[Congressional Record Volume 141, Number 118 (Thursday, July 20, 1995)]
[Senate]
[Pages S10369-S10373]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       THE REGULATORY REFORM BILL

  Mr. JOHNSTON. Mr. President, I want to give my colleagues a report on 
the regulatory reform bill as I see it. As of last night, those of us 
who were in favor of regulatory reform had presented a list of four 
amendments which we were willing to concede to. In my judgment, they 
went further than I would have liked to have gone. One dealt with that 
issue of least cost. In the current Dole-Johnston amendment, least cost 
is not the test. We have made that repeatedly clear. However, we have 
offered an alternative that is 

[[Page S10370]]
framed in terms of the language that the opponents of regulatory reform 
wished, and we have heard nothing back from that, at this point, 
together with three other amendments we were willing to go along with.
  As I understand it, those who are opposed to the Dole-Johnston 
proposal are urging people not to vote for cloture on the grounds that 
there is this great negotiation going on that is getting close. If 
there is such a negotiation going on, I am not aware of it. We are 
waiting for an answer and not receiving one.
  I do not know whether the majority leader is going to call for 
another cloture vote or not. At this point, I must say, it appears we 
do not have the votes for cloture, which means the regulatory reform 
bill will go down to defeat. The majority leader, of course, is in 
charge of the schedule, but I am advised that is a busy schedule.
  Unfortunately, there are members of the other party who would like 
the issue of regulatory reform not to pass, to have the issue. There 
are Members on this side of the aisle, I think, who would like the 
issue for the opposite reason. And many of us are in the middle, who 
fervently believe we ought to have regulatory reform, that it is one of 
the most wasteful operations of Government that we now have, that we 
have an opportunity, really to do something important, something that 
will really make sense out of the regulatory problems we have today.
  I very strongly believe that. I have very strongly believed in 
regulatory reform for 2 years now, since the Senate initially passed, 
last year, by a vote of 94 to 4, a risk-assessment proposal. Now, when 
we are on the threshold of being able to get it done, unfortunately it 
appears it is going down the drain, mainly by arguments against the 
Dole-Johnston bill which are simply not correct; some of which, by the 
administration, are made disingenuously, in my view.
  To say the test is least-cost under the Dole-Johnston bill is just 
not true. It is there in very plain language, very plain language. 
Nevertheless, I think we will probably, if I read the majority leader 
correctly, have another cloture vote; and failing in that, which I 
guess we will, it will be farewell to regulatory reform. That is a real 
shame. And I do not understand the opposition to this bill.
  If there are amendments that need to be made, let us know about them. 
There is nothing, nothing, zero, going on, in terms of trying to 
resolve this question. It looks as if it is a lost cause, and I regret 
that.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. BENNETT. Mr. President, I want to take this occasion to commend 
the Senator from Louisiana for his leadership on this issue, and assure 
him that this is one Senator who agrees. I do not want it held as an 
issue. I want it as an accomplishment.
  I think we would all be better off if we went home and campaigned on 
our accomplishments than on our rhetoric and on our demagoguery on 
these issues.
  I know the Senator from Louisiana has labored long and hard on this 
issue. He has shown his usual patience. I served as a member of a 
committee which he chaired and discovered that patience in a variety of 
circumstances.
  I am grateful to him for his statement here today, and want to align 
myself with his plea, for whatever we will do on my side of the aisle, 
to say let us not hold this as an issue, let us do the very best we can 
to bring it to a head, get cloture and get this done.
  I yield the floor.
  Mr. DORGAN addressed the Chair.
  The PRESIDING OFFICER (Mr. Kyl). The Senator from North Dakota.
  Mr. DORGAN. Mr. President, I was interested. As the Senator from 
Louisiana began speaking he talked about speaking on behalf of those 
who want regulatory reform. I do want to say I think the Senator from 
