Deflecting the Assault: How EPA Survived a "Disorganized Revolution" by "Reinventing" Itself a Bit

Thomas O. McGarity

The author holds the W. James Kronzer Chair in Trial and Appellate Advocacy at the University of Texas School of Law.

The most significant accomplishment for the U.S. Environmental Protection Agency (EPA) during the decade of the 1990s may have been the critical role that it played in the Clinton Administration's successful campaign to deflect the efforts of regulatory reform advocates in the 104th Congress to replace the existing statutory foundation of environmental law with a much less protective regulatory regime. In addition to rebutting the arguments for radical reform directly on their merits (in a way that was confrontational to an unprecedented degree), EPA also effectively outflanked the reformers by resurrecting a moribund "reinvention" program and presenting it as a moderate alternative to radical reform. In classical Clintonian fashion, EPA seized the middle ground by reinventing itself, and the existing statutory framework remained largely intact. The Agency's desperate maneuvering, however, planted the seeds for several experiments in so-called second generation regulation that began to flower during the latter half of the Clinton Administration.

Divided Government In Extremis

The 104th Congress in Context

At the outset of the 104th Congress, advocates of regulatory reform at the federal level had every reason to expect that an ambitious regulatory reform agenda could be enacted into law. In the wake of the 1994 elections, which featured the antigovernment promises of the Contract With America, the Republican party held solid majorities in both houses of Congress, and the Democratic president was licking his wounds. Conservative think tanks worked overtime to churn out reports and testimony for the regulatory reform hearings that the Republican victors were planning.¹ The American Enterprise Institute held a seminar on regulatory reform that prominently featured a session on "What to Kill First: Agencies to Dismantle, Programs to Eliminate, and Regulations to Stop."² According to a Cato Institute report, "Congress must jettison the entire foundation of modern environmental law if it hopes to provide regulatory relief for a battered economy and environmental protection for generations to come."³ The Heritage Foundation and Empower America offered a three-day training session for congressional freshmen that received such an overwhelming response that the Kennedy School had to cancel its own long-standing program.⁴

Initial Strategies

The House Leadership

Rep. Newt Gingrich (R-Ga.) considered himself a "transformational figure," and he fully expected that the "revolution" that he had worked so hard to bring about would "shift the entire planet."⁵ Phase One of project planet-shift, the bombthrowing phase, consisted of undermining public trust in the Democrat-controlled Congress. This he accomplished through persistent forays against high profile congressional Democrats like former House Speaker Jim Wright (D-Tex.).⁶ Phase Two consisted of a quiet campaign to solicit corporate support for a national effort to unseat Democratic congresspersons. These appeals were spectacularly successful — corporate political action committees contributed three times as much to Republican challengers as to their Democratic opponents during the 1994 campaign.⁷ Phase Three was the Contract With America, which promised to bring about the "end of government that is too big, too intrusive and too easy with the public's money."⁸ The Republican signatories promised to bring the Job Creation and Wage Enhancement Act, a broad-ranging potpourri of regulatory reforms, to the floor of the House within the first 100 days of the 104th Congress.⁹

If Newt Gingrich was the Lenin of the conservative revolution, House Majority Whip Tom DeLay (R-Tex.) was its [31 ELR 11250] Stalin. No friend of the regulatory state, DeLay persuaded a group of more than 100 business representatives at the outset of the 104th Congress to establish and fund an organization called Project Relief to fund a highly coordinated campaign to enact regulatory reform legislation.¹⁰ To those who would stand in the way of the revolution, DeLay announced: "I'm their most deadly enemy."¹¹ Many of the newly elected freshmen Republicans were eager lieutenants in the battles of the 104th Congress.¹² One of the key freshman lieutenants, Rep. David McIntosh (R-Ind.), had been the chief of staff for Dan Quayle's antiregulatory Competitiveness Council during the Bush Administration and was therefore no stranger to federal environmental regulation. The House leadership appointed McIntosh chairman of the subcommittee in charge of much of the regulatory reform legislation, an almost unheard of position for a freshman.¹³

According to Gingrich's plan for his "disorganized revolution," the House would pass the Contract With America implementing legislation in 100 days, break for Easter, and then return to pass a balanced budget and to work on extensive re-writes of existing regulatory legislation like the Clean Water Act (CWA) and the Safe Drinking Water Act (SDWA).¹⁴ Members of Gingrich's staff met twice a week with staffers from all of the House committees to ensure that they were adhering to the leadership's schedule and were pursuing consistent themes. No subcommittee could hold hearings on any topic without approval from the House Speaker's office.¹⁵ The strategy was exhausting, but enormously successful for the first 100 days of the revolution. As time wore on and opponents in the Administration and the public interest groups regained their feet, it became less clear that the "disorganized revolution" had the staying power or the necessary public support to bring about lasting change.

The Clinton Administration

Like Gingrich, President William J. Clinton initially read the 1994 election results as a mandate for change. Rather than aggressively organizing the opposition, the Administration initially offered to work with the new Republican majorities to achieve "sensible" regulatory reform.¹⁶ Sally Katzen, head of the Office of Management and Budget's (OMB's) regulatory review office, conceded that "legislation in some of these areas is likely, and, if done properly, can be salutary."¹⁷ Katzen soon discovered, however, that the radical legislation emerging from congressional committees did not represent a "constructive effort to deal with very real problems." As public interest groups began to educate the public about the full extent of changes that the Republican regulatory reformers had in mind, an emboldened Clinton Administration adopted a strategy of "contrast politics" and began to talk openly of using the president's veto powers to blunt the assault.¹⁸

At the same time, the Administration struggled to co-opt the Republican regulatory reform initiatives. In his 1995 State of the Union address, President Clinton announced that as part of a "New Covenant" with the American people, Vice President Al Gore would reinvigorate the Administration's "Reinventing Government" initiative.¹⁹ In the ensuing months, the Administration announced that every regulatory agency would comb through every existing regulation with an eye toward eliminating all "obsolete" and "unnecessary" requirements.²⁰ On March 16, the White House staged a press briefing to announce a series of new executive branch regulatory reform initiatives designed to "facilitate small business compliance with federal regulations."²¹ For public relations purposes, the rallying cry was: "Reform, yes. Rollback, no."²²

Public Interest Groups

Several overlapping coalitions evolved to resist the assault on regulation. In early February, more than 170 environmental, labor, and consumer groups formed a coalition called Citizens for Sensible Safeguards to fight the reform legislation. From focus group studies, they discovered that most people were unaware of the scope of the protections afforded by federal regulatory programs,²³ and they adopted a strategy of putting "a human face to public protections."²⁴ They worried, however, that the regulatory reformers in Congress would push through changes so quickly that they would not have time to educate the public about their negative impacts.²⁵

The First Wave — Generic Regulatory Reform

A Moratorium on Regulations Morphs Into Legislative Override

Although nowhere mentioned in the Contract With America, the House leadership's first order of regulatory reform business was an across-the-board "moratorium" on all new [31 ELR 11251] federal regulations pending the enactment of omnibus regulatory reform legislation.²⁶ Drafted by a prominent energy industry lobbyist and long-time advisor to Majority Whip DeLay,²⁷ the Regulatory Transition Act of 1995 contained a judicially enforceable moratorium on agency rulemaking from November 9, 1994 through June 30, 1995.²⁸ The bill allowed waivers for imminent threats to health or safety and other emergencies, and it exempted actions "repealing, narrowing, or streamlining" rules or "otherwise reducing regulatory burdens." Also excluded were such industry-favored actions as granting licenses, recognizing exemptions, allowing variances, and relieving existing restrictions.²⁹

The Clinton Administration argued that a moratorium was entirely unnecessary, given the efforts that the Administration was already undertaking to "reinvent" regulation. In a March 16 White House briefing, EPA Administrator Carol Browner warned that the moratorium would halt EPA's ongoing efforts to set more stringent standards for hazardous waste incineration and to regulate the ubiquitous parasite Cryptosporidium, which had killed more than 100 people the previous year in Milwaukee.³⁰ Just prior to the House vote, Browner issued a statement claiming that the bill would require EPA to "stop rules to control dioxin from incinerators, lead poisoning, and bacterial contamination of drinking water."³¹ The bill nevertheless easily passed the House, and DeLay joined about 200 lobbyists for a photo-op celebration in which he snipped red tape wrapped around a five-foot replica of the Statue of Liberty.³²

In the Senate, Sen. Don Nickles (R-Okla.) introduced a companion moratorium bill during the first week of the session, but Senate majority leader Bob Dole (R-Kan.) did not assign it a high priority.³³ Some moderate Republican senators were not convinced that a brute force moratorium, despite its symbolic value, was a rational way to go about making public policy. Sen. John H. Chafee (R-R.I.), the chairman of the Environment and Public Works Committee, believed that the moratorium idea was a "meat-ax approach," and he wondered "how many of our environmental achievements will still be in place when the dust settles."³⁴ A similar schism had developed within the business community between small business advocates, who favored the moratorium, and big business lobbyists, who were unwilling to invest political capital on a splashy moratorium that promised few long-term benefits for their clients.³⁵

Although the Senate Governmental Affairs Committee reported the bill out on March 9, 1995,³⁶ it soon became clear that the moratorium did not command sufficient support to survive a promised filibuster, and it was even less likely that there would be enough votes to override an expected presidential veto. The leadership therefore decided not to bring the moratorium bill to the floor of the Senate for a vote.³⁷ Thus stymied, Senator Nickles substituted a "legislative override" provision, under which a major federal regulation could not go into effect until Congress had an expedited opportunity to pass a joint resolution disapproving the regulation. If the president signed the joint resolution, the rule would not go into effect and the agency could not promulgate a regulation on substantially the same topic until authorized by a new act of Congress.³⁸ The business community promptly endorsed the Nickles substitute bill.³⁹

No longer threatened by a potential filibuster or veto, the bill sailed through the Senate without a single dissenting vote on March 29, 1995.⁴⁰ Frustrated by this ultimatum from the Senate, the House voted to replace the Senate legislative override bill with the House moratorium bill, thus necessitating a House-Senate conference committee to resolve their considerable differences.⁴¹ The Senate did not appoint its conferees until mid-June, and the matter then languished in conference committee until March 1996, long after the original House moratorium would have expired. Meanwhile, the House leadership combined the legislative override bill with a number of unrelated bills, including a bill to raise the federal debt ceiling, called the "Contract With America Advancement Act." Under pressure to raise the debt ceiling, both houses passed and the president signed the new law on March 29, 1996.⁴²

The value of the moratorium to its supporters was largely symbolic. Almost by definition, it could have no lasting practical impact, because agency officials made it clear that they would resume their regulatory output (especially of those rules that were required by statute) as soon as the moratorium expired. In symbolic term's, however, the moratorium effort demonstrated beyond cavil to the business community that this Congress was serious about reducing regulatory burdens. Had they succeeded in imposing a moratorium on an unwilling president, the newly empowered House Republicans would have sent a powerful symbolic message to the agencies that Congress was now the boss. The proposed moratorium, however, sent an equally strong symbolic message to the general public that the regulatory [31 ELR 11252] reformers were indiscriminately opposed to all protective federal regulation.

The Job Creation and Wage Enhancement Act

The Contract With America promised that the House would pass a "Job Creation and Wage Enhancement Act" that would, among other things, provide for "risk assessment/cost-benefit analysis, strengthening the Regulatory Flexibility Act and unfunded mandate reform to create jobs and raise wages."⁴³ The actual bill that the House leadership introduced went far beyond even that ambitious agenda. In fact, it addressed such a wide array of topics that the leadership immediately broke it into many separate bills for referral to different committees. After the committees had done their work, often adding additional reforms but sometimes deleting hastily conceived and unworkable provisions, the leadership cobbled the remaining bills back together for enactment as a single bill prior to Contract With America's 100-day deadline.

