On May 19, the U.S. Senate voted to require local water systems to remove radon from tap water, establish a $6.6-billion federal loan program to help small cities and towns upgrade their water-purification systems, and elevate the Environmental Protection Agency to cabinet status. Even so, prominent environmentalists view the 95-to-3 vote to reauthorize the 1974 Safe Drinking Water Act as a loss.
"The bill lets tap water contain more cancer-causing contaminants than allowed under current law," complained Natural Resources Defense Council lawyer Erik Olson to The Washington Post. Relaxed regulations, however, aren't the environmentalists' main gripe. They are steamed about two amendments slipped in at the last minute: a requirement sponsored by Sen. Bennett Johnston (D-La.) that the EPA conduct a cost-benefit analysis for any new water regulation that costs more than $100 million and a rule authored by Sen. Bob Dole (R-Kans.) subjecting any regulation that might cause a taking of private property to a "takings-impact analysis." A takings analysis would force the feds to consider less-costly alternatives to the proposed regulation or to specify how the owner would be compensated for the taking.
Green groups recognize that a backlash against overreaching environmental regulations has disrupted their cozy relationships with powerful congressional barons and executive-branch regulators. They contend (in private, for the most part) that takings analyses and cost-benefit requirements make up two parts of an "unholy trinity," a group of issues that could gut their pet laws. The third part of the "trinity" is unfunded mandates—costly federal regulations that must be enforced and paid for by state and local governments. Despite frenzied opposition from mainstream environmental groups, the Senate's "unholy" amendments could stop any attempt to make laws greener.
If 1990 marked the 20th anniversary of Earth Day, 1994 should have been the Year of the Greens. Along with the drinking-water bill, four major environmental bills—the Marine Mammals Protection Act, the Clean Water Act, the Endangered Species Act, and the Comprehensive Environmental Response, Compensation and Liability Act (a.k.a. Superfund)—are up for reauthorization. Environmental groups expected the new bills to greatly extend federal powers to regulate wetlands, protect endangered species, and pummel polluters. With champions of the ecosphere controlling the White House and Capitol Hill, you'd think green activists would be breaking out the champagne and making reservations for bill-signing ceremonies on Pennsylvania Avenue.
But heavy-handed regulations have spawned a grass-roots backlash against the organized environmental movement. The U.S. Conference of Mayors lobbies Congress to reduce unfunded mandates. Trade associations such as the National Federation of Independent Business commission cost-benefit studies to counteract newly proposed regulations. And the property-rights movement has exploded.
Small ranchers, miners, and landowners have gained the sympathy of legislators, who promise to ease regulations in the new versions of green laws. Peggy Riegle, president of the Fairness to Land Owners Committee, works with more than 500 local property-rights organizations. Of the 15,000 "mom and pop" landowners who have joined Riegle's group during the past four years, she says more than 10,000 face "having their property stolen by bureaucrats" enforcing wetlands regulations. Every member of Congress, says a Capitol Hill staffer, "has a constituent with one of these problems." (See "The Swamp Thing," April 1991.)
Environmental regulations have reached beyond factory smokestacks and corporate dumpers. Now they can prevent a congregation of 120 Baptists in Florida from building a church and a retired couple in Michigan from constructing a home on a lakefront lot they've owned for 25 years. More and more individuals are asking elected officials what benefits they're getting in return for these tough regulations. Responding to the backlash, the leaders of the Beltway-based viro groups have decided that, if they can't guarantee new environmental laws more draconian than the versions currently on the books, they'll instead try to keep the laws from being reconsidered.
A widely circulated March 4 memo from the NRDC's Olson to the heads of six other environmental groups explicitly spells out the greens' strategy: "The community needs to focus more sharply on a limited number of pieces of legislation and to put more substantial resources into winning that legislation." The memo says, "If we cannot get [Senate environment committee chairman Max] Baucus and [Majority Leader George] Mitchell to agree to move a strong [drinking-water] bill on the floor, we can move to a kill strategy"; "we will want to ask the Hill and the Administration to take Superfund off the table"; "[we should] ask for a drinking water bill markup delay…so that we can work with Mitchell and Baucus and the Administration to set a good precedent on the unholy trinity issues." The message is clear: Beltway-based environmental organizations can't expect Congress to accede to their every demand. And their failure to stop the drinking-water act suggests that green groups can't even kill bills they don't like.
The tide started turning against environmentalists with last fall's vote to establish the National Biological Survey. The survey was ostensibly intended to tote up the nation's fish, fowl, and mammals. But property-rights groups like the National Inholders Association, Defenders of Property Rights, and the National Wilderness Institute worried that this agency would give federal regulators a means to regulate private lands on which "candidates" for listing under the Endangered Species Act live.
House members sympathetic to property owners added amendments to the authorization bill that prohibit activist-group "volunteers" from conducting the survey and that require NBS agents to get written permission from property owners before they can enter private lands. These amendments have so constrained the NBS that greens don't want the Senate to authorize the agency just yet—Olson's memo suggests taking NBS off the table.
