27 ELR 10019 | Environmental Law Reporter | copyright © 1997 | All rights reserved

A Funny Thing Happened on the Way to the Revolution: The Environmental Record of the 104th Congress

James E. Satterfield

Mr. Satterfield is Senior Associate Editor of ELR—The Environmental Law Reporter. After receiving a J.D. from Columbia University in 1983, he practiced corporate law in New York City for seven years. The views expressed in this Comment are not necessarily shared by the Environmental Law Institute.

[27 ELR 10019]

Although the 104th Congress did not begin officially until January 4, 1995, its significance was apparent as soon as the polls closed on November 8, 1994. When the votes were tallied, Republicans had acquired majorities in both the Senate and the House for the first time in 40 years.1 And they were quick to proclaim the beginning of a revolution in congressional lawmaking.

This Comment analyzes the consequences of this "revolution" and its effects on environmental legislation. The Comment begins with an overview of the new dynamics created when Republicans assumed the role of majority party in Congress and explores the immediate effect this change had on congressional business. It then examines the principal environmental bills that the 104th Congress considered, why certain bills succeeded, and why others failed. Finally, it considers the results of the November 1996 congressional and presidential elections and highlights the developments that bear watching during the 105th Congress.

Overview

The story of the 104th Congress began when Republicans assumed the mantle of majority status in January 1995. It continued into the winter of 1995-1996, when the tide of Republican power receded during the battle over the fiscal year 1996 budget. And it ended with a burst of activity that started in the summer of 1996, when legislators sought to shape their parties' campaign strategies before the national presidential conventions.

The Election, the Contract, and the Acquisition of Power

In 1994, Republicans sought to wrest control of Congress from the Democrats by painting President Clinton and the Democrat-dominated Congress of his first two years as liberal, overreaching, and corrupt. The health-care reform debacle of the 103d Congress, the public's new-found concern [27 ELR 10020] over the deficit, and scandal surrounding abuse of congressional privileges played into the hands of Republicans eager for power. Promising a return to smaller government and better days, Republican candidates for the House presented the public with a "Contract With America," which set forth the agenda for their first 100 days in office. Among other things, the Contract promised to reduce the burden of "unfunded mandates" on states and municipalities, to extend the scope of private property "takings" requiring compensation, and to require federal agencies to evaluate the comparative risks and benefits of existing and proposed regulations.2

Propelled to power on the heels of this commitment, congressional Republicans—confident that the American people had endorsed their program—proceeded to implement their agenda. In the House, under the leadership of the new Speaker, Rep. Newt Gingrich (R-Ga.), committees were restructured. Some were abolished. Choice committee and subcommittee chairs often went to members who lacked seniority,3 and the stage was set for further change. But the Republican leadership failed to understand that even though America may be a conservative country, Americans are conservative even in their conservatism.

Backlash

Republicans in the House charged forward with their Contract. By the end of the first 100 days, the House had passed all the bills that constituted that agenda. In the Senate, however, the bills bogged down. New to minority status, but not to the complex maneuverings of their chamber, veteran Democratic senators such as Robert Byrd (D-W. Va.) wielded potent procedural weapons. Though not all the bills were stymied, most were.4

Nevertheless, the aura of Republican control of Congress pervaded. President Clinton publicly protested suggestions of his irrelevancy.5 Speaker Gingrich even intimated that he might run for President.6 By the fall of 1995, the Republican Revolution was at its peak. It didn't last.

During the appropriations process for fiscal year 1996, Republicans at the vanguard of the Revolution sought to take their agenda to the next level: eliminating the federal deficit. Proposing to eliminate the deficit in seven years, they announced an ambitious plan of spending reduction.7 Budget bills for fiscal 1996 contained huge cuts, especially for disfavored agencies, such as the U.S. Environmental Protection Agency (EPA).8 The President wavered in the face of the Republican assault. Gradually, he moved closer to Republican deficit schedules and targets.9

But Republican zeal exceeded public support. As the attempt to complete the budget process for the fiscal year that began on October 1, 1995, stretched into the winter of 1995-1996, the public lost patience with Republican inflexibility. The leadership's threat to close down the government backfired when two shutdowns of unfunded federal agencies produced news media images of "furloughed" federal workers and bitter tourists locked out of national monuments.10

At this crucial time, the authority of the Republican leadership was undermined by an unusual plane trip. To attend the funeral of Israel's slain prime minister, the President and various American officials, including the Speaker of the House, flew to the Middle East aboard Air Force One. After returning to the United States, the Speaker was not allowed to leave the plane at the front with the President, but had to exit through a side entrance. Later, Mr. Gingrich confessed that partially in retaliation for this and other perceived slights, he had pushed through the House an interim spending measure with conditions that prompted a presidential veto and a government shutdown.11

Public confidence in the Republican leadership dropped.12 The President went on the offensive. The White House painted Republicans as extremists willing to gut Medicare and ravage the environment to save a few bucks.13 Gradually, the Republican position on the fiscal 1996 budget eroded. The deadlock was broken. Democrats, shellshocked by the 1994 elections, were reinvigorated. And the President's popularity surged—just in time for the 1996 campaign.14

The Sprint to the Elections

With the Republican psychological hold on Congress broken, a second, quiescent period began in Congress. It didn't [27 ELR 10021] last. A new, third phase quickly replaced it—less rancorous than the first,15 more productive than the first two. Preparing for reelection, legislators rushed to complete work on bills that had bogged down. Both parties positioned themselves for their summer 1996 national conventions.

Republicans sought to pull the rug out from under Democrats who had planned to campaign against the "do nothing" 104th Congress. Key Democrats sought to steal Republican thunder by agreeing to welfare reform.16 A rush had begun for the middle. The 104th Congress had learned its lesson—the average American hates extremes.

Legislative Accomplishments

Despite its rocky beginning and the House's focus on the Contract With America, the 104th Congress managed to enact more major pieces of environmental legislation than the two previous Congresses combined.17 This legislation included laws that revised the Safe Drinking Water Act (SDWA);18 afforded lenders relief from liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund);19 amended the Resource Conservation and Recovery Act's (RCRA's)20 land disposal requirements; and modified the requirement that pesticide residues on processed foods pose no risk of cancer. It also included laws that addressed logging and other activities on public lands, revised wetland and farmland conservation measures, and expanded the circumstances under which private parties can recover litigation costs from the federal government. And it included laws that addressed oil and gas pipeline safety, EPA grants, and appropriations.

SDWA Reform

SDWA reform was one of the 104th Congress' major environmental priorities. Drinking water utilities and state and local governments had complained for years about the burden of meeting stringent federal drinking water standards. Water utilities charged that the existing law, which required EPA to regulate 25 new contaminants every three years, was too focused on quotas.21 The Safe Drinking Water Act Coalition, which represented industry and state and local governments, argued that federal drinking water law should be based on "better science" and on the degree of contaminants' occurrence in water.22 And environmental groups pushed for legislation that would protect groups at special risk, such as children and pregnant women.23

The 103d Congress had tried mightily to reform the federal drinking water law. Both the Senate and the House had passed SDWA reform bills, but differences between their bills—especially language in the Senate bill that would have required EPA to perform cost-benefit and comparative-risk analyses for certain regulations—doomed enactment of reform legislation in the 103d Congress' final days.24

The effort to complete the work of the 103d Congress began on the second day of the 104th Congress. On January 5, 1995, Rep. John Dingell (D-Mich.) introduced SDWA reform bill H.R. 226.25 The bill was identical to the bill that the House had passed in 1994. H.R. 226 would have required EPA, during the first year after the bill's enactment, to evaluate for possible regulation 15 unregulated contaminants that appear to pose the greatest threat to public health. The bill would have required EPA to review an additional 12 contaminants every four years thereafter and to set standards for those contaminants it determined merited regulation. The bill would have further required EPA to consider incremental cost increases and resulting health risk reductions in regulating carcinogens. The Agency could have considered cost in issuing regulations for other pollutants, but could not have used cost-benefit analysis to weaken existing regulations. The bill also would have established a state revolving loan fund program, similar to the one authorized under the Federal Water Pollution Control Act (FWPCA),26 to help water systems comply with the SDWA.27

The Dingell bill got nowhere in the new Republican-dominated Congress. In the Senate, however, SDWA reform was taken over by powerful forces. Sen. John Chafee (R-R.I.), Chairman of the Senate Environment and Public Works Committee, joined with Sen. Dirk Kempthorne (R-Idaho), Chairman of the committee's Drinking Water, Fisheries, and Wildlife Subcommittee, to develop a bill that would garner bipartisan support. Introduced on October 12, 1995, the bill, S. 1316,28 would have replaced the requirement that EPA issue drinking water standards for 25 new contaminants every three years with a requirement that the Agency prepare a list of unregulated contaminants for study and, beginning in 2001, determine every five years whether five of those contaminants merit regulation. The bill would have required EPA to conduct cost-benefit analyses in deciding to promulgate each new standard. If the Agency concluded that the benefits of a standard issued under existing law did not justify water systems' costs of complying with that standard, EPA could issue a less stringent standard that maximized the reduction of health risks at a "justified" cost. The bill also would have established a state revolving loan fund program.29 The Senate Environment and Public [27 ELR 10022] Works Committee approved the bill unanimously on October 24, 1995,30 and the full Senate unanimously approved it the next month.31

The House's effort to reform the SDWA did not begin in earnest until 1996. To accelerate the process of developing a bipartisan bill, Republicans and Democrats on the House Commerce Committee decided to forgo issue-by-issue discussions. Instead, negotiations were put off until the Republican staff developed a complete proposal.32 The proposal, released on March 26, 1996, provided that every five years EPA would consider five new drinking water contaminants for possible regulation.33 In addition, EPA would report whether the incremental benefits of a proposed standard justified its incremental costs. EPA would be required to set maximum contaminant level goals (MCLGs) so that, allowing for an adequate margin of safety, no known or anticipated adverse health effects would occur,34 and the Agency could set a drinking water standard as close to the MCLG as feasible, unless "the incremental costs of control at such level … exceed the incremental benefits of such control."35 The committee's Democratic staff, however, proposed that if the benefits of the standard did not justify the cost, EPA could issue a standard that "maximizes health risk reduction benefits at a cost that is justified by the benefits."36 Both proposals provided for state revolving funds.37 But unlike the Republican proposal, the Democratic proposal would have allowed EPA to delay making cost-benefit determinations for interim drinking water standards that address urgent health threats.38

Eventually, committee members resolved their differences, and the committee unanimously approved the bill, H.R. 3604,39 on June 11.40 The bill received broad, if qualified support, from the Clinton Administration, environment and public health groups, and the Safe Drinking Water Act Coalition.41 And on June 25, it was passed by the House.42

The bills that the Senate and the House passed were strikingly similar. Nevertheless, differences between them required resolution by conference committee. H.R. 3604 contained a provision requiring water systems to give each customer annual reports listing contaminants found in their water supplies. The Senate bill contained no such language. The two bills defined "small water systems," for purposes of compliance relief, differently. S. 1316 would have allowed states to mingle funds from their FWPCA and SDWA revolving funds, while H.R. 3604 would not. And S. 1316 would have allowed EPA to set MCLGs for a carcinogenic drinking water contaminant at a level other than zero if the Agency determined that ingesting the contaminant at that level would pose no risk of cancer.43

