Environmental Policy Battles in the Congressional Budget Process: The 104th Congress: Back-Door Assault

Sharon Buccino and Gregory S. Wetstone

Ms. Buccino is a Senior Project Attorney at the Natural Resources Defense Council (NRDC) working on a variety of legislative issues. She spear-headed NRDC's campaign to defeat the many antienvironmental proposals included in the 1996 budget bills. Ms. Buccino received her law degree from Stanford Law School and clerked for Justice Allen Compton on the Alaska Supreme Court. Mr. Wetstone is the Legislative Director for NRDC. Before joining NRDC, he served as Chief Counsel for the House Subcommittee on Health and the Environment chaired by Rep. Henry Waxman (D-Cal.). Previously, he was the Director of the Air and Water Pollution Program at the Environmental Law Institute. Mr. Wetstone received his law degree from Duke University Law School.

[27 ELR 10113]

It is no secret that on coming to Washington in January 1995, the 104th Congress launched an assault on the nation's landmark environmental laws. In all, the 104th Congress considered over 60 legislative proposals that were intended to weaken environmental protection statutes. These proposals included bills to scale back or eliminate central elements of the Clean Air Act (CAA),¹ the Federal Water Pollution Control Act (FWPCA),² the Endangered Species Act (ESA),³ and other environmental laws. More than merely symbolic gestures, many of these bills were priorities of powerful congressional leaders, and many passed either the full House or Senate and in several cases both.

These direct attacks on environmental statutes, however, provoked widespread public criticism and fierce legislative opposition. Outspoken critics of environmental protection programs therefore sought a less visible means of attack. The amendment of environmental laws generally requires public debate and open hearings, and attracts media attention. Those who sought to weaken environmental protection programs during the 104th Congress turned instead to the budget process as a means of achieving their antienvironmental goals while limiting opportunities for public scrutiny. They initially sought to cut spending on environmental protection programs drastically. Congressional leaders singled out federal environmental agencies for draconian and disproportionate funding cuts in the fiscal 1996 budget. The initial 1996 spending bill approved by the House for the U.S. Environmental Protection Agency (EPA), for example, cut the Agency's budget by more than one-third.⁴

Funding cuts, however, were only the beginning. Starting with the supplemental appropriations bill for fiscal year 1995,⁵ Congress sought to add an unprecedented array of environmental policy provisions (called "riders") to spending bills—provisions that prohibited agencies like EPA and the U.S. Department of the Interior (DOI) from enforcing specific provisions of existing environmental laws. Such tactics had been used before on a small scale. But this time, parts of almost every major environmental law would have been rendered unenforceable.

Well over 50 riders were considered as part of the fiscal 1996 spending bills. Included were provisions blocking implementation of crucial elements of the CAA; the FWPCA; the ESA; the Comprehensive Environmental Response, Compensation, and Liability Act;⁶ the Safe Drinking Water Act (SDWA);⁷ the National Environmental Policy Act (NEPA);⁸ the National Forest Management Act (NFMA);⁹ and the nation's food safety laws.¹⁰ In the end, seven months into the fiscal year after two debilitating government shutdowns and 12 temporary spending bills that left environmental enforcement agencies so strapped they could not afford to inspect pollution sources,¹¹ a 1996 budget was finally approved. The final budget bill was largely free of the antienvironmental riders and disproportionate funding cuts originally proposed.

This Dialogue describes the environmental budget battles of the 104th Congress—how the budget process was used in an attempt to weaken environmental laws, how this effort was turned back, and what lessons can be gleaned about environmental policymaking.

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Budget Proposals

Disproportionate Funding Cuts

The cuts proposed for environmental programs in Congress' fiscal year 1996 (FY96)¹² budget went well beyond what was necessary for environmental agencies to do their share of belt-tightening. The EPA appropriations bill passed by the House, for example, cut the overall budget for the Agency from the President's request of $ 7.36 billion to $ 4.89 billion.¹³ The huge targeted budget cuts imposed on EPA left little doubt about Congress' environmental agenda. They included debilitating cuts in funding for: (1) enforcement (22 percent), Superfund cleanups (26 percent), grants to states to improve drinking water quality (45 percent), and programs to address climate change (40 percent).¹⁴ In addition, the President's budget request for the Council on Environmental Quality was cut in half.¹⁵

Within the DOI, funding for endangered species protection was reduced by 38 percent and funds for land acquisition were reduced by 42 percent.¹⁶ These huge cuts would have crippled critical environmental programs. While the proponents of such cuts argued that they were necessary to control the escalating budget deficit, the proposed reductions in reality would have had very little impact on the size of the federal budget. All environmental spending represents only about 1.4 percent of the total federal budget.¹⁷ Moreover, these cuts were proposed at the same time that Congress voted to increase one of the largest segments of the budget—national defense spending—by $ 3.3 billion.¹⁸

Environmental Riders

Because 13 appropriations bills must be signed into law each year to keep the government operating, they offer a convenient vehicle for legislators seeking to attach substantive provisions that could never be approved on their own merits. Unlike proposals to amend the environmental laws directly, appropriation bills are written almost entirely behind closed doors. The appropriations committees hold few hearings and the bills move quickly from subcommittee to the full committee and then to the House or Senate floor. Opportunities to offer amendments on the floor tend to be strictly limited. Moreover, members of Congress may feel compelled to vote for appropriation bills, even when they contain damaging riders, because of the broader consequences for the budget if such bills fail to pass.

