Congress in 1984: A Mixed Bag

James L. Conner II

Editors' Summary: This Comment surveys the environmental activity of the second session of the 98th Congress. The most important environmental product of that session is a tough new set of RCRA amendments. Otherwise, Congress, especially the Senate, found itself in a sort of gridlock on the big pollution control reauthorizations. Congress did pass a number of other environmental bills, including a whole raft of wilderness bills. The President signed all but two, which would have reauthorized the Equal Access to Justice Act and created an American Conservation Corps. Congress exhibited a profound distrust of President Reagan's environmental administration and continued to put substantial energy into oversight. This year, unlike last, that oversight tended to take the form of statutory enactments, such as the strict hammer provision in the RCRA amendments, rather than simply resolutions denouncing this or that. It may be that the institutional energy drain caused by these oversight activities is part of what is keeping environmental bills from moving more quickly.

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Although expectations were raised now and again, the performance of Congress on the major pollution control law reauthorizations was just what was predicted here last January.¹ Resource Conservation and Recovery Act (RCRA) amendments were passed by both houses and signed by the President,² but nothing else made it through more than one chamber. Every major pollution control law was up for consideration in 1984. Congress seriously considered amendments to some, like the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund)³ and the Federal Water Pollution Control Act (FWPCA),⁴ and made substantial progress. Others, like the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA),⁵ the authorization for which expired in 1984, never got past hearings. The House, which passed CERCLA, FWPCA, and Safe Drinking Water Act (SDWA)⁶ amendments, set a pace that the Senate, which passed nothing besides RCRA, just could not or would not match.

On other environmental legislation, Congress did much better,⁷ passing a torrent of wilderness designation bills⁸ and a number of conservation bills⁹ in addition to appropriations for all the agencies.¹⁰

Congress continued to spend much time on oversight, evincing profound distrust of President Reagan's environmental administrators. This year, in contrast to last,¹¹ the oversight was less in the form of resolutions and disapproving reports, though there were some of those,¹² [14 ELR 10450] and more in the form of bills that limit the discretion of the agencies — bills that spell out strict requirements for what will be enforced and strict deadlines for agency action and that restrict the Administration's ability to do things Congress does not want done.

Pollution Control

Resource Conservation and Recovery Act

The RCRA bill signed by the President significantly strengthens RCRA and will put substantial new burdens on the Environmental Protection Agency (EPA).¹³ Some of the changes are based on the bill's central policy of minimizing land disposal of hazardous wastes and encouraging reduction of wastes by changing manufacturing processes and by recycling and treating wastes.¹⁴ The amendments contain a series of requirements that EPA review hazardous wastes to determine whether each may be safely disposed of with specific land disposal methods. If EPA fails to make a positive determination by the applicable deadline — ranging from 24 to 66 months — "hammer" provisions in the amendments will in most instances ban the waste from land disposal.¹⁵

The amendments also require EPA to adopt standards by March 31, 1986 for small generators — those generating between 100 and 1,000 kilograms of hazardous waste per month.¹⁶ These small generators, previously exempted from regulation, were cumulatively producing a huge amount of unregulated wastes. Removal of the exemption was controversial, however, because of the regulatory burden it will put on the generators and the enforcement headaches EPA will be faced with. The standards EPA adopts may vary from present large-generator standards to take into account ability to comply, but must still protect human health and the environment. Small generators must also adopt a uniform shipping manifest to warn shippers of hazardous cargo.

The amendments require most surface impoundments to be retrofitted with double liners.¹⁷ The new law also amends the SDWA to deal with leaking underground storage tanks containing petroleum products and other hazardous substances.¹⁸ Other provisions include one that establishes a National Groundwater Commission to report back to Congress on groundwater quality, contamination, current protection, and recommendations for legislative and administrative action.¹⁹

Comprehensive Environmental Response, Compensation, and Liability Act

The House passed a five-year, $10.2 billion Superfund reauthorization bill on August 10 by a vote of 323-33,²⁰ but the Senate failed to match it. The House bill would have established a mandatory priority-site cleanup schedule for EPA, uniform national standards for waste site cleanup, and a program to regulate underground chemical storage tanks. The bill's citizen suit provision weathered heavy opposition, but the proposed victim's compensation scheme and federal cause of action for toxic torts²¹ were lost overboard. The House tax package would have raised $2.4 billion from crude oil taxes, $4 billion from petrochemical feedstock taxes, $2.3 billion from federal general revenues, and $1.5 billion from a new waste-end tax.²²

The Senate Superfund measure, S. 2892, died a tortured death at the end of the session. House Democrats backed off on their threat to attach their Superfund bill to the Senate-passed RCRA bill in early August after Senate leaders reportedly promised to move on Superfund.²³ The Senate Committee on Environment and Public Works held markups on its bill starting before the August recess and resuming on September 11, but found itself so stymied by controversy over substantive amendments that it had to strip away most of the controversial provisions to get the bill moving. The bill reported by the committee on September 21 would have allocated $7.5 billion to Superfound over five years, established a five-year, five-state, $150 million pilot victim's compensation plan, and required toxicological testing of toxics and health assessments at hazardous waste sites.²⁴ The bill was referred to the Senate Committee on Finance for addition of a funding mechanism, but the Committee never scheduled a markup.²⁵ An attempt to add a smaller version of the bill, with a tax package, to the continuing resolution failed when the Senate voted it non-germane by a vote of 59-38.²⁶

Although Senate Environment decided to leave the details of the funding mechanism to Senate Finance, its report of S. 2892 extensively discusses alternative methods of raising the money.²⁷ Among the methods favorably mentioned are waste-end taxes, manufacturers' taxes based on the frequency with which each chemical is found at Superfund sites, and import taxes to equalize taxes on derivatives manufactured in the United States and abroad. The tax package can be expected to generate much of the discussion next year, along with the funding [14 ELR 10451] level itself and the questions whether citizen suit and victim's compensation provisions should be included. EPA has said it can efficiently spend only about $5.2 billion over the next five years,²⁸ while the Office of Management and budget (OMB) reportedly questions whether EPA can spend as much as $1 billion in fiscal year (FY) 1986.²⁹ Next year one of the major stumbling blocks to passage of the bill will be removed; the Administration and many Senate Republicans advocated waiting until 1985 to reauthorize the Act.

