Muddling Through: Congressional Activity in 1988

Shannon J. Kilgore

Editors' Summary: The 100th Congress closed out its term with a flurry of activity, enacting several environmental bills and introducing a number of bills that will set the stage for the 101st Congress. A FIFRA reauthorization bill passed, and the Endangered Species Act was reauthorized after three years' delay with few significant changes. Yet, in many respects the session that just ended was disappointing, and resulted in more form than substance. Efforts to reauthorize the Clean Air Act failed miserably, RCRA reauthorization failed to get off the ground, and attempts to revamp how federal facilities comply with environmental laws stalled. This Comment reviews the successes and failures of the 100th Congress, and discusses the agenda facing the new Congress — and the new Administration — when both officially start work later this month.

[19 ELR 10016]

Nineteen eighty-eight will go down in the records as a year in which congressional activity on environmental matters was characterized more by failure than success, and more by a tendency to avoid, rather than resolve, hard issues. While there were indeed some accomplishments late last year — reauthorization of the Endangered Species Act (ESA) and legislation prohibiting the ocean dumping of sewage sludge, for example — the list of matters left unresolved is long and includes a number of important items. Acid rain, urban smog, groundwater contamination, and increasingly unmanageable amounts of hazardous and solid waste, to name a few, were the subjects of months of study, debate, and negotiation, but not of final action. When Congress did act, such as in the case of pesticide regulation, it often addressed only the least controversial issues, and deferred decisions on the more difficult questions to a later time.

Part of the problem was undoubtedly a function of special circumstances that came together in 1988. Particular personalities, both inside and outside of Congress, contributed to last year's difficulties. In addition, time was short because of the special demands of a presidential election year. Part of the difficulty may also have been more fundamental. Power is more widely dispersed within Congress than ever before, with numerous subcommittee chairmen and informal coalitions going in disparate directions on policy issues.

Furthermore, contributing to the problem may have been something that we simply cannot get away from: it may be that the very way Congress makes decisions is to some degree incompatible with swift and effective environmental protection. By its nature, a democratic legislature attempts to satisfy all interests, to combine all conflicting desires and needs into a middle-of-the-road compromise that rarely diverges far from the status quo.¹ Although this governing style helps to ensure stability and consideration of all points of view, even minority interests, it is a poor mechanism to achieve truly long-range planning or reverse quickly worsening trends. Decisions tend to be made in small increments, in a manner that one writer has termed "muddling through."² This process bogs down easily when economic and regional disagreements are severe, as in the case of acid rain. In the context of environmental legislation, the slowness of the decisionmaking process can have irreversible consequences, since environmental degradation is not suspended while Congress deliberates.

The proliferation of environmental legislation, some of it quite comprehensive, over the past 20 years is evidence that Congress is not incapable of responding to environmental [19 ELR 10017] problems, although sometimes a crisis seems necessary to provoke a congressional response.³ Nevertheless, the dominant characteristics of 1988 were inaction, incomplete action, and lack of consensus. It did indeed appear that Congress, rather than providing national leadership on difficult environmental issues, was at best merely "muddling through," and at worst not acting at all.

Air

Clean Air Act

When the 100th Congress first assembled in January 1987, prospects for reauthorization⁴ and amendment of the Clean Air Act appeared favorable, though by no means certain.⁵ Two issues spurred legislators to begin seriously to consider amending the Act: acid rain and smog. National attention in recent years has focused on the potentially grave problem of acid rain, which yearly takes its toll on the Northeast's lakes and trees, as well as on the United States' relations with Canada. It also appeared that the obvious inability of numerous areas across the country to meet the impending December 1987 deadline for attainment of the ozone and carbon monoxide national ambient air quality standards (NAAQSs) might prompt congressional action.⁶

After a year of little progress, Congress postponed for eight months the December 1987 deadline for the implementation of sanctions against areas failing to comply.⁷ The rejection of a longer postponement was intended to maintain pressure on lawmakers to pass Clean Air Act amendments in the second session. However, the new deadline passed while Congress was adjourned in August 1988,⁸ and by October it was evident that the entire amendment process was going nowhere.

In retrospect, perhaps even the most guarded predictions about the possibility of passage of air pollution legislation in the 100th Congress were unrealistic. Deep regional and economic divisions over both major issues, particularly acid rain, proved insurmountable.

On the House side, acid rain and smog legislation never even emerged from subcommittee. Early in 1988, House Energy's Subcommittee on Health and the Environment, chaired by Rep. Waxman (D-Cal.), began markup of a committee print combining Waxman's nonattainment measure⁹ and Rep. Sikorski's (D-Minn.) acid rain bill.¹⁰ Subcommittee members were divided on both portions of the legislation, and prospects in the full committee were uncertain, given Chairman Dingell's (D-Mich.) open opposition to strong mobile source controls.

The process began to splinter immediately. The subcommittee managed to complete markup of the acid rain title;¹¹ however, alternate proposals to the Waxman and Sikorski measures started to emerge, and the various proposals and counterproposals never coalesced into a unified effort. A group of nine House Energy Democrats¹² formed to try to craft a compromise on both smog and acid rain issues. The group's nonattainment proposal went through at least two major drafts, and its attempts to move toward a committee consensus on acid rain stalled amid talk of possibilities such as subsidies to help lighten the burden [19 ELR 10018] on Midwestern states.¹³ One member of the group, Rep. Cooper (D-Tenn.), introduced his own acid rain bill,¹⁴ and another acid rain plan was put forward jointly by Governors Celeste of Ohio and Cuomo of New York. The Ohio-New York plan would have combined phased reductions in sulfur dioxide emissions¹⁵ with authorization of funding¹⁶ to cover much of the capital costs of the emission controls.¹⁷ Added to the tangle was a nonattainment proposal by Rep. Fields (R-Tex.) that was harshly criticized by environmentalists as weak in emissions controls and enforcement measures, as well as lacking in meaningful deadlines; however, the Fields proposal had the support of a number of subcommittee members. In the end, no one was able to pull together all these disparate viewpoints into one piece of legislation.

In the Senate, the process was slightly more focused, but ultimately no more successful. The Senate Environment Committee had approved a bill addressing nonattainment and acid rain in 1987.¹⁸ Endorsed by environmentalists but opposed by industry as too costly,¹⁹ the bill never made it to the floor. It encountered stiff opposition from Majority Leader Byrd (whose home state of West Virginia relies heavily on the high-sulfur coal industry), Midwestern senators, and Wyoming's Sen. Simpson.

Throughout the summer and fall of 1988, Sen. Mitchell (D-Me.), Chair of the Environmental Protection Subcommittee and the bill's chief sponsor, negotiated with various parties — among them Byrd, Simpson, the United Mine Workers of America, and environmental groups — to try to arrive at a consensus on the acid rain issue. In July, Sen. Mitchell and abipartisan group of senators came out with a revised, somewhat less stringent version of Mitchell's bill.²⁰ Environmental groups continued to endorse the measure, while industry continued to oppose it. Further negotiations ensued, and Mitchell offered additional compromises to opponents of his bill. Eventually, environmental groups and key senators began to balk at the increasingly weak measure,²¹ and Mitchell announced in early October that the impasse had proven impossible to work through.²²

Mitchell and the members of the "Group of Nine" are fairly uniform in their assessment of the reason for the demise of the reauthorization effort. They place the blame squarely on what they see as the extremism of the two chief opponents in the struggle: industry (including the utilities) and environmentalists. Fairly representative of their views is the statement of Rep. Sharp (D-Ind.):

In the end, advocates at polar ends of the issue prevented action this year. Some concerned environmentalists wanted more action sooner, but there is insufficient support in Congress for their position. Many in industry fear the high costs of compliance, and want fewer legal requirements. That position is insufficient to protect the public health. Together, they essentially made it impossible to move legislation.²³

Rep. Swift (D-Wash.) was even more to the point. He accused "some utilities" of being unwilling to come to the table, of hiding behind their ratepayers, and of stonewalling by asserting that acid rain is not a problem — an argument that he dismissed as "baloney."²⁴ He next charged that "other extremists hide in a coalition of business and industries" and have worked for two years to kill clean air legislation.²⁵ Finally, he accused extremists in environmental groups of having "systematically organized opposition to clean air compromises that offered the only real chance of progress."²⁶

[19 ELR 10019]

This was a situation in which Congress, rather than "muddling through," did nothing at all. Sen. Mitchell correctly asserts that the cost of inaction is high.²⁷ But those environmentalists who were unwilling to accept what they regarded as unacceptably weak legislation believe that the next set of amendments to the Clean air Act is likely to be the only major change for some time to come, so the new measures must be adequate.²⁸ In other words, they flatly reject the notion that muddling through is good enough. It remains to be seen whether, absent a crisis, environmentalists will persuade the new Congress to take action that they deem adequate.²⁹ Even if strong legislative action is taken by the new Congress, there remains the question whether less action taken sooner is preferable to stronger action taken later.