[] Amendment of Statutes. More than 50 antienvironmental riders were attached to 1996 budget bills.¹⁹ Some attempted to modify the language of existing environmental statutes. For example, a provision added to the budget reconciliation bill would have amended the Reclamation Reform Act of 1982²⁰ to allow large corporate farms to prepay for below-cost water.²¹ The provision would have allowed some of the largest U.S. corporate farms to escape higher rates and water conservation requirements to be imposed by rules being considered by the DOI.²² The prepaid revenues would have been counted as budget "savings" even though the measure would have cost taxpayers tens of millions of dollars over the next several years.²³

Other riders were pure Orwellian doublespeak, declaring that certain actions sufficiently complied with provisions of existing law, such as NEPA's review requirements,²⁴ when clearly they did not. Perhaps the best known of these "black is white" provisions, the "clear-cut logging" or "salvage-timber" rider,²⁵ provided that the timber sales authorized by the provision "shall be deemed to satisfy the requirements of all applicable Federal laws (and regulations implementing such laws)."²⁶ The effect of this provision signed into law by President Clinton in July 1995 has been the irrevocable clearing of national forests across the country.²⁷

[] Congressional Interference. Congress also attempted to use riders to dictate certain regulatory actions. Had they passed, these riders would have constituted an unprecedented interference with administrative agency decisions. One provision, for example, instructed the U.S. Forest Service to implement a discredited, four-year-old draft management plan for the [27 ELR 10115] Tongass National Forest in southeast Alaska.²⁸ The provision overrode a determination by the Forest Service that the plan failed to provide adequately for uses other than timber harvesting, such as recreation and fish and wildlife conservation. Another rider directed the U.S. Fish and Wildlife Service to issue a permit to the city of Lake Jackson, Texas, to fill wetlands.²⁹

A rider to EPA's 1996 appropriations bill prohibited the Agency from requiring centralized testing of automobile emissions as a means of compliance with the CAA.³⁰ This provision was designed to prevent the Agency from putting into effect a rule recently proposed to clean up the air in the country's dirtiest cities.³¹ Another provision encouraged EPA to delay enforcement of the CAA's operating permit program.³²

Through such interventions, Congress attempted to apply raw political influence to circumvent the results of a rule-making process that is intended to be governed by sound science and broad public input. The use of these riders contravenes the opportunity for fair and balanced public input that is mandated by broadly popular environmental laws³³ and safeguarded by the Administrative Procedure Act.³⁴ Members of Congress even used the threat of an appropriations rider to influence regulatory action. Wanting to prevent EPA from listing the Alaska Pulp Corporation's Sitka mill as a Superfund site, an aide to Sen. Frank Murkowski (R-Alaska) left a message at EPA's regional office in Seattle stating that "we would prefer not to have to do anything with an appropriations rider on this."³⁵

[] Limits on Agency Expenditures. Most of the antienvironmental riders attempted to limit or control agency expenditures on the simple theory that preventing an agency from enforcing a law is as good as doing away with the law altogether. The EPA appropriations bill passed by the House in July 1995³⁶ contained 17 riders, one of which would have prohibited the expenditure of funds to implement FWPCA § 404(c) (the wetlands protection program).³⁷ Another rider provided that no funds could be used to take any final action on a new drinking water standard for arsenic and radon.³⁸ Yet another prohibited the expenditure of funds to enforce CAA requirements that oil and gas companies develop accident prevention plans.³⁹ Congress also attempted to prevent EPA from issuing air toxic standards for oil refineries through the use of a rider. Recognizing that the Agency's failure to issue such standards would otherwise violate the CAA, the provision even provided that the Act's citizen-suit provision would not apply.⁴⁰

These funding limitations would have remained in effect only for the duration of the fiscal year. The effect of some of the riders, however, was explicitly extended beyond the end of the fiscal year. Provisions of the salvage-timber rider, for example, were extended beyond its December 31, 1996 expiration date.⁴¹ Other riders that directed specific agency action would have had permanent effect. A provision that passed both the House and the Senate as part of the DOI appropriations bill, for example, "authorized and approved" a plan to allow the clear-cutting of land atop Arizona's Mt. Graham for the construction of a large telescope.⁴² This rider, which unfortunately became law, nullifies a court decision that prohibited the logging because of threats to endangered species and a sacred Native American site.

Still another set of riders included in the FY96 budget reconciliation bill (also known as the Balanced Budget Act of 1995)⁴³ would have permanently given away valuable public resources at well below their cost. One rider would have opened up the Arctic National Wildlife Refuge to oil drilling;⁴⁴ another would have allowed multinational mining companies to continue to buy America's public lands at a fraction of their value;⁴⁵ another would have blocked meaningful reform of park concessions (guest services such as food and lodging provided by private companies);⁴⁶ and still another would have excused oil companies from paying royalties for oil leases in deep water tracts in the Gulf of Mexico.⁴⁷ What was so outrageous about these riders is that Congress included them in the bill to balance the budget even though they would have cost federal taxpayers millions of dollars.

