Sherry Boehlert

Mr. BOEHLERT

Mr. BOEHLERT. Let me stress to my colleague from Louisiana that I am fully supportive of risk assessment and cost-benefit analysis. Let us make that very clear at the outset. But if the agency involved could not make the certification required under H.R. 1022, that agency would have to report to Congress, and the People's House would make the ultimate determination, not some bureaucrat in the bowels of some building downtown. The People's House, the Congress.

Mr. BOEHLERT. Mr. Chairman, will the gentleman yield?

Mr. BOEHLERT. I would point out if the rule the gentleman is advocating were applicable 25 years ago, we would not have had the progress we have had with lead in gasoline.

Mr. BOEHLERT. Mr. Chairman, will the gentleman yield?

Mr. BOEHLERT. Mr. Chairman, I thank my chairman for bringing this up, but I want to point out that if the agency cannot certify all of the things that are required in H.R. 1022, then the agency has to come back to the Congress and the Congress, the people's representative body, would make the determination.

Mr. BOEHLERT. Mr. Chairman, will the gentleman yield?

Mr. BOEHLERT. Mr. Chairman, I would like to point out at the outset, this amendment has bipartisan support and is strongly endorsed by every environmental and consumer advocate group that is identified with this legislation. That is critically important. H.R. 1022 makes regulations that are being issued pursuant to existing laws subject to risk and cost-benefit analysis. I agree with the authors of H.R. 1022 that these analyses should be done. By conducting the analysis outlined in H.R. 1022, agencies will be assessing regulations in a manner which should lead to more reasonable regulations, and that is something we all want, more reasonable regulations. However, H.R. 1022 carries the use of risk and cost-benefit analysis one step too far. Under this bill, critically important health and safety regulations could be stopped if one of the many elaborate analyses required under this measure could not be certified. This means that existing statutes debated and approved by Congress could be, in effect, gutted because some administrative bureaucrat could not certify, for example, that the regulations was the most flexible regulation option. Existing law would be superseded by the supermandate language of H.R. 1022. Let me read this language. It appears on page 29 of the bill, lines 18 through 23. Nothwithstanding any other provision of Federal law, the decision criteria of subsection (a) shall supplement and, to the extent there is a conflict, supersede the decision criteria for rulemaking otherwise applicable under the statute pursuant to which the rule is promulgated. What my amendment would do, Mr. Chairman, is ensure that risk assessments and cost-benefit analyses are done. However, when there is a conflict between a regulation arising from legislation debated and approved by this Congress and an assessment done by some bureaucrat, the head of the relevant agency will report the conflict to Congress. Congress, the people's elected body, will then examine the conflict and, where appropriate, amend the statute giving rise to the regulation. The U.S. Congress, not some nameless, faceless bureaucrat, will decide our Nation's health, environment and safety policies. I would like to now read the amendment that the gentleman from Louisiana [Mr. Hayes] and I are offering. Section 1, Rule of Construction. Nothing in this Act shall be construed to modify any statutory standard or requirement or to alter any statutory or judicial deadline. No failure or inability of an agency to make the certifications required under this section shall be construed to bar an agency from acting, or to authorize an agency to fail to act, under other statutory authorities. Section 2. Failure to Certify. In the event that the agency head cannot make any certification required under this section, the agency head shall report to Congress that such certification cannot be made and shall include a statement of the reasons therefor in such report and publish such statement together with the final rule. Mr. Chairman, this amendment has broad bipartisan support, and for good reason. It provides for risk assessment to be used in a manner that improves our laws, not gut them on an ad hoc basis. We support taking a hard look and revising where warranted existing health, safety and environmental standards. But the way to accomplish this is through a statute-by-statute examination, not through a shotgun approach that will likely do more damage than good to the American people. I urge my colleagues to join the bipartisan coalition led by the gentleman from Louisiana [Mr. Hayes] and myself is assuring that risk assessments are used effectively. I urge support of the Boehlert-Hayes amendment. We have a very, very important responsibility in this House. Let me stress, every single environmental agency that has examined this proposed legislation and this amendment is supportive of this effort as is every consumer advocate group.

Mr. BOEHLERT. I would like to point out to the chief deputy whip that this year Congress is going to consider the reauthorization of the Clean Water Act, the Safe Drinking Water Act, the Superfund legislation, the Endangered Species Act. That is the time for this Congress to make the changes during that reauthorizing process.

Mr. BOEHLERT. Mr. Chairman, if I may ask the gentleman to yield one more time, well, I think then we have got some area of common ground, some agreement. We want the Congress, the elected Representatives of the people, to be making the decisions, the important decisions, not some nameless, faceless bureaucrat.

Mr. BOEHLERT. Mr. Chairman, will the gentleman yield?

Mr. BOEHLERT. Mr. Chairman, I demand a recorded vote.

Mr. BOEHLERT

Mr. BOEHLERT. Mr. Chairman, let me stress, I want to add this for about the 16th time, the rule is reviewable, but the risk assessment process is not. that is what we want to have accomplished as a result of what we are doing today.

Mr. BOEHLERT. Mr. Chairman, will the gentleman from Pennsylvania yield?

Mr. BOEHLERT. I agree 100 percent, the words are exactly as the gentleman read them, but his interpretation is wrong.

Mr. BOEHLERT. Mr. Chairman, there again we both agree we are reading the same thing, but if the gentleman says what I am saying is wrong often enough, that does not mean he is right. The fact of the matter is we want final review of the regulation, not the risk assessment.

Mr. BOEHLERT. Mr. Chairman, we are talking about the final rule on the risk assessment, not the regulation, which is what we want to challenge, the final regulation if it does not pass the common-sense test.

Mr. BOEHLERT. Mr. Chairman, will the gentleman yield?