Finally, the conferees issued their report. Both houses of Congress approved it on August 2,44 and the President signed the bill into law on August 6.45 The new law—the Safe Drinking Water Act Amendments of 199646—requires that EPA determine every five years whether to regulate five new contaminants contained on a list, developed by the Agency in consultation with the scientific community, of unregulated contaminants that are known or anticipated to occur in drinking water systems.47 The Agency must select for consideration contaminants that present the greatest public health concern. In addition, it must consider the effect of such contaminants on groups, such as children, pregnant women, and the elderly, that face a greater risk of adverse effects from such contaminants than the general population does.48 Although EPA must publish a determination of whether the benefits of a proposed maximum permissible level for a contaminant—a maximum contaminant level (MCL)—justify the costs of complying with it,49 the Agency has up to three years to issue this determination for interim national primary drinking water regulations that address an urgent public health threat.50 If the Agency determines that an MCL's benefits would not justify its costs, EPA may promulgate an MCL for the contaminant [27 ELR 10023] that maximizes health risk reduction benefits at a cost that the benefits do justify.51

The new law also requires EPA to issue regulations that require community water systems to mail to each customer, at least annually, reports on the level of contaminants in their drinking water. State governors may require that systems serving less than 10,000 persons publish such reports in a local newspaper and make them available on request instead of mailing them to customers annually. Systems serving 500 persons or less need only notify customers that such reports are available.52 In addition, the new law authorizes $ 9.6 billion for state revolving loan funds.53

Lender Liability Under CERCLA

Ever since a federal court54 had struck down an EPA rule55 intended to protect lenders from Superfund liability, the lending industry had clamored for congressional action. Finally, in language added to an omnibus budget reconciliation bill passed at the end of the second session, the 104th Congress responded.

The relevant provision of the budget bill is entitled the Asset Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996.56 The Act amends CERCLA § 101(20)'s definition of "owner or operator" to exclude from liability a "lender that did not participate in management of a vessel or facility prior to foreclosure, notwithstanding" that the lender forecloses on the vessel or facility and takes steps to prepare the vessel or facility for sale. The lender must attempt to sell or re-lease the property "at the earliest practicable, commercially reasonable time, on commercially reasonable terms."57 The new law defines "participate in management" as "actually participating in the management or operational affairs of a vessel or facility."58 "Capacity to influence" is not a basis for imposing CERCLA liability on a lender.59 The new law also excludes from the definition of "owner or operator" a lender that "without participating in the management of a vessel or facility, holds indicia of ownership primarily to protect the security interest of the [lender] in the vessel or facility."60 It defines "security interest" broadly and defines "lender" to include institutional lenders, private lenders, and government lenders that are "insured depository institutions."61 It also protects lenders from RCRA liability resulting from contamination from underground storage tanks.62

In addition, the new law amends CERCLA § 107 to provide that the liability of fiduciaries "shall not exceed the assets held in the fiduciary capacity."63 And it creates a safe harbor for fiduciaries that undertake lawful response actions, provided that any negligence on their part does not cause or contribute to the release or threatened release of hazardous substances.64

The new law declares valid and judicially unreviewable parts of EPA's lender liability rule that attempted to protect government entities that acquired possession of contaminated property involuntarily. And it allows EPA to issue amended rules relating to such entities.65

The RCRA "Rifle Shot" Bill

The 104th Congress took a similar, narrowly tailored, approach to RCRA reform.66 In addition to legislation addressing lender liability under RCRA,67 it passed a RCRA "rifle shot" bill68 dealing with land disposal of "decharacterized" hazardous waste.69 As enacted, the bill exempts certain decharacterized hazardous waste from some of RCRA's land-disposal and underground-injection requirements. To qualify for this exemption, the waste must be treated and discharged pursuant to a national pollutant discharge elimination system permit or pretreated pursuant to FWPCA § 307.70 Alternatively, decharacterized waste may qualify for the exemption if, before land disposal, it is treated in a zero discharge system that engages in treatment equivalent to that required under FWPCA § 402.71 It also may qualify if it is injected in a permitted underground injection control Class I well.72

[27 ELR 10024]

The Timber Rider to the 1995 Rescissions Bill

In 1995, Congress passed a bill that authorized supplemental funding for disaster relief and antiterrorism measures and rescinded certain previous appropriations.73 The bill included a rider74 that required the Secretaries of Agriculture and the Interior to "prepare, advertise, offer, and award" contracts for "salvage timber sales" on land subject to U.S. Forest Service or Bureau of Land Management (BLM) jurisdiction.75 The Secretaries' authority to do this expired on December 31, 1996.76

The rider defined "salvage timber sale" as a timber sale "for which an important reason for entry includes the removal of disease- or insect-infested trees, dead, damaged, or down trees, or trees … imminently susceptible to fire or insect attack."77 The term also included "the removal of associated trees or trees lacking the characteristics of a healthy and viable ecosystem for the purpose of ecosystem improvement or rehabilitation."78 The documents and procedures that the rider required for the preparation, advertisement, offer, award, and operation of a salvage timber sale are deemed to satisfy the requirements of applicable federal environmental laws.79

In addition, the rider required the Secretaries of Agriculture and the Interior to release and allow completion of "all timber sale contracts offered or awarded before [the date of the rider's enactment] in any unit of the National Forest System or district of the [BLM] subject to section 318" of the fiscal year 1990 U.S. Department of the Interior (DOI) appropriations bill.80 The U.S. Court of Appeals for the Ninth Circuit interpreted this requirement to include sales occurring after the period covered by that appropriations bill.81

One commentator has noted that despite its professed purpose of improving forest health, the rider allows harvesting of healthy trees. It only required that harvesting "salvage" timber be an important reason for logging. Every tree in a forest can qualify as "imminently susceptible to fire or insect attack," and "associated trees" could include healthy trees surroundingdead or damaged trees.82 This commentator has added that the rider's preemption of federal environmental laws replaced multitudinous protections with reduced, ill-defined, and often discretionary procedures.83

Pesticide Law Reform

For years Congress had been under pressure to repeal the Federal Food, Drug, and Cosmetic Act's (FFDCA's) Delaney Clause,84 which in effect provided that pesticide residues on processed foods may not pose any risk of cancer.85 A 1987 National Academy of Sciences study proposed a uniform tolerance standard for pesticides for both raw and processed foods, under which exposure would have no more than one chance in a million of causing cancer.86 In 1988, EPA announced that it would apply a de minimis exception to the Delaney Clause.87 But in 1992, the Ninth Circuit struck down that policy.88

In 1996, Congress amended the FFDCA to remove pesticide residues in processed foods from the definition of "food additive."89 The Delaney Clause, which the new law did not amend, applies to food additives. The amendments' effect is "to require tolerances for all pesticide residues on raw and processed food to be based on a single negligible risk criterion."90 Although the farm industry hailed the new law as discarding outdated legislation that had failed to contemplate today's improved methods for detecting residues, several environmental groups charged that the new law impairs the protection of public health.91

[27 ELR 10025]

The Farm Bill

On April 4, 1996, President Clinton signed into law a new farm bill—the Federal Agriculture Improvement and Reform Act of 1996.92 The bill contains much good news for environmentalists. It extends through 2002 the Conservation Reserve Program, which pays farmers to leave environmentally sensitive land idle, and it authorizes new enrollments in the program.93 The new law continues the Wetlands Reserve Program and creates a new Environmental Quality Incentives Program to replace many U.S. Department of Agriculture cost-sharing programs for soil and water conservation.94 It establishes a wetland mitigation banking pilot program, provides for purchasing wetlands in the Everglades, and creates a National Natural Resources Conservation Foundation to attract private funding for environmental projects.95 It also affords farmers greater flexibility in growing crops that conserve resources.96

On the flip side, the bill weakens the Swampbuster program.97 Farmers can no longer lose crop insurance payments if they violate Swampbuster. The Natural Resources Conservation Service (NRCS) need not consult with the U.S. Fish and Wildlife Service (FWS) on many decisions, and NRCS decisions that agricultural lands are not wetlands are now more difficult to challenge.98 In addition, the bill creates a new "categorical, minimal effect" exemption from Swampbuster.99

Public Lands, Pipelines, and Performance Partnership Grants

The 104th Congress' string of accomplishments also includes legislation concerning public lands, oil and gas pipeline safety, and EPA "performance partnership" grants. In an omnibus public lands bill, Congress provided for over 100 park projects in 41 states.100 The bill authorizes $ 17.5 million to assist in the public purchase of the Sterling Forest in New York and New Jersey; creates the country's first protected tallgrass prairie; establishes a trust fund to renovate and maintain the Presidio in San Francisco; and provides for a land exchange in Snowbasin, Utah, for the 2002 Winter Olympics.101 At the last minute, Sen. Frank Murkowski (R-Alaska) held up the bill, forcing the White House to negotiate for the removal of a provision that would have extended logging in Alaska's Tongass National Forest for 15 years. The final deal, made separate from the legislation, guarantees a subsidiary of the Louisiana Pacific Company a two-year supply of timber from the Tongass.102

In addition, in other legislation, Congress required that new safety standards applying to the pipeline industry must be subjected to cost-benefit tests.103 And in language included in the fiscal year 1996 omnibus appropriations bill,104 Congress authorized EPA to award performance partnership grants that allow states and Native American tribes to reallocate funds from separate categorical grants. The performance partnership program is intended to give states and tribal governments "the flexibility to address their most pressing environmental priorities across all media and establish resource allocations based on those priorities, while continuing to address core program commitments."105

Appropriations

The appropriations process for fiscal year 1997 lacked much of the contentiousness that pervaded the fiscal 1996 budget process. The House leadership reportedly discouraged legislators from adding to the fiscal 1997 bills controversial riders such as those included in the prior year's EPA appropriations bill.106

On September 28, 1996, the House passed an omnibus appropriations bill, which the Senate passed—and the President signed—two days later.107 The bill cut funding for most programs and allowed meager funding increases for most of the rest. It cut the DOI's budget to $ 6.18 billion for fiscal 1997, down $ 22 million from the prior year, and $ 421 million less than the President requested.108 The DOI's fiscal 1997 funding includes $ 1.091 billion for the BLM (versus $ 1.106 billion for fiscal 1996), $ 653 million for the FWS (versus $ 646 million for fiscal 1996), and $ 1.414 billion for the National Park Service (versus $ 1.368 billion for fiscal 1996). The Forest Service's budget was set at $ 2.36 billion, $ 3 million less than for fiscal year 1996, but $ 123 million more than the President requested. The National [27 ELR 10026] Marine Fisheries Service's budget was set at $ 323 million, $ 41 million more than for fiscal 1996 and $ 17 million more than the President requested. And EPA's budget was raised to $ 6.799 billion, only $ 271 million more than for fiscal year 1996, and about $ 300 million less than the President requested.109

The bill's relative austerity allowed Republicans to claim that they had fulfilled their promise to impose fiscal restraint on the federal government. It also allowed Democrats to claim that they had beat back the threat to many key programs: only a year before, the Republican leadership had attempted to cut EPA's budget by one-third; now, EPA's budget was being increased, albeit nominally.

