Henry Waxman

Mr. WAXMAN

Mr. WAXMAN. Mr. Chairman, reclaiming my time, if I might respond, the gentleman is absolutely correct. There is the option of waiving the point of order and requiring a vote on the House floor. But that could have been the same application for the exception in section 4 on page 4 of the legislation. We could have said that if it requires compliance with accounting and auditing procedures with respect to grants or other money or property provided by the Federal Government, that we could get the analysis, have a vote and a point of order, that it would have to be overcome by an affirmative or relief or national security or emergency legislation. I do not disagree with the exceptions that are in the legislation. But it seems to me that since we have a publicly owned enterprise competing against a privately owned enterprise, unless we apply the same rules to both, we may well find ourselves in the situation where we might well vote to overcome the point of order, but we may not. In that case, a privately owned toxic waste facility would be treated much more harshly in terms of regulations than a publicly owned one.

Mr. WAXMAN. I yield to the gentleman from Ohio.

Mr. WAXMAN. Mr. Chairman, I move to strike the last word. Mr. Chairman, there are limits in this bill on the application of the legislation. I do not want to disagree with them. I think there are reasons why we ought to have exceptions for the application of the bill, enforcing constitutional rights of individuals, enforcing statutory rights that prohibit against discrimination, and requiring compliance with accounting and auditing procedures with respect to grants or other money or property provided by the Federal Government. Now, that last one is sort of interesting. I could see the rationale for it. There are rationales for all of this. But the amendment before us seems to me to have a very compelling rationale. If we are talking about an interstate problem of toxic pollution, why should a State be forced to look at the prospect of either not having the regulation in effect because it is an interstate problem, or that the Federal Government should have to pay for it? We are really talking about situations where there is a publicly run business versus a privately owned business. They ought to be treated the same. We ought not to say because it is publicly owned we are going to consider it something where the Government would have to and taxpayers would have to pay the costs. I think that the argument by the gentleman from South Carolina [Mr. Spratt] was a compelling one. I think this too ought to be made an exemption, along with others in the bill, and I rise in support of the amendment.

Mr. WAXMAN. Mr. Chairman, in the bill itself you have some exemptions. The bill says if it is a statutory right that prohibits discrimination, we will not look at the cost of that. That, of course, involves civil rights laws and the Americans With Disabilities Act, which do involve costs. The bill provides an exception where it is emergency assistance or relief at the request of any State or local government, or necessary for the national security or the ratification of implementation of international treaty obligations. Why should an international treaty obligation not even be considered for the costs involved, but yet some of these interstate environmental problems, where the Federal Government has a clear responsibility, should be blocked by this legislation?

Mr. WAXMAN. Mr. Chairman, will the gentleman yield?

Mr. WAXMAN. I think he makes an excellent point. We do give the States the flexibility in that responsibility that they take to devise their own plans for reducing emissions so that the health of the public will be protected. But I would suggest that when we hear about all these private enterprises like the chamber of commerce, thinking that they are not going to be at a competitive disadvantage, I suspect that some of these private industries think, well, if it is going to be an unfunded mandate the government-owned polluter, perhaps we will not put any regulations on either of them. I suspect that that is what a lot of them would like. They do not see themselves ever being at a competitive disadvantage. They think that none of the polluters will have regulations placed upon them. I think that would be a disservice to the people whose lungs are going to have to breathe in pollution when we deal with these air pollution problems.

Mr. WAXMAN. Mr. Chairman, will the gentleman yield?

