John Johnston

Mr. JOHNSTON

Mr. JOHNSTON. In your amendment, this is section 623(e), providing for judicial review, the last sentence of which says, ``When an action for judicial review of an agency action is instituted, any analysis or assessment for such agency action shall constitute part of the whole administrative record of agency action for the purpose of judicial review of the agency action.'' My question is, Is that review not under section 706 of the Administrative Procedure Act, and if that is not the applicable section, what is the applicable section? (Mr. KYL assumed the Chair.)

Mr. JOHNSTON. Mr. President, the lines in this debate are becoming very, very clear. If you are for risk assessment, if you are for regulatory reform, you should be for the Dole-Johnston bill which is pending. If you are against that reform, you should be for the Glenn- Chafee substitute because, Mr. President, the Glenn-Chafee substitute is sham reform. Make no mistake about it, it is totally consensual. There are no requirements to it. If the agency head wants to do it, it will be done. We are told that this is an outgrowth of the Roth bill which came out of committee unanimously, with both Democrats and Republicans supporting it, and so it did. And it had some teeth in it. All of those teeth have now been removed, so now it is totally consensual. We do not need a bill for consensual reform. We now have that. That is the problem. Right now there is a risk assessment rulemaking which applies to Federal agencies, but it is consensual and they do not do it--and that is the problem. We have been told there are all these lists of these rules, the top 10 list we have been talking about here on the floor, and that some of those were not Federal rules, they were State rules or whatever. But what really is the problem? The problem is that Federal agencies today are not doing the risk assessment, are not doing the cost-benefit analysis, are not using good science, and their regulations are a disaster. Who says so? EPA says so. In their own studies they have determined that the risks which they have rules against are risks perceived by the public rather than real risks. So anyone who says there is no problem with rulemaking, let them go on like they are doing, let them be consensual; we can trust these bureaucrats, they have done a great job--those who say that are not reading EPA's own documents. I say this is a consensual bill. It has no teeth. What is the basis of saying that? If you look at section 625 of the Glenn-Chafee substitute, it says that the agency head picks the rules to be reviewed ``in the sole discretion of the head of the agency.'' Let me repeat that. According to the Glenn-Chafee substitute, the only rules to be reviewed are those which the agency head picks at the sole discretion of the agency head. If there was any chance of any court reversing that discretion, that also is totally removed by section 625, which says on judicial review that ``judicial [[Page S 10096]] review of agency action taken pursuant to the requirements of this section shall be limited to review of compliance or noncompliance with the requirements of this section.'' What does that mean? It means when you judicially review, you look at that phrase ``sole discretion of the head of the agency,'' and it disappears. There is no judicial review. There is sole discretion of the agency. There is nothing enforceable. So if Carol Browner, the head of the EPA, decides she wants to review a rule she can do so. And if she does not want to, guess what, Mr. President? Nobody can force her to do that. She can do that today. She can do that today. So why do we have all these pages of bills if we are going to adopt the Glenn-Chafee substitute? What is the point of all that, if it is all going to be consensual? If we think these bureaucrats are doing a great job? How about new rules? First of all, let me compare that with the Roth bill. Under the original Roth bill, which came out unanimously, all rules had to be reviewed by every agency head, every single rule had to be reviewed--every single major rule, $100 million, had to be reviewed. And at the end of 10 years they were sunsetted, boom, unless they were continued or modified, which, in turn, would have been a major Federal action or final agency action subject to judicial review. So under the original Roth bill, it had sharp teeth. In fact, I think its teeth were maybe even a little too sharp because they had to review all the rules. But the fact of the matter is, all those rules were there to be reviewed and they were there, there was judicial review of the agency action. So if you were an aggrieved party and there was one of these bad rules, either it was sunsetted or you had your right to come in and have your say. Under the Glenn-Chafee bill, all of those rules out there, which again EPA, in its own documents, says do not realistically reflect risk--some of them imposing hundreds of millions of dollars, hundreds of billions of dollars in some instances, costs on the taxpayers and on citizens--you cannot get to them. You have no right to be heard. You have no ability to review those rules. Oh, you can call it special interest. You can say special interests should not be able to come in and be heard on these rules. I can tell you who pays for those rules. It is the American taxpayer. It is the American citizen who pays for those rules. How about the new rules under the Glenn-Chafee amendment? We have a new provision here that says you do not have to do a cost-benefit analysis if a cost-benefit analysis is ``expressly or implicitly inconsistent with the statute''--``expressly or implicitly inconsistent with the statute.'' And do not forget the agency head is able to interpret the statute and that judgment is reversed only if it is arbitrary and capricious. So a new rule comes along and the head of the agency says, ``I think this is not expressly inconsistent.'' There is nothing in this new statute that comes along that says you should not do a cost-benefit analysis. There is nothing here that prohibits it. There is no language on it. But I, agency head, think it is implicitly inconsistent with the statute. If there was ever a subjective rule, beauty in the eye of the beholder, unfettered discretion in an agency head, it is found in this word ``implicitly'' inconsistent. Implicitly inconsistent--Mr. President, it is a hole wide enough to drive three M-1 tanks side by side through and never touch the sides. It does not pass the straight- face test. Really, ``implicitly inconsistent''? If that is not enough, they have taken out the rule about the benefits justifying the costs. I have told my