By Catalina Camia
Property rights advocates, local officials and legislators are leading
the assault on a range of environmental protection rules.
Mary Davidson has been saving for 10 years to build her dream house
among the junipers and oaks of Travis County, on an unnamed gravel road
about 20 miles northwest of the Texas state Capitol in Austin.
But now Davidson can't break ground, because the U.S. Fish and Wildlife
Service believes her 1.45-acre tract is near prime habitat of two birds
that are protected by the 1973 Endangered Species Act.
Instead, she is paying $2,500 to a biologist, who has been sitting on
her land and playing a tape recording of bird calls in an attempt to
determine whether the golden-cheeked warbler or the black-capped vireo
is present. If either bird is found, she won't be able to build her
She's also writing Congress. Rep. W.J. "Billy" Tauzin, D-La., says he
was outraged in February when he received a letter from Davidson
describing her plight. He believes that the federal government should
compensate landowners such as Davidson. "It's time for private property
owners in this country to fight back," he says.
Tauzin is sponsoring a bill (HR3875) that he calls the "private property
owners Bill of Rights." The measure would pay people when government
regulations, such as the endangered species law or federal wetlands
policy, deprive them of the use of their land or even their ability to
earn a living.
The wily Democrat from Louisiana's Cajun country and his bill lead a
political backlash against the environmental movement. The backlash
manifests itself not only in efforts to scale back existing laws, but
also in attempts to delay or block pending legislation.
It is forcing environmentalists to beat a hasty retreat, leaving
Congress likely to pass only a handful of scaled-back conservation
measures and maybe one or two of the pollution-control bills pending.
John Shanahan, an environmental policy analyst with the Heritage
Foundation, says the outcry from property owners is just a beginning.
"Environmentalists have run into the situation where they are targeting
. . . the fundamental heartstring issues of ordinary Americans," he
said. "This backlash is going to grow so loud and so quickly, it's going
to make the property rights issue look minuscule."
In fact, the growing confrontation over environmental issues already
falls into three categories. First, there are the private property
rights concerns of people such as Davidson. Then, there is a push to
require the federal government to review the costs of regulations and
take those costs into account when issuing rules. Finally, the pressure
is increasing to eliminate federal mandates that don't come with money
In an internal March 4 memo, environmentalists and their allies in
Congress reluctantly acknowledged that these issues have forced them to
switch strategy. They "agreed that the community needs to focus more
sharply on a limited number of pieces of legislation and to put more
substantial resources into winning that legislation," the memo said.
So far, they have backed away from trying to reauthorize the 1973
endangered species law, sanction the National Biological Survey and
rewrite the nation's primary solid waste law this year. Efforts to
elevate the Environmental Protection Agency (EPA) into the Cabinet are
on the backburner and plans to revise the "superfund" toxic waste law
Environmentalists are now concentrating on overhauling the 1974 Safe
Drinking Water Act, which is expected to come up soon on the Senate
floor. But the lobbyists conceded in the memo that they "must put
substantial media, grass-roots and lobbying efforts into this bill" or
"take a major loss."
Carl Pope, executive director of the Sierra Club, says, "These issues
have managed to slow us down and weaken laws and get in the way of the
normal process of Congress and the administration." The three issues
were once dubbed the "unholy trinity" by environmentalists, who are
backing away from that nickname for fear it sounds blasphemous.
Environmental groups and lawmakers in both political parties contend
this backlash reflects a growing anger about what many people see as
heavy-handed rules that are striking increasingly close to their daily
lives- whether they affect the cars people drive to work or the
chemicals that keep their golf courses lush.
"We have tended in the past in our regulatory programs not only to say,
'Here's the standard,' but to say, 'Here's the narrow path you must
follow to meet that standard,'" says Carol M. Browner, the EPA
She and some other lawmakers believe they can tackle the nettlesome
issues as they come up and still pass legislation that would ease
regulatory red tape and protect human health. But Senate Environment and
Public Works Committee Chairman Max Baucus, D-Mont., emphasizes the need
for a cautious approach. "Otherwise, we may overreact and push the
pendulum back too far," he says.
