21 ELR 10008 | Environmental Law Reporter | copyright © 1991 | All rights reserved

Great Expectations: Reviewing the 101st Congress

Editors' Summary: More than most areas of law, Congress looms large over environmental law. Federal environmental statutes, and the appropriations that fund them, serve as the central vein from which most areas of environmental law branch out. The 101st Congress in 1989 and 1990 was one of the most environmentally active congresses in two decades. From the Clean Air Act to the Oil Pollution Act to more criminal investigators at EPA, Congress strengthened environmental laws in a host of areas. At the same time, most of the laws are not self-implementing, and the stage is set for continued struggles in the months ahead. This Comment traces the accomplishments of the 101st Congress. First, it recounts events chronologically, from January 1989 through adjournment in October 1990. Then, it analyzes the results by subject in key environmental areas. Finally, it looks ahead to 1991, suggesting likely issues for the 102nd Congress.

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By the time it adjourned, the 101st Congress had made many promises. In the laws it passed, Congress promised cleaner air and greater liability for oil spills. It promised increased wetlands and coastal zone protections, new wilderness areas, and protection for thousands of acres of ancient forest. It promised to continue the Superfund program and the taxes necessary to support it. It promised to ban garbage "backhauling" in motor vehicles that also carry food stuffs, and promised to toughen the penalties for violations of hazardous materials transportation regulations. It promised sustainable agriculture programs, including farming without heavy reliance on synthetic pesticides and fertilizers. And it promised to encourage solar, wind, waste, and geothermal power production, while also promising not to open environmentally fragile public lands to oil and gas development. The promises Congress made in the laws it passed now raise great expectations for vigorous implementation in 1991 and beyond.

The gavel fell on the second session of the 101st Congress on October 27, 1990, and with it, possibly the single largest burst of environmental legislation since the environmental heyday of the early 1970s. Distinguishable from the 100th Congress, which was characterized more by failure than success on environmental matters, the 101st Congress succeeded in surmounting hurdles that had stood in Congress' way for years. For example, the Clean Air Act Amendments of 1990¹ are the first comprehensive changes to the Clean Air Act in 13 years,² and enactment of the Oil Pollution Act of 1990³ ends nearly 15 years of wrangling over how we regulate oil transportation and whether federal liability limits should preempt state liability provisions.⁴

At the same time, these breakthroughs appear to be more the result of Congress' reaction to the turbulent national and world events that shaped 1989 and 1990, than to its ability to provide leadership through prospective environmental legislation.

1989

The first session of the 101st Congress convened on January 3, 1989, following the November 1988 presidential election. That election, for the first time, found voters choosing between presidential candidates in no small part based on the candidates' environmental records and positions.⁵ George Bush championed the issue by claiming that [21 ELR 10009] he would be the environmental president and pointing up Michael Dukakis' failure to remedy Boston Harbor's pollution problems.

With another Republican safely in the White House, the democratically controlled 101st Congress quickly turned its attention to stratospheric ozone depletion and concerns over the greenhouse effect. Mounting scientific evidence that man-made chemicals might be depleting the ozone layer and causing global warming prompted a flurry of bills. Sen. Albert Gore (D-Tenn.) floated S. 201,⁶ which would replace the Council on Environmental Quality with a new Council on World Environmental Policy, to bring a global perspective to U.S. environmental policy. The bill also had provisions for freezing, effective January 1, 1990, the production of ozone-depleting chemicals at 1986 levels, and would call for a gradual phaseout until production was banned in 2000. Sen. Timothy Wirth (D-Colo.) also introduced a comprehensive bill dealing with the global environment. S. 324⁷ would have set a goal of reducing carbon dioxide levels by 20 percent in the United States by 2000, and would call on the United States to assist Third World nations in meeting their developmental goals without contributing to worldwide deforestation. Throughout the remainder of the 101st Congress, numerous bills were introduced to address global climate change.⁸ Similarly, Rep. Robert Mrazek (D-N.Y.) introduced H.R. 897⁹ to protect the nation's largest forest, the Tongass National Forest in southeastern Alaska. The bill called for the repeal of the automatic subsidy for Tongass timber operations and rescission of long-term contracts requiring the government to sell Tongass timber at below-market rates to two pulp mills. Additionally, the first rumblings of legislative activity on clean air amendments began in both chambers.

However, on March 24, 1989, the largest oil spill in U.S. history focused world attention on the Port of Valdez, Alaska, and the plight of Prince William Sound. On March 16, just days before the Exxon Valdez ran aground on Bligh Reef, spilling 11 million gallons of crude oil, Rep. Walter Jones (D-N.C.) had introduced H.R. 1465,¹⁰ an oil spill liability measure. At that time, Rep. Jones, Chairman of the Merchant Marine and Fisheries Committee, claimed that the existing liability scheme was inadequate,¹¹ and Rep. Robert Davis (R-Mich.) asserted that the time to act was now, before a major spill occurred. Public outcry over the spill and the lack of regulatory oversight were sufficient to force Congress to quickly push H.R. 1465 into committee and on to the floors of the House and Senate. Ultimately, by August 1990, the tragedy of Prince William Sound would prove a sufficient catalyst to prompt the House and Senate to overcome their historic disagreement over federal preemption of state liability limits, and present the President with the nation's first comprehensive prevention, cleanup, response, compensation, and liability oil spill measure.

Evidence of the President's sincerity about earning an environmental moniker came early in 1989. President Bush nominated William Reilly to be the new Administrator of the Environmental Protection Agency (EPA), and the Senate quickly confirmed his appointment. Choosing Reilly, who until his appointment was President of the Conservation Foundation and the World Wildlife Fund-U.S., was seen by environmentalists and industry alike as a vast departure from the EPA Administrators of the Reagan Administration. A former executive director of the Task Force on Land Use and Urban Growth and former staff member of the Council on Environmental Quality, Reilly was viewed as an "insider" who favored negotiation and cooperative problem solving to advance environmental interests. However, environmentalists subsequently tempered their praise for the direction President Bush was apparently taking when he nominated Manuel Lujan, Jr. for Secretary of the Interior, overseer of the public lands. Lujan, a former U.S. Representative from New Mexico and generally regarded as conservative on environmental issues, received praise from business interests and western cattlemen, and was confirmed by the Senate.

The first half of 1989 saw momentum on several environmental initiatives pick up speed. In the Clean Air Act reauthorization process, Rep. Gerry Sikorski (D-Minn.) and over 140 cosponsors introduced a major acid rain bill, H.R. 1470.¹² The bill called for a 10-million-ton reduction in annual sulfur dioxide emissions from 1980 levels, and a four-million-ton reduction in annual nitrogen oxides emissions from 1980 levels, both by 1998.

By April, it was generally acknowledged that the oil spill in Prince William Sound had considerably slowed, and perhaps killed, momentum on opening up the Arctic National Wildlife Refuge (ANWR) to oil leasing. Ironically, the Senate Committee on Energy and Natural Resources voted to report S. 684,¹³ which would authorize oil and gas leasing of the arctic plain of ANWR, out of committee just before the oil spill. Committee members opposed to opening ANWR could not have been happier, since the amendments they introduced to require the creation of a national energy policy prior to a decision on leasing ANWR and to the development of ANWR with strengthened automobile fuel efficiency requirements were defeated in committee prior to the vote. However, on April 12, Rep. Fortney Stark (D-Cal.) introduced H.R. 1839, which would return the corporate average fuel economy (CAFE) standard [21 ELR 10010] to 27.5 miles per gallon, after the Department of Transportation moved to lower it.¹⁴

At the same time, progress towards reauthorizing the Resource Conservation and Recovery Act (RCRA),¹⁵ which was thought to equal the importance of amending the Clean Air Act when the 101st Congress convened, received little attention. However, as a result of growing revelations about hazardous wastes causing contamination at Department of Defense (DOD) and Department of Energy (DOE) federal facilities, such as the Rocky Flats nuclear arsenal in Colorado and DOE's Fernald, Ohio facility, the full House Energy and Commerce Committee approved H.R. 765¹⁶ to establish an 11-member commission to oversee the cleanup of environmental contamination at DOE nuclear facilities and to make recommendations to the President and Congress. Subsequently, Rep. Dennis Eckart (D-Ohio) introduced H.R. 1056,¹⁷ which would amend RCRA to clarify that its enforcement provisions applied to federal facilities.

On April 18, Sen. Dave Durenburger (R-Minn.) introduced S. 816,¹⁸ to address toxic air pollutants. The bill was immediately criticized by both environmentalists and industry for its technology-based, rather than health-based, standards for controlling the release of about 200 toxics from major sources. Under S. 816, the standard would be the "maximum available control technology" (MACT),¹⁹ and EPA would be required to set specific standards for categories of emitting facilities according to a phased schedule that would require the promulgation of all standards within 10 years. Industry representatives claimed the measure would cost too much, and the National Clean Air Coalition, an umbrella organization that includes a number of major environmental groups, said the bill lacked adequate and timely protections for public health and the environment.