colleagues, when we initially came up almost 2 years ago with the first risk assessment amendment--which passed overwhelmingly here in the Senate--of the example of the carbon 14 rule which EPA came up with which set these limits at 0.063 of the amount of carbon 14 contained in the body naturally, and they set that limit at that amount. Yet, it was going to cost $2.3 billion to comply with the rule. If there was ever an example of something that needed to be done--I mean you needed--they did not know what it was going to cost, and it was clearly not a risk. In other words, this was over 6,000 times the risk of dancing with your wife than was allowed in this carbon 14 provision. But it was going to cost $2.3 billion to comply with it. Why should you not have that kind of information? Why should not that be there? Under this new language you do not have to certify that the benefits justify the cost. All you have to do is indicate whether the benefits justify the costs. In other words, rather than a rigorous test that says the benefits ought to justify the cost, all you have to do is sort of give the information whether it is or whether it is not. It does not matter in the bill. So, Mr. President, we have consensual legislation that does not make any requirements on anybody to do anything. And it is, as I say, sham reform. Now, if you are against risk assessment, if you are against cost- benefit analysis, vote for this amendment because you can feel very confident that you are not going to change anything in the Federal Government, that it is going to be business as usual, that we are going to let the bureaucrats continue to waste the money of American taxpayers and American citizens as they have in the past by the hundreds of billions of dollars. Mr. President, there really are two bills being debated; two Dole- Johnston bills. One is the bill that is before the Senate. The other is this fictitious bill that is misdescribed, mischaracterized, factually misquoted. And let me tell you what I mean. My friend from Ohio, Senator Glenn, just said that the Dole-Johnston bill requires the cheapest solution. He went on to say you could not get an alternative that cost a little more and saves 200 lives. He just said that, Mr. President. Mr. President, here is the decisional criterion. It says you adopt the ``least cost.'' Or ``if scientific, technical, or economic uncertainties are nonquantifiable benefits to health, safety, or the environment, identified by the agency in the rulemaking record make a more costly alternative that achieves the objectives of the statute appropriate and in the public interest and the agency head * * *'' explains that, then you may adopt the ``more costly alternative.'' What are ``nonquantifiable benefits to health, safety, or the environment?'' Mr. President, the value of 200 lives is first of all a benefit defined as a benefit in the bill. Second, it explicitly states that you can have a more costly alternative; not only that, but ``scientific, technical, or economic uncertainties'' because the science is frequently uncertain. Mr. President, it escapes me how people can continue to say that we require the ``least cost alternative'' when the plain language of the bill states otherwise. I mean, why can people not understand the English language? Why can they not understand this, Mr. President? It is clear. And we have continually stated what that English language is. The fact of the matter is that the agency head under this has enormous discretion. And the agency head ought to have enormous discretion. But it requires this rigorous analysis so that if there is uncertain science the agency head has to make an explanation of those considerations. And if it is nonquantifiable benefits to health, safety, or the environment, you have to make an explanation of those things. It is designed to focus the logic of the thinking of the agency process to make them focus on what it is they are trying to achieve because in the past that has not been done. We do not know. With that carbon 14 regulation, we just did not know what the thinking was because they had ignored their own scientists, did not know what it was going to cost, and trotted out the regulation without any idea of what they were doing. Mr. President, let me turn to judicial review. The judicial review provisions of the Roth amendment have changed at least twice since Senator Roth reported that legislation. It was changed again this morning. Mr. President, the fact of the matter is that the Glenn-Chafee substitute has the faults which they accuse the Dole-Johnston bill of having--which we do not have and which they do have. May I explain? [[Page S 10097]] First of all, let me say what the problem is here. What we wanted to achieve all along was to have a review of the final agency action; that is, in most cases that will be the major rule. We wanted that to be approved, to be tested according to the standard of whether or not it is arbitrary and capricious or an abuse of discretion. Those are the old standards in the Administrative Procedure Act. We wanted those standards to govern the final agency action. We did not want the cost- benefit analysis, or the risk assessment provisions to be independently reviewed so as to test them for the procedures, for the adequacy of the procedures. The reason we wanted the risk assessment and the cost-benefit analysis to be made part of the record is because only by making them part of the record and considering that can you understand whether the final agency action is arbitrary and capricious. In effect, it would be a rule of common sense. Let me tell my colleagues how it might work on three rules which may come up in the future. They are not proposed now. But it will give you a good indication of what is at stake here. One possible rule is electromagnetic fields, so-called EMF. EMF regulations could cost literally hundreds of billions of dollars because it could require the relocation of electric lines, high power tension lines all over this country. We have ongoing studies now, scientific studies, as to whether or not EMF causes cancer, and if so, at what levels, and to what extent. I might tell my colleagues that we do that under the Energy Committee. We have been funding those studies. I do not want to prejudge all of them. But the preliminary studies indicate that the level at which people receive EMF does not cause cancer. But again, that will await bringing in all of the science. Let us suppose you have an EMF rule here, and let us suppose that the scientists that they pick for peer review violates section 627 on conflict of interest. Let us say, for example, that all of the scientists, if it is EPA