Louisiana is one of the best Members of the U.S. Senate, is one of the 
most thoughtful, bright, and interesting Members of the U.S. Senate.
  I will say to him, however, that I do not think there is a division 
in this body between those who want regulatory reform and those who do 
not. I am someone who supports the Glenn-Chafee substitute. It is in my 
judgment a legitimate, serious substitute that will in and of itself 
create substantial regulatory reform.
  So I really do not think this is a question of a group of people who 
want things just the way they are, and who love the status quo with all 
current regulations. It is not the case. Most Members of the Senate, I 
believe, feel very strongly that there are some Government regulations 
that are silly, that are intrusive, that are totally inappropriate, and 
that simply overwhelm for no good cause a lot of Americans who are 
trying to run small businesses, or big business for that matter. We 
want to change that.
  But we also care very much about important, good regulations that 
work. I know the Senator from Louisiana does as well. He has heard me 
describe before the circumstances with respect to the Clean Air Act. 
The Senator was describing the other day circumstances in which I 
believe it was EPA was describing the kind of approaches here on 
regulations as a result of popular public opinion or public opinion 
polls. I understood what the Senator was saying.
  On the other hand, in the 1970's America woke up and decided as a 
result of a new consciousness with Earth Day and other things that we 
cannot keep spoiling the nest we are living in, that we have to stop 
polluting the air and start cleaning the air, that we have to stop 
polluting the water and start cleaning our water. If that was the 
public will, I applaud EPA, and others, and applaud the Congress for 
saying this is the public will, to let us decide to hitch up and do it.
  Twenty years later, as the Senator from Louisiana well knows, we now 
use twice as much energy in America and have cleaner air. Is it perfect 
air? No. We still have some air quality problems. But instead of the 
doomsday scenario that a lot of folks felt we were heading toward with 
continually degrading our airshed, we have over the last 20 years, even 
as we have substantially increased our use of energy, cleaned America's 
air. We have cleaner air and less smog. I happen to feel very proud of 
that. I think that is an enormous success story.
  Not many people even know it. No one will talk about it, because 
success does not sell. Failure and scandal sells. Success does not. We 
have fewer problems with acid rain. We have cleaner rivers, cleaner 
streams and cleaner lakes in America now than we had 20 years ago. That 
is quite a remarkable accomplishment and achievement once our country 
decided we were going to do things the right way. I am enormously proud 
of that.
  I just do not think under any condition we want to retreat on those 
fundamental principles. We are fighting for clean air, we are fighting 
for clean water, and we are fighting to maintain a safe food supply. 
All of those things are important.
  I join the Senator in his concern about trying to streamline 
regulations with regulatory reform. The desire for regulatory reform, I 
think, is shared by virtually every Member of this body. The division 
at the moment is a division between those of us who want to do this in 
the manner described in the Glenn-Chafee substitute versus those who 
want to do it in the manner described in the Dole-Johnston substitute.
  I just took the floor in order to say that I think there is a uniform 
desire here to do the right thing with respect to regulations. We do 
not in any event want to roll back the regulations that have allowed us 
to achieve significant victories in the last 20 years with respect to 
clean air, clean water, and safe food. That is what I think the real 
debate is about.
  So I appreciate the thoughts of the Senator from Louisiana. I wanted 
to rise to make that point.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Mr. JOHNSTON. Mr. President, I will stand corrected--this is not 
against those who are against the bill as opposed to those who are for 
it. I think the Senator from North Dakota correctly states that it is 
those who are for the Glenn-Chafee bill and those who are for Dole-
Johnston bill. The difference is that many of us regard the Glenn-
Chafee bill as being a permissive bill; that is, it permits the 
agencies to engage in regulatory reform but it does not require them to 
do so. Whereas, 