Radon

"The national long-term goal of the United States with respect to radon levels in buildings is that the air within buildings in the United States should be as free of radon as the ambient air outside of buildings."³⁰

So begins the State Radon Program Development Act of 1988. Pursuit of this goal presents a challenge very different from that posed by most environmental problems. The usual tools with which government addresses pollution — command and control regulation, enforcement strategies, economic incentives for industrial compliance — are inapplicable to radon. This is because radon contamination occurs naturally. There is no polluting party whose actions can be changed to prevent the problem, and who can be called on to absorb the cost under the "polluter pays" theory.

Radon gas is produced as natural uranium deposits in soil and rock decay. In the outdoors, the invisible radioactive gas dissipates and poses little threat to human health. However, it often enters buildings through openings in foundations or walls, and indoors its concentration can rise to dangerous levels. Radon is known to contribute to lung cancer, and many buildings in the United States are believed to have significant levels of contamination. Fortunately, measures such as ventilation, sealing, and proper construction seem to be effective and are relatively inexpensive.

The legislation enacted at the end of the 1988 session is designed to aid states in developing and implementing radon control programs. The new act calls on the Environmental Protection Agency (EPA) to publish "A Citizen's Guide to Radon," which will describe a series of "action levels" of exposure and the health risks associated with each level, as well as provide information about measures to reduce radon concentrations. EPA will develop model construction standards and techniques for controlling radon levels in new buildings, and provide grants and a range of technical assistance to states.³¹ In addition, the Act provides for a study to determine the extent of radon contamination in public school buildings.

Alternative Fuels

In an attempt to move away from our national reliance on fossil fuels, which generate considerable pollution and make us heavily dependent on foreign countries, Congress passed the Alternative Motor Fuels Act of 1988.³² The purpose of the Act is to provide automobile makers with incentives to manufacture motor vehicles capable of running on methanol, ethanol, and natural gas. Under the new provisions, the federal government is to establish a procurement program for such vehicles, and special formulas for the calculation of fuel efficiency will make it easier for the vehicles to meet corporate fuel economy standards.

Unfortunately, a measure that takes a step forward to prevent one pollution problem may simultaneously represent a significant step backward with respect to another problem, and this may be true with alternative fuels. For example, the use of methanol would decrease emissions of nitrogen oxides (which help produce acid rain) and hydrocarbon compounds (which contribute to smog);³³ however, it could very well result in increased emissions of carbon dioxide, a major contributor to the greenhouse effect, as well as greater emissions of formaldehyde, a carcinogen.³⁴ The new statute addresses these problems only to a limited degree by directing EPA to undertake a study of the environmental effects of the use of alternative fuels, including possible contributions to global climate change.

Stratospheric Ozone Depletion

In March of last year, the Senate ratified an international agreement to limit the production and use of chemicals [19 ELR 10020] such as chlorofluorocarbons (CFCs) that deplete stratospheric ozone.³⁵ The agreement was scheduled to go into effect on January 1, provided that countries representing two-thirds of global CFC use have ratified it; at the time of this writin;, the two-thirds requirement was not yet fulfilled, but was expected to be met by January 1. Although the treaty represents an important first step, it is unclear whether its provisions are stringent enough to significantly abate the continuing diminution in the earth's protective ozone layer.

Hazardous and Solid Waste

Authorization for the Resource Conservation and Recovery Act (RCRA) expired last September,³⁶ but Congress made no genuine effort to tackle its reauthorization in 1988. The 101st Congress is expected to begin to work in earnest on reauthorization, and to consider amending Subtitle D to increase regulation of the disposal of solid waste and encourage recycling.

Sen. Baucus (D-Mont.) introduced a reauthorization bill last session that is expected to establish the framework for this year's work.³⁷ The measure would require states to establish solid waste management plans identifying anticipated future waste generation and waste disposal needs and setting up management strategies that include source reduction and recycling. Permits similar to those presently required for the treatment, storage, and disposal of hazardous waste under Subtitle C would be required for solid waste as well. In addition, EPA would have to promulgate minimum standards for the management of waste categories including municipal solid waste; municipal incinerator residues; emissions from municipal incineration; infectious wastes; mining wastes; industrial nonhazardous wastes handled in surface impoundments; oil, gas, and geothermal wastes; and underground injection of nonhazardous wastes. The bill would allow the export of solid waste only where there is an agreement between the United States and the receiving country. The measure includes national waste reduction and recycling goals and an efficiency requirement for producers of industrial hazardous waste, and would establish an EPA office to oversee source reduction and recycling efforts.

Various RCRA issues, some of which are addressed in the Baucus bill and will no doubt re-emerge as part of the RCRA reauthorization debate, received attention in piecemeal fashion throughout 1988. The hypothesis that a real or perceived crisis sparks the legislative process appears to have been borne out by the passage last year of two infectious waste measures.³⁸ Congress responded quickly to the highly publicized influx of used medical paraphernalia at beaches on the East Coast by passing legislation requiring EPA to set up a two-year pilot program for infectious waste tracking in New York, New Jersey, Connecticut, and the Great Lakes states,³⁹ and by approving a ban on the ocean dumping of medical waste by United States vessels.⁴⁰ A bill that would have required EPA to develop and implement a strategy to promote reduction of hazardous waste at the source, establish an information clearinghouse on waste reduction, and provide grants to states for programs that promote voluntary source reduction techniques by industry, died on the last night of the session.⁴¹ Several bills that would have specified how municipal incinerator ash is to be classified under RCRA⁴² also failed to gain approval.⁴³

Legislation to remedy some of the difficulties faced by EPA and the states in their attempts to enforce hazardous waste laws against federal facilities made it through committee, but was not enacted. The federal government, usually through the Departments of Defense and Energy, operates facilities throughout the country that generate hazardous waste. Although RCRA's requirements for disposal of hazardous waste clearly apply to federal facilities,⁴⁴ and the federal government is subject to injunctions [19 ELR 10021] mandating compliance,⁴⁵ most courts have held that RCRA does not waive the government's sovereign immunity with respect to the imposition of civil penalties.⁴⁶

In December 1987, a predominantly Democratic coalition in the House introduced five bills that would have strengthened the ability of EPA and states to enforce RCRA's requirements at federal facilities.⁴⁷ The bills included provisions to clarify that federal agencies are subject to RCRA enforcement and to establish a Special Environmental Counsel to bring legal action against federal facilities. In addition, the legislation would have required that RCRA and Superfund monies appropriated for cleanup at Department of Energy facilities actually be spent on cleanup, rather than be placed in the facilities' general operating budgets, as is currently the common practice.⁴⁸ Although none of these measures was passed, concern about hazardous waste contamination at government facilities is not likely to disappear. Cleanup and compliance needs at Department of Energy facilities alone are now estimated to cost over $ 100 billion.⁴⁹ Chances are very good that the issue will resurface in the 101st Congress.