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Political Realities

Once the public became aware of this broad offensive against existing environmental protections they reacted with predictable outrage. After signing the clear-cut logging rider in July 1995, President Clinton faced widespread, vocal opposition from those who saw the chain saws coming into their nearby national forests.⁴⁸ The House's approval of the 17 antienvironmental riders in the EPA appropriations bill brought significant media attention to the issue and even more public opposition to using the budget bills to rollback existing environmental protections.⁴⁹ Polling data confirmed the overwhelming public support for strong environmental protection.⁵⁰

The efforts to use the budget process to make fundamental, controversial policy changes prevented Congress from accomplishing one of its basic functions—to keep the government operating. Congress was able to pass only 2 of the 13 appropriation bills needed to fund the government by the beginning of the new fiscal year on October 1.⁵¹ By the end of the summer of 1995, President Clinton took a firm position opposing congressional efforts to weaken environmental protection through the budget process. He refused to sign the FY96 spending bills containing the most controversial riders. In December, he vetoed the spending bills for EPA and the DOI, as well as the budget reconciliation bill.⁵² The refusal of congressional leaders to eliminate the numerous controversial riders, as well as restore funding to critical programs slated for draconian cuts, eventually resulted in two government shutdowns and delayed the passage of a 1996 budget for over seven months.⁵³

A Resolution of Sorts

The turning point in this fight over fundamental environmental protections occurred on January 22, 1996, during the week of the President's State of the Union Address. Moderate Republicans joined Democrats in applauding the President's criticism of efforts to undercut 25 years of bipartisan environmental progress.⁵⁴ The next day conservative Republican pollster Linda DiVall released polling data concluding that attacking environmental programs is a "non-starter" and "out of sync" with mainstream America.⁵⁵ By the end of the week, House Speaker Newt Gingrich (R-Ga.) announced that he would seek consensus budget savings that the White House and Congress could both support.⁵⁶ Congress thus abandoned the budget reconciliation bill and its provisions to open the Arctic National Wildlife Refuge to oil drilling and to giveaway U.S. hard-rock mineral resources such as gold and silver. In the two weeks following the President's State of the Union Address, Republican leaders had also agreed to a bill that would fund the government through March 15 and that contained no controversial policy riders.⁵⁷

The 1996 budget was finally resolved when the President signed the omnibus spending bill⁵⁸ on April 29, 1996. Twelve temporary spending bills (also known as continuing resolutions) had been necessary to keep the government operating. Although the highest profile riders were eliminated, environmental victory was not complete. The provision barring the U.S. Department of Energy from issuing long overdue energy efficiency standards for household appliances remained in the bill, as did the rider suspending environmental review and public participation requirements in order to facilitate the construction of a telescope on Arizona's Mt. Graham.⁵⁹

In addition, the seven-month delay in passing the 1996 budget exacted environmental costs. During this period, EPA operated at a budget level over 20 percent below its budget level for 1995.⁶⁰ EPA was forced to cancel hundreds of inspections at chemical manufacturing plants, incinerators, and other facilities throughout the country.⁶¹ In the Washington, D.C. region, inspections were down by 90 percent.⁶² In addition, EPA was forced to postpone cleanups at various Superfund sites.⁶³

The fight over the 1996 budget was a bruising battle that congressional leaders chose not to repeat for fiscal year 1997. Before recessing in October 1996, the 104th Congress [27 ELR 10117] passed a spending bill that funds the government through September 30, 1997.⁶⁴ It generally reflected the President's spending priorities and was relatively clean of antienvironmental riders. It was not, however, completely clean. One particularly troubling provision inserted by Sen. Ted Stevens (R-Alaska) requires the Office of Management and Budget to estimate and report to Congress within one year the annual costs and benefits of federal regulatory programs.⁶⁵ Requiring such time-consuming accounting when agency resources are already stretched to the limit could delay the implementation of necessary public health and environmental protections.

This provision demonstrates the impropriety of using the budget process to pass proposals that could not otherwise be approved. Senator Stevens had promoted this language earlier in the summer for inclusion in the Treasury/Postal appropriations bill. He met with opposition and chose not to bring it to the floor. Instead, in the last days of Congress he inserted the provision into a bill thousands of pages long, funding numerous agencies, and that had to pass quickly to keep the government open. The omnibus bill was introduced on September 28, and passed two days later. Few members who voted for the bill knew the Stevens provision was included, but now it is the law of the land.

Lessons Learned

Obviously, the budget fights of the 104th Congress offer many lessons regarding what works and what does not in shaping a wise national environmental policy. It became clear that the public will not tolerate back-room deals that weaken environmental protection once the public is made aware of what is going on. Public education and press coverage played significant roles in stopping efforts to fundamentally change environmental laws through budget riders and funding cuts. It is, for example, a legitimate question whether the budget riders and other back-door attacks on environmental laws would have been stopped had editorial cartoonist Gary Trudeau not chosen to highlight them in his Doonesbury comic strip.⁶⁶

The budget will remain a major battleground for environmental issues. Both President Clinton and Republican leaders have committed to move forward on balancing the budget. Some members of Congress are likely to pursue proposals considered in the 104th Congress to sell federal lands and open the Arctic National Wildlife Refuge to oil drilling in order to raise revenue. Hopefully, there will be others interested in reducing the deficit by reducing environmentally destructive, taxpayer subsidies to companies mining, grazing, and logging on the public's lands.