Mr. WAXMAN. Mr. Chairman, there are two ways we are going to have an unfunded mandate provision apply. One is if it is legislation to be brought up, not existing legislation but new legislation, and if it is brought up in the Congress, it will have the cost analysis of an unfunded mandate and we will permit a point of order if there is an unfunded mandate above a certain amount of money, but we reserve the right of the Congress by majority vote to allow that legislation to go into effect anyway and to impose the unfunded mandate anyway. That is the congressional route. But there is another separate route where unfunded mandates can stop prospective actions, and that is in terms of regulations enforcing existing laws. So I take issue with the statement that existing laws are not going to be impacted. They are definitely going to be impacted. For example, if the Environmental Protection Agency wanted to adopt a regulation dealing with toxic emissions, emissions that are hazardous, that can cause cancer, can cause birth defects, if they want to under the existing Clean Air Act adopt regulations dealing with these toxic emissions, and if the source of the toxic emissions is a publicly owned facility, then the EPA has to do this long analysis about how much it is going to cost the publicly owned polluter. Now, I have no problem with that requirement. But let us understand what will be imposed upon the EPA to do this. They are going to have to look at the anticipated cost to the States, what impact it is going to have on the national economy, on our national productivity, on economic growth, on full employment, on productive job creation, international competitiveness, all of these things, which I do not think the Environmental Protection Agency is equipped to do. But they will do it, because we want to have them know, and the Office of Management and Budget and others involved in the administration, know the full cost impact. But after they have done that, it is not enough, because there is no point of order that can be made, there is no majority vote that will say it is in the best interests of the country to have the regulation go forward. What happens then is they issue the regulation because they think it is appropriate, but the judicial review that can be then used to second-guess whether they did this analysis adequately can lend itself to anybody who disagrees with the regulation, and by anybody I mean a polluter, a corporate polluter, an industry that does not want to be regulated, can go into court and say they really did not look adequately at the international competitiveness of the United States if this particular hazardous pollution emitter is going to have an unfunded mandate that is going to be a burden upon them. There are facts that are going to have to be determined under this legislation by the Environmental Protection Agency, as an example, that are going to be rigorous, and so rigorous that one may not be adequately done and, because it cannot be done adequately, becomes a loophole for the polluting source to tie it up. Then we have to recognize, as the gentleman from Colorado so well pointed out, we are talking only about a polluting source that is publicly owned. We will have to say at that point that the regulations will not go into effect for that polluting source because it is publicly owned, but the privately owned polluting source would be regulated. It is unfair competition between the two, and it strikes me as peculiar for Republicans particularly, who argue they want more private initiative, to tilt things in favor of the publicly owned polluting source. So I think that it makes good sense to exclude these environmental issues from the requirement of an unfunded mandate. They should not be considered unfunded mandates, especially since it is going to be such a burden to allow a regulation in the national interest, in the interests of protecting the public health, of protecting the environment, from being put into effect prospectively. I take issue with the idea that this bill only applies to future law. It will apply to existing law because of this provision that applies to regulations. I stand in support of the amendment offered by the gentleman from Colorado.

Mr. WAXMAN. Mr. Chairman, I move to strike the requisite number of words.

Mr. WAXMAN. Mr. Chairman, whenever EPA wants to revise their regulations to meet problems that were not otherwise foreseen which are consistent with existing law, those regulations would have to undergo the analysis as to whether they constitute an unfunded mandate. Now, I have no problem with the analysis. What I find difficult is the fact that those regulations can be held up ad infinitum because of the judicial review that anybody who disagrees with the regulation could use to say that they did not want it go into effect, the analysis was not good enough. That seems to me to allow a situation that we would not tolerate if it were a prospective piece of legislation, because we would reserve to ourself a point of order which can be voted on by a point of order overturned, but could not be overturned except through lengthy court legislation. I think that makes no sense.

Mr. WAXMAN. Mr. Chairman, the reason why I disagree with the gentleman is not because we are going to have the Clean Air Act on the floor. If we were to have it on the floor and consideration of unfunded mandates.

Mr. WAXMAN. That is why the amendment that is being offered today that would say, ``Let's look at environmental issues as one where we are not going to consider it an unfunded mandate in order to make sure that we don't put private enterprise at a disadvantage to publicly owned enterprise; secondly, that we can deal with interstate problems; and, thirdly, so we can protect the public from environmental hazards which can be great indeed when these environmental hazards can cause lung problems, can cause cancer, can cause very serious diseases that we hope can be prevented through wise policies.''

