John Johnston

Mr. JOHNSTON

Mr. JOHNSTON. It depends on what kind of health and certain aspects-- --

Mr. JOHNSTON. Of course.

Mr. JOHNSTON. Well, the issue was at least talked about by the Senator from Michigan. I do not know that the Senator from Michigan suggested this exact fix. He was at least in the room. I thought it was he who raised this question of quantifiable and nonquantifiable. Whoever raised it, we changed that definition so that benefit means identifiable significant favorable effects, quantifiable and nonquantifiable, so that you are able to use it, whether it is quantifiable or nonquantifiable, in meeting that test of cost-benefit. This is when you go beyond the quantifiable. You already quantified your benefits, but there will be other benefits nonquantifiable--the value of a life, the value of clean air, the smell of flowers in the springtime--all unquantifiable. That is what you can take into consideration, and we explicitly recognize that. You have already taken into consideration quantifiable, as well as nonquantifiable wants, but we are going beyond the statute at this point. Does the Senator have a question?

Mr. JOHNSTON. No, this was done between the time we filed the first Dole-Johnston amendment----

Mr. JOHNSTON. The answer is we took care of whatever ambiguity there was at the behest of the Senator from Michigan. You will recall our negotiation on this, and we added quantifiable and nonquantifiable to the definition of benefit in section 621.

Mr. JOHNSTON. The Senator has asked a question, and the answer to his question is, if it is parts per million of a toxic substance, therefore it relates to benefits to health or to the environment and, therefore, is specifically covered under the phrase that says where nonquantifiable benefits to health, safety or the environment makes a more expensive alternative appropriate [[Page S 9681]] or in the public interest, then you may pick the more costly alternative.

Mr. JOHNSTON. What is quantifiable with the Senator is parts per million.

Mr. JOHNSTON. The answer is that they could, because those parts per million would relate to a benefit to health or the environment and, therefore, would be a nonquantifiable benefit to health or the environment.

Mr. JOHNSTON. As I say, the simple answer is yes, unless congressional intent prohibits that by having spoken on it, and the Senator's hypothetical example would indicate by the use of the words ``at least'' that it is within a permissible interpretation.

Mr. JOHNSTON. If the phraseology of the statute is ``at least,'' then that in turn would give discretion to the agency head.

Mr. JOHNSTON. Wait a minute. The statute is clear under the Chevron case, the Supreme Court case. What it said is that if the Congress has spoken on an issue and congressional intent is clear, then that congressional intent must be enforced. So that if, for example, you required that you meet 40 miles per gallon as a cafe standard, then I do not believe that the administrator could come in and say, well, look, it would be nice to go to 50 or 55 because we like that more. If Congress has spoken and the intent is clear, then you must follow congressional intent. If----

Mr. JOHNSTON. Let me answer the Senator's question. I think the simple answer is, yes, you can, but there is a caveat. If it is within the discretion of the agency head and the interpretation of the statute to have some leeway as to the interpretation, then yes, you can.

Mr. JOHNSTON. Right.

Mr. JOHNSTON. Yes.

Mr. JOHNSTON. Is it beyond what the statute required?

Mr. JOHNSTON. Not yet. And you can go ahead and do what the statute tells you. Moreover, you can do more than the least cost of what the statute tells you. You can go beyond that if there are uncertainties of science, uncertainties of data or nonquantifiable benefits to health, safety or the environment. So this is over and above to that which the statute required. And the statute required you to do something that was not cost-benefit justified.

Mr. JOHNSTON. Let me tell you why. When you go to (c), then you cannot satisfy your benefits justifying the cost. But the statute required you to do something. And so you are required to go ahead and do what the statute says, notwithstanding that the benefits did not justify the cost. Keep in mind that those benefits included all of your quantifiable as well as nonquantifiable benefits.

Mr. JOHNSTON. If they can pick it up as a quantifiable matter under the definition on 621(5)--no--621(2) and (3).

Mr. JOHNSTON. There is, if the Senator will follow this through with me. See, the agency has a lot of discretion. Now, the agency discretion in the first instance is to interpret the statute. What does the statute mean? There will be a level of discretion between a minimal list interpretation and a maximum interpretation where the agency can pick that interpretation and is not overruled unless their judgment is arbitrary and capricious or an abuse of discretion. So, in the first instance, they can pick that interpretation; that is to say, they can pick that level of cost. Now they must meet the test of the benefits justifying the cost. But when you meet the test of the benefits justifying the cost, you use the definition of benefits as found on page--I think it is 621, subsection (5)--which says that benefits include both quantifiable and nonquantifiable benefits to health, safety and the environment. So that, if it is quantifiable, then you pick it up in the first instance of benefits justifying the cost. But we wanted to be sure that sometimes there will be some lagniappe, some nonquantifiable benefits to health, safety and the environment. I believe that clean air is not quantifiable as a benefit. I believe that the benefits of health are non-quantifiable. Notwithstanding, my friend from Michigan thinks a life, you can put a dollar value on it.

Mr. JOHNSTON. First of all----

Mr. JOHNSTON. Yes.

Mr. JOHNSTON. If the Senator will yield, the problem is your suggested language does not say it clearly. I believe it says it clearly when you say it shall supplement and not overrule. And then, when you have this alternative requirements language which explicitly recognizes that there will be times when you cannot meet the criteria of the benefits justifying the cost because the statute requires it, if in applying the statutory requirement, you cannot meet the criteria, then it tells you what to do. You can go ahead and promulgate the rule. That is precisely what it means. Now, if you come up with some other language that does not itself make an ambiguity where there is not now, I mean, I would be glad to clarify. If you supplement and not override--I believe when you say ``supplement,'' that means you are supposed to read the two in harmony, but you are not overriding the substantive requirements of the underlying law. It is very tricky to start talking about what is the underlying law and what is procedure, what is substance; what is supplement, what is override. I believe we have hit the appropriate balance, particularly in light of the alternative requirements language of page 36.

Mr. JOHNSTON. If the Senator will let me answer, the question is, what is a conflict? If one statute requires something, a cost-benefit analysis, which this does, or a risk assessment and the other statute does not, is that a conflict or is that supplementing?

Mr. JOHNSTON. On this particular issue, let me--the point is the fact that they have said it does not make it so. I believe it is clear. Now, what I believe also is that this language would really put an ambiguity into it because in the event of a conflict the statute under which the rule is promulgated shall govern. Now, the statute under which the rule is promulgated did not require risk assessment, did not require cost-benefit analysis, did not require that you go through any of those procedural hoops. I could make the strong argument that this would say that that rule under which it was promulgated, if at the time it was promulgated satisfied those rules, then that governs and that this statute, the petition process, the look-back process, is taken out of the picture; it is no longer valid. Does the Senator see what I am talking about?

Mr. JOHNSTON. Mr. President, I will answer the question like this. I do not care how many Cabinet people say this thing is ambiguous. It is not. It is as clear as the English language can be. Now, whether they are ingenuous or disingenuous in their criticism, I do not know. I know that this letter of administrative policy, much of it is, to be charitable, disingenuous, because I sat in the room and negotiated part of it and accepted some of the things that came from the administration and then was met with the argument coming back out that that which we accepted was a fault in the bill.