Unfunded Mandates

Like the private business community, many states and municipalities chafed under federal environmental requirements, especially those for which Congress had not appropriated funds to offset the costs of compliance.⁴⁴ As Governor of Arkansas, Clinton had strongly supported restrictions on such "unfunded mandates," and he had recently proclaimed himself an "ardent devolutionist."⁴⁵ Since the Contract With America also promised unfunded mandates legislation,⁴⁶ no one was surprised when it was the very first bill introduced in the Senate and one of the first five bills introduced in the House.⁴⁷ In a significant coup for the National Chamber of Commerce, the bills imposed severe constraints on Congress' ability to enact legislation imposing large unfunded mandates on either the public or the private sector.⁴⁸ In addition, regulations imposing more than $ 100 million in costs had to be accompanied by impact statements analyzing their costs, benefits, and budgetary impacts.⁴⁹

EPA regulations were prominently featured in the sometimes inaccurate horror stories that the regulatory reformers related in support of the bills.⁵⁰ Although the Administration was careful to correct the horror stories,⁵¹ it did not oppose the general thrust of the legislation.⁵² Flanked by enthusiastic members of both parties, President Clinton signed the Unfunded Mandates Act of 1995 on March 22 in a Rose Garden ceremony in which he observed that the bill was "another acknowledgment that Washington doesn't necessarily have all the answers."⁵³ The final bill contained procedures for congressional consideration of future legislation that could impose federal mandates on state, local, or tribal governments and judicially reviewable analytical requirements for federal rules that imposed federal mandates on private-sector entities.⁵⁴ Since its enactment, the judicial review provisions of the statute have had very little impact upon EPA. In the two cases in which petitioners seriously raised the issue of EPA's compliance with the statute's analytical requirements, the courts easily rejected those arguments.⁵⁵

Risks, Benefits, and Supermandates

The key skirmish in the multifront assault on regulation during the 104th Congress was the intense battle over omnibus regulatory reform legislation that would have assigned a prominent role to risk assessment and cost-benefit analysis in all health, safety, and environmental regulation. The hastily drafted risk assessment and cost-benefit provisions of the Job Creation and Wage Enhancement Act were so inconsistent and overlapping that the House leadership broke the original bill into a series of bills for separate reference to different committees. The Senate counterpart was introduced by Sen. Bob Dole, but it was also heavily influenced by Sens. Charles Grassley (R-Iowa) and Orin Hatch (R-Utah). While the battles over these bills had immense symbolic importance, they also had profound practical implications for federal regulation.

The original House bill would have required all health, safety, and environmental agencies to follow certain detailed principles when they prepared risk assessments. Although most of the principles were uncontroversial descriptions of the contours of a good risk assessment, some were highly debatable. For example, the bill required agencies to engage in comparative risk assessment by including "appropriate comparisons with estimates of risks that [were] familiar to and routinely encountered by the general public as well as other risks." It would also have required health, safety, and environmental agencies to prepare a cost-benefit analysis of all "significant" regulatory alternatives for every "major" rule, a term that was defined to include all rules with an impact on the economy of $ 25 million. The agency would have to "certify" that the rule would "produce benefits to human health or the environment that justified the costs" and that no allowable regulatory alternative would "achieve an equivalent reduction in risk in a more cost-effective manner." The bill, however, was curiously silent on the question of judicial review.⁵⁶

[31 ELR 11253]

The original Dole bill contained many similar requirements for risk assessment, but it also contained a judicially reviewable requirement that agencies prepare risk assessments for all "major" rules.⁵⁷ The Senate bill further mandated a cost-benefit "decision criterion" that would have flatly prohibited an agency from promulgating a major rule that did not provide "greater net benefits to society than any of the reasonable alternatives." This "cost-benefit supermandate" would have supplemented the decisional criteria specified in the agency's statute, unless the agency's statute contained "explicit textual language" prohibiting it from considering cost-benefit analysis.⁵⁸ In addition, the Dole bill contained a novel "look-back" provision allowing any person "subject to" a major rule, guidance document, or policy statement to petition the agency to perform a cost-benefit analysis in accordance with the bill's new criteria and requiring the agency to "take immediate action to either revoke or amend" any rule, guidance document, or policy statement that failed the cost-benefit decision criterion.⁵⁹

EPA played a prominent spokesperson's role in the Clinton Administration's opposition to the omnibus regulatory reform bills. In her congressional testimony, EPA Administrator Browner argued that the legislation was unnecessary, because EPA was already preparing extensive risk assessments and cost-benefit analyses for major rules. The existing environmental laws were, in her opinion, "a major success story" and should not lightly be superseded by hastily crafted across-the-board regulatory reform legislation. Risk assessment was an "evolving science" for which "one-size-fits-all" statutory requirements were entirely inappropriate. While EPA could support some of the more modest changes proposed in the bills, it strongly opposed any cost-benefit "supermandate" that would "effectively repeal the decisionmaking criteria adopted by the Congress in other environmental laws enacted over the past 25 years, and substitute instead a rigid cost-benefit test." It also opposed the Senate bill's mandatory "look-back" requirements and judicial review provisions.⁶⁰

As the House bill raced through the subcommittees and committees to which it was assigned, it took on the look-back and judicial review requirements of the Senate bill, and it made a newly installed cost-benefit supermandate undeniably explicit.⁶¹ An alarmed Browner declared that the amended bill "would undermine virtually every public health and environmental protection that Americans have come to take for granted in this country."⁶² Browner spent so much time on the telephone talking to congresspersons and other potential allies that she lost her voice.⁶³ After the House enacted the bill, Browner called it "a full frontal assault on our attempts to protect the nation's environment," and she promised to urge President Clinton to veto it.⁶⁴

If the impetus behind the House omnibus regulatory reform bill was the Contract With America, the driving force behind the Senate bill was the 1996 election. Senate majority leader Bob Dole knew that he would be a candidate for the presidency, and he faced a tough primary fight against Sen. Phil Gramm (R-Tex.), a conservative with a solid reputation as a friend of the business community. Dole was convinced that he could attract equally strong business support if he led the charge in the 104th Congress against burdensome federal regulation. Although Dole had not played a prominent role in past regulatory reform debates, he was determined not to allow Gramm to outflank him to the right in the regulatory relief crusade. The strategy worked. The Dole bill became the primary vehicle for omnibus regulatory reform legislation in the Senate, the corporate contributions came flooding into the Dole campaign's coffers, and Senator Gramm disappeared from the regulatory reform debates.⁶⁵

In December 1994, Dole asked C. Boyden Gray, chairman of Citizens for a Sound Economy and a prominent lobbyist for corporate interests on regulatory issues, to help him draft a regulatory reform bill.⁶⁶ Also participating in the drafting process were aides to Sens. Frank Murkowski (R-Alaska), chairman of the Energy and Natural Resources Committee; J. Bennett Johnston (D-La.), a conservative; and Trent Lott (R-Miss.), majority whip.⁶⁷ Dole assigned the task of monitoring the progress of the bill to his aide Kyle McSlarrow, a former lobbyist from the Richmond, Virginia, law firm of Hunton and Williams. As the bill evolved, two attorneys from McSlarrow's old law firm played a prominent role in the drafting process.⁶⁸ On Opening Day, Dole proclaimed that "reining in our government will be my mandate, and I hope it will be the purpose and principal accomplishment of the 104th Congress."⁶⁹

When the Judiciary Committee's Subcommittee on Administrative Oversight and the Courts met on March 14 to mark up the Dole bill, it substituted for the original bill a new text, authored by Subcommittee Chairman Grassley with input from Dole's staff, that modified the original bill's requirements to make them even more stringent and added several major provisions designed to meet the special needs of particular business groups.⁷⁰ After the subcommittee approved the Grassley changes, Senator Hatch, the chairman of the full committee, proposed additional deregulatory provisions to the already lengthy bill.⁷¹ One of these, an enforcement defense available to any defendant that reasonably [31 ELR 11254] believed that it was in compliance with the regulations being enforced, was drafted by attorneys for a large lumber company that was at the time embroiled in a dispute with EPA over the applicability of regulations issued under the CWA.⁷²

Public interest groups and Democratic staffers complained bitterly about the prominent role that industry interests had played in drafting the bill. They pointed to a March 29 briefing in which the three private attorneys who had drafted many of the new provisions were asked by Republican staffers to tell other Senate staffers what the language meant. One public interest group demanded that the bill's supporters explain how "if your staff needs to call in the lobbyists for the polluters to explain their own bill," there could be any assurance "that public health and safety is not at risk."⁷³ EPA Administrator Browner bluntly declared that the bill provided "a safe haven for the special interests and polluters who helped write it."⁷⁴ The incident focused public attention on regulatory reform in a way that no dry analysis of the lengthy bills could duplicate.

The full Senate debated the Dole bill for three weeks in late June and July before Senator Dole called for three cloture votes in rapid succession to end the debate. All three fell short, with the final vote coming within two votes of the 60 votes needed to cut off debate.⁷⁵ Senator Dole then took to the floor to announce: "I think the die has been cast. I regret we've failed the American people again."⁷⁶ Speaking for corporate America, Jerry Jasinowski, of the Alliance for Reasonable Regulation, complained that "by rejecting regulatory reform, Senate Democrats have kicked us in the teeth."⁷⁷ Administration officials, including EPA Administrator Browner, took the position that the cloture vote validated their argument that the Dole bill and the House-passed regulatory reform bill were too radical for the American public.⁷⁸

Senator Dole's strategy of wedging Senator Gramm out of the regulatory reform debates worked beautifully, but it also left the Senate omnibus regulatory reform initiative in the hands of the probable Republican presidential candidate. This greatly increased the desirability of killing the bill for environmental groups, ensured the hostility of the current occupant of the White House, and provided a very persuasive rationale for conservative Democrats to vote against cloture. While it may have been unfair for some opponents to characterize the bill as a "bad meat bill," it was not at all unfair for EPA Administrator Browner to predict that the bill would greatly reduce the capacity of her agency to promulgate protective rules. In the end, the proponents of EPA's regulatory programs prevailed by the thinnest of margins.

Property Rights

The Job Creation and Wage Enhancement Act gave a private property owner the right to sue in federal court for any deprivation of the value of its property of 10% or greater due to any federally imposed limitation or condition on an otherwise lawful use of that property. The compensation would come from the annual budget of the relevant agency, and the heads of the agencies were authorized to reprogram funds from ongoing programs to the compensation pool if needed to make a payment.⁷⁹ Although the bill contained specific exemptions for state and local zoning laws and federal limitations on property uses that posed a serious and imminent threat to public health and safety, the ultimate goal was to "get rid of the regulatory state established under F.D.R.'s New Deal."⁸⁰

Joined by environmental groups, populist farmer groups, and local land use planning organizations, the Clinton Administration opposed the House and Senate bills, characterizing them as "a radical and dangerous statutory compensation mandate."⁸¹ The Administration stressed that private development on wetlands had "real consequences, not only for ecosystems in a general sense, but for very specific people whose safety and livelihoods depend on the ability of wetlands to continue performing their natural functions." The bills would also have "almost unlimited" consequences for the federal budget. Appealing to states' rights advocates, Administrator Browner pointed out that in order to avoid potential liability, federal agencies like EPA would have to maintain much stricter control over federal programs that were delegated to the states.⁸²

Although the property rights bill sailed through the House with the rest of the Contract With America implementing legislation, it was opposed by Senator Chafee.⁸³ Early in the session, Senate Majority Leader Dole offered a very modest property rights bill that would have required agencies to prepare a property rights impact statement in connection with major regulations. After the House passed its much more aggressive bill, property rights advocates persuaded Senator Gramm to introduce a radical bill requiring the government to compensate landowners for regulatory interventions that resulted in a diminution of property values by 25% or $ 10,000.⁸⁴ Dole responded by introducing his own bill that was more protective of private property rights than the [31 ELR 11255] House bill, but less protective that the Gramm bill. After Senator Hatch, the chairman of the committee to which the bill had been referred, became a co-sponsor, the Dole-Hatch bill became the primary Senate property rights vehicle, and Senator Gramm was once again left without a bill to champion.⁸⁵

By late April, however, the Oklahoma City federal court-house bombing had dealt a serious blow to the property rights push. The senseless violence not only appalled the nation, but it also focused public attention on the less attractive side of radical right wing organizations, including the property rights movement.⁸⁶ By mid-June, the public mood had clearly shifted, and moderate Republican opponents of the property rights bills were emboldened to voice their criticisms publicly.⁸⁷ With the Gramm presidential campaign visibly faltering, Senator Dole in early July allowed that "maybe there is another way to do it."⁸⁸ Although the bill was reported out of committee, the leadership never scheduled a floor vote because it was not confident that it could command even a simple majority.⁸⁹ Senator Dole finally abandoned it altogether when he resigned his Senate seat to focus on his presidential campaign.⁹⁰

The Second Wave — Specific Regulatory Relief

During the first 100 days, the regulatory reformers in the House focused on procedural and analytical reforms that would have drastically affected the implementation of health, safety, and environmental statutes, but would have changed their substance only if a cost-benefit supermandate had been enacted. The goal of the second wave of regulatory reform was to rewrite the health and environmental laws that had been in place since the early 1970s, and one of the principle targets was the CWA. The CWA's past emphasis on "technology-based" standards made it a favorite target of industrial and municipal dischargers, and its wetlands protections were anathema to private real estate developers and property rights activists.⁹¹

On February 5, 1995, House Transportation and Infrastructure Committee Chairman Bud Shuster (R-Pa.) introduced a CWA amendments bill that would have subjected all EPA regulations, guidance documents, and other regulatory requirements promulgated under the CWA (other than permits) to a cost-benefit decision criterion.⁹² The bill changed the goal of EPA's struggling nonpoint source (NPS) program from "improvement of water quality" through "best management practices" to "reasonable likelihood of attainment" of state promulgated water quality standards by 2010, with "reasonableness" being measured by reference to the level of federal funding that EPA provided to the state.⁹³ Finally, the Shuster bill replaced the wetlands protections that EPA and the U.S. Army Corps of Engineers (the Corps) administered under § 404 of the CWA with a completely new and significantly less protective program.⁹⁴

