[Congressional Record Volume 140, Number 63 (Thursday, May 19, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: May 19, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                       S. 2019 TAKINGS AMENDMENT

  Mrs. BOXER. Mr. President, I voted for final passage of S. 2019, the 
reauthorization of the Safe Drinking Water Act, despite serious 
misgivings about the takings amendment approved by voice vote late 
yesterday.
  I voted for the bill because it contains provisions I consider 
crucial to protecting public health. The bill also provides a 
significant new level of flexibility that will allow us to meet our 
goals at the lowest possible cost for the thousands of local water 
supply systems.
  The bill includes provisions I offered both in committee and on the 
floor that strengthen the legislation in significant ways. The Senate 
approved my amendment to require the EPA to take into account children, 
infants, pregnant women, the frail elderly, and other vulnerable groups 
when setting drinking water standards. The Senate also approved my 
amendment to protect the 30 million Americans who depend on well water 
from lead leaching at dangerous levels from well-water pumps and 
component parts.
  S. 2019 also includes provisions I authored that will assure water 
system customers of adequate notice if their water supplier violates 
drinking water quality standards and clarify the EPA's authority to 
define what constitutes ``best available technology'' for small water 
systems.
  But, unfortunately, S. 2019 also includes an amendment I considered 
to be a threat, not only to our safe drinking water laws, but to 
Government's ability to fulfill its most basic responsibility--the 
protection of the health and safety of our people.
  The amendment would require Federal agencies to do a takings impact 
assessment every time they issue a new regulation. While that sounds 
reasonable--a fair way to protect private property rights--the 
amendment is part of what the Atlanta Constitution describes as a 
``broad-based, well-organized but low-profile effort to gut 
environmental and land use laws.''
  So called takings bills have been introduced, and defeated, in 
legislatures across the country, and have been brought before the 
Senate on several occasions. Faced with a bill nearly identical to the 
Dole amendment, the Governor of Idaho wrote:

       Simply stated, this bill is not concerned with the 
     protection of property owners and the promotion of the social 
     welfare * * *. Instead, it central focus is the protection of 
     select property owners (developers, polluters, etc.) to do 
     what they want regardless of the effects of their actions on 
     their communities and their neighbors. This legislation 
     essentially throws up paperwork and bureaucratic roadblocks 
     to the state's promulgation of regulations to further protect 
     the general welfare of the people * * *.

  Republican legislators from New Hampshire and Colorado wrote Members 
of Congress last year:

       [T]akings legislation would increase taxes and create a 
     new, unnecessary level of bureaucracy. As fiscal 
     conservatives, and believers in limited state government, we 
     successfully opposed state ``takings'' bills because they 
     were expensive ``Budget-Busters,'' which would require large 
     and undeterminable new costs.

  Mr. President, I ask unanimous consent that these letters be included 
in the Record.
  Mr. President, I believe that the right to own private property is 
one of our fundamental rights as Americans. But this isn't about 
protecting private property, and I must oppose efforts to undermine the 
right to governments to fairly regulate land use in the interest of the 
public. I support orderly development and the sanctity of 
neighborhoods; I believe we should keep powerplants, prisons, and porno 
theaters from being built next to homes; and Government should be able 
to prevent one property owner from flooding another's land, to keep 
rivers clean by insulating them from too much development, to make sure 
no one property creates a nuisance or a hazard for the rest.
  Mr. President, as the National Governors Association has said, 
``Interpretation of the fifth amendment of the Constitution concerning 
the taking of private property by the Government is the appropriate 
province of the courts * * * legislative requirements are not 
warranted.''
  While I supported final Senate passage of S. 2019, I reserve my right 
to oppose a conference report on this, or any bill, that includes a so-
called takings amendment.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:
                                           OFFICE OF THE GOVERNOR,


