Breach of Faith:

This analysis of the Contract with America revealed the 104th Congress' plan to dismantle our nation's environmental laws

Contents of this page:

Introduction
Provisions
Key Problems
Impact on Laws

Clean Air Act
Clean Water Act
Coastal Zone Management Act
Emergency Planning and Right to Know Act
Endangered Species Act
Federal Food, Drug and Cosmetic Act
Federal Insecticide, Fungicide and Rodenticide Act
Federal Land Policy and Management Act
National Appliance Energy Conservation Act
National Forest Management Act
Oil Pollution Act
Reclamation Reform Act of 1982
Resource Conservation and Recovery Act
Safe Drinking Water Act
Superfund
Surface Mining Control and Reclamation Act
Atomic Energy Act
Central Valley Improvement Act

Exposing the Myths
Success to Date
Ordering the Report

INTRODUCTION

The untold environmental protection story in the United States is success. Federal laws passed since 1970 have, to cite just a few examples, stopped the flood of sewage into our rivers, dramatically reduced toxic air pollution, saved the bald eagle from extinction, preserved breathtaking natural resources, and put in place a workable program to protect the fragile ozone layer.

Yet today, in an effort to enact legislation inspired by H.R.9--the fine print in the Contract with America--Congress stands ready to dismantle the legal structure underpinning these gains, and in such a precipitous fashion that there will be no opportunity for a national debate on what will be lost.

This report, assembled by more than 40 environmental experts at the Natural Resources Defense Council, examines the threat posed by H.R.9 to specific environmental laws--not by directly amending them, but by rendering efforts to carry them out exceptionally difficult, if not impossible.

H.R.9 is being sped through Congress in record time with little opportunity for scrutiny, being shaped by sound bite, not by hearings and documentation. The arguments cited in its support focus on unchallenged horror stories of government abuse--stories that are, often as not, simply false. And, perhaps, most disturbingly, the sponsors claim that H.R.9 is supported by a broad public mandate, despite polls showing continued overwhelming support for strengthening, not weakening, environmental protection.

We believe that Americans want more environmental protection and less bureaucracy--something we have tried to bring about with our reform proposals for better and more efficient Safe Drinking Water, Superfund, and clean water programs. Instead, H.R.9's so-called reforms offer dramatically less environmental protection and, ironically, more bureaucracy.

It is time to recognize what our environmental laws have achieved. Despite all the progress we have made, the most successful environmental protection regime in the world is at risk.

PROVISIONS

H.R.9 undermines our most important environmental laws--not by overturning them directly, but by making it extremely difficult, if not impossible, to carry them out. An examination of the fine print shows that H.R.9:

Title III of H.R.9 requires agencies to base all environmental and health protection decisions on cost-benefit, risk, cost-effectiveness and flexibility analyses.
This effectively rewrites the health- and technology-based criteria that are the central force behind the Clean Air Act, Clean Water Act, Safe Drinking Water Act, and other successful environmental laws. [Titles III, VII]

...Establishes a new process for challenging existing programs.
An amendment added to H.R.9 by the House Commerce Committee allows anyone to petition an agency to revise existing regulatory programs on the grounds that they do not comply with the cost-benefit and risk-assessment criteria in Title III. Since no statute today relies on criteria that even remotely resemble those in Title III, the petition process would lead to the eventual restructuring of virtually all existing environmental regulatory programs.

...Allows experts with conflicts of interest to sit on peer review panels.
Under H.R.9, the peer review panels required to review economic, risk and scientific analyses cannot exclude experts with direct conflicts of interest. [Section 3301]

...Compensates polluters for complying with laws.
H.R.9 requires the Federal government to compensate polluters for the costs of compliance with health or environmental laws if federal safeguards lead to a 10% or greater reduction in property value. [Title IX]

...Establishes a new regulatory budget.
H.R.9 establishes a new "regulatory budget" that calls for rolling back environmental and other regulations until the aggregate cost of regulation is less than 5% of the gross domestic product. This program does not allow for consideration of the benefits of regulation, only costs. [Title IV]

...Paves the way for new lawsuits.
H.R.9 creates numerous new opportunities for lawsuits over the adequacy of each of the mandated analyses. The suits could be used to delay and block efforts to carry out environmental laws. [Title VII, Administrative Procedure Act 5 USC '' 701-706]

...Allows environmental violators to sue agency employees for personal damages.
H.R.9 provides new authority for violators of environmental laws to sue federal and state officials personally for up to $25,000 per day for such undefined offenses as "misallocating resources" or "inconsistently applying regulations." [Title VIII]

...Gives OMB a silent veto.
H.R.9 requires the Office of Management and Budget must sign off before any rule can be promulgated. [Sections 7005, 7006] This grants OMB the authority to veto directives in environmental laws and to render court-ordered deadlines meaningless.