who is doing the rule, are from the electric power industry. They come up with a rule that says no problem; it does not cause cancer. Why, Mr. President, in that kind of situation, with the importance of that rule, the huge amount of expense involved, the centrality of the question of science, then I believe, if I were in the Court--and that is the record we had under this language--I would reverse it and send it back and say you have to get this science right, because the science is very important. On the other hand, if you had a rule where the science is fairly well understood and is not central to the issue, I think you could leave out a risk assessment altogether, and the final agency action might not be arbitrary and capricious. The point is that the risk assessment might or might not, depending on the circumstances, be grounds for reversal. Let us take another one: radon. We have had various radon legislation and some rules up on radon. Radon could be very expensive as well. And the scientific judgments there are very well known. We know radon causes cancer, but at what levels does it cause cancer, and in what sections of the country is it a risk, and what efforts ought to be made to deal with radon. If you picked scientists who are, say, with the home building industry and are not impartial, I can imagine a reversal on that ground. If you did not have a cost-benefit analysis on something like radon, which could cost a huge amount of money, I can imagine a reversal on that ground. Or suppose we have a regulation on second-hand tobacco smoke, to name one of our biggest areas now. Suppose you had a regulation on that, and all the scientists came from the tobacco companies. You mean to tell me you could not reverse on that ground? Because the science is so critical to that particular issue. On the other hand, if you were going to be setting a hunting season--I think, by the way, hunting seasons have been expressly exempted. In earlier versions of the act, they were not. But I can imagine that you might leave out the cost-benefit analysis altogether in setting a hunting season, and it would not affect the final agency action. So it is a rule of reason, and under this language: Failure to comply with this subchapter-- This subchapter, of course, deals with risk assessment and cost- benefit analysis. and subchapter III may be considered by the Court solely-- s-o-l-e-l-y, which means solely. for the purpose of determining whether the final agency action is arbitrary and capricious or an abuse of discretion. Mr. President, we are continually told by the opponents of risk assessment that ``solely'' does not mean solely. ``Solely'' means something else. ``Solely'' means solely part of the time and means something else some other part of the time. Mr. President, it is as clear as the noonday Sun on a cloudless day that ``solely'' means solely and only for the purpose of determining whether that final agency action is arbitrary and capricious, which is exactly what we want to achieve. Now, Mr. President, let us look at this new iteration of the Glenn- Chafee judicial review language. It says: When an action for judicial review of an agency action is instituted-- In other words, when you get to appeal. any analysis or assessment of such agency action shall constitute part of the whole administrative record of agency action for the purpose of judicial review of the agency action. ``For the purpose of judicial review of the agency action.'' Now, what is the guiding rule of review of agency action? Under the Administrative Procedure Act, particularly section 706 of the Administrative Procedure Act, it provides for review of all agency action--all final agency action. So I assume that section 706 is the guiding rule for appellate review. I tell my friend from Ohio that I am going to ask him some questions about it if he is willing to answer when I finish these remarks because I would like to know what in his opinion the standard of that review is. When you say, ``judicial review of the agency action,'' what is the standard? Now, if it is section 706, section 706 has two pertinent provisions. One is the same standard we have here, that is, arbitrary and capricious or an abuse of discretion. But it also has subsection (d) that says ``without observance of procedure required by law.'' Now, if I am correct that it is section 706 under which this is reviewed, then under the Glenn-Chafee amendment by that last phrase you can review both the arbitrary and capricious nature of the final agency action, the abuse of discretion of the final agency action, and you can review with the phrase ``without observance of procedure required by law.'' Now, there is another provision, though, of the Glenn-Chafee judicial review provision upon which they rely which says this: If an analysis or assessment has been performed, the Court shall not review to determine whether the analysis or assessment conformed to the particular requirements of this chapter. Now, the operative phrase here, Mr. President, is ``particular.'' One of the oldest rules of statutory construction is that when two provisions are in pari materia; that is, when they are on the same subject and particularly when they are in the same section, you read those two together so as to give life to both of them, so that you do not nullify one at the expense of the other. Now, I will tell you what this means to me. ``Shall not review to determine whether the analysis or the assessment conformed to the particular requirements of this chapter.'' The word ``particular'' must have some meaning, and I believe that meaning is to institute a de minimis test; that is to say, you do not reverse for procedural errors of small degree, but you may reduce for procedural errors of greater degree. If that is the not the meaning, then what is the meaning of the word ``particular''? They could have said conform to the requirements of this subchapter as opposed to the particular requirements of this subchapter. And if, Mr. President, I am wrong on that, then you still have a review under the other provisions of section 706, which leads you to the same conclusion we have here. So either the Glenn-Chafee amendment goes beyond what our amendment goes to by at least implicitly allowing a procedural review, or it at [[Page S 10098]] least provides for a review of the final agency action and to the same extent that ours does. So now, Mr. President, if the distinguished Senator from Ohio would yield for a few questions, if I may ask him, when you say ``purpose of judicial review of the agency action,'' by what rule is that? Is that not under section 706 of the APA and, if not, then under what standard?

