December 10, 2021, Number 46
Download the full .pdf version here: TML Legislative Update Number 46
comptroller's office developing 380 agreement reporting tool
As previously reported in the Legislative Update, H.B. 2404 from the 2021 session requires cities to report their Chapter 380 economic development agreements to the comptroller for inclusion in a statewide database. In addition to requiring cities to submit information regarding future economic development agreements, including an electronic copy of the agreement itself, cities are required to report the same information to the comptroller for all existing 380 agreements by no later than January 1, 2022.
As that deadline approaches, the comptroller’s office has offered preliminary guidance to cities on its website. Of particular interest, the comptroller’s office states that it is currently working to create an online reporting tool by the end of 2021. Because the comptroller’s office will not accept paper copies or emails of the agreements, the comptroller has announced that it will grant a blanket waiver on the filing deadlines until the online reporting tool is available for use. This means that, as it stands now, cities will not be required to submit existing 380 economic development agreements to the comptroller’s office by the January 1 deadline.
The League will continue to provide updates on the comptroller’s 380 reporting tool when new information becomes available.
tml submits brief in support of truck ordinance authority
Last month, TML submitted this Amicus Curiae brief in support of the City of Port Arthur in a case calling into question the ability of the city to enforce road use ordinances relating to heavy trucks against a property owner engaging in oil and gas operations. Though the case involves a few different issues, the League weighed in specifically on the question of whether Natural Resources Code Sec. 81.0523 preempts the city’s ordinance.
The statute at issue was put into place in 2015 by House Bill 40. Some city officials will recall this bill passing primarily in response to the fracking ban ordinance enacted by the voters in the City of Denton. The result was Natural Resources Code Sec. 81.0523, which generally preempts city regulation of certain “below-ground” oil and gas activity in the city limits. Notably, however, the statute authorizes cities to enact and enforce commercially reasonable regulations governing “aboveground activity related to an oil and gas operation that occurs at or above the surface of the ground, including a regulation governing fire and emergency response, traffic, lights, or noise, or imposing notice or reasonable setback requirements.” The retention of this authority for cities was carefully negotiated back in 2015, and a key reason for the bill’s passage. The League’s brief highlights the legislative intent to preserve cities’ continued enforcement of reasonable traffic ordinances.
federal infrastructure bill update
In November 2021, the federal Infrastructure Investment and Jobs Act (IIJA) was signed into law. The IIJA is altogether a $1.2 trillion bill that will invest in the nation’s core infrastructure priorities including roads, bridges, rail, transit, airports, ports, energy transmission, water systems, and broadband.
The League will monitor state and federal agencies and work with the National League of Cities (NLC) to access the latest information relating to the IIJA. We will be providing periodic updates in the Legislative Update on resources for Texas cities on how to access IIJA funding for local infrastructure projects.
A November 15 Executive Order on Implementation of the Infrastructure Investment and Jobs Act established an Infrastructure Implementation Task Force to coordinate effective implementation of the IIJA, co-chaired by Former New Orleans Mayor Mitch Landrieu and the Director of the National Economic Council, Brian Deese.
U.S. Environmental Protection Agency (EPA)
Last week, EPA sent a letter to governors encouraging states to maximize the impact of water funding from IIJA to address disproportionate environmental burdens in historically underserved communities across the country. The letter also includes the topline state allocations per state for the State Revolving Funds (SRF) for fiscal year 2022 – including the Clean Water and Drinking Water traditional SRF funding, funding for lead pipe removal, and funding for addressing PFAS and other emerging contaminants. Texas is allotted just over $507 million. Learn more about EPA programs under the IIJA here.
U.S. Department of Energy (DOE)
Last funded in 2009 through the American Rescue and Recovery Act, the Energy Efficiency and Conservation Block Grant provides funding directly from DOE to communities 35,000 and over (and through states for smaller communities) to improve energy efficiency, lower energy usage, and reduce fossil fuel emissions. While DOE has not released specific information about implementing the program under the IIJA, NLC has published information on its blog to guide local leaders as they prepare for these funds.
National Telecommunications and Information Administration (NTIA)
NTIA plans to hold a series of broadband grant program public virtual listening sessions over the next two months in connection with the five new broadband grant programs authorized and funded by the IIJA: the Broadband Equity, Access, and Deployment Program; the Enabling Middle Mile Broadband Infrastructure Program; and the Digital Equity Act Programs, which include the State Digital Equity Planning Grant Program, State Digital Equity Capacity Grant Program, and Digital Equity Competitive Grant Program. These public virtual listening sessions are designed to collect stakeholder input to help inform program development and implementation. For details on the listening sessions, including registration information, please visit the NTIA website here.
