25 ELR 10350 | Environmental Law Reporter | copyright © 1995 | All rights reserved

The Environment and the Contract

John Pendergrass, Paul Locke, and James McElfish are senior attorneys with the Environmental Law Institute. The authors thank Meghan Clancy-Hepburn for her research assistance. The authors wish to thank the W. Alton Jones Foundation and the George Gund Foundation for supporting, in part, the work that underlies this Dialogue.

[25 ELR 10350]

The 104th Congress opened with great attention to the Republican "Contract With America" (the Contract), which the House leadership promised would pass the House of Representatives within the first 100 days. The Contract was first fleshed-out on January 4, 1995, when 10 bills were introduced.¹ After a flurry of legislative activity, rushed hearings, and abbreviated floor debate, the House fulfilled its promise to act on all 10 bills, finishing more than one week ahead of schedule.²

This Dialogue focuses on four parts of the Contract that are particularly relevant to environmental law and policy. All four were addressed by the Job Creation and Wage Enhancement Act, introduced as H.R. 9.³ They are: (1) limitations on congressional imposition of "unfunded mandates" on states and local governments;⁴ (2) statutory requirements for risk assessment and cost-benefit analysis; (3) "regulatory reform"; and (4) federal payments to property owners affected by regulation. For each of these four parts, the Dialogue describes the bill's original provisions, discusses the legislation's development in the House, and summarizes related developments in the Senate and executive branch.⁵

Concerns about unfunded mandates, assessment of risks, costs and benefits, regulatory reform, and effects of environmental regulation on property owners are not new; legislation to address them was introduced during the 103d Congress, or even earlier.⁶ Moreover, they are likely to be central to debates about any federal environmental legislation enacted in the next several years.⁷ After describing the Contract legislation, this Dialogue explores these issues. In particular, it evaluates the potential for shifts in the benefits and burdens of environmental protection, creation of new rights, and alteration or elimination of old ones, changes in the relationships among the states and federal government, and shifts in the balance among executive agencies.

Finally, this Dialogue raises the question of whether, and to what extent, the environment may benefit from the changes set forth in the Contract. This fundamental question should be asked of all federal environmental legislation — will it make the environment better? Rather than [25 ELR 10351] any ideological touchstone, this is the issue that deserves our greatest attention.

Unfunded Mandates

Legislation as Enacted

President Clinton signed the Unfunded Mandates Reform Act of 1995 (UMRA) on March 22, 1995, making it the first element of the Contract to become law. UMRA was introduced in the Senate (as S. 1) and in the House (as H.R. 5) in response to widely publicized complaints by states and cities. The essence of these complaints was that "federal action increasingly has relied on states to carry out policy initiatives without providing necessary funding to pay for these programs, thereby robbing states of their right and responsibility to set priorities and develop policies that best meet local needs."⁸ The National Governors Association recommended that "Congress should act to guarantee that costs to state and local governments associated with all new mandates are reimbursed by the federal government."⁹

In UMRA, Congress paid lip service to these concerns without taking much concrete action. In the Act's preamble, Congress stated its intent "[t]o curb the practice of imposing unfunded Federal mandates on States and local governments . . . and to ensure that the Federal Government pays the costs incurred by those governments in complying with certain requirements under Federal statutes and regulations . . . "¹⁰ But UMRA does not ensure federal payment of state and local costs attributable to federal mandates, although it might "curb the practice of imposing" such mandates. A more accurate description of the Act's purpose would be "to end the imposition, in the absence of full consideration by Congress," of federal mandates without "adequate funding."¹¹ UMRA's real effect should be to force Congress to think about what it is about to do before doing it.

Most of this legislation is, in fact, merely an "exercise of the rulemaking power of the Senate and the House of Representatives,"¹² and each house retains the right to change these rules with respect to its own operations "at any time, in the same manner, and to the same extent as any other rule."¹³ The Act does not provide funding for unfunded mandates. Rather, it creates procedural hurdles for any bill that would impose new mandates exceeding certain thresholds on state, local, tribal governments, or on the private sector.¹⁴ It allows Congress to pass bills containing unfunded mandates, so long as it overcomes those procedural hurdles.¹⁵

UMRA's primary procedural mechanism for forcing Congress to consider the implications of new unfunded mandates is the point of order. Under the Act, it is not "in order" for the House or Senate to consider any bill a committee reports unless the committee has published a statement from the Congressional Budget Office (CBO) on the costs of any federal mandates in the bill.¹⁶ Nor is it in order for either house to consider a bill that would increase federal mandates to state, local, and tribal governments by more than $ 50 million annually unless the bill provides federal funding to cover the increased costs.¹⁷

The most significant change UMRA made to existing law governing relations between federal agencies, states, and localities is a relatively minor change to the Federal Advisory Committee Act (FACA),¹⁸ which applies to the formation, use, and meetings of groups used to advise federal agencies that include any person who is not a full-time employee of the federal government.¹⁹ The Act creates an exception to FACA for meetings held exclusively between federal officials and elected state, local, or tribal government representatives, or designated employees authorized to act on behalf of the elected representatives.²⁰ Meetings are exempt only if held solely to exchange views, information, or advice about implementing federal programs that share responsibilities among the different governments.²¹ Exempting meetings among officials from federal, state, local, and tribal governments may be seen as a move away from the fundamental concept that democracy works best when government is open. On the other hand, the exemption, [25 ELR 10352] aimed at allowing governments to carry out their shared responsibilities effectively, is narrow. Experience with federal environmental laws has demonstrated that citizens and regulated parties can reap substantial benefits when different governments coordinate their implementation efforts. There is a legitimate need for officials from different levels of government to meet in private to discuss shared responsibilities and UMRA's FACA exemption seems to meet that need without unreasonably weakening the policy in favor of open government.²²

Ramifications

Despite UMRA's enactment, Congress has not resolved the underlying issue of unfunded mandates, at least as it applies to most environmental legislation. UMRA defines a mandate as an enforceable, nonvoluntary duty on a state, local, or tribal government.²³ A key question in most environmental legislation is: Are a state's duties voluntary? Most federally delegated environmental programs allow states to elect to operate their own programs in lieu of federal program, however, the only consequence is direct federal permitting and regulation of facilities.²⁵ Thus, state implementation of most federal environmental laws is voluntary; provisions of federal law that impose conditions on states' abilities to exercise implementation authority should not qualify as mandates under UMRA.

To a large extent, passing UMRA was easy because Congress made none of the hard choices. Those choices will come when Congress favors substantive legislation that directly regulates state and local facilities but the CBO tells it that costs to states would exceed the Act's threshold. Congress will then have three choices: pass legislation that provides funding to cover state and local compliance costs (perhaps imposing new taxes or cutting other programs to cover this extra federal expense); pass the legislation without funding and "pass the buck" to the states; or drop the legislation and lose the benefits it would have provided. Clarifying that these are essentially the only options available to Congress is laudable, but UMRA seems an unduly complicated way of making a rather simple point. The effort devoted to the unfunded-mandates issue might better serve the country if concentrated on finding ways of achieving the substantive goals of the "mandating" federal programs more efficiently and effectively.

Regulatory Impact, Risk Assessment, and Cost-Benefit Analyses

The Contract legislation builds on an existing legacy of procedural and quantitative approaches to rationalizing regulatory choices. Rather than streamlining such processes, however, the legislation would erect new and elaborate additions to the existing edifice.

President Reagan introduced the term "regulatory impact analysis" in Executive Order 12291, which required cost-benefit analyses of proposed regulations.²⁶ President Clinton replaced that order with a similar one, requiring the same type of cost-benefit analyses but setting slightly different thresholds.²⁷ Both executive orders provide for Office of Management and Budget (OMB) oversight of federal rulemaking. Legislation introduced under the Contract, including UMRA, provides (or would provide) for additional cost-benefit analyses of certain types of proposed regulations.

Cost-Benefit Analysis Under UMRA

UMRA Title II requires federal agencies to do a "qualitative and quantitative assessment of the anticipated costs and benefits" of any proposed rule that includes a federal mandate²⁸ that may cause state, local, and tribal governments to spend, in the aggregate, $ 100 million or more annually, or that may cause the private sector to spend $ 100 million or more annually.²⁹ This version of cost-benefit analysis must include the costs and benefits to state, local, and tribal governments, and the private sector, and the mandate's effect on health, safety, and the natural environment.³⁰ The [25 ELR 10353] assessment must also include estimates of compliance costs, effects on the economy, and the extent to which federal financial assistance would defray costs to state, local, and tribal governments.³¹

After preparing the cost-benefit assessment, the agency must "identify and consider a reasonable number of regulatory alternatives and . . . select the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule,"³² unless doing so would be inconsistent with law, or the agency publishes with the final rule an explanation of why it chose not to adopt the least costly, most cost-effective, or least burdensome alternative.³³

UMRA Title IV governs judicial review of agency compliance with the Act's cost-benefit requirements. The courts' authority is limited to compelling agencies to prepare the cost-benefit statements required by UMRA § 202.³⁴ In reviewing rules under other federal laws, courts may not invalidate or otherwise affect regulations on the basis of the inadequacy, or absence, of statements required by § 202.³⁵ Congress clearly intended review of regulatory action to be governed by other provisions of federal law.³⁶

Regulatory Impact Analysis

Legislation Introduced in the House. Title VII (entitled "Regulatory Impact Analyses") of the original H.R. 9, labelled the Administrative Procedure Reform Act of 1995, would have amended the Administrative Procedure Act (APA) to add several procedural and analytical steps to the process agencies use to make policy and promulgate rules.³⁷ First, this title would have added a new step at the beginning of the rulemaking process, requiring an agency to publish a notice of intent at least 90 days before publication of a proposed major rule.³⁸ The notice of intent was to include, to the extent possible: an explanation of the necessity, appropriateness, and reasonableness of the rule; a description of the current condition that the rule would address and how the rule would affect that condition; and a discussion of alternative approaches that the agency considered or that interested persons suggested and the reasons for the rejection of those alternatives.³⁹ The bill would have defined a major rule as one affecting more than 100 people or causing any single person or entity to spend more than $ 1 million annually in compliance costs.⁴⁰

The title would also have added additional procedures concerning public comments, requiring agencies to: (1) hold public hearings on rules that more than 100 persons, acting individually, submit comments on;⁴¹ (2) publish responses to comments received on proposed rules;⁴² and (3) extend comment periods for 30 days when, during the first 30 days after publication of the Notice of Intent for a major rule or publication of a proposed rule, more than 100 persons individually ask for extensions.⁴³

The original bill's most significant provision was § 7004, which would have required agencies to comply with Executive Order 12291 as it existed on September 29, 1993 — the day before President Clinton's version replaced it. The bill would have supplemented Executive Order 12291's provisions governing the content of a regulatory impact analysis, adding 13 items not included in the order.⁴⁴ In addition to reviewing regulatory impact analyses, the OMB would have been responsible for reviewing the quality of the writing for major rules. Under the original bill an agency was, to the extent practicable, not to publish a proposed major rule or regulatory impact analysis unless the OMB certified that the rule: (1) was easily readable; (2) was written to provide adequate notice of its content to people with some expertise in the subject matter; (3) was grammatically acceptable; (4) used sentences that were as short as practicable and sensibly organized; and (5) did not contain double negatives, convoluted phrasing, confusing cross-references, unreasonably complex language, or undefined terms of art with multiple meanings.⁴⁵

As Passed by the House. The House passed H.R. 926, Title II of which covers regulatory impact analyses.⁴⁶ H.R. 926 was then re-passed as part of a revised H.R. 9. The final House version would codify Executive Order 12291, with modifications. The bill would codify the order's definition of major rule except that it would lower the threshold for effect on the economy to $ 50 million.⁴⁷ As in the original bill, an [25 ELR 10354] agency planning to propose a major rule would be required to publish a notice of intent to engage in rulemaking at least 90 days before publishing the proposed major rule.⁴⁸ The notice's contents, however, would differ in several respects from those specified by the original bill. As revised, H.R. 9 would replace the vague requirement of a description of the rule's "appropriateness" with a requirement to describe the legal authority for the rule, consistent with existing requirements for proposed and final rules.⁴⁹ While the original bill required a description of alternatives considered by the agency or suggested by interested persons, the version passed by the House is more action-forcing. It would require the agency to analyze alternative approaches, including market mechanisms, and to explain its reasons for not selecting the least cost alternative that would achieve the rulemaking's goal.⁵⁰ Both the original bill and the version that the House passed, however, would require agencies to demonstrate that proposed and final rules adopt the least costly approach.

