Is President Trump’s “2-for-1” Executive Order Actionable?

Without a doubt, state and local governments would benefit from the repeal of many federal regulations – but there are legal barriers to the president’s approach.

President Donald Trump signs an executive order to advance the construction of the Keystone XL and Dakota Access pipelines. (Wikimedia Commons)

President Trump signs an executive order to advance the construction of the Keystone XL and Dakota Access pipelines. (Wikimedia Commons)

Through executive orders, presidents are able to direct the work of administrative agencies and implement authority granted to their office by a federal statute or the U.S. Constitution. President Donald Trump’s “2-for-1” executive order – which states that, for every federal regulation proposed, two must be “identified” for repeal – has, unsurprisingly, been criticized by some and applauded by others. Per the executive order, for every regulation added, the cost of the new regulation must be offset by eliminating two regulations.

Those who are for the executive order argue it will be good for the economy. Those who are against it argue most regulations exist for good reason and eliminating regulations like “limiting lead in drinking water and cutting pollution from school buses” will harm Americans. Those opposing the executive order also argue it is arbitrary to eliminate regulations based solely on cost without considering benefit.

Without a doubt, state and local governments would benefit from the repeal of many federal regulations. But can it be done this way? At least two legal barriers exist to eliminating regulations, either through a “2-for-1” scheme or in general.

Some statutes require administrative agencies to write regulations. Simply eliminating such regulations would be legally problematic. The executive order is sprinkled with the phrase “unless required by law,” which is perhaps an acknowledgement that not all regulations can be eliminated without a replacement.

Per the Administrative Procedures Act (APA), getting rid of federal regulations involves the same lengthy and cumbersome process as adopting federal regulations. The agency must publish the proposed repeal in the Federal Register, solicit comments from interested parties, and read and respond to comments. This process would likely take more than a year, and much longer for more complicated or controversial regulations.

The APA requires that repeals of rules not be arbitrary or capricious. Per this standard, an agency must “display awareness that it is changing position” and “show that there are good reasons for the new policy.” Eliminating regulations for the sake of meeting a numerical or cost-based quota is not likely to satisfy this standard.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Kitchen and Farm Incubators Support Access to Local Food Systems

NLC’s newest municipal action guide provides an overview of food incubator programs as well as guidance on how local governments can support these emerging strategies to promote local entrepreneurship and strengthen local food systems.

(photo: A Muse Photography, courtesy of Union Kitchen)

Union Kitchen, a food incubator in Washington, D.C., provides food businesses with a professionally maintained commercial kitchen space as well as services to help grow and accelerate their business. (photo: A Muse Photography, courtesy of Union Kitchen)

As the American Heart Association kicks off national American Heart Month, we are reminded about the importance of accessing healthy and affordable food. Whether it’s from a local grocer, food truck, or farmer’s market, the freshest and most nutritious meals are most often sourced, prepared, and served locally. In addition to the obvious health benefits, there are also economic gains when cities support access to local food systems and local food entrepreneurs. That is why so many communities are supporting food-based businesses, particularly through the creation of food business incubator programs.

For years, co-working spaces and incubator programs have accelerated the growth of technology-based startups. Now, this concept of providing entrepreneurs with shared working space, mentorship, and education is increasingly being translated into food-based business incubators. The type of assistance provided to food entrepreneurs includes access to a shared workspace, education programs on how to run a business, and mentors who can deliver industry-specific guidance.

Kitchen incubators and farm incubators are two programs for food-based entrepreneurs. These food-centric programs support individuals in their efforts to launch or grow a business in the food industry, which could include opening a restaurant, food truck, or catering service, as well as selling products at grocery stores, farmers’ markets, and online.

A new action guide from the National League of Cities, “Food-Based Business Incubator Programs,” provides an overview of kitchen and farm incubator programs, as well as guidance on how local governments can support these emerging strategies to promote local entrepreneurship and strengthen local food systems.

Below is a Q&A with several of the practitioners and experts who helped inform the guidebook. Read on to learn more about why food-based incubators are so important for their communities.

Why are food incubators important?

Cullen Gilchrist, CEO of Union Kitchen: Food incubators allow startup businesses to gain access to the resources, tools, and connections necessary to launch a successful business. At Union Kitchen, we build successful food businesses. We provide the professionally maintained commercial kitchen space that all food businesses need, but we differentiate ourselves by offering the services that businesses need to grow and accelerate their business. Our distribution company and retail outlets reduce the risk of failure for these businesses and supports them in establishing a strong baseline of success. We define our success by the revenues and profits we create, the businesses we grow, the jobs we create, the economic impact we have, and the employment training we deliver.

