[Senate Hearing 107-466]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 107-466
 
PUBLIC HEALTH AND NATURAL RESOURCES: A REVIEW OF THE IMPLEMENTATION OF 
                 OUR ENVIRONMENTAL LAWS--PARTS I AND II
=======================================================================


                                HEARINGS

                               before the


                              COMMITTEE ON
                          GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                               __________

                          MARCH 7 AND 13, 2002

                               __________

      Printed for the use of the Committee on Governmental Affairs











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                   COMMITTEE ON GOVERNMENTAL AFFAIRS

               JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan                 FRED THOMPSON, Tennessee
DANIEL K. AKAKA, Hawaii              TED STEVENS, Alaska
RICHARD J. DURBIN, Illinois          SUSAN M. COLLINS, Maine
ROBERT G. TORRICELLI, New Jersey     GEORGE V. VOINOVICH, Ohio
MAX CLELAND, Georgia                 PETE V. DOMENICI, New Mexico
THOMAS R. CARPER, Delaware           THAD COCHRAN, Mississippi
JEAN CARNAHAN, Missouri              ROBERT F. BENNETT, Utah
MARK DAYTON, Minnesota               JIM BUNNING, Kentucky
           Joyce A. Rechtschaffen, Staff Director and Counsel
                       Kathryn J. Seddon, Counsel
             Kiersten Todt Coon, Professional Staff Member
 Timothy H. Profeta, Counsel for the Environment for Senator Lieberman
              Richard A. Hertling, Minority Staff Director
               Elizabeth A. VanDersarl, Minority Counsel
                  Trent M. Kittleman, Minority Counsel
              Robert G. Klepp, Minority Legislative Fellow
 Allison P. Martin, Minority Legislative Assistant to Senator Thompson
                     Darla D. Cassell, Chief Clerk

















                            C O N T E N T S

                                 ------                                
Opening statements:
                                                                   Page
    Senator Lieberman............................................ 1, 65
    Senator Voinovich............................................     4
    Senator Thompson............................................. 6, 68
Prepared statements from Senator Bunning:
    March 7 and 13, 2002.........................................   105

                               WITNESSES
                        Thursday, March 7, 2002

Hon. James M. Jeffords, a U.S. Senator from the State of Vermont.    10
Hon. Larry E. Craig, a U.S. Senator from the State of Idaho......    12
Hon. Christine Todd Whitman, Administrator, U.S. Environmental 
  Protection Agency..............................................    17
Eric V. Schaeffer, former Director, Office of Regulatory 
  Enforcement, U.S. Environmental Protection Agency..............    34
Hon. E. Donald Elliott, Co-Chair, Environmental Practice Group, 
  Paul, Hastings, Janofsky & Walker and Professor (Adj.) of Law, 
  Yale and Georgetown Law Schools................................    39
Thomas O. McGarity, W. James Kronzer Chair, University of Texas 
  School of Law..................................................    42
Gregory S. Wetstone, Director of Advocacy Programs, Natural 
  Resources Defense Council......................................    46

                       Wednesday, March 13, 2002

Hon. Richard Blumenthal, Attorney General, State of Connecticut..    71
Richard J. Dove, Southeastern Representative, Waterkeeper 
  Alliance.......................................................    82
Kenneth Green, Ph.D., Chief Environmental Scientist, Reason 
  Public Policy Institute........................................    85
Donald Newhouse, Guardians of the Rural Environment..............    88
Hope Sieck, Associate Program Director, Greater Yellowstone 
  Coalition......................................................    89
Stephen C. Torbit, Ph.D., Senior Scientist, Rocky Mountain 
  Natural Resource Center, on behalf of the National Wildlife 
  Federation.....................................................    93

                     Alphabetical List of Witnesses

Blumenthal, Hon. Richard:
    Testimony....................................................    71
    Prepared statement...........................................   170
Craig, Hon. Larry E.:
    Testimony....................................................    12
    Prepared statement...........................................   106
Dove, Richard J.:
    Testimony....................................................    82
    Prepared statement...........................................   176
Elliott, Hon. E. Donald:
    Testimony....................................................    39
    Prepared statement...........................................   127
Green, Kenneth, Ph.D.:
    Testimony....................................................    85
    Prepared statement...........................................   276
Jeffords, Hon. James M.:
    Testimony....................................................    10
McGarity, Thomas O.:
    Testimony....................................................    42
    Prepared statement...........................................   134
Newhouse, Donald:
    Testimony....................................................    88
    Prepared statement...........................................   282
Schaeffer, Eric V.:
    Testimony....................................................    34
    Prepared statement...........................................   125
Sieck, Hope:
    Testimony....................................................    89
    Prepared statement...........................................   284
Torbit, Stephen C., Ph.D.:
    Testimony....................................................    93
    Prepared statement...........................................   305
Wetstone, Gregory S.:
    Testimony....................................................    46
    Prepared statement with an attachment........................   163
Whitman, Hon. Christine Todd:
    Testimony....................................................    17
    Prepared statement...........................................   120

                                APPENDIX
            Material Submitted for the Record, March 7, 2002

Chart entitled ``New Source Review'' submitted by Senator 
  Voinovich......................................................   314
Judge's Order dated April 5, 2001 regarding State of Idaho, et 
  al. v. United States Forest Service, et al., CV01-11-N-EJL (In 
  the United States District Court for the District of Idaho) 
  submitted by Senator Craig.....................................   315
Judge's Order dated May 10, 2001 regarding State of Idaho, et al. 
  v. United States Forest Service, et al., CV01-11-N-EJL (In the 
  United States District Court for the District of Idaho) 
  submitted by Senator Craig.....................................   336
Letter from Daniel J. Popeo, Chairman and General Counsel, and 
  Paul D. Kamenar, Senior Executive Counsel, Washington Legal 
  Foundation, to Senator Craig, dated April 25, 2001, submitted 
  by Senator Craig...............................................   341
Chart entitled ``Improvements in Annual Visibility in 2020 Under 
  a Multipollutant Scenario Relative to the Base Case'' submitted 
  by Senator Thompson............................................   347
Chart entitled ``Visibility (2020)'' submitted by Senator 
  Thompson.......................................................   348
``Clean Air Act/New Source Review Enforcement Activity'' 
  submitted by Administrator Whitman.............................   349
Chart entitled ``NSR Sec. 114 Information Requests and Notices of 
  Violation Issued On or After January 20, 2001--All Facilities'' 
  submitted by Administrator Whitman.............................   350
Chart entitled ``Table 1--2001-02 NSR Settlements'' submitted by 
  Administrator Whitman..........................................   365
Chart entitled ``NSR Sec. 114 Information Requests and Notices of 
  Violation: Issued Before January 20, 2001--Coal-Fired Utility 
  Power Plants and Refineries'' submitted by Administrator 
  Whitman........................................................   368
Chart entitled ``Clean Air Act Sec. 114 Information Requests: 
  Vendors'' submitted by Administrator Whitman...................   381
Resignation letter from Mr. Schaeffer to Administrator Whitman 
  submitted by Mr. Schaeffer.....................................   382
``Rewriting the Rules: The Bush Administration's Unseen Assault 
  on the Environment'' by the Natural Resources Defense Council 
  (NRDC), January 2002, submitted by Mr. Wetstone................   385
``The Bush Administration's Environmental Record: A Year of 
  Accomplishments,'' March 7, 2002...............................   439

Responses to Questions for the Record from Administrator Whitman:
    Submitted by Senator Lieberman with attachments..............   466
    Submitted by Senator Thompson................................   477

           Material Submitted for the Record, March 13, 2002

Chart entitled ``The Importance of Enforcement: Pollution 
  Reductions Achievable Through Enforcement of Current Clean Air 
  Act Compared with Clear Skies (Bush) and S. 556 (Jeffords)'' 
  (Source: New York Attorney General) submitted by General 
  Blumenthal.....................................................   480
Medical complaints received by the National Park Service from 
  Yellowstone National Park employees submitted by Hope Sieck....   481
Photos submitted by Hope Sieck...................................   495
Violation Notices for snowmobile violations for the month of 
  February 2002 submitted by Hope Sieck..........................   501
Letter to Clifford Hawkes, National Park Service, from Cynthia G. 
  Cody, Chief, NEPA Unit, U.S. Environmental Protection Agency, 
  regarding ``Draft EIS for Winter Use Plans'' submitted by Hope 
  Sieck..........................................................   594
Letter dated October 17, 2001 from Wildlife Scientists to 
  Secretary Gale Norton, Department of the Interior, submitted by 
  Hope Sieck.....................................................   597
Chart entitled ``Sensitive Wyoming Landscapes Threatened by 
  Energy Development'' submitted by Dr. Torbit...................   601
Photos of the ``Wyoming' Greater Red Desert Region'' submitted by 
  Dr. Torbit.....................................................   602
Photo of ``Drill pads in the Upper Green River Basin, WY.'' 
  submitted by Dr. Torbit........................................   603
``The Wyoming Bureau of Land Management's Management of Areas 
  with Wilderness Values'' submitted by Dr. Torbit...............   604
Chart of ``Adobe Town Citizens' Proposal--Portions with 
  Wilderness Character'' submitted by Dr. Torbit.................   607
The Honorable Craig Thomas, a U.S. Senator from the State of 
  Wyoming, prepared statement....................................   608

              Additional Material Submitted for the Record

Internal Review Draft--``Draft Supplemental EIS for Winter Use'' 
  submitted by Hope Sieck........................................   609
Table 15 from the National Park Service, ``Listing of materials 
  presented as new information, and a summary of how each was 
  considered,'' submitted by Hope Sieck..........................   610












PUBLIC HEALTH AND NATURAL RESOURCES: A REVIEW OF THE IMPLEMENTATION OF 
                     OUR ENVIRONMENTAL LAWS--PART I

                              ----------                              


                        THURSDAY, MARCH 7, 2002

                                       U.S. Senate,
                         Committee on Governmental Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:34 a.m., in 
room SD-342, Dirksen Senate Office Building, Hon. Joseph I. 
Lieberman, Chairman of the Committee, presiding.
    Present: Senators Lieberman, Durbin, Thompson, and 
Voinovich.

            OPENING STATEMENT OF CHAIRMAN LIEBERMAN

    Chairman Lieberman. Good morning and welcome to the 
hearing. This is the first in a series of hearings on the Bush 
Administration's environmental record.
    One of the primary responsibilities of this Governmental 
Affairs Committee is to make sure that our government is 
working efficiently and effectively and that its agencies are 
properly enforcing the laws Congress has passed and the 
President has signed.
    The Committee is involved at this time in an ongoing 
investigation of the Enron collapse, and it struck me as I was 
thinking about this hearing this morning that we have regularly 
in those proceedings raised the question of why the watchdogs 
did not bark, both private and public watchdogs, as the Enron 
story was unfolding.
    This Committee is itself a watchdog, and it is our job to 
bark when we see trouble. And I see a lot of trouble in the 
first year of the Bush Administration's environmental record.
    I did not convene this hearing lightly or reflexively, but 
out of genuine concern that goes back, if I may be personal for 
a moment, more than three decades in the career that I have 
been privileged to have in public service, beginning in the 
early seventies as a State Senator in a Democrat-controlled 
Senate. Working with a Republican Governor in Connecticut by 
the name of Tom Meskill, who went on to a distinguished career 
in the Second Circuit Court of Appeals, and, as was occurring 
in so many other Statehouses across America, we created, on a 
bipartisan basis the Connecticut Department of Environmental 
Protection. We adopted clean air and clean water laws and began 
to enforce them. In the 1980's, I was privileged to be Attorney 
General of Connecticut and spent a lot of time enforcing those 
environmental protection laws. After I arrived here in the 
Senate in the late eighties and early nineties, during the 
administration of former President Bush, one of the most 
significant environmental accomplishments of the generation and 
one I was privileged to be involved in as a member of the 
Environment Committee was the bipartisan amendments to the 
Clean Air Act. When I look back at my time of service here, 
that is one of the things that I am proudest of.
    We also worked on climate change then. The former Bush 
Administration and Members of Congress, acknowledging that the 
planet was warming, and working together on the Rio Treaty 
which was both signed and ratified by the Senate.
    So it is from that context and what followed during the 
Clinton Administration that I reached the conclusion, sadly, 
that this Bush Administration has undermined many critical 
environmental and public health protections and as a result has 
broken the bipartisan consensus for environmental protection 
that has existed for quite a number of years here in Washington 
and certainly throughout the country.
    Today we will assess the effects of those actions, not only 
to learn what has happened but to understand what could happen 
over the next 3 years if similar behavior goes unchecked and 
unchanged.
    There have been a couple of recent environmental 
initiatives by the administration which I must say I find 
disappointing and in some sense deceptive. After avoiding 
mounting evidence on climate change for too long, a few weeks 
ago, the President acknowledged that global warming is a 
serious challenge that requires a response. Unfortunately, his 
proposals fell short of his rhetoric. His global warming 
proposal, which EPA Administrator Whitman will discuss with us 
today, is packaged as a major innovation, but the bottom line 
is that if it were to become law, the main source of global 
warming, carbon dioxide emissions, would rise by 14 percent 
over the next decade, based on current projections. Global 
warming would literally get worse, not better.
    On the related challenge of clean air, I see the same false 
promise of innovation. When he was running for President, then 
Governor Bush said without conditions or equivocations that he 
supported a comprehensive strategy to reduce all four major 
emissions from power plants, carbon dioxide included. And here 
in Congress, we were working hard on a bipartisan proposal to 
do just that, with every expectation that the administration 
would support our attempts to reach a compromise.
    Then, last March, it appears in response to resistance from 
the power industry, the President suddenly dropped the ball on 
carbon dioxide and thereby stifled the bipartisan congressional 
work that was being done. Senator Jeffords, as Chairman of the 
Environment Committee, is trying to reconstruct that work.
    What was issued at that point by the administration was a 
three-pollutant proposal which again is being marketed as an 
innovation. In fact, it looks to me as if it would do less of a 
job of reducing the emissions of those three pollutants than 
existing rules because, although I favor the cap-and-trade 
system, the time frame proposed by the administration is too 
lax, and the targets are too weak.
    So I fear that the administration is determined to make 
existing policies less effective and then to suggest replacing 
them with new policies that would achieve even less.
    That brings me to the enforcement of our environmental 
laws, where I see a record that is truly troubling. Because I 
am a former State attorney general, I know something about 
enforcement of environmental laws, so I have grown increasingly 
troubled by the poor enforcement record of this administration, 
which reached a stunning low point last week when Eric 
Schaeffer, one of EPA's leading environmental enforces, 
resigned in protest. We will hear from Mr. Schaeffer later this 
morning.
    The warning signs occurred early in the Bush Administration 
when it began rolling back important protections that 
safeguarded our environment and our health. It derailed a new 
rule to require significant efficiency savings in air 
conditioners that could have offset the need for over 30 new 
power plants. And most memorably, on arsenic in the water, it 
put the brakes on the Clinton Administrations' standards, 
asking for another redundant study and was finally forced to 
back down and retain the rule it initially sought to withdraw.
    Alongside these higher-profile rollbacks, there has been a 
subtler undermining of environmental protection through 
inaction, settlement agreements, changes in guidance documents, 
and funding reductions. I only wish the administration were as 
tireless and resourceful in trying to solve some of our common 
environmental challenges as it has seemed to be in devising 
ways to take the teeth out of important environmental rules and 
regulations.
    One particular area of concern is the so-called New Source 
Review which governs how power plants comply with the Clean Air 
Act and is intended to ensure that when all power plants 
upgrade their operations, they also upgrade their emissions 
reduction technology. Is this important? Well, yesterday, we 
received fresh and truly jarring evidence of the kind of long-
term health consequences that weak New Source Review 
enforcement and other similarly toothless air quality policies 
can bring. In an article published in the Journal of the 
American Medical Association researchers for the first time 
linked long-term exposure to air pollution from coal-fired 
power plants, factories, and diesel trucks to an increased risk 
of dying from lung cancer.
    I quote from the article about this story in yesterday's 
Washington Post: ``Previous research by Harvard University and 
the American Cancer Society strongly linked these fine 
particles to high mortality rates from cardiopulmonary diseases 
such as heart attacks, strokes, and asthma. Until now, however, 
scientists lacked sufficient statistical evidence to directly 
link those emissions to elevated lung cancer death rates. . . . 
Nationwide, as many as 30,100 deaths a year are related to 
power plant emissions according to a study by Abt Associates, a 
private research organization that does work for EPA. By 
comparison, 16,000 Americans are killed each year in drunken 
driving accidents, and more than 17,000 are victims of 
homicides''--as compared to 30,100 related to power plant 
emissions.
    This is obviously very serious business which I fear that 
the administration is not in its New Source Review changes 
treating seriously enough. That is undoubtedly one reason why 
Mr. Schaeffer resigned last week in protest over what he 
called, ``a White House that seems determined to weaken the 
rules.'' That was a disheartening development, because it 
confirmed from within what many outside have worried was the 
reality.
    Mr. Schaeffer's resignation statement is also to me 
powerful evidence that this administration is not following a 
balanced environmental policy, that it is listening and 
responding disproportionately to the views of those who are the 
source of pollution and emissions, without giving the views, 
voices, and values of others the weight that they, too, 
deserve.
    This hearing is intended explicitly as a direct challenge 
to the administration to defend its environmental record and 
hopefully to improve it before it gets worse.
    I am grateful that Administrator Whitman will testify 
today. If I may say so, as a personal matter, she is the best 
friend of the environment in the Bush Administration; I 
personally only wish that her advice were heeded more often.
    We also welcome the second panel of witnesses who are here 
to help us get to the bottom of these important questions, as 
well as our two colleagues who will testify first.
    Senator Thompson, I believe I have your authorization to go 
first to Senator Voinovich, who must go on to another hearing.
    Senator Voinovich.

             OPENING STATEMENT OF SENATOR VOINOVICH

    Senator Voinovich. Thank you.
    First of all, Mr. Chairman, the representatives of the 
administration can speak for themselves in terms of the Bush 
Administration's environmental policy. But from my perspective, 
the President is trying to bring common sense and reason to 
this whole environmental debate, understanding that it has a 
dramatic impact on the economy of the United States of America 
as well as the environment. The challenge that this Committee 
faces as we move through various pieces of legislation is to 
understand that we need to harmonize the environmental needs of 
this country and our energy needs. We need to have a national 
energy policy. If we keep fighting the way we have been 
fighting in the past, we will have neither cleaner air nor an 
improvement in energy delivery, which will have a negative 
impact on our economy.
    I would like to thank you for holding this hearing today, 
and I would like to say, Mr. Chairman, that since you and I are 
the chairman and ranking member on the Clean Air Subcommittee 
of the Environment and Public Works Committee, we have an extra 
interest in this issue.
    I am pleased that Senator Jeffords is here today, and it is 
my hope that our subcommittee will also hold hearings on this 
issue, where we have a history and experience with this 
subject. So we would like to make sure that we follow this up 
on the Environment and Public Works Committee.
    I would like to make a few brief remarks on New Source 
Review, which I see as one of the most complex and 
controversial aspects of the Clean Air Act.
    As you know, the original goal of the New Source Review 
program was to transition older power plants into cleaner, 
state-of-the-art facilities. The program worked well for almost 
30 years, thanks to the decreasing levels of pollution, and we 
have experienced a progressively cleaner environment. I 
sometimes think that we do not give credit where credit is due. 
I can tell you as the former Governor of Ohio that we have seen 
a dramatic reduction in what is going into the air--not enough, 
but we have seen a significant reduction.
    The EPA issued the first New Source Review regulation--a 
20-page document--in 1980. Since then, the EPA has produced 
over 4,000 pages of guidance documents trying to explain and 
reinterpret the regulation. This has led to confusion and 
misunderstanding by the Agency, the States, and the regulated 
community.
    We have known for years that New Source Review needed to be 
reformed. In fact, in 1994 the EPA, under Administrator Carol 
Browner, issued a proposed rulemaking to reform the program, 
but unfortunately, she never finalized the rule.
    Since then, the Agency redefined New Source Review through 
enforcement actions and conflicting changes in the guidance 
document--and that is what this is. This policy changed not as 
a result of some new regulation; it was changed as a result of 
guidance documents that were issued by the EPA and turned into 
enforcement actions. That has led to costly litigation and a 
climate of uncertainty, forcing companies to forego needed 
maintenance and repair work.
    Unfortunately, this uncertainty has led to companies even 
declining to invest in stronger anti-pollution technologies out 
of fear of enforcement actions.
    While problems with understanding the New Source Review 
program affect every single manufacturing industry from 
computer manufacturers to the auto industry to the chemical and 
paper industries, it has probably had the biggest impact on 
energy production.
    I want everybody to understand, Mr. Chairman, that New 
Source Review is not just on utilities; it runs right across a 
gamut of industries throughout this country.
    According to a recent National Coal Council study 
commissioned by the Clinton Administration, if the EPA were to 
return to the pre-1988 NSR definitions, we could generate 
40,000 new megawatts of electricity from coal-fired facilities 
and reduce pollution at the same time.
    Six months ago, I met a vendor who offers new pollution 
control equipment to utilities which would reduce emissions and 
make our air cleaner. He approached Cinergy in Ohio, but they 
had to decline after investigating the technology and 
determining that if they installed the technology, they would 
have violated the New Source Review. So we are in limbo out 
there.
    The obvious goal of the Clean Air Act is to make air 
cleaner, but at times, the New Source Review program has had 
the opposite effect. At this point, it is imperative that the 
EPA move forward with a meaningful reform of the program--and I 
am glad the administrator is here today--which began under the 
Clinton Administration by involving groups and other Federal 
agencies and rewriting the regulations. They have got to be 
rewritten so we can understand what is going on.
    Right now, we are at a standstill since no one is 
installing new pollution control equipment out of concerns over 
lawsuits or because they have been sued or are in settlement 
negotiations. In order to encourage new investments in more 
efficient and cleaner equipment, we need to give back to the 
regulated community the certainty they now lack because of New 
Source Review. That is why we are in limbo--we are not 
improving the environment and public health, and we are not 
producing energy more efficiently.
    Mr. Chairman, I have brought this chart along.\1\ It is an 
unbelievable chart. It shows why companies shudder over 
subjecting themselves to New Source Review. Only a fool would 
put himself into this regulatory maze to do ordinary repair and 
maintenance work. That is New Source Review. You can talk about 
it all you want; that is what companies are subjected to if 
they go in to get a New Source Review permit. Think about it. 
Look at the chart.
---------------------------------------------------------------------------
    \1\ Chart entitled ``New Source Review'' appears in the Appendix on 
page 314.
---------------------------------------------------------------------------
    One last point needs to be made, Mr. Chairman. The costs of 
New Source Review are passed on to ratepayers. Somehow, people 
forget that the customers always pays. It is always the 
industry. Who do you think pays for this? If you load 
unreasonable costs onto utilities, they just pass them on to 
the ratepayers; they always pay. Too often, the environment and 
the ratepayers, as I say, get lost in this constant duel 
between well-meaning environmental groups and recalcitrant 
companies. That is why, again, we must harmonize our 
environmental regulations through our Nation's energy policy.
    As for Mr. Schaeffer, I think it is unfortunate that he is 
testifying today. I can understand when someone leaves an 
administration because they disagree with the direction taken 
on a particular issue. However, I think it is disingenuous to 
suggest that he resigned in protest when he spent weeks lining 
up a new job before he left. I understand that he is going to 
be working on these same issues for a new organization, so it 
seems to me more like he is capitalizing on his departure to 
further his new career instead of leaving under protest.
    Mr. Chairman, I look forward to today's hearing, and I will 
be especially interested in hearing what our witnesses have to 
say this morning.
    I thank you for this opportunity. I have to run to the 
floor, but I am going to try to get back. I have an amendment 
that I have to push this morning.
    Thank you.
    Chairman Lieberman. Thanks, Senator Voinovich. I have a 
feeling we are going to be here for a while.
    Senator Thompson.

             OPENING STATEMENT OF SENATOR THOMPSON

    Senator Thompson. I would like to see you come back; so 
hurry back.
    Thank you, Mr. Chairman.
    I hope we can do something in these hearings that will 
improve our stewardship of the environment. We have made a lot 
of progress over the last few decades, and I think we can do a 
lot more. The environment is something that each of us depends 
on and should not be a partisan issue. As you pointed out, I 
think the progress that we have made in the past has been on a 
bipartisan basis with those kinds of initiatives crafted by 
Republican and Democratic Presidents and Members of Congress, 
and we will need to continue to work together.
    I am somewhat disappointed as I listen to things going on 
around the country, that instead of being able to consider 
policies in somewhat of a dispassionate fashion, we are 
primarily going to be subjected to an attack on an 
administration and analysis of a record of an administration 
which is barely a year old and still trying to get its team 
together, mainly because Members of this Senate will not 
confirm and process them fast enough. That is not the total 
reason, but it is a big part of the reason why many of the 
agencies have suffered. I think this Committee has done a good 
job on that, but the head of the EPA Office of Enforcement and 
Compliance, for example, is still vacant. If we need to do a 1-
year record assessment, then so be it. I think, however, that 
what we are seeing here is an expression of concern and fear 
over what might be feared to be happening and not what has 
happened. There is a lot of speculation and guesswork, a lot of 
horror expressed, over the very thought that this 
administration might have a different view on some issues that 
are very complex, and on which a lot of Americans have 
different views than the Clinton Administration.
    And when I see Mr. Schaeffer doing his victory lap around 
the country and appearing on all the TV shows, as the lead 
story on the Democratic National Committee website, and his 
resignation coincides with these hearings, I would be willing 
to put off to a later date to do the careful analysis that we 
need to do on some of these policies, because we are involved 
in a lot more accusations than we are analysis, unfortunately.
    It makes it difficult on people like myself, who have spent 
a lot of time lately expressing concern over air quality, 
especially in the national parks, especially with regard to the 
Great Smoky Mountain National Park. In fact, I wrote the 
President a letter back when the lawsuits were being analyzed, 
back when the administration was trying to decide what approach 
to take on this, before Clear Skies came out, and basically 
told the President that I represent TVA, and I am concerned 
about its competitiveness. It should not be competitively 
disadvantaged. They are spending $500 million this year on 
upgrading their equipment, so they are trying to do what they 
can.
    But all that aside, we had to do something about the air 
quality in that part of the country. We were killing the Smoky 
Mountains. Automobiles certainly are a part of that, insects, 
and other things--but we simply had to do something better. And 
as he was looking at what to do, I wanted the President to know 
that I for one would support him in any reasonable action he 
took in order to address that problem.
    The President has now come out with what he calls his Clear 
Skies initiative, and I want to talk to Ms. Whitman about that 
today, and I want to be assured that this is going to make 
improvement with regard to the situation in the Great Smoky 
Mountains and perhaps other national parks. If in fact it can 
do what it says it can do, it will be a clear improvement, and 
to dismiss it out-of-hand simply because it comes from the Bush 
Administration is foolish and irresponsible.
    So let us talk about what that will do and what assurance 
we can have that it will make some improvement over existing 
law. These are issues that reasonable people can disagree on, 
but surely we can have that kind of analysis here.
    But for some folks, any change constitutes a rolling back. 
Any change from what the last administration did is considered 
to be anti-environmental. Any move away from the old command-
and-control approach to doing things, which produces hundreds 
of millions of dollars in wasted lawsuits all over the country, 
is a bad move.
    But protecting the environment cannot be a zero sum game. 
Interjecting some common sense into the regulatory process, 
some balance, some efficiencies, and some cost-benefit 
considerations into our regulatory scheme is not anti-
environment. In fact, the environment will suffer if we do not 
do so.
    Over the long haul, Americans simply will not put up with 
regulations that deprive them of a reasonable opportunity to 
produce energy when our Nation needs it so badly or to conduct 
reasonable business operations, especially in tough economic 
times.
    The reaction to unreasonable and overbearing regulations 
that work poorly may in itself be unreasonable, and 
environmental considerations may suffer unnecessarily as a 
result of such a reaction.
    Not all rules and regulations that are produced by 
government officials are wise or well-balanced or make good 
sense--even environmental regulations. To support every such 
regulation simply because it has an environmental tag on it 
would be just as wrong as to oppose every such rule for the 
same reason. And to oppose every attempt to take a second look 
at a complex regulatory set of proposals, some 26,000 pages 
worth that the last administration left this one, that are left 
on your doorstep by an outgoing and opposing administration is 
equally wrong.
    Let us look briefly at the review that the Bush 
Administration initiated of the regulations promulgated in the 
waning days of the outgoing Clinton Administration.
    First, there is nothing unusual about this type of review. 
During the months following a national election, the exiting 
administration typically engages in a flurry of rulemaking. 
Especially coming at the end of an 8-year-old administration, 
such 11th-hour rules raise a lot of questions. They avoid any 
political accountability and, not coincidentally, they often 
involve the most controversial of political hot potatoes. 
Incoming administrations typically take time to review and 
reflect upon the multitude of midnight regulations promulgated 
by the outgoing administration and to consider appropriate 
responses.
    President Reagan reviewed some of the Carter 
Administration's regulations, as did President Clinton with 
respect to the end-of-term rules promulgated by President 
George H.W. Bush.
    Many of the midnight regulations subjected by the Bush 
Administration to review deal with environmental issues. Upon 
review, the bulk of the proposed rules have been affirmed and 
implemented as promulgated by the former administration. Among 
these are the right-to-know reporting on lead, diesel fuel 
emissions, the Best Available Retrofitting Technology 
requirements. Other rules have been modified and some are still 
under review.
    This mixed bag should come as no surprise. While some rules 
are carefully crafted over time, others are hurried through the 
process. We need look no further than the Roadless Forest Rule 
issued about a week before President Bush took office. A 
Federal judge has blocked the implementation of this rule, 
finding that ``Because of the hurried nature of the process, 
the Forest Service was not well-informed enough to present a 
coherent proposal or meaningful dialogue'' and that ``the end 
result was predetermined. Justice hurried on a proposal of this 
magnitude is justice denied.''
    Not only is the administration's review of midnight 
regulations appropriate and routine, but when you really look 
at what the administration has been doing with its own agenda 
in the environmental arena, it seems like a double standard is 
being applied by those who want to denigrate the administration 
in an attempt to score political points.
    In fact, it seems to me that a lot of people are squealing 
before they get stuck, getting upset about what they think the 
administration might do, not about what the administration has 
done. I wonder if we are witnessing preemptive assaults to 
block or deter anticipated actions.
    We have mentioned the Clear Skies initiative, which we will 
have a chance to talk about. We can talk about the 
administration's brownfields reform to speed up brownfield 
cleanup; the safe water supply, where they work to ensure that 
our drinking water supplies are safe from terrorist attack. The 
Office of Management and Budget recently directed the EPA to 
speed up the reporting of its toxic release inventory to close 
the gap between the time when information is collected and the 
time it becomes available to communities concerning toxic 
pollutants.
    On resources, Bush's fiscal year 2003 environment and 
natural resources budget request is the highest ever, 3 percent 
higher than enacted in fiscal year 2002. The President's budget 
proposal provides $4.1 billion, the highest level ever, for 
EPA's operating program and provides the highest level ever for 
EPA's State program grants, $1.2 billion.
    We can talk about all this and if necessary talk about the 
good and the bad and the indifferent over a period of months. I 
am sure that every situation would have all those elements in 
it with regard to any administration. But I hope that we can 
address these issues in a serious and constructive way. If we 
want to continue to make gains in improving our environment, we 
have to direct limited government resources to wherever they 
can achieve the greatest good. It appears to me that the 
President is attempting to achieve that goal fairly early in 
the process, when I am still waiting for information, for 
example, and I am still waiting for the administration to 
decide what they want to do in some of these areas and to come 
up and defend its positions. Let us look at it and put it in 
the form of legislation and debate it.
    I am sure my colleagues will have different or additional 
environmental priorities, and we will no doubt work on those as 
well. I am confident we can work together to achieve results, 
but if we use the environment as a weapon, we will achieve 
nothing and we will harm the environment and miss some great 
opportunities.
    Hopefully, we can get past the labeling of each other based 
on statistics supplied by the various competing interest groups 
and get down to an analysis of the benefits and drawbacks of 
whatever proposal is on the table. That will be the only way we 
can truly develop regulatory frameworks that not only benefit 
the environment but actually work in the way intended and do 
not run roughshod over the other legitimate concerns that many 
Americans may have.
    Mr. Chairman, I look forward to hearing from the witnesses 
on ways that we can work together to enhance the quality of our 
environment while protecting other legitimate social goals. 
There has been significant improvement in environmental quality 
thanks to the work of people like yourself over the last many 
years, but there remains a lot to be done, and to get it done, 
we are going to have to work together, and I hope that this 
hearing and the ones that follow it will be constructive ones. 
Thank you.
    Chairman Lieberman. Thanks, Senator Thompson.
    We are privileged to have with us today two colleagues who 
heard about the hearing and asked to testify, and I want to 
call on them now.
    Senator Jim Jeffords obviously is the Chair of the 
Environment and Public Works Committee. Senator Jeffords, 
welcome.

 TESTIMONY OF HON. JAMES M. JEFFORDS, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Senator Jeffords. Thank you very much, Senator.
    I want to heed the words of Senator Thompson. I think it 
does no good to shout at each other; we have got to work 
together, and I think we all agree on that.
    Chairman Lieberman. Amen.
    Senator Jeffords. And I share your concern, Mr. Chairman, 
that not enough is being done to safeguard our Nation's 
environment.
    Today we stand at the crossroads. One road leads to cleaner 
air, safer water, and a healthier environment for all of our 
citizens. The other road leads to more haze, more smog, more 
polluted waterways, waste, and further environmental 
degradation. None of us wants that.
    I know what road I want to travel, and I know, Mr. 
Chairman, that you would choose the same path. Let us hope that 
all of us together can move in a direction that results in an 
improved environment for all of our citizens.
    As Chairman of the Senate Environment and Public Works 
Committee, I will be working tirelessly to ensure that the 
progress we have made over the last three decades is not lost. 
We will be watching carefully to be sure that this 
administration does not reverse the great strides that we have 
taken as a Nation to improve air and water quality.
    I applaud Governor Whitman for her commitment to advancing 
these issues. I know her well, and I have faith and confidence 
in her. She delivered on the administration's promise to 
complete the brownfields legislation. She reversed efforts to 
undermine safe drinking water by maintaining the arsenic 
standard. She moved forward with the sulfur and diesel fuel 
standards.
    But on the issue I care most about--clean air--Governor 
Whitman has not been able to move forward. My understanding is 
that her hands are tied and that others in the administration 
have prevented EPA from working with us.
    A few weeks ago, the President released his multi-emissions 
power plant proposal. I am happy to join the debate, but the 
President's proposal falls short, very far short, on sulfur 
dioxide, nitrogen oxide, and mercury. The President's plan is 
weak, and the President's plan completely ignores carbon 
dioxide. This is unacceptable.
    But we have begun the negotiation, and hopefully, a product 
that leads to real multi-emissions reduction will be turned 
into law this year. We will see.
    I am deeply concerned that the administration is looking to 
roll back the New Source Review rules. Months ago, we asked the 
EPA for information on the process for examining these rules, 
but we have not received one piece of paper. Let us not make 
more work for GAO, and let us not dump more soot and smog on 
our citizens. Our Nation cannot afford to reverse clean air 
health standards, and we will not let it happen.
    Mr. Chairman, I want to ensure the American public that the 
Congress, the U.S. Senate, and the Senate Environment Committee 
are watching the administration's environmental activities very 
carefully. The Environment Committee, particularly under your 
leadership of the Clean Air, Wetlands, and Climate Change 
Subcommittee, will be keeping careful oversight over all these 
important issues. I have confidence that you will do the job 
you always do.
    We cannot abandon our commitment to no net loss of 
wetlands. We should curb the impact that our mining activities 
are having on the watersheds. We must replenish our Nation's 
aging water infrastructure. We should improve Federal 
environmental enforcement. We need to fulfill our 
responsibilities under the Kyoto Treaty and reduce our 
contribution of carbon to the atmosphere. We need progress, not 
promises.
    We have so much to do together to leave a legacy of a 
clean, safe environment.
    Thank you, Mr. Chairman.
    Chairman Lieberman. Thank you, Senator Jeffords. I consider 
myself privileged to serve on the Environment Committee under 
your leadership. I thank you for the leadership, and I thank 
you--others of less hardy New England constitutions might not 
have tried again to find a bipartisan consensus for a four-
pollutant bill for your steadfastness and guts in trying to do 
that. Under your leadership, you and I are working, together 
with Senator Smith and Senator Voinovich, to see if we can do 
that.
    So I thank you for taking the time to be here and for your 
leadership generally in these matters.
    Chairman Lieberman. Now we will turn to our colleague, 
Senator Larry Craig, a member of the Energy Committee.