One issue likely to surface early in 1997—a balanced budget amendment—could have disastrous effects on environmental protection if passed. Unless expanding entitlements are controlled, domestic spending (the source of all environmental spending) will drastically decrease.⁶⁷ Any forced cuts triggered by such an amendment will come out of the small part of the federal budget that constitutes domestic spending. Unwillingness to reduce defense spending will leave very little for environmental agencies despite their growing responsibilities.⁶⁸

On the positive side, with the new ability to veto individual line items in the budget, the President has significant additional leverage in the coming budget battles. The line item veto is likely to be limited to numerical budget items and therefore may not be applicable to legislative language in the budget bills such as funding limitations. Nevertheless, holding the line item veto, the President comes to the negotiating table with a much stronger hand. The President could certainly threaten to veto specific projects critical to certain members' districts unless objectionable legislative language is removed from the bill at issue.

The 105th Congress is unlikely to engage in the same all-out assault on environmental protection waged by the 104th. Some members of Congress, of course, will be unable to resist the temptation to attach provisions that would not pass on their own to must-pass spending bills. Such attempts were not the invention of the 104th Congress and certainly will be part of the 105th Congress.

These funding limitations represent direct interference in a rulemaking process that is in theory supposed to be insulated from the power of politics. By putting forward so many explicit restrictions on what agencies could and could not do, the 104th Congress was disregarding both the expertise of agency specialists and existing law. While Congress has the authority to change the law, it should do so in the open, after thorough debate and consideration of alternatives. What the 104th Congress tried to do through funding limitations was make existing environmental protection laws meaningless without accepting the responsibility for eliminating them.

Instead of seeking to change environmental laws under the cloak of darkness—or more accurately under the cover of lengthy budget bills—leaders of the new Congress should seek to work together with members in the minority and the various stakeholders to craft legislation that will move this nation forward toward a healthy, more sustainable future. The 104th Congress offers two examples of how such cooperation, as opposed to confrontation, can produce success. The same Congress that put forward an industry-written dirty water bill, in the end passed significant improvements to the SDWA and protections from pesticide use.⁶⁹ If the two parties are serious about working together, perhaps the 105th Congress will produce some real progress in protecting the nation's environment.

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Conclusion

The efforts of the 104th Congress to rollback environmental protections through the budget process were unprecedented. Never before did appropriation bills contain so much legislative language blocking agencies responsible for the nation's human and environmental health from doing their jobs. Never before did Congress attempt to dictate through spending bills so many specific regulatory outcomes. If they had become law, these numerous budget riders would have undermined basic protections for the air we breathe, the water we drink, and the communities in which we live—protections the American public now takes for granted.

*2*Table 1

*2*ANTIENVIRONMENTAL RIDERS

*2*IN BUDGET BILLS CONSIDERED BY THE 104th CONGRESS

Attacks on Clean Water Final Fate

1. Ban on wetlands protection program Passed by Congress as part of the

2. Exemption for Kalamazoo industrial FY96 EPA appropriations bill (H.R.

facility from federal water 2099), 104th Cong., 1st Sess.

pollution control requirements (enrolled version), but vetoed by the

President and never enacted.

3. Ban on issuance of new discharge Some of the original 17 riders passed

limitations and water quality by the House as part of H.R.

standards 2099, but later deleted.

4. Ban on implementation of uniform

water quality standards for the

Great Lakes

5. Ban on implementation of

stormwater controls

6. Ban on implementation of

sewage overflow controls

7. Special attention for "industry Included as conference report language

comments" before EPA issuance of to accompany H.R. 2099.

final rule limiting air and water

pollution from pulp and paper mills

8. Ban on acquisition of permanent Passed by Congress as part of the

easements to protect wetlands FY96 budget reconciliation bill H.R.

under U.S. Department of 2491, 104th Cong., 1st Sess.

Agriculture's (enrolled Wetlands version), but vetoed by the

Reserve Program President and never enacted.

Threats to Safe Drinking Water Final Fate

1. Ban on issuance of tap water Enacted as part of FY96 omnibus

standard for radon spending bill. Omnibus Consolidated

Rescissions and Appropriations Act

of 1996, Pub. L. No. 104-134, 110

Stat. 1321.

2. Ban on issuance of tap water Contained in House and Senate

standard for arsenic versions of FY96 EPA appropriations

bill (H.R. 2099), but never enacted.

3. Ban on issuance of tap water Contained in Senate version of

standard for sulfates H.R. 2099, but never enacted.

4. Ban on issuance of standards to

protect public from contamination

of groundwater supplies by

cryptosporidium and other

contaminants

Clean Air Rollbacks Final Fate

1. Ban on CAA program promoting Enacted into law for FY95 as part

better emission inspection of budget rescissions bill. This ban

systems for automobiles was put in place permanently as

part of the National Highway

System Designation Act of 1995.

Pub. L. No. 104-59, 109 Stat. 568.

2. Ban on CAA program calling for Enacted into law for FY95 as part

increased car pooling and use of budget rescissions bill.

of mass transit 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.

