September 7, 1979
Page 23488
Mr. MUSKIE. Mr. President, I find myself in a position of opposing the position of three colleagues for whom I have the highest respect, to whom I have been listening for the last few moments — Senator BUMPERS, Senator MORGAN, and Senator CHILES. I regard them as thoughtful, constructive, and responsible. When, therefore, they support a proposition, I always assume that they are dealing with real concern and that they are doing their best to respond to the problem they perceive in a responsible manner.
From my point of view, I was informed of this amendment at 10 o'clock this morning. At that point, I had scheduled a meeting of the Senate Committee on the Budget to take a last look, have a last hearing on this second budget resolution that is to be presented to the Senate next week. Suddenly I am confronted with this, which I regard as a serious proposition, with serious implications for the future, with complexities that I had not been in a position to fully unearth and form a position on.
Whatever merit there is to the proposition at this point, from my point of view, is overwhelmed by the serious questions which I think it raises. I am asked to answer these questions between 10 o'clock this morning and whatever time we vote today. I understand the concern with overregulation, which has been the subject of Senator CHILES' response to this question. I understand that concern. He said, "We have to do something." But does doing something mean just doing anything, whatever it is, whatever questions it raises, whatever problems it may pose?
Or is there another way to evaluate the means sought to be used so that we do not find ourselves caught in a policy that creates more problems than it solves? That is the position I find myself in.
It may be that if I had the time to deliberate, analyze, and weigh the arguments and implications of this proposition, I might be persuaded to support it or some modification of it.
Second, I make the point that no matter how perfect a proposition may seem to Senators that sponsor it, I have never seen a proposition that could not be refined by deliberation and consideration in the Senate.
Third, I make the point that overregulation is the subject of serious committee consideration at this time. The Committee on Governmental Affairs, of which I have been a member, and the Committee on the Judiciary — this proposition, if it has sufficient merit to be supported by these distinguished Senators, certainly would get a serious hearing in those committees, be weighed and subjected to the crossfire of debate, subjected to the Senators' responsibility to respond to questions, so that the reservations of Senators like myself — and I regard myself as thoughtful and responsible and constructive — so that we could be reassured that what we are being asked to accept does not create more problems than it solves.
So I am going to raise some of the questions, Mr. President — not because I think, on such short notice, that I have raised unanswerable questions, but because, on short notice, the immediate questions that occur to me raise such serious questions about this proposition that I think the RECORD ought to include them.
Before I get to them, Mr. President, I ask unanimous consent that William Donovan, Phil Cummings, Karl Braithwaite, and Curtis Moore of the Environmental and Public Works Committee may have the privilege of the floor during consideration and votes on the Bumpers amendment. I include in that request Jim Davidson and Mr. Podesta.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. MUSKIE. At this point, Mr. President, I rise in opposition to the Bumpers amendment. I reemphasize that I am asking these questions, because these are questions of first impression that occur to me on a first and sketchy reading, that could not be anything but sketchy, of the amendment. My opposition is a practical one.
In my judgment, the amendment, if adopted, could stop the Federal Government in its tracks.
The amendment is overwhelming in its sweep. It says that Federal regulations are not worth the paper they are written on. Regulations promulgated by the Department of Agriculture, the Internal Revenue Service, and the Small BusinessAdministration will not be accorded legal respect at all until a court of law says they are worthy.
The Environmental Protection Agency will not be able to protect the public health; the Occupational Safety and Health Administration will not be able to safeguard the workplace; and the Social Security Administration will not be able to help pensioners.
The language of the amendment is deceptive. It sounds like only abusive regulations would be stopped. But this is not the case. Read carefully:
There shall be no presumption that any rule or regulation of any agency is valid ...
Good regulations and bad regulations, promulgated to further noble laws and ignoble laws, will be powerless unless a Federal judge gives the OK.
This amendment would sweep aside longstanding administrative practices. This amendment would sweep aside over 30 years of carefully crafted case precedents in administrative law. This amendment is possibly the most significant procedural change to be suggested in administrative law this session.
Yet, this amendment has not even been raised in a hearing, to the best of my judgment. Administrative law experts have not had a chance to present opinions and be examined in congressional process.
Administrative agencies have only learned of this proposal within the last 24 hours. The impact on rulemaking, Federal program development and implementation could be devastating. So why should the Senate rush to enact it?
Two committees of the Senate are now deliberating on regulatory reform bills. Both the Judiciary and Governmental Affairs Committees have called numerous witnesses over a number of days of hearings to discuss the intricacies of this type of proposal. These committees are now moving to markup. It is critical that this process be deliberate and careful. Amendments, such as the one before us, belong in that committee process.