In May, the Clean Air Act reauthorization process in the Senate bogged down. In the House, which was also moving slowly on clean air legislation, Rep. Henry Waxman (D-Cal.) and over 100 cosponsors, introduced H.R. 2323,²⁰ a nonattainment measure that called for strict technology-forcing motor vehicle emission provisions. May also saw a flurry of bills and resolutions introduced in the wake of Kenya's call for a worldwide ban on the ivory trade, due to increased poaching of African elephants. For example, H. Res. 158,²¹ introduced by Rep. Anthony Beilenson (D-Cal.), called for the President to support international efforts to stop trade in ivory, while H.R. 2384,²² introduced by Rep. Silvio Conte (R-Mass.), would have placed an immediate ban on the importation of elephant products. By early June, President Bush announced that the United States would ban the import of ivory. At the same time, the Senate finally revved up RCRA reauthorization by introducing S. 1112,²³ addressing source reduction and recycling, and S. 1113,²⁴ which would reauthorize RCRA.

The clean air legislation steam engine finally left the station on June 12, when President Bush unveiled his long-awaited proposal to revise the Clean Air Act. Response to the President's proposal was applauded and scrutinized by many of the interest groups involved, probably more for its recognition of the extent of the growing air pollution problem than for its perfection. For example, the Alliance for Acid Rain Control, a group of 14 governors, praised the acid rain provisions, many of which the group had recommended. Meanwhile, industry representatives, showing concern over the proposed acid rain reduction deadlines and the high costs projected for compliance with the proposal, nonetheless commended it for achieving reasonable environmental objectives without unduly harming the economy. Environmentalists claimed the three-year deadline extension for applying clean coal technologies would serve to delay, not enhance, their development, and that the proposal failed to address utility growth by not including an emissions cap.

One month later, Rep. John Dingell (D-Mich.) introduced the President's 279-page clean air proposal in the House as H.R. 3030.²⁵ The bill was subsequently referred to the Committee on Energy and Commerce, which Rep. Dingell chairs. The Senate followed suit on August 3 as Sen. John Chaffee (R-R.I.) introduced the President's bill as S. 1490.²⁶ However, differences between the President's June proposal and the details of the bills as introduced caused a polarizing chill between environmental and industry groups in the wake of the initial cautious optimism that attended the President's June proposal. Detractors claimed the bills failed to meet the letter and spirit of the original proposal, and tagged them "industry" bills for their noticeably weaker provisions. For example, the [21 ELR 10011] original proposal had called for industry to install MACT, but the technology provisions of the bills as introduced looked more like best available control technology (BACT).²⁷ Pointing to more than 270 phrases in H.R. 3030 that allowed for discretion, Rep. Terry Bruce (D-Ill.) posited that many "mays" would have to be made into "shalls" to give any meaning to the bill.

The approaching August 1989 recess prompted a frenzy of legislative activity on appropriations bills and the Tongass Timber Reform Act, H.R. 987. Ramifications of the Alaska oil spill continued to manifest themselves in legislation, including H.R. 2788,²⁸ the 1990 Department of the Interior and related agencies appropriations bill. Major differences between the House and Senate versions of the bill included the House version's call for a total ban on new offshore oil and gas leasing. The bills also diverged greatly on how to settle the ancient forest controversy in the Pacific Northwest, pitting regional timber interests against protecting the northern spotted owl, soon to be listed as a threatened species.²⁹ The Tongass bill, H.R. 987, was passed by the House with minimal concessions.³⁰ As passed, the bill called for special management of the 16.7-million-acre forest, and would add 1.8 million acres on the Tongass as wilderness and provide protections for fish and wildlife habitat.

When Congress returned to session in September, House Agriculture Committee Chairman Kika de la Garza (D-Tex.) introduced H.R. 3292,³¹ which called for establishing a negligible risk standard for tolerances of pesticides on foods. The bill would amend the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) by replacing the formal hearing process with an informal rulemaking procedure, allowing EPA to remove a pesticide from the market once the Agency determined that a pesticide posed unreasonable adverse risks to people or to the environment.

At the same time, markup began on H.R. 3030. Rep. Waxman (D-Cal.), Chairman of the powerful Energy and Commerce Committee's Subcommittee on Health and the Environment, announced that the subcommittee would use H.R. 3030 as its markup vehicle for the Clean Air Act. Earlier speculation had led many to believe that the subcommittee would use separate markup vehicles for acid rain, urban air quality, and toxic pollutants provisions. Rep. Waxman, who represents part of Los Angeles, the smoggiest region in the country, had hesitated to embrace H.R. 3030 as the appropriate markup vehicle (after all, H.R. 3030 had been introduced by Rep. Dingell, the chairman of the entire Energy and Commerce Committee, who represents Detroit, home to the U.S. auto industry). But while the decision to use H.R. 3030 had the appearance of promoting cooperation, it may have more accurately been silent acquiescence by Rep. Waxman as to the strength of the bill's momentum. Nonetheless, he wasted no time in attacking the bill by striking its mobile source "emissions averaging" provision. That provision would have allowed a vehicle fleet to meet an overall emissions standard on average rather than set standards for each individual car. Thereafter, comprehensive hearings on the clean air bills followed.

Before going home for the holidays in late 1989, Waxman's Subcommittee on Health and Environment approved by 21-0 a modified version of H.R. 3030. Notably, the approved version would require cars and light-duty trucks to meet California's emissions standards, phased in between model years 1994 and 1998. However, the subcommittee voted against several major Waxman amendments that sought to make the bill more stringent, including a requirement that automakers produce and sell one million clean-fueled vehicles per year, from 1997 to 2004, in the nine worst ozone nonattainment cities. In the Senate, Sen. Max Baucus's (D-Mont.) Environmental Protection Subcommittee unanimously approved its air toxics, attainment, and acid rain bills before recessing for the holidays. As approved, the bills would require 112 power plants to implement sulfur dioxide emissions reductions by 1995, phase out domestic production of five chlorofluorocarbons (CFCs), halons, and carbon tetrachloride by 2000, and regulate air emissions and the disposal of ash from municipal waste combustors.

Finally, just before recess, Rep. Thomas Luken (D-Ohio) introduced H.R. 3735³² to reauthorize RCRA. The bill would authorize appropriations for 1990 to 1993, and require states to submit comprehensive plans outlining solid waste management strategies for the next 20 years.³³ Additionally, concerns over unsafe backhauling within the trucking industry prompted several bills prohibiting the [21 ELR 10012] practice. H.R. 3386,³⁴ introduced by Rep. William Clinger (R-Pa.), and H.R. 3634,³⁵ introduced by Rep. Luken, would ban the use of refrigerated motor vehicles and cargo tanks to transport solid or hazardous waste, and amend the Hazardous Materials Transportation Act to incorporate those prohibitions and increase federal enforcement capabilities.

As Congress and the country paused for the holidays and anticipated the advent of the 1990s, much environmental headway had been accomplished during the first session of the 101st Congress. The nation had faced unparalleled catastrophes in the form of the Exxon Valdez oil spill and damage from Hurricane Hugo, and had seen estimates of remedying the savings and loan crisis escalate to approximately $ 250 billion. As projections for cleaning up environmental contamination at federal energy and defense facilities grew to near $ 100 billion and beyond, sentiment over these mounting financial burdens, combined with a growing trade imbalance, began pervading the news and solidified the uncertainty about the United States' economic future. Events seemed unsettled as the 101st Congress reconvened on January 23, 1990, and again turned to environmental issues.

1990

On the first day of the new session, the Senate Committee on Environment and Public Works pressed forward with clean air legislation and reported S. 1630 out to the full body. On January 18, 1990, one week prior to the second session convening, the Business Roundtable, an association of 200 major corporations, had announced that its study of S. 1630 revealed an implementation cost of between $ 40 billion and $ 104 billion annually.³⁶ This prompted President Bush to send Senate Minority Leader Bob Dole (R-Kan.) a letter promising that a veto would await any bill that did not balance environmental and economic interests.

On the second day of the new session, President Bush, reversing his earlier stance, announced that he would endorse legislation elevating EPA to a cabinet-level department. This was welcome news for Sen. John Glenn (D-Ohio) and Rep. John Conyers (D-Mich.), who had introduced S. 2006³⁷ and H.R. 3847,³⁸ respectively, the day before. Factors the President weighed in deciding to drop his opposition included the need for global cooperation on environmental issues, EPA's profound impact on society, and the rising public awareness of environmental problems.

In February, Rep. Jones introduced H.R. 4030,³⁹ to reauthorize the Coastal Zone Management Act (CZMA) through 1995. The bill would extend state authority over all federal agency activities that affect the natural resources, land uses, or water uses in the state's coastal zone. This provision would thus overturn a Supreme Court decision⁴⁰ that preempted state consistency provisions.

