The Legislative Record
Environment & The 106th Congress
Assaults on Our Regulatory Process
After direct attacks on the environment failed, some members of Congress took a far more insidious path, trying to undermine environmental protections indirectly by manipulating and obstructing the regulatory process. Bills that delay rulemaking and allow industry's special interests to sue the agencies that issue environmental rules have proliferated. A host - over ten - of these regulatory "reform" bills were introduced by the 106th Congress; luckily, only one of these bills generated enough support to become law, and that was after it was modified considerably by removing the most objectionable provisions.
Like the riders on appropriations legislation, these bills would weaken crucial programs without directly amending the broadly popular environmental statutes. Instead they seek to make it far more difficult, if not impossible, for government agencies to enforce the programs that protect our rivers and lakes, air quality, food safety, wildlife, and remaining natural areas. These bills engage a variety of obstructive tactics including: diverting scarce agency resources to costly analysis; increasing the cost and time required to issue new protections; or promoting regulatory gridlock by providing new opportunities for opponents of critical environmental safeguards to tie up federal agencies with more lawsuits.
REGULATORY REFORM - STEPS FORWARD
REGULATORY REFORM - STEPS BACK
"Regulatory Improvement Act of 1999"
S. 746, Sens. Carl Levin (D-Mich.) and Fred Thompson (R-Tenn.); H.R. 3311, Rep. George Gekas (R-Pa. )
Status: Approved by the Senate Governmental Affairs Committee; Referred to the House Commerce Committee's Subcommittee on Health and Environment
A bipartisan bill introduced by Sens. Levin and Thompson is perhaps the most sweeping and dangerous of the current crop of regulatory bills. The Regulatory Improvement Act of 1999 (S. 746) would impose new requirements on agencies that protect the environment, consumers, and the health and safety of all Americans by: (1) empowering secret "peer review" panels (that could include representatives of industries with direct conflicts of interest) to block new safeguards by claiming that more study is needed; (2) creating new opportunities for opponents of federal rules to overturn rules in court by challenging the cost-benefit analysis; (3) providing OMB with sweeping new powers to block environmental as well as health and safety measures; and (4) requiring complex, expensive risk assessments, even for programs that Congress says should be based on best performance practices rather than uncertain risk estimates. This bill was approved by the Senate Governmental Affairs Committee on May 20, 1999, but never made it to the Senate floor. Even as modified to include provisions requested by the Clinton administration, this bill would undermine legislation that protects the environment, public health and safety. A companion bill on the House side was introduced by House Judiciary Subcommittee on Commercial and Administrative Law Chairman Rep. Gekas on November 10, 1999. This bill also has serious shortcomings: it fails to limit judicial review of agency regulatory cost/benefit assessments and allows companies to tie up environmental and health regulations they oppose in court.
"Federalism Accountability Act of 1999"
S. 1214, Sen. Fred Thompson (R-Tenn.); H.R. 2245, Rep. David McIntosh (R-Ind.)
Status: Approved by the Senate Governmental Affairs Committee; Markup canceled in the House Government Reform Committee
One of the most serious challenges this year came in the unusual form of a bill that, in the name of the all-American concept of federalism, would have created a completely unworkable analytical process for federal agencies that issue new federal rules. This bill would have required agencies undertake the impossible task of contacting every state and local entity or interested party that could be affected by the contemplated federal rule and quantifying the impact of that rule on them, requiring assessments by agencies of how rules impact state and local governments that go well beyond federalism concerns. This bill would also give state and local government officials a special seat at the federal rulemaking table, without providing the same special access to nonprofit organizations and interested citizens.
This bill, which was introduced by Senate Governmental Affairs Committee Chairman Fred Thompson and Sen. Carl Levin, would make it more difficult for federal laws and regulations to preempt state and local laws or ordinances. In doing so, however, the bill creates an unworkable regulatory assessment process that could interfere with the federal government's ability to implement and enforce public health, safety, and environmental protections on a nationwide basis. It also provides new opportunities for industry to challenge important health and safety protections in court. On August 8, 1999, the Senate Governmental Affairs Committee approved S. 1214.
Despite vocal opposition from environmental and consumer groups, this bill was picking up steam in the Senate Governmental Affairs Committee and was scheduled for a vote in the House Government Reform Committee. The tides began to turn when the U.S. Chamber of Commerce registered its opposition to the bill because it would undermine federal preemption of state laws, which industry favors in many situations. The bill was pulled from a full Government Reform Committee markup because supporters could not muster enough votes due to opposition from all sides.