Mr. JOHNSTON. This is the exception. There is no rule that needs to be reviewed, unless the agency head wishes to in his sole discretion, and that is not reviewable.

Mr. JOHNSTON. Is the Senator aware that the original Roth bill that came out of committee unanimously, as the Senator says, required a review of rules?

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

Mr. JOHNSTON. Mr. President, why does the Senator not give us a little time to work this issue? I personally have no objection to this. Rather than seal in a nongermane amendment at this point--that may be tonight--we may be able to make some progress on some other amendments tonight. If my friend will withhold, he will have a right to bring up his amendment at some other time. (Mr. GRAMS assumed the chair.)

Mr. JOHNSTON. Mr. President, I am familiar with the general problem. Of course, all of us have run into this. I am less familiar with the solution, and I am totally ignorant of whether the committees of jurisdiction have had a chance to look at it and whether they approve or disapprove. I wonder if the Senator could withhold to a later status in this bill and see if this can be cleared. I see Senator Roth. I do not know whether that is within his committee of jurisdiction. Perhaps he can speak to it.

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

Mr. JOHNSTON. Mr. President, what is the subject of this amendment?

Mr. JOHNSTON. With this bill, the opponents look for ghosts and trouble everywhere, they find it everywhere, and they apply to it the wrong solutions. Mr. President, this language is clear, and I do not care who says otherwise. Show me where that is unclear. As I say to my friend from Michigan, his interpretation of his judicial review provision is exactly what ours says. His gives with the left hand a procedural review, takes it away with the right hand in ambiguous language, and interprets that with court cases which he says are clear. But we obviate the problem for any of that by simply saying there is no procedural review. He has a procedural review in his proposal. We do not have that in ours. That is why ours is preferable. It is clearer. It is free of all ambiguity. I yield the floor.

Mr. JOHNSTON. I am reminded, I tell my friend from Tennessee, of the old quotation from Groucho Marx, who said, ``Politics is the art of looking for trouble, finding it everywhere, and applying to it the wrong solutions.''

Mr. JOHNSTON. Exactly and precisely. My friend from Tennessee puts it very well.