In March, Sen. Patrick Leahy (D-Vt.) introduced S. 2227,⁴¹ to prohibit U.S. corporations from exporting banned and unregistered pesticides overseas and to make it illegal to import into the United States any food that has been treated with such pesticides. The "circle of poison" was finally under attack. Also in March, Senate leaders and Bush Administration officials finished 22 days of closed-session negotiations over the Senate's clean air bill. The negotiations had been prompted by the Administration's fears that the Senate was creating an unacceptably costly bill, and by the Senate's desire to avoid a presidential veto. Under the compromise, the acid rain provision would adjust the President's original implementation schedule to achieve the same 10-million-ton annual sulfur dioxide reduction, but would ease emission limits on mid-western utilities burning dirty coal and western utilities burning cleaner coal. Sen. Robert Byrd (D-W. Va.), long an opponent of clean air legislation, and other senators from coal-mining and coal-burning electric utility states obtained relief through incentives in the compromise for utilities to install emission scrubbers. These incentives were necessary to allay fears that western low-sulfur coal would displace eastern high-sulfur coal, since installing pollution control devices is generally more expensive than shipping western coal across the country. The compromise also introduced special credits provisions, which would allow polluting utilities to earn marketable credits for each ton of emissions reduced below established limits. These credits could then be traded or sold to other facilities or plants, only limited by a national cap on emissions, with proceeds earmarked for pollution control device installation.

On March 8, Sen. Thomas Daschle (D-S.D.) introduced S. 2259,⁴² which would address sustainable agriculture by coordinating and authorizing agricultural research programs within the National Institute of Health, the National Science Foundation, DOE, and EPA. Before the month ended, the House passed H.R. 3847, which would change EPA into the Department of Environmental Protection.⁴³ The bill would require that regional administrators be appointed without regard to political affiliation and would increase funding to permit adequate enforcement of environmental protections laws, primarily by increasing the number of criminal and civil investigators by 30 percent in each of the first five years. The bill would also make federal departments and agencies subject to state administrative penalties under RCRA. And significantly, the bill would require the creation of an independent Bureau of Statistics within the new department, charged with overseeing and interpreting the scientific data so central to environmental regulation. The President later warned that a bill lacking executive oversight of the statistical process could force a veto. On April 2, the Senate kept pace with the House by reporting its EPA cabinet-level bill, S.2006.⁴⁴ The Senate version would call the new agency the Department of the Environment, and provide for a global environmental policy for the United States.

$=P9991*10013Finally, on April 3, with Earth Day 1990 fast approaching, the Senate passed its clean air bill by a solid vote of 89 to 11.⁴⁵ Sen. Byrd's controversial amendment, which would have provided unemployment and job-training benefits to between 3,000 and 5,000 coal miners expected to be put out of work by enactment of clean air legislation, narrowly went down to defeat.⁴⁶ Once this compromise- busting amendment was laid to rest, a sufficient coalition formed and S. 1630 passed.

With clean air attention now on the House, Rep. Dingell's Energy and Commerce Committee reported H.R. 3030 to the full body on April 5. Significantly, the reported bill dropped Rep. Waxman's subcommittee amendment that would have required the sale of one million clean-fuel vehicles in the nation's smoggiest cities, and Rep. Bill Richardson's (D-N.M.) proposal to require sales of reformulated gas in 31 of the worst smog areas. However, the full committee was successful in adding moderate alternative fuels language. During this same time, more proposals were introduced providing the shape for a 1990 farm bill.⁴⁷

On April 22, the nation and the world participated in celebrating the 20th anniversary of Earth Day. Twenty years of environmental protection statutes and regulatory controls laid the backdrop for the global party. While some might argue that the more appropriately described backdrop was the worsened condition of the environment between 1970 and 1990, there can be no doubt that today more Americans are aware of the broad scope of environmental problems, and the causes of those problems, than at any time in history. One result of this enlightenment is greater responsiveness by political candidates and incumbents to environmental issues at election time, and the need to earn solid environmental voting records between elections.⁴⁸

On May 23, the House overwhelmingly passed its clean air bill by a vote of 401 to 21.⁴⁹ As passed, the House version would tighten control requirements for cities that have not attained federal air quality standards by mandating reductions in hydrocarbons and nitrogen oxides by 1996. Further reductions would be required only if EPA deemed them "feasible and necessary." Similar to the Senate bill, the House version would cut annual sulfur-dioxide emissions from 107 midwestern and southern coal-burning power plants by 10 million tons, a reduction of 50 percent from 1980 levels. However, unlike the Senate's narrow rejection of Sen. Byrd's amendment to compensate displaced coal miners, the House version was passed with provisions that would authorize unemployment and retraining benefits to workers who could show that the new law contributed to their job loss. The bill would authorize up to $ 250 million for this controversial program. In the end, Reps. Dingell and Waxman compromised and agreed to amendments that would require automakers to sell 500,000 clean-fuel cars in Los Angeles by 1994, and 300,000 more by 1997. The bill also contained a provision for a California pilot program, in which consumers could purchase vehicles that run on natural gas or alcohol fuels, and a provision requiring operators of commercial fleets in the 31 smoggiest cities, such as taxis and delivery services, to switch to cleaner-burning fuels. With all the attention focused on clean air legislation, few noticed when Sens. Quentin Burdick (D-N.D.) and Baucus announced on May 22 that RCRA reauthorization would not likely occur in 1990.

Attention now turned to forming a clean air conference committee to negotiate the differences between the 700-page House and Senate versions. The Senate appointed nine conferees on June 6, and three weeks later on June 28, the House announced appointment of approximately 135 conferees. This disparity in numbers between House and Senate conferees did not go unnoticed, as Sen. Burdick, chair of the Senate Environment and Public Works Committee, compared the situation to Custer's last stand. Because the House and Senate had set October 5 as the adjournment date for the 101st Congress, pressure was on to tackle clean air. However, Congress had a full plate of other environmental issues as well.

On June 28, the melting of the Cold War and the reduced military threat from the Soviet Union prompted Sen. Sam Nunn (D-Ga.) to announce that the Senate Armed Services Committee, which he chaired, would develop a plan to provide a significant new role for the DOD and DOE in fighting global climate change and other pollution problems. True to his word, the committee reported S. 2834, a national defense authorization bill, which included funding for environmental cleanups at DOE and DOD facilities.⁵⁰ Additionally, President Bush announced on June 29 the postponement, until after 2000, of several controversial federal lease sales for oil and gas off the coasts of California, Florida, and the North Atlantic states. The President also postponed consideration of oil and gas developments off the coasts of Washington and Oregon for the same period.

By this time, the conference committee on oil spill legislation was nearing full speed. Both House and Senate conferees rejected inclusion of an Administration proposal calling for the United States to participate in international protocols setting limits on oil spill liability. Under the protocol President Bush favored, a foreign shipowner's liability would be limited to $ 260 million. As a gesture of [21 ELR 10014] compromise, Rep. Gerry Studds (D-Mass.) proposed that the United States join the protocol for a five-year trial period, after which the United States could withdraw if the protocol had not been modified to the same liability limits as under federal and state laws. However, many conferees reasoned that if the United States had been a signatory to such a liability limitations protocol at the time of the Exxon Valdez oil spill, and had the shipper been a foreign flagged vessel rather than Exxon, Alaska would have been able to recover only up to $ 260 million, the protocol limit. Instead, conferees agreed on June 28 to nonbinding provisions stating that it is in the United States' best interests to participate in such protocols, but without altering states' current abilities to impose their own liability provisions when oil spills occur in their waters. With this impasse broken, prospects for passing an oil spill conference report were assured.

The Senate unanimously passed its compromise Tongass bill on June 13,⁵¹ which paved the way for yet another conference. Major differences remained between the House and Senate versions of H.R. 987, including the number of Tongass acres to protect from logging (the House version called for 1.8 million acres, the Senate version only 673,000), whether to cancel or renegotiate the two contentious 50-year pulp-mill contracts with the Forest Service, and whether to change the annual $ 40 million appropriation for facilitating logging. At the same time, the 1990 farm bill continued to take shape. The bill's conservation title received needed boosts from both the House and the Senate. The House Agriculture Committee approved a swampbuster provision closely resembling the Senate's version, under which a swampbuster violation would be triggered by drainage alone, with no requirement for the planting of a commodity crop on the drained wetland, as was required under the 1985 farm bill.⁵² The House version would also require the Department of Agriculture to acquire permanent easements on at least 2.5 million acres of farm wetlands, which was projected to cost $ 810 million. The 1990 farm bill took two steps closer to fruition when the Senate, by a margin of 70 to 21, passed S. 2830,⁵³ and the House passed H.R. 3950.⁵⁴

House and Senate oil spill conferees concluded an agreement and filed their conference report on July 31. However, final floor votes in the House and Senate over the compromise were subsequently delayed by briefings and meetings over another oil issue: Iraq's invasion of Kuwait in early August. The invasion reversed the environmental trend the oil spill in Alaska had produced. Whereas the oil spill in Alaska brought to a halt all lobbying and legislative movements to open federal public lands to oil and gas development to let public sentiment die down, the Persian Gulf crisis prompted calls to open up long protected public lands to oil and gas development to reduce the economic impacts from rising crude oil prices. By 1990, the United States was importing 50 percent of its oil from foreign sources. Nonetheless, the Senate⁵⁵ and the House⁵⁶ passed the compromise oil spill bill, paving the way for final enactment. On August 18, President Bush signed H.R. 1465 into law while on vacation in Kennebunkport, Maine.⁵⁷ Recently, on November 27, 1990, Alaska announced that about 85 percent of the 1,285 miles of rocky shores coated with oil from the Exxon Valdez accident had been sufficiently cleaned.⁵⁸

