Mike Crapo

Mr. CRAPO

Mr. CRAPO. That is right. Let me clarifly one point. We have to understand, in this debate, the difference between protections under the U.S. Constitution and what this statute seeks to do. The Supreme Court has made it clear that the constitutional protections relate to what amounts to a full taking of the property. And when the Federal agencies do not fully take your property but simply regulate what you can do with your property to a lesser extent than actually taking it from you, the constitutional provisions under the Supreme Court decisions provide no protection. This statute is intended to fill that void and provide compensation when your property is diminished in value but not totally taken. [Mr. Crapo] has again expired. (By unanimous consent, Mr. Crapo was allowed to proceed for 2 additional minutes.)

Mr. CRAPO. I yield to the gentleman from Texas.

Mr. CRAPO. Mr. Chairman, I move to strike the requisite number of words. Mr. Chairman, I think it is important that we respond to some of the arguments that are being made here, because some of them are just wrong, and others need to be clarified. Let us go through some of them. First of all, it has been said repeatedly here this is a budget-busting measure. I think that is kind of an interesting argument. Remember what the bill does, it says when the Federal Government is diminishing the value of private property owned by private citizens in this country, that it must pay for it. Those who are saying this is going to cost hundreds of billions of dollars must at least be concerned the Federal Government is causing hundreds of billions of dollars of loss of property value to people in this country by their actions. Yet they seem to say that does not need to be addressed. Well, I do not know whether it is hundreds of billions of dollars that this act will cost or not, but if the Federal Government is doing that to the people of this country, then something should be done to stop it, and this bill addresses that. Now, I do not think it is going to cost the Government that much money, because I believe there are a lot of creative people in this country, and when the regulators find out they cannot simply ignore private property rights any longer, then they are going to be able to look for other alternatives to accomplish the same solutions, alternatives that do not run roughshod over private property owners.

Mr. CRAPO. In that context, then, the agency would not be able to continuously, budget cycle after budget cycle, dodge the obligation of payment here by simply programming funds around or saying that the funds were insufficient?

Mr. CRAPO. That is the question. Does that change also that portion of the act which simply is talking about the specific property impacted to say we are talking about all of the property owned by the property owner?

Mr. CRAPO. Will the gentleman yield?

Mr. CRAPO. I think it is important to look at the section in the bill that describes the right to compensation we are talking about here, in section 3 of the bill. It creates the right of compensation to an owner of property whose use of any portion of the property has been limited by an agency action. We are talking about situations where an agency has limited the use of property, and that is defined in the statute.

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

Mr. CRAPO. So what the gentlewoman is saying is, ``You still have a right to go to court for a taking under the Constitution.''

Mr. CRAPO. As I read it, the amendment says neither the sufficiency nor any other aspect of a private property impact analysis under this section is subject to judicial review.

Mr. CRAPO. I thank the gentlewoman for yielding. I would just ask one question. I thought the gentlewoman said at the beginning of her debate that under this amendment, there would be a right for judicial review or the opportunity to go to court.

Mr. CRAPO. Mr. Chairman, will the gentlewoman yield?

Mr. CRAPO. I thank the chairman. Mr. Chairman, I want to address the comments which have just been made. It is correct that this amendment would be better than nothing, but it is much worse than the current statute we are considering. The reason is, as was said by the gentleman from Texas, there is no mandate in this amendment that the least oppressive or least intrusive alternative be selected. There are times when the agency is actually bound by statutory provisions that this Congress passes that require the agency to run roughshod over private property rights. In those cases, after there has been a congressional action or after there has been a full agency review, when it is decided private property rights must be diminished for some social purpose, there should be compensation, and this amendment does not allow for that compensation.

Mr. CRAPO. The definition of use of property is defined in the statute to say, when the use of property is limited by an agency action, if a particular legal right to use that property no longer exists because of the action. You are talking about a contractual relationship between the United States and between an individual landowner, or in some cases between those who are participating in a reclamation project. The change of the terms of a contract under the terms of that very contract is not going to be a limitation on use that results from an arbitrary or an independent action by an agency that limits the use of that property.