 TESTIMONY OF HON. LARRY E. CRAIG,\1\ A U.S. SENATOR FROM THE 
                         STATE OF IDAHO

    Senator Craig. Mr. Chairman, thank you very much for this 
courtesy. I appreciate it.
---------------------------------------------------------------------------
    \1\ The prepared statement of Senator Craig appears in the Appendix 
on page 106.
---------------------------------------------------------------------------
    I should be here to talk about clean air and climate change 
today, but I am not. I was very pleased that prior to leaving 
for China, the President laid down what I thought was a very 
thoughtful approach toward climate change, maybe because a lot 
of the work that had been done was crafted in the Energy 
Committee by Senator Chuck Hagel and myself and others over 3 
years of extensive review, and we were pleased that the 
President recognized that the application of science and new 
computer modeling and clearly a development of the 
understanding in a foundational way prior to the crafting of 
rules and regulations that would begin to direct this economy 
was a more practical way to go.
    But because you have on your agenda this morning two folks 
who are going to talk about something else in the context of 
the whole review that you have requested of this Committee, let 
me spend some time if I could, Mr. Chairman, talking about 
those issues.
    As chairman of the Subcommittee on Public Lands and Forests 
of the Energy and Natural Resources Committee, I held a series 
of five hearings between November 1999 and March 2001 to 
examine the development and potential consequences of the 
Clinton Administration's Roadless Area Conservation rulemaking. 
Our hearing record details numerous questions about the process 
and data used to develop the Roadless Area Conservation Rule, 
and I have brought those committee records with me this morning 
and would ask that they become a part of this hearing, Mr. 
Chairman.\2\
---------------------------------------------------------------------------
    \2\ Hearings held by the Senate Committee on Energy and Natural 
Resources entitled ``Protection of Roadless Areas'' on November 2, 1999 
(S. Hrg. 106-416 Pt. 1), February 22 and March 30, 2000 (S. Hrg. 106-
416 Pt. 2), and July 26, 2000 (S. Hrg. 106-416 Pt. 3) referenced by 
Senator Craig can be obtained from the Senate Committee on Energy and 
Natural Resources.
     Hearing held by the Senate Committee on Energy and Natural 
Resources entitled ``Forest Service's Roadless Area Rulemaking,'' on 
April 26, 2001 (S. Hrg. 107-66) referenced by Senator Craig can be 
obtained from the Senate Committee on Energy and Natural Resources.
---------------------------------------------------------------------------
    Chairman Lieberman. Without objection, so ordered.
    Senator Craig. Thank you. While I am not going to recite 
the entire history of this controversy, I do want to highlight 
some of the key dates and events to help you better understand 
this issue.
    To begin, the issue of roadless has been with us now for 
well over 30 years. In 1972, the Forest Service began a 
Roadless Area Review Evaluation--we called it RARE I--to 
examine how much land should be set aside and recommended for 
potential wilderness. A more comprehensive RARE II inventory 
was undertaken in 1982. That review examined a little over 62 
million acres. A variety of wilderness bills passed by Congress 
allocated 24 percent of the RARE II, or that 62 million-acre 
base of lands, to wilderness. The National Forest Management 
Act forest plans recommended 10 percent of the 62 million acres 
to wilderness, 17 percent of the land for future wilderness 
study, 38 percent of the land for multiple use that excluded 
timber harvest, and only 14 percent of the 62 million acres 
could be considered potentially available for timber 
harvesting.
    It is important to know that from the time of RARE I and 
its completion until 1998, less than 1.1 million acres of the 
original 62 million RARE II acres was ever utilized for timber 
harvest. Thus, less than 2 percent of the entire 62 million 
acres has ever been entered or would likely be entered within 
the next 5 years for those purposes.
    In 1998, after the Interior appropriations bill on the 
floor--and I think we were all on the floor, Mr. Chairman, 
engaged in that debate, and it dealt with road moneys and road 
allocations; I think John Kerry led that debate on the floor 
for the other side--we were successful by one vote, as I 
recall. I invited the Chief of the Forest Service, Mike 
Dombeck, to my office to discuss this issue. I could see that 
it was growing increasingly contentious--it deserved a remedy 
and an approach--and I asked him to come and sit down, and I 
offered my committee, the Energy and Natural Resources 
Committee, for the purpose of resolving this issue.
    I was politely informed by Chief Dombeck that they would 
rather resolve the issue administratively. In other words, no 
bipartisan approach was going to appear over this issue. I know 
this morning you opined the fact of bipartisanship. It did not 
happen in this issue. The Clinton Administration chose to go it 
alone.
    In May 1998, Vice President Al Gore stated that not only 
would he eliminate all road-building, but he would prohibit all 
timber harvest in roadless areas. In effect, he had announced 
the selection of the final alternative to the Clinton Roadless 
Area Conservation Rule before the draft rulemaking had even 
begun.
    I must tell you, Mr. Chairman, that I do not view that as 
bipartisan.
    On October 13, 1999, President Clinton, speaking at Reddish 
Knob in Virginia, directed the Forest Service to develop 
regulations to end road construction and to protect inventoried 
and uninventoried roadless areas across the National Forest 
System.
    On October 19, 1999, the Forest Service published a Notice 
of Intent to Prepare an Environmental Impact State to proposed 
protection of certain roadless areas.
    In June 1999, Chief Dombeck, in a letter to his employees 
on the roadless issue, stated that ``Collaboration does not 
alleviate our responsibility to make decisions that we believe 
are in the best long-term interests of the land or the people 
who depend on and enjoy it,'' thus making it clear that Vice 
President Gore's statement was going to carry the day.
    Chairman Lieberman. Oh, for one brief, fleeting moment, you 
had me carried away on a fantasy. [Laughter.]
    Then again, if that had happened, I would not be here; I 
would be locked up in bunker somewhere.
    Senator Craig. Mr. Chairman, I had hoped to make this 
morning enjoyable for you, so I wanted to offer you at least 
some flights of fancy.
    Chairman Lieberman. You are very gracious. [Laughter.]
    Senator Craig. Now, in 2000, in the State of the Union, 
nearly 11 months before the final Roadless Area Conservation 
Plan was published, the President said that he, together with 
the Vice President, was going to save the day and protect over 
40 million acres of roadless land in the national forests and 
that largely by their action, they were doing so.
    On November 13, 2000, the final EIS for the Roadless Area 
Conservation Rule was published. And on January 12, 2001, the 
final Roadless Area Conservation Rule was published in the 
Federal Register. What was remarkable, Mr. Chairman, is that 
over the Christmas holidays, the Agency read, absorbed, and 
responded to over 1.2 million public comments in a little under 
2 months.
    The Forest and Public Lands Subcommittee hearings made it 
clear to me that the decision on what to do about roadless 
issues was sealed on October 13, 1999, and the rest of the 
effort was little more than window-dressing.
    It was also no surprise to me that Federal District Court 
Judge Ed Lodge stayed the implementation of this rule. While 
Judge Lodge's stay has been appealed to the Ninth Circuit Court 
of Appeals, the fact remains that no administration, not the 
Bush Administration, not the Clinton Administration or any 
future administration, can ignore a Federal judge's ruling.
    I know that both the National Resource Defense Council and 
Professor McGarity, who are with us today, both proponents of 
the Roadless Rule, are here today to attempt to convince you 
that the Bush Administration is somehow skirting the law by 
refusing to fully implement the Roadless Area Conservation 
Rule. But the simple fact is that Judge Lodge enjoined all 
aspects of the Roadless Area Conservation Rule.
    I would like to give you copies of that--here are copies of 
the judge's decisions from both April 5 and May 10, which 
should become a part of this record.\1\
---------------------------------------------------------------------------
    \1\ Judge's Orders dated April 5, 2001 and May 10, 2001 appear in 
the Appendix on pages 315 and 336, respectively.
---------------------------------------------------------------------------
    The reason I do this is also for us to understand that the 
Ninth Circuit Court of Appeals has not made a decision. I think 
it would be wrong to draw conclusions at this point. The fact 
is that every administration faced with defending Agency 
decisions in court examines each case on its merits, Mr. 
Chairman, and then decides which course of action is best for 
the government to take.
    In April of 2001, the Washington Legal Foundation provided 
an analysis of the Clinton Administration's failure to defend 
or appeal cases that went against natural resource agencies 
during his 8 years in office. What I am about to suggest to you 
is that what President Bush has done was in many instances 
carried out by the Clinton Administration.
    They found 13 occasions when the Clinton Administration 
refused to defend resource management decisions of its 
predecessors, choosing to accept the injunction or remand from 
a U.S. District Court rather than defend those decisions in a 
U.S. Court of Appeals and at least 28 other occasions when the 
Clinton Administration refused to defend its own resource 
management decisions in a court of appeals after receiving an 
injunction or remand from a U.S. District Court.
    I would like to enter a copy of that Washington Legal 
Foundation April 25, 2001 analysis in the record, Mr. 
Chairman.\1\
---------------------------------------------------------------------------
    \1\ Letter from Daniel J. Popeo and Paul D. Kamenar, Washington 
Legal Foundation, to Senator Craig dated April 25, 2001 appears in the 
Appendix on page 341.
---------------------------------------------------------------------------
    Chairman Lieberman. Without objection.
    Senator Craig. Last, a quick analysis of impact. Last 
summer, my staff took the time to better understand why people 
are so upset in the public land States with the Roadless Area 
Conservation Rule. This is what we found.
    We found that nearly 43.5 thousand acres of State lands are 
within the RARE II areas and that about 421,000 acres of 
privately owned land were within these areas. Interestingly, we 
found no evidence in the Forest Service's EIS to suggest that 
the State, private, and other Federal landowners were notified 
by either the national or local Forest Service office that this 
policy would affect the National Forests that surrounded their 
lands. In many instances, these owners, State and/or private, 
or even Federal, might have lost access to their lands.
    Mr. Chairman, if local government were going to change the 
zoning around your home and failed to notify you of that change 
or what it might mean, that it might damage or devalue your 
property or cause you to lose access to it, my guess is that 
you would become very skeptical about that zoning rule. I see 
no difference here.
    The Forest Service developed this rule in a very compressed 
time frame with little or no description of the potential 
impact of the rule to the local level. Let me give you a few 
examples, and then I will cut this short.
    On the Panhandle Forest of Idaho, one of many that we have 
in my State, we found 13 Roadless Areas with National Forest 
System roads within the Roadless Areas proposed and at least 
three mines and Forest Service campgrounds, and one power line, 
all of which were encompassed within the designated Clinton 
Roadless Areas.
    On the Superior National Forest in the Sate of Minnesota, 
we found three Roadless Areas within the National Forest System 
roads and four public boat ramps, three Forest Service 
campgrounds, and one mine.
    On the Chequamegon-Nicolet National Forest in Wisconsin, we 
found 1,300 private acres and 2,800 State acres that would have 
been denied access by the rule.
    On the Monongahela National Forest in West Virginia, we 
found 10 RARE II Roadless Areas that were being proposed that 
had pipelines through them, railroad rights-of-way, and other 
roaded access areas.
    In the Dixie National Forest in the State of Utah, we found 
14 Roadless Areas with National Forest System roads throughout 
them, two reservoirs, and one water pipeline.
    I could go on through this litany for a long, long while. 
When the Federal judge in Idaho looked at all of this, after 
twice warning the administration that they were at or near the 
violation of Federal law, he ruled; he stopped the action.
    Mr. Chairman, I think that what we have to deal with here 
today is opposing points of view, but we should not deny or 
condemn those who play by the rules and by the law, and that is 
what I believe this administration has done. A Federal judge 
has spoken. The Ninth Circuit Court will speak. Oftentimes, the 
Ninth Circuit Court has been very loud on these issues.
    We can either condemn, or we can suggest that the Bush 
Administration has followed what past administrations have 
done. In the case of the Clinton Administration, on 28 
occasions, they stepped back from nor would they defend the 
action of the very Agency that was before the court.
    Oh, yes, in the West and across the Nation, the roadless 
issue is a high-profile political issue. In my State, it is a 
critical issue because it just so happened that the State of 
Idaho had the larger majority of lands of all the States in the 
Nation. And ironically, Mr. Chairman, when we are talking about 
clean air and carbon sequestration and climate change and 
vital, youthful, young, growing National Forests that have 
phenomenal capability in sequestration of carbon, should we not 
be talking about access for the purpose of forest health, for 
the purpose of creating a mosaic of young and vital forests for 
this country's clean air needs? I think we ought to be.
    To lock them up and walk away, in a State of near forest 
crisis today in which the West and the West alone--although 
many other States are now experiencing it--has lost nearly 3 
million acres of forest to wild fires over the last 3 years, it 
is not an environmental issue, it is an environmental crisis. 
That is what we talk about when we deny ourselves right and 
responsible management of these resources.
    Mr. Chairman, you have been very generous with time. Thank 
you.
    Chairman Lieberman. Thank you, Senator Craig. We are going 
to get into the natural resource question somewhat in the panel 
following Administrator Whitman, and we will probably come back 
to them at later hearings; perhaps we will have folks from both 
Agriculture and Interior to come in and speak with us about 
them.
    So I thank you for the time you put into the statement you 
made and for the time you took to be here.
    I thank both of my colleagues for being here. We look 
forward to continuing to work with you to try to find common 
ground to move forward the bipartisan environmental legacy of 
our country.
    Thank you both very much.
    Senator Craig. Thank you.
    Senator Jeffords. Thank you, Mr. Chairman.
    Senator Lieberman. We will now call the Administrator of 
the U.S. Environmental Protection Agency, the honorable 
Christine Todd Whitman.
    Senator Thompson. Mr. Chairman, I might add that while I am 
somewhat sympathetic with the points that Senator Craig has 
made, we still have places down where I come from that we do 
not want any more roads leading to. So I just want to go on 
record with that. Thank you.
    Chairman Lieberman. I think I got that. Thank you.
    Ms. Whitman, thank you for being here, and thanks for your 
patience as we made our opening statements and our colleagues 
did the same.
    We look forward now to your testimony.

