John Johnston

Mr. JOHNSTON

Mr. JOHNSTON. Under the original Dole amendment, people would be able to petition as often as they wished to. They would have an automatic judicial review of that. Sally Katzen suggested--I think it was an excellent idea. I think the Senator carried forward some of the ideas with that, which was we have 180 days after the publication of the initial list within which to petition with a very high threshold. That is, we have to show a substantial likelihood that the existing rule does not meet the test. If you do not make the application during the 180 days, you cannot apply again for 5 years. This is only an every 5-year process. The appeals from that are consolidated so that there is only one appeal, so that the very problems that I was talking about in my bill, that Sally Katzen was talking about in our negotiating session, were accepted on terms suggested by her. It deals with that problem of agency overload and court overload. We did that. I think it was an ingenious suggestion that she made. We accepted it hook, line, and sinker. We said, ``Yes.'' That is the problem with this bill. It is hard to accept ``yes'' for an answer. Mr. President, this bill, virtually everything, virtually all the major areas of opposition to this bill as suggested have been dealt with, and dealt with successfully. Supermandate--that is, does this statute override any other underlying statutes? We, first of all, made it clear in the Dole- Johnston original bill and Senators came back and said it is not clear. Well, we made it absolutely clear by stating it again on terms agreed to [[Page S 10102]] by both the left and the right of this Chamber. Supermandate is solved. Judicial review, I submit, is solved. The language is clear. The $100 million threshold, that is a big thing. We had the amendment here and we passed it. It is now part of the process. The petition process, we accepted the Katzen suggestion, wholly and completely, and it is now incorporated. Now, they may want more. Was it Samuel Gompers, the labor leader, when they asked, ``What does labor want?'' and he said, ``More, more, more.'' Whoever said it, they should have said it for this bill. Because they come in and ask for things, and we do them, and somehow it is not enough. Effective day--we dealt with the effective date. The problem was we have all the ongoing rules that have to be redone. We say, OK, if you have a notice of proposed rulemaking out by April 1 of this year, you do not have to go back and redo any cost-benefit or risk assessment. You are home free. Now, I think that solves the problem because if you just started with a notice of proposed rulemaking since April 1, you got plenty of time to incorporate that in your bill. Superfund--Mr. President, one of the toughest issues in this bill as to which there was a huge amount of disagreement, I very strongly sided with the Senator from Ohio in thinking that all of this environmental cleanup, all of these Superfund provisions ought to be out of here. And we accepted. As a matter of fact, we did it by unanimous consent. We probably should have had a vote to have seared that into the memory of our colleagues, but at least we did it. Superfund is gone. Sayonara. The sunshine amendment--the Senator from Ohio suggested it. We accepted it. It is done. Now, it is, I am sure, not enough. I am sure that there is not enough we can do to satisfy some people, other than to make this bill solely in the discretion of the agency heads, because that in effect is what Glenn-Chafee does. Solely in the discretion, not reviewable by the court, do it if you want to, but if you did not want to, do not bother. And you have plenty of redress by coming to the Congress.

Mr. JOHNSTON. The advisory boards, in my judgment, are useful, and I tried to sell advisory boards. I do not think they are central to the process, but if the Senator from Ohio thinks they are important, I will come back----

Mr. JOHNSTON. I thought it was in our negotiating session. Does the Senator wish to get advisory boards back in?

Mr. JOHNSTON. Mr. President, I appreciate that question. This is the very provision that we accepted, the advice of Sally Katzen, who is head of OIRA, and other Democrats. Frankly, I think we ought to have advisory boards. But the advisory boards were objected to by the Senator from Ohio, the Senator from Michigan, Senator Levin, and others, who said we should not have this advisory board, and it would clog up the thing. I think advisory boards would be useful.

Mr. JOHNSTON. I tell my friend that the American public has come to Congress. That is what we are doing here today. That is what this is all about. EPA has reviewed its own rules and says they are not based on real risks, they are based on public perceptions of risk and we need to do something about it. Everybody says let us do something about it. And now that is where we are. There was a 1987 study called ``Unfinished Business'' where EPA systematically ranked the seriousness of the various risks that it was addressing or could address. The report found that there was little correlation between the risk that the EPA staff judged as most threatening and EPA's program priorities. Instead, EPA found a correlation between EPA's priorities and public opinion on the seriousness of the various environmental threats. ``Overall, EPA's priorities appear more closely aligned with public opinion than with our estimated risk.'' Mr. President, these conclusions were confirmed in 1990 by EPA's Science Advisory Board, in its report entitled ``Reducing Risks.'' The report urged EPA to target its environmental protection efforts on the basis of opportunities for the greatest risk reduction. So, Mr. President, I think we now have the picture. The Glenn-Chafee amendment allows aggrieved parties to come to Congress, and that is it. Other than trusting in the judgment--to use the words of the statute, ``the sole discretion of the head of the agency,'' that is it. You have the sole discretion of the head of the agency, and that is exactly what we have right now. Mr. President, right now, we have the sole discretion of the head of the EPA. We have the sole discretion of OSHA and all these other places that are run amok. Listen to what EPA says about its own rules. This is not some rightwing interest group talking about how badly EPA is assessing its rules. This is EPA saying it. Its own Science Advisory Board confirmed it in 1990, and we are told, well, trust them. Let us continue to go with unfettered discretion, with ``sole discretion.'' Now, that is what Glenn-Chafee says--``sole discretion.'' Now, Mr. President, we have been on the floor for 6 days. This is the 6th day on this legislation, the 6th straight day going through all of these provisions and arguing about these provisions and all that. And we are told, well, leave it to the sole discretion of the agency head. And then, as for new rules, if it is implicitly--whatever that means, and I think it means whatever in the sole discretion of the agency head they want it to mean--you do not have to do for a new rule the cost- benefit analysis. By the way, you do not even have to justify the cost--that benefits justify the cost.