U.S. Department of Transportation (DOT)
DOT is beginning to organize their programs by putting out a centralized Federal Highway Administration (FHWA) IIJA website, as well as hosting webinars by the agencies. FHWA has officially released a request for information (RFI) on the Infrastructure and Investment Jobs Act. Additionally, FHWA has released an RFI on Development of Guidance for Electric Vehicle Charging Infrastructure Deployment, which will have a notable impact on local and state EV charging plans. They also advanced a final rule on Broadband Infrastructure Deployment on highways.
Here are a few upcoming opportunities for DOT webinars related to the IIJA:
- Office of the Secretary – Innovation & Safe Streets for All, Friday, Dec 10 at 1:00 PM CST. Register.
- Office of the Secretary – Infrastructure Financing & Permitting, Tuesday, Dec 14 at 1:30 PM CST. Register.
Department of Interior (DOI)/Bureau of Reclamation
The Bureau of Reclamation is hosting a series of stakeholder information sessions on its implementation of the IIJA, which provided $8.3 billion for Western water infrastructure (including Texas) to address aging infrastructure, water storage, water recycling and reuse, efficiency, and drought contingency plans. Please visit the Bureau of Reclamation’s website to learn more about the information sessions, including how to register. The sessions will be recorded and available on the same site.
National League of Cities
NLC launched a new “Safety First” Challenge for Safer Roads that will prepare cities of all sizes to engage in the national and international movement to address rising number of road deaths in U.S. communities and prepare them to leverage the new $5 billion in “Safe Streets for All” grants from DOT that were included in the bipartisan infrastructure law. Contact Brittney Kohler at NLC with questions, firstname.lastname@example.org.
opioid settlement: deadline approaching
In October, Attorney General Ken Paxton announced a $290 million statewide opioid settlement agreement with Johnson & Johnson to resolve opioid-related claims. The Johnson & Johnson agreement will largely track the terms of the Global Prescription Opioid Litigation Settlement Agreement that was announced on July 23, 2021. In addition to the funds from Johnson & Johnson, Texas is also slated to receive up to $1.2 billion from three distributors, Cardinal, McKesson, and AmerisourceBergen, which will bring to Texas up to $1.5 billion in funding for statewide opioid abatement efforts.
Local governments must join the settlement by January 2, 2022, in order to maximize the benefits of the settlement. Funding received under the settlement will be used to support opioid abatement strategies. More information, including the steps necessary to formally join the settlement, can be found here.
filing period for primary election now open; several legislators not returning
With the opening of the filing period for the 2022 primary election on November 13, many current legislators have announced their retirement or intent to seek election to a different office. In some cases, the new district maps have prompted a member to run for a different seat in the same chamber.
The members listed below have announced they will not run for their current seat, whether due to retirement or to run for other office. Again, some of the members listed below may return to the legislature representing a different district, or in a different capacity altogether:
- Rep. Michelle Beckley (D – Carrollton)
- Rep. Kyle Biedermann (R – Fredericksburg)
- Rep. Jeff Cason (R – Bedford)
- Rep. Garnet Coleman (D – Houston)
- Rep. Jasmine Crockett (D – Dallas)
- Rep. John Cyrier (R – Lockhart)
- Rep. Joe Deshotel (D -– Beaumont)
- Rep. Alex Dominguez (D – Brownsville)
- Rep. John Frullo (R – Lubbock)
- Rep. Dan Huberty (R - Houston)
- Rep. Celia Israel (D – Austin)
- Rep. Phil King (R – Weatherford)
- Rep. Matt Krause (R – Fort Worth)
- Rep. Lyle Larson (R – San Antonio)
- Rep. Ben Leman (R – Anderson)
- Rep. Eddie Lucio III (D – Brownsville)
- Rep. Mayes Middleton (R – Wallisville)
- Rep. Ina Minjarez (D – San Antonio)
- Rep. Jim Murphy (R -– Houston)
- Rep. Claudia Ordaz-Perez (D – El Paso)
- Rep. Chris Paddie (R – Marshall)
- Rep. Tan Parker (R – Flower Mound)
- Rep. Eddie Rodriguez (D – Austin)
- Rep. Scott Sanford (R – McKinney)
- Rep. James Talarico (D – Round Rock)
- Rep. John Turner (D – Dallas)
- Rep. James White (R – Hillister)
- Sen. Dawn Buckingham (R – Lakeway)
- Sen. Eddie Lucio (D – Brownsville)
- Sen. Jane Nelson (R – Flower Mound)
- Sen. Larry Taylor (R – Friendswood)
- Sen. Kel Seliger (R – Amarillo)
The filing period for the 2022 primary remains open until Monday, December 13, 2021.
covid-19 update (no. 211)
All pandemic-related updates, including information about the American Rescue Plan’s city-related provisions, will be in this Legislative Update Newsletter from now on.