In the final bill the House substantially reduced the number of required items the original bill would have added to the regulatory impact analysis.⁵¹ Significantly, the final bill added a requirement to describe the potential benefits of the rule, including unquantifiable benefits. This provision was taken directly from the Reagan Executive Order.⁵² Common sense triumphed in the final House bill in at least one instance. The attempt in the original bill to legislate proper grammar and to make the Director of the OMB the Chief Grammarian for the executive branch was abandoned in the bill passed by the House.⁵³

Risk Assessment and Additional Cost-Benefit Requirements

The House passed additional risk-assessment and cost-benefit provisions as H.R. 1022,⁵⁴ focusing on the costs associated with health, safety, and environmental regulations. The bill would force federal agencies to base such regulations on "realistic risk" measurements.

Legislation Introduced in the House. Title III of H.R. 9 was entitled "Risk Assessment and Cost/Benefit Analysis for New Regulations."⁵⁵ It was broadly written, and its findings indicate that it was intended to have wide reach.⁵⁶ If enacted, Title III would have iniitated policy changes on two levels. First, it would have forced federal agencies, including the U.S. Environmental Protection Agency (EPA), to follow certain risk-assessment, characterization, and communication principles, and to develop "guidelines" and "guidance" to implement them.⁵⁷ Second, it would have required that federal agencies prepare risk assessments and cost-benefit analyses for every "major rule" associated with human health, safety, and the environment. The bill's definition of major rule set a fairly low threshold⁵⁸ and would have applied to a considerable number of proposed and final regulations.⁵⁹ Agency heads would have been required to certify assessmenthat the data and methodology used to carry out the risk assessments and cost-benefit analyses contained in final rules met certain specified standards.⁶⁰ [25 ELR 10355] In addition, a significant subset of these analyses would have required peer review by an external panel of experts.⁶¹

House Committee Markup. Title III was referred to three committees — Commerce, Government Reform and Oversight, and Science⁶² — which worked rapidly to mark up the bill. Several rushed hearings were held at which witnesses from industry and the government testified. On February 2, two House subcommittees held a hearing that featured speakers from the Clinton Administration. These Administration spokespeople had four general criticisms of the legislation. First, they maintained that the bill embodied a "rigid cookbook" approach that would generate excessive bureaucracy and red tape. Second, they noted that it would result in excessive litigation, allowing for challenges about whether all of the steps specified in the risk legislation had been met. Third, they argued that it applied too broadly to all agency decisionmaking, instead of focusing on those decisions that risk assessment has traditionally guided. Fourth, they characterized the bill as too prescriptive, arguing that it would freeze science and reduce needed flexibility.⁶³

At this hearing Representative Waxman (D-Cal.) raised concerns that ample time was not being devoted to a thorough analysis of the legislation, given the complexity of the bill. Other witnesses pointed out that other provisions of the Contract, specifically Title V (strengthening the Paperwork Reduction Act) and Title VII (regulatory impact analysis) had significant overlap and implications for Title III. These provisions were being marked up by other committees, and there was no indication that anyone was coordinating legislative efforts or comparing the bills for possible inconsistencies.

On February 8, the Science and Commerce Committees reported out slightly different versions of the bill. These differences were reconciled and H.R. 1022 was brought to the House floor on February 27, 1995. Although H.R. 1022 is similar to Title III of the original H.R. 9 in its tone, style, purposes, and objectives, changes made during the Committee markups altered it in several important ways. First, the Committee broadened the scope and breadth of decisions the bill covers. H.R. 1022 defines "significant risk assessment document" and "significant risk characterization document" to encompass:

* all Superfund cleanup and the Resource Conservation and Recovery Act (RCRA) corrective action risk assessments;⁶⁴

* all proposed and final permit conditions for facility siting or operation imposed pursuant to EPA or Department of the Interior administered laws;

* any regulatory action to place a substance on an official risk as the inttegrated risk information system database;

* all risk-assessment guidelines issued by agencies; and

* all Department of Defense nonmunicipal waste cleanup and restoration plans.

Second, H.R. 1022 would vest the OMB with significant authority to affect the way other executive agencies carry out their responsibilities. Section 103(b)(2)(E) would require the OMB to determine which other federal agencies should be "covered agencies" subject to the bill's requirements. In addition, § 203 would give the OMB authority to issue guidance for cost-benefit analyses that other agencies must follow. Also, the OMB could trigger peer review if it determined that any risk assessment or cost assessment was likely to have a "significant impact on public policy decisions."⁶⁵

Third, the bill contains a set of "decision criteria" that would create a "supermandate" that "notwithstanding any other provision of federal law . . . [would] supplement and, to the extent there is a conflict, supersede the decision criteria for rulemaking otherwise applicable under the statute pursuant to which the rule is promulgated."⁶⁶ Although the exact effects of such a supermandate are not clear, at minimum a supermandate would impose the health and cost-based decision criteria on regulatory actions that had not previously been subject to them, such as technology-based standards promulgated pursuant to the Clean Air Act⁶⁷ and Clean Water Act.⁶⁸

Fourth, a judicial review provision was added.⁶⁹ Although its language is not completely clear, it appears to provide for review of regulatory action under as many as three statutes, including H.R. 1022. The standard for review under H.R. 1022 is "substantial compliance," which could be interpreted as a standard that invites courts to exercise relatively close scrutiny of risk assessments and cost-benefit analyses.

Fifth, the bill defines "covered agencies" to include the U.S. Army Corps of Engineers, the Consumer Product Safety Commission, the Department of Energy, the Department of the Interior, the Department of Transportation (including the National Transportation Safety Board), EPA, the Food and Drug Administration, the Mine Safety and Health Administration, the National Oceanic and Atmospheric Administration, the Nuclear Regulatory Commission, [25 ELR 10356] and the Occupational Safety and Health Administration.⁷⁰ If the OMB determined that an additional agency should be added to the list, that agency would be required to promulgate a rule to establish categories of risk-assessment and risk-characterization documents.⁷¹

Sixth, the bill would require agency risk-assessors to follow specific risk-assessment and risk-characterization principles.⁷² The bill would dictate the contours of the assessment and how it should be communicated. Federal agencies would then have the responsibility of preparing "guidelines" and "guidance" that implements Congress' will.⁷³

House Floor Action. H.R. 1022 passed the House by a huge margin on February 28, 1995.⁷⁴ Discussion regarding the bill was limited; while several floor amendments were offered, most failed.⁷⁵

Senate Consideration. At least six risk-assessment/cost-benefit bills have been introduced in the Senate.⁷⁶ Two have emerged as clear front runners. At presstime, S. 291 had undergone hearings and been reported out of the Governmental Affairs Committee, passed by unanimous vote.⁷⁷ S. 343, sponsored by Majority Leader Dole (a Republican from Kansas) among others, was ordered out of the Judiciary Committee without a formal vote.⁷⁸

S. 291, which would amend the APA,⁷⁹ takes an approach similar to H.R. 1022.⁸⁰ Nevertheless, S. 291 diverges from the House legislation in several important ways. First, the "major rule" economic trigger is set at $ 100 million, which is four times the House threshold.⁸¹ Second, judicial review under S. 291 would be much more limited and the bill sets a clear-and-convincing-evidence standard for reviewable decisions.⁸² Third, the bill omits the supermandate provision included in H.R. 1022, opting instead for a statute-by-statute review of rules.⁸³ Fourth, the risk-assessment and risk-characterization principles are more general and descriptive, and lack much of the prescriptive flavor of the House bill's provisions.⁸⁴

One noteworthy feature of S. 291 is its section on congressional review of agency rulemaking. The bill would require agencies to submit all major rules to Congress for review. Congress could then pass a joint resolution of disapproval. If the President did not veto that resolution, the major rule would not take effect.⁸⁵

Although S. 343 contains risk-assessment and cost-benefit provisions, it is a comprehensive regulatory reform bill that would apply to all rulemaking.⁸⁶ The parts of S. 343 relating to risk-assessment and cost-benefit analysis more closely resemble H.R. 1022 than S. 291. The bill defines a major rule as a regulation that is likely to have a gross annual effect on the economy of $ 50 million or more.⁸⁷ This bill also provides for executive oversight of regulation by the OMB or another designee of the President.⁸⁸ Unlike H.R. 1022, S. 343 does not contain far-reaching judicial review provisions or a supermandate.⁸⁹

Administration Position. The Clinton Administration has indicated that it supports regulatory reform, but will not support the risk legislation passed by the House (H.R. 1022) or working [25 ELR 10357] its way through the Senate.⁹⁰ The Administration's regulatory reform plan instead calls for using risk assessment to target agency resources and enforcement toward higher risk environmental problems. The plan also advocates the use of "sound science" in environmental decisionmaking.⁹¹ One of its "10 Principles for Reinventing Environmental Protection" declares that "[e]nvironmental regulation should be based on the best science and economics, subject to expert and public scrutiny, and grounded in values Americans share."⁹² Although it is difficult to compare the Administration's relatively short action plan to the House and Senate bills, the Clinton proposal appears to be more flexible and less process-oriented than congressional efforts.

Ramifications

If enacted in its present form, H.R. 1022 would likely substantially alter the practice of risk-assessment and cost-benefit analysis, increase analytical burdens on agencies, and change the ways in which agencies allocate resources. The resulting long, complex assessment documents may do little to improve the public's understanding or agencies' use of risk assessment and cost-benefit analysis. Significant delay in making public policy decisions may also result in the many instances where the bill requires technically demanding analyses of alternatives and assumptions.⁹³

The specificity of the risk-assessment, characterization, and communication principles would incorporate into the law certain scientific principles. Such legislation could suspend the development of risk-assessment science because it would be extremely difficult to deviate from or alter the principles contained in the law, even if new scientific evidence indicates that they are inadequate or wrong. Ironically, the bill could diminish the flexibility necessary to advance risk techniques, and risk assessment's effectiveness as a policy tool could be decreased.

Regulatory Reform

Paperwork Reduction

Legislation Introduced in the House. Title V of the original H.R. 9 was entitled "Strengthening of Paperwork Reduction Act" and would have given the Director of the OMB greater authority over federal agencies' collection of information and imposition of paperwork on those outside the government. The bill would have amended the Paperwork Reduction Act of 1980 by adding substantial detail to the definition of what constitutes a paperwork or information response burden on the public.⁹⁴ The original bill also would have updated government-wide goals for reducing the overall burden of federal information collection.⁹⁵ It would have prescribed a 5 percent reduction by September 30, 1995,⁹⁶ and an additional 5-percent for each of the next four fiscal years.⁹⁷

The bill would have added one potentially far-reaching grant of authority to the Director of the OMB. The OMB's authority under the Paperwork Reduction Act is set out in 44 U.S.C. § 3504, which includes the general limitation that "[t]he authority of the Director under this section shall be exercised consistent with applicable law."⁹⁸ The original H.R. 9 would have added authority for the OMB to initiate and conduct,

with selected agencies . . . on a voluntary basis, pilot projects to test or demonstrate the feasibility and benefit of changes or innovations in Federal policies, rules, regulations, and agency procedures to improve information management practices and related management activities (including authority for the Director to waive the applicability of designated agency regulations or administrative directives after giving timely notice to the public and Congress regarding the need for the waiver).⁹⁹

The original bill also would have created a new procedure allowing any person to request that the OMB review the collection of any information by or for an agency to determine if the Act had been followed.¹⁰⁰ This essentially would have created a method for private enforcement of the procedures for internal federal review and approval of information collection by federal agencies.

As Passed by the House. H.R. 9 as passed by the House on March 3, 1995, includes H.R.830. Entitled "Paperwork Reduction Act of 1995," it would replace the Paperwork Reduction Act of 1980. This new version would largely retain the original 1980 Act, amending and adding to many [25 ELR 10358] of its sections without changing the basic intent or structure of the Act.

Among the substantive differences between the original bill and the House-passed version is an increase from 5 to 10 percent in the annual goal for reductions in the government-wide information collection burden. Furthermore, where the original bill would have required the OMB to set annual goals for reducing the paperwork burden only for five years, the bill passed by the House would make this goal-setting an annual process for the OMB.

