The 99th Congress: A Look at the Year Ahead

Bud Ward

Mr. Ward is Editor of THE ENVIRONMENTAL FORUM, a monthly journal of analysis and commentary on environmental issues published by the Environmental Law Institute.

[15 ELR 10002]

Superfund. Superfund. Superfund. There is more to the world of environmental legislation than just reauthorization of Superfund, the Comprehensive Environmental Response, Compensation, and Liability Act.

Keep telling yourself that. You may need to once the 99th Congress convenes late this month and its authorizing committees get down to the work of considering reauthorizations of the torrent of environmental legislation carried over from last year.

In reality, reauthorization of Superfund is just one of the several key environmental and pollution control issues that will face the new Congress. In addition to Superfund, the Clean Water Act, the Safe Drinking Water Act, the Toxic Substances Control Act, the Federal Insecticide, Fungicide, and Rodenticide Act, and the always-present Clean Air Act are pending reauthorization. Of the major Environmental Protection Agency (EPA) regulatory statutes, only the Resource Conservation and Recovery Act (RCRA) is "safe," not facing consideration in 1985, it having been reauthorized last year for fiscal years 1985 through 1988. Add to the EPA regulatory programs the resources and conservation programs administered at the federal level by the Department of the Interior, and the 99th Congress' environmental workload grows even larger.

First things first.

The 99th Congress, in addition to dealing with substantive pollution control amendments, also will have on its agenda a number of confirmations of Reagan Administration second-term presidential nominees. Given that 13 political appointees at EPA alone are subject to Senate confirmation — and given also wounds still healing among some Senate Environment and Public Works Committee members concerning their rubber-stamping of President Reagan's controversial first round of 1981 EPA appointees — the confirmation process could be time-consuming, interfering with the time available for "more substantive" issues.

That possibility is unlikely to materialize this year, however. The selection by President Reagan and outgoing EPA Administrator William D. Ruckelshaus of EPA Superfund/RCRA Assistant Administrator Lee M. Thomas as the new EPA chief is certain to meet with easy and overwhelming Senate approval. A nominee more controversial or less well-known to the Senate could have led to a delayed or drawn-out confirmation process which in turn could have delayed consideration of amendments. With the Thomas nomination, that possibility becomes academic.

In addition to confirming Thomas, the Senate in early 1985 also will have to deal with nominations of an EPA Deputy Administrator to replace Alvin L. Alm and of an Assistant Administrator for the Office of Solid Waste and Emergency Response to succeed Thomas. It is unclear at this point how many other top EPA positions, if indeed any, will turn over and require confirmation. But because nominations below the Administrator level frequently attract less Senate time and attention in any event, the EPA confirmation process for 1985 is not likely to be highly contentious. Senate Environment soon can get on with the job of considering legislation, and not be tied-up for long with confirmations.

When the Congress gets on with considering substantive environmental legislation, the factual reality is that its plate is full with numerous bills needing reauthorization in the 99th Congress. The political reality is . . . Superfund, Superfund, Superfund.

For one thing, Superfund in fact "needs" to be reauthorized in 1985. The need in this case is simply that the $1.6 billion taxing mechanism established by the 1980 statute expires this year, on September 30. No taxing mechanism, no hazardous waste site clean-ups. Big trouble.

The expiration of the Superfund taxing mechanism provides the kind of compelling impetus or "need" for amendments that usually succeeds in convincing the Congress and the Executive Branch to take decisive action. That need — practical as well as political — dramatically increases prospects for Superfund reauthorization in 1985.

Starting with his State of the Union address a year ago this month, President Reagan and his Administration have expressed their commitment to supporting extension of the Superfund program. However, the Administration resisted election-year pressures to pass amendments in 1984 and instead said it would work for passage in 1985. With a sweeping consensus in administrative, [15 ELR 10003] congressional, industry, environmental, and state regulatory circles that the law must be reauthorized and the tax base substantially increased, two questions are likely to dominate Congress' reauthorization of Superfund:

By how much, and over what period of time, should the current $1.6 billion site clean-up kitty be increased?

Where will the "new money" come from? Will it continue to be drawn primarily from a small handful of chemical and petrochemical companies based on the companies' feedstocks or raw materials? Or, more likely, will the funding burden instead be spread among a larger number of companies and industries, and perhaps based on a waste-end tax or, more likely still, a combined feedstock/waste-end scheme?

Other substantive Superfund policy and legal issues also will enter the reauthorization debate, but the questions of how much money is to be raised, and from what sources, likely will be the most fiercely debated in the Congress. The fund financing issues are certain to be addressed in the Congress in the context of the enormous federal deficits facing the country and in light of overall domestic program funding constraints and EPA's administrative abilities to spend more money responsibly and effectively.

