Issues: U.S. Law & Policy

SUMMARY AND ANALYSIS

When it comes to the environment, the 105th Congress stands out not for what it accomplished, but for its eagerness to repeatedly abandon the democratic legislative process on controversial environmental matters, and bury destructive changes in national environmental policy deep in budget bills without public debate or votes. Budget "riders" are nothing new, but the 105th Congress has relied upon them as a wholesale substitute for the usual law-making process. This tendency toward misuse of the budget process contributed in no small way to the Congress' difficulties in passing fiscal 1999 budget legislation. Lost in this shift away from the Congress' usual process are such fundamental elements of democratic law-making as public hearings, open debate, and public votes on environmental policy changes.

It is not difficult to document this trend. Over the past two years, the 105th Congress enacted 7 times as many environmental measures through riders on budget bills as they did through the usual process of passing free-standing legislation out of Committee and approving it, after vote and debate, on the House and Senate floors.

Efforts to directly amend the nation's landmark environmental laws in the 105th Congress were confined almost entirely to unsuccessful attempts to resolve long-simmering battles over the Endangered Species Act and the Superfund law. In neither case did the legislative proposals reach the House or Senate floor. Of course, a large number of bills that directly or indirectly undermine our environmental laws were also introduced, and several were approved at the Committee level, or even by the full House or Senate. But, as described below, none of these measures became law. In the end, only three significant environmental proposals were enacted by this Congress through the normal legislative route (surface transportation funding, Texas nuclear waste disposal, and the wildlife refuge bill).

By contrast, the 105th Congress enacted more than 20 separate measures, spanning the breadth of environmental issues, as riders on funding bills. In most cases, no opportunity was provided for a separate vote or debate in the House or Senate. Numerous riders were added in the final rush of House-Senate negotiations, where public scrutiny in any form was impossible. The only recourse available to members who object would be to oppose a multi-billion dollar funding measure, perhaps contributing to the shut down of a federal government agency in the process.

There is a ready explanation for this disturbing shift away from public law-making. In the wake of the broad public backlash against the brazen environmental assaults of the 104th Congress, Congressional leaders were understandably reluctant to launch another open and direct assault on popular environmental safeguards. Moreover, moderate Republicans in the House of Representatives teamed with Democrats to make House approval of controversial environmental legislation a dicey prospect on high profile issues.

Unfortunately, however, the architects of the 104th Congress' environmental attacks retain their influential posts in the 105th Congress, and their desire to weaken environmental safeguards has apparently not diminished. When it became clear that public opposition (and determined bipartisan resistance) would make it impossible to move anti-environment legislation forward directly, these environmental detractors used their influence on the budget process to turn annual funding bills for government agencies into vehicles for environmental assaults. In the end, searching for a way to promote an unpopular agenda, environmental detractors routinely circumvented the democratic process.

The Legislative Graveyard: A Quick Tour of the Environmental Assaults in the 105th Congress

Congress' time and attention on environmental matters was focused largely on legislative proposals opposed by the environmental community, many of which moved haltingly forward throughout the Congress but fell short of final passage.

The most worrisome legislative proposals were the sweeping but indirect efforts to broadly roll back existing environmental protections. These included, most notably, "takings" legislation that would undermine state and local land use measures (S. 1256; HR 1534); and "regulatory reform" legislation that would hamstring federal enforcement of the full range of environmental and public safeguards (S. 981). The "takings" bill passed the House and was reported out of the Senate Judiciary Committee. But the measure had strong bipartisan opposition, and it was pulled from the Senate floor after supporters failed to secure enough votes to block an expected filibuster. The "regulatory reform" measure was reported out of the Senate Governmental Affairs Committee in a contentious session in the winter of 1998, but it too was intensely controversial and it never reached the Senate floor.

Broad attacks on public lands policy were also a mainstay of the Congress' anti-environmental agenda. These included: proposals to dramatically scale back the environmental protections in the National Forest Management Act; a measure that would eliminate the President's long held authority under the Antiquities Act to designate unique federal lands as national monuments, and a grazing bill that would block ongoing reforms at the Bureau of Land Management and continue the subsidized destruction of Federal rangelands. The grazing bill and the assault on the Antiquities Act were approved in late 1997 by the full House, but they never moved through the Senate. Efforts late in the Congress to pass a collection of public lands assaults as part of a so-called Omnibus Parks bill met a firestorm of opposition on the House floor, and the bill was defeated in an embarrassing 302 to 123 vote. More than 100 Republican and nearly 200 Democrats opposed the measure.