After conducting seven days of hearings and soliciting input from several industry task forces,⁹⁵ Representative Shuster drafted a substitute bill that was 100 pages longer than his original bill. The substitute imposed additional regulatory analysis requirements to complement the original cost-benefit decision criterion and added a "look-back" provision requiring EPA to certify that all prior "significant regulatory actions and guidance" resulting in costs of $ 100 million met the cost-benefit test and to change those that did not.⁹⁶ The substitute version also provided a number of industry-specific waivers, most of which were written by the special industry task forces.⁹⁷

During the three-day subcommittee markup session, EPA Assistant Administrator Robert Perciasepe noted that EPA had been "expressly disinvited" from the task force meetings, and he warned that "the limited number of interests" represented in those negotiations would "produce a bill that heightens rather than resolves controversy."⁹⁸ EPA admitted that its implementation of the NPS program could stand improvement, and it promised to adopt a "common-sense" approach that would use "flexible, cost-effective methods" and meet "realistic expectations."⁹⁹ It did not, however, concede that the program should be voluntary to the extent that EPA lacked the funds to pay for it.¹⁰⁰

EPA Administrator Browner recommended that President Clinton veto the bill after it easily passed the House. Although it contained "some innovative ideas," she thought they were "not glued together in any intelligent way."¹⁰¹ The president then repaired to Rock Creek Park to make one of his most effective speeches of the year against the House bill. Calling the bill the "dirty water act," Clinton accused the Republican leadership of kowtowing to industrial polluters.¹⁰² He promised to veto the bill if it passed the Senate in the same form.¹⁰³

Despite pressure from industry and agricultural groups to report out a CWA bill, Senate Environment and Public Works Committee Chairman Chafee made it clear that his committee would not address CWA issues until it had completed SDWA reauthorization.¹⁰⁴ In mid-July 1995, an impatient House passed an appropriations rider that would [31 ELR 11256] have halted all CWA implementation and enforcement activities to "send[] a fairly strong message to the Senate that they better get their act together and pass something."¹⁰⁵ A nonplused Senator Chafee responded that "we are just going to go ahead on our own path anyway."¹⁰⁶ (President Clinton later vetoed the appropriations bill, in part because of its attack on the CWA.)¹⁰⁷ At the only hearing that Chafee scheduled for CWA legislation, EPA adhered to its position that no amendments were necessary because any existing problems could be worked out administratively.¹⁰⁸ Although the committee staff undertook a modest effort in early 1996 to write a comprehensive bill, nothing came of it.¹⁰⁹

Representative Shuster's biggest mistake was to allow the regulated industries to write a radical deregulatory bill that could legitimately be attacked as the "dirty water act." The "task force" process for generating industry input was a disaster from a public relations standpoint. How could the public trust a largely incomprehensible 250-page bill that was drafted by the regulated industries without the input of EPA experts? Like the Contract With America legislation that preceded it, the Shuster CWA rewrite easily passed the House, but was dead on arrival in the Senate. The Senate Democrats did not have to launch a filibuster against it, and President Clinton did not have to veto it, because a moderate Republican committee chairman did not even schedule it for markup.

The Third Wave — Budget Cuts and Appropriations Riders

The appropriations process could achieve regulatory relief in two ways. First, Congress could kill entire regulatory programs without substantively repealing them by simply "zeroing them out" during the appropriations process. Second, regulatory reformers could attach deregulatory "rifle shot" riders to appropriations bills and associated bills needed to raise the federal debt ceiling.

The first opportunity to change regulatory agency budgets was a bill to rescind previously appropriated fiscal year (FY) 1995 monies in order to provide funds for victims of the California earthquake, to make a "down payment" on deficit reduction goals, and to beef up antiterrorist protections in light of the Oklahoma City bombing. The Appropriations Committee proposed $ 17 billion in cuts from federal programs and (at the urging of Majority Whip DeLay) added several substantive antienvironmental riders to the rescissions bill.¹¹⁰ President Clinton then exercised the first veto of his Administration to kill the rescissions bill on June 7, 1995.¹¹¹

Clinton and the Republicans worked through late June and early July to produce a compromise $ 16.5 billion rescissions bill that the president signed on July 27, 1995. The final bill cut EPA's budget for drinking water projects by about $ 1.3 billion, its superfund budget by $ 100 million, and its current operating budget by $ 98 million. The bill contained riders restricting the Corps' discretion to designate wetlands under the CWA, prohibiting EPA from listing any new superfund sites, and preventing EPA from requiring centralized inspection and maintenance and employer trip reduction programs in nonattainment areas under the Clean Air Act (CAA).¹¹² Far from happy with this turn of events, environmental groups staged a "21-chainsaw salute" to Clinton in a park across the street from the White House.¹¹³

The skirmish over the FY 1995 rescissions bill was merely a prelude to the major battle that was brewing over the FY 1996 budget. The Clinton Administration's initial $ 1.6 trillion FY 1996 budget would have increased EPA's budget by 2%, to $ 7.4 billion.¹¹⁴ The House Appropriations Committee, by contrast, reported out a bill that halved EPA's enforcement budget and reduced its general funding by almost one-third.¹¹⁵ In addition, Majority Whip DeLay insisted upon adding 17 deregulatory riders to EPA's appropriation bill that would have, among other things, prevented EPA from promulgating industrial effluent and stormwater discharge limitations, enforcing its wetlands protection program, finalizing its primary drinking water standards for arsenic and radon, implementing the recently enacted CAA permit requirements, requiring chemical companies to report chemical uses, revoking or refusing to issue tolerances for carcinogenic pesticides in processed food, and insisting that the Upjohn Corporation's Kalamazoo pharmaceutical plant pretreat its effluent.¹¹⁶

EPA's appropriations bill and its associated riders gave rise to vigorous floor debates in the House. The Democrats and some moderate Republicans charged that the bill amounted to "nothing less than a full-scale assault on the environmental protection laws."¹¹⁷ To the leadership's surprise, a group of 51 moderate Republicans broke ranks and joined most of the Democrats in approving an amendment to strike DeLay's 17 environmental riders.¹¹⁸ Rep. Sherwood L. Boehlert (R-N.Y.), who lead the moderate Republican revolt, was convinced that "if we turn our back on the environment, we're making a major miscalculation, because by overwhelming numbers the American people are concerned about the air we breathe and the water we drink."¹¹⁹ DeLay was "livid because the Boehlert amendment gutted all my regulatory reform that I had been working on all year."¹²⁰ [31 ELR 11257] Gingrich then agreed to DeLay's request to hold a second vote just after the weekend recess when enough Democrats were out of town that the vote allowed the riders to remain in the bill.¹²¹

EPA Administrator Carol Browner expressed alarm over "the concerted, orchestrated assault on how we do our job."¹²² Aggressively courting the media in an effort to publicize the devastating impact that the proposed budget cuts and riders would have on the environment, she predicted that the riders would prevent EPA from eliminating 580 million pounds of industrial water pollution, eviscerate the public right to know about industrial releases of toxic chemicals, and put 2,000 children at risk of mercury poisoning.¹²³ She urged key senators of both parties to hold the line against the indirect threat to the Agency's statutory missions that the House budget cuts represented. She even tried to obtain an audience with Speaker Gingrich to present EPA's case on a face-to-face basis, but he declined to meet with her. Exasperated, she told the press that there was "no genuine willingness on the part of the leadership and its following to have an honest debate, because they are beholden to special interests."¹²⁴ Browner charged that the budget cuts were "not about reform"; they were "about shutting the system down."¹²⁵

With public opinion polls indicating that the environment offered a "wedge" issue against the Republicans, President Clinton eagerly jumped into the fray. The day after Representative DeLay forced a re-vote on the 17 environmental riders, the president called a press conference to criticize the Republican leadership and "lobbyists for the polluters" for forging ahead with a "polluter's protection act."¹²⁶ At a prepared speech delivered next to the rejuvenated Baltimore Harbor, Clinton stressed the importance of assuring every American "that the air we breathe and the food we eat and the water we drink will be safe." He then reported that "this basic security really is in jeopardy today" because the House "voted to gut environmental and public health protection last week under the pressure of lobbyists for those who have a vested financial interest in seeing that happen." Explicitly threatening to veto the appropriations bill if it emerged from the Senate with the riders intact, Clinton ventured that "there are times when a rolled up newspaper on the nose has its uses."¹²⁷

The Senate Appropriations Committee cut EPA's budget by approximately 15% ($ 1 billion).¹²⁸ Although it did not add all of the House's 17 antienvironmental riders, it did add riders that would have, among other things, prohibited EPA from vetoing wetlands permits, adding new sites to the superfund list unless requested by a state, requiring automobiles in Fairbanks, Alaska, to use oxygenated fuels, issuing drinking water standards for arsenic, radon, and several other contaminants, and insisting that the Upjohn Corporation's Kalamazoo plant pretreat its wastes.¹²⁹ In late September, the full Senate adopted the Appropriation Committee's 15% cut for EPA and left in place (with very minor modifications) the committee's riders.¹³⁰

The House leadership faced another revolt of the moderate Republicans when it came time to appoint House conferees on the EPA appropriations bill. Representative Boehlert persuaded 65 moderate Republicans to join the Democrats in voting for a motion to instruct the conferees to delete the 17 antienvironmental riders in their negotiations with the Senate. Majority Whip DeLay postponed the vote twice in an attempt to schedule it for the most advantageous moment, but this time his efforts proved unavailing.¹³¹ The Conference Committee deleted the 17 riders, but it cut EPA's budget by 14% in accordance with the Senate's wishes, and the Senate's riders survived.¹³²

The appropriations bill that Congress passed was not acceptable to President Clinton, and representatives from Congress and the White House settled in for serious negotiations in late October. Although Congress passed and the president signed a continuing resolution to fund the federal government while they negotiated, a highly publicized governmental "train wreck" occurred on November 13, when President Clinton vetoed a second continuing resolution that, among other things, included the entire House omnibus regulatory reform bill as a rider. On November 14, all nonessential federal employees went on leave without pay.¹³³

At this point, Newt Gingrich's ego intervened in a bizarre fashion to turn the tide of the public debate strongly in favor of the Administration. Gingrich and Bob Dole had been President Clinton's guests on Air Force One to attend the funeral of the assassinated president of Israel, Yitzhak Rabin. On the flight to and from Tel Aviv, Clinton did not have the time of day for Gingrich and Dole, and Chief of Staff Leon Panetta only spent "about three minutes" with them. To add insult to injury, Dole and Gingrich were forced to exit the aircraft at the rear, rather than through the front door where the news photographers were gathered. Gingrich later suggested that the slight on Air Force One had played a role in his decision to send Clinton a continuing resolution with such deep cuts and such intrusive riders that the president could not sign it.¹³⁴

The Democrats' response was swift and savage. Clinton's press secretary protested that "the President of the United States lost a friend, and I don't think he much felt like talking about budget politics with Speaker Gingrich, with all due respect." (In fact, the president had spent a good part of [31 ELR 11258] the trip playing hearts.) President Clinton wryly offered that "if it would get the government open, I'd be glad to tell him I'm sorry."¹³⁵ The press had a field day with the image of the Speaker of the House as a spoiled child.¹³⁶ When Congress departed for a two-week Christmas holiday, leaving behind hundreds of thousands of federal workers to endure the season without paychecks, the polls strongly indicated that the public blamed the Republicans for the shutdown.¹³⁷

They re-opened on January 6, 1996, pursuant to another stop-gap continuing resolution, and the two sides continued to negotiate. One of the sticking points in the negotiations was the refusal of the Senate and House negotiators to remove the Senate's environmental riders.¹³⁸ Finally, on April 26, 1996, Congress passed and the president signed a FY 1996 appropriations bill that set EPA's budget at just under its FY 1995 level. In a clear victory for the Administration, it also dropped some of the Senate's environmental riders and weakened others. The Upjohn/Kalamazoo rider was, however, one of the survivors.¹³⁹

The Fourth Wave — Less Bluster With More Bite

During the first 100 days of the 104th Congress, Gingrich was, by all accounts, the most influential person in Washington, D.C.¹⁴⁰ Yet by the end of 1995, his "disorganized revolution" was clearly on the ropes, and much of the astonishingly rapid erosion of public support for its radical agenda was directly attributable to Gingrich's abrasive personality and to the high-pitched rhetoric of his colonels and lieutenants. Trusted Republican pollsters were concluding that the regulatory reform efforts were presenting a serious public relations problem. In one poll, respondents favored "more environmental protection" over "cutting regulations" by a two-to-one margin. Seventy-two percent of those surveyed in another poll thought that the environment should be protected "regardless of cost." Fully 55% of the Republicans surveyed did not trust their party on environmental issues, while 72% of the Democrats did trust their party. The polls strongly indicated that revolutionaries had overplayed their regulatory reform hand.¹⁴¹

The Small Business Regulatory Enforcement Fairness Act

After losing the battle of the budget, Republican leaders from the Senate and House met to discuss how to avoid the "do nothing" label that the Democrats were attempting to pin on them. Since President Clinton had expressed support for small business-oriented regulatory reforms, they agreed to give Sen. Kit Bond's (R-Mo.) Small Business Regulatory Enforcement Fairness Act a high priority.¹⁴² After President Clinton issued a statement voicing general approval for the bill, the Senate unanimously approved it on March 19, 1996.¹⁴³ The Republican leadership in the House then attached language that was almost identical to the Bond bill to the pending debt ceiling bill as part of the previously mentioned Contract With America Advancement Act.¹⁴⁴ President Clinton signed the bill on March 29, 1996.¹⁴⁵

The Act expanded the topics that an agency must consider in a regulatory flexibility analysis and provided for judicial review of an agency's failure to prepare a regulatory flexibility analysis and of the adequacy of final analyses. It also gave the Small Business Administration and OMB a larger role in agency rulemaking. Finally, the Act provided for a small business ombudsman to mediate disputes between agencies and small businesspersons and established regional boards composed of small businesspersons to address and report to the ombudsman small business concerns.¹⁴⁶ This major victory for small business advocates came about with little fanfare because the House and Senate leadership decided to elevate the desire for change over the need to score political points as they compromised with the Administration to secure reforms that both sides wanted to see enacted.

