Zoe Lofgren

Ms. LOFGREN

Ms. LOFGREN. Mr. Speaker, I offer a motion to recommit.

Ms. LOFGREN. I am, Mr. Speaker.

Ms. LOFGREN. Mr. Chairman, I yield 1 minute to the gentleman from Oregon [Mr. DeFazio].

Ms. LOFGREN. Mr. Chairman, I yield myself the balance of my time. Mr. Chairman, I believe in the fifth amendment and the minority believes in the fifth amendment. I believe there ought to be compensation when there is a taking, and there ought to be due process. There is no dispute about that. But what we dispute is this remedy. We have heard a lot of discussion about widows who have been abused by the heavy-handed Government. But we need to get beyond that appealing image to what is really going on here. Zoning protects neighborhoods, zoning protects homeowners, and what this bill does is allow developers rights that are much greater than those that would attach to neighborhoods and to homeowners. These rights will attach, whether it is 20,000 housing units being built, or whether a town is trying to regulate the hours of operation of a topless bar or pornographic bookstore. That is what is so terribly flawed with this legislation. Mr. Chairman, I urge my colleagues to oppose this and to search for a more rational response to this problem.

Ms. LOFGREN. Yes, I am, Mr. Chairman.

Ms. LOFGREN. I yield myself such time as I may consume, Mr. Chairman. Mr. Chairman, I recognize the motivation of the author of the amendment, and I think the motivation is entirely honorable and one that I concur with. I do, however, have grave reservations about the actual language of the amendment and the implications and unintended consequences that might occur. This is a very broad duty that is being imposed by the amendment on the Federal Government. Let me just give an example of why I think it is problematic. In the Clean Water Act we, the National Government, make some very stringent findings about what may and may not be discharged into a stream. For example, discharging arsenic into a river is something that we have tried to control and avoid. Under this amendment, control of the discharge of arsenic into a stream would or could qualify as a taking, because if you are in a business that uses arsenic in manufacturing, and you are constrained from using arsenic and discharging it, you have, in fact, been impaired in the full utilization of your property. It could be a taking under the act. There would be a duty to provide notice to the business under the amendment. I think that would be a very difficult thing for the Federal Government to do. I would also like to make an additional point, which is that there is no burden under the amendment to notify other private property owners who are disadvantaged by the failure to proceed with the Government regulation. In the example I have previously outlined, for those downstream from the polluter, if there is arsenic in the water, their right to use the water for home consumption is going to be impaired. There is no duty under the amendment to notify the downstream users that the pollution is going to continue to be coming at them. I think that is a problem. I do not plan to ask for a recorded vote on this amendment, but I would think that narrowly drafting this amendment to cover land regulation activities that are directly aimed at use of property might go a long way toward perfecting this amendment and reaching what the author hopes to do. But in its current form, I think it is a massive new obligation for the Federal Government. It will be impossible, actually, to accomplish. Therefore, it will lead to litigation and further costs and expenses that none of us can afford, and all of us would like to avoid. These are all unintended consequences but nevertheless, severe ones. Therefore, I would urge opposition to this well-intentioned amendment. Mr. Chairman, I reserve the balance of my time.

Ms. LOFGREN. Mr. Chairman, I yield myself the balance of my time. Mr. Chairman, I would note that the amendment says, whenever a Federal agency takes an agency action limiting the use of private property. In the example I used earlier, if the Environmental Protection Agency limits a business from discharging arsenic into the creek, they have impacted and limited the use of that private property, if the arsenic is important to the manufacturing process. Therefore, the polluter, the arsenic deliverer to the stream, would, under this amendment, be required to be notified of the limitation on the use of his or her property. And arguably also be entitled to compensation for the limitation of the use of their property. We will not, however, under the amendment be required to notify downstream users that the upstream user and deliverer of arsenic to the stream is not going to be constrained from so polluting because of the implication of this amendment, that essentially will stay action because of access to court. I understand that the gentleman from Ohio [Mr. Traficant] wants the average American to have notice. I do, too. But as a lawyer and prior professor of law, we also need to look at the plain language that we adopt. This will lead to unintended consequences certainly that the gentleman from Ohio [Mr. Traficant] very clearly from his prior comments does not intend, nor do I. That is the problem with the amendment. Mr. Chairman, I reserve the balance of my time.