  TESTIMONY OF HON. CHRISTINE TODD WHITMAN,\1\ ADMINISTRATOR, 
              U.S. ENVIRONMENTAL PROTECTION AGENCY

    Ms. Whitman. Good morning, Mr. Chairman and Senator 
Thompson. It is a pleasure to be here with you this morning.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. Whitman appears in the Appendix 
on page 120.
---------------------------------------------------------------------------
    With the Chairman's permission, I have a longer statement 
that I would like to submit for the record.
    Chairman Lieberman. Without objection, it will be printed 
in full in the record.
    Ms. Whitman. Mr. Chairman, I want to start by thanking you 
for calling this hearing on the environmental record of the 
first year of the Bush Administration. I am proud of what EPA 
has accomplished over the past 13 months and welcome every 
opportunity to be able to talk about it.
    I realize that the Chairman does not necessarily share my 
assessment of the past year. I read your recent speech out in 
California, and I understand your concerns. But in reading that 
speech, I also think there is a great deal of common ground 
where we can work productively, and I look forward to so doing.
    To enable us to work more effectively, I think it would be 
helpful to change the tone that surrounds environmental issues 
and environmental discussions, and that may take leadership 
from Washington. I understand very well that any discussion 
about the environment and environmental policy often engenders 
a great deal of emotion and that very different conclusions can 
be drawn from the same information.
    I would just like to share with you two books here that are 
recently published that very clearly illustrate the point. Both 
Bjorn Lumberg and Lester Brown are highly respected 
environmental experts. They both took similar sets of 
statistics and came out with quite different conclusions about 
the impact on the environment. But that does not mean that one 
is a friend of the environment and the other is an enemy of the 
environment. They are both people of good faith when it comes 
to the environment.
    I believe that is a point worth remembering as we work 
together to protect the environment and safeguard public 
health.
    As I have said many times, my goal at the Environmental 
Protection Agency is to leave America's air cleaner, its water 
purer, and its land better protected than I found it. We have 
made real progress in meeting that goal, and I would like to 
highlight some of the most important of those accomplishments 
that we have been able to achieve to date.
    First, cleaner air. Several weeks ago, President Bush 
proposed what I have categorized and you have reported that I 
have categorized as the most significant improvement to the 
Clean Air Act in more than a decade. I firmly believe that. His 
Clear Skies proposal will achieve mandatory reductions of 70 
percent in three of the most noxious air pollutants emitted by 
power plants--nitrogen oxides, sulfur dioxide, and mercury. 
Clear Skies would also reduce fine particulate pollution over 
the next 10 years faster than would occur under the current 
Clean Air Act. And the new findings to which the Chairman 
referred earlier published by the American Medical Association 
underscore the importance of enacting the Clear Skies policy to 
help address this and other health issues.
    One might categorize the President's approach as ``a 
market-friendly way that encourages innovation, maintains 
flexibility for business, and achieves real environmental 
results that we need.'' In fact, Mr. Chairman, that is exactly 
how you in your speech in California described the program on 
which we modeled Clear Skies, the Acid Rain Trading Program. 
The Acid Rain Trading Program was established in 1990 as part 
of the Clean Air Act amendments, and this approach has worked 
for acid rain, and we believe it will work for Clear Skies as 
well.
    I believe we can make some real progress with Clear Skies, 
and I am looking forward to working with Chairman Jeffords and 
with you and your colleagues on the Environment and Public 
Works Committee to enact historic clean air legislation.
    Before I leave this issue, I would like to say a word about 
EPA's review of the New Source Review program. The NSR program 
is a program that needs to be fixed. The National Governors 
Association said so quite clearly, as did the Environmental 
Council of the States. We are still deciding how we can best 
improve NSR to make it more efficient while accomplishing its 
goals.
    But despite what some have said, we are not going to 
undermine the Clean Air Act. We are not going to stop enforcing 
the environmental laws that protect the health of our fellow 
citizens. We are going to meet our obligations to the American 
people by improving NSR.
    We are also meeting our obligation to the American people 
and the world community with respect to climate change. Last 
month, the President announced a sensible, responsible proposal 
to cut greenhouse gas intensity by 18 percent over the next 10 
years. At the same time, his proposal will allow us to take 
future action as science justifies to stop and then reverse the 
growth in greenhouse gas emissions.
    The President's proposal includes incentives for industry 
to act now to start to cut their greenhouse gas emissions. By 
taking steps today to achieve such reductions, they can earn 
credit against any future mandatory requirements.
    This common sense, market-based idea will, I believe, 
produce real results.
    Next, let me turn to purer water. I believe that water 
quality and supply issues, as I have said to you and the 
Committee before, will likely pose the major environmental 
challenge of the 21st Century. Despite significant progress 
over the last 30 years, we still have much to do.
    Because nonpoint source pollution is now the major 
contributor to water pollution nationwide, we are redirecting 
our attention away from simply looking at water quality at the 
end of a particular discharge pipe to looking at practices in 
entire watersheds and how they affect the quality of all the 
water in that watershed.
    The President's proposed budget includes funding for a 
watershed initiative that will build partnerships for cleaner 
water in 20 of America's most threatened watersheds. Our 
proposal, based on the ``Clean Charles 2005 Initiative'' in 
Boston, will help us craft solutions for each watershed based 
on its unique needs and challenges. It will also complement the 
funds that we are already making available to the States to 
help control nonpoint source pollution.
    Our focus on watersheds will also help transform the way 
that Americans think about how they can make a difference for 
cleaner water. As people learn more about the ways that even 
small, individual actions can lead up to big environmental 
consequences, I believe they will become even more active 
partners in our effort to make America's waters purer.
    We have also moved quickly to help secure America's 
drinking and wastewater systems from disruptions from terrorist 
attacks. We have greatly accelerated the work underway to 
develop vulnerability tools for water utilities, finishing that 
work literally months ahead of schedule. In addition, we will 
soon be distributing to the States the nearly $90 million 
already approved and appropriated to help water utilities 
perform vulnerability assessments.
    Finally, let me touch on how we have worked to better 
protect the land. The most significant accomplishment in this 
area is the passage of historic brownfields legislation. This 
new law, which will help clean up thousands of the most 
difficult brownfield sites that remain in America, is a fine 
example of how much we can accomplish when we work together in 
a bipartisan fashion. I believe this new law will truly be seen 
as one of the landmark pieces of legislation of the 107th 
Congress. And I am pleased that in our budget request for 
fiscal year 2003, the President has asked for $200 million more 
to help State and local governments tackle brownfields 
projects. That is more than double from last year.
    We have also continued to ask for steady funding for the 
Superfund program at $1.3 billion. I should point out that our 
request for brownfields funding is in addition to the Superfund 
funding, not part of it, as it has been in past years.
    Mr. Chairman, Senator Thompson, as I look over the record 
of the past year, I am proud of what we have accomplished at 
the Environmental Protection Agency. Because of what we have 
done, America's air will be cleaner, its water will be purer, 
and its land will be better protected. And that is important 
because it means not just a cleaner environment, but because it 
also means a healthier America.
    Thank you very much. I look forward to taking your 
questions.
    Chairman Lieberman. Thanks, Governor Whitman, Administrator 
Whitman. In Connecticut, once you are a Governor, that title 
never leaves you, so I say it with respect.
    Ms. Whitman. That is fine with me.
    Chairman Lieberman. I pick up from your initial words, and 
I do think that you and I have common goals, and it is always a 
pleasure to work with you. I say that not just because of the 
testimony you have given before Congress but what I know to be 
your record as Governor of New Jersey.
    The problem is, I am skeptical that I have common goals 
with others with whom I think you may be doing battle within 
the administration. I want to ask some questions along those 
lines.
    Let me begin with the New Source Review program. I want to 
refer to an article in The New York Times last month, on 
February 19, 2002, which described, as you will remember, 
internal EPA documents that the newspaper obtained in which EPA 
personnel indicated that some of the New Source Review 
proposals were, ``in conflict'' with legal requirements of the 
Clean Air Act and that some aspects, according to those 
documents, were ``silent regarding air quality impacts 
analysis,'' and that ``the proposals would `vitiate' the 
Nation's clean air policy.''
    The article actually begins with this statement: ``The 
Environmental Protection Agency has strenuously objected to the 
Energy Department's recommendations to the White House to 
revise air pollution regulations, saying the proposals would 
vitiate the Nation's clean air policy. The dispute, detailed in 
recent internal EPA documents, is indicative of a fierce battle 
between the two agencies as the Bush Administration prepares to 
announce final plans for revisions to a program that requires 
factories to modernize their pollution controls when they 
upgrade their plants.'' And this pitched battle portrays you 
definitely on a white horse on one side and Spence Abraham and 
the so-called high-powered energy lobbyists including Marc 
Racicot and Haley Barbour on the other.
    So this morning my question is what is the status of the 
battle, and more particularly, what assurances can you provide 
that you will not promulgate any rules--just to go from the 
document cited in the time article--that ``conflict with the 
law, that ignore air quality analysis, or that will undercut 
clean air policy''?
    Ms. Whitman. First, let me say that I would not 
characterize anything as fierce battle but as a vibrant 
discussion.
    Chairman Lieberman. Hear, hear.
    Ms. Whitman. And obviously, there are different 
constituencies that the Agency and the Department represent, 
and it is appropriate that the Department of Energy is 
reflecting the needs for energy, sustainable energy, affordable 
energy, for the United States, and that we have as our first 
priority our concerns about the impact on the environment.
    However, those two things are not in conflict. They can and 
they must in fact work together, and we are continuing to do 
that.
    It is important to remember on New Source Review that in 
fact there are two parts of it that we are looking at. Back in 
1996, the Clinton Administration put forward proposals that 
would in fact streamline New Source Review. They characterized 
it and say ``The requirements and procedures that have evolved 
under the New Source Review program are complex and 
prescriptive. Under certain circumstances, these requirements 
have limited facilities' operational flexibility or 
inadvertently impeded the conversion of older, higher-polluting 
processes to more efficient and environmentally-beneficial new 
ones.''
    We agree with that assessment and feel there needs to be an 
assessment of New Source Review. Those proposed rules were 
first put out in 1996; the Agency has been taking comments 
since then, and those are ones that we feel we are close to 
being able to move forward with. We could go final with those, 
because they have been subjected now to almost 10 years of 
discussion and input; there have been two public hearings and 
over 50 stakeholder meetings. Since the energy proposal first 
came out and there was the 90-day review required of the Agency 
on New Source Review, we have received many, many more comments 
on those proposals, and all of them really reflected what had 
been submitted before for the record. However, there is another 
suggested set of improvements that could be made to New Source 
Review that could not possibly be enacted without going through 
the full and complete public review that every regulation is 
subjected to, and that means publishing in the Federal 
Register, and taking comments; it is about a 3-year process.
    These are two separate tracks; they are two different sets 
of enhancements to New Source Review. But certainly, we would 
not do anything that would undermine the Clean Air Act, and in 
the interim, we are continuing to vigorously pursue and ensure 
that we are enforcing New Source Review regulations.
    Chairman Lieberman. So you are foreseeing--obviously, there 
is concern about your going straight to final on New Source 
Review without an additional period of time for official 
comment--so if I understand you correctly, you are in some ways 
dividing this into two tracks.
    Ms. Whitman. If we were to go forward with any final rules, 
it would only be on those rules that were first proposed in 
1996 and on which we have been receiving comments since then. 
Again, it is a very complete record, it is a very full record. 
After the energy policy came out and we were asked to do a 90-
day review, which is continuing, so it is a little longer than 
90 days because of the complexity, we have received lots more 
in the way of testimony and comment. Some comments are directly 
on what was proposed back in 1996 by the Clinton 
Administration, and that testimony and that information has 
supported what was already on the record. So we have not seen a 
big change.
    Now, there is another area that goes to more comprehensive 
changes, and those would have to have the full review process.
    Chairman Lieberman. So at this point, going back to the 
documents quoted in The New York Times article and documents 
that I have seen beyond that, how are you doing in the vibrant 
discussion--or the pitched battle--with the Energy Department?
    Ms. Whitman. Again, we believe very strongly that this is 
not an either/or proposition; that in fact we need to ensure 
that we have a healthy economy and a clean and healthy 
environment. And we are looking to ensure that what we do is 
comprehensive and that it meets those two goals, and I believe 
that we are close to achieving that. But again, anything that 
we would do that is of any kind of broad nature on New Source 
Review that has not been discussed would have to go out to the 
public and have comments directly on those recommendations.
    Chairman Lieberman. Let me just ask a final question on 
this round, and then Senator Thompson and I will go back and 
forth.
    First, I want to indicate that it seems to me there have 
been many developments since the 1996 proposal and the 1998 
comments--new science, enforcement lawsuits--all of which have 
not been the subject of official comments. That is why I would 
really be concerned if you went straight to final on any part 
of the New Source Review.
    Don't you agree that the conclusions in the article in the 
Journal of the American Medical Association yesterday about the 
12 percent higher probability of premature death of people in 
metropolitan areas where older power plants are emitting 
pollutants into the air gives a new sense of urgency and 
importance to the New Source Review proposals? It really 
requires us to be even more demanding--not to backslide--is 
what I am saying.
    Ms. Whitman. Oh, absolutely, Senator. We should be more 
demanding, and that is why I am so supportive of the Clear 
Skies initiative, because that enables us to reach those 
targets faster than we would under the current Clean Air Act.
    New Source Review has been in place, as I indicated, since 
1977. We have outstanding cases there. There are people who 
have not been meeting their targets. I think it is time for us 
to take a good, hard look and ask how can we improve it, how 
can we move this along faster.
    We believe that by setting comprehensive targets for those 
three emissions and putting on a mandatory cap, letting 
utilities know what they have to meet, when, and starting that 
process today, rather than the incremental phase-in of the 
standards that we currently have under the Clean Air Act. This 
is because the five programs that really impact these emissions 
are phased in over time; and, as you know, they often get 
litigated--there is pushback on what standard the Agency sets. 
So we think it would be much faster if we could get a law 
through the Congress, working with Congress, that set those 
standards and said this is it, you have 10 years to meet them, 
and you meet them how best you choose, in the way that keeps 
you economically competitive, but you have to meet these 
standards. We think that will help us ensure the public health.
    Chairman Lieberman. OK. I will come back to the Clear Skies 
initiative in the second round. Senator Thompson.
    Senator Thompson. Thank you, Mr. Chairman.
    You mentioned pollution in metropolitan areas. Would you 
believe that on some days, it is more polluted at the top of 
the Great Smoky Mountains than it is in metropolitan areas?
    Chairman Lieberman. I do.
    Senator Thompson. This is something that has concerned me 
for a long time. As I indicated earlier, I wrote the President 
a letter about this last year, and I am very concerned about 
the air quality in the Smokies. It is the most heavily visited 
park in this country by far--we are loving it to death. And we 
have been debating what to do, but clearly part of what we have 
got to do is to address the emissions problem up there. There 
are automobile problems and others, but the emissions from the 
coal-fired plants in that area are certainly a part of the 
problem.
    So when it was clear that the President was going to review 
the policies here and come up with his own, I wrote him to 
express my support for whatever he was willing to do, however 
far he was willing to go.
    Governor, I would ask you what in the President's plan will 
help solve this problem? Why should we believe that it will 
solve the problem? How will the President's approach be better 
than the current approach?
    Ms. Whitman. Well, Senator, we feel very strongly that 
Clear Skies will make a dramatic improvement to visibility in 
our Nation's parks, and for a couple of reasons, and will do it 
faster than under any New Source Review or current Clean Air 
Act regulations. First, by capping the NOx and 
SO2 emissions from electric power plants, the 
President's proposal goes directly to those emissions that most 
exacerbate the problem of visibility. We will be removing 
millions of tons of pollutants each year from the atmosphere, 
and these reductions will substantially improve visibility. In 
fact, the runs that we have done that we can share with you 
show that the greatest improvement will be seen along the 
Appalachians, including the Blue Ridge and the Great Smoky 
Mountains.
    Senator Thompson. Clearly, the pollutants that you address 
are the pollutants of concern to the parks.
    Ms. Whitman. Yes, but there is another part, if I may, that 
speaks directly to the national parks in the Clear Skies 
proposal. The Clear Skies proposal would provide additional 
protection for the parks and wilderness areas by requiring that 
all major new sources of emissions built within 50 kilometers 
of these areas, or the Class I areas as they are referred to, 
have to meet even more stringent emission standards that are 
currently required under the Clean Air Act.
    Senator Thompson. Is that part of Clear Skies?
    Ms. Whitman. Yes, that is part of Clear Skies. In addition, 
the President's proposal would require that these new sources 
perform supplemental air quality modeling to better assess the 
potential impact of their emissions.
    So there are parts within the Clear Skies proposal that go 
directly to the visibility impact that these reductions would 
have, and particularly to our national parks and wilderness 
areas, those Class I areas, have additional restrictions put on 
any new sources that would come on line.
    Senator Thompson. It sounds like you are moving away from 
the kind of command-and-control approach of the past to a cap-
and-trade approach. What evidence is there that that will work?
    Ms. Whitman. The best evidence that we have is the current 
Acid Rain Program. The current Acid Rain Program has almost 100 
percent buy-in by industry. It takes less than 70 EPA employees 
to oversee----
    Senator Thompson. That addresses sulfur dioxide, too, I 
understand.
    Ms. Whitman [continuing]. And it addresses sulfur dioxide, 
and the reductions in sulfur dioxide have been much greater in 
the first phase than were anticipated when the program was 
first started. It has been an enormous success by every 
standard, and that is the program that we are using as the 
model for Clear Skies.
    There is every reason to believe that is a good model--we 
know it is a good model--and every reason to believe that it 
will be just as effective with Clear Skies.
    Senator Thompson. I got this chart from your staff,\1\ 
showing improvements in annual visibility under your approach. 
Can you tell us what we are looking at here? I do not know if 
you have a copy of it or not; Senator Lieberman and I do.
---------------------------------------------------------------------------
    \1\ Chart entitled ``Improvements in Annual Visibility in 2020 
Under a Multipollutant Scenario Relative to the Base Case,'' appears in 
the Appendix on page 347.
---------------------------------------------------------------------------
    Chairman Lieberman. We will get you a copy.
    Senator Thompson. It looks to me like the heavier the blue, 
the greater the reductions.
    Ms. Whitman. Right.
    Senator Thompson. And the reductions here, as you have it, 
it looks like I would have drawn it. The greatest reductions 
are along the Appalachians, including the Blue Ridge and the 
Great Smoky Mountains.
    How did your people derive this and come to the conclusion 
that under your plan, not only would it benefit this area, but 
that it would seemingly be of greater benefit to the area that 
I am most concerned about?
    Ms. Whitman. Well, it is clear, Senator, that it must have 
been drawn with you in mind, because it was not with me in 
mind--New Jersey does not get quite as good reduction as you 
do. Obviously, this is reflective of what we know about air, 
what we know about transport, what we know about sources of 
emissions and where those emissions end up. The modeling done 
here was very comprehensive. It gets down to--OK, Jeff, come up 
here to describe the picocuries that are reflected here and how 
one makes an enormous difference.
    This is Jeff Holmstead.
    Chairman Lieberman. You are not an expert on picocuries?
    Ms. Whitman. I am not, I am sorry, Senator.
    Chairman Lieberman. We will note that for the record.
    Senator Thompson. It may be more than we are able to 
receive here, but we will see.
    Mr. Holmstead. Just very quickly, because we know much more 
about power plants than any other industrial sector, we 
actually have a linear programming model that shows the 
compliance strategy that the industry would use and the 
specific places where the emission reductions would occur under 
the President's Clear Skies proposal.
    We can then use that and the visibility model, which 
expresses visibility improvements in terms of deciviews. An 
improvement of one on the deciview scale is very noticeable to 
humans, and under the President's proposal--and again, this is 
because of the location of the areas and the atmospheric 
conditions around the Smokies--but according to our modeling 
results, the improvements along the Appalachians are between 
three and four deciviews, so it would be a pretty dramatic 
improvement. And again, these go well beyond anything we could 
get under current law.
    Senator Thompson. So that basically, you are telling these 
plants they have to get to certain levels, but you do not tell 
them how to get there; it is kind of like a performance spec in 
one of my prior lives, it sounds like to me.
    Ms. Whitman. Yes. Every plant would have to take some 
action. They could enter into a trade or actually put some 
scrubbers or take some action at the plant itself. Everybody 
would have to do something, but it would be up to them to 
determine what was the most economically feasible action for 
them to take, while achieving the goals that we have set out, 
which are lower than what we can achieve now under the Clean 
Air Act.
    Senator Thompson. Is there monitoring along the way? Is 
there any way to tell until the end of the day whether or not 
these plants are moving in the right direction?
    Mr. Holmstead. We actually have what are called continuous 
emissions monitors on each of these plants now, so we actually 
know continuously what their emissions are. I think they are 
updated every 15 minutes. So really, more than any other 
program, we know exactly what the emissions are and exactly 
what is coming out of which smokestack anywhere in the country.
    Senator Thompson. If you would, let us make that chart a 
part of the record of this hearing, Mr. Chairman.\1\
---------------------------------------------------------------------------
    \1\ Chart entitled ``Improvements in Annual Visibility in 2020 
Under a Multipollutant Scenario Relative to the Base Case,'' appears in 
the Appendix on page 347.
---------------------------------------------------------------------------
    Chairman Lieberman. Without objection.
    Senator Thompson. And one of these days, somebody on this 
side of the table will be asking questions of somebody on your 
side of the table as to whether or not this panned out the way 
you said it would.
    Mr. Holmstead. If this is going in the record, if I could 
just mention one thing--this was actually a modeling run of 
something that was not quite as stringent as the President's 
proposal, so this actually underpredicts the benefits of the 
President's proposal.
    Senator Thompson. If you could supply that, I would bet the 
Chairman would be willing to file that later, as a late 
exhibit.\2\
---------------------------------------------------------------------------
    \2\ Chart entitled ``Visibility (2020)'' appears in the Appendix on 
page 348.
---------------------------------------------------------------------------
    Chairman Lieberman. I would be.
    Mr.  Holmstead. We would be happy to do that.
    Senator Thompson. Thank you very much, Mr. Chairman.
    Chairman Lieberman. Thank you, Senator Thompson.
    Ms. Whitman, let me go to the Clear Skies initiative, and 
let me first say that at this point, it is only a couple-page 
proposal, at least as I have seen it, and I wanted to ask when 
will draft legislation be ready so that we can evaluate it in 
more detail.
    Ms. Whitman. Well, at this point in time, we are working 
with both the White House and the Congress to determine whether 
or not we want to put in place a piece of draft legislation or 
work with the Congress to try to determine how best to 
implement the targets and standards that the President has 
called for in Clear Skies
    Chairman Lieberman. Yes. I think you know that a real 
obstacle in that and a concern that I have and obviously that 
Senator Jeffords has is that the Clear Skies initiative leaves 
out any control of carbon dioxide.
    Ms. Whitman. Yes.
    Chairman Lieberman. Senator Jeffords, as chairman of the 
Environment and Public Works Committee, has initiated this 
process with Senators Voinovich, Smith, and myself. I am not so 
sure that he is prepared to go ahead with the three-pollutant 
proposal, but I will leave that to him to say more directly 
himself.
    As you indicated in your opening statement, I like the cap-
and-trade idea. It is not command-and-control. It sets goals, 
and it has worked in the acid rain case and the Clean Air Act, 
which I mentioned earlier, adopted during the first Bush 
Administration. And I am working with Senator McCain right now 
on a cap-and-trade approach to greenhouse gas emissions. My 
concern here is that the cap is too low, and the time frame 
that you have allowed in the Clear Skies initiative, which is 
to 2018, is so far off that in the end, it is going to provide 
actually less protection, less reduction, in these three 
pollutants than the current Clean Air Act does.
    See if you can stick with me, because I will give you an 
overview and try not to give you too many numbers. In 
September, our Committee received--and maybe it was my staff, 
through the other committee, Environment--modeling that was 
done of emissions of the three pollutants, NOx, 
Ox, and mercury, under the Clean Air Act. It 
actually showed reductions by 2012 that were greater 
reductions--that is, business as usual--than the new Clear 
Skies initiative.
    Then, last month when you came out with the Clear Skies 
initiative, you had a different model which did not show as 
successful reduction in the pollutants of NO5, 
SO2, and mercury as the earlier modeling.
    And incidentally, these two Clean Air Act models--and I 
apologize for all the detail, but the baseline is important 
here--have goals by 2012, whereas the President's Clear Skies 
initiative does not set these goals until 2018.
    I am going to submit the numbers to you in detail, and you 
can answer for the record. But basically, if I am reading this 
right, what changed between September and February that altered 
your estimates of what reductions would be achieved under 
business as usual and which ended up showing that the Clear 
Skies initiative would improve business as usual whereas the 
earlier did not?
    Ms. Whitman. Senator, I think you are referring to the EEI 
chart that was submitted, and I have to tell you that I have 
had several discussions with staff as to how that got labeled 
the way it did.
    What that does--and when you see the time frame, and you 
see 2012, and I believe it is 2.5 million or 2 million tons, 
for the SOx----
    Chairman Lieberman. Under the September?
    Ms. Whitman [continuing]. Yes, the 2012--in any event----
    Chairman Lieberman. Yes. SOx goes down 2.4 
million tons emitted; I am not sure what the reduction----
    Ms. Whitman. Those were his hypothetical scenarios, based 
on business as usual--that would be the day when that 
regulation would go into effect, and you would not get there 
then; that was just when it would kick in.
    That is the problem with the way we are set up now, where 
we have essentially five different sets of regulations that 
impact clean air. They do not all come in at the same time. 
When a company knows immediately, up front, what that target is 
going to be by a certain date, then it is worth their while to 
start immediately to implement.
    If a target is set, and it says that in 2012, this 
regulation will start to go into effect, there is still lead 
time for them to achieve it; so it would not be that they would 
be at that number in 2012. This was a hypothetical scenario of 
business as usual, and it was designed to demonstrate the 
benefits of a multi-pollution approach. It has confused the 
life out of me, and I have gone back at them many times as to 
how it got labeled that way. But also, we should recognize that 
under the Clear Skies proposal, the President calls, in 2010, 
for a review of where we are and the ability at that time, and 
in fact the recognition that we might at that time, want to set 
even more stringent standards then.
    But we would see between now, the date on which you would 
pass legislation that set out those targets and 2010, every run 
that we have done shows us getting better reductions faster 
than under the current Clean Air Act, because those targets are 
phased out over time, and they do not become real for some time 
out.
    Chairman Lieberman. Why don't we leave it there for now. I 
hope I have made it clear what my concern is as I read the 
numbers, I welcome a response in writing----
    Ms. Whitman. I understand how confusing this is.
    Chairman Lieberman [continuing]. And we can continue the 
discussion--that the gains in air quality under the Clear Skies 
initiative, because of the cap and the length of time to 
achieve the goals, will actually be less than if we did nothing 
and just stuck with the Clean Air Act as it is now.
    Let me go on to the question of enforcement, and as you 
know, we are going to hear testimony this morning from Mr. 
Schaeffer, former Director of the Office of Regulatory 
Enforcement at EPA. He raised concerns, as you know, in his 
letter of resignation about the impact of cuts on staffing, and 
I quote here: ``The proposed budget cuts would leave us 
desperately short of the resources needed to deal with the 
large, sophisticated corporate defendants we face.''
    What is your response to those concerns and allegations?
    Ms. Whitman. What Mr. Schaeffer is essentially talking 
about is work-year reductions, and I think it is misleading to 
equate those with actions, quite frankly, because work-years do 
not directly translate into positions filled, and in fact 
normal levels of staffing attrition keep us well below that.
    In each of the last 2 years, EPA's enforcement program has 
lapsed 120 of what we could call funded vacancies or work-year 
positions each year, and yet last year, we saw some of the best 
results ever from our enforcement program. We have a very 
active and a very accomplished enforcement program.
    What the President is calling for in this budget is to 
recognize--and again, we have had this discussion before--the 
enormous amount of work that the States do on compliance and 
enforcement. Ninety percent of the compliance is done by the 
States. They are under enormous budget pressures, and we want 
to enhance their efforts and enable them to do more so that we 
can focus on the areas where the Federal Government has the 
real ability to take action and where we can really make a 
difference.
    But the facts speak for themselves in our record over the 
last year--there was the highest level of fines and moneys 
spent by those deemed responsible for pollution to rectify and 
remedy what they have done. We have seen the highest level, 
actually number of jail sentences, given out.
    Those are the kinds of things that we are trying to do, 
while on the other side, we try to nudge people toward 
compliance. And although work-year ceilings have been reduced, 
the $102 million that we are requesting for civil enforcement 
is $7.6 million more than President Clinton requested in fiscal 
year 2001. Where you start to run into the problem in the 
number of actual bodies you have is that they are more costly, 
with COLAs and everything else.
    But in fact we are asking more. This year's budget for 
enforcement is higher than we have had before, and we believe 
that we can continue to see the kind of production that we have 
seen out of an enforcement staff that we have had in the past.
    Chairman Lieberman. I do not know if you can put numbers on 
it, but you did mention 120. But one estimate that my staff did 
is compared to the last Clinton budget, which was fiscal year 
2001, the budget the President has now proposed for fiscal year 
2003 would cut the number of full-time employees in civil 
enforcement by 200. This excludes Superfund.
    Ms. Whitman. Again, you are talking work-years. We have put 
no ceiling--there is no hiring freeze in that part of the 
Agency. The OECA National Program--including headquarters, 
regional, and field offices--accounts for about one-fifth of 
the total personnel of the Agency. It is a very vigorous part 
of the Environmental Protection Agency. Again we are talking 
about work-years. We have to recognize the fact that we have 
had these--in the States, I used to call them ``funded 
vacancies''--we have had the ability to hire, and we expect to 
be hiring 100 new people into that office this year. We also 
expect that people will retire. People leave and retire. Mr. 
Schaeffer had his job for a least a month before he actually 
submitted his letter of resignation. And actually, it is a big 
problem. The Agency stands to lose 56 percent of our senior 
personnel by 2005 as they reach retirement. That is a very 
serious manpower challenge.
    Chairman Lieberman. We will ask Mr. Schaeffer to respond 
when he comes up.
    I do want to caution you--and I know that from your 
background, you will be particularly sensitive to this--that 
the notion of pulling back on Federal enforcement and giving 
more authority to the States to enforce now comes at a 
particularly difficult time for the States. One estimate we 
have seen, State enforcement budgets are down an average 6 
percent already from last year, so I worry that the net effect 
will be not to enforce. And as much as I believe in cap-and-
trade and am skeptical about the old command-and-control, there 
is no question that one of the things that got the country to 
the point where there was a broadly-held pro-environmental 
consensus was the fact that there was enforcement. So we need 
to have that tool on one hand, the fear of enforcement, to both 
punish those who do not play by the rules, but also to 
encourage everybody else to have some fear, if not positive 
motives, to protect the environment.
    For some reason, my clock was not going this time, but I 
would guess that I am over my time. I will yield now to Senator 
Thompson.
    Senator Thompson. I could not agree more that enforcement 
is very important. I think the essential question, though, is 
what is it that we are enforcing. And correct me if I am wrong, 
Governor Whitman, but when I analyzed this New Source Review, 
when I first got interested in this, I did not particularly 
care about these thousands of pages of regulations and statutes 
that I could not understand; I just wanted to get a result, and 
that is what I have been pushing for. But as I get into this 
and learn more about it, I am somewhat amazed that anyone could 
be critical of an effort to readdress this New Source Review 
permitting process that we have.
    Senator Voinovich put up a chart there. It is a no man's 
land that any company, no matter what they were doing, good or 
bad, would do anything in the world to avoid. I think the 
noncompliance rate is 70 to 80 percent. I mean, if a government 
Agency has something like that to deal with, then maybe they 
are dealing with something other than just bad people, because 
not all of these other programs have that kind of result. The 
law has been on the books for 25 years, and it has such 
definitions as ``major modification''--what in the world is 
considered a ``major modification''? How many millions of 
dollars have been spent trying to get an interpretation as to 
what a ``major modification'' is? ``Significant increase in 
emissions''; what is ``routine maintenance''--all of that--
there are over 4,000 pages of complex and somewhat 
contradictory guidelines and still really no guidelines as to 
what a ``major modification'' is.
    So that is what we are dealing with, and the Clinton 
Administration to its credit in 1996, after all those years, 
tried to deal with it, could not get a rule change, could not 
get a consensus. The groups even on the same side could not 
agree among themselves. They tried again in 1998.
    So that now, when I look at all of this, as intent as I am 
on these emitters doing the right thing and being required to 
do the right thing--and as I said, TVA is now spending $500 
million a year in that effort--I must say that I have no vested 
interest in continuing a regulatory scheme based upon lawsuits 
to enforce that regulatory scheme that is resulting in the 
conditions that we have today. And others may be building their 
professional careers on maintaining that and going lawsuit by 
lawsuit by lawsuit, under the impression that every case is 
going to be the same and that the EPA is going to win every 
case, when one bad decision could totally knock your props out 
from under you. But that is not where I am. I am interested in 
a result. And now, everything is kind of on hold. People are 
saying, we are being undermined now, because you have the 
audacity to take another look at New Source Review and Clear 
Skies.
    The TVA now has a case in the 11th Circuit, and people say 
that folks are walking away from the bargaining table now 
because this bad administration is talking to lobbyists. I 
think they are probably walking away because they think they 
are going to win that case in the 11th Circuit against you. I 
know of distinguished law professors who have analyzed that 
case and feel like the TVA is going to whip you in the 11th 
Circuit.
    Maybe they will, and maybe they will not, but these are 
real, grown-up kinds of things you have got to consider, rather 
than just throwing accusations back and forth at each other. 
But it looks to me like we are coming down to a basic 
difference of approach--whether we want to be wed to the past 
and what that has bought us, and attack these things lawsuit by 
lawsuit, or whether to have a scheme which is a results-
oriented process, with hopefully a good hammer at the end of 
that scheme if people do not do what they are supposed to do.
    Am I missing it, or do you share that analysis, or what?
    Ms. Whitman. I share that, Senator. I think we all agree 
that over the last 30 years, we have seen improvement in the 
environment, and that has come from the approaches that have 
been taken in the past. But we have also seen that we seem to 
have plateaued out. We are not making the kinds of advancements 
that we can make. We do spend an awful lot of time in court. We 
do spend an awful lot of money that could go to enhancing the 
environment into legal fees. And I have nothing against 
lawyers, but I do have when it is taking away from the time and 
the resources to address environmental issues.
    What you are touching on, the routine maintenance, repair, 
and replacement, is a very sensitive issue, and we need to be 
careful as we go forward on that. That would be something that 
would be subject to full review before any action was taken by 
the Agency. But it also clearly, as Senator Voinovich's chart 
shows, goes to the heart of the complexity of this whole New 
Source Review. And as you pointed out, back in 1996, the 
Clinton Administration said we need to make changes here. The 
National Governors Association has called for changes here. The 
Environmental Council of the States has said that we need to 
simplify this.
    I believe that we are obligated in good conscience to take 
an honest look at New Source Review and how we can make it more 
efficient and more effective. We all share the goals that New 
Source Review is supposed to get for us--cleaner air, a 
healthier environment--but we have also seen that it is not 
happening.
    I would also say that I think you are absolutely right--
that TVA case is a major case. If I were a plaintiff's 
attorney, I would not settle anything until I knew what 
happened with that case. We should be getting a decision 
sometime in April, and I think that will determine whether 
other companies come to the table or not.
    We did have a major settlement just last month with Public 
Service Electric and Gas, and that was major. That would belie 
the charges that we are not going forward with settlement and 
that everything has stopped. It has not. We are in settlement 
negotiations every week with a host of companies, but the cases 
vary. They are not all the same; they are not all as strong--I 
hesitate to say that, but they probably are not all as strong. 
They are certainly not on the same premise. And the companies 
differ; what they are going to be willing to settle for is 
going to be very different. And I would agree with you that I 
would far rather see us take aggressive action and move forward 
to reduce pollution than to spend a lot of time in court if we 
can do it.
    Having said that, we need to have a strong enforcement part 
of our effort--that has got to be there--and there will always 
be companies against which we are going to need to bring 
action, and we will not hesitate to do that.
    Senator Thompson. I was looking at the TVA situation and 
trying to figure out what is ``major modification'' on the one 
hand and what is ``routine maintenance'' on the other. There is 
a whole list of things here that I have never heard of--``steam 
chest replacement''; ``pressured furnace penthouses''; 
``replacement cyclones''; ``well repair''; ``replace failed 
tube''; ``turbine blade design materials''. Most of these 
things, the EPA said no, this is a major modification, and you 
cannot do that; you are under the scheme. A couple of them, 
they said, yes, this is routine maintenance.
    But this is what is going on all over the country with 
regard to these lawsuits--or the negotiations. People are 
sitting down with stuff like this and trying to put things into 
categories, knowing that if you cannot resolve it, you are 
going to court.
    It just seems to me like a monumental waste of time.
    Ms. Whitman. Well, I would say, Senator, that as you know, 
the Justice Department did a review of all the cases that we 
have pending and has determined that those cases were all 
appropriately brought. So we are vigorously prosecuting them 
now. I do not know what will happen, but as to settlement 
talks, those ebb and flow; it is not a given that everyone will 
settle in the same way for the same thing under the same 
circumstances, because the circumstances are not there, and 
clearly there is a difference of opinion, or we would not be in 
court.
    Senator Thompson. The facts are different--the repairs are 
different in every case.
    Ms. Whitman. Yes, absolutely.
    Senator Thompson. Thank you very much, Mr. Chairman.
    Chairman Lieberman. Thanks, Senator Thompson.
    I have just one or two more questions. Incidentally--and I 
will ask Mr. Schaeffer this, and maybe I will ask you to submit 
it for the record--my sense is that the successes that you had 
in enforcement actions have been the result of legal actions 
that were started during the Clinton Administration. I would be 
interested in having a record of what the pace of initiation of 
enforcement actions has been in the last year.
    Ms. Whitman. I would be happy to give that to you, Senator, 
because it has been vigorous over the last year.\1\
---------------------------------------------------------------------------
    \1\ ``Clean Air Act/New Source Review Enforcement Activity'' 
appears in the Appendix on page 349.
---------------------------------------------------------------------------
    Chairman Lieberman. OK, fine. Let me go to a few of the 
battles that the EPA has been involved in and just ask for a 
response. Obviously, you know that we are debating the energy 
bill now on the floor of the Senate, and one of the crucial 
questions is to what extent we are going to use energy more 
efficiently, which is a great way to avoid our dependence on 
foreign oil.
    On January 22, 2001, a final rule, which is called the 13 
SEER rule, was issued by the Department of Energy establishing 
energy efficiency standards for residential air conditioners 
and heat pumps. It would have required a 30 percent increase in 
efficiency standards for air conditioners. It was twice 
delayed. Then, last July, the Department of Energy announced 
that it was proposing to withdraw the rule. In September, it 
proposed a lower standard. State attorneys general and others 
have challenged the authority and process for delaying this 
rule.
    I want to explore EPA's views here, because to your credit, 
in October, EPA submitted comments to the Department of Energy 
on the proposed withdrawal of the final 13 SEER rule. EPA said 
that the data which DOE provided to justify the reduction in 
the standards from what had been issued before--and I am 
quoting from EPA--``overstates the regulatory burden on 
manufacturers,'' ``understates the savings benefits of the 13 
SEER standard,'' and ``mischaracterizes the number of 
manufacturers that already produce at the 13 SEER level'' which 
the previous administration had approved.
    Last summer, Larry Lindsey, who is the Assistant to the 
President for Economic Policy, sent a letter to the American 
Council for an Energy-Efficient Economy, stating that the 
administration ``decided the increase to the 13 SEER was 
unwarranted.''
    So it sounds to me like the decision has been made. I want 
to know whether you think it is still open, and what was the 
basis for DOE's conclusion that the lessening of the standard, 
as this administration is doing, was warranted.
    Ms. Whitman. Well, Senator, we continue to support the 
effort to achieve maximum efficiency; we stand by that, and we 
are doing a number of things through our Energy Star Program 
that will result in more efficient air conditioners 
particularly. We have finalized new energy efficiency 
specifications to meet Energy Star at the 13 SEER level, and 
those specifications will become effective in October 2002.
    Energy Star and minimum efficiency standards work together 
to improve the overall efficiency of equipment like air 
conditioners, and we are going to continue to proceed along 
those lines and continue to ensure that we do everything that 
we can within our purview to give consumers the choice that 
will provide greater energy efficiency.
    Chairman Lieberman. OK. I guess I would say bottom line 
that I am glad you are continuing to advocate the more 
demanding standard, because it is certainly in the interest of 
energy independence for the country.
    We have a second panel to hear from, but we have not 
touched much on natural resource questions. Probably, it is 
more appropriate to ask Secretary Norton and others to come in 
and discuss that, but maybe I will ask you just one question.
    I know that you have emphasized the role of science in 
making policy decisions, so I want to very briefly explore with 
you decisions that the administration has made regarding the 
settlement of a case involving the phaseout of snowmobiles in 
Yellowstone and Grand Teton National Parks.
    The stories from there are really stunning. I gather some 
of the park rangers, because of the pollution, are wearing 
masks and that the Department has actually provided some of 
them with portable respirators to wear.
    But last year, in June, I guess, the government and this 
administration entered into a settlement agreement with those 
who were challenging the rule that had been proposed by the 
Park Service to do another environmental impact statement. 
EPA--and this was under the previous administration--had 
determined that the original environmental impact statement 
supporting the reduction of snowmobiles in the national parks 
was ``among the most thorough and substantial science base that 
we have seen supporting a NEPA document.''
    In light of the fact that EPA considered the science so 
strong in this case, are you in a position to indicate why the 
administration would go to the expense of doing yet another 
study rather than defend the rule?
    Ms. Whitman. Well, Senator, I cannot comment on what the 
Department of Interior saw and what my colleague Gail Norton 
felt was lacking in the record as far as she was concerned. I 
know this is a very controversial area. As you know, EPA never 
requires a particular technology to be used. We set the most 
protective emissions standards, and we are continuing to do 
that relative to snowmobiles wherever they are used. We have 
proposed a two-step program. The first takes effect in 2006 and 
requires a 30 percent reduction in VOCs and CO emissions, while 
a second standard that takes place in 2010 would reduce 
emissions by 50 percent.
    We will continue to move forward with that regulation, as 
we are on all enforcement and with those regulations, but as 
far as actual access to the park and the roads and the timing 
of that, that is something that the Department of Interior has 
responsibility for, and I just could not comment on that.
    Chairman Lieberman. Understood. We will call Secretary 
Norton before us to answer those and other questions.
    Senator Durbin, I had raised the hope with Administrator 
Whitman that she would soon be liberated, but you are entitled 
to a round of questions.
    Senator Durbin. No, Mr. Chairman. I thank her for joining 
us. I have just come from the Judiciary Committee and will not 
hold her any longer. If I have questions, we will submit them 
for the record.
    Ms. Whitman. Thank you. I will be happy to respond.
    Chairman Lieberman. Thank you, Senator Durbin.
    Thanks to you, Governor Whitman. Keep up the battle. I look 
forward to your answers to the questions that we have asked, 
and I hope we can find common ground to move ahead in the 
interest of protecting our environment and the public health of 
the American people who rely on a clean environment.
    Ms. Whitman. Senator, if I could, just in response to the 
one question that I was going to respond to for the record--and 
we will do that, but just to give you a sense--since January 
2001, EPA has made 87 information requests to power plants, 
refineries, and other facilities, paper mills, etc., issued 22 
notices of violation, filed and concluded seven cases, engaged 
in numerous other enforcement efforts such as depositions, 
motion practices, and ongoing settlement discussions--I will 
give you all of that for the record,\1\ but just so you have a 
level of confidence that we are in fact continuing to move 
forward.
---------------------------------------------------------------------------
    \1\ Charts entitled ``NSR Sec. 114 Information Requests and Notices 
of Violation Issued On or After January 20, 2001--All Facilities, '' 
and ``Table 1, 2001-02 NSR Settlements,'' appear in the Appendix on 
pages 350 and 365, respectively. Some of the information provided is 
not consistent with the time frame identified.
---------------------------------------------------------------------------
    Chairman Lieberman. And if you would--and I have no idea 
what the facts will show here--but if you would compare that to 
the preceding 4 years.\1\
---------------------------------------------------------------------------
    \1\ Charts entitled ``NSR Sec. 114 Information Requests and Notices 
of Violation: Issued Before January 20, 2001--Coal-Fired Utility Power 
Plants and Refineries'' and ``Clean Air Act Sec. 114 Information 
Requests: Vendors,'' appear in the Appendix on pages 368 and 381 
respectively.
---------------------------------------------------------------------------
    Ms. Whitman. Certainly.
    Chairman Lieberman. Thank you very much. I will now call 
the second panel, and I appreciate that they are here and that 
they have waited for a while.
    The second panel includes Eric V. Schaeffer, former 
Director, Office of Regulatory Enforcement, U.S. Environmental 
Protection Agency; E. Donald Elliott, Co-Chair, Environmental 
Practice Group, Paul, Hastings, Janofsky and Walker, and 
Professor of Law at Yale and Georgetown Law Schools; Thomas O. 
McGarity, W. James Kronzer Chair, University of Texas School of 
Law; and Greg Wetstone, Director of Advocacy Programs for the 
Natural Resources Defense Council.
    Thank you all for being here, thank you for your patience.
    Mr. Schaeffer, I particularly appreciate that you are here. 
Some aspersions have been cast on the fact that you had 
arranged for another job before you resigned from the one you 
had. To me, this proves that you are not only a principled 
person, but you are also practical.
    Mr. Schaeffer. Thank you. I do have small children to 
support.
    Chairman Lieberman. Yes, I was just going to say that I am 
sure your family appreciated that sequence of events as well.
    We welcome your testimony at this time.

 TESTIMONY OF ERIC V. SCHAEFFER,\2\ FORMER DIRECTOR, OFFICE OF 
  REGULATORY ENFORCEMENT, U.S. ENVIRONMENTAL PROTECTION AGENCY

    Mr. Schaeffer. Thank you, Senator Lieberman, Senator 
Thompson, and Members of the Committee, for inviting me to 
testify today. Last week, as you know, I wrote to Governor 
Whitman to share some of my concerns about the state of our 
enforcement program and particularly with respect to the Clean 
Air Act. I would like that letter submitted for the record if 
that is all right.
---------------------------------------------------------------------------
    \2\ The prepared statement of Mr. Schaeffer appears in the Appendix 
on page 125.
---------------------------------------------------------------------------
    Chairman Lieberman. It will be printed in the record in 
full.\3\
---------------------------------------------------------------------------
    \3\ Resignation letter from Mr. Schaeffer to Administrator Whitman 
appears in the Appendix on page 382.
---------------------------------------------------------------------------
    Mr. Schaeffer. I cannot resist responding to several points 
that Ms. Whitman made in her statement and in her response to 
your questions.
    I think I heard the Governor say ``If I were a plaintiff's 
lawyer, I would not settle with EPA and the Justice Department 
until the TVA case is decided.'' And I must tell you that in my 
12 years at EPA, I have never heard that come from the 
Administrator of the U.S. Environmental Protection Agency. And 
if you want an illustration of our concern--and this is a 
concern felt by the career staff at EPA--I give you that 
statement. If that was not a clear signal to the utility 
industry to stand down until that case is decided--and that may 
be a year away--I do not know how else to read it.
    Chairman Lieberman. I agree.
    Mr. Schaeffer. She said something about work-years, and I 
have to say that I could draw you a chart showing you the EPA 
budget process, and it would make New Source Review look easy. 
It is a lot of smoke and mirrors. You need to get to the 
numbers, you need to look at the operating plan.
    We lost positions in 2001 and 2002, not because we lapsed 
work-years, because we were late filling them, but because we 
were told that our work-years were being reduced. Work-years is 
not an abstraction. We are talking about a cut in staff. We are 
talking about not being able to replace expertise. So this is 
real, and I urge you to follow up. If my information is somehow 
suspect, I ask that you ask the General Accounting Office or 
the Inspector General to confirm that, and I think they will.
    Chairman Lieberman. We will definitely follow up.
    Mr. Schaeffer. I would like to make one more point and then 
I will, with your indulgence, read my statement. We settle 95 
percent of our cases at EPA. We take great pride in that. I 
would like to settle them all. There has been a lot of talk 
about protracted litigation and endless lawyer bickering and so 
on. We try to avoid that, and we can avoid that, and we have 
been pretty successful, and I think you heard the statistics 
from Ms. Whitman last year. Those statistics are from our 
settlement of cases.
    We have been successful because we have been able to 
convince people on the other side of the table that we are 
serious and that if we have to, we will go to court. And I have 
to tell you that I have a lot of respect for the industry 
lawyers that we deal with. But they are practical people, they 
are hard-headed people. They are not running charities; they 
are not the Boy Scouts. Negotiations are not a tea party, but 
they do respect the fact that the government has a position, 
and they will settle with us if they think we are serious.
    What has happened here is that we have lost settlements 
that we had in hand. We have lost settlements that would have 
gotten us 750,000 tons of reduction--not off in the future 
after some piece of paper becomes a bill and then works its way 
through Congress, but now, today. We had those agreements 
publicly announced. In the words of our attorney on the case, 
``The defendants cannot find their pens to sign them and have 
not been able to for 16 months.'' That is what my frustration 
is about.
    Finally, I must question this notion about how complicated 
it is. These are sophisticated plant managers and industry 
lawyers who deal with incredible feats of engineering and make 
very tough, difficult decisions every day. I particularly 
encourage you to look at the transcript of the TVA trial where 
we deposed and cross-examined TVA witnesses, and asked them in 
brief, Do you understand the difference between routine repair, 
which is exempt--and the Agency has made that exemption--do you 
understand the difference between that and major modifications?
    We set up on the boards a series of projects. We thought 
they were big projects. We thought they were major 
modifications. Here is the question, and it is in the record, 
and I would be happy to include it. This is to a former plant 
supervisor at TVA, somebody who worked there for 12 years.
    ``At the time that these projects were performed, did TVA 
consider any of these projects to be routine maintenance or 
routine replacement?''
    ``No, sir.''
    That seems pretty clear to me. That does not seem very 
complicated. That answer is crystal clear.
    We have talked a lot about putting aside the rhetoric. I 
welcome a look at the facts. I encourage you to take a look at 
the record in that case, and I think you will see that it might 
be a little easier than it is made out to be.
    Chairman Lieberman. Thank you.
    Mr. Schaeffer. Until last Thursday, I did manage the EPA 
program responsible for civil enforcement of most environmental 
laws. As you know, 2 years ago, we brought lawsuits against 
plants owned by nine electric power companies. Together, they 
are responsible for releasing about 5 million tons of sulfur 
dioxide every year and another 2 million tons of nitrogen 
oxide. That is acid rain; it is choking smog, which I think 
Senator Thompson alluded to. That kind of pollution is a 
killer. Pollution on that scale we estimate gives us 10,600 
premature deaths every year--that is information that has been 
provided to the Congress--5,400 cases of bronchitis, about as 
many hospital emergency visits, and 1.5 million lost work-days.
    I think these are appalling numbers, and I think they 
should make you a little emotional. This is not a dry, abstract 
policy question. This is something that affects human health 
that is in front of us today.
    I think it is an outrage. I think it can be stopped if we 
are willing to enforce the Clean Air Act. But our efforts to do 
so are under attack. They are under attack politically--I think 
we have heard some of that rhetoric today--and they are under 
attack in a way that, again, I have not seen in 12 years at 
EPA.
    We have energy lobbyists working closely with people in the 
White House and the Department of Energy to try to weaken the 
laws that we are trying to enforce. I want to make clear that 
we have in these lawsuits the bulk of the coal-fired power 
plants, either named in lawsuits or actively under 
investigation. These are not a few stray cases. We have 
basically brought these actions against an entire industry. So 
we are not proceeding case-by-case. We rejected that strategy. 
We put this on the board for the entire industry.
    Given these efforts to weaken the law, we have watched 
defendants slip away from the negotiating table one-by-one, and 
we are now dancing with ourselves. That has been the situation 
for the last few months.
    Many of the plants that we sued go back to the forties and 
fifties. They were all built before the Clean Air Act New 
Source Review program became law more than 24 years ago. They 
have not caught up with the law in more than two decades. None 
of them has the modern pollution control standards that we ask 
new plants to have, new plants that compete with these 
dinosaurs. These old plants were allowed to avoid tough new 
standards for pollution control as long as they were not 
modified in a way that increased their emissions.
    One thing that is important to understand--you can put the 
fancy chart away if you do not increase your emissions. If you 
are planning to make changes and avoid pollution control and 
increase your emissions without a permit, then, yes, maybe you 
need to look at that chart. If you put on a scrubber, you can 
throw that chart away. So if these plants will update, upgrade, 
put on pollution control, then they are covered under the Clean 
Air Act, and it gets a lot simpler.
    Our lawsuits allege that this bargain with all plants was 
not kept. These companies undertook a lot of projects, some 
costing over $10 million, that increased their pollution and 
without putting these controls on. Again, we have done a lot of 
work on this. We have investigated it closely. These cases were 
not brought lightly. You heard TVA's response to our question 
when we asked did they understand the difference between what 
was exempt and what was not. They understood. And we look 
forward--I should say I look forward--to the 11th Circuit case. 
I think we will win.
    Now, just before we took office EPA, working with States 
like New York and Connecticut, was closing in on these cases. 
And I think you are going to hear the same thing from State 
attorneys general. These cases were brought with States. This 
is not the Federal Government flying solo. We had States in the 
cabin working with us.
    We had Cinergy and Vepco agree publicly 16 months ago to 
cut their emissions 750,000 tons. We have the Tampa Electric 
settlement, which is nearly 200,000 tons. And again, I am 
talking about real reductions, not something that may or may 
not happen if and when a bill gets through Congress. I am 
talking about real reductions under current law.
    Now, in the spring of 2001, it started getting obvious that 
the energy lobby was working inside the administration and in 
the words of their attorneys--and I got this from a number of 
sources--to ``undermine'' the cases by changing the rules we 
are trying to enforce. We heard this over and over again. So 
one by one, they left the negotiating table.
    As I said, Cinergy and Vepco are still looking for their 
pens to sign their agreements. I need to make clear that we did 
not get any calls from the White House telling us do not do 
these cases. This is not the movies. This is basically 
defendants saying, ``Why should I comply with a law that you 
are going to eliminate?''
    And we are not talking about should there be a bright line 
or not. You can always improve existing law. We are talking 
about an effort to paint themselves out of the Clean Air Act. 
That is what is going on here. That is where the effort has 
gone.
    The energy policy announced by the White House last May 
calls for a review of those cases and the New Source Review law 
itself. One point I do want to make is that the Department of 
Justice has looked at some of the concerns that Senator 
Voinovich raised--that EPA's interpretations have been 
inconsistent, that we are basically making up law, which I 
think is a very serious charge and one that needs to be 
answered.
    In January, I think the Department answered that question 
and came out with its report, saying that our position was 
clear, reasonable, consistent. I want to say that again--
consistent. We have not changed our interpretations. We had not 
engaged in illegal rulemaking. The lawsuit should go forward. 
And that was reviewed at the highest level of Justice 
Department and approved by Mr. Ashcroft. But now the Justice 
Department needs a client if they are going to succeed in 
bringing these cases.
    The latest drafts in circulation, just to illustrate the 
concern and why this is about eliminating the law and not just 
making it easier to understand, would take narrow exemptions 
and turn them into giant, canyon-sized loopholes that would 
wipe out the act.
    My favorite proposal would allow the replacement of 
virtually every part of the utility boiler over and over, down 
to the concrete pad, without ever triggering New Source Review. 
We have had in depositions attorneys put up blow-up charts 
showing all the parts of a boiler, and our attorneys would ask 
the defendants one-by-one, ``Suppose I replace the 
economizer''--with a brand new part--``is that routine 
repair?''
    ``Yes.''
    ``Color it in for me, please. Suppose I replace the wing 
walls''--big parts in a boiler--``is that routine repair?''
    ``Why, yes, that would be.''
    So we color that in. Pretty soon, the entire unit is 
colored in. It is all routine repair. There is nothing going on 
here but routine repair, and it goes on forever, and you never 
have to comply with the Act.
    As to Clear Skies, all that I will say today is please read 
the fine print, put aside fancy talk about caps and allowances. 
All that is very attractive, but look at the fine print and ask 
what are the actual emission reductions that we are going to 
get under this proposal, under this new bill, if and when it 
ever passes. And I am assuming first that it passes; second, 
that EPA gets its rules out on time, which would be a first; 
and third, that we are not sued by every utility in the country 
to delay those rules and haggle over interpretations.
    So if you think that legislation is clean and easy for EPA 
when it arrives at the Agency, that it is somehow quicker than 
these lawsuits, I would just ask you to think about that. We 
have a long, long rulemaking process if we are going to start 
over.
    Now, at a banquet, accepting what amounts to the Academy 
Award for the best lobbyist, the head of the Edison Electric 
Institute quoted from Machiavelli and summed up what seems to 
me to be the energy industry's guiding philosophy these days: 
``It is good to be feared.'' That was a revealing moment. Maybe 
that is business as usual for the utility industry.
    But with more than 10,000 premature deaths a year, I think 
the stakes are too high for that kind of talk and that kind of 
fear. We are asking for a fair fight. We are asking for a fight 
out in the open, based on the facts. And then, we need to 
choose. We need to choose between the law and the lobbyists who 
are working overtime to try to undermine it. We need to choose 
between children with asthma and influence-peddlers who do not 
seem to care. And if the Environmental Protection Agency will 
make the right choice, we will all breathe a little easier.
    Thank you, Mr. Chairman.
    Chairman Lieberman. Thank you, Mr. Schaeffer, for what I 
found to be compelling testimony and for your years of service, 
which were not political and I know began in the former Bush 
Administration, and for having the courage not only to make the 
statement you did last week, but to not run after that, to come 
out and defend what you have said and even amplify on it. I 
think this is a clarion call that I hope everyone will listen 
to, including particularly those in the administration.
    Our next witness is Mr. Elliott.