Federal Water Pollution Control Act

The House overwhelmingly approved an FWPCA reauthorization on June 26, by a vote of 405-11,³⁰ labeled by environmentalists "much improved" over the version reported by the House Committee on Public Works and Transportation.³¹ The bill included an extra $1 billion for the municipal wastewater construction grant program — $3.4 billion rather than the current $2.4 billion — and a new $1.6 billion-per-year revolving loan fund to the states.³² Public Works readers compromised with the environmentalist coalition in three key areas: the lengthening of the term of industrial discharge permits to 10 years stayed, but with mandatory reopening when new standards are issued; the electroplating pretreatment deadline was extended six months instead of a full year; and an exemption for two Alaska pulp mills was deleted. The bill also contained three modest groundwater protection provisions and a voluntary nonpoint pollution program.

Senate Environment in 1983 reported FWPCA amendments³³ and a separate nonpoint source bill³⁴ that was to have been offered as a floor amendment to the FWPCA bill. But despite the fast start, the FWPCA amendments never made it to the floor in 1984, at least partly because of negotiations over special local interests — easing a cap on New York City sewage discharges and exempting the two Alaska pulp mills. A number of industries, labor unions, and environmental groups formed a coalition in desperation to urge Senate passage of FWPCA amendments, but to no avail.³⁵

Safe Drinking Water Act

The House also took the lead on amendments to the SDWA, passing H.R. 5959 by an overwhelming margin on September 18.³⁶ The bill was a compromise with less strict requirements than those in H.R. 3200, which failed to move in 1983, and without the federal cause of action the earlier bill would have created. H.R. 5959 did require EPA to set standards for tap water for 14 named organic chemicals within 12 months and 50 more within 36 months, and to regulate other contaminants when there is a rational basis to believe that the contaminant may have adverse health effects. The bill also required EPA to set technology standards requiring controls at least as effective as granular activated carbon filters, empowered EPA to use administrative orders to act against violators and in return required EPA to enforce all provisions of the law and correct all violations. Sole-source drinking water aquifers would have been protected by a state-administered program, and injection of hazardous wastes below, as well as into or above, drinking water sources would have been banned. Although EPA had worked with House Health and the Environment Subcommittee members to formulate H.R. 5959 to replace administration-opposed H.R. 3200, OMB strongly criticized H.R. 5959 also as it reached the House floor.³⁷

The Senate Committee on Environment and Public Works reported amendments on September 26.³⁸ The Committee modified the bill to meet OMB concerns before reporting it. The bill lacked the ban on injecting hazardous wastes below drinking water aquifers, did not require EPA to take action against all violators, and had weaker technology standards than the House version. The bill was reported so late and was so different from the House bill that compromise between the two chambers before adjournment would have been unlikely even if the full Senate had passed the bill.

Clean Air Act/Acid Rain

Air quality bills made little progress in either house this session. Senate Environment reported a bill similar to its compromise bill from the 97th Congress³⁹ that included toxic pollutant provisions and a 10-million-ton sulfur dioxide (SO₂) reduction plan for acid rain, though it would have weakened protection of clean air areas.⁴⁰ The Senate never voted on the bill. On the House side, disagreement over acid rain controls in the Subcommittee on Health and the Environment killed th Clean Air Act bill, which also included a provision to establish deadlines for EPA to rule on hazardous air pollutants.⁴¹ Representative Dennis Eckart (D-Ohio) was the swing vote and decided at the last minute to go with midwestern interests and vote against Representative Waxman's (D-Cal.) acid rain provision, which was killed, 10-9.⁴² The administration's [14 ELR 10452] staunch opposition to major acid rain legislation was a big problem and may continue to be in 1985. Of course, debate on other provisions, notably toxic air pollutants, remains even if a compromise is found on the acid rain issue.

Federal Insecticide, Fungicide, and Rodenticide Act

Though FIFRA's authorization expired on September 30,⁴³ Congress took little action toward reauthorization. Bills were introduced in both houses last session, but neither got past the hearing stage.⁴⁴ One important issue the bills would have addressed is the data gaps in pesticide registrations; the bills would have required retesting of all older pesticides for compliance with current standards and to fill those gaps. The House Committee on Government Operations did issue a report critical of EPA's pesticide registration activities.⁴⁵

Public Lands

Wilderness Designations

After nearly four years without significant additions to the wilderness system, the 98th Congress went to work and designated 8.58 million acres of new national forest, Bureau of Land Management (BLM), and national park wilderness,⁴⁶ nearly matching the nine million acres originally designated in 1964.⁴⁷ In fact, on August 9 Congress passed bills designating 5.16 million acres, making it the biggest acreage day for lower-48 wilderness since 1964. This raft of wilderness bills had been held back by seemingly intractable disagreements, but those logjams broke one-by-one and the bills were on their way. The mightiest and first to break was the release language logjam, which had blocked new statewide wilderness bills during the first session. House Interior leaders had insisted on the "standards" release language used in the 1980 bills.Western senators, notably James McClure (R-Idaho), had insisted on "hard release" language to bar any further wilderness designations in a state after enactment of its statewide bill,⁴⁸ and to require the Forest Service to develop undesignated roadless areas. Meetings between Senator McClure and Representatives Udall (D-Ariz.) and Seiberling (D-Ohio) finally produced a compromise on May 1. The new release compromise uses statutory language virtually identical to the standard release language, but with a careful explanation of the provisions incorporated in the committee report for each bill. The statutes, in response to the decision in California v. Block⁴⁹ that declared the California second roadless area review and evaluation (RARE II) environmental impact statement (EIS) inadequate and enjoined development in disputed areas, declare that the EISs for each state's RARE II are sufficient and not subject to further judicial review.Following this "sufficiency" language, the release language declares that the Forest Service is not required to review its lands for wilderness designation prior to revision of forest management plans, which is not expected to occur for 10 to 15 years.⁵⁰ Further, the bills prohibit further statewide review unless Congress expressly authorizes it. The committee reports take pains to make clear, through examples and explanation, that (1) even substantial amendments to a forest management plan would not trigger a need for reconsideration of the wilderness option; (2) most changes in circumstances can be accommodated by amendments rather than revisions; (3) there is absolutely no requirement that the wilderness attributes of undesignated roadless areas be preserved for future consideration; and (4) with anticipated administrative and court challenges to the initial plans, the next round of review may not take place until well into the twenty-first century.⁵¹

Final Scorecard, supra note 21, at 13.