The Contract With America—"Successes" and "Failures"

The Contract With America included legislative proposals with such names as the American Dream Restoration Act, the Common Sense Legal Reforms Act, and the Personal Responsibility Act.110 Many of the proposals contained concepts carried over from the 103d Congress. Three of those concepts were propositions to end "unfunded federal mandates," to require federal agencies to undertake comparative-risk and cost-benefit analyses before issuing regulations, and to expand the definition of federal action requiring compensation of private-property owners.111 Ultimately, only part of the Contract was enacted, and that part included only a portion of this triad.

The Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995,112 which President Clinton signed on March 22, 1995,113 was one of the first parts of the Contract to become law. Its sponsors hailed it as a deterrent to congressional imposition of unfunded mandates on state and local governments.114

The Act creates a point of order that bars consideration on the floor of the House and Senate of bills that would require state, local, and tribal governments to spend over $ 50 million annually to comply with any federal mandate.115 Nevertheless, either chamber can still vote to consider such bills, and the Act specifies that its point of order provision is part of each chamber's rules and can be changed by either chamber at any time.116 The new law also requires federal agencies, before promulgating a regulatory mandate that would cost private companies or state, local, and tribal governments at least $ 100 million annually, to identify regulatory alternatives and, from those alternatives, to select the least costly, most cost-effective, or least burdensome alternative that achieves the regulation's objectives.117 But an agency need not adopt that alternative, if the head of the agency explains why the agency did not choose it.118

Regulatory Reform and Amendments to the Equal Access to Justice Act

Regulatory reform was a key component of the Contract. The Contract's Job Creation and Wage Enhancement Act would have required federal agencies to prepare risk assessments and cost-benefit analyses for each new regulation.119

On March 3, 1995, the House passed a bill, H.R. 9,120 that embodied this concept. The bill would have required federal agencies to prepare regulatory impact analyses for proposed rules that are likely to have an annual impact on the economy of at least $ 50 million, and would have required federal agencies to prepare cost-benefit analyses for rules that are likely to increase annual costs by $ 25 million or more.121

In the Senate, then-Majority Leader Robert Dole (R-Kan.) led the Republican's regulatory reform effort. On February 2, 1995, he introduced S. 343,122 which would have required federal agencies to publish cost-benefit analyses of proposed regulations that are likely to have a gross annual effect on the economy of $ 50 million or more in increased direct or indirect costs or to have a significant impact on a sector of the economy.123 The bill also would have prohibited federal agencies from promulgating rules whose potential social costs outweigh their potential social benefits. And it would have created a 45-day period in which Congress could review major regulations before they take effect and would have allowed small businesses to enforce provisions of the Regulatory Flexibility Act of 1980 in court.124 Senator Dole was unable, however, to muster the 60 votes needed to close off debate on the bill. And on July 20, 1995, he declared it dead.125

But Republicans renewed their regulatory reform efforts [27 ELR 10027] in 1996. Ultimately, they succeeded in attaching regulatory reform language to a bill that provided for increasing the public debt ceiling. The Senate and the House passed the bill on March 28, 1996,126 and the President signed it the next day.127

Title II of the bill is entitled the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA).128 It gives Congress 60 days to review "major" rules of federal agencies before they become final. Major rules include any rule that the Office of Management and Budget finds has resulted in or is likely to result in an annual effect on the economy of $ 100 million or more; a major increase in industry, consumer, or government prices; or a significant adverse effect on competition, employment, investment, productivity, or innovation.129 The new law also allows small businesses to obtain judicial review of agency actions taken under the Regulatory Flexibility Act of 1980130 and requires federal agencies to prepare guides to assist small businesses in complying with regulations for which 5 U.S.C. § 604 requires regulatory flexibility analyses.131 In addition, the new law provides for the designation of regional ombudsmen and oversight boards to monitor the enforcement practices of certain federal agencies with respect to small businesses.132

The SBREFA also amends the Equal Access to Justice Act (EAJA)133 by expanding the circumstances under which the federal government must pay private parties' litigation costs. Under the EAJA as it existed before the SBREFA's enactment, the federalgovernment was required to pay the attorneys fees and other litigation costs that a prevailing private party incurred in an agency "adversary adjudication" or in a civil case by or against the U.S. government, unless the adjudicatory officer or court found that the government's position was "substantially justified" or special circumstances made the award of such costs unjust.134 The EAJA also limited the award of such costs to individuals whose net worth did not exceed $ 2 million and to businesses, associations, organizations, and units of local government whose net worth did not exceed $ 7 million and who had fewer than 500 employees.135

The SBREFA amended the EAJA to require that agencies and courts award costs to certain nonprevailing parties. Now, "in an adversary adjudication arising from an agency action to enforce a party's compliance with a statutory or regulatory requirement," a "small entity" must be awarded its attorneys fees and other costs if "the demand by the agency is substantially in excess of the decision of the adjudicative officer and is unreasonable when compared with such decision, under the facts and circumstances of the case."136 In "a civil action brought by the United States or a proceeding for judicial review of [such] an adversary adjudication," a "small entity" must be awarded its attorneys fees and other costs if "the demand by the United States is substantially in excess of the judgment finally obtained by the United States and is unreasonable when compared with such judgment, under the facts and circumstances of the case."137 The private party is not entitled to such an award if it "committed a willful violation of law or otherwise acted in bad faith, or special circumstances make an award unjust."138 Awards are not limited to parties meeting the preexisting EAJA's net worth and employee tests, but may go to any "small entity," a term defined by reference to other statutes, but which may include some companies with as many as 1,500 employees and as much as $ 25 million in annual revenues.139

Private-Property Rights

Part of the 104th Congress' regulatory reform effort was the attempt to enact bills that addressed the impact of governmental action on private-property rights.140 On March 3, 1995, the House passed H.R. 925,141 which would have required the federal government to compensate a property owner if agency action under a specific regulation limited the owner's use of any portion of its property and diminished that portion's fair market value by 20 percent or more.142 And in late December 1995, the Senate Judiciary Committee approved a bill introduced by Senator Dole, S. 605,143 which would have required compensation if a federal regulation reduced the value of private property by at least 33 percent.144

S. 605 was never scheduled for Senate floor action, but in July 1996, Sen. Orrin Hatch (R-Utah) introduced a modified version of it, S. 1954.145 The Hatch bill provided for [27 ELR 10028] compensating landowners when federal agency action reduced their property values by at least 50 percent. Like S. 605, it would have required federal agencies to perform "taking impact analyses" before issuing new regulations likely to "take" private property.146 But S. 1954 received no more support than S. 605 did.147

Unfinished Business

The 104th Congress ended with an extensive list of unfinished environmental business. Several of the items on the list had carried over from preceding Congresses. The 102d and 103d Congresses had tried and failed to reauthorize the FWPCA and to reform federal mining law. The 102d Congress had unsuccessfully attempted to reauthorize the Endangered Species Act (ESA)148 and RCRA, and the 103d Congress had endeavored to reform CERCLA and federal grazing law.149 But despite its efforts, the 104th Congress was no more successful that its two predecessors in enacting comprehensive reforms of these laws.

Superfund Reform

[] Background. From the start, Superfund reform was one of the 104th Congress' top priorities. Criticism of the program abounded. Industry charged that the program's retroactive, joint, and several liability system was unfair, imposing huge costs on companies that had disposed of waste legally. Cleanup of contaminated sites was slow and costly.150 The consensus among most legislators was that something had to be done.

The 103d Congress had strived mightily to amend the statute. Committees in both the Senate and the House had reported Superfund reform bills. But in the end, neither house could pass Superfund reform legislation.151

The 104th Congress' effort to amend CERCLA began practically at the start of the first session. On January 5, 1995, Representative Dingell introduced H.R. 228,152 a bill virtually identical to the House bill that made it as far as the Rules Committee in 1994. The Dingell bill, however, got nowhere.153 The driving force for Superfund reform in the 104th Congress had shifted to the Republican committee and subcommittee chairs.

The primary movers of Superfund legislation in the Senate were Senator Chafee, Chairman of the Senate Environment and Public Works Committee, and Sen. Robert Smith (R-N.H.), Chairman of the Senate Environment and Public Works Committee's Subcommittee on Superfund, Waste Control, and Risk Assessment. In the House, the key players were Rep. Thomas Bliley (R-Va.), Chairman of the House Commerce Committee; Rep. Sherwood Boehlert (R-N.Y.), Chairman of the House Transportation and Infrastructure Committee's Subcommittee on Water Resources and the Environment; and Rep. Michael Oxley (R-Ohio), Chairman of the House Commerce Committee's Subcommittee on Commerce, Trade, and Hazardous Materials. For most of them, the desire to repeal the Act's retroactive liability scheme was the primary motivation for amending CERCLA, but attempts to repeal retroactive liability faced fierce opposition.

For the Democratic leadership, the basis of Superfund's liability system was "the polluter pays." Repealing retroactive liability, they believed, would cut out the heart of that system.154 Although other contentious issues also plagued Superfund reform in the 104th Congress, it was the issue of liability that attracted the most attention, and it was division over this issue that ultimately defeated reform efforts.155

[] The Development of Initial Proposals. The Superfund reform process proceeded along similar tracks in the Senate and the House. On June 28, 1995, Senator Smith released his plan for Superfund reform, which provided for repealing liability for actions taken before CERCLA's enactment on December 11, 1980.156 Representative Oxley introduced his statement of principles for reform on July 17, 1995. It provided for eliminating pre-1987 liability.157

Representative Oxley quickly ran into opposition. State and local governments opposed such an extensive rollback of the liability scheme, which could drastically reduce funds available for cleanups. The Congressional Budget Office announced that the Oxley proposal would cost an additional $ 1 billion or more annually. And industry charged that the scheme penalized companies that had already settled their liability.158

In response to these criticisms, Representative Boehlert proposed a more moderate plan. It provided for eliminating the retroactive liability only of "potentially responsible parties" (PRPs) at municipal landfills where multiple parties had disposed of waste.159

[27 ELR 10029]

On October 18, 1995, he and Representative Oxley, together with 15 other Republicans and 1 Democrat, introduced a bill that embodied a modified repeal of retroactive liability.160 The bill, H.R. 2500,161 provided for reimbursing liable parties for up to 50 percent of the cleanup costs they incurred before 1987. In addition, it would have replaced CERCLA's joint and several liability system with a "fair share" system that allocated liability among PRPs at a site in proportion to the contamination that they caused.162 Oxley's Commerce, Trade, and Hazardous Materials Subcommittee approved the bill three weeks later.163

On September 29, 1995, Senator Smith introduced his own Superfund bill, S. 1285.164 Similar to H.R. 2500 in many respects, S. 1285 provided for a 50-percent tax credit, but consistent with Senator Smith's original plan, S. 1285's credit applied to cleanup costs that PRPs incurred before 1981, subject to certain conditions. S. 1285 also set forth a mandatory, nonbinding allocation process for multiparty sites. It provided that PRPs would only be assessed for costs associated with their own actions, and it specified that the Superfund trust fund would cover the costs of liable parties that were bankrupt or insolvent.165