The Food Quality Protection Act

The federal program for regulating pesticides is one of the oldest and most contentious regulatory programs in the United States. Under the version of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) that existed in 1995, any manufacturer of a new pesticide could obtain a "registration" by demonstrating to EPA that the benefits of the pesticide use outweighed the risks that it posed to health and the environment.¹⁴⁷ In addition, the Federal Food, Drug, and Cosmetic Act (FFDCA) provided that raw agricultural commodities containing a pesticide residue were considered adulterated (and therefore subject to seizure) unless the level of the residue was lower than an EPA-prescribed "tolerance" for the pesticide. Tolerances were set at a level that would "protect the public health," a standard that entailed some degree of cost-benefit balancing. However, when processing a food containing a carcinogenic pesticide residue caused the concentration of the pesticide to increase, the processed food was subject to the notorious "Delaney Clause," which prohibited anyone from deliberately adding to food a chemical that caused cancer in humans or laboratory animals.¹⁴⁸

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After a court in 1992 declared unlawful EPA's de minimis policy of allowing carcinogenic pesticides to concentrate in foods if they posed a small enough cancer risk,¹⁴⁹ EPA and environmental groups entered into a consent decree in which EPA agreed to expedite the process of canceling the registrations of 36 widely used carcinogenic pesticides.¹⁵⁰ The food processing and pesticides industries hoped that Congress would enact amendments to the FFDCA to undo this settlement. The Clinton Administration supported repeal of the absolutist Delaney Clause, but wanted to replace it with something more protective than the industry preferred.¹⁵¹

At the outset of the 104th Congress, lobbyists for the pesticide and food industries launched a "quick fix" initiative to repeal the Delaney Clause in the Dole omnibus regulatory reform bill.¹⁵² That provision died with the Dole bill the end of July, and a Delaney Clause repeal rider to the FY 1996 appropriations bill was removed after President Clinton vetoed the bill in late 1995.¹⁵³ A broader pesticides reform bill, introduced by House Commerce Committee Chairman Thomas Bliley (R-Va.), would have, inter alia, replaced the Delaney Clause with a "negligible risk" standard.¹⁵⁴ That bill, however, languished in the committee until its ranking minority member, Rep. Henry Waxman (D-Cal.), let it be known to both the Republicans and his friends in the environmental groups that he would support a repeal of the Delaney Clause if it could be replaced with a "negligible risk" standard that would adequately protect infants and children. Since President Clinton was always careful not to locate himself to the left of left-leaning Democrats, it was a foregone conclusion that he would sign any bill that Waxman endorsed. Representative Bliley therefore entered into serious negotiations with Waxman and the Administration to come up with language that Waxman could support.¹⁵⁵

The pressure to repeal the Delaney Clause reached a new level of intensity in March 1996, when EPA announced that it would, pursuant to the consent decree, cancel the registrations of nine important pesticides.¹⁵⁶ On July 17, 1996, Representatives Waxman and Bliley introduced a new bill that was supported by the major business and agricultural interests as well as the major environmental groups.¹⁵⁷ Among other things, the substitute, which easily passed both Houses and was signed by the president, repealed the Delaney Clause, adopted a stringent "reasonable certainty of no harm" (RCNH) standard for setting tolerances for both raw agricultural commodities and processed foods, required EPA to pay particular attention to the diets and special susceptibilities of infants and children, and allowed EPA to apply a negligible risk standard, instead of the RCNH test, to certain "eligible" pesticides for which thresholds could not be established and for which cancellation would result in "a significant disruption in domestic production of an adequate, wholesome, and economical food supply."¹⁵⁸

EPA Administrator Carol Browner, whose staff had played a major role in the behind-the-scenes negotiations, announced that the statute "clearly strengthens the current law in ways that the Clinton Administration has been seeking for over three years now."¹⁵⁹ Business groups were not delighted with the bill, but they were willing to support it as an acceptable alternative to losing nine important pesticides.¹⁶⁰ While not all environmental groups were wildly enthusiastic about the new law, one of their most active negotiators declared that the country was witnessing "Mission Impossible, a good environmental law passed by this Congress."¹⁶¹

The SDWA

The SDWA of 1974 required EPA to establish "maximum contaminant level goals" for listed drinking water contaminants at a level at which no known or anticipated adverse effects on the health of persons would occur with an "adequate margin of safety." EPA then had to establish binding "national primary drinking water regulations" at the level that was "as close to the maximum contaminant level goal as is feasible." The states had primary responsibility for implementation and enforcement, and large federal grants were available to assist municipalities in complying with the standards.¹⁶² Amendments to the statute in 1986, established judicially enforceable schedules for promulgating drinking water standards and required water suppliers to employ the best available technology. These changes posed some implementation difficulties, because the technology of choice to kill pathogenic microorganisms (chlorination) also created organic byproducts (called disinfection byproducts) that were themselves carcinogenic chemicals.¹⁶³ Several outbreaks of disease caused by the protozoan Cryptosporidium in drinking water in the early 1990s suggested that trade offs would be required between the risks posed by some pathogenic microorganisms and the risks caused by some disinfection byproducts.¹⁶⁴

By 1994, EPA's implementation efforts were beginning to overwhelm the Agency, and they promised to be quite [31 ELR 11260] burdensome for regulatees. To the extent that the federal government did not pay for the increased costs of complying with EPA requirements, the SDWA was a classic unfunded federal mandate and, as such, was a prime target for the regulatory reformers. Senator Chafee agreed to make SDWA reform one of the committee's highest priorities, and the committee staff negotiated with the Administration and interested parties to come up with an easily enacted bipartisan bill.¹⁶⁵ Reading the 1994 elections as a mandate to ease the stringency of the drinking water law, the regulatees held out for a bill that would include risk-based priority setting and cost — benefit-based standard setting.¹⁶⁶ They got their wish in the subcommittee's bill, which also established a $ 1 billion revolving loan fund for municipal water treatment facilities.¹⁶⁷

Although they supported the revolving loan fund for small entities, environmental groups opposed most of the other provisions.¹⁶⁸ Arguing that the best way to protect drinking water was to ensure that groundwaters and surface waters did not get contaminated in the first place, they urged the Senate to include protections for rivers, lakes, and aquifers from urban runoff, sewage overflows, and industrial and farm waste. They further insisted on a provision requiring water suppliers to inform their consumers of the nature of the resulting contaminants in their water and of any violations of federal standards.¹⁶⁹

The Administration walked a very fine line in expressing qualified support for the Senate subcommittee bill. EPA Administrator Browner believed that the bill established an acceptable framework for promulgating standards and generally represented "a step in the right direction."¹⁷⁰ She unequivocally endorsed the revolving loan fund idea and the risk assessment requirements. Without endorsing a cost-benefit decision criterion, the Administrator agreed that "cost-benefit analysis and risk assessment are useful tools and an essential part of responsible reform." At the same time, she agreed with environmental groups that the statute should empower the agency to protect sources of drinking water and that it should require distributors to give consumers more information about the quality of their drinking water.¹⁷¹ Nevertheless, the Senate passed the subcommittee's bill with only minor changes.¹⁷²

Things moved more slowly in the House, where the goal by early 1996 was also to come up with a bipartisan bill.¹⁷³ The resulting bill established a revolving loan fund, required risk-based priority setting and mandated a cost-benefit cap for drinking water standards, but it also established a source water protection program and a community right-to-know provision (like the one the Senate rejected) that required large water suppliers to include information on contaminants in annual mailings to customers.¹⁷⁴ That bill passed the full House on June 25 "like a rainbow following a thunderstorm."¹⁷⁵

As the bill headed into the conference committee, environmental groups warned that they would not support a watered down version of the House bill, and House Democrats made it clear that they would not support the conference bill if it deleted the right-to-know requirements or allowed the cost-benefit cap to apply to the disinfection byproducts rule. As the Senate conferees dug in their heels, the House conferees noted that the House bill represented a delicate compromise that, unlike the Senate bill, had the support of environmental groups.¹⁷⁶ On August 6, 1996, President Clinton signed a bill that looked more like the House bill than the Senate version. He proclaimed the new law "a real triumph because it demonstrates what we can achieve here in Washington and in our country when we turn away from partisanship and embrace shared values."¹⁷⁷

Why the Revolution Mostly Failed

The regulatory reformers in the Republican Party quite plausibly read the 1994 election returns as a call for major changes in existing regulatory regime. With corporate America happy to throw its considerable resources behind the effort, the prospects for significant regulatory reform legislation at the outset of the 104th Congress were rosy indeed. According to the undisputed leader of the revolutionaries, Newt Gingrich, their goal was nothing less than to "reshape the federal government."¹⁷⁸ Yet by the end of the 104th Congress, it was clear that his "disorganized revolution" had failed. The Heritage Foundation's magazine Policy Review lamented that "the first GOP Congress in 40 years … did not live up to the expectations it helped create."¹⁷⁹ Ardent reformer Tom DeLay conceded that "we have lost the debate on the environment."¹⁸⁰

The regulatory reform initiative was by no means a complete failure. The president signed several important across-the-board pieces of regulatory reform legislation. The Unfunded Mandates Reform Act had the potential to transform congressional consideration of future protective legislation. Although the agencies already drafted extensive [31 ELR 11261] regulatory analyses for major rules, the prospect of judicial review of failures to draft such documents ensured that the agencies would err on the side of overpreparation. The Small Business Regulatory Enforcement Fairness Act and the Congressional Review Act had real deregulatory bite.¹⁸¹ The Congressional Review Act was invoked for the first time in early 2001, when Congress passed and President Bush signed a controversial joint resolution rescinding the Occupational Safety and Health Administration's (OSHA's) ergonomics standard.¹⁸²

Congress also enacted substantive amendments to the SDWA that assigned prominent roles to risk assessment and cost-benefit analysis.¹⁸³ A few other relatively minor bills were enacted as riders to appropriations bills and similar legislation. The CAA's requirement that automobiles in heavily polluted areas undergo enhanced inspection and maintenance was modified to take away EPA's authority to insist that the inspections be undertaken on a centralized basis.¹⁸⁴ A rider to the FY 1997 appropriations bill reinstated an EPA policy limiting the liability of banks for Superfund cleanups.¹⁸⁵ Congress also passed a separate bill amending the Resource Conservation and Recovery Act to exempt the recycling of nickel-cadmium batteries and the phase out of mercury batteries from EPA's stringent "hazardous waste" disposal requirements.¹⁸⁶ Yet, these riders at best represented relatively inconsequential victories for the regulatory reformers.