Pesticides

Reform of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) has been on Congress' agenda for some time now.⁵⁰ A chief objective of those who have advocated comprehensive FIFRA reform⁵¹ has been the acceleration of EPA's reregistration program for pesticide ingredients that were initially registered under testing methods that are now obsolete. EPA has so far completed action on only a few of the 600 active ingredients subject to reregistration. In October, the President signed into law a set of FIFRA amendments⁵² that establishes a series of deadlines for completion of the task and requires registrants to pay fees that will partially finance EPA's intensified reregistration activities. Reregistration must be fully accomplished within nine years. Those wishing to see FIFRA strengthened obtained two other changes: enhancement of EPA's authority to regulate the storage, transportation, and disposal of suspended or canceled pesticides,⁵³ and a limitation of automatic indemnities for canceled or suspended pesticides to end-users only.⁵⁴

The amendments left many observers disappointed, however, and are as notable for their omissions as for what they include. For example, environmentalists had sought measures to prevent groundwater contamination by pesticides and to regulate exports of pesticides that are banned in this country.On the other hand, industry had hoped to see Congress enact provisions preempting state requirements concerning pesticide residues in foods that are more stringent than federal requirements, and agricultural interests had wanted legislation limiting liability of farmers for contamination of groundwater caused by their application of pesticides. While a more comprehensive bill was reported by the Senate Agriculture Committee,⁵⁵ legislators in the closing weeks of the session made a deliberate decision to ignore the most controversial issues and push through a "core" bill.

Environmentalists are vowing to renew their attempts to achieve reform on the issues not covered by the 1988 amendments.⁵⁶ Groundwater protection looks like the most likely subject of any change in the near future,⁵⁷ but the fact that the new amendments reauthorized FIFRA for three years bodes ill for any immediate reform attempt.⁵⁸

Wildlife

The ESA was finally reauthorized by Congress last fall — three years after the expiration of its authorization.⁵⁹ While the House had passed a reauthorization bill in December 1987,⁶⁰ the Senate companion bill had a hard time reaching the floor. The most formidable obstacle in the path of the Senate measure was Sen. Heflin's (D-Ala.) opposition to federal regulations requiring that shrimp trawlers in the [19 ELR 10022] Gulf of Mexico use "turtle excluder devices" (TEDs) that prevent sea turtles from becoming entangled in shrimp nets and drowning.⁶¹ Ultimately, senators engineered a compromise providing for the delay of TED requirements in offshore waters until May of this year, and in inshore waters until May of 1990.⁶²

The new law reauthorizes the ESA for five years. Although its amendments to the ESA are not extensive, it includes several changes of potential significance. The new provisions include a call for monitoring of species that have declining populations but are not yet listed as threatened or endangered,⁶³ more specific requirements for recovery plans for listed species,⁶⁴ monitoring of recovered species,⁶⁵ increased protection for endangered plants,⁶⁶ and stiffer penalty provisions.⁶⁷

In addition to reauthorizing the ESA, Congress also amended and reauthorized the Marine Mammal Protection Act for five years.⁶⁸ The amendments were criticized by environmentalists for failing to address adequately the problem of incidental takings of marine mammals by the tuna industry. Although some restrictions on the practice of "encirclement" — where marine mammals are encircled and netted by tuna fisherman in an effort to catch the tuna swimming below — were included, these measures are deemed insufficient by environmental groups.⁶⁹

Groundwater and Drinking Water

Groundwater

Groundwater research legislation in the 100th Congress was plagued by jurisdictional problems. Groundwater contamination can be conceptualized in many different ways — as a water pollution problem, a largely agricultural matter, or an issue requiring further research by hydrologists and geologists. The multitude of congressional committees and federal agencies that have a say in the matter complicates any attempt at congressional action. While efforts to address pesticide contamination of groundwater as part of FIFRA reform were unsuccessful,⁷⁰ separate groundwater research legislation made some headway in the 100th Congress. However, it ultimately failed as well.

In 1987, a groundwater research bill was introduced in the House⁷¹ that would have established primary groundwater research responsibility with the U.S. Geological Survey (U.S.G.S.), and also given some research responsibility to EPA. Five House committees reported out five slightly different versions of the bill;⁷² a version reconciling [19 ELR 10023] the differences was passed by the full House in December 1987.⁷³ The bill provoked disagreement as to which agency — EPA or the U.S.G.S. — should take the lead in groundwater research. The measure finally reached the Senate floor in October of last year, and the Senate amended it to give EPA the greater role.⁷⁴ The Senate also deleted a controversial provision in the House version that would have granted the states primary regulatory responsibility for groundwater protection.⁷⁵ By this point, however, too few days were left on the legislative calendar, and time ran out before the two versions could be reconciled.

Drinking Water

Exposure to lead can produce developmental problems in children, pregnancy risks, cardiovascular disorders, and kidney and gastrointestinal damage. Lead pollution of air in the United States has been greatly reduced, and now the presence of lead in drinking water is perhaps the more serious problem. Lead can be found in water mains, service lines that run between water mains and individual homes and businesses, private plumbing, and in the lining of some water coolers. From these places, it leaches into drinking water supplies.⁷⁶

The Lead Contamination Control Act of 1988,⁷⁷ passed by Congress in the last weeks of the session, is designed particularly to reduce the exposure of children to lead. The new law requires the Consumer Product Safety Commission to recall water coolers with lead or lead-lined tanks, many of which are found in schools. The measure also provides for financial assistance for schools to address lead contamination of their drinking water and a grant program, to be coordinated by the Centers for Disease Control, for lead screening of children.

Absent from the law is a provision, included in the subcommittee bill but deleted by the House Energy and Commerce Committee, that would have tightened up the national drinking water regulation for lead under the Safe Drinking Water Act (SDWA)⁷⁸ beyond that proposed by EPA last August.⁷⁹ EPA rejected the idea of setting a lead standard at the tap, in part because the Agency determined that under the SDWA water utilities have no responsibility for contaminants entering the water from customers' plumbing.⁸⁰ EPA instead proposed a two-part regulation consisting of maximum contaminant levels applicable to water leaving the distribution center, and requirements for corrosivity treatment of the water in some cases to reduce leaching.⁸¹ The provision that was removed from the new legislation would have focused on the contamination level at the tap, and might have resulted in some utilities' having to replace lead service lines and assist customers in eliminating sources of lead in their own plumbing.⁸²

Oceans

A protracted dispute between New York City and New Jersey culminated in the enactment, at the end of the session, of a measure banning the ocean dumping of sewage sludge.⁸³ New Jersey has pushed hard for an end to the practice, which despoils the waters off New Jersey's coast, damaging the tourist and fishing industries. Although a number of New Jersey municipalities have engaged in the practice, a large percentage of the sewage deposited into the ocean originates in New York City, which has maintained that a prohibition on dumping in the near future will be impossible to meet.

The new law prohibits the ocean dumping of sewage sludge after December 31, 1991. Before then, fees will be charged for dumping permits, and after the deadline, penalties will go into effect for violations of the ban. Portions of the proceeds will be available to states for development of alternatives to dumping.

Legislation reauthorizing the ocean dumping and marine sanctuary provisions of the Marine Protection, Research, and Sanctuaries Act was also enacted in 1988.⁸⁴ Earlier in the year, Congress passed a bill, subsequently signed by the President, to restrict the sale and use of organotin-based antifoulant paints.⁸⁵ Such paints are frequently applied to boat hulls and marine structures to prevent the development of algae and barnacles, and the paints are harmful to a variety of marine and freshwater organisms. The new law prohibits use of the paints on boats shorter than 82 feet, which travel in the shallow waters where many of the adversely affected organisms are found.