                                                State Capitol,

                                         Boise, ID, April 1, 1993.
     Hon. Mike Simpson,
     Speaker of the House,
     House of Representatives.
       Dear Mr. Speaker: I have the honor to advise you that I 
     have transmitted to the Office of the Secretary of State 
     herewith, without my approval, disapproved, and vetoed: House 
     Bill 322 within the time limited by law, the same having 
     arrived in the Office of the Governor at the hour of 4:28 
     p.m. on March 24, 1993.
       House Bill 322 requires each state agency to designate a 
     person to prepare a ``takings impact statement'' for state 
     agency actions with ``takings implications.'' ``Private 
     property'' has been defined in this bill as including ``all 
     property, real or personal.'' If this bill were to become 
     law, state agencies would be required to prepare takings-
     impact assessments for each and every state agency action 
     with takings implications, including the promulgation of 
     regulations and the granting, denial or conditioning of 
     licenses or permits. The bill contemplates the creation of a 
     morass of additional state government paperwork for seemingly 
     no purpose. Various state agencies have testified that they 
     would be required to hire at least an additional attorney and 
     support staff for that attorney just to comply with this 
     legislation. The fiscal impact on state government would be 
     burdensome despite the legislative pronouncement that this 
     bill has ``no fiscal impact.'' Thus, the Legislature by this 
     bill would like to require state agencies to engage in a 
     paperwork runaround without providing any funding to support 
     the work required.
       The preparation of written takings-impact assessments would 
     involve a time-consuming and expensive bureaucratic process 
     that would make government decision-making slower and less 
     effective. Regardless of whether an action actually would 
     result in a constitutional violation, an agency would be 
     required to include an analysis of ``alternatives'' to the 
     action and the preparation of ``an estimate of the financial 
     cost to the government agency occupational health and safety 
     of workers, consumers, children, and the underprivileged 
     against those who would exploit them.
       Simply stated, this bill is not concerned with the 
     protection of property owners and the promotion of the social 
     welfare of the Idaho citizens. Instead, its central focus is 
     the protection of select property owners (developers, 
     polluters, etc.) to do what they want regardless of the 
     effects of their actions on their communities and their 
     neighbors. This legislation essentially throws up paperwork 
     and bureaucratic roadblocks to the state's promulgation of 
     regulations to further protect the general welfare of the 
     people of the state of Idaho.
       In the final analysis, enactment of this legislation would 
     be a complete waste of the taxpayers' money. The Legislature 
     has already provided that, pursuant to Idaho Code Sec. 67-
     5218, ``a concurrent resolution may be adopted [by the 
     Legislature] rejecting, amending, or modifying'' an agency 
     rule that it finds offensive. In addition, the Legislature 
     has the ability to request a state agency to provide an 
     accounting of the effect of a proposed rule. In this regard, 
     Idaho Code Sec. 67-5203(e) has required a state agency to 
     prepare a ``statement of economic impact'' of any proposed 
     rule when requested by the joint germane sub-committee. Such 
     a statement is to include ``an evaluation of the costs and 
     benefits of the rules and regulations to the people of the 
     state of Idaho.'' Idaho Code Sec. 67-5201(8). Thus, the 
     Legislature already has a mechanism by which it could obtain 
     an analysis of the effect of state agency regulations. I am 
     not aware, however, of the Legislature's ever using this 
     tool. House Bill 322 would require state agencies to prepare 
     hundreds of analyses, despite the fact that the Legislature 
     has never even asked for such a similar analysis under 
     existing legislation.
       Finally, this bill is even more expansive, onerous and 
     flawed than previous versions of the same legislation: Senate 
     Bill 1439, which I vetoed last year, and House Bill 262aa, 
     which I vetoed two years ago.
       For these reasons, Mr. Speaker, I have withheld my 
     approval, disapproved, and vetoed House Bill 322 and returned 
     the same within the time provided by law.
           Sincerely,
                                                  Cecil D. Andrus,
                                                         Governor.
                                  ____

                                                 October 26, 1993.
       Dear Member of Congress: As Republican state legislators, 
     we are writing to urge you to oppose federal ``takings'' 
     bills and amendments for the same reasons that we and our 
     colleagues killed similar state legislation: ``takings'' 
     legislation would increase taxes and create a new, 
     unnecessary level of bureaucracy.
       As fiscal conservatives and believers in limited state 
     government, we successfully opposed state ``takings'' bills 
     because they were expensive ``Budget-Busters,'' which would 
     require large and undeterminable new costs.
       State and federal ``takings'' bills would give taxpayer 
     subsidies to special interests who have to comply with legal 
     requirements designed to protect the private property, and 
     the health and safety, of average Americans.
       Everyone agrees that where the courts determine that 
     private property has been ``taken'' for public use, just 
     compensation must be paid under the Fifth Amendment to the 
     federal Constitution or similar state constitutional 
     provisions. We agree, however, with the National Governors' 
     Association, which resolved in 1992 that ``takings'' issues 
     are ``the appropriate province of the courts'' and that such 
     bills ``would have far-reaching implications for state and 
     local zoning, land management, and public health laws of all 
     kinds.''
       In cases where there is clearly no constitutional right to 
     compensation, ``takings'' bills would injure average citizens 
     by increasing taxes or by diverting limited government 
     resources for a new entitlement program. They would also 
     increase litigation and require taxpayers to hire lawyers and 
     accountants to conduct a site-specific examination of any 
     conceivable impact on each piece of property from each 
     government action.
       The idea that property owners can demand government 
     compensation because of perceived limitations from health, 
     safety, anti-pollution and other laws and regulations is 
     constitutionally unsound. It would also harm the public by 
     raising taxes and by discouraging government actions that 
     protect our rights. We all live downstream, downwind or next 
     door to property where pollution and other harmful activities 
     have been restrained to protect our rights.
       Therefore, we urge you to join us in voting against 
     increased taxes and unnecessary bureaucracy by opposing 
     ``takings'' bills.
           Sincerely,
     Richard L. Russman,
       Republican--E. Kingston, New Hampshire Senate.
     Tony Grampsas.
       Republican--House District 25, Speaker Pro Temps, Colorado 
     House of Representatives.

                          ____________________