[[Page S10371]]
Dole-Johnston does. We are operating under an Executive order now that 
on its face requires it, but actually does not require it. And if we 
are talking about a permissive kind of bill, in my view, that is what 
we have now.
  To be sure, it has resulted in great advances forward. Look, all of 
the laws for which we voted--I voted for all of these, the Clean Air 
Act, the Clean Water Act, et cetera--have made some great advances. And 
if you want to keep the present status quo, I would say the thing to do 
is vote for Glenn-Chafee. Glenn-Chafee will not pass, in my view. I 
just think it is unfortunate that this is being painted as an ongoing 
negotiation.
  Mr. KERRY. Will my friend yield?
  Mr. JOHNSTON. Yes.
  Mr. KERRY. It is the last comment previously made on the floor that 
helped bring me to the floor, and I thank my friend from North Dakota 
for already responding to some degree, and I know the Senator from Ohio 
is now here. Let me just respond to that.
  We are perfectly prepared to sit down, and we have been on an ongoing 
basis. Yesterday afternoon, I believe, I got in written form a response 
to the most recent suggestions that we made with respect to the bill. 
The principal sponsor of the bill is on the floor now. I know he will 
say that he is not stuck in the mud or cement or anything with respect 
to the fact that the Glenn-Chafee bill in and of itself, in its 
entirety, is somehow presumed to be the only vehicle to pass. We 
understand that full well. Nor are we in a position that is embracing a 
no-bill strategy. We have a lot of folks on our side of the aisle, 
myself included, who would like to vote for regulatory reform, number 
one, and who are prepared--in fact, more than prepared --we are already 
agreed in our negotiations to arrive at new decisional criteria.
  There are some outside who do not want that. But we have agreed that 
cost evaluation and risk assessment are appropriate things in a modern 
society to do to make a judgment about whether or not you are spending 
more money than the benefit you are getting.
  The problems that remain, however, are significant. When you have 48 
Senators, obviously going to diminish by 1, 2, 3--we all understand how 
it works around here. But when you have a sufficient number of Senators 
still saying this bill is a problem, and much more importantly, I say 
to my friend, when you have the President of the United States and his 
full Cabinet saying in its current form this bill will be vetoed, then 
there ought to be a legitimate effort here by all of us to legislate in 
a way that precludes that veto or try to reach a reasonableness where 
the best effort has been made to do so.
  With all due respect, we still have a problem where we are still 
fighting and the Senator knows what it is about. It is about these 88 
different standards, new standards for litigation, and the fact we do 
not feel we have sufficiently made this a bill which will, indeed, be 
reform. Our fear is that this bill in its current form is going to 
result in the agency being so swamped with petitions and having to 
respond to so much judicial review that they simply cannot do what they 
were intended to do, which is protect the health, the safety, and the 
environmental concerns of Americans.
  Now, I do not know how many times we have to say it. There are stupid 
agency rules in existence. I am confident that people of good faith can 
sit down and identify them. There are excesses where agencies have even 
reached beyond the stated intent of a statute.
  That is not what we are here to do. I am confident if we sit down 
further and continue to be able to try to reach somewhere between what 
Senator Glenn and Senator Chafee have put forward and what the Dole-
Johnston bill represents, there ought to be a meeting of the minds.
  Mr. JOHNSTON. If the Senator will yield, we submitted four major 
proposals and have asked can we clear those. Every time there is an 
argument--yesterday we had an argument about whether this is least 
cost. My friend from Michigan said no because there is this word 
``nonquantifiable.'' I said, ``I have an amendment here to take it out. 
Would you permit me to do so?"
  ``Not now.''
  Then there were other speeches back to back. We could not take it 
out. Now, we offered four amendments yesterday which I thought were 
agreeable amendments. Can we at least have agreement to take those out, 
to try to improve the bill on matters that we agree on, does not seem 
to be possible.
  Mr. KERRY. Let me say to my friend----
  Mr. GLENN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Louisiana has the time.
  Mr. GLENN. Will the Senator yield?
  Mr. JOHNSTON. Mr. President, I will yield for a question.
  The PRESIDING OFFICER. The Senator from Ohio is recognized.
  Mr. GLENN. I was surprised in my office to hear practically the death 
knell being rung over our efforts to get regulatory reform. The Senator 
is aware that he sent us a fax last night, and we are working out the 
answer to that. Meanwhile, each one of the cloture votes that we have 
had have allowed us to make some progress. We have made a lot of 
progress on this regulatory reform bill. They have offered to 
substitute ``least cost'' for ``greater net benefits''--this is an 
improvement and if we can write it up properly, we may be able to agree 
to their proposal. ``Net benefits'', as I understand it, is in the 
Executive order language. They want to use that language in the 
decisional criteria, and we are willing to consider their proposals. We 
are making progress.
  We have also made progress on litigation opportunities and judicial 
review, as I understand it. I believe we agree that the final rule will 
be what is challengeable. We do still have a problem with the many new 
petition process. We are working on that. I think the Senator from 
Louisiana agreed a couple days ago at least on reasonable alternatives. 
Where it says ``reasonable alternatives,'' I believe his suggestion is 
to limit those alternatives that the agency has to consider to three or 
four. This is a major issue. We have not all agreed on that yet, but I 
think we can make major steps forward.
  Now, on automatic repeal of a schedule for some rules, I think we are 
pretty close on that. We still do not agree on a third area, though--on 
special interests, such as including the toxics release inventory in 
this bill.
  That is a major concern. We have made substantial progress in a 
number of areas here, and we have three or four more to go. But the 
Senator from Louisiana states that we have not gotten back with an 
answer yet to a proposal last evening. I am sure the Senator from 
Louisiana will agree this is very complex legislation. We have been 
working on it all morning and are going to meet on it this afternoon.
  So I hope we still continue in good-faith negotiations. I think we 
have made a lot of progress, and this is probably as complex a bill and 
as far-reaching for every man, woman and child in this country as 
anything we will consider in this Congress.
  I think we are making progress here. We are about to go to a meeting 
where we are going to talk about some of these very complex issues. We 
are supposed to meet at 2:15. And we are negotiating in good faith. I 
certainly do not read into our processes here anything except good 
faith on both sides.
  So I was a little bit surprised to hear the doom and gloom that I 
heard in my office a little while ago, and that is the reason I came 
over to the floor. I think we are making good progress on this. There 
are a number of areas that I think we can agree on, and I hope we can 
have more before the afternoon is over.
  Mr. JOHNSTON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Mr. JOHNSTON. Mr. President, I wish I could share the optimism of my 
friend from Ohio. He and the Senator from Massachusetts are both my 
good friends. I have great respect for their good faith, for their 
sagacity in all of these matters. But, Mr. President, it was my 
understanding that today we were going to have our final cloture vote 
and nothing seems to be happening. It seems, at least it is my view, 
that the requests for amendments are in sort of an expanding file; you 
get one and you agree to it, and then 2 or 3 days later it comes back 
to you as a criticism of the bill because somehow you did it wrong.
  It is a complicated bill. It is not that complicated. It is fairly 
straightforward. Some of these four amendments were strike amendments, 
to 