Chris Hiryak, Director of Little Rock Urban Farming: Food incubators are where the next generation of agriculturally informed citizens will be inspired, educated and instilled with the principles and values necessary to meet the challenge of creating a just and equitable food system in the 21st century.

New York City Department of Small Business Services (SBS): Food incubators provide food entrepreneurs with critical resources for building their businesses. Securing a private space to produce food commercially is a major financial and logistical barrier for start-ups. Financing the renovation of a production space with specific capabilities is even more costly and more of a risk. Incubators help food entrepreneurs avoid these hurdles by providing access to a licensed and regulated commercial kitchen space. This allows these small businesses to scale up to larger orders, receive assistance from qualified incubator staff, and network with other entrepreneurs utilizing the space.

What was the biggest challenge in launching the program/incubator?

Cullen Gilchrist, CEO of Union Kitchen: The greatest challenge has been to create an effective local food system that promotes supply and demand for local products, but that also delivers on the logistics necessary to be a successful operator in the food industry. We are creating the demand and supply for local products through our Grocery stores, and we need our distribution company’s operations to be strong enough to support this demand.

Chris Hiryak, Director of Little Rock Urban Farming: The biggest challenge in starting our urban farm project was learning to manage a small business.

New York City Department of Small Business Services (SBS): Through community outreach, the New York City Housing Authority (NYCHA) identified a trend of residents having food business backgrounds and interest in jumpstarting food-related businesses. At the same time, NYCHA recognized it would need support in gaining the necessary business education, funding, and accessing a regulated commercial kitchen space. SBS was able to address these challenges by creating the NYCHA Food Business Pathways program, in partnership with other key supporters. NYCHA resident participants in Food Business Pathways receive 8 weeks of training on business practices and food industry specific topics. The program teaches participants about kitchen incubators, provides assistance to participants on applying for space in incubators, and offers grants that allow graduates to rent space at the incubators for no cost. Grant funding also covers the cost of required licenses and permits for the training graduates.

(photos courtesy of Union Kitchen)

(left) Chris Hiryak of Little Rock Urban Farming. (center and right) Union Kitchen in Washington, D.C.

How did your local government support or assist the creation of your program/incubator?

Cullen Gilchrist, CEO of Union Kitchen: The local D.C. government has been essential in supporting us through the permitting and licensing process. They have played an integral role in training D.C. residents to work for us and our Member businesses through subsidized training programs and initiatives.

Chris Hiryak, Director of Little Rock Urban Farming: Mayor Mark Stodola of Little Rock appointed me to the Little Rock Sustainability Commission, where as the Chairman of the Urban Agriculture committee, I have been able to make recommendations to the City of Little Rock Board of Directors related to urban agriculture policy. This has allowed us to have an ongoing dialogue with city staff and officials to ensure that all urban agriculture projects in Little Rock are supported.

New York City Department of Small Business Services (SBS): The Department of Small Business Services (SBS) works to help small businesses, launch, grow and thrive in New York City through various services and initiatives. SBS’ Food Business Pathways program works directly with NYCHA to meet the recognized needs of residents. This collaboration grew to include several other entities; Citi Community Development provided funding for the program, the New York City Economic Development Corporation provided funding and connections to NYC kitchen incubators, and Hot Bread Kitchen provided technical assistance and access to their commercial kitchen incubator.

What are one or two success stories of businesses created in your incubator program?

Cullen Gilchrist, CEO of Union Kitchen: Over the past four years, current and alumni Union Kitchen Members have collectively opened and operated nearly 70 storefronts in the D.C. region and have developed over 400 unique products. Approximately one third of our current Member businesses are distributing their products with Union Kitchen to nearly 200 retail locations in the region, including 25 Whole Foods Stores. We have seen our Members grow their businesses rapidly and successfully and are proud to support their ongoing success as distribution and retail partners. One of Union Kitchen’s first Members, TaKorean now has three storefronts and a fourth one on the way in 2017. What started as a food truck peddling unique Korean-inspired tacos has become one of D.C.’s most popular fast casual concepts.