Ms. LOFGREN

Ms. LOFGREN. Madam Speaker, reserving the right to object, and I will not object. I just want to clarify that the minority supports the desire of the gentleman from Ohio [Mr. Traficant] to debate this amendment. That does not necessarily mean we support the amendment itself, but the gentleman from Ohio's right to offer it, subsequent to the Boehlert amendment. Madam Speaker, I withdraw my reservation of objection.

Ms. LOFGREN

Ms. LOFGREN. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, I rise in opposition to H.R. 1534, the first takings proposal which specifically targets our State and local elected officials. This legislation would mandate a series of rules granting expedited access to the Federal courts for property takings claims. In addition to providing developers with special procedural advantages, the bill could alter the substantive law of takings in favor of developers. The net result would be legislation which does unbalance the playing field as between State and local governments and developers. Even worse, the bill elevates the rights of real property owners above all other categories of persons having constitutional claims against the Government, which would include civil rights victims and the like. We believe that this is being propounded in the absence of any quantitative evidence that justifies this massive intrusion into States rights. Under H.R. 1534, for example, if a corporation, say Wal-Mart, seeks to establish a very large, some would say even oversized commercial development in a small town, and the town says no because of the massive development and Wal-Mart is dissatisfied, they would have the opportunity to immediately threaten to bring suit and to march down to Federal court, forcing the town to incur a large amount of legal expenses. Mr. Chairman, in that situation, I will add I spent 14 years in local government having to deal with difficult issues of zoning and land use. It has to be a factor for local governments who are constantly facing financial shortfalls to know that if they decide in favor of neighbors, they may face humongous legal expenses. That has to be factored into the decision-making process. That is why this bill really does tilt the playing field in favor of developers and away from neighbors and homeowners who enjoy the benefit of zoning protection that local governments do impose. Mr. Chairman, let me pose this issue because it comes from my own experience. A number of years ago when I was on the board of supervisors we established regulations, because we could not outlaw the pornography businesses that were established in part of our jurisdiction. We, the board of supervisors, were ultimately sued. Mr. Chairman, in that case, under this law, we would elevate the rights of the pornographers in that case to immediately go to Federal court to challenge the zoning regulations that the local government had imposed. I do not think such a result is intended by the authors or proponents of the bill, but it is an outcome that is predictable and will happen in towns and counties around the country. Mr. Chairman, it is no wonder that H.R. 1534 has drawn such diverse and strenuous opposition. The Attorney General, the Secretary of the Interior, the Administrator of the EPA, and the Chair of the Council of Environmental Quality have recommended a veto and the President has given strong signs that he would veto this bill. The National Governors' Association, the Conference of Mayors, the League of Cities have come out in strong opposition to the bill as of yesterday. A bipartisan group of 37 State attorneys general opposes the bill because in their words it invades the province of State and local governments. They are joined by a broad array of environmental groups as well as The New York Times and the Washington Post. Mr. Chairman, I think we must make sure that we understand that the manager's amendment does not really fix the problems, the many problems in this legislation. Even after the third rewrite of this bill, it still allows developers to bypass local administrators in State courts and imposes significant new costs on local government. It would still impose on the Federal courts to decide cases based on inadequate records, and it still elevates the claim of real property developers above ordinary civil rights claimants. In some respects the manager's amendment has made the bill even worse by creating a series of complex and vague new procedural requirements and by allowing developers to proceed to Federal court without even waiting for a final answer. Mr. Chairman, I urge a ``no'' vote on H.R. 1534 so we can continue to allow democratically elected local officials to protect their citizens, to protect neighborhoods and to protect homeowners from unwise development through the prudent use of zoning. I would like to note also that I do understand there are occasions when overzealous zoning and regulation can, in fact, lead to takings. In those cases it is fair that justice be brought to the land developer. I do believe in the fifth amendment and its clause providing for due compensation in the case of such takings. However, this is the wrong remedy for those cases and I would urge my colleagues to join me in voting ``no.'' Mr. Chairman, I reserve the balance of my time.