The regulatory reformers did not deliver on their promise to ram substantive changes to existing environmental legislation down the throats of the defenders of the regulatory state. One of the two statutes most frequently cited as examples of extreme overprotection (the Delaney Clause) was repealed in the context of pesticides, but the regime that replaced it was characterized by environmental groups as "a good environmental law."¹⁸⁷ Radical amendments to the CWA were passed by the House, but did not get out of committee in the Senate, and other direct assaults did not even make it to the floor of the House. A bold attempt to "reshape the federal government" through the appropriations process foundered on a presidential veto. Agency budgets became stagnant, but no important regulatory agency was "zeroed out."¹⁸⁸

An Overly Ambitious and Excessively Radical Agenda

The regulatory reform movement failed for many reasons related to the nature of the movement's radical reform agenda. First, the rhetoric of the revolution was too harsh for a generally tolerant American public. As the leader of the disloyal opposition during the 103d Congress, Newt Gingrich had been the champion of the mean-spirited negative sound bite. He practiced using words like "pathetic," "bizarre," and "sick" to describe those with whom he disagreed.¹⁸⁹ Language that was acceptable for a maverick, however, was not appropriate for a leader. In the wake of the tragic Oklahoma City bombing and the attention that it focused on right-wing extremism, it did not take much ill-tempered vitriol on prime time TV to turn off ordinary citizens. The leadership's rhetoric was especially damaging when directed toward environmental protections, because environmental groups were quick to rebut outlandish assertions.¹⁹⁰

Second, the "disorganized revolution" was too unfocused and opportunistic. When omnibus regulatory reform legislation predictably bogged down in the Senate, the radical reformers quickly shifted gears to pursue substantive reform through the appropriations process. This proved to be a strategic blunder, because it allowed their opponents to argue that important questions of science and regulatory policy should not be "decided by a bunch of politicians based on which special interest got to them last."¹⁹¹ The opponents were especially successful in focusing attention on the 17 antienvironmental riders attached to an EPA funding bill, and the negative public reaction was sufficiently strong to embolden President Clinton to veto the entire appropriations bill.

Third, the regulatory reform agenda displayed a contempt for government that did not reflect the overall public mood. The FY 1996 budget battle was a fiasco for the reformers because they had arrogantly assumed that the country could easily tolerate a federal government shutdown. The public quickly discovered that while government was often bureaucratic and sometimes needlessly burdensome, it also provided essential services and protections that American society could ill-afford to lose. Far more effectively than the rhetoric of liberal Democrats and public interest groups, the government shutdown clarified in the public mind the image of the reformers as irresponsible extremists.

Fourth, the House leadership waited far too long to heed the warnings of Republican moderates, many of whom were from states that were either heavily polluted or dependent upon tourism for economic well-being. The party of Theodore Roosevelt was also the party of many young suburban parents who held strong views about environmental protection and the preservation of public lands.¹⁹²

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Poor Strategic Choices

The "disorganized revolution" tried to accomplish too much too quickly. The House leadership hoped that a blitzkrieg assault on the regulatory state would keep the opposition off balance and provide an early "window of opportunity" to accomplish the Contract With America's very ambitious goals.¹⁹³ This strategy left little time for considered deliberation in committee hearings and markup sessions. In the first few weeks of the 104th Congress, committee chairpersons frequently provided lengthy bills to minority staffers less than 24 hours prior to scheduled markup sessions.¹⁹⁴ In addition to provoking cries of outrage from angry House Democrats, the hurried approach provided ammunition for the revolution's opponents in the Senate where the assault could be characterized as an irresponsible rush to "gut" environmental protections. One Republican consultant later complained that "we spent too much time legislating and not enough time politicking."¹⁹⁵

At the same time, the regulatory reformers relied so heavily upon the financial and in-kind help of corporate lobbyists that the revolution could easily be characterized as a "sellout" to corporate America.¹⁹⁶ The press reported that House Republican Conference Chairman John Boehner (R-Ohio) met with selected industry lobbyists every Thursday to plot legislative strategy because, in his words, they "shared common principles about what the appropriate role of the federal government is."¹⁹⁷ An attorney for the Natural Resources Defense Council charged that "the big industrial polluters are contributing money to the Republican Party in a big way … [and] they have been getting what they pay for."¹⁹⁸ The revelations that the Gingrich revolutionaries were using their newly acquired majority status to demand millions in campaign contributions and that corporate lobbyists were rewriting the health and environmental laws helped undermine the regulatory reform movement's public image.¹⁹⁹

The revolutionaries' general unwillingness to compromise also helped doom the revolution.²⁰⁰ As is typical of revolutions, the leaders competed among themselves to offer the most extreme critiques of federal regulation and the most radical proposals for regulatory relief. And, as in past revolutions, the lieutenants ultimately turned on their less radical leaders. When Gingrich finally struck a compromise with the Clinton Administration to end the FY 1996 budget stalemate (far too late, in retrospect, to affect the dramatic swing of public opinion away from the Republican position), freshman Rep. David McIntosh publicly criticized the Speaker.²⁰¹ The charge of extremism easily stuck to someone who found Newt Gingrich to be too conciliatory.

The regulatory reformers in the House failed to appreciate the capacity of the Senate for cooling legislative fervor.²⁰² The moderate chairman of the Senate Environment and Public Works Committee announced early on that "some of the regulatory reform measures that have been introduced this year go way too far."²⁰³ Given the general support for regulatory reform legislation among centrist Senate Democrats, it is hard to imagine that more regulatory reform legislation would not have been forthcoming if the House leadership had made a genuine effort to come up with less radical approaches and had attempted to coordinate legislative strategy with the Senate leadership. By ignoring the moderating impulses of the Senate, the House leadership ensured that its radical agenda had no chance to succeed.²⁰⁴

Finally, presidential politics played a prominent role in the Senate's consideration of regulatory reform legislation. Senator Dole's rather sudden commitment to regulatory reform most likely stemmed from his desire to keep Phil Gramm from using it as a "wedge issue" in the upcoming presidential primaries. By becoming the Senate champion for omnibus regulatory reform legislation, Senator Dole shored up his support in the business community and enhanced his appeal to the conservative wing of the Republican party. At the same time, the White House pressed centrist Democrats who were otherwise inclined to support regulatory reform legislation not to vote for a "Dole" bill that would allow the next Republican presidential candidate to point to an impressive legislative success during the 1996 presidential campaign.

External Forces

External forces also contributed to the movement's failure to achieve more than modest reforms. Seeing in the regulatory reformers a common enemy, labor unions renewed old acquaintances with environmental groups, and they adopted a united front on environmental and occupational safety and health issues. In addition to round-the-clock lobbying efforts to stiffen the spines of their friends on Capitol Hill and in the White House, they realized that they would "have to take the fight outside the Beltway if [they] were going to be successful in the long haul."²⁰⁵ Focus group polling commissioned by environmental groups indicated that most people were unaware of the nature and magnitude of the assaults that the regulatory reformers had in mind and opposed them when informed about their likely impacts. The job for the unions and public interest groups was to make the public aware of the assaults and their consequences.²⁰⁶

The national print and television media found the debates over regulatory reform newsworthy and allowed the environmental groups to take their educational efforts directly to [31 ELR 11263] the public. They were also aided by popular comic strips and political cartoons that (sometimes unfairly) portrayed Republicans as rapacious despoilers of the environment. In addition, unions and public interest groups took a page from corporate America's playbook and launched aggressive issue advertising campaigns to take their message directly to the public.²⁰⁷ The national groups also rediscovered their grassroots. An umbrella group called Citizens for Sensible Safeguards used "e-mail, direct mail, faxes and the Internet … to get people stirred up."²⁰⁸ Finally, public interest groups demonstrated a willingness to compromise that contrasted sharply with the "damn the torpedoes" posture of the regulatory reformers.

Clinton Administration Opposition

The Clinton Administration accomplished its unlikely defense of the regulatory state by cautiously choosing its battles, patiently waiting until public opinion had solidified on particular issues before signaling its intentions, firmly exercising the president's veto power against unpopular initiatives, and (perhaps most importantly) carefully co-opting the Republican agenda whenever it was possible to do so consistent with the Administration's "reinventionist" principles. President Clinton's finest hour in his dealings with the 104th Congress came during the battle of the budget when he resisted Republican efforts to load the budget and debt limitation packages with antiregulatory riders. Against the advice of some of his staff, President Clinton correctly gambled that the public would blame the Republicans for the train wreck that shut down the government.

EPA Administrator Browner assumed a high profile in the debates over regulation as an outspoken advocate of existing environmental protection programs, and she tirelessly resisted both substantive changes to the pollution control statutes and cuts to her agency's budget.²⁰⁹ Not surprisingly, some of the most ardent deregulators in Congress were not pleased with Browner's less-than-deferential posture. Rep. David McIntosh attempted to silence her by launching a specious congressional investigation into EPA's public information activities in the hope of proving that Browner had violated prohibitions on lobbying by government employees.²¹⁰ Browner denied the "shocking" accusations that she had violated criminal laws and vowed that she would not be deterred from informing the public about the likely effects of pending regulatory reform legislation.²¹¹

More Than the Public Wanted

In the final analysis, the most important reason for the revolution's failure was that it lacked the support of the American public. Believing their own public relations machine, the regulatory reformers initially thought they had a mandate to dismantle the federal government. Yet, polls taken both before and after the 1994 elections demonstrated beyond cavil that ordinary citizens did not believe that the government was forcing American companies to spend too much on pollution control.²¹² For example, a Time/CNN poll conducted in January 1995, while the assault on regulation was at its zenith, found that 88% of Americans considered environmental protection either "one of the most important" of the country's problems or "very important," while only 22% believed that environmental regulations had "gone too far."²¹³ In short, the revolutionaries seriously underestimated the degree to which the American public was committed to environmental protection.

How EPA Evolved to Meet the Challenge

At the same time that the Administration was battling the radical regulatory reformers in the public arena, it was successfully co-opting them in the agencies. President Clinton may have concluded that "the era of big government is over," but he made it clear that the best way to end big government was not to abolish existing programs. His solution was to "reinvent" them so that they would meet public needs more effectively with fewer unnecessary intrusions into private markets. Administrator Browner frequently stressed the salutary effects of the many "reinvention" initiatives that EPA was undertaking in response to Vice President Gore's rejuvenated National Performance Review.²¹⁴

The only debate, as the Administration successfully framed the issue, was over how far and how fast the reforms should go. It was hard to maintain that American industry was facing a crisis of overregulation when the Administration was (to all visible appearances) doing everything that it could to reduce regulatory burdens and increase regulatory flexibility. By seizing the initiative and rapidly implementing (with great public fanfare) several modest reforms, the Administration was able to paint the regulatory reformers as extremists. Radical reformers unwittingly played their assigned roles in this strategy by pressing reforms, like the moratorium on regulations and draconian amendments to the CAA and the CWA, that were in fact extreme by any objective measure.

At a reinvention kickoff event held on February 21, 1995, President Clinton announced that he had ordered all agencies to complete a page-by-page comprehensive review of every existing rule by June 1, 1995, eliminate all unnecessary rules, and suggest necessary legislation when the agency lacked authority to eliminate obsolete regulations. The President further ordered the agencies to make greater use of "performance-based" requirements, as opposed to "command-and-control" rules. Finally, he ordered the agencies to rely more heavily upon consensus-based standard setting, rather than adversarial rulemaking initiatives.²¹⁵ [31 ELR 11264] Less than a month later, the president ordered EPA to undertake 25 specific regulatory reforms, including reducing paperwork by 25%, providing incentives through reduced penalties for self-disclosed violations, and making greater use of market-based regulations. On April 21, the president ordered all federal agencies to come up with plans by June 15 for modifying penalties levied upon small businesses and for reducing paperwork burdens on small entities. The agencies were to give consideration to good-faith efforts by small companies to comply with the law in assessing penalties and to waive civil penalties up to 100% if the company agreed to spend the money on compliance efforts.²¹⁶

On June 12, President Clinton reported to the White House Conference on Small Business that the page-by-page review of regulations had yielded proposals for eliminating 20% and modifying 35% of the regulations in the 140,000-page Code of Federal Regulations. He explained that the 16,000 pages of eliminated regulations would weigh 39 pounds and would stretch 5 miles if put end-to-end, facts that must have given great comfort to law librarians.²¹⁷ EPA alone was responsible for more than 250 of the eliminated regulations.²¹⁸ In fact, nearly all of the deleted regulations were obsolete or otherwise uncontroversial and were therefore having virtually no impact on the regulated industries. Nevertheless, at an event staged to mark the second anniversary of the National Performance Review, Vice President Gore announced that the Administration's reinvention efforts had produced a "turn around" in government regulation that was "a national success of the first order."²¹⁹

EPA responded especially vigorously to President Clinton's almost frenetic efforts to co-opt the revolution. In remarks commemorating the 25th Earth Day in April 1995, Administrator Browner urged EPA employees "to reinvent a system of strong public health and environmental protections … with common-sense, cost-effective measures that produce the very best environmental results for the least cost." This would require "a firm commitment to public health and environmental goals — combined with flexibility, innovation, and creativity in how we achieve those goals."²²⁰ The Agency therefore initiated several regulatory reform initiatives in the wake of the 1994 elections, including:

. a Science To Achieve Results (STAR) program that encouraged 5,000 graduate students in science to compete for 100 research fellowships at EPA²²¹;

. expanded use of risk assessment and cost-benefit analysis in agency rulemaking²²²;

