John Johnston

Mr. JOHNSTON

Mr. JOHNSTON. Mr. President, I wonder if the Senator will yield me 10 minutes?

Mr. JOHNSTON. Mr. President, parliamentary inquiry: Who is it that controls the time?

Mr. JOHNSTON. Mr. President, I hate to object, but I think we have the 1-hour debate before the cloture vote.

Mr. JOHNSTON. Fine.

Mr. JOHNSTON. Mr. President, it is like that tennis match I saw the other night, where the games were even and they were in the tie breaker. It is 6-all, in the tie breaker, and there is 1 point that is going to make the difference. And it is this vote. The question is, Does regulatory reform survive or not? Mr. President, it will survive if this cloture vote is granted. We have been told that there is ongoing negotiation. I can tell you, there are at least three points which are not solvable, and upon which negotiation is not getting closer but is getting further away. Let me explain those three points. First, can you review existing rules? All of those rules out there which have been adopted, some without consideration of science, some without the foggiest notion as to what they would cost, some defying logic, some being adopted in opposition to what their own scientists have said--can you review those existing rules? In the Dole-Johnston substitute, you can review those existing rules. In the Glenn substitute, there is no right to review existing rules. Second, the question of what we call decisional criteria. That is a very minimum, commonsense rule that says in order to have a rule you have to be able to certify that the benefits justify the cost. Mr. President, you would think that would be not only common sense but that would be a rule of logic, a rule of proceeding as to which all Federal bureaucrats would adhere. But there is a gulf between the two sides in this dispute. We have decisional criteria. The Glenn substitutes have what you might call standards for discussion. That is, you can discuss whether or not the benefits justify the cost, but it is not a test and it is not going to be used by anybody in determining the reasonableness or the arbitrariness of that regulation. Finally, there is a question of whether the court can review the risk assessment, or the cost-benefit ratio for determining whether or not that rule is arbitrary and capricious. I will read the latest draft. The adequacy of compliance or failure to comply shall not be grounds for remanding or invalidating a final agency action. The adequacy of compliance or the failure to comply shall not be grounds for remanding or invalidating a final agency action. In other words, it does not matter how bad this risk assessment is; it does not matter how central the science is to the question to be done; it does not matter whether it is junk science that uses all scientists on one side of a question; it does not matter how unreasonable, how outrageous the failure is to comply with the risk assessment or cost-benefit analysis--the court may not remand that case to cure that error. That is exactly what we are asked to do. Mr. President, we are getting nowhere fast. In my view, it is a question of whether you want real regulatory reform or whether you want sham regulatory reform. If you want sham, really if you want business as usual, then vote no on cloture, because that is what you will get and you will be able to go around and say how great these bureaucrats are and what a good job they are doing, because they are going to continue to do exactly what they are doing now. If cloture is voted, and I hope and trust it will be, there are a lot of amendments we are perfectly willing to consider. But there has to be an end to this process. We cannot have amendments out of the expanding file where they keep coming and they keep coming. Mr. President, the things that we have solved here--judicial review, we thought we had solved that; supermandate, we accepted their language; we thought we had solved decisional criteria; we thought we had solved agency overload, had taken Sally Katzen's own concept; we dropped the Tucker Act; we dropped the chevron language; we upped the threshold from $50 million to $100 million; we gave new language on TRI; we are willing to do more; we are willing to discuss the Delaney rule; we did away with Superfund. Mr. President, we have done a lot. I think we have solved all the problems. Sally Katzen gave a list of nine faults with the original Johnston proposal. And I think we have solved all nine of them. Now we have found that some of our solutions use the words of the opponents--conceding to them. They used those very words against us which they admitted, which they confected. They used those words against us. Mr. President, I do not think it is reasonable. I hope my colleagues will bring this debate to an end so we can get on with the amendment process, and so we can pass a bill. Otherwise, it is R.I.P. It is so long to risk assessment.

Mr. JOHNSTON

Mr. JOHNSTON. Will the Senator yield me 2 minutes?

Mr. JOHNSTON

Mr. JOHNSTON. Mr. President, if my friend will yield, I have two questions. First of all, I have not seen the judicial review language. If it has been done, there may be some progress.

Mr. JOHNSTON. Will the Senator yield.

Mr. JOHNSTON. Not on the Glenn-Chafee bill.

Mr. JOHNSTON. Will the Senator yield at that point?