The provision authorizing the Director of the OMB to initiate and conduct pilot projects was modified by replacing the phrase "demonstrate the feasibility and benefit of changes or innovations" with a reference to testing "alternative" policies, practices, regulations, and procedures to "fulfill the purposes of this chapter." In addition, two changes were made in the provision authorizing the OMB to waive applicability of regulations, one clarifying and one substantively significant. First, language was added to clarify that the waiver applies only to the regulations or directives issued by an agency that has volunteered for a pilot project. The authority to waive the application of a regulation, however, would remain solely with the OMB. The more significant substantive change is that the waiver would now apply to "any regulation . . . including any regulation or directive requiring a collection of information."¹⁰¹ This language invites the interpretation that the waiver may extend beyond regulations requiring information collection.

Ramifications. Passage of the Contract's paperwork reduction provisions could reduce the ability of the federal environmental agencies to perform their statutory functions. If the OMB enforces the bill's goals, and requires agencies to reduce their information collection burdens by 10 percent per year, the ability of federal agencies to collect needed information could be severely compromised. For example, the Emergency Planning and Community Right-to-Know Act¹⁰² requires EPA to collect extensive information from manufacturers about the hazardous chemicals they store, use, transfer, and release. The public availability of this information has substantially improved the understanding of the nature and scope of potential problems associated with the industrial use of such chemicals. This information has also led to substantial reductions in the amounts of such chemicals released into the environment. These real reductions in risks to public health and the environment could be jeopardized under the Contract if, once the duplicative and other inefficient paperwork burdens are eliminated, Congress pressures the OMB, through oversight hearings or other informal means, to seek the further reductions in paperwork burdens required by this bill.

Congress apparently fails to recognize the connection between information collection and paperwork burdens and the statutory responsibilities it imposed on federal agencies. Certainly federal agencies have created unnecessarily complex and time-consuming forms, and certainly they can be more efficient in collecting information, but Congress has just as certainly drafted laws that require complex and detailed paperwork. Moreover, some of the latter statutes, such as EPCRA, are effective precisely due to the information they require the federal government to collect.

Regulatory Flexibility

Legislation as Introduced in the House. Title VI of H.R. 9, as introduced in January 1995, was entitled "Strengthening Regulatory Flexibility" and would have amended the Regulatory Flexibility Act¹⁰³ in several respects. First, it would have repealed the provision that decisions and analyses under the Act are not subject to judicial review but that any analysis of a proposed rule prepared under the Act would be part of the whole record of the rule for purposes of judicial review of that rule.¹⁰⁴ Second, it would have added a requirement that agency determinations of whether a proposed rule would have a significant impact on a substantial number of small entities must consider indirect as well as direct effects of the rule.¹⁰⁵ It also would have required agencies to send to the Chief Counsel for Advocacy of the Small Business Administration (SBA) a copy of any proposed rule — and a copy of any regulatory flexibility analysis or determination that the rule would not have a significant impact on a substantial number of small entities — 30 days before publication of the proposal in the Federal Register.¹⁰⁶ If, within 15 days of receipt of a proposed rule, the Chief Counsel for Advocacy sent to the agency a statement of opposition to the rule then the agency would have been required to publish the statement along with its response. Finally, the original bill would have stated that it was the "sense of Congress" that the Chief Counsel for Advocacy should be allowed to appear as amicus curiae in any action for judicial review of a rule.¹⁰⁷

As Passed by the House. On March 3, 1995, the House substituted H.R. 926 for the original Titles VI and VII of H.R. 9.¹⁰⁸ Entitled "the Regulatory Reform and Relief Act of 1995," H.R. 926 contains Title I ("Strengthening Regulatory Flexibility"), which is similar to the original bill in the role it would give the SBA's Chief Counsel for Advocacy but which differs in that it would create a new right to judicial review of rules on behalf of small entities.

Under the existing Regulatory Flexibility Act there is no right to separate judicial review of any of the determinations, decisions, or analyses made under the Act.¹⁰⁹ Rather, the analysis of a rule done under the Act is required to be included in the record of the rule for purposes of judicial review of the rule under other authority.¹¹⁰ As enacted, H.R. 926 would reverse this and create a special right to judicial review by small entities adversely affected by a final rule.¹¹¹ [25 ELR 10359] Small entities would be allowed to bring an action for review of the agency's regulatory flexibility analysis or its certification that the rule would not have a significant economic impact on a substantial number of small entities within one year after the effective date of a final rule.¹¹²

The bill as passed does not include the provision in the original bill that would have required agencies to consider indirect effects of a rule in making a determination that a rule would not have a significant economic impact on a substantial number of small entities.¹¹³

Ramifications. The bill's judicial review provision would increase the uncertainty surrounding the applicability of federal regulations and would make judicial review of regulations more complicated. The bill probably would also increase the caseload for the federal courts by creating a special right to review of a preliminary and subsidiary part of the rulemaking process¹¹⁴ and by lengthening the period for seeking such judicial review to one year for one class of affected persons. This could result in one federal court beginning to review the regulatory flexibility determination and analysis of a rule after another federal court had made substantial progress in reviewing the entire rule, including the regulatory flexibility determination and analysis. It appears unlikely that these changes to the Regulatory Flexibility Act will substantially advance the purpose of the Act to provide more flexibility for small businesses and governments in complying with federal regulations. It is also unlikely that the changes would cause observable effects on the environment.

Payments to Property Owners

The Contract promises to pay property owners for federal limitations on use of their property. The backdrop to this pledge is, of course, the Fifth Amendment to the U.S. Constitution, which provides that private property shall not be taken by the federal government for public use without just compensation. The Fourteenth Amendment extends the same guarantee to owners affected by state and local governmental actions. The Contract legislation would enlarge these guarantees by expanding federal payment obligations beyond those required in the U.S. Constitution.

In 1922, the Supreme Court said, "Government hardly could go on if to some extent values incident to property could not be diminished without paying for every . . . change in the general law. . . . [But] while property may be regulated to a certain extent, if a regulation goes too far, it will be recognized as a taking."¹¹⁵ The Court has repeatedly ruled that "too far" must be determined on a case-by-case basis, and that — except in the case of physical invasion of property — all or virtually all economic use must be destroyed for a right to payment to arise under the Fifth and Fourteenth Amendments.¹¹⁶ In framing legislation to create additional rights to payment, the 104th Congress sought to determine how low to set the trigger for determining that "regulation goes too far." This determination has the potential to serve as an implicit decision that some governmental programs will "hardly go on."

Legislation as Introduced in the House

Title IX of H.R. 9 as introduced on January 4 called for "compensation from the United States" for "any agency infringement or deprivation of rights to property." The bill defined property as "land" or "the right to use or receive water."¹¹⁷ Payment would have been required for any federal agency action that "results in a reduction in the value of the property equal to ten percent or more."¹¹⁸ Federal agencies would also have been required to pay owners for state and local actions affecting property values if the actions were taken pursuant to federal programs binding on state or local governments.¹¹⁹

The bill would have allowed qualifying property owners to request compensation from federal agencies. Within 180 days after receiving the request, the agency would have been required to determine whether the private property owner had demonstrated entitlement to compensation, and if so, to offer compensation. If no offer was made, or if it was rejected, the owner could then have compelled binding arbitration. Compensation would have been paid by the agency not later than 60 days after the owner's acceptance of the agency's offer or the arbitrator's decision. Funds for the payment would have been drawn from the existing annual appropriation of the agency responsible for the action. In the absence of sufficient funds the Comptroller General would have been required to identify "the most [25 ELR 10360] appropriate Federal source of funds" and payment would have been made from that source.¹²⁰

Committee and Floor Action. The House Judiciary Committee held a hearing on Title IX of H.R. 9 on February 10, bypassing any subcommittee consideration. The following week, the leadership set markup for February 16 with one day's notice. The markup vehicle was not H.R. 9. Instead, Congressman Canady (R-Fla.) introduced H.R. 925,¹²¹ a substitute bill, to serve as a markup vehicle. The Canady Bill was shorter than Title IX. Significantly, it would have raised the trigger for payment from 10 percent to 33 1/3 percent, and it limited the bill's coverage to government actions concerning endangered species and wetlands. This new approach was prompted in part by a February 14 letter from 15 Republican moderates to Committee Chairman Henry Hyde (R-Ill.) expressing concern about the direction taken by H.R. 9.¹²²

At markup, however, the Judiciary Committee amended the Canady Bill to return to the proposed 10 percent trigger and to require payments for all federal agency actions affecting property values. The bill provided for binding arbitration or civil action at the property owner's option, but without setting forth a specific arbitration procedure. Unlike the original H.R. 9, H.R. 925 did not provide for federal payments for the actions of state and local agencies.

As reported by the Committee, H.R. 925 retained or created several exceptions. For example, the federal government would not have been required to pay for federal actions limiting property uses otherwise prohibited by state law — except for state laws required by federal programs,¹²³ uses prohibited as nuisances, or uses prohibited by local zoning. Also, no payment would have been required for action taken "to prevent an identifiable hazard to public health or safety; or damage to specific property other than the property whose use is limited"¹²⁴ or to implement the federal navigation servitude. The Committee approved the bill with 12 dissenting votes, and its report stated that H.R. 925 was intended "to ensure that private property owners are compensated when the use of their property is limited by overreaching Federal regulations."¹²⁵

Floor action on H.R. 925 was set for March 2-3. Debate was limited to 12 hours under the rule reported by the Rules Committee. The rule, moreover, provided for consideration of a leadership-backed substitute bill introduced by Representative Canady with an amendment by Rep. Tauzin (D-La.) as the basis for debate and amendment, rather than the bill reported by the Committee. Rep. Frank (D-Mass.), an opponent of the bill, stated during the debate: "[T]he bill on which we had hearings disappeared when we went to markup [and] the language that is before us now, the Canady substitute as amended by the gentleman from Louisiana [Mr. Tauzin], has never been before a committee."¹²⁶

The most significant change brought about by the Canady substitute was that rather than requiring payment for any agency action that diminished the fair market value of "property by 10 percent or more" as in the Committee bill, it would have required payment for any agency action diminishing the value of "any portion" of property by 10 percent or more.¹²⁷ The significance of the shift to "any portion" became clear in the debate:

Mr. DeFazio (D-Or.): "[I]f I had a 100-acre tree farm and the restrictions apply to 1 acre . . . if it took more than 10 percent of that 1 acre . . . if it took more than 10 percent of that 1 acre, that would be mandatorily compensable?"

Mr. Canady: ". . . that is correct, assuming that . . . that particular circumstance was not subject to any of the other exceptions under the bill."¹²⁸

The substitute bill also added a new section to declare a federal policy "that no law or agency action should limit the use of privately owned property so as to diminish its value" and to direct all federal agencies to "ensure" that agency action will not "limit the use of private property so as to diminish its value."¹²⁹ Finally, the Canady substitute, which retained the exceptions to payment approved by the Committee, altered the exception for the federal navigation servitude to provide that the servitude exception could not be used "to the extent such servitude is interpreted to apply to wetlands."¹³⁰

The Tauzin Amendment, which the Republican leadership supported, limited the payments portion of the bill — but not the policy statement — to federal agency actions involving wetlands,¹³¹ endangered species,¹³² and, in a provision making an unexplained first appearance, agency actions "with respect to an owner's right to use or receive water" from federal reclamation projects, or under the Federal Land Policy Management Act, or the Forest and Rangeland Renewable Resources Planning Act.¹³³ The amendment also [25 ELR 10361] changed the exception to the payment requirement for federal limitations on uses that otherwise violated state law, limiting the exception to those uses that are "a nuisance as defined by the law of a State or . . . already prohibited under a local zoning ordinance."¹³⁴ The Tauzin Amendment passed easily.¹³⁵

The House then quickly defeated an amendment offered by Rep. Porter (R-Ill.) that would have excused the government from payment if a property rights impact analysis had been done with respect to the governmental activity at issue.¹³⁶ An amendment by Rep. Schroeder (D-Colo.) providing for an offset in any compensation award to reflect the amount of increase in value occasioned by any agency action — the so-called givings counterpart to governmental "takings"¹³⁷ — was defeated on a voice vote.¹³⁸

The most serious challenge to the bill came on its most radical point — the notion that diminution should be calculated on any portion of an affected property rather than on the parcel as a whole or case-by-case, as the Supreme Court has ruled in applying the constitutional standard.¹³⁹ Rep. Goss (R-Fla.) offered an amendment to strike the "any portion" language and to raise the trigger amount to 30 percent of the value of the property. This was narrowly defeated.¹⁴⁰ Rep. Mineta (D-Cal.) and Rep. Davis (R-Va.) immediately offered the same amendment with a 20 percent trigger. When it appeared that this amendment was likely to pass, the House leadership refused to permit a vote until the following day.