Public Lands

Arctic National Wildlife Refuge

The most divisive public lands issue of the year was undoubtedly the continuing battle over the Administration's proposal to open the coastal plain of the Arctic National Wildlife Refuge (ANWR) in Alaska to oil and gas leasing. The law presently provides that congressional action is necessary in order to open the area to oil and gas development.⁸⁶ Two general kinds of ANWR bills were introduced [19 ELR 10024] and considered by the 100th Congress: bills that would open the coastal plain of the refuge to leasing,⁸⁷ and bills that would designate the coastal plain a wilderness area and thereby foreclose the possibility of oil and gas development.⁸⁸ Although in 1988 the pro-leasing bills advanced further than did the wilderness bills — the Senate Energy Committee and the House Merchant Marine and Fisheries Committee both reported out bills⁸⁹ to permit leasing — neither house passed a measure deciding the issue.⁹⁰ A U.S. Fish and Wildlife Service report on the environmental effects of oil and gas development activities at Prudhoe Bay, only 60 miles from ANWR, was made public in 1988. The study revealed evidence of serious water and air pollution and loss of fish and wildlife habitat as a result of energy development activities there.⁹¹

Congress' inaction was a victory of sorts for opponents of oil and gas development of ANWR's coastal plain, since it perpetuates the status quo in which leasing is not allowed. ANWR's legal status quo, however, is as fragile and subject to disruption as its ecosystem is claimed to be. Even if the 101st Congress designates the area a wilderness, what is done can be undone. ANWR will always remain vulnerable to the possibility that a future energy crisis will provoke a clamor for development of all domestic oil and gas reserves.⁹²

Wilderness

At the beginning of 1988, only three western states — Idaho, Nevada, and Montana — did not yet have statewide national forest wilderness designations based on the Forest Service's Roadless Area Review and Evaluation II (RARE II) recommendations.⁹³ RARE II bills were introduced and considered for all three states, but they all fell prey to heated disagreement concerning local versus federal control of natural resources, and environmental versus economic interests. At the end of the year, none of them had been enacted into law. A 1.4 million acre Montana bill⁹⁴ came within a pen stroke of becoming law when the Senate and House both approved the measure.⁹⁵ However, President Reagan surprised observers by pocket-vetoing the bill on the grounds that it would be detrimental to Montana's economy.

A handful of other wilderness bills were enacted in 1988.⁹⁶ The most extensive of these designates approximately 1.7 million acres of wilderness in three national parks in Washington — Olympic National Park, Mount Rainier National Park, and North Cascades National Park Complex.⁹⁷

Nuclear Energy

A year following the expiration of funding authorization for the Price-Anderson Act,⁹⁸ Congress passed a measure to reauthorize the Act for 15 years.⁹⁹ The reauthorization applies to both Department of Energy contractors and Nuclear Regulatory Commission (NRC) licensees, and increases the nuclear industry's liability for accidents tenfold, to approximately $ 7 billion. The new law also provides for civil and criminal penalties for violations of Department of Energy regulations. A compromise provision requires the NRC to conduct a negotiated rulemaking to determine whether there should be coverage for [19 ELR 10025] nuclear pharmacies, hospital nuclear medicine departments, and radiopharmaceutical manufacturers. These NRC licensees have incurred tort liability for damages resulting from radiation emissions, and they are reportedly facing difficulties obtaining liability insurance coverage; therefore, some lawmakers wish to see them covered under the Price-Anderson system.¹⁰⁰

What Lies in Store With the 101st Congress?

As the new Congress convenes, its overall circumstances will be very similar to those of the 100th Congress, with the Democrats in control of both houses and a Republican in the White House. The effect of the presidential election on the legislative process generally and environmental legislation in particular remains to be seen, since no one knows what posture President-elect Bush will adopt with respect to Congress and what his environmental agenda will look like. While Bush raised environmental issues during the campaign and is perceived by some environmental groups to be relatively receptive to theirconcerns, he has been careful not to commit himself to adoption of the groups' particular proposals.¹⁰¹

One potentially very important change of personnel will go into effect with the new Congress: Sen. Byrd will step down from his position as Senate Majority Leader to assume the role of President Pro Tempore of the Senate and chairmanship of the vitally important Appropriations Committee, and Sen. Mitchell will take his place as Majority Leader. Mitchell and Byrd were the chief proponent and opponent, respectively, of the Senate Environment Committee's Clean Air Act amendment package last year. This shift in personnel will mean that environmental issues will have a more enthusiastic advocate in the majority leader's office, although Mitchell will necessarily have less time and opportunity to devote himself to environmental questions.

In addition to leftover clean air issues, the 101st Congress will be saddled with other items of unfinished business. RCRA reauthorization, including issues such as waste reduction, federal facilities' compliance, and disposal of municipal incinerator ash, will be a major subject on the environmental agenda for 1989. Both supporters and opponents of oil and gas development of ANWR's coastal plain will attempt to persuade legislators to adopt their positions in the coming year. Unresolved FIFRA reform issues and groundwater contamination may re-emerge. Regulation of the handling, transport, storage, and disposal of polychlorinated biphenyls (PCBs), which came up in the 100th Congress but was not resolved, will probably capture some attention this year.¹⁰² There is word that the Bush Administration might support an idea that was floated in 1988 to make EPA a Cabinet-level department.¹⁰³ There is also reportedly some interest in Congress in a review and overhaul of the Toxic Substances Control Act.¹⁰⁴ Finally, the troubling problem of global warming, made real in 1988 by extreme heat and prolonged drought,¹⁰⁵ calls for foresight and perhaps requires some difficult decisions; it will therefore present an enormous challenge to a Congress that is more comfortable putting off hard choices and sliding by with a minimum amount of action.

1. See W. OPHULS, ECOLOGY AND THE POLITICS OF SCARCITY 191-192 (1977).

2. See id. Ophuls describes what he sees as the advantages and disadvantages of "muddling through," and states:

Most important, because decisions are made on the basis of immediate self-interest, muddling through is almost tailor-made for producing policies that will generate the tragedy of the commons. It is perfectly possible to take a series of decisions that each seem eminently reasonable on the basis of short-term calculation of costs and benefits and that satisfy current preferences, but that produce unsatisfactory results in the long run, especially since the future is likely to be discounted in the calculation of costs and benefits…. Thus the short-term adjustment and stability achieved by muddling through can easily be at the expense of long-term stability and welfare.

Id. at 192. Ophuls goes on to note that muddling through is necessary, indeed desirable, in that it reflects varying values and helps to guard against catastrophic errors. Id. However, he argues, we have elevated muddling through to the level of a political philosophy, and we no longer even attempt to forge agreements on long-term goals. Id. at 192-193.

3. See MacKerron, Up in the Air: A Foolhardy Attempt to Predict Clean Air Act Revision, ENVTL. F., Mar./Apr. 1988, at 13, 16. MacKerron states:

… Congress excels at knee-jerk reactions to crises. In 1980 a toxic chemical spill in Louisiana at a crucial time unlocked the languishing Superfund proposal, which opened the door for its passage in the final days of the Carter Administration. The tragic Bhopal accident in 1984 led to the right-to-know act contained in the revised Superfund.

Id.

4. The Clean Air Act's authorization expired in 1981, and its programs have been funded through annual appropriations measures ever since.

5. See Fogarty, The Congress: Past Imperfect, Future Tense, 17 ELR 10010, 10014 (Jan. 1987).

6. The actual deadline for compliance with NAAQSs was December 31, 1982. Clean Air Act § 172(a)(1), 42 U.S.C. § 7502(a)(1). However, the statute goes on to provide that states showing that it is impossible to comply by the deadline "despite the implementation of all reasonably available measures" may receive an extension until December 31, 1987. Clean Air Act § 172(a)(2), 42 U.S.C. § 7502(a)(2).

7. Pub. L. No. 100-202, 101 Stat. 1329-199 (to be codified at 42 U.S.C. § 7503 note). The stopgap measure prohibited the Environmental Protection Agency (EPA) from imposing sanctions, such as bans on new source construction and permitting, and withholding of federal funding for highways and sewage treatment facilities, until August 31, 1988.