New York City Department of Small Business Services (SBS): Joann Poe, owner of Joann’s Elegant Cakes, participated in the Food Business Pathways program and won a grant that provided her with free use of the kitchen incubator, Hot Bread Kitchen, in Harlem. Use of the food incubator led to Joan building up the capacity of her business which ultimately catalyzed growth and allowed her to contract with clients such as the City of New York, Citibank, and Kate Spade.

About the Author: Emily Robbins is Principal Associate for Economic Development at NLC. Follow Emily on Twitter @robbins617.

What Might Justice Gorsuch Mean for State and Local Governments?

One case in particular gives cities a reason to be excited about this nomination.

President Donald Trump with Supreme Court nominee Neil Gorsuch at the White House. (Wikimedia Commons)

President Donald Trump with Supreme Court nominee Neil Gorsuch at the White House. (Wikimedia Commons)

The authors of Searching for Scalia evaluated who on President Donald Trump’s list of potential nominees to replace Justice Antonin Scalia’s seat on the Supreme Court would be most like Justice Scalia – the originalist, the textualist, and, most importantly, the conservative. The winner: Supreme Court nominee Judge Neil Gorsuch.

While just one case is too few to judge any Supreme Court nominee, one case in particular gives state and local governments a reason to be excited about this nomination. Last year, Judge Gorsuch (strongly) implied that, given the opportunity, the U.S. Supreme Court should overrule Quill Corp. v. North Dakota (1992). In Quill, the Supreme Court held that states cannot require retailers with no in-state physical presence to collect sales tax.

While Judge Gorsuch hasn’t ruled on abortion (an issue states care about), his most prominent rulings involve a related issue (the Affordable Care Act birth control mandate), which is not of particular interest to state and local governments.

Interestingly, in the one area of the law where the views of Judge Gorsuch and Justice Scalia differ – agency deference – the views of state and local governments are generally more in-line with Judge Gorsuch’s view. Less than six months ago, Judge Gorsuch called for the end of Chevron deference. In Chevron v. NRDC (1984), the Supreme Court held that courts should defer to reasonable agency interpretations of ambiguous statutes. State and local governments generally prefer that courts not defer to federal agency regulations because this deference gives federal agencies a lot of power.

If Judge Gorsuch is confirmed, his views on agency deference could be very important if the Court rules on the legality of the Clean Power Plan, the Waters of the United States definitional regulations, and the Fair Labor Standards Act overtime rules.

Like Justice Scalia, Judge Gorsuch has written a number of opinions indicating he is supportive of religion in public spaces. His opinions don’t indicate that he objects to the death penalty. While he hasn’t decided any cases involving gun control, he encouraged the Tenth Circuit to review a case where it held that, to convict a felon for knowingly possessing a gun, the person convicted doesn’t have to know he or she is a felon.

Liberals, and conservatives especially, routinely rule against state and local governments in First Amendment cases. Judge Gorsuch’s First Amendment opinions indicate he may be no exception.

Justice Scalia was known to take a more pro-privacy, pro-criminal defendant view of the Fourth Amendment than his conservative colleagues on the Supreme Court. Many of Judge Gorsuch’s more prominent rulings involve the Fourth Amendment. United States v. Carloss demonstrates that Judge Gorsuch may have Fourth Amendment instincts similar to Justice Scalia. In this case, Carloss posted a “no trespassing” sign. In his dissent, Judge Gorsuch opined that the sign revoked a police officer’s license to enter the property.

Not much has been written about Judge Gorsuch’s views on some of the more routine cases brought against state and local governments, including employment, qualified immunity and land use. It would be surprising if Judge Gorsuch veered to the left on any of these issues.

Now that we know who the nominee is, two questions remain: Will the Senate Democrats filibuster Judge Gorsuch, as they have promised to do? And if they do, will Senate Republicans exercise the “nuclear option,” meaning only a simple majority of Senators will be needed to confirm Judge Gorsuch’s nomination? Time will tell.

SCOTUSblog provides a more in-depth analysis of Judge Gorsuch’s Tenth Circuit opinions.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Refugee Executive Order Faces Legal Challenges

Judges in New York and Boston, among other cities, have prevented parts of the executive order on refugees from going into effect temporarily, citing possible violations of the U.S. Constitution’s Due Process and Equal Protection Clauses.