On March 3, the Mineta-Davis amendment was defeated, the leadership having committed in the meantime to support an amendment to set the trigger at 20 percent, but calculating it on the affected portion. This amendment passed, as did the bill.¹⁴¹ The bill was combined with several others and renumbered H.R. 9 in order to serve the symbolic purpose of passing the Contract legislation.

As passed by the House, the property rights title of H.R. 9 would create rights to receive federal payment for governmental actions concerning wetlands, endangered species, or western water contracts where those actions affect the value of any portion of real property or a right to use or receive water, subject to narrow exceptions. The agency is liable if its action diminishes the fair market value of "any portion" of property by 20 percent or more. Payments must come out of the agency's existing appropriation, "notwithstanding any other provision of law." An owner must request payment in writing within 180 days after the agency action. If the parties cannot agree on compensation, the owner may take the matter to binding arbitration or file a civil action against the agency in court. If the owner prevails, the owner must be awarded reasonable attorneys fees, arbitration/litigation costs, appraisal fees, and (for civil actions only) interest on the compensation award from the date of the limitation.

Senate Consideration. While the Contract is a commitment by House Republicans, the Senate began as boldly as the House. On March 23, Senator Dole and 31 co-sponsors introduced S. 605, the Omnibus Property Rights Act.¹⁴² S. 605 is essentially three different bills: a general compensation bill for all government activities affecting property use and value; a takings impact assessment bill; and a wetland and endangered species compensation bill.¹⁴³

The general compensation title would require payment[25 ELR 10362] for any action or decision by a federal agency (including government corporations and government-controlled corporations) that "takes a property right" or "unreasonably impedes the use of property or the exercise of property interests.'"¹⁴⁴ Federal agencies would also pay property owners for any state agency actions that take property rights or unreasonably impede property uses or interests in order to administer a federally delegated or supported program.¹⁴⁵

Government action would be deemed to take property rights or unreasonably impede property uses or interests if an action affecting property did not substantially advance the governmental purpose; exacted a right to use the property as a condition for a permit without "rough proportionality" to the impact of the proposed use;¹⁴⁶ resulted in temporary or permanent deprivation of all or substantially all economically beneficial or productive use of the affected portion of the property without showing that the deprivation inheres in the title itself; diminished the fair market value of the affected portion by 33 percent or more; or "under any other circumstances" constituted a taking under the Fifth Amendment. No compensation would be required if the use or proposed use was "a nuisance as commonly understood and defined by background principles of nuisance and property law, as understood within the State in which the property is situated."¹⁴⁷ Like H.R. p, this title of S. 605 would provide that awards be promptly paid out of agency appropriations; if insufficient funds were available, the agency would pay the award from funds available in the next fiscal year or seek additional appropriations.¹⁴⁸

This title of the bill would confer jurisdiction on the Court of Federal Claims to invalidate laws and regulations.¹⁴⁹ Since 1855, that court and its predecessors have had "jurisdiction only to award damages, not specific relief."¹⁵⁰ The bill also would give concurrent jurisdiction to the Court of Federal Claims and the federal district courts and eliminate the prohibition against pursuing the same claim in both courts.¹⁵¹

The takings impact analysis title of the bill resembles the amendment to the Safe Drinking Water Act passed by the Senate during the 103d Congress.¹⁵² New or significant features of this title include a requirement that each takings impact analysis be made publicly available, and "to the greatest extent practicable" be transmitted to "the owner or any other person with a property right or interest in the affected property.¹⁵³ In yet another version of regulatory reform, it would have all agencies "review, and where appropriate, re-promulgate all regulations that result in takings of private property under this Act" and reduce such takings "to the maximum extent possible within existing statutory requirements."¹⁵⁴

The wetlands and endangered species title of S. 605 is aimed at providing special rights to private-property owners affected by § 404 of the Clean Water Act or the Endangered Species Act.¹⁵⁵ The payment trigger would be diminution of 33 percent or more of the value of any affected portion of property. This title also includes a mandatory offer procedure like that in the original H.R. 9.¹⁵⁶

[25 ELR 10363]

The wetlands and endangered species title of S. 605 would make important changes to existing procedural rules. But although procedural in character, these changes would significantly modify the application of the substantive programs. For one thing, upon the claim of any owner that an action was a taking of property, the applicable agency would be required to stay the action at issue pending resolution of the claim.¹⁵⁷ Additionally, the bill would require implementing agencies to "comply with applicable state and tribal government laws, including laws relating to private property rights and privacy."¹⁵⁸ This provision, which is not limited to trespass or other state and tribal common law, is evidently intended to allow state and tribal governments to regulate federal conduct. It would apparently have the effect of ratifying the "Catron County ordinances" now popular in parts of the west, that declare state control over federal land management or attempt to prohibit federal agents from carrying out functions required by federal law.¹⁵⁹

The bill would also require that the Acts be administered and implemented "in a manner that has the least impact on private property owners' constitutional and other legal rights."¹⁶⁰ Moreover, it would require that federal officials obtain written consent of property owners to enter property, provide notice of such entry, and provide copies of any data collected to the owners. The written-consent provision contains no exception for law enforcement activities, even where officials obtain search warrants. Thus, a landowner could illegally fill wetlands or shoot bald eagles and federal agencies would evidently be unable to enter the property, even with probable cause.¹⁶¹

It is unlikely that S. 605 will be passed by the Senate without substantial modifications. Nevertheless, its approach is similar to that in the House and suggests that, absent a filibuster, the President may be presented with a payment bill sometime this year.

Ramifications

The Contract's threshold for federal payments would overthrow the constitutional standard, replacing it with a subsidy. For example, suppose that a speculator were to acquire 100 acres of farmland hoping to build 200 condominiums, but because of two acres of wetlands on the site, the federal government issued a permit that authorized those condominiums only if the wetlands were avoided or if mitigation were provided. Under Fifth Amendment jurisprudence, no payment would be due the landowner. Under the Contract legislation, the owner would be paid with taxpayer funds for the loss in fair market value of each of the two acres, regardless of the impact on the project or the parcel as a whole.¹⁶²

The Contract legislation would essentially eliminate the government's ability to impose reasonable conditions or mitigation requirements on environmentally damaging uses of property without paying compensation. Thus, it would provide a powerful incentive for developers to propose the most highly damaging uses for their property, in order to receive payments in exchange for a more responsible use. Responsible land users, in contrast, would receive no reward for beginning with reasonable proposals. Thus, the legislation would encourage subsidy seeking. Even if legislators ultimately enact a payment bill, some of this adverse effect could be alleviated if they included savings language to provide: "Notwithstanding any other provision in this Act, no compensation shall be due for agency action that requires reasonable mitigation of a proposed use of property." This would still allow payments to owners denied the use of their property, but would not eliminate the government's ability to require responsible use.

The Contract legislation also would subvert the appropriations process. H.R. 9, for example, would direct the heads of federal agencies to "transfer" or "reprogram" funds "notwithstanding any other law," to pay property rights claims out of annual agency appropriations. By placing property rights claimants ahead of all other government interests, the bill would allow unelected federal bureaucrats to cancel or cut back federal programs or projects voted on by Congress.

The Contract's reliance on nuisance and zoning as the key exceptions to statutory payment requirements would cause key federal decisions to turn on interpretations of state statutory and common law.¹⁶³ Thus, the role of federal [25 ELR 10364] judges and arbitrators in interpreting state laws would increase dramatically. States, however, have been relatively unhappy with past federal interpretations of their laws, for example, in the context of EPA decisions about the applicable or relevant and appropriate state requirements that apply to Superfund cleanups.¹⁶⁴ Similar discontent may arise if the law of nuisance or the interpretation of state statutes is driven by determinations in other federal forums.

Moreover, because federal payments will be keyed on the stringency of state laws, the Contract legislation may give states an incentive to reduce the stringency of their laws to equalize opportunities for businesses to receive federal dollars. Conversely, federal agency litigants would probably argue for broad interpretations of state nuisance law as they sought to avoid liability.

There is, interestingly, some ambivalence among federal legislators about how far states should be trusted. Representative Tauzin's leadership-backed amendment to H.R. 9 made it clear that states would not be allowed to defeat federal payments by enacting just any laws, but only laws that implement the background principles of nuisance. In contrast, Congress appears willing to grant local governments greater flexibility. None of the Contract legislation would significantly disturb local zoning laws.¹⁶⁵ Consequently, if the Contract legislation becomes law, it may well be local zoning ordinances that will carry the burden of protecting wetlands or requiring mitigation for environmentally degrading activities. It may, as well, be local zoning ordinances that will become the new front lines of environmental health and safety.¹⁶⁶

In sum, these payment bills, if enacted, would likely result in a proliferation of claims, the diversion of federal officials from implementation of substantive laws to the handling of claims, a diversion of funds from agency missions, a drain on the federal treasury, and a devolution of some federal power to state and local officials. Moreover, if it really became the policy of the United States "that no law or agency action should limit the use of privately owned property so as to diminish its value,"¹⁶⁷ it is not clear what actions the federal government could lawfully take.

Themes of the Contract

The extraordinary speed with which H.R. 9 and the other Contract bills were handled makes a considered evaluation of potential effects on the environment particularly important. The usual hearings, subcommittee markups, committee markups, and floor action were abbreviated, making legislative history a thinner than usual guide to very broad legislation. Nevertheless, at least three common themes emerge: Reliance on quantitative analyses, reliance on complex administrative processes, and shifting benefits and burdens.

Requiring Quantitative Analyses

Quantitative analysis refers to the use of highly technical and data-intensive techniques to estimate, assess, or rank environmental values. Quantitative analysis has great appeal. Its proponents argue that more analysis will allow a better targeting of resources and lead to more reasoned decisionmaking.¹⁶⁸ As embodied in the Contract bills, however, quantification also has the potential to divert federal agencies from the substantive work that Congress has charged them with accomplishing.¹⁶⁹ Moreover, the bills' requirements for quantitative analyses are inconsistent. For example, the cost-benefit analysis that would be required by H.R. 926 is not the same as that which H.R. 1022 would require.¹⁷⁰ And the two provisions — both now part of H.R. 9 — do not cross-reference one another. Congress used yet a different threshold, and required yet a different version of cost-benefit analysis in UMRA.¹⁷¹ Unless these many quantitative mandates are integrated and harmonized, confusion is certain.

Even the legislation providing for payments to property owners takes a quantitative approach. In awarding compensation under the Constitution, the courts have historically used a case-by-case analysis of expectations, fairness, and [25 ELR 10365] the public good.¹⁷² In contrast, the proposed legislation aims at greater certainty by supplying a specific percentage trigger for payment. Thus, what has until now been an equitable, multivariable analysis including important nonquantitative considerations — the nature of the governmental action, the character of the use, and the existence of reasonable, investment-backed expectations¹⁷³ — would turn primarily on the expert opinions of property appraisers.

In general, an increased reliance on quantification will shift the focus of policy debates to considerations that are the province of "experts" at federal agencies and in the private sector, rather than the public at large.¹⁷⁴ A super-mandate may also elevate quantifiable measures over all other environmental policy goals. Increased reliance on quantitative analyses may cause policymakers to emphasize measurable factors over qualitative worth. For example, for a regulation that restricted discharges to a body of water such as the Chesapeake Bay, it is relatively easy to measure compliance costs. It is much more difficult and controversial to quantify the benefits.¹⁷⁵ Reliance on measures of risk can have similar effects. Environmental policy is normally based on considerations of justice, fairness, functioning ecosystems, and other factors in additional to quantitative goals.¹⁷⁶

Requiring Complex Procedures

Most of the measures under consideration contain extensive procedural requirements that federal agencies must follow to issue regulations or take other action to protect human health, safety, or the environment. These procedures may make it more difficult for the federal government to accomplish the tasks and meet the goals set by Congress in substantive legislation.

New York attorney Philip K. Howard recently published a best-selling book called The Death of Common Sense: How Law Is Suffocating America.¹⁷⁷ In it, he argues that the real problem with U.S. bureaucracy and regulation is that not enough discretion is given to regulators. The result is endless process, absence of accountability, and substantial red tape surrounding most interactions with the government.¹⁷⁸ The 104th Congress, many of whose members have spoken approvingly of the book, seems determined to provide more of the same. Much of the Contract legislation would fetter the discretion of government agencies to respond flexibly, insist on prescriptive risk analyses subject to detailed procedural steps and judicial review, require multiple levels and types of cost-benefit analyses, and add new steps to the regulatory and deregulatory process. H.R. 9 and the regulatory reform bills under consideration by the Senate would create less flexibility and more process.

