A Tale of Sound and Fury: The Environmental Record of the 102d Congress

James E. Satterfield

Editors' Summary: The 102d Congress adjourned on October 9, 1992, leaving a mixed record of environmental successes and failures. The three principal environmental statutes before it — RCRA, the FWPCA, and the ESA — all failed to win reauthorization. Much heralded proposals to elevate EPA to cabinet-level status got nowhere. Bills to protect banks and municipalities from CERCLA liability and reform federal mining law stalled and died. However, Congress did pass a landmark national energy policy bill, and extensive hearings were held on the bills that were not enacted.

In this Comment, the author examines the battles fought in the 102d Congress over each of the principal items on its environmental agenda. He explores the reasons why enacted bills acquired the form they did and why unenacted bills failed to pass. Finally, he concludes that, despite its failures, the 102d Congress may have laid the groundwork for the next Congress, when Democrats will control both houses of Congress and the White House.

Mr. Satterfield is an Associate Editor of the Environmental Law Reporter. After receiving a J.D. from Columbia University Law School in 1983, he practiced corporate law in New York City for seven years.

[23 ELR 10015]

The 102d Congress convened on January 3, 1991, amid expectations that it would address a heavy agenda of environmental issues. Iraq's invasion of Kuwait on August 2, 1990, had provoked fears of oil price shocks and calls for a national energy policy.¹ Both the Resource Conservation and Recovery Act² (RCRA) and the Federal Water Pollution Control Act³ (FWPCA) were due for reauthorization during the first session of the 102d Congress, and the Endangered Species Act⁴ (ESA) was due for reauthorization during the second session. Many believed Congress would confront a host of highly controversial issues in its attempt to enact reauthorizing legislation. However, the promises and expectations for the 102d Congress were left largely unfulfilled when it adjourned.

The principal piece of environmental legislation passed by the 102d Congress may have been its energy bill. Ambitiously named the Comprehensive National Energy Policy Act of 1992,⁵ it was far from comprehensive, but it did pass.

Far less lucky were bills to reauthorize RCRA, the FWPCA, and the ESA. The RCRA reauthorization effort, initially propelled by the growing national landfill shortage, faltered after the issue's urgency caused it to be addressed in separate legislation. The FWPCA and ESA reauthorization efforts were impeded by issues that had haunted the 101st Congress: wetlands protection, in the case of the FWPCA; and perceived threats to jobs from species listing, in the case of the ESA.

Practically lost in the shuffle were proposals to elevate the U.S. Environmental Protection Agency (EPA) to cabinet-level [23 ELR 10016] status. Much heralded in the 101st Congress, proposals to create a "Department of the Environment" never seemed to get off the ground in the 102d Congress.

The only sure bets in the 102d Congress seemed to be appropriations bills. Somehow the government had to get funded. The only question was how and by how much.

Although, when the dust settled, it seemed as though the 102d Congress had accomplished little, the efforts to address its environmental agenda were prodigious, and they lay the groundwork for a 1993-94 term that could be historic. This Comment discusses each of the principal items before the 102d Congress — energy, RCRA, the FWPCA, the ESA, EPA elevation, and appropriations — as well as several of the less conspicuous ones. It also explores some of the reasons for the 102d Congress' failure to resolve many of the environmental issues confronting it.

Towards a National Energy Policy

On October 24, 1992,⁶ President Bush signed the Comprehensive National Energy Policy Act of 1992, 21 months after he called for a comprehensive national energy strategy in his 1991 State of the Union address. In that speech, President Bush proposed a plan to promote "energy conservation and efficiency, increased development, and greater use of alternative fuels."⁷ He promised to send to Congress a "detailed series of proposals."⁸

While awaiting receipt of the President's plan, two prominent legislators introduced proposals of their own. Sen. J. Bennett Johnston (D-La.), chairman of the Senate Committee on Energy and Natural Resources, introduced⁹ S.341,¹⁰ "a bill to reduce the Nation's dependence on imported oil, [and] to provide for the energy security of the Nation."¹¹ It contained provisions on energy efficiency,¹² renewable energy,¹³ and alternative fuels.¹⁴ It also contained many features expected to be included in the administration's plan,¹⁵ including proposals to open the coastal plain in the Arctic National Wildlife Refuge (ANWR) in Alaska to oil and gas drilling,¹⁶ encourage the commercialization of advanced nuclear reactor technologies,¹⁷ sanction streamlined nuclear power plant licensing,¹⁸ and revise¹⁹ the Public Utility Holding Company Act of 1935 (PUHCA).²⁰ The bill differed²¹ from the expected Bush plan in its proposal to require further research into the feasibility of increasing the corporate average fuel economy (CAFE) standards for automobile manufacturers,²² and to require U.S. oil companies to contribute approximately nine percent of their oil imports to the national strategic petroleum reserve.²³

Rep. Philip R. Sharp (D-Ind.), chairman of the House Energy and Commerce Committee's Subcommittee on Energy and Power, introduced²⁴ a package of five energy bills, H.R. 776,²⁵ H.R. 777,²⁶ H.R. 778,²⁷ H.R. 779,²⁸ and H.R. 780.²⁹ H.R. 776 would have required the U.S. Department of Energy (DOE) to develop a uniform, voluntary home energy rating system to allow home buyers to accurately compare energy costs.³⁰ It would also have given federal agencies until the year 2000 to make all energy efficiency retrofits that could pay for themselves within 10 years.³¹ Agencies failing to comply with this provision would have been precluded from spending funds on building construction or acquisition.³² The bill would have directed state commissioners to consider regulatory reforms to make investments in energy efficiency as profitable as investments in energy supply.³³ Finally, the bill would have required the DOE to develop testing and labeling requirements for windows, design guidelines for industrial insulation, and set minimum energy efficiency standards for lamps.³⁴ H.R. 777 would have required oil companies to contribute approximately three percent of their oil imports to the national strategic petroleum reserve to increase the size of the reserve to 1.5 billion barrels.³⁵ H.R. 778 would have granted the President additional authority to withdraw oil from the reserve.³⁶ H.R. 779 would have streamlined regulatory requirements for new natural gas pipeline construction in order to increase natural gas use.³⁷ H.R. 780 would have provided tax incentives to increase electricity generation from solar, wind, and geothermal sources.³⁸

On February 20, 1991, the administration released its energy strategy.³⁹ The most prominent feature of the plan [23 ELR 10017] was its attempt to regenerate the domestic oil industry, whose peak production of nearly 9 million barrels per day in 1985 had fallen to 7.3 million barrels per day by 1990.⁴⁰ The plan would have promoted enhanced oil recovery technologies to increase the amount of oil removed from existing wells and opened the ANWR to oil production.⁴¹ It also proposed cutting domestic oil consumption by 3.4 million barrels per day by 2010, primarily through use of alternative fuels.⁴² It called for revising the process for nuclear power plant licensing, increasing mortgage financing incentives for residential energy efficiency, setting cost-effective appliance and equipment standards, improving federal energy efficiency, and amending PUHCA to increase competition among electricity generators.⁴³ The plan would also have increased funding for industrial efficiency, alternative energy, and high-speed rail research and development; extended investment tax credits for solar and geothermal business properties through 1992; granted these credits for wind and certain biomass technologies; and changed hydropower regulation.⁴⁴ The administration's plan was incorporated into, and introduced⁴⁵ into Congress as, S. 570⁴⁶ and H.R. 1301.⁴⁷

The Senate Energy and Natural Resources Committee, chaired by Sen. Johnston, and the House Subcommittee on Energy and Power, chaired by Rep. Sharp, took the initiative in considering the various energy proposals. After a dozen hearings and 13 markup sessions spanning a three-month period, the Senate Committee finally reported an energy bill to the full Senate.⁴⁸ Proceeding more smoothly, the House Subcommittee completed its work after 24 days of hearings and nine days of markup sessions.⁴⁹

Senate Energy Battles

In its hearings on a national energy strategy, the Senate Energy and Natural Resources Committee focused primarily on S. 341. The crucial committee battles centered on the ANWR and CAFE.

