Issues: U.S. Law & Policy

THE LEGISLATIVE GRAVEYARD -- ATTACKS TURNED BACK

Takings/Land Use Control | Regulatory Reform | Ghosts of Regulatory Reform | Public Land Attacks in the Omnibus Parks Bill |
Global Warming and the Kyoto Protocol | Clean Air | Wetlands | Forests | Superfund | Grazing | Endangered Species Act |
Nuclear Waste Disposal | Antiquities Act Attack | The "Black Helicopter" Bill

TAKINGS/ LAND USE CONTROL -- H.R. 1534/ S. 2271

Even as they sounded the rally-cry of getting the federal government out of local affairs, some Members of Congress sought to turn local zoning and planning disputes into federal cases. The House passed legislation that would have opened the doors of the federal courts to numerous new "takings" claims, in which developers or private landowners seek compensation for not polluting, building, or logging protected land in accordance with zoning decisions and environmental protection laws. The bill died in the Senate after a contentious fight.

This legislation represented the first attempt by developers to use Federal law to directly limit local government authority over land uses. Legislation considered, but rejected, in the 104th Congress would have imposed new obligations only on the federal government to pay companies to obey health and safety laws.

Fundamental Concerns with the Proposal

Both the House and Senate bills would have:

• Undermined local control over land uses in the name of protecting the private property rights of a few. At present, developers wishing to challenge property restrictions as a taking under the Fifth Amendment must first attempt to resolve their disputes through local and state processes before bringing suit in federal court. Both H.R. 1534 and S. 2271 would have allowed developers to bypass these processes and go straight to federal court. The costs of defending such litigation could compel financially-strapped cities and counties to concede to development interests in determining local land uses. Both the environment and the property values of ordinary homeowners would suffer from inappropriate development.
  
  
• Potentially altered fundamental principles of "takings" jurisprudence established by the U.S. Supreme Court. While proponents of H.R. 1534/ S. 2271 tried to sell the legislation as merely making procedural changes, it could have had devastating substantive effect. In evaluating "takings" claims, the federal courts have consistently examined the effect of the challenged government action on the relevant parcel as a whole. The courts have rejected attempts by claimants to segment property into the affected and unaffected portions of the relevant parcel. In analyzing whether a regulation constitutes a taking that requires compensation, the Supreme Court has looked at whether the property owner is denied all economically viable use of his or her property. Even if the regulation denies all economic use of the affected portion, many uses of the entire parcel can remain.
  
  If H.R. 1534/ S. 2271 were enacted into law, courts would be forced to decide "takings" questions based on the denial of use of a portion of property, and many more "takings" would occur. Suppose, for example, an owner seeks permission to develop a 50-acre coastal strip of a 1000-acre parcel. If the city denies the request and the owner alleges that the denial constitutes a taking of the 50 acres, the claim would be eligible for federal court under the bill, even if the owner had not been denied permission to develop the other 950 acres.
  
  
• Forced federal courts to make decisions based on incomplete records. The courts have held that a taking occurs when a government regulation goes too far. By allowing developers to go to court after the denial of a single permit application, H.R. 1534/ S. 2271 would have required courts to decide whether the regulation has gone too far before knowing just how far the regulation goes. Most disputes about property use are resolved as the result of a back-and-forth process between local government officials and developers. A city might deny a permit for a full-scale commercial development, but be willing to allow a smaller development. Under H.R. 1534 and S. 2271, courts would have known what a city had rejected, but not what it would be willing to approve, when faced with rendering a decision.

In sum, H.R. 1534/ S. 2271 would have encouraged litigation, discouraged compromise approaches to problem solving, and increased costs for local governments. The ability of local governments to balance the interests of both developers and neighboring property owners, as well as to protect the environment, would have been seriously compromised.

What Happened

Having garnered significant momentum in the House, H.R. 1534 passed in October 1997 by a vote of 248 to 178. Selling the bill as merely procedural, the National Association of Home Builders signed up over 200 cosponsors. Members became aware of the bill’s potential consequences, and opposition grew. In fact, 13 cosponsors ended up opposing the bill when it came to the House floor.

In March 1998, the House passed a separate bill, H.R. 992, creating new opportunities to bring "takings" claims by expanding the jurisdiction of the Federal Claims. Court Traditionally, the Court of Claims has decided how much compensation is due, but has not had the authority to invalidate agency actions. H.R. 992 would have given the Court of Federal Claims new authority to review the validity of government actions.

In the Senate, the two House "takings" bills were packaged together into a single vehicle. Senator Leahy (D-VT) led the opposition to the bill, but was joined by several moderate Republicans who shared his concerns about the impact of the bill on the ability of local communities to preserve and enhance their quality of life. Senate Hatch (R-UT) brought the bill, S. 2271, to the floor on July 13, 1998, but it fell eight votes short of the 60 needed to invoke "cloture" to end debate, and move the bill forward. While aggressively promoted by the National Association of Home Builders and Defenders of Property Rights, "takings" legislation in the 105th Congress could not overcome the powerful opposition of a diverse coalition that included the National Governors Association, the National Conference of State Legislators, the National League of Cities, the American Planning Association, 37 state Attorneys General, federal judges, and environmental organizations across the country.

REGULATORY "REFORM" -- S. 981

Picking up where the 104th Congress left off, Senator Thompson (R-TN) introduced legislation, S. 981, to significantly change the rulemaking process. This time a key Democrat, Senator Levin (D-MI), joined the reform efforts. While not as extreme as the proposals put forward in the last Congress, this bill still would have undermined critical environmental, public health and safety protections. In the end, the bill never came to the Senate floor because several Senators, including Senators Durbin (D-IL) and Torrecelli (D-NJ), remained strongly opposed.

Fundamental Concerns with the Proposal

The bill as reported out of the Senate Government Affairs Committee on March 10, 1998, would have made it much more difficult for agencies like the Environmental Protection Agency to put important new health and safety protections in place. Under the bill agencies would have been required to justify new protections based on unworkable "greatest net benefits" and "most cost-effective" tests. In addition, the bill would have created new opportunities for industry lawyers to challenge new protections in court.