President Reagan has signed all the wilderness bills passed by Congress. See ELR's monthly "Recent Developments — In the Congress" feature for legislative history, public law cites, and descriptions of each bill. 14 ELR 10144, 10179, 10211, 10248, 10282, 10319, 10351, 10384, 10432, 10470 (1984).

Two other broken logjams were of less general impact. Senators Cranston (D) and Wilson (R) of California found a compromise in early August on their state's bill, bypassing — if not ending — protracted head-butting between environment- and development-oriented members of that delegation. Second, Senator McClure released his holds on the Arizona and Arkansas bills, apparently dropping his strategy of trying to force favorable action [14 ELR 10453] on his meager Idaho bill from House Interior Chairman Udall. In return, Senator Bumpers (D-Ark.) dropped his retaliatory hold on the Utah bill.

In a separate action, Congress continued the prohibition on drilling for oil and gas in designated wilderness areas, while allowing slant drilling under wilderness study areas but no surface occupancy. The statute does allow certain exploration activities.⁵²

Timber Relief

On October 16, President Reagan signed a contract relief bill primarily benefiting western timber interests, an action contrasting with his vetoes of some other naturalresource-related special interest bills.⁵³ The law allows timber purchasers to buy out of existing unfavorable contracts on national forest lands. Timber purchasers may terminate up to 55 percent of their contracts, up to 200 million board feet per purchaser, paying a penalty of from a minimum of $10 per thousand board feet up to a maximum of 15 percent of the contract overbid, depending on the relation of contract losses to company net worth.The law does not include, as a bill in the 97th Congress did, road credit provisions that environmentalists feared would speed up development of roadless areas.⁵⁴

Other Public Lands Measures

Although OMB has been winning an increased share of its budget-over-substantive-mission battles with the agencies, the President signed one bill that trims the budget agency's influence. The bill restricts the effect of OMB's A-76 directive, which encourages agencies to contract out certain of their functions.⁵⁵ The new law bans implementation of the A-76 program in the National Park Service, Fish and Wildlife Service, or BLM involving 10 or fewer full-time equivalent positions, and prohibits those agencies from going beyond the study stage for activities involving more than 10 positions for the next four years. Congress passed the law out of concern that the A-76 process "does not allow for consideration of the missions of these agencies, the congressional mandates under which they must operate, or the natural and cultural resources they are charged with managing and protecting."⁵⁶

Congress took no action on two comprehensive wild and scenic rivers bills, but did approve several bills designating individual river segments as wild and scenic or as study rivers.⁵⁷ In addition to fiddling with a number of refuges, Congress created one new national wildlife refuge in Connecticut.⁵⁸

Two versions of Project Bold were introduced in the House and one in the Senate,⁵⁹ but none of them got past the hearing stage. Project Bold would exchange 2.5 million acres of checkerboarded state lands in Utah for 2.5 million acres of federal lands, leaving the state more manageable blocks of land. To avoid any mineral revenue windfalls or losses, the latest bill would have had the state and federal governments take equal shares of revenues from all the lands. Westerners are eyeing this measure as a possible model for other states.

Conservation

Wetlands

Controversy over a rider killed a pair of broadly supported bills authorizing a major expansion of the wetlands acquisition program.⁶⁰ The bills would have provided $100 million per year for 10 years for wetlands acquisition, funded through various means, including increased duck stamp prices and possible admission fees to national wildlife refuges. Some of the money would have been available as matching grants for state wetlands programs. The rider would have authorized Corps of Engineers construction of a $100-million jetty project to stabilize Oregon Inlet in North Carolina's Outer Banks for the benefit of commercial fishermen. The bill with the rider passed the House,⁶¹ but the Senate failed to vote on its version because of Senator Chafee's (R-R.I.) fear that Senator Helms (R-N.C.) would attach the rider.⁶² President Reagan had taken no position on the jetties, but generally supported the wetlands provisions.⁶³

A more modest wetlands bill saw greater success.A two-year extension of the Wetlands Loan Act, which authorizes the Treasury to loan up to $200 million for [14 ELR 10454] wetlands acquisition against future duck stamp revenues was signed into law by the President on October 26.⁶⁴ The extension is intended as a stopgap until a more comprehensive bill can be worked out and was necessary to postpone repayment, using 75 percent current duck stamp revenues, of the $154 million already loaned.

Soil Conservation

The prospects for passage of a "sodbuster" bill looked promising, but came to naught. Versions passed both houses. The bills would have discouraged first-time plowing of highly erodible land by denying federal benefits like price supports and crop insurance to farmers plowing such lands. Conferees were unable to agree on whether such farmers should lose benefits only for the crops grown on the newly plowed land, for their entire acreage of a particular crop if any was grown on the newly plowed land, or for all their crops, and on whether to create a fund to pay farmers to retire crops grown on highly erodible land plowed in the past. After conferees stalled on the bill,⁶⁵ proponents attached a middle-of-the-road version to the agricultural appropriations bill,⁶⁶ but it was removed in conference. Agricultural committee members in both houses opposed the bill, arguing that reforms should wait until a comprehensive farm policy bill is drafted.