"Regulatory Right-to-Know Act"
S. 59, Sen. Fred Thompson (R-Tenn.); H.R. 1074, Rep. David McIntosh (R-Ind.)
Status: Passed the House on 7/26/99; Stalled in the Senate Governmental Affairs Committee
Another serious threat came in the form of the more traditional regulatory attack. The "Regulatory Right-to-Know" bill, introduced by Senate Governmental Affairs Chairman Thompson (S. 59), House Commerce Committee Chairman Tom Bliley (R-Va.) and Rep. McIntosh (H.R. 1074), would have diverted scarce agency resources to yet more analyses of costs and benefits of regulations. By requiring that the Office of Management and Budget estimate the costs and benefits of each federal regulation, these regulatory accounting bills erect bureaucratic hurdles that must be surmounted by agencies charged with safeguarding the nation's health, safety, and environment. Commenting on these bills, the Office of Management and Budget noted that "the increased burden that this [legislation] would place on the agencies would crowd out other priorities and would add little value in many cases."
On July 26, 1999, the House passed H.R. 1074 by a vote of 254-157, but S. 59 stalled in the Senate Governmental Affairs Committee. While their sponsors call the bills "good government," the bills will instead place regulatory cost considerations above environmental, health, and safety benefits. Moreover, this bill effectively would stack the deck against public protections by mandating cost analyses that are far more easily calculated and therefore more heavily weighted than many of the benefits of health and environmental protections.
"The Small Business Paperwork Reduction Act Amendments of 1999"
H.R. 391, Rep. David McIntosh (R-Ind.); S. 1378, Sen. George Voinovich (R-Ohio)
Status: Passed the House on 2/11/99; Hearing held in the Senate Governmental Affairs Committee Oversight for numerous environmental programs depends on reliable reporting and record-keeping information. The Small Business Paperwork Reduction Act Amendments of 1999, sponsored by Rep. McIntosh, passed the House on February 11, 1999 by a vote of 274-151. This bill waives civil penalties for first-time violators of vital reporting requirements in health, safety, and environmental laws, regardless of the importance of the missing or incorrect information or the magnitude or consequence of the violation. The bill also allows "small" businesses (those with up to 1,500 employees in some instances) to ignore reporting requirements for violations including toxic releases, food adulterations, oil spills, nuclear safety incidents and drinking water contamination.
Under the guise of protecting "small businesses" from penalties for inadvertent violations of federal "paperwork" requirements, H.R. 391 undermines enforcement of environment, health, and consumer protection laws. Moreover, several laws - including the Small Business Regulatory Enforcement Fairness Act, amendments to the Paperwork Reduction Act, and the Regulatory Flexibility Act - already require the reduction of the paperwork burden on small businesses. H.R. 391 provides loopholes for committing environmental crimes. Federal and state agencies may be prevented from getting fines for even deliberate and malicious violations of reporting requirements. For example, the reporting requirements of the Clean Water Act and the Safe Drinking Water Act are designed to alert environmental officials to potential problems, but H.R. 391 would let polluters keep information from the public record. There would be no threat of fine and therefore little incentive for the businesses that run drinking water systems to comply with reporting requirements. Among the programs affected are those that track hazardous materials, report on hazardous emissions, report on drinking water contamination, and require meat packers to prevent bacterial contamination.
By mandating the waiver of fines on all - even willful - first-time violators, H.R. 391 creates an incentive for businesses to break the law while conferring a competitive disadvantage on businesses that comply with the law. Rep. Dennis Kucinich (D-Ohio) offered an amendment, which was narrowly defeated by a vote of 210-214, that would have preserved federal agencies' discretion to impose penalties for violations of important reporting and disclosure requirements. The Senate Governmental Affairs Committee held a hearing on October 19, 1999 on Sen. Voinovich's companion bill S. 1378.
"Small Business Liability Reform Act"
H.R. 2366, Rep. James Rogan (R-Calif.); S. 1185, Sen. Spencer Abraham (R-Mich.)
Status: Passed the House on 2/16/00 by a vote of 221 - 193; Referred to the Senate Judiciary Committee
On February 16, 2000, the House passed H.R. 2366, introduced by Rep. Rogan, to provide small businesses with liability relief from punitive damages. The bill's language, however, is unacceptably broad and would interfere with federal, state, and citizen environmental enforcement actions, possibly even to the point of delaying important actions such as Superfund cleanups. Thus, this bill also could allow companies and individuals to violate environmental laws with impunity, encouraging recalcitrant behavior. The Senate companion bill, S. 1185, was referred to Senate Judiciary Committee and did not advance.
