Asphalt Advocacy Heads to Capitol Hill
This content originally published in the Winter 2024 print edition of NAPA Quarterly. Subscribe here.
NAPA joins sister trade associations in joint effort to champion federal funding for highways.
Road construction was the talk of the town in Washington, D.C., this fall when hundreds of advocates, including NAPA members, gathered on Capitol Hill to meet with lawmakers as part of Hill Day 2024.
It was the second consecutive year NAPA has been a co-organizer of the joint advocacy event, which is done in partnership with the National Stone, Sand & Gravel Association (NSSGA) and the National Ready Mixed Concrete Association (NRMCA).
The three trade associations provided some of their own programming leading up to the joint event where the members came together for an ‘advocacy how-to’ session and reception.
NAPA Vice President for Government Affairs Nile Elam led a legislative briefing for NAPA members ahead of a joint advocacy training where he took the stage with his trade association counterparts.
Roger Nober headlined the NAPA members briefing, speaking at length about the Supreme Court’s landmark decision to dismantle what’s known as the Chevron Doctrine, named for the Court’s decision in the 1984 case between Chevron and the Natural Resources Defense Council. For 40 years, the doctrine instructed courts to defer to federal agencies on most rulemaking issues when deciding cases, granting assumptive powers to administration law judges within the Environmental Protection Agency (EPA), for instance.
Nober, Director of the George Washington University Regulatory Studies Center, traced the origins of the Chevron decision and the court’s 2024 reversal in Loper Bright Enterprises v. Raimondo, pointing out that the original case came largely due to prescriptive environmental regulations put in place in the 1970s while Tip O’Neill was Speaker of the House. When Ronald Reagan assumed the presidency, he appointed Anne Gorsuch, current Supreme Court Justice Neil Gorsuch’s mother, to lead the EPA, where she aimed to blunt the detrimental effects of some of the regulations in place.
“The conservative majority of the Supreme Court in the 1980s came up with a two-part test: Did Congress speak to this issue? And if they did, is the agency’s interpretation of the statute reasonable?” Nober said.
As Congressional seats became more insulated in the ensuing decades, he said, Congress became more irreversibly divided, making it more difficult to pass legislation.
“As a result of all of those things, Congress began passing fewer laws, yet the bases of both parties want to see policy outcomes that couldn’t go through Congress,” he said. “So they begin to push the administration to say, ‘We’re going to do this through the stroke of a pen. We’re going to do this through rulemaking. We’re going to do this administratively.’ And, in particular, in the last decade or so, that’s become much more prevalent: Rulemakings have taken on a great importance in enacting policy.”
Years of judiciary by fiat meant when a new administration came into the White House, these policies and regulations would be changed, leading to what Nober described as “regulatory whiplash.”
While he said the Loper Bright decision should ease the whipsaw effects of rulemaking, Nober said he doesn’t expect federal agencies to remain powerless.
“On Capitol Hill, we used to have a saying that if you liked what the agency was doing, they were the agency professionals, but if you didn’t like what they were doing, they were the bureaucrats,” he said. “So, the question is, the bureaucrats or agency professionals, depending on your point of view, how are they going to react?
“The people who become regulators generally do because their goal is to regulate. They believe in their mission,” he added. “I believe that you will see more and more regulators will be looking for ways to continue to regulate, but to do so without running afoul of the Supreme Court.”
REVIEWING REGULATORY AFFAIRS
NAPA Vice President for Environment, Health & Safety Howard Marks delivered remarks on regulatory issues facing asphalt pavement producers and contractors, including the latest rule on heat illness prevention handed down from the Department of Labor’s Occupational Safety & Health Administration (OSHA).
Duval Asphalt Environmental Health & Safety Director Coral Todd shared with attendees the heat illness prevention guidance NAPA put out in 2022, through its Health & Safety Committee.
“We feel very comfortable and confident that the guidance NAPA provided has all it needs to make sure companies are abiding by OSHA’s current requirements and any state standard.” she said.
Post-election, Marks noted that while the OSHA comment period is open until Dec. 30, the new Executive Administration may take a different tact when it comes to the proposed heat standard.
“We’ve let the new Executive Administration know that OSHA’s current proposed rule is overly prescriptive and provides no flexibility for site- and industry-specific constraints,” Marks said. “OSHA’s proposed inflexible requirement for immediate shade just might not work for the road construction industry and we are looking at documenting the effectiveness of certain shade alternatives, like misting, cool towels, and others – that would provide more realistic and practical controls.”
Marks also shared the latest regulations concerning methylene chloride, which he said will largely be phased out of use within the next 10 years. Continued use of chlorinated solvents for asphalt extraction requirements will likely mean enhanced ventilation via hooded, closed-circuit machines.
NAPA Environmental Committee Chair Jason Kappel with Peckham Industries spoke on the continued drumbeat over PFAS in airfield pavement millings. Those per- and polyfluoroalkyl substances, known colloquially as ‘forever chemicals,’ have their origins in firefighting foam that’s used at airfields. Kappel said local planning and zoning boards have begun asking not only about current procedures, but also the processes of airfield millings removal from years prior, as PFAS continues to grab headlines over its prevalence.