General soil conservation programs fared well in the appropriations process. Funds for soil and water conservation programs were maintained at Carter Administration levels, despite Reagan Administration requests for cuts.⁶⁷

Other Conservation Measures

The President vetoed H.R. 999, which would have created an American Conservation Corps to employ primarily disadvantaged youths year-round to do conservation work in the Departments of Agriculture and the Interior. In his veto message, the President cited costs of the program and uncertain employment or conservation benefits, concluding that reduction of the federal deficit would help poor kids more than a jobs program.⁶⁸

A bill intended to rescue failing striped bass populations along the east coast became law on October 31.⁶⁹ The new law gives the federal government power to impose a moratorium on striped bass fishing in states that fail to implement a plan to reduce their catch by 55 percent. The Senate deleted a provision of the bill requiring that particular attention be given to the sources and effects of chemical contamination and the effects of acid rain.

Oceans

Marine Conservation

A four-year reauthorization of the Marine Mammal Protection Act (MMPA) became law on July 17.⁷⁰ The reauthorization continues the purse seine tuna fishing industry's existing general permit to incidentally kill 20,500 porpoises per year, but limits the number of two threatened species that may be killed and authorizes $4 million for a four-year study of Pacific Ocean porpoise populations. Another new provision requires the administration to have documentary proof that foreign nations have rules as protective of porpoises as the laws of the United States before allowing importation of yellowfin tuna from those countries. Congress also built some legislative oversight into the bill. The law now requires that the Marine Mammal Commission be fully staffed, and requires that the President choose Commission members from a single list of nominees, unanimously agreed upon by the full list of statutory recommending officials, to avoid appointment of hostile, partisan, or incompetent members nominated by a single presidential political crony on the nominator list.

A bill reauthorizing for four years and amending the Marine Protection, Research, and Sanctuaries Act was also passed by Congress and was signed into law on October 19.⁷¹ Under the statute's national sanctuary program, marine areas of unique aesthetic, environmental, or historical value are set aside for federal protection; six areas have been set aside since 1972.⁷² In response to concerns of marine exploitation industries, the amendments make clear that the sanctuaries program is to be used only for discrete units of marine environment with unique characteristics of national significance that are inadequately protected by other state or federal authority.

Ocean Dumping

A bill to end municipal sewage sludge dumping at a site in the New York Bight Apex 12 miles from shore passed the House but saw no action in the Senate.⁷³ New York City, the main user of the site, opposes the bill. The bill also would have generally prohibited ocean disposal of sewage sludge unless it meets EPA environmental standards and no suitable land-based alternative exists, and would have required EPA regulation of ocean dumping. Senate Environment Subcommittee Chairman Chafee has promised to hold hearings on and report an ocean dumping bill early next year.⁷⁴

Appropriations and Water Projects⁷⁵

Water Projects

Disagreement over cost-sharing requirements prevented [14 ELR 10455] authorization or funding of any new water projects, as it has since 1976. The House passed an omnibus water projects bill in June authorizing over 300 Corps of Engineers projects costing $18 billion,⁷⁶ but a smaller omnibus Senate bill was kept off the floor by the cost-sharing and finance dispute.⁷⁷ The House attached its measure to the continuing resolution, but conferees dropped it, faced with a veto threat.

Some see a changed consensus attitude in Congress toward water projects, "that the federal government can no longer afford economically and environmentally unsound water projects," due to the deficit, Reagan insistence on cost-sharing, and concerted environmentalist opposition.⁷⁸ Certainly the cost-sharing idea will be incorporated in any new project authorization; even this year's House bill included a modest cost-sharing scheme. The debate will be over what sort of cost-sharing to incorporate; the administration wants to work out cost-sharing on a project-by-project basis,⁷⁹ while others want to see a uniform standard.

Funding for 290 ongoing water projects did find approval.⁸⁰ The biggest environmental issue in that bill was the massive Garrison diversion project in North Dakota, which environmentalists and others want deauthorized.⁸¹ Conferees compromised on the issue by creating a commission to study alternatives to the project; if the commission does not find an acceptable alternative by December 31, the project goes on as planned.

Appropriations

Congress appropriated more for environmental agencies than the administration requested, but not dramatically more. EPA, for example, got $4.37 billion, which is $123 million and about three percent more than the President requested.⁸² The FY 1984 budget returned to the dollar level of the last year of the Carter Administration, but with no accounting for 30 percent inflation since then; the FY 1985 budget is a six percent increase over the FY 1984 level.⁸³ The operating budget for FY 1985 is $1.31 billion, still less than the FY 1981 $1.35 billion funding seen as a minimum by environmental groups.⁸⁴ Superfund received $620 million, up from $410 million plus $55 million in supplemental funding last year; the Administration had requested $640 million.⁸⁵

Congress continued to use appropriations measures as vehicles for legislative oversight. For example, the Interior and Forest Service appropriations bill includes sections limiting the agencies' discretion to allow oil and gas drilling in wilderness areas, allow deer hunting in a particular wildlife refuge, and undercut increased appropriations by imposing personnel ceilings.⁸⁶ The House version had directed the Secretary of the Interior to make 16 changes in its coal leasing program, many of them similar to the recommendations of the Linowes Commission.⁸⁷ The bill also partially extended a moratorium on outer continental shelf (OCS) oil and gas leasing.⁸⁸

Energy

Fossil Fuels

Congress continued the OCS leasing moratoria for areas off California and Massachusetts, but dropped areas off Florida's Gulf Coast.⁸⁹ Both House and Senate considered bills to overturn the Supreme Court's decision in Secretary of the Interior v. California,⁹⁰ that OCS lease sales need not be tested for consistency with state coastal management plans, by amending the Coastal Zone Management Act.⁹¹ Senator Packwood's bill, which camouflaged the consistency provision with provisions reauthorizing some National Oceanic and Atmospheric Administration programs, made it the furthest, passing the Senate on September 21.⁹² A consolation bill to share OCS oil and gas leasing revenues with the coastal and Great Lakes states to offset the costs of protecting their coastal resources against the effects of increased OCS leasing was reported out of conference committee on September 10, but the report never came to a vote in the Senate.⁹³