When Congress reconvened after its August recess, momentum moved into high gear on several environmental bills. During the week of September 10, Senate clean air conferees largely agreed to the House conferees' program to extend cleanup deadlines and revised cleanup programs for ozone, carbon monoxide, and fine particulates. Then on September 12, in an apparent attempt to prompt further movement, EPA Administrator Reilly released an EPA Office of Air and Radiation draft analysis showing that from 800,000 to 1 million barrels of oil could be saved each day by 2005 if new clean air legislation with proposed acid rain and clean fuels requirements was passed. That amount approximates the amount of oil the United States imported from Iraq and Kuwait before the crisis. Momentum continued on September 14, as conferees approved staff recommendations on air pollution permits and pollution control requirements for nonattainment areas. But by now, the October 5 adjournment date was no longer reasonable, and Congress resigned itself to the Herculean task of passing clean air legislation, a new farm bill, a Tongass bill, and a new budget before elections in November. Even so, Congressfound time to react legislatively to the energy crisis posed by disruption of crude oil shipments out of the Middle East.

Prompted by the ever-growing estimated costs of remedying the savings and loan crisis, which had by now grown to $ 500 billion, the serious possibility of a recession, and wildly fluctuating world oil prices, bills were introduced to solve the United States' dependence on foreign oil. For example, Sen. Frank Murkowski (R-Alaska) introduced an amendment to the 1991 Defense Department authorization bill (S. 2884) that would require the President to prepare a national energy security plan whenever oil imports exceeded 50 percent of total U.S. consumption for six months of any twelve-month period. In effect, the plan would allow the President, with congressional approval, to override bans on oil development in sensitive federal areas. Environmentalists projected that passage of the amendment would require them to prove that an area's noneconomic values outweighed the value of oil and gas development if such development were to be blocked. With the exception [21 ELR 10015] of the National Park System, the amendment would apply to both on- and offshore areas, including wilderness, wilderness study areas, and outer continental shelf areas. Importantly, the amendment would require that tracts be leased in the order of their oil and gas potential, seen as an indirect attempt to open the Artic National Wildlife Refuge, which has perhaps the highest probabilities for striking both oil and gas.

Other legislators saw different solutions. Under Sen. Richard Bryan's (D-Nev.) bill, S. 1224,⁵⁹ the CAFE standards would be raised from 27.5 miles per gallon (mpg) to 40 mpg by 2001, and in the process ultimately save the United States 2.8 million barrels of oil per day. In yet another example of legislation born of the Middle East crisis and partisan politics, Sen. William Armstrong (R-Colo.) introduced S. 3061,⁶⁰ which would provide tax breaks to Unocal's demonstration shale oil plant in Colorado. Foment over oil reached new heights in the 101st Congress, and will certainly intensify in the 102nd.⁶¹

As September came to a close, Congress ushered October in with an explosion of activity. S. 2075, the Indian Environmental Regulatory Enhancement Act, already passed by the House and Senate, was signed into law by President Bush on October 4.⁶² The new law, which grants Indian tribal governments the authority to assume jurisdiction over environmental matters on tribal lands pursuant to the Safe Drinking Water Act (SDWA), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), RCRA, the Federal Water Pollution Control Act (FWPCA), and the Clean Air Act, also authorizes grants to aid tribal governments in that undertaking. At the same time, the House and Senate passed H.R. 2061,⁶³ which reauthorizes and makes appropriations for the Magnuson Fisheries Act and several related fisheries laws.

Movement on environmental bills was interrupted in September and October as the budget battle between President Bush and Congress reached an impasse. The public outcry over the shutdown of all federal parks and monuments on the busy Columbus Day weekend in October, caused by this impasse, sent a stir through Congress, as the slogan, "kick the bums out at election time" began being heard. The impasse, not easily solved, was only remedied in the final days of the session. However, as Congress stayed in Washington long past the original October 5 adjournment target, primarily to keep the federal government from shutting down, legislators were afforded extra time to act on environmental legislation.

A positive result of the belabored budget process was that it became the unlikely vehicle for two important Superfund provisions. Under the budget compromise, the Superfund tax, which was scheduled to expire in 1991, was extended through 1995. Fears that reauthorization of Superfund in 1991 would not be completed in time, causing a lapse in funding, prompted this precautionary measure. And while legislators were at it, they decided to reauthorize the entire Superfund program through 1994. And on October 19, the Senate passed H.R. 3386, the Sanitary Food Transportation Act,⁶⁴ clearing the measure for the President.

The 101st Congress did not finally run out of time and steam until after it had, during a four-day span, passed H.R. 987, the Tongass Timber Reform Act,⁶⁵ S. 2830, the 1990 farm bill,⁶⁶ and S. 1630, the Clean Air Act Amendments of 1990,⁶⁷ clearing them all for enactment. Completely spent, legislators (and their staffs) dropped in their chairs, caught their breath, and refocused remaining energies on heading home to stump for the November elections, now only weeks away.

Although the motive and rationale behind each piece of environmental legislation passed by the 101st Congress varied from partisan politics to more altruistic designs, the result was a profusion of new environmental law. The 101st Congress, by opening new vistas in environmental law, legally altered the environmental status quo. But what a law says, and what the Executive, the courts, and the public ultimately define those words to mean, may not necessarily be the same. It may take years to decide whether the great expectations raised by the actions of the 101st Congress were justified.

The New Status Quo

Air

The Clean Air Act Amendments of 1990. President [21 ELR 10016] Bush signed S. 1630, the Clean Air Act Amendments of 1990,⁶⁸ on November 15, in a ceremony at the East Room of the White House. As enacted, the new law is projected to cost approximately $ 25 billion annually to implement. With the legislative process completed for now, implementation of the law will focus attention on EPA's rulemaking process. Under the new law, EPA must promulgate 27 rules during each of the first two years. EPA, which recognized the potential regulatory burden the House and Senate bills would impose on it long before enactment, spent months formulating streamlined methods for meeting the new law's timetable for promulgating regulations.⁶⁹ However, lack of a more comprehensive conference report, due to the end-of-session rush to get several bills passed, may affect implementation and Agency rulemaking. Speculation has surfaced that prospects for litigation over ambiguous language in the new law, and regulations based on that language, are prime. The minimal conference report that accompanied S. 1630 may come back to haunt the 102nd Congress. Environmentalist and industry groups are gearing up to provide comments and continuing influence during the rulemaking process.

Title I amendments dealing with attainment and maintenance of air quality standards, primarily for ozone and carbon monoxide, include provisions for air quality planning, designation of attainment and nonattainment areas, and deadlines and sanctions for nonattainment areas. These amendments are seen as a necessary response to the failure of the attainment goals of the 1977 clean air amendments, which required states to develop state implementation plans (SIPs) to provide for ozone and carbon monoxide attainment by 1982, or 1987 at the latest, if extensions were applicable. Currently, 96 cities are in ozone nonattainment, and 41 cities have carbon monoxide levels exceeding the standards. The new law divides ozone nonattainment areas into five classes, ranging from marginal to extreme, and carbon monoxide nonattainment areas into two categories, moderate and serious. While more severely polluted areas will receive longer periods to reach attainment, they will be subject to more stringent controls. Significantly, the new law would require a 15 percent reduction in volatile organic compound (VOC) emissions within six years by major sources, which the new law redefines as sources emitting 50 tons per year. Small businesses, such as dry cleaners, paint shops, and bakeries, may be affected, and if determined to be a major source, will be required to install reasonably available control technology. Title I will also require vapor recovery equipment on gasoline pump nozzles, and automobile inspection and maintenance control measures, to be issued by EPA. Significantly, an amendment that would have forced EPA to attack haze problems in national parks was dropped during the last hours of congressional deliberations, and replaced with a visibility protection provision authorizing $ 8 million per year for five years for EPA, the National Park Service, and other federal agencies to use in researching the problem.⁷⁰ These provisions are included in title VIII.

Title II of the new law deals with motor vehicles and fuels. A two-tiered system of tailpipe standards for cars and light trucks calls for a hydrocarbon reduction of 30 percent and a nitrogen oxides reduction of 60 percent below the current standard during tier I (phased in between 1994 and 1998), and further reductions in 2003 if EPA deems them necessary. In addition, 40 percent of new 1994 automobiles, 80 percent of new 1995 automobiles, and all 1996 and later autos must comply with these standards. Importantly, the new law requires that reformulated gas be sold in the nine worst ozone nonattainment areas, with gasoline marketed in those areas achieving a 15-percent reduction in VOC emissions in 1995, and a 20-percent reduction by 2000. Cold weather carbon monoxide nonattainment areas would be required to sell gas containing more oxygen content in 1992, achievable by adding ethanol or other alternatives.⁷¹ Title II also establishes a California pilot project that requires the annual production of 150,000 clean-fuel vehicles from 1995 through 1998, and 300,000 annually thereafter. A fleet program is also established, applicable to taxis and delivery van operations in 25 cities with nonattainment problems. Significantly, states can choose under the new law to adopt California's tighter standards.