...Imposes constraints on scientific analyses.
H.R.9 dictates specific methods for assessing health, safety, and environmental hazards. The methods focus on risks experienced by "average" individuals, excluding people who face greater risks because of where they live or work, or because they are vulnerable to pollution due to health conditions, such as age or asthma. [Title III, subtitle A]

...Requires new analyses.
H.R.9 requires completion of 22 new analytical exercises before any rulemaking action. [Section 7004]

...Cuts information collection and dissemination.
H.R.9 scales back efforts to collect environmental, health, and safety monitoring, compliance, and enforcement data. [Title V]

Far from simplifying the regulatory process, H.R.9 creates an endless bureaucratic maze. Federal agencies have concluded that it would greatly delay, if not entirely block, efforts to carry out and enforce environmental laws.

For example, according to EPA Administrator Carol Browner, 980 new employees and more than $220 million would be required for EPA to meet H.R.9's requirements. (January 18, 1995 letter to Congressman George Brown, Ranking Minority Member, House Science Committee.) And according to Sally Katzen, the Administrator of the Office of Administration and Regulatory Affairs at OMB, the provisions of Title III of H.R.9 "apply too broadly, are too prescriptive and too costly, and would create endless analytic loops and excessive opportunity for delay." (February 2, 1995 testimony before the House Committee on Commerce.)

KEY PROBLEMS

A comprehensive evaluation of the impact of H.R.9 suggests that it would supersede nearly every environmental standard written over the past 35 years. Moreover, efforts to interpret, apply, or enforce environmental programs will be dramatically slowed or brought to a complete halt--including even such routine steps as permit decisions. Among the most troubling conclusions are these:

...Excessively broad coverage will produce unexpected and undesired results.
Detailed risk analyses will be required for even the most basic, common-sense, safety and environmental rules, including, for example, the opening and closing of the hunting season and the issuance of environmental permits. [Section 3107]

...A redefinition in risk assessment leaves the most vulnerable people unprotected.
H.R.9 redefines the science of risk assessment by radically changing what is considered the "best" estimate of risk. Average or median impacts are to be considered "best," while impacts on especially vulanerable or exposed persons, like asthmatic children, or those living near a pollution source, are not to be considered. [Sections 3105(2), 3107(3)]

...Agencies must translate health and environmental values into dollars and cents.
Before promulgating a rule, agencies are required to conclude that the benefits both justify the costs [Section 3201] and outweigh them [Section 7004(c)(11)]. No light is shed on how agencies are to place dollar values on such imponderables as avoiding cancer, reducing infertility, preserving an endangered species or protecting a national park. Nevertheless, agency judgements on such matters are to be subject to judicial review. Ironically, economic programs that spend hundreds of millions of taxpayer dollars, such as farm subsidies, are exempt from the cost-benefit test.

...More data-gathering is required, but less is allowed.
While the extensive risk and costs analyses required in Titles II and VII require an enormous new data gathering effort by federal agencies, Title V, in the name of paperwork reduction, establishes strict new limits on the ability of federal agencies to secure the needed information.

...The process and substance of federal legislation and regulation are irrationally restructured in the guise of lowering costs.
The regulatory budget establishes an arbitrary cap of 5% of the Gross Domestic Product for the cost of all regulatory programs. [Section 323] The benefits of regulation are not considered. As drafted, the term "application" applies so broadly that it would include provisions like the minimum wage law and IRS requirements, guaranteeing that the 5% cap will be greatly exceeded. As a result, a dramatic rollback in existing programs for protection of our health and environment will be necessary.

...OMB veto authority exceeds that of the President.
While the President can only veto an entire act of Congress, OMB can veto specific provisions of a regulation. While a Presidential veto can be overridden by Congress, OMB's veto is absolute. No regulation can take effect without OMB's stamp of approval.

...Secret communication to OMB.
A new process is established through which interested parties can submit secret comments to influence OMB's actions in review of agency proposals. [Section 5303] This process is directly contrary to long-held principles of fairness and openness required under the Administrative Procedure Act.

...Government officials can be personally sued by violators.
Officials bringing an enforcement action against a violator who has publicly criticized efforts to carry out health or environmental programs on a previous occasion, can be sued and held personally responsible for up to $25,000 per day. The chilling effect this provision would have on environmental enforcement efforts is manifest.

...There is no enforcement against midnight dumpers.
Agencies may not make suprise inspections to enforce environmental laws and must allow a lawyer and an accountant to be present at any compliance inspection. [Section 8101]

...The government pays, not the polluter.
The federal government would be required to compensate polluting facilities for a range of compliance-related activities, ranging from surface mine reclamation, to occupational safety requirements, to hazardous waste clean-ups, due to the broad "takings" requirements of Title IX.