TESTIMONY OF HON. E. DONALD ELLIOTT,\1\ CO-CHAIR, ENVIRONMENTAL 
PRACTICE GROUP, PAUL, HASTINGS, JANOFSKY & WALKER AND PROFESSOR 
         (ADJ.) OF LAW, YALE AND GEORGETOWN LAW SCHOOLS

    Mr. Elliott. Thank you, Mr. Chairman.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Elliott appears in the Appendix 
on page 127.
---------------------------------------------------------------------------
    It is a great pleasure to be here testifying in front of my 
neighbor from my home State, Senator Lieberman. The last time I 
was before the Committee, Senator Lieberman made a remark about 
``old-timers' day,'' which I am still smarting from, but I feel 
that way up here with Tom McGarity. He and I were together at 
my first academic conference about 23 years ago, and we 
disagreed then, and we disagree now.
    I do not agree with the assessment that the Bush 
Administration is somehow ``rolling back'' environmental 
protections. It seems to be clear that the Bush Administration 
is in what I would call the ``sensible center'' with regard to 
environmental policy. It is an area where Senator Lieberman and 
I usually find ourselves.
    The Bush Administration in its first year has proposed a 
number of initiatives to make progress and to move forward, and 
it is not engaging in rollbacks. Of course, it is always 
possible to question whether the initiative goes far enough, 
but there is a very significant legislative proposal in the 
Clear Skies initiative and in the brownfields legislation. And 
note that this is after 8 years in which we did not have any 
significant environmental legislation taking place.
    I think, as Senator Thompson said, that most of the concern 
here is really fear about what EPA might do or is based upon 
speculation, and it is really kind of a shot across the bow. I 
can certainly sympathize with my friend Eric Schaeffer with 
whom I served at EPA, but it is sometimes frustrating when one 
is at the Agency and feels that other people in the 
administration are advocating different policies. But as 
Administrator Whitman said, I think that is really normal. We 
at EPA sometimes do have tunnel vision, and I think that 
sometimes our goals and objectives need to be balanced within 
an administration with other goals and objectives, and I think 
that is what is happening.
    There is obviously a lot of debate, particularly in 
Republican administrations, but if you look at what the 
administration has actually done to date, I feel very confident 
that it is in the sensible center, it is moving forward on the 
environment.
    I would like to talk a little bit about New Source Review--
and again, my friend Eric Schaeffer is a strong advocate for 
his point of view. It does seem to me terribly wrong to equate 
NSR with environmental enforcement. NSR is the wrong fight. NSR 
is a deeply flawed, broken program. As has been pointed out, we 
have had it for more than 25 years. It has been deeply 
unsuccessful.
    The notion that one can get significant reductions by 
slugging it out, case-by-case, suing power plants one-by-one, 
and negotiating settlements--that is the old way. That is the 
strategy that we have used for 30 years. And it has achieved 
some successes, but it is time for a second generation, it is 
time for a new approach, it is time to have a better way of 
getting reductions than this case-by-case approach.
    That is why I support the President's Clear Skies 
initiative, which I think is really a much better way to deal 
with this approach.
    Congressional hearings are not the place to try cases, and 
as I said, I think Mr. Schaeffer is a very strong advocate for 
his position, but I think we should point out that no court has 
yet ruled or upheld EPA's position in an enforcement case 
against the utilities, and I think it is a little bit premature 
to grab the high ground of talking about violating the law in a 
very sanctimonious fashion.
    EPA has staked out a very aggressive interpretation, a very 
aggressive position here. The definition of what constitutes a 
modification runs for three pages in the Federal Register. I 
remember when I was EPA General Counsel, and one of the senior 
air lawyers, the head of the Air Program in the General 
Counsel's Office, said to me, ``You have got to promote this 
guy rather than this guy, because he is the only one in the 
Agency who understands what these New Source Review rules 
mean.'' And I was not smart enough to understand that if the 
top air lawyer at EPA was telling me that he did not understand 
the rules, then the rules were too complicated.
    Ninety percent of the allegations in the government's cases 
involve tube replacement. When you have a utility boiler, the 
tubes gradually plug up. The regulations specifically exempt 
routine repair and replacement. When my former Agency was asked 
to define what a routine repair and replacement was, it said 
officially in the Federal Register that a routine repair and 
replacement is what routinely happens in the industry. That 
gave nobody any clarification or guidance.
    For 20 years, EPA inspectors were in these plants, and they 
never suggested that what was going on in these plants was a 
violation of the law, because it was not a violation of the law 
as everybody in the industry understood it at that time.
    With regard to the Justice Department report, the Justice 
Department specifically says in a foot note that it is not 
ruling on the company's fair notice arguments, as to whether 
they had fair notice--they do not deem that to be part of it.
    So there are plenty of these issues that need to be 
thrashed out in the place where they belong, which is in the 
courts.
    I also think that it was a useful thing for the 
administrator to say that settlements ought to be different. 
There are major differences in the companies that have been 
sued. EPA sued these companies before they investigated the 
facts of what happened. They sued these companies because they 
were large, and then, they insisted on the same settlement for 
companies that are clearly guilty and have increased their 
emissions and companies that have not increased their 
emissions. If the administrator's policy that she enunciated 
today, that there can be differences of settlements that take 
those facts into account, actually works its way into practice, 
I am sure there will be more interest in settling these cases.
    But the main point I would like to leave you with, Senator 
Lieberman, is that NSR is the wrong fight. It is not the 
equivalent of environmental enforcement. There is a much better 
way to control the power plants in the Midwest, the old power 
plants that are polluting, and that really is the model of the 
Acid Rain Program. It is a proven success.
    The NSR program is a proven failure. It has failed to 
achieve the results for 25 years, and we should not be 
investing more resources in a failed program. We should build 
on the model of what has been successful.
    In the last 10 years, a little, tiny program with one-half 
of one percent of EPA employees has been responsible for more 
pollution reductions than all of the other EPA programs put 
together, including all of Mr. Schaeffer's enforcement cases, 
and that is the Acid Rain Trading Program. One-half of one 
percent of EPA's resources is producing half of the air 
pollution reductions.
    What the President's proposal is and what you support in 
cap-and-trade programs is to build on the successful elements 
of the program.
    When Senator Muskie was involved in designing the Clean Air 
Act, he talked about it as a ``toolbox.'' It is not one set of 
programs, but it is a set of tools. We certainly should not 
abolish environmental enforcement, but on the other hand, I 
think that environmental enforcement ought to be the tool of 
policy rather than the other way around.
    One of the things that has been very troubling to me in the 
last few years is that the enforcement tail has increasingly 
been wagging the dog at EPA. It used to be that the programs 
made the decisions, and enforcement then was a tool to carry 
out those policy decisions. A few years ago, it began to be 
that the enforcement folks would take the position that the 
policy programs cannot do this anymore, because that would 
screw up our enforcement case.
    It has now gotten to the case where enforcement is saying 
that the President cannot consider legislative or 
administrative fixes to a broken program because it would screw 
up one of our enforcement cases.
    That is an extraordinary claim. It is in my view an 
outrageous claim. I think that the folks at EPA enforcement 
should not be the ones who are making our national 
environmental policy, and I think it is perfectly appropriate 
and long overdue to really reconsider whether it makes sense to 
devote so many resources to these NSR cases which have produced 
very little results.
    I respect Mr. Schaeffer, but his projections of the ton 
reductions and so on assume that he is going to win all of his 
cases, and that has not been the experience. When you go into a 
major litigation like this, there are delays--this is going to 
go to the Supreme Court four or five times--we are going to be 
back here in 10 or 15 years, finally maybe knowing what those 
very complicated EPA rules mean.
    But if the last 30 years have taught us anything, it is 
that there is a much better way to get real reductions for the 
environment rather than slugging it out in these enforcement 
cases.
    Chairman Lieberman. Thanks, Professor Elliott.
    Mr. Schaeffer, we will give you a chance to respond in the 
question-and-answer period.
    Let us go now to Professor McGarity.

  TESTIMONY OF THOMAS O. MCGARITY,\1\ W. JAMES KRONZER CHAIR, 
               UNIVERSITY OF TEXAS SCHOOL OF LAW

    Mr. McGarity. Thank you, Mr. Chairman.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. McGarity appears in the Appendix 
on page 134.
---------------------------------------------------------------------------
    My name is Tom McGarity. I hold the Kronzer Chair at the 
University of Texas School of Law, where I have taught 
environmental law and administrative law for the last 21 years. 
I am pleased to testify today on the current implementation of 
the environmental laws in the United States. I will attempt to 
briefly place the Bush Administration's implementation 
activities in historical perspective. I have tried to do that 
in a larger or broader sense in the prepared testimony, which I 
would ask be included in the record.
    Chairman Lieberman. We will include it in the record, and 
let me thank you for that prepared testimony. We get a lot of 
testimony here, and that definitely should be and perhaps will 
be 1 day a law review article. I appreciate the time you took 
on it and the footnotes--I cannot say that I have checked them 
all personally, but----
    Senator Thompson. We will see who shows up as the author 
when it comes out. [Laughter.]
    Mr. McGarity. My mother taught me a long time ago to 
footnote everything I said.
    Chairman Lieberman. It was well done. I appreciate the time 
you took on it.
    Mr. McGarity. Thank you.
    I can agree that it is early in the process for an 
assessment. I was asked by the staff to identify major themes, 
and I have attempted to do so and have identified six major 
themes that are happening now. Things could change, and in many 
ways, I hope they do.
    The first theme is the Bush Administration's skeptical 
reassessment of the late-arriving Clinton Administration 
environmental initiatives. The Bush Administration declared a 
time-out at its outset so that it could reexamine a number of 
so-called midnight regulations that were issued during the 
outgoing Clinton Administration. This happens at the end of 
lots of administrations, at the end of Congress, and at the end 
of court regimes as well.
    Most of the final rules, as was mentioned, ultimately did 
go into effect, but the administration allowed some of them to 
go into effect only very reluctantly and under a great deal of 
pressure. Some of the final rules have not gone into effect 
because they were challenged in court and either abandoned by 
the administration or stayed pursuant to settlement agreements. 
Still other final rules were allowed to go into effect but are 
now under active consideration by the Bush Administration for 
possible amendments to reduce their stringency. And a few of 
the final rules never went into effect at all, and we have 
already mentioned DOE's air conditioner rule in that regard.
    After that, the second theme was the Bush Administration's 
ambivalent stewardship of common resources. The Bush 
Administration has adopted a much less protective approach, I 
think, so far toward public lands and other commonly-held 
resources than the previous administration. By the end of 2001, 
the Forest Service was already weakening the implementation of 
the recently promulgated Roadless Area rules. I did testify 
before Senator Craig's committee last session on that.
    The Bureau of Land Management has replaced the Clinton 
Administration's final Hard Rock Mining regulations with new 
regulations that greatly reduce environmental protections. The 
administration had made it clear that by the end of 2001, it 
opposed any additions to the national park system for the 
foreseeable future.
    The administration has taken several other affirmative 
actions that allow greater private use of commonly held 
resources that may have significant adverse effects, and I have 
elaborated on those in my prepared testimony.
    Although perhaps not as overtly aggressive as the Reagan 
Administration's attempts to allow private use of public 
resources, it seems clear that the Bush Administration assigns 
a higher value to private development and a lower value to 
preservation than the previous administrations. In the end, the 
Bush Administration's less abrasive approach may ultimately 
bring about a greater reduction in dwindling commonly held 
resources than any Presidential administration since the latter 
part of the 19th Century.
    The third theme is the Bush Administration's reluctance to 
regulate private polluting activities. The Bush Administration 
has by no means been a proactive protector of human health so 
far. The Clear Skies initiative has been talked about a lot, so 
I do not want to spend a lot of time on it. The heart of it is 
a cap-and-trade regime, and I, too, am a supporter of cap-and-
trade programs. I do want to point out that this one is going 
to be harder than the Acid Rain Program, which by and large was 
met by switching fuels. It is not clear to me that we are going 
to meet the goals of the Clear Skies initiative simply by 
switching to natural gas and low-burning coal. Real 
technologies are going to have to be installed. The reclaim 
program out in California suggests some of the difficulties 
that come up when people presume that they are going to buy 
emissions credits and do not install technology, and if enough 
of these people do this and presume they are going to have the 
credits, they will not be there to buy, and we will see huge 
spikes.
    What we need is--and I was pleased to hear that we are 
going to be monitoring this--monitoring of the progress not 
just of the emissions through continuous emissions monitoring, 
which is absolutely critical to the cap-and-trade regime, but 
monitoring to see who is installing actual pollution reduction 
technologies so that we do not see in 2008 that nobody has done 
anything, and the price of these credits spikes, at which 
point, as in California, we will declare a time out, and we 
will not see those actual emissions reductions.
    On global warming--we have also spoken about that today--
this idea of emissions or greenhouse gas intensity is a novel 
concept. I do want to correct my prepared testimony there. In a 
late night cut-and-paste, I got it exactly backward. We 
actually could increase emissions if economy goes forward, not 
if it goes backward, and still be consistent with these goals.
    A similarly optimistic voluntary emissions reduction permit 
program that I have watched in the State of Texas for 
grandfathered facilities which was implemented or put into 
place when President Bush was Governor of Texas has thus far 
induced only 10 plants to acquire voluntary permits, and this 
has achieved reductions in total emissions of about one-
hundredth of one percent from those grandfathered facilities, 
and this is after 4 years--nowhere near to the 18 percent that 
this greenhouse gas emission voluntary program is supposed to 
bring about. I think that should serve as a warning to us.
    There have been new initiatives to roll back environmental 
protections, to ease restrictions or otherwise reduce health 
and environmental protections. There have, of course, been 
missed opportunities, but those opportunities are still 
available, and hopefully, the administration will take 
advantage of them.
    There have been some positive initiatives during the Bush 
Administration. Most of these have been in response to court 
orders requiring that the Agency take those initiatives. As I 
mentioned, the administration has been a strong proponent of 
voluntary initiatives that rely primarily on the good 
citizenship of the regulatees.
    In the final analysis, I have been unable to identify a 
single important new rulemaking initiative during the Bush 
Administration's EPA to require private polluters to take 
action to protect human health and the environment that was not 
already in the works prior to January 20, 2001.
    The fourth theme is the Bush Administration's tighter 
oversight of the environmental agencies through OMB's Office of 
Information and Regulatory Affairs, or OIRA, as we call it.
    Although again it is still early, it appears that OIRA is 
asserting an aggressive oversight role in the Bush 
Administration that is reminiscent of the role that it played 
during the Reagan Administration. The process does remain 
transparent with the Office's commendable expanded use of the 
internet to become more transparent, and it is becoming more 
transparent than ever, and for that, I commend it.
    There are indications, however, that OIRA may see a 
substantive role for itself in the review process that goes 
beyond simply insisting that the agencies calculate the costs 
and benefits of major regulations properly.
    OIRA has begun to interject itself into the process much 
earlier than in the case of past administrations; it has even 
offered advice to EPA on how it should carry out its research 
into health effects of pollutants.
    It has been reported in OIRA's year-end report that there 
is a so-called hit list of 23 high-priority regulatory review 
issues that in OIRA's view either warrant further attention and 
might possibly result in a prompt letter to the Agency to 
demand additional attention.
    OIRA may now be viewing itself and its centralized review 
function as a vehicle for encouraging EPA to revisit 
regulations that regulatees find overly burdensome and for 
forcing EPA to exercise extreme caution in promulgating new 
environmental protections. I strongly suggest that this 
Committee keep a close eye on OIRA's activities in the next few 
years.
    The fifth theme is the Bush Administration's apparent 
reluctance to hold States accountable for poor implementation 
of delegated Federal programs. Again, it is early, but the 
action, as I detail in my prepared testimony with respect to 
Houston, is an example perhaps of this.
    The sixth theme is the Bush Administration's efforts to 
reduce transparency in the decisionmaking process, and here, I 
will simply make reference to the October 2000 Justice 
Department memorandum on implementing the Freedom of 
Information Act.
    In conclusion, I would like to use an athletic metaphor, 
perhaps. The Bush Administration did not hit the ground running 
with an agenda for improving the environment. Indeed, it does 
not appear that the administration was even really jogging in 
the direction of environmental improvement. Viewed most 
charitably, the Bush Administration has been running in place 
on environmental issues while it focuses its attention on other 
matters.
    In recent weeks, however, there are actions that strongly 
suggest that the administration may be about to sprint off in 
the opposite direction. If so, irreparable harm to human health 
and the environment is a predictable consequence.
    Thank you.
    Chairman Lieberman. Thanks, Professor McGarity, for a very 
thoughtful statement. I agree with you--I must go back to my 
friend and neighbor Mr. Elliott--that we are often in the 
``sensible center.'' My problem with the Bush Administration 
environmental record is that it has not been in the ``sensible 
center''; it has too often been, if I may say so, on the 
nonsensical right. Much as I respect Administrator Whitman, I 
am ultimately not reassured by the record here, and that is 
why--to use the awkward metaphor that I did at the beginning--
instead of athletic, I am going to go to canine metaphors--this 
watchdog is going to continue to bark.
    The next and final witness is Greg Wetstone, from NRDC. 
This is a report that NRDC put out in January titled, 
``Rewriting the Rules: The Bush Administration's Unseen Assault 
on the Environment.'' \1\ It was for me a very important piece 
of work. I read it. It summed up a lot that has happened; in 
some sense, it is part of what led directly to these hearings, 
and I appreciate, therefore, the work that has been done.
---------------------------------------------------------------------------
    \1\ ``Rewriting the Rules: The Bush Administration's Unseen Assault 
on the Environment'' appears in the Appendix on page 385.
---------------------------------------------------------------------------
    I must also give particular credit to the anonymous person 
who wrote the chapter titles, which are among the most 
memorable I have ever seen in a serious report--for instance, 
``Wetlands Protection--Rotten at the Corps''; ``Everglades 
Restoration--Watered Down''; ``Public Lands--Open for 
Business''; ``Mining Policy--Getting the Shaft''; and ``Air 
Quality in Houston--We Have a Problem.''
    Senator Thompson. We appreciate that objective analysis, 
Mr. Chairman. It is stuff like this that gets me out of the 
center.
    I notice we have ``The Bush Administration's Environmental 
Record: A Year of Accomplishments.'' \1\ I wonder which one is 
thicker? We will put them both in the record.
---------------------------------------------------------------------------
    \1\ ``The Bush Administration's Environmental Record: A Year of 
Accomplishments'' appears in the Appendix on page 439.
---------------------------------------------------------------------------
    We will at least put the subtitle chapters in this one 
against that one. Mr. Wetstone, I am just trying for a little 
humor here as the hearing goes on. We are now happy to welcome 
your testimony.

