[Congressional Record Volume 140, Number 146 (Saturday, October 8, 1994)]
[House]
[Page H]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: October 8, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                 THE CONVENTION ON BIOLOGICAL DIVERSITY

  Mr. MITCHELL. Mr. President, I would like to talk for a few minutes 
about the Convention on Biological Diversity.
  During my time in the Senate, I have worked to ensure that our 
Nation's natural resources were protected. In the past decade, Congress 
has passed important legislation such as amendments to the Clean Air 
Act, the Clean Water Act, the Endangered Species Act, legislation to 
prevent oil spills, legislation to conserve wetlands, to reduce the use 
of toxic substances, and to reduce indoor air pollutants. These laws 
help ensure public health and give our children the opportunity to 
benefit from our Nation's resources.
  That is why I am disappointed that some Members of the Senate will 
not allow the Senate to complete its work on this important treaty 
which will help other nations reach the levels of environmental 
protection that we have here in the United States. We had the chance to 
ratify a treaty that was negotiated by the international community for 
2 years during the Bush administration, worked on extensively for a 
year by the Clinton administration and submitted to the Senate almost 1 
year ago. All of this work was undertaken because scientists and 
nations the world over recognize that the natural heritage of four 
planet--the biological diversity we inherited and should pass on to our 
children and grandchildren--is increasingly threatened.
  As no document ever is, this treaty is not perfect. But the treaty 
was able to be brought before us because of the determined efforts by 
the current administration to address the legitimate concerns that have 
been raised--particularly with respect to finance, technology transfer, 
and biotechnology.
  After a year of working with a coalition of industry groups and 
NGO's, the administration was able to transfer to the Senate a 
ratification package on November 29, 1993. The package included 
interpretive statements to be submitted to the United States detailing 
U.S. positions and understandings on the important financial and 
technology transfer areas.
  During the hearings of the Senate Foreign Relations Committee on the 
treaty, the pharmaceutical and biotechnology industries testified in 
support of the treaty. Two Senators--one Democrat, one Republican--
testified on behalf of the treaty and not one Senator present raised a 
concern or expressed any problem with the Treaty. The treaty was 
reportedly favorably from the commission 16-3. Unfortunately, that was 
the last time the treaty was able to be considered by this body.
  In early August, Republican Members, as is certainly their right, 
raised questions about the possible impact of the treaty on U.S. 
agricultural and land-use interests. These questions were immediately 
answered in an August 8 letter to the Senate leadership. The 
administration also followed up with a more detailed memorandum of 
record signed by the Secretaries of State, Agriculture, and Interior. 
The administration also has sent to Senator Dole an opinion answering 
legal questions on the treaty which I submit for the Record. The 
administration has answered every question that has been raised about 
the treaty. With these steps completed, it was hoped that we could move 
toward floor consideration--but we could not clear a unanimous consent 
agreement on the Republican side.
  I would like to quote from a letter sent to the Senate on September 
29 from 8 agricultural and industry groups which sums up the 
administration's response to these groups concerns,

       Questions about the treaty's possible impact on public and 
     private property rights, whether the treaty itself could be 
     used as a basic for regulatory action or give rise to 
     citizen's suits and whether it would in any way impede the 
     amendment of U.S. environmental have all the been 
     appropriately dealt with in the Memorandum of Record.

  Mr. President, I would like to the submit this letter to the Record.
  The PRESIDING OFFICER. Without, objection, it is so ordered.
  (See exhibit 1.)
  Mr. MITCHELL. Mr. President, I would also like to place in the Record 
a list of industry associations, nongovernmental organizations, and 
U.S. companies who have been actively supporting the ratification of 
the treaty.
  These groups support the treaty because it is in the best economic 
and environmental interest of the United States. Here are some reasons 
why the treaty should be ratified.
  Biological resources underpin many sectors of the U.S. economy, 
including farming and the agriculture industry, and developments of 
medicines, medical technology; and biotechnology. Some estimate that 
biological resources contribute more than $87 billion annually to our 
gross domestic product.
  Ratification of the treaty would provide access to plant genetic 
resources vital to agricultural production. The Office of Technology 
Assessment reports that biodiversity was added $3.2 billion to U.S. 
annual soybean production, and $7 billion to our corn production.
  The convention will protect U.S. access to genetic resources critical 
to the development of substances that may cure diseases such as the 
AIDS virus. Over 3,000 antibiotics are derived from microorganisms 
dependent on the world's biological resources. The treaty protects the 
United States from unnecessary restrictions on trade in biotechnology 
products.
  Despite the support of a wide array of organizations and citizens 
across the country, ratification of the treaty was held up due to 
unfounded claims. The administration spent much time and enjoy 
explaining the treaty to those concerned, and created a memorandum of 
record to address concerns about the provisions of the document. Still, 
Republican Senators chose to obstruct consideration of this important 
convention, and by doing so they hinder the economic and environmental 
benefits that can be derived from full participation in the treaty.

