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LONG: environment: what are the democrats doing (fwd)

these issues are not black or white -- big surprise, how the democrats wi=
ll
view environmental regulation is debatable.  to me, this is good news.  a=
lso,
there seems to be a LARGE number of critics who keep framing the issue in
terms of regulation or no regulation.
=20
i have, from the beginning, argued that this distinction is meaningless.
regulation is at its very core what government agencies do every day, and
regardless of who is in office, regulations will get written.  the existe=
nce
of a bureaucracy makes some sort of regulation inevitable.
=20
so the question is HOW will we be regulated; not WILL we.  that is why th=
e
authors of the topic paper preferred Resolved:  that the United States
Federal Government should adopt one or  more regulations which require a
substantial decrease in production and/or  emission of environmental
pollutants in the United States by industries in the United States.

our intention is to direct the type of regulation the affirmative defends=
 to
clearly frame what is available to the negative.  my argument remains tha=
t
the status quo is moving in the opposite direction.  while there may be s=
ome
movement toward pollution prevention, or attention being paid to the
environment, there is good evidence that current and future efforts will =
be
less stringent than we are used to and that solutions will not emphasize =
the
traditional role of regulation.  more carrots, less sticks.
=20
put simply, this topic forces us to debate how we will achieve environmen=
tal
performance, not whether, i think.  kate, brad and sean may disagree.  th=
at's
fine.  let's debate out it.  i volunteer to coordinate the wording paper =
for
the environment topic.
=20
and if we are freaked out by the wording; if we believe that it has
uniqueness problems, then let's vote for the area AND FIX THE WORDING LAT=
ER.
surely the critics do not support allowing for one topic wording's misgiv=
ings
and not anothers.  that would be (to use an earlier phrase) "political.";=
)
=20
also, we can always change the direction of the topic.  nss is not the on=
ly
topic wording that needs improvement:)
=20
ok, here is some of the stuff i fond this morning.  if you aren't concern=
ed
about uniqueness problems, this stuff is not really for you.  it's long. =
 i
warned you.  i have included elipses to spare you having to wade through
whole articles, however, i have provided the full cite.
=20
also, throughout i have bracketed my own comments, all caps.  this is not=
 to
"shout," i just needed someway to format the difference.  most email read=
ers
don't give me any other option.  sorry.
=20
here goes, i am hoping to spur some more discussion for those who are
interested.
=20
oh yeah, forgot one more thing.  i first want to lay out some supporting
arguments for josen's claim.  after all, above i said the issue is debata=
ble.
(yikes, this is going to be really long)
=20
the democrats are sinking in their heels on the environment. if elected, =
will
adopt environmental regulations.
=20
1.  In the recent budget resolution, environmental riders were stripped o=
ff.
that signals the trend toward anti-environmental regulation is subsiding
=20
[THE NEGATIVE'S UNIQUENESS IS NOT DEPENDENT ON ANTI-ENVIRONMENTAL POLICY.=
 SEE
MY COMMENTS ABOVE ABOUT THE INEVITABILITY OF ENVIRONMENTAL REGULATION.  T=
HE
KEY QUESTION IS NOT WHETHER WE WILL BE REGULATED BUT HOW.]
=20
2.  A recent Clinton approved panel (business people and
environmentalists) released a report supporting past environmental
regulation, suggesting that the government give industry more flexibility=
 in
meeting legal requirements and stop "telling it specifically what to do" =
with
regulation.
=20
[SUPPORTS BOTH OF OUR CLAIMS AT LEAST A LITTLE.  THESE SO CALLED REPORTS =
ARE
ESSENTIALLY OVERBLOWN WHITEPAPERS WRITTEN BY STAFF AFTER A SERIES OF MEET=
ING
BETWEEN ADVERSARIES WHERE EVERYONE CONCEDES A LOT OF GROUND.  GUESS WE'LL
HAVE TO SEE WHAT IT SAYS DURING THE WORDING PAPER PROCESS ONCE IT IS RELE=
ASED
IN JUNE]
=20
3.  earthday -- the dems did a full court press and are attacking the
anti-environment tone of the 104th congress.  they will make this an elec=
tion
issue and win on it.
=20
[1.  LET'S SEE WHAT NEWT CAN COME UP WITH OUT OF THIS 66 MEMBER TASK FORC=
E HE
JUST ESTABLISHED.  A LOT OF PEOPLE DIDN'T THINK THE REPUBS WOULD SWEEP,
CLINTON WOULD BEAT BUSH.......
2.  POSTURING, A MORE CAREFUL LOOK REVEALS THAT THE DEMS ARE CAPTURING A
POLITICAL OPPORTUNITY, HOWEVER, ARE NOT SHIFING FROM THEIR FUNDAMENTALLY
MODERATE VIEW OF REFORM.]
=20
 ok, now the real deal.  thanks for your patience.
=20
_________________________________________________________________________=
____Richard H. Pildes, Professor of Law, University of Michigan Law Schoo=
l; Cass
R. Sunstein, Karl N. Llewellyn Professor of Jurisprudence, The University=
 of
Chicago Law School and Department of Political Science, 1995 [University =
of
Chicago Law Review, Winter, 62 U. Chi. L. Rev. 1; ARTICLE: Reinventing th=
e
Regulatory State]
=20
A. The Past
=20
Probably the most important development in administrative law in the 1980=
s
came not from federal courts, nor even from Congress, but from Presidents
Ronald Reagan and George Bush.  In two executive orders, President Reagan
asserted vigorous centralized control over the regulatory process. The fi=
rst
such order, Executive Order 12291, laid out a set of substantive principl=
es,
most notably cost-benefit analysis, and said that these principles would =
be
binding on executive agencies to the extent permitted by law. n1
...
The order amounted to an effort to promote centralized OMB control of the
regulatory process, to be conducted in accordance with presidential polic=
ies
favoring deregulation and close attention to cost.