The coal slurry pipeline bill, killed in the House last session, was not revived this session.⁹⁴ The coal leasing moratorium enacted last year was discontinued after Secretary Clark suspended all lease sales until he gets a new leasing program in place that will incorporate 29 recommendations from the Linowes Commission report.⁹⁵

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Synthetics and Nuclear

Congress and the President approved a $5.375 billion rescission of funds available to the Synthetic Fuels Corporation.⁹⁶ Proposals to rescind more — up to $10 billion — were fought off by synfuels supporters; President Reagan had proposed a $9 billion rescission. The rescission is expected to motivate the President to fill out the Corporation's board, which has lacked a quorum to obligate funds or otherwise carry out business since April.⁹⁷

A Nuclear Regulatory Commission (NRC) reauthorization bill signed by the President allows the NRC to issue operating licenses under certain conditions in the absence of an approved state or local emergency preparedness plan, further eroding local control over nuclear plants.⁹⁸ The new law does not, however, extend the NRC's authority to grant temporary operating licenses to plants, as did a House bill.⁹⁹ Other nuclear power measures saw little or no action: Clinch River breeder reactor funding was not restored, proposals to speed up licensing of nuclear power plants were never acted on, and regional compacts on disposal of low-level radioactive material were introduced, but saw no action.¹⁰⁰

Attorneys Fees

Congress passed and sent to the President amendments to and permanent reauthorization of the Equal Access to Justice Act,¹⁰¹ but the President declined to sign the bill.¹⁰² The Act provides for payment of attorneys fees to successful litigants in actions against the government if the government's position was not substantially justified. The amendments would have made a number of changes, the most important for environmental lawyers being one that would clarify that the "position of the United States" includes not only the government's litigation stance, but also the underlying agency action. The President's Memorandum of Disapproval indicates that it is that very provision that the President could not swallow; he wrote that he would happily sign a permanent and retroactive reauthorization without that provision next year.¹⁰³ But that provision is important to public interest attorneys; without it, a challenge to a patently unreasonable agency action may be ineligible for an attorneys fees award so long as Department of Justice attorneys do not take an unreasonable position in the resulting legal action.¹⁰⁴ Further, focusing solely on the litigation stance of the government may mean that attorneys fees could essentially never be recovered where a case is settled.¹⁰⁵ The President explained his opposition by asserting that the more liberal provision will require a "substantial inquiry" by the court and "extensive discovery" to determine "how the underlying agency position was formulated, and who advocated what position and for what reasons at what time," inhibiting "free discussion within an agency prior to any final agency policy decision."¹⁰⁶

Conclusion

The second session of the 98th Congress held out both a problem and a promise. The problem was the alarming lack of consensus-building ability in the Senate — the inability to move major, controversial environmental legislation. Even the relatively simple wilderness bills stalled due to intransigent disagreement over basic policy questions. A sort of gridlock set in on controversial bills, with each interest bullying ahead, reluctant to yield to cross-interests, and so eventually blocking all movement. Perhaps the problem is polarization of the senators themselves, especially between the moderates, Stafford and Chafee, leading Senate Environment, and the new breed of conservatives on the floor. Senator Baker, though historically moderate, was devoted to following the President's wishes in his floor leadership. He showed little enthusiasm for scheduling floor time for the environmental bills Senate Environment reported. Even on the Committee, there was disabling polarization. CERCLA amendments made it out of the committee process only in savaged form due to intense disagreement in the Committee over various fundamental issues.

Perhaps the problem is polarization between the House and Senate. The main wilderness disagreement was between Senate leaders and House leaders; it was not intrachamber on either side. Huge differences between House and Senate versions of the SDWA late in the session made a successful conference unlikely; the bill, perhaps as a result, never went to the Senate floor.

Or perhaps too-strong lobbying by too-iconoclastic lobbyists was the problem. Industrial- and development-minded lobbyists undoubtedly saw opportunity for moderation in environmental requirements in the new conservatism. Environmentalists saw a great need to prevent backsliding and an opportunity to capitalize on an election year and what they perceived to be a more receptive Congress than last year's. Progress in the direction may have been cancelled out by concerted lobbying in the other.

Likely, all three of these factors and others contributed to the gridlock on pollution bills. Next year is not an election year; that should clear some of the smoke and help everyone see more clearly and less one-dimensionally. The wilderness release language compromise provides a [14 ELR 10457] heartening example of a simple action that solved the problem and showed that the head-butters were not as far apart as they thought. The House language, when carefully explained in committee reports, proved satisfactory to senators who had at first insisted on seemingly radically different language. The joint letter from development and environmental protection groups urging action on the FWPCA amendments provides a heartening, if less successful, example in the lobbying area.Perhaps something analogous to Administrator Ruckelshaus's negotiated rulemaking would be salutory in the legislative advocacy field.It will, at any rate, be interesting to see whether the gridlock continues, what efforts are made to break it, and how successful they are.

The continuing promise of Congress is its response to perceived Reagan Administration foot-dragging and antienvironmental policies. Rather than simply blustering about them, Congress showed that it has some tools for making the executive follow statutory mandates. Strict hammer provisions in RCRA, moratoria on OCS oil and gas leasing, restrictions on implementation of OMB Circular A-76, lists of prohibitions in appropriations bills, and strict directives in the MMPA regarding presidential filling of commission posts are examples. Though environmentalists may cheer such controls, administration officials are presumably not happy with this turn of events,¹⁰⁷ and such statutory shackles on agency discretion are no match for having an administration enthusiastic about carrying out the environmental laws.The sort of statutory detail this approach necessitates must contribute to the slow progress on the bills and to the level of controversy over the bills. Given the election results, one may expect Congress to continue to try to make the agencies walk the straight and narrow.¹⁰⁸ But it must also make some progress on the unprecedented backlog of environmental reauthorizations. The question is whether it has bitten off more than it can chew — whether it can accomplish bothoversight and legislation.

