106th Congress: Key Issues and Early Agenda IV

CONTENTS FOR THIS SECTION

Environment and Natural Resources

International Environment

Global Climate Change

Domestic Environmental Protection

Reauthorizing Superfund

Natural Resources

Water Resources Issues

Government Operations

Government Organization and Reauthorizations

Regulatory reform
Intellectual Property Protection

Environment and Natural Resources

International Environment

Global Climate Change. The Congress has maintained an active and continuing interest in the implications of possible global climate change for the United States. Increased levels in the atmosphere of several "greenhouse gases," such as carbon dioxide emitted from burning fossil fuels, may cause global warming. Such warming could potentially result in rising sea levels, changes in agricultural production, and adverse health effects, among other consequences. Recent activity has focused on international negotiations responding to these concerns.

In 1992, the nations of the world agreed on the United Nations Framework Convention on Climate Change (UNFCCC). The United States has signed and ratified the UNFCCC, which entered into force in 1994. In 1997, the parties to this convention further agreed to the Kyoto Protocol -- which has not yet entered into force -- to establish binding reductions in greenhouse gases for the developed countries. (By previous agreement, the Kyoto negotiations exempted developing countries from binding requirements, while the wealthier industrialized nations took the first steps.) The Protocol outlines specific commitments for developed countries in which the U.S. would be committed to reduce its net average annual emissions of six greenhouse gases by 7% below baseline levels (1990 for carbon dioxide) during 2008-2012. Currently, U.S. emissions are above baseline levels.

In November 1998, the parties met again in Buenos Aires, Argentina, to develop work plans for specific elements of the Kyoto Protocol, such as how to structure trading of emissions reductions among nations, funding for developing countries under the Clean Development Mechanism (CDM), and compliance and enforcement. These work plans are to be completed by 2000. The United States signed the Kyoto Protocol in November 1998, but the Administration has said it will not submit the Protocol to the Senate for advice and consent until "meaningful participation" of developing countries has been achieved. At least in part, this delay reflects sensitivity to S.Res. 98, passed unanimously by the Senate in 1997, which states that the United States should not agree to a protocol that does not impose binding requirements on developing countries or that "would result in serious harm to the U.S. economy."

Congress' legislative and oversight interests include scientific evidence for global warming and potential effects; research and monitoring needs; conditions under which the United States would ratify the Kyoto Protocol; and economic implications of complying with emissions reductions in the Protocol, if ratified.

Domestic Environmental Protection

The 106^th Congress' agenda for environmental protection may include both unfinished work from the 105^th Congress, such as reform legislation for the Comprehensive Environmental Response, Compensation and Liability Act (Superfund), as well as newly emerging issues.

Reauthorizing Superfund. The 106^th Congress may address Superfund reform legislation, due to continued dissatisfaction with the program, which cleans up the nation's most hazardous waste sites. It may also consider provisions--either separately or within reform legislation--to reinstate the supporting tax, which expired Dec. 31, 1995, as remaining funds are projected to run out sometime in FY2000.

During the 105^th Congress, the Senate Environment and Public Works Committee reported a comprehensive reform bill, S. 8 (S.Rept. 105-192), and the House Transportation and Infrastructure's Water Resources Subcommittee approved another, H.R. 2727. No further congressional action occurred, as liability, remedy selection, and natural resource damages issues remained unresolved. Among the continuing liability issues are whether most generators and transporters at landfills that had received mainly municipal solid waste and sewage sludge should be exempt from liability; whether certain small businesses should be excluded from liability; and whether some entities should have limited liability, such as de minimis parties contributing less than 1% of the waste, municipalities, tax-exempt organizations, and recyclers. As for cleanup standards, many feel that remedies should be based on site-specific conditions and future use, allowing consideration of all cleanup options, rather than the current law's emphasis on permanent treatment remedies. The natural resource damages question focuses on what limits to compensation there should be: should companies have to pay for the loss of a natural resource's unique intrinsic (non-use) values, and for the public's lost use of a resource? Also at issue is how damage assessments should be performed.

While the General Accounting Office and the Environmental Protection Agency estimate that the Superfund trust fund is adequate to finance cleanup programs through FY1999 and into FY2000, some Members may propose to reinstate its supporting taxes on petroleum and chemical feedstocks as well as a corporate environmental income tax. This tax issue and other major issues could be the subjects of separate legislation or of comprehensive bills.

Natural Resources

A number of natural resource issues are likely to be considered during the 106^th Congress. Several debates may be driven by legislative reauthorizations that are due, including the Endangered Species Act, Marine Mammal Protection Act, Magnuson-Stevens Fishery Conservation and Management Act, Coastal Zone Management Act, and the Marine Protection, Research, and Sanctuaries Act. Other discussions may focus on legislative reform of, for example, the 1872 General Mining Law, the federal land management and planning statutes, and Forest Service fiscal management. However, water resources seem likely to be an early central focus of congressional attention on resource issues.