Sanction provisions for nonattainment are scattered throughout the Clean Air Act. See Clean Air Act § 110(a)(2)(I), 42 U.S.C. § 7410(a)(2)(I), ELR STAT. CAA 008 (construction ban on major stationary sources); Clean Air Act § 173(4), 42 U.S.C. § 7503(4), ELR STAT. CAA 030 (ban on issuance of new permits); Clean Air Act §§ 176(a), (b), 42 U.S.C. §§ 7506(a), (b), ELR STAT. CAA 030 (prohibition of distribution of certain federal grant monies); Clean Air Act § 316, 42 U.S.C. § 7616, ELR STAT. CAA 047 (limitation of sewage treatment grants). EPA and environmental groups have disagreed as to whether construction bans are mandatory for areas that miss the compliance deadline but have fully implemented approved plans. See ENVTL. AND ENERGY STUDY INST. WEEKLY BULL., Nov. 16, 1987, at A4.

8. EPA has begun to take action to implement sanctions against areas that do not yet have approved plans for attainment of carbon monoxide and ozone standards. See Thomas Plans Construction Ban on L.A., Other Areas, Without Clean Air Plans, INSIDE E.P.A., Sept. 2, 1988, at 3.

9. H.R. 3054, 100th Cong., 1st Sess. (1987). The bill as introduced would have categorized nonattainment areas according to the severity of their pollution, and given them an additional 3, 5, or 10 years to achieve compliance. At the same time, stricter air emmission controls for stationary and mobile sources would also have been required.

The proposed new attainment deadlines, the remotest of which would have fallen near the turn of the century, were criticized by some as being unrealistic. Whether or not this is true, such proposals should be seen in their historical context. As one environmental law scholar has noted, "Only a few grisled veterans now remember that the original deadline in most of the state SIPs [state implementation plans] for meeting the primary standards was May 31, 1975." W. RODGERS, ENVIRONMENTAL LAW: AIR AND WATER, § 3.12, at 273 (1986) (emphasis added).

10. H.R. 2666, 100th Cong., 1st Sess. (1987). The Sikorski bill would have required a 10 million ton reduction in annual sulfur dioxide emissions and a 4 million ton reduction in annual nitrogen emissions (below 1980 levels) by 1997. The bill also included a subsidy program to hold down resulting increases in residential electricity rates.

11. Environmentalists celebrated the acid rain measure adopted by the subcommittee, since several weakening amendments were rejected, although by split votes. An amendment that would have eliminated controls on sulfur emissions from non-utility industrial sources failed to gain approval. Another defeated proposal would have called for annual, rather than monthly, emissions averaging. One amendment opposed by environmentalists was approved, however. This amendment would have eliminated the automatic implementation of a fallback standard for statewide sulfur emission reductions where EPA fails to act on a state plan within a certain period of time. See SIERRA CLUB NAT'L NEWS REP., Mar. 3, 1988, at 1-2.

12. The group included: Reps. Synar (Okla.), Swift (Wash.), Sharp (Ind.), Bruce (Ill.), Cooper (Tenn.), Boucher (Va.), Tauzin (La.), Eckart (Ohio), and Slatterly (Kan.).

13. See House Group of Nine Floats Subsidy in Acid Rain Discussions, INSIDE E.P.A., July 15, 1988, at 3; House Group of Nine May Have Problems With Mitchell Acid Rain Funding Subsidy, INSIDE E.P.A., July 22, 1988, at 2. The group officially introduced its final nonattainment proposal in October, after it had become evident that the amendment process could not succeed in 1988, in order to provide a conceptual basis for beginning the process again in 1989. See H.R. 5469, 100th Cong., 2d Sess. (1988).

14. H.R. 5211, 100th Cong., 2d Sess. (1988).

15. The proposal suggested a 10 million ton reduction in sulfur dioxide emissions from utility sources by 2003.

16. The funding would essentially have been provided by the oil industry. Petroleum importers would have been required to set aside 2 percent of all imports for the Strategic Petroleum Reserve (SPR). Since taxpayers would not have been required to pay for these contributions to the SPR, about $ 650 million would have been freed up annually for financing acid rain controls in the Midwest.

17. The plan was later introduced in Congress by Ohio and New York representatives. See H.R. 5032, 100th Cong., 2d Sess. (1988). It also included reductions in nitrogen oxide emissions from stationary sources, mobile source emission reductions, and new funding for development of clean coal technologies.

18. S. 1894, 100th Cong., 1st Sess. (1987). See also S. REP. NO. 231, 100th Cong., 1st Sess. (1987).

19. The acid rain portion of the measure as approved by the Committee would have required phased reductions in sulfur dioxide emissions from stationary sources, resulting in a 12 million ton reduction (below the 1980 level) by the year 2000. States emitting less than a cutoff amount would have been exempt from the sulfur dioxide requirements. Concerning nonattainment, areas would have been given 3, 5, 10, or 15 years to achieve ozone and carbon monoxide compliance, but they would have had to implement stringent new emission controls in the meantime. The measure also included mobile source emission controls and provisions on toxic air pollutants.

Industry groups contended that the measure would be prohibitively expensive. For example, the Business Roundtable estimated that the new air pollution controls in S. 1894 would cost an annual $ 32 billion to $ 70 billion and jeopardize up to 600,000 jobs. See Clean Air Legislation Would Cost Industry $ 32 Billion to $ 70 Billion, Analysis Says, 26 AIR/WATER POLLUTION CONTROL REP. 103 (1988). Estimates by the Congressional Research Service were considerably lower. See id.; Environmentalists Laud Data on Reasonable Air Bill Costs, INSIDE E.P.A., Apr. 29, 1988, at 8.

20. The new plan would have required a 10 million ton reduction in sulfur dioxide emissions by 2000, and added measures for subsidies, or cost-sharing, for the price of controls. It also included a job protection program for the high-sulfur coal industry. For a description of the bill as reported by the Environment Committee, see supra note 19.

21. Richard Ayres, Chairman of the National Clean Air Coalition, stated:

The country needs a strong, revitalized Clean Air Act, one that gives pollution controllers the tools they need to clean the air, and the incentive to use them. We believe Congress can and should enact such a law this year.

But weak and unacceptable proposals are beginning to surface that are clean air proposals in name only. In reality, many of these proposals would guarantee dirty air for another generation.

National Clean Air Coalition press release (Sept. 13, 1988).

22. See 134 CONG. REC. S14455-59 (daily ed. Oct. 4, 1988) (statement by Sen. Mitchell).

23. 134 CONG. REC. E3286 (daily ed. Oct. 6, 1988) (statement by Rep. Sharp).

24. 134 CONG. REC. E3285 (daily ed. Oct. 6, 1988) (statement by Rep. Swift).

25. Id.

26. Id. See also 134 CONG. REC. E3287 (daily ed. Oct. 6, 1988) ("Compromise has become a dirty word in the consideration of strengthening our clean air law, and as a result we are stuck with the existing law which has failed to accomplish the goal.") (remarks of Rep. Tauzin).

Sen. Mitchell said:

Some in our society have opposed every major environmental law ever proposed. Rather than spend $ 1 to prevent pollution, they have spent millions of dollars to prevent the passage of laws to reduce pollution….

Their principal weapon is the exaggerated claim that if anything is required of them to prevent pollution — anything at all — the cost will be so high that whole industries will have to shut down, whole States will suffer, whole regions will decline….

A few who say they support the Clean Air Act joined with the many who oppose it. They remained rigid and unyielding, wholly unwilling to compromise, even when faced with the certainty that their rigidity would result in no action this year.

134 CONG. REC. S14457 (daily ed. Oct. 4, 1988).

27. See 134 CONG. REC. S14455-56 (daily ed. Oct. 4, 1988).

28. See supra note 21.

29. See supra note 3 and accompanying text.

30. State Radon Program Development Act of 1988, Pub. L. No. 100-551, § 301, 102 Stat. 2755 (1988). The new act will amend the Toxic Substances Control Act (TSCA), 15 U.S.C. §§ 2601-2654, ELR STAT. TSCA 001-048.

