Wayne Gilchrest

Mr. GILCHREST

Mr. GILCHREST. Mr. Chairman, I move to strike the requisite number of words and speak in support of the amendment. I would just like to sort of clarify and frame the discussion that we are having here. We have had some problems with regulations, they have been described as regulatory takings. We have had problems probably to some degree at any rate all across the country. So we are attempting here to solve or find some reasonable cure, for an over, to some degree, in some people's minds, and to a certain extent that is true, regulatory insensitivity to private property. What we have here, on the one hand, we have problems with property rights. Because if you find the little fairy shrimp on there, you cannot do something, and where is the value of that? On the other hand, we have jobs. Maybe you cannot lumber or timber or do something else in an area. But on the other hand we have this crucial, critical thing called biodiversity which to a large extent is to be protected by the Endangered Species Act. So how do we as humans solve this particular dilemma? Do we solve it by talking and discussing with the regulators, with Members of Congress, with the landholders about what they can do with their property and still hold onto biodiversity for future generations? Or do we solve the problem by sterilizing debate, by saying that we are going to take care of this and if some regulator comes in there and wants to take your property or regulate your property, we are going to compensate you, flat out, the Federal Government will pay for you not to abide by the Endangered Species Act, or for protecting wetlands. I think what we need to do, and I am coming from a position of what I do in my district, whenever we talk about wetlands in my district, or whenever there happens to be a beetle on the side of a hill, we try to get the Corps together, Soil Conservation, EPA, Fish and Wildlife, myself, the affected landholder, and we sit down and we discuss this issue. But unless we adopt the Porter amendment, there will be no more discussion of this issue. You will have the incentive for people not to want to talk to the regulator, not to want to talk to any State legislator or to their Congressman or anybody. The incentive will be dollars and cents. I do not think that is what we really want to do here. We want to solve the problem of some cases being insensitive with their regulation. We ought to deal with this in the authorizing committee, of Resources, to fine-tune the endangered species act. We ought to deal with this in the Committee on Transportation and Infrastructure to fine-tune the wetlands provisions of the Clean Water Act. I want to make one other point. When we look at this little tiny thing here that no one would ever notice, I suppose, now, I do not know if this has any medicinal value at all, and I recognize there is a problem with overregulation, but I do not want to throw out the idea that we live on this planet in a very cold void called the universe that is infinite, and we as human beings, getting fundamental now, rely on the resources of this planet to keep us alive and to keep the future generations alive. I see that if we enter into this problem of takings in the way that we are dealing with it, that some of those resources are going to be diminished. Before there was human impact on this planet, and I recognize we have to manage what with we do because we have people here, we cannot save every species and we cannot live in the wilderness like people did a thousand years ago. Before there was human impact on species, we had about an average of one species per million become extinct every year, for millions and millions of years on average, except for 2 catastrophes, one of which was the dinosaurs, one species, per year, out of a million became extinct. Now it is close to 10,000 species becoming extinct out of a million every single year. We have accelerated that process, and we do not know what the value of wetlands and biodiversity will do for future generations, but let us make sure that when we have this debate, we do not throw those things out. Those are important. We must continue to discuss them.

Mr. GILCHREST. I yield to the gentlewoman from the beautiful State of Idaho.

Mr. GILCHREST. Mr. Chairman, I rise in support of the amendment. Mr. Chairman, I think this is well crafted, well thought out. It gives some consideration to the problem of all property rights for all Americans and not just a few. Just to make a comment, as we go through this debate and as we begin to ensure the protection of all Americans against insensitive, overregulated bureaucrats, I think we must continue to keep two things in mind: One, all Americans, and not just those few who are filing for Federal permits, all Americans must know that their property is to be protected not just from takings by regulations, but protected from pollution from other people that develop. The other thing I think we have to keep in mind is the fact that when we manage, I think we would all agree that when we manage where we live, that we cannot manage as if there are no people. I think that is where we got into some problems around the country: ``Let us manage this, and you cannot do that and you cannot do that because we have a certain species that we do not want to become extinct.'' We all know we cannot manage thinking there are no people, but by the same token, we cannot manage thinking there are no species out there that support the resources that support people on the planet. Mr. Chairman, if we believe people should be compensated when their property is devalued, then let us not fool around. This amendment is based on a bill whose purpose is to ensure that people are compensated in cases where their property is devalued by polluting actions of others. That bill, our bill, H.R. 971 is the Homeowners Protection Act. Unfortunately, the entire Homeowners Protection Act would not be germane to this bill. Get that, the Homeowners Protection Act, which protects private property, is not germane to this bill; and I hope Members do not miss the irony, protecting homeowners is not germane to a private property rights bill? However, for today, the amendment that we are now offering is the best we can do. The amendment simply says that agencies need not provide compensation in cases where the proposed regulation is designed to prevent actions which would reduce the value of other private property. In other words, the amendment says that we should not pay people, we should not pay people to refrain from polluting other people's property. How can any bill entitled the Private Property Protection Act not contain that? You and your property should not be paid to refrain from polluting somebody else's property. Most environmental law is designed to prevent people from using their property in such a manner that they adversely affect other private property or public property. In my district, every time someone develops a wetland, they increase the amount of runoff into the Chesapeake Bay, thereby very often increasing the toxic levels of nitrogen in the water. This reduces the value of the homeowners who live near the water, because the water is not that clean or productive, and it certainly reduces the value of a person's right to go fishing there. Mr. Chairman, I ask my colleagues, if they are for all property rights and all people, support the Wyden amendment.

