A Look Ahead to 2021 in Washington

A month after Election Day and the dust has nearly settled. We are closer to having a final picture of what the power structure in Washington, D.C., will look like in 2021. That in turn will dictate what the impact will be on the waste and recycling industry from both legislative and regulatory perspectives.

While President Trump continues to contest former Vice President Joe Biden’s victories in various key states right up to the meeting of the Electoral College in mid-December, the composition of the House and Senate is nearly finalized.

Republicans currently are at 50 seats in the U.S. Senate compared to the Democrats’ 46 seats (two independent caucuses with the Democrats giving them a coalition of 48 votes.) Control of the Senate rests with Georgia where two Republican incumbents will vie to retain their seats in a January 5, 2021, runoff and a special election being held on that same date.

Democrat victories in both of those seats would result in a 50-50 split leaving control of the chamber in the hands of the vice president, while Republicans need to win just one to guarantee a Republican majority. Republicans entered the election with a 53-47 majority, but Democrats have gained a net of one Senate seat to date after defeating Republican incumbents Martha McSally (Ariz.) and Cory Gardner (Colo.) and losing a Democrat seat in Alabama held by Doug Jones.

House Democrats maintained their grip on the lower chamber of Congress but at a greatly reduced capacity. Although polling and conventional wisdom held that Democrats would expand their House majority by as many as 15 seats, Republicans instead picked up at least 11 seats with one that is still undecided where the Republican candidate leads the incumbent Democrat by roughly a dozen votes.

Every race rated as a “toss-up” broke for the Republican candidate and the party picked up three Democratic seats in California, the first time it has flipped seats in that state since 1998. It is significant to note that not a single Republican incumbent House member lost reelection, a feat not accomplished since their 1994 electoral sweep.

Democrats currently hold a 222 to 212 edge over Republicans in the House of Representatives with 218 needed for a majority. This is the narrowest House majority in over a century and could spell trouble for House Speaker Nancy Pelosi (D-Calif.) who saw 12 Democrats vote for other candidates during her 2019 bid for speaker. Any defections this time could deny Pelosi the majority of those voting that is required to be elected speaker. Should no one reach that threshold, additional rounds of voting would be held until someone obtains it. If Pelosi’s campaign to retain the speakership falters, a compromise candidate would have to emerge. Under House rules, the speaker need not be an elected member of the House, which could make for an interesting dynamic.

Biden potentially enters office in the weakest position with regard to congressional support of any president in decades. At the age of 78, Biden would be the oldest person ever to serve as president upon taking office, eclipsing Ronald Reagan who was 77 when he left office. This raises the very real specter that Biden will not seek reelection. The combination of being an instant “lame duck” and shaky congressional support—particularly if Republicans hold the Senate after the Georgia elections—could lead to many of his legislative initiatives, such as a 33 percent increase in the U.S. corporate tax rate from 21 percent to 28 percent, being dead on arrival.

Other than bipartisan bills with broad support, little can be expected out of the legislative process. Among the items that could potentially pass are a tax extenders package covering tax credits expiring at end of 2020 for the use of alternative fuels such as compressed natural gas (CNG), the creation of alternative fuel refueling infrastructure and facilities producing energy from renewable resources including landfill gases. Likewise, incentives for electric vehicles similar to those already in existence for CNG vehicles could move forward. Reauthorization of the nation’s surface transportation law is another possible point of agreement where the two parties could come together.

The bulk of activity in a Biden administration would occur on the administrative and regulatory side. Among Biden’s priorities where he would not require legislative support are recommitting the U.S. to the Paris Climate Accord, establishing an Environmental & Climate Justice Division within the Department of Justice, changing the Occupational Safety and Health Administration (OSHA) recordkeeping standard, issuing an OSHA emergency COVID-19 standard, reverting to the Obama era’s Joint-Employer standard and reversing the Federal Motor Carrier Safety Administration’s (FMCSA) new Hours-of-Service Rule.

Last year, FMCSA enacted the electronic logging devices (ELD) mandate that led to additional costs and concerns for the waste and recycling industry. However, FMCSA granted the National Waste & Recycling Association (NWRA) a rare Hours-of-Service exemption exclusive to its members. This eliminated the need for them to use ELDs as otherwise required under this new rule.

While sweeping Hours-of-Service reforms went into effect in late September of this year that largely mirrors NWRA’s exemption, Biden has indicated that his administration would reverse this rule that benefits the entire trucking industry. That could be accomplished through the use of the Congressional Review Act should Democrats win the Senate in January, the promulgation of a new rule through the standard rulemaking process or invalidating the current rule on a technicality. This would not, however, affect NWRA’s exemption, which is in effect through December 2024 and can be renewed at that time. NWRA membership is the only way to guarantee the benefit of being exempt from the need to use ELDs.

We have a much clearer idea today than we did a month ago of where things will stand in 2021, but we are still another month away from knowing for certain which party will have control of the Senate and who will be presiding as Speaker of the House. Until then, the best use of our time is to introduce new members of Congress to the waste and recycling industry and educate them on the important role that it plays in maintaining our nation’s health, safety and quality of life.

Jim Riley is the chief counsel and senior vice president, government affairs for the National Waste & Recycling Association. He has spent the past 25 years working in the fields of government relations for trade associations and election law for political campaigns. He holds a J.D. from the Catholic University of America’s Columbus School of Law and a B.A. from the College of the Holy Cross.