On May 15, 1991, the Committee rejected proposed amendments that would have mandated higher CAFE standards for cars.⁵⁰ This left intact a provision directing the U.S. Department of Transportation (DOT) to determine "maximum feasible average fuel economy achievable" for automobiles and light trucks for the model years 1996 through 2001, and to enforce the new performance levels without requiring that the new standards be higher than current ones.⁵¹ The Committee also defeated an amendment to increase CAFE standards by the year 2006 from the current fleet average of 27.5 miles per gallon (mpg) to 37 mpg for cars and 25 mpg for light-duty trucks, an amendment to require automobile manufacturers to increase fuel economy ratings for all cars and light-duty trucks by at least 40 percent by the year 2001, and an amendment to strike the fuel economy provisions in the bill completely.⁵² In addition, the Committee defeated an amendment offered by Chairman Johnston to require slightly higher fuel economy standards for cars.⁵³

Sen. Timothy E. Wirth (D-Colo.) moved to strike a provision in the bill allowing oil exploration in the ANWR.⁵⁴ The vote was expected to be close, but by a margin of 8 to 5 the motion was defeated.⁵⁵

The Committee added a provision banning new oil drilling off the California coast through the year 2000 and eliminated a provision requiring oil companies to contribute nine percent of their annual oil imports to the national strategic oil reserve.⁵⁶ On May 23, 1991, the Committee voted, 17 to 3, to approve S. 341.⁵⁷ Sen. Johnston introduced⁵⁸ S. 1220,⁵⁹ which contained the text of S. 341,⁶⁰ and the Committee reported S. 1220 in lieu of S. 341.⁶¹

S. 1220 was described as "closely resembl[ing] the national energy strategy proposed by President Bush."⁶² On November 1, 1991, opponents of the bill, led by Sens. Max Baucus (D-Mont.), Richard H. Bryan (D-Nev.), Al Gore (D-Tenn.), Joseph I. Lieberman (D-Conn.), William V. Roth, Jr. (R-Del.), Paul D. Wellstone (DFL-Minn.), and Timothy E. Wirth (D-Colo.), staged a filibuster.⁶³ Opinions differed on whether the action represented opposition to the bill's provision for drilling in the ANWR or congressional unwillingness to address energy concerns comprehensively.⁶⁴ A Senate vote on cloture to end the filibuster failed 50 to 44.⁶⁵ Senate Majority Leader George J. Mitchell (D-Me.) withdrew his motion to proceed with the bill,⁶⁶ and Sen. Johnston conceded defeat.⁶⁷

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Almost three months later, Sen. Johnston again tried to push an energy bill through the Senate. On January 29, 1992, he introduced⁶⁸ S. 2166,⁶⁹ a scaled-down version of the ill-fated S. 1220.⁷⁰ S. 2166 was shorn of the previous bill's two most controversial provisions — a provision to allow oil exploration in the ANWR, and a provision to revise CAFE standards.⁷¹ After seven days of debate on the Senate floor, S. 2166 was passed with only marginal changes by a vote of 94 to 4.⁷² It was endorsed by the DOE.⁷³

The House Energy Effort

The House energy bill, H.R. 776, proceeded more smoothly through the House than the Senate energy bill, in all its incarnations, did through the Senate. The House Energy and Commerce Committee's Subcommittee on Energy and Power moved steadily through hearings on PUHCA,⁷⁴ nuclear power plant licensing,⁷⁵ the national strategic energy reserve,⁷⁶ energy efficiency,⁷⁷ natural gas,⁷⁸ petroleum rating,⁷⁹ pipeline regulation,⁸⁰ global warming,⁸¹ coal research,⁸² and electricity transmission.⁸³ In markup sessions, the Subcommittee also addressed the disposal of high-level nuclear waste,⁸⁴ control of greenhouse gas emissions,⁸⁵ and revival of the U.S. uranium enrichment program.⁸⁶ Only a three-week break prompted by full House Energy and Commerce Committee consideration of measures to help the troubled banking system delayed progress.⁸⁷

The final product, approved by the Subcommittee on October 31, 1991,⁸⁸ emphasized increased energy conservation and development of nonpetroleum power sources.⁸⁹ The marked-up bill would have mandated updated state residential and commercial building codes to increase energy efficiency; directed the DOE to develop a voluntary home energy rating system; given federal agencies until the year 2000 to adopt energy efficiency improvements that could pay for themselves within 10 years; and set new energy efficiency standards for lamps, electric motors, showerheads, and commercial buildings' heating and cooling equipment.⁹⁰ The bill would have streamlined federal procedures for approving new natural gas pipelines; directed the DOE to conduct research and development on new coal technologies; encouraged the use of alternative motor fuels as substitutes for petroleum-based fuels; overhauled PUHCA to create a new class of independent power producers without the corporate and geographic limitations imposed under existing law; and required U.S. oil refiners to contribute one percent of their annual product, or the cash equivalent, to the national strategic petroleum reserve.⁹¹ Finally, the bill would have attempted to rejuvenate the ailing U.S. uranium enrichment program, and allowed the DOE to conduct studies, without state environmental permits, on the selection of Yucca Mountain in Nevada as a high-level radioactive waste repository.⁹²

On March 11, 1992, after less than five hours of deliberations,⁹³ the House Committee on Energy and Commerce approved the marked-up bill.⁹⁴ The Committee unanimously approved a package of bill amendments that included 41 separate proposals.⁹⁵ Compromises contained in the package included a provision to protect some consumers from electricity rate hikes, a provision to restructure backup fees on nuclear-powered utilities, a provision to strengthen energy efficiency standards, and a provision to restrict the DOE administration of coal technology demonstration projects.⁹⁶

Bringing the bill to the House floor was complicated by the fact that eight House committees, in addition to the House Energy and Commerce Committee, claimed jurisdiction over some part of H.R. 776.⁹⁷ The Committees on Science, Space, and Technology; Interior and Insular Affairs; Merchant Marine and Fisheries; and Ways and Means approved substantial revisions or additions to the bill.⁹⁸ Among the committee provisions folded into the bill were tax incentives to encourage mass transit and aid independent oil and gas producers and restrictions on new offshore oil [23 ELR 10019] and gas drilling.⁹⁹ The Committees on Government Operations, Public Works and Transportation, the Judiciary, and Foreign Affairs produced several comparatively modest changes to the bill.¹⁰⁰ Meeting with the chairpersons of the nine committees, House leaders crafted an agreement on the form of the bill to be brought to the House floor.¹⁰¹

On the House floor, provisions were added to streamline nuclear power plant licensing,¹⁰² restrict state control of natural gas production,¹⁰³ and allow site testing without state or local permits at the proposed high-level nuclear waste disposal site at Yucca Mountain in Nevada.¹⁰⁴ The House deleted a provision in the bill to require U.S. refiners and importers to contribute one percent of their annual petroleum procurement, or its cash equivalent, to the national strategic petroleum reserve.¹⁰⁵ The House passed the bill on May 27, 1992, by a vote of 381 to 37.¹⁰⁶

Passage and Signing

On its way to the Senate floor, H.R. 776 detoured through the Senate Finance Committee. The Committee produced a tax package to replace the set of tax incentives contained in the House bill.¹⁰⁷ The most controversial feature of the tax package was a proposed coal tax to help finance health benefits for retired coal miners whose former employers have gone out of business.¹⁰⁸ Energy Secretary James D. Watkins and Labor Secretary Lynn Martin had reportedly indicated that they would advise President Bush to veto the bill if it contained the coal tax proposal.¹⁰⁹ Compromising on this provision, the Senate adopted an amended version of S. 2166, which had been passed on February 19, 1992, and substituted its text for that of H.R. 776.¹¹⁰ The Senate passed revised H.R. 776 on July 30, and sent it to a conference committee with House representatives.¹¹¹

Two months later, the 136 conferees from the House and Senate completed their work.¹¹² Central to the conference bill were provisions to encourage greater energy conservation in homes, office buildings, appliances, the electric power industry, and the federal government. The bill would mandate energy efficiency standards for lamps, electric motors, utility transformers, and commercial buildings' heating and cooling equipment.¹¹³ The bill would require updating state building codes to meet voluntary industry standards for energy efficiency, and give federal agencies until the year 2000 to adopt energy efficiency improvements that could pay for themselves within 10 years.¹¹⁴ The bill would require state regulators to consider changes in rates to make utility investment in energy efficiency as profitable as investment in new generating facilities.¹¹⁵

