The Gop's Guerrilla War On Green LawsMary Beth Regan
Call it the stealth environmental policy. Nowhere in the House Republicans' Contract With America can you find the word "environment." Instead, the pact contains standard regulatory-reform rhetoric--calls for cost-benefit analysis, risk assessment, and the like. And it echoes the Right's clamor for compensation when regulations end up lowering property values.
Yet the document is sending shivers through the Clinton Administration and its supporters in green organizations. They fear that legislation on these concepts would turn the environmental clock back two decades. If GOP House leaders can get fast action in three broad areas (table), they would set the scene for revisiting everything from air-pollution control to pesticide regulation. Even the ban on oil drilling in the Arctic National Wildlife Refuge (ANWR)--an issue environmentalists thought they buried in 1991--may be on the table again. "With one stroke of the pen, they could eviscerate all the environmental laws," says Jessica Landman, a staff lawyer at the Natural Resources Defense Council.
CLOUDY PICTURE. It's a shrewd strategy. Rather than blowtorching such potent symbols as the Clean Air and Endangered Species Acts, House Speaker-to-be Newt Gingrich (R-Ga.) and other GOP leaders are launching a guerrilla attack on arcane regulatory procedures. "You have to give Gingrich credit," says one top Environmental Protection Agency official. "He knows he can't campaign against environmental protection."
How far the reforms will go is far from clear. Senate Republicans are cooler than the House firebrands. The League of Conservation Voters says new GOP chairmen of key House committees, such as Thomas J. Bliley Jr. (R-Va.) and Don Young (R-Alaska), have an average pro-green voting record of 7%, vs. 76% for their Democratic predecessors. But the probable chairman of the Senate Environment & Public Works Committee, moderate John H. Chafee (R-R.I.), could slow the overhaul. "Chafee really clouds the picture," laments Jonathan H. Adler of the conservative Competitive Enterprise Institute.
On the surface, the reforms seem innocuous enough. There's little dispute, for instance, about the need for risk assessment--setting regulatory priorities based on scientific research into the risks posed by various hazards. Nor do many dispute that a rule's benefits should generally outweigh its costs. The EPA conducts cost-benefit analysis and risk assessment for rules with a total price of $100 million or more.
But the Republicans want to go much further. They contend that expensive rules are based too often on faulty science. So the GOP is calling for scientific risk-assessment studies on rules that cost as little as $1 million. They want independent peer-review panels to oversee the research, and they want companies to be given the right to sue and recoup legal costs if the studies aren't done right. "You won't see anything going out of here without risk assessment," vows Representative John L. Mica (R-Fla.), who spearheaded efforts to get a risk-assessment law passed in the last Congress. Democrats blocked a vote on his proposal.
Critics charge that the scheme would clamp a straitjacket on legitimate rules--some of which are based on technology standards rather than on risk assessment--by handing opponents many opportunities to challenge regulations in court. It's a "full-employment act for lawyers," complains Daniel J. Weiss, the Sierra Club's political director.
Another Republican proposal, which targets the cost of compliance, could dismantle much of the regulatory infrastructure. The GOP wants to limit the private sector's tab for complying with all federal regulations--those from the Securities & Exchange Commission and other agencies as well as the EPA--to 5% of gross domestic product. And it wants to cap the cost to the states and cities at 3% of GDP. In 1990, according to a study by the Rochester Institute of Technology, Corporate America spent some $450 billion on compliance--about 8% of GDP. Experts say environmental rules account for about a quarter of that.
DRACONIAN STEP. The GOP proposal would require a 6.5% annual drop in compliance costs until ceilings are met. Agencies would have to decide which rules to waive, or the White House would have to take the draconian step of dumping whole areas of rules. "If they did away with the entire Clean Air Act, that would take a huge chunk out of the burden," says Edward L. Hudgins of the libertarian Cato Institute.
The overhaul would also greatly expand a notion embedded in the "takings" clause of the Constitution--that the government can seize property only if it compensates the owner. In the U.S. Supreme Court's most recent major ruling on the issue, it ordered Uncle Sam to ante up wherever Washington bars construction of any kind on coastal land, rendering it worthless. The Republicans want to take this much further: They would force the feds to compensate landowners if rules reduced land values by as little as 10%--a mandate the government could ill afford. So Washington couldn't enforce many restrictions. "The government has a big appetite," says Charles S. Cushman, chairman of the League of Private Property Voters, a coalition of 300 grassroots groups. "They're going to keep taking land unless they have to pay for it."
In a few cases, the Republicans plan to tackle more than mere procedures. Consider the contentious ANWR issue. Oil companies have been fighting for access to 1.5 million acres of wilderness since they were put off-limits in 1980. With two Alaska Republicans, Senator Frank H. Murkowski and Representative Young, slated to control the natural-resource committees, the issue is expected to be reopened--and environmentalists could well lose this time.
Still, if Republicans overreach on the ANWR or other environmental issues, Clinton would have a golden opportunity to redeem himself with voters--with a veto. So far, Clintonites haven't come up with a direct response to the Republicans' indirect challenges to environmental protection, and they are wary of meeting the incoming Congress halfway. For example, the Interior Dept., according to one high-ranking official, will not propose any new regulatory initiatives, lest Congress use the chance to gut existing protections.
Environmental groups also have been caught flat-footed, and their troubled finances will make it hard to mount a stout defense. In the past two years, 5 of the nation's top 10 green groups operated in the red. Of course, the Republican assaults will help out here--membership and contributions always climb when environmentalists face a hostile climate. But the new money probably won't flow in fast enough to thwart the GOP's action strategy.
NOT ALONE. And environmentalists still must draw up a counterstrategy. More than 170 activists from green, civil-rights, and labor groups met in Washington on Nov. 22 to start organizing, but James D. Maddy, president of the League of Conservation Voters, worries that the groups can't oppose the Republican offensive on every front. "We might be better served to concentrate on [the] takings [issue]," he says, because that gets at the heart of most environmental protection.
But the activists may not be alone. They could end up joining forces in an unusual coalition with business, the supposed beneficiaries of the regulatory overhaul. That's because the ultimate goal of some of the Republicans and their ideological soul mates in the think tanks is to privatize environmental protection: Citizens would sue companies for creating public nuisances or for other torts. The Contract With America "is just the spark," says Cato's Hudgins. "In the long term, we're looking for the desocialization of environmental regulations."
Corporate America, however, may prefer the certainty of the costs of complying with EPA rules to the unpredictability of jury verdicts. Wilma I. Delaney, director of federal regulatory affairs at Dow Chemical Co., calls Cato's radical proposal "troublesome." Says Delaney: "We're not looking to roll back regulations. But we want the flexibility to meet the goals in the most cost-effective manner." That sentiment in Corporate America may go the furthest in quashing the House GOP's antigreen agenda.
TOOLS TO CHALLENGE ENVIRONMENTAL LAWS
RISK ASSESSMENT Require scientific studies and cost-benefit analysis of regulations under such laws as the Clean Air Act.
BURDENSOME COSTS Repeal rules such as those under the Safe Drinking Water Act that mandate spending by states or localities.
PROPERTY RIGHTS Compensate private property owners if laws such as the Endangered Species Act reduce land values.