. a small business enforcement program that allowed small entities a six-month grace period to fix compliance problems instead of paying a fine²²³; and

. a "one-stop air emissions reporting" program, the goal of which would be "one rule, one permit, one report."²²⁴

The Agency placed renewed emphasis on its already existing Common Sense Initiative in which it attempted to take a multimedia, "sector-based" approach to addressing the environmental problems of six important industries.²²⁵ It created a 25-member Common Sense Initiative Council, composed of stakeholders from business, state and local government, labor, and environmental groups, to craft strategies for identifying and implementing "cleaner" and "cheaper" approaches to pollution control in the automobile manufacturing, computer and electronics, iron and steel, metal finishing, petroleum refining, and printing industries.²²⁶ Although the Agency terminated the initiative in December 1998, as it became clear that it "would not be the vehicle for gaining far-reaching change to EPA's rules and regulations,"²²⁷ some relatively modest changes were made in the Agency's approach to about one-half of the six industries, and the idea underlying the initiative "transitioned" from a special project into a "mainstreamed, sector-based approach to environmental protection."²²⁸

EPA's most ambitious attempt to co-opt the regulatory reformers was Project XL, a major initiative in which the Agency agreed to select 50 industry-nominated facility-specific projects for achieving environmental improvement with greater flexibility through negotiated agreements.²²⁹ The facility would agree to implement controls or risk reduction processes that went beyond existing requirements for one polluting aspect of its operations in return for less stringent controls and/or reporting requirements for another aspect.²³⁰ EPA would be willing to waive or modify existing requirements in return for industry commitments to invest some of the cost savings in greater environmental improvements.²³¹ Among other things, Project XL contemplated multipollutant, intraplant effluent trading for the purpose of meeting a plant's overall effluent reduction obligations.²³²

[31 ELR 11265]

Although Project XL still remains in effect, reviews have been decidedly mixed.²³³ Proponents have observed that the agreements allow sources to adopt innovative and less expensive pollution reduction technologies.²³⁴ Because state agencies and local citizen groups are allowed to participate in the negotiations, proponents believe that Project XL yields agreements that reflect local environmental concerns.²³⁵ More skeptical observers, however, accuse EPA of allowing risk-enhancing flexibility in exchange for sometimes vague promises of future environmental benefits that may or may not offset the immediate environmental losses.²³⁶ They worry that scientific understanding of the toxic and disruptive effects of pollutants on humans and ecosystems are not sufficiently well understood to permit the complex interpollutant trades that have characterized a few Project XL projects.²³⁷ Critics also argue that public participation has frequently been "cursory and ineffective,"²³⁸ and they note that national environmental groups, who typically have more resources and expertise than local groups, are often not invited to participate in the site-specific negotiations.²³⁹ Perhaps because of its controversial nature or perhaps because environmental group opposition has kept EPA from "giving away the store," Project XL has resulted in very few industry agreements, and industry participation is declining.²⁴⁰

Although EPA had begun the process of coming up with innovative approaches to pollution control prior to the 104th Congress,²⁴¹ it is clear that the immediate threat to EPA's legislative authority and to its regulatory discretion stimulated the Agency to renewed vigor. Labor and environmental groups complained bitterly that the Administration's new initiatives were undercutting important health and environmental protections,²⁴² but the criticism put President Clinton exactly where he wanted to be — squarely in the middle. To the electorate, Clinton appeared to be eschewing the extremes at both ends of the spectrum and adopting moderate policies that offered the possibility for gradual change away from an overly burdensome bureaucracy to flexible regulatory programs that got results.

Conclusion

The radical regulatory reformers of the 104th Congress did not succeed in transforming federal environmental regulation. To the surprise of many observers, EPA survived the 104th Congress with nearly all of its environmental programs intact. Yet the EPA that emerged from a near-death experience in 1996 was a much more cautious institution and one much more receptive to more "flexible" solutions to environmental problems. It is fair to say that EPA did not resume a generally proactive stance again until the last two months of the Clinton Administration, when it issued a number of "midnight" regulations that forced the incoming Bush Administration into the unwelcome position of allowing stringent regulations to go into effect or to take the political heat for rescinding existing environmental protections. The future of environmental regulation in a pro-business Republican Administration with a Republican majority in the House and a polarized Senate remains unclear.

It is safe to predict, however, that the debate over federal environmental regulation is far from over. This is because, when divorced from raw self-interest, the debate reflects a legitimate conflict in shared values. We all strongly desire a clean environment, safe products, and healthy workplaces, but we also desire the comforts and conveniences of a modern post-industrial economy. We also know that we often cannot pursue one of these goals without to some extent sacrificing the other. How we go about resolving the inevitable political conflicts that arise out of this basic fact of life will say much about the kind of country that we will be in the 21st century.

1. Cindy Skrzycki, In Regulatory Assault, GOP Has a Lot to Be Tankful for, WASH. POST, Dec. 2, 1994, at D1.

2. Hill Republicans Promise Regulatory Revolution, WASH POST, Jan. 4, 1995, at A1.

3. Repeal Most Federal Environmental Laws, Conservatives Urge Congress, PESTICIDE & TOXIC CHEM. NEWS, Feb. 15, 1995, at 1.

4. GOP Freshmen Enter, Ready for Their Exits, N.Y. TIMES, Dec. 11, 1994, at A34.

5. DAN BALZ & RONALD BROWNSTEIN, STORMING THE GATES: PROTEST POLITICS AND THE REPUBLICAN REVIVAL 143 (1996)

6. Id. at 123-26.

7. Gingrich Letters Offer Insight on GOPAC's Goals, WASH. POST, Oct. 2, 1995, at A1.

8. CONTRACT WITH AMERICA: THE BOLD PLAN BY REP. NEWT GINGRICH, REP. DICK ARMEY, AND THE HOUSE REPUBLICANS TO CHANGE THE NATION 7 (Ed Gillespie & Bob Shellhas eds., 1995).

9. Id. at 11.

10. DAVID MARANISS & MICHAEL WEISSKOPF, TELL NEWT TO SHUT UP (1996).

11. Nancy Gibbs, Where Power Goes, TIME, July 17, 1995, at 21.

12. See LINDA KILLIAN, THE FRESHMEN (1998); Jerry Gray, Grading GOP Freshmen in House: High in Ambition, Low in Humility, N.Y. TIMES, Apr. 11, 1995, at A20.

13. Major Garrett, Beyond the Contract, MOTHER JONES, Mar. 1995, at 54; Congressman Finds Regulatory Potholes on a Trek From Chicago to Muncie, CHI. TRIB., Mar. 5, 1995, at 2; House Republicans Go to War on Regulation, WASH. POST, Jan. 20, 1995, at A19.

14. ELIZABETH DREW, SHOWDOWN 276 (1996).

15. Richard E. Cohen, The New Regime, 27 NAT'L J. 1525 (1995); Richard E. Cohen, The Transformers, 27 NAT'L J. 528 (1995); Jason DeParle, Rant, Listen, Exploit, Learn, Scare, Help, Manipulate, Lead, N.Y. TIMES, Jan. 28, 1996 (Magazine), at 36.

16. DREW, supra note 14, at 105.

17. Katzen Pledges to Work With GOP on Regulatory Bills, Not Freeze, Daily Env't Rep. (BNA), Dec. 7, 1994, at A-1.

18. Clinton Plans to Wield Veto Pen in a Strategy of "Contrast Politics" Against the GOP Congress, WALL ST. J., Jan. 6, 1995, at A14.

19. William J. Clinton, Address Before a Joint Session of the Congress on the State of the Union, 31 WEEKLY COMP. PRES. DOC. 96 (Jan. 30, 1995).

20. Clinton Issues Directive to Agencies to Review Regulations and Report by June 1, 24 O.S.H. Rep. (BNA) 1968 (1995).

21. Press Release, Elaine Kamark, Statement, White House Press Briefing on Regulatory Reform (Mar. 16, 1995).

22. Clinton Issues Regulatory Directive, Opposes GOP Rules Moratorium, Contract, 24 O.S.H. Rep. (BNA) 1862 (1995).

23. Bill Lambrecht, GOP, Environmentalists Gird for "Contract" Dispute, ST. LOUIS POST-DISPATCH, Dec. 25, 1994, at 18.

24. Coalition Launches Broad Campaign to Stall Republican Deregulatory Effort, Mgmt. Briefing (BNA), Feb. 16, 1995, at 1.

25. Republicans Swinging Ax at Regulators, Regulations, ST. LOUIS POST-DISPATCH, Feb. 5, 1995, at 6B.

26. See H.R. REP. NO. 104-39, pt. 1, at app. (1995).

27. MARANISS & WEISSKOPF, supra note 10, at 18-19.

28. H.R. 450, 104th Cong. (1995).

29. H.R. 450 [original version], 104th Cong. § 3 (1995) (moratorium); id. § 6(3) (rulemaking definition); id. § 4 (court-ordered deadlines); id. § 5(a)(2) (waiver for emergencies); id. § 6(3)(B) (exemption for deregulatory rules); id. § 6(4) (exemption for granting licenses, etc.).

30. Press Release, Browner Comments in White House Briefing (Mar. 16, 1995).

31. House Vote for Regulatory Moratorium Presages Passage of Cost-Benefits Bill, WALL ST. J., Feb. 27, 1995, at B10.

32. 141 CONG. REC. H2209-10 (daily ed. Feb. 24, 1995) (House vote); MARANISS & WEISSKOPF, supra note 10, at 21.

33. S. 219 [original version], 104th Cong. (1995); House, Senate GOP Determined to Freeze Most Regulations, Daily Rep. for Executives (BNA), Feb. 23, 1995, at 1 (referencing Dole support).

34. Moratorium Bills Take "Meat Axe" Approach to Regulations, Chafee Says, Banking Rep. (BNA), Mar. 6, 1995, at 1 (Chafee "meat axe" quote); Chafee Critical of House GOP Regulatory Moratorium, CongressDaily (Nat'l J.), Feb. 27, 1995 (Chafee "dust settles" quote).

35. Businesses at Odds Over Pulling the Plug on Regulations, WASH. POST, Mar. 24, 1995, at F1.

36. S. REP. NO. 104-15 (1995).

37. Senate GOP Considering "Legislative Veto" as Alternative to Regulatory Moratorium, 24 O.S.H. Rep. (BNA) 2111 (Mar. 22, 1995).

38. Nickles, Reid Unveil Plan for 45-Day Regulatory Review, CongressDaily (Nat'l J.), Mar. 21, 1995.

39. Senate to Consider Less Sweeping Bill on Regulatory Moratorium Than House, WALL ST. J., Mar. 22, 1995, at A2.

40. Senate Votes to "Go Slow" on Curb of Regulations, ST. LOUIS POST-DISPATCH, Mar. 30, 1995, at 1.

41. Senate Democrats Blast House Move to Stick to Moratorium on Agency Rules, 24 O.S.H. Rep. 2502 (May 24, 1995).

42. Pub. L. No. 104-121, tit. II, subtit. E (1996).

43. CONTRACT WITH AMERICA, supra note 8, at 11.

44. Unfunded Mandates Top Cities' List of Problems, WASH. POST, Jan. 19, 1995, at A13.

45. DREW, supra note 14, at 86.

46. CONTRACT WITH AMERICA, supra note 8, at 133.

47. Unfunded Mandates Bills Unveiled in House, Senate, CongressDaily (Nat'l J.), Jan. 5, 1995.

48. S. 1 [original version], 104th Cong. § 101 (1995); H.R. 5 [original version], 104th Cong. §§ 423-426 (1995).

49. S. 1 [original version] 104th Cong. § 202 (1995); H.R. 5 [original version] 104th Cong. § 202 (1995).

50. See, e.g., Testimony of John A. Georges, Business Roundtable, before the Senate Committee on Governmental Affairs, 104th Cong., 1st Sess. (Feb. 8, 1995) (EPA drinking water testing rule).

51. Letter from Carol Browner to John D. Dingell and George E. Brown Jr. (Feb. 28, 1995), reprinted in 141 CONG. REC. H2333 (1995).

52. The President's Address: "We Heard America Shouting," N.Y. TIMES, Jan. 25, 1995, at A17.

53. At Ceremony, Clinton Signs Bill Banning Unfunded Mandates, ST. LOUIS POST-DISPATCH, Mar. 23, 1995, at A5.

54. Pub. L. No. 104-4, §§ 101, 202, 203 205, 208, 401 (1995).

55. See Allied Local & Reg'l Mfrs. Caucus v. EPA, 215 F.3d 61, 30 ELR 20723 (D.C. Cir. 2000) (unfunded mandates analysis not required because rule will not have $ 100 million impact on private sector); American Petroleum Inst. v. EPA, 175 F.3d 1027, 1043 (D.C. Cir. 1999) (unfunded mandates analysis irrelevant because EPA may not consider costs in promulgating national primary ambient air quality standards).