The Conference Committee combined House and Senate proposals to encourage the use of nonpetroleum substitutes for oil-based motor fuels.¹¹⁶ It also approved a package of proposals intended to promote development of new technologies to exploit solar, wind, geothermal, and organic matter sources of energy.¹¹⁷ It struck a provision to allow the DOE to conduct site testing at Yucca Mountain without state environmental permits,¹¹⁸ and most of the House and Senate provisions on natural gas.¹¹⁹

The conference bill would overhaul PUHCA to create a new class of independent power producers unrestricted by corporate and geographic limitations found in existing law.¹²⁰ It would include a Senate-backed nuclear power plant licensing provision supported by the Bush administration and the nuclear power industry that would streamline federal approval of new commercial plants.¹²¹ The DOE's uranium enrichment program would be transformed into a federally owned corporation that would ultimately be sold to private investors.¹²² Research and development on cleaner coal technologies were approved,¹²³ and the President was granted authority to sell oil from the national strategic petroleum reserve to ease the turmoil caused by oil price hikes.¹²⁴ Finally, the conferees agreed on tax measures to encourage energy production and conservation, including a provision to grant tax benefits to independent oil and natural gas drillers.¹²⁵

On October 5, 1992, the House approved the Conference Committee's report and passed the compromise bill.¹²⁶ The Senate followed suit on October 8.¹²⁷ On October 24, President [23 ELR 10020] Bush signed the Comprehensive National Energy Policy Act of 1992 into law.¹²⁸

Reauthorization Battles: RCRA, FWPCA, ESA

Three key environmental bills were up for reauthorization during the 102d Congress — RCRA, the FWPCA, and the ESA. None of them were reauthorized. RCRA reauthorization bills fared the best: a RCRA reauthorization bill was reported out of committee in each chamber of Congress. However, bills to reauthorize the FWPCA never made it out of the committees to which they were referred, and only one bill was introduced to reauthorize the ESA. It got nowhere.

RCRA Reauthorization

The principal force driving the RCRA reauthorization effort in the 102d Congress seemed to be the need to address the growing landfill crisis. Americans discard almost 180 million tons of garbage annually.¹²⁹ Almost 80 percent of the nation's waste is sent to landfills, but the number of landfills has declined over the past 20 years from 30,000 to 6,000.¹³⁰ Many states have addressed the problem by shipping their waste to landfills in other states.¹³¹ In response to this, many state and local governments have enacted laws restricting waste imports.¹³² But several of these laws have been held unconstitutional,¹³³ throwing the problem into Congress' lap.

The lead in addressing this situation was taken by Sen. Max Baucus (D-Mont.), chairman of the Senate Environment and Public Works Committee's Subcommittee on Environmental Protection, and Rep. Al Swift (D-Wash.), beginning his first term as chairman of the House Energy and Commerce Committee's Subcommittee on Transportation and Hazardous Materials. On April 25, 1991, Sen. Baucus introduced¹³⁴ S. 976.¹³⁵ It was intended to eliminate the use of unnecessary hazardous substances and reduce the production of wastes by redirecting RCRA to address toxics use and source reduction.¹³⁶ The bill's other priorities were municipal waste recycling, waste treatment, containment, and incineration.¹³⁷ The bill was strongly opposed by industry for its toxic reduction provisions,¹³⁸ and environmentalists thought that the bill needed significant changes to make its programs successful.¹³⁹

It became clear early on that the primary impetus for RCRA reauthorization, the drive to address the national waste disposal problem, would ultimately prove the bill's undoing. Some legislators, concerned with the issue of interstate waste shipments to which the landfill problem had given rise, began pushing for separate legislation to handle that problem. Sen. Dan Coats (D-Ind.) had attempted this in the 101st Congress.¹⁴⁰ However, Sen. Baucus insisted that the interstate waste shipments issue must be handled in one comprehensive RCRA reauthorization bill.¹⁴¹

Hearings on S. 976 by the Senate Environmental Protection Subcommittee began on June 5, 1991,¹⁴² and ended on September 17.¹⁴³ In the final hearings, William K. Reilly, EPA Administrator, announced the Bush administration's position on the bill. "I believe many of the approaches taken in the Senate bill are not the most efficient means to achieve our national goals," he said.¹⁴⁴ "Our nation's resources for environmental protection are too scarce to waste on attempting the unnecessary and impossible."¹⁴⁵ He added that major provisions of the bill were "technically infeasible, inefficient, or administratively unworkable."¹⁴⁶ The administration indicated that it opposed broad revision of RCRA.¹⁴⁷

To forestall attempts to introduce separate legislation on the interstate waste shipment issue, Sen. Baucus announced on September 30, 1991, that if a RCRA reauthorization bill was not reported by committee and acted on by the full Senate, he would assist in efforts to introduce an interstate waste shipment measure.¹⁴⁸ Sen. Coats indicated that he would offer separate waste legislation if at the end of April 1992 a general RCRA reauthorization bill had not become law or have "every chance to become law."¹⁴⁹ On March 27, 1992, the Senate Environment and Public Works Committee released a new, staff-written draft of a RCRA reauthorization bill.¹⁵⁰ The draft would have required companies to use more recycled paper and packaging, and would have required landfill and incinerator operators to secure local government permission prior to accepting shipments of out-of-state solid waste.¹⁵¹ It would also [23 ELR 10021] have required states to adopt solid waste management plans, and would have required solid waste disposal facilities to obtain special operating permits.¹⁵² It would have directed EPA to impose requirements for disposal of municipal incinerator ash and other wastes, and established management requirements for recycling used oil.¹⁵³

The new draft fared poorly. On May 1, 1992, seven national environmental and public interest groups wrote senators urging them to "vote against reporting S 976 in its current form because it would have no meaningful impact on our solid waste problems."¹⁵⁴ Nevertheless, the Committee reported the bill to the full Senate on June 19, 1992.¹⁵⁵

Despite this, on June 18, Sen. Baucus joined Sen. Coats in introducing¹⁵⁶ a separate interstate waste bill, S. 2877.¹⁵⁷ Sen. Baucus explained his apparent about-face on this subject by noting the limited amount of time left before adjournment and two recent U.S. Supreme Court decisions¹⁵⁸ striking down state laws restricting waste imports.¹⁵⁹ S. 2877 would have allowed all states to freeze waste imports at 1991 levels and freeze municipal waste imports at the lower of 1991 or 1992 levels.¹⁶⁰ On July 23, 1992, S. 2877 passed the Senate.¹⁶¹ However, S. 976, opposed by environmentalists and industry alike, never reached the Senate floor.¹⁶²

The House RCRA reauthorization bill, H.R. 3865,¹⁶³ fared no better. It was introduced by Rep. Swift on November 22, 1991,¹⁶⁴ more than eight months after his House Subcommittee on Transportation and Hazardous Materials began hearings on RCRA reauthorization. It would have encouraged waste reduction and recycling, and authorized states with approved waste management plans to set higher fees on out-of-state municipal waste.¹⁶⁵ The bill was intended as the first part of comprehensive RCRA reauthorization legislation.¹⁶⁶ The second part, to be introduced in the second session and then combined with H.R. 3865 into a single bill, was to target industrial nonhazardous waste, oil and gas exploration and production waste, mining waste, waste minimization, and used oil and hazardous material recycling.¹⁶⁷

The bill received criticism from all sides. A trade association of grocery manufacturers opposed the bill's packaging restrictions, environmentalists criticized as inadequate the bill's efforts to mandate recycling and reduce dependence on incinerators and landfills, and governors expressed concern over provisions that could subject states to sanctions if EPA found the states not fully implementing their waste management plans.¹⁶⁸ The Bush administration opposed the bill, because the White House opposed broad revision of RCRA.¹⁶⁹