Mr. JOHNSTON. Well, Mr. President, if I may reply to that, what we intend, what we say very clearly, is that it is the final agency action that is judged by the standard of arbitrary and capricious, that the risk assessment and the cost-benefit analysis will be part of the record. And that any violations may be used solely--we use the word ``solely'' advisedly to determine whether that final agency action is arbitrary and capricious. Now, the standard that the Senator just read, did you use the best science, may or may not bear on the question of the final rule being arbitrary and capricious. If it is one of these rules where the issue is the quality of the science, and if they did not use proper science, but rather subjected the American public to billions of dollars in regulation, which flies in the face of good science, then, yes, that violation could be conceivably arbitrary and capricious, make the final agency action arbitrary and capricious. In most instances, it would not be. But the very idea of having risk assessment and cost-benefit analysis is to find out what the cost is and to make the agency focus on science and use good science. Because, Mr. President, the reason I brought up risk assessment almost 2 years ago was that I found, in the committee I chaired at that time, that they were not using good science, that they were ignoring their own scientists, that they did not have the foggiest notion what the regulations were going to cost. In one particular case, it was $2.3 billion dealing with a nonexistent risk, and they did not know what it was going to cost. They had ignored their own scientists. Now, that goes on--not every day, not in every regulation. And, yes, we make some great progress on a lot of these environmental laws. And I voted for virtually every one. But do not ever think, Mr. President, because the air is cleaner and the water is cleaner and all of that, that there are not great excesses in our environmental regulation system. If you just want to make it permissive, you know, say these are good employees of the Government and they are doing their job well and the air is cleaner, well, that is fine. If that is what you believe, then you know, business as usual is good. It is making progress in one sense. I do not believe that is so, Mr. President. I think I can prove it. I think I have proven it.

Mr. JOHNSTON. Will the Senator yield at that point?

Mr. JOHNSTON. Yes. I was going to say in the Glenn-Chafee amendment, does it not also have standards? If so, how many new standards?

Mr. JOHNSTON. What is the new language that is----

Mr. JOHNSTON. Mr. President, I will yield for a question.

Mr. JOHNSTON. Mr. President, I wish I could share the optimism of my friend from Ohio. He and the Senator from Massachusetts are both my good friends. I have great respect for their good faith, for their sagacity in all of these matters. But, Mr. President, it was my understanding that today we were going to have our final cloture vote and nothing seems to be happening. It seems, at least it is my view, that the requests for amendments are in sort of an expanding file; you get one and you agree to it, and then 2 or 3 days later it comes back to you as a criticism of the bill because somehow you did it wrong. It is a complicated bill. It is not that complicated. It is fairly straightforward. Some of these four amendments were strike amendments, to strike provisions that people disagreed with. Now, we ought to do that. We ought to say, ``I ask unanimous consent that we strike this.'' We cannot get agreement even to strike the language that is used against us. And the reason is I think because it improves the bill and helps get toward cloture. I hope that there is hope, but I do not share that hope. When it comes down to the final vote, whenever that is, and this bill goes down, there will be those who say, ``Oh, we were so close.'' I, for one, would just like to say I do not believe we are that close. To say that there are 88 ways to appeal or to attack on appeal, using that logic there are billions of ways because there is only one appeal and one standard for appeal. That is, is the final agency action arbitrary and capricious? Now, you can use an unlimited number of arguments making sense or not making sense, but those 88 standards are not standards for appeal. They are simply things that somebody can argue. Why not make it 1,000? It is limitless what you can argue to a court. There is no limit. But there is one standard: Was the final agency action arbitrary and capricious? That is the standard--only one--and only one appeal. This came out of the Justice Department. They produced this long list of 88. If that is the kind of logic that we have to face from the Justice Department, there is no hope on this bill, because it defies logic. One appeal and one standard.

Mr. JOHNSTON. Mr. President, I will stand corrected--this is not against those who are against the bill as opposed to those who are for it. I think the Senator from North Dakota correctly states that it is those who are for the Glenn-Chafee bill and those who are for Dole- Johnston bill. The difference is that many of us regard the Glenn- Chafee bill as being a permissive bill; that is, it permits the agencies to engage in regulatory reform but it does not require them to do so. Whereas, Dole-Johnston does. We are operating under an Executive order now that on its face requires it, but actually does not require it. And if we are talking about a permissive kind of bill, in my view, that is what we have now. To be sure, it has resulted in great advances forward. Look, all of the laws for which we voted--I voted for all of these, the Clean Air Act, the Clean Water Act, et cetera--have made some great advances. And if you want to keep the present status quo, I would say the thing to do is vote for Glenn-Chafee. Glenn-Chafee will not pass, in my view. I just think it is unfortunate that this is being painted as an ongoing negotiation.

Mr. JOHNSTON. If the Senator will yield, we submitted four major proposals and have asked can we clear those. Every time there is an argument--yesterday we had an argument about whether this is least cost. My friend from Michigan said no because there is this word ``nonquantifiable.'' I said, ``I have an amendment here to take it out. Would you permit me to do so?" ``Not now.'' Then there were other speeches back to back. We could not take it out. Now, we offered four amendments yesterday which I thought were agreeable amendments. Can we at least have agreement to take those out, to try to improve the bill on matters that we agree on, does not seem to be possible.

Mr. JOHNSTON

Mr. JOHNSTON. If we struck that word ``nonquantifiable,'' I take it, it would solve the Senator's problem?

Mr. JOHNSTON. If the Senator will yield the floor, I am prepared to offer such an amendment.

Mr. JOHNSTON. All right. I have an amendment prepared to that effect.

Mr. JOHNSTON. Mr. President, will the Senator yield?

Mr. JOHNSTON. Is the Senator seriously saying that if you can save, what [[Page S 10193]] was it, 10,000 lives for $1 million, that for an extra $100,000 you could not save another 1,000 lives--is the Senator really saying that he believes that about our bill?

Mr. JOHNSTON. Will the Senator yield on that point?

Mr. JOHNSTON. Will the Senator yield?