Money is a lot, but it isn't everything in the Superfund debate. Another key issue in the reauthorization will involve efforts in Congress to provide a federal cause of action and to establish an administrative "victims compensation" scheme. Both efforts are aimed at assuring individual citizens better access to reasonable compensation for health effects they can show to be tied to exposures to toxic chemicals. Burden of proof certainly will be a key element in the debate, which could will be dramatically influenced both by this past December's tragic release of methyl isocyanate at a Union Carbide pesticides plant in Phopal, India, leading just in the short-term to the deaths of more than 2,000 area residents; and a growing public perception of American lawyers' greed in pursuit of clients to represent in the Bhopal disaster. By all accounts, the vicims compensation provisions in particular will be the most controversial in the Superfund reauthorization effort, with industrial interests and the Reagan Administration committed to blocking an expensive program they maintain may not be well founded scientifically.

While predictions of congressional action at this point in the legislative season are especially difficult, it does appear that the hard "need" to reauthorize Superfund — that is, the expiration this coming fall of the taxing mechanism — will force Congress and the Administration to grapple with specifics of the reauthorization. Above all the other pollution control laws the Congress will address in 1985, prospects for passage of Superfund amendments are highest.

Clean Water, Safe Drinking Water Amendments — Chancey

Anticipating the reauthorization of pollution control regulatory statutes other than Superfund is far more speculative. Both the Clean Water Act and the Safe Drinking Water Act came close to being amended in the waning days of the last Congress, and early House and Senate committee action on each would indicate reasonable chances for enactment of amendments in 1985.

However, amendments to the Water Act and Drinking Water Act are far from certainties this year. For one thing, the Water Act is likely to continue to stand in line in the House Public Works and Transportation Committee behind the higher priority of enacting omnibus water resources legislation. Another factor on the House side involves uncertainties over how full Committee Chairman James Howard (D-N.J.) and influential Water Resources Subcommittee Chairman Bob Roe (D-N.J.) will approach Water Act reauthorization. In 1984, facing what was expected to be a close election, Howard supported legislation strongly endorsed by the environmental community, which was working on his behalf in his campaign. A common theory among the environmental activists following the Water Act reauthorization is that "all bets are off" in 1985 concerning both Howard's and Roe's commitment to that same bill.

In the Senate, a possible obstacle to easy passage of Water Act amendments is likely to involve federal funding of the Title II municipal sewage treatment construction grants program. The expiration of the grants program funding indeed is certain to be the major impetus for congressional action on Water Act amendments in 1984, but that same issue will require compromises between House and Senate interests before final agreement can be possible. The Reagan Administration and the Republican Senate are unlikely to support grants program funding levels along the lines of those included in the House's 1984 Water Act bill. Another touchy political issue to be addressed under Title II in the Water Act reauthorization is the formula for allocating federal funds to individual states.

Beyond the Title II municipal treatment plant program issues, of course, lie the industrial provisions of most interest to industrial dischargers and the wetlands protection program, always good for controversy among developers and conserationists. In 1984, the congressional reauthorization included debate on how best to extend industrial dischargers' July 1, 1984, statutory deadline for achieving best available technology (BAT) standards for toxic pollutants; the pretreatment program for industrial facilities discharging their wastes to municipal treatment plants; ten-year discharge permits to replace the current five-year permits, providing for reopeners as necessary; and proposals for variances and waivers from specific requirements. Some of those issues are certain to resurface in 1985, but there are some early indications that some in the industrial community may scale-back their legislative "agenda" on Water Act amendments and not push as hard for major changes.

As for drinking water, it appears certain that the congressional debate will focus foremost on provisions for setting standards for drinking water contaminants and on a consolidation of the current requirements for EPA to promulgate recommended maximum contaminant levels before it proceeds with setting maximum contaminant levels. Underlying the debate will be congressional frustration with the slow pace with which the agency has proceeded over the years in setting — or in not setting — drinking water standards.

[15 ELR 10004]

Beyond the specific issues in the Drinking Water Act reauthorization there lies the possible political significance should the Reagan Administration decide to oppose reauthorization of the Drinking Water Act outright. Though the reports never have been officially confirmed, there have been repeated indications that some Administration officials in the Office of Management and Budget and elsewhere may oppose reauthorization of the Drinking Water Act. Given merely the political implications of such a move, any such effort could well chum the political/environmental waters for any subsequent congressional consideration of environmental legislation. Some feel an effort to kill the Safe Drinking Water Act could produce a public and congressional backlash reminiscent of that last seen during the Anne Gorsuch/Burford-James Watt era.

In any case, however, it appears that both the Clean Water Act and the Safe Drinking Water Act have at least reasonable prospects for being amended in 1985. On the other hand, no one should be surprised if reauthorization of one or both of these laws extends well into next year.

Clean Air Act — Not This Year Either

If the Clean Air Act were a football team, its coach would be fired for allowing it to drop from first place to last.