...Federal lands may be used to compensate polluters.
If an agency does not have adequate funds to provide the compensation for a "taking," the President is directed to provide funding from elsewhere or to award federal lands. [Section 9002] This provision allows for unrestrained conveyance of otherwise protected and preserved federal lands, including lands in National Parks, Wildlife Refuges, and Wilderness Areas.

IMPACT ON LAWS

Following is a statute-by-statute evaluation of the impact of H.R.9 on existing environmental laws. The evaluation assumes that the provision posing the greatest threat--the petition process added to Title III--is dropped. Even without this provision, the implications for environmental programs are devastating.

CLEAN AIR ACT

Smog.
The regulatory impact requirements of Title VII would delay or block EPA efforts to approve state air quality plans. If a plan is not approved in a timely manner, important sanctions can apply, including the loss of federal highway dollars.
In addition, the personal suits against agency officials authorized under Title VIII would undermine enforcement of air pollution control requirements.

Toxics.
The 1990 Amendments to the Clean Air Act call on EPA to issue air toxic regulations over the next five years, including standards for sodium cyanide production, lead smelting, and lead acid battery manufacturing. These standards would be greatly delayed or blocked by the new analytical exercises required by Titles III and VII of H.R.9, and by the availability of judicial review regarding the adequacy of the analyses.
Furthermore, H.R.9 would delay a pending EPA proposal to grant compliance extensions to sources of hazardous air pollution which have achieved early voluntary pollution reductions. Although EPA has concluded that this rule would both reduce pollution and save money, its issuance would be delayed while the agency undertakes new analyses mandated under H.R.9 at a cost of more than $25 million.

CLEAN WATER ACT

Industrial Pollution Safeguards.
The regulatory impact requirements in Title VII would delay or block important forthcoming standards to limit wastewater discharges from the hazardous waste treatment industry and other sectors that have no standards or out-of-date standards. If this or other rules were to be issued, the regulated entities could sue under Title IX to recover the costs of compliance from the federal government. Furthermore, Title VIII's bar against surprise inspections in Title VIII and the availability of lawsuits against agency personnel would deter effective enforcement of the existing standards for discharges from 22 categories of industry. These standards eliminate hundreds of millions of pounds per year of toxic and other pollution. These and other existing Clean Water Act requirements would be subject to rollback or elimination under the Title IV's regulatory budget provisions.

Polluted Runoff.
Polluted runoff, sometimes called "nonpoint source" pollution, today impairs more U.S. water bodies than any other category of pollution sources. The Clean Water Act and the Coastal Zone Act Reauthorization Amendments (CZARA) jointly call for coastal States to develop and implement enforceable control programs for runoff sources affecting their coastal waters. The Clean Water Act calls for cities to implement prevention programs to prevent or control urban stormwater pollution, which is often the cause of severe local pollution problems. H.R.9's analysis requirements in Titles III, VI, VII and VIII would increase the cost and delay the development and implementation of both the coastal protection and the stormwater programs. The regulatory cap may force EPA to repeal other essential water pollution prevention programs before it can issue rules or standards to limit polluted runoff.

Wetlands Protection.
Under Title IX, the federal government would have to pay landowners not to fill in valuable wetlands. This would apply in nearly all situations, even when filling in the wetlands would affect drinking water supplies, lower the property values of nearby landowners, or greatly increase the risk of flooding.

COASTAL ZONE MANAGEMENT ACT

EMERGENCY PLANNING AND RIGHT TO KNOW ACT

ENDANGERED SPECIES ACT

FEDERAL FOOD, DRUG AND COSMETIC ACT

FEDERAL INSECTICIDE, FUNGICIDE AND RODENTICIDE ACT

FEDERAL LAND POLICY AND MANAGEMENT ACT

NATIONAL APPLIANCE ENERGY CONSERVATION ACT

NATIONAL FOREST MANAGEMENT ACT

OIL POLLUTION ACT

RECLAMATION REFORM ACT OF 1982

RESOURCE CONSERVATION AND RECOVERY ACT

SAFE DRINKING WATER ACT

SUPERFUND

The most effective elements of the Superfund program, immediate clean up actions and provision of alternate water supplies, would be subject to a debilitating package of new analytical requirements under Titles VII and III.

SURFACE MINING CONTROL AND RECLAMATION ACT

ATOMIC ENERGY ACT

CENTRAL VALLEY IMPROVEMENT ACT

The recurrent theme emerging from these law-by-law evaluations is that laws cannot work effectively if the implementing agencies are subjected to the new requirements in H.R.9. These requirements would make all formal agency actions vastly more difficult, establish sweeping limitations on enforcement authorities, and create strong personal disincentives against any federal or state official moving forward with enforcement actions.

The requirements of H.R.9 would create unparalleled gridlock in the agencies and at the courts. While the laws would remain on the books, the agencies' inability to take the actions necessary to assure that they are carried out would render them wholly ineffective.