(Wikimedia Commons)

Protestors have gathered at airports across the country, such as the Metropolitan Airport in Detroit (above), to protest President Trump’s executive order barring refugees and other visitors from predominantly Muslim countries from entering the United States. (Wikimedia Commons)

President Donald Trump’s refugee executive order has resulted in confusion and lawsuits which will continue to be resolved in the upcoming months. On Monday night, acting Attorney General Sally Yates directed Justice Department attorneys not to defend the executive order in court. President Trump quickly fired her. Dana Boente was promptly sworn in, and has instructed DOJ lawyers to “defend the lawful orders of our president.”

Cities preparing to receive Syrian refugees and others are having to change plans. Additionally, cities have been affected by protests, airports have been overrun, and 16 attorneys general have spoken out against the executive order.

While not all aspects of the executive order are entirely clear, it includes the following:

  1. People from the following countries may not enter the United States for the next 90 days: Iraq, Syria, Iran, Libya, Somalia, Sudan, and Yemen
  2. Syrian refugees are banned from the United States indefinitely
  3. No refugees will be allowed into the United States for the next 120 days
  4. Only 50,000 (versus 110,000 last year) refugees will be allowed in the United States in 2017
  5. Refugees with religious-based persecution claims will be prioritized where they are of a minority religion in their country of origin

Judges in New York, Boston, Virginia, and Seattle have issued temporary injunctions against various aspects of this executive order, citing a variety of legal grounds.

A wide swath of people will be affected by this executive order, including refugees, legal residents, and visa holders who may have different rights and legal claims based on their status. Adding to the complexity, the Immigration and Nationality Act appears contradictory. It gives the president of the United States broad power to ban classes of people for periods of time “as he shall deem necessary” – yet it also states that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.”

Numerous legal theories have been relied on and are being discussed as grounds for challenging this executive order.

Judges in New York and Boston prevented parts of the executive order from going into effect temporarily, citing possible violations of the U.S. Constitution’s Due Process and Equal Protection Clauses. Due process generally requires that a person is afforded an opportunity to be heard (for example, at a hearing before an impartial decision-maker) before they are deprived of a right. Equal protection requires that the government not treat people differently on the basis of race, ancestry, or religion.

David Cole, Legal Director for the American Civil Liberties Union (ACLU), sees this executive order as essentially a Muslim-only ban on immigration which violates the Constitution’s Establishment Clause. While it doesn’t explicitly ban anyone on the basis of religion, the fact that it applies to seven Muslim-majority countries and creates, practically speaking, preferences for Christians, is enough to make it unconstitutional, Cole argues.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Legal Steps Sanctuary Cities Can Take If They Lose Federal Funding

The State and Local Legal Center’s Lisa Soronen discusses a few possible legal theories cities may rely on if they sue the federal government in the wake of President Trump’s most recent executive order.

(Getty Images)

New York City Mayor Bill de Blasio is threatening to sue the Trump administration in response to its most recent executive order, which calls for the removal of immigrants who (according to an immigration officer) are deemed to pose a risk to public safety. The order could theoretically pertain to any immigrant who has had any sort of interaction whatsoever with local law enforcement. (Getty Images)

On the campaign trail, President Donald Trump promised to cancel all federal funding to sanctuary cities who do not cooperate with the federal government in enforcing federal immigration law. True to his word, President Trump has signed an executive order stating that sanctuary cities are “not eligible to receive Federal grants,” with some unclear exceptions.

Whether and when this executive order will lead to cities losing federal funding, and how much, is unknown. New York City mayor Bill de Blasio has vowed to sue the federal government “the minute action to withhold funding” occurs.

Much has been written about what legal theories could be relied on to challenge the cancelling of federal funds. It is difficult to gauge the strength of these theories because all are rooted in Supreme Court precedent applying broad constitutional provisions in fact contexts different than this executive order.

Below are a few possible legal theories cities may rely on if they sue the federal government. The first three are based on limitation the Supreme Court has found in the Constitution’s Spending Clause. In short, the Spending Clause allows the federal government to place conditions on money states and local government receive – to a point. The final theory rests on the Tenth Amendment.

If sanctuary cities sue the federal government, they are likely to allege that cancelling all federal funding is “coercive” under the Spending Clause. In NFIB v. Sibelius (2012), Chief Justice Roberts famously described the federal government’s plan to withhold all Medicaid funding if states refused to agree to the Obamacare Medicaid expansion as a coercive “gun to the head.” In that case, states stood to lose more than 10 percent of their overall budget by not agreeing to the Medicaid expansion. Many sanctuary cities would stand to lose that percentage of their budget – and more – if they lost all federal dollars.

