But even friends of regulatory reform are aghast at the bill that is expected to be passed this week by the House of Representatives. Environmental Defense Fund president Fred Krupp, a moderate whose own calls for a more measured approach to regulation have been attacked as a sellout by other environmentalists, calls Gingrich’s Job Creation and Wage Enhancement Act the “most sweeping anti-health, anti-safety and anti-environmental measure ever proposed.” “Parts of the bill came out dealing with complex issues by using bumper-sticker slogans,” says Rep. Dick Zimmer of New Jersey, a conservative Republican.
What happened to the common-sense approach? A feeding frenzy erupted at the “markup” in the House Commerce Committee a fortnight ago. Many conservatives, outvoted by environmentalists in the past, sought to even the score. But the bill they produced is oddly contradictory. In some ways it is much too conservative, sweeping away regulations that have been both popular and effective. At the same time, it creates precisely the sort of regulatory morass that conservatives have long bemoaned. The final product is a minefield of unintended consequences. Among them:
The bill draft includes one of the great Trojan-horse passages in legislative history, a blandly worded bit of boilerplate that courts may interpret as repealing the entire system of modern ecological protection: voiding the Clean Air Act, Clean Water Act, food-safety laws and many others. EPA Administrator Carol Browner says, “If we want to repeal the Clean Air or Clean Water acts, that should be debated openly in the light of day, not snuck past people using code words.”
Most academic analysts believe that environmental rules need a better balance between spending on small risks, such as pesticide residues, and spending on clear dangers such as lead poisoning. But the risk language in the bill is so extreme it would prevent virtually all environmental protection. EDF lawyers calculate that the ban on lead in gasoline–which since 1977 has eliminated some 98 percent of the lead in the American sky, at the cost of about a penny a gallon–would be overturned by the bill.
In order to make it hard for federal officials to impose rules on industry, the Republican bill contains a kind of regulatory anti-missile missile, designed to cause clouds of paperwork wherever it detonates. The bill calls for a 23-step review process tailored to give business lawyers multiple opportunities to tie health rules in knots. The clause could, for instance, rule out duck hunts. It could take so long for officials to satisfy the formal steps for setting hunt quotas that the season would be over before the review was complete.
Experts like Portney think the Environmental Protection Agency spends too little time comparing the cost of regulations with benefits. But the Gingrich bill might require the agency to do hardly anything else. Republican Sen. John Chafee of Rhode Island, head of the Senate Environment and Public Works Committee, notes that the remarkable progress in water cleanup–with filthy waters such as Boston Harbor, Long Island Sound and the Potomac River again safe for fishing or swimming–has been aided by a fairly simple standard, under which cities reduce the pollution content of sewer discharge by about 85 percent. Gingrich’s bill “would require that every one of the 16,000 wastewater plants in the United States perform an analysis of the need for water-pollution control, which is a prescription for legislative gridlock,” says Chafee.
One provision seems to come straight from the liberal bureaucrat’s bible–a passage making virtually all environmental and health-science assessments subject to judicial review. The purpose is to stall new regulation, but the impact may be endless lawsuits. And the outcome may not necessarily be to the liking of conservatives. In 1991, after reviewing thousands of pages of scientific assessments, a Seattle federal judge imposed logging bans across much of the Pacific Northwest to protect the spotted owl. The judge was a Reagan appointee.
“Takings” are cases in which environmental regulations reduce the value of someone’s land: for instance, wetlands rules that say a person can continue owning land–but not build on it. Must the owner be compensated for the value lost by the “taking” of his land? Gingrich’s bill would allow anyone claiming as little as a 10 percent diminishment in property value to sue the government. Since real-estate appraisals often vary by more than 10 percent, the potential for nuisance lawsuits is strong. “Takings” legislation has long been championed by Rep. Billy Tauzin of Louisiana, a conservative Democrat close to Gingrich. Tauzin’s bills set the compensation threshold at 50 percent, a reasonable level.
Even many business lobbyists fear the bill goes too far. “This reminds me of 1981, when industry shot itself in the foot,” said Ernie Rosenberg, a Washington official of Occidental Petroleum. Riding the crest of the Reagan conservative wave, big-business lobbyists pushed for undoing the Clean Air Act. Business not only lost but managed to engender much of the strident public environmental sentiment that later resulted in far stricter laws. Recently the environmental credibility of industry has gone on the uptick. It’s been six years since the Exxon Valdez, the last big blunder; several categories of emissions, such as toxic byproducts from chemical manufacturing, have been declining at an impressive clip. “But if the public gets the idea we are trying to turn back the clock on the valid regulations,” Rosenberg says, hard-won corporate credibility could be squandered.
The Senate may tone down the excesses of Gingrich’s legislation. But Majority Leader Bob Dole has a sweeping anti-environmental bill of his own, and there is no assurance that common sense will triumph over political expediency. Recently Gingrich condemned environmentalists “more interested in holding emotionally satisfying press conferences” that demonize business than in real reform. But with this week’s expected bill, the House seems to be taking the same approach–more interested in a flashy bill that demonizes all regulations than in the arduous work of separating those programs that are valid from those that are not.
