Short calendar makes movement of major environmental legislation unlikely

By David Ridenour
web posted March 1998

With just 76 legislative days planned this year in the U.S. Senate and even fewer planned for the House of Representatives, the prospects for significant movement on major environmental reform bills are dim. On the other hand, prospects for the kind of legislation favored by the environmental establishment look equally unlikely.

Historically, the longer Congress is in session after Labor Day during an election year, the more difficult it becomes for incumbents in general, and incumbents belonging to the majority party in particular, to secure re-election. This is because these extended sessions keep incumbents in Washington and away from the campaign trail at the very time the public begins to take an interest in the elections. Given the Republicans' narrow majority in the House of Representatives, they can ill-afford an extended session.

To ensure they can keep to an abbreviated calendar, Republicans should avoid legislative initiatives that fail to satisfy a core constituency, have little chance of passage but eat up substantial time, grant Democrats a rhetorical advantage, or divide Republicans. As few environmental initiative fit these perimeters, little legislation will move this session. Still, Congress could act on some environmental legislation:

Endangered Species Act

The Endangered Species Act (ESA) bill with the best chance of moving this year is the Endangered Species Recovery Act (S. 1180). Crafted by Senator Dirk Kempthorne (R-ID) in negotiations with Secretary of Interior Bruce Babbitt and Senators Harry Reid (D-NV), Max Baucus (D-MT) and John Chafee (R-RI), the bill would reauthorize the Endangered Species Act for another six years. But opposition to the bill has been mounting in recent months, with several key Farm Bureau federations, most notably, California's, Washington's and Florida's, coming out against the bill. Privately, a number of Western Senators, including some who voted in favor of the bill at the committee level, have expressed grave reservations about the bill in its current form. Among the concerns: 1) The bill would reauthorize the Endangered Species Act without a provision requiring compensation to property owners who lose the right to use their land under the Act, 2) The bill would exempt biological information from the Freedom of Information Act, thereby making challenges to such data impossible; 3) The bill would retain the definition of "harm" to include habitat modification; 4) The bill would grant greater discretionary powers to the Secretary of Interior; and 5) The bill would codify Habitat Conservation Plans, which would essentially establish federal land use planning.

Because of these problems and others, Senate Majority Leader Trent Lott (R-MS) has reportedly sent word to Senator Kempthorne that improvements will need to be made to the bill before it will even be considered for a floor vote. Senator Kempthorne's challenge will be to make sufficient changes to satisfy concerned Republicans while keeping Democrat supporters on board. This is a very tall order.

Should the bill secure floor time and be approved by the Senate, there would be enormous pressure on the House to take up the bill. Representatives Cal Dooley (D-CA) and Wayne Gilchrest (R-MD) are reportedly top candidates for introducing the bill in the House. Another ESA bill that could conceivably move in 1998 is the Flood Prevention and Family Protection Act (H.R. 478), which was reintroduced by Representatives Wally Herger (R-CA) and Richard Pombo (R-CA) at the end of last year. If approved, the bill would establish an exemption under the Endangered Species Act to allow repair and maintenance of existing flood control projects to prevent flooding. The bill was pulled from House floor consideration last year after a weakening amendment offered by Sherwood Boehlert (R-NY) was approved 227-196. In an interview with Rush Limbaugh shortly after the bill was pulled, House Speaker Newt Gingrich vowed to bring the bill to a vote again during this session of Congress. Whether or not a vote is scheduled may now depend on whether or not Representatives Herger and Pombo choose to hold the Speaker to his word.

Air Quality

Hill efforts to challenge the Clinton Administration's new, more stringent air quality standards were stymied last year, but there are signs that new life may be breathed into these initiatives in 1998. In the House, H.R. 1984, a bill sponsored by Representatives Ron Klink (D-PA), Rick Boucher (D-VA and Fred Upton (R-MI) that would place a four year moratorium on the new air standards, has been bottled up by Commerce Committee Chairman Tom Bliley (R-VA). The Reason? Bliley does not believe the bill has sufficient support from Democrats to garner the 290 votes needed to override a certain presidential veto. But supporters of the bill are now circulating a discharge petition -- a process that permits a bill to be taken directly to the house floor for a vote provided 218 signatures are collected -- in the hopes of breaking the log jam. While gaining the necessary signatures will be difficult, it is certainly not impossible as H.R. 1984 has close to 200 co-sponsors. On the Senate side, S. 1084, a companion bill, was attached to legislation granting the President "fast-track" authority to negotiate trade deals by Senator James Inhofe (R-OK) last year. Inhofe eventually agreed to withdraw the bill in exchange for a promise by Senate Majority Leader Trent Lott (R-MS) that Senate action on the bill would be scheduled early this year. Out of the air standards debate, Republicans will have at least one solid political opportunity. At the very time the EPA was arguing for the new standards on the basis that they would save children from debilitating asthma attacks, the agency decided to ban asthma treatment used by millions of children in an effort to comply with the Montreal Protocol, which bans the use of chlorofluorocarbons (CFCs). As a result, Senator Tim Hutchison (R-AR) and Representative Mark Foley (R-FL) have introduced the Asthma Inhaler Regulatory Relief Act (AIRRA) of 1996 to halt the EPA ban. The bill is likely to move this year as it gives Republicans an opportunity to turn the tables on the EPA on children's health issues.