56. H.R. 9 [original version], 104th Cong. §§ 3201, 3103(b), 3104, 3105, 7004 (1995).

57. S. 343 [original version], 104th Cong. §§ 621, 624, 634, 635, 636, 637 (1995).

58. Id. §§ 622, 623, 638.

59. Id. § 625.

60. Statement of Carol M. Browner, Before the Senate Committee on Environment and Public Works, 104th Cong. (Mar. 22, 1995); Statement of Carol M. Browner, Before the Senate Committee on Governmental Affairs, 104th Cong. (Mar. 8, 1995).

61. H.R. REP. NO. 104-33, pt. 1 (1995).

62. EPA System of Environmental Protections Needs Reform, Not Repeal, Browner Says, Daily Env't Rep. (BNA), Feb. 15, 1995, at A-5.

63. Sabrina Eaton, Backlash Against the GOP's "Contract," PLAIN DEALER, Mar. 5, 1995, at 1.

64. Tom Kenworthy, House Votes to Limit Health, Safety Rules, WASH. POST, Mar. 1, 1995, at A1.

65. Richard Stengel & Eric Pooley, Masters of the Message, TIME, Nov. 18, 1996, at 76; Decisions on Gifts Outlined by Dole, N.Y. TIMES, Sept. 2, 1995, at A1 (detailing corporate contributions).

66. Peter H. Stone, Grass-Roots Goliath, 28 NAT'L J. 1529 (1996); Phillip L. Zweig & Michael Schroeder, Bob Dole's Oil-Patch Pals, BUS. WK., Apr. 1, 1996, at 60.

67. Margaret Kriz, Risky Business, 27 NAT'L J. 418 (1995).

68. Gareth Cook, Laws for Sale, WASH. MONTHLY, July 1995, at 44.

69. Rules Changes Adopted in Bipartisan Votes, WASH. POST, Jan. 5, 1995, at A1.

70. Dole Bill Reported by Judiciary Panel Would Limit Judicial Review, Delaney Clause, 24 O.S.H. Rep. (BNA) 2114 (Mar. 22, 1995).

71. Hatch Floating New Reg Reform Proposal for Markup, CongressDaily (Nat'l J.), Mar. 31, 1995.

72. S. 343 [Senate Judiciary Committee version], 104th Cong. § 709 (1995); Georgia-Pacific to Pay $ 35 Million in Fines, Improvements for 11 Southeastern Facilities, 27 Env't Rep. (BNA) 622 (July 26, 1996) (Georgia-Pacific fine); Wood Products Company Helps Write a Law to Derail an EPA Inquiry, N.Y. TIMES, Apr. 26, 1995, at A18.

73. Hatch Denies Impropriety in Briefing by Attorneys on Regulatory Legislation, Daily Rep. for Executives (BNA), Apr. 6, 1995 (Public Citizen quote). See also Business Leaves the Lobby and Sits at Congress' Table, N.Y. TIMES, Mar. 31, 1995, at A1.

74. Fight Over Regulatory Bill to Test Dole's Clout, WASH. POST, July 10, 1995, at A9.

75. 141 CONG. REC. S10400 (daily ed. July 20, 1995) (third cloture vote); id. S10221 (daily ed. July 18, 1995) (second cloture vote); id. S10135 (daily ed. July 17, 1995) (first cloture vote).

76. Third Reg Reform Cloture Attempt Defeated in Senate, CongressDaily (Nat'l J.), July 21, 1995.

77. Id.

78. EPA Administrator Optimistic Despite Congressional Climate, Daily Env't Rep. (BNA), July 28, 1995, at A-1.

79. H.R. 9 [original version], 104th Cong. § 9002 (1995).

80. David Helvarg, The Anti-Enviro Connection: Paramilitary Groups and Anti-Environmentalists, NATION, May 22, 1995, at 722 (quoting Jim Burling of the Pacific Legal Foundation).

81. Testimony of John R. Schmidt, Associate Attorney General, Department of Justice, Before the House Committee on the Judiciary (Feb. 10, 1995). See also Testimony of Joseph N. De Raismes, President Elect, National Institute for Municipal Law Officers, Before the House Commmittee on Resources (June 13, 1995); Testimony of Richard L. Russman, National Conference of State Legislatures, Before the House Committee on the Judiciary (Feb. 10, 1995).

82. Property Rights Measure Would Require Compensation, 39 O.S.H. Rep. (BNA) 1936 (1995).

83. Chairman of Senate Environment Panel Criticizes Two Plans Supported by GOP, WALL ST. J., Feb. 1, 1995, at B2.

84. Gramm Vows Fervent Push for Property Rights Bill, CongressDaily (Nat'l J.), Mar. 17, 1995.

85. Dole Revises Bill to Require Payment for Loss of Property Value Due to Rules, WALL ST. J., Mar. 23, 1995, at A2.

86. Helvarg, supra note 80, at 722.

87. Many in Poll Would Pay More to Protect Environment, ARIZ. REPUBLIC, May 15, 1995, at A1.

88. This Land Is My Land …; Citizens, Agencies Square Off Over Property Rights, ST. LOUIS POST-DISPATCH, July 9, 1995, at 1.

89. Bill Requiring Compensation to Landowners Passed by Judiciary Panel, Cleared for Floor, 26 Env't Rep. (BNA) 1582 (Jan. 5, 1996).

90. Margaret Kriz, Taking Issue, 28 NAT'L J. 1200 (1996).

91. Better Targeting of Funds Necessary Under Clean Water Act. Lawmaker Says, 25 Env't Rep. (BNA) 1917 (Feb. 10, 1995).

92. H.R. 961 [original version], 104th Cong. §§ 101(e), 303(n) (1995).

93. Id. §§ 308, 321.

94. Id. §§ 802-804.

95. DREW, supra note 14, at 116; H.R. REP. NO. 104-112, at 184-85 (1995).

96. H.R. 961 [final committee version], 104th Cong. §§ 303(c); 323(a), (g); 324(a), (b), (f) (1995).

97. Id. § 312.

98. House Transportation Committee Excludes EPA, Environmental Groups From Panels Revising CWA, 25 Env't Rep. (BNA) 2298 (Mar. 17, 1995).

99. Testimony of Robert Perciasepe, U.S. EPA, Before the Subcommittee on Water Resources of the House Committee on Transportation, Water Resources, and Environment (Feb. 21, 1995).

100. Id.

101. House Approves CWA Rewrite Measure; Wetlands Regulation Would Be Revised, 26 Env't Rep. (BNA) 211 (May 19, 1995).

102. DREW, supra note 14, at 226.

103. Id.

104. Senate Panel Seeks Views on CWA Rewrite, Bill Outline Expected in August, Aide Says, Daily Env't Rep. (BNA), June 30, 1995, at A-1.

105. GOP Seeking to Cut EPA Budget by One-Third, Eliminate CEQ, Limit Environmental Programs, 26 Env't Rep. (BNA) 549 (July 14, 1995).

106. Id.

107. See infra notes 132-33 and accompanying text.

108. Chafee Indicates Preference for Narrow Bill as Municipal Concerns Aired at Senate Hearing, 26 Env't Rep. (BNA) 1565 (Dec. 22, 1995) (discussing Senate hearing).

109. CWA Rewrite Could Be Eclipsed, 26 Env't Rep. (BNA) 1895 (Feb. 2, 1996).

110. Republican Budget Proposal Would Slash $ 1.3 Billion From Drinking Water Loan Fund, 25 Env't Rep. (BNA) 2116 (Mar. 3, 1995).

111. With First Veto, Clinton Rejects Budget-Cut Bill, N.Y. TIMES, June 8, 1995, at A1.

112. Clinton Signs Bill Cutting $ 1.3 Billion in EPA Spending Approved for Fiscal 1995, 26 Env't Rep. (BNA) 659 (Aug. 4, 1995).

113. President Approves Rescissions Measure, WASH. POST, July 28, 1995, at A16.

114. Clinton's Budget Falls Well Short of GOP Demands, N.Y. TIMES, Feb. 3, 1995, at A1.

115. HUD and EPA Biggest Losers in House Panel's Spending Bill, WASH. POST, July 11, 1995, at A6.

116. House Appropriations Panel Backs EPA Cuts, 26 Env't Rep. (BNA) 593 (July 21, 1995).

117. 141 CONG. REC. H7933 (daily ed. July 28, 1995) (remarks of Rep. Stokes).

118. Id. H7954 (daily ed. July 28, 1995).

119. DREW, supra note 14, at 264.

120. Id. at 266.

121. 141 CONG. REC. H8049 (daily ed. July 28, 1995) (re-vote); In a Moment of Crisis, The Speaker Persuades, WASH. POST, Aug. 13, 1995, at A1.

122. Proposed Budget Cut, Senate Rules Bill Attacked by Browner as "Concerted" Effort, 26 Env't Rep. (BNA) 594 (July 21, 1995).

123. Browner Dons Gloves for EPA, CHRISTIAN SCI. MONITOR, Aug. 8, 1995, at 1.

124. Id.

125. Id.

126. Clinton Lashes Out at Congress, Citing Pollution and Guns, N.Y. TIMES, Aug. 2, 1995, at A1.

127. Clinton Acts to Curb GOP Attack on EPA, L.A. TIMES, Aug. 9, 1995, at A5.

128. Senate Panel Quickly Completes Action on Spending Bills, N.Y. TIMES, Sept. 16, 1995, at A10.

129. 141 CONG. REC. S14177, S14180 (daily ed. Sept. 25, 1995).

130. Id. S14365 (daily ed. Sept. 27, 1995); Senate Approves $ 5.66 Billion for EPA, 26 Env't Rep. (BNA) 971 (Sept. 29, 1995).

131. House Abandons Riders on EPA Money Bill, 26 Env't Rep. (BNA) 1176 (Nov. 10, 1995).

132. Conferees Approve EPA Funding of $ 5.7 Billion; Temporary Spending, Reconciliation Bills Passed, 26 Env't Rep. (BNA) 1265 (Nov. 24, 1995).

133. Agency Furloughs Nonessential Workers as Government Shuts Down in Budget Dispute, 26 Env't Rep. (BNA) 1210 (Nov. 17, 1995); Workers Go Home; Talks Go Nowhere, WASH. POST, Nov. 15, 1995, at A1.

134. White House: Alleged Gingrich Snub No Reason to Shut Down U.S., ATLANTA J. & CONST., Nov. 16, 1995, at A3.

135. As Speaker Backpedals, Democrats Pile on, WASH. POST, Nov. 17, 1995, at A1.

136. See, e.g., His Pompousness, ST. LOUIS POST-DISPATCH, Nov. 17, 1995, at D6.

137. Congress Leaves for Recess With Budget Unresolved, WASH. POST, Dec. 23, 1995, at A1.

138. Congress Approves Interim Spending; Measure Sends $ 219 Million to District, WASH. POST, Mar. 30, 1996, at A1; Budget Dispute Having Dire Consequences at Agency, Browner Tells Senate Committee, 26 Env't Rep. (BNA) 1864 (Feb. 2, 1996).

139. 141 CONG. REC. H3921 (daily ed. Apr. 25, 1996) (riders survive); With New Budget, Domestic Spending Is Cut $ 24 Million, N.Y. TIMES, Apr. 27, 1996, at A10.

140. Fred Barnes, The Executive: The Rise and Rise of Newt Gingrich, NEW REPUBLIC, May 22, 1995, at 25.

141. Poll Spotlights GOP Environment Debate, CHEM. WK., Jan. 31, 1996, at 57 (DiVall poll); David Helvarg, Congress Plans an American Clearcut, 261 NATION 699 (1995) (Lunta poll: Wirthin poll).

142. Republicans to Push for Scaled-Back Version of "Contract" Agenda, WASH. POST, Mar. 3, 1996, at A7.

143. 142 CONG. REC. S2321 (daily ed. Mar. 19, 1996) (Senate vote); Passage Expected on Bill Addressing Regulatory Concerns of Small Businesses, Daily Rep. for Executives (BNA), Mar. 18, 1996 (Clinton statement).

144. 142 CONG. REC. S3153 (daily ed. Mar. 20, 1996).

145. Clinton Signs Small Business Bill to Strengthen Regulatory Flexibility Act, 25 O.S.H. Rep. (BNA) 1531 (1996).

146. Pub. L. No. 104-121 §§ 212-213, 222-223, 231, 242, 244 (1996).

147. Environmental Defense Fund v. EPA, 548 F.2d 998, 7 ELR 20012 (D.C. Cir. 1976).

148. See NATIONAL RESEARCH COUNCIL, REGULATING PESTICIDES IN FOOD: THE DELANEY PARADOX (1987).

149. Les v. Reilly, 968 F.2d 985, 22 ELR 21303 (9th Cir. 1992).

150. Federal Judge Approves Settlement of Suit Over EPA's Enforcement of Delaney Clause, 18 Chem. Reg. Rep. (BNA) 1638 (1995).