Mr. BOEHLERT. That is where we are, and the gentleman makes my point, and he makes it in a very glib way, I might add. The fact of the matter is the gentleman wants to challenge the risk assessment process every step of the way. We are saying we will challenge the final rule if it does not make sense, it is not cost-effective, and if it does not protect women, infants and children, we will check that.

Mr. BOEHLERT. Mr. Chairman, I rise in support of the amendment. Mr. Chairman, today's debate on judicial review is really a debate about Congress abrogating its responsibilities to the courts and, in so doing creating what can only be characterized, as my coauthor of this amendment has described, a full employment opportunity for lawyers. As we did with such litigation nightmares like Superfund, we are creating potential for litigation that will choke our Nation's courtrooms and cost the American taxpayers and the Federal Government millions of dollars. The Congressional Budget Office has estimated that the implementation of this legislation will cost in the neighborhood of $250 million. By keeping the current judicial review language that is found in H.R. 1022 in place, our society will likely spend far more than this on unnecessary litigation. To date billions of dollars have been spent on Superfund litigation, more than has actually been spent on cleaning up Superfund sites. We do not want to duplicate that. If we do not adopt the Roemer-Boehlert amendment, we will end up spending more of the taxpayers' dollars and industry's resources on litigation than we are spending on doing risk assessments--once again, shades of Superfund. And, incidentally, who is going to pick up the tab? It is going to be the consumer who will pay the ultimate price. [[Page H2324]] Under current law the Administrative Procedures Act provides the regulated community with a clear and often-used tool for seeking relief from poorly crafted regulations. If an agency has overstepped its bounds in writing regulations, this Congress through oversight committees and the control of every nickel that an agency receives has at its fingertips the ability to ensure that agencies promulgate reasonable regulations. But through H.R. 1022 we are saying that we cannot control, or will not make the effort to control, Federal agencies that are disregarding congressional intent. We are failing to do our job, so we are going to pass the burden of being vigilant on to the courts and the American people. I do not think that is the appropriate way to proceed. Such an approach will clog Federal courtrooms, costing taxpayers millions of dollars and delaying actions on other activities that are of real importance to the safety of the American people. H.R. 1022 would create over 50 new specific procedures that will be reviewable by the courts. This legislation was introduced to reduce burdens and relieve gridlock. We certainly want to reduce burdens and relieve gridlock, but the judicial review provisions here fly in the face of these very worthy goals. The Roemer-Boehlert amendment, while maintaining current judicial review procedures for final agency actions, holds that risk assessments guidelines under this act are not reviewable. Without this clarification, H.R. 1022 can be manipulated by those with a vested interest in a particular regulatory proposal to impede the regulatory process. Regulations, many of which are critical to the health and safety of every American, could be delayed for years in a quagmire of endless litigation. Judges should be engaged in making legal decisions and scientists should be making decisions on issues of science. A vote for the Roemer-Boehlert amendment preserves those roles and ensures that our courtrooms do not become a forum for regulatory delay. The American people want timely, well-reasoned, cost-effective decisions on how regulations should be used. Dumping the burden of sorting out what regulations should go forward on the courts achieves none of these goals. The need to prevent H.R. 1022 from generating mountains of frivolous litigation is an issue important to Members on both sides of the aisle, as evidenced by a ``Dear Colleague'' on this issue sent out by the gentleman from Louisiana [Mr. Hayes], myself, and 18 other distinguished Members of this body. This was a true bipartisan effort. Mr. Chairman, a vote for the Roemer-Boehlert amendment is a vote to prevent the costly, unnecessary proliferation of litigation that the American people have expressed their unhappiness with. Mr. Chairman, let me close by adding something here that I think is very important. We are always looking for legitimate case studies, examples that we can point to and say, ``This is how it works.'' Let me share this with my colleagues. Had H.R. 9 been in effect 25 years ago, it would have barred one of the most effective environmental health initiatives ever undertaken anywhere--the removal of lead from gasoline.

Mr. BOEHLERT. I would suggest that the substantial evidence test would not have been passed and that is why we would have had the problem today with lead in gasoline, for example. The substantial evidence did not come until after we had the test to prove the point.

Mr. BOEHLERT. The substantial evidence test is, yes, but the substantial evidence test was not applicable 25 years ago and had this legislation that you are proposing right now been applicable 25 years ago, we would not have had that standard.

Mr. BOEHLERT. I understand. It is very clever to sort of give a story. Everybody thinks we are just heartless if you are for the Roemer-Boehlert amendment, that you are against women, infants, and children and everything under the Sun. It simply is not so. We are for the American people. What we are trying to prevent is endless litigation. We want the ability to challenge rules that do not pass the commonsense test. But we do not want to challenge the process. Some bureaucrat screws up on a bad day and go in and challenge the whole rule simply because something happens during the risk-assessment process, that we do not find acceptable, and that is what we are saying.

Mr. BOEHLERT. The story told is simply not so. The General Accounting Office concluded, The loss of homes during the California fire was not related, not related to the prohibition of disking in areas inhabited by the Stephens kangaroo rat. I can go on at great length, and it is more than we would care to hear about on that story.

Mr. BOEHLERT. Mr. Chairman, if the gentlewoman will yield further, what we want is we want the Administrative Procedures Act to apply to the final rule. We want to have a system where a final rule which is wacko, which does not make any sense, does not pass the commonsense test, we want to have a way to challenge that. But we do not want to have a way--all through this risk assessment process, if an agency comes up with a rule that makes sense, that addresses public health and public concerns, we do not want to be able to throw out that rule because somewhere along the process somebody did not fill out a form on page 12, line 3, section 2.

Mr. BOEHLERT. Mr. Chairman, will the gentleman yield?