Property Rights

Senator Dirk Kempthorne (R-ID) has vowed to offer an amendment to his Endangered Species Recovery Act (S. 1180) to compensate property owners whose land is devalued by 20% or more as a result of the Endangered Species Act, should the bill come to the floor. But most observers believe Kempthorne's amendment will be crafted to fail, because Senator Kempthorne fears that passage of such an amendment would mean all but certain defeat for S. 1180.

The prospects for another property rights initiative, the Property Rights Implementation Act (H.R. 1534) sponsored by Elton Gallegly (R-CA), are much better. Approved by the House last October, the bill would expedite property owners' access to the courts by limiting the number of application and appeal processes they must submit to before seeking legal redress. Prospects for the Senate companion bill, the Access to Justice Act (S. 1204) offered by Senator Paul Coverdell (R-GA), are believed to be very good because the bill has solid bi-partisan support with a half a dozen Democrat co-sponsors. Senator Mary Landrieu (D-LA) has reportedly been pressuring her party's leadership to allow the measure to come to a vote with the same vigor that Senator Coverdell has been pressing his party's leadership. Another property rights bill, the Tucker Act Shuffle Relief Act (H.R. 992) offered by Representative Lamar Smith (R-TX), is expected to be voted on by the House early this year. The bill would complement H.R. 1534 by allowing plantiffs the option of choosing between federal claims court and federal district court for redress. Senate Judiciary Committee Chairman Orrin Hatch (R-UT) has crafted a bill that incorporates both H.R. 992 and H.R. 1534. So far, however, it does not enjoy the kind of bi-partisan support that Coverdell's S. 1204 does, making its prospects for passage less likely.

Global Warming

Although the Kyoto Protocol, the international global warming accord that would commit the U.S. to reducing its greenhouse gas emissions by seven percent below 1990 levels by 2010, could be signed by the President this year, he is unlikely to submit it to the Senate for ratification. This is because the treaty would face all but certain defeat in the Senate as the treaty exempts developing nations from emissions reductions and would impose huge economic costs on the U.S. -- both violations of the Byrd-Hagel resolution, passed by the Senate last year in a 95-0 vote. Republicans may introduce another resolution, essentially a rehash of the Byrd-Hagel resolution, to force Senate Democrats to take a firm position on the Kyoto protocol and keep the issue before the American people. Republicans would be wise to bring such a resolution up for a vote as organized labor, which strongly opposes the treaty, would closely monitor the vote.

Sovereignty

The American Land Sovereignty Act (H.R. 901), which would bar designation of U.S. soil as World Heritage Sites and Biosphere Reserves without congressional approval, was approved by the House of Representatives in a 236-191 vote last October and now goes to the Senate. Although the bill fits the conditions of the kind of environmental legislation Republicans should be looking for in an election, the fact that the bill has yet to attract a Senate champion is somewhat discouraging.

Grazing/Forestry

The Senate will likely take up S. 1027 which includes the "Quincy Library Group" proposal. The proposal, an agreement negotiated between local environmentalists, industry groups, the local government and others in Quincy, California concerning National Forests in the California Sierra Nevadas, is ostensibly designed to balance the demands of environmentalists with the needs of local timber workers, ranchers and others. Unfortunately, the ranching community was shut out of the Quincy Library Group process. Perhaps not surprisingly, the agreement would essentially bar cattle grazing in the region. The House version of the bill, H.R. 858, breezed through the House last July with bi-partisan support, making S. 1027's prospects very good. On the other hand, Senator Barbara Boxer (D-CA) recently revoked her support of the bill and has vowed to do everything in her power to defeat it. Environmentalists are unhappy with the bill, claiming it would double logging in the affected forests.

David Ridenour is vice president of The National Center for Public Policy Research in Washington, D.C. Comments may be sent to him at DRidenour@nationalcenter.org. This piece originally appeared in a publication by the NCPPR.




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