31. The technical assistance may include: the establishment of a radon information clearinghouse, operation of a voluntary proficiency rating program for the effectiveness of radon measurement and mitigation methods as well as for private firms doing radon-related work, training seminars for state and local officials and private firms, publication of information on radon's health effects and mitigation techniques, operation of cooperative projects between EPA and state radon programs, demonstration of mitigation methods in private homes and other buildings, establishment of a national data base organized by state concerning the location and amounts of radon, and development and demonstration of mitigation for buildings housing child care facilities.

32. Pub. L. No. 100-494, 102 Stat. 2441 (1988).

33. See C. GRAY & J. ALSON, MOVING AMERICA TO METHANOL 29-30 (1985). In addition, production of methanol from high-sulfur coal could keep the high-sulfur coal industry healthy while utility power plants switch to low-sulfur coal, a move that would decrease emissions of sulfur dioxides that cause acid rain. See id. at 3, 24-30.

34. See Senate Passes Rockefeller Bill Promoting Use of Alternative Fuels, 26 AIR/WATER POLLUTION REP. 163 (1988). Of particular concern with respect to carbon dioxide emissions is methanol produced from coal.

35. See 134 CONG. REC. S2109 (daily ed. Mar. 14, 1988).

36. Interim funding for 1989 was included in the EPA appropriations bill, Pub. L. No. 100-404, 102 Stat. 1014 (1988).

37. S. 2773, 100th Cong., 2d Sess. (1988); 134 CONG. REC. S12171, S12172 (daily ed. Sept. 9, 1988) (bill reprinted). For a section-by-section description of the bill, see 18 ELR 10496-97.

38. For general background and recommendations on infectious waste regulation, see Sulmer & Paddock, Regulation of Infectious Waste, NAT'L ENVTL. ENFORCEMENT J., Nov. 1988, at 3.

39. Pub. L. No. 100-582, 102 Stat. 2950 (1988). The Great Lakes states are: Illinois, Indiana, Michigan, Minnesota, Ohio, Pennsylvania, and Wisconsin. These seven states may opt out of the program if they wish; the other states may opt out only under limited circumstances. Tracking systems in participating states are to follow waste from the generator (usually a doctor's office, clinic, or hospital) to the disposal facility. Small quantity generators may be exempt.

40. See H.R. REP. NO. 1090, 100th Cong., 2d Sess. (1988) (conference report to S. 2030). The bulk of the bill concerned the ocean dumping of sewage sludge, see infra note 83 and accompanying text; however, the measure as passed included the infectious waste provision.

41. The bill, H.R. 2800, 100th Cong., 1st Sess. (1987), had been attached to H.R. 2020, 100th Cong., 1st Sess. (1987), a reauthorization bill for the Council on Environmental Quality, which had been passed in different versions by both chambers and failed to gain final approval.

42. A bill introduced by Rep. Florio (D-N.J.) would have required that incinerator ash be tested to determine its level of danger, and regulated accordingly. H.R. 2517, 100th Cong., 1st Sess. (1987). Bills introduced by Reps. Johnson (R-Conn.) and Luken (D-Ohio) would have required that municipal incinerator ash be treated as solid waste and regulated under RCRA Subtitle D, rather than under the more stringent requirements of Subtitle C. H.R. 4255, 100th Cong., 2d Sess. (1988) (Johnson bill); H.R. 4357, 100th Cong., 2d Sess. (1988) (Luken bill). A bill introduced by Sen. Moynihan (D-N.Y.) would also have amended RCRA to establish municipal solid waste incinerator ash disposal requirements. See S. 2458, 100th Cong., 2d Sess. (1988), 134 CONG. REC. S7078 (daily ed. May 27, 1988) (bill reprinted).

43. Additional action on RCRA issues included enactment of a new law directing EPA to issue regulations requiring that plastic ring carriers for cans and bottles be biodegradable. Pub. L. No. 100-556, 102 Stat. 2779 (1988). Plastic ring carriers are an environmental problem because birds, marine mammals, and fish become entangled in plastic yokes and drown.

44. RCRA § 6001 states:

Each department, agency, and instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any solid waste management facility or disposal site, or (2) engaged in any activity resulting, or which may result, in the disposal or management of solid or hazardous waste shall be subject to, and comply with, all Federal, State, interstate, and local requirements, both substantive and procedural (including any requirement for permits or reporting or any provisions for injunctive relief and such sanctions as may be imposed by a court to enforce such relief), respecting control and abatement of solid waste or hazardous waste disposal in the same manner, and to the same extent, as any person is subject to such requirements, including the payment of reasonable service charges. Neither the United States, nor any agent, employee, or officer thereof, shall be immune or exempt from any process or sanction of any State or Federal Court with respect to the enforcement of any such injunctive relief.

42 U.S.C. § 6961, ELR STAT. RCRA 031.

45. See id.

46. See Meyer v. United States Coast Guard, 644 F. Supp. 221, 17 ELR 20128 (E.D.N.C. 1986) ("[T]here is no language in this statute that suggests that the federal government was intending to waive its immunity against the imposition of civil penalties. On the contrary, it seems to contemplate only obligations arising from injunctions."); McClellan Ecological Seepage Situation v. Weinberger, 655 F. Supp. 601, 17 ELR 20344 (E.D. Cal. 1986) (RCRA § 6001 does not waive the United States' sovereign immunity from a citizen suit seeking civil penalties); United States v. Washington, 18 ELR 20363 (E.D. Wash. Jan. 22, 1988) (RCRA § 6001 does not waive the United States' sovereign immunity to civil penalties in state administrative proceedings). But see Ohio v. United States Department of Energy, 689 F. Supp. 760, 18 ELR 20586 (S.D. Ohio 1988) (RCRA § 6001 waives the United States' sovereign immunity from civil penalties imposed by states).

47. See H.R. 3781, 100th Cong., 1st Sess. (1987) (introduced by Rep. Synar, D-Okla.); H.R. 3782, 100th Cong., 1st Sess. (1987) (introduced by Rep. Swift, D-Wash.); H.R. 3783, 100th Cong., 1st Sess. (1987) (introduced by Rep. Wyden, D-Or.); H.R. 3784, 100th Cong., 1st Sess. (1987) (introduced by Rep. Luken, D-Ohio); and H.R. 3785, 100th Cong., 1st Sess. (1987) (introduced by Rep. Eckart, D-Ohio).

48. For a brief description of each bill, see SIERRA CLUB NAT'L NEWS REP., Sept. 30, 1988, at 3.

49. See Peterson, Weapons Plants' Costly Cleanup Challenges Bush, Washington Post, Nov. 26, 1988, at A1.

50. See Fogarty, The Congress: Past Imperfect, Future Tense, 17 ELR 10010, 10013 (Jan. 1987) (describing the failed FIFRA reform effort of the 99th Congress).

51. Not everyone has called for major changes to FIFRA. Compare Weinstein, Amending FIFRA — An Industry View, 15 ELR 10130 (May 1985) ("Despite the calls for a variety of new legislation, many in industry believe that the most imperative problems in the pesticide registration program can and should be addressed within the existing statutory framework."), with Feldman, Federal Pesticide Control Law: The Need for Reform, 15 ELR 10132 (May 1985) (arguing for comprehensive changes).

52. Pub. L. No. 100-532, 102 Stat. 2654 (1988).

53. In addition, the new provisions shift much of the responsibility for storage and disposal of banned pesticides to registrants. In the past, storage and disposal was largely EPA's responsibility.

