Capitol Games

How Congress is using sneaky tactics to weaken the nation's environmental protections

04-01-1996 // Vicki Monks

During the late 1980s, when a series of unexplained illnesses felled livestock on Sue Pope's Midlothian, Texas, ranch, no one made a connection to the cement kiln down the road. Residents had heard that a nearby kiln was burning waste oil as fuel in the production of cement, but, Pope says, nobody thought much of it then. "For the longest time, we just thought that lady luck had stopped smiling on us," she says.

Cattle collapsed with mysterious neurological ailments and had to be destroyed. Calves were born with grotesque deformities, and several of Pope's prized Arabian horses could no longer produce foals. Then, Pope and many of her neighbors began to develop health problems of their own, including cancer, endometriosis, respiratory disease and heart trouble. "In 1991, someone handed me a pamphlet saying that these kilns were burning toxic waste," Pope says. "That's when everything clicked."

The kiln in this small town about 30 miles south of Dallas began supplementing its fuel with toxic waste in 1987. Last year alone it burned 130,000 tons of hazardous waste, mostly paint thinners, solvents and oil-refinery residues. The concerns generated by the kiln carry national implications. Cement kilns across the United States are burning thousands of tons of toxic waste annually and can release dioxins, heavy metals and other pollutants linked with health problems in humans and animals. But the kilns, because they use toxic substances as fuel, have been regulated by interim federal rules that are not as strict as those for commercial hazardous-waste incinerators. Although Texas environmental officials so far have not connected kiln emissions directly to local health problems, some concerns exist.

The Environmental Protection Agency (EPA) has begun a study of the birth defects among local farm animals, and the Texas Health Department is investigating an unusual number of Down's syndrome children born to families living within 10 miles of the kiln. A task force appointed by the chairman of the Texas Air Control Board concluded that regulations on the kilns should be tightened to bring them in line with regulations for toxic-waste incinerators.

The EPA agreed. In 1995, the agency was ready to set final standards, bringing regulations governing the kilns up to the level of those for commercial hazardous-waste incinerators. The proposed rules, the culmination of a decade-long examination, would require kilns to use the best technology available to reduce emissions. But just as those standards were about to become final, along came the 104th Congress, with a new majority elected in 1994.

The 104th Congress set out to undercut a broad range of environmental regulations. One rider on the EPA funding bill aimed to soften the new cement kiln rules and could have exempted some kilns from implementing the new technology-based air-emission controls.

That rider did not sit well with residents living near the cement kiln. "If there had been hearings, if there had been any input from the public, it would be different," says Jim Schermbeck of Downwinders at Risk, a Midlothian citizens group. "But there was no opportunity for the public to participate. It's a backdoor way of getting these kilns off the hook."

The kiln rider illustrates how the current Congress is bending 30 years of environmental laws to serve the needs of industry rather than the needs of the public at large. When the 104th Congress was called to order in January 1995, the new congressional majority set to work implementing House Speaker Newt Gingrich's (R-Georgia) Contract With America. One of the charges abundantly set forth in that document was the deregulating of America--cutting back on the rules and regulations that safeguard the health and safety of Americans at home, outdoors and in the workplace. The main argument advanced for these cutbacks: The regulations were too expense for industry.

Though the Contract With America never explicitly mentioned the environment, the 104th Congress pursued an anti-environmental agenda astonishing in its scope. It included proposals to exempt oil refineries from the regulatory power of the Clean Air Act, speed up logging of dwindling remnants of old-growth forest, eliminate protection for at least 60 percent of remaining wetlands, and prohibit regulations that would limit arsenic, radon and microorganisms in drinking water.

In many cases, Congress never debated these proposals on their merits. Legislators slipped them stealthily into funding bills during committee sessions. These riders--like hitchhikers on a freight train--frequently bore little relationship to the legislative vehicles that carried thfem along. But using the appropriations process in this way helped to avoid messy showdowns over individual proposals and improved chances that otherwise unpopular measures might speed to passage.

The technique also gave Congress some leverage over White House objections. If both houses of Congress load critical funding bills with add-ons, the president must either accept amendments he finds distasteful or veto the entire package and face a shut-down of government services.