1. Ward, Legislative Outlook in the House: Only RCRA Amendments Likely, 14 ELR 10003 (Jan. 1984).

2. Hazardous and Solid Waste Amendments of 1984, H.R. 2867, Pub. L. No. 98-616, 98 Stat. 3221 (1984).

3. 42 U.S.C. §§ 9601-9657, ELR STAT. 41941. See infra text accompanying notes 20-29 for a discussion of the proposed amendments.

4. 33 U.S.C. §§ 1251-1376, ELR STAT. 42101. See infra text accompanying notes 30-35 for a discussion of the proposed amendments.

5. 7 U.S.C. §§ 135-136y, ELR STAT. 42301. See infra text accompanying notes 43-45.

6. 42 U.S.C. §§ 300f-300j(10), ELR STAT. 41101. See infra text accompanying notes 36-38 for a discussion of the proposed amendments.

7. The perception of the 98th Congress as having done nothing environmental, see, e.g., 98th Congress' Environmental Record: Time Passes, But Little Else, 22 AIR/WATER POLLUTION REP. 402 (Oct. 22, 1984), is not entirely fair. Although Congress made disappointingly little progress on the major pollution control bills, it was more prolific in other areas. In fact, about 70 bills with enough environmental significance to be reported in ELR's "Recent Developments — In the Congress" feature made it all the way to the President this session.

8. See infra text accompanying notes 46-52.

9. See infra text accompanying notes 55-74.

10. See infra text accompanying notes 67, 82-88.

11. See Comment, Congress in 1983: Much Oversight, Little Legislation, 14 ELR 10005 (Jan. 1984).

12. For example, the House Committee on Government Operations issued a report critical of EPA's pesticide registration policies. HOUSE COMM. ON GOVERNMENT OPERATIONS, PROBLEMS PLAGUE THE ENVIRONMENTAL PROTECTION AGENCY'S PESTICIDE REGISTRATION ACTIVITIES, H.R. REP. NO. 1147, 98th Cong., 2d Sess. (Oct. 5, 1984). Also, both chambers passed nonbinding resolutions expressing disapproval of the appointment of Anne Burford as chairperson of the National Advisory Committee on Oceans and Atmosphere. H.R. Res. 555 passed the House by a vote of 363-51 on July 31, 130 CONG. REC. H8063 (daily ed. July 31, 1984). Amendment No. 3389 to H.R. 5798 passed the Senate by a vote of 74-19, 130 CONG. REC. S9057 (daily ed. June 28, 1984).

13. Hazardous and Solid Waste Amendments of 1984, Pub. L. No. 98-616, 98 Stat. 3221 (1984) [hereinafter cited as RCRA Amendments].

14. Id. sec. 101(a)(1), (b)(1)-(2).

15. Id. sec. 201. The compromise bill that became law generally adopts the House "hammer" provisions, but uses deadlines closer to the laxer Senate version. For a side-by-side comparison of the House and Senate bills, see Special Supplement, INSIDE EPA, Aug. 3, 1984.

16. RCRA Amendments, sec. 221.

17. Id. sec. 215.

18. Id. sec. 601.

19. Id. sec. 704. For a more thorough analysis of the RCRA amendments, see Rosbe & Gulley, The Hzardous and Solid Waste Amendments of 1984: A Dramatic Overhaul of the Way America Manages Its Hazardous Wastes, 14 ELR 10458 (Dec. 1984).

20. H.R. 5640, 130 CONG. REC. H8929 (daily ed. Aug. 10, 1984).

21. See Hathaway, Hazardous Waste Victims Need a Federal Cause of Action, 14 ELR 10294 (Aug. 1984); Cheek, The Proposed Federal Cause of Action Is No Solution to Victims Compensation Problems, 14 ELR 10296 (Aug. 1984).

22. Final Scorecard, ENVTL. & ENERGY STUDY INST. WEEKLY BULL., Oct. 11, 1984, at 15.

23. See House Democrats Poised to Link Superfund to RCRA to Force Senate Action, INSIDE EPA, Aug. 10, 1984, at 1; House Names RCRA Conferees; Florio Plan to Link Superfund to RCRA Tabled, INSIDE EPA, Aug. 17, 1984, at 11.

24. S. REP. NO. 631, 98th Cong., 2d Sess. (1984), reported at 130 CONG. REC. S11712 (daily ed. Sept. 21, 1984).

25. Final Scorecard, supra note 22, at 15.

26. 130 CONG. REC. S12651 (daily ed. Oct. 3, 1984).

27. S. REP. NO. 631, at 42-214.

28. Final Scorecard, supra note 22, at 16.

29. OMB Questions EPA Capacity to Spend $1 Billion Under Superfund in FY-86, INSIDE EPA, Nov. 9, 1984, at 1, 6.

30. H.R. 3282, 130 CONG. REC. H6859 (daily ed. June 26, 1984) (bill reprinted).

31. How the Environment Fared in the 98th Congress, SIERRA CLUB NAT'L NEWS REP., Oct. 30, 1984, at 2.

32. Final Scorecard, supra note 22, at 4-5.

33. S. 431. For a detailed, side-by-side comparison of the House and Senate bills, see House and Senate at Odds Over Clean Water Act Amendments, 56 J. WATER POLLUTION CONTROL FED'N 910-17 (1984).

34. S. 2006. See Comment, supra note 11, at 10006, for a discussion of both S. 431 and S. 20006.

35. Letter from 35 organizations to "Dear Senator" (Sept. 5, 1984) (copy on file with the author).

36. 130 CONG. REC. H9743 (daily ed. Sept. 18, 1984). The vote was 366-27.