On March 18, 1992, the House Subcommittee on Transportation and Hazardous Materials released a revised draft of the bill that added provisions to regulate used oil and mining wastes.¹⁷⁰ In most other ways, it was identical to H.R. 3865.¹⁷¹

On March 26, by a vote of 16 to 1, the Subcommittee approved the bill.¹⁷² As approved by the Subcommittee, the bill would have imposed stringent recycling requirements on the paper industry,¹⁷³ and imposed recycling, reuse, or waste reduction standards for packaging.¹⁷⁴ States would be required to develop broad solid waste management plans, and operators of landfills, incinerators, and other waste facilities would need to obtain state permits.¹⁷⁵ The bill would have set standards for environmental marketing claims, established a new federal program to regulate mining wastes, and imposed standards for managing used oil and ash from municipal waste incinerators.¹⁷⁶

In May, Rep. Swift and Rep. John D. Dingell (D-Mich.) agreed to pare down the bill.¹⁷⁷ They were concerned that the complexity of issues raised by a full reauthorization bill and referral of the bill to other committees would prevent enactment in 1992.¹⁷⁸ The resulting bill only included provisions to amend RCRA subtitle D.¹⁷⁹ The revised bill was approved by the full Energy and Commerce Committee on July 2, 1992, after three weeks of markup.¹⁸⁰ The Committee's bill targeted municipal solid waste and emphasized recycling, safe disposal of solid waste, and easing regional controversy over interstate waste shipments.¹⁸¹ However, the bill was again subjected to a storm of criticism.

Environmentalists criticized the bill for not addressing crucial hazardous waste issues, failing to include stronger [23 ELR 10022] recycling provisions, and lacking provisions to regulate most solid wastes.¹⁸² Industry groups argued that the bill would be costly and achieve little environmental protection. The Bush administration voiced concern over the bill's impact on the economy and U.S. competitiveness.¹⁸³ No House floor action was taken on the bill before Congress adjourned.¹⁸⁴

FWPCA Reauthorization

In comparison to the efforts made to reauthorize RCRA, efforts to reauthorize the FWPCA "never really got off the ground."¹⁸⁵ At the outset of the first session, it was clear that the controversial wetlands' protection issue would make or break any FWPCA reauthorization bill.¹⁸⁶ Ultimately, despite three months of hearings by the Senate Environment and Public Works Committee's Subcommittee on Environmental Protection and the House Public Works and Transportation Committee's Subcommittee on Water Resources,¹⁸⁷ no reauthorization bill reached the floor of either house. In fact, none of the committees with jurisdiction over the issue even marked up reauthorization bills.¹⁸⁸

Sen. Baucus introduced¹⁸⁹ S. 1081.¹⁹⁰ It addressed water pollution prevention, water quality testing, toxic water pollution control, compliance assessment, and pollution control funding.¹⁹¹ It would have required EPA, in establishing minimum national technology-based standards, to take into account changes within an industrial facility, not just "end-of-the-pipe" treatment.¹⁹² It would also have increased EPA's authority to prohibit pollution discharges,¹⁹³ clarified the procedure for developing water pollutants criteria,¹⁹⁴ expanded the publicly owned treatment works program for pretreatment of industrial discharges,¹⁹⁵ and authorized permit compliance audits of major industrial facilities discharging toxics.¹⁹⁶ The bill would have implemented a comprehensive scheme for FWPCA funding over the next six years and increased funding for nonpoint source pollution control grants and state water quality programs.¹⁹⁷ Finally, the bill would not have amended FWPCA § 404's wetlands provisions.¹⁹⁸ The Senate Environmental Protection Subcommittee released a draft substitute for S. 1081 in early January 1992,¹⁹⁹ but no further action was taken on either.²⁰⁰

In the House, Rep. Gerry E. Studds (D-Mass.) introduced²⁰¹ H.R. 2029.²⁰² It was intended to extend FWPCA authorizations and protect coastal waters and the Great Lakes.²⁰³ However, the committees to which it was referred never acted on it.²⁰⁴

The 102d Congress' feeble efforts to reauthorize the FWPCA fell victim to the enormous controversy over wetlands' definition and protection, the pressures on members of Congress to wind up business swiftly to prepare for the November 1992 elections, and the feeling in Congress that the existing law was essentially sound.²⁰⁵

ESA Reauthorization

While efforts to reauthorize the FWPCA ultimately stalled, the effort to reauthorize the ESA did not even get its engines started. On November 26, 1991, Rep. Gerry E. Studds (D-Mass.) introduced²⁰⁶ H.R. 4045,²⁰⁷ which would have reauthorized the ESA for five more years and augmented programs for the conservation of threatened and endangered species.²⁰⁸ It would have encouraged state and local protection of species that are candidates for listing, and directed federal agencies to promulgate regulations to implement resolutions adopted by the Convention on the International Trade in Endangered Species.²⁰⁹ Finally, the bill would have required that recovery plans be prepared for all species listed as threatened or endangered, and would have increased funding for implementing the ESA.²¹⁰

The bitter controversy between environmentalists and the timber industry over the northern spotted owl and the forests of the Pacific Northwest seemed to derail the bill.²¹¹ Critics of the ESA have charged that the preservation of some species comes at the expense of jobs and economic development.²¹² [23 ELR 10023] Some participants felt that ESA reauthorization was unnecessary, though desirable.²¹³ Rep. Studds announced that his Subcommittee on Fisheries and Wildlife Conservation and the Environment would not proceed on ESA reauthorization until the Pacific Northwest crisis was resolved.²¹⁴

Other Failures: EPA Elevation, Lender Liability, and Mining Reform

The 102d Congress' string of failures extended to many areas beyond reauthorization. Efforts to raise EPA to cabinet level, limit lender liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),²¹⁵ and overhaul federal mining law all met defeat.

Despite initial promise, attempts to gain departmental status for EPA ultimately failed. On January 3, 1991, the first day of the 102d Congress, Rep. Sherwood L. Boehlert (R-N.Y.) introduced H.R. 67²¹⁶ to redesignate EPA as an executive department and rename it the Department of EnvironmentalProtection.²¹⁷ No action was taken on the bill.²¹⁸ On February 28, 1991, Sen. John Glenn (D-Ohio) introduced S. 533²¹⁹ to establish the Department of the Environment, a Bureau of Environmental Statistics, and a presidential commission on improving environmental protection.²²⁰ The bill was passed by the Senate on October 1, 1991,²²¹ but died in the House.²²² Although in January 1990 President Bush had called for elevation of EPA,²²³ the administration consistently opposed congressional efforts to restructure the proposed department to reduce presidential authority over it.²²⁴

Attempts to pass legislation protecting banks and municipalities from CERCLA liability met a similar fate. Lender and municipal liability provisions proposed by Sen. Jake Garn (R-Utah) and Sen. Frank R. Lautenberg (D-N.J.) were adopted in the Senate as amendments to S. 2733,²²⁵ a housing reform bill.²²⁶ Although the bill passed the Senate on July 1 1992,²²⁷ it failed to pass the House, and the housing reform bill, H.R. 5334,²²⁸ that passed Congress contained no CERCLA liability provisions.²²⁹

Efforts to overhaul federal mining law during the 102d Congress also proved unavailing. Under the General Mining Law of 1872,²³⁰ unreserved federal lands in the West are open to persons prospecting for hard-rock minerals.²³¹ Prospectors staking claims on these lands obtain exclusive mineral rights and can mine the property without paying royalties.²³² Claim holders may buy title to, or "patent," their claims for $ 2.50 or $ 5 an acre, depending on the type of claim, if they can prove their claims contain a "vein or lode."²³³ Patenting a claim gives the patent holder the right to subsurface minerals and use of the surface to extract those minerals.²³⁴

Toward the end of the second session, the House began consideration of H.R. 918,²³⁵ a bill to rewrite the law, but did not complete action on it.²³⁶ Western senators opposed the bill,²³⁷ and successfully amended the Senate's version of the Department of the Interior appropriations bill for fiscal year 1993, H.R. 5503,²³⁸ to include much more modest mining law revisions.²³⁹ In the Conference Committee, Senate conferees agreed to strike the provisions in return for striking a House-passed provision to prohibit public land from being patented.²⁴⁰ Conferees agreed to impose a new fee on individuals and companies possessing hard-rock mining claims on federal lands, which the Bush administration supported.²⁴¹

Successes to Remember: Addressing Federal Facilities, California's Central Valley, Highways, WIPP, and Lead Paint

Despite a record of gridlock and failed expectations, the 102d Congress did pass some notable environmental bills. Most significant of these perhaps was the "comprehensive" energy policy bill.²⁴² However, other significant bills clarified the cleanup liability of federal facilities; provided increased protection for fish and wildlife affected by water withdrawals in California's Central Valley; authorized funding for mass transit and hiking and recreational trails; transferred public land to the DOE for the Waste Isolation Pilot Program radioactive waste repository in New Mexico; and established a program to reduce the dangers of lead-based paint in homes.