   TESTIMONY OF GREGORY S. WETSTONE,\2\ DIRECTOR OF ADVOCACY 
          PROGRAMS, NATURAL RESOURCES DEFENSE COUNCIL

    Mr. Wetstone. Thank you very much, Mr. Chairman. I want to 
commend the Committee for undertaking this hearing and thank 
you on behalf of our 550,000 members for giving the Natural 
Resources Defense Council the opportunity to participate today.
---------------------------------------------------------------------------
    \2\ The prepared statement of Mr. Wetstone appears in the Appendix 
on page 163.
---------------------------------------------------------------------------
    I will briefly mention, if it does not raise Senator 
Thompson's ire, that Rob Perks in the audience gets credit for 
the titles and the headings.
    The topic before the Committee today is, I think, an 
exceptionally important one to millions of Americans, and the 
reason is that the environmental laws, which are really a 
remarkable bipartisan achievement, have been among the most 
successful legislative endeavors ever. That includes most 
dramatically, given today's discussion, the Clean Air Act, 
where we have seen dramatic reductions across the country in 
levels of urban smog. There is a long way to go, but we have 
made huge headway. We have seen reductions in acid rain, 
reductions in air toxics, we have seen real progress toward 
protecting the stratospheric ozone layer, and the Acid Rain 
Program, which has been mentioned, has been a success, but it 
was overlayed on top of existing programs. There was no effort 
to weaken other programs to put that in place, and that is a 
vitally important difference.
    But these laws have gone far beyond clear air. We have 
improved the quality of water in our rivers, in our drinking 
water; we have protected threatened species, put in place 
programs for cradle-to-grave management of hazardous waste, 
cleanup of waste sites, we have protected some of the last wild 
areas and threatened species. We have a long way to go in all 
of these areas, but I think it is very important to take note 
of what a huge success this body of law is, and it is 
especially important to note that today these bipartisan laws 
are--and we feel that we have documented this case quite well--
very much at risk, not from an effort in the Congress to change 
the laws but from a subtle effort, a quiet effort, to subvert 
the fundamental government structure that is vital to making 
them work.
    And as I know this Committee is very much aware, simply 
having a law on the books does not change behavior. That law 
has to have credibility; the provisions of that law have to be 
translated into very specific requirements for industry and 
regulated parties; and there has to be credible enforcement for 
the entities that are subject to those laws to understand that 
it is in their interest to comply. And in fact, if there is a 
weak signal on enforcement or in the credibility of these laws, 
a complying private entity may actually be placed at a 
competitive disadvantage to its competitors, who may see that 
they can get away with not complying. So this is vitally 
important.
    The discussion of clean air that has taken place for much 
of this morning and early afternoon is particularly relevant 
here. I was not really going to talk much about clean air, but 
as someone who has devoted decades to that issue and worked on 
that issues as a committee staffer in the House of 
Representatives. I have to comment that what happened in this 
room earlier today was in my mind unprecedented and remarkable. 
The Administrator of the Environmental Protection Agency, as 
part of a statement which I thought was intended to reassure 
this Committee and the public that she is committed to 
enforcing the Clean Air Act, actually advised polluters' 
attorneys against settling with the enforcement actions brought 
by her own staff, and even suggested that there may be some 
questions about the legality of the underlying provisions in 
the law.
    I think that is an astounding and deeply troubling 
occurrence, and I certainly hope that that was not her 
intention, but that is what she said. I would certainly call on 
the Administrator to publicly reassure this Committee and the 
public that she does support the Clean Air Act, that she does 
support these enforcement actions, because these kinds of 
signals are what will turn the Clean Air Act and these 
provisions into writing on paper and nothing more. You have to 
have credible enforcement, as I know this Committee is aware, 
for the laws to be real.
    It is important to note that these New Source Review 
provisions are not, as some of this discussion might suggest, 
some arcane provision of the law that is additive to the law's 
central provision. This is a pact of the basic compromise in 
the clean air law which has held up since it was first enacted 
in 1970. That compromise was that when you build a new 
facility, you are subject to very tight pollution control 
requirements; but if you have an older facility, you do not 
have to install those tighter requirements unless you rebuild. 
And the anticipation and the expectation was that over time, 
these facilities would either be replaced or rebuilt, and then 
they would have to install the same state-of-the-art controls 
as their competitors in industry.
    What these enforcement cases are about is fundamentally 
making that compromise stick as these sources have gotten older 
and older and older. And the definition of ``modification'' 
which was mentioned really addresses the question, are these 
sources basically rebuilding from the inside out to become new 
sources? And I submit that that is exactly what has happened 
and that it has been well-documented, and there has been a 
relatively transparent effort to categorize these changes as 
``routine maintenance,'' when the people doing them understand 
that this is not routine maintenance.
    My mission here this morning is really to speak much more 
broadly than the Clean Air Act and to give a little bit of 
flavor for, broadly, how we see the efforts of the Bush 
Administration to carry out environmental law. Sadly, it is 
increasingly clear to us that this administration is employing 
the full force the Federal Government, including the 
environmental agencies, the White House, and even the budget 
process, in a sweeping campaign to undermine the programs that 
protect our air, water, lands, and wildlife.
    I just want to give you a few brief examples, and I will 
not go into a lot of detail or try to be exhaustive; I would 
defer to my written statement and our report for that, and with 
the Chairman's permission, I would like to submit this report 
for the hearing record.\1\
---------------------------------------------------------------------------
    \1\ ``Rewriting the Rules: The Bush Administration's Unseen Assault 
on the Environment'' appears in the Appendix on page 385.
---------------------------------------------------------------------------
    Chairman Lieberman. Without objection.
    Mr. Wetstone. I would like to just briefly hit a couple of 
the examples that we see that go across the spectrum of law and 
then talk a little bit about the tactics, because what we see 
is, increasingly, a reliance on approaches that are designed to 
basically not be penetrable readily to public scrutiny or to 
have a great deal of public participation.
    Let's start with wetlands. The cornerstone of wetlands 
protection policy in this country since 1990 under the first 
Bush Administration has been a fundamental tenet that there 
should be ``no net loss'' of wetlands. If an acre of wetlands 
was destroyed, another acre somewhere else had to be protected 
and preserved.
    What has happened is that last October--on Halloween, 
ironically enough--the Corps of Engineers issued a regulatory 
guidance document--no public comment, no public participation--
and that document essentially eviscerated the ``no net loss'' 
of wetlands policy, and it did so essentially by saying that 
you could trade off a wetland against an upland area, a stream 
buffer or other areas, which are not wetlands. If you take a 
wetland away and instead protect another area that is not a 
wetland, you are losing wetlands. The environmental community 
terms this new policy ``new net loss'' of wetlands because that 
is what we see going on.
    On mining activities and public lands, this is no small 
matter. In the year 2000, an EPA report documented that 40 
percent of all Western watersheds have been despoiled by mining 
waste. In October, the Department of Interior issued new rules 
on hard rock mining that were a step backward in many ways. 
Most notably, the rules rescinded that Agency's own authority 
to say no to a mining permit on the grounds that it could 
result in irreparable harm to the environment or to nearby 
communities. So we have a review process where they have no 
capability to say no because of environmental destruction, and 
this is on an issue that creates a great deal of environmental 
destruction.
    Raw sewage in America's waters--most of us would say that 
is a bad thing. There is a problem that we have in this country 
where sanitary sewers overflow into waterways and other places. 
According to EPA, this occurred 40,000 times in the past year. 
The Agency, years in the making, produced a rule on sanitary 
sewer overflows. All the stakeholders, the localities, the 
water companies--everybody was in agreement. This was a 
consensus rulemaking. But the rule was held up in the early 
days of the Bush Administration with Andrew Card's regulatory 
moratorium, and then it was put into what we could only 
consider some sort of a regulatory limbo. Now, over a year 
later, it has never gone forward. So you still have people 
swimming in waters that are at times contaminated by sewage, 
and there is no effort to prevent the contamination. Equally 
offensively, absent this new rulemaking, there is no public 
notice--you do not find out when your local river is being 
contaminated by sewage, so you cannot even make the informed 
decision that maybe I do not want to go swimming today because 
there is sewage there.
    The concern that we have is not just what is happening, but 
the kind of approaches that have been taken here. In many 
cases, we are looking not at a formal rulemaking but efforts 
that are highly technical guidance that have no public 
participation. One example is the rulemaking on wetlands that I 
mentioned; another is the issue when the forest rules came up. 
Those changes have been effected through interim guidance that 
has immediate impact to change the Forest Service Manual, which 
as you might imagine is not a particularly high-profile 
activity, but it has hugely significant repercussions.
    I mentioned enforcement, and that has been a lot of the 
focus, so I will not go into that more. But another approach 
has been funding. The refusal to request reauthorization of the 
Superfund tax--EPA officials have publicly conceded that this 
is slowing down Superfund cleanups, which is a massive problem.
    The failure to defend environmental requirements in court 
is a huge problem. Recently, the Fish and Wildlife Service went 
before a Federal court and said they were willing to forego 
protection of 500,000 acres of critical habitat in California 
that is considered essential for endangered species. Similarly, 
the Interior Department rolled over for a legal challenge by 
the International Snowmobile Manufacturers Association, 
delaying a very important rule that would have barred 
snowmobiles in Yellowstone National Park.
    We find ourselves facing a variety of fundamental changes 
with no public process and minimal opportunity for public 
comment. When we look overall at what is happening, we see big 
problems with the way the Office of Management and Budget is 
managing these environmental reviews. Taken together, we see 
this as the most serious assault ever to America's landmark 
environmental protection programs. If it is allowed to proceed 
unhindered, we see it as leaving these bipartisan environmental 
laws technically unchanged but dramatically reduced in their 
credibility and effectiveness and increasingly irrelevant to 
what polluters, developers, and those who would log, drill, and 
mine on public lands have to do in the real world. Thank you.
    Chairman Lieberman. Thank you very much, Mr. Wetstone, and 
thanks to all of you.
    Mr. Schaeffer, let me first give you a chance to respond to 
some of Mr. Elliott's comments. In a most targeted way, he said 
that your position regarding the New Source Review cases is 
that EPA is going to win all the cases without appeals or 
setbacks, but in fact, no court has ruled in EPA's favor on New 
Source Review enforcement cases. And then, finally, he said 
that EPA has in fact staked out a bold new theory in these 
cases.
    How do you respond?
    Mr. Schaeffer. Mr. Elliott and I have been on panels 
before, and we kind of do a Punch and Judy show on some of 
these issues. If I had a copy of the WEPCO decision, I would 
whack him with it, because that is a utility case, and we did 
win it--I think he was at the Agency in fact when that was 
argued. That is the case that we are relying on in bringing the 
cases we have today; that was 10 years ago and is established 
law.
    We won a slam-dunk decision in Murphy Oil this summer. I am 
going to send Mr. Elliott a copy of that. The judge rips the 
defendant for clearly understanding what the requirements were 
and doing everything this particular company could to avoid it.
    We won a New Source Review case on BP Oil. That was summary 
judgment, so I will share a copy of that as well.
    As to not being able to get anything done on New Source 
Review, I think you heard in the Administrator's statement 
taking credit for in fact what we have been able to get done in 
settlements. We have been able to get one-third of the U.S. 
refining capacity under global settlements, addressing New 
Source Review violations, almost doubling--maybe more than 
doubling--the number of scrubbers that these plants put on, 
putting in new technologies, and experimenting with new options 
that make control cheaper.
    These settlements are practical, they are flexible, they 
have gotten us 150,000 tons of reductions, and that is 
something that is in place and operating today, not something 
we have to wait for or debate any further.
    I think if you ask the companies--and they really are the 
best source--about how the process went, they will say that we 
were pretty reasonable and they are pleased with the result.
    Chairman Lieberman. Do you take a position on the question 
of whether the New Source Review program has inefficiencies 
that need to be improved?
    Mr. Schaeffer. Sure. We can improve the program, no 
question. We can improve lots of rules at EPA, and there are 
definitely ways to make it simpler.
    To this argument that, gee, the law is too complicated for 
polluters to understand, so they should not have to comply--in 
a couple of weeks, I am going to have to start doing my taxes. 
I am old enough to be itemizing these days, and I know that you 
all are working really hard on simplifying the Tax Code, but it 
still gives me a headache to do my return. And I guess my 
question should be--am I supposed to comply with the tax law or 
wait for somebody to change it? Is there somebody I can call 
about that and maybe get some help?
    Chairman Lieberman. So in other words, the shortcomings of 
the program--I will answer that question later--the 
shortcomings in the New Source Review program do not justify 
stopping enforcement of it.
    Mr. Schaeffer. I do not think so. They have broken the law, 
and they need to comply.
    Chairman Lieberman. Particularly as you said very 
compellingly at the end of your statement, because of all the 
data that is accumulating on the real health effects of air 
pollution--in your statement this morning, you said that 
``EPA's efforts to enforce the Clean Air Act are threatened by 
a political attack on the enforcement process that I have never 
seen in 12 years at the Agency. The energy lobbyists, working 
closely with their friends in the White House and the 
Department of Energy, are working furiously to weaken the laws 
we are trying to enforce. Not surprisingly, defendants have 
slipped away from the negotiating table one by one, and our 
momentum toward settling these cases has effectively stopped.''
    I said earlier--and this is partially because of my past 
experience as Attorney General of Connecticut--how important 
enforcement of the law is to encouraging voluntary adherence to 
the law by a lot of other people. But let me ask if you want to 
say any more about these very strong statements about the 
energy lobbyists working ``to weaken the laws we are trying to 
enforce.''
    Obviously, there has been a fair amount of discussion about 
this in the media, but from your own knowledge, can you give us 
any more evidence of that?
    Mr. Schaeffer. Sure. I am talking about having the 
defendants attorneys tell us: ``This is being reworked, this 
law is being reworked, and we do not really have to talk to you 
right now''--and saying it in a nice way, and sometimes not in 
such a nice way, and then getting up and looking for the exit. 
That is what we have heard, and if you want to confirm that and 
talk to some of my staff and the manager of the Air Enforcement 
Division, I think they will tell you the same thing.
    Chairman Lieberman. But just to clarify, you said in your 
testimony that there was never a time when anybody over you 
said ``Do not go ahead with this enforcement''--or was there?
    Mr. Schaeffer. No. I cannot say that. I cannot say that the 
telephone rang and I was told do not do the case.
    You heard seven complaints have been filed. We have made a 
decision that we really could not file additional companies in 
the utilities sector with the confusion over where the 
government stood right now, and nobody has argued with that 
decision; it seems kind of sensible.
    The new complaints the Administrator mentioned that were 
filed are complaints that were filed when the settlement was 
reached. Those were the refinery settlements. And you file a 
complaint when the deal closes. But these were not new 
complaints. We have not filed any since the new administration 
took office on utility plants for NSR violations.
    Chairman Lieberman. We have talked a lot about air quality, 
New Source Review particularly, and yet the cutbacks in staff 
that you have testified to, I presume, affect other 
environmental programs and their enforcement. What other 
environmental programs were staff responsible for enforcing who 
are no longer there or whose positions are no longer filled?
    Mr. Schaeffer. A good example is in the wetlands program. 
About 2 years ago, we had our senior technical staffperson--and 
we only had one--leave and take a new position. We have not 
really been able to replace that person.
    I think we are desperately short in clean air cases. Just 
to give you an idea of the magnitude, when we brought these 
lawsuits--Mr. Elliott and his friends were not idle; they are 
basically requiring the Agency to dump thousands and thousands 
of documents in discovery. I know they do not like this long, 
protracted process, but they are pretty good at it.
    Chairman Lieberman. You mean Mr. Elliott in his capacity as 
an attorney.
    Mr. Schaeffer. Right. I will not pin that on Mr. Elliott 
particularly.
    Mr. Elliott. Yes; I do not represent any of the defendants 
in the New Source Review litigation.
    Mr. Schaeffer. Right.
    Other counsel have basically asked us--required us--to dump 
thousands of documents. So we have not been able to pursue 
cases, because we are trying to dig out from under those 
discovery requests, and as our staff have shrunk, and we have 
not been able to replace people, it has gotten harder and 
harder to have any forward momentum.
    Chairman Lieberman. My time is up on this round. Thank you, 
Mr. Schaeffer. Senator Thompson.
    Senator Thompson. Thank you.
    First of all, with regard to this hand-wringing about what 
Governor Whitman said a little bit earlier, it should not be a 
shock to anyone that these people involved in this litigation 
are not going to have their decisions made as to whether to go 
forward based on the opinions of the head of EPA or anybody 
else. They are making their decisions as to whether or not to 
settle based on a lot of things, including whether they can 
afford to fight the Federal Government, including what they 
think their chances of prevailing are. And Christie Whitman 
made the mistake of telling the simple truth, which we so often 
call for up here, and saying that she can understand why nobody 
would settle a case while this TVA case was pending. And you 
have a list of professors and a lot of lawyers better than I 
with very split ideas as to how that is going to turn out.
    But in talking to her office, she wanted to verify that she 
certainly does support clean air, the Clean Air Act, and has 
said so time and again, and does support enforcement moving 
forward. But she is not an attorney, and her comments on TVA 
clearly were an example of the variables and hurdles facing 
settlements and therefore how difficult it is to predict gains 
from settlements.
    Mr. Elliott, I guess you are to be complimented, because 
you are supposed to be able to deal with all the issues that 
these three gentlemen raise here in bashing the administration. 
I guess I might have been more critical in some areas myself if 
some of this did not seem so over the top and unfair, quite 
frankly.
    So I guess what I ought to do in this first round is just 
allow you to respond to any and all that you have heard so far.
    Mr. Elliott. First of all, may I ask to have my prepared 
statement made part of the record?
    Chairman Lieberman. It will be. Prepared statements of all 
the witnesses will be included in the record.
    Mr. Elliott. I am well aware of the WEPCO decision. I was 
EPA General Counsel when that decision was rendered.
    Senator Thompson. Was that a total victory for the 
government?
    Mr. Elliott. No. The analogy to tax law is an interesting 
one, because tax law is complex, but at least it is relatively 
clear.
    The problem with the WEPCO decision is that it is one of 
these court decisions that says there are six factors. The 
analogy is if you had to take a deduction based on the IRS 
weighing whether or not this was a necessary expenditure and 
whether or not you made it in good faith, and you had a 
multiplicity of these really squishy tests. After WEPCO came 
down, in the 1990 amendments, both Houses of Congress passed 
legislation that we should ``fix'' the WEPCO problem.
    What is now being portrayed as this fundamental premise, 
the Clean Air Act, is in my view nothing of the sort. Major 
modification language was added in the 1977 technical 
amendments, and that is what the controversy is about. This is 
a program that has just grown, and I do not think it is a 
fundamental part of the Act.
    To the extent there was a fundamental compromise in 1970, 
it was a judgment to treat new plants and old plants 
differently. I think that is a fundamentally misguided policy. 
Increasingly, we are going to have to treat plants equally. The 
real question is whether the way to change the law is by 
legislation or by enforcement cases.
    Senator Thompson. When did that policy come about?
    Mr. Elliott. That was in the 1970 Clean Air Act, in the 
statute. But what has been controversial is that in 1977, in 
these technical amendments, the concept of modification was 
introduced as a gloss on what it meant to be a new plant. The 
whole problem has been trying to figure out if you do something 
to a plant, does that trigger the notion that it has become a 
new plant.
    With regard to my friend Tom McGarity's point that not a 
single new rule has come out under Bush Administration that was 
not in the works under the Clinton Administration has been 
promulgated, that may be true, but it is certainly misleading.
    The average period of time from the start action on a new 
rule to the time it actually comes out is in the range of 24 to 
36 months. So there is a tremendous continuity between the 
Clinton Administration and the Bush Administration. It is still 
early, as you said, but it is very rare that you would have a 
final rule out 13 months into an administration that had not 
been worked on or started in the previous administration.
    With regard to the notion that OIRA is getting in at the 
front end, I am glad to hear it. I wrote an article in 1992 
saying that one of the things that was wrong with the OMB 
process was they came in at the 11th hour with a lot of good 
ideas that we could have gotten the benefit of if we had heard 
of them earlier.
    Senator Thompson. I thought that was an interesting point, 
too. The very idea that OIRA, which is set up to review 
regulations, the very idea that they review these regulations, 
how dare they.
    Senator Carl Levin and I had a bill a couple of years ago 
on regulatory reform, and it was clear that a lot of these 
regulations were simply not getting the job done, that these 
things could be done cheaper in many cases, sometimes they were 
counterproductive; by not having sufficient review and thinking 
things through and getting sufficient input and being afraid to 
make any changes when necessary because of the vast interest 
groups that would come in--we got things like the asbestos 
situation and the seatbelt situation, where our regulatory 
process was killing people.
    So in a bipartisan way, we tried to address that. We were 
not able to get that done, but that is what the OIRA thing is 
all about and trying to bring a little bit of common sense to 
some of these regulations.
    I have the solution to the Smoky Mountain problem. We can 
just keep people from going in there and shut down the plants 
around the area. It is no trick to totally solve some of these 
environmental problems if you consider absolutely no other 
considerations. It lends itself easily to a litany of weakening 
this and rolling back that and so on if you do not consider all 
of the complex considerations that go into any of these 
decisions, and the defenders will always be on the other end.
    I have been very critical in some of these clean air areas, 
but I must say that some of the renditions and orchestrated 
movement here that, after 1 year of this administration, have 
been held up for the most part from even getting a team 
together--this business of Ghengis Kahn riding across the 
plain, swinging his sword at all decency and everything good 
about America, is just a little bit difficult.
    Mr. Elliott. Could I respond very briefly to that?
    Senator Thompson. Yes.
    Mr. Elliott. I think this hand-wringing about OMB tends 
really only to occur in Republican administrations. As I have 
talked about in my statement, we have had a continuity of OMB 
performing this role over the last five administrations. I 
think they are doing it very well and increasing public 
transparency.
    What is really new about OMB in this administration has 
been the notion of prompting agencies to make regulations 
tougher in certain areas, which never happened before. I used 
to kid the guys at OMB when they were reviewing our rules--when 
are you guys going to ask for one to be made tougher? Well, 
that has actually begun to happen in this administration. That 
is what is unprecedented. But for some reason, OMB in 
Democratic administrations is not criticized; it is mostly the 
same staff people over there. These are career staffers.
    Senator Thompson. They are criticized for what is looming 
out there, some indications that indicate wrong directions of 
what might happen.
    Mr. Elliott. Yes. Actually, the overwhelming trend, with 
all due respect, that I see is tremendous continuity between 
the Clinton-Gore Administration and the new Bush 
Administration. There are some changes at the margins, but I 
think they are well within the sensible center of good policy.
    Senator Thompson. There is a lot of improvement we can make 
to all of these areas if we can avoid exacerbating these issues 
so much.
    Mr. Elliott. We have talked about NSR, for example. One 
thing that the Clinton-Gore Administration advocated was less 
adversarial approaches and more reliance on trading systems and 
the stakeholder process. That was called ``reforming 
government.''
    Now, when the Bush Administration is doing those policies, 
it is called ``rollbacks.''
    Senator Thompson. It is called ``reinventing government.''
    Mr. Elliott. It seems to me to be a double standard. There 
is an awful lot of continuity here.
    Senator Thompson. Thank you, Mr. Chairman.
    Chairman Lieberman. Thanks, Senator Thompson.
    Needless to say, I have a different point of view, because 
I do believe that there have been real changes in direction and 
cutbacks in enforcement as Mr. Schaeffer testified from within. 
And we can see here in Congress, and it is pretty clear in the 
media, that there has been disproportionate weight given to so-
called regulated industries, those who emit pollutants. And 
that is going to have an effect, if it is allowed to go on, on 
the quality of our environment and our health, in fact.
    Professor McGarity, Mr. Elliott criticized your statement 
that there have been no new environmental initiatives under the 
Bush Administration. Correct me if I am wrong, but I heard you 
to be more specifically referring to new rules; is that 
correct?
    Mr. McGarity. That is correct.
    Chairman Lieberman. So, obviously, the administration says 
by its title, they have a ``Clear Skies'' initiative. I have 
indicated today that I do not think it puts us in a better 
place than the current Clean Air Act does, but nonetheless, it 
is an initiative.
    But you are talking about an environmental rule initiative.
    Mr. McGarity. I am talking about something that will result 
in, after the notice and comment process, a final rule that 
people will have to comply with.
    Chairman Lieberman. Yes. Let me get into this OIRA 
discussion. I was very concerned about Mr. Graham, when his 
nomination was made to oversee this program, and after a lot of 
concern and thought, I decided to vote against him. And I have 
been troubled by some of the things that have happened since he 
has been in there, and you testified to this.
    You had an interesting piece of testimony where you talked 
not just about the way in which OMB is getting involved more in 
the early stages of the regulatory process, which then creates 
a kind of substantive input into what the agencies are 
deciding, but you talked about them providing instructions to 
EPA regarding targeting research that is being done. The handy 
example, obviously, is the American Medical Association Journal 
report yesterday on the higher incidence of lung cancer as a 
result of dirty air.
    Would the changes as you understand them that are occurring 
now through OIRA allow EPA to consider the changing nature of 
information that we have about health effects, such as that in 
the report?
    Mr. McGarity. What troubles me most about the recent 
guidelines or information guidance that OIRA has provided to 
the agencies--and it was pursuant to an appropriations rider to 
the fiscal 2001 appropriations bill--the requirement that the 
agencies allow affected entities to come in and attack these 
studies as they are performed is very troubling to me, before 
the Agency really moves with them.
    The study that was just published in the Journal of the 
American Medical Association under these procedures is not a 
perfect study. No epidemiological study is perfect. There will 
be potential confounding factors. There will be criticisms that 
can be made of the study.
    What this new OIRA process allows is for all these 
criticisms, for people to come in with their experts that they 
sometimes have paid, sometimes have had on the payroll for a 
long time, and basically tear these things apart. You find all 
sorts of blunderbuss attacks on these studies. This is a little 
bit troubling to me, because I am engaged in research right now 
and have been for the last 3 years on the tobacco industry and 
the environmental tobacco smoke issue, and that is exactly 
their strategy and has been for years and years, and you can 
just see it happening now--we are going to come in, we are 
going to hire these scientists; if they disagree with us, we 
fire them, and we go forward with these huge blunderbuss 
attacks on scientific studies, and I don't think we get 
anything done.
    I have used the word--and I have borrowed it from my good 
friend, Don Elliott--``ossification'' in publications that I 
have written, and I think that is a very real risk here.
    Chairman Lieberman. Mr. Wetstone, let me invite you into 
the discussion of OMB's use of cost-benefit analysis which you 
referred to in your testimony. Could you be more specific about 
the concerns that you have here, particularly in the context of 
protection of health and the environment?
    Mr. Wetstone. Absolutely. What we see happening now is in 
fact very different from what we have seen in past 
administrations. The head of OIRA now has a history of 
supporting certain very controversial analytical assumptions, 
and what you get out of a cost-benefit analysis, of course, 
depends on the assumptions that go into it.
    One of those assumptions, for example, is that when you are 
looking at the impact of a rulemaking that would save lives, 
you do not evaluate the number of lives as you used to, but 
instead you look at the age of the individuals who will suffer, 
and if someone is elderly, their life is considered less 
valuable, because the metric you use is a measurement of life-
years. There is even a quality element, where there is also an 
implication that the quality of life is somewhat lower for 
someone who is more elderly, and therefore, that has a lower 
value, too.
    These are the kinds of judgments that we see as 
inappropriate. And not only is it the nature of the 
assumptions, it is the trend toward monetizing everything from 
clear air in the Smokies to protecting a threatened species to 
a child being able to breathe freely versus having asthma. How 
much is that worth? Although there is a rhetorical bow to the 
reality that you cannot quantify everything, John Graham who 
heads this office has put in place a system where, if he gets a 
rulemaking and does not see enough efforts to monetize 
particularly the benefits side of the equation, it is sent back 
to the Agency with what they call a ``return letter'' for more 
analysis.
    There have been 17 rules sent back so far to the agencies. 
There is yet to be one sent back because it was not adequately 
protective. They have covered things like the transport of 
hazardous materials, EPA's proposed rule for reducing emissions 
from off-road vehicles like snowmobiles, and so far, what these 
measures have done is to basically derail rulemakings. We have 
not seen what comes out of it, but certainly, it seems highly 
unlikely that we will see stronger rules emerge from this 
process.
    And finally, I think it is worth coming back for a moment 
to the regulatory reform debate of past years, which I know 
both yourself and Senator Thompson were very much involved in. 
I think that if you look together at what you have when you mix 
these analytical assumptions and the return letter, which 
applies even if the directive in the statute is simply to 
protect health or use the best available technology--and that 
is supposed to be the calculus that Congress set--under the 
approach being used now at OIRA, those rules can be returned by 
virtue of inadequacies in cost-benefit analysis. This is in 
essence what we and the environmental community, as well as 
many here in the U.S. Senate, fought as a super-mandate in the 
original regulatory reform proposal, the Dole proposal. I would 
submit that this is quite different, Senator Thompson, from 
your draft with Senator Levin.
    I think what we are looking at is effectively an 
administrative super-mandate here that overrides the 
congressional directions, and I see that as also an issue with 
the OMB prompt letters. You have, instead of Congress telling 
the agencies what they should be doing and how to move forward 
in protecting health, basically, a political official 
interjecting political considerations and making relatively 
offhanded suggestions to agencies about what they should be 
doing, some of which can be enforced from the standpoint of 
whether the Agency can succeed in a rulemaking to protect 
public health or the environment.
    Chairman Lieberman. Just for the record, those letters were 
sent by whom?
    Mr. Wetstone. The return letters are sent to the agencies 
from John Graham, the head of the Office of Information and 
Regulatory Affairs.
    Chairman Lieberman. This is a real concern to me, and we 
are going to keep our eyes on it, because it is exactly the 
kind of concern I had when Mr. Graham's nomination came before 
us.
    Senator Thompson.
    Senator Thompson. Well, what this highlights is a basic, 
fundamental disagreement that we have here in Congress, that 
the Chairman and I have--Senator Levin of Michigan agrees with 
me--as to whether we ought to interject cost-benefit analysis 
into this regulatory process. And we continue to disagree. John 
Graham believes that it should, after a very distinguished 
record at Harvard and supported by many academicians and 
others, pointing out that we have produced a lot of bad rules, 
we have produced a lot of inefficient rules, and we should not 
be afraid to put some of these rules to the test.
    As you know, in our legislation, we said on cost-benefit, 
it is not putting a dollar on somebody's life; intangible 
considerations are also relevant--even though juries put 
dollars on people's lives every day--and some people think it 
is not outrageous in allocating resources to take into 
consideration that my mother is in her eighties, and my 
grandchild is 5 years old.
    So that is a fundamental debate, and to criticize this 
administration in that regard--they won the election. They 
believe in cost-benefit analysis. They are considering 
intangible as well as tangible. At OIRA, if there is anything 
John Graham believes in, it is rigorous scientific review and 
peer review and open comment. EPA in large part in times past 
has had a little, closed society, and they do not want anybody 
messing with them; they know it all, and they will put out the 
regulations, and you just obey them and do not question them.
    What this does is open up the process to peer review and to 
public commentary as these things are being formulated. 
Certainly I can see the other side to all of this, and I see 
your concerns, but again, to hold this out as some kind of a 
monumental attempt to roll back environmental progress--it is 
actually benefitting.
    I do not think that the American people will sustain a 
system that continues to in some cases kill people. Under the 
guise of clean water, we spend money over here where the threat 
is lower and ignore over here where the threat is higher, and 
we have put out seatbelt regulations that wind up not 
addressing the problem with small children. We required the 
tearing out of asbestos when we realized that was not a good 
idea in times past.
    So let us just recognize and acknowledge that we have 
different views on these issues, and they are both legitimate 
views, and neither one of them is an attempt to roll back 
environmental progress, but a legitimate dispute as to what is 
best for not only the environment but other legitimate 
concerns. You apparently do not want to acknowledge it, but I 
am serious when I say I have a solution to the Smoky Mountain 
problem, and the deaths on our highways problem, if you want to 
make automobiles like tanks.
    We clearly have various considerations to put on the table 
when we do all of these things, and it is just not fair to load 
up on one side and interpret everything that has to do with an 
analysis or a reanalysis of a rule that Clinton left on the 
table as he was leaving town; it is just unfair.
    One thing I wanted to ask was under NSR, it has been on the 
books for all these years, and I think someone said most of the 
modifications--maybe I read this--have been 10 to 20 years ago, 
something like that. Is that a fair statement?
    Mr. Elliott. Many of them, even prior to this WEPCO 
decision that they rely on.
    Senator Thompson. OK. And as I recall, just 
parenthetically, the court there said that this business of 
proving that you are going to have greater emissions and 
therefore you are going to have greater pollution does not 
necessarily follow. That is what the EPA was operating under at 
that time. The court did not buy that.
    Mr. Elliott. Right. The statute talks about an emissions 
increase, but EPA over the years has interpreted ``increase'' 
so that if your actual emissions decrease, that is still 
considered an increase. That is because when you make a 
physical change to one of these plants, they compare your 
actual emissions to your hypothetical potential emissions. So 
they have really taken a very simple concept in the law, which 
Mr. Schaeffer referred to, that your emissions have to 
increase, and through this elaborate process of interpretation, 
they have interpreted it to mean exactly the opposite.
    Senator Thompson. Well, without even getting into the 
merits of it, that is what makes for lawsuits. Incidentally, 
Mr. Schaeffer, I would not have been overly concerned if 
somebody had called you up and said do not proceed with an 
enforcement action. I have been an assistant U.S. attorney, and 
I have been a defense lawyer, and I have been told by clients 
in both positions not to move forward on cases; my boss, a U.S. 
attorney, for good reasons in terms of evidence, in terms of 
precedence, in terms of risk of losing, in terms of the fellow 
has been punished enough--for whatever reason--and for clients 
on the other side.
    So I think that the American public surely understands the 
difference between policy and enforcement and that those who 
are elected to make policy have a right, if they comply with 
the law, they have a right to make policy, and we may disagree 
with it, it may interfere with what we have been doing for a 
living for some years, but if they feel like there is a better 
way, they have a right to consider that.
    What I understand is that these lawsuits were filed in 
1999--is that nine lawsuits?
    Mr. Schaeffer. That is right.
    Senator Thompson. And the noncompliance rate, as I 
understand it, is very high--70 to 80 percent, I have read.
    Mr. Schaeffer. Very high.
    Senator Thompson. What happened in the decade preceding 
1999 in terms of enforcement?
    Mr. Schaeffer. To respond to your first point--we refer our 
cases to the Justice Department. The Department is pretty 
conservative. They assess risk all the time. So it is not 
unusual for us to pull back, compromise, even withdraw, when we 
feel like we have litigation risks. That is part of the game.
    What I am saying is that I have not seen a situation where 
a defendant said, ``We are getting this law knocked out; we are 
not going to settle.'' And I want to be clear--I am not talking 
about a parade of horribles, something that might happen--I am 
talking about something that has already happened to the 
enforcement program.
    Senator Thompson. Do you believe that it is inappropriate 
for an administration, any administration, if they view that 
the policy that you are enforcing is an unwise policy, that 
they have got to wait however many years it might be for you to 
finish your lawsuit before they can do anything about that 
policy?
    Mr. Schaeffer. I am not suggesting they do not have the 
right certainly to change the law. I am saying that what is 
going on here is that people now feel, based on the signals 
they have gotten, that they do not have to comply until the law 
is changed.
    Senator Thompson. Well, you are just talking about the 
results of what I just said.
    Mr. Schaeffer. Right.
    Senator Thompson. If in fact policymakers have a right to 
make policy, and you have litigation going on, as you do all 
the time, then they are going to be aware of that, clearly, and 
have got a right to be aware of that, and they have a big 
lawsuit pending in the 11th Circuit, and they are going to wait 
around and see what happens. Is that a shocker?
    Mr. Elliott. Could I just make one----
    Mr. Schaeffer. It is fair to say, if that is directed to 
me----
    Senator Thompson. Mr. Schaeffer, please.
    Mr. Schaeffer. It is fair to say that I am describing the 
effects. I am not saying this is illegal behavior. I am saying 
the effect of the administration changing, swapping horses in 
the middle of the stream, when we have pending lawsuits against 
really what amounts to more than half the industry if you 
consider the cases under investigation, is very unusual, and it 
has killed our settlements, and that is the statement I will 
make.
    Senator Thompson. I want you to address that, Mr. Elliott, 
and I also want to ask both of you why, after all this time, 
did you wait until 1999 to file all these lawsuits?
    Mr. Elliott, do you want to address either one of those 
questions?
    Mr. Elliott. It is very important to be clear about the 
dates. As Administrator Whitman pointed out, the Clinton-Gore 
Administration proposed in 1996 and 1998 that NSR was a broken 
program, that it needed major revisions, and the lawsuits to 
enforce this broken program were filed in 1999.
    So even prior to EPA filing all of these enforcement 
lawsuits, the previous administration concluded that this NSR 
program was confusing and difficult to understand. There has 
been a norm in government in all my years that when an 
administration concludes that a part of a law is unclear, needs 
to be fixed, needs to be changed--and this was a conclusion on 
a bipartisan basis; that is not new with this administration--
that you do not make that your primary enforcement initiative.
    I remember saying to my friends at the agency, this is 
crazy. We have a program here which everybody knows is broken, 
does not work well, both administrations have proposed to 
change. It is not just a matter of enforcing the law. This is 
what EPA has made its number one enforcement priority.
    Senator Thompson. And as I understand it, during all these 
years leading up to 1999, you had EPA officials in and around 
these plants apparently okaying what they were doing.
    Mr. Elliott. Absolutely.
    Senator Thompson. When I first got into this, my concern 
was, and I kept asking my staff to get an analysis of these 
lawsuits, get an analysis of where the merits are and where the 
strengths are and what the courts are likely to do. And I have 
never been able to get one where I could say it is going to go 
one way or another and I imagine you did what a lot of 
government agencies do--you put in a couple of small ones that 
you feel like you can settle because they cannot afford not to, 
and then you get some big ones that you can leverage the small 
ones against, and now you have a real big one that is not going 
to be leveraged, apparently. And my concern has been who is 
going to win, because a lot is going to fall on that. And 
nobody knows the answer to that.
    Then I got to thinking about the ramifications of that. 
What if the EPA lost that lawsuit, and then, the President came 
along with an initiative. And I can understand--I have been a 
prosecutor, and I have been a litigator, and I understand that 
you believe in what you are doing, and you want to keep on 
keeping on, and you feel like you can make the world a better 
place lawsuit-by-lawsuit.
    But others think that there is another way to do it. I must 
say that with a law that has been on the books for 25 years--
and most of these modifications have been done 10, 20 years 
ago, with a noncompliance rate of 70 to 80 percent----
    Mr. Elliott. No. EPA has said the noncompliance rate is 
universal, that there is no plant in the utility industry that 
has operated that has not violated this law.
    Senator Thompson. So the Clinton Administration waits until 
the last year in office to file nine lawsuits and now, some do 
not want a re-analysis of the underlying statutory and 
regulatory framework even though that administration itself did 
it on at least two different occasions.
    Mr. Schaeffer, do you want the last word? That sounded like 
Bill O'Reilly; I should not say that.
    Mr. Schaeffer. I would like to order lunch, actually.
    Senator Thompson. I would, too. I will make a deal with 
you--I will go if you will.
    Chairman Lieberman. Yes, we are heading there rapidly.
    Mr. Schaeffer. These cases did not just come into being out 
of some spontaneous generation in 1999. The investigations 
began before that. The kind of risk assessment that has to be 
done for a big case was done before that, so they began at the 
investigative stage several years before.
    In the early nineties, under the Bush Administration, under 
the President's father's administration, we got a major 
decision in the WEPCO case. In that case, with due respect to 
Mr. Elliott, the court found that electric utility to have 
tripped New Source Review requirements and said that it needed 
to put on controls.
    For the next several years, we pursued New Source Review 
cases in the wood products industry; we have settled every one. 
We also began investigations in refineries, and in the mid-
nineties, we started with power plants.
    The notion of EPA lawyers and staff swarming all over these 
plants is fanciful. We do not have that many people. And as Mr. 
Elliott knows, it is the responsibility of the company under 
the law when it is making a modification to come in, let the 
permitting Agency know what is going on, and tell the 
government, ``Hey, I have this change.''
    Now, if you want a bright line drawn, if you have a 
question and you want it answered, we have a process for that. 
It is called getting an applicability determination. You come 
in and say, ``I have a change. What is happening here? Is this 
New Source Review, or not?''
    We did not have a lot of business--we did not get those 
questions--because I think the utilities did not want to hear 
the answer that we were prepared to give.
    And I have got to close by saying that this notion of flip-
flopping around on the law, making up interpretations--the 
Justice Department has settled in its January report, and I am 
sticking with Mr. Ashcroft on that issue.
    Mr. Wetstone. Could I make a quick point here?
    Chairman Lieberman. Yes.
    Mr. Wetstone. I think it is important to note that this was 
not a Clinton Administration proposal, and I would urge a 
review of what was proposed and to perhaps bring Carol Browner 
in here, because I think she would say that it was not the 
signal that she was sending that this was a program that was 
not working. And I do not believe that this administration has 
ever, unless they did so today--and I hope they did not, but 
they might have--said publicly that they do not believe the New 
Source Review program is one that either does not work or 
should not be enforced. So I actually do not think it is the 
kind of situation where there has previously, at least, been 
any effort to publicly walk away from this, a core element of 
the Clean Air Act. But if the message is that the cop is off 
the beat, then the speed limit is going to cease to apply, and 
people are going to drive however fast they want, not comply 
with the Clean Air law. I think that is the concern now.
    Chairman Lieberman. All right--only because you are my 
neighbor, and I like your children.
    Mr. Elliott. Thank you so much. My daughter heard you last 
Thursday and was very impressed, so I will give her your 
regards.
    Just one factual correction. It is not that there is just 
one case. It does not all ride on this 11th Circuit case. The 
government has the advantage of bringing its strongest case 
first, and if we go down the litigation route, as opposed to 
amending the law, this thing will go for 10 years. EPA is going 
to win some of these cases where they have a very good record 
of the sort that Mr. Schaeffer referred to, and they are going 
to lose some of the other ones. There is going to be a conflict 
in circuits, and it is going to go to the Supreme Court, and it 
is probably going to take a couple of Supreme Court cases to 
clarify the law.
    So if you really pursue NSR enforcement as the primary way 
of dealing with this national policy problem, you are 
committing yourself to a long period of uncertainty and 
litigation. Enacting a cap-and-trade program is a much better 
way to solve the problem.
    Litigation was brought originally to set up the conditions 
that would support legislation, and that was something that 
people from NRDC and people from EPA said publicly. It has 
worked. They have created enough pressure that we can now do 
legislation. But the end-game strategy here should be a cap-
and-trade system, not slugging it out in court cases. And they 
have only got the 10 biggest companies in court now. They would 
have to bring 500 cases to be as effective as a cap-and-trade 
program.
    Chairman Lieberman. Of course, I agree with you, and then 
the debate is what kind of cap-and-trade program will it be. I 
will just say two things, one to my dear friend and Ranking 
Member. Our disagreement about cost-benefit analysis is not 
whether it is appropriate to be used. It should be used, and it 
helps if used properly. The question is how it is being used 
and whether it is being used in some cases to try to quantify 
what is hard to quantify and also to protect regulations.
    Then, second, since I asked you the question, Mr. Schaeffer 
about whether you had received calls telling you not to go 
ahead and prosecute, I was really trying to pick up and clarify 
that although you and I both think, I take it from your 
testimony, that the regulated industries have disproportionate 
influence on the formulation of the administration's 
environmental policy, and environmentalists and others are not 
listened to as much, that you have never been told by anyone in 
the administration not to pursue an enforcement.
    So of course, the administration has a right to change 
policies. My argument is with the way in which they are 
changing those policies and the message that that sends out to 
anybody out there who is covered by these environmental 
protection laws: Maybe they do not have to comply or maybe the 
cop is not going to be quite as aggressive on the beat, so they 
do not have to go ahead with the settlement agreement. That is 
a concern that we have, and we will continue to explore that.
    I am going to leave the hearing record open for 2 weeks so 
we can submit additional questions to the witnesses. You may 
make additional statements if you wish.
    This has been a lively debate which has been joined. It is 
an important debate. At the end of it, I must say that I am 
unreassured about my concerns about the direction of the 
administration's environmental policy. We will go forward to 
the next hearing next week.
    Thank you very much. The hearing is adjourned.
    [Whereupon, at 1:06 p.m., the Committee was adjourned.]