Mr. CRAPO. If the agency is successfully able to identify a way to impact the property without totally taking it, there is no compensation as long as they analyze it and say so.

Mr. CRAPO. It applies only in a taking.

Mr. CRAPO. OK. Except for the Constitution.

Mr. CRAPO. I understand the point. I want to continue on my time because I have a number of points to make on my time, and it is already running out. Let me respond to that point by saying that the amendment--and I want to refer to the amendment--the amendment allows compensation only if an agency does not conduct a property impact analysis. If the agency does conduct that analysis, they do not have to compensate, regardless what the impact analysis said. Is that correct? And I yield to the gentleman.

Mr. CRAPO. Mr. Chairman, I appreciate the opportunity to address this important issue. People in America understand that our Constitution protects private property. It was one of the basic principles that our Founding Fathers knew must be protected if our Nation and the principles upon which our Nation was built were to survive. So they put into the Constitution a protection that when the government comes to take the property, the private property of a citizen, that it must compensate them. What they did not foresee was a regulatory bureaucracy of the kind that we have today that would figure out a new way to get around that protection. Instead of simply coming and taking the property, our Federal regulatory agencies have now developed numerous ways to simply regulate it in a way that gives the benefit to the State of what they need from the private property without actually taking it. We are seeing regulations grow rapidly that impact the ability of a person to use his or her own private property. In fact there is a joke that has been said that now the right of private property these days is the right to pay property taxes and to use that property in the way that the State or the Federal Government tells you that you must use it. We certainly are not to that point yet, but we are moving to that point dramatically, and the purpose of this act is to reassert the important principle of private property rights protection. This act, as has been said, requires that when the Federal Government, through its agency action, regulates private property in a way that reduces its value, that then the Government must pay the private property owner for telling them they must use their private property or not use it in a way for the social benefit of the good of the country, and it must compensate for that private property right. I know today during the debate we are going to see an assault on this bill. That assault is going to take the form of those who would say that it is going to cost too much. Frankly, we have agencies today that do not look at the cost to the private sector, to the private property rights owners and, yes, this act is going to require them to look at it. But I am confident that creative people will figure out ways to accomplish the purposes of the agencies under the law without disregarding private property rights. And if it becomes absolutely necessary, that no other alternative can be found, then let us use the private property rights provision in this act to compensate for whatever may be done. There is also going to be a subtle but nevertheless an attack on the concept of private property, and some will be so bold as to say it is a dated, antiquated notion and we ought to proceed and let our society proceed to undercut the benefit of that principle. You will not hear that said so directly today, but you will hear many arguments like the ones just heard that suggest that we should pay for the benefits that are provided by government to people as well as the decreases in the values. We have to recognize today that the principle of private property rights was one of the key principles upon which this Nation was founded, and recognize it is critical, and I urge all Members in the Chamber to support it as we proceed.

Mr. CRAPO. I yield further to the gentleman from Illinois.

Mr. CRAPO. Mr. Chairman, I would ask the gentleman one other question. On section 5, as we have talked earlier today, subsection 2 says, ``No compensation is made under this act with regard to damage to specific property, other than the property whose use is limited.'' We have debated that language here in other contexts, but I wanted to make it clear, Mr. Chairman, that this was not a wide exemption for all kinds of different arguments to be made by the agency that there is some specific property benefited, is that correct?

Mr. CRAPO

Mr. CRAPO. Mr. Chairman, I think it is important to point out, as the chairman has pointed out, that the regulatory action we were talking about in this bill occurs only when the final rule has been promulgated and the rule is already under review. I read from the judicial review portion of this statute. It says, ``The court with jurisdiction to review the final agency action under the statute granting the agency authority to act.'' That is the authority to issue the rule, ``shall have jurisdiction to review, at the same time, the agency's compliance with the requirements of this Act.''