In the closing weeks of the 102d Congress, three bills affecting federal facilities were signed into law — H.R. 1435,²⁴³ H.R. 2194,²⁴⁴ and H.R. 4016.²⁴⁵ H.R. 1435 was [23 ELR 10024] enacted as the Rocky Mountain Arsenal National Wildlife Refuge Act of 1992.²⁴⁶ The Act directs the Secretary of the Army to transfer jurisdiction over the Rocky Mountain Arsenal in Colorado to the Secretary of the Interior for use as a wildlife refuge, subject to EPA certification that cleanup of contamination at the Arsenal has been completed.²⁴⁷ H.R. 2194 was enacted as the Federal Facility Compliance Act of 1992.²⁴⁸ That Act amends RCRA to clarify that federal agencies are subject to state penalties for violations of both RCRA and state waste laws.²⁴⁹ Finally, H.R. 4016 was enacted as the Community Environmental Response Facilities Act of 1992.²⁵⁰ That law amends CERCLA to require the federal government, before termination of federal activities on any real property owned by the government, to identify real property where no hazardous substance was stored, released, or disposed of.²⁵¹

Congress also passed a mammoth water bill, H.R. 429,²⁵² to address water diversion problems in California's Central Valley. H.R. 429 was enacted as the Reclamations Projects Authorization and Adjustment Act of 1992.²⁵³ The Act dedicates 800,000 acre-feet of water per year over the next 10 years for fish and wildlife in the Central Valley and a firm supply of water for wildlife and refuges.²⁵⁴ The Act also establishes a restoration fund, 67 percent of which is to be disbursed for habitat restoration, improvement, and acquisition, and 33 percent of which is to be disbursed for construction projects to benefit fish and wildlife.²⁵⁵ The Act authorizes farmers to sell or transfer water received from the project, on certain conditions;²⁵⁶ raises the price of water sold to farmers;²⁵⁷ and limits irrigation and municipal water contract renewals to 25 years.²⁵⁸ Finally, the Act places a moratorium on most new water contracts until certain fish and wildlife restoration and population goals have been met,²⁵⁹ directs the Secretary of the Interior to develop and implement a plan for the Glen Canyon Dam hydropower facility on the Colorado River to protect the Grand Canyon National Park,²⁶⁰ and establishes a commission to study Western water policy.²⁶¹

On December 18, 1991, President Bush signed into law the new Intermodal Surface Transportation Efficiency Act of 1991,²⁶² intended to rebuild American highways and provide jobs. The law authorizes funding of $ 151 billion for highway and mass transit system construction through 1997, $ 119.5 billion for highway programs, and $ 31.5 billion for mass transit programs.²⁶³ The new law establishes a $ 23.9 billion program that furnishes state and local officials with funds to spend on the transportation projects of their choice.²⁶⁴ It authorizes most states to disburse up to half of their allocated highway fund distributions on mass transit, and highly polluted states to use their total highway fund distributions on mass transit.²⁶⁵ The law authorizes $ 180 million through 1997 to pay for and maintain hiking and recreational trails.²⁶⁶ Finally, the new law does not include an amendment introduced by Sen. Steve Symms (R-Idaho), which would have required federal agencies to determine whether federal agency actions involved constitutional takings.²⁶⁷

Congress passed S. 1671²⁶⁸ to withdraw public lands for the Waste Isolation Pilot Program nuclear repository in New Mexico. The final bill approved by the Conference Committee includes a provision, on which House conferees insisted, that requires the DOE to obtain EPA approval of any test plan.²⁶⁹

Congress also passed H.R. 5334²⁷⁰ to address, among other things, hazards from lead-based paint in homes. The new law's²⁷¹ title X creates a program of grants to states and localities to reduce lead-based paint hazards in low-income housing.²⁷² It also phases in requirements for evaluating and reducing such hazards in federally assisted housing, and requires sellers and lessors of private and assisted housing to inform prospective home buyers and renters of such hazards.²⁷³

Appropriations

In order to keep the government going, the 102d Congress passed a flurry of appropriations bills before ending its second session. EPA was funded for fiscal year 1993 to the tune of $ 6,892,924,000, about $ 248 million more than in fiscal 1992,²⁷⁴ but about $ 130 million short of the amount requested by the President.²⁷⁵ The $ 1,036,920,000 [23 ELR 10025] Bureau of Land Management appropriations bill passed by Congress increased funding by only about $ 27 million over fiscal 1992,²⁷⁶ and fell short of the President's request by about $ 14 million.²⁷⁷ Funding for the U.S. Forest Service dropped to $ 2,365,311,000 for fiscal 1993, from $ 2,370,639,000 in fiscal 1992,²⁷⁸ and about $ 174 million less than requested by the White House. Congress also passed an agricultural appropriations bill, H.R. 5487,²⁷⁹ which prohibits the use of appropriated funds to enroll land in the wetlands reserve or conservation reserve program beyond that enrolled as a result of sign-ups conducted in 1992.²⁸⁰

Conclusion

The 102d Congress may forever be known as the "gridlock Congress." All three of the principal environmental statutes before it failed to win reauthorization. Bills addressing lender liability under CERCLA, cabinet-level status for EPA, and long, overdue mining reform all became mired in political controversy. However, Congress did pass an energy bill that is sure to impact Americans in almost every aspect of their daily lives for years to come.

In addition, it may turn out that the 102d Congress laid the groundwork for an especially active 103d Congress. During the 103d Congress, the Democrats will control both houses of Congress and the White House for the first time since December 1980, when they enacted the landmark Superfund legislation. The 102d Congress may have held the hearings and defined the issues that will shape what the 103d Congress does.

1. See Mike McQueen, War May Help Push Energy Strategy to Center Stage, ENVTL. & ENERGY STUD. INST. SPECIAL REP., Jan. 25, 1991, at 11.

2. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA 004-050.

3. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA 003-071.

4. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA 002-027.

5. Pub. L. No. 102-486, 106 Stat. 2776.

6. Telephone Interview with the U.S. House of Representatives Office of Legislative Information (Oct. 30, 1992) (telephone number available to public (202) 225-1772) [hereinafter October 1992 LEGIS].

7. 137 CONG. REC. S1216, S1217 (daily ed. Jan. 29, 1991) (statement of Pres. Bush).

8. Id.

9. 137 CONG. REC. S1505 (daily ed. Feb. 5, 1991).

10. 102d Cong., 1st Sess. (1991).

11. 137 CONG. REC. S1505 (daily ed. Feb. 5, 1991).

12. S. 341, supra note 10, tit. III.

13. Id. tit. IV.

14. Id. tit. XI.

15. Jaime Steve, Watkins Speaks on Bush Energy Plan, ENVTL. & ENERGY STUD. INST. WKLY. BULL., Feb. 18, 1991, at B4, B5.

16. S. 341, supra note 10, tit. IX.

17. Id. tit. XII.

18. Id. tit. XIII.

19. Id. tit. XV.

20. 15 U.S.C. §§ 79 to 79z-6 (1988).

21. Steve, supra note 15.

22. S. 341, supra note 10, tit. XI.

23. Id. tit. VII. See also Steve, supra note 15.

24. 137 CONG. REC. H854 (daily ed. Feb. 4, 1991).

25. 102d Cong., 1st Sess. (1991).

