[Congressional Record Volume 140, Number 140 (Friday, September 30, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
[Congressional Record: September 30, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
OPPOSING CONSIDERATION OF THE CONVENTION ON BIO-DIVERSITY
Mrs. HUTCHISON. Mr. President, on August 5, 35 Senators signed a
letter to the majority leader regarding consideration by the Senate of
the Convention on Bio-Diversity. The letter requested that the Senate
delay consideration of the treaty until our concerns were addressed.
These concerns remain, but it appears that the majority leader intends
to bring up the treaty before adjournment.
Under the treaty, a conference of parties will meet after the treaty
is in force to negotiate the details of the treaty. We need to know how
the Senate, in fulfilling its constitutional responsibilities to concur
in treaties, can review the provisions of a treaty that will not be
written until the meeting of the conference of parties. As Senators
Helms, Pressler, and Coverdell stated in the committee report on this
Bio-Diversity Treaty.
The financing mechanism, the degree to which intellectual
property is protected, the definitions of developed and
developing states, the voting weights and procedures for
member states: all of these and other important matters are
left undecided.
Moreover, the convention and resolution of ratification do not
require that protocols or amendments developed by the conference of
parties that are signed by the President be submitted to the Senate for
ratification. Protocols are being drafted for the November conference
that we have not had a chance to review and will not have the
opportunity to approve. We are sworn to uphold the Constitution. We
cannot delegate that duty with a blank check to an international body,
or to the President.
We need to know why the treaty prohibits countries from making
reservations from agreeing to any of its provisions. Because the treaty
is not subject to reservation, any congressional or Executive
statements saying we do not agree to be bound by a provision of the
treaty will be ineffective after the treaty is in force. We will
instead be bound by the conference's interpretations of the treaty.
I am especially concerned about the effect of the treaty on private
property rights in my State and throughout America. Private property is
constitutionally protected, yet one of the draft protocols to this
treaty proposes ``an increase in the area and connectivity of
habitat.'' It envisions buffer zones and corridors connecting habitat
areas where human use will be severely limited. Are we going to agree
to a treaty that will require the U.S. Government to condemn property
for wildlife highways? Are we planning to pay for this property? One
group, the Maine Conservation Rights Institute, has prepared maps of
what this would mean--I do not know if they are accurate yet, but that
is my point. Neither do the proponents of this treaty.
Article 10 of the treaty states that we must ``protect and encourage
customary use of biological resources * * * that are compatible with
conservation or sustainable use requirements''--as set by the treaty.
Whether our ranchers could continue to use public and private land for
grazing could depend not just on the Secretary of the Interior's latest
grazing rulemaking, but on whether grazing is considered a compatible
use for conservation under the treaty. This bio-diversity treaty could
preempt the decisions of local, State, and Federal lawmakers for use of
our natural resources. The details that are left for negotiation could
subject every wetlands permit, building permit, waste disposal permit,
and incidental taking permit to international review.
We would be subjecting property owners to international review, which
would be yet another step in the already egregious bureaucratic
processes, just to have the very basic permits necessary for the use of
their own private property.
I believe that arguments that the treaty should have been approved by
August 30, 1994, in order to have a vote at the conference of parties
in November 1994, are without merit. The administration is fully aware
of the Senate's authority to approve treaties and the time necessary
for approval. The administration should have left more time for
consideration by the full Senate.
Here we are, in the last 10 days of scheduled session, and we are
being asked to consider a very important international treaty that is
not very well known, and the consequences of which are even less well
known.
I am well aware of some Senators' concerns about approving the treaty
before the November conference of parties so that we can be a
participant. But we will qualify as an observer to the negotiations.
The United States would be the largest donor to the Global Environment
Facility--the proposed financing mechanism--and certainly can expect
the parties to pay close attention to our suggestions if they want us
to contribute money.
Mr. President, I think the responsible approach here would be to let
the November conference of parties come together before we have passed
this treaty. Let us review what other parties propose at the
negotiations. I think it would be better to pass the treaty later,
after we know the details.
I do not feel comfortable, Mr. President, giving a blank check,
passing a treaty which is a very important constitutional
responsibility of this Senate, before we have fully negotiated the
treaty and know what will be in it.
I think it is very, very important that we wait and get more
information. We can ratify the treaty later. The important thing, Mr.