• The so-called "net benefits" test in S. 981 would have required agencies to translate the various benefits of safeguards—from healthier children to safer foods—into a dollars and cents total that pushes agencies toward less protective rules. This test presumes that in every instance there is a single approach to protecting health, safety or the environment which can be mathematically demonstrated to have the greatest "net benefit" or be the most cost-effective. The reality, of course, is that policy choices often reflect priorities for health or environmental protection which do not readily translate themselves into such neat numerical frameworks. Even so, agencies would have been required to rely on economic assumptions to generate precise dollar estimates for the benefits of regulation, including, for example, the dollar value of a human life, a healthy child, an intact ozone layer, or a clean lake.
  
  
• S. 981 lacked a "savings clause" to assure that existing health, safety, and environmental laws remain intact. Without a provision expressly preserving existing laws, the various requirements of S. 981 would have been interpreted to override existing legal protections.
  
  
• S. 981 would have discouraged agencies from making health, safety, or environmental protection a priority. A government agency seeking to issue a more protective rule that fails to pass the bill’s tough quantitative tests, could have gone forward only if the Agency determined that it "cannot reasonably" select a rule allowing it to make the net benefit or cost-effectiveness determinations. (Section 623(c)(3)(B)). "Cannot reasonably" is a sweeping and undefined term that would have imposed a nearly impossible burden.
  
  
• The judicial review provisions in S. 981 appeared to empower courts to overturn as "arbitrary and capricious" any rule where the agency has not met the economic tests called for in the bill. Section 627(d) expressly provided that the court "shall consider" the cost-benefit and risk assessment determinations required by the bill in determining whether the final rule is "arbitrary or capricious" and should therefore be overturned. Courts would have been allowed to disregard this directive only if the agency could demonstrate that such findings were not "material to the outcome of the rule."
  
  
• Unlike traditional objective "peer review" panels, the "peer review" panels established in S. 981 to review risk assessments and cost benefit analyses would have allowed the participation of individuals with a direct conflict of interest. The bill allowed participation by individuals with a direct financial interest in the rulemaking, including individuals affiliated with parties subject to regulation under the rule, provided only that such financial interest was disclosed. This fact, in combination with the huge financial and manpower advantages of the private sector over the public interest community, suggests that the peer review panels called upon to oversee regulatory analyses would be heavily weighted toward experts with industry affiliations. The concept of allowing individuals with a direct financial interest to critique the analytical foundation for new rules, which they can later challenge in court, is a grotesque distortion of the basic fairness that current law, in particular the Administrative Procedure Act, has long sought to assure in the regulatory process.
  
  
• Even safeguards already on the books would have been subject to challenge. Agencies would have selected existing rules to review based on the list compiled by a new Advisory Committee on Regulation. This Advisory Committee could include industry representatives who would financially benefit from rolling back existing protections. The agency would have to evaluate these existing rules under S. 981’s new economic tests. Should the agency decide to keep the safeguard in place after the "lookback" study, section 633(l) of the bill empowers courts to overturn that decision, and send the rule back to the agency, if polluters, tobacco companies or other regulated parties can show that another alternative would "substantially increase net benefits." This provision is an open invitation for big businesses, armed with massive teams of economic consultants and lawyers, to challenge and weaken popular existing protections ranging from cigarette labeling to clean water standards.
  
  
• Although authors of S. 981 indicated that they did not intend to allow judicial review of the process for, or contents of, the various regulatory analyses called in the bill, the legislation did not include a provision specifically barring such review. Court review of such matters would almost certainly tie up the agency in lengthy and pointless litigation that would delay public health protection.

What Happened

The version of S. 981 that was approved by the Governmental Affairs Committee in March 1998 drew strong opposition not only from environmental organizations, consumer groups and labor unions, but also from the Clinton Administration. In a March letter, Office of Management and Budget Director Frank Raines outlined the White House’s objections to the bill’s expansion of judicial review, the implicit override of existing environmental laws, and the substantial new costs imposed on agencies, among other things.

In August 1998, Senators Levin and Thompson made significant changes to S. 981 in response to the Clinton Administration’s objections. Many of the bill’s problems were fixed. The revised bill, for example, did not create new opportunities for industry lawyers to challenge important safeguards in court. Nevertheless, the new bureaucracy created by S. 981 would have hindered rather than improved the government’s effectiveness. Environmentalists and some Senators continued to emphasize the need to evaluate the many changes already made to the regulatory process by the last Congress before moving forward with new changes. Government agencies are already fully analyzing the costs and benefits of their actions under both Executive Orders and several significant pieces of recently enacted legislation, including the Small Business Regulatory Enforcement Fairness Act, the Unfunded Mandates Reform Act, amendments to the Paperwork Reduction Act, and the Regulatory Accounting rider to the 1997 Omnibus Appropriations law.

Despite defusing the opposition of the Clinton administration, the sponsors of S. 981 never brought their revised version of the bill to the Senate floor for a vote.

GHOSTS OF REGULATORY "REFORM"

In addition to the comprehensive regulatory "reform" proposal put forward in the Senate, the 105th Congress considered several smaller and more targeted initiatives. Many Members, however, recognized the destructive impact such proposals would have had on health and environmental protections. In the end, none were enacted into law.

"Lawbreakers’ Immunity Act" -- H.R. 3310/ S. 1867

Fundamental Concerns with the Proposal

This legislation, introduced by Rep. David McIntosh (R-IN) and Senator Susan Collins (R-ME), would have broadly waived civil penalties for first-time violations of vital reporting and recordkeeping requirements, with no consideration for the importance and reasonableness of these crucial measures. Currently, when small businesses make good faith efforts to comply, agencies almost always waive fines for first-time violators anyway. But H.R. 3310/ S. 1867 would have taken away agency flexibility to impose fines on willful violators, and created an incentive for some small businesses to break the law. The bill’s automatic probation for first time offenders would have given bad actors little reason to comply until caught. Thus, the bill would have put those many businesses that work hard to do the right thing at an unfair competitive disadvantage.