[[Page S10372]]
strike provisions that people disagreed with. Now, we ought to do that. 
We ought to say, ``I ask unanimous consent that we strike this.'' We 
cannot get agreement even to strike the language that is used against 
us. And the reason is I think because it improves the bill and helps 
get toward cloture.
  I hope that there is hope, but I do not share that hope.
  When it comes down to the final vote, whenever that is, and this bill 
goes down, there will be those who say, ``Oh, we were so close.'' I, 
for one, would just like to say I do not believe we are that close. To 
say that there are 88 ways to appeal or to attack on appeal, using that 
logic there are billions of ways because there is only one appeal and 
one standard for appeal. That is, is the final agency action arbitrary 
and capricious?
  Now, you can use an unlimited number of arguments making sense or not 
making sense, but those 88 standards are not standards for appeal. They 
are simply things that somebody can argue. Why not make it 1,000? It is 
limitless what you can argue to a court. There is no limit. But there 
is one standard: Was the final agency action arbitrary and capricious?
  That is the standard--only one--and only one appeal.
  This came out of the Justice Department. They produced this long list 
of 88. If that is the kind of logic that we have to face from the 
Justice Department, there is no hope on this bill, because it defies 
logic. One appeal and one standard.
  Mr. KERRY. Mr. President, let me just answer my friend, if I may.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KERRY. This is an example of how close but in a sense how far 
because the 88 standards that are here are not currently in the law. In 
the current law for rulemaking there is one page that describes what an 
agency has to do to make a rule.
  You talk about what this grassroots revolution is all about in an 
effort to kind of get the process closer to America and less 
government; one page is the current law.
 This bill creates 66 new pages of requirements. That is more 
Government.