As George Mason University School of Law professor Illya Somin points out in a Washington Post article, the fact that the statutory language of most, if not all, federal grant programs to cities doesn’t require cities to assist the federal government with immigration enforcement is another possible ground for sanctuary cities to challenge this executive order. In decisions, including Pennhurst State School and Hospital v. Halderman (1981), the Supreme Court has stated that when Congress, using its spending power, imposes conditions on the receipt of federal funds it must do so “unambiguously.”

The Supreme Court also has held that per the Spending Clause conditions Congress place on grants must be “germane” or “related to” the federal interest in the grant program. In South Dakota v. Dole (1987), the Court noted approvingly that South Dakota didn’t challenge the “germaneness” of the Secretary of Transportation withholding a percent of highway funds to states which did not raise the drinking age to 21.

Now imagine if Congress “unambiguously” conditioned a number of federal grant programs for roads, health care, education, etc. on cities assisting with federal immigration enforcement. Cities could argue these conditions are not “germane” or “related to” the federal interests in funding roads, health care, or education.

The Tenth Amendment reserves powers not delegated to the federal government to the states. The Supreme Court has interpreted the Tenth Amendment to contain an anti-commandeering requirement where states and local governments cannot be required “to enact or administer a federal regulatory program.” For example, in Printz v. United States (1997), the Court struck down a federal law requiring local police departments to perform handgun background checks until the federal government could manage the task. Sanctuary cities could therefore argue that they cannot be commandeered into enforcing federal immigration law.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Executive Orders 101

Can President Trump cancel President Obama’s “unconstitutional” executive orders?

Former President Obama signs an Executive Order prohibiting federal contractors from discriminating on the basis of sexual orientation or gender identity. (photo: White House Archives)

Former President Obama signs an executive order prohibiting federal contractors from discriminating on the basis of sexual orientation or gender identity. (photo: White House Archives)

Former President Barack Obama, like most of the presidents that recently preceded him, issued about 300 executive orders. While on the campaign trail, President Donald Trump promised to cancel President Obama’s “unconstitutional” executive orders, and during his first days in office, President Trump has signed a number of executive orders of his own.

Through executive orders, presidents are able to direct the work of administrative agencies and implement authority granted to their office by a federal statute or the U.S. Constitution.

Executive orders are controversial because no provision of the Constitution explicitly authorizes them. Regardless, they have been used by every president (except one) since George Washington.

Executive orders, while considered to have the force of law, can’t be used to overturn laws – but the orders themselves can be overturned by Congress.

The U.S. Supreme Court has declared some executive orders unconstitutional. Perhaps the most famous example is the 1952 case of Youngstown Sheet & Tube Co. v. Sawyer. The Supreme Court struck down President Harry Truman’s executive order directing the Secretary of Commerce to seize and control all American steel mills. The Supreme Court ruled that neither the Constitution nor the laws of the United States authorized this action.

More recently, the Supreme Court agreed to decide if President Obama’s executive order allowing certain undocumented immigrants to stay and work in the United States indefinitely was unconstitutional. The Supreme Court issued a 4-4 decision last summer which effectively affirmed a lower court ruling striking down the executive order on grounds other than its constitutionality.

Can President Trump cancel President Obama’s “unconstitutional” executive orders? Yes – and he can reverse President Obama’s “constitutional” executive orders as well. For example, President Trump has already reinstated the “Mexico City Policy” by executive order, which prohibits non-governmental organizations that receive federal funds from providing or promoting abortions overseas. Since President Ronald Reagan, Democrat and Republican presidents have alternatively cancelled or reinstated this policy by executive order.

More relevant to state and local governments, President Trump may reverse Obama’s executive orders on climate change, energy, and immigration.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Federal Advocacy in 2017: In a Year of Transition, Cities Seek Certainty and Opportunity

NLC is advocating for what may be cities’ most important federal priority in 2017: promoting a positive narrative around cities to the incoming administration and new lawmakers in Congress.

(Getty Images)

The majority of decision-makers inside the Obama Administration understood that the overall success of federal policies requires good local input and leadership. NLC will continue to build a strong relationship between local leaders and the White House during the Trump Administration as well. (Getty Images)

In the nation’s capital, the remarkable success of the Republican Party in the 2016 election surprised many and started a fresh debate over the message voters wanted to deliver to Washington. Outside the Capital Beltway, Americans remain deeply divided in ways that could impact the division of power and authority within the intergovernmental partnership.