[NO BIG SURPRISE HERE.  WE WOULD EXPECT POLICIES DESIGNED TO PROMOTE
DEREGULATION FROM REAGAN/BUSH]

President Reagan's second relevant executive order, Executive Order 12498=
,
went a step further. It required each agency to submit an "annual regulat=
ory
plan," consisting of proposed actions for the next year, that was to be
included in a publicly available annual document, the Regulatory Program =
of
the United States. n3
...
The Order placed OIRA in the center of regulatory planning.   The Reagan
initiatives were defended with several theoretical and empirical argument=
s.
National bureaucracies are numerous, even chaotic, and regulations that a=
re
nominally independent of one another may produce considerable inconsisten=
cy
in practice. Some degree of presidential review of the regulatory process=
 is
probably necessary to promote political accountability and to centralize =
and
coordinate the regulatory process. These [*4]   are important goals,
particularly in light of the need for sensible priority setting in a nati=
on
that devotes extraordinary resources to some minor problems and low level=
s of
funding to some major problems. n6

In addition, the cost of regulation--perhaps as high as $ 400 billion
annually, n7 with up to $ 124 billion spent on environmental regulation a=
lone
n8 --is too high for the benefits received. n9 We could obtain the same l=
evel
of benefits far more cheaply. Perhaps centralized presidential control co=
uld
diminish some of the characteristic pathologies of modern regulation--myo=
pia,
interestgroup pressure, draconian responses to sensationalist anecdotes, =
poor
priority setting, and simple confusion. In theory, OMB control promised t=
o
bring about not only greater political accountability, but also more in t=
he
way of technocratic  competence, thus returning to the original New Deal =
goal
of combining democratic and technocratic virtues. n10 Many people thought
that the new system of OMB oversight was admirably well suited to overcom=
ing
the difficulties in the regulatory process. n11

[REGARDLESS OF THE VALIDITY OF THESE CLAIMS, I THINK WE CAN AGREE THAT TH=
EY
ARE A STANDARD REPUBLICAN ARGUMENT AGAINST INCREASING REGULATIONS OF ANY
KIND, ESPECIALLY THOSE ON ENVIRONMENTAL PERFORMANCE]

Despite these points, the Reagan orders were extremely controversial. The
criticisms fell into four basic categories:

1. Some people said that the orders involved an unlawful and
counterproductive transfer of authority from regulatory agencies to OMB.
...
2. Some people complained that the process of regulatory oversight was to=
o
secretive.
...
3. Some people complained that the reviewing process dwarfed OMB's limite=
d
resources and resulted in excessive delay.
...
4. Some people complained about the substantive principles reflected in t=
he
Reagan orders.
...
B. The Present

In light of the extraordinary importance of OMB oversight to so much of
American government, many observers were extremely curious to see how
President Clinton would reform the Reagan initiatives. The process of ref=
orm
was surprisingly slow. Whereas President Reagan had issued the first of t=
he
two
executive orders within one week of assuming office, President Clinton di=
d
not respond for many months. On September 30, 1993, however, President
Clinton issued his long-awaited repeal and replacement of Executive Order=
s
12291 and 12498. n18

President Clinton's Order, Executive Order 12866, is a dramatic and in ma=
ny
ways quite surprising step. First and in some ways foremost, it maintains=
 the
basic process inaugurated by President Reagan, including the essential
procedural provision of Executive Order 12291: the requirement that major
regulations be submitted to OMB for general review and oversight. n19 It =
also
includes the essential procedural provision of Executive Order 12498: the
requirement that agencies submit an annual regulatory plan, compiled in
conjunction with OMB. n20

[THAT=92S INTERESTING.  WHEN CLINTON TOOK THIS ACTION, WHO CONTROLLED CON=
GRESS?
 WAS THERE ANY THREAT OF A REPUBLICAN OVERHAUL?  WHY DIDN=92T HE REPEAL T=
HEM
OUTRIGHT AND MAKE IT EASIER TO REGULATE NASTY BUSINESS?  WHY DID HE LEAVE=
 THE
ESSENTIAL COMPONENTS IN TACT.  ANYONE CARE TO COMMENT ON ESSENTIAL QUALIT=
IES
AND THE CREATION OF THE WHOLE? :)]

At least equally important, Executive Order 12866 also maintains much of =
the
substantive focus of the Reagan orders, including the emphasis on
cost-benefit analysis as the basic foundation of decision. n21 President
Clinton thus rejected the view that an assessment of costs and benefits i=
s an
unhelpful or unduly sectarian conception of the basis of regulation. [*7]

[REALLY?  PRESIDENT CLINTON THUS REJECTED THE TRADITIONAL DEMOCRATIC
ARGUMENTS?  BUT, THERE WAS NO REPUBLICAN CONGRESS TO BLAME.....]

At the same time, the Clinton Order marks a number of important substanti=
ve
and procedural shifts. Executive Order 12866 includes a set of innovation=
s
specifically designed to overcome the problems faced in the Reagan and Bu=
sh
administrations. In particular, it addresses unnecessary conflicts betwee=
n
agencies and OMB, and the appearance (or perhaps the reality) of factiona=
l
influence over the review process. n22 It also places the Vice President
squarely in charge of the regulatory process. n23 It reduces the number o=
f
rules that OMB will review, perhaps by as much as one-half. It seeks to
overcome the "ossification" of rule making, in part by encouraging negoti=
ated
rule making. n24

[OK, SO CLINTON IS TRYING TO DO BETTER.  MAYBE THESE CHANGES ARE MORE
=93DEMOCRATIC=94.  HOWEVER, THE ESSENTIAL QUALITIES OF BOTH POLICIES ARE =
THE
SAME.  JUST BECAUSE CLINTON TAKES STEPS TO MAKE THE WHOLE ENCHILADA WORK =
MORE
EFFECTIVELY SHOULD NOT DETRACT FROM THIS.]

The Order also includes a new, complex, and somewhat unruly set of
substantive principles to govern agency decisions.  Some of these princip=
les
are an outgrowth of the commitment to "reinventing government" in the ser=
vice
of more flexible management. n25 Some of them qualify the commitment to
cost-benefit analysis, though in ambiguous ways. Some of them point in th=
e
direction of comparative risk assessment. n26 Apart from their merits as
policy reforms, some of these innovations are of uncertain legality.