                               Exhibit 1

                                               September 29, 1994.
     Hon. Ted Stevens,
     U.S. Senate, Hart Senate Office Building, Washington, DC.
       Dear Senator Stevens: We believe that concerns raised 
     earlier about the impact of the Biodiversity Treaty have been 
     adequately addressed and that Senate ratification is 
     desirable to protect the interests of U.S. agriculture.
       Questions about the treaty's possible impact on public and 
     private property rights, whether the treaty itself could be 
     used as a basis for regulatory action or give rise to 
     citizen's suits and whether it would in anyway impede the 
     amendment of U.S. environmental law have all been 
     appropriately dealt with in a Memorandum of Record forwarded 
     to the Senate by the Secretaries of State, Agriculture, and 
     Interior.
       The organizations listed below have a direct and vital 
     interest in the continuing development of U.S. agriculture. 
     We believe that access to protoplasm originating outside the 
     U.S. is vital to domestic plant breeding efforts and will 
     best be protected by the country's participation in 
     negotiations under the Treaty.
       It is our view that overall protection of the planet's 
     biodiversity, as well as the future development of domestic 
     agriculture resources, will be substantially aided by Senate 
     ratification of the Biodiversity Treaty. We urge that this be 
     done quickly so that U.S. participation in the Conference of 
     Parties scheduled for November-December 1994 is significantly 
     strengthened.
           Very truly yours,
         Carl B. Feldbaum, Biotechnology Industry Organization; 
           Dave Lambert, American Seed Trade Association; John 
           Studebaker, American Seed Research Foundation; John R. 
           McClandon, President, American Soybean Association; 
           Judy Olson, President, National Association of Wheat 
           Growers; Dale Cochran, National Council of Commercial 
           Plant Breeders; Pete Wenstrand, President, National 
           Corn Growers Association; Thomas E. Stenzel, President, 
           United Fresh Fruit & Vegetable Association.
                                  ____


Companies, Associations and Organizations That Support the Biodiversity 
                               Convention

       American Corn Growers Association (12,000 Members).
       American Cyanamid.
       American Institute of Biological Sciences (50 Affiliates).
       American Seed Research Foundation.
       American Seed Trade Association (800 Companies).
       American Soybean Association (29,000 Farmers, 29 States).
       Archer Daniels Midland.
       Biodiversity Action Network (61 Academic, Scientific and 
     Environmental Organizations).
       Biotechnology Industry Organization (560 Companies).
       Calgene Corporation.
       Ciba Geigy.
       Genentech.
       Genzyme Corporation.
       Hoffmann'la Roche.
       International Association of Fish and Wildlife Agencies 
     (200 Members).
       Merck.
       Mycogen.
       Monsanto.
       National Association of Wheat Growers (65,000 Farmers, 22 
     States).
       National Cooperative Business Association (45,000 
     Cooperative Businesses).
       National Corn Growers (28,555 Corporations, 24 States).
       National Council of Commercial Plant Breeders.
       National Farmers Union (253,000 Farmers, 50 States).
       Pharmaceutical Research & Manufacturers Association (100 
     Companies, 40 States).
       Pioneer Hybred International Incorporated.
       Shaman Pharmaceuticals.
       United Fresh Fruit and Vegetable Association (1500 
     Companies).
       United States Council of International Business (300 
     Multilateral Companies, Trade Associations and Law Firms).
       Zeneca Seeds.
                                  ____