Numerous crucial health and environmental programs rely on reporting requirements that would have been undermined by this legislation. For example, H.R. 3310/ S. 1867 would have encouraged noncompliance with recordkeeping requirements that meat packers and other food processors take necessary steps to prevent contamination from dangerous bacteria. The bill also could have undermined programs to track hazardous materials, report on hazardous emissions, report on drinking water contamination and give notice of chemical accidents.

Proponents of the legislation argued that it was necessary to reduce unnecessary paperwork imposed on small business. Recent laws, however, already work to minimize the paperwork required of small businesses, including the Small Business Regulatory Enforcement Fairness Act, recent amendments to the Paperwork Reduction Act, and the Regulatory Flexibility Act. While duplicative and unnecessary paperwork should be eliminated, reporting requirements critical to delivering public health protections should not.

What Happened

The House approved H.R. 3310 on March 26, 1998, by a vote of 267 to 140. Although Senator Collins introduced a companion bill, S. 1867, that same day, the legislation stalled in the Senate Governmental Affairs Committee.

"Fair Warning" Legislation -- H.R. 4049

Fundamental Concerns with the Proposal

Rep. Gekas (R-PA) once again promoted legislation this Congress that was first put forward in the 104th Congress to limit penalties for violators of federal regulations such as those preventing air and water pollution and toxic waste dumping. The so-called Regulatory Fair Warning Act would have provided blanket immunity from penalties for violation of any environmental law—no matter how egregious—if the violator claimed that the law had not provided "fair warning" of its requirements. Prosecutors already have the authority to excuse those who make every effort to comply with the law, but fail to because of a law’s ambiguity. H.R. 4049 would allow clever lawyers to shield obviously harmful behavior by arguing that a rule’s requirements were not clear. The bill would have excused criminal conduct without even requiring the harm done be corrected.

In addition, H.R. 4049 would have barred penalties for criminal conduct even when fair warning is provided. A violator could avoid sanction if he could persuade a state official to provide a different (but wrong) interpretation of the federal rule. With such an interpretation in hand, a polluter could illegally dump hazardous waste for years without fear of being fined or penalized. The bill excused polluters from the responsibility of seeking out information what is required of them from those very federal officials who have the authority and expertise to interpret federal law.

What Happened

Hearings on H.R. 4049 were held before the House Judiciary Committee on July 23, 1998. An effort to move the bill out of Committee in September 1998 was thwarted by the ranking Democrat on the Committee, Rep. John Conyers (D-MI).

"Audit Privilege" Legislation -- H.R. 1884/ S. 866

Fundamental Concerns with the Proposal Senator Kay Bailey Hutchison (R-TX) and Rep. Joel Hefley (R-CO) reintroduced their legislation from the last Congress to immunize environmental law violators from all penalties—civil, administrative, or criminal—if the offender disclosed its violations to a federal or state agency. Under this approach, enterprising polluters who had knowingly violated the law could foreclose any enforcement action simply by informing government officials of their failure to comply. Current economic incentives for timely compliance would have been eliminated by this massive new loophole.

What Happened

The bill was considered in the Senate Committee on Judiciary and the House Judiciary, Commerce, Transportation and Infrastructure, Agriculture and Resources Committees, but never acted upon.

Mandates Information Act -- H.R. 3534/ S. 389

Fundamental Concerns with the Proposal

This legislation would have made it more difficult to enact new health, safety and environmental protections. It would have established a new point of order (a procedural roadblock to considering legislation on the House or Senate Floor) against considering bills that impose costs exceeding $100 million on the private sector. The bill’s proponents argued that Members of Congress should know about the costs of proposed legislation on industry before voting for it. The 1995 Unfunded Mandates Act, however, already requires the collection of information about the costs of private sector mandates contained in new legislative proposals. What the new Mandates bill would have added is a mechanism to block such proposals.

While the point of order could be waived by a majority vote, such procedure would have created an opportunity for Members of Congress to kill important health and safety protections without voting directly against them. The bill focused on only one side of the equation—costs; it took no account of benefits. The bill ignored the crucial fact that federal environmental laws generally have not created new costs, but simply helped to distribute them where they belong. Cleaning up pollution and making workplaces safer has shifted costs from the people who suffered such harms to the enterprises that inflicted them.

What Happened

On May 19, 1998, the House passed H.R. 3534, 279 to 132. The bill was approved by the Senate Governmental Affairs Committee on September 2, 1998, but stalled in the Senate Budget Committee which also had jurisdiction over the bill.

PUBLIC LAND ATTACKS IN THE OMNIBUS PARKS BILL -- H.R. 4570

As in the last Congress, several Members sought to move legislation by packaging numerous measures affecting public lands into a single omnibus parks bill. Rather than enhance the nation’s parks, however, this bill would have done much to destroy them. Provisions in the bill would have weakened wilderness protection, accelerated logging by circumventing full environmental review, and privatized land at several national parks including Cumberland Island and the Chesapeake & Ohio Canal. When the measure was sent to the House Floor, over 100 Republicans joined nearly 200 Democrats in rejecting the bill.

What was Proposed

The Omnibus Parks bill became the vehicle to move forward legislation that lacked the support necessary to move forward on its own. Such legislation included:

• Elimination of wilderness protection currently in place for more than 100,000 acres in Utah classified as Wilderness Study Areas. This section also would have expanded uses allowed in wilderness areas to include road-building and recreational vehicle use.
  
  
• Limitations on the President’s authority to designate natural and historic treasures as national monuments deserving of protection from damaging development and misuse. This section would have required Congressional approval within two years for designation of any monument over 50,000 acres.
  
  
• Waiver of full environmental review under the National Environmental Policy Act for reviewing salvage logging operations in ten different states.
  
  
• Giveaway of federal water assets (e.g., the Sly Park Unit of the Central Valley Project in California) at well below market value and without consideration for environmental impacts.
  