26. Id.

27. Id.

28. Id.

29. Id. Rep. Sharp's purpose in introducing five separate bills, rather than one complete bill, was to avoid a presidential veto by allowing representatives to select from a variety of proposals. Steve, supra note 15.

30. 137 CONG. REC. E382 (daily ed. Feb. 4, 1991) (statement of Rep. Sharp).

31. Id.

32. Id.

33. Id.

34. Id.

35. 137 CONG. REC. E391, E392 (daily ed. Feb. 4, 1991) (statement of Rep. Sharp).

36. 137 CONG. REC. E395 (daily ed. Feb. 4, 1991) (statement of Rep. Sharp).

37. 137 CONG. REC. E385 (daily ed. Feb. 4, 1991) (statement of Rep. Sharp).

38. 137 CONG. REC. E389 (daily ed. Feb. 4, 1991) (statement of Rep. Sharp).

39. Mike McQueen, Watkins to Defend Energy Strategy, ENVTL. & ENERGY STUD. INST. WKLY. BULL., Feb. 25, 1991, at B10.

40. Id.

41. Id.

42. Id.

43. Id.

44. Id. at B9-B10.

45. 137 CONG. REC. S2771 (daily ed. Mar. 6, 1991); 137 CONG. REC. H1455 (daily ed. Mar. 6, 1991).

46. 102d Cong., 1st Sess. (1991).

47. Id.

48. Steve Gorman, Sweeping Energy Bills Advance in Both Houses, ENVTL. & ENERGY STUD. INST. SPECIAL REP., Aug. 6, 1991, at 18.

49. Jaime Steve & Steve Daniels, House Panel Completes Energy Package, ENVTL. & ENERGY STUD. INST. SPECIAL REP., Nov. 6, 1991, at 1.

50. Leslie Ann Duncan et al., ANWR Vote Set in Energy Bill Markup, ENVTL. & ENERGY STUD. INST. WKLY. BULL., May 20, 1991, at B3, B5.

51. Id.

52. Id.

53. Jaime Steve & Leslie Ann Duncan, Energy Strategy Bill Clears Senate Committee, ENVTL. & ENERGY STUD. INST. SPECIAL REP., May 29, 1991, at 1, 2.

54. Id.

55. Id.

56. Id. at 3.

57. Id. at 1.

58. 137 CONG. REC. S7169 (daily ed. June 5, 1991).

59. 102d Cong., 1st Sess. (1991).

60. 137 CONG. REC. S7111-69 (daily ed. June 5, 1991).

61. 137 CONG. REC. S7111 (daily ed. June 5, 1991).

62. Steve Gorman, National Energy Security Act of 1991 — S 1220, ENVTL. & ENERGY STUD. INST. WKLY. BULL., Oct. 28, 1991, at A2.

63. 137 CONG. REC. S15733-61, S15765-67, S15788 (daily ed. Nov. 1, 1991).

64. Steve Gorman & Jaime Steve, National Energy Security Act of 1991 — S 1220, ENVTL. & ENERGY STUD. INST. WKLY. BULL., Nov. 4, 1991, at A5.

65. 137 CONG. REC. S15754-55 (daily ed. Nov. 1, 1991).

66. 137 CONG. REC. S15788 (daily ed. Nov. 1, 1991) (statement of Sen. Mitchell).

67. See Gorman & Steve, supra note 64.

68. 137 CONG. REC. S607 (daily ed. Jan. 29, 1992).

69. 102d Cong., 2d Sess. (1992).

70. National Energy Security Act of 1992 — S 2166, ENVTL. & ENERGY STUD. INST. SPECIAL REP., Feb. 3, 1992, at 1.

71. Id. S. 2166 also lacked its predecessor's provisions on recycling used oil and reducing the requirements for Clean Air Act compliance by electric utilities. Id.

72. 137 CONG. REC. S1696 (daily ed. Feb. 19, 1992).

73. Steve Daniels & Lucy Harvey, National Energy Security Act of 1992, ENVTL. & ENERGY STUD. INST. SPECIAL REP., Mar. 4, 1992, at 1.

74. See 137 CONG. REC. D513 (daily ed. May 1, 1991); 137 CONG. REC. D521 (daily ed. May 2, 1991).

75. See 137 CONG. REC. D550 (daily ed. May 8, 1991); Jaime Steve, Sharp Panel Eyes Nuclear Issues, ENVTL. & ENERGY STUD. INST. WKLY. BULL., May 6, 1991, at B16.

76. See 137 CONG. REC. D607 (daily ed. May 16, 1991); 137 CONG. REC. D667 (daily ed. May 29, 1991).

77. See 137 CONG. REC. D667 (daily ed. May 29, 1991); 137 CONG. REC. D688 (daily ed. June 4, 1991); Jaime Steve, Panel Reviews Energy Bills, ENVTL. & ENERGY STUD. INST. WKLY. BULL., May 27, 1991, at B4.

78. See 137 CONG. REC. D698 (daily ed. June 5, 1991).

79. See 137 CONG. REC. D742 (daily ed. June 12, 1991).

80. See 137 CONG. REC. D754 (daily ed. June 13, 1991).

81. See 137 CONG. REC. D785 (daily ed. June 19, 1991).

82. See 137 CONG. REC. D821 (daily ed. June 25, 1991).

83. See 137 CONG. REC. D834 (daily ed. June 26, 1991).

84. Jaime Steve, Sharp Panel Marks Up Yucca Mt. Bill, ENVTL. & ENERGY STUD. INST. WKLY. BULL., Sept. 9, 1991, at B4.

85. Id.

86. 137 CONG. REC. D1270 (daily ed. Oct. 17, 1991); Jaime steve, Uranium Bill Set for House Markup, ENVTL. & ENERGY STUD. INST. WKLY. BULL., Oct. 14, 1991, at B9.

87. See Jaime Steve, House Puts Energy Markup on Hold, ENVTL. & ENERGY STUD. INST. WKLY. BULL., Sept. 16, 1991, at B3.

88. Daniels & Harvey, supra note 73, at 2.

89. Jaime Steve & Steve Daniels, House Panel Completes Energy Package, ENVTL. & ENERGY STUD. INST. SPECIAL REP., Nov. 6, 1991, at 1.

90. Id. at 2.

91. Id. at 2-6.

92. Id. at 4.

93. Lucy Harvey & Steve Daniels, Energy Bill Moving Through House, ENVTL. & ENERGY STUD. INST. WKLY. BULL., Mar. 16, 1992, at B15, B16.

94. Lucy Harvey, House Science Weighs Energy Bill, ENVTL. & ENERGY STUD. INST. WKLY. BULL., Mar. 30, 1992, at B11.

95. Harvey & Daniels, supra note 93.

96. Id. at B16-B17.

97. Steve Gorman, House Energy Bill Nears Rules Panel, ENVTL. & ENERGY STUD. INST. WKLY. BULL., May 11, 1992, at B1.

98. Id. at B2.

99. Steve Gorman & Lucy Harvey, Comprehensive National Energy Policy — HR 776, ENVTL. & ENERGY STUD. INST. WKLY. BULL., May 25, 1992, at A1, A2.

100. Id.

101. Steve Gorman & Steve Daniels, Comprehensive National Energy Policy Act — HR 776, ENVTL. & ENERGY STUD. INST. WKLY. BULL., May 18, 1992, at A6, A7.

102. 138 CONG. REC. H3653 (daily ed. May 20, 1992).

103. 138 CONG. REC. H3660 (daily ed. May 20, 1992).

104. 138 CONG. REC. H3716 (daily ed. May 21, 1992).

105. 138 CONG. REC. H3748-57 (daily ed. May 27, 1992).

106. 138 CONG. REC. H3811 (daily ed. May 27, 1992).

107. Steve Gorman, Comprehensive National Energy Policy — HR 776, ENVTL. & ENERGY STUD. INST. WKLY. BULL., June 29, 1992, at A7-A8.

108. See id. at A8.

109. Id.

110. 138 CONG. REC. S10876 (daily ed. July 30, 1992); Steve Gorman, Energy Conference May Get Under Way, ENVTL. & ENERGY STUD. INST. WKLY. BULL., Aug. 3, 1992, at B10.

