On the environmental front, for libertarians, conservatives, and other property-rights and sound-science buffs, a little celebration is in order. After all, three of the biggest enemies of liberty and sensible environmental policy in the House of Representatives—California Democratic chairmen Henry Waxman, George Miller, and Norm Mineta—have turned in their gavels and lost their subpoena powers.
But it's not time to get cocky. The 104th Congress will not board up the Environmental Protection Agency or defund the Fish and Wildlife Service. Right now, such moves would certainly fail and would be bad politics. Though the term environmentalist has become almost meaningless, we all want to be one. For most folks, talk of repealing environmental laws conjures up scary images—the Bhopal chemical-plant disaster, the Exxon Valdez spill, or Reagan administration Interior Secretary James Watt.
It will take time to convince the general public that being environmentally conscious does not require massive regulations. Republicans and sympathetic Democrats should start implementing what former Rep. Don Ritter, founder and chairman of the National Environmental Policy Institute, calls "reinventing the process of environmental regulation." Devolving environmental decision making to states, municipalities, and individuals, and replacing hidebound regulations with more innovative approaches could eventually result in effective environmental policies that don't stifle individual freedom. And even if the GOP loses its congressional majorities in 1996, procedural changes this year could help bring environmental extremism under control.
So here's a game plan for the next two years:
1) Pass the "unholy trinity" provisions in the Contract With America, but cover your posteriors. The contract includes provisions on risk assessment, unfunded mandates, and unconstitutional takings of private property—three issues that could so constrain environmental regulations that greens call them an "unholy trinity."
The trinity components of the contract could revolutionize the regulatory process, especially in environmental policy. One section of the contract's Job Creation and Wage Enhancement Act requires a "regulatory impact analysis" of any new federal rule that affects more than 100 persons or will cost individuals or nonfederal agencies more than $1 million to enforce.
The property-rights component in the contract would require the federal government to compensate property owners if any new regulation reduces the value of their land by more than 10 percent.
A third section would require the budget director and the Congressional Budget Office to develop a "mandate budget" to estimate how much money states, municipalities, and individuals pay to implement unfunded mandates, the regulations Congress passes without providing money
to pay for enforcement. This proposal would place mandates on a level playing field with appropriated programs such as the National Endowment for the Arts or Pell Grants; if mandates are projected to run over budget, Congress will have to reduce them.
If passed, these three provisions would require regulators to set priorities before they issue new rules, give a greater role to scientific analysis in assessing risk, and allow individuals and government officials to be flexible in their approaches to environmental problems rather than obeying rigid mandates from Washington. They would also begin what the NEPI's Ritter calls a "reinvention" of federal environmental policy, making it more market oriented and less hide-bound.
Yet these are radical departures from the Beltway's standard procedures. Greens will push the White House to veto them. So it's also wise to have backup bills in place.
Rep. Billy Tauzin (D-La.) has offered a takings-compensation bill that would mandate compensation whenever regulations reduced a landowner's property value by more than 50 percent. Another Louisiana Democrat, Rep. Jimmy Hayes, has proposed wetlands reforms that would exclude previously tilled farmlands from federal wetlands restrictions and require compensation to landowners when truly valuable wetlands are found on private property. Rep. John Mica (R-Fla.) attached risk-assessment and cost-benefit requirements to every major environmental bill that came up in the 103rd Congress, and he got a majority to back one of them. Pass these as stand-alone bills and dare Clinton (who will desperately need votes in the South and the West next year) to veto them.
And Congress could make the issue of new unfunded mandates irrelevant. Sen. Orrin Hatch, the new chairman of the Judiciary Committee, will probably propose a constitutional amendment prohibiting additional mandates. If Congress adopts this amendment, it might sweep through state legislatures before the 1996 elections.
2) Repeal retroactive liability in the new Superfund bill.
The current law makes every polluter at a Superfund site potentially liable for paying the entire cleanup costs, even if that company's actions were legal before the Superfund law was enacted. Not surprisingly, older companies with deep pockets tend to get stuck with big cleanup bills and spend a lot of money suing more-recent occupants of the sites. And there's little correlation between the companies that pollute waste dumps and those that get stuck with the bills. Using IRS data, the American Petroleum Institute calculates that oil companies pay as much as 60 percent of Superfund taxes, while the EPA says those businesses are responsible for less than 10 percent of the pollution at Superfund sites.
In the 103rd Congress, two New Hampshire Republicans, Rep. Bill Zeliff and Sen. Bob Smith, sponsored a Superfund amendment that would have repealed retroactive liability and paid for cleanups by doubling the Superfund tax rates. Zeliff, who may chair the Public Works and Transportation subcommittee that oversees Superfund, will reintroduce his amendment this year. Repealing retroactive liability in this manner would do more than limit lawsuits and other transactions costs, which eat up more than one-third of Superfund money; it would also place Superfund on a budget and force environmental officials to set cleanup priorities rather than mindlessly attempting to eliminate the last molecule of a proscribed substance, regardless of cost.
3) Repeal or reform targeted portions of omnibus bills with environmental reinvention in mind. Tauzin has proposed amendments that would greatly enhance the flexibility of the Endangered Species Act. Tauzin's proposals would, under some circumstances, let private landowners protect threatened species without surrendering the ownership of their property and require compensation to landowners in those cases which the protection of threatened species deprives owners of most economic use of their property.
The 104th Congress could also earn the unceasing gratitude of drivers everywhere by letting those regions that don't comply with the automotive-emissions components of the Clean Air Act implement remote testing of cars or use other flexible pollution-reduction plans. Tell the EPA to shove its electric-car mandates, no-drive days, and specific formulas for gasoline.
4) Remember: Your mandate is tenuous. Your majorities in each house are tiny, and voters have put you on a very short leash. If you don't deliver meaningful changes, they'll toss you out.
But even if you return to the minority in 1997, the procedural reforms you pass this year can lead to a revolutionary redefinition of the relationship between individuals and the federal government that voters will eventually appreciate. "If there was a lesson from the electorate," Ritter says, "it is that people don't think government works well, especially the federal government." You have the ball, Republicans. Don't fumble it.
Rick Henderson is Washington editor of REASON.
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