other ships, is steamboats-cannot engage in a particular aspect of the coasting trade, ferrying passengers from one place to another place. That seems like a "direct conflict" where the Federal statute is saying these ships can do this, and the State law is saying no, they cannot. It seems an example that, perhaps, does not show that the sky would fall under S. 1214. Chairman THOMPSON. That is a good point. Senator Voinovich. Senator VOINOVICH. First of all, Professor Gellhorn, thank you for your suggestion that we ought to look at the language of S. 981 in terms of these provisions of judicial review. I also was interested, you talked about eight different assessments that are going on and that perhaps there are eight different assessments required today and that you think that perhaps they could be combined in some way to expedite it? Would you comment on that? Mr. GELLHORN. They range from family values to civil justice reform, to tribal governments, to federalism, to unfunded mandates, to small business impacts, etc. And it seems to me that rather than forcing the agencies to look at each separate Executive Order or each separate statute to find out what is required, it would be sensible to put that all in one assessment requirement imposed upon the agencies-that is, one procedure for engaging in the assessments, one process for identifying notification, one process setting forth for how the agencies should consider the results of their studies, and one similar process for judicial review. Having eight different patterns out there is likely to lead to confusion. Indeed, I think it is, in part, the reason that the agencies are not making the required evaluation in every instance. The courts are not always applying it. And that that ultimately perhaps does create a burden that is unnecessary. So I would suggest that is a simplification. Senator VOINOVICH. I would like to find out more about your thoughts on that, and how this fits in with what we are doing right here. Because that seems to make a lot of sense to me. Mr. GELLHORN. I am happy to do so. I have been working with your staff. Senator VOINOVICH. Whether it would be germane to what we are doing here, Mr. Chairman, or not, I do not know, but I would sure like to find out more about it. I was also interested in your testimony about safe drinking water because I was very much involved in that. In fact, I was at the White House when the President signed the bill. And we started out on that legislation, I recall when no one said we would get it done because the environmentalists I recall being accused of wanting to poison the water and everything else. But we worked at it. And I am interested in your reference to that and how it fits in with what we are doing here. Was it the process that went into that, where everybody was together and that is the way we should get things done or was there some specific aspect of Safe Drinking Water that you are honing in on, and I am-perhaps that portion of it that dealt with the cost benefit process that you go through to determine whether a reg should be carried out or not? Ms. STEINZOR. I was making the first point, which is the broader one, that in 1986 and I know you were very actively involved in the debate you passed a law, not so long ago. And then as people started to implement it, some people became very distressed and came back to you. And in 1996, through this very arduous debateyou rewrote the whole thing. And that is what I am suggesting, that there really is not any replacement for that; that if people are disturbed in the environmental area about the way that all of these programs are working, then the solution is to get back at the organic statutes, the authorizing statutes, and work it out with the ultimate compromise that nobody completely "wins." It was really the perfect melding of all of the different interests, and it was very hard work. I mean, the 1990 Clean Air Act amendments, for people who were not here, Senator Mitchell sat in a small room off the Capitol for hours and hours negotiating changes with his colleagues. Senator VOINOVICH. But the fact is that process that you are talking about does not really help us with the myriad of regulations that are being passed and legislation in terms of whether it is preempting State law or not preempting. Ms. STEINZOR. No. What I am concerned about, to be real clear about it, is that you tell EPA to go off and do some regulations after having gone through this big arduous process. There are still some people that are not happy about what the 1996 amendment said. You tell EPA to go off and do their regulations. Those same people that are not satisfied with the compromises and your decisions come in and start complaining to the agency. And then if you are not careful in a bill like this, this becomes a tool to be used to stop all of those regulations that you told them to do, and they never get around to eliminating doing the things that I would agree they need to do; cut out the underbrush of their excessive regulations, reinvent the way they do business, give local and State Governments more flexibility. A couple of court decisions, and they are frozen, and frozen agencies are not any more effective than unduly activist ones. Senator VOINOVICH. Well, I can tell you I, for years, have participated as a mayor and as a governor in a lot of exercises with Federal agencies, and in all due respect, so often they go through the motions, and that is about the extent of it. And that has been very, very discouraging over the years. I do think, though, that the point you make in terms of the meaningful participation and clarifying what that means is pretty doggone important, so that you don't end up with a lot of controversy about that. It ought to be pretty specific, Mr. Chairman, I think, in order to avoid, first of all, someone claiming it would be arbitrary and capricious, and second of all, just so the agencies understand what that actually means and the people that are supposed to be listening to it understand what that means and know more than what that means. Chairman THOMPSON. The Senate might say it means whatever it means in the Executive Order. Mr. GELLHORN. Well, I think you can avoid the problem if you have a more limited judicial review. Because the question of who narrow approach. That is exactly the kind of question that ought not to be examined in the court, as long as there has been some attempt, a serious, reasonable attempt, to reach out, whether they have a contact with every State or five States, it seems to me not to be something that a court ought to wrangle with. Chairman THOMPSON. Yes, I was interested in your comments along those lines, too, and perhaps using the Regulatory Improvement Act as an example, where it is you are required to do it, but it goes into the entire rule, and you look at the rule to see whether or not it is arbitrary and capricious. That is a little different though than the unfunded mandates because I do not think there is really any sanction. If they do not do it, you cannot invalidate the rule I think under that act. I think regulatory improvement is probably a better example there. But that is something that we ought to look at because we are not interested in buying a whole lot of new lawsuits, even though I think the bigger potential question does have to do with the opportunity of meaningful participation and all of that. I think that that needs to be a little more specific. But on the others, as I indicated a while ago, it is more of a requirement to make a description or an analysis or the extent of which it does not go into the validity of the rule itself. It is just asking the agency, telling the agencies to describe what is going on. And so it is, you can still, I mean, anybody can file a lawsuit, I guess, but you are not going to hold up or defeat an agency rule if they are doing halfway what they are supposed to be doing, I think, in that regard. Senator VOINOVICH. Mr. Chairman, one point that is interesting is that I periodically look at the Unfunded Mandate Relief legislation to ascertain whether or not it is doing any good. And in terms of regulations, it is not doing much good at all. But just the fact that you have the point of order, it is amazing the impact that that has had on agencies coming forward with the things that might be interpreted as unfunded mandates. So somewhere along the line, although it is restricted to, what is it, $100 million? It said there is a certain amount of dollars. Mr. GELLHORN. $100 million. Senator VOINOVICH. Yes, that is involved; that that reduces the area covered. The fact that I think it is CBO is reviewing this has really made a difference, and it kind of, it is comforting to know that the thing is working. Mr. GELLHORN. Well, I think you make a very important point, and that is that one of the purposes behind this bill is to get the agencies to think a little differently, to pay attention to this. It is sort of an intellectual discipline. But it seems to me also that without any judicial review, which is what the administration spokesman suggests, it becomes meaningless because there is no discipline, and we have already seen now several years of inactive response to that kind of Chairman THOMPSON. My guess is they probably know that that horse is out of the barn. Mr. GELLHORN. I think that is right. In fact, they said it by saying they would approve a targeted approach. So I thought the signal was rather strong. Chairman THOMPSON. I think so. I think we ought to be able to get that done. Do you have anything further, Senator? Senator VOINOVICH. No. Chairman THOMPSON. Thank you very, very much. We really appreciate you being here with us and waiting until this late hour. But your analysis and your written statements are extremely helpful to us. And we look forward to working with you further. We are adjourned. [Whereupon, at 5:41 p.m., the Committee was adjourned.] |