"Mandates Information Act of 1999"
H.R. 350, Rep. Gary Condit (D-Calif.); S. 427, Sen. Spencer Abraham (R- Mich.)
Status: Passed by the House; Referred to the Senate Budget, and Senate Governmental Affairs Committees
Rep. Condit and Sen. Abraham introduced legislation (H.R. 350 and S. 427, respectively) that would create new opportunities to block critical health and safety protections by establishing a new basis to invoke a procedural mechanism in Congress (called a point of order). By using a point of order against environmental legislation, opponents of new legislative initiatives can stop bills that they could not stop otherwise. Bills that impose costs exceeding $100 million on the private sector could be halted without a direct vote on the substance of a bill. The bill focuses only on the costs of legislation without any consideration of the benefits. This would deprive the American people of long-term savings by recognizing only the short-term costs of a particular measure. On February 10, 2000, the House passed H.R. 350 by a vote of 274-149. The Senate version of this bill did not advance out of committee.
"Regulatory Fair Warning Act of 1999"
H.R. 881 Rep. George Gekas (R-Pa. )
Status: Approved by the House Judiciary Committee's Subcommittee on Commercial and Administrative Law
H.R. 881, introduced by Chairman Gekas (R-Pa.), was marked up in the House Subcommittee on Commercial and Administrative Law on September 29, 1999 and awaits consideration by the full Judiciary Committee. H.R. 881 would provide blanket immunity from penalties for violations of environmental regulations - no matter how egregious - if the violator claims the rule failed to provide fair warning of requirements. A violator could even avoid liability when there is fair warning in a federal rule but a state official provides a conflicting interpretation that allows the violation. It would impede judicial enforcement of federal laws and regulations by binding courts to follow written representations made by agency officials, many of which are informal and are not intended to be construed as official position. Moreover, these written agency representations are not publicly disclosed and therefore would not ensure accuracy and accountability.
"Federal Agency Compliance Act of 1999"
H.R. 1924, Rep. George Gekas (R-Pa.)
Status: Approved by the House Judiciary Committee
This bill, introduced by Subcommittee Chairman Gekas (R-Pa.), could seriously weaken vital environmental laws by arbitrarily limiting the discretionary authority of federal agencies, such as EPA, the U.S. Fish and Wildlife Service and the Bureau of Land Management, to challenge circuit court decisions. Federal agencies are responsible for enforcing the laws protecting the environment from those who pollute, damage and destroy the essential natural resources such as the air we breathe and the water we drink.
H.R. 1924 precludes the government from challenging precedents within a federal judicial circuit, and prevents it from litigating an issue that was decided against it in three or more circuits. Once a precedent favorable to industry has been set in a jurisdiction, H.R. 1924 would constrain the government from bringing subsequent cases unless it could overcome the obstacles set by the bill. Federal agencies would be forced to spend their limited time and resources justifying their inherent right to go to court to protect the public. Such preliminary litigation would unnecessarily clog the courts, and would delay and, in some cases, prevent crucial environmental protection measures. This bill was approved by the House Judiciary Committee on September 19, 2000.
Expedited Review for State Waivers of Federal Grant Requirements
H.R. 2376, Rep. Gene Green (R-Wis.)
Status: Approved by the House Subcommittee on Government Management, Information and Technology
During its deliberations on this bill on November 5, 1999, the House Subcommittee on Government Management, Information and Technology made it considerably worse than the original, which was introduced by Rep. Green. The subcommittee approved the bill by voice vote. In its amended form, this bill would codify a vague executive order allowing states to waive statutory and regulatory requirements for federal grant programs, require expedited review of a request for waivers, and allow states that sue the federal government to demand waivers of federal requirements. Waivers of important environmental grant requirements could result in decreased environmental protection.
"TMDL Regulatory Accountability Act of 2000"
H.R. 4922, Rep. Charles Stenholm (D-Texas)
Status: Referred to the House Transportation and Infrastructure Committee's Subcommittee on Water Resources and Environment
On July 24, 2000, Rep. Stenholm introduced a bill that creates new and unnecessary regulatory hurdles just for the TMDL rule. This bill would delay this new water quality regulation by requiring that the EPA conduct additional cost-benefit analyses and reopen the public notice and comment period. It could allow changes to the final TMDL rule without following appropriate administrative procedures required by law. Being controversial, this bill failed to advance, although its provisions on new studies was included in report language on the VAHUD funding bill.
