John Kerry

Mr. KERRY

Mr. KERRY. The problem I think we are underscoring here--and I cannot for the life of me understand the restraint on a simple clarification which actually codifies the stated intent of the Senator in this colloquy. I mean, this is very simple language. It seeks to say if there is a conflict between the cost-benefit analysis in the underlying statute and the least-cost standards, the underlying statute prevails. That is supposedly the stated intent of the Senator.

Mr. KERRY. Why can the simple language not say, in the event of a conflict, the underlying statute prevails?

Mr. KERRY. I agree. I think the offered language--I do not disagree, if he is referring to the language proffered earlier by the Senator from Ohio.

Mr. KERRY. I could walk the Senator through now literally section by section, and I think that when you do that, the ambiguity sort of leaps out at you. And when you have to go from one section to the other and then ultimately find in the remote definition section one word-- ``social''--that somehow embraces this concept that you will have this relevant benefit analysis, I think we are asking lawyers to start to tie up the regulatory process. The whole purpose of a lot of our efforts here in the Congress now is to reduce the need for anyone to have to litigate what we are trying to legislate.

Mr. KERRY. Are we reading from the----

Mr. KERRY. The Senator is saying that he believes that it is opening up a whole rule interpretation, is that correct?

Mr. KERRY. In furtherance of that reassurance, could I just ask the Senator, is it the clear intent of the Senator to invoke into the rulemaking process a practicable, efficient, cost analysis?

Mr. KERRY. I would say to the Senator that I accept that. The Senator from Michigan accepts that. And that is what we want to achieve. In the doing of that, I assume the Senator would want to also guarantee that cost analysis does not become a supermandate?

Mr. KERRY. Therefore we should, I think, be able to arrive at language--driven at by the Senator from Michigan--that achieves an avoidance of the ambiguity, but without creating a new potential for disruption of that cost analysis.

Mr. KERRY. Suppose we say in the event of unforeseen consequences, incapable of being described by the sagacity of the drafter of the bill, we nevertheless----

Mr. KERRY. I think the Senator is correct. Mr. CHAFEE addressed the Chair.

Mr. KERRY. Would my colleague yield for a question?

Mr. KERRY. I appreciate the Senator being willing to take some time. I would like to follow up on the questioning of the Senator from Michigan, because I believe that he has targeted one of the most serious conflicts, ambiguities--whatever you want to label it at this point in time--and clearly in the legislative process, we ought to strive, where we identify that kind of ambiguity, to avoid it. I am sure the Senator would agree. As I read the relevant sections, I confront the same quandary the Senator from Michigan does, and I find that in the answers of the Senator from Louisiana there is, in effect--not consciously necessarily, but because of the difference of interpretation or definition, there is an unavoidable sliding away from the meat or the center of the hypothetical posed. The hypothetical that was posed by the Senator from Michigan is really more than a hypothetical. It is an everyday occurrence in the reality of agency rulemaking. I think the Senator from Louisiana knows that almost all the agencies quantify almost every benefit. So let me ask a first threshold question. Does the Senator from Louisiana accept that some benefits are quantifiable?

Mr. KERRY. If some benefits are quantifiable, does the Senator accept that a certain health benefit could be quantifiable?

Mr. KERRY. Let me ask the Senator this. Does the Senator believe that it is possible to quantify the number of hospitalization cases for emphysema or lung complications that might follow from reducing air quality to a certain level of parts per million?

Mr. KERRY. Well, I question that. That is an interesting distinction because----

Mr. KERRY. As the Senator knows, in the newspapers in the last months, we have seen repeated stories of the rise of asthma and allergy reactions in children in the United States. We have a quantifiable number of asthma prescriptions that are issued as a consequence of this rise of asthmatic condition. That is quantifiable in cost. We have a rising number of visits to doctors for diagnosis, and that is quantifiable in cost by the reporting levels that have allowed the newspapers to report a percentage of increase in America. To follow up on the so-called hypothetical of the Senator from Michigan, those costs are quantifiable. We know, in many cases, how much it costs America in money spent on health care, in money spent on hospitalization, in lost time at work in a series of quantifiable effects. We know that, and that can be measured against the cost of reducing whatever is the instigator of those particular effects.

Mr. KERRY. I think to answer your question and to sort of continue the colloquy, if we can, the answer is that there is an uncertainty as to that, because what is contained in the definitional portion of the statute is never a sufficient clarification for what is contained in a particular section where the substance is interpreted by the court. The court may find that the definition intended one thing, but in the substance of the section, the court will find there is a conflict with the definition, and they are going to go with the substance. So what the Senator from Michigan is saying and what I think a number of us are saying is, let us not allow for that ambiguity. In our legislative role, we have identified this ambiguity, we are troubled by the potential impact of this ambiguity, and we are suggesting a remedy that is precisely in keeping with the stated intent of the Senator from Louisiana. So the question comes back that I know the Senator from Michigan has asked previously: Why would we not therefore legislate to a greater capacity of perfection the intent that the Senator says is contained in the language? It does no other change to the bill.

Mr. KERRY. No.

Mr. KERRY. It is not a hypothetical.

Mr. KERRY. If we have a statute--the underlying statute suggests that, for reasons of the health of our citizens, we want to achieve a minimum reduction in emission standards to 10 parts per million--a minimum standard. But the legislation empowers the agency to go further. It is a minimum standard. Now, under your language, a measurement would be made as to the benefit of the minimum standard, but it would also----

Mr. KERRY. I agree. And the judgment made by the agency would be, does this rule or some--at the moment, we make the standard according to health-based and technology-based criteria. And we make an evaluation as to what are the benefits of reducing the air quality. We make an analysis of what is the benefit of breaking it down to the 10 parts per million. Let us say that for 10 parts per million reduction, the cost-benefit analysis shows an expenditure of $100 and it saves 100 lives. [[Page S 9682]] But the same analysis has shown that for an expenditure of $105, you could save 150 lives.

Mr. KERRY. Let me just finish. Under your language of least-cost alternative, and the distinction between quantifiable and nonquantifiable, the agency would be restricted to the $100 expenditure and 100 lives, even though $105 could save you 150 lives.

Mr. KERRY. There is a statute. The Clean Air Act has minimal standards.

Mr. KERRY. But the underlying statute--if I can say to the Senator, I have the examples. I did not come to the floor with them at this moment because I came from another meeting. But this particular colloquy was taking place. I can assure the Senator that I will provide him with specific statutory examples where this so-called hypothetical clash exists. All I am suggesting----