3. Ban on EPA issuing and implementing Enacted into law for FY95 as part of

clean air controls for supplemental appropriations bill.

southern California (the federal Emergency Supplemental Appropriations

implementation plan) and Rescissions for the

Department of Defense to Preserve and

Enhance Military Readiness Act

of 1995, Pub. L. No. 104-6, 109

Stat. 73.

4. Halt to implementation of CAA's Some of the original 17 riders passed

operating permit program by the House as part of the FY96

5. Exemption for oil refineries EPA appropriations bill (H.R. 2099),

from air toxic standards but later deleted.

6. Exemption for cement kilns

from air toxic standards

7. Restriction on EPA issuance of Included as report language to

standards limiting air pollution accompany the Senate version of H.R.

from small gasoline engines 2099.

which produce 10 percent of the

air pollution in America's cities

8. Obstacles to setting a tighter Included as conference report

health standard for particulate language to accompany the FY97 EPA

pollution appropriations bill. H. REP. NO. 812,

104th Cong., 2d Sess. 70 (1995).

Backsliding on Energy Efficiency Final Fate

1. Ban on issuance of energy effici- Enacted into law for FY96 as part of

ency standards for household omnibus spending bill (Pub. L.

appliances No. 104-134). Not continued into FY97.

2. Ban on issuance of new fuel effici- Enacted into law for FY96 as part of

ency standards for automobiles the Transportation

3. Ban on energy efficiency labeling appropriations bill. Department of

for automobiles tires Transportation and Related Agencies

Appropriations Act, 1996, Pub. L. No.

104-50, 109 Stat. 436 (1995).

Continued in effect by the FY97 bill.

Department of Transportation and

Related Agencies Appropriations Act,

1997, Pub. L. No. 104-205, 110

Stat. 2951 (1996).

4. Elimination of tax incentives for Passed by Congress as part of the FY96

renewable energy technologies budget reconciliation bill (H.R.

and energy efficiency programs 2491), but vetoed by the President

and never enacted.

Exposure to Hazardous Substances Final Fate

1. Prohibition on listing new haz- Enacted as part of FY96 omnibus

ardous waste sites for cleanup spending bill (Pub. L. No. 104-134).

2. Ban on expansion of Toxic Release Some of the original 17 riders passed

Inventory by the House as part of the FY96

3. Exemption of oil and gas industry EPA appropriations bill (H.R. 2099),

from accident prevention program but later deleted.

4. Repeal of Delaney Clause prohibit-

ing the use of cancer-causing

pesticides in certain foods

5. Override of sound science to Passed by Congress as part of the FY96

facilitate development of Ward budget reconciliation bill (H.R.

Valley radioactive waste dump 2491), but vetoed by the President and

never enacted.

6. Ban on EPA research regarding the Included as report language to

health effects of electromagnetic accompany the Senate version of H.R.

fields 2099.

Green Light to Pollute Final Fate

1. Regulatory Accounting - requires Enacted into law as part of the FY97

the Office of Management and omnibus spending bill. H.R. 4278,

Budget to estimate and report to 104th Cong., 2d Sess. (enrolled

Congress within one year the costs version).

and benefits of federal regulatory

programs and recommend any that

should be eliminated

2. "Reform" of regulatory process to Passed by Congress as part of Debt

rollback public health and Limit Extension Bill, H.R. 2586,

environmental protections 104th Cong., 1st Sess. (enrolled

version), but vetoed by the President

and never enacted.

3. Audit shield for polluters who ad- One of the original 17 riders passed

mit (but not necessarily correct) by the House as part of the FY96

wrongdoing EPA appropriations bill (H.R. 2099),

but later deleted.

4. Termination of environmental Contained in House version of FY96

enforcement attorneys at U.S. Commerce/Justice/State

Department of Justice appropriations bill, H.R. 2076, 104th

Cong., 1st Sess., but never enacted.

Subsidized Logging Final Fate

1. Timber "salvage" - increased log- Enacted into law as part of FY95

ging in national forests in vio- budget rescissions bill (Pub. L. No.

lation of existing environmental 104-19). Unlike most of the riders

protections

2. Sale of timber from Tongass that expired at the end of the fiscal

National Forest without updating year, aspects of the timber-salvage

statutorily required environmental rider continue in effect until

impact statement January 1997.

3. Sale of national forests to ski Passed by Congress as part of the

resorts FY96 budget reconciliation bill (H.R.

2491), but vetoed by the President and

never enacted.

4. Tongass National Forest - directs Passed by Congress as part of FY96

Forest Service to implement Interior appropriations bill (H.R.

discredited four-year-old draft 1977), but vetoed by the President and

management plan that would never enacted.

dramatically increase logging

5. Clearwater National Forest -

override of court-ordered manage-

ment of Idaho forest for multiple

use rather than solely for timber

harvest

6. Mt. Hood Corridor land exchange - Enacted into law as part of the FY97

waiver of environmental review omnibus spending bill (Pub. L.

requirements No. 104-208).

7. Coquille Forest - gives away 5,400

acres of old growth forest in

Oregon to the Coquille Indian

tribe, opening up this formerly

protected area to logging

Subsidized Mining Final Fate

1. Repeal of mining patent moratorium Passed by Congress as part of the FY96

freeing up numerous claims of budget reconciliation bill (H.R.

private corporations to public 2491), but vetoed by the President

resources for a fraction of their and never enacted.

value

Subsidized Cows and Sheep Final Fate

1. Exemption of certain grazing Enacted into law for FY95 as part of

permits from environmental impact budget rescissions bill (Pub. L.

analysis No. 104-19).