President, is that we do not pass something that will bind this
Congress and our Nation when we do not have enough information about
what is going to be in the treaty.
We cannot approve a treaty on someone else's timetable. Unless we are
given adequate time to fully debate the treaty and make reservations
and understandings as are absolutely necessary, we should not act. We
should have full and open debate on these issues. We should not rush
this treaty at the last moment before the end of Congress.
Several of my colleagues and I have statements for the Record in
opposition to consideration of the treaty at this time, and about the
concerns that we would like to have addressed before or during the
November meeting. The five of us, and many others of our colleagues,
will oppose a motion to proceed to consideration of the treaty.
the biodiversity treaty
Mr. BURNS. Mr. President, the Biological Diversity Treaty may come
before the Senate for ratification. I strongly oppose this treaty. I am
fearful of how this treaty will effect Montana's agriculture and our
other natural resource industries. This is yet another example of the
Clinton administration's war on the West.
The Convention on Biological Diversity was reached at the Rio De
Janeiro meeting in 1992. At the time the treaty was drafted, the United
States was cautious about embracing such a sweeping plan. Since that
time the Clinton administration has asked the Senate to ratify the
treaty.
This treaty makes me nervous. U.S. environmental laws are currently
encroaching on our private property rights. Provisions like the
Endangered Species Act and wetlands laws are dictating what private
land owners can and cannot do with their own land. This treaty could
give a panel outside the United States the right to dictate what our
environmental laws should say. That is wrong.
I have long believed that the best land management decisions are
those made at the local level. Instead of moving our decisions from
Washington to the local level, this treaty moves these decisions
overseas.
Each Senator should have received a letter from 293 groups from
around the Nation who oppose this treaty--14 Montanan groups, including
the Montana Farm Bureau Federation, Putting People First, and
Grassroots for Multiple Use have joined in this impressive letter.
These folks are right, the treaty is vague and leaves too many
questions unanswered.
Just as the intent of the Endangered Species Act has been twisted, I
am fearful of how this treaty could be twisted to push legitimate, job
creating activities, off not only public, but private lands. Montanans
do not want that.
I urge my Senate colleagues to join me in opposing this treaty.
convention on biological diversity
Mr. CRAIG. Mr. President, on August 5, 1994, I was one of 35 Senators
who wrote to the majority leader raising a number of questions about
the Convention on Biological Diversity. The concerns I had then remain,
despite attempts of the administration to explain away apparent flaws
in the document.
If anything, I have become even more concerned about the convention
after reading the analysis titled Technical Review of the Convention on
Biological Diversity written by Mark Pollot and Allan Fitzsimmons. This
new report raises very serious questions about the purpose of the
convention and the impact it may have on domestic policy. My reading is
that States' rights and private property rights could be severely
compromised.
I am not at all inclined to take the position that it will all work
out for the best, and accept the premise that the convention will not
be used to inflict added regulation on property owners and public land
uses. I have seen too much of that in recent years. I have no doubt
that environmental interest groups are waiting in the wings to attack
the Western public lands States with legal actions stemming from new
authorities they find in the convention. Article 8, for instance, calls
for the eradication of alien species which threaten ecosystems. I
envision that provision being used as leverage to eliminate cattle and
sheep grazing from public lands. Article 8 also calls for added
regulations outside protected areas. That sounds exactly like the calls
I have heard, so far unsuccessful, from opponents of multiple use who
wish to create artificial buffer zones for millions of acres outside
Yellowstone National Park and Hell's Canyon National Recreation Area.
The Federal Government controls 63 percent of the land in the State
of Idaho. Our economy and our lifestyle are sensitive to the pull and
tug of environmental laws and their interpretation by Federal
agencies--particularly so when it comes to the Endangered Species Act.
The majority of the State's land area is encumbered by one or another
species listed under the ESA. Unfortunately, the ESA has become a tool
for those groups attempting to stop logging, mining, and irrigation,
and to remove cattle from the public range. They have used every nuance
offered by the ESA and its interpretation in the courts to raise
challenges and pursue litigation at an alarming rate. At this very
moment, a Federal judge is considering a request for injunction which
would shut down all activities on six national forests in Idaho.
Environmentalists will stop at nothing in their zeal to extend the
power of the ESA, regardless of the disruption and damage which
results.