Shifting Benefits and Burdens

Law allocates benefits and burdens within society, and establishes procedures for future allocations. The Contract includes several strategies involving shifting benefits and burdens between the general public and individual entities, and shifting burdens and responsibilities among federal agencies, the courts, and the states.

The property payment legislation is a clear example. In many situations, it would shift the burden of using property responsibly from owners of property to the taxpayer at large. The bills are not aimed solely at resolving the egregious cases of intrusion on private-property values, by, for example, simplifying review procedures or providing for appropriate variances.¹⁷⁹ The paperwork reduction and the risk and cost-benefit bills also alter assignment of benefits and burdens. Fixed annual reductions in government information collection have the potential to reduce the paperwork burden on the regulated community by increasing the risk to the public that information needed to avoid or reduce risks will be unavailable.

Shifts of responsibility to the states, within the executive branch, and to the judiciary also will produce changes in policy. Congress, however, appears ambivalent about shifting responsibilities to the states. On the one hand, the call of the Contract is for devolution of funding and discretion to the states. On the other hand, portions of the Contract legislation not discussed in this Dialogue would preempt [25 ELR 10366] portions of state tort law.¹⁸⁰ The Contract legislation also shifts responsibilities within the executive branch, shifting power from other agencies to the OMB, continuing a trend in both the legislative and executive branches to give that agency more responsibilities and greater power.

The bills also create new substantive bases for litigation — risk assessment, cost-benefit analysis, paperwork reduction, and property rights. This will necessarily shift more decisionmaking power to the U.S. Department of Justice and the courts. Although environmental protection has benefitted over the last 25 years from the availability of judicial review, the creation of several whole new species of judicial challenges may produce more of the over-legalization that the Contract's proponents have decried.

Conclusion

The fundamental question to be asked of any environmental policy is whether it protects human health and the environment better than what has gone before. The Contract does not deal directly with this question. Nevertheless, some predictions are possible.

If legislation requiring payments to property owners becomes law, both regulatory and enforcement activity in the affected programs is likely to slow, at least for several years. If it covers wetlands, most projects requiring permits are likely to proceed without significant avoidance or mitigation. Thus, the rate of wetland loss — which is now declining¹⁸¹ — is likely to rise. If the legislation's scope is broader, it may become quite difficult to issue effluent guidelines, rules on air toxics, and other rules designed to achieve a higher level of environmental protection. The need to handle claims and to pay judgments out of agency operating budgets will divert personnel and resources away from operations, research, and monitoring.

The proposed risk-assessment and cost-benefit legislation is primarily likely to delay new rulemaking. The effect on the environment will depend on what rules are delayed. Rules designed to encourage flexibility and experimentation may be as hard to promulgate as those pursuing classic command-and-control solutions. Environmental groups may find the new legislation as useful in litigation as the business groups hope to. The result may well be stalemate, with uncertain effects on the environment.

The environment is reasonably resilient; so is law. But experiments should be undertaken with care and attention to consequences. The legislative discussion so far has paid far too little attention to the consequences of the Contract. Haste in lawmaking may produce waste in terms of desired results.

1. H.R. 1 through 10, 104th Cong., 1st Sess. 1995). The House Republican Conference had previously published a draft of the 10 bills on September 27, 1994. Contract With America, HOUSE REPUBLICAN CONF. LEGIS. DIG., Sept. 27, 1994, at 1.

2. The House completed action within 93 days, finishing on April 5, 1995. See Kenneth J. Cooper & Helen Dewar, 100 Days Down, But Senate to Go for Most "Contract" Items, WASH. POST. Apr. 9, 1995 at A6; Eric Pianin, Tax Cut Bill Passed by House, 246-188, WASH. POST, Apr. 6, 1995, at A1. The House defeated only a proposed amendment to the U.S. Constitution to limit congressional terms.

3. After its introduction on January 4, 1995, the titles of H.R. 9, 104 Cong., 1st Sess. (1995), were split up for various House committees to consider. These committees divided H.R. 9 into H.R. 1022, 104th Cong., 1st Sess. (1995) (risk-assessment and cost-benefit provisions), H.R. 830,104th Cong. 1st Sess. (1995) and H.R. 926, 104th Cong., 1st Sess. (1995) (regulatory revision provisions and paper-work reduction), and H.R. 925, 104th Cong., 1st Sess. (1995) (provisions for federal payments to property owners). The House passed each bill separately. On March 3, 1995, the House consolidated them into a reconstituted H.R. 9 that was sent on for the Senate to consider. See 141 CONG. REC. H2607-H2639 (daily ed. Mar. 3, 1995) (containing a concise compendium of H.R. 9 as originally introduced, and as the House reconstituted and passed the bill). The Republican leadership in the House reconstituted these bills into H.R. 9 so that Republican legislators could show that they had passed one of the numbered bills of the Contract, and to improve prospects for negotiating with the Senate and the President.

4. Unfunded mandates were also the subject of H.R. 5, 104th Cong., 1st Sess. (1995), which was the unfunded mandates bill the House passed and sent to conference with the Senate. S. 1, 104th Cong., 1st Sess. (1995). The President signed the legislation on March 22, 1995. Unfunded Mandates Reform Act (UMRA), Pub. L. No. 104-4 (1995).

5. Because the Contract was largely a creature of the House Republican leadership, this Dialogue will focus on the House actions, with reference to the Senate's actions when appropriate. This Dialogue will, to the extent feasible, analyze Contract legislation that the Senate is either considering or has already passed. Additionally, on March 16, 1995, the Clinton Administration unveiled its program for improving environmental regulation. President Bill Clinton & Vice President Al Gore, Reinventing Environmental Regulation, reprinted in DAILY ENV'T REP. (BNA), Mar. 17, 1995, at E-1.

6. See, e.g., The Risk Communication Act of 1993, H.R. 2910, 103d Cong., 1st Sess. (1993); 139 CONG. REC. H6377 (daily ed. Aug. 6, 1993) (introduction of bill).

7. For example, proposed reauthorizing legislation for the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607, and the Safe Drinking Water Act, 42 U.S.C. §§ 300f-300j-26, ELR STAT. SDWA §§ 1401-1465, contain risk-assessment requirements as well as provisions requiring federal government payments to property owners. H.R. 961, 104th Cong., 1st Sess. (1995). Also, state legislatures are considering and enacting laws dealing with these issues. For example, Washington State passed legislation in April 1995 requiring payments to property owners for the effects of state regulation on property rights and values. Initiative 164 (approved Apr. 18, 1995) (to become effective July 22 unless opponents can collect enough signatures to suspend its operation and force a referendum).

8. NAT'L GOVERNORS ASS'N, PRINCIPLES FOR STATE-FEDERAL RELATIONS 3 (994).

9. Id. The National Governors Association's policy statement also recommended, inter alia, that Congress enact provisions to: require the Congressional Budget Office (CBO) to report on the costs unfunded mandates impose on state and local governments before action by a full committee and the full House or Senate; apply to new state or local mandates the pay-as-you-go, revenue-neutral principle used for federal entitlement programs; provide for a point of order against any state or local mandate for which no report or funding is provided; exempt state and local governments and their national organizations from the Federal Advisory Committee Act, 5 U.S.C. app. 2; and reduce burdensome and costly reporting requirements.

10. Pub. L. No. 104-4, pmbl. (1995) (emphasis added).

11. Id. § 2 (emphasis added).

12. Id. § 108(1).

13. Because UMRA, in Title II, also applies to administrative action by the executive branch, it must follow the constitutional process for legislation of general applicability, which requires the President's signature. See infra notes 28-36 and accompanying text (discussing UMRA tit. II, which relates to regulatory impact and cost-benefit analysis for regulations).

14. See, e.g., UMRA § 101(a)(2) (amending the Congressional Budget and Impoundment Control Act (CBICA) of 1974, tit. IV, § 424(a), 2 U.S.C. §§ 601-688). The amended CBICA provision reads:

For each bill or joint resolution of a public character reported by any committee of authorization of the Senate or House of Representatives, the Director of the Congressional Budget Office shall prepare and submit to the committee a statement as follows: (1) Contents: If the Director estimates that the direct cost of all Federal intergovernmental mandates in the bill will equal or exceed $ 50,000,000 (adjusted annually for inflation) in the fiscal year in which any [such mandate or necessary implementing regulation] would first be effective or in any of the 4 fiscal years following such fiscal year, the Director shall so state, specify the estimate, and briefly explain the basis of the estimate.

UMRA requires a similar statement for bills that would impose mandates on the private sector costing $ 100 million or more per year. Id. § 101(a)(2) (adding § 424(b) to the CBICA).

15. UMRA's procedural provisions are arcane. They are laid on top of two centuries' worth of rules in each house, which are complex because they attempt to balance the shifting interests of majorities and minorities in making it easier on more difficult to pass legislation.

16. Id. § 101(a)(2) (adding § 425(a)(1) to the CBICA).

17. Id. (adding § 425(a)(2) to the CBICA).

18. 5 U.S.C. app. 2.

19. In general, federal agencies may only form advisory committees after public notice, a committee's membership must be balanced in terms of views represented, and all meetings must be open to the public to observe. Id. §§ 5(b), 9(a)(2), 10(a).

20. UMRA § 204(b)(1).

21. Id. § 204(b)(2).

22. Abuse of the exemption is possible, and should be dealt with if it arises.

23. Id. § 101(a)(2) (adding § 421(5) to the CBICA, which creates exceptions for duties that are a condition of federal assistance or that arise from participating in a voluntary federal program).

24. See, e.g., Resource Conservation and Recovery Act, 42 U.S.C. §§ 6926(b), ELR STAT. RCRA § 3006(b).

25. See generally James M. McElfish Jr., State Environmental Law and Programs, in 1 LAW OF ENVIRONMENTAL PROTECTION (Clark Boardman Callaghan) (Sheldon M. Novick, Environmental Law Institute, eds.) § 6.02. UMRA does, however, cover application of federal standards to state or local government-operated facilities, at least for newly legislated mandates.

26. 3 C.F.R. 127 (1982), ELR ADMIN. MAT. II 45025.

27. Exec. Order No. 12866, 3 C.F.R. 638 (1994), ELR ADMIN. MAT. II 45070. See Ellen Siegler, Executive Order 12866: An Analysis of the New Executive Order on Regulatory Planning and Review, 24 ELR 10070 (Feb. 1994) (discussing Exec. Order No. 12866 and comparing it to President Reagan's executive order).

28. A "federal mandate" is any statutory or regulatory provision that would impose an enforceable duty on state, local, or tribal governments, or the private sector, however, the definition does not apply to a condition of federal assistance or a duty arising from participating in a voluntary federal program (there is an exception to this voluntary-program exception for governmental entities with existing federal programs that provide $ 500 million or more under entitlement authority). UMRA § 101(a)(2) (adding § 421(5), (7) to the CBICA). The term "federal mandate" includes provisions that would reduce or eliminate federal financial assistance to state, local, or tribal governments, or the private sector for complying with the mandate. Id. § 101(a)(2) (adding § 421(5)(A)(ii), (7)(B) to the CBICA).

29. Id. § 202(a)(2). Section 202 is titled "Statements to Accompany Significant Regulatory Actions," but the phrase "significant regulatory actions" does not appear in the section and its only other use is in the heading for the section on judicial review. This may cause confusion because Exec. Order No. 12866 defines "significant regulatory actions" to mean rules that have an annual effect on the economy of $ 100 million or more or other effects — while UMRA defines it as public- or private-sector spending of $ 100 million or more annually.

30. UMRA § 202(a)(2). The requirement to assess the effects of the mandate on health, safety, and the environment contrasts with the rest of the statute, which otherwise addresses the costs of complying with mandates, the budgetary impacts of mandates, and the effects that mandates may have on the economy or specific aspects of the economy, such as international competitiveness and full employment. See, e.g., id. §§ 202(a)(2)(A), (3)(A) & (B) & (4). Because UMRA applies to federal agency actions generally, the requirement to assess a mandate's effect on health, safety, and the environment should apply to mandates that agencies would not otherwise analyze for their health or environmental effects.

31. Id. § 202(a)(2)-(5).

32. Id. § 205(a).

33. Id. § 205(b).

34. Id. § 401(a)(2) (review available only under 5 U.S.C. § 706(1), ELR STAT. ADMIN. PROC., which authorizes courts to compel agency action unlawfully withheld).