EXPOSING THE MYTHS

A central force behind efforts to move H.R.9 through Congress has been the horror story of senseless federal action with huge costs. Without question, where such cases exist they should be rectified. The problem, however, is that the most prominent and most repeated of these stories are not accurate. For instance:

IN FACT, the man, Ocie Mills, bought the land at a bargain price because the previous owner was ordered to halt dredge-and-fill activities. The he openly defied two cease and desist orders by filling the wetland.

...THE CASE of the "pineapple pesticide," which water utilities say they should not have to test for, since it could not possibly be in their water.

IN FACT, the "pineapple pesticide," DBCP, has been found in ground and surface water across the nation. It was widely used as a soil fumigant across the country on over 40 crops until it was outlawed for most uses other than pineapples in 1987 when it was linked to sterility in workers and identified as a probable human carcinogen. Due to its persistence, it has been found in 16 of 25 states that have tested for it, and at levels that exceed EPA's drinking water standard in at least 10 states.

...THE CASE of the Alaska town that was forced to add contaminants to its waters, and then remove them, because that was the only way to comply with the Clean Water Act.

IN FACT, these contaminants (fish wastes from local fish processors) are routinely dumped into the sewers in Anchorage. Where most communities around the country have had to build "secondary" sewage treatment plants, however, Anchorage, along with a small number of other cities, was exempted. Having obtained this special waiver, Anchorage now complains about having to meet even the weaker standard for "primary" treatment.

This is not to say that real problems do not exist. Clearly, requirements that do not make sense should be revised. To seek sweeping changes, however, that will effectively dismantle our entire environmental protection system on the basis of horror stories of unclear origin and validity detracts from genuine efforts to improve the system.

With so much at stake, Congress should attempt to identify and solve real problems, not undermine the real successes we have worked so hard to achieve.

SUCCESS TO DATE

Environmental laws enacted since 1970 have been remarkably effective. This message is seldom heard because the environmental movement tends to focus on the job left undone. Nor is the media inclined to see improvements as news.

Here are some of the achievements that have not been reported frequently enough--achievements that would not have been possible with H.R.9 in place:

The CLEAN AIR ACT has:

...Reduced vehicle emissions of hydrocarbons (a major cause of ozone smog) by nearly 50%, despite a massive increase in aggregate vehicle miles traveled.

...Reduced the number of areas violating the ambient air quality standard for carbon monoxide from more than 40 to 9 over the past 5 years.

...Reduced the release of lead in the air by 98%, mostly as a result of the phase-out of lead in gasoline.

...Reduced the release of toxic air pollutants by 860 million pounds per year over the past 5 years.

The CLEAN WATER ACT has:

...Increased the percentage of lakes and rivers that are "fishable and swimmable" (the Clean Water Act's interim goal) to more than 2/3.

...Increased the percentage of Americans served by effective sewage treatment from 42% in 1970 to 58% in 1988.

...Reduced the release of toxic pollutants into U.S. waters by over 2.2 million pounds per day.

The SURFACE MINING CONTROLS AND RECLAMATION ACT has:

...Reclaimed thousands of abandoned mine sites and ongoing operations.

...Enhanced environmental protection through regulation of mining operations on more than 4 million acres.

The EMERGENCY PLANNING AND COMMUNITY RIGHT TO KNOW ACT has:

...Led to a 35% decline in total environmental releases of toxic chemicals, including an 860 million pound annual reduction in toxic air emissions and a 617 million pound decline in toxic wastes injected underground.

The ENDANGERED SPECIES ACT has:

...Helped saved these species from extinction:

grizzly bear
Southern sea otter
Guadalupe fur seal
whooping crane
brown pelican
peregrine falcon
bald eagle
American alligator

Acts to protect NATURAL RESOURCES AND LANDS have:

...Provided refuge to threatened and endangered species.

...Protected tens of millions of acres from natural resource

...Opened up hundreds of pristine areas to public recreational use.

ALASKA'S PUBLIC LAND ACTS have:

...Protected 104 million acres of national parks, monuments, wildlife refuges, forests, rivers and conservation areas.

Measures to phase out OZONE-DEPLETING CHEMICALS have:

...Reduced CFCs by 11 million tonnes.

...Provided conditions that are expected to lead to recovery of the stratospheric ozone shield over the next half century.

HAZARDOUS WASTE ACTS have:

...Cleaned up the immediate threats at over 2,000 hazardous waste sites.

...Protected the drinking water supplies of over 40 million Americans from threats posed from 1,300 sites.

Copyright © 1995 by Natural Resources Defense Council, Inc. This is an abstract from BREACH OF FAITH: How the Contract's Fine Print Undermines America's Environmental Success, a February 1995 report by the Natural Resources Defense Council. To order a printed copy of the full report, see our publications list on NRDC Pro.

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