Title III, covering toxic air pollutants, requires that MACT standards for 189 chemicals be promulgated within 10 years for all sources. Sources subject to regulation are those that produce 10tons of any one chemical per year, or those that produce 25 tons per year of any combination of the listed chemicals. MACT standards will vary depending on whether they are applicable to new or existing sources, with new sources subject to the most stringent MACT level currently achieved by a similar source, and existing sources subject to the average controls used at the top 12 percent of similar sources. However, a six-year extension of the deadline for compliance with MACT will be available to sources that reduce emissions by 90 percent below 1987 levels by the time MACT standards are proposed. Significantly, title III addresses EPA's previous hesitancy to write tough standards based on the "ample margin of safety" to protect public health found in the original Clean Air Act of 1970, which had been interpreted by most to mean zero exposure to carcinogens. EPA's fears, historically prompted by the Administration's pressures, of severe economic fallout in affected industries, resulted in only eight toxic pollutants being regulated since 1970. Under the new law, EPA's discretion would be replaced with mandatory regulation and application of MACT standards to all included source categories.

Under title III, EPA must publish the list of pollutants to be regulated within 12 months, and issue MACT standards for 40 source categories within two years. MACT standards for another 25 percent of all source categories must be issued within four years, another 25 percent by seven years, and all remaining sources within the 10-year limit. Early estimates are that between 250 and 400 such sources will ultimately be listed.

Title IV, the acid rain control program, establishes a cap [21 ELR 10017] on utility emissions of sulfur dioxide of 8.9 million tons per year by 2000 (a 10-million-ton reduction below 1980 levels) and a two-million-ton-per-year reduction in nitrogen oxides by 1996. The 111 worst polluting utility plants would be called on to make the biggest cuts in the first five years, but would be eligible for allowances, or credits, equivalent to one ton of sulfur dioxide emissions. Title IV grants EPA the authority to create 3.5 million such allowances, intended to apply to utilities that postpone compliance by using emission scrubbing controls. Earned allowances could thereafter be traded or sold to facilities or plants out of compliance, but a national emissions cap could not be exceeded.

The new law also provides benefits to workers who are terminated or laid off because of the new law. The bill authorizes $ 250 million over five years to provide training and weekly benefit payments. Eligibility requirements are to be developed by the Department of Labor, a provision that proved crucial to President Bush's withdrawing his threat of a veto over the costly program. A displaced worker could receive benefits while enrolled in an approved training program. To be eligible, workers must enroll in such retraining programs by the end of the 13th week of unemployment.

Title V covers permits, which the new law requires of all major polluting plants and businesses. For the first time, operating permits must contain all Clean Air Act requirements for each major polluting plant and business. Under the new law, major sources subject to the permitting requirements are those subject to new source performance requirements, plants emitting hazardous pollutants, and those subject to acid rain controls. While the program goes into effect in four years, states have three years to submit permit enforcement programs that meet minimum criteria. As such, the new law requires states to shoulder much of the burden.⁷² However, the law provides air pollution fees to be applied to providing resources and personnel. Significantly, EPA has the right to veto state-approved permits under the new law.

The ozone provisions of the new law, title VI, require the phaseout of the five most destructive CFCs, along with three halons and carbon tetrachloride, by 2000. Hydrochlorofluorocarbons (HCFCs), CFC substitutes, would have production frozen in 2015, with their use as refrigerants halted in 2020, and total production halted by 2030. To enhance and further the United States' commitment to the Montreal Protocol, the new law prohibits the export of technologies used to produce HCFCs to nations not parties to the Protocol.

Enforcement provisions of the new law, encompassed in title VII, include increases in EPA and state authority to impose civil and criminal penalties for violations. The new law would also provide for more violations and make them subject to administrative, civil, and criminal enforcement actions. Per-day administrative penalties rise to $ 25,000, with "field citation" civil penalties up to $ 5,000 per day, without the need for formal review. EPA is now authorized to pay $ 10,000 rewards to people providing information leading to a criminal conviction or civil penalty. In addition, criminal endangerment sanctions are applicable to persons negligently releasing listed "hazardous air pollutants" or extremely hazardous substances that place other persons in imminent danger of death or serious bodily injury. The new law also allows citizen suits against polluters for past violations if a prima facie showing demonstrates that the alleged violation has been repeated or is continuous. Significantly, the new law does not exempt nonsenior management from liability for knowingly committing violations.

As the above description indicates, industry lobbyists were successful in getting most of the implementation deadlines in the new law pushed to the middle of this decade and on into the 21st century. However, environmentalists have tempered their frustration over these delays by focusing on the significant changes the new law will require by 1995 and beyond.

Global Climate Change. S. 169, which is intended to reduce the significant scientific uncertainty associated with addressing global environmental issues, was signed into law on November 16.⁷³ The law provides statutory authority for the Committee on Earth and Environmental Sciences (CEES), which was created by the President through the Federal Coordinating Council on Science, Engineering, and Technology. CEES is charged with developing a U.S. Global Change Research Program to create the scientific knowledge needed to address global environmental policy issues amid the significant scientific uncertainty associated with predicting the behavior of environmental processes.

Energy

Oil Pollution Act. President Bush signed the Oil Pollution Act of 1990⁷⁴ on August 18. However, upon signing H.R. 1465, the President observed that he deeply regretted inclusion in the Act "of an unrelated provision that would place a moratorium on exploration for oil and natural gas off the coast of North Carolina."⁷⁵ In the last hours before Congress passed the oil spill conference report, Rep. Jones, who had previously been unsuccessful at getting his home state's coast included in other oil and gas lease moratoriums, tacked the objectionable provisions into the miscellaneous section, title VI. The area now protected is located over 38 miles off the North Carolina shore, and is the largest potential natural gas field east of the Mississippi River.

Regarding oil spill provisions of the new law, liability limits for cleanup costs and damages are significantly increased over previous limits encompassed in four laws containing oil spill provisions, including the FWPCA, which had set liability limits for cleanup costs at $ 150 per gross ton in the case of oil tankers. Under the new comprehensive law, vessels that carry bulk oil are subject to limits of $ 1,200 per gross ton. However, the law allows for unlimited liability for gross negligence, willful misconduct, or a violation of federal operating or safety standards. [21 ELR 10018] Significantly, the new law allows individual states to retain liability schemes that exceed the federal limits.

The new law establishes a $ 1 billion federal oil spill trust fund, supported by a five-cents-per-barrel tax. The fund is designed to cover cleanup and compensation costs that exceed the spiller's federal liability limits, and is available for federal cleanup efforts and prompt compensation to claimants who cannot timely settle with the spiller. The fund may also be drawn on when the spiller is unknown, or is unable or unwilling to pay. The law limits fund spending on natural resource damage restoration and replacement to $ 500 million per spill. The new law also mandates that new tankers and barges of at least 5,000 gross tons have double hulls, while existing single-hulled vessels are to be phased out between 1995 and 2010, unless made into double-hulled vessels.

The new law also requires prospective contingency planning and preparedness requirements by shippers and federal, state, and local governments. Significantly, the new law requires the federal government to direct the cleanup of major spills and to establish measures to increase navigational safety. The new law also requires that natural resource damages caused by oil spills include recreational and aesthetic values, and not be limited by applying strict economic methods.

Estimates are that more than 1,000 sea otters, 36,000 marine birds, and 150 adult bald eagles were killed as a result of the oil spill into Prince William Sound.⁷⁶ However, their deaths, and the more general damage to the environment and economies of many Alaskan villages, are embodied in the spirit and intent of the new law. Hopefully, the next major oil spill will not have as great an environmental impact because of the new law's prospective protections and incentives to avoid such tragedy.

Alternative Energy. President Bush signed H.R. 4808 into law on November 15.⁷⁷ The new law removes the size limitations contained in the Public Utility Regulatory Policies Act, which had hampered commercial scale alternative energy operations. The new law will thus encourage solar, wind, waste, and geothermal power production.

Also signed into law during the 101st Congress was S. 639.⁷⁸ Named for Spark Matsunaga, the late Senator from Hawaii who championed the cause, the new law will establish a hydrogen research and development program, and direct the Secretary of Energy to establish a developmental program to provide a domestic hydrogen fuel production capability. The National Aeronautics and Space Administration is required to lead research and development of a domestic hydrogen-fueled aircraft.