The sponsor of this amendment would have us believe that the Federal courts have been merely a rubberstamp for administrative agency regulations. I doubt it, although I can believe that some of them have been. This is not consistent with my observation — that generalize the courts have always been a rubber-stamp for all agencies. We do have statements by two noted administrative law experts, statements rebutting the need for the amendment. I would like to read excerpts of their statements:
Professor Nathaniel Nathanson: "I am not at all impressed with the desirability of such an amendment to the APA . . . So far as I am aware the federal courts have not been giving blind obeisance to administrative determinations of law in recent years."
Professor Clark Byse: "There is reason to believe that the proponents of the measure are proceeding on the basis of mistaken perceptions . . . Although undoubtedly there are judges or panels of judges or courts which at times fail to discharge their review responsibilities, I do not think this is a general weakness which needs the corrective action proposed by S. 2408."
In short, this is an idea whose merits — and I do not doubt it has merits — need serious examination. I believe the Bumpers amendment would hamstring effective execution of Federal law by various Federal agencies. I believe it would muddy the waters of administrative case law, leading to confusion not clarity. And, I believe it would only invite Federal courts to usurp the legitimate rulemaking functions of administrative agencies. This amendment deserves a more careful look. I urge my colleagues to reject it.
On a quick contact with those in the Federal branch in a position to respond to this, Jim Moorman, Assistant Attorney General, Lands and Natural Resources, advised that the hazardous waste program, which has been dead since the Congress enacted it, would be dead if this amendment goes through.
Here is a problem that is escalating in public concern all over the country, from northern New York State in the Love Canal disaster to other similar disasters all over the country.
The country is crying for the Congress to deal with the hazardous waste problem, which becomes more horrendous the more the incidents occur and the more we come to understand the massive extent to which the hazardous materials have been unleashed in the environment over the period of our industrial revolution.
So, with this amendment, we would kill the hazardous waste program dead in its tracks, according to the Assistant Attorney General who has responsibility in that field.
Also, the IRS regulations problem, the water projects problem, because court action would stay regulations. This type action could take 4 to 5 years.
Mr. President, it seems to me, briefly, that there are three major problems raised by the amendment.
First, it would give Federal district judges the power to review de novo Federal agency regulations. In essence, the Federal judges who have been limited thus far to substituting their own judgments on the wisdom of regulations to questions of law, could be authorized herein to substitute their judgment on questions of fact as well. Environmental regulations now are being modified in the agency promulgation process by the participation of economic advisers. This provision provides industry with yet another opportunity to delay the process, if not water down strong provisions. No deference would be accorded the expertise and judgment of any Federal agencies. In effect, this provision puts Federal judges in the position of writing agency regulations.
Over the 20 years of my involvement in the Senate, I have heard rising concern about the growing power of the judiciary to make public policy. Here, in effect, we would give them the enormous power to write agency regulations.
Second, the amendment states (line 3, page 2) that:
There shall be no presumption that any rule or regulation of an agency is valid ...
No presumption that any rule or regulation of an agency is valid. Consider the impact of that statement, not on the courts, but on those who are regulating.
This completely undercuts an agency's ability to enforce the law through ordinary regulatory channels. It gives recalcitrant parties yet another excuse to avoid the law. They will litigate instead.
Whatever disposition there might have been to accept the judgment of the agency would be wiped away as they see the opportunity, yet another litigation opportunity, to defeat legitimate regulation in the public interest.
Third, Mr. President, the burden of proof to support agency regulations would be shifted back to the agency which must bear a very heavy burden. The agency must prove the regulation is supportable with clear and convincing evidence (line 8, page 2) . At present, Federal agency regulations are upheld unless the opponent of the regulation can show there was no substantial evidence on the whole record to support the decision. This establishes a further unnecessary hurdle.
May I say to those concerned about the time-consuming nature of overregulation, this would add to the time consumed before the issue is finally resolved in the courts, and the courts of last resort.
So, anybody who sees this amendment as a way of shortcutting the regulatory process may find themselves overwhelmed by the actual fact, if it becomes the effective policy in this field.
Mr. President, I repeat that it may be that I have not had enough exposure to the arguments for this amendment. It may be I have not had enough opportunity to fully understand its implications.
It may be that if I had such opportunity and time for reflection, the time to examine its assumptions and its implications, that I might be persuaded to support some modification of this amendment. But I am being asked to make that judgment now, on the basis of less than 2 hours of consideration, and part of that consideration has been listening to my own voice — and I am never thoroughly educated by my own voice.
But this is not the way to deal with an issue of this complexity, this magnitude, and this importance.
I do not think voting against it means that I label myself as being against overregulation. That is an oversimplistic approach that is taken by many people in offering amendments on this floor to one piece of legislation or another, to force Senators to face oversimplified interpretations of their vote.
I am against overregulation, but I am against oversimplification of the legislative process which could produce, in my judgment, the horrendous results which I foresee at this point. I am willing to be educated, willing to consider the propositions, but not under these time constraints and under these pressures of time and insufficient and inadequate consideration and examination.