Each bill tried to satisfy the congressional Republicans who wanted to eliminate retroactive liability and the congressional Republicans who feared that repealing retroactive liability was a "budget buster," but both bills met with opposition. Senator Dole opposed the Smith bill's tax credit scheme, causing Senator Smith suddenly to cancel a subcommittee hearing on the bill.166 And opposition to H.R. 2500 compelled Representative Oxley to rewrite his bill to replace the 50-percent credit with language eliminating the pre-1987 liability of hazardous-substance generators and transporters.167

There was also opposition to the process by which Superfund reform legislation was being developed. Democrats on the Senate Environment and Public Works Committee accused Senators Chafee and Smith of engaging in "Comintern" practices,168 and Representatives Dingell and Bliley locked horns over the best way to establish "meaningful" negotiations to produce bipartisan legislation.169

[] The Negotiations. In April 1996, House Democrats and the Administration circulated a Superfund reform proposal of their own. It provided for increasing "orphan share" funding170 and included liability exemptions for small businesses and municipalities broader than those included in the Administration's proposal during the 103d Congress. The new proposal also provided for expedited settlement for "de minimis" PRPs.171

Republicans countered by proposing three options.172 The first would have exempted generators and transporters from pre-1987 liability. The second would have exempted from pre-1987 liability only municipal landfills and sites created by recycling operations. The second option also would have exempted small hazardous-substance contributors at other sites. The third option was similar to the second, except that it included an Administration proposal to exempt businesses with less than 25 employees and less than $ 2 million in annual revenues. The counterproposal also discarded an earlier proposal to sunset the national priorities list (NPL) of Superfund sites, but would have limited additions to the list for five years.173 In addition, the counterproposal would have provided for a guaranteed funding mechanism.

In the Senate, Senators Chafee and Smith released a new proposal on March 21, 1996. It provided that EPA would pick up the cost of orphan shares. Liability for pre-1981 hazardous-substance disposal that was legal when performed would be considered an orphan share. Nevertheless, owners and operators of "single party" contaminated sites would retain their liability. And the liability of generators and transporters at municipal solid-waste sites would be capped at 10 percent of site cleanup costs incurred after passage of the bill.174

On April 18, the Administration and Senate Democrats released their counterproposal. It would have exempted residential homeowners, small nonprofit organizations, and businesses with less than 100 employees from CERCLA transporter and generator liability that they otherwise would have incurred because of their disposal of municipal solid waste or municipal sewer sludge. The counterproposal would have exempted all other generators and transporters of municipal solid waste or municipal sewer sludge from liability at NPL sites for activities that occurred before [27 ELR 10030] January 1, 1996. It would have capped the liability of any municipality that owns or operates an NPL-listed landfill predominantly containing municipal solid waste or municipal sewer sludge, if the municipality has less than 100,000 citizens. And it would have provided for expedited settlement of liability for parties that contributed 1 percent or less of the waste at contaminated sites.175

At a May 14 meeting, Senate Republicans reportedly responded to this proposal. They proposed repealing the liability of all parties at municipal solid-waste landfills that also accepted industrial waste and at sites created solely by recycling activities. They proposed an exemption for small businesses. And they proposed a "fair share" system of allocating the liability of all other parties.176

Administration officials met with Senate Republicans to resolve their differences, but the meeting produced no breakthrough. The Administration reportedly insisted that liability reform focus on categories of parties, not categories of sites.177

House Republicans charged that their Democratic counterparts had not responded to the Republicans' April 30 proposal and that the Democrats were blocking further progress. An Administration official countered that the Republican proposal was not the comprehensive scheme that Republicans had promised.178

In the end, legislators were unable to break the deadlock. Some House members proposed moving a narrowly tailored CERCLA bill that just addressed brownfields,179 but Representatives Bliley and Oxley objected, fearing that such a bill would remove much of the impetus behind broader reform.180 And several legislators began to discuss the possibility of reforming CERCLA in the next Congress.181

FWPCA Reform

Although many legislators considered FWPCA reform to be one of the 104th Congress' main priorities, early in the first session some FWPCA stakeholders predicted that the 104th Congress was unlikely to revise the statute. These stakeholders noted that Senator Chafee, whose Senate Environment and Public Works Committee had jurisdiction over FWPCA reform, had shown little enthusiasm for comprehensive FWPCA changes. He considered SDWA reform to be a higher priority.182 But in the House, FWPCA reform had powerful champions.

On February 15, 1995, Rep. Bud Shuster (R-Pa.), Chairman of the House Transportation and Infrastructure Committee, introduced FWPCA reform bill H.R. 961.183 The bill would have authorized $ 2 billion per year through fiscal year 2000 for state revolving loans for wastewater treatment projects and would have required states to improve programs to control nonpoint source pollution. In addition, it would have created a tripartite system for classifying wetlands based on value and function and would have required the federal government to compensate landowners whose property values were diminished by wetlands restrictions.184

Representative Shuster called the bill a starting point for discussions. Before the House Transportation and Infrastructure Committee began its markup, he released a revised version of it,185 which the committee reported, with amendments, on April 6, 1995.186 The House passed the bill on May 16, 1995.187 As passed, it would have amended the FWPCA to base wetlands protection on function and use, and would have required the government to compensate landowners for reductions in property value of 20 percent or more resulting from federal wetlands regulation. In addition, it would have authorized $ 2.25 billion for fiscal year 1996 and $ 2.3 billion annually for fiscal years 1997 through 2000 for the state revolving loan program that supports wastewater treatment plant construction. Also, it would have redefined stormwater discharges as nonpoint source discharges, effectively converting the current stormwater permit program into a nonpoint source management program.188 The President announced that he would veto the bill if the Senate passed it in the same form.189

But the Senate was not even close to passing H.R. 961. Despite reported pressure from then-Senate Majority Whip Trent Lott (R-Miss.) to move the House bill, Senator Chafee [27 ELR 10031] was inclined to consider narrowly tailored revisions to the Act.190 He believed that a comprehensive bill could not proceed until the wetlands issue was resolved.191

The wetlands subcommittee of Senator Chafee's Environment and Public Works Committee held extensive hearings on the wetlands issue.192 On May 25, 1995, the subcommittee's Chairman, Sen. Lauch Faircloth (R-N.C.), and Sen. J. Bennett Johnston (D-La.) introduced a wetlands bill, S. 851.193

S. 851 would have amended the FWPCA to require the U.S. Army Corps of Engineers to classify wetlands into three categories based on current wetlands function and to regulate them according to those functions. The bill would have defined wetlands to require that there be water on or above the surface of the ground for at least 21 consecutive days during the growing season. In addition, it would have required that "high value" wetlands be regulated under the current sequencing methodology, that "medium value" wetlands be regulated under a balancing test, and that "low value" wetlands not be regulated by the federal government. It would have eliminated EPA's power to veto § 404 permits. It would have authorized and provided incentives for mitigation banking. And it would have required public notification of the location of federal jurisdictional wetlands.194

But the bill died in committee, and the Senate proceeded no farther in developing an FWPCA reform bill of its own. In addition to Senator Chafee's disinterest in comprehensive revisions, SDWA and Superfund reform diverted legislators' attention from FWPCA reform.195

RCRA Reform and Solid Waste Flow Control

Unlike the efforts to amend other major environmental statutes, the effort to amend RCRA focused exclusively on narrowly tailored proposals. In addition to the RCRA land-disposal bill enacted on March 26, 1996,196 Congress considered a RCRA corrective-action bill, S. 1274,197 introduced by Senator Lott on September 26, 1995.198 The Lott bill would have given EPA the authority to delegate jurisdiction over cleanups to authorized states and would have provided for EPA and states to share enforcement of remediation plans.199 In addition, the bill would have exempted remediation wastes managed in accordance with an approved remedial action plan from RCRA subtitle C hazardous-waste management rules.200 Although the regulated industry negotiated with EPA over the bill, and Senator Smith reportedly intended to introduce a bill reflecting those negotiations,201 the absence of bipartisan support doomed prospects for further legislative action.202

Bills to authorize state control over solid-waste disposal fared better, but still failed to gain enactment.203 On May 16, 1995, the Senate passed S. 534,204 which would have authorized some states to limit out-of-state waste imports and would have allowed municipalities to direct solid waste to their own facilities.205 But the House voted against a flow control bill of its own.206

ESA Reform

Efforts to amend the controversial ESA proceeded swiftly in the 104th Congress' first session, then stalled as conservative Republican legislation in the House met fierce opposition from Democrats and moderate Republicans. Confronted with the stalemate in the House, the Senate Environment and Public Works Committee decided to devote precious committee time to other legislation.207

The key ESA bill in the House was H.R. 2275.208 Introduced on September 7, 1995, by House Resources Committee Chairman Don Young (R-Alaska), Rep. Richard Pombo (R-Cal.), and over 90 other sponsors, H.R. 2275 would have required the federal government to compensate private landowners for ESA restrictions that reduced the value of their land by at least 20 percent.209 If the restrictions reduced the land's value by at least 50 percent, the bill would have required the government to purchase the property, if the owner consented.210 The bill also provided that modification of habitat was not a "take" of listed species,211 [27 ELR 10032] overriding a DOI regulation upheld by the U.S. Supreme Court.212 Rejecting a more moderate bill introduced by Rep. Wayne Gilchrest (R-Md.),213 the House Resources Committee approved H.R. 2275 on October 12, 1995.214

In the Senate, the effort to enact extensive ESA reforms began on May 9, 1995, when Sen. Slade Gorton (R-Wash.) introduced S. 768.215 But the bill fell by the wayside after Senator Gorton admitted that major parts of it had been drafted by lawyers for the mining, timber, and grazing industries.216

Attention then turned to S. 1364,217 which Senator Kempthorne introduced on October 26, 1995.218 The Kempthorne bill provided for eliminating the National Marine Fisheries Service's ESA authority and creating a presidentially appointed commission to assist the DOI in making species protection decisions. The bill would have required the federal government to compensate private landowners for reductions in the value of their property resulting from certain actions to protect species, and it would have redefined the term "take" to mean proximately and foreseeably injuring, killing, or reducing to possession. The bill would have included in the definition of "take" proximate and foreseeable habitat modification that affects a member of a listed species in any of these ways.219

The Senate's ESA overhaul effort did not, however, progress even as far as the House effort. Although Senator Chafee announced in June 1996 that he and Senator Kempthorne would issue a revised ESA bill, they never did.220

Clean Air Act Revisions

Attempts to make major revisions to the Clean Air Act221 also failed. Congressional subcommittees held numerous hearings, and legislators introduced a slew of bills to repeal major parts of the Clean Air Act Amendments of 1990.222 But in the end, the 104th Congress made only minor changes to the Act.223

Federal Mining Law Reform

In the 103d Congress, the attempt to reform the General Mining Law of 1872224 almost succeeded. Bills to revise the law, which has been criticized for authorizing mining-right sales at firesale prices, made it into a conference committee, but the committee's attempt to reconcile the bills failed.225

In the 104th Congress, mining reform bills did not even make it out of standing committees. Nevertheless, legislation was enacted to continue a moratorium on the "patenting" of new mining claims to federal land.226

