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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 house.

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 for enforcement.

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 are sidetracked.

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 Administrator.

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 rules.

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 shelved.

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, after all.

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 infrastructure."

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 mandate equally.

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 progress.

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 studies.

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.


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 expected.

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 Cabinet bill.

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 the environment.

"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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