For a non-partisan organization like the National League of Cities (NLC), representing 19,000 cities of every size, such divisions are a concern for sure. Fortunately, NLC was not caught off guard by the election outcome because our 2017 Advocacy Agenda began taking shape two years ago, when our bipartisan leadership first started thinking about what a presidential transition would mean for cities.

In 2015, NLC convened a number of highly respected city leaders to form a Presidential Election Task Force with the goal of forging a truly bipartisan campaign platform for cities. The campaign, Cities Lead, was built on a platform of three issues important to every city: public safety, infrastructure, and the economy. City leaders around the nation used the Cities Lead Playbook to engage with the presidential candidates of both parties and to obtain assurances and commitments that areas of broad bipartisan consensus would remain on solid ground — regardless of the party in power.

Thanks to the work of that task force, NLC was able to create engagement opportunities during President-elect Donald Trump’s campaign and spotlight city leaders at the Republican National Convention (and Democratic National Convention). On election night, when the Trump campaign declared victory, NLC was there to congratulate him as the president-elect of the United States.

There is a fair amount of uncertainty about the priorities of the next administration and the 115th Session of Congress, but we are certain of at least three areas of common ground between the incoming administration and cities: the need to create greater resources for infrastructure, a desire to help cities and neighborhoods reduce crime and grow opportunity, and a focus on creating and retaining jobs.

It is unfortunate that the president-elect too often relies on mischaracterizations of cities, and there appears to be an urgent need for city leaders to build relationships with stakeholders inside and outside of the new administration. That’s why NLC is taking the lead and focusing on what may be cities’ most important federal priority for 2017: promoting a positive narrative around cities to the Administration and new lawmakers in Congress.

In 2008, then-Candidate Barack Obama said along the campaign trail that “we need to stop seeing our cities as the problem and start seeing them as the solution.” There is little question that, within the recent intergovernmental partnership, local governments were empowered by the greater value placed on cities by the outgoing administration.

Place-based programs prospered across federal agencies and allocated federal funding directly to local governments, including those programs strongly associated with NLC like the My Brother’s Keeper Community Challenge and the Mayors Challenge to End Veterans Homelessness. The appointment of multiple former mayors and city officials to lead federal agencies, including the Department of Housing and Urban Development and the Department of Transportation, sent a message about the value of local leaders and ensured a city point of view inside the Obama Administration and at every cabinet meeting.

Of course, there were many actions taken by the Administration which drew criticism from NLC, including President Obama’s repeated proposals to cap tax exempt municipal bonds to achieve a balanced budget, and the $1 billion cut to the Community Development Block Grant (CDBG) program early in his first term that has yet to be reversed.

The fact remains that, as the result of a strong relationship between local leaders and the White House, the majority of decision-makers inside the Obama Administration understood that the overall success of federal policies depends on good local input and leadership.

This, then, is our main advice to the incoming administration: gain local insight.

Alongside our Cities Lead Advocacy Agenda, NLC also remains focused on specific legislative priorities. Our top asks for Congress this year are to protect tax-exempt municipal bonds, to authorize the collection of sales tax on internet purchases, and to allocate funding for infrastructure directly to local governments.

NLC has built a history of progress and success with both Democratic and Republican leadership in Congress, and we are poised to continue that success. Over the previous session of Congress, NLC helped deliver legislative victories for cities: a five-year transportation bill that puts more money in the hands of local governments; a water bill that includes resources for cities with contaminated water, like Flint, Michigan; a public health bill that significantly increases resources to battle the opioid epidemic tearing through communities; and spending bills that have largely maintained level funding for local priorities — just to name a few.

What’s most impressive is that Congress sent all of these measures to the president without tampering with municipal bonds.

New challenges and opportunities await cities, and NLC, in the coming year. Yet, as a non-partisan organization, NLC is the best-placed organization to build a new partnership for cities with the incoming administration, to advance policies where we are aligned, and to express opposition without fear of reprisal.

In turn, we are asking city leaders to help us in our mission by reintroducing their city to members of Congress (and Congressional staff) in their district as well as to the new administration officials in federal agencies overseeing the programs that matter most to their city.

mike_wallace_125x150About the author: Michael Wallace is the Interim Director of Federal Advocacy at the National League of Cities. Follow him on Twitter @MikeWallaceII.