 
                  PUBLIC HEALTH AND NATURAL RESOURCES:


 
   A REVIEW OF THE IMPLEMENTATION OF OUR ENVIRONMENTAL LAWS--PART II

                              ----------                              


                       WEDNESDAY, MARCH 13, 2002

                                       U.S. Senate,
                         Committee on Governmental Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:43 a.m., in 
room SD-342, Dirksen Senate Office Building, Hon. Joseph I. 
Lieberman, Chairman of the Committee, presiding.
    Present: Senators Lieberman and Thompson

            OPENING STATEMENT OF CHAIRMAN LIEBERMAN

    Chairman Lieberman. The hearing will come to order.
    I apologize to my colleague and the witnesses for the 
lateness of the start. What is normally a 25-minute trip became 
a 45-minute trip today. That is the impact of rain on 
Washington streets and traffic, so I apologize.
    I want to welcome everyone to this second hearing being 
convened by the Senate Governmental Affairs Committee to review 
the Bush Administration's enforcement of environmental and 
public health protections.
    In our first hearing last week, we heard from EPA 
Administrator Christie Todd Whitman, also from the recently 
resigned head of EPA's civil enforcement, Eric Schaeffer, and 
from two lawyers, among others, with significant experience in 
environmental law--all of it in an attempt to get what might be 
called the experts' view of the administration's policies and 
enforcement strategies. Today, our purpose is to get a 
citizen's-eye view of these same policies.
    I want these hearings to be fair, and that is part of why 
we began last week with EPA Administrator Whitman and why I, 
and I know the Republican Members of the Committee, had hoped 
to have another witness at the table on the first panel. But, 
unfortunately, scheduling made that impossible for this 
morning, and I regret it. I hope we can have another occasion 
in this series to hear from the people that we had hoped to 
have here.
    But looking fairly at the administration's record does not 
require checking our own sense of justice and our own values at 
the door. To me, safeguarding our air, water, and land is a 
critical American value, and consistently enforcing the law is 
another important American value. Environmental laws, like any 
others, are passed by Congress, signed by the President, and 
the Executive Branch of Government has a responsibility to 
enforce them with the same rigor that it enforces any other 
law. If it does not agree with the laws as written, of course, 
it can come to Congress and seek a change in those laws.
    My own assessment a year into the Bush Administration is 
that we are seeing some very troubling policies regarding 
environmental enforcement, interpretation, and implementation--
tendencies that have real consequences for the air we breathe, 
the water we drink, the water we recreate in, and the land we 
live on.
    I want to highlight three of the patterns that I see 
emerging, based on last week's hearing, on a review of the 
first year of the Bush Administration, which lead me to 
conclude that our existing environmental laws are not being 
adequately enforced. And here I am not talking about the 
debates that are going on, including the debates on the floor 
of the Senate right now, about energy and environmental policy, 
that is, changes in law that are being sought. I am talking 
about the failure to adequately enforce and implement existing 
law.
    First, there has been highly selective implementation of 
our environmental laws. It appears, if I may put it this way, 
that when the administration doesn't agree with a particular 
environmental protection requirement, it finds ways to delay it 
or take the teeth out of it. That might be accomplished through 
changing guidance documents, postponing decisions or seeking 
settlement agreements that weaken existing rules, or using a 
variety of other administrative tactics.
    In last week's hearing, there was some evidence of some of 
those administrative tools, including the moment when 
Administrator Whitman suggested that power plants being sued by 
the Federal Government for violating pollution laws might want 
to hold off on negotiations rather than working to settle their 
cases with EPA while court decisions are pending. 
Unfortunately, the statement comes in a context of a larger 
policy which we heard testified to last week by Mr. Schaeffer. 
Through winks and nods and sometimes more explicit signals, the 
administration seems intent on separating environmental laws 
into two piles--one required and the other optional--and the 
optional is beginning to cast a large shadow.
    Second, I see the administration sending an inconsistent 
message on the authority of States and localities. As a general 
rule, the administration wants to give State and local 
governments more latitude in determining environmental policy. 
However, at the same time, the Federal Government is 
frustrating States' efforts to solve their air pollution 
problems, as we will hear today from Attorney General 
Blumenthal.
    In fact, the administration seems to consult more carefully 
with industry than with anyone else. Now, it is, of course, 
appropriate to consult with industries that are regulated by 
environmental laws, but the voice of industry does not tell the 
whole story. The views, voices, and values of others must be 
given equal weight if our environmental laws are to be fairly 
enforced.
    And, third, the other related pattern I fear we begin to 
see is what might be called a lack of truth in advertising. I 
said at last week's hearing that I was troubled by the false 
promise of innovation and some of the administration's new 
environmental proposals, specifically the vague and inadequate 
clean air and climate change blueprints. I am equally troubled 
by what I see as the administration's inaccurate packaging of 
its enforcement actions which tend to put bright green ribbons 
around packages that don't deserve them. I want to give two 
examples.
    A document delivered at last week's hearing by 
Administrator Whitman entitled ``The Bush Administration's 
Environmental Record: A Year of Accomplishments'' gives the 
administration's view of what it has achieved. The report says, 
``The Bureau of Land Management is focused on increasing 
domestic energy production of both renewable and non-renewable 
energy sources through sound environmental management and 
maintaining its commitment to protect the resources of the 
public lands.''
    In fact, the Bureau of Land Management has clearly 
communicated to its staff that the top priority is to be given 
to non-renewable resources, such as oil, particularly, and gas. 
And the Bureau seems willing to open even sensitive public 
lands to energy exploration. On February 21 of this year, The 
New York Times reported that the Bureau of Land Management 
employees were instructed that the processing of oil and gas 
leases for exploration are the first priority for action by 
local offices.
    The administration's year of accomplishment report also 
says that on May 4 of last year, Secretary Veneman announced 
that she would implement the Clinton Administration's Roadless 
Area Conservation Rule and further reports that a Federal judge 
enjoined USDA from implementing the rule. In fact, the 
administration failed to defend the rule and then implemented 
administrative policies that undercut it.
    So what is therefore crucial is that we focus not just on 
what the administration says but, in fact, on what it does. 
That is the purpose of today's hearing. We are going to hear 
from some people from throughout the country who can tell us 
firsthand what is happening to the air, land, and water above, 
around, and beneath them. We are going to hear, for example, 
from a former commercial fisherman who was forced to retire 
because of pollution in the river that he worked. He has since 
become the river keeper of that body of water. Also from a 
resident of Arizona, who is fighting hard against hard rock 
mining on Federal land because he believes it will do 
irreparable harm to the environment in his community.
    We will hear from others as well, including a great State 
Attorney General from a great State, with, I might add, truly 
great men's and women's college basketball teams.
    Did you find that last statement provocative, Senator 
Thompson?
    Senator Thompson. The most provocative one had to do with 
the women's basketball.
    Chairman Lieberman. Since the last hearing, Senator 
Thompson, as we know, has announced that he is not going to run 
for reelection. There will be occasions, I am sure, to speak at 
more length, but let me just say, since this is the first time 
to be on the record, how much I have enjoyed working with him. 
Fred Thompson is a person of real ability and honor. 
Occasionally we disagree, as we might this morning, but it has 
never become personal. So I am going to truly miss my Ranking 
Member, whom I served under in a previous existence as his 
Ranking Member.
    Anyway, with that, and a certain amount of good wishes to 
Tennessee's basketball teams--but not too much--I call on 
Senator Thompson.

             OPENING STATEMENT OF SENATOR THOMPSON

    Senator Thompson. Hopefully we won't need that much, but I 
appreciate the good wishes, and I appreciate your comments, Mr. 
Chairman. We have had a good relationship, and I think we have 
done some good work here on the Committee. And my losing the 
chairmanship has nothing to do with my decision. I think it is 
in good hands.
    Chairman Lieberman. Thank you.
    Senator Thompson. And I want to recognize the importance of 
the subject that we are dealing with here today, although, as I 
have indicated previously, I think it is a little premature to 
be doing a policy review on any administration's efforts in any 
regard no further into it than we are. Especially in light of 
the fact that they don't even have the full team together.
    But be that as it may, we have had over three decades of 
environmental legislation now, and there is no question that 
our environment is much cleaner than it was 30 years ago. So we 
have done some good things, I think, here in the Congress and 
various Presidential administrations and Members of both 
parties.
    Last week, I believe we learned the Bush Administration has 
in its first year made some meaningful proposals to strengthen 
our environment, especially in its Clear Skies agenda. It has 
also enhanced brownfield remediation, proposed to improve 
drinking water safety, expedited toxic-release reporting, and 
proposed the highest environmental and natural resources 
spending ever.
    We also examined the administration's policy of carefully 
reviewing the flurry of last-minute regulations issued by the 
prior administration on its way out the door. This type of 
review is not at all unusual but, to the contrary, is routine.
    We learned that most of the regulations subjected to review 
have been reaffirmed and promulgated as proposed. In my 
estimation, our initial review last week demonstrated that the 
Bush Administration has gotten off to a good start, despite the 
fact that a number of its nominees to environmental positions 
have not yet been confirmed, impairing its ability to assemble 
its team.
    That is not to say that at the margins it is unfair to 
criticize some particular decision that they have made. The 
overall sense, however, is that this administration falls 
clearly within the ``sensible center,'' as Professor Donald 
Elliott testified last week, the mainstream of domestic 
politics on its environmental policy.
    So I agree on the need for balance and a sensible approach. 
It is easy to look at only one side of the ledger and see 
either assets or debits, depending on which side of the ledger 
you want to examine. Mr. Chairman, as we have learned through 
Enron and Global Crossing, accounting must be done carefully 
with an eye on the total picture. Nowhere is the need for a 
balanced accounting more important than in the environmental 
area. That the need for balance is imperative is especially 
true today given some of the witnesses we will be hearing from.
    If we look only to one side of the ledger, we can see that 
human activity degrades the environment. That has been the case 
since man first harnessed fire. As I tried to emphasize last 
week, if we look only to the debit side of the ledger, we can 
see nothing but trouble. But human activity creates benefits, 
too, for human society. It is not enough to look only at the 
assets either. We need a careful balancing of the benefits and 
the adverse effects of all activities. Only in such a way can 
we develop meaningful environmental policies that will enjoy 
adequate popular support to be sustainable over the long term 
which is needed to achieve real gains in the quality of the 
environment.
    And I really believe that is the case. I do not think that 
we do the long-term goals that all of us who have children and 
grandchildren and want to leave a legacy are interested in, in 
terms of clean water and clean air, if we spend an inordinate 
amount of our time talking about the negativity of the process, 
when we know that there must be a balance. If we spend all of 
our time trying to make the proposition that the more stringent 
the rules, the better per se, that ultimately cannot prevail, 
because, clearly, we could take all the automobiles off the 
road and shut down most all of the factories and make the 
environment better. So logic tells us and experience tells us 
that there must be a balance. But if we spend all of our time 
in one area, then the other side is going to want to spend more 
and more time on their area and denigrate the efforts that are 
being made in the first area. That is not a good way to go.
    If we take the position that any deviation from the prior 
administration's rules and regulations, or whatever they did 
going out the door, after having had 8 years, and that any 
deviation from that is a cutting or a slashing or a raping or a 
pillaging of the environment and so forth, that is going to 
cause the other side of the debate, which we must acknowledge 
is a legitimate side, not an anti-environmental side but a 
balancing side, one that oftentimes says let's look at 
cost/benefit analysis and things of that nature, that is going to 
cause them to overreact, and we are going to be at each other's 
throats and not coming up with some sensible recommendations as 
to how we can serve the legitimate purposes that we must serve, 
how we want to reduce emissions, for example.
    But the question of how much we can and how soon is a real 
legitimate policy issue and policy question, and all the horror 
stories that we might hear about that we might be exposed to 
does not change the fact that ultimately we are a policy body 
and we have to make policy decisions, and it is a balance that 
we must strive for.
    So I fear that what we are seeing now is a criticism of the 
administration, in large part because of what is feared they 
might do based on what someone leaks to a newspaper, winks and 
nods and indicators and so forth, rather than hard policy 
decisions that are illegal or improper or flat bad policy that 
we can debate on here.
    I see very, very little in terms of real taking issue with 
flat-out decisions that have been made. You can't call Christie 
Whitman a wonderful steward of the environment and a great 
public servant, on the one hand, and totally denigrate the 
people that she works with and for, especially in areas where 
she had substantial input, on the other, it doesn't look to me 
like. And as far as her statement the other day in all these 
lawsuits that she can understand why people wouldn't settle the 
lawsuits while the re-evaluation of the policy is going on, she 
is simply stating the obvious.
    I don't know whether she slipped up and stated the obvious 
truth, which is a very dangerous thing to do around here. We 
demand that our public officials do that, and then when they 
do, all hell breaks loose. But, of course, people who are tied 
up in litigation are going to look at the fact that the 
underlying policy which brought about the litigation is under 
review, and legitimately so.
    So I think she is doing a good job. I think that this 
administration, like any other, has different people with 
different views, but I think this administration, like the last 
administration, is trying to struggle for a balance that will 
allow us to make progress on areas that can't be done 
overnight.
    I have been on my own little crusade for the Smoky 
Mountains, trying to do something about the quality of the air 
situation there. I have written the President about it. I take 
a back seat to no one in these areas. But it makes it difficult 
for people like me if all of the criticism comes at one side 
and does not allow me to make my case while still recognizing 
the fact that the plants in that area are not going to be shut 
down. We are not going to ban automobiles from the park 
tomorrow, but there are some things that we can do. How much 
can we do? We have got to make the plants do better. How much 
better? How quickly? I think we have got to do something about 
the automobiles in the park. How much? How quickly? Public 
transportation? Are we willing to take the money that would go 
to some of these other programs around here that we think are 
absolutely vital and put it into a transportation system for 
national parks?
    These are policy debates, so let's keep in mind as we go 
along here that this is not a zero sum game, and that what we 
should be striving for is a balance: On the one hand, strong 
enforcement of current laws for sure, but a recognition that 
just because the rules are more doesn't necessarily mean they 
are better. And just because you take a look at something the 
last administration did going out the door that is not even in 
effect yet, is not even legally the law yet, it does not mean 
that is necessarily a bad thing.
    So I look forward to our witnesses today, Mr. Chairman. 
Thank you very much.
    Chairman Lieberman. Thank you, Senator Thompson.
    We are delighted to have Attorney General Richard 
Blumenthal from the State of Connecticut. I am going to make an 
apology to him and ask his indulgence if I share with you, 
Senator Thompson has heard this story only about 300 times. But 
after I was elected to the Senate and Dick Blumenthal succeeded 
me, there was what I thought was a testimonial to me at which 
one of the speakers said he was quite excited because now 
Connecticut would have not only a better Senator but a better 
Attorney General. [Laughter.]
    And we are very happy to have that better Attorney General 
here.
    Senator Thompson. It reminds me of the story about the guy 
who switched parties, and the comment was he raised the 
intellectual level of both parties. It was a long time ago. It 
is nobody currently. [Laughter.]
    Chairman Lieberman. Anyway, Attorney General Blumenthal has 
been an extraordinarily able, honorable Attorney General who 
has been really persistent in enforcing laws and being an 
advocate for the people of Connecticut. He has also been a 
national leader in a host of different areas.
    So we are honored to have you here today. We look forward 
to your testimony.
    Senator Thompson. You can see what that job leads to. 
[Laughter.]
    Chairman Lieberman. Watch out.

  TESTIMONY OF HON. RICHARD BLUMENTHAL,\1\ ATTORNEY GENERAL, 
                      STATE OF CONNECTICUT

    Mr. Blumenthal. Well, I am very, very honored to be here, 
as I am to be filling the shoes of a truly great Attorney 
General--attempting to fill the shoes of a truly great Attorney 
General. For some reason, I don't tire of hearing that story 
that you just told. But I am honored to be here on this subject 
particularly, rather than women's basketball, which I know is 
probably more controversial, even in this chamber.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Blumenthal appears in the 
Appendix on page 170.
---------------------------------------------------------------------------
    You are absolutely correct, Senator, when you say that 
environmental enforcement is a critical American value. It is 
also a matter of life and death for many people around the 
country, and particularly in the Northeast. As you know, it has 
real financial and human costs. Contaminants such as sulfur 
dioxide and nitrogen oxide from Midwestern power plants--just 
two of the pollutants that are emitted by those plants--cause 
300 deaths and 6,000 asthma attacks in Connecticut alone every 
year, and the toll nationwide is in the range of 10,000 
premature deaths every year.
    So we are really at a crossroads, as you have put it quite 
aptly. We are at a crossroads in enforcement and a place in 
history where we simply cannot afford to compromise those basic 
critical values that are at stake, not just financial but 
really human and health values.
    We have faced and fought this battle together, States and 
the Federal Government, forging a historic partnership over the 
years. Under both Republican and Democratic Presidents, there 
is a strong and proud tradition of bipartisanship among the 
States and with the Federal Government, and we have worked hard 
as a team very successfully to approve and enforce laws such as 
the Clean Air Act and the Clean Water Act, reclaiming our air 
and water from years of disregard and degradation.
    The partnership, a very proud partnership, has produced 
real environmental progress, and as important as the millions 
of dollars that we have recovered in fines or civil penalties, 
the cleanup that we have accomplished, are the judicial orders 
forward-looking in cutting pollution in our States and across 
our Nation, and we have accomplished those victories 
essentially by sharing resources in very resource-intensive, 
costly, time-consuming litigation that are time-consuming and 
costly because we are against billion-dollar corporations that 
have huge amounts of money to spend because they have profits 
gained from disobeying the law.
    If I can leave one message with this Committee this 
morning, it is the importance, the profound significance of 
that partnership, not just in resources but in commitment to 
enforcing the law. We are not talking about setting new policy, 
articulating new goals, but enforcing the law that is on the 
books now passed by the U.S. Congress that deserves to be 
enforced not only because it saves lives but is essential to 
the credibility of our justice system.
    And I say very regretfully that this administration is 
abandoning that partnership, undermining the values and 
effective enforcement, and undercutting the States. The present 
administration has swept aside Federal enforcement of existing 
law, picking and choosing, as you put it, Senator, which laws 
it wishes to enforce depending on which industries are at the 
table at the time. But it has also shut out and shot down the 
States as partners. In fact, we are no longer partners. We have 
neither input nor power. Our seats at the table have been 
occupied by energy interests, the Enrons and Ohio Edisons of 
the Nation, and now behind closed doors.
    So our task going forward is to keep up the battle, as you 
urged Administrator Whitman to do in the last hearing, to keep 
up the battle so that her advocacy within the administration 
can be supported and deserves to be supported because that 
battle is already teetering toward defeat in three critical 
areas. And they are diesel exhaust regulations, new source 
review standards, and air conditioner efficiency requirements.
    I want to briefly talk about those three areas, but just on 
the theory that a picture is worth a thousand words, you have 
before you a chart that shows what enforcement can do. 
Enforcement works. This chart has been prepared by the office 
of my colleague, Eliot Spitzer, New York Attorney General, who 
has been a steadfast leader in fighting for clean air, showing 
how enforcement of the existing laws can dramatically and 
profoundly reduce the levels of nitrogen oxide, sulfur dioxide, 
and mercury in our air. Again, these are graphs based on the 
administration's own numbers, the EPA and Department of Energy 
statistics, that it produced and they are, in fact, if 
anything, conservative estimates showing the different levels 
of achievement that can be realized through enforcement of 
existing law.\1\
---------------------------------------------------------------------------
    \1\ Chart entitled ``The Importance of Enforcement: Pollution 
Reductions Achievable Through Enforcement of Current Clean Air Act 
Compared with Clear Skies (Bush) and S. 556 (Jeffords)'' appears in the 
Appendix on page 480.
---------------------------------------------------------------------------
    Mr. Chairman, on diesel exhaust regulations, we all know 
now the lethal effects of particulate matter that come from 
diesel exhaust, the importance of stopping these kinds of 
emissions, and the administration itself recognized the 
importance when it continued to enforce regulations that were 
promulgated under the previous EPA in 2001.
    The States joined in supporting those regulations. Indeed, 
we intervened in the lawsuit that resulted from a challenge by 
the industry, and now we have found in the midst of that 
litigation that the administration has begun secret 
negotiations on a number of key points, issues that are 
critical to the enforcement and calculation of what levels of 
diesel exhaust will be permitted.
    We went to court, sought to be permitted at the table in 
the course of these negotiations. The EPA objected and the 
court sided with the EPA.
    So we are continuing that battle, and we are committed to 
continue that battle, hopefully with the administration's 
continued support of those regulations, but we need to know 
from the administration whether we will be partners or whether 
we have been abandoned in that litigation where we have 
formally supported the administration in that litigation. So 
here is a very specific, concrete example of the abandonment of 
that historic partnership.
    On new source review standards, we joined with the 
administration, again, in a historic partnership, bringing 
litigation, four separate actions against 16 power plants 
throughout the country, principally in the Midwest and the 
Southeast, because our air is so polluted by these plants that 
we could shut down our power plants and eliminate all our cars 
and our air still would fail to meet the Federal standards. And 
that is true generally of the Northeastern States, which is 
why, again, on a bipartisan basis we have been united in 
support of the administration.
    It now has embarked on a review of the Clean Air Act 
regulations that undermines and undercuts its own position in 
those lawsuits, indeed its authority in settlement negotiations 
that are on the verge of success with two companies--Cinergy 
and Dominion--that would historically change the way that they 
do business environmentally; and particularly with Dominion, 
that result is tragic because it undermines the credibility of 
both the Federal Government and the States in that litigation.
    We will continue that battle. We are committed to continue 
in court. We are committed to sue the Federal Government, if 
necessary, to uphold the Clean Air Act if it eviscerates new 
source review in the course of its continuing review. But in 
the meantime, we have been shut out of the review process. We 
have been consulted in a very cursory and superficial way. We 
have met once with the administrator, but she could not--either 
because she didn't know or didn't feel at liberty to do so--
give us specific information about the direction the 
administration was heading. And we will continue and keep up 
that battle, we hope, again, with the administration on our 
side.
    Finally, on air conditioner efficiency requirements, again, 
we have gone to court, this time against the administration 
because it has violated the law, the Energy Policy and 
Conservation Act, in its modification and weakening of the 
seasonal energy efficiency ratio standards that were 
promulgated first in a way that was acceptable, and then 
tremendously diluted by the administration--first delayed, and 
then diluted, without consulting, again, the States or 
providing proper notice and comment opportunities for the 
public.
    The litigation there is now pending. It has again involved 
a number of Northeastern States, and the very unfortunate 
lesson that we are learning is that there is a pattern here. 
Again and again, States and environmental organizations are 
disregarded and dismissed, publicly dispatched rather than 
treated as partners; industry leaders are invited privately to 
the table as new partners; and the net effect is to weaken and 
eviscerate enforcement of our environmental standards.
    And I should just say in closing, these are not novel laws. 
The Clean Air Act has been on the books, as you well know, for 
decades and has been violated blatantly and flagrantly for 
decades by power plant operators that have upgraded and 
expanded without adopting pollution control technology that is 
fully available and affordable, as the settlement with Dominion 
shows. And these levels of pollution reduction are practical 
and achievable. They would not impose undue costs. They are a 
balanced and sensible approach to environmental enforcement.
    Thank you very much.
    Chairman Lieberman. Thank you, General Blumenthal, for a 
very thoughtful statement. I appreciate the time you took to 
come here and the time you took to prepare the statement.
    You have made a case, as I listened to you, that there has 
been a measurable change in the involvement of the States in 
partnership with the Federal Government. And yet, on the other 
hand, both last week in our hearing and in other statements, we 
heard this administration say that they want to turn more 
enforcement over to the States.
    I wanted to ask you first to comment on the latter, which 
is, have you seen any indication of that? And, of course, we 
expressed some concern about budget problems at the State level 
which are making it harder for the States to pick up that 
enforcement.
    Mr. Blumenthal. I have seen no evidence that the 
administration is constructively delegating authority to the 
States. It may be abandoning and abrogating its own enforcement 
authority. But it is simply leaving a vacuum that the States 
are seeking to fill without help in resources from the Federal 
Government. And the problem of resources is a very real one at 
the State level, just as it is at the Federal level. The EPA 
budget has been cut, but all the more reason that the States 
and Federal Government should continue their partnership.
    The new source review litigation is a classic example of 
how resources can be pooled and how this relationship can be 
mutually supporting and very effective in the courtroom, even 
in preparation for litigation, in depositions and document 
searches and review. And so resources are a real challenge, and 
all the more reason that the partnership is a necessary part of 
enforcement, and I think was envisioned by Congress to be so.
    Chairman Lieberman. How, ideally, would we divide 
responsibilities in the partnership? I know that is a big 
question, but I will proceed. Are there certain areas where the 
Federal Government is better suited to handle enforcement than 
the States, for instance?
    Mr. Blumenthal. I think that the Federal Government ought 
to be responsible for setting standards and assuring uniformity 
in those standards nationwide, as it has done on new source 
review, on the diesel exhaust regulations, on the SEER 
regulations, because there is an interest on all sides in 
uniformity and assurance that there won't be piecemeal 
enforcement of either those regulations or the States' 
regulations. But I think the States have a very legitimate role 
in enforcing and participating in those cases, even where 
national regulations and laws are involved, and there ought to 
be room for State initiative. The States ought to be permitted 
in some areas to set a higher bar or standard where they have a 
particular interest, for example, in Long Island Sound or in 
other critical bodies of water. And I think that there are ways 
to tailor those regulations to fit those local needs without 
obstructing the national standards.
    Chairman Lieberman. Well, that is a good answer. Let me 
just ask you about one or two of the specifics you mentioned.
    On the diesel emission standards, I remember when the 
administration--I guess it was Administrator Whitman who said 
that she would stick by the position. That was last year, and I 
think she said she gave it a green light. I and others praised 
her for it. But now, obviously, you are concerned about what is 
happening in the lawsuits that are going on.
    Let me ask you to try to describe what interests and rights 
of the people you represent in Connecticut are compromised by 
the extent to which you have not been allowed to be at the 
table in the discussions that are going on regarding the diesel 
emission standards. In other words, why does it matter?
    Mr. Blumenthal. Well, it matters in a number of ways, 
Senator, and that is obviously a very good and pertinent 
question to the reasons that we became involved in the first 
place in support of the Federal Government. A number of 
States--Delaware, Pennsylvania, New York, Rhode Island, 
Maryland--and a number of environmental organizations 
intervened in that lawsuit, National Petrochemical and Refiners 
Association v. EPA, because we wanted to jointly be involved in 
supporting those Federal standards. And the standards 
themselves are critical to reducing the particulate matter that 
is so lethal to our citizens, and citizens of those other 
States. It is more than just an abstract or conceptual problem. 
It is literally a matter of life and death.
    So we have a real stake in this fight, and we have a stake 
in the standard that is applied to those emissions. Right now 
we understand--we don't know because we are not at the table--
but we understand that the discussions are about the Federal 
Test Procedure standard versus the NTE standard. The Federal 
Test Procedure standard we think is lacking in a number of key 
areas when it is applied to vehicles that are actually on the 
road.
    So we think that we have a real stake in the outcome of 
those discussions, and that is the reason that we asked the 
court to intervene. It declined to do so. And we were 
particularly astonished that the EPA opposed our motion to be 
at the table because it affected the arguments that would be 
made in court by all the parties, including the intervening 
parties, the States. So it very directly affects the health of 
our citizens and the credibility of our position in court as to 
whether we are actually there talking about these very 
important issues.
    Chairman Lieberman. What was the stated reason why EPA 
opposed your attempt to intervene?
    Mr. Blumenthal. Well, they didn't oppose our petition to 
intervene. They supported intervention. But they opposed--they 
filed objections to our motion to the court to be involved in 
the discussions because they said they ought to have discretion 
to conduct these negotiations. It was a vague and very 
unsatisfactory answer.
    Chairman Lieberman. Whereas I presume what you are saying 
is you do not feel that the interests--in this case, the public 
health interests--of the people of Connecticut would 
necessarily be adequately protected by the national action, 
that there are some special circumstances that you feel ought 
to be represented and argued at the table?
    Mr. Blumenthal. Each of those States, whether Pennsylvania 
or Delaware, New Hampshire, Rhode Island, Maryland--and the 
others that are involved in these other litigations have a 
unique perspective, a particular history of environmental 
involvement, a particular set of impacts that they can bring to 
the courtroom as well as to the negotiating table, and a set of 
interests and values to protect. And so they have committed 
their resources and their State governments to this cause, and 
I think have been welcomed in that respect by the Federal 
Government, until now, because until now the Federal Government 
welcomed us as a partner.
    Chairman Lieberman. Thanks. My time is up. Senator 
Thompson.
    Senator Thompson. Thank you, Mr. Chairman. Thank you, 
General Blumenthal.
    Let's go through some of these things in a little bit more 
detail. I want to make sure I understand this correctly.
    On the diesel engine, diesel fuel emissions issue, as you 
pointed out, I think in February, the administrator quickly 
affirmed the midnight rule that Clinton left them, and the rule 
proceeded on schedule, and there was no delay in the effective 
date. And the Administrator at that point apparently was 
bragging--I don't mean that in a negative sense, but showing 
her support and pointing out that it will reduce air emissions 
from large trucks and buses and sulfur levels in diesel fuel 
and have a significant effect on health, the same things you 
were pointing out, save as many as 8,300 lives a year, prevent 
up to 360,000 asthma attacks. It sounds like they were touting 
that pretty vigorously.
    And now the lawsuits challenging this, as I understand it, 
are in court, and they have been--what?--postponed for a while, 
while settlement discussions are going on.
    Mr. Blumenthal. I don't think they have been postponed, 
Senator. In fact, one of the key motions was argued just a week 
or so ago, in late February.
    Senator Thompson. So the cases are ongoing, but----
    Mr. Blumenthal. Very much ongoing.
    Senator Thompson [continuing]. Your understanding is that 
settlement negotiations are going on.
    Mr. Blumenthal. On some of the key issues that relate to 
enforcement.
    Senator Thompson. Well, do you know what the settlement 
negotiations are covering?
    Mr. Blumenthal. In direct answer, we think we know, but we 
don't have direct knowledge, to be very candid, because we are 
not in the room. We are not at the table. We can go only by 
secondhand information, which is one of the problems that I am 
bringing to your attention.
    Senator Thompson. They wouldn't be very secret if you knew 
what was going on, really, would they?
    Mr. Blumenthal. Well, we couldn't say if they were secret--
--
    Senator Thompson. They wouldn't be secret----
    Mr. Blumenthal [continuing]. But there are a lot of secrets 
in this world, particularly in, I should say, the courtroom and 
maybe in Washington that are better known than others.
    Senator Thompson. My understanding was that after oral 
arguments the other day, EPA met with State and environmental 
groups. Were you a part of that meeting?
    Mr. Blumenthal. I wasn't there, but I know about it.
    Senator Thompson. OK. Do you know what went on at that 
meeting?
    Mr. Blumenthal. I know generally what went on, Senator.
    Senator Thompson. What is your understanding the purpose of 
the meeting was and what happened there at that meeting?
    Mr. Blumenthal. There was a general exchange of 
information, but I don't think there was the level of 
involvement that we would expect of a partner dealing with 
another partner.
    Senator Thompson. Is there any particular reason why you 
were not there? I mean, I assume it would be attorneys general.
    Mr. Blumenthal. We had representatives there. There is no 
particular reason why I personally wasn't there----
    Senator Thompson. Someone from Connecticut, your state----
    Mr. Blumenthal [continuing]. Other than scheduling.
    Senator Thompson [continuing]. Was there? And you weren't 
satisfied with the level of what they were doing, but, again, 
what were they doing?
    Mr. Blumenthal. The issue, Senator, if I may respond, is 
larger than one meeting.
    Senator Thompson. Well, but I am asking you about a 
particular meeting, and then you can talk about the larger 
picture. My understanding was that after the oral arguments, 
you had a meeting. The complaint has been that there have been 
secret discussions with industry to weaken the diesel fuel 
rule. The EPA has said no, there are no discussions like that 
going on, and they had a meeting and brought some of you folks 
in and environmental groups in after oral argument to explain 
to you what was going on. And you are getting secondhand 
information as to what went on, and maybe they didn't tell you 
as much as you would like to know, or maybe they didn't tell 
you what you wanted to hear. But that was the purpose of the 
meeting, wasn't it?
    Mr. Blumenthal. Well, let me respond this way: The meeting 
was to provide us with information about negotiations that were 
ongoing without our participation. The litigation is ongoing 
with our participation. Rather than having a briefing session 
or an exchange of information, we think we ought to be at the 
table, in the room, participating in the negotiations. And I 
can say for myself that I was not happy with the extent of the 
information that was communicated or with the position that the 
Federal Government is taking in potential compromises that will 
vitally affect the citizens of my State and perhaps others who 
have intervened in this action.
    Senator Thompson. What do you fear that they are going to 
compromise?
    Mr. Blumenthal. As I mentioned earlier, on----
    Senator Thompson. The standards themselves or----
    Mr. Blumenthal. On the measure that is used to calculate 
the emissions. The two testing methods for calculating those 
emissions, as you know, Senator, are the FTP, the Federal Test 
Procedure standard, and then there is what we consider to be a 
preferable one, the NTE standard, which tests a broader range 
of normal driving conditions. And these issues are enormously 
complex, and I have to confess I may not be as fully conversant 
with them as you or other people in the room or the litigators 
on my staff who represent the State of Connecticut, but I think 
they are absolutely critical and they can be put very starkly 
and simply in terms of enforcement that the FTP procedure is 
lacking in a number of key respects.
    Senator Thompson. Well, it does look like that you and the 
EPA are together, though, on what is going on. I think that 
somewhere along the line they have been able to impart to you 
what is happening, that it is not about the standards 
themselves they are negotiating. A lot of the discussion, I 
think, has been that they are secretly going to lessen 
standards or something, but I think you correctly point out it 
is not about the standards themselves, but EPA has said 
publicly--and I assume informed you--that they are apparently 
discussing the testing methods. As you point out, there are a 
couple of different methods, and you are concerned that they 
are going to agree to use one when, in fact, they should be 
using another.
    Mr. Blumenthal. And I don't mean to sort of engage in a 
semantical debate, but obviously there is a point at which 
different standards have enormously and profoundly significant 
effects in terms of enforcement. The levels of particulate 
matter that are permitted depends on which of these standards 
and testing procedures is used, and I would come back to the 
statement you made earlier, Senator, which is that the 
administration, I think, deservedly touted its adherence to 
these regulations. We ought to be together, not just in a 
private meeting after the negotiating session, but in the room 
when these key points--and this testing issue is only one of 
them--are discussed and debated and possibly resolved.
    Senator Thompson. Well, I can understand your desire to 
want to be involved in all the details of it, and my time is 
up. But I wanted to go down these issues because I think it is 
important to compare the broad statements that we hear 
sometimes that the administration is rolling back all the 
regulations, they are abandoning enforcement, and States are no 
longer a part. And then when you get down to it, you are 
finding out--that they are not engaged in secret negotiations 
to undercut the rules and everything. When you get right down 
to it, what you find out is that they are doing like they do in 
most cases, and that is, somewhere along the line they engage 
in negotiations with the party on the other side, and it has to 
do with something that I am sure is important, as you point 
out, like a lot of things are important, has to do with the 
testing methods by which these automobiles go through in order 
to see how they live up to the standards, not the standards 
themselves.
    So, frankly, I think the broader statements, accusatory 
statements sometimes I think are not supported, frankly, when 
you get into the details of some of these issues that you are 
talking about. That doesn't mean to denigrate the fact that 
they are important to you and all of that, but I wish we could 
spend more time on the details of some of these things that we 
are concerned about and understand there are two sides to every 
lawsuit, and different people looking at things different ways 
create lawsuits, and not so much time on these broad accusatory 
statements.
    Thank you very much.
    Chairman Lieberman. Thanks, Senator Thompson.
    I must say, just to add a word, having been here a while 
now, that in the 1990 consideration of amendments to the Clean 
Air Act, there was a lot of time spent, and argument and 
discussion ultimately before we passed it, arriving at the 
standards for emissions, including diesel. It was important 
stuff, I see your intervening in the lawsuit as continuing 
exactly that battle. It does relate, from our perspective 
anyway, to public health, according to the statistics you have 
indicated.
    I wanted to ask one more question, just because it is a 
different kind of case. Can you talk about the energy 
efficiency ratio for air conditioning and why the State of 
Connecticut and the other states that you are allied with here 
support a higher level of efficiency than the administration 
seeks? What is the status of that particular battle?
    Mr. Blumenthal. In that battle, Senator--and both you and 
Senator Thompson are absolutely right, the devil here is in the 
details. And the details are enormously important, and I have 
sought in my written testimony to focus on some of those 
details. And with the Seasonal Energy Efficiency Ratio, the 
details are enormously important. Going from SEER 13, which was 
the original formulation, to SEER 12, in effect, eliminates 
one-third of the improvements in that ratio. There is no 
question that SEER 12 is a 20 percent improvement; SEER 13 is a 
30 percent improvement. But the consequences for Connecticut 
and indeed for the Nation are less energy savings, more 
pollution, and higher costs for consumers. And those are 
measurable. Indeed, the regulations issued initially set forth 
specific numbers that are based on incontrovertible data from 
EPA and the Department of Energy as to the number of plants, 
four coal-burning plants that wouldn't have to be built, other 
gas-burning plants that would not have to be constructed to 
meet the energy needs that will be saved by those air 
conditioning standards--a highly technical area where the 
details are, again, a matter of life and death, as well as huge 
financial costs, in Connecticut, in the Northeast, and around 
the country.
    One of the most telling statistics relates to the amounts 
of savings that could be realized, for example, in a State like 
Ohio in the Midwest, which has a great many of these coal-
burning plants and could save lives and money through 
implementation of these standards.
    So I think the delay, first delay and then the weakening of 
these standards not only contravenes the law, but also good 
public policy, and right now there is a motion for summary 
judgment in that case that will be argued on March 28. The case 
is pending in the Southern District of New York. We hope we 
will prevail on behalf of not only Connecticut but New York, 
New Jersey, Vermont, Maryland, Nevada, Maine, and, again, 
joined by a number of environmental advocacy organizations that 
no doubt you have heard from in the course of these hearings.
    But the real problem is that we would have been supporters, 
and we were partners in this process up to the point that there 
was delay and then weakening of the standards, and so there is 
a real stake on our part in continuing this battle.
    Chairman Lieberman. Thanks very much, and as a citizen of 
your State I urge you on.
    Would I be correct to say--I am not familiar with the 
particular attorneys general--that not all of them are 
Democrats who are involved in this lawsuit?
    Mr. Blumenthal. In all of these lawsuits, there is truly a 
bipartisan effort, and this cause is a bipartisan one that has 
involved Republicans and Democrats, attorneys general and 
governors, for that matter, at the State level.
    I think that the States have a stake in these issues that 
we see, feel, hear, breathe every day. And it is not an 
abstract or novel issue for us, and we see ourselves as very 
simply enforcing good law, very good law that this Congress has 
passed over the years.
    Senator Thompson. Could I ask a couple of questions?
    Chairman Lieberman. Yes.
    Senator Thompson. On this particular issue, you mentioned 
the SEER, as I understand it, Seasonal Energy Efficiency 
Ratios, that air conditioners and heat pumps are measured by, 
their energy efficiency. Just to make sure I understand, in 
1992, the energy efficiency standard for air conditioners and 
heat pumps was at 10. And in October 2000, the Clinton 
Administration proposed a rule for SEER air conditioners for 12 
and SEER for heat pumps to 13.
    When the final rule came--they had comments and 
discussions, and so when the final rule came about, the SEERs 
for both were raised to 13. They had originally proposed 12 for 
air conditioning, but that wound up in the final rule as 13.
    Upon completion--this is another one of the rules in 
controversy. You have a procedural issue here that you claim 
the prior administration's publication was a final rule and it 
can't be changed, and this administration says the rule was 
suspended well before the final rule came into effect and so 
forth. That is the procedural issue, as I understand it.
    But the DOE issued a supplemental proposed rule in July 
2001 to withdraw the Clinton Administration's final rule and 
replaced it with a proposal to raise the SEER, or the current 
SEERs, which I guess are still at 10, to raise them to 12. And 
the comments have come in and hearings were held.
    Is that your understanding of the history of where we are?
    Mr. Blumenthal. That is roughly the procedural issue. As 
with any procedural issue, I could make it more complicated or 
less so, but essentially where we are now is that--you are 
quite correct, Senator--comments were submitted in October, and 
we brought our lawsuits at about the same time last year.
    Senator Thompson. It looks like the proponents of both the 
12 SEER and the 13 SEER can make compelling arguments because 
of the broad criteria by which these standards are judged. The 
Energy Policy Act sets forth a long list of criteria, including 
economic impact of the standard on manufacturers and consumers, 
whether the increased capital cost of the appliance will on 
average be offset by decreased operating costs. It is a pretty 
complicated kind of procedure that they have gone through where 
reasonable people, I would assume, could disagree.
    But apparently proponents of the 13 standard tout the 
energy savings, and proponents of the 12 standard point to the 
disparate economic impact on low-income consumers and smaller 
manufacturers, and that is kind of where the issue is, as I 
understand it.
    I don't know enough about it to know which one is correct, 
but it looks to me like it is hardly the end of the world, and 
it is something that good people on both sides can disagree on 
in good faith. Hopefully it will be resolved correctly.
    But, again, complicated criteria, a long list of criteria. 
It is in the courts, competing interests and balance, very 
valid, legitimate interests on both sides of the issue. And if 
they are 10 now and it is going to be resolved between 12 and 
13, it sounds like that we are on the right track.
    Thank you very much.
    Mr. Blumenthal. If I could just respond, Senator, I hope we 
are on the right track because I hope it will be resolved at 
13, since at that level the energy savings really would more 
than pay for the initial costs of the equipment. The debate has 
been about the costs of installing this new equipment.
    Senator Thompson. There has been concern about low-income 
consumers and small manufacturers.
    Mr. Blumenthal. And the point is that over a very short 
period of time, the efficiencies, as the term implies, would 
more than pay for those additional costs. And that is the 
reason that the prior administration, after very lengthy and 
protracted consideration of all of these issues and attempting 
to balance them all, reached the rule that it did. And our 
point is that this administration simply changed the rule 
without any of that kind of deliberate and considered, 
thoughtful weighing of those considerations with the process 
that is required under Federal law.
    Senator Thompson. Well, I had thought that they issued a 
supplemental proposed rule July 25, 2001. I don't know what 
happened during that period of time, but they had a few months 
in which to deal with it. I mean, they are being called on the 
carpet now to review their entire policy after not a whole lot 
more time than that. So it looks like we can't have it both 
ways. Either 6 months or a year is a long time or a short time. 
I don't know which. But it wasn't January or February 2001 that 
they made this, but July 25.
    Mr. Blumenthal. The rule was to take effect in early 2001, 
but it was delayed, and we say illegally delayed, on two 
occasions and then, as you point out quite correctly, issued in 
final form July 25, 2001.
    Senator Thompson. Well, I don't see any need to belabor 
this point. I think the word ``illegal''--I think you have 
procedurally--I think you have the worst of the argument in 
saying that it was illegal. The court will determine that. But 
when the rule became final and all that is something for a 
court to decide. Their position is that it was suspended before 
the 30-day period ran and, therefore, it was not a final rule. 
And they can change it any time--they were left with a bunch of 
rules in various stages of finality when they took office, and 
they wanted to look at some of them, and most of them they went 
ahead and approved, and some of them they wanted to hold up. 
And there is litigation now along the way as to the various 
points in which they stop some of these things. You know, that 
is what makes lawsuits.
    But, again, these things will be resolved in due course. 
Thank you.
    Chairman Lieberman. Attorney General Blumenthal, thanks 
very much for your testimony. It has been very relevant to the 
purpose of the hearing. It has been extremely well informed, 
and you hung in there with some tough questioning by Senator 
Thompson.
    I must say as your friend, I haven't had a chance to watch 
you in this forum before; I was very impressed.
    Mr. Blumenthal. Well, thank you very much, Senator.
    Chairman Lieberman. I wish you well.
    Senator Thompson. So was I, General.
    Mr. Blumenthal. Thank you. [Laughter.]
    Chairman Lieberman. Thank you.
    We will call the second panel now: Richard Dove, Kenneth 
Green, Donald Newhouse, Hope Sieck, and Stephen C. Torbit.
    Thank you all for being here. Mr. Green, I like your tie.
    Mr. Green. Thank you, Senator.
    Chairman Lieberman. And I hope it shows well on television. 
I think it will.
    Mr. Green. All credit goes to my wife on tie selection.
    Chairman Lieberman. As is usually the case with most of us, 
right?
    Richard Dove is the Southeastern Representative of the 
Waterkeeper Alliance. I thank all of you. You have come really 
from near and far, mostly far. So your presence here is greatly 
appreciated, and we look forward to hearing from you now.
    Mr. Dove, why don't you go first?