  
• Conveyance of easement in Alaska’s Chugach National Forest for new roads. The provision would have waived environmental review even though the proposed roads would cross salmon streams, wetlands, and disturb national significant migratory bird habitat.
  
  
• Unscrutinized disposal of BLM lands in Nevada to facilitate urban sprawl without adequate review, including public comment, called for under the Federal Land Policy and Management Act.
  
  
• Privatization of C & O Canal Park lands. This provision would have authorized the sale and/ or leasing of land and cabins in the C & O Canal National Historic Park for private residential use. These structures, along with the land on which they stand, were purchased by the National Park Service under special agreements that allow sellers to retain right-of-use and occupancy for a fixed period of time only.
  
  
• Privatization of Cumberland Island National Seashore. This provision would have promoted a land exchange in the heart of the park’s wilderness creating a permanent private enclave for one wealthy family.

What Happened

H.R. 4570 was first introduced by Rep. Hansen (R-UT) on September 15, 1998, with just a few weeks left before Congress was scheduled to adjourn. It moved quickly to the floor without any vote in the House Resources Committee. Democrats, led by Rep. George Miller (CA), voiced strong opposition, as did many moderate Republicans including Rep. Sherwood Boehlert (NY). Some of the provisions, most notably the Antiquities Act provision limiting Presidential authority to declare national monuments, were deleted from the bill before it was brought to the floor for a vote. Few significant changes, however, were made and strong opposition remained.

The bill was brought to a vote on October 7. The debate clearly indicated that the sponsors lacked the votes needed for passage. Not only were environmental advocates opposed to the bill, but conservative Republicans such as Rep. Tom Coburn (R-OK) also spoke against the bill because he believed it inappropriately trampled on private property rights. The bill was soundly defeated by a vote of 123 to 302.

GLOBAL WARMING AND THE KYOTO PROTOCOL

The Kyoto Protocol

In December, leaders from more than 160 nations met in Kyoto, Japan, and agreed to a landmark international agreement that would for the first time impose binding international requirements for reduction of the greenhouse air pollutants that threaten our planet. The agreement is a vital first step in the effort to avert the disastrous long term impacts of global warming, which scientists warn will include heat waves, drought, spread of infectious disease, severe storms, and flooding of coastal and inland areas.

The treaty calls on industrialized nations to bring their greenhouse gas emissions to pre-1990 levels. Specifically, the European Union commits to reduce to 8 percent below 1990 levels, the United States to 7 percent, and Japan to 6 percent. In addition to domestic action to achieve these pollution reductions, countries may engage in international "emission trading," a process in which one country can receive emission credits from another by, for example, providing emission-reducing technology. Rules governing emissions trading will be developed at future international meetings.

The Economics of Protecting the Planet

Industry analysts predict disastrous economic repercussions as a result of the efforts to reduce greenhouse pollution (just as they have predicted economic disaster as a result of almost every other major environmental initiative of the past three decades). However, studies indicate that a restructuring of the highly inefficient electric utility industry incorporating pollution reduction requirements, coupled with strengthened fuel economy standards for motor vehicles and other energy efficiency measures, could meet the Kyoto targets while producing economic benefits (See Energy Innovations: A Prosperous Path to a Clean Environment, Alliance to Save Energy et al., 1997; Scenarios of U.S. Carbon Reductions: Potential Impacts of Energy-Efficiency and Low-Carbon Technologies by 2010 and Beyond, Oak Ridge National Laboratory et al., 1997).

Low polluting and energy efficient technologies are projected to be a major focus of global economic growth over the next decade, and large economic and public health benefits are expected to flow to nations that take a lead in development of climate friendly technologies.

Congressional Outlook

But our nation cannot begin the process of moving toward a more climate friendly economy and energy system unless the resistance in the U.S. Congress can be overcome. Already, climate change and the Kyoto agreement were at center stage of many legislative battles in the 105th Congress.

Early on in the first session of this Congress, Senators Hagel (R-NE) and Byrd (R-WV) led the effort to pass a broadly worded resolution requiring the United States not sign an agreement unless developing countries are included. While the expressed intention of this resolution was merely to prevent an economic disadvantage for industrialized nations, Anti-Kyoto forces pointed to its success as a demonstration of wide opposition to any climate change treaty.

While Congressional opposition was strong, there did not seem to be the consensus that Kyoto opponents would like. In the second session of Congress, the environment won a few major battles over climate change. The first was a successful effort by Senators Roth (R-DE) and Jeffords (R-VT) to secure funding increases for renewable energy in the FY 99 Energy and Water Appropriations bill. Jeffords and Roth, flanked by bi-partisan Senate support, overcame objections from Kyoto opponents that funding increases would effectively implement the treaty before it is ratified.

Later in the Appropriations process, Kyoto opponents attempted to undermine the treaty again by attaching riders to "must-pass" Appropriations bills (see Table 2: Anti-Environmental Budget Riders). The most offensive of such attempts was a rider on the FY 99 VA-HUD Appropriations bill that would have barred the EPA from educating the public about the dangers of global warming. On July 23, 1998, Rep. Obey (D-WI), however, introduced an amendment to strike this rider and, with bi-partisan support, the rider was defeated by a vote of 226-198. The environment was not able to fend off every attack, however, and one rider, which would prevent the EPA from issuing regulations to implement the Kyoto Protocol, was forced into law as part of the Omnibus Appropriations bill. Furthermore, individual Members of Congress have made an all-out effort to chill any Administration initiatives on global warming. For example, the Chair of the Government Reform Subcommittee on National Economic Growth, Natural Resources and Regulatory Affairs has sent 60 oversight requests to 22 agencies, including seven formal subpoenas. In response, the Administration spent more than 10,000 staff hours and turned over 400,000 pages of documents. These are scarce resources that the Administration can’t devote to promoting solutions to the problem.

Developing Countries

The Byrd-Hagel resolution calls on the Administration to secure additional commitments from developing nations as part of any climate treaty. The Kyoto protocol does involve developing countries, but the emission reduction obligations fall largely to the industrialized world which release the lion's share of greenhouse gases. Most relevant to the domestic debate is the undisputed fact that the United States, with 4 percent of the world’s population, alone releases more than 20 percent of the planet’s greenhouse pollution.