Grazing Law Reform

In the 103d Congress, grazing reform legislation progressed even farther than mining reform legislation did. Congressional conferees approved a grazing bill, but a filibuster by western legislators prevented the Senate from approving the conference bill.227

In the 104th Congress, the Senate passed a bill, S. 1459,228 that would have raised fees that ranchers must pay to graze livestock on federal land and would have replaced BLM regulations that became effective in August 1995,229 but the White House threatened to veto the bill. When the House Resources Committee approved a similar bill, which was proposed for inclusion in the omnibus public lands bill, the President vowed to veto any bill that included such language.230 As a result, grazing language was removed from the public lands bill.231

Looking Ahead to the 105th Congress

What can we expect from the 105th Congress? Chances are that the second session of the 104th Congress will be a pretty good guide. Republicans will have majorities in both the Senate and the House, but they are likely to be more cautious about their agenda than they were at the start of the 104th Congress. During the fiscal 1996 budget battle, the President's strategy of characterizing conservative Republicans as extremists proved very effective. And this strategy also worked in many 1996 congressional races.232

But Republicans were not cowed by the President's reelection or their retention of only a slim majority in Congress. After the election, Senate Majority Leader Lott announced that there was a "conservative mandate in this election.( And House Majority Leader Dick Armey (RTex.) characterized the election as "a mandate for smaller, more focused, less intrusive government."233

As a result, in 1997, we will probably see issues such as privateproperty rights and regulatory reform resurface.234 In addition, CERCLA and FWPCA reauthorization are sure bets for consideration.235 ESA reform may receive some attention, but it is still political dynamite. Republicans seeking massive rewrites to that law will still face fierce opposition. And many Democrats, even those who believe that the ESA could use some tinkering, probably feel that it is better to leave it alone for now than to open up debate that could lead to changes that significantly weaken the statute.

If the 105th Congress picks up where the 104th left off,236 perhaps it will be able to reauthorize environmental laws like Superfund. Rather than beginning almost from scratch, as they did at the beginning of the 104th Congress, legislators can complete the dealmaking they abandoned at the 104th Congress' end.

Conclusion

What happened to the Republican Revolution? In the end, it was not so much a revolution as an awakening—for both Democratic and Republican politicians. Perhaps legislators on both sides realized that Americans, on average, are not liberal or conservative, but moderate. Americans like balance: Congress balancing out the Presidency; Republicans balancing out Democrats. Democracy is not conducive to the kind of sudden, major changes that the Republican leadership had in mind at the start of 1995.

Even so, the 104th Congress leaves behind a record of significant environmental legislation. It enacted a major SDWA overhaul. It reformed CERCLA lender liability and RCRA landdisposal requirements. And it modified the limitation on pesticide residues for processed foods. Although debate over the merits of its legislative record will no doubt continue for years to come, the 104th Congress proved at least one thing: legislators are capable of enacting important environmental legislation despite the contentiousness of Capitol Hill's political cauldron.

1. Richard E. Cohen, No More Nice Guys, 26 NAT'L J. 2634, 2639 (1994).

2. Contract With America, HOUSE REPUBLICAN CONF. LEGIS. DIG., Sept. 27, 1994.

3. Adam Clymer, Gingrich Moves Quickly to Put Stamp on House, N.Y. TIMES, Nov. 17, 1994, at A1.

4. Jerry Gray, Accord on Cuts in Current Spending Falls Apart in Senate, N.Y. TIMES, Apr. 7, 1995, at A30.

5. Todd S. Purdum, The Second Clinton Term: Promise, Pitfalls and Perils, N.Y. TIMES, Nov. 6, 1996, at A1.

6. Gingrich Links Decision to Run to Whether Powell Enters Race, N.Y. TIMES, Sept. 5, 1995, at A14.

7. David E. Rosenbaum, Congress Passes G.O.P.'s Budget-Balancing Plan, N.Y. TIMES, June 30, 1995, at A1.

8. Alison Mitchell, White House Sees G.O.P. Moderates as Budget Allies, N.Y. TIMES, Aug. 7, 1995, at A1, B6.

9. Michael Wines, White House Accedes to G.O.P. on 7-Year Deficit Cut's Details, N.Y. TIMES, Dec. 6, 1995, at A1. Moderate Republicans, including Rep. Sherwood Boehlert (R-N.Y.), succeeded in deleting from the EPA appropriations bill riders that would have prohibited the Agency from spending money during 1996 to enforce air, waste, water, and food safety laws, but a vote to reconsider the deletion of the riders returned the riders to the bill. John H. Cushman Jr., Moderates Soften G.O.P. Agenda on Environment, N.Y. TIMES, Oct. 24, 1995, at A1. Before President Clinton signed the final budget bill, however, the riders were eliminated or weakened. A provision of the final bill allowed the President to waive enforcement of certain riders, which he did. Budget Agreement Reached as GOP Riders on Environment Dropped, Funding Restored, 26 Env't Rep. (BNA) 2423 (Apr. 26, 1996); Clinton Signs Omnibus Appropriations Bill, Immediately Waives Environmental Provisions, 27 Env't Rep. (BNA) 8 (May 3, 1996).

10. See, e.g., Michael Janofsky, Even Before It Is Counted, Shutdown's Price Seems Big, N.Y. TIMES, Nov. 21, 1995, at A17.

11. Todd S. Purdum, A Washington Potboiler Steals Budget's Thunder, N.Y. TIMES, Nov. 17, 1995, at A1. In addition, Mr. Gingrich charged that the President failed to use the plane trip as an opportunity to discuss the budget impasse. Id.

12. William Schneider, Clinton Could Still Win Budget War, 27 NAT'L J. 2954 (1995).

13. See Mary Beth Regan, Suddenly, Congress Is Cooking, BUS. WK., Aug. 12, 1996, at 30.

14. William Schneider, Backlash Boosts Clinton's Prospects, 28 NAT'L J. 910 (1996); see also Richard L. Berke, Clinton's Ratings Over 50% in Poll as G.O.P. Declines, N.Y. TIMES, Dec. 14, 1995, at A1.

15. See, e.g., Purdum, supra note 11, at A1.

16. Regan, supra note 13, at 30.

17. GOP Agenda Narrowed, But Congress Passed Many Environmental Bills, ENVTL. & ENERGY STUDY INST. MONTHLY PULSE, Oct. 7, 1996, at 1.

18. 42 U.S.C. §§ 300f to 300j-26, ELR STAT. SDWA §§ 1401-1465.

19. Id. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

20. Id. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11012.

21. Industry Association Calls on Congress to Give Priority to SDWA Reauthorization, 25 Env't Rep. (BNA) 2525 (Apr. 28, 1995).

22. Id.

23. Patricia Ware, Fate of Drinking Water Act Reform Unclear as New Congress Convenes, Daily Env't Rep. (BNA) No. 5, Special Rep., at S-6 (Jan. 9, 1995).

24. James E. Satterfield, High Hopes and Failed Expectations: The Environmental Record of the 103d Congress, 25 ELR 10089, 10096-98 (Feb. 1995).

25. H.R. 226, 104th Cong., 1st Sess. (1995). Representative Dingell was Chairman of the House Energy and Commerce Committee in the 103d Congress and ranking Democrat on the committee, renamed the House Commerce Committee, in the 104th.

26. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

27. Amy Porter & Andrew M. Ballard, Major Environmental Bills Included in Slew Introduced on Session Opener, Daily Env't Rep. (BNA) No. 4, at A-7, A-8 (Jan. 6, 1995); Satterfield, supra note 24, at 10098.

28. S. 1316, 104th Cong., 1st Sess. (1995).

29. Kempthorne, Chafee, Others Introduce Bipartisan SDWA Reauthorization Bill, Daily Env't Rep. (BNA) No. 197, at A-8 (Oct. 12, 1995).

30. Senate Committee Approves SDWA Bill With Minor Changes; Floor Action Next, 26 Env't Rep. (BNA) 1122 (Oct. 27, 1995).

31. 141 CONG. REC. S17774 (daily ed. Nov. 29, 1995). As passed by the Senate, S. 1316 would have authorized $ 1 billion per year for 1996 through 2003 for state revolving loan funds for construction of treatment facilities, would have repealed the current requirement that EPA regulate 25 drinking water contaminants every three years, and would have required EPA to take action on at least five contaminants every five years beginning in 2001. Senate Approves SDWA Reauthorization Bill to Provide $ 1 Billion Yearly for Upgrades, 26 Env't Rep. (BNA) 1288 (Dec. 1, 1995).

32. Democrats Raise Concerns With GOP Draft Drinking Water Bill, INSIDE EPA WKLY. REP., Apr. 5, 1996, at 11.

33. Lisa Caruso, Consensus Near on Drinking Water, CONG. GREEN SHEETS ENV'T & ENERGY WKLY. BULL., Apr. 15, 1996, at B15.

34. House Republican Staff Float Draft Safe Drinking Water Act Bill, INSIDE EPA WKLY. REP., SPECIAL REP., Mar. 29, 1996, at 1.

35. Id. at 2-3.

36. Caruso, supra note 33, at B16.

37. Id. at B17.

38. Id. at B16. Other issues that delayed development of a consensus bill included source water pollution, treatment of disinfection byproducts, and judicial review. House Cancels Drinking Water Markup, But Continues to Pursue Bill, INSIDE EPA WKLY. REP., Apr. 26, 1996, at 3.

39. H.R. 3604, 104th Cong., 2d Sess. (1996).

40. Lisa Caruso, Safe Drinking Water Act Reauthorization, CONG. GREEN SHEETS ENV'T & ENERGY WKLY. BULL., June 24, 1996, at 4.

41. Id.

42. 142 CONG. REC. H6762 (daily ed. June 25, 1996). Several prominent Democrats criticized the last-minute inclusion in the bill of provisions from a House Transportation and Infrastructure Committee bill directing EPA to prioritize certain drinking water grants for specified projects. Nevertheless, H.R. 3604 passed under suspension of the rules. Lisa Caruso, Drinking Water Bills Ready for Conference, CONG. GREEN SHEETS ENV'T & ENERGY WKLY. BULL., July 8, 1996, at 12.

43. Caruso, supra note 42, at 12, 13.

44. Patricia Ware, House, Senate Pass SDWA Reform; Clinton Expected to Sign Bill Shortly, Daily Env't Rep. (BNA) No. 150, at AA-1 (Aug. 5, 1996).

45. 142 CONG. REC. D878 (daily ed. Sept. 3, 1996).