Though the ESA is well beyond its time for reauthorization, the
Environment and Public Works Committee has delayed markup and rebuffed
amendments. I believe the convention would lend even more strength to
the ESA and offer further opportunity for those who oppose traditional
Western public land uses. I am not about to let that happen. There are
many other examples I could quote from the convention which appear to
open public land management to a new barrage of legal initiatives from
those who would close these lands to public use.
The convention simply is not ready for ratification by the Senate.
Terms are too vague and definitions are lacking. The convention needs
much more thorough review by committees with jurisdiction before any
action is taken. One hearing was held in the Foreign Relations
Committee. I believe the Committee on Energy and Natural Resources, and
perhaps others, have an interest and shoud have time to hold hearings
and develop the record in terms of public land and agricultural
implications.
As I understand it, there is no advantage to the United States to
ratify the treaty at this time. The United States will be in attendance
at the conference of parties which is scheduled for late November. Our
status there will not change if the treaty is ratified now. The
conference will begin to add details and understandings to the
convention. Even today, a 300 page draft of protocols to be considered
at the conference is just arriving for review. We will know much more
after the convention about how the terms of the convention will be
interpreted. An argument has been made that our negotiating position at
the conference is stronger if the Senate has not ratified the treaty.
Other countries will be aware that the United States is withholding
approval until after definition is added and we have had a chance to
review and analyze it.
Mr. President, there are simply too many unanswered questions about
the convention. The Senate needs more time to examine all aspects. I
strongly urge that we not act on the resolution for ratification at
this time.
convention on biological diversity
Mr. HELMS. Mr. President, I have a number of concerns about this
treaty--concerns that I have expressed before, and which I will repeat
for the record.
The many nations represented at the negotiation of this treaty at the
so-called Earth summit had widely varying national agendas--agendas
that had little to do with environmental protection. Further, I believe
that many of the clauses and statements in this treaty reflect a rather
common view among so-called developing nations that this treaty is some
sort of an international cash cow to be milked by transferring, with no
strings attached, wealth and technology from developed nations to
promote the economic growth of developing nations. I give them credit
for recognizing their own national interests and pursuing them--a
matter in which I believe our own State Department could learn a thing
or two.
In particular, I find the convention's treatment of intellectual
property rights, finances, voting procedures, technology transfer and
biotechnology dangerously muddled, vague and disturbing.
But there is an even more fundamental concern: The treaty before us
will commit the United States to certain obligations, but the Senate,
which is being urged to ratify this treaty now, has no way of knowing
the nature and extent of those obligations. The treaty spells out no
details, nor does it refer directly to any existing mechanism or
structure.
For example, articles 20 and 21 of this treaty commit the developed
country parties to provide new and additional financial resources to
developing country parties. Who are the developed countries and who are
the developing countries? That will not be known until after the treaty
enters into force. At its first meeting, the so-called conference of
parties will establish a list.
What about these new and additional financial resources? How much
money will the Senate be committing the United States to paying by
ratifying this treaty? Is that not a reasonable and straightforward
question, one which we are obliged to ask before ratifying?
Yet we don't know. Once again, we learn that there shall be a
mechanism for the provision of financial resources to developing
countries and the operation of that mechanism shall be carried out by
such institutional structure as may be decided upon by the conference
of parties at its first meeting.
Tim Wirth came before this committee and assured us that our
financial obligations are known, that the financial mechanism is in
fact established. I challenge him to specify where that is stated in
the treaty. The treaty itself is silent on these matters, and,
according to the Vienna Convention on the Law of Treaties, matters or
disputes requiring interpretation shall refer to the text of the treaty
itself.
The administration assures us that it will guard U.S. interests at
the conference of parties. It assures us that it will not allow any
surprise developments that we would not support. I am gratified to hear
that, but I cannot accept this abdication of the Senate's
constitutional privilege to advise and consent to a treaty before
ratification.
This so-called treaty is scarcely more than a mere preamble, not a
treaty. The real treaty--the essential nuts and bolts--is yet to be
created at the conference of parties. If the Senate precipitously
ratifies this preamble falsely described as a treaty, it will have
given away one of its major constitutional authorities and will have
betrayed the trust of the American people.