54. Indemnification of anyone other than end-users may be provided for by Congress in a line-item appropriation.

55. See S. REP. NO. 345, 100th Cong., 2d Sess. (1988) (report to S. 1516). The bill as reported would have exempted farmers from liability for groundwater contamination caused by pesticides applied in accordance with label instructions, and established groundwater residue guidance levels for pesticides. The bill would not have preempted state standards concerning pesticide residues on foods.

56. See Shortcomings in FIFRA Lead Environmentalists to Pledge for Action Next Year, INSIDE E.P.A., Oct. 7, 1988, at 4.

57. See id.

58. See id.

59. Pub. L. No. 100-478, Title I, 102 Stat. 2306 (1988).

60. See 133 CONG. REC. H11617 (daily ed. Dec. 17, 1987) (passage of H.R. 1467).

61. All species of sea turtles that inhabit United States waters are listed as endangered or threatened. In June 1987, the National Marine Fisheries Service released final regulations, to become effective October 1, 1987, requiring shrimp trawlers in the Gulf of Mexico and the Atlantic Ocean off the southeastern United States to use TEDs. 52 Fed. Reg. 24244 (June 29, 1987); 52 Fed. Reg. 37152 (Oct. 5, 1987) (technical amendments). The State of Louisiana and an organization of shrimp trawlers challenged the regulations as arbitrary, capricious, and unconstitutional; the regulations were subsequently upheld in federal district court and the Fifth Circuit. Louisiana ex rel. Guste v. Verity, 681 F. Supp. 1178, 18 ELR 20944 (E.D. La. 1988), aff'd 853 F.2d 322, 18 ELR 21351 (5th Cir. 1988).

Opponents of the regulations sought legislative action. The ESA reauthorization bill that had been passed by the House in December 1987 included compromise language delaying TED requirements for use in inshore waters. The House defeated an amendment offered by Rep. Ortiz (D-Tex.) that would similarly have delayed the use of TEDs in deeper, offshore waters as well. See 133 CONG. REC. H11623 (daily ed. Dec. 17, 1988).

62. See Pub. L. No. 100-478, Title I, § 1008, 102 Stat. 2306, 2309 (1988). The regulations will go into effect as to inshore waters on May 1, 1990, unless the Secretary of Commerce "determines that other conservation measures are proving equally effective in reducing sea turtle mortality by shrimp trawling." Id. See also supra note 61.

The Senate passed its version of the reauthorization bill on July 28. See 134 CONG. REC. S10162, S10174 (daily ed. July 28, 1988) (bill reprinted). On the Senate floor, Sen. McClure (R-Idaho) offered, and then withdrew, a highly controversial amendment that would have required a comprehensive economic analysis as part of each new or revised recovery plan under the Act. See 134 CONG. REC. S10165-66, S10167-68 (daily ed. July 28, 1988).

Both houses approved the conference report, H.R. REP. NO. 928, 100th Cong., 2d Sess. (1988), in September. 134 CONG. REC. S12557 (daily ed. Sept. 15, 1988); 134 CONG. REC. H8249 (daily ed. Sept. 26, 1988). Also included in the measure as enacted was the text of the African Elephant Conservation Assistance Act. Pub. L. No. 100-478, Title II, §§ 2001-2306, 102 Stat. 2315-2323 (1988) (to be codified at 16 U.S.C. §§ 4201-4245).

63. See Pub. L. No. 100-478, Title I, § 1002, 102 Stat. 2306 (1988); ESA § 4(b)(3)(B)(iii), 42 U.S.C. § 1533(b)(3)(B)(iii).

64. The amendments provide that a recovery plan is to incorporate, to the maximum extent practicable, a description of site-specific management actions that may be necessary to ensure survival of the species; a set of objective, measurable criteria that, if met, would result in the delisting of the species; and estimates of the time and cost required to carry out the plan. See Pub. L. No. 100-478, Title I, § 1003, 102 Stat. 2306, 2307 (1988).

65. See Pub. L. No. 100-478, Title I, § 1004, 102 Stat. 2306, 2307 (1988).

66. Under the new provisions it is illegal to "maliciously damage or destroy" any endangered plant species in any area under federal jurisdiction or "remove, cut, dig up, or destroy" an endangered species in any other area "in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law." Pub. L. No. 100-478, Title I, § 1006, 102 Stat. 2306, 2308-09 (1988). Previously, offenses related to endangered plants had included only removal from areas under federal jurisdiction, violations of prohibitions on import, export, and trade, and violations of specific regulations. See ESA § 9(a)(2), 42 U.S.C. § 1538(a)(2).

67. See Pub. L. No. 100-478, Title I, § 1007, 102 Stat. 2306, 2309 (1988).

68. See 134 CONG. REC. H8237 (daily ed. Sept. 26, 1988) (bill reprinted) (House passage); 134 CONG. REC. S16336 (daily ed. Oct. 14, 1988) (Senate amendment and passage); 134 CONG. REC. H10506 (daily ed. Oct. 19, 1988) (further amendment by House); 134 CONG. REC. S17118 (daily ed. Oct. 21, 1988) (Senate approval of House amendments). The President signed the legislation, although at the time of this writing no public law number had been assigned.

69. See SIERRA CLUB NAT'L NEWS REP., Oct. 27, 1988, at 2; Lobsenz, Legislation to Protect Marine Mammals Signed, Washington Post, Nov. 25, 1988, at A4, col. 1.

President Reagan signed into law another wildlife protection bill. Pub. L. No. 100-653, 102 Stat. 3825 (1988). The new law is an omnibus measure that includes, inter alia, reauthorization of appropriations for the Fish and Wildlife Conservation Act; an extension of the authorization for acquiring wetlands under the 1961 Wetland Loan Act; a reauthorization of the Sikes Act (which develops and maintains fish and wildlife conservation programs on military reservations); an authorization of funds to increase the size of Hawaii's Kilauea Point National Wildlife Refuge; and amendments to the Lacey Act to make it a federal offense for guides and outfitters to lead illegal wildlife hunting expeditions.

70. See supra notes 50-58 and accompanying text.

Other, more comprehensive groundwater legislation also failed to advance. For example, a bill introduced in 1987 by Sen. Moynihan (D-N.Y.) would have required national groundwater criteria for over 100 contaminants and statewide ambient groundwater standards. S. 20, 100th Cong., 1st Sess. (1987); 133 CONG. REC. S245 (daily ed. Jan. 6, 1987) (bill reprinted). See also S. 2091, 100th Cong., 2d Sess. (1988) (comprehensive groundwater protection bill emphasizing federal regulation, introduced by Sen. Durenberger, R-Minn.).

71. H.R. 791, 100th Cong., 1st Sess. (1987).

72. See H.R. REP. NO. 155, pts. 1-5, 100th Cong., 1st Sess. (1987). The five committees with jurisdiction over the bill were the Committees on Interior and Insular Affairs; Energy and Commerce; Public Works and Transportation; Science, Space, and Technology; and Agriculture. See also ENVTL. AND ENERGY STUDY INST. WEEKLY BULL., Oct. 5, 1987, at B2.

73. See 133 CONG. REC. H10804 (daily ed. Dec. 2, 1987).

74. See 134 CONG. REC. S13908 (daily ed. Oct. 7, 1988) (bill reprinted).

75. See Differences in Senate Groundwater Bill, Lack of Time, May Thwart Passage, INSIDE E.P.A., Oct. 14, 1988, at 8-9.

76. EPA has estimated that one family in five is consuming water with unsafe levels of lead. See 134 CONG. REC. H9647 (daily ed. Oct. 5, 1988) (remarks of Rep. Waxman).

77. Pub. L. No. 100-572, 102 Stat. 2884 (1988).

78. SDWA § 1412, 42 U.S.C. § 300g-1, ELR STAT. 41102-04.

79. See 53 Fed. Reg. 31516 (Aug. 18, 1988).

80. Id. at 31528.

81. Id. at 31529.

82. See ENVTL. AND ENERGY STUDY INST. WEEKLY BULL., Sept. 26, 1988, at B11-12. The standard would have had to be met at 100 particular taps in the service area. If the water supplier took all of the required steps to meet the standard, it would have been deemed in compliance even if contaminant levels at some of the taps exceeded the standard. Id. at B12.

