgiving holiday and to produce new leaders for committees with jurisdiction over safety and health and infrastructure policy.

On the House side, Republican leaders were expected to select Rep. John Mica (Fla.-7) to lead the House Transportation and Infrastructure Committee. The veteran South Florida lawmaker currently serves as the committee’s ranking member and will likely depart from the infrastructure philosophy adopted by his predecessor, Rep. James Oberstar, an 18-term lawmaker who, surprisingly, failed to earn a nineteenth term. While Rep. Oberstar shares President Obama’s philosophy of investing heavily in infrastructure funding, reflected in his support for the American Recovery and Reinvestment Act of 2009 and the committee’s draft proposal to invest $500 billion to reauthorize surface transportation programs, Rep. Mica will likely take a more measured approach.

Rep. Mica will face the surface transportation reauthorization process with a new crop of freshman Republican members elected with a mandate to reduce the size of government, slash the deficit, and restrain federal spending. This political pressure reduces the probability that a $500 billion reauthorization product will see the light of day. To this end, legislators and prognosticators are already evaluating alternatives to the current “gas tax” funding structure for surface infrastructure projects. While consumers currently invest 18.4 cents per gallon of gasoline (24.4 cents for diesel) in the Highway Trust Fund (HTF) to pay for infrastructure projects, some advocate for replacing the system with an 8.4-percent and 10.6-percent tax, respectively. Yet any similar proposal must first convince Rep. Mica, who recently rejected calls for increasing gas-tax revenue by any means. Republican rank-and-file committee members are similarly reticent to embrace an increase in the gas-tax formula and will likely explore alternatives to ensure the long-term solvency of the HTF and the future needs of the nation’s infrastructure system.

As a “down payment” on the reauthorization process, President Obama called on Congress to pass a $50 billion surface transportation bill during a Labor Day address. However, the proposal received little attention before the midterm election and any prospect for immediate passage will require Democrat leaders to attach infrastructure funding to a “must pass” lame duck bill, such as a continuing resolution of FY 2010 appropriations that will keep the government running into the new Congress. In the wake of the returns from Nov. 2, however, Democrat leaders are less likely to debate partisan, contentious legislation that cannot win bipartisan support beyond the appropriations process. Thus, a $50 billion stand-alone infrastructure bill may raise concerns among newly emboldened fiscal conservatives and imperil the legislation’s chance at passage.

If the lame duck session does not pass the pending safety law amendments, the bills’ fate will fall into the hands of the new 112th Congress. It is noteworthy that a Republican president signed the original OSHA and MSHA legislation, and that a Republican Congress passed the 2006 MINER Act, under a Republican administration. Assumptions that the Republican-controlled House will not pass safety law amendments are not supported by experience.

The House committee markup of the Democratic Mine Act amendments in July 2010 suggests that all members were prepared to legislate if a bipartisan compromise can be reached. However, provisions of the Rockefeller and Miller bills that included OSHA amendments to enhance whistleblower protections and victims’ rights as well as to increase civil and criminal penalties across American industry are unlikely to pass in the 112th Congress due to broad-based Republican, moderate Democrat, and business opposition. Mine safety legislation, however, is more likely to receive bipartisan consideration.

Rep. John Kline (R-Minn.) is expected to chair the House Education and Labor Committee in the new Congress. While he previously considered tightening mine safety laws to “clamp down on unsafe operators,” job creation is his priority — as evidenced by his comment: “If I am selected by my colleagues to chair the Education and Labor Committee, I will immediately focus this panel’s work on the steps needed to restore economic certainty and promote job creation.”

Moreover, Kline reportedly wants to wait until the completion of the investigation of the Upper Big Branch coal disaster before addressing mine safety. Following the Upper Big Branch disaster, House Republicans committed to strengthening the MSHA “pattern of violations” system, increasing penalties and criminal sanctions for willful violations, stopping operators from “frivolously” challenging penalties, and promoting new safety technology. Legislative action on these issues in the 112th Congress likely will be preceded by oversight hearings, including an examination of whether MSHA actually needs additional authority, given an inspector general report criticizing MSHA for not fully using its authority.

Finally, the 112th Congress, with a Republican House majority rendering Democratic priorities less likely to be achieved, is expected to cause the Administration to accelerate its efforts to achieve goals through agency actions. That means more regulatory proposals and policy interpretations as well as further increases in enforcement actions — not only collecting increased penalties, but forcing changes in company operations and providing evidence for lawsuits. In turn, agency actions will result in further Congressional oversight and investigations and, potentially, agency budget and appropriations cuts. An interesting two years lies ahead under our soon-to-be-divided government. AM

Greg Louer is a public policy advisor in the Washington, D.C., office of Patton Boggs LLP. He can be reached at 202-457-6418 or at

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