The Clinton Administration is now working to secure greater commitments from developing nations, both in bilateral discussions and in preparation for further international negotiations in Buenos Aires. Many developing countries are already taking steps to limit their greenhouse gas emissions, but the Administration has announced that it will not present the Kyoto agreement to the Senate for ratification until further commitments have been secured. Hence, the actual vote on ratification is not likely to occur until 1999 or 2000.

Public Support

To prevail in the upcoming Senate ratification debate, the environmental community will need to demonstrate that protecting the planet is good politics. This should not be as difficult as it might sound. In addition to the support base built in the 105th Congress, a recent poll by the Mellman Group found that 79 percent of registered voters nationwide support the Kyoto protocol. Mellman found that 73 percent of Republicans support the agreement

CLEAN AIR: EFFORTS TO DELAY OR BLOCK NEW HEALTH STANDARDS -- H.R. 1984/S. 1084

In late 1997 and much of 1998 a collection of House and Senate members sought to block implementation of the new Clean Air standards for ozone smog and small particulate air pollution. EPA estimated that the new standards will prevent more than 15,000 premature deaths, reduce heart and lung disease, and avoid countless serious asthma episodes in children across the country.

S. 1084

Industry opponents of the clean air standards and their allies tried several unsuccessful tacks to block the standards in the waning days of the first session. One of the most remarkable was the effort by Senator Inhofe (R-OK) to attach such a provision onto S. 1269, the Senate bill to renew the President’s fast track authority to negotiate trade agreements.. When other Senators were not present to object, Senator Inhofe violated the usual Senate rules and courtesies and added his bill overturning the new standards, S. 1084, to the fast track legislation. This tactic angered both Democrats and Republicans, and Senator Inhofe was forced to return to the floor the next day and retract his amendment. S. 1084 was never reported out of the Senate Environment and Public Works Committee.

H.R. 1984

The most prominent House vehicle for overturning the standards was H.R. 1984, introduced by Representative Klink (D-PA). This legislation mandated a four year delay on the issuance of the new air quality standards. H.R. 1984 was never reported out of the House Commerce Committee.

WETLANDS -- H.R. 1290 AND H.R. 2155

Wetlands are among America’s most valuable natural resources, serving as filters for water pollution, sponges to soak up floodwaters, and crucial habitat for many species of fish and wildlife. Despite their clear value to people and the environment, wetlands found themselves yet again in Congress’s legislative crosshairs in 1997-98. The two most significant pieces of anti-wetlands legislation both originated in the House of Representatives.

H.R. 1290, a bill introduced by Representative Jones (R-NC), would have created broad authorization for the practice of wetlands mitigation banking without including the safeguards necessary to protect the environment. Under H.R. 2155, a bill introduced by Representative Neumann (R-WI), the Army Corps of Engineers would have been required to continue authorizing wetland destruction indefinitely under a scientifically discredited, "rubber stamp" permit.

Fundamental Concerns with the Proposals

• H.R. 1290 failed to include the environmental protections necessary to ensure that wetlands mitigation banking does not serve as an excuse for additional, unnecessary wetlands loss. For example, the bill failed to mandate the established process of "sequencing," under which wetlands are allowed to be destroyed only as a last resort.
  
  
• H.R. 1290 also failed to address the real reasons why America is still losing more than 100,000 wetland acres each year, a full ten years after George Bush’s famous pledge of "no net loss" of wetlands.
  
  
• H.R. 2155 concerned the Army Corps of Engineers’ nationwide permit (NWP) program for wetlands, the largest and most damaging source of wetland loss in America. Tens of thousands of wetland acres are destroyed each year under the NWP program, with little or no regulatory review, no analysis of alternatives, and no public notice or input. In 1996, the Corps decided to phase out the most destructive of its nationwide permits, known as Permit 26.
  
  
• If H.R. 2155 had become law, the scientifically discredited Permit 26 would have become the law of the land. Under H.R. 2155, the Corps would have been specifically prohibited from rescinding or changing Permit 26 in any way. Developers would have been able to return to business as usual, continuing to use Permit 26 to destroy thousands of acres of valuable wetlands each year.

What Happened

H.R. 1290 was passed by the House Subcommittee on Water Resources and Environment on June 4, 1998. Because of mounting opposition from the environmental community and the Clinton Administration, the bill was never taken up in full committee, and it died at the end of the Congress.

Representative Neumann sought to add H.R. 2155 as a rider to an appropriations bill, but he failed in committee. The bill died at the end of the Congress, again due to opposition from environmentalists and the Clinton Administration.

FORESTS

Significant victories were won for our national forests, in eliminating the "purchaser road credit" program and turning back forest health legislation.

Effort to Reduce Federal Subsidies for Logging Roads Succeeds.

The federal government pays millions of dollars each year for construction of environmentally damaging logging roads in our national forests. These costs contribute to the enormous taxpayer subsidy for harmful logging on federal lands. Just between 1992 and 1994, the U.S. Forest Service paid out $995 million more to run its logging program than it took in from timber companies. In fiscal year 1998, the government spent an estimated $47.4 million on timber road construction and traded away roughly another $50 million worth of trees to the timber industry in exchange for additional timber roads.

Environmentally, logging roads are one of the greatest threats to this country’s natural heritage, clogging streams, irreversibly damaging roadless areas, and hastening the destruction of old-growth forests. And the agency cannot even take care of the roads it’s got. With over 380,000 miles of roads in the national forest system, the Forest Service estimates a maintenance backlog for existing roads in excess of $440 million.

Finally, after years of fighting, timber companies will no longer be able to deduct the cost of logging roads they build in national forests from what they pay for publicly owned trees. Rep. Porter (R-IL) negotiated an agreement with Resources Chairman Young (R-AK) and House Republican leadership to eliminate the so-called "purchaser credit program." In exchange, conservation-minded Republicans agreed to oppose any further efforts to restrict road building or limit the timber sale program in the fiscal year 1999 Interior Appropriations bill. As a result, unfortunately, the U.S. Forest Service will get about $40 million to pay for logging roads itself.

