Congress is off to a tumultuous start, grappling with controversial procedural issues as well as an economy in crisis. Typically, a new Congress spends much of its first month in organizational and pro forma sessions. The new 111th Congress is diving right into substantive and controversial legislative deliberations. Advocates of any brownfields agenda will have to work hard to get their issues and proposals to the Congressional front burner, although brownfields stand to gain from larger initiatives that Congress will consider, and the incoming Obama Administration will implement during early 2009.

The Senate is dealing with membership issues surrounding the seating of Senators-in-waiting Al Franken (D-MN) and Roland Burris (D-IL)—critical considerations, given that their Democratic votes may be needed to ensure timely passage of a stimulus package. The Senate is also beginning confirmation hearings on the entire Obama cabinet, including the EPA Administrator and the Secretaries of Housing and Urban Development and Treasury. The speed with which these officials can formally take office will influence the pace of activity within those agencies.

On the legislative side, Sen. Max Baucus (D-MT), will remain chair of the Senate Finance Committee, which oversees tax policy proposals and will play a key role in formulating the stimulus package. He has a long and close working relationship with the ranking Republican on the committee, Sen. Charles Grassley (R-IA). They will make important decisions impacting economic policy.

The House is still sorting itself out in terms of subcommittee assignments and chairmanships, but the new Chair of the Energy and Commerce Committee, Henry Waxman (D-CA), has made it clear that energy policy and climate change will be among his top priorities. Rep. Barney Frank (D-MA) retains his chairmanship of the House Financial Services Committee. From that vantage point, he will lead ongoing efforts to ride herd on the ongoing Wall Street upheavals, as well as the mortgage foreclosure and bank bailout situations.

And both House and Senate Appropriations Committees will have considerable power in the 111th Congress—they will begin the session providing as much as $675 billion in new stimulus spending to jump-start the economy (in addition to some $300 billion in tax relief.) Key categories for this new spending include energy, infrastructure, and education (including school facilities). While much is in negotiation as of this writing, it could include:

• $135 billion over two years for road, bridge, wastewater plants, airports, ports, and mass transit infrastructure projects;
• $10 billion for “greening” federal facilities;
• $150 billion over 10 years for various energy and climate change initiatives;
• $100 billion or more in direct payments to states to address deficits; and
• New tax breaks for businesses that create new jobs and buy new equipment.

House Chairman David Obey (D-WI) and Senate Chairman Daniel Inouye will have their hands full keeping control of this spending package, and deterring earmarks and pork barrel additions. President Obama has said he wants to crack down on such spending, and this could complicate the process in Congress.

Then, they must complete leftover “regular” appropriations for fiscal year 2009; virtually all domestic federal programs are operating on a continuing resolution, which expires on March 6. Congress could simply pass another continuing resolution, extending programs at current funding levels through the September 30 end of the fiscal year. Or, they could pass an “omnibus” appropriation covering the balance of FY09: Rolling all pending bills into one super-bill provides an opportunity to adjust funding levels and reflect new priorities. And this whole will be impacted by the executive branch’s budget submissions. Former President Bush’s current leadership at the Office of Management and Budget was expected to transmit a final budget to Congress as Bush left office, as is the tradition, but that will be “dead on arrival” on Capitol Hill. President Obama will transmit his own budget, but the complexities of developing a fiscal blueprint mean that it will not likely be completed before mid-March, at the earliest.

What bodes for brownfields?
What does all this mean for brownfields? While it is still speculative at this time, potentially:

• The extent to which the “green” aspects of brownfields can be touted will influence the opportunities that might arise in 2009—strategies like green remediation technologies, green building design and construction, energy efficiency retrofits and energy conservation initiatives all could potentially be integrated by communities into their brownfield approaches—perhaps using stimulus money.
• EPA’s list of unfunded 2008 brownfield applications, to the extent they represent shovel-ready projects, are likely to be folded into the stimulus package. Rep. James Oberstar (D-MN), chair of the House Transportation and Infrastructure Committee, has also proposed that at least $275 million in additional brownfield project spending be included in his version of a stimulus proposal.
• Since the stimulus is likely to include tax provisions aimed at business relief and “main street” recovery, an opportunity may exist to include an extension of the existing brownfield tax expensing incentive, or even a new cleanup tax credit—depending how much member interest can be generated.
• Proposals to modify liability provisions, cited by many experts as a key to encouraging the reuse of mothballed sites, are not likely to advance in this Congress unless a compelling case can be made.
• Brownfield proponents may push for recognition in climate change legislation that is sure to merge. Last year, an integral element of the leading climate change proposal was a national cap on greenhouse gas emissions, and establishment of a “cap-and-trade” system for allocating emission credits among polluting industries. These credits, which would be available for purchase at auction, would generate billions in new revenue, and much of the debate has been over how the federal government would use this revenue to support activities to reduce the nation’s carbon footprint. If brownfield activities—with their infill and smart growth elements contributing to reduced vehicle miles traveled—can be included in the activity mix, an important new source of funding could open up.

Finally, the incoming Obama Administration will be implementing some of the provisions of the Wall Street rescue and financial industry bailout laws passed late in 2008. These include overseeing and promoting the range of renewable energy credits and green building incentives included in that package, as well as launching the new $1.6 billion program of energy conservation and renewable energy bonds authorized by Congress. If these programs are carried out with creativity and flexibility, brownfield proponents could be in a position to benefit from these efforts.

Charlie Bartsch is a senior fellow/vice president with ICF International in Washington, D.C.