John Glenn

Mr. GLENN

Mr. GLENN. Yes. I read it into the letter a little while ago. I will ask anybody to reread that to see if this is not a change in position.

Mr. GLENN. Would the Senator yield? That is what the Senator argued for in his letter.

Mr. GLENN. I would be happy to talk about advisory boards. We might be able to get some wording here that would be proposed as an amendment here, and we would be glad to consider that if that is possible.

Mr. GLENN. I do not know what happened in our session. There were so many things that occurred in those sessions. It would be hard to go back and recall everything that occurred.

Mr. GLENN. Could the Senator tell me when he objected to that? I do not believe there was an objection to that.

Mr. GLENN. If the Senator will yield, the Senator defends the petition process in the Dole-Johnston bill. On March 14, the Senator from Louisiana responded to a letter that Senators Levin, Lieberman, and I had sent to him asking his opinion on these, because he has had a lot of experience in these areas. We asked him to comment on S. 291 and S. 343. He sent us back a very thoughtful and well-reasoned-out letter response of his views at that time. I say that within that letter--and I will not read the whole letter because it was rather lengthy--but in talking about the petition process, the Senator from Louisiana stated the following: To help set priorities for the review, I prefer some sort of advisory committee to assist the agency head. I am very skeptical of the petition process, which is likely to skew the priorities, and I am strongly opposed to any judicial review of actions taken under a lookback provision. It seems to me that is pretty clear as to what the thinking was in March. Further on down in another paragraph, it says: The Dole bill, however, allows any person to petition for a cost-benefit analysis of an existing regulation. If the analysis shows that the regulation does not satisfy the decisional criteria of the bill (that is, that the benefits of the regulation outweigh the cost) the agency must either revoke the regulation or amend it to conform to the decisional criteria. Denial of the petition by an agency head is subject to judicial review. Needless to say, I strongly disagree with this approach. Unless I am reading something wrong, the Senator from Louisiana is stating one thing in March and a different thing on the floor here today.

Mr. GLENN. Yes, that is the ultimate protection, Congress, where 80 percent of these things start to begin with, where the requirements are put in.

Mr. GLENN. These can still be challenged.

Mr. GLENN. Mr. President, this is a list of 144 bases upon which a rule can be challenged using the arbitrary and capricious standard that you are talking about.

Mr. GLENN. I will reply. The standard of review is arbitrary and capricious under Dole-Johnston, but that issue itself is what can be reviewed. Now, these 144 items here-- I ask unanimous consent that these 144 items be printed in the Record.

Mr. GLENN. I say to my friend that we provide specifically for a procedure for any rule to come back to Congress for further consideration. And in both bills, we give a time period that is required for Congress to review whatever it is that was brought back. One is 60 days, the other is 45 days--not a huge difference. So it seems to me that protects whatever may be required or whatever may come up over there, as far as whether something has had adequate review or not before it was put into a rule.

Mr. GLENN. No, that is not correct. I will tell you the difference. What we provided in both pieces of legislation is the right for Congress to get in the act and review anything that we want to that could come back to Congress. So if there is any question about it, it comes back to Congress. That is provided in both pieces of legislation.

Mr. GLENN. No, not under Glenn-Chafee, you cannot challenge anything. We have the final rule that can be challengeable, or whether it is a major rule or not. We specify that.

Mr. GLENN. This was not notice. I read this. ``Did agencies sufficiently explain the need for and objectives of a rule?'' They feel, under S. 343, this language under your proposal could be challenged in litigation.

Mr. GLENN. I say to my friend from Louisiana, there is a difference of opinion here on what is meant by the language. I know we have had a number of discussions back and forth, and with the Senator from Louisiana and Senator Levin on the Senate floor. The interpretation counsel at EPA is giving on this is the one I was about to read, and there are 144 different questions where they feel litigation can come up under this.

Mr. GLENN. We stick with the arbitrary-and-capricious rule. We do not expand that as Dole-Johnston does.

Mr. GLENN. I am not the counsel for EPA. I am saying this is their interpretation of exactly what you are referring to here.

Mr. GLENN. Is the Senator going to let me read these?

Mr. GLENN. We have here--I do not know whether it is necessary to read all of these or not--but there are 144 items that could be litigated under S. 343 as counsel to EPA interprets this. Let me go through some of these. No. 1: Did the agency sufficiently explain the need for and objectives of a rule? No. 2----

Mr. GLENN. We have both leaders who wish to speak.

Mr. GLENN. No, I do not think it is. EPA has given a list of things where they feel this could be challenged, where litigation could come out of this. I was asked a moment ago, I believe the gist of it was, what possible litigation could come out of this?

Mr. GLENN. Will the Senator yield so I can read some of the areas----

Mr. GLENN. I will get the detail on that a little later on today.

Mr. GLENN. The difference here being, what we provide is that final review, just before the rule or reg would go into effect, then it would be challengeable in the court. There would be judicial review at that point. They could consider everything that has happened up to that point. It would not be judicially reviewable at all the multitudinous steps along the way that would still be permitted under Dole-Johnston.

Mr. GLENN. No, it is my understanding Dole-Johnston goes beyond that and establishes ``without substantial support'' as a new and higher standard of review, where we stick with the Administrative Procedure Act that has been in effect, acknowledged under law, a whole body of law developed under that, and we stick with that so there can be no misunderstanding of it. Dole-Johnston goes well beyond that and establishes a whole new procedure.