Mr. JOHNSTON. Let me ask my friend to answer this question: EPA does not do anything. It puts no rule up for review. What is your remedy if you are an aggrieved party, if you are outraged citizens, if you are millions of American citizens, what is your remedy? To come to Congress?

Mr. JOHNSTON. Well----

Mr. JOHNSTON. Well, let us say that the director of EPA or another agency looks back and says, ``We have done a heck of a good job, we have great bureaucrats in this agency, and we do not think anything needs to be reviewed.'' So the slate is clean, it is a tabula rasa, it is a devoid of any rules to be reviewed. I am an aggrieved party and what is my remedy? To come to Congress and ask them to pass an act? That is it, is it not?

Mr. JOHNSTON. Oh, well, sure. Congress can always pass a law. The Constitution provides that. This bill does not provide that. But save Congress enacting a law, it is consensual, is it not?

Mr. JOHNSTON. If you ever got a cost-benefit analysis done under Glenn-Chafee, all that is consensual. If you want to do it, if you feel like it, if it feels good, do it. Otherwise, do not do it because you do not have to. It is business as usual. Am I not right that it is all consensual on the lookback process under Glenn-Chafee; is that correct? [[Page S 10099]]

Mr. JOHNSTON. You can challenge anything.

Mr. JOHNSTON. Those may be requirements of risk assessment or cost- benefit analysis which, to the extent they are relevant, can be used to challenge the final agency action. Maybe so. But those are only arguments you make. The first one there is notice. Do you really think you are going to throw out a final agency action as being arbitrary and capricious because they did not give notice?

Mr. JOHNSTON. There is the standard right there. It is plain English. It is as plain as it can be. It is ``arbitrary and capricious or abuse of discretion,'' that is the sole and only basis for review of the cost-benefit analysis or of the risk assessment. That is it. Look, read the language.

Mr. JOHNSTON. But you said you would have a separate review, even under what counsel for EPA says, that would come only at the final review and solely for the purpose of determining whether or not the final agency action was arbitrary and capricious; is that not correct? It is clear.

Mr. JOHNSTON. Not 144.

Mr. JOHNSTON. On that first one----

Mr. JOHNSTON. Right.

Mr. JOHNSTON. I want to clear this up, because we say specifically that there is--all right, let me read this, from section 625 of Dole- Johnston: Compliance or noncompliance by an agency with the provisions of this subchapter and subchapter III shall be subject to judicial review only in accordance with this section. (b) except as provided in subsection (e) and subject to subchapter II each court with jurisdiction under a statute to review final agency action to which this title applies has jurisdiction to review any claims of noncompliance with this subchapter and subchapter III. . . . And then next: Except as provided in subsection (e), no claims of noncompliance with this chapter or subchapter III shall be reviewed separate or apart from judicial review of the final agency action to which they relate. And then we state here that that is a review of final agency action. It is as clear as it can be. Now tell me where else you were going to be able to review this? It says ``compliance or noncompliance shall be subject to judicial review only in accordance with this section,'' and there is the section. It is final agency action. Now is that not clear, I ask my friend?

Mr. JOHNSTON. I suggest to my friend from Ohio that there is only one review, explicitly only one review, under our proposal, and that is final agency action.

Mr. JOHNSTON. I do not even know what you are talking about, multitudinous. Name one place.

Mr. JOHNSTON. I say to my friend, that is a different question. That is a different section. We are talking about the review of cost-benefit analysis and risk assessment which, under our language, specifically states that it is solely for the purpose of determining whether the final agency action is arbitrary and capricious. My question to you is, under your language which says--you allow risk assessments--``analysis or assessment shall constitute part of the whole administrative record for the purpose of judicial review of the agency action,'' is that review not under section 706?

Mr. JOHNSTON. That language is excerpted--it is the same standard that you have. That is section 706.

Mr. JOHNSTON. ``Solely''?

Mr. JOHNSTON. That is a different section. For the purpose of compliance with this subchapter, subchapter II, and subchapter III, that is risk assessment and cost-benefit analysis, that review shall be solely on the basis of what is arbitrary and capricious or an abuse of discretion.

Mr. JOHNSTON. That is section 706.