35. Id. § 401(a)(3).

36. See id. § 401(a)(4), (5), (b)(1)-(2).

37. Some of these procedures and analyses have been in general use by agencies for years, but were not statutorily required. See, e.g., Exec. Order No. 12291, 3 C.F.R. 127 (1982), ELR ADMIN. MAT. II 45025 (requiring regulatory impact analysis, including cost-benefit analysis).

38. H.R. 9, 104 Cong., 1st Sess. § 7002 (1995) (which would have amended 5 U.S.C. § 553, ELR STAT. ADMIN. PROC. § 553).

39. Id. § 7002 (which would have added 5 U.S.C. § 553(f)(l)(B)).

40. Id. § 7004(b). This would have been a change from the definition of major rule under Exec. Order No. 12291 and of "significant regulatory action" under Exec. Order No. 12866. Both executive orders required cost-benefit analyses for regulations that would have an annual effect on the economy of $ 100 million or more, or that would adversely affect specified components or sectors of the economy. Exec. Order No. 12291, 3 C.F.R. 127, § (b) (1982), ELR ADMIN. MAT. II 45025; Exec. Order No. 12866 § 3(f)(1), 3 C.F.R. 638 (1994), ELR ADMIN. MAT. II 45070, 45071. Exec. Order No. 12866, § 3(f)(2)-(4), also requires analysis of noneconomic criteria, involving the extent to which rules would interfere or be inconsistent with actions by other agencies, change entitlements, grants, loans, or users fees, or raise novel legal or policy issues. 3 C.F.R. at 641, ELR ADMIN. MAT. II at 45071.

41. Id. § 7003(a)(2) (which would have added 5 U.S.C. § 553(g)). The bill would have required the agency to hold a hearing even if one of the commentators requested one. The bill would have established an absolute requirement for a hearing based simply on the number of comments submitted.

42. Id. § 7003(c) (which would have amended 5 U.S.C. § 553(c), ELR STAT. ADMIN. PROC. § 553(c), to codify what is generally the practice at federal agencies).

43. Id. § 7003(b) (which would have added 5 U.S.C. § 553(h)). The bill would have prohibited the agency from adopting the rule until after the additional comment period.

44. Id. § 7004(c).

45. H.R. 9, § 7006.

46. H.R. 926, 104th Cong., 1st Sess. (1995)

47. H.R. 9, § 201(15) (which would add 5 U.S.C. § 551(15)). The provisions of paragraph (15) are identical to Exec. Order No. 12291 § 1(b) except that the bill would substitute $ 50 million for $ 100 million. Exec. Order No. 12291, 3 C.F.R. 127, § 1(b) (1982), ELR ADMIN. MAT. II 45025.

48. H.R. 9 (as passed Mar. 3, 1995, incorporating H.R. 926, § 202, which would add 5 U.S.C. § 551(f)(1)).

49. Compare 5 U.S.C. § 553(b)(2), (c) with H.R. 926, §§ 202, 204 (which would add 5 U.S.C. § 553(i)(4)(D)).

50. Compare H.R. 9, § 7004(c)(8) with H.R. 926, § 204 (which would add 5 U.S.C. § 553(i)(4)(D)).

51. H.R. 926, § 204 (which would add 5 U.S.C. § 553(i)(4)). The bill would require the agency to (1) describe the potential benefits, including benefits that cannot be quantified in monetary terms, and to identify those likely to receive the benefits; (2) explain the rule's necessity, legal authority, and reasonableness; (3) describe the rul'es poential costs, including describe the rule's potential costs, including adverse effects that the agency cannot quantify, and to identify those would likely bear the costs; (4) analyze alternative approaches, including market-based mechanisms that could substantially achieve the same regulatory goal at lower cost, and explain why the agency did not adopt such alternative approaches, as well as demonstrate that the rule is the least costly approach; (5) provide a statement that the rule does not conflict with or duplicate any other rule, or reasons why it does conflict or duplicate another rule; (6) provide a statement on whether the rule will require on-site inspections or recordkeeping, and a statement on whether it will require licenses, permits, or other certificates, along with applicable fees or fines; and (7) estimate the agency's costs for implementing and enforcing the rule and whether the agency can reasonably expect to implement the rule with the current level of appropriations.

52. Exec. Order No. 12291, 3 C.F.R. 127, § 3(d)(1) (1982), ELR ADMIN. MAT. II 45025.

53. Compare H.R. 9, § 7006 with HR. 926 § 204 (which would add 5 U.S.C. § 553(j)).

54. H.R. 1022, 104th Cong., 1st Sess. (1995).

55. Based on comments from industry groups, this bill had been substantially revised from a September 1994 draft its Republican drafters circulated. In particular, the drafters narrowed the applicability of the risk-assessment and communication provisions to apply only to federal regulatory programs designed to protect human health, safety, and the environment. The drafters changed the definition of "major rule" by raising the threshold of annual effect on the economy from $ 1 million to $ 25 million. Also, the drafters narrowed and streamlined the peer review provisions and dropped a citizen suit provision. See New Risk Language Introduced With Four Key Changes From Draft, INSIDE EPA's RISK POLICY REP., Jan. 10, 1995, at 1.

56. H.R. 9, § 3001.

57. As introduced, Title III stated:

[W]ithin 15 months after the date of enactment of this subtitle, the President shall issue guidelines consistent with the risk assessment and risk characterization principles stated in sections 3104 and 3105 and shall provide a format for summarizing risk assessment results. In addition, such guidelines shall include guidance on at least the following subjects: criteria for scaling animal studies to assess risks to human health; uses of different types of dose-response models; thresholds; definitions, use, and interpretations of the maximum tolerated dose; weighing of evidence with respect to extrapolating human health risks from sensitive subspecies; evaluation of benign tumors, and evaluation of different human health endpoints. The guidelines shall be developed after notice and comment.

Id. § 3106(a), (d).

It is not clear whether the guidance and the guidelines would need to be promulgated as regulations. But the process by which these guidelines and guidance were to be developed, and their purpose, could be interpreted to imply that Congress intended the agency to engage in a rulemaking process.

58. Id. § 3201(c)(2). The bill defines a "major rule" as any regulation that is likely to result in one or more of the following: (1) an annual effect on the economy of $ 25 million or more; (2) a major increase in costs or prices for consumers, industries, local governmental agencies, or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. companies to compete in the global marketplace.

59. According to EPA, passage of this requirement and the peer review mandate could result in $ 220 million annually in additional costs to the agency. See $ 200 Million in Added Annual Costs Likely if House Risk Bill Adopted, Browner Says, DAILY ENV'T REP. (BNA), Feb. 3, 1995, at AA-1.

60. H.R. 9, § 3201(a)(5).

61. See id. §§ 3104, 3105, 3201, 3301.

62. In addition to the joint hearings described above, the Science Committee and the Commerce Committee also held hearings. Administration, Blasting Risk Bill, Pledges to Work on Changes, INSIDE EPA's RISK POLICY REP., Feb. 3, 1995, at 2.

63. Id.

64. See Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405; RCRA, 42 U.S.C. §§ 6928-6992k, ELR STAT. RCRA §§ 1001-110012.

65. H.R. 1022, § 301(b) (as introduced Feb. 23, 1995).

66. Id. § 202(b)(1).

67. 42 U.S.C. §§ 740-1-7671q, ELR STAT. CAA §§ 101-618.

68. 33 U.S.C. §§ 1251-1387, ELR STA. FWPCA §§ 101-607.

69. H.R. 1022, § 401. This provision states:

compliance or noncompliance by a Federal agency with the requirements of this Act shall be reviewable pursuant to the statute granting the agency authority to act or, as applicable, that statute and the Administrative Procedure Act. . . . When a significant risk assessment document or risk characterization document . . . is part of the administrative record in a final agency action . . . the court may consider the agency action unlawful if such significant risk assessment document or significant risk characterization document does not substantially comply with the requirements of sections 104 and 105 [the principles of risk assessment and risk characterization].

70. Id. § 110(5).

71. Id. § 103(b)(2)(E).

72. Nowhere in H.R. 1022, however, do the drafters define cost-benefit principles.

73. See supra note 57 (discussing the terms "guidance" and "guidelines").

74. The final vote was 286 to 141. Sixty Democrats voted with the Republican majority to pass the bill. Two Republicans voted against the bill. House Passes Risk Bill by Huge Margin, Setting Stage for Senate, INSIDE EPA's RISK POLICY REP., Mar. 6, 1995, at 1.

75. One amendment that the House passed by a floor vote imposed the bill's analytical requirements on contaminated site cleanups that cost more than $ 5 million. Id.

76. These bills are S. 100, 104th Cong., 1st Sess. (1995), S. 123, 104th Cong., 1st Sess. (1995), S. 229, 104th Cong., 1st Sess. (1995), S. 291, 104th Cong., 1st Sess. (1995), S. 333, 104th Cong., 1st Sess. (1995), and S. 343, 104th Cong., 1st Sess. (1995). See Risk Bills Shift to Senate Following House Committee Markups, INSIDE EPA'S RISK POLICY REP., Feb. 21, 19945, at 3.

77. Senate Governmental Affairs Panel Passes Risk Bill: Two More to Go, INSIDE EPA's RISK POLICY REP., Mar. 24, 1995, at 1.

78. See John H. Cushman Jr., Senator, in Fury, Advances Regulatory Bill, N.Y. TIMES, Apr. 28, 1995, at A17 (reporting Sen. Orrin Hatch's (R-Utah) decision to advance bill).

79. 5 U.S.C. §§ 500-596, ELR STAT. ADMIN PROC. §§ 500-596.

80. It seeks both to reform risk-assessment practice and to apply risk-assessment and cost-benefit analyses to major rules. It contains principles of risk assessment and risk characterization and defines covered agencies in a similar fashion.

81. In addition to this monetary trigger, the definition of major rule would allow an agency head or the OMB to classify a rule or group of rules as a major rule. if it is likely to result in (1) a substantial increase in prices or costs; (2) significant adverse effects on wages, or the ability of U.S.-based enterprises to compete; (3) a serious interagency inconsistency or interference; (4) a material alteration of the budgetary impact of entitlements, grants, user fees or loan programs; or (5) a significant impact on a sector of the economy. S. 291, § 621(2)(A)(ii) (Apr. 6, 1995 committee draft). The OMB would be authorized to overrule an agency head regarding his or her determination of a major rule. Id. § 622(b)(i).

82. See, e.g., id. §§ 623, 646. But the bill does allow "affected small entities" to petition for judicial review. Id. § 611.

83. Id. § 625.

84. Id. §§ 624, 625.

85. Id. § 801.

86. This Dialogue describes the April 6, 1995, version of S. 343, because at presstime the authors deemed it to be the most likely floor vehicle. Senator Dole's bill (S. 343) seems to have emerged as the most likely basis for any regulatory reform that the Senate passes. It contains more process and analytical requirements than Senator Roth's bill (S. 291) and would probably make it considerably more difficult to promulgate rules. See Mr. Dole's Assault on Regulations, N.Y. TIMES, May 1, 1995, at A16 (stating that "[a]ny hope that the Senate would act as a restraint on House efforts to destroy the regulatory apparatus are diminishing as Mr. Dole presses his presidential campaign").

87. S. 343, § 621(4). A regulation can also be defined as a major rule if it meets certain other criteria listed in this section.

88. Id.

89. Sen. Johnston (D-La.) one of the leading proponents of risk assessment in the 103d Congress, had announced that he would not support any risk legislation that contains judicial review or supermandate language. Accordingly, such language was dropped (although some judicial review provisions remained in S. 343). See Johnston Warns Dole Bill Goes "Overboard," INSIDE EPA's RISK POLICY REP., Mar. 17, 1995, at 5; Senate Panel Abandons Bipartisan Markup, Floor Fight Looms, INSIDE EPA's RISK POLICY REP., Apr. 28,1995, at 2. S. 343, reported out of the Judiciary Committee, would provide that a federal agency cannot adopt any major rule without a finding that the benefits justify the costs and that the rule is the most cost-effective alternative. These criteria would apply regardless of other statutory language, unless the agency could show that the decisional criteria of the substantive statute require a different outcome. In that case, the agency would still be required to select the alternative that has a lower cost than reasonable alternatives or the lowest costs that the agency has the discretion to accept under the decisional criteria.

90. In his speech on Earth Day, April 22, 1995, President Clinton indicated that he would veto the risk legislation pending in Congress. Senate Panel Abandons Bipartisan Markup, Floor Fight Looms, INSIDE EPA'S RISK POLICY REP., Apr. 28, 1959. at 2.