Water Resources Issues. Growing populations and changing values are placing increasing demands on existing water supplies, resulting in water use conflicts throughout the country. These conflicts are particularly evident in the West where population has been projected to increase by 30% in the next 20-25 years and where urban needs are often in direct conflict with agricultural needs, as well as with increased demand for water for endangered species, recreation, and scenic enjoyment. In the 105^th Congress, the Senate passed legislation to authorize U.S. Army Corps of Engineers flood control and navigation projects and make adjustments in flood control policy (S. 2131), but the House did not act on the bill. Congress traditionally enacts authorizing legislation for Corps projects bienially. The 106^th Congress is likely to debate a number of controversial water resources issues, such as those related to: (1) individual project authorizations (e.g., Animas La Plata, Garrison, American River flood control, Auburn and Folsom dams), Salton Sea, Water Resources Development Act, rural water supply; (2) oversight of agency policy (e.g., CAL-FED/Bay-Delta, Central Valley Project, lower Colorado River, Columbia River basin); and (3) privatization of federal facilities. Also likely to be debated is the broader issue of the future role of traditional water resources agencies in an era of changing public demands, declining budgets, and integrated resource management.

Government Operations

Government Performance and Results Act. This 1993 law, known as GPRA or the Results Act, is intended to advance efficiency, effectiveness, and accountability in federal spending by requiring agencies to develop strategic plans and performance measures and also to prepare annual performance plans and reports. The strategic plan is to describe the mission of the agency and its general goals, while the performance plan is to set forth quantifiable goals and measures. After a series of pilot projects, implementation went government-wide during the 105^th Congress, with an initial round of agency strategic plans delivered to Congress in 1997. The government wide performance plan was transmitted to Congress as part of the President's FY1999 budget submission in February; the first round of agency performance plans was then delivered to Congress later in 1998.

Meanwhile, Republican leaders in Congress released a report in November 1997 critiquing the strategic plans; the House majority leadership issued a report in June 1998 rating and critiquing the performance plans. On March 12, 1998, the House passed the GPRA Technical Amendments (H.R. 2883), but no further action occurred. However, in the Senate, another bill amending GPRA, the Biennial Budgeting and Appropriations Act (S. 261), was reported; section 8 provided for the incorporation of the GPRA framework into the biennial budget cycle. Close congressional oversight of the implementation of the Results Act is likely to continue in the 106^th Congress, and GPRA amendments may again be offered.

Regulatory reform. Costs imposed by federal regulations have risen sharply over the past 30 years as a result of a significant increase in the number, scope, and complexity of federal regulatory programs dealing with health, safety, and the environment. Seeking to control these costs, President Reagan, in 1981, issued Executive Order 12291, directing federal agencies, unless otherwise prohibited by law, to use cost-benefit analysis when developing major regulations, in order to issue only those regulations whose benefits exceeded their costs. The agencies also were required to submit their new regulations for review and clearance by the Office of Management and Budget prior to issuance. In 1993, President Clinton replaced this order with Executive Order 12866, which, with some modification, continued the cost-benefit and centralized review provisions of the earlier order. Later, the Unfunded Mandates Act of 1995 required agencies to consider a reasonable number of regulatory alternatives when preparing a major regulatory action. The agencies were to select the least costly, most cost-effective, or least burdensome alternative, or to explain why such an alternative was not chosen when they issued a major regulation.

Most recently, in a further effort to control the costs of regulations, the Senate Committee on Governmental Affairs reported legislation in 1998 (S. 981), requiring agencies to use cost-benefit analysis and risk assessment when developing major regulations, and to submit the analysis to peer review. Due to Administration opposition, the bill was awaiting floor consideration when the 105^th Congress adjourned. Outstanding issues that may be addressed by the 106^th Congress concern, among other things, the criteria governing the use of cost-benefit analysis and risk assessment when a regulation is being developed; the role of peer review in evaluating the analysis and assessment; if, and how, such analysis and assessment should be used to review existing regulations; the role of judicial review; and whether to establish a regulatory review office in the legislative branch to recommend to Congress which major rules to review under the Congressional Review Act.

Intellectual Property Protection

Protection of intellectual property in the digital era was addressed by the 105^th Congress with passage of the Digital Millennium Copyright Act (P.L. 105-304), but issues concerning the protection of noncreative databases were left unresolved. If the selection, arrangement, or coordination of data in a database embodies original, creative expression, the database can be protected by copyright. Databases that do not embody creativity are not protected. Compilers of noncreative databases are seeking legislation to protect their investments of money, time, and other resources, but scientific and library groups want to ensure they have access to such collections of information under traditional "fair use" principles. Database protection legislation passed the House but not the Senate in 1998 and is expected to be reintroduced early in 1999. The 106^th Congress is also expected to reconsider legislation that would make it easier for federal agencies to license government-owned inventions in order to increase the opportunities for commercialization of such technologies by industry. Legislation proposed in the 105^th Congress (H.R. 2544) would decrease the time period necessary for obtaining an exclusive or partially exclusive license from 5 months to 15 days in recognition of the ability of the Internet to offer widespread notification and the importance of promptness in private sector business decisions. There was little opposition to such changes by both the Congress and the Administration, however time constraints left the measure pending. Thus, the issue will likely be addressed in the 106^th Congress. Significant attention also was paid to patent reform during the last Congress, and efforts are expected to continue particularly since this issue is of intense interest to the scientific, engineering, and legal communities. Legislation that would have made the Patent and Trademark Office of the Department of Commerce a government corporation passed the House (H.R. 400) and was reported to the Senate in 1998 (S. 507). The legislation would have changed current patent law to include early publication of pending patents (with exceptions), provided patent term restoration for certain delays in patent issuance, created new defenses relating to prior domestic commercial use of inventions, and revised the patent re-examination provisions.

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