Environmental Legislation in the Ninety-Ninth Congress

Over the past six years, one source of frustration to both environmentalist and business interests has been the inability of Congress to reauthorize most of this country's environmental laws. While failure to authorize does not mean the laws themselves expire, authority to spend money in pursuit of their goals does. In order to keep our major environmental statutes functioning at all, Congress has increasingly resorted to stopgap funding measures on a year-to-year basis—hardly the stuff on which careful environmental planning and management decisions can be based.

The ninety-ninth Congress may have broken this pattern. It passed, and President Reagan signed, significant amendments reauthorizing the Safe Drinking Water Act and the Comprehensive Emergency Response, Compensation, and Liability Act (better known as the "Superfund" law). In addition, in late 1986 Congress passed and sent to President Reagan amendments reauthorizing the Clean Water Act, only to see them vetoed because of his objections to the $18 billion the bill provided for sewage treatment grants. Finally, Congress came within an eyelash of passing sweeping amendments to the Federal Insecticide, Fungicide, and Rodenticide Act (or FIFRA), the nation's basic statute under which pesticides and herbicides are regulated. Enactment of the latter two bills would have left only the Toxic Substances Control Act and the Clean Air Act, the latter perhaps the most important of all the environmental laws, to be addressed by the 100th Congress in 1987 (the Resource Conservation and Recovery Act [RCRA] was addressed several years ago). Since the Clean Water Act was introduced and passed nearly unanimously in the first moments of the new Congress, and will surely become law veto or not, reform of our clean air and toxic substance laws will have to compete for attention in the new Congress with FIFRA, which will be debated once again.

Congress made substantial revisions in the Safe Drinking Water Act and the Superfund while reauthorizing them. In the case of the former, a Congress impatient with the slow pace of drinking water regulation to date ordered the Environmental Protection Agency (EPA) to set maximum contaminant levels for 83 toxic substances showing up in household tap water, and to do so in three years. (EPA has set standards for only about 20 chemicals since 1974, when the Safe Drinking Water Act was first passed.)

The Superfund, which is used to clean up abandoned hazardous waste dump sites, came in for even more dramatic changes, too numerous to recount here. But major changes included an expansion in the size of the fund from $1.6 billion over the last five years to $8.5 billion for the next five; an expansion of the tax base used to help "stock" the fund to include other industries besides petroleum and chemicals; the establishment of a time table for clean-up actions by the EPA, as well as clean-up standards to which the agency is supposed to adhere; a requirement that health effects studies be conducted in the vicinity of some hazardous waste sites; and an expansion in the rear of the law to include leaking underground gasoline and chemical storage tanks. These and other amendments to the Superfund law are the most sweeping ever made to an environmental statute, with the possible exception of the 1984 changes in RCRA.

Were it not for last-minute obstacles, FIFRA would also have been substantially revised. For instance, the bill called for greatly accelerated testing of many of the ingredients in the pesticides already registered for sale in the United States. It would have levied a fee on pesticide manufacturers to cover part of the cost of this increased testing. It would also have extended the life of patents on pesticides to compensate manufacturers for the time required to test them before EPA registration and subsequent sale.

Almost as important as these proposed changes was the process giving rise to them. The proposals were the result of nearly two years of negotiations between virtually all the major environmental groups, ninety pesticide manufacturers, and agri-business interests working together as the Campaign for Pesticide Reform. Unfortunately, this delicate compromise foundered on the issues of the liability of farmers for pesticide damages and the right of states to set stricter limits than the federal EPA on pesticide residues in drinking water.

Evaluating the changes

The ninety-ninth Congress deserves great credit for addressing in a serious way these major environmental laws. Temporary authorizations are no way to run a regulatory railroad. But what about the substantive changes made? Do they represent improvements in the laws, or will they create more problems than they will solve? Here the evidence is mixed.

In several respects, the changes made in the Superfund and drinking water acts continue a pattern first set in the 1984 amendments to RCRA: they cast Congress in the role of direct regulator rather than its traditional role of establishing broad policy goals and delegating to EPA the job of writing the rules and regulations required to bring those goals to life. Thus EPA was given specific timetables by Congress for setting drinking water standards and for initiating cleanups at Superfund sites, in much the same way the the agency was prodded by Congress in 1984 RCRA amendments into making very quick decisions about which substances can be safely disposed of in landfills. The near-miss FIFRA amendments were similar in this regard: they established a specific timetable against which the testing of ingredients had to take place.

It is not hard to figure out why Congress has become more involved in the specifics of regulation; clearly, this has grown out of frustration with the slow, sometimes glacial, pace at which the EPA has moved. But it is arguable whether this is really the fault of the agency. First, in any rule-making the EPA is bound by the ground rules established in the Administrative Procedures Act. While these do much to give all potentially affected parties a fair say in federal rulemaking, they are to speed what fudge cake is to diet. It is not obvious that citizens would be willing to give up these procedural safeguards for faster regulatory action.