There were also direct efforts to weaken a number of important environmental laws, including the Endangered Species Act (ESA), the Superfund hazardous waste law, and the Clean Air Act. The ESA and Superfund bills were high priorities in both legislative bodies in early 1998. While the ESA bill was reported out of the Senate Environment Committee, it faced opposition from both environmentalists and property rights advocates, and it was never brought to the Senate floor. There were extensive, unsuccessful negotiations on Superfund in both the House and the Senate. A bill was reported out of the Senate Environment Committee, but Superfund measures did not reach the floor in either body.

For much of the 105th Congress, there was also a flurry of activity around efforts to block EPA's new Clean Air Act health standards for ozone and particulate matter. In the end, after a great deal of posturing, it became clear that the votes were not there to overturn a Presidential veto of legislation to roll back the clean air measures. Congressional leaders were reluctant to have members go on record in opposition to cleaner air as part of an unsuccessful assault, and legislation to overturn the new air quality standards was never reported out of House or Senate committees.

There was one most important exception to the Congress's overall inability to legislate directly on the environment. Congress passed into law the surface transportation funding bill -- technically called the "Transportation Equity Act for the 21st Century" -- after accommodating a broad range of environment concerns. This bill will establish and fund the nation's transportation policies going into the next century. While much of the battle was, typically, over state funding formulas, the bill's programs were revised in an effort to help relieve America's pollution and urban sprawl problems.

Budget Riders

The overwhelming majority of anti-environmental legislation passed by this Congress consisted of small but important provisions inserted into unrelated legislation, usually concerning the budget. Riders were tucked into the fiscal 1998 supplemental spending bill (putting a highway through a national park unit and encouraging subsidized logging in roadless areas); the fiscal 1998 Interior Appropriations Bill (weakening protection of New Mexico and Arizona forests and undermining national forest planning procedures); the Transportation Equity Act (delaying a critical program to improve air quality in national parks and promoting use of motorized vehicles in Minnesota's Boundary Waters Canoe Area) and the Omnibus 1999 Appropriations Bill (fifteen separate riders on a variety of controversial environmental topics). A detailed list and description of the riders in the 105th Congress is provided in Section III.

Environmentally Positive Measures: The Road Seldom Taken

One of the most unfortunate aspects of the Congress' continuing environmental assaults is that environmental members of Congress, and national environmental organizations, have been forced to put their energy into protecting the hard-fought progress that we have achieved over the past 25 years under America's landmark environmental laws. While these efforts have for the most part succeeded, the sad reality is that we need to be moving forward if we are to succeed in overcoming today's serious environmental challenges -- like global warming, urban sprawl, and water pollution from agricultural and urban run-off. Merely halting a backward slide isn't good enough.

A number of important positive proposals were introduced in the 105th Congress, but they were not moved forward through the legislative process. The most important examples include:

• S. 687 and H.R. 2909. These vital measures would dramatically reduce smog and global warming, and save ratepayers money at the same time through an environmentally oriented restructuring of the electric utility industry. Neither bill was reported out of committee in the 105th Congress.
  
  
• H.R. 3232. This important bill expands existing Clean Water Act regulation of factory farms where tens of thousands of animals are housed. The Act requires individual permits and whole farm waste management plans for factory farms, requires that they conduct water quality monitoring and report on the results, makes animal owners share responsibility for the waste, and phases-out open air lagoons that store huge quantities of animal waste. This bill was not reported out of Committee in the 105th Congress.
  
  
• H.R. 1500. This measure would ensure protection for millions of acres of unique redrock wilderness in southwestern Utah. This bill was not reported out of committee in the 105th Congress.
  
  
• H.R. 900 and S531. Wilderness designation would be granted for the arctic coastal plain of the Arctic National Wildlife Refuge, permanently preventing oil and gas leasing in the "biological heart" of the Refuge. The bill was not reported out of committee in the 105th Congress.

One of the most important pro-environment bills in the 105th Congress was the Defense of the Environment Act (H.R. 1404). This bill would not change any environmental statute, but would instead impose vital procedural safeguards to ensure that a separate vote and debate would be allowed on any anti-environment provisions buried in any funding bill or other unrelated legislation. While the measure was never formally considered at committee, Rep.Waxman (D-CA) secured 190 votes for the bill on the House floor when he offered it as an amendment to a regulatory reform initiative.

On a more positive note, in the surface transportation funding bill (S. 1173) the 105th Congress passed a stronger bill on the environment than most advocates thought possible. A number of provisions were adopted to ensure that the billions of dollars it provides for transportation funding is spent in an environmentally sound manner. However, S.1173 was also loaded up with pork projects, many of which are environmentally dubious, and in the final hours of House-Senate negotiations over the measure, anti-environmental riders were added.