2. Elimination of requirement to Passed by Congress as part of the

address environmental impacts FY96 budget reconciliation bill (H.R.

before issuance of grazing permits 2491), but vetoed by the President

(plus repeal of other grazing and never enacted.

limitations)

3. 90-day suspension of grazing Passed by Congress as part of FY96

regulations Interior appropriations

bill (H.R. 1977), but vetoed by the President

and never enacted.

Other Giveaways to Corporate Interests Final Fate

1. Oil drilling in the Arctic National Passed by Congress as part of the

Wildlife Refuge FY96 budget reconciliation bill (H.R.

2. Royalty exemption for oil leases in 2491), but vetoed by the President

Gulf of Mexico and never enacted.

3. Termination of San Joaquin River Enacted into law for FY96 as part

study, designed to improve the of energy and water appropriations

quality of California drinking bill. Energy and Water Development

water and rejuvenate commercial and Appropriations Act, 1996, Pub. L.

sportfishing industries No. 104-46, 110 Stat. 402 (1995),

4. Prohibition on recovering cleanup and continued in effect by FY97

costs from corporations responsible appropriations bill. Energy and Water

for contamination of California's Development Appropriations Act,

Kesterson Wildlife Refuge 1997, Pub. L. No. 104-26, 110 Stat.

2984 (1996).

5. Weakening Elwha River restoration Approved by the Senate during the

by excusing the state of debate on the FY97 Interior

Washington from certain ecosystem appropriations bill, but modified to

restoration requirements reinstate restoration requirements

before sent to the President as part

of the FY97 omnibus spending bill

(Pub. L. No. 104-208).

Gutting Endangered Species Protections Final Fate

1. Moratorium on listing new en- Enacted into law for FY95 as part of

dangered species and designating supplemental appropriations bill

critical habitat (Pub. L. No. 104-6), and continued in

effect until April 1996 by the

various temporary spending bills.

2. Ban on using Habitat Conservation Enacted into law for FY95 as part of

Areas in Alaska's Tongass budget rescissions bill (Pub. L.

National Forest to protect species No. 104-19).

from becoming endangered

3. Mt. Graham - override of court Enacted into law as part of the FY96

order protection critical wildlife omnibus spending bill (Pub. L.

habitat Native American sacred No. 104-134).

grounds

4. National Biological Service -

prohibition on surveys without

written permission of landowner

5. National Biological Service -

trasfer to U.S. Geological Survey

6. Elimination of critical ESA safe- Passed by Congress as part of the

guard that prevents commitment FY96 budget reconciliation bill (H.R.

of federal resources until potent- 2491), but vetoed by the President

ial harm to endangered species and never enacted.

is assessed

7. Halt to scientific assessment of Passed by Congress as part of FY96

species protection needs in Interior appropriations bill (H.R.

Columbia River Basin 1977), but vetoed by the President

and never enacted.

Assault on America's Parks Final Fate

1. Mojave Desert - weakening of pro- Passed by Congress as part of FY96

tections from national park status Interior appropriations bill (H.R.

1977), but vetoed by the President

and never enacted.

2. Park Closure Commission Passed by Congress as part of the

3. Prevention of competition for con- FY96 budget reconciliation bill

cession contracts to provide guest (H.R. 2491), but vetoed by the

services such as food and lodging President and never enacted.

in the national parks

4. Trails to Roads - requires congres- Enacted first as part of the FY96

sional approval of any DOI rules omnibus spending bill (Pub. L. No.

involving R.S. 2477 rights of way 104-134), and then continued as part

of the FY97 omnibus spending bill

(Pub. L. 104-208).

1. 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA §§ 101-618.

2. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

3. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18.

4. See infra notes 14-16 and accompanying text.

5. Emergency Supplemental Appropriations and Rescissions for the Department of Defense to Preserve and Enhance Military Readiness Act of 1995, Pub. L. No. 104-6, 109 Stat. 73.

6. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

7. Id. §§ 300f to 300j-26, ELR STAT. SDWA §§ 1401-1465.

8. Id. §§ 4321-4370d, ELR STAT. NEPA §§ 2-209.

9. 16 U.S.C. §§ 1600-1687, ELR STAT. NFMA §§ 1600-1687.

10. Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301-395; Toxic Substances Control Act, 15 U.S.C. §§ 2601-2692, ELR STAT. TSCA §§ 2-412; Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §§ 136-136y, ELR STAT. FIFRA §§ 2-31.

11. Gary Lee, Temporary Reductions Halt "Environmental Cop," WASH. POST, Dec. 14, 1995, at A21.

12. The government's fiscal year runs from October 1 to September 30. Congress began serious consideration of the FY96 appropriation bills in June 1995. These bills had to be signed into law by September 30, 1995, to keep the government open.

13. H.R. 2099, 104th Cong., 1st Sess. (House version) (1995). The President's request was only slightly more than the $ 7.24 billion appropriated to the Agency in FY95. Measured either way, the House-passed bill represented approximately a one-third reduction in EPA's funds. H.R. REP. No. 201, 104th Cong., 1st Sess. 44 (1995).