Forest Health Legislation Defeated.

The House convincingly defeated a bill, introduced by Rep. Bob Smith (R-OR), that would promote logging on national forests, in the name of improving forest health. The bill, H.R. 2515, would have created a five-year program to use logging and other methods ostensibly to help prevent wildfires. Correctly seen as a back-door assault on the Administration’s nascent effort to spare many of our last roadless public wilderness, it was rejected by the House on March 28, 1998, by a vote of 181 to 201.

SUPERFUND -- S. 8

Senate Republican leadership introduced this Superfund reform proposal in early January 1997. After loud protests, sponsors postponed deliberation on this legislation and agreed to substantive bipartisan negotiations. In the following months, Democratic and Republican staffs discussed in earnest various proposals to reform the toxic cleanup program. However, by summer’s end, talks broke down and Republicans re-introduced a modified version of their earlier legislation. S. 8 passed the Senate Environment and Public Works Committee on May 18, 1998, but due to its inability to attract significant bi-partisan support, it was never brought to the floor.

Concerns with S. 8 included:

• S. 8 would have slowed down cleanups. Just as the EPA has begun to complete cleanups in record time, S. 8 introduced new and challenging obstacles to muddle the process. By disempowering communities, undermining the liability scheme with large exemptions, and establishing new administrative requirements, S. 8 would have forced the EPA to divert precious resources from cleanups to these new duties. Furthermore, by allowing cleanup funds to be used to relieve polluters from liability, S. 8 could have crippled EPA’s ability to clean up waste sites.
  
  
• S. 8 would have weakened existing cleanup standards. S. 8 would have repealed the existing requirement for permanent remedies and the preference for treatment. Furthermore, the bill’s preference for treating "hot spots" would have required the successful fulfillment of a four part test so difficult that many polluters would have been able to escape responsibility for treatment altogether. The bill would have weakened the cancer-risk cleanup standard. Finally, the legislation contained no provision to protect particularly sensitive populations, such as children, the infirm, or the elderly.
  
  
• S. 8 would have seriously undermined the "polluter pays" principle. The principle that polluters should pay for their cleanups is critical to a healthy Superfund program. S. 8, however, would have allowed inappropriately large carve-outs for responsible polluters, such as the exemption for those who dumped waste at any site that also receives household trash. Exempted parties would have been freed from liability for cleanup.
  
  
• S. 8 would have allowed cleanups to proceed while keeping affected communities in the dark. Under this legislation, states could have qualified to direct cleanups. However, the bill would have only required the state to provide public participation "as appropriate." This enormous loophole would have deprived communities of meaningful opportunity for public involvement. S. 8 would also have prevented the public from participating in the decision of whether a state should run the toxic cleanups. Further, if, for any reason, the EPA failed to act on a state request within 180 days, the state automatically would be allowed to proceed with its own cleanups.
  
  
• S. 8 would have let governors veto the listing of new Superfund sites in their states. S. 8 would have allowed governors, simply by withholding their concurrence, to reject any proposed listing of an NPL site in their state without any requirement that the governor assure that the site will be cleaned up under some other program. This would have raised serious problems if a campaign contributor’s site is targeted by the EPA.
  
  
• S. 8 would have failed to protect groundwater. S. 8 called for groundwater cleanups only if the water is officially earmarked for future use. But, groundwater is a scarce and precious resource—even where its use is not yet formally planned for.
  
  
• S. 8 would have failed to make land available for productive use. The bill’s failure to require permanent remedies, together with its weak cleanup standards, would have allowed contamination to remain in place, creating fenced-off, paved-over "dead zones." And, because S. 8 did not ensure that the site will remain undisturbed, future owners or users could dig up the waste and start the problem all over again.
  
  
• S. 8 would have weakened the ability to restore polluter-damaged natural resources. S. 8 undervalued our most pristine natural resources by only holding polluters responsible for restoring the human uses of a resource, ignoring the value of an unspoiled natural system to our children. The bill would have also provided polluters with incentives to delay restoration of rivers, bays, fish, birds, and other natural resources damaged by toxic contamination. S. 8 would also have limited recovery for interim losses of natural resources.

In the House, a bipartisan effort involving both committees of jurisdiction, the Committee on Transportation and Infrastructure and the Committee on Commerce also failed to produce an agreement. Following this breakdown, three reform proposals were introduced, H.R. 2727, H.R. 2750, and H.R. 3000. While H.R. 3000 contained the most egregious rollbacks, all proposals were strongly opposed by environmental groups for reasons similar to those mentioned above.

GRAZING -- H.R. 2493

On October 30, 1997, the House approved a bill, H.R. 2493, introduced by Rep. Smith (R-OR) by a vote of 242-182. Although some anti-environmental provisions were removed, the bill still promotes environmentally destructive activities on public lands and maintains taxpayer subsidies to the livestock industry. While the bill was approved by the Senate Energy and Natural Resources Committee on July 29, 1998, it lacked the support to bring it to a floor vote.

Fundamental Concerns with the Proposal

• H.R. 2493 ignores the pressing need to address existing resource damage and improve the ecological health of our public rangelands. The bill does nothing to establish a process for determining which lands are suitable for grazing in the first place. Some lands, because of their fragile ecological state or their unique habitat value, are just not suitable for the grazing of livestock. Environmentalists and many land managers across the West have long argued that a process for determining suitability is necessary to protect the health of America’s rangelands. H.R. 2493 not only fails to include this or any other positive measures to restore lands abused by grazing, it would cause further deterioration of public resources and undercut existing agency conservation efforts by "locking-in" current grazing levels and practices even if this grazing is causing damage.
  