Five Ways Your City Can Benefit from the “Solar in Your Community” Challenge

Offering $5 million in cash prizes and technical assistance over 18 months, the Challenge supports local teams across the country in their efforts to develop programs or projects that bring solar to their communities.

There are 19 megawatts of solar installed in the city of Portland. Pictured is the Oregon Convention Center. (Jeremy Jeziorski)

This is a guest post by Odette Mucha.

In 2016, solar energy was the largest source of new generating capacity in the United States. With more than one million solar projects now operating across the country, the U.S. has over 35 gigawatts of total solar installed capacity – enough to power the equivalent of 6.5 million average American homes. This is an industry that is growing fast.

Despite this rapid growth, however, solar energy remains inaccessible to nearly half of American households and businesses, as well as many local governments and nonprofits. There are several reasons for this:

  • Nearly half of all rooftops cannot host solar due to insufficient roof space, lack of control over the roof (renters, condos), or shading.
  • While the federal Investment Tax Credit has grown the solar market, it excludes individuals and organizations with no federal tax liability, such as cities, nonprofits, low income individuals, and retirees
  • Low income populations face even greater challenges, often due to poor roof conditions, lower than average credit scores, and lack of access to affordable financing.

And yet, these communities stand to benefit the most from going solar – from stabilizing their energy costs to reducing air pollution. Cities go solar through the Solar in Your Community Challenge, a program launched by U.S. Department of Energy’s SunShot Initiative to expand solar access to those who have, to date, been left out of the growing solar market.

The Solar in Your Community Challenge encourages the development of innovative financial and business models that serve low and moderate-income communities, local governments, and/or non-profits. Offering $5 million in cash prizes and technical assistance over 18 months, the Challenge supports local teams across the country in their efforts to develop programs or projects that bring solar to these segments of their communities, while proving that these business models can be widely replicated and scaled up.

Why should cities participate in the Solar in Your Community Challenge?

  1. Save Money on Municipal Electricity Bills

Local governments, which own approximately 10 percent of commercial buildings (schools, office buildings, public assembly buildings, etc.), spend approximately $14.7 billion on electricity – 12 percent of total commercial building expenditures (EIA data). Solar energy can cut cities’ monthly electricity bills and make funds available for other priorities.

  1. Create Local Jobs

The solar industry is a proven driver of job growth. As deployment has soared, so have solar jobs – there are nearly 209,000 solar workers in the U.S. today, with more than half of them in installation jobs that can’t be outsourced. Further, these workers are paid competitive wages, with installers making a median wage of $21 per hour.

  1. Help Low Income Residents

Low income households pay a large portion of their income towards electricity bills. An analysis by Groundswell found that the lowest income households spent nearly 10 percent of their income, over four times more than the average consumer. Access to low cost solar can provide price stability and bill relief to low and moderate income households.

  1. Improve Resiliency

Cities around the country are facing increased threats from natural disasters and are taking steps to plan for them. During extreme weather events, solar energy can help prevent outages, provide energy for critical facilities, and aid in recovery efforts. Solar can also provide energy to remote areas.

  1. Meet Environmental Goals

Using solar power instead of conventional forms of energy reduces the amount of carbon dioxide, nitrous oxide, and other pollutants that are emitted into the environment. Reducing the amount of pollution translates into cleaner air, reduced water consumption, and improved health.

Cities can participate in the challenge in two ways – as part of a program team or a project team.

Program teams create new programs that enable the installation of solar for use by low income households, governmental organizations and/or nonprofits. Program Teams will be led by governments, utilities or financial institutions.

Project teams develop and install a new solar system or a portfolio of systems that benefit low income households, governmental organizations and/or nonprofits using innovative and scalable business practices. Project Teams can be led by anyone, but should include a combination of key organizations like cities, solar developers, utilities, financial institutions and community organizations.

The application deadline to participate in the Challenge is March 17, 2017. Click here to learn more about the Solar in Your Community Challenge and apply today!

odette_mucha_125x150About the author: Odette Mucha is a Technology Manager at the U.S. Department of Energy SunShot Initiative. She is the manager of the Solar in Your Community Challenge.

Trump May Not Be Able to Remove Federal Regulations Himself – But Someone Else Could

Three federal regulations of particular interest to cities might be on the chopping block following the inauguration, but the incoming administration would face difficulties removing them on its own.

