John Johnston

Mr. JOHNSTON

Mr. JOHNSTON. Briefly.

Mr. JOHNSTON. It is absolutely true. Professor Graham has testified before our committee. Of course it allows for that.

Mr. JOHNSTON. I am happy to yield to the Senator.

Mr. JOHNSTON. There are thousands of people who die in automobile accidents and many whose death could be prevented by back seat seatbelts. That is a nonquantifiable value. We do not have to get least cost. The very idea that we say we have a rule that would save a lot of lives, that we have to go to the least cost which is front seat instead of back seat, I submit to my friend, is patently absurd.

Mr. JOHNSTON. This is for health, for life.

Mr. JOHNSTON. Yes.

Mr. JOHNSTON. Mr. President I want to keep this discussion to a question, and not a speech. Again, the question is, what is the value of a human life? It is, in my view, very clearly by nature nonquantifiable. That is the reason for putting in the language.

Mr. JOHNSTON. Mr. President, let me ask my friend from Michigan, it is right there in the definition of section 621. If we took that word ``nonquantifiable'' out, would the Senator then agree with me that it does not require least cost, that this discretion is there? Or is this just another one of the ghosts, once we get out of here there are more ghosts to be found? Will this solve the provision?

Mr. JOHNSTON. It is because, Mr. President, the definitions in section 621 state clearly that the term ``benefit'' means the reasonably identifiable significant, favorable effects, quantifiable and nonquantifiable.

Mr. JOHNSTON. Yes.

Mr. JOHNSTON. Mr. President, the distinguished Senator from California has raised eight different points. There is a full, complete, definitive and, I believe, unassailable answer to each of these. If the Senator will allow me, I will tell her why in each of these instances, the information she has been given is dead, flat wrong. You know, Mr. President, there is a saying that ``There is none that is so blind as he who will not see.'' I think we have, on behalf of some of these agencies that have been advising my friend from California, a terminal blindness. Let us start with No. 1. We are told again that the Dole-Johnston bill requires the least-cost alternative. Mr. President, here is the language. Least cost alternative, or if scientific, technical, or economic uncertainties, or nonquantifiable benefits to health, safety, or the environment identified by the agency in the rulemaking record make a more costly alternative * * * appropriate or in the public interest * * * they can do so. Mr. President, what could fit more perfectly into these kinds of benefits [[Page S 10118]] than shoulder belts, back-seat seatbelts, and airbags? As my friend from California says, an airbag is ``much safer but more costly.'' Now, I ask my friend, what is ambiguous about that? It is just as plain as the nose on your face. If it is good for safety, even though it is not quantifiable--because the value of a human life is, by its nature, nonquantifiable--you can do it. Black boxes on airplanes. Mr. President, the same thing. Now, how do my colleagues continue to say that this language requires the least-cost alternative?

Mr. JOHNSTON. Sure.

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

Mr. JOHNSTON. If the Senator will yield, I submit to the Senator the Glenn-Chafee bill does not make such a requirement. It makes a requirement of stating whether the benefits justify the cost. But it is no longer a decisional criterion. You state it, but you do not have to comply with it. That is the point.

Mr. JOHNSTON. The answer is, of course, I want that ``USDA inspected'' label on there, and I want scientists to make that inspection based on scientific standards and not on some public opinion poll or some prejudice or some superstition. Put good science in the picture. That is all we are saying. I want the inspections to continue, but with good science. That is what we are about. You know, it is the scientists who discovered E. coli, not some pollster out there reading the results of the last election.

Mr. JOHNSTON. I do not know what happened in the House, whether or not lobbyists were involved in it. That is irrelevant to this bill. We took the original Dole bill which came out of committee, which, in turn, differed from the House bill, and made over 100 changes, including all of those I talked about. So I do not know how it started or how it changed or how the House did it or what the Louisiana Legislature did. I am telling you what is before the Senate now, which is the relevant thing, and what is before the Senate now is a tough bill which incorporates all of those good provisions for clean air and water that the Senator speaks about.

Mr. JOHNSTON. And that is why we have every single provision of that Clean Air Act unchanged, not overridden, and the full force and effect if this bill passes. Did the Senator know the original risk assessment was proposed by a Democrat, namely me, and passed overwhelmingly here?

Mr. JOHNSTON. Absolutely.

Mr. JOHNSTON. It differs with this bill as night does day.

Mr. JOHNSTON. Absolutely not. As a matter of fact, we have specifically stated that all of those laws to which the Senator refers will not be changed in any way, will not be overridden. I thought it was clear in the original Dole-Johnston bill, and we have had a lot of debate here, as the Senator knows, about the question of whether it was clear. We accepted the amendment that made it doubly clear; that is, that each one of those laws will remain in full force and effect, all the standards will be there. What we are dealing with here is rules. When you take those laws and translate them into rules, what we are saying is that you must look at those laws through the lens of sound science and proper risk assessment, rather than public opinion, politics, emotion, prejudice, superstition--whatever. We are saying translate those good laws, which protect public health and safety, but do it in a rigorously logical and scientifically appropriate way. Would you agree with that?

Mr. JOHNSTON. I have a copy of it here. I wonder if the Senator is aware that in 1990, the Science Advisory Board did a study of that and, in effect, concluded that the first study was correct; that is, that it did not comport with scientific evaluation of those risks, but rather with public perception of those risks. The Senator was not aware of that?

Mr. JOHNSTON. The Senator has been talking about the list of the top 10 worst regulations. Frankly, I have not paid too much attention to those anecdotal sort of things. Is the Senator aware that EPA did a study of its own [[Page S 10110]] regulations in 1987 called ``Unfinished Business: A Comparative Assessment of Environmental Problems,'' and that they concluded that their own estimation of risk did not comport with scientific risk, but rather with the public opinion about those risks? Is the Senator aware that was EPA's own evaluation of its own regulations?