  
• H.R. 2493 would promote overgrazing through a new "bargain-basement" fee formula. The bill’s fees would be even lower than those proposed in the Domenici/Cooley bill that failed to pass in the last Congress. Furthermore, the fees could continue to decrease, since H.R. 2493 would eliminate the existing minimum level below which fees cannot fall. The Congressional Budget Office estimates that the fee under H.R. 2493 would be approximately $1.55 per animal unit month. This fee is far below private land lease rates, which range from $5.30 to $9.00 per animal unit month in the arid western states and up to $12.00 in the Great Plains states where extensive amounts of the National Grasslands are located. The bill’s fee is also well below the fees charged by virtually every western state to graze on state lands, which range to $7.00 per animal unit month. Furthermore, the fee is well below what it costs the federal government—i.e., taxpayers—to administer the federal grazing program. In 1995, the range program of the Bureau of Land Management cost $5.81 per animal unit month.
  
  
• H.R. 2493 would allow private individuals to profit at taxpayers’ expense by expanding subleasing. Currently, only the BLM allows subleasing; the practice has always been prohibited on rangelands administered by the Forest Service. Under H.R. 2493, subleasing would be allowed for the first time on Forest Service-managed lands in the 17 western states as well as in eastern states. As a result, Forest Service permittees, like those of the BLM, would be able to take advantage of the extraordinarily low federal grazing fee by "renting" federal rangelands at a far higher rate and pocketing the difference.
• H.R. 2493 would hamper agency efforts to make sound and timely management decisions that will protect fish and wildlife and other valuable resources on the public’s lands. The bill would impose new and rigid standards for future monitoring, notwithstanding the chronic lack of adequate federal funds for this activity. The new standards will exacerbate funding shortfalls and delay needed decision-making. In addition, agency officials would have to provide permittees 48-hour advance notice before any monitoring activities could occur on the public’s lands.
  
  
• H.R. 2493 would hamper the ability of hunters, anglers, hikers and others to participate in public land management, while expanding the livestock industry’s role. For example, the bill would allow livestock operators and their paid consultants to monitor the public’s rangelands, but neither members of the public nor their consultants could perform any monitoring, regardless of their qualifications, experience or interest. Similarly, the bill would establish a new program—"Cooperative Allotment Management Plans"—under which a wide array of permittees would be given inappropriate control over grazing management on federal lands, while agency authority would be restricted.

ENDANGERED SPECIES ACT -- S. 1180

For many years, the Endangered Species Act has stood as stalwart protection for endangered species and has helped prevent the unrecoverable loss of numerous animal populations, including the bald eagle, the humpback whale, and the timber wolf. Authorizing legislation, however, expired in 1992 leading to numerous unsuccessful attempts at reauthorization. On September 30, 1997, Senators Kempthorne (R-ID), Chafee (R-RI), Baucus (D-MT), and Reid (D-NV) introduced a new ESA bill, S. 1180. This bill sailed through committee by a vote of 15-3. Despite the support of key Democrats and Interior Secretary Babbitt, however, this bill never made it to the Senate floor.

Though an improvement over earlier versions, this bill still contained significant rollbacks of existing protections. Following is a brief explanation of the most troubling provisions of the bill:

• S. 1180 would have failed to assure that development activities do not harm the recovery of endangered species. Under current law, development activities are precluded from impeding the short-term survival of endangered species, but are not required to respect the recovery of that species. The distinction between survival and recovery is extremely important and should be addressed in any ESA reauthorization bill. Unlike many proposals that amend the law to prohibit interference with recovery, S. 1180 would have allowed current practice to continue.
  
  
• S. 1180 would have imposed new complicated and costly requirements for listing and recovery planning. The bill would have inserted new and burdensome requirements in the listing process and in the development of recovery plans. These included cost/benefit analyses and detailed descriptions of rejected alternatives. Not only would these mandates have diverted precious funds from recovery to the administration of these new requirements, they would also have encouraged expensive and time-consuming litigation. For the hundreds of endangered species currently without recovery plans, new ones would have been all but impossible.
  
  
• S. 1180 would have weakened the section 7 consultation process. Currently, the determination of a proposed federal activity’s impact on endangered species is primarily the responsibility of the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS). However, under this proposal any federal agency would have been able to make this determination on its own. Instead of having to wait for a USFWS and NMFS determination, the federal agency could have proceeded if the USFWS and NMFS had failed to make a determination within 60 days. The approach would have allowed the USFWS and NMFS to duck their head in the sand and avoid challenging a controversial finding by another agency.
  
  
• S. 1180’s new Recovery Implementation Agreements (RIAs) would have been exempt from public oversight and judicial review. The RIAs would have required agencies to enter into agreements with USFWS and/or NMFS that clarify how the agencies will contribute to the recovery of a species. These RIAs, however, would have been exempt from section 7 and therefore not subject to judicial challenge.
  
  
• S. 1180 would have allowed Habitat Conservation Plans (HCPs) that threaten recovery. This bill would have codified the controversial "no surprises" policy, which allows landowners to "take" listed species via long-term agreements. However, the bill failed to include needed modifications, such as requiring that the HCPs adapt to the introduction of new and relevant information.
  
  
• S. 1180 would have failed to assure adequate funding. A key ingredient of any successful legislation to protect endangered species is adequate funding. Lapses in listing and other protective activities have occurred frequently under current law due to funding shortages. In particular, the bill contained no provision to fund the "bailout" of failed HCPs that the government is obligated to pay for under the bill. Also, sufficient funding would have made HCPs more workable.

This legislation also contained some provisions which would strengthen current law:

• S. 1180 would have created three new landowner incentives for species conservation. Most endangered species’ habitat is on private land. Thus, it makes sense for the federal government to include efforts to encourage private landowners to voluntarily help protect these species as a plank in its comprehensive effort. The success of these incentives, however, is contingent upon full funding, which the bill did not assure.
  
  
• S. 1180 would have created higher standards for unlisted, candidate, and proposed species that are included in Habitat Conservation Plans. S. 1180 would have established new and stricter requirements for HCPs that involve unlisted, candidate, or proposed species. The current practice of loading excessive species into a HCP so as to acquire a "no surprises" policy for all of them would hopefully be prevented with this provision.