[OK, SO THIS ISN=92T THE BEST PARAGRAPH I HAVE EVER READ, HOWEVER, ISN=92=
T IT
STRANGE THAT A D PRESIDENT WITH A D CONGRESS TO BACK HIM ISSUED A NEW,
COMPLEX AND SOMEWHAT UNRULY SET OF SUBSTANTIVE PRINCIPLES TO GOVERN AGENC=
Y
DECISIONS?]
_________________________________________________________________________=
____The Bureau of National Affairs, Daily Report For Executives; February=
  15,
1996
[1996 DER 31 d50; SECTION: REGULATION, ECONOMICS AND LAW, Section A; 31.;
HEADLINE: Environment, PRESIDENT'S ECONOMIC REPORT TO CONGRESS DETAILS
ENVIRONMENTAL REINVENTION THEORY]

[OK, NICE SOURCE:)]
President  Clinton  reiterated the administration's priorities for reform=
 of
environmental regulations  in a Feb. 14 report to Congress on the state o=
f
the U.S. economy.  Declaring that the U.S. economy is "healthy and strong=
,"
President Clinton Feb. 14 sent Congress the report setting out the
administration's principles for raising living standards (see related sto=
ry
in this section).

The Economic Report of the President included a chapter on economic
efficiency and regulatory reform. In addition to monetary income, the rep=
ort
says, U.S. living standards are dependent on intangible benefits such as
"open spaces and clean rivers and lakes." The administration is working t=
o
ensure that environmental rules impose the least burden necessary and tha=
t
benefits justify costs of regulation, it said.

"A major theme of this Administration has been reinventing regulation: ta=
king
a new look at regulation and the regulatory process to ensure that
regulations meet legitimate social needs, and where necessary changing bo=
th
content and process to improve efficiency and effectiveness," the report
said.

The report pointed to often-cited Environmental Protection Agency
initiatives, including the Common Sense Initiative, which the report
described as "a pilot collaborative effort among government, business and=
 the
public to identify areas for improvement in how regulations are structure=
d
and implemented, and how technologies can be improved to help protect the
environment." Under another initiative, EPA's Project XL, companies can
propose their own ways of achieving environmental standards, allowing
increased flexibility, and encouraging better compliance, the report said.

The report also cited the U.S. Army Corps of Engineers' streamlined wetla=
nds
permitting procedures aimed at reducing regulatory burdens on activities
involving small tracts of land.
_________________________________________________________________________=
____John Cushman, New York Times, March 12, 1996
[SECTION: Section A; Page 13; Column 1; National Desk; HEADLINE: Opponent=
s
Nervous as a Democrat Tries Regulatory Overhaul]

Another major proposal to give industry broad relief from costly Governme=
nt
rules is coming to the Senate soon, but this time not from the Republican
leaders whose ambitious antiregulatory agenda has been stymied so far.
Instead, its author is an influential Democrat, and his proposal has stir=
red
deep unease among environmental, labor and consumer groups and in the Cli=
nton
Administration.

[SO WHAT?  ONLY ONE DEMOCRAT.  HOWEVER, THE NEXT PARAGRAPHS SUBTLY TELL T=
HE
STORY OF WHERE THE PARTY REALLY STANDS ON REFORM.  SQUARELY IN FAVOR.  TH=
E
DIVISIVENESS IS FOCUSED ON THE MOST EXTREME ELEMENTS OF THE REPUBLICAN
AGENDA.  WHY WOULD WE EXPECT ANY LESS?]

Together they have fought for the last year against a determined effort b=
y
Congressional Republicans to roll back health, safety and  environmental
regulations.  Now they are intensely lobbying the author of the new propo=
sal,
Senator Carl Levin, trying to persuade the Michigan  Democrat  to scale b=
ack
his bill or to abandon it. And they are enlisting the United Auto Workers=
 and
other groups with influence in his home state to underline their message.
=20
Mr. Levin's efforts behind the scenes have provoked this strong reaction
because he has the support of some business leaders who may be able to
convince Republicans that he is on the right track, and because he presum=
ably
could attract many Democrats to join him. That combination might overcome=
 the
partisan
divisions that killed a regulatory overhaul in the Senate last year.  Mr.
Levin would not go as far as the original Republican proposal that the Ho=
use
passed last year. But he said he intended his measure to force agencies t=
o
make real changes in their rules, and that has alarmed environmentalists,=
 who
fear undermining a generation of protections against pollution.

