March/April 1995
The balance of power in Washington has shifted dramatically. The Republicans and Democrats have switched positions and a whole new slate of congressional leaders—from top posts through subcommittee chairs—are coming to the fore. What does this mean for Superfund reform?
By Alex Echols
Alex Echols is director of government policy for the Institute of Scrap Recycling Industries (ISRI) (Washington D.C.).
Last fall's mid-term congressional election has led to one of the most important shifts in political power in the life-time of most Americans, with the Republican gaining a majority in both houses of Congress for the first time in decades. To appreciate just how revolutionary this change is, note that only one member of Congress today was around to see the inside workings of the House of Representatives when it last had a Republican Majority—40 years ago—and that was as a congressional page.
With this uncharted backdrop, few things are certain except the uncertainty of many legislative issues, including Superfund reauthorization.
Tables Turned: Shifting Perspectives
At the opening of the 103rd Congress two years ago, the house of Representatives had 258 Democrats and 176 republicans (and one vacancy). The 104th Congress, in comparison, has 204 Democrats and 230 Republicans (and one independent). Thus, while the republicans took over the majority position from the Democratic Party, they have a much narrower edge than the Democrats enjoyed last Congress—26 votes as opposed to 82.
This narrow plurality presents a twist to the legislative certainties seen in recent years, when the majority party’s majority essentially assured that its initiatives would move through the House. Today’s closely divided House may find it more difficult to pass legislation, and its Republican Leaders will likely find it necessary to enforce strict party discipline or take a strongly bipartisan tack to advance their agenda. Then again, conservative Democrats have thus far shown a willingness to cooperate with the Republicans on some issues.
On the Senate side, there were 55 Democrats and 45 Republican in the 103rd Congress, while the 104th Congress has 47 Democrats and 53 Republicans. As in the House, the Republicans took the edge from the Democrats but with a smaller majority, and, therefore, the Senate Republicans are also likely to have a harder time controlling legislation than the Democratic majority before them.
The leadership of the House and Senate have changed as well—and perhaps more dramatically than the overall congressional makeup. Thomas Foley, a liberal Democrat from the state of Washington , was speaker of the House in the 103rd Congress, while today the post is held by Newt Gingrich, a conservative Republican from Georgia . In the Senate, the majority leader mantle passed from George Mitchell (D-Maine) to Bob Dole (R-Kan.).
And the leadership changes extend far beyond the top posts. The majority party assigns all committee and subcommittee chairmanships, and it is in these panels that most of the work of Congress is done. The shift to a Republican majority thus means that an entirely different cast of characters is heading the House and Senate panels than last year. These new chairman have different objectives, political needs, constituencies, and philosophies on legislation than their predecessors, and this will affect the flavor of legislation that emerges from their panels.
Furthermore, since it’s been so long since the Republicans have been the majority in the House (Republicans controlled the Senate for six years in the 1980s), none of the new House chairman has been in such a post before, so they will have to learn entirely new roles in governing.
For a look at the new configuration of House and Senate committees key to Superfund reauthorization, see sidebar at left and on pages 104 and 106.
New Personalities, New Agenda
Because the power to set the congressional agenda falls to the majority, the changes ushered in by the November election affect not only how legislative proposals will fare, but also what legislation is introduced and when. After all, the issues that were closest to the hearts of the majority leaders of the last Congress are very different from the priorities of the current Republican leadership.
The 104th Congress also will want to put its own "spin" on legislation and will probably come at problem solving from a very different perspective than previous Congresses. So even where there are agreements on the problems as identified in the past, there will likely be different solutions suggested.
The most notable illustration of differences in approach is the amount of floor time Congress has dedicated thus far to the Republicans' "Contract With America," set of promises to legislate down the size and intrusiveness of the federal government. This power to set schedules for debate and priorities for floor time in both the House and Senate will continue to be a powerful tool to shape the legislation Congress considers.
A Recycling Fix in Superfund?
What does the fundamental political shift in the House and Senate mean to the scrap recycling industry and chances for Superfund reform? Will legislators finally fully recognize the distinction between recycling and waste disposal and adopt the recycling provision included in last year's Superfund reauthorization legislation?
A common saying in Washington is, "Those who live by the crystal ball eat ground glass." Nevertheless, several Superfund legislation trends are clear.
For one thing, what is past is typically prologue, and legislation based on last year's recycling provision has already been introduced. Like last year's proposal, the Superfund Recycling Equity Act of 1995 would clarify that the recycling of paper, glass, plastics, metals, textiles, and rubber should not be subject to past or future Superfund liability. (Last year's provision—negotiated by ISM with administration officials and environmental advocacy groups—failed to pass when Congress adjourned before voting on Superfund.)
Despite the similarities between the old and new Superfund recycling provisions, it's now a whole new ball game, and chances are that many changes to this provision will be proposed before it is incorporated into broader Superfund reform legislation.
Another factor that could affect the recycling provision and Superfund reauthorization in general is how Congress uses outside interested parties to draft legislation.
