Holding the Line
The Environmental Record of the 107th Congress
The spirit of the 107th Congress can be captured in one word: gridlock. The story of this Congress lies less in laws passed than in those that fell by the wayside. On environmental matters, the biggest focus was energy policy. For nearly two years, Congress ground out thousands of pages of proposals, concept papers, and talking points. The end result? Nothing, as the House and Senate could not resolve their differences. Nor could they come to terms on the budget. In the second session, the two houses couldn't even agree on its rough outlines, and by October 2002, when Congress was scheduled to adjourn, the process had ground to a complete halt with only two of the 13 annual spending bills completed.
Mid-Term Elections: What They Mean for Environmental Issues
Republicans rode the president's coattails on Election Day 2002, taking back the Senate and widening their margin in the House of Representatives. With control of the House, the Senate, and the White House, Republicans will set the legislative agenda for the next two years. Senator Daschle, who stood strong on environmental issues, will no longer run the Senate floor. Rather, Senator Lott, who supports drilling in the Arctic National Wildlife Refuge and regularly fights for the interests of corporate polluters, will be in charge.
The shift in power also results in chairmanships of the two most important environmental committees in the Senate moving to senators whose records indicate little if any support for environmental protections. On the Environment and Public Works Committee, Senator Jeffords (I-VT), long a champion of clean air and renewable energy, cedes control to oil-patch Senator Inhofe (R-OK) who has earned a score of zero from the League of Conservation Voters for several years running. And Senator Bingaman (D-NM) most likely will hand the gavel of the Energy and Natural Resources Committee to Senator Domenici (R-NM), who supports big subsidies for oil and gas companies and expansion of nuclear power, but opposes incentives for renewable energy sources.
At the subcommittee level, the National Parks Subcommittee gavel moves from Senator Akaka (D-HI) to Senator Thomas (R-WY), who regularly leads the charge to open our national forests and other public lands to more logging. On the Public Lands and Forests Subcommittee, Senator Wyden (D-OR) hands over the gavel to Senator Craig (R-ID), who often does the bidding of the mining industry. And the Clean Air, Wetlands, and Climate Change Subcommittee chair moves from Senator Lieberman (D-CT) to Senator Voinovich (R-OH).
The reason for this legislative stalemate: Capitol Hill was fairly evenly divided between senators and representatives ready to continue Congress's decades-long history of enacting legislation to protect the environment and preserve the American landscape, and those whose interests lie, together with the Bush administration, in reversing past advances to offer big giveaways to big industries. The Bush administration and like-minded members of Congress put forth proposal after proposal to dismantle environmental protections, intensifying their efforts post-September 11, 2001.
The deadlock in Congress in many cases worked to environmental advantage. Few environmentally damaging bills-including the energy bill-gained enough support to pass through Congress to the president's desk. Yet neither were pro-environment members of Congress able to pass new protections or strengthen existing ones.
The 107th Congress did hold a few bright spots for environmental policy. Most notably, Congress passed brownfields legislation that will help revitalize abandoned industrial sites in communities around the country. And both the House and Senate voted to preserve special places: the Senate voted in 2002 to protect the Arctic National Wildlife Refuge from oil drilling; both houses voted to protect national monuments and sensitive coastal areas from oil and gas development.
One of the biggest accomplishments of the 107th Congress, the new campaign finance law, while not directly environmental in nature, holds promise for protection of public health and natural resources. If the law is implemented properly, it will help reduce the disproportionate influence of big-money special interests, and empower American citizens to become more active in the political process.
But too often successes in the 107th Congress came in the form of congressional maneuvers simply to hold the line against environmental assaults. Early in 2001, congressional leaders began to push back against the administration's anti-environment agenda. In June of that year the House voted to block the Interior Department from issuing permits for coal mining and oil and gas drilling in national monuments. Congress then voted to stop the Army Corps of Engineers from spending federal money on drilling projects off the coast of Florida and in the Great Lakes. And in July came a vote requiring the EPA to issue a new standard for arsenic in drinking water, rebuking the administration's delay of and attempt to weaken the new standard.