Federal Court Pauses Implementation of CMS Vaccine Requirement
In our COVID-19 Update No. 208, we discussed a new rule from the Centers for Medicare and Medicaid Services that requires all staff of listed facilities, with limited exception, to be fully vaccinated against COVID-19 within 60 days of the passage of the rule. December 6 would have been the deadline for staff members of affected facilities to receive their first doses of COVID-19 vaccines, if they were choosing a two-shot vaccine protocol, but on November 30, a federal judge in Louisiana issued a nationwide injunction, pausing implementation of the rule while a number of lawsuits work their way through the court system.
American Rescue Plan Act Funds
The U.S. Treasury Department’s Coronavirus State and Local Fiscal Recovery Funds FAQ contains a number of questions and answers related to eligibility for recovery funds and eligible uses of recovery funds and can be accessed here. This FAQ was most recently updated on November 15, updating question 9.2 related to city reporting requirements.
As a reminder, the Texas Division of Emergency Management maintains its Coronavirus Local Fiscal Recovery Fund FAQ with guidance related to the ARPA/CLFR fund program.
The National League of Cities also maintains an ARPA-related FAQ which can be found here.
ARPA Funding Agreements for Non-Entitlement Cities
TML has received inquiries from a few non-entitlement cities (cities under 50,000 population) regarding potential unanticipated consequences that might flow from acceptance of the American Rescue Plan Act / Coronavirus Local Fiscal Recovery (ARPA/CLFR) grant funding. Specifically, concerns have been raised that acceptance of these funds will obligate cities who accept the funds (Recipient Cities) to enforce potential future state or federal COVID-19 vaccine mandates or other regulations. The bottom line is that whether a city will be subject to future state or federal rules and regulations is disconnected to accepting ARPA/CLFR funds today.
To receive the ARPA/CLFR funds, a non-entitlement Recipient City must submit a certified submission package to the Texas Division of Emergency Management, which includes the execution of the U.S. Department of the Treasury Coronavirus Local Fiscal Recovery Fund Award Terms and Conditions (collectively the “Agreement”). The Agreement sets the terms by which the Recipient City receives its allotment of ARPA/CLFR funding. The questions TML has received relate to the scope of provisions in the Agreement such as “Recipient also agrees to comply with all other applicable federal statutes, regulations, and executive orders” and whether these provisions will be used to force federal COVID-19 vaccine mandate on non-entitlement Recipient Cities. The short answer to the question is likely “no,” and a few reasons are discussed below.
- Texas cities are already subject to “applicable” state and federal law. The Agreement does not create new laws to apply to Texas cities; rather, it restates the current rule: Texas cities must follow applicable state and federal law. Keep in mind as well that future legislation or regulation need not be tied to receipt of ARPA/CLFR funds to be binding. Declining ARPA/CLFR grant funding guarantees only that the city will not receive those funds. It does not guarantee protection from future legislation.
- The Agreement is quite specific with regard to much of the “applicable” law. The Agreement cites specific sections of the Code of Federal Regulation that apply to all federal grant funding, the Americans with Disabilities Act, the Civil Rights Act of 1964, and the American Rescue Plan Act as being specifically applicable, and as stated above, those laws already are already applicable to Texas cities. There are no additional specific requirements related to COVID-19 vaccinations or masking contained in the Agreement. The Agreement states that the Department of the Treasury may impose additional conditions on the receipt of a “subsequent tranche” of future award funds, and if that is the case, Texas cities will know in advance and can reject the funds if those additional terms are too onerous.
- There are currently no federal COVID-19 mandates that apply to Texas cities, and ARPA funding does not change this. The current Presidential Executive Orders related to federal contracting and the Presidential directive related to mandatory COVID-19 vaccination are likely not applicable to Texas cities. Please review TML’s previous analysis of the President’s Executive Orders related to federal contracting and COVID-19 vaccines, which likely do not directly apply to Texas cities.
Ultimately, the Agreement and the receipt of ARPA/CLRF funding likely does not increase a city’s exposure to regulations from the state or federal governments, and declining the funds does not insulate cities, either. The truth is that if the state or federal government wishes to mandate COVID-19 vaccines or other regulations, they can attempt to do so regardless of whether a city has accepted these grant funds. We encourage city officials to read through their city’s Agreement and call their city attorney or the TML Legal Services Department with any questions or concerns.
TML member cities may use the material herein for any purpose. No other person or entity may reproduce, duplicate, or distribute any part of this document without the written authorization of the Texas Municipal League.