A major congressional push on deregulation last year shows how the rider ploy works. The story begins even before the 1994 elections, when Project Relief, an alliance of 350 powerful corporations, organized a campaign reportedly to roll back regulations that its members thought onerous. The group set the stage for its legislation by directing more than $19 million in contributions to congressional campaigns during one election cycle (two years for House members, six for Senators). According to a 1995 study by the Environmental Working Group (EWG), a nonprofit research organization based in Washington, D.C., political action committees funded by Project Relief contributed $87,126 to House Speaker Gingrich and more than $330,000 each to Senate Regulatory Task Force members Kay Bailey Hutchison (R-Texas) and Larry Craig (R-Idaho), all leaders in the regulation-reform movement.

The Project Relief effort seemed to pay off for industry when, in early 1995, the House approved regulatory reform as part of a bill euphemistically titled the Job Creation and Wage Enhancement Act. The bill would have set up a risk-assessment process requiring agencies to prove that benefits of government regulations outweigh potential costs. For instance, EPA would not be allowed to regulate carcinogenic benzene emissions from oil refineries unless the agency could prove that the dollar value of lives saved or health problems avoided is greater than the costs to the oil industry of installing pollution controls. Industry would be allowed to mount legal challenges at any step of the complicated process. Analysts on all sides of the issue acknowledged that this provision could make the initiation of important new public-health protections impossible--which was the ultimate goal, of course.

Reform advocates found smooth sailing in the new House of Representatives but hit stormy weather in the Senate, which was considering its own regulatory-reform legislation. Sponsored by Senate Majority Leader Bob Dole (R-Kansas), the bill included language to repeal the Delaney Clause, a law that since 1958 has prohibited cancer-causing pesticide residues in processed food. The White House Office of Management and Budget estimated that if the Senate version were enacted, the government would have to hire an additional l4,500 employees and spend an additional $3.5 billion yearly to perform the risk-assessment analyses the law required. In the end, opponents launched a filibuster to keep Dole from bringing the bill to a vote. After trying three times unsuccessfully to end the filibuster, Dole finally dropped the bill.

At this point, House Republicans sensed that reforms of the sort they wanted would not make it through the Senate if submitted as direct legislation. So early last November, House members tried an indirect approach, attaching to a critical spending bill a 112-page amendment that was virtually the same regulatory-reform wish list that Project Relief had been pushing. The vehicle for this rider--the debt-ceiling bill--was an essential piece of legislation needed to raise federal debt limits so the government would not default on loans. The Senate passed it, but President Clinton promptly vetoed it because of the House rider.

Congress repeated this pattern again and again, adding policy changes to omnibus budget legislation and to appropriations bills for nearly all government agencies. "Plenty of the attacks on environmental laws took place out in the open, but some of the more extreme measures were never publicly discussed," says Mary Marra, a National Wildlife Federation vice president and national staff director for conservation programs. "There's something wrong when so many important decisions are made behind closed doors. It's an affront to the democratic process."

An embarrassing memo leaked last May revealed that an Endangered Species Act reauthorization bill introduced by Senator Slade Gorton (R-Washington) and designed to undermine the law's authority had been drafted by a coalition representing timber, mining, ranching, oil-and-gas and other businesses. Likewise, Representative Mike Oxley's (R-Ohio) bill revising Superfund contained language nearly identical to sections of a "working document" being promoted by major oil companies.

The New York Times reported last year that Republican leaders were "unapologetic about the access they are affording industry lobbyists," insisting that their alignment with business is little different from Democratic alliances with labor unions and environmental groups. But Marra demurs. "There's a tremendous difference between groups that are working to protect the health and safety of all Americans and industry associations seeking to improve their own profits at the public's expense," she says. "The failure to recognize that distinction is part of what's wrong in this Congress."

The 104th Congress has pursued its agenda even in the face of voter opposition. A wide range of opinion polls shows that a substantial majority of voters--both Republican and Democrat--oppose rolling back environmental protections. In an October TIME/CNN poll, two-thirds of the Republicans surveyed opposed reducing protection for endangered species, and an equal number objected to opening Alaska's Arctic National Wildlife Refuge to oil drilling. A majority of Republicans also expressed opposition to expanded logging, mining and ranching on public lands. The poll found comparable opinions among Democrats.

Similarly, an August Times-Mirror poll reported that 70 percent of Americans believe that pollution laws have not gone far enough, and 61 percent believe air-pollution controls are too weak. Even in the conservative state of Arizona, a majority said they would be willing to pay higher taxes if it meant greater protection for the environment, according to a Northern Arizona University survey.