There is a simple solution: Article 23, paragraph 5 of the treaty
provides that any state not party to this convention may be represented
as observers at meetings of the conference of parties. Even if the
United States ratified the convention now, it could participate in this
first conference of parties only as observers. But that is just fine:
the United States' voice will be heard loud and clear. The United
States is the single largest contributor to this convention; it plans
to fund it to the tune of $420 million over 5 years. If that does not
count for something, then we are crazy to even consider ratification.
When some of the vagueness of this convention is cured--the voting
rules, financial procedures, definitions of developed and developing
States, definition of terms like ``alien species'' and ``biosystem,''
technology transfer arrangements, biotechnology issues, et cetera then
bring it back to the Senate for hearings and consideration. The more
this administration tries to push this through at the eleventh hour of
the 103d Congress, the more suspicious I get.
the convention on biological diversity
Mr. NICKLES. Mr. President, along with several of my colleagues, I
continue to have serious concerns regarding the Convention on
Biological Diversity, treaty document 103-20. I understand that the
distinguished majority leader may bring the convention before the
Senate prior to adjournment. One of several major issues that has not
been adequately addressed by the Clinton administration relates to the
effect of the convention on State, local, and tribal laws and rules.
Prior to Senate consideration, it is imperative that we are sure
about the extent to which this convention will impact Federal agency
regulations and actions taken by the Federal Government, its agencies,
or its agents in pursuit of or in furtherance of the convention. Will
the convention be construed by courts to preempt, supersede, or limit
any existing or future State, local, or tribal laws or regulations,
including those laws or regulations that apply to private lands, such
as those lands that may lie adjacent to Federal wildlife refuges or
wilderness? At this point, we do not know.
The Clinton administration has frequently assured us that they will
take care of these problems. They have sent up supporting statements
about the convention, but they have given little information on the
likely effect on State, local and tribal law.
I point out that the memorandum of record signed by the Secretaries
of State, Agriculture, and Interior on August 16, 1994, states that the
convention does not provide for a private right of action. This is
small comfort, and may not even be true. Many Federal environmental and
administrative procedure laws generously provide third parties with
standing to bring enforcement actions or challenges into Federal
courts. Frivolous suits brought by groups against individuals and small
businesses have been devastating to the defendants named in those
suits, even if the plaintiffs' suits are ultimately dismissed for lack
of standing. But standing may be granted simply because this is a
treaty, irrespective of the absence of specific language in the
convention providing a private right of action. As discussed by
constitutional lawyer Mark Pollot in ``Technical Review of the
Convention on Biological Diversity:''
Indeed, the very existence of the convention itself may be
used by opponents of the state-based action to move actions
into federal court on the theory that the convention makes
local and State land use and zoning questions inevitably
Federal questions based on a claim of preemption. It is not
the treaty itself which gives rise to the question, but the
supremacy clause [of the U.S. Constitution].
I am very concerned about the potential reach of this convention into
the realm of constitutionally protected property rights of individuals
and the rights of State, local, and tribal governments to control uses
of land within their jurisdictions. I am also highly concerned about
the effect of the convention and actions taken under it on the
financial and other resources of the individuals and State, local, and
tribal governments who will be forced to expend those resources to
defend against the infringement of their constitutionally protected
rights when actions taken in pursuance of the convention affect those
rights.
This is only one of the many issues left unanswered about the
convention's possible impact. It is clear that the Senate should not
try to rush through its advice and consent to the convention's
ratification until we have more information. In particular, the
conference of the parties provided for in the convention will meet in
November, and is expected color in many of the blank areas in the
convention text. Also, hundreds of pages of protocol language is
currently being drafted for the November meeting, none of which will be
subject to Senate advice and consent if the Senate rushes to take
action now. The Senate must be allowed to review the convention with
these details attached before deciding whether this is in the interest
of the United States. We should at least wait until next year before
committing our country to unknown obligations we may have reason later
to regret.
convention on biological diversity
Mr. WALLOP. Mr. President, I rise today to express my concern on the
haste with which we are being asked to act on the Convention on
Biological Diversity. When reviewing international treaties, it is the
role of the Senate to provide advice and consent to the President. This
process is meant to protect the interests of the U.S. treaties define
the United States relations in the international community and, as
such, can have a tremendous effect on domestic law.