[COULD IT BE THAT THE DEMS WANT THE DIVISIVENESS TO CONTINUE FOR JUST A F=
EW
MORE MONTHS?]
...
Mr. Levin, who said in an interview that he intended to introduce the bil=
l
this week, may be well positioned as a deal maker. Long an advocate of
regulatory relief, he supported a bipartisan alternative that the Senate=20
narrowly rejected last year. Then he played a vocal role in staving off t=
he=20
main Republican proposal, which died in the Senate after Democrats three=20
times defeated motions to cut off debate and bring the issue to a final v=
ote.

Now the issue of curbing the Government's regulatory powers is suddenly
elbowing its way back into the limelight. Last week the House leadership
canceled a debate on regulatory relief when moderate Republicans complain=
ed
that a Republican proposal before the House went too far. Yet another
proposal, offered by Senator Christopher S. Bond, a Missouri Republican,=20
could come to the Senate floor this week.
=20
[REGULATORY REFORM IS THE PRIMARY VEHICLE -- NO ONE REALLY THINKS
ENVIRONMENTAL REFORM WILL HAPPEN BUT THIS IS THE SIDE DOOR...]

Meanwhile, many in industry are signaling that they would settle for
something less than the ambitious proposals the Republicans pressed last
year.   Mr. Levin's bill, while not as sweeping as the main Republican
proposals, is intended to make significant changes in how Federal agencie=
s
carry out a broad range of laws on public health, safety and the environm=
ent,
according to people involved in drafting it.
...
Mr. Levin's draft would encourage Federal agencies to take much more acco=
unt
of the costs of regulations protecting public health, safety and the
environment, seeking to make sure that the benefits are worthwhile. It wo=
uld
also give the courts new grounds to review agency decisions. Industry gro=
ups
have long complained that too often environmental regulations cost more t=
han
they are worth.
=20
The bill is loosely patterned after a proposal sponsored last year by Sen=
ator
J. Bennett Johnston, Democrat of Louisiana, and Senator Bob Dole of Kansa=
s,
the majority leader, and backed mainly by Republicans, but it omits many =
of
the provisions that raised the fiercest opposition from Democrats, who sa=
id
the Dole bill jeopardized a generation of environmental protection. It is
considerably less radical than the version that passed the House last yea=
r.

[SEE?  THE DEMS DON=92T NECESSARILY WANT TO DO THE OPPOSITE OF THE REPUBS=
. SUCH
BLACK AND WHITE THINKING WILL NOT GET YOU VERY FAR ON THIS TOPIC.]
_________________________________________________________________________=
____Michael Kranish, Globe Staff, The Boston Globe, April  21, 1996
[SECTION: NATIONAL/FOREIGN; Pg. 1 HEADLINE: Political landscape changing =
on
environment]

[THIS IS PURE POLITICS, FASHIONED FOR THE ELECTION.  CLINTON=92S RHETORIC=
AL
SHIFT IS OPPORTUNISTIC]

But as the Clinton-Gore team prepares for tomorrow's Earth Day - includin=
g a
stop by Gore yesterday in Boston to announce a revised harbor cleanup pla=
n -
the political climate is different from four years ago. Now, instead of
running against George Bush, the self-described "environmental president,=
"
the likely opponent is Sen. Bob Dole, seen by the White House as more
vulnerable on his environmental record.

"I think there are dozens of states where this is one of the two or three
issues that will determine the outcome" of the November election, Gore sa=
id
in an interview, citing the must-win state of California as the top examp=
le.
While President Clinton disappointed environmental groups in 1993 and 199=
4
for failing to move their agenda through the Democratic Congress, the Whi=
te
House now is benefiting from and exploiting public perceptions - fair or =
not
- that the new Republican leaders on Capitol Hill will plunder the
environment.
...
[NOT ONLY IS CLINTON=92S RECORD SUSPECT, HIS DEMOCRATIC CONGRESS COULD NO=
T EVEN
SUPPORT HIM WHEN THEY ENJOYED A MAJORITY -- EVEN UNDER THE WORST CASE FOR
UNIQUENESS SCENARIO, THE EMPIRICAL EVIDENCE IS GOOD NEWS FOR THE NEGATIVE=
.]