46. Pub. L. No. 104-182, 110 Stat. 1613.

47. Id. § 102(a), 110 Stat. at 1618 (to be codified at 42 U.S.C. § 300g-1(b)(1)(B), ELR STAT. SDWA § 1412(b)(1)(B)).

48. Id., 110 Stat. at 1619 (to be codified at 42 U.S.C. § 300g-1(b)(1)(C), ELR STAT. SDWA § 1412(b)(1)(C)).

49. Id. § 104(a)(1), 110 Stat. at 1623 (to be codified at 42 U.S.C. § 300g-1(b)(4)(C), ELR STAT. SDWA § 1412(b)(4)(C)).

50. Id. § 102(a), 110 Stat. at 1619 (to be codified at 42 U.S.C. § 300g-1(b)(1)(D), ELR STAT. SDWA § 1412(b)(1)(D)).

51. Id. § 104(a)(6), 110 Stat. at 1624 (to be codified at 42 U.S.C. § 300g-1(b)(6)(A), ELR STAT. SDWA § 1412(b)(6)(A)).

52. Id. § 114(a), 110 Stat. at 1639-40 (to be codified at 42 U.S.C. § 300g-3(c)(4), ELR STAT. SDWA § 1414(c)(4)).

53. Id. § 130, 110 Stat. at 1671 (to be codified at 42 U.S.C. § 300j-12(m), ELR STAT. SDWA § 1452(m)).

54. Kelley v. U.S. Environmental Protection Agency, 15 F.3d 1100, 24 ELR 20511 (D.C. Cir. 1994).

55. 57 Fed. Reg. 18344 (Apr. 29, 1992) (codified at 40 C.F.R. §§ 300.1100, .1105).

56. Pub. L. No. 104-208, tit. II, subtit. E.

57. Id. § 2502(b) (to be codified at 42 U.S.C. § 9601(20), ELR STAT. CERCLA § 101(20)).

58. Id.

59. Id.

60. Id.

61. See William W. Buzbee, CERCLA's New Safe Harbors for Banks, Lenders, and Fiduciaries, 26 ELR 10656, 10658 (Dec. 1996).

62. Pub. L. No. 104-208, § 2503 (to be codified at 42 U.S.C. § 6991b(h), ELR STAT. RCRA § 9003(h)).

63. Id. § 2502(a) (to be codified at 42 U.S.C. § 9607(n), ELR STAT. CERCLA § 107(n)).

64. Id.

65. Id. § 2504.

66. For a discussion of unsuccessful RCRA reform proposals, see infra notes 197-206 and accompanying text.

67. See supra notes 54-65 and accompanying text.

68. Land Disposal Program Flexibility Act of 1996, Pub. L. No. 104-119, 110 Stat. 830. The new law was enacted, in part, in response to the decision of the U.S. Court of Appeals for the D.C. Circuit in Chemical Waste Management, Inc. v. U.S. Environmental Protection Agency, 976 F.2d 2, 23 ELR 20024 (D.C. Cir. 1992), cert. denied, 507 U.S. 1057 (1993). See H.R. REP. NO. 454, 104th Cong., 2d Sess. (1996), reprinted in 1996 U.S.C.C.A.N. 593, 595. For a discussion of Chemical Waste Management, see Barry Needleman, Chemical Waste Management, Inc. v. U.S. Environmental Protection Agency: When Does a Waste Escape RCRA Subtitle C Regulation?, 24 ELR 10022 (Jan. 1994).

69. Solid waste that exhibits a hazardous waste characteristic—ignitability, corrosivity, reactivity, or toxicity—is hazardous waste for purposes of RCRA subtitle C. Randolph L. Hill, An Overview of RCRA: The "Mind-Numbing" Provisions of the Most Complicated Environmental Statute, in RCRA DESKBOOK 3, 7 (1991). Decharacterized waste is solid waste that no longer exhibits a hazardous waste characteristic. See Pub. L. No. 104-119, § 2, 110 Stat. at 830 (to be codified at 42 U.S.C. § 6924(g)(7), ELR STAT. RCRA § 3004(g)(7)).

70. 33 U.S.C. § 1317, ELR STAT. FWPCA § 307.

71. Id. § 1342, ELR STAT. FWPCA § 402.

72. Pub. L. No. 104-119, § 2, 110 Stat. at 830 (to be codified at 42 U.S.C. § 6924(g)(7), (9), ELR STAT. RCRA § 3004(g)(7), (9)). The 104th Congress also passed a battery recycling bill, which the President signed on May 13, 1996. 142 CONG. REC. D472 (daily ed. May 14, 1996). Although it does not amend RCRA, the bill provides for phasing out mercury in batteries and establishes uniform collection, labeling, storage, and transportation requirements for rechargeable batteries. Mercury-Containing and Rechargeable Battery Management Act, Pub. L. No. 104-142, 110 Stat. 1329 (1996).

73. Emergency Supplemental Appropriations for Additional Disaster Assistance, for Anti-Terrorism Initiatives, for Assistance in the Recovery From the Tragedy That Occurred at Oklahoma City, and Rescissions Act, 1995, Pub. L. No. 104-19, 109 Stat. 194.

74. Congress frequently adds nonappropriation riders to its funding bills. See, e.g., supra note 9.

75. Pub. L. No. 104-19, § 2001(b)(1), 109 Stat. at 241. The rider excludes from this requirement areas within the National Wilderness Preservation System, any federally owned roadless areas that Congress has designated for wilderness study in Colorado or Montana, federally owned roadless areas that the Forest Service or the BLM has designated for wilderness study in the most recent applicable land and resource management plan, and federal land on which timber harvesting is prohibited by statute. Id. § 2001(g), 109 Stat. at 245. Environmentalists tried without success to have the rider repealed in 1996. Evette Reiss Davis, Republicans Finish Year by Looking Ahead on Forest Policy, ENVTL. & ENERGY STUDY INST. MONTHLY PULSE, Oct. 7, 1996, at 14, 15.

76. Pub. L. No. 104-19, § 2001(j), 109 Stat. at 246 ("The authority provided by subsections (b) and (d) shall expire on December 31, 1996"). But see id. § 2001(b)(1), 109 Stat. at 241 ("the Secretary concerned shall prepare, advertise, offer, and award contracts during the emergency period"); id. § 2001(a)(2), 109 Stat. at 241 ("The term 'emergency period' means the period beginning on the date of the enactment of this section and ending on September 30, 1997"); Tara L. Mueller, The Salvage Timber Sales Law: A Serious Threat to Public Lands Management, 26 ELR 10065 (Feb. 1996).

77. Pub. L. No. 104-19, § 2001(a)(3), 109 Stat. at 241.

78. Id. The rider provides that "any such sale must include an identifiable salvage component of trees described in the first sentence [of the definition]." Id.

79. Id. § 2001(i), 109 Stat. at 245-46.

80. Id. § 2001(k)(1), 109 Stat. at 246.

81. Northwest Forest Resource Council v. Glickman, 82 F.3d 825, 26 ELR 20983 (9th Cir. 1996).

82. Mueller, supra note 76, at 10066.

83. Id.

84. 21 U.S.C. § 348(c)(3)(A); for a further discussion of the Delaney Clause, see Linda J. Fisher et al., A Practitioner's Guide to the Federal Insecticide, Fungicide, and Rodenticide Act: Part III, 24 ELR 10629, 10648-49 (Nov. 1994).

85. Specifically, the Delaney Clause prohibits EPA from establishing tolerances in processed food for additives found "to induce cancer when ingested by man or animal." 21 U.S.C. § 348(c)(3)(A).

86. ENVTL. & ENERGY STUDY INST., 1994 BRIEFING BOOK ON ENVIRONMENTAL AND ENERGY LEGISLATION 51 (1994).

87. 53 Fed. Reg. 41104, 41110 (Oct. 19, 1988).

88. Les v. Reilly, 968 F.2d 985, 22 ELR 21303 (9th Cir. 1992).

89. Food Quality Protection Act of 1996, Pub. L. No. 104-170, § 402(b), 110 Stat. 1489, 1513 (to be codified at 21 U.S.C. § 321(s)).

90. H.R. REP. NO. 669(I), 104th Cong., 2d Sess. 36 (1996), reprinted in 1996 U.S.C.C.A.N. 1208, 1211.

91. Brian Broderick, Senate Approves Compromise Bill; Clinton Says He Will Sign Legislation, Daily Env't Rep. (BNA) No. 144, at AA-1, -2 (July 26, 1996).

92. Pub. L. No. 104-127, 110 Stat. 888.

93. Id. § 332, 110 Stat. at 994 (to be codified in scattered sections of 16 U.S.C.). The bill, however, caps total enrollments in the program at 36.4 million acres. Id.

94. Id. §§ 333-334, 110 Stat. at 995-1002 (to be codified in scattered sections of 16 U.S.C.).

95. Id. § 322(i), 110 Stat. at 992 (to be codified at 16 U.S.C. § 3822); id. § 390, 110 Stat. at 1022-25; id. subtit. F, 110 Stat. at 1010-16.

96. Ann Y. Robinson, A Wetland-Friendly Farm Bill?, NAT'L WETLANDS NEWSL., May/June 1996, at 1, 28, 29.

97. See 16 U.S.C. § 3821 (subject to certain exceptions, any person who produces an agricultural commodity on converted wetlands is ineligible to participate in various U.S. Department of Agriculture financial programs).

98. Robinson, supra note 96, at 30.

99. Pub. L. No. 104-127, § 322(d), 110 Stat. at 990-91 (to be codified at 16 U.S.C. § 3822); see also Robinson, supra note 96, at 30.

100. Omnibus Parks and Public Lands Management Act of 1996, Pub. L. No. 104-333, 110 Stat. 4093; Democrats, Republicans Take Credit for Last-Minute Passage of Parks Bill, Daily Env't Rep. (BNA) No. 194, at A-5, A-6 (Oct. 7, 1996).

101. John H. Cushman Jr., Senate Passes Parks Legislation, Preserving Big New York Forest, N.Y. TIMES, Oct. 4, 1996, at A1, A14.

102. Id. at A1; Democrats, Republicans Take Credit for Last-Minute Passage of Parks Bill, supra note 100, at A-5, A-6.

103. Accountable Pipeline Safety and Partnership Act of 1996, Pub. L. No. 104-304, 110 Stat. 3793; John H. Cushman Jr., Shunning Environmental Pleas, Clinton Signs Pipeline Measure, N.Y. TIMES, Oct. 14, 1996, at A12.

104. See 61 Fed. Reg. 42887, 42888 (Aug. 19, 1996) (citing the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321).

105. 61 Fed. Reg. at 42889; for further discussion of performance partnership grants, see Colorado, Utah Sign Consolidated Environmental Grant Agreements, INSIDE EPA WKLY. REP., May 31, 1996, at 11.

106. Cheryl Bolen, Appropriators to Avoid Riders to Speed FY 1997 Spending Bills, Daily Env't Rep. (BNA) No. 87, at A-2 (May 6, 1996); supra note 9. Several controversial nonfiscal provisions, however, found their way into versions of the omnibus appropriations bill before conference committee negotiators eliminated or weakened them. See Lisa Caruso, Funding for 1997 Is Marked by Cooperation With Clinton, CONG. GREEN SHEETS ENV'T & ENERGY SPECIAL REP., Oct. 22, 1996, at 43, 44.

107. Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, 110 Stat. 3009 (1996).

108. Jerry Gray, Senate Approves a Big Budget Bill, Beating Deadline, N.Y. TIMES, Oct. 1, 1996, at A1, A22.

109. Caruso, supra note 106, at 47-49. Most of this fiscal 1997 funding for EPA was included in another bill. See Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, 1997, Pub. L. No. 104-204, 110 Stat. 2874 (1996).