The reason that many elected officials chose to ignore public opinion: money. According to the Environmental Information Center, a public-interest group, during a single five-year period, Oxley, who attempted to shrink the power of the Superfund law, accepted $321,310 in campaign funds from oil, insurance, waste-management and other companies seeking to reduce their liability for toxic-waste cleanups under Superfund. Another study found that during another five-year period, 54 political action committees representing oil-and-gas interests contributed an average of $77,929 to each senator who later voted to open the Arctic National Wildlife Refuge to drilling.

According to an analysis of Federal Election Commission records conducted by the Washington, D.C., based Public Interest Research Group (PIRG), industries lobbying to weaken the Clean Water Act made campaign contributions in excess of $57 million between 1989 and the 1994 election. The donations came from political action committees (PACs) organized by chemical, pesticide, oil-and-gas, real-estate and agricultural interests. A similar link between donations and votes can be found on measures to relax pesticide restrictions, revoke endangered-species protections and reduce wetlands protection.

In late November, the Federal Election Commission filed suit against the Republican political action committee GOPAC, charging that the organization illegally provided support for Gingrich's 1990 reelection campaign. Gingrich, who headed GOPAC until last May, denies any wrongdoing. Indeed, at a hearing held last fall to explore campaign finance reform, Speaker Gingrich argued that PAC contribution limits should be increased to allow more money to flow into the political process.

This was the political environment in which, last June, Republican budget writers released a list of 62 federal programs they wanted to stop funding. Included were the Endangered Species Act, water- and air-pollution standards and wetlands protection. Although these laws would not be repealed, GOP leaders sought to ensure that no money would be available to carry on the work. While the final budgets sent to President Clinton were not quite so extreme, deep cuts remained in most environmental programs. For example, the House proposed a 34 percent reduction in EPA funds, for instance, included a $560 million cut to the Superfund budget--translating into delays or suspension of toxic-waste cleanups at more than 250 communities in 44 states.

A selection of some of the critical measures with which Congress worked last year shows how some legislators are trying to reconfigure American environmental protection:

  • The Clean Water Act: On May 16, 1995, the House approved legislation that would have allowed greater discharges of industrial pollutants into U.S. waters; waived certain pollution limits for oil-and-gas, pulp-and-paper, mining and other industries; let cities dump more sewage into offshore coastal waters; rolled back controls on polluted runoff; reduced wetland protection; and required taxpayers to compensate landowners blocked from filling or draining wetlands on their property--even if the filling or draining would cause flooding on a neighbor's land.

    A U.S. Army Corps of Engineers analysis concluded last year that under this legislation, more than 90 percent of the wetlands in South Carolina, Georgia and Alabama would lose protection. South Dakota, Nebraska, Wyoming and Florida could lose considerably more than half their wetlands. Even so, the revisions to the 1972 Clean Water Act easily passed the House.

    The measure stalled in the Senate, however, when moderate Republican senator John Chaffee (R-Rhode Island)--who heads the Environment and Public Works Committee, which had jurisdiction over the bill--prevented the revised act from moving forward. To circumvent the Senate's delay, House members simply attached key Clean Water Act revisions as 17 riders on the EPA appropriations bill. Representatives Sherwood Boehlert (R-New York), Louis Stokes (D-Ohio) and other moderates sought to kill the amendments through the ensuing months. Nevertheless, in December an EPA spending bill with a few riders still firmly attached won approval in the House and Senate. President Clinton subsequently vetoed it.

  • Arctic National Wildlife Refuge: Congress sought to open the last pristine stretch of Alaskan arctic coastline--the 100 miles of shore in the Arctic National Wildlife Refuge--to oil-and-gas development by inserting an amendment into the omnibus budget reconciliation bill. Supporters claimed that the oil was needed for national security, but two facts fly in the face of this assertion: Last year, the House voted to lift a 22-year-old ban on the export of oil from Alaska's North Slope, and the Senate inserted a mandate into the energy-appropriations bill to sell 7 million barrels of oil from the nation's Strategic Petroleum Reserve.