A more promising bill was introduced in the House by Representative Miller (D-CA). This bill, H.R. 2351, would have strengthened protections in a manner consistent with current environmental and economical needs. For example, H.R. 2351 would have expressly prohibited activities that threaten the recovery of endangered species and would have offered innovative incentives to landowners who take voluntary measures to preserve endangered species habitat. It stalled in the House Resources Committee.

NUCLEAR WASTE DISPOSAL -- H.R. 1270/ S. 104

In October 1997, the House overwhelming approved a bill, H.R. 1270, providing for the transport of nuclear waste from utilities across the country to an interim storage site near Yucca Mountain, Nevada. While a majority in the Senate supported similar legislation, S. 104, proponents of the bill were unable to collect the 67 votes needed to override President Clinton’s threatened veto. As a result, the bill died when the cloture motion to force another vote in the Senate failed in June 1998.

Fundamental Concerns with the Proposal

• H.R. 1270 would curtail a broad range of environmental health and safety laws. H.R. 1270 would preempt any federal law other than the Atomic Energy Act that was found to be "inconsistent with or duplicative of" its requirements for managing nuclear waste. In addition to carving large loopholes in the National Environmental Policy Act, the bill explicitly precludes the Environmental Protection Agency from setting a groundwater standard pursuant to the recently enacted amendments to the Safe Drinking Water Act.
  
  
• H.R. 1270 would quadruple allowable radiation standards for waste storage. H.R. 1270 would set a standard that allows radiation exposures four times as great as that currently allowed for storage facilities. The standard in the bill is so lax that the International Council on Radiological Protection associates it with one excess cancer death for every 286 individuals exposed over a lifetime. The bill authorizes a different standard only if the Nuclear Regulatory Commission (NRC) determines through a rule-making that the statutory standard, 100 millirems, is not adequate. The NRC has already testified that the 100 millirem standard is acceptable. If H.R. 1270 is enacted, the Environmental Protection Agency would be denied any meaningful role in the process.
  
  
• H.R. 1270 would require the transportation of nuclear waste throughout the country before its final destination is known. The bill would send all highly toxic spent fuel rods—which constitute 95 percent of the nation’s radioactive waste—onto the roads and rails to an interim storage site in Nevada. Such transport is not contingent on the suitability of Yucca Mountain as a permanent storage site. As a result, the waste might have to be transported twice. It would have to go first to Nevada for temporary storage and then somewhere else for permanent storage. Furthermore, safeguards are not in place to ensure that the waste is transported safely. H.R. 1270 fails to address the inadequacies of current cask safety standards, and provides no assistance in preparing emergency response plans or training personnel for the forty-three states through which the waste is likely to travel.

ANTIQUITIES ACT ATTACK -- H.R. 1127

Representatives from Western states, resentful of the federal government’s control of large amounts of land within their borders, continue to promote legislation to weaken wilderness and other public land protections. On October 7, 1997, the House of Representatives passed a bill, H.R. 1127, that would curtail the President’s historic authority to protect natural and archeological treasures as national monuments. The bill was approved by a vote of 229 to 197.

The bill went nowhere in the Senate, but its sponsor Rep. Hansen (R-UT) made one last, but unsuccessful, attempt to pass move it forward as part of the omnibus parks bill, H.R. 4570. The provision was taken out of the omnibus parks bill before it came to the floor in October 1998.

Fundamental Concerns with the Proposal

• H.R. 1127 would cripple the government’s ability to protect the nation’s spectacular natural and historic treasures from damaging development or misuse. The bill would eliminate the existing authority of the President to unilaterally designate threatened lands as national monuments. It requires Congressional approval for any monuments over 50,000 acres. Any Presidential monument designation would terminate after 2 years if Congress does not act to give formal approval. As a result, any powerful committee chairman or single Senator would be able to single-handedly block a monument declaration. Uncertainty would complicate management of the land, serving no one’s interest.
  
  
• H.R. 1127 would destroy a tool that has been indispensable to protecting some of the most treasured places in America. Since 1906, fourteen Presidents, Republicans and Democrats, have selectively used the authority to designate national monuments under the Antiquities Act to preserve what have become some of America’s most treasured national assets. Without the authority to act quickly and decisively, President Theodore Roosevelt would not have been able to save the Grand Canyon from commercial development. Nor would President Eisenhower have been able to save the C & O Canal from being paved over for a road.

BLACK HELICOPTER BILL -- H.R. 901

On October 8, 1997, the House approved Rep. Don Young’s (R-AK) bill that would require specific Congressional approval prior to designating any land in the United States as a World Heritage site or Biosphere Reserve under well-established United Nations programs. Persuaded by tales of black UN helicopters sweeping across the United States, 236 members of the House voted for his bill. If enacted, H.R. 901 would have seriously impaired the ability of the United States to participate in important, cooperative global conservation efforts. However, the bill was never considered in the U.S. Senate.

• H.R. 901 would have significantly reduced U.S. leadership and influence in global conservation. This bill would require congressional approval for designations of United Nations Biosphere Reserves and World Heritage Sites. The legislation would terminate existing Biosphere Reserves designated under the Man and Biosphere Program of the United Nations Education, Scientific, and Cultural Organization, if they are not subsequently approved by Congress. Nations voluntarily nominate their most important natural wonders and cultural treasures to the World Heritage List and by so doing pledge to preserve and protect them in perpetuity. The United States proposed the concept to the world community and was the first nation to ratify it in 1973.
  
  
• H.R. 901 would have imposed unnecessary restrictions on the existing legal and administrative framework that implements U.S. commitments to cooperative international environmental efforts. Contrary to the claims made by the supporters of H.R. 901, neither the World Heritage nor the Biosphere Reserve programs the United States’ sovereignty over its lands. Such programs give no authority to the United Nations to influence land management decisions within the United States and have never been utilized to exclude Congress from land management decisions. International site designations do not impose restrictions on land use or economic growth. In fact, these World Heritage and Biosphere Reserve designations contribute to an increase in international tourism, which is essentially vital to rural communities.