“It’s out there,” Kappel said. “People are aware of it, so just be cognizant of that when you’re walking into these potential permitting situations.”
Kappel said the Environmental Committee has a working group aiming to develop resources to assist companies struggling with various issues in permitting.
“We want to start looking at how we help the industry put tools together to manage the permitting process, whether there’s a zoning change, whether there are environmental justice issues, because very rapidly it all becomes one conversation,” he said. “It’s no longer the permitting process of ‘I want to modify my air permit’ or ‘I need a site plan approval.’ We have to address environmental justice; we have to address the disadvantaged communities and cumulative impacts. In discussions, we see that there is a lack of understanding on how to negotiate all of these different items under the zoning or the permitting process. We will be putting a call out for volunteers to work on generating a detailed permitting matrix so members can have a toolbox to look at all of the different permits and authorities that might be involved in the project.”
Kappel said some permitting molehills can be avoided altogether with enough forethought and planning, which is why the working group wants to share a permitting toolbox for the industry to consider when a project is first announced.
“How do we start engaging the community early if we know we’ve got an infrastructure project three years in the future? Well, the worst time to start engaging the community is when you drop the application on their desk,” he said. “Look ahead, develop a strategy to engage the community, let them understand the value that you bring to the community.”
ALTOGETHER ADVOCACY
Following the briefing, NAPA members shuttled across DC to join their NSSGA and NRMCA counterparts for a joint session and reception. Advocates returned early the next morning to hear from political consultant Karl Rove, who was introduced by NAPA President & CEO Audrey Copeland.
Rove, best known for serving as Deputy Chief of Staff under President George W. Bush, was particularly sanguine as he shared words of wisdom with the hundreds of business owners and stakeholders ahead of their meetings on Capitol Hill.
“Don’t be wringing your hands and worried about the future of the country, because we have been here before. Politics has been worse, some of you may remember it,” he said, noting how there were multiple times in the 1960s and ’70s when it looked like the nation was coming apart at the seams.
A self-described amateur historian, Rove took attendees on a survey of American history that stretched from Reconstruction and the World Wars through the Reagan Administration, noting the many times when “our politics is broken” was the opinion of the day.
“Every time we get to this point, the American people say, ‘Enough is enough.’ People start to respond. They are starting to respond. You know this because of the infrastructure bill,” he said.
In closing, Rove pointed to the vision of President Dwight D. Eisenhower, the father of the modern interstate system.
“Think how successful we have become as a country because of one guy who stumbled on the idea when he was a colonel and found it difficult in 1940 to move the U.S. troops across a country and said, ‘We’ve got to do something,’ when he became president,” Rove said. “‘We’ve got to do something to create a system of modern highways that will tie our country together.’ Thank God for Dwight David Eisenhower and what he did for our country because he gave us an enormous economic advantage that we enjoy as a country even today. We’d be stupid not to take this important thing that we created and make it better.”
TOGETHER WE BUILD
NAPA, NSSGA, and NRMCA join forces each September to share industry priorities with elected officials and policymakers.
In 2024, advocates highlighted the following talking points with legislators on Capitol Hill, but industry stakeholders are encouraged to engage with their lawmakers year-round. Be sure to bring up these topics when you’re discussing infrastructure needs within your districts.
ADDRESSING INFRASTRUCTURE CHALLENGES
Year after year, NAPA leadership hears from its member companies that funding certainty is a top priority. NAPA and its sister trade associations are always working toward the next surface transportation bill as well as keeping the Highway Trust Fund solvent. Shoring up funding vehicles while accounting for inflation can also lead to the deployment of more work zone safety innovations, but more must be done to incentivize these safeguards.
CREATING A TAX STRUCTURE THAT SUPPORTS GROWTH
The 119th Congress already has overlapping priorities before its seated, with the Tax Cuts & Jobs Act of 2017 set to expire at the end of 2025 and the Infrastructure Investment & Jobs Act expiring in 2026. NAPA, NSSGA, and NRMCA all want to see the permanent extension of small business deductions, bonus depreciation allowances, and a globally competitive corporate tax rate. The coalition also sees opportunities to capture user fees from the electric vehicle market.
ENSURING FAIR ACCESS TO MATERIALS RESEARCH, DEVELOPMENT, & DEPLOYMENT
The roadbuilding industry believes Congress should remain material neutral.
“Projects should be selected by their merits and decisions should be left to engineers and those with technical expertise in designing and executing projects,” reads the Hill Day handout left behind after meetings on the Hill.
Interested in hosting a member of Congress at your asphalt plant or job site?
NAPA’s Government Affairs team can help!
NAPA has the resources to support your efforts to build strong relationships with your elected officials while also creating policy champions that will help safeguard the longevity of the asphalt pavement industry. Email Vice President for Government Affairs Nile Elam or Government Affairs Director Mitch Baldwin to learn more.
Meet the GA Team: NAPA brings in new faces for a ‘new’ Congress