                                     U.S. Department of State,

                                  Washington, DC, October 6, 1994.
     Hon. Robert Dole,
     U.S. Senate.
       Dear Senator Dole: Thank you for your letter of September 
     30, co-signed by Senators Nickles and Shelby, setting forth 
     certain views relating to the Convention on Biological 
     Diversity.
       The Administration has several times sought to address the 
     issues raised by your letter, which primarily concern whether 
     the Convention, if ratified, would prompt unwanted and costly 
     litigation or would overturn state, local and tribal laws. 
     For example, we have provided information on these matters in 
     the report and message transmitting the Convention to the 
     Senate; in testimony on the Convention before the Senate 
     Foreign Relations Committee; through the Memorandum of Record 
     signed by the Secretaries of State, Agriculture and Interior 
     on August 16; through responses to previous questions from 
     Senators; and in briefings provided to Senate staff.
       We are nevertheless pleased to provide the following 
     additional information to assist you and the Senate as a 
     whole in your further consideration of this important treaty. 
     The Department is also prepared to discuss these issues 
     further with your staff as the ratification process moves 
     forward.
       Your letter first seeks an analysis of the extent to which 
     the Convention, or federal actions taken to implement the 
     Convention, could preempt, supersede or limit state, local or 
     tribal laws and regulations. In our view, U.S. ratification 
     of the Convention would not have any such effect. The 
     conservation obligations of the Convention are sufficiently 
     flexible as to allow the United States to implement them 
     without disturbing either the overall balance of federal and 
     state responsibilities or further preempting any state, local 
     or tribal law. Indeed, as the Administration has stated 
     repeatedly, the interwoven pattern of conservation laws and 
     programs at all jurisdictional levels in the United States 
     goes well beyond the minimum standards needed to meet our 
     obligations under the Convention.
       The Secretary of State's letter of transmittal sets forth a 
     lengthy menu of federal statutes that are available to 
     implement the Convention. No additional legislation is 
     necessary. We have responded promptly and fully to all 
     requests for additional information concerning the 
     implementation of specific provisions of the Convention.
       Moreover, we have stated that we anticipate no scenario 
     under which the Convention would be used to preclude 
     amendment of these statutes. For example, we are aware of no 
     proposal to amend the Endangered Species Act that would place 
     us in non-compliance with the Convention.
       Your letter next calls into question the statement 
     contained in the Memorandum of Record, signed by the 
     Secretaries of State, Agriculture and Interior on August 16, 
     that the Convention does not provide a private right of 
     action. More specifically, the Memorandum of Record 
     stipulates that:
       The convention sets forth rights and obligations among 
     countries. The Convention does not, expressly or by 
     implication, create a private right of action under which a 
     private person or group may challenge domestic laws and 
     regulations as inconsistent with the Convention, or failure 
     to enforce domestic laws or regulations promulgated 
     thereunder.
       We stand by this statement. The Convention contains no 
     provisions granting a private right of action in the domestic 
     courts of States that become party to it. Moreover, because 
     the Convention is not self-executing, private parties in the 
     United States could not successfully challenge governmental 
     action, at any level, as inconsistent with the Convention. As 
     noted in the analysis undertaken by Mark Pollot (``Technical 
     Review of the Convention on Biological Diversity''), which is 
     cited in your letter, certain federal environmental and 
     procedural laws create private causes of action; a private 
     right of action would not, however, be created by 
     ratification of this treaty or by the supremacy clause of the 
     Constitution.
       Similarly, U.S. ratification of the Convention also would 
     not give a private party in the United States standing to 
     bring such an action in any case in which such a party 
     otherwise lacked standing. In Defenders of Wildlife v. Lujan, 
     the U.S. Supreme Court recently elaborated the criteria for 
     determining  whether private parties have standing to 
     challenge environmental actions and policies of the 
     government. None of these criteria depend on whether the 
     United States has ratified a treaty such as the Convention 
     that is related to the subject matter of the case.
       For these reasons, we disagree with the rather sweeping 
     assertion of Mr. Pollot that U.S. ratification would cause a 
     ``well-spring of litigation, making the Convention a likely 
     candidate for the most litigated treaty in American 
     history.'' Because U.S. ratification of the Convention would 
     give private parties neither a cause of action nor standing 
     that they otherwise lacked, we do not foresee any justifiable 
     litigation of the sort Mr. Pollot fears.
       Your letter also expresses a concern that the Convention 
     could adversely affect property rights protected by the U.S. 
     Constitution. We are pleased to assure you that this concern 
     is unfounded. We do not see anything in the text of the 
     Convention that could be interpreted to violate the U.S. 
     Constitution.
       Similarly, U.S. ratification of the Convention would not 
     further restrict the right of state, local and tribal 
     governments in the United States to control land use. Indeed, 
     with the advice of the International Association of Fish and 
     Wildlife Associations, which was a regular member of the U.S. 
     delegation during the negotiation of the Convention, the 
     United States expressly negotiated the Convention to avoid 
     any shift in the balance of federal and state authorities. On 
     the contrary, the Administration is committed to 
     strengthening--not dismantling--this balance. As the United 
     States stated at the close of the negotiations and as the 
     President reaffirmed in his letter to the Senate transmitting 
     the Convention:
       Biological diversity conservation in the United States is 
     addressed through a tightly woven partnership of federal, 
     state and private sector programs in management of our lands 
     and waters, and their resident migratory species. There are 
     hundreds of state and federal laws and programs and an 
     extensive system of federal and state wildlife refuges, 
     marine sanctuaries, wildlife management areas, recreation 
     areas, parks, and forests. These existing programs and 
     authorities are considered sufficient to enable any 
     activities necessary to effectively implement our 
     responsibilities under the Convention. The Administration 
     does not intend to disrupt the existing balance of federal 
     and state authorities through this Convention. Indeed, the 
     Administration is committed to expanding and strengthening 
     these relationships.
       We hope this information is helpful. The Administration 
     remains convinced that prompt U.S. ratification of the 
     Convention is in the national interest.
           Sincerely,
                                                 Wendy R. Sherman,
     Assistant Secretary, Legislative Affairs.

                          ____________________