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E-M:/ Alien Resurrection on Sen. Carl Levin's "Reg-Relax" bill, S. 981

Enviro-Mich message from asagady@sojourn.com

Clean Air Network and NRDC have asked me to post this to 
Enviro-Mich because of Sen. Carl Levin's sponsorship of this legislation.


Date: Fri, 6 Feb 1998 18:50:23 -0500
From: JMardock@nrdc.org (Jayne Mardock)
Sender: owner-air-mail@igc.apc.org
Subject: air-mail: Fwd:They're Baaaack ---with more reg reform
To: air-mail@igc.apc.org
Return-Path: owner-air-mail@igc.org

yes, reg reform is moving again, which could be awful for clean air and anything
else that requires the government to put out a regulation.  Analysis of the bill
by NRDC.  Jayne

____________________Forward Header_____________________
Subject:    They're Baaaack ---with more reg reform
Author: Greg Wetstone
Date:       2/6/98 6:20 PM

As you may have heard, earlier this week our good buddies, Senators Levin and
Thompson, publicly released a revised version of their regulatory reform bill,
S. 981.   While they are billing the new language as an effort to address our
concerns, our analysis suggests that instead this is an effort to invigorate
industry support.  In a nutshell, the revised bill not only fails to deal with
the devastating consequences of the original proposal, but also but also
includes several extremely destructive new provisions.

The situation is pretty dire.  The Senate Government Affairs Committee will
reportedly mark the bill up at the end of this month.  While we can make this
very controversial, with both Glenn and Levin in their camp they probably have
the votes to pass this bill out of Committee.  Lott has not yet indicated that
this is on his short list for quick floor action in the Senate, but if big
business makes this a bill priority, it will likely move quickly.  It is
uncertain whether we would have the votes on the floor to sustain a filibuster. 
We would however be very strong in a fight to sustain a veto on this issue, if
one could be secured. 

The Administration position is uncertain at present.  Several of us met with
Sally Katzen yesterday, and she was typically hard to read.  The Administration
ultimately gave excellent testimony opposing the original bill, but there are,
as always, reasons to be concerned that they may not be so strong on this new
version... despite the bill's clear failure to fix the problems they've

Any suggestions, or help in strenthening the Administration, or slowing down
Levin and Thompson would be greatly appreciated -- and is desperately needed.

Our more detailed analysis of the new bill language follows below.


New Regulatory Reform Language 
Poses An Even Greater Threat to Health, Safety and the Environment than 
the Original Bill (S. 981)

Surprisingly, new legislative language released in early February by Senators
Fred Thompson and Carl Levin not only fails to repair the tremendous damage that
their "regulatory reform" bill (S.981) would inflict on health, safety, and
environmental protection efforts, but also includes several extremely
destructive new provisions.  

The fundamental problems in the original bill remain.  The measure would still
require a staggering collection of new analytic requirements and the imposition
of reams of red tape on government efforts to issue health and environmental
safeguards.  The bill still promotes economic analyses that would seek to
translate unquantifiable health and environmental gains into dollar terms; and
still creates a myriad of new opportunities for polluters and other regulated
parties to block important safeguards in the courts. Overall, the package would
still override and weaken existing health, safety and environmental requirements
by diverting agency resources, creating massive new procedural and legal
hurdles, and making it effectively impossible for agencies to carry out vital
health and environmental programs. 

The new legislation also includes a startling collection of new destructive
provisions.  Here's a quick review of the most egregious:

1)  The bill now makes it easier for industry to challenge an agency's decision
that a rule is not a major rule.  This troubling new provision (Section 627(b))
could delay adoption of safeguards for years by requiring courts to force
agencies to restart complex rulemaking proceedings from the beginning, years
after a rule had been adopted.
2)  New one-sided peer review requirements have even greater prospects of bias
and conflicts of interest.   The bill now prohibits participation by anyone who
is not independent of the agency as a whole.  (Section 625(b)(1)).  This
provision could be used to challenge the participation of qualified researchers
simply because their university received a grant on an unrelated topic from an
unrelated division of a large federal agency. Yet, the bill allows the
participation of researchers who are totally dependent on regulated interests so
long as the agency procedures permit it.  Surprisingly, the directive requiring
that peer review panels be "balanced" has been dropped from the bill.  
3)  Another objectionable new provision exempts the bill's peer review panels
from the "sunshine in government" provisions of the Federal Advisory Committee
Act.  (Section 625(d)).  The result would be secret star-chamber proceedings by
panels dominated by industry employees which kill needed efforts to protect the
4)  Lookback provisions that could kill existing safeguards have been
dramatically expanded.  The bill now contains two separate requirements for
agencies to review existing safeguards.  The first, general provision is less
burdensome than the original lookback provision.  (Section 632).  However, a new
provision of the bill negates that improvement through addition of an unworkable
requirement for agencies to review every single rule claimed to have a
"significant economic impact" on small businesses within 5 to 7 years.  (Section
644(b)).   Nearly all rules that apply to the nation's large businesses impose
requirements on "small entities" as well, and would also have to be reviewed
under the bill. Agencies would be required to devote their limited resources to
the review of an exhausting list of popular and successful programs, like the
phase-out of lead in gasoline, the regulation of ozone depleting chemicals and
the imposition of new meat inspection requirements.   This sweeping review would
commandeer massive resources from health, safety, and environmental agencies,
forcing them to ignore pressing efforts to address current threats.  Under
amendments passed by the anti-environmental 104th Congress, industries would be
able to sue agencies over their review schedules or their failure to meet the
bill's impossible deadlines.
5)  The bill would dramatically expand burdensome risk assessment requirements
to government actions other than major rules.  While S.981's risk assessment
requirements were limited to major rules, the substitute expands these
requirements to any risk assessment that OMB concludes would have a "substantial
impact" on a significant public policy or on the economy.  (Section
624(a)(1)(A)(ii)).  This provision (which first appeared last Congress in the
Dole "regulatory reform" bill) would allow industries to prevent timely issuance
of government warnings on issues like second-hand tobacco smoke or food safety.
6)  New provisions in the bill would require an almost laughable level of  red
tape surrounding each of the many required risk assessment.  One new provision
(Section 624(d))  would require agencies seeking to protect the public to
produce new federal register announcements and public comment procedures for
each and every risk assessment that the agency "intends to conduct."  Another
new provision (Section 624(c)(2)) would establish an impossible requirement for
agencies to constantly revise risk assessment assumptions to reflect new data,
and create an opportunity for polluters and others to sue over the difficult
question of whether assumptions reflect the latest data. 

It is also important to identify important respects in which the new language
fails to achieve the claimed improvements.  For example:
1)  The bill still contains no "savings clause" to protect existing health and
environmental laws. The new language stating that the bill does not "supersede"
existing laws simply means says that the bill's new requirements for analysis
and judicial review are in addition to any existing requirements.  (Section
622(b)).  This is a far cry from true "savings clause" language which would make
clear that existing legal protections are not altered or amended.  It is instead
far closer to the supposed savings clause incorporated in later versions of the
Dole bill in the 104th Congress.
2)  Agencies are still discouraged  from making protection a priority.  
Whenever an agency cannot conclude that a protective safeguard under
consideration passes the biased "net benefits" test, it is required to develop a
weaker safeguard for comparison purposes and is then pressured to select the
weaker rule.  (Section 623(d)).  What's more, under any future Administrations
that may are be inclined to follow the dictates of polluting industries or
irresponsible businesses, the bill would give agencies a legal excuse for
failure to adopt crucial  protective rules that would otherwise be required.
3)  The bill still allows judicial review of  the process for, and contents of
the many burdensome new analyses it requires.  (Section 627(d)). While the
bill's authors originally indicated that they did not intend to allow for such
sweeping judicial review, in materials accompanying the new language these same
sponsors now clearly indicate that they intend to, for example, allow courts to
overturn rules because of claims that the new peer review process is not
conducted correctly.  The bill's demanding requirements coupled with such broad
judicial review will provide a field-day for industry lawyers who will earn big
fees preventing the government from protecting the public.   
4)  The bill still requires agencies to judge the quality of their rules using
an unworkable and biased "net benefits" test (requiring a dollar value to be
placed on saving human lives) that will undermine more protective rules.  While
the bill does not directly force an agency to reject any rule that cannot pass
this test, it continues to require the agency to craft and publish alternative
versions of its rules that do pass the "net benefits" test.  (Section 623(d)). 
More protective rules will be vulnerable to industry attacks in the courts and
Congress because the "net benefits" test was not met.

For more information, please contact David Hawkins, Greg Wetstone, or Sharon
Buccino at 202-289-6868.
                                February 5, 1997

Alex J. Sagady & Associates        Email:  asagady@sojourn.com
Environmental Consulting and Database Systems
PO Box 39  East Lansing, MI  48826-0039  
(517) 332-6971 (voice); (517) 332-8987 (fax)

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