Public Lands

Tongass Timber Reform Act. President Bush signed H.R. 987 into law on November 28.⁷⁹ The new law amends the Alaska National Interest Lands Conservation Act (ANILCA) to designate 296,080 acres in the Tongass as wilderness, with another 703,920 acres placed off-limits to timber harvesting. Buffer zones, where logging may not occur along streams, would be provided only for class I streams, where salmon spawn and valued game reside, and class II streams, inhabited by fish of limited sport value. As for the 50-year logging contracts between the Forest Service and two pulp mill operators, the new law does not cancel them, but modifies the terms of the contracts to conform them to the standard short-term contracts used in the rest of the national forest system. Additionally, the new law eliminates the permanent $ 40 million annual appropriation earmarked for road building and intensive forestry management practices, which was associated with the harvesting of 4.5 billion board feet of timber per decade. In its place, the new law adopts a market demand approach for determining appropriations and the annual cut.

Forests. Resolution of the Pacific Northwest's dilemma over preserving ancient forests and endangered species, and saving the timber economy, appeared settled after the Fish and Wildlife Service (FWS) decided to list the northern spotted owl as a threatened species.⁸⁰ However, the 101st Congress failed to resolve the issue. Instead, Congress opted to cut nationwide timber sales by about one billion board feet in order to allow for reduced harvesting in the spotted owl's ancient forest habitat. Congress made this compromise in H.R. 5769, which the President signed into law on November 5.⁸¹ Also noteworthy is the forestry title in the 1990 farm bill,⁸² which authorizes $ 25 million for an America the Beautiful Foundation tree-planting program. The new farm bill also includes provision for a forest reserve program, under which the Forest Service may purchase easements in private forests having outstanding vistas and scenic values. Finally, the new farm bill mandates a forest stewardship program that authorizes the Forest Service to enroll up to 25 million acres for the enhanced management of natural resources on private forest lands.

Agriculture

1990 Farm Bill. President Bush signed the new farm bill into law on November 28, 1990.⁸³ The new law, which extends and revises agricultural programs through 1995, includes resource conservation and research provisions. The new law, for the first time, requires the establishment by 1993 of a national standard for organic food production. The law also authorizes $ 40 million for research into low-input sustainable agriculture programs.⁸⁴ The law also amends the "swampbuster" wetlands protection program, [21 ELR 10019] established by the 1985 farm bill. Under the new law, a "five-five-five" agreement is established, in which a farmer who fills a wetland on his land could avoid fines and penalties for a single minor violation during a five-year period if the filling was a mistake made in "good faith." The law lets the Secretary of Agriculture define what "good faith" means. However, second-time violations during the same five-year period would subject the farmer to fines of between $ 500 and $ 5,000. Significantly, the new law also changes the event that "triggers" a violation from filling the wetland and planting the converted land, which the 1985 law required, to only converting the wetland.

The new law continues the "sodbuster" program established in the 1985 farm bill, but expands the list of federal farm program benefits that will be cut off for producers who violate conservation compliance plans or farm highly erodible acres without the Department of Agriculture's approval. The law also raises the number of acres eligible for enrollment in the Conservation Reserve Program (CRP) to between 40 and 45 million. Currently, about 34 million acres are enrolled. The CRP encourages the prevention of soil erosion by paying farmers to take highly erodible cropland out of production for 10 years. The new law also requires a 15-percent decrease in farm acres currently receiving farm subsidies.

Although the chemical lobby was successful in getting the "circle of poison" provisions deleted from the bill President Bush signed, the new law requires farmers to keep records of the dangerous chemicals they use on their land. The law requires that these records be made available for inspection by federal and state agencies, but prohibitions on releasing the farmer's name and location were included. The new law also incorporates the global warming provisions of S. 1610,⁸⁵ which authorizes research into potential effects of global climate change on agricultural production.

Appropriations

1991 Budget Bill. Numerous environmental amendments made their way into the recently signed budget bill, H.R. 5835.⁸⁶ For example, besides the Superfund reauthorization and tax provisions⁸⁷ previously discussed in this Comment,⁸⁸ provisions reauthorizing the Coastal Zone Management Act were included. The provision amends the CZMA's "federal consistency" provisions, thus overturning the Supreme Court's 1984 decision in Secretary of the Interior v. California⁸⁹ to make clear that all federal agency actions, whether in or out of a state's coastal zone, are subject to the CZMA's consistency requirements if they affect natural resources, land uses, or water uses in the coastal zone, but only if the states have approved plans. Thus, continental shelf leasing would be subject to the CZMA. In addition, Congress included a provision extending through September 30, 1995, the Abandoned Mine Land Reclamation Fund, which was set to expire on August 3, 1992. The provision will continue the current reclamation fees of $ 35 per ton on surface-mined coal, $ 15 per ton on deep-mine coal, and 10 cents per ton on lignite. The provision ends an impasse over a 15-year extension the House voted for in 1989 that had been stalled in the Senate Energy Committee.

Promises Unfulfilled

Although great strides were made in 1990, the 101st Congress failed to pass several key environmental measures. After a strong endorsement by President Bush in early 1990, bills to elevate EPA to Cabinet-level status thereafter languished in committee and ultimately were left for another Congress.⁹⁰ The major hangup seemed to be provisions making federal facilities subject to state RCRA administrative penalties. The inclusion of a Bureau of Statistics also triggered Administration objections, since many believed the independent status of the bureau, as provided in the House bill H.R. 3847, would provide for the release of results without review by the Office of Management and Budget. Prospects for reintroduction in the 102nd Congress appear strong, but the same result is likely unless compromise is reached on the controversial provisions.

Finally, of significant disappointment, was the decision to drop the "circle of poison" language from the new farm bill. Deleted at the very end of the session, the provision would have banned the export of pesticides not registered in the United States. The lack of such a prohibition has historically allowed manufacturers to export unregistered or banned pesticides to foreign countries lacking restrictions, only to have produce treated with the banned pesticides imported into the United States from those countries. However, plans were immediately announced to press similar bills forward early in the 102nd Congress. Although President Bush signed S. 2936 into law on November 16,⁹¹ RCRA again failed to get reauthorized. Due to so much time spent on clean air legislation, the RCRA bills were dropped. Sentiment is high that RCRA reauthorization, long neglected, will be at the top of the "environmental list" when the 102nd Congress convenes in January 1991.

1. Pub. L. No. 101-549, 104 Stat. 2399 (1990) (amendments to be codified at 42 U.S.C. § 7401 et seq.).

2. Authorization under the 1977 Clean Air Act Amendments expired in 1981, and its programs have been funded through annual appropriations measures ever since.

3. Pub. L. No. 101-380, 104 Stat. 484, ELR STAT. OIL POLL. 001-034 (1990) (codified at 33 U.S.C. § 2701 et seq.).

4. See Jones, Oil Spill Compensation and Liability: When Good Things Don't Happen to Good Bills, 19 ELR 10325 (Aug. 1989). Historically, congressional failure to pass comprehensive oil spill legislation often resulted because the House and Senate disagreed on liability limits. Since 1975, the House stood fast on federal preemption of state liability laws, while the Senate favored letting states choose whether to provide greater liability limits than the federal government imposed. In H.R. 1465, the House conceded the issue so that under the new law, states may have unlimited liability laws. As such, the new law is considered a major defeat for the oil and shipping industries and has caused concern over whether complete liability insurance is available.

5. See George Bush and Michael Dukakis on the Environment, 18 ELR 10293 (Aug. 1988); cf. Strelow, Corporate Compliance With Environmental Regulation: Striking a Balance, 20 ELR 10529 (Dec. 1990).

6. 135 CONG. REC. S575 (daily ed. Jan. 25, 1989).

7. 135 CONG. REC. S1034, S1036 (daily ed. Feb. 2, 1989) (bill reprinted).

8. See, e.g., S. 169, 135 CONG. REC. S522, S523 (daily ed. Jan. 25, 1989) (bill reprinted) (would amend the National Science and Technology Policy, Organization, and Priorities Act to provide for improved coordination of national scientific research efforts on global climate change); S. 251, 135 CONG. REC. S698, S699 (daily ed. Jan. 25, 1989) (would establish an interagency task force to coordinate all research on global climate change and a 10-year research and assessment plan); S. 1045, 135 CONG. REC. S5610, S5647 (daily ed. May 18, 1989) (would amend NEPA to require an assessment of environmental impacts prior to approval of multinational development bank loans); H.R. 3362, 135 CONG. REC H6361, E3203 (daily ed. Sept. 28, 1989) (bill reprinted) (would establish a national policy of no net loss of forests and an endangered forests research initiative); H.R. 5088, 136 CONG. REC. H3828 (daily ed. June 19, 1990) (would authorize debt for nature conservation agreements with Latin American and Caribbean countries whose debt burden prevents protection, preservation, and restoration of environmentally critical areas and resources).

9. 135 CONG. REC. H272, E399, E401 (daily ed. Feb. 9, 1989) (bill reprinted).

10. 135 CONG. REC. H708 (daily ed. Mar. 16, 1989).

11. See generally Jones, supra note 5.

12. 135 CONG. REC. H709 (daily ed. Mar. 16, 1989). Rep. Sikorski had introduced a nearly identical bill, H.R. 2666, in the first session of the 100th Congress, only to see regional and economic divisions over clean air legislation prove insurmountable. Many other clean air bills, which were introduced in both chambers during the 101st Congress, were reintroductions of similar bills introduced in the 100th Congress.