 TESTIMONY OF RICHARD J. DOVE,\1\ SOUTHEASTERN REPRESENTATIVE, 
                      WATERKEEPER ALLIANCE

    Mr. Dove. Thank you, Mr. Chairman. On behalf of the 
Waterkeeper Alliance and its more than 80 Waterkeepers across 
the country protecting American waterways, I want to thank you, 
Mr. Chairman, for the invitation to come here and address this 
Committee. It is a very important matter to me, personally, and 
to people across America.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Dove appears in the Appendix on 
page 176.
---------------------------------------------------------------------------
    I started out by going into environmental work when I 
retired from the Marine Corps in 1987, when I became a 
commercial fisherman, fishing with my son. It was a childhood 
dream. The Neuse River--Neuse means ``peace''--is a beautiful 
river that flows by my house. With more than 600 crab pots, and 
thousands of feet of gill netting, and a seafood store, and a 
number of boats and crews, my son and I fished that river----
    Chairman Lieberman. Just for the record, indicate where the 
Neuse River is.
    Mr. Dove. I am sorry, Mr. Chairman. The Neuse River runs 
some 250 miles from Raleigh, North Carolina, through New Bern 
and out to the coast. We fished that river, and things were 
fine for a while. Then the fish began getting sick. They had 
open, bleeding lesions all over their bodies. The same thing 
happened to the fishermen--to me and my son. Unfortunately I 
had to leave commercial fishing.
    I went back to practicing law for a while until a job at 
the Neuse River Foundation opened up, and I became a 
riverkeeper. For some 8 years, I served as a private citizen 
out on the river being paid by a nonprofit group to take care 
of that body of water on behalf of its true owners, the people 
of America. In that 8 years, I learned an awful lot. I come to 
you today, sir, not as a tree hugger, and I do not kiss fish. 
My role really is in understanding the environment and its 
meaning to us economically, as well as in every other way.
    There is one particular kind of pollution I want to address 
today. I want you to imagine for one moment the City of New 
York, the City of Los Angeles, or any other large city in 
America taking the fecal waste produced by all the people in 
that city and storing it in their parks in open lagoons. And 
when the lagoons filled up, it would run down the street, into 
the storm drain and into the water.
    Fortunately, that does not happen in America because 30 
years ago the Clean Water Act was passed. When that Clean Water 
Act was passed, laws were put in place to prevent 
municipalities treating human waste in that way. Fortunately, 
at the time, Senator Dole, who was very instrumental in getting 
the Clean Water Act passed, added a provision that added CAFOs, 
Confined Animal Feeding Operations, to that law. That law says 
that these operations are factories, that they are to be 
treated like factories, and they must have National Pollution 
Discharge Elimination (NPDE) permits. That means they are 
required to treat their waste in essentially the same way as 
cities.
    Thirty years later, Senator, across America, in particular 
North Carolina, animals are being raised in meat factories, not 
by farmers.
    Chairman Lieberman. Explain, just for a moment, the 
difference that a Confined Animal Feeding Operation is not a 
farm, as we would normally know it.
    Mr. Dove. Not at all, sir, and America is waking uo to 
that. Here is the difference. In the past, animals were raised 
by farmers across America for the supermarkets. They were 
raised on small family farms spread out all over the country. 
Their animal waste was spread out all over the country, but 
what the industry did is ``citify'' the animals.
    They brought them into little confinement buildings. They 
never see the light of day. They do not breathe fresh air. Many 
are put in tiny cages so small they cannot turn around. They 
are raised in their own stench. This is the treatment the 
animals receive in these facilities.
    When you confine animals or you ``citify'' them, you have 
to do the same thing for animals you do for people. You have to 
provide wastewater treatment facilities. But this industry has 
somehow been able to escape treating their animal waste. 
Whether it comes from people or pigs, it is the same. The 
technology needed to treat it is a wastewater treatment plant. 
It is very expensive. If you live in the country, you can get 
away with an outhouse. If you come into a city, you cannot. But 
this industry has avoided the law. The law has never been 
enforced to require this industry to get NPDE permits and to 
treat their waste with wastewater treatment plants, the same as 
we do human waste.
    In Eastern North Carolina, east of I-95, we have 10 million 
hogs. According to a formula of Dr. Mark Sobsey, a hog produces 
10 times the feces of a person every day. If you take a look at 
the amount of fecal waste being produced in the very 
environmentally sensitive area of the coastal plain of North 
Carolina, it would take all of the people in the States of 
North Carolina, California, New York, Texas, Pennsylvania, New 
Hampshire, and North Dakota to equal what hogs, just hogs, are 
producing in Eastern North Carolina.
    When I became the Neuse riverkeeper, I sought out the 
sources of pollution in my river. There are many. Hogs are not 
the only one. Nutrient pollution was the No. 1 culprit causing 
the problems, and most of it was coming from these animals.
    Getting to the final line, Senator. We had finally began to 
make some progress. The Natural Resources Defense Council had 
sued the EPA and had won a judgment, and under the Clinton 
Administration, we began to see new regulations coming out of 
the EPA that would at least make the situation better, but now 
those regulations are being revisited by the EPA and being 
revisited in a way, and the testimony--I mean it is so 
detailed, it is all in my written testimony--but they are 
revisiting it, and that will weaken their regulations.
    I have looked at President Bush's regulations and what he 
did in Texas on the animal pollution and welfare issues. If you 
look--I think it is page 99 of my brief--that record is a 
frightening record. Citizens across America are suffering from 
health problems, because they are forced to live with the 
animal stench every day. Fishermen who fish the waters see this 
animal waste running down the rivers. We cannot back off from 
tight regulations. The law is the law. The Clean Water Act says 
that animal factories must treat this waste. They cannot be 
allowed to get away with dumping this waste into the 
environment by using spray fields any more. I do not think my 
President gets it, sir.
    There is a nexus between a healthy environment and a strong 
economy. We will not have a strong economy over the long haul 
by giving away our natural resources to polluters in the short 
term for economic gain. The environment in our country is the 
house in which we live. If we do not protect it, we do 
ourselves in.
    Thank you, sir.
    Chairman Lieberman. Thank you, Mr. Dove. Thanks for your 
testimony.
    I do want to indicate to you and all of the witnesses that 
the full testimony that you have submitted in writing will be 
printed in the record. I appreciate the time that you took to 
prepare it. It is really quite impressive. I will have some 
questions for you after we hear from the other witnesses.
    Now Dr. Kenneth Green, chief environmental scientist at the 
Reason Public Policy Institute.

   TESTIMONY OF KENNETH GREEN,\1\ PH.D., CHIEF ENVIRONMENTAL 
           SCIENTIST, REASON PUBLIC POLICY INSTITUTE

    Dr. Green. Thank you, Mr. Chairman.
---------------------------------------------------------------------------
    \1\ The prepared statement of Dr. Green appears in the Appendix on 
page 276.
---------------------------------------------------------------------------
    I am, as you said, with the Reason Public Policy Institute, 
a project of the Reason Foundation, which is a nonprofit, 
nonpartisan policy, research and education institution 
headquartered in Los Angeles.
    My interest in environmental policy originates quite a ways 
back, in fact, over 27 years ago, to the year when I was 
diagnosed with asthma, living in California's smoggy San 
Fernando Valley. Actually, diagnosed is not the right word. I 
was running the 600 1 day, and my lungs locked up about 450 
yards in, and I staggered across the finish line and collapsed, 
wheezing like a freight whistle. From then on, I was one of 
those kids that was in corrective PE. I got to sit and play 
checkers and caroms watching everybody else out on the gym 
field.
    The smog in those days was so thick you did not actually 
have to watch the weather the night before to know there was 
going to be a smog alert, and you didn't have to have 
epidemiology studies to tell you what it was doing to your 
lungs. It was quite obvious.
    Growing up with asthma taught me how important it is to 
have a healthful environment and how radically environmental 
health hazards can impact the lives of our children. But 
growing up with asthma was not my only formative experience.
    My father died when I was very young, and after a short 
stint with an abusive second husband, my mother decided to 
raise her two sons by herself in Los Angeles. It was a very 
brave decision that started out very well at a small sandwich 
shop she opened with a friend, but they ran straight into the 
teeth of the 1970's recession. As local building projects were 
canceled, the business failed. And as rents inflated and 
salaries stagnated, we were bumped from apartment to cheaper 
apartment.
    I went to four different elementary schools in only 2 
years. My mother's health, one too good to begin with, was not 
helped by the stress of fighting to make it in an economy that 
was fighting against her. We managed to stabilize things by the 
time I was 13, when my Bar Mitzvah brought me back a certain 
amount of my outdoor liberty. Though it will no doubt horrify 
some listeners here today, that is when I took my $200 in Bar 
Mitzvah money and bought a small off-road motorcycle, a Yamaha 
80cc Endura motorcycle.
    Camping was the one recreation we could afford, and though 
I couldn't hike, even in the clean air of the mountains or the 
desert, I could ride, and boy did I ride. That bike took me 
places that would make mountain goats nervous. It let me 
indulge my budding love for nature in ways that would have been 
impossible to me without that motorized assist.
    My love for things natural took me ultimately through my 
doctorate in environmental science and engineering at UCLA. My 
smoggy childhood taught me these lessons I have never 
forgotten. Environmental quality is a vital good, a sound 
economy is a vital good, and the freedom of mobility and the 
ability to develop oneself are vital goods.
    My subsequent studies taught me, fortunately, that one does 
not have to trade one of these for the other. Indeed, studying 
environmental science and policy convinced me that choice and 
economic competition were not the enemies of the environment; 
rather, choice, competition and technological progress are the 
wellspring of safety, health, and environmental quality in our 
country.
    I have spent the years since my graduation looking for 
approaches to environmental problems that embody the wisdom of 
environmental science that are holistic, flexible, and 
cooperative. Such approaches that tap into local knowledge are 
not only more likely to produce results, they are less likely 
to breed angry litigation, the ultimate waste of resources we 
need to invest in environmental quality.
    There is a big debate right now over the Bush 
Administration's approach to environmental policy. The 
arguments from those in opposition seem to embody the old 
1970's ``us versus them'' mentality that holds voluntary, 
cooperative, and locally-derived approaches to solving 
environmental problems to be inherently inferior to centralized 
command-and-control approaches driven from Washington, DC.
    It is not my job to defend the Bush Administration. I am 
sure they have got plenty of able-bodied defenders. It is my 
job, as a policy analyst, to defend an approach to 
environmental protection, however, that can move society out of 
the bitter, recriminating, legislative, regulatory, and 
judicial battles that have turned environmental policy and 
pursuit of environmental quality into a battlefield, rather 
than the shared journey it could and should be.
    Now I don't deny that the regulatory approach did 
considerable good. We have virtually eliminated open dumps, our 
air is constantly cleaner, we have reduced pollution in our 
surface waters, and thankfully they no longer burst into flame, 
though we have a ways to go on cleaning up the Nation's surface 
waters.
    But the low-hanging fruit is pretty much plucked. The 
environmental problems that remain are not the simple ones of 
the past that yield to blunt-object approaches. Today's 
problems require all of the creativity that can be brought to 
bear from the people with the local knowledge of the problem 
and the technologies and behaviors that might ameliorate those 
problems, with them all working together, rather than fighting 
it out in courtrooms, where--if you will forgive me--only 
lawyers benefit.
    So let's review a few of the voluntary cooperative and 
locally-derived environmental approaches that have gotten 
results without the negative baggage of command-and-control 
regulation.
    First, let's consider the air. Under the traditional 
permit-based approach to cleaning the air, Massachusetts found 
itself in an uncomfortable position in the 1990's, regulating 
some 10,000 businesses through 16,000 separate permits. Some 
4,400 of those permitted facilities were small mom-and-pop 
businesses that, combined, only emitted about 5 percent of the 
State's total pollutant emissions. So the State looked for a 
better way.
    Under the Massachusetts Environmental Results Program, a 
voluntary approach was tried. Participating firms agreed to 
comply with a set of industry-wide whole-facility standards 
developed in cooperation with the Massachusetts Department of 
Environmental Protection. Signing on to this voluntary, 
mutually agreeable standard would gain the small businesses of 
Massachusetts freedom from the equipment-based permitting 
process that kept them mired in the regulatory morass, and the 
program worked.
    In the first few years alone, the program resulted in a 43-
percent reduction in fugitive emissions from participating dry 
cleaners and a 99-percent reduction in silver discharges by 
photo processors.
    A similar program was implemented in New Jersey, which set 
emission caps on participating firms, but let those firms 
achieve their emission reductions in whatever ways they found 
were most efficient and effective.
    For one firm, the old source-by-source permitting processes 
had generated 10 full binders of paperwork. The new system 
replaced 80 separate permits with a single permit, dropped the 
processing time to 90 days from 18 months. And the result--one 
of the firms in the program estimated it reduced 8.5 million 
pounds of emissions per year because the new system allowed 
them to modernize their facility without the pain of going 
through equipment permitting.
    I see I am running out of time so I will skip the next 
case. I have two cases on water quality I could relate, if you 
care to extend the time, otherwise I will cut to my conclusion.
    Chairman Lieberman. Why don't you go to the conclusion, 
understanding that the testimony will be part of the record.
    Dr. Green. Very good. It has become popular to pooh-pooh 
voluntary cooperative approaches to environmental problem 
solving, and some groups seem determined to keep environmental 
policy debates as partisan as possible, portraying any change 
in means as some sort of a sacrifice of the goal. Polls show, 
however, virtually all Americans are environmentalists, 
regardless of where they work, and there are many different 
means to achieve the same end.
    Further, success stories abound showing such approaches 
have been embraced by members of both major political parties, 
industry groups, environmental activists and informed systems.
    The low-hanging fruit of environmental problems has been 
plucked in the United States, and the problem that remain are 
tricky. Solving them, while retaining the choice and 
competition that are the wellsprings of our safety, health, and 
environmental quality, will require the cooperation of all 
parties, flexibility on all sides, the tapping of local 
knowledge and the avoidance of wasteful litigation.
    I urge you, in all of the decisions you make, to ask, 
first, whether there is a flexible, cooperative and local 
approach to environmental problem solving before you whip out 
the blunt object of a centralized, one-size-fits-all regulatory 
approach run from afar. Not only will we attain the 
environmental quality we seek that way, we will preserve the 
benefits of choice, economic competition, and economic strength 
that are the foundations of our well being.
    Thank you for allowing me to speak today, and I will gladly 
take your questions.
    Chairman Lieberman. Thanks, Dr. Green. I look forward to 
asking you one or two questions.
    It is a pleasure to have Donald Newhouse here, representing 
Guardians of the Rural Environment. It is good to see you 
again, sir.

    TESTIMONY OF DONALD NEWHOUSE,\1\ GUARDIANS OF THE RURAL 
                          ENVIRONMENT

    Mr. Newhouse. Thank you, Mr. Chairman and Members of the 
Committee, if there are some. Thank you for the opportunity to 
express my views concerning the environmental laws.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Newhouse appears in the Appendix 
on page 282.
---------------------------------------------------------------------------
    I am retired and living in Yarnell, Arizona, with my wife 
and life partner, Beverly. Our community consists of 800 
wonderful people. We became accidental activists when a 
Canadian gold mining company invaded our town. The company 
proposed Arizona's first open-pit, cyanide heap-leach gold mine 
just 500 feet from our homes, churches and businesses.
    I am a registered Republican. As a Republican, I am truly 
disappointed in the Bush Administration for overturning 
important environmental mining rules of benefit to small 
communities facing irresponsible mining proposals like the one 
we face in Yarnell.
    In the 1970's, open-pit mining and cyanide leaching changed 
the face of gold mining. Instead of digging out the gold, giant 
machines simply removed an entire mountain, crush it to gravel 
and heap it at the leach site. A solution of deadly cyanide is 
applied. It absorbs the gold and drains to a collection point. 
The waste rock is then dumped in a nearby canyon. The result is 
that the mountain and the canyon are both gone forever, and a 
vast expanse of lifeless rubble will exist for centuries.
    Rains will fall on this exposed rock and activate acids 
that were buried deep in the mountain for eons. In my area, 
water runs downhill, and thus the groundwater and the streams 
are contaminated over a wide area. What do I do when my well 
pumps toxic water? The gold mine proposal would devastate our 
town. The mine plan calls for 24-hour operations, and extensive 
blasting would deny our only access to emergency medical 
services by closing the highway.
    The blasting would also cause forced evacuation of private 
residences due to flying rock. Republicans are supposed to 
protect property rights. The only property rights that seem to 
count are the rights of multinational corporations. The 
completed mine would tear down the site of our 5,000-foot 
mountain and replace it with a huge, 400-foot-deep open pit, 
unfilled forever. Add to that the fact that the mine would use 
7 million pounds of cyanide to extract the gold, and you have a 
monumental threat to our town, our water, our health, and our 
safety.
    Our community is united against this mine. It would offer 
little employment or benefit to Yarnell and destroy the fabric 
of our close-knit, mostly retired community. Still, despite our 
strong opposition, the Bush Administration is reverting to the 
old mining rules favoring mining above all other concerns. This 
backward step crushes our hope that protection of small 
communities and their citizens would come before mining 
profits.
    The new environmental mining rules would have allowed 
administrators to deny a mine that would do as much damage as 
the Yarnell mine proposal. The prospect of better protection 
has been dashed by President Bush's decision to overturn the 
stronger, new rules and replace them with the past failed 
regulations.
    By overturning new environmental mining safeguards, the 
administration is saying that 4 years of extensive public 
comment has no merit. I attended many hearings in Arizona. I 
commented on these new rules. My comments should count. In 
fact, the thousands of comments by those of us directly 
affected and collected over the 4-year rulemaking should count 
highly, not to be trashed to please the special interests.
    I served my country, I serve my community, and I 
participate in our democracy. With this decision, I wonder if 
my government is serving me or the special interests. When the 
Bush Administration gutted the mining rules, Secretary of 
Interior Gale Norton claimed that the 1872 mining law made her 
do it. She basically said that under the law it is illegal to 
deny mine proposals, even one as stupid as the one in Yarnell.
    The 1872 mining law has undergone only minor revision since 
its enactment 130 long years ago. This relic of the past 
designated mining as the highest and best use of our public 
lands. The exact opposite was the result. We devastated the 
American West, my West. Mountains were leveled, the landscape 
littered with mining debris. Forty percent of the headwaters in 
the West are contaminated from historic mining. The attempts at 
clean-up are costing billions of Super Fund dollars, dollars we 
innocent taxpayers pay, rather than the guilty polluters 
themselves.
    To you I would say, Senator, we have a problem. Thank you.
    Chairman Lieberman. Thank you, sir. I will remember your 
testimony. It makes the matters we are discussing very real, as 
did Mr. Dove's before.
    Next, we have Hope Sieck, Associate Program Director of the 
Greater Yellowstone Coalition. Thanks for being here.

TESTIMONY OF HOPE SIECK,\1\ ASSOCIATE PROGRAM DIRECTOR, GREATER 
                     YELLOWSTONE COALITION

    Ms. Sieck. Thank you. Thank you, Chairman Lieberman and 
Members of the Committee.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. Sieck appears in the Appendix on 
page 284.
---------------------------------------------------------------------------
    My name is Hope Sieck, and I am the associate program 
director for the Greater Yellowstone Coalition, an organization 
based in Bozeman, Montana. We are a regional organization 
founded in 1983 to protect Yellowstone National Park and the 
lands that surround it. We have more than 10,000 members 
nationwide and 80 local, regional, and national member groups, 
as well as 210 business members.
    I want to thank you, Chairman Lieberman, also for adding 
your name to a letter last year to the President asking him to 
uphold protections for Yellowstone National Park from 
snowmobile use.
    I am pleased to be here 2 weeks after the 130th birthday of 
Yellowstone National Park, (one of the good things that 
happened in 1872) to share GYC's thoughts and concerns about 
winter use management in Yellowstone and Grand Teton National 
Parks.
    The future of these magnificent parks is at a crossroads. 
The choice before the administration is whether to uphold 
protections of Yellowstone and Grand Teton from snowmobile use 
or to allow degradation of these parks to benefit the 
snowmobile industry. The ultimate choice will have a profound 
and far-reaching impact on these and all national parks.
    Winter in Yellowstone is a magical time. The park's vast 
expanse is blanketed in snow and ice. Geysers and hot springs 
send plumes of steam into the air and shroud trees and wildlife 
alike in a coat of frost. Bison and elk move slowly along river 
valleys in search of food. Winter is a critical time for 
wildlife. Survival is not guaranteed. And for humans, winter in 
Yellowstone presents a unique opportunity in our urbanizing 
world to be transported back to a time of quiet, filled with 
peace, wildlife and the splendor of nature.
    Congress has long recognized national parks and the 
importance of them. Congress sought to protect the 
irreplaceable and rare attributes of Yellowstone when it 
created it in 1872 as the world's first national park. One 
hundred thirty years ago, as the Senate was debating the 
formation of Yellowstone National Park, Senator George Vest of 
Missouri spoke out asking his colleagues to imagine the day 
when the United States would have 100 million or even 150 
million people. When that day arrived, Senator Vest told his 
colleagues, Yellowstone would serve as ``a great breathing 
place for the national lungs.''
    Sadly, today, instead of serving as a great breathing place 
for the national lungs, Yellowstone's own lungs are clogged. 
For half a decade now, fresh air has been pumped into ranger 
booths at the west entrance to prevent headaches, nausea, 
burning eyes and other health problems caused by snowmobile 
exhaust.\1\
---------------------------------------------------------------------------
    \1\ Medical complaints received by the National Park Service from 
Yellowstone National Park employees appear in the Appendix on page 481.
---------------------------------------------------------------------------
    However, this effort did not prove to be enough to protect 
rangers from carbon monoxide, formaldehyde, benzene, and other 
harmful air pollutants emitted by snowmobiles.\2\ This winter, 
for the first time in national park history, rangers wore 
respirators to help them endure a workday in Yellowstone 
without ill effects. Visitors, too, breathe the same polluted 
air, and many visitors with asthma and other health problems 
cannot even visit our first national park in winter.
---------------------------------------------------------------------------
    \2\ Photos appear in the Appendix on page 495.
---------------------------------------------------------------------------
    Also, this winter in Yellowstone we have seen the other 
problems caused by snowmobiles, problems that the Park Service 
moved to remedy in its November 2000 decision to phase out 
snowmobiles. That decision has been placed on hold following a 
snowmobile industry lawsuit.
    This winter, despite an infusion of taxpayer money to beef 
up Park Service enforcement of snowmobiles, making Yellowstone 
the most intensively managed winter corridor in the world, 
damage from snowmobile use, unfortunately, continues. In 1 week 
last month, rangers issued nearly 400 citations and warnings to 
snowmobilers,\1\ that was 1 in 10 snowmobilers in the park who 
broke park rules. They roared through fragile meadows and 
exceeded park speed limits, sometimes by more than double.
---------------------------------------------------------------------------
    \1\ Violation Notices for snowmobile violations in February 2002 
appear in the Appendix on page 501.
---------------------------------------------------------------------------
    Also, this winter, during the most critical time of year 
for wildlife, wildlife were forced to waste precious energy 
getting out of the way of machines. Videotapes, which I will 
submit to the record, show snowmobiles harassing Yellowstone's 
wildlife and forcing them to run down roads and up steep slopes 
and into deep snow. Visitors this winter were again deprived 
the opportunity to hear and enjoy the sounds of Yellowstone, 
the splash of Old Faithful Geyser, the bubbling of mud pots, 
because of the constant whine and roar of snowmobile engines.
    The news about the damage to Yellowstone caused by 
snowmobiles has spread far and wide. Expressions of deep 
concern have come from all over the country. And from inside 
the Yellowstone region, for example, the Idaho Falls Post 
Register, taking stock of all of these problems, recently 
remarked, ``The Bush Administration wasted $2.4 million of your 
money to learn, for a second time, that removing snowmobiles 
from Yellowstone and Grand Teton National Parks was 
justified.''
    That justified and thoughtful decision to phase out 
snowmobiles was made 16 months ago and laid out the solution to 
all of the problems we have seen this winter. A visitor 
transportation system, using snowcoaches, which are van-like 
vehicles that hold 10 to 15 people, will do wonders to protect 
Yellowstone's air, natural quiet and wildlife, while providing 
a high-quality visitor experience.
    That decision to protect Yellowstone resulted from a 3-year 
public process and more than 10 years of scientific study and 
analysis. That decision was based on all of the important laws 
that were designed to protect our national parks, including the 
Organic Act and the Clean Air Act.
    The Park Service decision was affirmed by other Federal 
agencies and experts. The Environmental Protection Agency 
reviewed the Park Service's decision and said that it included, 
``among the most thorough and substantial science base that we 
have seen supporting a NEPA document.''
    EPA concluded that snowmobile use in Yellowstone causes, 
``significant environmental and human health impacts.'' \2\ And 
a distinguished group of 18 Ph.D. scientists reviewed the 
information and concluded that the Park Service relied upon 
sound science. They sent a letter to Interior Secretary Gale 
Norton cautioning her that ``ignoring this information would 
not be consistent with the original vision intended to keep our 
national parks unimpaired for future generations.'' \3\
---------------------------------------------------------------------------
    \2\ Letter to the National Park Service from the EPA regarding 
``Draft EIS for Winter Use Plans'' appears in the Appendix on page 594.
    \3\ Letter from Wildlife Scientists dated October 17, 2001, to 
Secretary Gale Norton, Department of the Interior, appears in the 
Appendix on page 597.
---------------------------------------------------------------------------
    A snowmobile phase-out is the best decision for 
Yellowstone, but what about the gateway economies that depend 
on winter tourism? A significant number of residents, business 
owners, and elected officials in West Yellowstone, Montana, the 
main winter gateway to the park, have spoken out to Congress 
and the media and said that restoring pure air, peace and 
quiet, undisturbed wildlife and a higher quality visitor 
experience to Yellowstone is not only a good park protection 
plan, but is the best business plan for gateway economies that 
depend on visitors flocking to Yellowstone to find qualities 
that they cannot find elsewhere.
    People in local communities and all over the country have 
witnessed another winter with chronic problems in Yellowstone. 
They are wondering when will snowmobiles be phased out and 
replaced with a better form of access? They are having to 
wonder because the Bush Administration chose to listen not to 
its own Park Service professionals, but instead to the 
snowmobile industry.
    A snowmobile industry lawsuit forced an additional study 
that is costing taxpayers $2.4 million and leading to another 
season of problems in Yellowstone. The new study, a 
supplemental environmental impact statement, is predicated on 
two ideas; first, that public involvement should be increased 
and, second, that new snowmobile technology is the answer for 
Yellowstone.
    As far as public process goes, during the first 3-year 
process, the original 3-year process that led to the decision, 
there were 22 public meetings, 17 of those in the immediate 
area in communities like West Yellowstone, Idaho Falls and 
Cody. No hearings have been scheduled in this new snowmobile 
industry process. And during the first opportunity for the 
public to weigh in, in this new process, 82 percent of the 
public said that the original decision to phase snowmobiles out 
of Yellowstone must be upheld.
    A cornerstone of the new process was supposed to be this 
new information on snowmobile technology that the industry 
claimed to have, but despite the delays in productions to 
Yellowstone and the high cost to taxpayers, the snowmobile 
industry has not offered any compelling new information, and I 
have some information to submit for the record on that.
    The new study makes clear that even if newer generation 
technologies were used, continued snowmobile use will make 
Yellowstone National Park far more polluted, noisier, and less 
protected for wildlife than the solution offered by the 
snowmobile phase-out.
    Yellowstone National Park is at a crossroads. We can either 
uphold the high standard of protection that our parks have 
always enjoyed or we can go down a new path of allowing damage 
that Congress never intended when it created the park 130 years 
ago. The choice for Yellowstone and for all parks has become 
clear to the Nation.
    Finally, it is often asked of any issue of national 
significance, how is it playing in Peoria? We were excited to 
have an editorial come out of Peoria, Illinois, this year. So, 
in this case, we know what Peoria thinks. Peoria's paper states 
that ``if future generations are to enjoy the Nation's park 
without the benefit of respirators, efforts to protect them 
must get more support in Washington.''
    And in Wyoming, where there is snowmobiling, but also the 
recognition that the health and reputation of Yellowstone is 
central to the State's terrorism industry, the Casper Star 
Tribune, the largest paper in Wyoming, said this just last 
week, ``If we cannot preserve Yellowstone and the unique 
experiences it offers, we will have failed future generations. 
The best choice for Yellowstone is a complete phase-out of 
snowmobiles.''
    Thank you for the opportunity to testify.
    Chairman Lieberman. Thank you very much, Ms. Sieck. That 
was well done.
    Our final witness on this panel is Dr. Stephen Torbit, who 
is a senior scientist with the Rocky Mountain Natural Resource 
Center, and is here also for the National Wildlife Federation.
    Dr. Torbit, thanks so much. I look forward to your 
testimony now.

