Breach Of Faith:
The Contract with America's Attack on the Environment

 
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:

...MAKES COST AND RISK CRITERIA THE OVERRIDING STANDARD FOR HEALTH AND
SAFETY REGULATION. 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]

...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]

...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]

...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 [Office of Management and
Budget], 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:

...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 judgments 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 surprise inspections to enforce environmental laws and must allow
a lawyer and an accountant to be present at any compliance
inspection. [Section 8101]

...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
	The new requirements of H.R.9 would make it impossible for EPA
to take vital actions needed to carry out and enforce the 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.

CLEAN WATER ACT
	Each of the Clean Water Act's major jurisdictions-industrial
water pollution, runoff contamination, and wetlands preservation-would
suffer tremendous setbacks under H.R.9. H.R.9 would both encourage a
roll-back of water protections and prevent us from cleaning up the
remaining 40 percent of our waterways that are impaired.

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.

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
	The federal government could be required under Title IX of
H.R.9 to compensate developers for the costs of compliance with the
requirements of state Coastal Zone Management Act Plans. These
requirements include state limitations on development in coastal
hazard areas and best management practices to keep animal waste and
faulty septic systems from polluting shellfish beds.

EMERGENCY PLANNING AND RIGHT TO KNOW ACT
	This important law calls on significant sources of toxic air
and water pollution to report their releases to an EPA database. It
has been credited with voluntary reductions of millions of pounds of
toxic releases-using information, not regulation, to prevent
pollution. However, this program is an obvious target of the paperwork
reduction requirements of Title V of H.R.9, mandating annual
reductions in the amount of information requested by federal agencies.

ENDANGERED SPECIES ACT
	The cost-benefit test of Titles III and VII would cast all ESA
decisions into doubt. Nor could it be rationally applied; the value of
species is literally incalculable. The analysis requirements could
delay species protection action until the damage was too great to
recover. Had H.R.9 been law years ago, the bald eagle would likely be
extinct.

FEDERAL FOOD, DRUG AND
COSMETIC ACT
	This law protects our food supply from harmful pesticide
residues. H.R.9's new analytical requirements could prevent EPA from
revoking food additive regulations that have been found unlawful by
the courts for failure to protect foods from carcinogenic pesticides.

FEDERAL INSECTICIDE, FUNGICIDE
AND RODENTICIDE ACT
	This law governs the pre-market approval ("registration") of
all pesticides distributed for use in the United States. H.R.9's
analytical and peer review requirements would deter the registration
of new uses for fully tested products, impede required re-registration
of older, untested chemicals, and obstruct effective enforcement
action against hazardous chemicals in use illegally.

FEDERAL LAND POLICY AND
MANAGEMENT ACT
	This law establishes the framework for the management of
public lands by the Interior Department's Bureau of Land
Management. The takings provisions of Title IX present an especially
grave threat to the federal lands program, as they allow unrestricted
use of federal lands to compensate polluters for the costs of
pollution control or reclamation efforts. [Section 9002] In addition,
Title VII's requirements for quantifying the benefits of all
rulemaking actions and subjecting these evaluations to judicial review
will thwart BLM efforts to protect "scenic" and "environmental"
values, which cannot easily be assigned a dollar value.

NATIONAL APPLIANCE ENERGY
CONSERVATION ACT
	This law directs the Department of Energy to establish energy
efficiency standards for consumer appliances, such as refrigerators,
washers, and dryers. When the next standards go into effect, they will
save consumers literally hundreds of millions of dollars a month in
energy bills. H.R.9 would delay these standards, wasting energy and
money, creating market uncertainties, and costing manufacturers,
consumers, and the environment alike.

NATIONAL FOREST MANAGEMENT ACT
	The government's ownership of National Forest Lands is placed
at risk by the takings provisions in Title IX. These provisions call
for the unrestricted use of federal lands to compensate polluters and
others for the costs of compliance with health and environmental
laws. Also, limitations on logging in national forests could be
undermined through the rollbacks in federal requirements necessary to
meet the regulatory cap in Title IV of H.R.9.

OIL POLLUTION ACT
	H.R.9 would delay important forthcoming safeguards to deter
oil spills through the phase-in of double-hull tankers, deter
enforcement of tug escort requirements designed to prevent grounding
and oil spills in our harbors, and undermine natural resource damage
assessment procedures to be issued by the National Oceanic and
Atmospheric Administration.

RECLAMATION REFORM ACT OF 1982
	This law promotes irrigation of small family farms by western
water projects, which in the past have primarily subsidized large
corporate farming operations. The Bureau of Reclamation is now in the
process of producing regulations to carry out this program. The delay
in issuing these regulations resulting from the need to comply with
the extensive analytical requirements in Titles III and VII of H.R.9,
and from the new potential for litigation over the sufficiency of the
agency's analytical efforts, will hurt the small farmer in the West
seeking additional water.

RESOURCE CONSERVATION AND
RECOVERY ACT
	The analytic requirements in Title VII of H.R.9 would
significantly delay key rules governing the proper disposal of
hazardous wastes. Title VIII would bar surprise inspections, the
central means of preventing illegal hazardous waste dumping.

SAFE DRINKING WATER ACT
	This law sets standards for permissible levels of tap water
contamination by pesticides, bacteriological agents, and other
hazardous substances. Under SDWA, EPA is preparing to finalize new
requirements to prevent contamination by cryptosporidium, the
dangerous microbial parasite that infected Milwaukee's water in 1993,
leaving more than 400,000 ill. This important rule would be delayed
indefinitely, while EPA meets the new analytical requirements in
Titles III and VII of H.R.9. OMB would retain veto authority over the
rule under Title VII, even if EPA could complete the required
analyses.

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.

ATOMIC ENERGY ACT
	The need for new risk assessment will significantly delay
efforts to establish new, more streamlined, uniform radiation clean-up
standards for the remediation of contaminated soils, groundwater
supplies, and surface waters. Site-specific risk assessments, which
will be required until the uniform standards are issued, would be
subject to the Title III requirements and to new court challenges.

CENTRAL VALLEY IMPROVEMENT ACT
	This act governs the vast Central Valley project and controls
the storage and distribution of water throughout much of
California. The new regulatory analysis requirements of Title VII
would greatly delay or block important new regulations to promote
market-based "water transfers" under this Act. Such a result
disadvantages both willing water rights sellers (e.g. farmers) and
willing buyers (cities, wildlife refuges, etc.). In addition, Title
VII's regulatory impact analysis requirements and regulatory
flexibility requirements would delay or prevent issuance of
regulations establishing sensible water conservation requirements with
broad support from Western Governors concerned about recent water
crises.

	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:

...The case of the Florida man imprisoned for unknowingly violating
wetlands laws when he "piled sand in a ditch."

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. Then 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.

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 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

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.

The above was excerpted from the National Resource Defense Council's
publication Breach of Faith: How the Contract's Fine Print Undermines
America's Environmental Success.  

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