Mr. GILCHREST. Mr. Chairman, I would like to ask the gentleman just one question. This is what seems to me, without this amendment, this is what the bill, or this goes to the heart of the bill, without this amendment; should we compensate someone to keep them from polluting someone else's property? That is the question.

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

Mr. GILCHREST. If the gentleman will yield, I would just like to say, does one property owner have the right to degrade the value of another piece of property, of someone else's property? If you do not think they have the right to do that, you ought to vote for the Wyden amendment.

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

Mr. GILCHREST. Mr. Chairman, I do not think the courts have refused to do that. I think the courts have, to a certain extent, adequately dealt with that under the fifth amendment, but just because someone wants to build a house does not mean they are going to pollute anything. As you say, that depends on where the house is built.

Mr. GILCHREST

Mr. GILCHREST. Mr. Speaker, I support the rule because I think it offers an opportunity for us to debate this most controversial bill and this most controversial topic. I will say a couple of things before we get lost in the debate as to the importance of some of the issues that will be raised, I am sure, tonight and tomorrow. All of us understand that the fifth amendment protects property rights. I say, ``If your property is taken away for the public good, you should be compensated. There is no question about that. The question, I guess, arises, if your property is regulated to prevent public harm, should you be compensated? My judgment on this, based on the fifth amendment, is that you should not be compensated.'' Now there is something else that may get lost in this debate, and that is the importance because we are going to focus in a little while on wetlands and endangered species. Let us not throw the baby out with the bath water. Wetlands provide an invaluable service to us in this country for a number of reasons: filtration into waterways. It offers habitat for a variety of species. It is, at last in my district, very important economically. Also there is the fact of biodiversity and how useful that is to maintain the quality of our lives in many areas, one of which is medicine. Biodiversity offers us a whole series of opportunities to cure diseases like cancer, dreaded problems of depression, glaucoma, heart disease. All of these come from the natural environment. So, when we talking about the takings bill tomorrow, it is vitally important for us to understand the nature of our existence on this planet, and let us not give away the thing that we need to hold on to, the quality of our life, and that is biodiversity on the planet. Tomorrow the gentleman from Oregon [Mr. Wyden] and I will be offering an amendment which seeks to provide home owners. If we are going to be to the point where we are going to compensate people through this legislation, we also need to make sure that we provide home owners with a means to obtain compensation from polluters whose action adversely affects their property. In cases where federally permitted polluting action has direct impact on a person's home, that person should be able to be compensated by the polluter who reduced the value of their property. If we are going to provide compensation to people whose property values are compromised by Federal requirements that they not pollute, then the least we can do is to provide compensation to those whose property values are hurt by the resulting pollution. Mr. Speaker, I cannot imagine a bill which fails to protect the property rights of the Nation's 65 million home owners can seriously be called a property rights bill. Our constituents have the right to be secure in the knowledge that the Federal Government will protect their property from the polluting effect of others. I say to my colleagues, ``When we deal with this issue, let's deal with it in a very comprehensive way. Let's understand that the Endangered Species Act protects biodiversity, which is the quality of our lives, yet there are many good positive functions for wetlands, and there are many more home owners out there who don't seek Federal permits that should be protected by our actions.''

Mr. GILCHREST

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

Mr. GILCHREST. Let me give an example of the practical effect of this provision as it now exists and has not existed in the past. This provision will provide parties who are opposed to regulatory actions with the means to delay or stop them, regardless of whether the agency complied with the bill. Anyone opposed to a regulation need merely challenge the propriety of the cost-benefit analysis to tie the regulation up in court, and every analysis would be subject to challenge. There are 60 different ways that this challenge can be litigated. Just let me read some of the proposed challenges. Does risk assessment appropriately address the reasonable range of scientific uncertainties? If no single best estimate to risk is given, does risk assessment include an appropriate discussion of multiple estimates? If a risk assessment includes multiple estimates of risks, are the assumptions, inferences, and models associated with such multiple estimates equally plausible? There are 60 of these things. Mr. Chairman, I would request the Members support the Roemer-Boehlert substitute.