  Mr. JOHNSTON. Will the Senator yield at that point?
  Mr. KERRY. I would like to finish the point. I will be happy to yield 
for a question on that, sure.
  Mr. JOHNSTON. Yes. I was going to say in the Glenn-Chafee amendment, 
does it not also have standards? If so, how many new standards?
  Mr. KERRY. It does not have the same structure, no. It leaves 
discretion to the agency. It does not create 66 new pages of exactly 
how the rulemaking is going to take place. Let me be more precise to my 
friend. The struggle we are having is over a couple of words which will 
clarify the stated intent of the Senator from Louisiana, but not the 
written intent. The stated intent of the Senator from Louisiana was 
accurately just portrayed. And I agree with him.
  The Senator just said, ``All you can do is make a judgment about the 
final rule as to whether or not the final rule is arbitrary and 
capricious.'' I agree with him. That is the standard we want. That is 
what he says he wants. That is what he says the bill does. We disagree. 
We believe that because of the lack of clarification in one paragraph 
that in fact the Senator inadvertently is opening up all of the 
procedural standards to review. If we will simply make clear in the 
text with the language we have sought that it is indeed as he says, not 
as to the procedure, but exclusively as to the final rule only, without 
regard to the procedure except as it fits into the whole record, we 
will solve that problem.
  Now, I ask the President or anybody listening if that really sounds 
so unreasonable. And the problem is that every time we get to the point 
of saying, ``Why cannot we codify your intent,'' we run into a stone 
wall. So it makes us feel, ``Well, gee whiz, if we cannot codify with 
specificity the stated intent, which does not serve us anything when 
you go to court afterwards, something is wrong here.''
  Now, I say to my friend, he is a very good lawyer. He knows exactly 
what will happen. If you go to page 52, line 4, paragraph 633, there is 
a requirement here: The agency must use the best reasonably available 
scientific data and scientific understanding. If a claimant wants to 
come in with a good lawyer and say the agency did not use the best 
reasonably available scientific data, and therefore their decision was 
arbitrary and capricious, you have opened up each procedural section 
here to that kind of individual appeal.
  And, in addition to that, you have procedural requirements that 
amount to that. All we are saying is if you do not intend each of these 
subsections to become the basis of that appeal, let us just say it. If 
we say it, we have solved our problem.
  Mr. JOHNSTON. Well, Mr. President, if I may reply to that, what we 
intend, what we say very clearly, is that it is the final agency action 
that is judged by the standard of arbitrary and capricious, that the 
risk assessment and the cost-benefit analysis will be part of the 
record. And that any violations may be used solely--we use the word 
``solely'' advisedly to determine whether that final agency action is 
arbitrary and capricious.
  Now, the standard that the Senator just read, did you use the best 
science, may or may not bear on the question of the final rule being 
arbitrary and capricious. If it is one of these rules where the issue 
is the quality of the science, and if they did not use proper science, 
but rather subjected the American public to billions of dollars in 
regulation, which flies in the face of good science, then, yes, that 
violation could be conceivably arbitrary and capricious, make the final 
agency action arbitrary and capricious. In most instances, it would not 
be.
  But the very idea of having risk assessment and cost-benefit analysis 
is to find out what the cost is and to make the agency focus on science 
and use good science. Because, Mr. President, the reason I brought up 
risk assessment almost 2 years ago was that I found, in the committee I 
chaired at that time, that they were not using good science, that they 
were ignoring their own scientists, that they did not have the foggiest 
notion what the regulations were going to cost.
  In one particular case, it was $2.3 billion dealing with a 
nonexistent risk, and they did not know what it was going to cost. They 
had ignored their own scientists. Now, that goes on--not every day, not 
in every regulation. And, yes, we make some great progress on a lot of 
these environmental laws. And I voted for virtually every one.
  But do not ever think, Mr. President, because the air is cleaner and 
the water is cleaner and all of that, that there are not great excesses 
in our environmental regulation system. If you just want to make it 
permissive, you know, say these are good employees of the Government 
and they are doing their job well and the air is cleaner, well, that is 
fine. If that is what you believe, then you know, business as usual is 
good. It is making progress in one sense.
  I do not believe that is so, Mr. President. I think I can prove it. I 
think I have proven it.
  Mr. KERRY. I do not disagree with what the Senator just said. But he 
did not in effect answer the problem that I posed. Now we have language 
that we have given to the Senator. The Senator has accepted one form of 
language, but the Justice Department tells us that we have not cured 
the problem we are talking about. We have given him new language which 
we think cures it.
  Mr. JOHNSTON. What is the new language that is----
  Mr. KERRY. Let me point to another kind of problem just to kind of 
articulate, I think, the good faith with which we are framing some of 
these issues. There is a rulemaking petition process. I have agreed, 
Senator Glenn has agreed, and Senator Levin has agreed that all of us 
think any American entity, a corporation, some kind of environmental 
group, that feels aggrieved by a decision ought to have some means of 
redress for that sense of grievance. They ought to be able to come into 
the agency and say, ``Hey, wait a minute. This is a crazy rule. We want 
you to be able to review this rule.''
  We agree with that. I am sure most of us would say that is 
reasonable. We do not want Americans running around, companies or 
individuals, feeling as if there is no path to a legitimate review.
  What we do not want, Mr. President, is an unlimited Pandora's box for 
gaming the system, where one company 