Second, unfortunate though it may be, the fact is that determining the toxicity of drinking water contaminants or chemical wastes in landfills is no simple matter. Clinical, toxicological, and epidemiological studies can often give conflicting signals, or provide no information at all, about the effects on human populations of very low doses. Since many chemical contaminants are the byproducts of useful activities—pesticide applications, chemical production and use, the chlorination of drinking water—there are real costs to precipitate actions. Similarly, it takes time to ascertain what substances are present at a dump site, determine what risks they pose to health and the environment, and devise an appropriate clean-up strategy. Thus it is not at all clear that the nation will be better served by an EPA bent on cranking out thirty drinking water standards per year or rushing through 100 site cleanups.

Timetables aside, one may also question the priorities implied by the recent amendments. For instance, while quantitative assessments of risks are fraught with great uncertainty, those that have been completed suggest that there is relatively little risk to human health associated with Superfund sites in spite of the $8.5 billion earmarked to deal with them. It is virtually indisputable that this money would save many, many more lives if devoted to the mitigation of radon risks in homes or the protection of field workers exposed to pesticides. Yet neither of the latter problems have the political cachet of the Superfund program. Because of a paucity of data on human exposures, it is more difficult to speculate about the threat posed by drinking water contaminants. Yet here, too, preliminary analyses suggest that these risks pale in comparison to those from, say, sulfates and other fine particulates in the air. Thus, the recent amendments may force the EPA to concern itself with less urgent rather than more pressing environmental health threats.

Finally, consider the amendments to the Clean Water Act that soon will become law. Among other things, they call for the first serious effort to address pollution from so-called nonpoint sources, including agricultural fields and feedlots, urban streets and sewers, and other diffuse sources (as opposed, say, to large industrial facilities). This is a much-needed redirection in the act since the nonpoint sources contribute a large share of the pollution in many areas, compared to the more heavily regulated industrial plants and municipal sewage treatment facilities. Nevertheless, the changes are less satisfactory in several respects. First, there are no mandatory controls on nonpoint sources called for in the amendments; rather, they merely direct states to conduct planning studies concerning such controls. Yet it is clearly time to move beyond exhortation and planning to the outright control of major nonpoint sources.

Also, the bill calls for $400 million to "assist" in state nonpoint pollution control efforts. If such assistance blossoms into a subsidy program of the kind created to finance sewage treatment plants over the last fifteen years, it would be unfortunate. The latter program (which subsidizes the construction but not the operation and maintenance of waste treatment plants) has biased localities toward constructing expensive plants that they sometimes have had trouble operating properly. As a result, the program has had indeterminate effects on water quality in spite of the $30 billion or so that has been spent. This approach must be avoided as nonpoint sources are brought into the regulatory system.

Environmental issues in the 100th Congress

What about the men and women of the 100th Congress? What environmental issues await them? A natural place to start would be resuscitation of the FIFRA effort now that water quality has been addressed. But the changed composition of the Senate may make it hard to assemble the same coalition again.

That leaves the Clean Air Act. Each year since 1980 has been said to be "the" year for reauthorizing and amending it, yet no serious effort has taken place. The major stumbling block to date has been the inability to devise a broadly acceptable plan to control the pollutant precursors to acid rain, for this is the major outstanding issue. Plans that would placate one group or part of the country have infuriated others. Only toward the end of the last session were proponents getting close to a workable proposal. It now appears that a politically successful acid rain amendment will be one that allows affected utility and other sources to select whatever means they wish to meet mandated emissions reductions; addresses sources of nitrogen oxides as well as sulfur oxides; calls for no more than 10 million tons of sulfur oxide removal annually (for beyond that point cost-per-ton-removed increases sharply); and, possibly, provides for some assistance for Midwestern states that will be singled out for substantial emissions reductions. Whether one bill can embrace all these requirements yet avoid other pitfalls remains to be seen.

Because no acid rain bill has come close to passage so far, little thought has been given to other clean air issues that require attention. Yet, upon closer inspection, some of these may prove as vexing as acid rain. For instance, what will be done about those parts of the country where the national ambient air quality standards are still being violated as the 1987 deadline draws near? These regions can be granted extensions, of course, but this would paper over the fact that some of them—Southern California, for instance—will not be in compliance with the current air quality standards in this millennium.

And what about the very slow pace of regulation of the so-called hazardous air pollutants under Section 112 of the Clean Air Act? Will Congress act as it has in recent legislation and establish a strict timetable against which the EPA must regulate? If so, are we prepared for the inevitable court challenges that will follow hurry-up rulemaking?

Finally, can Congress muster the political will to address that most unfortunate provision in the Clean Air Act concerning newly constructed, coal-fired power plants? In effect, Section 111 of the act mandates that any such plant must reduce its emissions of sulfur dioxide through the installation of expensive chemical devices known as scrubbers. Yet study after study has shown that many of these plants could meet the same emissions standard by burning lower-sulfur coal rather that installing scrubbers, while saving the nation literally billions of dollars annually. Correcting this egregious mistake will probably require the creation of a program to compensate the miners of high-sulfur coal who would suffer if fuel switching were permitted. Nevertheless, given the relatively small number of miners likely to be affected and the substantial savings that would result from the abandonment of forced scrubbing, such a program is well within the realm of possibility.