    Opening the refuge to drilling has long been opposed by environmentalists because tests suggest that little oil lies under the coastal plain. Moreover, on the refuge issue, the 104th Congress did not have the bulk of U.S. citizens on their side. A poll conducted by Lake Research, Inc. for the Wilderness Society found that voters opposed drilling in the refuge by a margin of four to one. Nevertheless, Congress held firm. But President Clinton vetoed the budget bill on December 6 and promised to veto any other legislation that opens the Arctic National Wildlife Refuge to oil-and-gas development.

  • Endangered Species and Vanishing Ecosystems: In July, President Clinton signed a compromise budget bill that rescinded certain funds that had already been appropriated in the last Congress. The bill helped to shrink government spending, but also included a rider with far-reaching consequences for national forests and endangered species in the Pacific Northwest. This rider waived Endangered Species Act protections and all other environmental laws that might be applied to timber "salvage" operations in the national forests of the Pacific Northwest.

    Amendment supporters argued that the waivers permitted dead and dying trees in national forests to be cleared quickly before they rotted, rendering them commercially useless. But the law defines salvage trees so broadly that it includes even healthy trees that are merely susceptible to disease or insect infestation. "We've been joking that this salvage law only applies to trees that are made of wood," says a U.S. Forest Service biologist in Oregon. "But that's basically true. Even young, healthy stands are subject to disease."

    The salvage-logging rider did not stop there. The legislation also contained direct assaults on endangered species. Tracts of old-growth forest that had been set aside previously as habitat for a threatened bird species, the marbled murrelet, were specifically included in areas to be logged even though the trees were healthy.

    A rewrite of the Endangered Species Act, sponsored by House Resources Committee chairman Don Young (R-Alaska) and Richard Pombo (R-Ccalifornia) and approved by the House Resources Committee, goes even further. It would redefine harming a listed species to mean only direct action against a plant or animal and would exclude losses due to habitat damage. In addition, more amendments designed to cripple enforcement of the act were slipped into other bills. Language on page 633 of the massive budget reconciliation bill would have eliminated a crucial requirement that federal agencies take endangered species into account before going forward with major plans such as designating areas to be opened to grazing or logging. According to John Kostyack, legal counsel in NWF's Conservation Division, this provision, later dropped, would have allowed irreversible damage to endangered species before alternatives to destructive federal plans were even considered.

    Under an amendment to the Farm Bill introduced by Representative Wayne Allard (R-Colorado), the U.S. Forest Service would be forbidden to develop management plans designed to protect biological diversity. The Forest Service could act only when "the continued existence" of a species would be jeopardized, meaning that the health of forest species could not be considered in assessment of logging plans unless those species are on the brink of extinction.

    Riders on the Interior Department appropriations bill would stop designation of critical habitat for listed species, exempt federal land-management plans from Endangered Species Act requirements and impose a moratorium on new listings of endangered species. That means that efforts to take action on the 200 candidates for listing would come to a standstill. And all of this is in addition to a 24 percent overall funding cut for endangered-species conservation.

    Some of these proposals died before they became law. And, in the end, there was a sense that citizen voices could make a difference with this Congress. The American people began to make it clear that they would not stand for undoing important environmental protections established during the past three decades.

    In Texas, the Downwinders group turned up the heat on the two congressional representatives who promoted the cement kiln rider--Democrat Jim Chapman, whose Texas district includes a hazardous-waste processor, and Republican Joe L. Barton, who represents Midlothian. Sue Pope confronted Barton at a town meeting, generating local press coverage of the heretofore little-noticed kiln amendment, and the group followed up with a barrage of faxes and letters asking every Texas Congressman to oppose the measure. The rider was among measures that died when Clinton, in part responding to citizen opposition to environmental deregulation, vetoed the EPA funding bill.

  • Other measures Congress proposed:
  1. The Senate included a rider in the EPA funding bill that would end protection of groundwater from biological contaminants, such as the cryptosporidium bacteria that killed 104 people and sickened nearly half a million in Milwaukee in 1993 and that has prompted boil-water alerts in 35 states since then.
  2. A Senate amendment to the Interior Department appropriations bill called for increased logging in Alaska's Tongass National Forest, the largest remaining expanse of old-growth forest in the United States.

    A House amendment to the Transportation funding bill banned stricter fuel-efficiency standards for automobiles.
  3. A bill sponsored by House Majority Whip Tom DeLay (R-Texas) would repeal Clean Air Act rules designed to phase out production of ozone-depleting chlorofluorocarbons.
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