110. See Contract With America, supra note 2.

111. See Satterfield, supra note 24, at 10090. During the 103d Congress, environmentalists had designated these three concepts the "unholy trinity" or the "triple threat." Id.

112. Pub. L. No. 104-4, 109 Stat. 48.

113. 141 CONG. REC. D407 (daily ed. Mar. 23, 1995).

114. See 141 CONG. REC. S53 (daily ed. Jan. 4, 1995).

115. Pub. L. No. 104-4, § 101(a), 109 Stat. at 56-57 (to be codified at 2 U.S.C. § 658d).

116. Id. § 108, 109 Stat. at 63-64 (to be codified at 2 U.S.C. § 1515).

117. Id. § 205(a), 109 Stat. at 66 (to be codified at 2 U.S.C. § 1535(a)).

118. Id. § 205(b), 109 Stat. at 66 (to be codified at 2 U.S.C. § 1535(b)).

119. Contract With America, supra note 2, at 33-36. The Job Creation and Wage Enhancement Act also would have entitled private landowners to compensation for federal action that reduced the value of their property. For a discussion of private-property rights bills that the 104th Congress considered, see infra notes 140-47 and accompanying text; for a discussion of legislation enacted during the 104th Congress that provides for cost-benefit analyses, see supra notes 49-51, 103, and accompanying text; see also John Pendergrass et al., The Environment and the Contract, 25 ELR 10350 (July 1995).

120. H.R. 9, 104th Cong., 1st Sess. (1995).

121. House Passes Regulatory Relief Bill Modifying Regulatory Flexibility Act, Daily Env't Rep. (BNA) No. 41, at A-14 (Mar. 2, 1995); 141 CONG. REC. H2623-36 (daily ed. Mar. 3, 1995) ("regulatory relief" bill folded into H.R. 9 and passed); see also George Stuteville, Reform Effort, After Setbacks, Rides More Limited Bill to Victory, CONG. GREEN SHEETS ENV'T & ENERGY SPECIAL REP., Oct. 22, 1996, at 36.

122. S. 343, 104th Cong., 1st Sess. (1995).

123. 141 CONG. REC. S2034, S2057 (daily ed. Feb. 2, 1995).

124. Id.

125. Stuteville, supra note 121, at 36.

126. Id. at 36-37.

127. Contract With America Advancement Act of 1996, Pub. L. No. 104-121, 110 Stat. 847.

128. Id. tit. II, 110 Stat. at 857-74.

129. Id. subtit. E, 110 Stat. at 868-75 (to be codified at 5 U.S.C. §§ 801-808, ELR STAT. ADMIN. PROC. §§ 801-808).

130. Id. subtit. D, 110 Stat. at 864-68 (to be codified in scattered sections of 5 U.S.C.).

131. Id. subtit. A, 110 Stat. at 858-59.

132. Id. subtit. B, 110 Stat. at 860-61 (to be codified at 15 U.S.C. § 657).

133. 5 U.S.C. § 504, ELR STAT. ADMIN. PROC. § 504; 28 U.S.C. § 2412, ELR STAT. ADMIN. PROC. § 2412.

134. 5 U.S.C. § 504(a)(1), ELR STAT. ADMIN. PROC. § 504(a)(1); 28 U.S.C. § 2412(d)(1)(A), ELR STAT. ADMIN. PROC. § 2412(d)(1)(A).

135. 5 U.S.C. § 504(b)(1)(B), ELR STAT. ADMIN. PROC. § 504(b)(1)(B); 28 U.S.C. § 2412(d)(2)(B), ELR STAT. ADMIN. PROC. § 2412(d)(2)(B). Nonprofit organizations and agricultural cooperative associations are not subject to the net worth test.

136. Pub. L. No. 104-121, § 231(a), 110 Stat. at 862-63 (to be codified at 5 U.S.C. § 504(a)(4), ELR STAT. ADMIN. PROC. § 504(a)(4)).

137. Id. § 232(a), 110 Stat. at 863 (to be codified at 28 U.S.C. § 2412(d)(1)(D), ELR STAT. ADMIN. PROC. § 2412(d)(1)(D)).

138. Id. § 231(a), 110 Stat. at 863 (to be codified at 5 U.S.C. § 504(a)(4), ELR STAT. ADMIN. PROC. § 504(a)(4)); id. § 232(a), 110 Stat. at 863 (to be codified at 28 U.S.C. § 2412(d)(1)(D), ELR STAT. ADMIN. PROC. § 2412(d)(1)(D)).

139. See James M. McElfish Jr., Fee Simple? The 1996 Equal Access to Justice Act Amendments, 26 ELR 10569 (Nov. 1996).

140. In addition, on May 16, 1995, the House passed an FWPCA reform bill, H.R. 961, that would have required the federal government to compensate landowners for reductions in property value of 20 percent or more resulting from federal wetlands regulation. See infra note 188 and accompanying text.

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

142. 141 CONG. REC. H2590-98 (daily ed. Mar. 3, 1995); Lisa Caruso, Property Rights Bill Clears House, But Dies in Senate, CONG. GREEN SHEETS ENV'T & ENERGY SPECIAL REP., Oct. 22, 1996, at 11. H.R. 925 was folded into H.R. 9, which the House then passed. See 141 CONG. REC. H2623-36 (daily ed. Mar. 3, 1995).

143. S. 605, 104th Cong., 1st Sess. (1995).

144. Caruso, supra note 142, at 11-12.

145. S. 1954, 104th Cong., 2d Sess. (1996).

146. Caruso, supra note 142, at 12.

147. Id.

148. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18.

149. See Satterfield, supra note 24, at 10089, 10090-94, 10100.

150. The insurance industry was also a major force in the private sector's push for Superfund reform. See GOP Leaders Order New Push for '87 Liability Repeal, Sideline Key Panels, INSIDE EPA'S SUPERFUND REP., Oct. 4, 1995, at 3.

151. See Satterfield, supra note 24, at 10090-94.

152. H.R. 228, 104th Cong., 1st Sess. (1995).

153. Dingell Reintroduces Compromise Superfund Reform Package, INSIDE EPA'S SUPERFUND REP., Jan. 11, 1995, at 3.

154. House Democrats Offer Superfund Liability Plan to Exempt Small Business, INSIDE EPA'S SUPERFUND REP., Apr. 17, 1996, at 7.

155. For these reasons, this Comment's discussion of Superfund reform focuses on the liability issue. Also contentious, though receiving less attention, was the issue of natural resource damages. For a more detailed discussion of this issue, see Senate GOP Offers New Superfund Liability Plan MatchingHouse Approach, INSIDE EPA WKLY. REP., May 17, 1996, at 1, 6.

156. Sen. Smith Releases Reform Outline; Significant Program Changes Envisioned, Daily Env't Rep. (BNA) No. 126, at A-8 (June 30, 1995).

157. Oxley Issues Reform Principles; Some Differences From Smith Plan, Daily Env't Rep. (BNA) No. 137, at AA-1 (July 18, 1995). The Superfund Amendments and Reauthorization Act was enacted on October 17, 1986, and RCRA's full recordkeeping requirements took effect around then. See id.

158. Boehlert Eyes Different Approach for Overhauling Liability Under Law, Daily Env't Rep. (BNA) No. 142, at AA-1 (July 25, 1995). The House Republican leadership reportedly criticized the Oxley plan for not going far enough, thus temporarily casting doubt on the prospects for Oxley's bill. GOP Leaders Order New Push for '87 Liability Repeal, Sideline Key Panels, supra note 150, at 3.

159. Boehlert Eyes Different Approach for Overhauling Liability Under Law, supra note 158, at AA-1. The plan also provided for capping natural resource damages at $ 50 million per site, with some exceptions, and addressed the liability of lenders and response action contractors. Id.

160. 141 CONG. REC. H10307 (daily ed. Oct. 18, 1995). This Comment indicates the cosponsors of a bill to suggest the breadth and nature of the bill's support on its introduction. The Comment's failure to indicate a bill's cosponsors does not mean that the bill has no cosponsors.

161. H.R. 2500, 104th Cong., 1st Sess. (1995).

162. L. Carol Ritchie, Superfund Overhaul Continues in House, CONG. GREEN SHEETS ENVTL. & ENERGY WKLY. BULL., Oct. 30, 1995, at B10.

163. House Bill Cleared by Commerce Subcommittee; Amendment Exempts Oil, Battery Recycling Sites, 26 Env't Rep. (BNA) 1217 (Nov. 17, 1995).

164. S. 1285, 104th Cong., 1st Sess. (1995); 141 CONG. REC. S14710 (daily ed. Sept. 29, 1995).

165. 141 CONG. REC. S14724-29 (daily ed. Sept. 29, 1995).

166. Jennifer Silverman & Amy Porter, Dole Opposes Smith Bill Tax Mechanism; 'Shocked' Smith Cancels Planned Hearing, Daily Env't Rep. (BNA) No. 197, at AA-1 (Oct. 12, 1995).

167. L. Carol Ritchie, Superfund Talks Go on Amid Angry Rhetoric, CONG. GREEN SHEETS ENV'T & ENERGY WKLY. BULL., Mar. 4, 1996, at B6.

168. Senate GOP Charged With 'Comintern' Practices on Superfund Bill, INSIDE EPA'S SUPERFUND REP., Oct. 18, 1995, at 5.

169. Dingell, Bliley Spar Over 'Meaningful' Bipartisan Negotiation on Superfund, INSIDE EPA'S SUPERFUND REP., Feb. 21, 1996, at 3.

170. Orphan shares represent the amount of CERCLA liability attributable to parties that are bankrupt, insolvent, or unknown. See ENVTL. & ENERGY STUDY INST., 1996 BRIEFING BOOK ON ENVIRONMENTAL AND ENERGY LEGISLATION 241 (1996).

171. House Democrats Offer Superfund Liability Plan to Exempt Small Business, supra note 154, at 7.

172. House GOP Offers Major Superfund Compromise to Democrats, INSIDE EPA'S SUPERFUND REP., SPECIAL REP., May 2, 1996, at 1.

173. Congress did put an NPL listing provision into the fiscal year 1996 omnibus appropriations bill. 142 CONG. REC. H3842, H3921 (daily ed. Apr. 25, 1996) (conference committee report). The provision prohibits EPA from using fiscal 1996 Superfund appropriations for proposals to add, or for adding, any site to the NPL unless the governor of the state in which the site is located requests the listing, or legislation reauthorizing CERCLA is enacted. Although the provision only applies to fiscal 1996 funding, and the fiscal 1997 funding law does not contain such a provision, Senator Chafee warned EPA that it should continue to seek gubernatorial approval before adding sites to the NPL. Congress, States Concerned Over EPA Attempts to Change NPL Listing Policy, INSIDE EPA'S SUPERFUND REP., Oct. 30, 1996, at 7.

174. Senate Republicans Float New Draft Superfund Reform Bill, INSIDE EPA WKLY. REP., SPECIAL REP., Mar. 22, 1996, at 1.

175. Democrats Float Broad New Liability Plan in Superfund Negotiations, INSIDE EPA's SUPERFUND REP., SPECIAL REP., Apr. 19, 1996, at 1.