The so-called biodiversity treaty attempts to globalize the
enforcement of restrictive environmental laws. These laws, as contained
in the treaty, remain consistent with this administration's current
environmental policies. At the agency level and in Federal courts
across this Nation, the administration has fought to subordinate
private property rights to the newly proclaimed rights of various plant
and animal species. It has sought to define ponds and lawns wet from
leaky sprinkler systems as navigable waterways under the Clean Water
Act, simply to transfer more property from private ownership to the
Government. The biodiversity treaty, as written, would give the Clinton
administration even greater authority to accomplish suspect
environmental goals.
Furthermore, article 8 of this treaty mandates that parties to the
treaty take appropriate action and special measures to conserve
biological diversity in protected areas. What is a protected area? By
the treaty's definition, it is a geographically defined area which is
regulated to achieve specific conservation objectives. In other words,
a protected area is whatever an anonymous Federal bureaucrat says it
is.
Under this treaty, the Federal Government would be required to manage
biological resources important for the conservation of biological
diversity whether within or outside these protected areas. Yet, nowhere
in this treaty, or in any literature about the treaty, is there an
explanation of the substantive qualities of protected areas, threatened
species, or alien species, which necessitate their regulation or, in
the case of alien species, their eradication.
Many of us have taken long lists of concerns to the State Department.
In return we have received the weakest of verbal assurances that our
concerns will be taken care of. We have been told that unseen,
forthcoming protocols will rectify and clarify any and all problems.
The State Department has even gone so far to say that we can safely
agree to the treaty without ever seeing these 300 pages of protocols.
We know that this treaty is not complete, and we know it will not be
complete until after the conference of parties has completed its work.
I ask you, can the United States Senate, in good faith, give its
consent to this treaty without having had an opportunity to scrutinize
the completed convention? The best advice we can give President Clinton
right now is to wait until the Convention on Biological Diversity has
been completed before asking for our consent.
amendment no. 2601
Mr. CHAFEE. Mr. President, I am relieved Senators Metzenbaum and
Hatch have agreed to withdraw their amendment to limit the antitrust
exemption conferred upon major league baseball by a 1922 Supreme Court
decision.
First, this is no way to legislate. We are in the 11th hour of the
session, on the last appropriation conference report pending in the
Congress. The Judiciary Committee is the place to consider, debate and
refine an authorization such as this--not the Senate floor.
The real issue is whether or not the Federal Government should inject
itself into a private labor-management dispute--plain and simple. It is
my steadfast view that the Congress has no business interfering in a
collective bargaining dispute, except under the most extraordinary of
circumstances.
Second, and finally, I am opposed to this amendment because it would
have a detrimental impact on minor league baseball, which draws
substantial financial support from the major league franchises. This is
the farm team system, the fresh blood for the major leagues, and thus,
crucial to the future of baseball.
The salaries of all minor league players are covered by major league
baseball--a cost to the clubs of about $8 million per year. This
subsidy enable minor league baseball to sell affordable tickets, and to
provide maximum benefit to the fans.
Rhode Island is a minor league State, and we are extremely proud of
our own Pawtucket Red Sox, a club within the International League. And
let me tell you, they have had a great season, with a packed stadium
almost every night. That team has been the training ground for some
great players including Jim Rice, Fred Lynn, Wade Boggs, and Roger
Clemens. Rhode Island has had a long tradition of minor league
baseball, dating back to the founding of the Providence Grays in the
1890's. Our own Pawtucket Red Sox began their great tradition in 1968.
They are a valued asset in our State, with a passionate and loyal
following. Their future would be threatened if this legislation were
enacted, and thus, I will continue to oppose legislation along these
lines.
Mr. WOFFORD. Mr. President, here it is the end of September--and
there are no pennant races. Obviously, baseball has serious problems.
We are at a major impasse.
The owners and the players could not sit down at a table and work out
a compromise to save the season, and we are all the losers for it.
The amendment offered by my colleague from Ohio, Senator Metzenbaum
however well-intentioned, is not the best way to go forward. I'm
concerned that it would hurt small market teams.
While I agree that it is proper for Congress to review the state of
the game, I will vote against Senator Metzenbaum's amendment.
The PRESIDING OFFICER. The Senator from North Dakota is recognized.
Mr. DORGAN. Mr. President, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________