83. Pub. L. No. 100-688, 102 Stat. 4139 (1988).

84. Pub. L. No. 100-627, 102 Stat. 3213 (1988). Amendments to the marine sanctuary program provide for a system of special use permits for marine sanctuaries, allow funds collected for sanctuary resource damages to be transferred to the National Oceanic and Atmospheric Administration for sanctuary restoration, provide a specific schedule for the designation of four new sanctuaries, and strengthen law enforcement protection for marine sanctuaries.

85. See Pub. L. No. 100-333, 102 Stat. 605 (1988).

86. Alaska National Interest Lands Conservation Act § 1003, 16 U.S.C. § 3143, provides:

Production of oil and gas from the Arctic National Wildlife Refuge is prohibited and no leasing or other development leading to production of oil and gas from the range shall be undertaken until authorized by an Act of Congress.

87. See, e.g., S. 1217, 100th Cong., 1st Sess. (1987); H.R. 1082, 100th Cong., 1st Sess. (1987).

88. See, e.g., S. 1804, 100th Cong., 1st Sess. (1987); H.R. 39, 100th Cong., 1st Sess. (1987).

89. The Senate bill as reported would have required the federal government to conduct a study assessing the nation's energy needs and supply before leasing could be authorized, and developers would have been required to follow prescribed steps to minimize environmental damage. See S. REP. NO. 308, 100th Cong., 2d Sess. (1988) (report to S. 2214). The House bill would have allowed oil and gas development as long as it did not result in a "significant adverse impact" on the environment, would have prohibited leasing in acreage constituting the most sensitive caribou habitat, and would have funneled federal revenues from oil and gas lease sales in ANWR to use for wildlife conservation programs. See H.R. REP. NO. 670, pt. 1, 100th Cong., 2d Sess. (1988) (report to H.R. 3601). In the House, the Committees on Merchant Marine and Fisheries and Interior and Insular Affairs share jurisdiction over the issue.

90. However, Congress enacted a related provision to clarify that congressional approval is necessary in order for the Secretary of the Interior to carry out land exchanges within ANWR. The land exchange provision was passed as part of a measure concerning the conveyance and ownership of submerged lands by Alaska natives, native corporations, and the state. Pub. L. No. 100-395, 102 Stat. 979 (1988). The Reagan Administration considered entering into an agreement with Alaska native corporations to exchange oil and gas development rights to ANWR's coastal plain for lands owned by the corporations elsewhere in the state.

91. See Washington Watch, 26 AIR/WATER POLLUTION REP. 188 (1988).

92. Such continuing vulnerability is, of course, a common problem for conservationists. See J. MCPHEE, ENCOUNTERS WITH THE ARCHDRUID 85-86 (1971) ("Conservationists have to win again and again and again…. We can only get a stay of execution. That is the best we can hope for. If the dam is not built, the damsite is still there.") (quotation attributed to David Brower).

In addition to ANWR, another Alaska public lands issue that came up in the 100th Congress was the Forest Service's arrangement for harvest of timber in the Tongass National Forest. In July, the House passed a bill that would have put an end to the annual sales mandate and automatic yearly appropriation for the Tongass timber program, requiring the program to obtain funding through the regular appropriation process. The bill also would have imposed a moratorium on logging in certain critical habitat areas, and required the Forest Service to renegotiate its 50-year contracts with two timber companies for harvest of Tongass timber at below-market prices. See 134 CONG. REC. H5927 (daily ed. July 27, 1988) (House passage of H.R. 1516). The Senate, however, never acted on the bill, which was opposed by Alaska's Sen. Murkowski (R).

93. The RARE II study, begun by the Forest Service in 1977, categorized all roadless areas in the National Forest System as appropriate for wilderness designation, inappropriate for wilderness designation, or needing further study. See M. BEAN, THE EVOLUTION OF NATIONAL WILDLIFE LAW 168 (1983).

94. S. 2751, 100th Cong., 2d Sess. (1988); 134 CONG. REC. S11657, S11658 (daily ed. Aug. 11, 1988) (bill reprinted).

95. See 134 CONG. REC. S16433 (daily ed. Oct. 19, 1988) (Senate passage); 134 CONG. REC. H10590 (daily ed. Oct. 20, 1988) (House passage).

96. See, e.g. Pub. L. No. 100-547, 102 Stat. 2736 (1988) (Alabama); Pub. L. No. 100-499, 102 Stat. 2491 (1988) (Oklahoma); Pub. L. No. 100-326, 102 Stat. 584 (1988) (Virginia, West Virginia).

97. Pub. L. No. 100-668, 102 Stat. 3961 (1988).

98. For a discussion of the Act and reauthorization issues, see Reitze & Rowe, The Price-Anderson Act — Limited Liability for the Nuclear Industry, 17 ELR 10185 (June 1987).

99. Pub. L. No. 100-408, 102 Stat. 1066 (1988). The House had passed a reauthorization bill in 1987. See 133 CONG. REC. H6815 (daily ed. July 30, 1987). In March 1988, the Senate passed the bill in modified form. 134 CONG. REC. S2520 (daily ed. Mar. 18, 1988). A compromise version of the legislation was approved by both chambers in August 1988. See 134 CONG. REC. H6114 (daily ed. Aug. 2, 1988); 134 CONG. REC. S10929 (daily ed. Aug. 5, 1988).

100. See 134 CONG. REC. S10932 (daily ed. Aug. 5, 1988) (remarks of Sen. Symms) ("As with the vaccine industry, the unwillingness of the commercial insurance industry to provide coverage creates the need for Federal intervention so the standard of healthcare may be sustained.").

101. See Weisskopf, Visit with President-Elect Cheers Environmentalists, Washington Post, Dec. 1, 1988, at A29, col. 4.

102. In June 1988, the House passed a measure that would apply manifest and financial responsibility requirements, similar to those of RCRA, to PCBs. See 134 CONG. REC. H4153 (daily ed. June 13, 1988) (bill reprinted). The manufacture of PCBs is prohibited by TSCA, but millions of tons of PCBs continue to be used in this country. Legislation introduced in the Senate would have regulated PCBs under RCRA rather than TSCA. See S. 2693, 100th Cong., 2d Sess. (1988); 134 CONG. REC. S10987 (daily ed. Aug. 5, 1988) (bill reprinted).

103. See Bush May Recommend Elevating EPA to Cabinet-Level Status, Insiders Say, INSIDE E.P.A., Nov. 18, 1988, at 1. Several bills were introduced last year to move EPA into the Cabinet. See, e.g., S. 2576, 100th Cong., 2d Sess. (1988) (introduced by Sen. Durenberger), 134 CONG. REC. S8703 (daily ed. June 28, 1988) (bill reprinted); S. 2663, 100th Cong., 2d Sess. (1988) (introduced by Sen. Stafford), 134 CONG. REC. S10112, S10114 (daily ed. July 27, 1988) (bill reprinted); H.R. 4969, 100th Cong., 2d Sess. (1988) (introduced by Rep. Florio); and H.R. 5021, 100th Cong., 2d Sess. (1988) (introduced by Rep. Neal).

104. See Prospects Rise for Major Congressional Review of TSCA Next Year, INSIDE E.P.A., Oct. 14, 1988, at 1.

105. Although several global warming measures were introduced in 1988, they failed to advance. See, e.g., S. 2663, 100th Cong., 2d Sess. (1988) (introduced by Sen. Stafford, R-Vt.), 134 CONG. REC. S10112, S10114 (daily ed. July 27, 1988) (bill reprinted); S. 2667, 100th Cong., 2d Sess. (1988) (introduced by Sen. Wirth, D-Colo.), 134 CONG. REC. S10282, S10285 (daily ed. July 28, 1988) (bill reprinted).