So far, Baucus and the other chairmen of environmental panels have had
mixed success with their balancing act. During the past 16 months, all
major pieces of environmental legislation have been targets for
amendments or bills that would:
* Private property rights. Compensate landowners who lose 50 percent or
more of the fair market value of their property because of federal
The Davidsons in Austin aren't the only landowners pleading to Tauzin
for help. Robert Spiller, a resident of New Iberia, La., in Tauzin's
district, has been trying for four years to raise crawfish and harvest
cypress trees on his 160 acres - all of which the federal government
considers to be wetlands that need to be preserved. The clean water law
allows landowners to receive permits under certain circumstances to
conduct forestry management and other commercial activities on wetlands.
But Spiller's request for a special permit to raise crawfish has been
denied. He has been referred to several government agencies that will
decide whether he should receive a break that would allow him to cut
trees. Meanwhile, Spiller estimates that lost crawfish sales are costing
him $24,000 a year, and uncut timber, even more.
Frustrated by these complaints, Tauzin tried in October to amend the
National Biological Survey bill (HR1845) to compensate landowners like
Spiller. Although he was rebuffed because the issue was not germane to
the measure, Tauzin and his allies successfully amended the bill to
restrict the government's access to private property.
The landowner-friendly amendments prompted Merchant Marine and
Fisheries Committee Chairman Gerry E. Studds, D-Mass., and Natural
Resources Committee Chairman George Miller, D-Calif., to yank the bill
from the floor for two weeks, while they regrouped on strategy. Interior
Secretary Bruce Babbitt is using his administrative authority to conduct
the survey, but the push to authorize it formally by law has been
Tauzin has vowed to try again when the House takes up a clean water and
wetlands policy bill by Public Works and Transportation Committee
Chairman Norman Y. Mineta, D-Calif.
Attorney General Janet Reno, Mineta and other members of Congress on
environmental and judiciary panels say Tauzin's approach would bankrupt
the federal government and lead to a "radical" change in the Fifth
Amendment. In a recent "Dear Colleague" letter, Mineta asserted that
extending Tauzin's view of private property rights could force the
government to pay a high-technology company that doesn't sell military
secrets to enemies of the United States, even though the business is
forbidden by law from doing so.
"We should not adopt the idea that . . . the private interest must be
paid to obey the law and not to harm the public," Mineta wrote.
* Unfunded mandates. Reduce or eliminate federal rules on states that do
not provide local communities with enough money to carry them out.
Joe Palacioz, the city manager of Hutchinson, Kan., contends that the
superfund toxic waste law forced him to spend $500,000 that would have
been better spent on hiring more police officers.
The money was used to investigate a smelly landfill that was suspected
of being a superfund toxic waste site. But after numerous tests and
legal maneuvering, Hutchinson officials and the federal government
reached a tentative agreement that the landfill does not need to be on
the EPA's priority list, which requires immediate and expensive cleanup,
Palacioz estimates that he could have hired 20 police officers for one
year with the $500,000 spent to determine the source of the landfill's
odor and how to get rid of it. "The mandates have an impact," he says.
"It takes money away from resolving local problems, from fighting
crimes, drugs, youth problems . . . and being able to build on your
Palacioz's complaints are echoed by mayors and governors, who say the
federal government is imposing a "one-size-fits-all" approach that
implies that all cities and states should enforce every environmental
Dallas Mayor Steve Bartlett, a former House member, complains that
federal rules have forced the city to spend $2.7 million to remove
underground storage tanks that are seeping gasoline into ground water -
even though Dallas receives its tap water from nearby lakes.
Addressing the concerns about unfunded mandates, Baucus revised his
drinking water bill (S2019) so that it would ease rules for technology-
driven testing and monitoring and include more money from the government
to help cities build treatment facilities. Still, local officials and
small water systems say the Baucus bill represents only limited
Some environmentalists sympathize with the mayors and governors, saying
they have legitimate concerns about the costs of federal mandates. But
they point to public opinion polls that consistently show that people
support laws to protect their health and the environment. When it comes
to the drinking water law, for example, environmental lobbyists say the
contaminated-water crisis in Milwaukee that led to the deaths of 103
people last year is enough reason to strengthen the act and squelch the
outcry about federal mandates.
"Our foremost goal is to continue to earn the American people's
confidence that their drinking water is the safest in the world,"
President Clinton wrote April 20 when he endorsed the Baucus bill.
* Risk assessment. Require the federal government to do more analysis of
a broad range of economic, social, scientific and other factors before
implementing health and safety rules.