Anti-Procurement Reform Rider
Sponsor: Sen. Don Nickles (R-Okla.)
Status: Rejected in conference on H.R. 4577, the FY 2001Omnibus Appropriations bill (Pub. L. No. 106-554)
Sen. Nickles attempted to add a provision in conference committee on the Senate's fiscal year 2001 Treasury-Postal appropriations bill (which was passed as part of the omnibus funding bill) that would have delayed important federal procurement reforms. These reforms direct federal contract officers to consider a prospective contractor's record of compliance with federal laws - including environmental laws. The new regulations specify that federal procurement officials should consider compliance with labor, environmental and consumer protection laws when determining a contractor's eligibility for a federal contract. As a result, this new rule will encourage contractors to improve their compliance with environmental laws. Federal procurement officers simply should not award government contracts to corporations that cannot demonstrate substantial compliance with environmental laws.
Cost-Benefit Accounting Rider
Status: Enacted on 12/21/00 as part of H.R. 4577, the FY 2001 Omnibus Appropriations bill (Pub. L. No.106-554)
On the other hand, one rider did make it into the final Treasury Postal funding bill (part of the Omnibus Appropriations bill) because the administration declined to oppose it. This rider requires the Office of Management and Budget (OMB) to estimate and report the annual costs and benefits of all agencies' rules and paperwork. As a result, the OMB must provide this analysis for each major rule, for each agency and agency program, and in the aggregate. The OMB has consistently identified the limitations of such analysis, but some members of Congress continue to insist on this type of analysis, apparently to promote their efforts to roll back regulatory protections. This rider will make the unnecessary, misleading aggregate cost-benefit analysis a permanent requirement.
REGULATORY REFORM - STANDING IN PLACE
"Congressional Accountability for Regulatory Information Act of 1999"
S. 1198, Sen. Richard Shelby (R-Ala.); H.R. 4924, Rep. Sue Kelly (R-N.Y.)
Status: Enacted into law on 10/17/00 (Pub. L. No. 106-312)
Another flurry of activity centered on bills in both the Senate and House that would require the General Accounting Office to review federal rules and to conduct additional analyses of the costs and benefits attributed to, and alternatives for, the rule; effects on state and local governments; and a summary of the differences between the analysis done by the agency and that done by the General Accounting Office. As introduced, these bills would undermine public protections by elevating the cost of regulations that are easily determined, above many of the benefits of health and environmental protections, which cannot be easily quantified.
Recognizing that these bills could not pass as written, the bills' sponsors developed compromise legislation that repaired some of the most egregious elements. The Senate compromise (S. 1198) passed the Senate unanimously on May 9, 2000 and set up a dramatic reaction in the House. Reps. David McIntosh (R-Ind.) and Kelly, not content with the Senate compromise, tried to advance a far worse bill, H.R. 4474, that would have required expensive and unworkable analyses by the General Accounting Office (GAO) that could be used to second-guess every new rule, regardless of whether it was final or whether the alternates considered by the GAO were authorized by law. Recognizing they could not successfully enact this bill, Reps McIntosh and Kelly consented to modifications acceptable to the Democrats that ensured passage of the new House bill (H.R. 4924) on July 22, 2000. But because the Senate had not taken up this new House bill as the end of the session neared, the House decided to pass the Senate bill by voice vote on October 3, 2000. The Senate bill went on to be signed by the president on October 17, 2000.
Earlier House versions of this bill, including Rep. McIntosh's H.R. 3521, and Rep. Kelly's and Rep. McIntosh's HR 4744, which were only approved by the House Government Reform Committee by a party-line vote on June 29, 2000, would have imposed a significant obstacle to the rulemaking process by creating an expensive and unnecessary additional level of congressional review of proposed, interim and final rules. The new review process could have been used to delay important new public health and environmental protections by injecting a political element into the agencies' expert deliberations. These bills would have called on the GAO to conduct its own analysis of the costs and benefits of an agency's rules and alternatives to the agency rule, rather than evaluating the adequacy of the agency's own analysis, which is more appropriate.
DAMAGE DONE THROUGH REGULATORY ASSAULTS
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TMDL REGULATORY RIDER
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