14. These percentages compare the President's request to the funding levels approved by the full House and Senate in the conference agreement for H.R. 2099. H.R. REP. No. 353, 104th Cong., 1st Sess. (1995).

15. H.R. REP. No. 201, 104th Cong., 1st Sess. 72 (1995).

16. See H.R. REP. No. 259, 104th Cong., 1st Sess. (1995).

17. U.S. GOV'T PRINTING OFFICE, BUDGET OF THE UNITED STATES GOVERNMENT, FISCAL YEAR 1997 167 (Supp. 1996). Compare the $ 21 billion in the Natural Resources and Environment Function to the total budget of $ 1.54 trillion.

18. See H.R. REP. No. 159, 104th Cong., 1st Sess. 45 (1995).

19. See Table 1 for a list of antienvironmental riders and how they each fared in the 104th Congress.

20. Pub. L. No. 97-293, 96 Stat. 1263, amended by Omnibus Budget Reconciliation Act of 1987, Pub L. No. 100-203, 101 Stat. 1330-268 and Federal Reports Elimination and Sunset Act of 1995, Pub. L. No. 104-66, 109 Stat. 721 (codified as amended in scattered sections of 43 U.S.C.).

21. H.R. REP. No. 350, 104th Cong., 1st Sess. 109 (1995).

22. NATURAL RESOURCES DEFENSE COUNCIL, THE YEARS OF LIVING DANGEROUSLY: CONGRESS AND THE ENVIRONMENT IN 1995 24 (Dec. 1995).

23. Id.

24. 42 U.S.C. § 4332, ELR STAT. NEPA § 102.

25. The salvage-timber rider, which was included in a bill authorizing supplemental appropriations for disaster relief and antiterrorism activities, required the Secretaries of Agriculture and the Interior to award contracts for salvage-timber sales on lands subject to U.S. Forest Service or Bureau of Land Management jurisdiction. 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. 104-19, § 2001, 109 Stat. 194.

26. Id. § 2001(i), 109 Stat. at 245. The statutes explicitly listed as being satisfied include NEPA, the ESA, the NFMA and "other Federal environmental and natural resource laws."

27. Tom Kenworthy, A Clear-Cut Solution for Loggers; "Timber Rider" Expedites Sales From U.S. Lands, Eliminates Recourse, WASH. POST, Feb. 20, 1996, at A1.

28. H.R. 1977, 104th Cong., 1st Sess., Amendments 107 & 108 (1995) (Engrossed Senate Amendment); see also S. REP. No. 125, 104th Cong., 1st Sess. 78 (1995) (explaining Appropriations Committee's interpretation of bill's language).

29. H.R. 1977, 104th Cong., 1st Sess. at 7 (1995) (U.S. Fish and Wildlife Service, Administrative Provisions) (enrolled bill); see also H.R. REP. No. 259, 104th Cong., 1st Sess. 28 (1995) (explaining Appropriations Committee's interpretation of bill's language).

30. H.R. 2099, 104th Cong., 1st Sess. § 301 (1995) (House version).

31. Inspection/Maintenance Flexibility Amendments, 60 Fed. Reg. 20934 (Apr. 28, 1995) (to be codified at 40 C.F.R. pt. 51).

32. See S. REP. NO. 140, 104th Cong., 1st Sess. 97 (1995). Some have argued that language included in the report accompanying the bill, rather than in the bill text itself, has little impact on the Agency. Such language, however, constitutes specific instructions to the Agency from those that control the Agency's funds. Although the report language is not legally binding, failure to follow it could clearly result in the loss of funds and consequently EPA, with few exceptions, heeds report instructions. EPA Administrator Discusses Funding Bills, INSIDE EPA, Nov. 24, 1995, at 16.

33. See, e.g., 42 U.S.C. § 7607(d), (h), ELR STAT. CAA § 307(d), (h) (providing for public participation in writing of rules to implement the CAA).

34. 5 U.S.C. §§ 500-596, ELR STAT. ADMIN. PROC. §§ 500-596.

35. Jane Fritsch, Senator Threatens Cut in Budget to Intervene in a Pollution Case, N.Y. TIMES, Aug. 24, 1995, at A1.

36. H.R. 2099, 104th Cong., 1st Sess. (1995).

37. Id. § 305.

38. Id. § 303 (environmental programs and compliance).

39. Id.; see also H.R. REP. No. 201, 104th Cong., 1st Sess. 60 (1995) (explaining Appropriations Committee's interpretation of the bill language).

40. H.R. 2099, 104th Cong., 1st Sess. (1995) (Environmental Programs and Compliance).

41. Compare Pub. L. 104-19, § 2001(j), 109 Stat. 245 (authority of the Secretaries of Agriculture and the Interior expires on December 31, 1996) with id. § 2001(a)(2), (b)(1), 109 Stat. 241 (Secretary must prepare, advertise, offer, and award salvage-timber contracts within emergency period, which ends on September 30, 1997). Moreover, the damage from these sales will continue long after 1996, because logging will continue into the next year under sales made before the expiration of the rider.