Clinton, meanwhile, entered the national scene with what many regarded as=
 a
poor environmental record. Under his leadership, Arkansas was ranked 48 o=
ut
of 50 states in environmental protection in one interest-group report. Th=
en
Clinton picked his running mate, Gore, who called for an array of costly
environmental measures in his best seller, "Earth in the Balance," and be=
came
a lightning rod for GOP attacks.

But the Clinton administration in its first two years had so little succe=
ss
pushing an environmental agenda through Congress that the League of
Conservation Voters in 1994 gave it a "D" on an environmental report card.
Not only did Clinton fail to push hard for the issues, but also the
Democratic Congress was reluctant to enact such bills after being burned =
by
the controversy over Clinton's proposed tax hikes. Clinton, for example, =
lost
a vote on an energy tax and failed to win approval for an upgrade of the
Clean Water Act, the Endangered Species Act and the Superfund toxic waste
cleanup law.
_________________________________________________________________________=
____Gary Lee , Staff Writer, The Washington Post, April 04, 1996
[SECTION: A SECTION; Pg. A29; THE FEDERAL PAGE; INSIDE: EPA; HEADLINE:
Regulatory Reform Effort Helps Industry Hit Targets]

[TWO THINGS:  1)  SEE?  THE EMPHASIS IS ON RELAXING PENALTIES AND
ENFORCEMENT; 2)  PRE-EMPT:  AT LEAST ONE PERSON WILL SAY, SEE?  THIS ARTI=
CLE
SAYS THE TREND IS GOOD SO WE ARE ALL DOOMED.  LOOK, THIS PARTICULAR  ARTI=
CLE
SAYS THAT THE STATUS QUO REFORMS ARE GOOD.  THE GOOD NEWS FOR ALL OF US I=
S
THESE ISSUES ARE NOT BLACK AND WHITE.  THERE IS EVIDENCE BOTH WAYS.  YIKE=
S!
A DEBATE!]
=20
[THIS IS HOW THE EPA IS RESPONDING.]

Inundated with complaints from industry executives about rigid and cumber=
some
federal  environmental regulations, the Clinton  administration responded
last year with a plan to make compliance easier, including a pilot progra=
m
allowing some companies to ignore the rules as long as they hit pollution
reduction targets. After a year, the administration's regulatory reform
program has begun helping industry hit those targets with far less work a=
nd
hassle, according to Environmental Protection Agency Administrator Carol =
M.
Browner.   So far the EPA has eliminated 1,400 pages of obsolete rules,
reduced the paperwork time industry spends on federal rules by 10 million
hours and initiated a campaign to streamline another 70 percent of the
agency's regulations, Browner said.
...
One of the measures the administration introduced to ease that burden per=
mits
EPA officials to waive the penalties some small companies would have been
fined for violating environmental laws as long as the companies' executiv=
es
take the steps needed to correct the violation. A related program allows
reduced penalties for companies that come forward and acknowledge that th=
ey
have broken environmental rules.
...
Browner also is spearheading Project XL, which allows some companies to p=
lace
government-written regulations aside and craft their own approaches to
environmental protection.  So far, 10 companies and two federal agencies =
have
been selected for the pilot program.
...
The administration also has agreed to ease the burden of environmental
regulations on small communities with limited resources by allowing state=
s
flexibility in working with those communities. The EPA has revised its
recycling rules to allow some stores and businesses to collect batteries =
and
other hazardous wastes for recycling.
...
For many environmentalists, the jury is still out on whether the approach
will bring increased environmental protection in the long run.  But
businesses have responded enthusiastically. Since the introduction of the
administration's plan, they have drastically scaled back a campaign for n=
ew
laws that would limit the EPA's power to enforce environmental laws.
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