176. Senate GOP Offers New Superfund Liability Plan Matching House Approach, INSIDE EPA'S WKLY. REP., May 17, 1996, at 6.

177. Superfund Meetings Produce No Progress on Senate Bill, INSIDE EPA'S WKLY REP., May 31, 1996, at 14.

178. House Democrats Poised to Offer Response to GOP Superfund Proposal, INSIDE EPA'S WKLY. REP., June 21, 1996, at 11.

179. Brownfields are urban and commercial sites that may require cleanup before redevelopment. See E. Lynn Grayson & Stephen A.K. Palmer, The Brownfields Phenomenon: An Analysis of Environmental, Economic, and Community Concerns, 25 ELR 10337 (July 1995).

180. Jennifer Silverman, House Close to Brownfields Deal, Consensus Problems Continue on Liability, Daily Env't Rep. (BNA) No. 101, at A-3 (May 24, 1996); Bliley, Oxley Warn Against Movement of Limited Brownfields Bill This Year, INSIDE EPA'S SUPERFUND REP., May 29, 1996, at 4.

181. Defense Bill Could Be Vehicle for Limited Superfund Reform in the 105th Congress, INSIDE EPA'S SUPERFUND REP., Aug. 21, 1996, at 4.

182. Stakeholders Doubt Clean Water Act Will Move in This Congress, INSIDE EPA WKLY. REP., Feb. 24, 1995, at 5. In addition, many interested groups considered FWPCA reform a low priority. Id.

183. H.R. 961, 104th Cong., 1st Sess. (1995). The bill closely resembled a bipartisan bill circulated in the 103d Congress. Stakeholders Doubt Clean Water Act Will Move in This Congress, supra note 182, at 5.

184. Steve Daniels, Clean Water Bill Seen as a 'Starting Point,' CONG. GREEN SHEETS ENV'T & ENERGY WKLY. BULL., Feb. 20, 1995, at B4, B5.

185. Steve Daniels, House Markup Set on New Clean Water Bill, CONG. GREEN SHEETS ENV'T & ENERGY WKLY. BULL., Mar. 27, 1995, at B10.

186. Lisa Caruso, Clean Water Amendments of 1995, CONG. GREEN SHEETS ENV'T & ENERGY WKLY. BULL., May 8, 1995, at A1. The version that the committee approved would have provided $ 3 billion per year through fiscal year 2000 for the state revolving loan program. It would have repealed the current stormwater permitting program. It would have replaced the wetlands program with a tripartite classification system. And it would have required the federal government to compensate private landowners for reductions of 20 percent or more in the value of any portion of their property resulting from federal agency action. Id.

187. 141 CONG. REC. H5013 (daily ed. May 16, 1995).

188. ENVTL. & ENERGY STUDY INST., supra note 170, at 24; 141 CONG. REC. H5006 (daily ed. May 16, 1995) (statement of Rep. Portman); see also Katherine M. Stimmel, House Approves Sweeping CWA Rewrite Bill; Approval Margin Could Not Override Veto, Daily Env't Rep. (BNA) No. 95, at AA-2 (May 17, 1995).

189. President Promises Veto of CWA Rewrite if Senate Retains House-Passed Language, 26 Env't Rep. (BNA) 270 (June 2, 1995).

190. Chafee Indicates Preference for Narrow Bill as Municipal Concerns Aired at Senate Hearing, 26 Env't Rep. (BNA) 1565 (Dec. 22, 1995).

191. Lisa Caruso, House Passes Clean Water Bill But Senate Declines to Act on It, CONG. GREEN SHEETS ENV'T & ENERGY WKLY. BULL., Oct. 22, 1996, at 30. In addition, Senator Chafee believed that the FWPCA worked well and did not need extensive changes. Id.

192. Id.

193. S. 851, 104th Cong., 1st Sess. (1995).

194. 141 CONG. REC. S7498-7500 (daily ed. May 25, 1995).

195. See Caruso, supra note 191, at 30, 31.

196. See supra notes 66-72 and accompanying text.

197. S. 1274, 104th Cong., 1st Sess. (1995).

198. 141 CONG. REC. S14312 (daily ed. Sept. 26, 1995).

199. Amy Porter, RCRA Rifle Shot Legislation to Target Remediation Waste, Land Disposal Program, Daily Env't Rep. (BNA) No. 188, at A-12 (Sept. 28, 1995). The Oxley and Smith Superfund reform bills also addressed RCRA correction action. See ENVTL. & ENERGY STUDY INST., supra note 170, at 77; Lott Urges Smith to Move RCRA Cleanup Bill Independent of Superfund, INSIDE EPA WKLY. REP., June 7, 1996, at 1.

200. 141 CONG. REC. S14315 (daily ed. Sept. 26, 1995). Generally, remediation waste is hazardous waste generated during the implementation of a remedial action plan. Id.

201. Smith Poised to Introduce Free-Standing RCRA Cleanup Reform Bill, INSIDE EPA WKLY. REP., June 21, 1996, at 1.

202. Amy Porter, Senate Averse to Move RCRA Rifle Shot Bill Without Administration, Democrats' Support, Daily Env't Rep. (BNA) No. 134, at A-8 (July 12, 1996).

203. For a more detailed discussion of this issue, see Satterfield, supra note 24, at 10100.

204. S. 534, 104th Cong., 1st Sess. (1995).

205. Interstate Waste, Flow Control Bill Passes Senate, Not House, CONG. GREEN SHEETS ENV'T & ENERGY SPECIAL REP., Oct. 22, 1996, at 39.

206. Amy Porter, House Defeats Flow Control Bill, Approves RCRA Targeted Reform Measure, Daily Env't Rep. (BNA) No. 21, at AA-1 (Feb. 1, 1996). An attempt to add interstate flow control language to energy and water appropriation legislation failed after congressional conferees removed the language from the final version of the bill. Interstate Waste, Flow Control Bill Passes Senate, Not House, supra note 205, at 39, 40.

207. Leslie Ann Duncan, Vigorous Struggle Leaves Law on Endangered Species Intact, CONG. GREEN SHEETS ENV'T & ENERGY SPECIAL REP., Oct. 22, 1996, at 12.

208. H.R. 2275, 104th Cong., 1st Sess. (1995).

209. Brian Broderick & Saundra E. Grays, Reform Bill Aims to Help Landowners; Babbitt Says Measure Guts ESA Protections, Daily Env't Rep. (BNA) No. 174, at A-7 (Sept. 8, 1995).

210. Id.

211. Id.

212. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 115 S. Ct. 2407, 25 ELR 21194 (1995).

213. Brian Broderick, House Resources Panel Rejects Gilchrest Alternative to Young-Pombo ESA Rewrite, Daily Env't Rep. (BNA) No. 198, at AA-1 (Oct. 13, 1995).

214. Brian Broderick, Young-Pombo ESA Reauthorization Bill Approved by House Resources Committee, Daily Env't Rep. (BNA) No. 199, at AA-1 (Oct. 16, 1995).

215. S. 768, 104th Cong., 1st Sess. (1995); 141 CONG. REC. S6337, S6339-45 (daily ed. May 9, 1995).

216. ENVTL. & ENERGY STUDY INST., supra note 170, at 35.

217. S. 1364, 104th Cong., 1st Sess. (1995).

218. 141 CONG. REC. S15849 (daily ed. Oct. 26, 1995).

219. Leslie Ann Duncan, Species Act Rewrites, Refuges Measures Make Some Progress, CONG. GREEN SHEETS ENV'T & ENERGY SPECIAL REP., Jan. 29, 1996, at 5, 7.

220. Duncan, supra note 207, at 12, 13.

221. 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA §§ 101-618.

222. See, e.g., H.R. 473, 104th Cong., 1st Sess. (1995); H.R. 474, 104th Cong., 1st Sess. (1995); H.R. 475, 104th Cong., 1st Sess. (1995); H.R. 476, 104th Cong., 1st Sess. (1995); H.R. 477, 104th Cong., 1st Sess. (1995); H.R. 478, 104th Cong., 1st Sess. (1995); H.R. 479, 104th Cong., 1st Sess. (1995); H.R. 480, 104th Cong., 1st Sess. (1995).

223. A bill enacted on November 28, 1995, amended the Clean Air Act's (CAA's) vehicle inspection and maintenance (I/M) program to bar EPA from penalizing states that adopt decentralized I/M programs. Lisa Caruso, No Rewrite of Clean Air Act, But Much Tinkering and Talk, CONG. GREEN SHEETS ENV'T & ENERGY SPECIAL REP., Oct. 22, 1996, at 28. A bill enacted on December 23, 1995, made the employee compute options program optional for states. Id. at 29. And a bill enacted on October 9, 1996, eliminated EPA's exclusive authority over aircraft emissions and required it to consult with the Federal Aviation Administration before issuing new standards. Id. The 104th Congress also amended the Intermodal Surface Transportation Efficiency Act of 1991 to make the requirement that transportation plans conform to state CAA implementation plans only apply to nonattainment areas. Id.

224. 30 U.S.C. §§ 22-54.

225. See Satterfield, supra note 24, at 10099.

226. Leslie Ann Duncan, Efforts to Change Mining Laws Make Little Progress in 104th, CONG. GREEN SHEETS ENV'T & ENERGY SPECIAL REP., Oct. 22, 1996, at 21. Patenting refers to purchasing title to land covered by the purchaser's claim. ENVTL. & ENERGY STUDY INST., supra note 170, at 242.

227. See Satterfield, supra note 24, at 10100.

228. S. 1459, 104th Cong., 1st Sess. (1995).

229. Leslie Ann Duncan, Young Muscles Presidio Bill Through With Democratic Help, CONG. GREEN SHEETS ENV'T & ENERGY SPECIAL REP., Oct. 22, 1996, at 2, 3. The Administration charged that the Senate bill would have actually reduced fees for sheep ranchers. Brian Broderick, Senate Approves Domenici Bill on Public Rangelands Grazing Fees, Daily Env't Rep. (BNA) No. 56, at A-9, A-10 (Mar. 22, 1996).

230. Duncan, supra note 229, at 2, 3.

231. Evette Reiss Davis, Grazing Reform Looks Dead, ENVTL. & ENERGY STUDY INST. WKLY. BULL, Sept. 30, 1996, at 9.

232. See James Bennet, Liberal Use of 'Extremist' Is the Winning Strategy, N.Y. Times, Nov. 7, 1996, at B1.

233. R.W. Apple Jr., Despite Some Words of Bipartisanship, More Political Storms Are Likely, N.Y. Times, Nov. 7, 1996, at B6.

234. See Caruso, supra note 142, at 11, 12.

235. See Reform Bill Requires Early Passage in Next Congress, Aide Tells Attorneys, Daily Env't Rep. (BNA) No. 207, at A2 (Oct. 25, 1996); see also Key Senate GOP Aide Sets OneYear Timetable for Statute's Overhaul, Inside EPA's Superfund Rep., Oct. 22, 1996, at 1; Election Results Boost Prospects for Moderate Environmental Bills, Inside EPA Wkly. Rep., Nov. 8, 1996, at 1.

236. See Election Results Boost Prospects for Moderate Environmental Bills, supra note 235, at 1.

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