Mr. WAXMAN. Mr. Chairman, I move to strike the requisite number of words. Mr. Chairman, I do not think it is inappropriate to discuss these issues and discuss them right now. What has been inappropriate, in my estimation, is the way this bill has been steamrolled through this Congress without even hearings in committee. We pass legislation with all sorts of consequences; a lot of them are unintended consequences and the best way to avoid negative, unintended consequences is to know what we are doing to the best extent possible. It is ironic that the legislation, which claims to give the Congress more tools through all the analysis of what may be an unfunded mandate to what extent it will put a burden on the taxpayers of local and state governments; information that would be useful is being pushed through so that we will not have the full information available to us in understanding what this legislation would in fact do. Now the best--one of the best examples of what are clearly unintended consequences is to look at the environmental area. The legislation before us would say that, if there is a mandate on local governments, it has to be paid for by the Federal Government. But there are environmental laws that apply across the board, whether the polluter is a government owned polluter or a privately owned polluter. first of all, people's lungs do not know the difference, if it is a toxic pollutant coming from a municipal owned incinerator or a privately owned incinerator. The laws should be the same if we are going to require pollution reductions, whoever may own that particular facility. But this legislation would deem the costs for a publicly owned polluting source, incinerator, power plant, whatever, to be an unfunded mandate. What are the consequences of that? The government would have to pay the costs that would be borne by the publicly owned entity or say that they are not obligated. Well, we would have the privately owned polluting source regulated, but the publicly owned one not pollution, and, second, it puts a disadvantage to the privately owned enterprise when it is in competition to that which is publicly owned. That, seems to me, makes no sense. We have interstate air pollution and environmental problems, and because of that reason we have to look to the Federal Government to set the standards, and for that reason we ought not to consider these unfunded mandates. Why would any local government want to spend the money to reduce pollution that affects somebody else? And there are a lot of examples of this: Probably the best is what we fought over for so many years dealing with the acid rain problem. We have power plants in the Midwest, some of which are publicly owned power plants that emit SO2 pollution that is carried long distances into the northeastern part of the United States and comes down in that area in the form of acid precipitation. Well, we adopted legislation to use market forces to reduce that pollution. Some of those existing laws are going to be affected by this legislation. We have heard over and over that is not the case because this is only prospective, but it is going to be retroactive to existing laws like the Clean Air Act because a lot of those laws have not yet been implemented through regulations. When regulations are adopted in the future to enforce these existing laws like the Clean Air Act, the Safe Drinking Water Act, the Clean Water Act, then there is going to be this unfunded mandate obligation that will be triggered, and those regulations can be tied up in court for years, an issue we are going to discuss sometime down the road as we look at this bill. But we have acid rain coming from States like the Midwest, Ohio, and Pennsylvania. New York in the Northeast will be affected. The Long Island Sound is another good example. In Long Island there is pollution from sewage discharges from New York City. Under this bill the Clean Water Act provisions controlling these discharges by New York City would be considered unfunded mandates. So, if we do not pay New York City to stop polluting, the people in Connecticut are going to suffer, and, when we have these competitions between the privately owned and the publicly owned polluting sources, we should have a level playing field. These are things that one would not ordinarily think about when they hear about a bill called unfunded mandates, but in fact that is what is going to occur, and that is why I think the gentleman from----

Mr. WAXMAN

Mr. WAXMAN. Mr. Speaker, we ask our colleagues to join us in saluting Dale Laurance, executive vice president of Occidental Petroleum Corp., for the great contribution he has made to the nonprofit ``House of Justice,'' Bet Tzedek Legal Services of Los Angeles. Dale Laurance became deeply involved in the work of Bet Tzedek through his close friends, Jerry Coben and Jerry Stern. He has brought tremendous energy and an abundance of talent and creativity to this work. He has also enlisted the assistance of a vast circle of businesses and professionals, who were drawn to Bet Tzedek by his persuasive presentation of its goals, accomplishments, and effectiveness. A great amount of the service that Bet Tzedek is able to provide the poor and the elderly in Los Angeles can be traced directly to Mr. Laurance's tireless efforts on Bet Tzedek's behalf. Mr. Laurance also deserves our recognition for a distinguished career in petroleum engineering, and for his signal contributions to the Cultural Center and as managing director of the Joffrey Ballet. We ask our colleagues to join us in expressing our great appreciation to Mr. Laurance for putting valuable time and effort into the work of Bet Tzedek and in congratulating for the honor that Bet Tzedek is conferring on him.

