Third Quarter 2001

Federal Legislative Update

Holland & Knight Newsletter
Rich Gold

The legislative agenda on Capitol Hill has been altered significantly as a result of the terrorist attacks of September 11. Congress and the White House will be devoting the majority of the remaining session to issues related to the terrorist attacks and subsequent military and economic initiatives. This is not to say that there will be no action attempted on environmental issues this year. To the contrary, there are several areas where the environment and future military, economic and foreign policy issues overlap. Also, as discussed in more detail in the article on page three, brownfields legislation was on a fast-track just prior to the attacks and may move before the end of the session.

Energy Policy

Perhaps the most obvious environmental debate that will arise as a result of September 11 has to do with a national energy policy. The most recent example of this occurred during the week of October 1 when Senator James Inhofe (R-OK) attempted to attach an energy package, that contained a provision allowing oil drilling in the Arctic National Wildlife Refuge (ANWR), to the FY02 Defense Authorization Bill. The attempt was defeated, but the passion by which it was debated showed that there may be additional attempts to open restricted land in the Western United States and the Gulf of Mexico for energy exploration.

During debate on the defense bill, Senator Joseph Lieberman (D-CT) rose in opposition to the energy amendment. He stated, "[I]n the view of many, myself included, opening the refuge to drilling is not just bad environmental policy, it is bad energy policy and would do next to nothing to reduce our dependence on foreign oil. In fact, as we have repeatedly pointed out, the refuge would not provide a drop of oil for at least a decade." Senator Frank Murkowski (R-AK) countered that "[W]e built the Pentagon in 18 months, the Empire State Building in a year and built the 1,800-mile Alaska Highway in nine months. Oil could be flowing out of ANWR quickly if we made a total commitment to make that happen. I believe we could do this in 12 months instead of the five years, some predict."


In early September, a hard-fought compromise was reached on legislation to promote the cleanup of abandoned industrial sites known as "brownfields." All substantive and procedural issues had been worked out between the House and Senate and it appeared the measure would sail through. Unexpectedly, as the House was preparing to take action, a dispute arose when Democrats insisted on clarifying whether the Davis-Bacon Act, a federal wage law, applies to the cleanup work outlined in the bill. Now, both sides are attempting to resolve the issue in an effort to pass at least one meaningful environmental bill this year.

Members on the House Energy and Commerce Committee had agreed to move a bill despite differences over federal and state authority over cleanups. The plan called for merging the brownfields bill, S. 350, with a Superfund liability measure, H.R. 1831. According to sources, the package could have been approved by the House and Senate and signed by the President by the end of September.

The "Brownfields Revitalization and Environmental Restoration Act of 2001," S. 350, was passed by the Senate on a 99-0 vote on April 25. The bill would authorize more than $1 billion over five years in federal grants for cleanups, limit some liability for landowners and developers, and give states the lead role in cleanup decisions. In addition, the bill contains a provision that would limit EPA’s ability to reassess a site once it was declared clean. In many cases, the bill also would protect neighbors and new owners of formerly contaminated property from cleanup requirements.

The "Small Business Liability Protection Act," H.R. 1831, was passed unanimously by the House on May 22. The bill, among other things, would shield companies that disposed of or transported less than 110 gallons of liquid waste or less than 200 pounds of solid, non-hazardous waste to a Superfund site prior to April 1, 2001. In addition, it would exempt non-profit groups, homeowners and businesses with 100 or less full-time employees that dumped household garbage at facilities that subsequently were categorized as Superfund sites. The bill also would codify EPA’s practice of reducing fines for businesses unable to afford cleanup costs.


Heading into October, Congress has yet to take final action on any of the 13 annual appropriations bills. To date, the House has passed 11 bills and the Senate has cleared nine bills. No conference reports have been filed. Given the tight timeframe in which Congress has to complete its work on the budget before adjourning and the fact that each party controls one house of Congress, it is unlikely that any contentious environmental "riders" will be included in any appropriations measures. In addition, with Washington focused on the war on terrorism, it will be difficult for any environmental legislation, other than a brownfields bill and a focused energy bill, to pass this year. As a result, any controversial issues are likely to be addressed through the regulatory process, if at all.

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