91. President Bill Clinton & Vice President Al Gore, Reinvesting Environmental Regulation, reprinted in DAILY ENV'T REP. (BNA), Mar. 17, 1995, at E-1,-4, 016, -22.

92. Id. at E-6.

93. For example, H.R. 1022, § 104(b)(2), demands that if a risk assess ment involves selection of "any significant assumption, inference, or model," the covered agency shall: (1) prepare a representative list and explanation of plausible and alternative assumptions, inference, or models; (2) explain the basis for any choices; (3) identify any policy or value judgments; (4) fully describe any model used in the risk assessment and make explicit the assumptions used in the model; and (5) indicate the extent to which any significant model has been validated.

94. H.R. 9, § 5201 (which would have amended 44 U.S.C. § 3502(3)).

95. Id. § 5202 (which would have amended 44 U.S.C. § 3505(1)). The existing statute specifies a reduction of 15 percent by October 1, 1982, and an additional 10 percent by October 1, 1983.

96. The reduction in the information collection burden was to be measured compared to the burden existing on September 30, 1994. Id. § 5202 (which would have amended 44 U.S.C. § 3505(1)).

97. Id. § 5202 (which would have amended 44 U.S.C. § 3505(2)).

98. 44 U.S.C. § 3504(a).

99. H.R. 9, § 5301 (which would have amended 44 U.S.C. § 3504(c)(9)) (emphasis added). This paragraph could have been interpreted as giving the Director sole authority to waive any regulations as part of a pilot project to test the feasibility or benefits of improvements to federal information management practices or related management activities. Although the first parenthetical phrase in the provision might seem to indicate that a federal agency would be a volunteer to the pilot project of which the regulation waiver would be a part, this is not the only possible reading of the language. Nowhere does the provision limit the pilot projects to agencies that have volunteered or specify that the agency concur or otherwise be involved in the decision to waive the applicability of its regulations. Furthermore, the parenthetical phrase includes nonfederal entities as potential volunteers, raising the possibility that the Director could waive the applicability of an agency's regulations as part of a pilot project for which the agency had not volunteered and with the agency's only notice of the waiver being the notice required to be given to Congress and the public.

100. Id. § 5306(2) (which would have added a new 44 U.S.C. § 3517(b)).

101. H.R. 830, 104th Cong., 1st Sess. § 2 (1995) (which would amend § 3505(b)).

102. 42 U.S.C. § 11001-11050, ELR STAT. EPCRA §§ 301-330.

103. 5 U.S.C. §§ 601-612.

104. Id. § 6001 (which would have repealed 5 U.S.C. § 611).

105. Id. § 6002 (which would have added 5 U.S.C. § 611).

106. Id. § 6003 (which would have amended 5 U.S.C. § 612(d)).

107. Id. § 6004.

108. H.R. 926, 104th Cong., 1st Sess. (1995). The Title VII provisions are discussed supra notes 37-53 and accompanying text.

109. 5 U.S.C. § 611.

110. Id. § 611(b).

111. H.R. 926, § 101(a) (which would amend 5 U.S.C. § 611(a)(1)).

112. Id. § 101(a) (which would amend 5 U.S.C. § 611(a)(1)(A) & (B)). The one-year period for judicial review is substantially longer than the review period provided for substantive agency action under other statutes. See, e.g., 42 U.S.C. § 1369(a)(1), ELR STAT. FWPCA 509(a)(1) (120 days); 42 U.S.C. § 6976(a)(1), ELR STAT. RCRA § 7006(a)(1) (90 days); and 42 U.S.C. § 7607(a)(1), ELR STAT. CAA § 307(a)(1) (60 days).

113. H.R. 926, § 101(a).

114. The drafters limited the right to judicial review of federal regulations under H.R. 926, § 611(a)(1) to the regulatory flexibility analysis or the determination that no such analysis is required. These analyses are merely one part of the extensive rulemaking process under the Administrative Procedure Act (APA), which includes other analyses (such as that required by the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370d, ELR STAT. NEPA §§ 2-209, §§ 4361-4370d) and which provides for comprehensive judicial review of federal regulations, including the aspects this bill singles out. 5 U.S.C. § 702, ELR STAT. ADMIN PROC.

115. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413, 415 (1922).

116. Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 22 ELR 21104 (1992); Keystone Bituminous Coal Ass'n v. DeBenedictus, 480 U.S. 470, 17 ELR 20440 (1987); Pennell v. City of San Jose, 485 U.S. 1 (1985); Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). Lucas held that even a 100 percent diminution in value is not compensable if the limitation reflects "the restrictions that background principles of the State's law of property and nuisance already place upon land ownership." 112 S. Ct. at 2900, 22 ELR at 21111. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (physical invasion compensable regardless of extent of diminution); cf. Nollan v. California Coastal Comm'n, 483 U.S. 825, 17 ELR 20918 (1987), Dolan v. City of Tigard, 114 S. Ct. 2309, 24 ELR 21083 (1994) (requirement for dedication of property must bear sufficient relationship to regulatory approval of landowner's activity).

117. H.R. 9, § 9004(6).

118. Id. § 9002(a)(2).

119. Id. § 9002(a)(5). The bill identified three instances in which payments would not be made: (1) when the use limited by final agency action would otherwise violate state or local law (including zoning and nuisance law), (2) where the limitation was imposed to prevent a serious and imminent threat to health and safety, or (3) where the limitation implemented the federal navigation servitude. Id. § 9002.

120. Id.

121. H.R. 925, 104th Cong., 1st Sess. (1995).

122. Letter from Rep. John E. Porter et al. to Rep. Henry Hyde (Feb. 14, 1995).

123. This exception to the exception was probably intended to prevent federal agencies from avoiding payments based on state-law provisions that were driven by federal requirements such as state laws implementing federal environmental programs.

124. The Committee removed the words "imminent and" preceding the word "identifiable."

125. H.R. REP. No. 46, 104th Cong., 1st Sess. 1 (1995).

126. 141 CONG. REC.h 2539 (daily ed. Mar. 2, 1995) (statement of Rep. Frank).

127. 141 CONG. REC. H2502-2503 (daily ed. Mar. 2, 1995) (amendment in the nature of a substitute).

128. 141 CONG. REC. H2509 (daily ed. Mar. 2, 1995) (statements of Reps. Canady and DeFazio).

129. 141 CONG. Rec. H2502 (daily ed. Mar. 2, 1995) (amendment in the nature of a substitute). These provisions would apply to all federal agencies, and were not affected by the subsequent Tauzin Amendment, which limited the payment provision's reach to specific laws. The Canady substitute also resolved a potential conflict with federal budgeting rules and added a savings clause to preserve other bases for property owner compensation, such as claims under the U.S. Constitution. Id. at H2503.

130. Id. This provision could adversely affect the U.S. Army Corps of Engineers' (the Corps') ability to maintain navigability with respect to wetlands appurtenant to navigable waters or in areas diked off from such waters. See, e.g., Leslie Salt Co. v. Froehlke, 578 F.2d 742, 8 ELR 20480 (9th Cir. 1978) (the Corps has jurisdiction over behind-the-dike ponds); but cf. Kaiser Aetna v. United Status, 444 U.S. 164, 10 ELR 20042 (1979) (enforcing public access to pond connected by constructed channel to navigable bay requires payment of compensation).

131. See 33 U.S.C. § 1344, ELR STAT. FWPCA § 404; Food Security Act, 16 U.S.C. §§ 3821-3823.

132. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18.

133. Reclamation Act, 43 U.S.C. § 371 et seq.; Federal Land Policy and Management Act, 43 U.S.C. §§ 1701-1784, ELR STAT. FLPMA §§ 102-603; Forest and Rangeland Renewable Resources Research Act of 1974, 16 U.S.C. § 1645, ELR STAT. NFMA [FRRRRA § 6]. These are nonregulatory statutes that govern the provision of subsidized water in the western United States by contract, and the conveyance or allocation of water in the context of National Forest planning and public land management decisions. The referenced laws do not regulate water rights, which are private-property interests determined under state law, but rather relate to provision of public resources under contracts and permits. Neither Representative Canady nor Representative Tauzin — who are not from western states — was initially able to explain these provisions' purposes. See generally 141 CONG. REC. H2511-2516 (daily ed. Mar. 2, 1995) (debate). Representative Canady subsequently opined that these provisions would not require compensation for changes in the delivery of water from reclamation projects if the contract provided authority for such changes. Id. at H2566. The provisions' true import is highly uncertain, but such uncertainty may provide leverage to water users in negotiations with federal government authorities on a host of matters.

134. 141 CONG. REC. H2504 (daily ed. Mar. 2, 1995) (Tauzin amendment).

135. 141 CONG. REc. H2529 (daily ed. March 2, 1995 (vote). The Tauzin amendment also required the federal government to purchase any portion of property reduced in value by greater than 50 percent at the election of the landowner.

136. 141 CONG. REC. H2530-2548 (daily ed. Mar. 2, 1995). Such an analysis, also called a "takings impact assessment," is the approach President Reagan pioneered in Exec. Order No. 12630, 58 Fed. Reg. 8859, ELR ADMIN. MAT. II 45037 (Mar. 8, 1988). Versions have been offered in previous Congresses by Senator Symms (R-Idaho), Senator Dole, and others. Such assessments require federal agencies to assess the likelihood that a particular governmental regulation or other action will take property without just compensation. Representative Porter's amendment was structured as an exception to the compensation requirement because the Rules Committee had barred him from offering a straight takings impact assessment bill as a substitute for the payment bill the Judiciary Committee reported.

137. See, e.g., Edward Thompson Jr., The Government Giveth, 11 Envtl. F., Mar./Apr. 1994, at 22.

138. 141 CONG. REC. H2549-2551 (daily ed. Mar. 2, 1995). A move by Rep. Wyden (D-Or.) and Rep. Gilchrest (R-Md.) to restrict the bill's applicability by limiting it to private homeowners was likewise defeated. Id. at H2556-2561.

139. See Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 8 ELR 20528 (1978):

"Taking" jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular government action has effected a taking, the Court focuses rather both on the character of the action and on the nature of the interference with rights in the parcel as a whole.

Id. at 130-31, 8 ELR at 20534; accord Concrete Pipe and Prod., Inc. v. Construction Laborers Pension Trust for S. California, 113 S. Ct. 2264, 2291 (1993). Contra Florida Rock Indus., Inc. v. United States, 18 F.3d 1560, 24 ELR 21036 (Fed. Cir. 1994) (dicta supporting the "partial takings" approach).

140. 141 CONG. REC. H2551-2555 (daily ed. Mar. 2, 1995). The vote was 210 to 211.

141. 141 CONG. REC. H2596-2607 (daily ed. Mar. 3, 1995).

142. S. 605, 104th Cong., 1st Sess. (1995). The bill is an amalgamation of property rights bills various sponsors had offered previously, including S. 22, 104th Cong., 1st Sess. (1995) (a takings impact assessment bill Sen. Dole sponsored), S. 135, 104th Cong., 1st Sess. (1995) (a bill Sen. Hatch (R-Utah) sponsored that provided for payment if an affected portion of property were reduced in value by 20 percent or $ 10,000), S. 145, 104th Cong., 1st Sess. (1995) (a bill Sen. Gramm (R-Tex.) sponsored which would set the affected portion threshold at 25 percent or $ 10,000), and S. 239, 104th Cong., 1st Sess. (1995) (a similar bill Sen. Shelby (R-Ala.) sponsored but limited to endangered species and wetland regulation).

143. Title 2 is the generalized compensation bill, Title 4 is the takings impact assessment bill, and Title 5 is the wetland and endangered-species payment bill. Title 3 provides for arbitration of disputes.

144. S. 605, § 203. It defines "owner" as "the owner or possessor of property or rights in property," and thus would extend compensation to nonowner tenants, users, squatters, and others without a legal interest. Id. (emphasis added). The bill also provides a broad definition of property, including personal property. (H.R. 9, in contrast, is limited to real property and water rights.) The S. 605 definition includes "property rights provided by, or memorialized in, a contract" — a provision that would supersede Supreme Court precedent. Concrete Pipe and Prod., Inc. v. Construction Laborers Pension Trust for S. California, 113 S. Ct. 2264 (1993); Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211 (1986) (no taking where regulatory scheme changed contractual pension provisions); Omnia Co. v. United States, 261 U.S. 502 (1922) (frustration of contract not a compensable taking).