111. 138 CONG. REC. S10876 (daily ed. July 30, 1992).

112. Steve Gorman & Lucy Harvey, Congress Clears Energy Bill in Final Hours of the Session, ENVTL. & ENERGY STUD. INST. SPECIAL REP., Oct. 14, 1992, at 2.

113. Steve Daniels & Lucy Harvey, Comprehensive National Energy Policy Act Conference Report, ENVTL. & ENERGY STUD. INST. SPECIAL REP., Oct. 1, 1992, at 2.

114. Id. at 3.

115. Id.

116. Id.

117. Id. at 4.

118. Id. Conferees approved a provision requiring EPA to issue nuclear waste disposal standards to protect the public from radiation releases at the site. Id.

119. 138 CONG. REC. S17643 (daily ed. Oct. 8, 1992) (statement of Sen. Johnston).

120. 138 CONG. REC. S17615 (daily ed. Oct. 8, 1992) (statement of Sen. Wallop).

121. Daniels & Harvey, supra note 113, at 6.

122. Id. at 7.

123. Id. at 9.

124. 138 CONG. REC. S17645 (daily ed. Oct. 8, 1992) (statement of Sen. Johnston).

125. Steve Daniels, Energy Bill Has Production, Conservation Tax Incentives, ENVTL. & ENERGY STUD. INST. SPECIAL REP., Oct. 14, 1992, at 3.

126. 138 CONG. REC. H11449 (daily ed. Oct. 5, 1992).

127. 138 CONG. REC. S17658 (daily ed. Oct. 8, 1992).

128. October 1992 LEGIS, supra note 6.

129. Jim Ketcham-Colwill, RCRA Bill a Top Priority for Environment Panels, ENVTL. & ENERGY STUD. INST. SPECIAL REP., Jan. 25, 1991, at 8, 9.

130. Id.

131. Jim Ketcham-Colwill, Out-of-State Waste Spawns Ill Will, ENVTL. & ENERGY STUD. INST. WKLY. BULL., Apr. 29, 1991, at B14, B15.

132. Jim Ketcham-Colwill, Administration Stance May Hamper RCRA Bills, ENVTL. & ENERGY STUD. INST. SPECIAL REP., Dec. 4, 1991, at 16.

133. See, e.g., Chemical Waste Management, Inc. v. Hunt, 119 L. Ed. 2d 121, 22 ELR 20909 (U.S. 1992); Fort Gratiot Sanitary Landfill v. Michigan Dep't of Natural Resources, 22 ELR 20904 (U.S. 1992); BFI Medical Waste Sys. v. Whatcom County, 756 F. Supp. 480, 21 ELR 21018 (W.D. Wash. 1991); Diamond Waste, Inc. v. Monroe County, 731 F. Supp. 505, 20 ELR 20717 (M.D. Ga. 1990), aff'd, 939 F.2d 941, 21 ELR 21411 (11th Cir. 1991); and Shayne Bros. v. Prince George's County, 556 F. Supp. 182, 13 ELR 20617 (D. Md. 1983).

134. 137 CONG. REC. S5137 (daily ed. Apr. 25, 1991).

135. 102d Cong., 1st Sess. (1991).

136. Id. § 101.

137. Id. tits. III, IV, and V.

138. Jim Ketcham-Colwill, Proposals Would Reduce Toxics Use, ENVTL. & ENERGY STUD. INST. WKLY. BULL., July 22, 1991, at B18.

139. Id.

140. 136 CONG. REC. S13298-311 (daily ed. Sept. 18, 1990).

141. Ketcham-Colwill, supra note 132.

142. 137 CONG.REC. D695 (daily ed. June 5, 1991).

143. 137 CONG. REC. D1107 (daily ed. Sept. 17, 1991).

144. Ketcham-Colwill, supra note 132.

145. Id.

146. Id.

147. Jim Ketcham-Colwill, RCRA Markups Expected in March in Both Houses, ENVTL. & ENERGY STUD. INST. SPECIAL REP., Jan. 23, 1992, at 11, 12.

148. 137 CONG. REC. S13966 (daily ed. Sept. 30, 1991) (statement of Sen. Baucus).

149. 137 CONG. REC. S13966 (daily ed. Sept. 30, 1991) (statement of Sen. Coats).

150. Jim Ketcham-Colwill, House Panel Approves Solid Waste Bill, ENVTL. & ENERGY STUD. INST. SPECIAL REP., Apr. 2, 1992, at 1, 2.

151. Jim Ketcham-Colwill, RCRA Markup Set in Senate Panel, ENVTL. & ENERGY STUD. INST. WKLY. BULL., Apr. 27, 1992, at B15, B16.

152. Id.

153. Id.

154. Jim Ketcham-Colwill, RCRA Markup Likely to Resume, ENVTL. & ENERGY STUD. INST. WKLY. BULL., May 11, 1992, at B24.

155. 138 CONG. REC. S8659 (daily ed. June 23, 1992).

156. 138 CONG. REC. S8500 (daily ed. June 18, 1992).

157. 102d Cong., 2d Sess. (1992).

158. Chemical Waste Management, Inc. v. Hunt, 119 L. Ed. 2d 121, 22 ELR 20909 (U.S. 1992); Fort Gratiot Sanitary Landfill v. Michigan Dep't of Natural Resources, 22 ELR 20904 (U.S. 1992).

159. 138 CONG. REC. S8533 (daily ed. June 18, 1992) (statement of Sen. Baucus).

160. Id.

161. 138 CONG. REC. S10168 (daily ed. July 23, 1992). S. 2877 did not pass the House before the 102d Congress adjourned. 138 CONG. REC. D1337 (daily ed. Oct. 29, 1992).

162. Telephone Interview with the U.S. House of Representatives Office of Legislative Information (Nov. 6, 1992) (telephone number available to public (202) 225-1772) [hereinafter November 1992 LEGIS].

163. 102d Cong., 1st Sess. (1991).

164. 137 CONG. REC. H10930 (daily ed. Nov. 22, 1991).

165. Ketcham-Colwill, supra note 147.

166. Id.

167. Id.

168. Jim Ketcham-Colwill, Swift RCRA Bill Set for Hearing, ENVTL. & ENERGY STUD. INST. WKLY. BULL., Mar. 9, 1992, at B19, B20.

169. See Jim Ketcham-Colwill, Swift Panel to Start RCRA Markup, ENVTL. & ENERGY STUD. INST. WKLY. BULL., Mar. 23, 1992, at B12.

170. Id.

171. Id.

172. Ketcham-Colwill, supra note 150, at 1.

173. Forty percent of the paper in the waste stream would need to be recycled by the end of 1995. Id.

174. Id.

175. Id.

176. Id.

177. Jim Ketcham-Colwill, Amendment to Allow States and Localities to Control Imports of Out-of-State Municipal Solid Waste — S ?, ENVTL. & ENERGY STUD. INST. WKLY. BULL., June 8, 1992, at A2.

178. Id.

179. Id. RCRA subtitle D grants EPA authority to regulate nonhazardous solid wastes. 42 U.S.C. §§ 6941-6949a, ELR STAT. RCRA 027-030.

180. Jim Ketcham-Colwill, Solid Waste Bill Clears House Committee, ENVTL. & ENERGY STUD. INST. SPECIAL REP., July 16, 1992, at 1.

181. Id.

182. Id.

183. Id. at 4.

184. Erin McNeill, Efforts to Revise Solid Waste Laws Founder, ENVTL. & ENERGY STUD. INST. SPECIAL REP., Oct. 14, 1992, at 15, 16.

185. Steve Daniels, Clean Water Reauthorization Stalls; Minor Bills Approved, ENVTL. & ENERGY STUD. INST. SPECIAL REP., Oct. 14, 1992, at 16.

186. Mike McQueen, Wetlands, Sewer Funding Top Clean Water Debate, ENVTL. & ENERGY STUD. INST. SPECIAL REP., Jan. 25, 1991, at 15.