13. S. REP. NO. 10, 135 CONG. REC. S3234 (daily ed. Apr. 4, 1989).

14. 135 CONG. REC. H1126 (daily ed. Apr. 12, 1989). Upon introduction of H.R. 1839, Rep. Stark stated:

Unfortunately, the memory of the oil shortage has faded from the minds of the public. The big auto manufacturers have persuaded the administration to roll back the CAFE standards in response to public demand for bigger, faster cars. Is this a wise choice in a time when we now import over 42 percent of our oil? Is this a wise choice when oil consumption in the United States continues to increase while production continues to decline? Is this a wise choice when two-thirds of the oil consumed in the United States is used for transportation and we have few alternative fuel sources? Is this a wise choice when there is so much concern about oil spills and the environment? I don't think so.

Id. at E1194. See generally America's Carmakers: Capitol Hill-Start, ECONOMIST, Jan. 31, 1990, at 66.

15. Authorization for RCRA expired in September 1988. Interim funding for 1989 and 1990 was included in EPA appropriations bills, Pub. L. No. 100-404, 102 Stat. 1014 (1988), and Pub. L. No. 101-144, 103 Stat. 839 (1989), respectively.

16. 135 CONG. REC. H165 (daily ed. Feb. 2, 1989).

17. 135 CONG. REC. H369 (daily ed. Feb. 22, 1989).

18. 135 CONG. REC. S4152, S4154 (daily ed. Apr. 18, 1989) (bill reprinted).

19. Title III of the Clean Air Act Amendments of 1990 adopted MACT as the standard for 189 toxic air pollutants. Title III, and the rest of the new law, is discussed in the second part of this Comment.

20. 135 CONG. REC. H1870, E1662 (daily ed. May 11, 1989).

21. 135 CONG. REC. H2008 (daily ed. May 17, 1989).

22. 135 CONG. REC. H2007 (daily ed. May 17, 1989).

23. 135 CONG. REC. S6014, S6016 (daily ed. June 1, 1989) (bill reprinted). The bill, introduced by Sen. Chaffee (R-R.I.), called for amendments to RCRA subtitle D to establish a hierarchy of solid waste priorities, including waste reduction, recycling, energy recovery, waste treatment, and contained disposal. The bill also called for establishment of a national goal to recycle 50 percent of all solid waste in 10 years. For an insightful look at RCRA subtitles C and D, see generally Dernbach, Industrial Waste: Saving the Worst for Last?, 20 ELR 10283 (July 1990).

24. 135 CONG. REC. S6021, S6022 (daily ed. June 1, 1989) (bill reprinted). The bill, introduced by Sen. Baucus (D-Mont.), called for extending RCRA authorization through 1993, and amending the Act to require EPA to regulate air emissions, incinerator ash waste, and medical waste disposal at municipal waste landfills.

25. 135 CONG. REC. H4459 (daily ed. July 27, 1989).

26. 135 CONG. REC. S9934 (daily ed. Aug. 3, 1989).

27. Under H.R. 3030, new sources would be required to implement the best emissions control achieved in practice by a similar source, and existing sources would need to implement at least as stringent emissions controls as typical of the best performing similar sources. The bill also would allow EPA to include relevant measures of cost in defining MACT. For a comprehensive analysis of substantive and procedural issues surrounding BACT regulation under the Clean Air Act, see generally Wilson, Martin & Friedland, A Critical Review of the Environmental Protection Agency's Standards for "Best Available Control Technology" Under the Clean Air Act, 20 ELR 10067 (Feb. 1990).

28. Although the House and Senate both used H.R. 2788 as their Interior appropriations vehicle, two divergent bills resulted. Passage of the bills by the House and Senate is recorded at 135 CONG. REC. H3588 (daily ed. July 12, 1989) and 135 CONG. REC. S8762 (daily ed. July 26, 1989), respectively.

29. On June 22, 1990, John Turner, Director of the U.S. Fish and Wildlife Service (FWS), announced his decision to list the owl as a threatened species under the provisions of § 4(c) of the Endangered Species Act (ESA). 16 U.S.C. § 1533(c), ELR STAT. ESA 003. The decision, largely based on Forest Service biologist Jack Thomas' interagency team study results, came even after the Administration indicated its unwillingness to accept the scientists' recommendations. The study had concluded that 2.7 million acres of federal timberland, primarily ancient forest, would need to be placed off-limits to logging in order to prevent the extinction of the owl. The listing, which took effect on July 23, 1990, nonetheless marked the date from which the FWS has one year to prepare a recovery plan for the owl. Under ESA § 7, the Forest Service and the Bureau of Land Management, which control 80 percent of the owl's ancient forest habitat, must receive FWS approval for any activities, particularly timber sales that might harm the owl's viability. However, President Bush called for another interagency task force report, due September 1. When the report was finally released on September 21, its members could not agree on a single strategy for managing the ancient forest acres and the owl, and it opted for a one-year strategy of mitigated harvesting techniques while the debate continued.

30. 135 CONG. REC. H3684 (daily ed. July 13, 1989).

31. 135 CONG. REC. H5754 (daily ed. Sept. 19, 1989).

32. 135 CONG. REC. H9042 (daily ed. Nov. 19, 1989).

33. The bill would also require each state to recycle 25 percent of the waste it generates within four years of a state's plan being approved, and 50 percent within eight years of plan approval. The bill would require EPA to identify and issue regulations for removing the most common toxic substances from the municipal solid waste stream, require the recycling of vehicle batteries and used oil, and require standards to encourage federal procurement of recycled goods.

34. 135 CONG. REC. H6451 (daily ed. Oct. 2, 1989).

35. 135 CONG. REC. H8350 (daily ed. Nov. 9, 1989).

36. THE BUSINESS ROUNDTABLE, CLEAN AIR ACT LEGISLATION COST EVALUATION (1990).

37. 136 CONG. REC. S98, S122 (daily ed. Jan. 23, 1990) (bill reprinted).

38. 136 CONG. REC. H36 (daily ed. Jan. 23, 1990).

39. 136 CONG. REC. H408 (daily ed. Feb. 21, 1990).

40. Secretary of the Interior v. California, 464 U.S. 312, 14 ELR 20129 (1984). In this case, the Supreme Court held that the DOI's sale of OCS oil and gas leases was not subject to the CZMA's consistency provisions. See generally Comment, Supreme Court Beaches Coastal Zone Management Act, 14 ELR 10161 (Apr. 1984).

41. 136 CONG. REC. S1954 (daily ed. Mar. 1, 1990).

42. 136 CONG. REC. S2457, S2480 (daily ed. Mar. 8, 1990) (bill reprinted).

43. 136 CONG. REC. H1170 (daily ed. Mar. 28, 1990) (bill reprinted).

44. S. REP. NO. 262, 136 CONG. REC. S3696 (daily ed. Apr. 2, 1990).

45. 136 CONG. REC. S3717 (daily ed. Apr. 3, 1990) (reprinted at 136 CONG. REC. S4364 (daily ed. Apr. 18, 1990)).

46. The Byrd amendment would have provided benefits for three years after the bill took effect: 70 percent of former earnings the first year, 60 percent the second year, and 50 percent the third year. The program would have cost between $ 300 million and $ 500 million.

47. See, e.g., S. 2251, 136 CONG. REC. S2310 (daily ed. Mar. 7, 1990) (would extend conservation compliance, and sodbuster and swampbuster provisions through 1995, and expand lands eligible for Conservation Reserve Program enrollment to include wetlands, shelterbelts, and windbreaks, regardless of the soil erosion classification); S. 2292, 136 CONG. REC. S2616 (daily ed. Mar. 9, 1990) (would provide resource conservation in the new farm bill by offering landowners the opportunity to receive contracts for up to 15 years on CRP areas devoted to hardwood trees); S. 2302, 136 CONG. REC. S2776 (daily ed. Mar. 20, 1990) (would extend authorization for the CRP through 1995 for 38 to 45 million acres); H.R. 4347, 136 CONG. REC. S2776 (daily ed. Mar. 21, 1990) (would establish a Wetland Reserve Program requiring that at least 2.5 million acres of eligible lands be reserved); and S. 2334, 136 CONG. REC. S3195, S3201 (daily ed. Mar. 26, 1990) (bill reprinted) (would expand low-input sustainable agriculture research).

48. See generally Power of the Earth: "The Environment" Is Back, and This Time the Result May Be the Greening of Congress, CONG. Q., Jan. 20, 1990, at 137 (Special Report).

49. 136 CONG. REC. H2771 (daily ed. May 23, 1990).

50. S.REP. NO. 394, 136 CONG. REC. S10841 (daily ed. July 26, 1990). As reported, the bill would establish a strategic Environmental Research Program for defense-related environmental research and development, and increase spending ceilings for the cleanup of radioactive and hazardous wastes in the DOE nuclear weapons complex.

51. 136 CONG. REC. S7870 (daily ed. June 13, 1990).