But this environmental momentum in Congress reversed following the events of September 11. Not stopping or even slowing their assault on environmental and health protections, Bush administration officials instead used the terrorist attacks as a justification for systematically dismantling environmental protections. They argued that drilling for oil in America's last wild places should be expedited as a response to the war in Afghanistan. They sought to exempt the Department of Defense from cornerstone environmental laws such as the Clean Air Act, the Endangered Species Act, and Superfund, which funds cleanup of abandoned toxic waste sites. And they won an extremely damaging victory when they successfully pressured Congress into granting corporations broad new exemptions from public disclosure as part of the Homeland Security bill. These exemptions could allow companies to hide information about spills, leaks, pollution releases or workplace hazards.
Meanwhile, the White House and Congress opposed raising fuel economy standards, a very basic and achievable policy that would greatly increase our national security by reducing our dependence on foreign oil.
In early 2002, the Bush administration provoked a high profile fight over public health issues by approving the Yucca Mountain nuclear storage facility in Nevada for long-term storage of high-level nuclear waste from nuclear power plants. Governor Kenny Guinn (R) of Nevada and the state's congressional delegation tried to block this decision but lost when Congress passed a resolution (H.J. Res. 87) backing the administration's decision. Harry Reid (D), the senior senator from Nevada, used his considerable clout as Senate majority whip to prevent passage of this resolution and still fell short of support, as other senators voted to transport their nuclear waste problems to his state. In this case, gridlock would have provided a better outcome.
The 108th Congress Will Have a Huge Influence on the Makeup of the Federal Judiciary
New Senate Judiciary Committee chair Orrin Hatch (R-UT) intends to act quickly to clear a number of President Bush's controversial judicial nominees, several of whom are ideologically opposed to governmental regulation of industry behavior. These nominees could have profound implications for the future interpretation of environmental laws.
Rumors of several possible retirements have generated much speculation concerning the future shape of the U.S. Supreme Court. Less publicized, but just as important, is the potential effect of a Republican-controlled Senate on the federal appeals courts, most notably the U.S. Court of Appeals for the D.C. Circuit. Next to the Supreme Court, the D.C. Circuit Court is the most powerful court in the nation with regard to environmental protections because of its jurisdiction over a number of regulatory decisions made by the EPA, the Interior Department, and other federal agencies. Currently, this court is evenly split but nominations for four vacancies could tilt the balance in favor of anti-environment forces. For more on this situation, see NRDC's report "Hostile Environment: How Activist Judges Threaten Our Air, Water and Land" at: www.nrdc.org/legislation/
The administration launched another congressional fight, which is expected to continue into the next session, by failing to include in its budget reauthorization of the taxes that fund federal cleanup of abandoned toxic waste sites. Senators Boxer (D-CA) and Chafee (R-RI) led an effort to reinstate the tax.
Congressional gridlock benefited ocean management policy when a bill by Representative Wayne Gilchrest (R-MD) that threatened to weaken the landmark fisheries law, the Magnuson-Stevens Act, didn't gain enough support to make it to the House floor. Reauthorization of the Marine Mammal Protection Act also stalled in the House, after Representative Gilchrest offered a solid bill but one that likely would have been gutted in the House Resources Committee by chairman James Hansen (R-UT), who wanted to drastically reduce the scope of the law.
One of the final debates of the session hinged on forest policy and wildfires. After years of poor forest management and a summer of heat and drought, wildfires raged throughout the West, and many in Congress were under pressure to respond. Senate Majority Leader Tom Daschle (D-SD) set the wrong example, however, by waiving a South Dakota fire management proposal from standard environmental reviews required under the National Environmental Policy Act and by restricting judicial review of the plan. This opened the floodgates, with several senators from western states and the Bush administration using Senator Daschle's action as an excuse to try to green-light logging on public lands in their own states. Senator Larry Craig's (R-ID) proposal to prohibit appeals and judicial review for logging projects nationwide created such a rift in the Senate that it halted progress on the Interior Department funding bill for weeks. In the House, Republican allies of the timber industry passed legislation through the Resources Committee that would not only have restricted opportunities for public input and challenges to logging decisions, but also would have rolled back core environmental protections.
Gridlock, clearly, is not progress. But in the 107th Congress, the ability of determined members of Congress to block environmentally damaging legislation, in the face of concerted efforts by the administration to advance its anti-environment agenda, was indeed an achievement. With Senate leadership shifting in the next Congress, maintaining existing levels of environmental protections will prove difficult; adding or strengthening protections even more so.
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