37. Final Scorecard, supra note 22, at 6.

38. S. 2649, S. REP. NO. 641, 98th Cong., 2d Sess. (1984).

39. S. 3041, 97th Cong., 2d Sess. (1982).

40. S. 768, S. REP. NO. 426, 98th Cong., 2d Sess. (1984).

41. H.R. 5314, introduced by Representative Waxman (D-Cal.) on March 30, 130 CONG. REC. H2124 (daily ed. Mar. 30, 1984). H.R. 5314 consolidated Representative Waxman's 10-million-ton SO₂ reduction plan to fight acid rain from H.R. 3400 with Representative Wirth's (D-Colo.) hazardous air pollutants proposal from H.R. 5084, introduced March 8, 130 CONG. REC. H1514 (daily ed. Mar. 8, 1984).

42. Representative Eckart had sought, in the view of Representative Waxman and others, too many protections for midwestern high-sulfur coal users, causing what had appeared to be a coalition sufficient to pass the bill to fall apart. Final Scorecard, supra note 22, at 3. This was a partial microcosm of the general acid rain control debate. Other aspects of the debate include the questions whether a tax to support the controls — the vast majority are agreed that federal subsidies are appropriate — should be national or only regional, and whether generalized controls or controls on specific big producers of SO₂ should be required. Northeastern states, apparently hardest hit by acid rain, want controls on midwestern polluters where much of their acid rain originates.

43. A one-year extension was passed last session, Pub. L. No. 98-201, 98 Stat. 1379 (1983).

44. S. 1774; H.R. 3818.

45. HOUSE COMM ON GOVERNMENT OPERATIONS, supra note 12.This treatment of FIFRA recalls last year's heavy oversight, light-action session. See Comment, supra note 11.

46. All but 259,000 acres were designated this session, though many of the bills were introduced first session. The 259,000 acres comprise the Lee Metcalf Wilderness in Montana, designated by S. 96, Pub. L. No. 98-140, 97 Stat. 901 (1983). S. 96 was not a statewide bill and did not address statewide release, though it did release certain parcels from further wilderness consideration in the current planning cycle.

The state-by-state acreage totals for the 98th Congress are as follows:

State Acres

Arizona 1,061,250

Arkansas 91,103

California * 3,207,150

Florida 49,150

Georgia 14,000

Mississippi 5,500

Missouri 16,500

Montana 259,000

New Hampshire 77,000

New Mexico 27,840

North Carolina 68,750

Oregon 859,300

Pennsylvania 9,700

Tennessee 24,000

Texas 34,000

Utah 749,550

Virginia 56,000

Vermont 41,260

Washington 1,021,303

Wisconsin 24,339

Wyoming 884,000

TOTAL 8,581,055

* Includes 1.4 million acres of new national park land wilderness.

47. The new designations increase wilderness in the lower 48 states by 36 percent to 32.3 million acres. Alaska has 56.5 million acres, for a total of 88.8 million acres.

48. Later softened to prohibit further review into the next century.

49. 690 F.2d 753, 13 ELR 20092 (9th Cir. 1982). See generally McCloskey & Desautels, A Primer on Wilderness: Law and Policy, 13 ELR 10278 (1983).

50. See generally Comment, Forest Planning: Bound for the Courts Again, 14 ELR 10195 (May 1984).

51. See, e.g., Texas Wilderness Act of 1984, S. REP. NO. 614, 98th Cong., 2d Sess. 6-14 (1984).

52. The provisions are in the Department of the Interior appropriations bill, contained in the continuing resolution, Pub. L. No. 98-473, 98 Stat. 1837 (1984).

53. Pub. L. No. 98-478, 98 Stat. 2213 (1984). By contrast, the President vetoed legislation for which he had similr objections — budget and interference with the free market — but which would have assisted groups not generally considered part of his constituency, namely Native Americans and poor city youths. H.R. 5760, Memorandum of Disapproval, 130 CONG. REC. H12292 (daily ed. Nov. 14, 1984) (Navajo claims); H.R. 999, Memorandum of Disapproval, 130 CONG. REC. H12291 (daily ed. Nov. 14, 1984) (American Conservation Corps).

54. How the Environment Fared in the 98th Congress, supra note 31, at 4.

55. S. 864, Pub. L. No. 98-540, 98 Stat. 2718 (1984). The bill originally only eliminated the ceilings on appropriations for the Volunteers in the Parks program. That provision remains, though amended to only raise the ceilings. 130 CONG. REC. H11453 (daily ed. Oct. 4, 1984) (amendments reprinted).

56. 130 CONG. REC. at H11454. The law also requires the National Park Service to study its maintenance system and implement a maintenance management program to be in place before the A-76 ban expires.

57. E.g., S. 2732, Pub. L. No. 98-444, 98 Stat. 1714 (1984) designates, all in Oregon, 50.4 miles of the Illinois River and 110 miles of the Owyhee River as wild and scenic, and the main stem of the North Umpqua River as a study river. See ELR's monthly "Recent Developments — In the Congress" feature, supra note 46, for other bills and public laws.

58. The Connecticut Coastal National Wildlife Refuge. H.R. 5464 was originally its vehicle, but it was grafted onto the Wetlands Loan Act bill. H.R. 5271, Pub. L. No. 98-548, 98 Stat. 2774 (1984); see infra note 64 and accompanying text.

59. H.R. 6197 was introduced by Representative Hansen (R-Utah) on September 6, 130 CONG. REC. H9217 (daily ed. Sept. 6, 1984), to replace H.R. 5229 (Hansen), see 130 CONG. REC. H1901 (daily ed. Mar. 22, 1984), and S. 2471 (Garn, R-Utah), 130 CONG. REC. S3098 (daily ed. Mar. 22, 1984).

60. H.R. 3082; S. 1329.

61. H.R. 3082 passed the House by a vote of 351-45 on September 20. An effort to delete the rider failed by a vote of 194-203. 130 CONG. REC. H9871 (daily ed. Sept. 20, 1984) (bill reprinted).

62. S. 1329.

63. ENVTL. & ENERGY STUDY INST. WEEKLY BULL., Sept. 17, 1984, at B13.

64. Pub. L. No. 98-548, 98 Stat. 2774 (1984). Senate amendments shortened the extension in the House bill from 10 years to two.