Rep. John L. Mica, R-Fla., cited as an example during debate on the EPA
Cabinet bill in February a federal rule that would require arsenic
levels of no more than 2 or 3 parts per billion in drinking water, even
though he said the average plate of shrimp contains roughly 30 parts per
billion of the toxic chemical.
Mica and his Florida colleague Karen L. Thurman, a Democrat, derailed
the EPA Cabinet bill (HR3425) Feb. 2 after they persuaded their
colleagues to reject a routine procedural motion governing the measure's
debate, because they were not allowed to offer an amendment calling for
greater attention to assessing environmental risks.
Because the House's 191-227 vote on the motion suggests that members
would adopt the Mica-Thurman amendment, supporters pulled the EPA
Cabinet bill from consideration indefinitely.
Opponents of the amendment contend that the EPA already weighs health
risks and conducts cost analyses before issuing new rules, making the
amendment unnecessary and potentially expensive.
They cite a Sept. 30 executive order signed by Clinton that supports
risk assessment and cost-benefit analyses as a way to reduce federal
rules, without actually requiring government agencies to implement such
Meanwhile, the administration has launched an interagency task force,
headed by the Office of Management and Budget, to explore ways to
incorporate a broader range of risk analyses in federal rulemaking.
SIGNS OF CHANGE
In recent weeks, there have been signs that environmentalists and their
allies in Congress have been doing a better job of satisfying lawmakers
who want to reduce federal mandates and bolster cost-benefit analyses.
While environmentalists wait for the federal courts to decide private
property rights issues, for example, Sen. Dianne Feinstein, D-Calif.,
successfully negotiated a series of changes to move the long-delayed
California desert protection measure. She opened up tracts for use by
ranchers, miners and riders of off-road vehicles, which seemed to
satisfy the concerns of property owners. Feinstein's willingness to deal
and her skill at amassing votes caused Senate foes to back away from
offering amendments like Tauzin's private property rights bill.
But environmentalists say more effort is needed, especially from the
White House. Repeating a complaint they have made consistently for the
past 16 months, environmentalists say that the Clinton administration
must invest more political capital in their issues - or risk losing the
battle to the likes of Tauzin.
So far, environmentalists say, the White House has been unwilling to do
so. They point to Clinton's retreat in March 1993 on an energy tax and
higher fees for public land users, such as miners and ranchers.
Baucus and John H. Chafee of Rhode Island, the Senate Environment
Committee's ranking Republican member, are frustrated that Clinton has
not rescinded a 1988 executive order signed by President Ronald Reagan
on private property rights. The little-used order gives the attorney
general sweeping authority to cancel any federal rule if it has
implications for the "taking" of private property.
"Our track record is good when we invest the right resources to win
issues," said Ronald J. Tipton, vice president of government affairs for
the National Audubon Society. "The other side has done a good job at
the grass-roots level and crafted a good message."
Sometimes when the Clinton administration does decide to exercise its
strength on environmental issues, the results have been weaker than
Environmentalists were disappointed, for example, by the White House's
plan to reduce emissions of carbon dioxide and other "greenhouse" gases
and an executive order to curb pollution in minority communities.
At an April 21 briefing, Katie McGinty, director of the White House
Office on Environmental Policy, defended the administration's track
record as "not bad for one year." She said, "We've set tough goals for
ourselves, and we're moving aggressively to achieve them."
One area where environmentalists would like to do better is the voting
record of the House's 114 first-term members, who have become a
significant force behind some anti-environmental issues.
Like Clinton, these lawmakers were swept into office in 1992 promising
to change the way the federal government operates. Many of them,
regardless of their party, say they support environmental protection.
But 83 first-term lawmakers voted with Tauzin and Charles H. Taylor, R-
N.C., to restrict the government's access to private property when
conducting the National Biological Survey, and 64 freshmen voted against
the routine procedural motion setting rules for floor debate on the EPA
Thurman, for example, is a first-term member who built a reputation for
herself as a Florida legislator pushing laws to protect wetlands and
clean up leaky underground storage tanks. She rejects the notion that
her support for greater cost-benefit analyses runs counter to protecting
"People at home told me they are glad that I'm fighting," Thurman said.
"They're glad to see some common sense, and that's not the way we've
been doing business."
from the Congressional Quarterly Weekly Report
Copyright 1994, Congressional Quarterly Inc., 1414 - 22nd Street N.W.,
Washington, D.C. 20037.
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