A conservative Supreme Court could be the key to removing federal regulations under a Trump presidency. (Getty Images)

A conservative Supreme Court could be the key to removing federal regulations under a Trump presidency. (Getty Images)

President-elect Donald Trump has repeatedly stated that one of the goals of his new administration is to get rid of federal regulations. Three on the chopping block of particular interest to state and local government include:

  • the Clean Power Plan (CPP), President Barack Obama’s signature climate change measure
  • the regulations defining “Waters of the United States” (WOTUS), a significant term in the Clean Water Act defining the federal government’s jurisdiction to regulate water
  • the Fair Labor Standards Act (FLSA) overtime regulations, which extend overtime pay to four million workers

Despite the fact that the new administration has a menu of options when it comes to removing final federal regulations, the most effective options are probably the most difficult for the president to achieve. If any or all of these regulations go, it won’t likely be the result of the direct efforts of the new president – the U.S. Supreme Court would likely be responsible.

What Are Trump’s Options?

Perhaps the cleanest way to undo final regulations is to rewrite or eliminate the statutory language being interpreted in the regulation. For example, the WOTUS final rule includes eight categories of jurisdictional waters. Congress could simply rewrite the Clean Water Act to define WOTUS differently from the final regulations. But getting such a change through Congress would probably be impossible as Senate Democrats would certainly filibuster any change they saw as offering less environmental protection than the final regulations.

The Trump Administration could also instruct federal agencies to rewrite regulations, but a number of challenges arise with this option. First, the agency would have to come up with new proposed regulations – and depending on the regulation, this might take a lot of time. Take the Clean Power Plan regulations, for example; they are more than 300 pages long. In addition, once new regulations are proposed, they are subject to a public comment period of either 60 or 120 days. The agency must then consider hundreds or thousands of comments before issuing final rules. Finally, when this process is complete, the new regulations would almost certainly be subject to a court challenge. Changes to agency rules must be non-arbitrary, and supporters of any of the three regulations discussed in this post would likely be willing to sue.

Another option when it comes to dealing with disfavored regulations is to simply fail to enforce them by giving agencies inadequate funding to engage in rigorous enforcement or instructing agencies to make enforcement of particular regulations a low priority. This strategy would be more effective for some regulations than others. For example, if President-elect Trump instructed the Department of Labor to ignore employees being classified as “white collar” when they should not be per the FLSA, employees could pursue lawsuits against their employers for this violation without Department of Labor involvement.

Agencies also have the option of issuing interpretations of regulations that can take those regulations in a different direction than originally intended. This strategy would not work well for dismantling seismic regulations like the Clean Power Plan or very simple, straightforward regulations like the FLSA overtime rules. Also, these interpretations can be subject to court challenge as arbitrary and can be overturned with the stroke of a pen by the next administration.

The CPP, the WOTUS regulations, and the FLSA regulations are all currently being challenged in court on various grounds. The Trump administration can also refuse to defend these laws. But the lawsuits are unlikely to simply go away because interveners would probably step in to defend them. For example, states and local governments have already intervened to defend the Clean Power Plan, and the Texas AFL-CIO has sought to intervene to defend the FLSA overtime regulations.

Enter Justice Kennedy

Before President-elect Trump was elected, all three of the cases described above were likely headed to the Supreme Court. Despite his hostility towards them (and maybe even because of it), these regulations will probably still end up before the Supreme Court.

It is perhaps unfair to speculate how a Supreme Court Justice might look at these regulations (which are all being challenged on different legal grounds) based solely on whether that Justice is a conservative or a liberal. Nevertheless, these labels indicate general legal philosophies and leanings.

Conservative Justices – for a variety of reasons which may differ depending on the regulation – might generally be more likely to view these (and other regulations) with more hostility than liberal Justices. A conservative Justice is more likely to see any or all of these regulations as an attack on federalism or as an example of federal agency overreach. Regarding the CPP or the WOTUS rule in particular, a conservative Justice may see these measures as part of a pro-environment policy agenda rather than as a manifestation of clear law.

While we don’t know who President Trump will nominate to fill Justice Antonin Scalia’s vacancy, all signs point toward President Trump nominating (and the Senate ultimately confirming) a reliable conservative. But this nomination will not change the balance of the Supreme Court before Justice Scalia died; it would remain a 5-4 conservative Court with Justice Anthony Kennedy in the middle.

So, unless membership in the Supreme Court changes again soon, the fate of these regulations may lie in the hands of a person as puzzling, powerful, and unpredictable as Donald J. Trump: Justice Kennedy.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.