Mr. WAXMAN

Mr. WAXMAN. Mr. Speaker, we ask our colleagues to join us in recognizing Newton and Rochelle Becker for their generous support of the House of Justice, Bet Tzedek Legal Services in Los Angeles. Newton and Rochelle Becker have made the largest single private contribution to Bet Tzedek in its 20-year history. They have specifically earmarked this gift for the purchase of state-of-the-art computer equipment and software to bring Bet Tzedek's quality legal services to an even higher level of excellence. In honor of their profound commitment and generosity, Bet Tzedek is naming its library in their honor. Newton and Rochelle Becker have a tremendous devotion to quality legal representation for the disadvantaged and have played a significant role in providing legal services for tenants, consumers, employees, and victims of fraud. They believe that equality before the law is an empty slogan as long as access to quality legal services is denied those without financial means. Their work for Bet Tzedek has advanced in a most tangible way the ideal of equal representation under the law. We ask our colleagues to join us in thanking the Beckers for their great contribution to our community and in wishing them great success in all future endeavors.

Mr. WAXMAN

Mr. WAXMAN. Mr. Chairman, I move to strike the requisite number of words. Mr. Chairman, when we have an interstate pollution problem, it is a uniquely Federal responsibility. You cannot ask a government-owned water system, a government-owned incinerator system, or a government- owned powerplant to want to impose more costs on themselves if the pollution is not going to affect them that affects somebody in another State. They are not going to want to spend that money. Therefore, as a National Government we have to establish the rules. We establish that through legislation, and if legislation places this burden to install pollution control devices of one sort or another, or take measures to reduce pollution, that will require the expenditure to do so. And if it is government-owned, then they have to spend the money and it is called an unfunded mandate, because this legislation deals with government- owned enterprises. Well, what does that mean in terms of legislation? We have had a lot of discussion about that. CBO will have to go through an evaluation of the costs. That evaluation, by the way, is all one-sided. It is an evaluation of the costs, but not the benefits. They will have to look at anticipated costs to the States, the effect on the national economy, the effect on productivity, the effect on economic growth, the effect on full employment, the effect on creation of productive jobs, the effect on international competitiveness of the United States, future costs of the Federal mandate, disproportionate budgetary effects on particular regions of the country, disproportionate budgetary effects on urban or rural or other types of communities, and disproportionate budgetary effects on particular segments of the private sector. That is a hell of an analysis. That is an extensive obligation by CBO, which the head of CBO has already indicated to us they do not think they can accomplish. Well, they will do the best they can. And if it is legislation, someone can make a point of order, and the argument has been well, we can always overturn that point of order by a majority vote. The reality is it is going to require spending money or overturn it by a majority vote, and a lot of people are not going to want to vote for any overturning of the points of order to impose an unfunded mandate, even though it is a clear Federal responsibility because we have an interstate pollution problem. This same analysis has to be done if it is a regulation to enforce the law. Agencies have to do this instead of CBO. Agencies will not be able to do this adequately. In some way or other they are going to do something improper, or somebody can claim it is improper. And if it is an entity that does not want to control the pollution because they do not want to spend the money, they will hire a lawyer to go into court, and they will say this agency regulation, even though they have done this analysis, is pursuant to an analysis that is not rigorous enough, extensive enough. The gentleman from Pennsylvania [Mr. Kanjorski] made an excellent point, if you allow judicial review to question the analysis of the agency, they can be tied up for years, maybe to the point where all the pollution will continue across interstate boundaries. My point is, whether it is through legislation or through a regulation of existing law, to require that what is an interstate pollution problem be covered by this bill does not make sense. The proposal before us deals with the Water Act alone, and that would exclude anything in terms of effluents affecting one State versus another. That ought to be exempted from both the requirement that it be considered an unfunded mandate if it is new legislation, or through regulation, especially if we are going to have this ability of regulations to be tied up in court. At least if it is legislation you can argue, I think a weak one, but an argument, that the House can overturn it by a majority vote. If a regulation is adopted by an agency, there is no majority vote anywhere. That is going to be up to the courts, where we are inviting litigation on any agency regulation as long as there is judicial review. The best way to deal with these problems, which are uniquely Federal responsibilities because we have interstate pollution problems, is to exclude it. Exclude it from being considered an unfunded mandate. I think it was an interesting argument that we heard a while ago from should Government agencies and entities be running powerplants? Why should they be running drinking water systems? Let that be privatized. There is not going to be an incentive to privatize them if the rules are going to be if it is a government-run enterprise the government will have to pay for the costs for that enterprise to reduce pollution. So I urge support of this amendment. And to keep this in perspective, this should not be covered the way that we would look at other unfunded mandates.