65. S. 663 was the vehicle for conference consideration. H.R. 3457 was the House bill.

66. H.R. 5743, attached to the Continuing Resolution after neither house brought the conference report, filed Sept. 25, 1984, to a vote.

67. Id.

68. Memorandum of Disapproval, 130 CONG. REC. H12291 (daily ed. Nov. 14, 1984) (memorandum dated Oct. 30, 1984).

69. H.R. 5492, Pub. L. No. 98-613, 98 Stat. 3187 (1984).

70. H.R. 4997, Pub. L. No. 98-364, 98 Stat. 440 (1984).

71. S. 1102, Pub. L. No. 98-498, 98 Stat. 2296 (1984).

72. FinalScorecard, supra note 22, at 9.

73. H.R. 4829, 130 CONG. REC. H10493 (daily ed. Oct. 1, 1984) (amendments reprinted).

74. Final Scorecard, supra note 22, at 11.

75. See also supra text accompanying note 67 on soil conservation appropriations.

76. H.R. 3678, 130 CONG. REC. H7500 (daily ed. June 29, 1984).

77. S. 1739.

78. How the Environment Fared in the 98th Congress, supra note 31, at 6.

79. In fact, the Administration requested $52 million in FY 1985 towards a $1.8 billion total bill for 19 new starts for which it had already worked out cost-sharing agreements.

80. H.R. 5653, Pub. L. No. 98-360, 98 Stat. 430 (1984).

81. Environmentalists object, among other things, to the project's destruction of numerous prairie patholes, which are small isolated wetlands important for migratory waterfowl. The Canadian government is worried about introduction of Missouri River biota into the Hudson Bay watershed.

82. H.R. 5713, Pub. L. No. 98-371, 98 Stat. 1213 (1984).

83. How the Environment Fared in the 98th Congress, supra note 31, at 5.

84. Final Scorecard, supra note 22, at 8.

85. For descriptions of and cites to other environmental appropriations bills, see ELR's monthly "Recent Developments — In the Congress" feature, supra note 46.

86. H.R.J. Res. 648, see H.R. REP. NO. 1159, at 35-38.

87. See H.R. REP. NO. 886, 98th Cong., 2d Sess. The Senate committee on Appropriations balked at those directives, see S. REP. NO. 578, 98th Cong., 2d Sess. 6 (1984).

88. See infra note 89 and accompanying text.

89. The moratoria are established in the Department of the Interior appropriations bill, which was part of the continuing resolution. See H.R. REP. NO. 1159, 98th Cong., 2d Sess. 18-20 (1984) (conference report). Pub. L. No. 98-473, § 108, 98 Stat. 1837 (1984).

90. 104 S. Ct. 656, 14 ELR 20129 (1984). See Comment, Supreme Court Beaches Coastal Zone Management Act, 14 ELR 10161 (Apr. 1984).

91. H.R. 4589; S. 2324. Both bills would have broadened the geographical coverage of the consistency requirement and defined "directly affecting" the coastal area more broadly. The bills differed slightly in their delineations of when full oonsistency is required. See Comment, supra note 90, at 10167.

92. S. 2538, 130 CONG. REC. S11645 (daily ed. Sept. 21, 1984) (bill reprinted).

93. S. 2463, H.R. REP. NO. 1006, 98th Cong., 2d Sess. (1984); the House approved the conference report by a vote of 312-94. 130 CONG. REC. H9485 (daily ed. Sept. 13, 1984).

94. H.R. 1010, 129 CONG. REC. H7486 (daily ed. Sept. 27, 1983).

95. Final Scorecard, supra note 22, at 5.

96. Pub. L. No. 98-473, 98 Stat. 1837, see H.R. REP. NO. 1159, 98th Cong., 2d Sess. 25 (1984) (conference report). Prior to the rescission, the Corporation had $13.26 billion available to it.

97. See Final Scorecard, supra note 22, at 16.

98. S. 1291, Pub. L. No. 98-553, 98 Stat. 2825 (1984).

99. H.R. 2510, H.R. REP. NO. 103, 98th Cong., 2d Sess. (1984).

100. See Final Scorecard, supra note 22, at 10.

101. H.R. 5479, cleared for the President by the Senate on October 11, 130 CONG. REC. S14387 (daily ed. Oct. 12, 1984) (bill reprinted).

102. Memorandum of Disapproval, 130 CONG. REC. H12292 (daily ed. Nov. 14, 1984) (memorandum dated Nov. 8, 1984).

103. The President also objected to a provision regarding interest on unpaid attorneys fees and other unspecified provisions, but the "substantially justified" clarification was the "most objectionable of these provisions." Id. at 12292-93.

104. See SENATE COMM. ON THE JUDICIARY, REPORT TO ACCOMPANY S. 919, S. REP. NO. 586, 98th Cong., 2d Sess. 8 (1984) (report on the companion Senate bill). Courts have split in their interpretation of the present language. See id. at 7-9. Cases holding that the government's position includes the underlying agency action include Rawlings v. Heckler, 725 F.2d 1192 (9th Cir. 1984) and Natural Resources Defense Council, Inc. v. United States Environmental Protection Agency, 703 F.2d 700, 13 ELR 20446 [digest] (3d Cir. 1983).

105. S. REP. NO. 586, supra note 104, at 9.

106. Memorandum of Disapproval, supra note 102, at H12293.

107. For example, William Ruckelshaus, EPA Administrator, has commissioned the Environmental Law Institute and the Environmental and Energy Study Institute to study alternatives to statutory deadlines, which he says tie his hands and distort Agency priorities. Ruckelshaus Asks Staff to Study Alternatives to Statutory Deadlines, INSIDE EPA, Nov. 2, 1984, at 11.

108. A stringent mandatory cleanup schedule in the CERCLA amendments and mandatory standard-setting schedules for the Toxic Substances Control Act and Clean Air Act amendments are expected in next year's legislative proposals. Id.