By Amy Charlene
Reed RiskWorld staff,
E-mail to: reed@tec-com.com.
Until overarching risk reform legislation passes Congress, risk assessment and management language will be tacked onto every future environmental and health bill, say supporters of reform.
"We're taking the long view. We'll push for these changes statute-by-statute until major legislation is passed," said Nandan Kenkeremath, the Majority Counsel to the U.S. House of Representative's Committee on Commerce, who has been a key writer of risk bills for the House.
The most recent push occurred when the House and the Senate attached language requiring risk assessments and cost-benefit analyses for environmental and health regulations to the federal debt-limit extension bill, H.R. 2586, that President Clinton vetoed on Nov. 13 along with a spending bill, causing the federal government to partially shut down.
Year began in a frenzy
While the outlook is now bleak for passage of major risk legislation this year as Congress and the White House battle over budget constraints, supporters originally had high hopes for reform in 1995. The year began with a bang as members of Congress introduced seven risk bills in the first five weeks - quite a departure from only five years ago when risk wasn't even on the agenda. Then on February 28, progress seemed to be made as a fairly strong majority of 286 to 141 in the U.S. House of Representatives passed H.R. 1022, the "Risk Assessment and Cost-Benefit Act of 1995," which was introduced by Rep. Thomas Bliley Jr., R-Virginia, and Rep. Robert Walker, R-Pennsylvania.
But by mid-year, progress slowed as risk reform became one of the most hotly debated and controversial topics in the halls of Congress. Legislation bogged down as the Senate's leading risk legislation bill, S. 343, "The Comprehensive Regulatory Reform Act of 1995," which was sponsored by Sen. Robert Dole, R-Kansas, and Sen. Bennett Johnston, D-Louisiana, failed to muster enough support to win passage. Throughout the year, supporters and critics traded heated barbs over both the House and Senate bills.
Supporters said reform was urgently needed to prioritize risks. "The ultimate consequences of regulatory reform would be more protection of public health and the environment at less cost than we're currently getting under existing laws," said Director John Graham of the Harvard Center for Risk Analysis, who supports risk legislative reform. "Reform would focus scarce resources on big and well-proven hazards rather than small and speculative hazards."
Critics in the White House administration and the U.S. Environmental Protection Agency characterized H.R. 1022 and S. 343 as thinly veiled attempts to halt environmental regulations for the benefit of industry.
"Some would use the need for reform as a pretext to gut vital consumer, worker, environmental protections . . . ," President Clinton said at a regulatory reform event at the White House in February. "They don't want reform; they really want rigor mortis."
In statements to the press, EPA Administrator Carol Browner described S. 343 as "a bill that protects polluters and their lawyers at the expense of average citizens and our children" and H.R. 1022 as "a full frontal assault on protecting public health and the environment."
Environmental groups claimed that risk legislation such as H.R. 1022 would rollback 25 years of progress in environmental protection if enacted, a statement that supporters hotly denied. "H.R. 1022 wouldn't remove a single regulation on the books or change the enforceability of a single regulation. It would apply prospectively as new rules are made," Kenkeremath said. "The mantra that it 'rolls back environmental protection' is just fear-mongering."
Major points of contention
Much of the fracas in Congress regarding risk legislation surrounded three key issues: cost-benefit analysis, a super mandate, and judicial review.
Cost-benefit analysis - at the heart of most proposed risk legislation - would require that a regulation's environmental and health benefits justify the economic cost to industry and the nation.
Supporters said this was a key clause that would enable the country to stop spending massive amounts of money on projects that resulted in minor improvements to public health or the environment. "The nation spends billions of dollars on hypothetical and exaggerated statements of risk that there is very little science support for," Kenkeremath said. "It isn't just business and industry that pays for this. It is local governments and everybody else as well."
Critics, however, were adamant in their opposition. "Cost-benefit analysis means that if cleaning up air pollution costs a dollar more than the estimated value of protecting a child's lung from that pollution, then you don't have to clean up the pollution any more," said Dan Weiss, the political director of the Sierra Club. "Polluters' clean-up costs would be considered much more important than protecting human health and the environment when it comes to setting environmental protection standards."
Another controversial issue is whether risk reform legislation should include a super mandate, which would cause the law's provisions to apply either to future environmental and health regulations or to both past and future environmental and health regulations, depending on the wording of the language and on the interpretation of the language.
"The advantage of a super mandate is that it would apply a uniform risk management standard to all kinds of environmental pollution, regardless of whether they are in air, water, or soil," said Graham of the Harvard center. "If we don't have a super mandate, we will have numerous laws rewritten in inconsistent ways that foster more litigation than would occur under a super mandate."
Weiss, on the other hand, said that the measure "would gut most existing environmental and health protections in this country.
"Not only would a super mandate prevent protection of public health, but it would also increase the number of bureaucrats we need and increase spending," he said. "It is a prescription for higher taxes, more bureaucrats, more environmental pollution."
A third hotly debated proposal is judicial review, which would give the power of enforcement to the courts by allowing people and organizations to sue EPA if its regulations didn't meet the law's requirements regarding risk assessments or cost-benefit analyses.
"Judicial review would allow someone to sue EPA over every little assumption that is made in a risk assessment," Weiss said. "That means that the real purpose of the legislation is not to have risk studies done but instead to tie EPA up in court and prevent it from issuing regulations. This mandates that EPA spend more time in court with lawyers than it does protecting people from pollution."
Supporters, however, say that the provision would give much needed teeth to the legislation and would prevent EPA from ignoring the law as it allegedly has ignored presidential executive orders regarding risk reform.
"Judicial review is needed because it will allow the laws to be enforced if an agency such as EPA didn't obey the law. However, the real issue is how stringent should the judicial review be. And my preference would be that judges defer to the expertise of agency scientists unless the agency's behavior is clearly arbitrary or capricious," Graham said.
Politics Playing a Role
Although both Democrats and Republicans supported various risk reform bills in 1995, opposition is being drawn more and more along party lines.
"Politics already is an issue. It greatly affected the situation in the Senate in 1995," Kenkeremath said.
Next year, the presidential campaign may polarize the issue further if Sen. Dole, the leading backer of risk reform in the Senate, faces off against President Clinton in the election.
Regardless of political setbacks, supporters say that
progress has been made by bringing risk legislative reform to the
attention of the nation's leaders. Kenkeremath, in particular,
maintains this stance, saying that "risk reform has been
brought to the forefront in the last couple of years and will
continue moving ahead."
Story posted November 1995
Copyright © 1995 by Tec-Com Inc.