Mr. WAXMAN. New regulations would not come back to this institution on a point of order. New regulations to be issued by an agency would follow an analysis by the budget people as to the cost, and of course that analysis is only one sided, it is only the cost, not the benefits.

Mr. WAXMAN. Mr. Chairman, will the gentleman yield on this very point?

Mr. WAXMAN. Mr. Chairman, what the gentleman is arguing is prospective legislation could have provisions in it that would deal with this problem. But I do want to point out that the existing legislation before us today says that under existing laws if EPA adopts a regulation to enforce the law that regulation has to be pursuant to an analysis as well, and then the agency would go forward with the regulation, and that can be tied up in court. So what the gentleman has argued and the gentleman from New Mexico [Mr. Schiff] has argued ideally does not apply to that kind of circumstance. Under the existing clean water law, under the existing Clean Water Act, Safe Drinking Water Act, whenever we have an interstate problem, whenever we have a regulation that is promulgated to enforce that law that is already on the books, that could be tied up in courts by the polluter, who would then not want the regulations to go into effect, and they would tie it up on the basis of perhaps the analysis was not done as thoroughly as it may otherwise have been done. They do not even have to have a lot of merit on their side to tie something up in court for a long time, during which a great deal of damage would be done.

Mr. WAXMAN

Mr. WAXMAN. I thank you very much for yielding to me, and I want to join in this memorial service and commemorate the relationship that so many of us had with our colleague, Ed Madigan. Ed and I served together on the Commerce Committee, and for a number of years he was the ranking minority member of the Subcommittee on Health and Environment during the time that I served as chairman. It was a honor to have worked with him. He was a man who was dedicated to solving problems, to trying to figure out what the issues were, how can we resolve philosophical differences, which we obviously had, but how do you solve real world problems to make this a better country. We worked together on a number of issues. One was the breast cancer legislation. That legislation provided additional funds to combat this disease, to get screening so women would have mammographies to try to find the cancer early and be able to totally eradicate it. He was very much in support of giving information to consumers about nutrition and foods so that consumers could make their own choices, and he and I worked very closely on that legislation. We worked on environmental issues like the Safe Drinking Water Act and the Clear Air Act, where we had to struggle for many years trying to figure out exactly the best formula to protect the environment, but also to recognize the economic needs of the country. Then one of the things he was very proud of and was a genuine contribution, was to have the nursing professions, which make such an important contribution to patient care, get a status at the National Institutes of Health so that the research money there that would improve health care for all Americans would recognize the unique role of nurses. He typified the view that you need to work together to find solutions to problems. Even though you may have differences you to keep those differences in perspective. He was a wonderful human being. He cared deeply about people. He will be sorely missed. I regret that I wasn't able to get to the funeral, that the House of Representatives did not make provisions for us to travel to that occasion. Had I been there, I would have liked to see Evelyn and his daughters and the rest of his family and to express to them personally my feelings. I was able to communicate them on the phone and in writing. But I hope that they will see this tape or read the transcript and know that those of us who worked with Ed Madigan will miss him greatly. He was a wonderful human being and made an enormous contribution to this institution and to the betterment of our country.