One other step forward is worthy of mention, this one in the public lands arena. In early 1998, moderate and conservative Republicans respectively agreed to a resolution of the long-standing battle over the so-called purchaser road credit program through which taxpayers reimburse timber companies for the costs of building timber roads through pristine areas. In exchange for the support of conservative Republicans for the elimination of this program, moderate Republicans agreed not to support more aggressive proposals to reduce funding or subsidies for logging in national forests. The purchaser road credit program was eliminated in the 1999 budget as a result of this accord.

The Climate Debate: A Low Point

While there were few actual votes, the international accord on global warming negotiated in Kyoto, Japan last December nevertheless cast a long shadow over environmental debate in the second session of the 105th Congress. Notions of a Senate resolution of disapproval regarding Kyoto surfaced in early 1998 and quickly faded. Since then, there have been several ultimately unsuccessful attempts to limit the ability of the Clinton Administration to lay a foundation for action to protect the global climate.

When the prospects for direct legislation faded, the emphasis shifted to riders. One rider inserted in the EPA appropriations bill would have prohibited Agency officials from educating the public on global warming. In the only House vote to date on the global warming issue, the House approved an amendment by Rep. Obey to strike this rider. Another rider, which sought to forbid agency officials from even "developing" rules "in contemplation" of the global warming problem, was also de-fanged, this time in final negotiations with White House officials. However, riders were added to a number of funding bills that expressly forbid the Administration from seeking to carry out the Kyoto protocol before it is ratified by the U.S. Senate, a step which the Clinton Administration has repeatedly announced it would not take in any case.

Congress' hostility to action on global warming continues to fly in the face of public opinion. A September 1998 poll by the Mellman Group found that 79 percent of the registered voters it surveyed supported the international effort to reduce global warming. Those in favor include 84 percent of Democrats and 73 percent of Republicans. Similarly, an earlier Harris Poll found the Kyoto Protocol to be favored by 74 percent of those who knew about it, and by a substantial majority of those who identify themselves as Republicans (by 56 to 36 percent) or as Conservatives (by 66 to 29 percent). The strong poll numbers may well reflect the public's growing awareness of the record heat for 1998, the growing list of startlingly abnormal weather extremes experienced this year, and the building scientific case that the problem of global warming is real and immediate.

Conclusion

A legion of public opinion polls is available to document the obvious fact that Congress' continuing efforts to weaken environmental protection are at odds with the views of the overwhelming majority of Americans. The challenge for Americans who care about our environment is to find ways repair the persistent disconnect between public opinion and the actions of our elected representatives in Congress on environmental issues.

One important step toward this goal is to restore the safeguards of democracy -- open debate, hearings, and public voting -- to the process of making national law on environmental matters. It is no accident that the most serious environmental excesses of both the 105th Congress and the 104th(the Timber Salvage Rider) took the form of budget riders. Whatever other problems may exist in our democracy, it is clear that the system cannot function properly if national laws on the environment, or any other topic, can be revised in secret.

The unprecedented publicity regarding Congress' poor handling of the FY 1999 (H.R. 4328) omnibus appropriations bill, a 4000 page behemoth with funding for 10 federal agencies and a slew of policy riders, may be of some help. Senior House and Senate members complained bitterly about the unwieldy process, and members openly confessed that they had no idea what was in the massive spending package. Perhaps vocal criticism of this process will promote some sorely needed reforms.

Three steps would do a great deal to redress the most egregious aspects of the problem of back door lawmaking.

1. The Senate should reinstate two extremely important safeguards to assure the integrity of the legislative process. The first is a long-standing Senate rule requiring funding bills to be limited wholly to budget matters. The second is another Senate rule requiring that House-Senate negotiations be limited only to matters directly addressed in measures approved by the full House or Senate. Both safeguards are long-held Senate traditions that were eliminated in the 104th Congress.
   
   
2. Congress should enact the Defense of the Environment Act (H.R. 1404), which specifically requires a separate, open vote and debate on the House and Senate floors where budget measures, or other unrelated bills, include provisions that weaken environmental protection.
   
   
3. The President should unequivocally announce at the outset of the budget process that he will not sign any future bills that include environmentally destructive riders, and then he should follow through on that commitment. While the Clinton Administration has condemned anti-environmental riders, and gone to the mat in many cases to have them removed from legislation, it has also implicitly endorsed the use of riders by letting others go unchallenged, and routinely signing bills containing riders into law.