42. H.R. 1977, 104th Cong., 1st Sess. § 335 (enrolled version).

43. H.R. 2491, 104th Cong., 1st Sess (enrolled version).

44. Id. §§ 5331-44.

45. Id. §§ 5371-79.

46. Id. §§ 5461-70.

47. Id. §§ 5421-26.

48. Saw-Wielding Activists Mock Logging Law, L.A. TIMES, July 29, 1995, at A11.

49. The full House passed the EPA appropriations bill (H.R. 2099) with the riders on July 31, 1995, by a vote of 228 to 193. 141 CONG. REC. H8051 (daily ed. July 31, 1995). This vote reversed a vote a few days earlier in which moderate Republicans led by Rep. Sherwood Boehlert (R-N.Y.) joined Democrats to eliminate the antienvironmental riders from the bill. Id. H7933 (daily ed. July 28, 1995).

50. Memorandum from Linda DiVall to the Superfund Reform Coalition America Viewpoint (Dec. 12, 1995) (on file with author) (finding that 79 percent of those surveyed support the current level of environmental regulation); Time/CNN Poll, Sept. 27-28, 1995 (on file with author) (67 percent of those surveyed oppose opening the Arctic National Wildlife Refuge to oil drilling; 63 percent oppose reducing protection for endangered species); Current Trends in Public Opinion From the Wirthlin Group, THE WIRTHLIN REP. (The Wirthlin Group, McLean, Va.), Aug. 1995, at 1 (72 percent of respondents believed that the environment was so important that it should be protected regardless of cost); LUNTZ RESEARCH AND STRATEGIC SERVICES, AMERICAN PUBLIC OPINION ON DEREGULATION 21-22 (1995) (when asked what Congress' top priority should be, 62 percent of those surveyed choose protecting the environment compared to 29 percent choosing cutting regulations).

51. Congress Returns to Face Appropriations, Budget Binds, CONGRESS DAILY, Oct. 10, 1995, at 1.

52. ENVIRONMENTAL AND ENERGY STUDY INSTITUTE, WKLY. BULL. at 3, 5 (special ed. Jan. 5, 1996); Eric Pianin, White House, GOP to Offer New Budget Proposals; Spending Bill Expires at Midnight; Threatening Partial Government Shutdown, WASH. POST, Dec. 15, 1995, at A4.

53. Eric Pianin, Clinton, Congress Reach '96 Budget Agreement; Funding Restored for Some White House Priorities; Targeted Agencies Appear to Face Less Drastic Cuts, WASH. POST, Apr. 25, 1996, at A1; Eric Pianin, House Extends Funding 7 Weeks; Clinton Backs Plan to Avoid Shutdown, WASH. POST, Jan. 26, 1996, at A1.

54. John Cushman, G.O.P. Backing Off From Tough Stand Over Environment, N.Y. TIMES, Jan. 26, 1996, at A1.

55. Gary Lee, GOP Is Warned of Backlash on Environment; Rolling Back Legal Safeguards, Cutting Funds Could Cost the Party Votes, National Poll Indicates, WASH. POST, Jan. 24, 1996, at A6.

56. Budget, Agriculture Action Slated Next Week, CONGRESS DAILY, Jan. 26, 1996, at 1, 4.

57. Eric Pianin, Senate and President Approve Funding Extension, WASH. POST, Jan. 27, 1996, at A8.

58. Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, § 320, 110 Stat. 1321-210.

59. Id. § 335, 110 Stat. at 1321-203.

60. Lee, supra note 11.

61. Id.

62. Id.

63. EPA Begins Shutting Down Superfund Cleanups for Lack of Funds, INSIDE EPA, Dec. 15, 1995, at 12; Frank Clifford, Cleanup of Area Superfund Sites Is Jeopardized, L.A. TIMES, Jan. 25, 1996, at A1.

64. H.R. 4278, 104th Cong., 2d Sess. (enrolled version).

65. Id. § 645 (Title VI of Treasury/Postal appropriations).

66. WASH. POST, Nov. 6-11, 1995 (Style Section).

67. Robert Kuttner, Perils of a Balanced Budget, SACRAMENTO BEE, Nov. 16, 1996, at B6 (balancing the budget by the year 2002 would require close to $ 1 trillion dollars in program cuts over six years, and discretionary spending would have to be cut by over 30 percent); see also conference agreement for the 1996 budget resolution, H.R. REP. No. 159, 104th Cong., 1st Sess. 46 (1995). The 1996 resolution, aimed at balancing the budget by the year 2002, requires a reduction in environmental spending (Function 300: Natural Resources and Environment in budget terminology) of $ 29.1 billion from the 1995 level by 2002. These proposed cuts are greater than the total $ 22.3 billion spent on Function 300 in 1995. Id. at 43.

68. David Broder, No Money to Play With Anymore if We Don't Cut Entitlements, We Cut Discretionary Spending, WASH. POST, Jan. 22, 1996, at A4 ("Since Clinton agrees with Congress that defense spending, which currently makes up almost half the discretionary account, has been cut about as far as is prudent, the cuts presumably would come mainly from domestic programs.").

69. Safe Drinking Water Act Amendments of 1996, Pub. L. No. 104-182, 110 Stat. 1613 (codified in scattered sections of 42 U.S.C. §§ 300f to 300j-26); Food Quality Protection Act of 1996, Pub. L. No. 104-170, 110 Stat. 1489.