Still, the National Biological Survey isn't dead. Interior Secretary Bruce Babbitt has appropriated $162 million from his budget for the NBS and has carved out territory in his department for its functions. Babbitt shows how a dedicated regulator can keep the regulatory powers of a bill alive even if Congress won't pass it. As long as Babbitt can fund the NBS, opponents can do little to stop him.
Similarly, regulations under the bills due for reauthorization won't disappear if Congress fails to vote on them this year. The laws are set up to continue with their current regulatory powers until reauthorized, whenever that may be. Greens can sit back, hope the fervor over the "trinity" will abate, and then move to strengthen (or at least preserve) their pet projects.
Congressional politics may be working against that strategy, however. The natural-resources committees in Congress are dominated by environmentalists. But a new, tenuous coalition of congressional back-benchers has started to form. Conservative Southern and Western legislators normally sympathetic to landowners are joining with younger moderates who don't have seniority on Capitol Hill and are more beholden to their constituents than to committee chiefs. For instance, freshmen Florida Reps. John Mica (R) and Karen Thurman (D) tried to add a risk-assessment amendment to the EPA cabinet bill in February. When it appeared Mica and Thurman would win the vote, supporters of the cabinet bill removed it from consideration.
Congressional Quarterly reports that Thurman "built a reputation for herself as a Florida legislator pushing laws to protect wetlands and clean up leaky underground storage tanks." But she calls a risk-assessment requirement "common sense." Much like the back-bench rebels who have supported insurgencies to trim federal spending and cut the deficit, these junior legislators have shown they will defy congressional leaders when they believe they can win. Soon after the Mica-Thurman amendment was proposed, Olson circulated his "unholy trinity" memo.
Of the three portions of the "trinity," the takings issue threatens green ambitions the most. Unfunded mandates affect only state and local governments, which may themselves regulate private citizens without paying the costs. And cost-benefit analyses can be fudged. But if the federal government indeed had to appropriate money to pay for all the regulations they hand down, we would certainly see fewer land-use restrictions.
The takings issue moves beyond arcane calculations of benefits and mandates and, as one environmental analyst says, "hits people in their souls." Environmental groups "have big staffs, lots of money, and smart people," says Myron Ebell of the National Inholders Association, a group that represents Western landowners. "We have fear, pain, and anger on our side."
The Dole and Johnston amendments are but two tame examples of environmental reforms before Congress. Rep. Jimmy Hayes (D-La.) has collected 163 co-sponsors for a wetlands bill that incorporates property-rights protections. And consider the takings-compensation bill Rep. Billy Tauzin (D-La.) hopes to take to the House floor later this year.
Tauzin's bill, HR 3875, would specify that any action under the Endangered Species Act or the wetlands provision of the Clean Water Act that reduces the value of a property owner's land by 50 percent or more constitutes a regulatory taking under the Fifth Amendment to the Constitution. The owner would be entitled to compensation from the federal government.
In a "Dear Colleague" letter, Rep. Norman Mineta (D-Calif.), chairman of the House public works committee, suggested that Tauzin's bill would subvert the Constitution and bankrupt the federal treasury. "We should not adopt the idea," wrote Mineta, that "the private interest must be paid to obey the law and not to harm the public."
Tauzin counters that his bill, which has 136 co-sponsors, would in fact enhance constitutional protections. He cites two takings decisions handed down by the U.S. Court of Claims in which Chief Judge Loren Smith asked political officials to clearly define regulatory takings. "Courts," wrote Smith in Bowles v. U.S., "can only interpret the rather precise language of the fifth amendment to our Constitution in very specific circumstances. To the extent that the constitutional protections of the fifth amendment are a bulwark of liberty, they should also be understood to be a social mechanism of the last, not first resort. [Courts] cannot hope to fill in the portrait of wise and just social and economic policy."
Today, notes Tauzin, the courts must decide compensation in takings lawsuits case by case. In addition, anyone wanting to sue the federal government must file suit in the Court of Claims in Washington, often many years after the government enforces its regulations.
"Few people have the resources to sue the government," he says. "We're making sure that every small landowner has the same right to justice as any big landowner who can afford to spend 10 years in court." As for compensation, it "will break the bank," Tauzin says, "unless you change environmental policies. But that's not my problem. The Constitution demands compensation in takings cases."
Green activists recognize that they can no longer steamroll any bill they want through Congress. As Sierra Club Executive Director Carl Pope told Congressional Quarterly, "These issues [the unholy trinity] have managed to slow us down and weaken laws and get in the way of the normal process"—that is, passing ever-more-restrictive environmental laws—"of Congress and the administration."
Al Gore and his environmentalist buddies are still in the White House, but any administration starts to lose political clout after mid-term congressional elections. And with the impending retirement of George Mitchell, the most powerful environmentalist in either house of Congress, greens will lose a crucial advocate. "If they can't pass [tough] environmental laws in the first two years of the Clinton administration," asks Ebell, "when the hell can they do it?"
Rick Henderson is Washington editor of REASON.