Mr. GILCHREST. Mr. Chairman, reclaiming my time, the judicial review section of this bill is in my judgment a much more onerous requirement that has not been in the law in the past.

Mr. GILCHREST. The answer is yes, but it has not been done sufficiently enough so the idea that we should have judicial review in this context for cost-benefit analysis is appropriate.

Mr. GILCHREST. I yield to the gentleman from Pennsylvania.

Mr. GILCHREST. Mr. Chairman, I rise in support of the amendment. The rigid discussion here is about who has the responsibility of overzealous regulators and who has defaulted on that responsibility, has it been the regulators or has it been Congress? Who has not taken the accountable, responsible position to follow the law through the regulatory process to see how it has impacted on business, on industry, on the private sector, on environmental regulations, on all of these things? Who has reneged on their responsibility? I would tell you in this room today that it is the Congress that has reneged on the responsibility to follow through, to see where the regulations have gone too far. Who should the regulators be responsible to then? Should they be responsible to the courts, or should they be responsible to us, Members of Congress? And I would tell you emphatically that the regulators who we appoint, who we give responsibility to, who we determine what their latitude is, ultimately the responsibility of the regulators is not the courts, it is the Congress. Mr. Chairman, if there is an irony here in this bill, it is that at the same time that the House committees are considering legislation to deal with the real problem of excessive litigation in our society, we are about to pass a bill which is going to throw final decisions of resolving these problems in the courts. The defendant will be the Government, and the legal bills will be paid by the taxpayer. I am not opposed to efforts to put cost-benefit analysis into the regulatory process. I am not opposed to that, and I may very well support this bill with some of the modifications, including this. But allowing parties to challenge final regulations on the benefit of cost- benefit is certainly not a step toward more efficient government. Opponents of this amendment will argue that judicial review is the only way to force the agencies to implement risk assessment. I disagree. We, the Congress, through the oversight responsibilities of these regulatory agencies, are eminently capable of making the agencies do exactly what we want them to do, and it is our ultimate responsibility, we, Members of Congress, and not the courts. I know the supporters of the bill included the amendment out of fear, and this is real fear and this is historical fear, this is the real thing, that the agencies would simply ignore the requirements of the bill, and I am sure that judicial review language is well-intentioned.

Mr. GILCHREST. Mr. Chairman, I move to strike the requisite number of words. (Mr. GILCHREST asked and was given permission to revise and extend his remarks.)

Mr. GILCHREST. That is the area where they could clear the brush. That is what I was referring to.

Mr. GILCHREST. This is an extraordinary period of time where all of us are almost to the point of agreeing that regulations have been too onerous in the past. But the gentleman made a comment about people in California that were not able to get the brush away from their homes because of a rat that was placed under the Endangered species Act, and I have heard that argument before on the floor. It simply is not true. The Fish and Wildlife and the State game people worked with the people in the area that happened to be the most flammatory, most fire-prone area on the face of the Earth. They allowed them to clear the brush up to a point even sometimes 1,000 feet away from the house. The point is during that fire, a year or so ago, flaming cinders were flying at 80 miles an hour more that a mile away, so the argument you had to protect the endangered species in lieu of their houses burning down simply is not true.

Mr. GILCHREST

Mr. GILCHREST. Mr. Chairman, I rise in opposition to the Orton amendment. Mr. Chairman, there is only one good reason to provide line-item veto authority to the President--to reduce the deficit. Providing a line- item veto just for the sake or doing so would be an example of Congress cutting off our nose to spite our face. The amendment before us, while well-intentioned does exactly that. Contract authority comes out of trust funds which are fenced off for explicit transportation purposes. If the President were to line-item veto a highway project or an airport grant, it would have no impact on the deficit. It would merely require that a given amount of money sit unused in the trust fund until the next fiscal year. Our transportation trust funds represent a user fee to our highway and airway travelers. They pay for improvements to the Federal transportation infrastructure through taxes levied on fuel and airline tickets. The expenditure of this money is the Government fulfilling a contract with these travelers. If we instead use this money for deficit reduction, we will have turned an ostensible user fee into a tax, changing the rules in the middle of the game. As an aside, Mr. Chairman, I might point out that the language of the bill requires a Presidential finding that his veto of the line item would reduce the deficit. Although I am not an expert on this, I would wonder how the President could make such a finding when the line-item in question was contract authority. Mr. Chairman, a line-item veto for contract authority makes no sense. It doesn't save any money and it doesn't reduce the deficit. Let's defeat the Orton amendment and preserve the integrity of the transportation trust funds.