The bills to reauthorize Superfund last year were largely drafted by people outside of Congress. Several working groups, such as the Environmental Protection Agency's (EPA) National Advisory Council for Environmental Policy and Technology coordinated the drafting of policy positions by the various "stakeholders" affected by Superfund, such as environmental advocacy groups, local government, academia, small business, and Superfund cleanup contractors. These papers were then used by the Clinton administration and the EPA to develop principles for Superfund reform.
The relative importance of these intermediary actors—including the Clinton administration—will likely be substantially different in the 104th Congress, which reportedly plans to rely less on outside interests to design reforms and has announced that much more of the work to prepare revisions to Superfund will be done within Congress this year. Of course, there will still be a tremendous need for legislators to try to build consensus among affected parties, but congressional leaders say they will be driving the legislation rather than reacting to proposals put together by outsiders.
Major Philosophical Differences
Beyond these issues is the simple fact that Superfund is complicated and contentious. Numerous issues tackled in the past will be revisited, and different positions are likely to emerge from this Congress than from its predecessors. In addition to the broader issues of unfunded mandates, private property rights, and the "new federalism" so prominent in the "Contract With America," a lot of tough issues unique to Superfund have to be resolved.
One key issue is whether Superfund's retroactive liability scheme should be re retained. Many critics have long argued that it is unfair for Congress to retroactively impose liability on activities that were legally sanctioned at the time they occurred. As Superfund stands today, a company that disposed of material in 1970 in a legal and state-of-the-art fashion, employing the best available environmental protection techniques of the time, could be held liable for cleanup costs today if the 1970 disposal practices, then sanctioned by environmental protection officials, were found to have contributed to site contamination.
Removing retroactive liability from Superfund, however, would create a whole new set of problems. For example, if the party responsible for creating the contamination doesn't pay for the cleanup, who will? Should Congress impose a broad tax to reduce the burden on those responsible for the pollution? Who should conduct cleanup operations if the responsible parties don't—the government? Someone in the private sector? And if the law is altered to spread the cleanup burden, how do you treat those who have already spent billions on cleanups when others would be left off the hook by a change in Superfund's liability scheme?
And retroactive liability is only one of many difficult philosophical issues that must be resolved before Superfund can be reauthorized. Others include: How clean is clean—what standards are appropriate? What is the proper role of states in managing contaminated sites? What taxing mechanisms are appropriate—not to mention politically palatable to pay for cleanups? It is likely to take Congress months to come to grips with these and other tough issues.
A Rough Road Lies Ahead
A huge juggling act and a number of housekeeping chores must occur before Congress can even think about these issues. For example, new legislators are still filling their staff rosters, and committee subcommittee staffs—including those with Superfund oversight—are being revamped to give the majority party two-thirds of the staff. And once things are organized, there is a substantial backlog of politically pressing legislation to be moved before there is time for issues like Superfund.
When Congress finally begins to look at Superfund, members will have to dedicate substantial time to understanding how Superfund operates, what problems exist, and what solutions are appropriate if the law is to be reformed.
Oversight hearings are likely to consume days of committee time just to get the issues out on the table. Members new to Congress or to committees with Superfund responsibilities will need time to be brought up to speed on the issues, and time will be needed to evaluate and debate new approaches.
And for Superfund to move, it must rise to the top of the agenda of several committees. In the House, Superfund reform must clear five committees—Commerce, Transportation and Infrastructure, Judiciary, Ways and Means, and Rules—after action by various subcommittees of these panels. In the Senate, the legislation must pass the Environment and Public Works, Judiciary, and Finance committees before it goes to the floor.
The legislation must then be given adequate floor time in both the House and Senate, pass both, clear a conference committee assigned to resolve differences between the House and Senate versions, and win the signature of the president. This process will take months, and new or emergency priorities could displace Superfund at any stage.
On the positive side—positive, that is, assuming a recycling exemption/clarification is included in this year's Superfund legislation—top House and Senate leaders, including Dole and Gingrich, have indicated that Superfund reauthorization is among their legislative priorities.
Likewise, several key committee chairmen have indicated they want to see Superfund action this year. On the Senate side, these are John H. Chafee, who chairs the Environment and Public Works Committee, which has primary jurisdiction in the Senate over Superfund, as well as Robert C. Smith, who oversees that panel's important Subcommittee on Superfund, Waste Control, and Risk Assessment. In the House, Thomas J. Bliley Jr., chairman of the Commerce Committee, which has primary jurisdiction over Superfund, and Rep. Mike Oxley, chairman of Commerce's key Subcommittee on Commerce, Trade, and Hazardous Materials, have both voiced support for movement on Superfund.
So, a very long legislative road must be traveled before Superfund protection for recyclers—as part of a broader reform package—is enacted into law. Overlay this road map with the political realities of a Congress still in the midst of reorganizing, busy dealing with broader and perhaps more popular issues, characterized by a proclivity toward partisan battles, and—as always in Washington—conscious of the next election, and it becomes clear we are in for a twisting and bumpy ride. When and where we'll end up, no one knows.
The balance of power in Washington has shifted dramatically. The Republicans and Democrats have switched positions and a whole new slate of congressional leaders—from top posts through subcommittee chairs—are coming to the fore. What does this mean for Superfund reform?