The 104th Congress's Environmental Record: What was Accomplished and What Remains

Commentary by H. Sterling Burnett

Contrary to popular opinion, the last Congress was one of the most environmentally active ever, passing three major environmental bills and a host of minor ones. Despite this flurry of activity, environmentalists who pressed for strengthening environmental legislation and those who criticized existing laws as costly and ineffective were dissatisfied with the laws ennacted. In addition, Congress failed to renew two important environmental acts that the congressional leadership deemed priorities.

Among the accomplishments of the 104th Congress were the Freedom to Farm Act, the Food Safety Act and the Safe Drinking Water Act.

The Freedom to Farm Act represents a radical break with past federal agriculture policies by capping, at least temporarily, federal crop price support payments and ending the federal authority to hold land out of production.

The bipartisan 1996 Food Safety Act killed the Delaney Clause which prohibited even minute, harmless, amounts of chemicals in processed foods if they caused cancer when laboratory animals ingested them - even if massive amounts were required to cause tumors. This standard was enormously expensive and scientifically flawed. The new law replaced the Delany Clause with a standard that chemicals in raw or processed foods must pose a "reasonable certainty" of no harm.

The Safe Drinking Water Act (SDWA) provides flexibility to the 185,000 regulated water systems across the U.S. It allows states to exempt water systems serving fewer than 3,300 people from federal regulations and allows states and localities to borrow already authorized federal funds to reduce the most urgent health needs in their communities. For instance, the law allows states to transfer funds from sewage treatment facilities to Clean Water Act activities or vice-versa.

Whether these bill represent an overall positive change in environmental policy remains to be seen. Each bill had warts. For instance, the farm bill creates several new bureaucracies, including the "National Natural Resources Conservation Foundation" and new boards to promote and protect the domestic popcorn and kiwi fruit industries. This might surprise people who thought that the end of the era of big government meant reducing the number of government bureaucracies, not creating new ones.

In addition, rather than clearly limiting the power of the Environmental Protection Agency (EPA) and reducing its reliance on politically driven science, both the Food Safety Act and the Safe Drinking Water Act actually increase EPA discretion. For instance, the Food Safety Act lets the EPA determine what "reasonable," "certainty" and "no harm" mean. None of the EPA's determinations in these matters requires review by the courts or independent scientists. Also, the act does not allow the EPA to consider economic costs in its rulemaking - even though increasing economic costs may harm people's health.

Looking to the future, the 104th Congress left several major pieces of environmental legislation in limbo. Superfund lapsed at the end of 1995 and authority for the Endangered Species Act lapsed in 1992. Both advocates and critics alike agree that these bills need revision by the next Congress.

Superfund is the largest single project of the EPA. Yet despite federal expenditures of more than $30 billion over 15 years, by May of 1995 only 97 of the more than 1,300 sites slated for cleanup have been cleaned to the point where federal supervision has ended. The average cost of cleaning up a Superfund site is $32 million, with 36 cents to 60 cents of every dollar spent on lawyers' fees.

Instead of making the polluters pay for cleanup, Superfund imposes penalties on parties who may not have been at fault; and the health risks Superfund is designed to avert are largely nonexistent.

Perhaps the most tragic aspect of Superfund's failure is its creation of an estimated 450,000 "brownfields." Brownfields are once-productive commercial and industrial sites that now sit abandoned, in part because they may contain toxic waste and thus may carry Superfund liability. Ironically, Superfund, a law created to protect human health and promote environmental cleanup, has resulted in a use-and-throw-away pattern of property ownership in inner cities and increasing urban sprawl as greenfields (pastures, forests and farmlands) are cleared to make way for industrial growth.

Effective Superfund reform must established a true "polluter pays" principle for Superfund cleanup. If culpable parties can be linked to a site, they would be required to pay for the cleanup. In addition, the revised law must require realistic risk assumptions based on anticipated land use.

The Endangered Species Act (ESA), administered by the Fish and Wildlife Service (USFWS), is widely considered to be the most powerful environmental law in the nation. However, the ESA has not worked very well. After more than 20 years only 27 of the 1,524 species that have been listed as either endangered or threatened have ever been delisted. Unfortunately, no recovered species' success can be definitively traced to ESA protections.

Not only has the ESA failed to help species recover, it is also quite costly. In 1991 alone, federal and state governments' spending for endangered species topped $290 million. Recovery costs for the Northern Spotted Owl alone range from $21 billion to $46 billion.

These are just the direct costs. The indirect costs, such as community disruption, can be even greater. In one instance, massive brush fires in California destroyed 29 homes and caused millions of dollars in damage. Several of the homes were lost because the homeowners had not been allowed by the USFWS to plow firebreaks out of fear that doing so would destroy the endangered Stephen's Kangaroo Rat's habitat.

That the ESA has failed to protect species should surprise no one. More than 66 percent of the listed species depend on private land for all or part of their habitat;however, the ESA discourages people from fostering species recovery because if a person provides suitable habitat for an endangered species, his or her land becomes subject to regulation if not outright confiscation. Tragically, there is mounting evidence that fear of government regulation is driving landowners to destroy potential habitat for endangered species to avoid attracting them.

Effective ESA reform must remove the negative incentives from the current act by requiring the government to compensate property owners when ESA restrictions diminishes the property's value by some set, low percentage. There are also ways to build positive incentives for species protection into the act. For instance, by establishing tax incentives for conservation easements and by paying bounties to landowners who attract and maintain endangered species on their land.

Congress could thus sending a clear message that people do not have to choose between their own welfare and environmental health.