145. This provision would produce a reverse unfunded mandate — required payments imposed upon the federal government by state governmental action. The House rejected a similar provision found in the original H.R. 9 because it would open the federal government to unlimited liability for actions over which it lacks control. For example, a state pollution control agency might deny a permit to a proposed waste incinerator, claiming to apply federal standards. Even though the federal government could not compel the state to issue the permit, the disappointed permit applicant could obtain a cash payment from federal taxpayers.

146. S. 605 would apply the rough proportionality test to any "condition" on an agency action, although the Supreme Court has limited use of this test — at least as a constitutional matter — to a required dedication of a property interest. Dolan v. City of Tigard, 114 S. Ct. 2309, 24 ELR 21083 (1994). The bill is ambiguous on this point because it switches terms from "condition" in the first half of the relevant clause, to "required dedication" at the end.

147. S. 605, § 204.

148. Id. tit. 2. The bill would prescribe a six-year statute of limitations and also require the government to pay compound interest from the date of the taking.

149. The Court of Federal Claims has become popular with some advocates of private-property rights, largely on the basis of Judge Loren Smith's decisions awarding large sums to owners of wetlands and other regulated lands. See, e.g., Florida Rock Indus. v. United States, 21 Ct. Cl. 161, 20 ELR 21201 (1990), judgment entered, 23 Ct. Cl. 653, 24 ELR 20591 (1991), vacated, 19 F.3d 1560, 24 ELR 21036 (Fed. Cir. 1994); Loveladies Harbor, Inc. v. United States, 15 Ct. Cl. 381, 19 ELR 20092 (1988), 21 Cl. Ct. 153, 20 ELR 21207 (1990), aff'd, 28 F.3d 1171, 24 ELR 21072 (Fed. Cir. 1994).

150. Glidden Co. v. Zdanok, 370 U.S. 530 (1962). The Court of Federal Claims is currently an Article I court under the U.S. Constitution. 28 U.S.C. § 171. The ability of a non-Article III court to strike down acts of Congress and federal regulations is highly questionable on separation of powers grounds, as it would allow an institution other than the third branch of government to trump the Congress and the President.

151. 28 U.S.C. § 1500. The bill also would allow litigants to challenge federal regulations in the Court of Federal Claims under the APA, thus creating a choice of forum other than the U.S. Courts of Appeals which generally have been vested with jurisdiction under Title 28 and substantive statutes. S. 605, § 205(c).

152. S. 2019, 103d Cong., 2d Sess. (1994). Although the Senate passed it, the bill did not become law.

153. S. 605, § 403. This provision would reverse the approach taken in Exec. Order No. 12630 and the usual practice with regard to assessments, which attempts to treat them as confidential deliberative documents. 58 Fed. Reg. 8859, ELR Admin. Mat. II 45037 (Mar. 8, 1988). It also may require substantial efforts at identification, property title record searches, and mass mailings in the case of regulations of general applicability.

154. S. 605, § 404.

155. Section 502(4) and (3) together define "private-property owner" for purpose of S. 605, tit. 5. A private-property owner must be a "non-Federal person" and cannot be a state or local official "acting in an official capacity." A nonfederal person is someone "other than an officer, employee, agent, department, or instrumentality of the Federal Government or a foreign government." The definition plainly excludes federal employees, even in their nonofficial capacities (as landowners), from Title 5's benefits.

156. Id. § 508 would provide that within 90 days of a final decision by an agency, the owner could submit a written request for compensation. The agency head would be required to stay the action and within 180 days make two offers — to purchase the property, or to compensate for the diminution in value. The owner could accept one of the offers or reject both. If the owner rejected both, the owner could request binding arbitration under the rules of the American Arbitration Association. Agencies would be required to pay offers or awards promptly out of their appropriations.

157. Id. § 508.

158. Id. § 503(a)(1).

159. Anita P. Miller, All Is Not Quiet on the Western Front, 25 The Urban Law, 834 (1993); Keith Schneider, Bold Plan Seeks to Wrest Control of Federal Lands, N.Y. Times, Apr. 8, 1995, at 6; Florence Williams, Land Owners Turned the 5th Into Sharp Pointed Sword, High Country News, Feb. 8, 1993, at 1; Ernie Thompson, They're Fed Up, and Aren't Going to Take It Anymore, High Country News, Feb. 21, 1994, at 7; Florence Williams, Sage Brush Rebellion II, High Country News, Feb. 24, 1992, at 1; Paul Larmer, Wise Use Ordinance Challenged in Idaho, High Country News, Mar. 22, 1993, at 3 (describing the county ordinance movement); see also Catron County, N.M., Resolution 002-91 (1991); Catron County, N.M., Resolution 003-91 (1991); Catron County, N.M., Resolution 005-92 (1992) (over 100 other western counties have based their ordinances on Carton County's ordinances). Carton County's resolutions purport to define "private property rights" in federal lands and grazing permits, and impose civil and criminal liability on federal employees. See also Boundary Backpackers v. Boundary County, 24 ELR 20522 (Dist. Ct. Boundary County, Idaho 1994) (striking down Boundary County's version of the ordinances); United States v. Nye County, No. CVS-95-002322 (D. Nev. complaint filed Mar. 6, 1995), ELR Pend. Lit. 66385 (federal government's challenge to Nye County's ordinances declaring that county is responsible for managing all public lands located within it); David B. Edelstein, Local Attempts to Gain Control Over Public Lands in the Western United States (1995) (unpublished manuscript on file with the authors).

160. S. 605, § 503(a)(2). It does not address balancing of burdens and benefits or consider reciprocity of advantage, even with respect to the "other legal rights" which may be of nonconstitutional dimension. Thus, even nonconstitutional rights of property owners apparently would trump rights of nonproperty owners.

161. Id.

162. The Contract legislation focuses on diminution in fair market value, thereby treating existing use and potential uses equally. But potential uses have never been entitled to as much deference under any set of laws, ranging from zoning (where prior nonconforming uses are allowed to continue), to takings law. See generally James M. McElfish Jr., Property Rights, Property Roots: Rediscovering the Basis for Legal Protection of the Environment, 24 ELR 10231, 10247-49 (May 1994); see also Defeo v. Sill, 810 F. Supp. 648, 657 (E.D. Pa. 1993) ("That regulatory action deprives property of its most beneficial use does not render it unconstitutional.").

163. Several years ago, EPA restricted the discharge of pollution from gold mines into streams. Most mines rapidly complied with the limitation, but one Alaska mine filed suit claiming that if it complied it would become unprofitable; the mine owners sought payment for the "regulatory taking" of their gold. Rybacheck v. United States, 23 Cl. Ct. 222 (1991) (denying government motion to dismiss gold miners' claim that FWCPA's effluent limitations had rendered their gold mine economically valueless). The case eventually settled out of court with no government payment. The result would have been different, however, under the Contract legislation. Indeed, the legislation's nuisance exception would have been unavailable in that case because the discharges were not a nuisance under Alaska law.

When it comes to environmental protection, nuisance law is a weak reed. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 86, at 616 (5th ed. 1984) (the law of nuisance is an "impenetrable jungle"). Moreover, because of the rise of the police power and regulatory law, the law of nuisance is in a state of arrested development in many states — the most definitive cases may date back to the 1880s and 1890s. This means that although nuisance law may evolve to meet the challenge — see, e.g., Philip Warburg & James M. McElfish Jr., Property Rights and Responsibilities: Nuisance, Land-Use Regulation, and Sustainable Use, 24 ELR 10520 (Sept. 1994) — its path to modernity may be littered with issues to be litigated.

164. 42 U.S.C. § 9621, ELR STAT. CERCLA § 121. See, e.g., Donald Brown, What Is Wrong With the 1990 National Contingency Plan?, 20 ELR 10371 (Sept. 1990).

165. Indeed, zoning is a cherished American tradition that (at least in the urban and suburban jurisdictions where most voters now live) may be as important as property rights.

166. If this is the case, the convergence of land use law with environmental law — which is already occurring — may be hastened. Local communities will need to take responsibility for their own environments. "Think globally, act locally" will evolve from slogan to legal necessity.

167. H.R. 925, § 2 (as the House passed it and folded it into H.R. 9), 141 Cong. Rec. J2629 (daily ed. Mar. 3, 1995).

168. In general, quantitative analyses provide valuable information to government decisionmakers, and their use has increased in federal agencies like EPA.

169. Each new "major rule" would require a set of analyses for cost and risk. Each regulatory decision (even actions simply carrying out legislative mandates) would require the review and evaluation of myriad claims for payment. Since it is unlikely that federal agencies will be receiving increases in appropriations, they would be required to divert personnel and contract funds toward support of these activities.

170. The House-passed H.R. 1022 would require that health, safety, or environmental "major rules" with annual effects on the economy greater than $ 25 million undergo both cost-benefit analyses and risk assessments. A similar approach was taken in H.R. 926, which would require that "major rules" of all types with annual effects on the economy greater than $ 50 million be subject to regulatory-impact analysis, including cost-benefit analysis. Moreover, the bills use different definitional language to describe costs and benefits.

171. UMRA, Pub. L. No. 104-4, § 202(a)(2) (1995). Under Title II of UMRA, an agency that proposes to impose an enforceable duty on state, local or tribal governments, or on the private sector, that would cause either group to spend $ 100 million or more in the aggregate in one year, must make a "qualitative and quantitative assessment of the anticipated costs and benefits" of its action.

172. Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 8 ELR 20528 (1978) (holding that courts must determine "when 'justice and fairness' require that economic injuries caused by public action be compensated by the government").

173. Connolly v. Pension Benefit Guar. Corp., 475 U.S. 225 (1986) (listing factors); accord Concrete Pipe and Prod., Inc. v. Construction Laborers Pension Trust for S. California, 113 S. Ct. 2264 (1993).

174. Another example of this desire for "expert" solutions to public policy problems is Congress' decision several years ago to refer the wetlands delineation question to the National Academy of Science (NAS). But while the NAS opinion, Nat'l Res. Council, Wetlands: Characteristics and Boundaries (1995), is influential, no one really expects it to be determinative — unlike the current expectations for risk assessment, cost-benefit analysis, and other features of the new legislation.

175. One example of the methodological issues involved in assessing benefits is the controvery surrounding the use of the contingent valuation method to assess the value of damages to natural resources like the Chesapeake Bay. See Natural Resource Damages Assessments Under the Oil Pollution Act of 1990, 58 Fed. Reg. 4601, 4602, 4610 (Jan. 15, 1993) (report of Contingent Valuation Panel); Natural Resource Damage Assessments, 59 Fed. Reg. 1062, 1142-1148 (to be codified at 15 C.F.R. pr. 990) (Proposed on Jan. 7, 1994) (discussion of contingent valuation method of valuing natural resources).

176. See, e.g., Sustainable Environmental Law: Integrating Natural Resource and Pollution Abatement Law From Resources to Recovery § 4.1 (Celia Campbell-Mohn et al., eds., 1993) (identifying nine goals embodied in U.S. environmental laws; protection of human health, efficiency, national security, preservation for aesthetics or recreation, sustainability, intergenerational equity, community stability, biocentrism, and pursuit of scientific knowledge and technology).

177. Philip Howard, The Death of Common Sense: How Law Is Suffocating America (1994).

178. Howard writes:

The utopian urge that prompted us in recent decades to write the world's thickest instruction manual, naming it the law of the land, has led us to invent a device that, like detailed rules, also avoids the untidiness of human judgment. It goes by an ancient name, process, but its purpose is new. It once existed to help humans make responsible decisions. Process has now become an end in itself.

Id. at 60 (emphasis in added).

179. For example, the government denies fewer than .04 percent of wetland permits and general permits, but the Contract bills require payment not only for denials, but also for mitigation and avoidance requirements that affect any portion of any property. See Lajuana S. Wilcher, Wetlands and the Constitutional Balance, Nat'l Wetlands Newsl., Mar/Apr. 1995, at 17.

180. See Anthony Lewis, Back to the Future?, N.Y. Times, Apr. 28, 1995, at A33 (noting that "[f]ederalization of tort law is an example" of conservative demands for "Federal action in all kinds of areas traditionally left to the states"); see also Philip H. Corboy, Steamrolling Tort Reform, Legal Times, Mar. 27, 1995, at 22 (arguing that "H.R. 956, the so-called Common Sense Product Liability and Legal Reform Act of 1995, is notable for its complete disregard for principles of federalism.").

181. Ralph Heimlich, Jeanne Melanson, Wetlands Lost, Wetlands Gained, Nat'l Wetlands Newsl., May/June 1995, at 1.

25 ELR 10350 | Environmental Law Reporter | copyright © 1995 | All rights reserved