Mr. JOHNSTON. That is exactly right.

Mr. JOHNSTON. That is absolutely correct.

Mr. JOHNSTON. The Senator is correct. And the critics read out of that statute the word ``solely,'' and they find ghosts everywhere. But ``solely'' means solely, and it is right there in the language. For the life of me, I cannot understand where people find ambiguity in it other than they are looking for it.

Mr. JOHNSTON. The answer is yes.

Mr. JOHNSTON. You mean judicial review under titles II and III of cost-benefit analysis?

Mr. JOHNSTON. Would it apply?

Mr. JOHNSTON. Section 625. The answer is yes.

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

Mr. JOHNSTON. Sure. I think that may have been put into the Record earlier. I think that was put into the Record earlier this morning. I believe we might check with Mr. Weiss.

Mr. JOHNSTON. Look, we have a whole big section there that speaks for itself, of course, that means the risk analysis and cost-benefit, and it means peer review. And, as I said earlier, there will be times when procedural defects, if someone calls them that, might throw the whole rule out. Suppose it is a regulation on second-hand smoke. If all the scientists were from the tobacco industry, it would be fundamentally unfair and the scientific judgment would be important. And if I were the judge I would throw it out, even though that is a failure to comply because it would render the whole thing as an abusive discretion and arbitrary and capricious.

Mr. JOHNSTON. We say, ``Failure to comply may be used solely for the purpose of determining whether that is arbitrary and capricious,'' and that differs not at all from what you have said. You allow for a review of procedures. What does it mean in subsection (d) when you state ``without observance of the procedure required by law''?

Mr. JOHNSTON. Look. That is precisely the same. That is an additional interpretation. ``Arbitrary, capricious, an abuse of discretion.'' That is the standard that we bring forward. We leave out ``otherwise not in accordance with law'' because we wanted to leave out the procedural review. [[Page S 10121]] That is one of the most litigated and judicially interpreted phrases in all of the annals of judicial review. And it is the same precise and exact standard which you claim is provided in your review. You see the only difference between yours and ours, we both use ``arbitrary, capricious, an abuse of discretion.'' But you have ``observance of procedure required by law.'' But you claim that either that is meaningless or that your language takes it away. So I say it adds nothing to it other than ambiguous.

Mr. JOHNSTON

Mr. JOHNSTON. Mr. President, Senator David Pryor is a man of many accomplishments. In his distinguished career, he has been a journalist and founder of a newspaper, a member of the Arkansas House of Representatives and a two-term Governor of his State. In Arkansas, they still talk about his achievements as Governor during the 70's recession. Carefully and caringly, he cut spending without cutting the programs that people depended on. He is also a lawyer who served three terms as the Representative of the Fourth Congressional District of Arkansas. He has served three terms in this body as a U.S. Senator and the last time he ran, he was so popular that nobody bothered to run against him. As a member of the Agriculture Committee, he has actively shaped innovative programs and policies which have helped the farmers of Arkansas while furthering the leadership position of the United States in the world agricultural community. More than anything else, what has distinguished Senator Pryor's legislative work in the U.S. Congress has been his sensitivity to the needs of private citizens. As a member of the Senate Finance Committee, he wrote a ``Taxpayer Bill of Rights'' which guaranteed--for the first time in 40 years--the rights of individual citizens in their dealings with the IRS. Senator Pryor is known as an advocate for senior citizens. His advocacy is based on an extensive acquaintance with their situation, a compassionate understanding of their needs and a thorough knowledge of the existing support systems for the elderly. As a Member of the House of Representatives, he at one point worked incognito to gain first-hand experience of conditions in the nursing home industry. He served for 6 years as chairman of the Senate Special Committee on Aging, and, as ranking member, is continuing the fight to save Social Security and bring down prescription drug prices. Senators, and I was one of them, heard his announcement that he did not plan to run again in 1996 with both relief and great regret. Relief, because he works too hard. If by leaving the Senate he can stop working too hard, then that is the right thing to do, for his health and for his wonderful wife and family. But I do feel sincere regret, for the Senate and for the Nation, that in 1996 we will lose his legislative skills and his compassion for the individual. And speaking for myself, I feel genuine regret that our working relationship will be ending. It has been a warm, collegial, productive relationship for 17 years, most notably on the Aging Committee. I have appreciated both the astuteness of his insights and the pleasure of his company, and hope to do so for the remainder of our terms.