  TESTIMONY OF STEPHEN C. TORBIT, Ph.D.\1\ SENIOR SCIENTIST, 
   ROCKY MOUNTAIN NATURAL RESOURCE CENTER, ON BEHALF OF THE 
                  NATIONAL WILDLIFE FEDERATION

    Mr. Torbit. Thank you, Chairman Lieberman. I appreciate the 
opportunity to submit this statement to the Senate Governmental 
Affairs Committee.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Torbit appears in the Appendix on 
page 305.
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    I am testifying today on behalf of the National Wildlife 
Federation, Wyoming Outdoor Council, Biodiversity Associates, 
and myself.
    I earned my Ph.D. in wildlife ecology from Colorado State 
University in 1981 and worked for the Colorado Division of 
Wildlife, the Wyoming Game and Fish Department, and the U.S. 
Fish and Wildlife Service. Currently, I am the senior scientist 
for the National Wildlife Federation.
    I am a native of the West and have been involved with 
energy development on Western public lands for more than 20 
years. I am here today to discuss this administration's 
national energy policy and its impacts to our Western 
landscape.
    I can assure you that significant pro-energy development 
policies have already been put in place by the administration. 
These radical changes have completely reversed the logical 
sequence of environmental analysis, public input and agency 
decision.
    I will illustrate some of the impacts of the 
administration's energy policies on an area that is personally 
and professionally very important to me, Wyoming's Red 
Desert.\2\ As a professional biologist, I have been engaged 
with wildlife issues in the Red Desert since the late 1970's. 
Additionally, I have used the Red Desert personally for 
recreation, including hunting, hiking, photography, and 
camping.
---------------------------------------------------------------------------
    \2\ Chart entitled ``Sensitive Wyoming Landscapes Threatened by 
Energy Development,'' appears in the Appendix on page 601.
---------------------------------------------------------------------------
    The Red Desert epitomizes the West. Its wide-open spaces 
and abundant wildlife resources allow me to reconnect with my 
Western heritage. I have harvested significant numbers of mule 
deer and pronghorn antelope from the desert, and those animals 
were an important source of food for my family when we resided 
in Wyoming.
    I continue to hike, hunt, and camp in the Red Desert, 
although I no longer live in Wyoming. Despite its name and its 
appearance to the uninitiated, the Red Desert is not an empty 
wasteland. I have got some pictures to put up here on the easel 
and also submitted some for the record.\1\
---------------------------------------------------------------------------
    \1\ Photos appear in the Appendix on page 602.
---------------------------------------------------------------------------
    Chairman Lieberman. I can see it.
    Mr. Torbit. That first photo there is of Honeycomb Buttes 
in the desert. The Greater Red Desert region includes the 
largest undeveloped high-elevation desert left in the United 
States, the continent's largest active sand dune system, 2,000-
year-old rock art and Shoshone spiritual sites, portions of the 
Oregon, California, Pony Express trails, and 10 Wilderness 
Study Areas.
    The next photo will illustrate some of the Wilderness Study 
Areas on BLM land--Oregon Buttes, next is Sweetwater Canyon, 
and next is Oregon Buttes being used by pronghorn antelope.
    This special area is rich in wildlife because of the 
integrity of the habitat. More than 350 species of wildlife 
call this area home, including the largest desert elk herd in 
North America and the largest migratory big game herd in the 
United States outside of Alaska, consisting of some 40,000 to 
50,000 pronghorn antelope. The Red Desert also provides 
important habitat for mule deer, sage grouse, numerous small 
mammals and nesting and wintering habitat for birds of prey.
    But now this area, rich in ecological, geological and 
cultural wonders is at risk from multiple entities that would 
cast aside these public values and dominate the landscape with 
energy development.
    Our public lands already provide a substantial amount of 
oil and gas from an estimated 57,000 producing oil and gas 
wells. According to a 1999 industry report, roughly 95 percent 
of BLM lands in the Overthrust Belt of the Rocky Mountains are 
already open for mineral leasing and development.
    Currently, public land managers are not considering the 
multiple assets of public lands and are not working proactively 
to balance conservation of these assets with energy development 
demands. Rather, this new administration is using its 
discretionary authorities to totally skew decisions towards 
domination of the landscape by extracted industries. Indeed, we 
are witnessing the rapid industrialization of our Western 
public lands. At this point, I would like to hold up a smaller 
photo, which is also available with the material I submitted, 
and I will submit this, but it gives you an idea of the 
footprint of gas development in the Upper Green River region of 
Wyoming.\2\
---------------------------------------------------------------------------
    \2\ Photo of the ``Drill pads in Upper Green River Basin, WY.'' 
appears in the Appendix on page 603.
---------------------------------------------------------------------------
    Until now, Federal land managers were expected to fully 
evaluate the impacts of their proposed decisions on the 
environment, to disclose those impacts to the public and 
consider public input prior to finalizing their decision. In 
decisions to lease or permit drilling, sometimes prescriptive 
descriptions were attached to minimize or avoid impacts to 
public resources, to protect water quantity and quality, the 
air quality, historical and wildlife resources. In essence, the 
logical framework was to look before you leap to assure no 
irretrievable commitments of resources were unknowingly made.
    However, this administration has turned this entire process 
on its head by ordering agencies to first analyze whether any 
proposed action--for example, improving winter range for 
wildlife--will impede or accelerate energy development on 
public lands before issuing that final decision. Specifically, 
Executive Orders 13211 and 212 now require an Energy Effects 
Statement to specify any adverse effects on energy supply, 
distribution, or use of Federal actions.
    Furthermore, for energy-related projects, agencies are 
encouraged to expedite their review of permits or take other 
actions as necessary to accelerate the completion of such 
projects. This message has been heard clearly by those who 
manage the Federal estate. The result is that certain actions 
are discouraged if they impair the Federal Government's ability 
to extract energy reserves. If environmental protections are 
already incorporated into previous existing decisions, Federal 
managers are encouraged to be creative in circumventing those 
protections to benefit energy extraction.
    Specifically, to the Red Desert, the BLM released a 
proposal in June 2001 to allow up to 3,800 coal-bed methane 
wells in the Atlantic Rim Project Area. This area is of 
critical importance to wintering wildlife. Consistent with the 
new policies to accelerate oil and gas development on public 
lands, the BLM is proposing piecemeal development of up to 200 
wells before completing a thorough and comprehensive 
environmental analysis of the entire 3,800-well proposal. This 
piecemeal approach is designed to leverage the ultimate 
decision by establishing a ``beach head'' for energy 
development by first minimizing the environmental impacts of 
those smaller projects.
    In August 2001, the BLM approved seismic exploration 
through the Adobe Town area.\1\ I believe there is a photo of 
Adobe Town on the stand now. Seismic trucks drove through 
roughly 50,000 acres of citizen-proposed wilderness areas in 
September through December, degrading the landscape, laying the 
foundation for future development, and thus undermining the 
integrity of the citizens' proposal. Specifically, exploration 
continued within the crucial wildlife winter ranges during the 
winter months in violation of agency commitments to avoid the 
area during that sensitive time.
---------------------------------------------------------------------------
    \1\ ``The Wyoming Bureau of Land Management's Management of Areas 
With Wilderness Values'' appears in the Appendix on page 604.
---------------------------------------------------------------------------
    The BLM proposed in December 2001 to permit an 8-mile 
seismic study within the boundaries of this Wilderness Study 
Area at Adobe Town. Thereby, BLM may have totally undermined 
the wilderness designation possibilities for Adobe Town.\2\
---------------------------------------------------------------------------
    \2\ Chart of ``Adobe Town Citizens' Proposal--Portions with 
Wilderness Character'' appears in the Appendix on page 607.
---------------------------------------------------------------------------
    There are many more examples of the administration looking 
at impediments to energy development as unnecessary obstacles. 
For example, BLM authorized seismic exploration in Utah's Dome 
Plateau area just outside of Arches National Park. The Interior 
Office of Hearings and Land Appeals halted this project, 
finding that it was likely BLM had inadequately considered the 
environmental impacts of this action on public lands.
    In January 2002, the Wyoming State BLM director presented 
an Award for Excellence to the Buffalo, Wyoming, Field Office. 
This one field office was recognized for approving more 
drilling permits than all other BLM offices combined, excluding 
New Mexico offices. This one area in northeastern Wyoming is 
proposed to soon be home to tens of thousands of gas wells. The 
Buffalo Field Office was praised for working diligently and 
creatively with industry in approving a record number of oil 
and gas permits.
    BLM is overturning lease stipulations designed to protect 
the important wildlife habitats. The Wyoming BLM has already 
approved nearly 70 percent of the 88 requests for exceptions to 
lease stipulations requested by the industry for the Green 
River Basin this winter. These waivers follow 2 years of 
extensive drought, when wildlife and wildlife habitat are 
already stressed.
    Previous legislation enacted by Congress, approved by other 
administrations and consistently upheld in the courts, promote 
multiple uses of public lands where a mix of resource values 
are developed or maintained across the public estate. These 
provisions of the national energy policy ignore the multiple 
use mandate and propose to eliminate even a token balance 
between resource conservation and energy exploration and 
substitute a domination of use rather than multiple use.
    I might add real quickly that when I worked for the Fish 
and Wildlife Service, I became operationally familiar with 
these oil and gas stipulations and the whole process, and that 
was during the first Bush Administration when those procedures 
were operating.
    Well-planned, responsible development can balance our 
country's energy needs with the conservation of wildlife 
habitat and other natural treasures for future generations to 
enjoy. Responsible development requires thorough pre-leasing 
environmental review, full compliance with all environmental 
and land management laws, measures to protect wildlife 
migratory routes and other sensitive lands, full reclamation of 
developed areas and minimization of road building.
    Unfortunately, rather than encourage a thoughtful, 
strategic and balanced approach to energy development, the 
administration's national energy policy is recreating the chaos 
of the Western gold rush. Like that archaic approach, these new 
tactics give no consideration for other users and resources. 
Like the old Western gold rush, this new Western energy rush 
will leave impoverished natural resources and cleanup as legacy 
for future generations.
    I invite the Members of this Committee or their staff to 
come to Wyoming with me and visit Adobe Town, the Jack Morrow 
Hills and other unique and valuable areas of the Red Desert to 
view these areas and the consequences of industrialization.
    I appreciate the Committee's interest in these critical 
issues and urge you to take action to ensure that we do not 
replicate the mistakes of the past and instead manage the 
public lands and the public interest not only for today, but 
for tomorrow as well.
    Chairman Lieberman. Thanks very much, Dr. Torbit.
    Obviously, I have indicated I have a point of view, as 
these hearings have approached, so perhaps you will not be 
surprised to hear that I take the testimony that you have 
offered here as evidence that substantiates my own review and 
conclusion. Something quite different and bad has happened in 
environmental and natural resource protection in the last year 
under this administration.
    As your testimony indicated, and we had some to indicate it 
last week, a lot of modern environmentalism at the Federal 
level began in the Nixon Administration. The more recent 
bipartisan consensus began in the first Bush Administration, 
but I think you have shown how in the last year some very real 
changes have occurred that are adverse to your lives and work, 
to the health of the country and the well being of the land 
that is our blessing.
    So I thank you for your testimony. I am going to ask each 
of you some questions.
    I am sorry that Senator Thompson is not here, but I want to 
make a submission to the record. Senator Jeffords, who is the 
chair of the Environment Committee, has sent a message which he 
has asked me to include in the record on the processing of EPA 
nominees by the Environment and Public Works Committee. This is 
in response to Senator Thompson's earlier expressed concern 
about the pace of nominations, the Senate's consideration of 
nominations by the administration and whether certain positions 
were left unfilled. Now, my guess is Senator Thompson had in 
mind not only EPA, but other relevant positions, but Senator 
Jeffords wanted to indicate for the record that there have been 
12 nominees for EPA positions. Ten have received the advice and 
consent of the Senate, one has a hold on it, which he indicates 
is from a Republican colleague, and one withdrew.
    So, at our colleague's request, I submit that for the 
record.
    Mr. Dove, I presume that Terry Barker, the Soundkeeper, is 
a part of the Alliance.
    Mr. Dove. Yes, and he is a very good friend of mine and one 
of the Nation's finest Keepers.
    Chairman Lieberman. Thank you. I agree. That is the Long 
Island Sound, I should add for a clear reference in the record.
    Your testimony identifies a variety of concerns with the 
Bush Administration's consideration of revisions to the 
proposed regulations for concentrated animal feeding 
operations. I wonder if you could just spell out a little more 
which of those possible revisions concerns you most. 
Incidently, I was very impressed by your testimony, and it 
shows that though you were rescued from the practice of law by 
this opportunity, you still retain a lawyer's capacity to put 
together a very detailed brief.
    Mr. Dove. I thank you, sir. I would say that this is an 
issue which Americans, overall, are very passionate about. It 
involves their property. When it comes to advocating on behalf 
of the people's property, it is very rewarding.
    When we looked at the regulations that were coming from the 
Clinton Administration, they were not everything we wanted. 
They did not get rid of the lagoons and spray fields. To stop 
storing all of that fecal waste in open cesspools is not a 
matter of science, it is a matter of common sense. This 
industry has gotten into a mode of operation, where they think 
it is acceptable to do that, and they are fighting to hold onto 
this failed system on the basis that they can't afford anything 
better. Well, in truth, they can afford it. I mean, the bottom 
line is not going to be good, but they can afford it.
    Under the Clinton Administration, there were some 
improvements that would have allowed us to move towards getting 
rid of the lagoons and spray fields. One of the most serious 
objections we have with regard to what is happening now, under 
the new administration, is that they are doing this cost-
benefit analysis to determine if the industry can afford to get 
rid of lagoons. They are trying to change the Clinton 
Administration rules published in early January. What the 
industry is asking for is to hold on to this lagoon and spray 
field use in North Carolina and across the country. The lagoon 
system has failed in North Carolina. We now have a moratorium, 
and our governor has said we are going to find a replacement. 
The industry has kicked in $50 million over time. That's not 
much considering they offered the same amount just to name a 
stadium in Norfolk, Virginia.
    The industry has enough money to fix this problem. While it 
might seem like they are doing that, they are not. The industry 
is saying, and EPA seems to be agreeing with them, that they 
want to get out of fixing their pollution problems because 
while it has not been specified yet in the regulations, the 
handwriting is on the wall. It is likely they are going to let 
them off the hook on a lot of these requirements, like 
monitoring and other things that are needed to protect our 
groundwater, rivers, streams, and our air. We can't let the EPA 
do that, Mr. Chairman. We can't.
    Chairman Lieberman. Let me ask about one more that is noted 
in your brief, which is you mentioned the banking of 
phosphorous. Just explain to the Committee what that means and 
why you are concerned about it.
    Mr. Dove. Thank you, Mr. Chairman. That is something we are 
also very concerned about. Essentially, the EPA has said they 
are going to regulate the amount of nitrogen factory control 
farms can put on farm fields. They literally dump that stuff 
out there, but they call them farm fields. We are going to 
limit how much nitrogen, and that has been under the old 
regulations, everything was controlled by how much nitrogen 
could possibly run off. What the scientists have found, 
however, is that the application of phosphorous which is in 
that waste is in many ways worse than the nitrogen and the EPA 
should be regulating that.
    What the EPA is now saying, ``Well, we are going to let you 
go on with this banking for phosphorous system.'' The banking 
system is this: Put as much of it on your fields as you want as 
long as you control nitrogen. It can't do any harm. Scientists 
are telling us that phosphorous is running off just like 
nitrogen is running off, and there has been so much of it 
already banked, that there is no room for any more.
    Mr. Chairman, these polluters are going to have to control 
phosphorous. To apply phosphorus at astronomical rates, they 
are going to have to increase their land mass by such magnitude 
that it will result in their not being able to operate these 
pollution systems. Their factory fields are heavily ditched to 
carry this runoff down to the rivers. That is why factory farms 
are fighting this. They don't want controls on phosphorus. We 
cannot allow banking because banking is just another way of 
letting this industry off the hook.
    Chairman Lieberman. Thanks.
    Dr. Green, I also was interested in your testimony. I do 
think that the new, and I am sure you have noted it, that there 
is a real openness and interest here on Capitol Hill, 
certainly, in so-called noncommand-and-control environmental 
protection, a lot of interest in cap-and-trade. Of course, one 
of the great stories is the extent to which an environmental 
ethic has been adopted by a lot of people in the country and a 
lot of businesses in the country over the years, but here is 
the contention that I want to make to you and ask you to 
respond.
    That would never have happened without enforcement of 
environmental laws; in other words, without rules and, if you 
will, deterrents. If I can misuse an old, familiar expression 
that necessity is the mother of invention, that in some ways, 
law enforcement is the mother of voluntary cooperation with 
environmental laws because it creates an incentive and a 
deterrent.
    So I want to ask your reaction to that. Don't you agree 
that even to have some of the kind of voluntary or cap-and-
trade programs which are not voluntary, but not command-and-
control, we need to have the threat or reality of enforcement 
in some cases?
    Dr. Green. I would have a two-prong answer to that 
question. The first is I would have to disagree a little bit 
with the premise, which is that if you go back as far as Henry 
Ford, there is a well-known tale in which he goes through his 
factory and he points out that everything which is being 
emitted and/or wasted or released into the water is something 
he had to pay to get into the factory in the first place. And 
he ordered his people to eliminate those wastes because they 
were eating up profit, essentially.
    And so his interest in reducing waste led to his reducing 
his environmental footprint, no regulation or requirement was 
necessary, and in fact that story has been repeated throughout 
industry throughout history.
    At the same time, if you were to look at the remaining 
wetlands we have in this country, a very large percentage of 
them were preserved because they were private hunting preserves 
and private recreational facilities, private parks before they 
were federalized and nationalized.
    So it is not the case that rules precede environmental 
values. What does seem to precede environmental values is a 
rising quality of life and the satisfaction of basic economic 
needs, after which people's interests turn to satisfying their 
environmental needs, an example being in California, for 
instance. If you were to look at the improvements in air 
quality in California and ask what rules were in place when, 
what you would find out is that the air quality improved from 
the local rules that were in place, from the smoke rules in the 
1950's. Then the improvement was already underway when the 
rules were made into State rules in California, and the trends 
were well defined by the time that the rules were made into 
Federal laws in the Clean Air Act.
    So there is actually well-documented evidence--I refer you 
to an author named Indur Goklany--of the bubbling-up nature of 
environmental quality from local levels, through local and 
voluntary actions, and local government actions as well, upward 
throughout the legislative hierarchy.
    Chairman Lieberman. I hear you, but I must say even the 
Massachusetts program that you cite has an enforcement feature 
in it if the standards set by the law are not met.
    Incidently, I never heard the Henry Ford story before, but 
it is interesting because unfortunately most industrialists 
from Ford up until the early 1970's didn't follow that ethic. 
That is why the Clean Air, Clean Water laws, etc., came into 
effect because there was such wanton emission of pollutants 
into the atmosphere.
    The law expressed our societal outrage about that and set 
the goal of making it better. It did begin to make it better. 
Then I think companies began, in fact, to absorb that ethic and 
not want to be on the wrong side of the law. I will never 
forget a conversation that some years ago I had with an 
executive at a large chemical company, who was telling me that 
his company had just spent hundreds of millions dollars 
cleaning up its act. He happened to be the person at the firm 
in charge of that cleanup, so maybe he was the resident 
environmentalist, but he was convinced that it happened when 
the daughter of the CEO came home and asked whether it was true 
what she was hearing, that daddy's company was defouling the 
air and the water. That sort of sense of shame, if you will, at 
a very personal level, which came from law enforcement, I 
think, created the ethic that we have.
    So I am going to go on to Mr. Newhouse.
    I read a statistic a while ago which sets the context for 
your experience, which is that EPA estimates that 40 percent of 
the headwaters of all Western watersheds have been polluted by 
mining. That doesn't surprise you, does it?
    Mr. Newhouse. Not at all. That is I think a conservative 
estimate, and historic mining being the important point. We are 
dealing in mining with a 130-year-old law that outlived its 
usefulness about at least 100 years ago. A lot of those mines 
in Arizona, for instance, there are at the moment an estimated 
15,000 abandoned mines. Now there is some problem there that I 
do not know the answer to, but these are hazards to people's 
health, they are hazards to children.
    I do not understand why even at the State level that has 
not been dealt with, but my concern is about Yarnell and its 
problems. We have tremendous problems, and most of our problems 
lie in the difference between an environmental interpretation 
of the law, a provision of a law, a parsing of words, whatever 
you want to term that, that gave us hope that at some point a 
mine could simply be denied because it was inappropriate and 
irresponsible.
    Then along comes another interpretation, another 
administration, and those hopes go out the window because then 
it has evolved into a matter of what is necessary to perform a 
mining function. Destruction of a mountain is probably 
necessary, but it is environmentally terrible.
    Does that answer your question?
    Chairman Lieberman. It sure does, and that is the point 
here. We pass laws, here in Congress and then the Executive 
Branch implements them. There is a lot of room in the 
implementation for values to be imposed that do not appear to 
be the intention of Congress in adopting a law like the Federal 
Land Policy and Management Act.
    In your case, just to state it for the record, ``November 
21, 2000, the Department of Interior published regulations to 
remedy longstanding problems associated with pollution from 
hard-rock mining on land managed by the Bureau of Land 
Management.''
    Then, on October 30, 2001, almost a year later, in a new 
administration, BLM issued a final review that removed the 
regulation's language providing for the denial of mining plans 
that could cause, ``substantial irreparable harm,'' as well as 
many environmental performance standards.
    So there is a wording change that removes, in a sense, an 
opportunity for hope from you. That is quite significant.
    What is the status of your own efforts and the folks, your 
neighbors in Yarnell, to try to protect yourselves?
    Mr. Newhouse. Historically or currently?
    Chairman Lieberman. Right now.
    Mr. Newhouse. Right now the whole mining project is in 
limbo I would call it. It has never been denied. The 
application has never been denied. The company ceased funding 
of the EIS process, citing the depressed commodity metals 
market, but it still has the opportunity, and they have 
announced that if there is an increase in metals prices, will 
resume the project.
    So it has been, we are neither afoot nor on horseback at 
the moment. It is sort of they can come back, with certain 
mitigations, if they will continue funding the process.
    Chairman Lieberman. Thanks, Mr. Newhouse.
    Ms. Sieck, among the pieces of evidence that you submitted 
was a picture of a park ranger in Yellowstone wearing a 
respirator at the west entrance which was just taken about a 
month ago.
    Is there any argument that the air quality problems that 
the park rangers are facing come from anything else but the 
snowmobiles?
    Ms. Sieck. No, there is not.
    Chairman Lieberman. Let me just state for the record, there 
is not significant vehicular traffic or any other kind going--
--
    Ms. Sieck. No, there is no other vehicular traffic at this 
time.
    Chairman Lieberman. Let me ask this question. I understand 
that EPA is developing a proposed rule for off-road mobile 
sources. I want to know what you know about what EPA is doing 
and how you think their actions could impact, in reality, life 
in Yellowstone and maybe elsewhere.
    Ms. Sieck. Let me just clarify one thing about your 
previous question. There are snowcoaches on the same roads as 
snowmobiles, but in small numbers.
    Chairman Lieberman. Yes. I wanted to make clear. I know it 
is clear to you and others who have been there, but there are 
not a lot of cars or trucks going around.
    Ms. Sieck. There are no trucks or cars.
    Chairman Lieberman. Right.
    Ms. Sieck. Right. As far as the proposed EPA rule, EPA is a 
cooperating agency with the Park Service on the winter use 
decision in the supplemental process, and the EPA 
representative has made it clear to the Park Service and to the 
other cooperating agencies and states that the Park Service 
should not rely on EPA to protect Yellowstone's air quality. 
The EPA rule will be a national rule, and it very likely will 
not be protective enough for Yellowstone's Class I airshed 
status under the Clean Air Act and for what all Americans 
believe national parks should be, which are the cleanest, most 
healthful places in this country.
    What the EPA rule appears to be headed towards is, and the 
final rule is due this fall, is they are looking at 30-percent 
to 50-percent reductions in snowmobile emissions within the 
next 10 years. So there is nothing timely, and there is nothing 
significant enough to ameliorate the problems that we are 
seeing right now in Yellowstone.
    I would add one final thing to that. The snowmobile 
industry also has been vocal to the Environmental Protection 
Agency that they don't believe that EPA should regulate 
snowmobiles at all, and they are attempting to have their 
regulations be as mild as possible.
    Chairman Lieberman. So the industry's answer is that 
technology will make this better.
    Ms. Sieck. Yes.
    Chairman Lieberman. But by when and by how much?
    Ms. Sieck. That is the question, and we don't believe that 
there are answers to that question, and the answers that we 
have seen are not strong enough to warrant delaying protections 
for Yellowstone and allowing these problems to continue.
    Chairman Lieberman. Am I correct that additional funds have 
been given to Yellowstone this year to reduce the impacts of 
snowmobiling?
    Ms. Sieck. Yes. There was an additional $264,000 that went 
this year to a pilot project to try and mitigate the impacts 
from snowmobiles. The examples I mentioned in my testimony 
about the 1 in 10 snowmobilers being cited, the wildlife----
    Chairman Lieberman. That is what the money has been used 
for.
    Ms. Sieck. Well, the money was used to try to prevent 
things like that, and what we have seen this winter is that, in 
spite of that quarter million dollars, the problems have 
continued and worsened in some cases.
    Chairman Lieberman. Sure. Thanks.
    Dr. Torbit, probably appropriate, before I ask you a 
question or two, to indicate, for the record, that our 
colleague, Senator Craig Thomas has submitted a statement for 
the record to be printed in regard to the Red Desert.\1\
---------------------------------------------------------------------------
    \1\ The prepared statement of Senator Thomas appears in the 
Appendix on page 608.
---------------------------------------------------------------------------
    Dr. Torbit, the Bureau of Land Management has requested 
additional funding to update its management resource plans, 
which are required by law, developed locally, as you know, and 
provide for the types of activities that will occur on BLM-
managed land.
    We understand that BLM in Washington recently instructed 
its field staff to issue leases and permits to drill, even if 
these plans, management resource plans, are out of date. Are 
you familiar with that situation? And, if so, could you share 
what you know about it with the Committee?
    Mr. Torbit. I am familiar with it because that is the way 
things work in the West with the BLM. Frequently, during the 
resource management planning process, areas are identified for 
oil and gas leasing. And whether you work for the State or 
another Federal agency or you are a citizen and you provide 
comments that say there are problems with leasing in this area, 
we probably shouldn't do it, you think about these other 
factors, we are told, ``Wait. We will do the detailed 
environmental analysis later when we actually go through the 
leasing process.''
    Of course, then the leases are bought, the companies feel 
like they have a right to access land, and all of the 
environmental compliance is done in a hurry-up mode. 
Frequently, many companies wait until the end of their lease 
before they even start exploration and development, and it is 
very common for areas to be leased or developed, even if the 
life of the RMP has expired. That is kind of business as usual 
in the West.
    Chairman Lieberman. You also testified that BLM is 
characterizing wildlife lease stipulation as obstacles to 
production. So I am going to ask you to just explain a little 
more about what wildlife lease stipulations are and how would 
they represent obstacles?
    Mr. Torbit. In the planning process, before a lease would 
be available for any company to purchase, BLM reviews, in the 
case of Wyoming, it reviews the area with the Wyoming Game and 
Fish Department to look for wildlife conflicts. It could be a 
crucial winter range, the only area within 500 square miles 
where pronghorn can winter, could be a sage grouse nesting 
area. If they verify that data, then they put the stipulations 
on the lease. It is sort of the ``buyer beware'' that before 
you purchase this lease, there are these restrictions.
    So, for example, with the winter-range stipulation, you are 
precluded from drilling, not producing, but just the drilling 
phase of the lease, you are precluded from drilling, say, 
depending on the area, say, from the 1st of December through 
the 1st of May, simply to allow wildlife access to that site. 
Similar for the sage grouse nest, during the nesting or the 
breeding season, you are not allowed to drill. You come in 
later, you drill, you hit, you can produce, those stipulations 
go away.
    So the buyer is aware that those stipulations are on the 
lease when they buy them, in theory. They may purchase them for 
a lower price because of those complications. My experience is 
that as soon as the company is interested, after they have 
purchased the lease, they are interested in production, they 
simply go to the BLM and ask for those stipulations to go away, 
and frequently they do.
    Chairman Lieberman. A final question for you. Your 
testimony explained that if environmental protections are 
already incorporated into existing development decisions, 
Federal managers are encouraged to be creative in circumventing 
those protections to benefit energy production. Can you give us 
any examples of that?
    Mr. Torbit. Well, the previous examples of wildlife 
stipulations I think are the ones I am most familiar with.
    Chairman Lieberman. Yes, that is what you were----
    Mr. Torbit. But there are also situations I am familiar 
with where directional drilling was initially proposed to be 
done on an area to avoid a watershed or some of these other 
resources. When it came time to do it, the company simply said 
we cannot afford it, and so that restriction, too, was waived.
    I might just add that one of the things that concerns me is 
the idea or the rhetoric that somehow things are out of 
balance, and we have got to put that balance back by being more 
aggressive with our energy exploration and development. I think 
that it is important to point out that these laws have been 
operational for many, many years. I have worked with many 
people in the energy business who have told me something must 
be working if both sides are mad about it. You say they are not 
tough enough, and I think they are too tough, something must be 
working.
    And so I think that is really what the environmental laws 
have been in the past. They have struck that balance. And to 
those who would say things are out of balance, and we have got 
to tip this scale the other way, I would just mention something 
my great grandfather said to me a long time ago, ``You can put 
your boots in the oven, but that don't make them biscuits.'' 
You can say a lot of things, but that doesn't mean that is what 
is happening on the ground.
    Chairman Lieberman. Hear, hear. I can't top that. 
[Laughter.]
    That is the place to conclude the hearing. ``You can put 
your boots in the oven--''
    Mr. Torbit. But you can't make them biscuits.
    Chairman Lieberman [continuing]. ``But that doesn't make 
them biscuits.'' OK.
    I thank all of you. I apologize that more Members of the 
Committee were not here today. The scheduling is difficult, 
people probably had other meetings and other hearings. Because 
I have been so moved by the testimony, I am going to take it on 
myself to summarize the testimony and submit it to the other 
Members of the Committee. I think it is important, no matter 
where you are coming from, to hear these stories that you have 
told really quite compellingly. So I thank you.
    I thank Dr. Green, and I thank the four others of you whom 
I would describe as environmental advocates or just plain 
citizens who are upset about a specific problem going on. I 
promise you that your testimony has truly affected me, and 
informed my reactions to where we are now in environmental 
protection. I am going to tell your stories as I go ahead with 
my work.
    Hopefully, all of us together can put the brakes on the 
direction in which the administration's environmental policy is 
going before it does irreparable harm. It is not just vague, it 
is very specific and personal, as your testimony indicated. So 
I thank you very much for the time and effort you have given us 
today.
    I am going to leave the hearing record open for 2 weeks in 
case any of the Members of the Committee want to ask you 
questions in writing or that you would like to add any more 
testimony to the record.
    Thank you very much. The hearing is adjourned.
    [Whereupon, at 12 p.m., the Committee was adjourned.]









                            A P P E N D I X

                              ----------                              


                 PREPARED STATEMENTS OF SENATOR BUNNING

                             March 7, 2002

    Thank you, Mr. Chairman. Today's hearing on the environment is very 
timely.
    I suspect that some of the issues brought up today may be debated 
on the Senate floor as we continue working on the energy bill.
    I don't think there is anyone in this room that would argue that 
protecting the environment isn't important. We may disagree on the best 
way to do this, but I seriously doubt that anyone in Congress or in the 
administration doesn't want to protect our streams, forests, and air.
    However, some people seem to think that protecting the environment 
and encouraging businesses to grow cannot be achieved at the same time.
    I disagree with this assumption.
    It is important that we reach a balance between environmental 
interests and business interests. With the right technology and 
incentives companies can continue to grow and the environment can be 
protected.
    Putting in place regulations or laws that are too strict can have a 
devastating affect on our economy, as companies struggle to meet new 
costs.
    We saw this when the CAFE standards were implemented and the auto 
manufactures ended up laying off workers to help cut costs.
    We have also seen unanticipated consequences of CAFE standards. 
More than 40,000 people have died in crashes who might have otherwise 
survived had their vehicles been heavier.
    Of course, putting in place regulations or laws that are too weak 
can damage the environment. That is why it is so important to find the 
right balance.
    I look forward to hearing from our witnesses today, and gaining 
their perspectives on this important issue.
    Thank you, Mr. Chairman.
                               __________

                             March 13, 2002

    Thank you, Mr. Chairman. Today's hearing is the second of two this 
Committee is holding on the Bush Administration's environmental policy.
    Unfortunately, it often seems that when you talk about 
environmental issues, it turns into an ``US-against-them'' discussion, 
with a ``winner-take-all'' attitude. However, environmental policy 
doesn't exist in a vacuum, and it must be balanced against business 
interests, State rights, and land-owner rights, among other things.
    We all want clean water and air, and we have come a long way in 
protecting our environment. But, it's important to remember that growth 
and productivity do not necessarily come at the expense of the 
environment.
    In fact, according to the White House, air pollution has declined 
by 29 percent over the past 30 years, while our economy has grown 
almost 160 percent.
    Businesses should be given the right incentives and flexibility so 
they can meet environmental standards, without having to lay off their 
workers or even close their doors.
    I certainly realize that we still have some major environmental 
challenges to overcome. At the end of the day, however, the programs 
that will probably have the most success are those that have the 
support of communities, environmentalists and businesses.
    I look forward to hearing from our witnesses today, and appreciate 
the time they have taken to be here today. Thank you.



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