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

Mr. CRAPO. Mr. Chairman, I move to strike the requisite number of words, and I rise in opposition to the amendment. Mr. Chairman, I think it is important that we clear up some of the argument that is being made here today, and perhaps we ought to start by reading the amendment, itself. I understand the reading of the amendment was suspended earlier. But if we want to find our whether this amendment eliminates judicial review entirely, whether this amendment basically guts the bill, let's read the amendment. It says, ``Nothing in this act creates any right to judicial or administrative review, nor creates any right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other person.'' It goes on to say, ``If an agency action is subject to judicial or administrative review under any other provision of law, the adequacy of any certification or other document prepared pursuant to this Act and any alleged failure to comply with this Act may not be used as grounds for affecting or invalidating such agency action.'' I do not know how you can more clearly state that you are saying we are passing this bill but it cannot be [[Page H2331]] enforced, it creates no rights for judicial review, and if there does happen to be judicial review under some other law, nothing in this act shall give anybody any rights for any protection under the very provisions which we are putting into effect. The fact is that this statute is critical. It is a process that America has needed badly to require our administrative agencies to review the effectiveness of their conduct. They must assess the risk which they are addressing, assess the cost of meeting that risk in their regulation, and determine whether the cost is justified by the benefit that is intended to be gained. If we cannot put that into law and then require that the agencies meet that test when they are promulgating regulation, then we are truly fooling the American people when we tell them that we are trying to somehow bring the agencies under control in the rulemaking process. If that is not enough, the amendment goes on to say that it strikes the substantial evidence standard in the judicial review that this act contains. Let's clarify what we are talking about here. If we do not have the substantial evidence standard in this legislation, that means that when there is judicial review, and, by the way, I will back up a minute. It has been argued that we do not want to open up the opportunity for the courts to look at the entire administrative record and see what has gone on. Ladies and gentlemen, that is exactly what happens right now, under the administrative review that is given to each rule as it is reviewed under the previous statutes that authorized those rules. What we are saying is that in final agency action, not at each stage but in final agency action, when the rule is already being reviewed, when the entire administrative record is already being reviewed, it must also be reviewed for purposes of cost-benefit analysis. We are going further to say that the standard of review shall be substantial evidence. The court must look to see whether the agency acting had substantial evidence to document its claim that there was or was not a cost-benefit to the rule which it is enforcing. What this amendment seeks to do is to make it so the agency can get by with whatever it wants if it can simply meet an arbitrary and capricious standard. That means that all the court has to do is to say that there was a little slim piece of evidence in this record that justified what the agency wanted to do and so it was not arbitrary or it was not capricious, but it does not have to look further to see whether the weight of the evidence was on one side or the other. There is already going to be the administrative review of these agency rules under the Administrative Procedures Act which governs the statute which generate the rules themselves. What this statute does is say that when that review takes place, then there must be administrative review also of the cost-benefit analysis and that cost- benefit analysis must be justified by substantial evidence in the record that is already under review. That is eminently reasonable, and all you have to do is read the words in this amendment to see that it is clearly a killing amendment. It is saying, ``We've got a right here, we are creating a great statute that allows us to have cost-benefit analysis, but we don't want any agency to have to be forced to follow it, we don't want any person in America to have any right created under this statute to have the agency follow this legislation, and we want to be darned sure that it is not enforceable if anybody goes to court.'' Last, there has been the argument made here that this is going to generate mounds and mounds of additional litigation across the country. Again, this legislation authorizes judicial review only when there is final agency action under a rulemaking which is already under way under a previous statute. That means that there is already going to be agency review under each review required by this statute. It is not going to increase litigation.

Mr. CRAPO. Mr. Chairman, I ask unanimous consent the gentleman from Pennsylvania be allowed to proceed for 2 additional minutes.