187. Steve Daniels & Leslie Ann Duncan, Clean Water Reauthorization Progresses Toward Markup, ENVTL. & ENERGY STUD. INST. SPECIAL REP., Aug. 6, 1991, at 14.

188. Daniels, supra note 185.

189. 137 CONG. REC. S5899 (daily ed. May 15, 1991).

190. 102d Cong., 1st Sess. (1991).

191. 137 CONG. REC. S5903 (daily ed. May 15, 1991) (statement of Sen. Baucus).

192. Id.

193. S. 1081, supra note 190, § 11.

194. Id. § 8.

195. Id. § 12.

196. 137 CONG. REC. S5904 (daily ed. May 15, 1991) (statement of Sen. Baucus).

197. S. 1081, supra note 190, § 27.

198. 137 CONG. REC. S5904 (daily ed. May 15, 1992) (statement of Sen. Baucus).

199. Steve Daniels & Leslie Ann Duncan, Wetlands Accord Needed to Move Clean Water Bill, ENVTL. & ENERGY STUD. INST. SPECIAL REP., Jan. 23, 1992, at 19.

200. Daniels, supra note 185.

201. 137 CONG. REC. H2469 (daily ed. Apr. 23, 1991).

202. 102d Cong., 1st Sess. (1991).

203. 137 CONG. REC. H2469 (daily ed. Apr. 23, 1991).

204. Daniels, supra note 185.

205. Daniels, supra note 185.

206. 137 CONG. REC. H11889 (daily ed. Nov. 26, 1991). Two other notable bills to amend the ESA were introduced during the 102d Congress. H.R. 3092, introduced by Rep. James V. Hansen (R-Utah), and H.R. 4058, introduced by Rep. William E. Dannemeyer (R-Cal.), would have required the U.S. Department of the Interior to consider economic factors in its decisions to list species as threatened or endangered. 137 CONG. REC. H6137 (daily ed. July 30, 1991); and 137 CONG. REC. E4165 (daily ed. Nov. 26, 1991) (statement of Rep. Dannemeyer).

207. 102d Cong., 1st Sess. (1991).

208. 137 CONG. REC. E4125 (daily ed. Nov. 26, 1991) (statement of Rep. Studds).

209. Id.

210. Id.

211. Leslie Ann Duncan, Northwest Forest Dilemma Left Unresolved in Congress, ENVTL. & ENERGY STUD. INST. SPECIAL REP., Oct. 14, 1992, at 21-23.

212. Id. at 23.

213. Id.

214. Id.

215. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA 007-075.

216. 102d Cong., 1st Sess. (1991).

217. 137 CONG. REC. H55 (daily ed. Jan. 3, 1991).

218. Steve Gorman, Status Quo Maintained for EPA, Quayle Council, ENVTL. & ENERGY STUD. INST. SPECIAL REP., Oct. 14, 1992, at 8.

219. 102d Cong., 1st Sess. (1991).

220. 137 CONG. REC. S2507 (daily ed. Feb. 28, 1991).

221. 137 CONG. REC. S14028 (daily ed. Oct. 1, 1991).

222. November 1992 LEGIS, supra note 162.

223. Mary Ellen Driscoll et al., EPA-to-Cabinet Bill Dies; DOD to Fund Environment Research, ENVTL. & ENERGY STUD. INST. SPECIAL REP., Nov. 1, 1990, at 21.

224. Gorman, supra note 218, at 9.

225. 102d Cong., 2d Sess. (1992).

226. Steve Cook, Superfund Liability Changes Die at End of Congress, ENVTL. & ENERGY STUD. INST. SPECIAL REP., Oct. 14, 1992, at 8.

227. 138 CONG. REC. S9392 (daily ed. July 1, 1992).

228. 102d Cong., 2d Sess. (1992).

229. Cook, supra note 226, at 8.

230. 30 U.S.C. §§ 22-54 (1988).

231. Id. § 22.

232. Id. § 26.

233. Id. § 37.

234. Mark Squillace, The Enduring Vitality of the General Mining Law of 1872, 18 ELR 10261, 10262 (July 1988).

235. 102d Cong., 1st Sess. (1991).

236. Steve Daniel, Mining Law Reform Stalls; Coal, Oil Shale Items Pass, ENVTL. & ENERGY STUD. INST. SPECIAL REP., Oct. 14, 1992, at 6.

237. Id.

238. 102d Cong., 2d Sess. (1992).

239. See 138 CONG. REC. S11524-28, S11550-74 (daily ed. Aug. 5, 1992); 138 CONG. REC. S11725 (daily ed. Aug. 6, 1992).

240. Daniel, supra note 236.

241. Id.

242. See supra notes 6-128 and accompanying text.

243. 102d Cong., 1st Sess. (1991).

244. Id.

245. Id.

246. Pub. L. No. 102-402, 106 Stat. 1961.

247. See 138 CONG. REC. S14092 (daily ed. Sept. 18, 1992) (statement of Sen. Chafee).

248. Pub. L. No. 102-386, 106 Stat. 1505.

249. See 138 CONG. REC. H9136 (daily ed. Sept. 23, 1992) (statement of Rep. Swift).

250. Pub. L. No. 102-426, 106 Stat. 2174.

251. 138 CONG. REC. D1350 (daily ed. Oct. 29, 1992).

252. 102d Cong., 1st Sess. (1991).

253. Pub. L. No. 102-575, 106 Stat. 4600.

254. See 138 CONG. REC. H11516 (daily ed. Oct. 5, 1992) (statement of Rep. Studds).

255. Id.

256. Leslie Ann Duncan & Rich Hayes, Two Giant Water Projects Packages Are Cleared, ENVTL. & ENERGY STUD. INST. SPECIAL REP., Oct. 14, 1992, at 23, 24.

257. Id.

258. See 138 CONG. REC. H11500 (daily ed. Oct. 5, 1992) (statement of Rep. Miller).

259. Duncan & Hayes, supra note 256.

260. See 138 CONG. REC. H11505 (daily ed. Oct. 5, 1992) (statement of Rep. Rhodes).

261. See 138 CONG. REC. H11501 (daily ed. Oct. 5, 1992) (statement of Rep. Miller).

262. Pub. L. No. 102-240, 105 Stat. 1914.

263. Steve Cook, Conferees Agree on Highway Funds, ENVTL. & ENERGY STUD. INST.SPECIAL REP., Dec. 4, 1991, at 14.

264. Id.

265. Id.

266. Intermodal Surface Transportation Efficiency Act of 1991 § 1302(d)(3).

267. Cook, supra note 263.

268. 102d Cong., 1st Sess. (1991). S. 1671 was enacted as the Waste Isolation Pilot Plant Land Withdrawal Act of 1992. Pub. L. No. 102-579, 106 Stat. 4777.

269. 138 CONG. REC. S17956 (daily ed. Oct. 8, 1992) (statement of Sen. Johnston).

270. 102d Cong., 2d Sess. (1992).

271. Housing and Community Development Act of 1992, Pub. L. No. 102-550, 106 Stat. 3672.

272. See 138 CONG. REC. S17908 (daily ed. Oct. 8, 1992).

273. Id.

274. 138 CONG. REC. H9470 (daily ed. Sept. 25, 1992).

275. Steve Gorman, Appropriators Constrained by Tight Spending Caps, ENVTL. & ENERGY STUD. INST. SPECIAL REP., Oct. 14, 1992, at 27, 30.

276. 138 CONG. REC. H9872 (daily ed. Sept. 30, 1992).

277. See Gorman, supra note 241, at 28. The bill also appropriated $ 11,849,000 for the National Wildlife Refuge fund; $ 4,685,000 for the natural resource damage assessment and restoration fund; $ 9,250,000 for the North American wetlands conservation fund; $ 6,621,000 for the cooperative endangered species conservation fund; and $ 189,541,000 for the abandoned mine reclamation fund. 138 CONG. REC. H9872 (daily ed. Sept. 30, 1992).

278. 138 CONG. REC. H9875 (daily ed. Sept. 30, 1992).

279. 102d Cong., 2d Sess. (1992). H.R. 5487 was enacted as the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act. Pub. L. No. 102-341, 106 Stat. 873 (1992).

280. Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act § 728.