Instead, the Clean Air Act amendments are a political football. There are lots of passers, but no receivers. Lots of plunges into the line, but even more fumbles. A few yards gained here and there, but, overall, more yeards lost. Lots of hard hitting, very few big scores.

Put simply, reauthorization of the Clean Air Act is at least as far away now as it has ever been. The passage of time since congressional authorizations officially expired in 1981 has not made passage of amendments more imminent.

From the top industrial environmental legislative priority in 1981, and from its position as the pillar of what was to have been the first-term Reagan Administration's regulatory reform experiment, the Clean Air Act has fallen to the point of virtual disregard in terms of serious likelihood for congressional reauthorization.

Badly splintered from the earlier contentious reauthorization processes, Air Act amendments remain swamped — or is it beached? — by controversy. The primary and dispositive controversy, of course, involves what, if anything, should be done specifically about the acid rain problem. Utilities, high-sulfur coal interests, and the Reagan Administration have not budged from their position that not enough is known now to allow development of a meaningful, cost-effective, and effective controls program. Inability to construct a politically viable controls strategy in the past has led to political impasses both in the authorizing committee and subcommittee in the House and within the Administration itself. While the Senate Environment and Public Works Committee twice has overwhelmingly passed sulfur dioxide/acid rain control measures, few anticipate that such a favorable outcome would be easily echoed by the full Senate.

In the end, the political gridlock over the acid rain issue has immobilized — and is likely to continue to immobilize — progress on Air Act amendments overall. Even if an acid rain consensus were to miraculously emerge among the Senate, the House, and the Administration, by no means likely at this point, other confrontational Air Act issues such as control of toxic air pollutants also would pose major obstacles to be overcome.

Absent a split or separation of the acid rain issue from other aspects of the Clean Air Act — an eventuality most observers consider to be highly unlikely — there is likely to be little meaningful progress on Air Act amendments in 1985.

TSCA and FIFRA

Both the Toxic Substances Control Act (TSCA) and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) will be under consideration for amendments in the 99th Congress. Both are likely to be examined with a keener focus than in past years on their role in ground-water contamination, and that focus alone should assure each somewhat more public and congressional visibility. All the same, it appears that TSCA amendments are likely to stand at the end of a very long and time-consuming line of "priority" legislation at least insofar as the Senate Environment Committee is concerned. Having not been the originator of TSCA during its first passage in 1976 (at that time, TSCA was under the jurisdiction of the Senate Commerce Committee), Senate Environment has little historical relationship to or pride of authorship in TSCA. That could make for an interesting and fresh approach, but in past years — and still in many offices within the Committee and its staff — it has translated instead to a general disinterest in the law. Signs of some changes in that respect are becoming more apparent, but by no means universal within the Committee.

As for FIFRA, it remains under the jurisdiction of the Senate and House Agriculture Committees and not under the environment committees that are home to the other pollution control statutes. Agriculture's charge is to protect American agriculture first and the American environment only secondarily. That organizational reality makes pesticides legislation somewhat, but not entirely, independent of the politics and scheduling of other environmental legislation. Environmentalists long have felt that FIFRA — both the statute itself and its implementation by EPA — should be strengthened, and they are likely in 1985 to advance what became known last year as the Harpers Ferry amendments, after the Harpers Ferry, West Virginia, conclave were the amendments package was hammered out. As for the pesticide industry, it was pleased to be able to get through the 1983-1984 legislative season without any FIFRA amendments at all; it wanted to put amendments as far away as possible from the generally unrelated but still contagious environmental politics associated with the Gorsuch EPA. Whether it now finds itself lobbying in a climate affected by the Bhopal pesticides disaster remains to be seen.

Resources Bills

There is more. Lots more. Congress in 1985 will also be considering amendments to the Endangered Species Act; the 1978 Public Rangeland Improvement Act, which provides for livestock grazing fees on some 200 million acres [15 ELR 10005] of mostly western federal lands; the Food and Agriculture Act or Farm Bill, including its resources programs; and the federal coal leasing program. Add in the budget controversies sure to surround proposed funding for EPA and other domestic agencies and it will be a full year of legislating.

That is not to say that it necessarily will be a full year of completing the legislative process for all or most of the bills discussed above. Congress often, and appropriately, decides that the best form of legislation is not to legislate at all. It may well do that in the environmental field in some cases. On the other hand, Congress often arrives at the point of not legislating not by any conscious or concerted decision, but rather as a result of political impasse, as appears most likely in the case of the Clean Air Act.

A year from now, 1985 is likely to be viewed as a legislative year full of lots of environmental activity, but not necessarily concluding with lots of new amendments enacted. Some amendments are likely — and Superfund amendments most likely of all. But there will be plenty left for the second session of the 99th Congress to work on when it comes to dealing with environmental legislation in 1986.