52. Food Security Act, Pub. L. No. 99-198, 99 Stat. 1504 (1985) (codified in various sections of titles 7, 16, 19, and 42 U.S.C.). See generally Tripp & Dudek, The Swampbuster Provisions of the Food Security Act of 1985: Stronger Wetland Conservation If Properly Implemented and Enforced, 16 ELR 10120 (May 1986).

53. 136 CONG. REC. S10987 (daily ed. July 27, 1990). Under the bill, research funding on sustainable agricultural practices would be increased from $ 5 million to $ 50 million annually, and total acres eligible for enrollment in the Conservation Reserve Program would be raised from 33 million to 40 million. The bill would also, for the first time, establish a national system of standards and practices for selling and growing chemical and drug-free food. The bill would stop the export of pesticides banned in the United States, and would limit the size of the easements allowed on cropped wetlands to 20 percent of a farmer's total cropland.

54. 136 CONG. REC. H6702 (daily ed. Aug. 1, 1990).

55. 136 CONG. REC. S11547 (daily ed. Aug. 2, 1990).

56. 136 CONG. REC. H6949 (daily ed. Aug. 3, 1990).

57. Pub. L. No. 101-380, 104 Stat. 484, ELR STAT. OIL POLL. 001-034 (codified at 33 U.S.C. § 2701 et seq.).

58. ALaska Says Oil Spill 85 Percent Cleaned Up, Wash. Post, Nov. 28, 1990, at A9, col. 3. For a comprehensive analysis of oil spill liability issues and the Exxon Valdez oil spill, see generally Straube, Is Full Compensation Possible for the Damages Resulting From the Exxon Valdez Oil Spill?, 19 ELR 10338 (Aug. 1989).

59. 135 CONG. REC. S7250, S7256 (daily ed. June 22, 1989) (bill reprinted).

60. 136 CONG. REC. S13256 (daily ed. Sept. 17, 1990).

61. The "Extensions of Remarks" section of the Congressional Record was home to numerous opinions by members of Congress about the energy state of affairs. For example, Rep. Don Young (R-Alaska), who represents the state with the most oil and gas potential, stated:

It is clear to those of us who have said for a long time that a national energy plan must be more than rhetoric about the unachievable, that the day of reckoning is before us, and that choices must be made. The coastal plain of ANWR in Alaska might just be a good first step toward energy independence. And, unlike Californians, Alaskans — by 85 percent — support opening ANWR.

136 CONG. REC. E2793 (daily ed. Sept. 11, 1990). A more contemplative example was made by Rep. Lee Hamilton (D-Ind.), who stated:

Weaning the U.S. from unreliable Middle East oil is a difficult challenge…. A national energy strategy should be multifaceted and should seek changes in both current supply and demand patterns.

136 CONG. REC. E2805 (daily ed. Spet. 12, 1990). But the most provocative entry of all was made by Rep. Ron Marlenee (R-Mont.), who exclaimed:

Mr. Speaker, America is being made an energy beggar.An energy beggar created by a Congress cowering to the screams of environmental hysterics…. I call for Congress to break the shackles of environmentalist hysteria that for too long have imprisoned America's vast energy resources. I call for Congress to renounce its existing energy policy. A policy of moratoriums on offshore drilling. Of bans on exploration in the Rocky Mountain front. Of padlocks on the Arctic National Wildlife Refuge. Of viselike controls on nuclear power that are stangling to death its future. Did this Congress ever see an environmental bill it didn't like?

136 CONG. REC. E3707 (daily ed. Nov. 2, 1990).

62. Pub. L. No. 101-408, 104 Stat. 883 (1990).

63. 136 CONG. REC. S14953 (daily ed. Oct. 10, 1990) (bill reprinted); 136 CONG. REC. H11879 (daily ed. Oct. 23, 1990) (bill reprinted).

64. 136 CONG. REC. S16093 (daily ed. Oct. 19, 1990) (bill reprinted). The bill would prohibit the use of refrigerated motor vehicles for the transportation of solid waste and prohibit the use of cargo tanks in providing motor vehicle transportation of food and hazardous materials. The Secretary of Transportation would also be required to issue backhauling regulations in order to set decontamination standards for rail and motor vehicles.

65. 135 CONG. REC. S17995 (daily ed. Oct. 24, 1990); 136 CONG. REC. H12832 (daily ed. Oct. 26, 1990).

66. 136 CONG. REC. H11848 (daily ed. Oct. 23, 1990); 136 CONG. REC. S16713 (daily ed. Oct. 25, 1990).

67. 136 CONG. REC. H12848 (daily ed. Oct. 26, 1990); 136 CONG. REC. S16877 (daily ed. Oct. 27, 1990).

68. Pub. L. No. 101-549, 104 Stat. 2399 (1990) (amendments to be codified at 42 U.S.C. § 7401 et seq.).

69. See generally Clean Air Act Implementation, INSIDE EPA'S CLEAN AIR REPORT, Nov. 22, 1990, at 3 (Special Report).

70. See Kriz, Unscenic View, NAT'L J., Jan. 1, 1990, at 2921.

71. While the new Clean Air Act Amendments pose serious threats to coal-mining jobs, prospects in the farm community for greater ethanol production are projected to partially offset some job losses. For coverage of the ethanol industry, see generally Gugliotta, Better Times Are Brewing for Ethanol Industry, Wash. Post, Dec. 2, 1990, at A3, col. 1.

72. At a conference on the new law, Ernest Rosenberg, Director of Environmental Regulation and Legislation for Occidental Petroleum, noted that the new law will treat states as "regulated parties, as well as partners," with overwhelming phase-in burdens. E. Rosenberg, Remarks at American Law Institute/American Bar Association Conference (cosponsored by the Environmental Law Institute)(Washington D.C., Nov. 8-9, 1990).

73. Pub. L. No. 101-601, 104 Stat. 3048 (1990).

74. See supra notes 4, 11, 12, 56, 57, and 58, and accompanying text.

75. Statement by President of the United States, U.S. CODE CONG. & ADMIN. NEWS, Nov. 1990, at 861-1.

76. ENVTL. & ENERGY STUD. INST., SPECIAL REPORT, Nov. 1, 1990, at 5.

77. Pub. L. No. 101-575, 194 Stat. 2834 (1990).

78. Spark M. Matsunaga Hydrogen Research, Development, and Demonstration Program Act, Pub. L. No. 101-566, 104 Stat. 2797 (1990).

79. Tongass Timber Reform Act, Pub. L. No. 101-626, 104 Stat. 4426 (1990).

80. See supra note 31.

81. Pub. L. No. 101-512, 104 Stat. 1915 (1990). Also noteworthy in the Interior appropriations bill was the compromise conferees agreed to over grazing fees on public lands, and oil and gas moratoriums. House conferees sought to include a provision increasing the grazing fee charged to cattle and sheep operators to $ 8.70 per animal per month, from the current $ 1.81. However, Senate conferees agreed to amendments placing large tracts of off-shore acres off-limits to oil and gas development in exchange for maintaining the current grazing fees.

82. H.R. 3950, introduced by Rep. Kika de la Garza, 136 CONG. REC. H223 (daily ed. Feb. 5, 1990), was subsequently incorporated into S. 2830 as the forestry title to the new farm bill.

83. Food, Agriculture, Conservation, and Trade Act, Pub. L. No. 101-624, 104 Stat. 3359 (1990).

84. See generally Davidson, Environmental Analysis of the Federal Farm Programs, 8 VA. ENVTL. L. J. 235 (1989); Hamilton, Sustainable Agriculture: The Role of the Attorney, 20 ELR 10021 (Jan. 1990).

85. Originally introduced by Sen. Patrick Leahy, 135 CONG. REC. S10938 (daily ed. Sept. 12, 1989), the bill provides for reforestation of about three million acres of trees and incentives to plant trees in urban areas.

86. Pub. L. No. 101-508, 104 Stat. 1388 (1990).

87. The Congressional Budget Office estimated that the tax extension could provide EPA with nearly $ 5.4 billion through 1995.

88. Another Superfund measure, S. 3187, was signed into law on November 15. Pub. L. No. 101-584, 104 Stat. 2872 (1990). The new law clarifies that when a bonding surety of a Superfund contractor steps into the shoes of the contractor to take over cleanup work, the surety's liabilities and access to indemnification are the same as the contractor had. Moreover, the law provides that sureties may contract for the obligations they wish to be liable for.

89. 464 U.S. 312, 14 ELR 20129 (1984).

90. See supra notes 40 and 41, and accompanying text.

91. Pub. L. No. 101-615, 104 Stat. 3244 (1990). The new law amends the Hazardous Materials Transportation Act to authorize appropriations through 1992, and establishes minimum civil penalties for violators. The law increases both civil and criminal penalties for violations, and requires the Department of Transportation to establish standards for designating routes for the transportation of hazardous materials.

Year by year, the number of environmental bills introduced in Congress grows, and as a result, environmental laws proliferate. In turn, regulations become more complex and pervasive. The 101st Congress added substantially to this body of law, and also to expectations for our environmental future.

21 ELR 10008 | Environmental Law Reporter | copyright © 1991 | All rights reserved