151. Industry Group Urges Immediate, Stand-Alone Delaney Clause Reform in 1995, 18 Chem. Reg. Rep. (BNA) 1391 (1994).

152. Goals for Clean Environment Achievable by 2005, EPA Says, 18 Chem. Reg. Rep. (BNA) 1676 (1995) (quoting Ms. Juanita Duggan, National Food Processors Association).

153. Peter Fairley, Compromise Limits EPA Budget Cut, Removes House Riders, CHEM. WK., Nov. 22, 1995, at 17.

154. H.R. 1627 [original version], 104th Cong. (1995).

155. Markup of Delaney Repeal Bill Likely in April or May, Aide Says, 19 Chem. Reg. Rep. (BNA) 1402 (1996).

156. House Whip Insists Delaney Clause Reform Will Be Brought Up by Republicans for Vote, 20 Chem. Reg. Rep. (BNA) 212 (1996).

157. The Food Quality Protection Act of 1996 (HR 1627), Summary of Major Provisions in House Compromise Bill, 20 Chem. Reg. Rep. (BNA) 624 (1996); Bipartisan Agreement Reached Regarding Chemicals in Foods, N.Y. TIMES, July 17, 1996, at A16.

158. Pub. L. No. 104-170, 110 Stat. 1489 (1996).

159. Pesticide Measure Advances in House, Without Rancor, N.Y. TIMES, July 18, 1996, at A20.

160. Compromise House Bill Draws Broad Support From White House, Environmentalists, Industry, 20 Chem. Reg. Rep. (BNA) 604 (1996).

161. President Clinton Signs Into Law Legislation on Delaney Clause Repeal, 20 Chem. Reg. Rep. (BNA) 676 (1996).

162. 42 U.S.C. § 300g-1(b) [repealed].

163. See generally William E. Cox, Evolution of the Safe Drinking Water Act: A Search for Effective Quality Assurance Strategies and Workable Concepts of Federalism, 21 WM. & MARY ENVTL. L. & POL'Y REV. 69 (1997).

164. 59 Fed. Reg. 38668 (July 29, 1994) (description of Cryptosporidium outbreaks).

165. SDWA Reauthorization Called Priority; Chafee Says Bill Expected Soon in Senate, Daily Env't Rep. (BNA), Mar. 31, 1995, at A-1.

166. See Testimony of Gurnie Gunter, Director, Association of Metropolitan Water Agencies, Before the Senate Committee on Environment and Public Works (Oct. 19, 1995); Testimony of Benjamin Nelson and George Voinovich, National Governors Association, Before the Senate Committee on Environment and Public Works (Oct. 19, 1995).

167. S. 1316 [original version], 104th Cong. (1995).

168. See Scott Alan Lewis, Trouble on Tap, SIERRA, July 1995, at 54.

169. Id.

170. Parties Join Forces for Senate SDWA, CHEM. WK., Oct. 18, 1995, at 14.

171. Testimony of Carol Browner, Administrator, U.S. EPA, Before the Senate Committee on Environment and Public Works (Oct. 19, 1995).

172. 141 CONG. REC. S17774 (daily ed. Nov. 29, 1995); Senate Committee Approves SDWA Bill With Minor Changes, 26 Env't Rep. (BNA) 1122 (Oct. 27, 1995).

173. House Commerce Committee Speeds Up Work on Safe Drinking Water Reauthorization Bill, 26 Env't Rep. (BNA) 2091 (Mar. 8, 1996).

174. Agreement Said Close on House SDWA Bill After Impasse on Disinfection Byproducts, 27 Env't Rep. (BNA) 266 (May 17, 1996).

175. House Votes to Strengthen Safe Drinking Water Act, WASH. POST, June 26, 1996, at A2.

176. House-Senate Drinking Water Bill Deal May Be Far Off, CongressDaily (Nat'l J.), July 23, 1996 (delicate compromise); House Passes Bipartisan Rewrite Bill, 27 Env't Rep. (BNA) 498 (June 28, 1996) (quoting Eric Olsen, Natural Resources Defense Council) (environmental group threat).

177. Clinton Signs a Bill on Water Contaminants, N.Y. TIMES, Aug. 7, 1996, at A11.

178. House GOP Begins Drive to Slash Social Spending, L.A. TIMES, July 28, 1995, at A1.

179. Tod Lindberg, Ready for Round Two?, POL'Y REV., Sept./Oct. 1996, at 38.

180. General Newt, ORANGE COUNTY REG., Dec. 30, 1995, at G1.

181. See Angela Antonelli, How the 104th Congress Cut Red Tape and Returned Common Sense to Regulation, in REVIEWING THE REVOLUTION: CONSERVATIVE SUCCESSES IN THE 104TH CONGRESS 29 (1996); William A. Niskanen, Triumphs & Traps: What's Ahead for Conservatives, POL'Y REV., Jan./Feb. 1997, at 36.

182. S.J. Res. 6, 107th Cong. (2001).

183. Pub. L. No. 104-208, div. A, tit. I § 101(a), tit. II, § 2503(b), Sept. 30, 1996; 110 Stat. 3009-41, 3009-464 (1996).

184. Pub. L. No. 104-59, tit. III, § 348, Nov. 28, 1995, 109 Stat. 617 (1995).

185. Pub. L. No. 104-287, § 6(j)(1), Oct. 11, 1996, 110 Stat. 3400 (1996).

186. The Land Disposal Program Flexibility Act, Pub. L. No. 104-119, Mar. 26, 1996, 110 Stat. 833 (1996).

187. President Clinton Signs Into Law Legislation on Delaney Clause Repeal, 20 Chem. Reg. Rep. (BNA) 676 (1996) (quoting A1 Meyerhoff, Natural Resources Defense Council).

188. Rock Blunts Scissors, and Agencies Withstand Cutters, WASH. POST, Oct. 18, 1996, at F1; Chastened GOP Leaders Drop Ideological Battles, WASH. POST, Aug. 4, 1996, at A1.

189. See DREW, supra note 14, at 45.

190. EPA Says It Has Solved Problems Gingrich Cited, AUSTIN AM.-STATESMAN, Feb. 19, 1995, at A3.

191. 141 CONG. REC. H8241 (daily ed. Aug. 2, 1995) (remarks of Rep. Obey).

192. Moderate Republicans Stall Dilution of Environmental Laws, HOUS. CHRON., Oct. 27, 1995, at A15; Sherwood Boehlert, Moderates: Stay "Green," Avoid Extremism, NEWSDAY, Sept. 12, 1995, at A31.

193. DREW, supra note 14, at 100.

194. Statement of George E. Brown Jr., Before the Senate Committee on Rules (Feb. 23, 1995).

195. Matthew Rees, Too Much Too Soon, WKLY. STANDARD, Nov. 18, 1996, at 26.

196. See Special Interests Are Feasting at the Congressional Trough, WALL ST. J., July 27, 1995, at A11.

197. Peter H. Stone, Follow the Leaders, 27 NAT'L J. 1670 (1995) (Bochner quote).

198. The Remaking of Environmental Law, PLAIN DEALER, Nov. 29, 1995, at A1.

199. Nancy Gibbs & Karen Tumulty, Master of the House, TIME, Dec. 25, 1995; Speaker and His Directors Make the Cash Flow Right, WASH. POST, Nov. 27, 1995, at A1.

200. Divided GOP Falters on Environmental Agenda, WASH. POST, Nov. 24, 1995, at A1.

201. DeParle, supra note 15.

202. Conference Panels Cool GOP Revolution on Hill, WASH. POST, May 28, 1995, at A8.

203. Congressional Republicans Take Aim at an Extensive List of Environmental Statutes, N.Y. TIMES, Feb. 22, 1995, at A14.

204. He's the Green Movement's Last Great Hope in a Hostile Congress, L.A. TIMES, Nov. 10, 1995, at E8.

205. Eliza Newlin Carney, Air Strikes, 28 NAT'L J. 1313 (1996).

206. See J. William Futrell, A Cloudy Crystal Ball for Environmental Progress, BUS. & SOC'Y REV., Sept. 22, 1995, at 33.

207. Environmental Concerns Giving Democrats a Boost, Activists Say, CHI. TRIB., Nov. 4, 1996, at 19 (Sierra Club campaign); Environmental Groups Target Candidates, WASH. POST, Oct. 29, 1996, at A10 (League of Conservation Voters campaign); Unions Mobilize on GOP Agenda, 27 NAT'L J. 1044 (1996) (union campaign).

208. Environmental Groups Launch Counterattack After Losses on Hill, WASH. POST, Aug. 19, 1995, at A6.

209. Margaret Kriz, The Environment: Goal Line Stand, 27 NAT'L J. 2343 (1995).

210. EPA Chiefls Accused of Lobbying, N.Y. TIMES, Mar. 4, 1995, at A8.

211. Chief of EPA Says She Didn't Illegally Lobby, N.Y. TIMES, Mar. 5, 1995, at A15.

212. See Rena I. Steinzor, The Reauthorization of Superfund: Can the Deal of the Century Be Saved?, 25 ELR 10016, 10016 n.4 (Jan. 1995).

213. Congressional Chain-Saw Massacre, TIME, Feb. 27, 1995, at 58.

214. EPA Chief Calls for Clear Goals, Flexibility, PLAIN DEALER, Jan. 13, 1995, at A10; Carol M. Browner, The Earth Is in Your Hands, EPA J., Jan./Mar. 1995, at 4.

215. Bill Clinton, Remarks by the President at Regulatory Reform Event, U.S. Newswire (Feb. 21, 1995); see supra note 20.

216. Memorandum from President Clinton on Regulatory Reform: Waiver of Penalties and Reduction of Reports Released by White House, Apr. 21, 1995, reprinted in 24 O.S.H. Rep. (BNA) 2316 (Apr. 26, 1995).

217. Bill Clinton, Remarks by the President to the White House Conference on Small Business (June 12, 1995).

218. Hundreds of "Legally Obsolete" Regulations Covering Air, Water, Waste Deleted by Agency, 26 Env't Rep. (BNA) 518 (July 7, 1995).

219. Al Gore, President and Vice President Make Remarks at Event Marking Second Anniversary of National Performance Review, Washington, D.C. (Sept. 7, 1995).

220. Browner, supra note 214, at 4.

221. Id.

222. Id.

223. Browner Unveils Interim Policy to Waive, Reduce Penalties for Small Businesses, Chem. Reg. Daily (BNA), June 15, 1995, at A-1; Browner, supra note 214.

224. Browner, supra note 214.

225. Id. See ROBERT KERR ET AL., ANALYSIS AND EVALUATION OF THE EPA COMMON SENSE INITIATIVE (1999).

226. Advisory Group Briefed on Efforts to Redirect Environmental Policy, 19 Chem. Reg. Rep. (BNA) 224 (1995).

227. KERR ET AL., supra note 225, at ii.

228. Letter to Common Sense Initiative Stakeholders from Lisa Lund, Deputy Associate Administrator, Office of Reinvention Programs, EPA (July 29, 1999). See OFFICE OF POLICY, ECONOMICS, AND INNOVATION, U.S. EPA, EPA SECTOR PROGRAM PLAN 2001-2005 (2000).

229. See Richard B. Stewart, A New Generation of Environmental Regulation?, 29 CAP. U. L. REV. 21 (2001); Rena I. Steinzor, Regulatory Reinvention and Project XL: Does the Emperor Have Any Clothes?, 26 ELR 10527 (Oct. 1996).

230. See David A. Dana, The New "Contractarian" Paradigm in Environmental Regulation, 2000 U. ILL. L. REV. 35, 40-41.

231. Proposals Sought From Regulated Entities for Pilot Projects Under EPA's "Project XL," 26 Env't Rep. (BNA) 255 (May 26, 1995). See Stewart, supra note 229, at 65-66.

232. Clinton Package Sets Pilot Program to Lift Rules Off Those Who Exceed Standards, 18 Chem. Reg. Rep. (BNA) 1779 (1995).

233. See Dana, supra note 230, at 42.

234. Stewart, supra note 229, at 65-66.

235. Id. at 66-67.

236. Dana, supra note 230, at 41.

237. See Bradford C. Mank, The Environmental Protection Agency's Project XL and Other Regulatory Reform Initiatives: The Need for Legislative Authorization, 25 ECOLOGY L.Q. 1, 59-60 (1998).

238. Steinzor, supra note 229, at 10528.

239. See Stewart, supra note 229, at 67; Mank, supra note 237, at 60; Steinzor, supra note 229, at 10536 n.50.

240. See Stewart, supra note 229, at 67.

241. See Mank, supra note 237, at 13-17.

242. COSH Groups Urge OSHA to Rethink "Ill-Advised" Initiatives, Penalty Cuts, 25 O.S.H. Rep. (BNA) 339 (1995).