Ms. LOFGREN. Mr. Chairman, Mr. Butterworth, the attorney general of Florida, does oppose this bill. The prior speaker may not have been aware of that. Mr. Chairman, I yield 4 minutes and 30 seconds to the gentlewoman from Texas [Ms. Jackson-Lee], a member of the Committee on the Judiciary.

Ms. LOFGREN. Mr. Chairman, I yield 5 minutes to the gentleman from Michigan [Mr. Dingell]. (Mr. DINGELL asked and was given permission to revise and extend his remarks.)

Ms. LOFGREN. Mr. Chairman, I yield myself such time as I may consume, and note that the Attorney General of Oregon does oppose the bill. Mr. Chairman, I yield 3 minutes to the gentleman from New York [Mr. Boehlert]. (Mr. BOEHLERT asked and was given permission to revise and extend his remarks.)

Ms. LOFGREN. Mr. Chairman, I yield 3 minutes to the gentleman from North Carolina [Mr. Watt], a member of the committee.

Ms. LOFGREN. Mr. Chairman, I yield 2 minutes to the gentleman from California [Mr. Farr].

Ms. LOFGREN. Mr. Chairman, I yield such time as he may consume to the gentleman from Texas [Mr. Hall]. (Mr. HALL of Texas asked and was given permission to revise and extend his remarks.)

Ms. LOFGREN. Mr. Chairman, I yield 2 minutes to the gentleman from Maine [Mr. Allen].

Ms. LOFGREN. Mr. Chairman, noting that the attorney general of Ohio is opposed to the bill, I yield 1\1/2\ minutes to the gentleman from Colorado [Mr. Skaggs].

Ms. LOFGREN. Mr. Chairman, noting that the Attorney General of Texas opposes the bill, I yield 2 minutes to the gentleman from Maryland [Mr. Gilchrest].

Ms. LOFGREN

Ms. LOFGREN. Mr. Speaker, I intend to support S. 1198 as substituted by the gentleman from Texas. The availability of visas for religious workers to come and do good in our country is important. We all agree on that. I would prefer a permanent extension of these visas, but can vote for Chairman Smith's 3-year extension before us today. I recommend that my colleagues join me in supporting this bill.

Ms. LOFGREN

Ms. LOFGREN. Mr. Chairman, as you know, I had an amendment regarding El Nino research. El Nino in extreme weather is of great concern to all Americans and every Member of this House on both sides of the aisle. I was concerned that the current state of the bill might not allow the research that we all want to have happen. However, I did want to inquire of the chairman, knowing of his great concern, and engage in a colloquy with him on this subject.

Ms. LOFGREN. Mr. Chairman, I move to strike the last word. Mr. Chairman, I think we may be getting a little ahead of ourselves.

Ms. LOFGREN. I yield to the gentleman from Kentucky.

Ms. LOFGREN. Mr. Chairman, reclaiming my time, I thank the gentleman from Kentucky [Mr. Rogers]. And based on that, I do not intend to offer my amendment. I look forward to working with my colleague in the hope that we can achieve our mutual goal. I thank the gentleman very much for engaging with me on this.

Ms. LOFGREN. Mr. Chairman, reclaiming my time, I had an amendment to offer and we had been discussing having a colloquy. Are we prepared to do our colloquy, Mr. Chairman?

Ms. LOFGREN

Ms. LOFGREN. Mr. Chairman, I acknowledge the hard work of the gentlemen from California, Mr. Bilbray and Mr. Calvert. I do have concerns about the impact on other NOAA research. El Nino must be funded. I am eager to further understand the implications of what has been done here between now and tomorrow, in hopes that I can rise tomorrow in support of what has been outlined here. I look forward to some further clarification from staff between now and tomorrow morning. I thank the gentleman.