Mr. JOHNSTON. I wonder if the Senator will yield.

Mr. JOHNSTON. Mr. President, getting back to this question of the scope of review under section 706 of the Administrative Procedure Act, which is contained in our bill, there is a subsection (e), about which there has been some comment and argument. Subsection (e) adds new language as follows, that: The reviewing court shall . . . hold unlawful and set aside an agency action if it is: (e) . . . substantial evidence in a case subject to section 556 and 557 . . . and otherwise reviewed on the record. Excuse me, it is not subsection (e). It is subsection (f). It says it shall hold unlawful an action: Without substantial support in the rulemaking file viewed as a whole, for the asserted or necessary factual basis. This, as I understand it, is a principle of law which is about a century old. And this codifies that view. It was first proposed by Senator Bumpers, and I hope Senator Bumpers will come over and defend this provision. From my own point of view, it adds, really, very little. It has very little to do with risk assessment. It has nothing to do with risk assessment or cost-benefit analysis because that provision does not relate to risk assessment or cost-benefit analysis. That relates to the Administrative Procedure Act appeals, which are outside of cost-benefit analysis or risk assessment. So it is really, in my view, not a very important issue in this bill. I hope and believe that Senators will be able to get together on that issue. Mr. President, I believe that we have accommodated virtually every complaint with this bill, save some of those which we have debated. We have not yet satisfied everybody on toxic relief inventory. But I believe that is also in the total scheme of things, not a terribly important provision of this bill. But we have satisfied the critics of the bill on the question of supermandate. That was always the hot button in this bill. The House bill has a supermandate; that is, under the House bill, you can change existing standards under existing law. Expressly, they override existing law. Mr. President, we have made it clear--expressly, explicitly clear-- that there is no supermandate in this bill. We have straightened out the judicial review provisions, so there is no independent review of the procedures as opposed to the final agency action. We have passed the threshold of $100 million, the threshold that Senators so insisted upon. It is done. It is in the bill. It is passed. We have straightened out the petition process so that there is one opportunity to get on the list for review, if you were left off. It is 180 days in length. And, if you miss that 180-day window, then you are foreclosed for a full 5 years. The appeal from that provision is consolidated. So that the former criticism of the Dole bill, the original Dole bill, which was that there would be this multiplicity of appeals, is simply not here on this bill. There is one consolidated appeal. It will not overload agencies or their legal staffs. There will be simply one appeal and one rulemaking action with respect to the schedule. We have dealt with the effective date, so that those ongoing rules, which have been in the making for, in some cases, 2 and 3 years, will not be subject to either cost-benefit or to risk assessment. They do not have to do it. They are exempted totally. In fact, all rules are exempted from cost-benefit or [[Page S 10108]] from risk assessment, if the original notice of proposed rulemaking was filed on or before April 1st, 1995. If it was filed after that, they have ample opportunity to do what the law requires. Mr. President, we won the fight on Superfund. Superfund environmental activities are now out of this bill. And we have passed the Glenn sunshine amendment. What we have not done is to go along with what the Glenn-Chafee amendment now requires, which is to throw out any requirements and to make this bill completely consensual, because the Glenn-Chafee substitute is sham reform. If you do not want to have cost-benefit analysis, if you do not want to have risk assessment, then vote for the Glenn-Chafee amendment because it is all consensual. If an agency head wants to do it in his or her sole discretion, then vote to put it in their sole discretion. There is no judicial review. There is no requirement. And you can be sure it will not be done. It will be business as usual if you vote for the Glenn-Chafee amendment. There is no requirement of meeting a test that the benefits justify the cost. Oh, to be sure, you must state whether the benefits justify the costs, but you do not have to meet that test. You just give the information and go merrily on your way and nobody can question you. Mr. President, the Dole-Johnston amendment is a workable, logical, scientifically sound set of requirements that will put agencies of this Federal Government to a rigorous set of logical steps so that we can avoid what we have under the present law, which is regulations not based on science, not based on real risks, but, as EPA said in 1987 in their own study, that systematically they rate risk according to what the public thinks about those risks as opposed to what the scientists think about those risks. That is a 1987 study by EPA, not some industry group, not some right-wing think tank, but EPA's own study, which said in 1987 in their publication entitled ``Unfinished Business,'' that their estimations of risk were wrong. In 1990, EPA's own Science Advisory Board made a new study of the old study. They made a new study to determine whether the old study was correct. And they stated that the 1987 study was correct; that is, EPA has not been using science or the proper estimation of risks. To bring science into the proposition is not to erode health standards. It is not to allow E. coli in meat. It is not to make people less safe. To the contrary, the way we determine whether someone is at risk in the health, safety, or the environment is by a scientific evaluation. You do not decide what to do on a health standard by consulting some soothsayer or some pollster or some political operative. You determine what meets a standard of health by looking at the best science available. That is what we do in this bill. We require the best science available--not the best politics, not the best bureaucrat, not the pressure group with the most members, not the one that can make the most noise, not the one that can meet the most people at a public meeting, but the best science available. And we require them to justify the cost--not to get the cheapest, not to get the least cost, but to get that which satisfies the requirement of health, safety, or the environment, and satisfies the uncertainties of science or data. Mr. President, the Dole-Johnston bill is a tightly drawn bill which serves the public well. I hope my colleagues will endorse that bill today and vote cloture. Mr. President, I yield the floor. Mr. DORGAN addressed the Chair.

Mr. JOHNSTON. Did the Senator have a question for me?