[[Page S10373]]
can come in and bring a petition, then their cohort friend company 
could come in and bring a petition, then another company associated in 
the same industry but not the same could come in and bring a petition. 
Under the requirements of the bill--I say to my friend in the chair and 
others--this is not going to reduce Government. This is not going to 
streamline the agency process. This is not going to lift the burden of 
regulation. It is going to create far more gridlock than we have had 
before because you are going to take a fixed number of employees with a 
shrinking budget, give them greater responsibility to answer petitions, 
greater responsibility to go to court, to the judiciary, greater 
responsibility to do risk assessment, greater responsibility to do cost 
evaluation. And there will be less people to do it.
  Mr. JOHNSTON. Will the Senator yield at that point?
  Mr. KERRY. This is an unfunded mandate. My friend from Ohio said 
this: ``This is the mother of all unfunded mandates.''
  Mr. JOHNSTON. Mr. President, if my friend will yield, I have two 
questions. First of all, I have not seen the judicial review language. 
If it has been done, there may be some progress.
  Mr. KERRY. Mr. President, the problem with this is, we are trying to 
write one of the most complicated pieces of legislation in none of the 
committees to which the jurisdiction falls. The committee to which the 
jurisdiction fell was the Governmental Affairs Committee. They sent us 
the Glenn-Roth bill at the time. It came out to us 15 to 0. So we did 
have a bipartisan consensus about how to approach this.
  Mr. JOHNSTON. Not on the Glenn-Chafee bill.
  Mr. KERRY. No, not Glenn-Chafee. I said Glenn-Roth. I said Glenn-
Roth. And the only change between Glenn-Roth and Glenn-Chafee, I 
believe fundamentally, is the fact that the sunset is out and there is 
a minor change or two. But the other committee, the Environment and 
Public Works Committee that has jurisdiction, was completely bypassed. 
The Judiciary Committee, as everybody knows from the report, barely had 
an opportunity to legislate.
  Now, what did we get? We got a bill written in back rooms, 
cloakrooms--who knows where--offices. It comes to the floor, and now we 
are trying to write legislation. So it is difficult when you are 
weighing the impact of each of these words to do it in an afternoon, 
with a Whitewater hearing and a Bosnia debate and all the other 
meetings that we go to. It is not a question of bad faith.
  Mr. JOHNSTON. Will the Senator yield.
  Mr. KERRY. Let us look at the rulemaking petition process. Here is 
what it says:

       Each agency shall give an interested person the right to 
     petition.

  So we are opening up to everybody in America the right to petition.

       For the issuance, amendment or repeal of a rule, for the 
     amendment or repeal of an interpretive rule or general 
     statement of policy or guidance, and for an interpretation 
     regarding the meaning of a rule, interpretive rule, general 
     statement of policy or guidance.

  There are 14 different things that somebody can come in and just 
petition, ``I want this changed.''

       The agency is then required to grant or deny a petition and 
     give written notice of its determination to the petitioner 
     with reasonable promptness but, in no event, later than 18 
     months afterwards.

  So all of these requests could come in. You have a fixed period of 
time to provide the answer. You have no additional personnel to do it.

       The written notice of the agency's determination will 
     include an explanation of the determination and a response--

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