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75–478 PDF 2002

S. Hrg. 107–157

S. 159—A BILL TO ELEVATE THE ENVIRONMENTAL

PROTECTION AGENCY TO A CABINET-LEVEL

DEPARTMENT

HEARING

BEFORE THE

COMMITTEE ON

GOVERNMENTAL AFFAIRS

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

ON

S. 159

TO ELEVATE THE ENVIRONMENTAL PROTECTION AGENCY TO A CABINET LEVEL DEPARTMENT, TO REDESIGNATE THE ENVIRONMENTAL

PROTECTION AGENCY AS THE DEPARTMENT OF ENVIRONMENTAL

PROTECTION AFFAIRS, AND FOR OTHER PURPOSES

JULY 24, 2001

Printed for the use of the Committee on Governmental Affairs

(

(II)

COMMITTEE ON GOVERNMENTAL AFFAIRS

JOSEPH I. LIEBERMAN, Connecticut, Chairman

CARL LEVIN, Michigan

DANIEL K. AKAKA, Hawaii

RICHARD J. DURBIN, Illinois

ROBERT G. TORRICELLI, New Jersey

MAX CLELAND, Georgia

THOMAS R. CARPER, Delaware

JEAN CARNAHAN, Missouri

MARK DAYTON, Minnesota

FRED THOMPSON, Tennessee

TED STEVENS, Alaska

SUSAN M. COLLINS, Maine

GEORGE V. VOINOVICH, Ohio

PETE V. DOMENICI, New Mexico

THAD COCHRAN, Mississippi

ROBERT F. BENNETT, Utah

JIM BUNNING, Kentucky

JOYCE A. RECHTSCHAFFEN, Staff Director and Counsel

SUSAN E. PROPPER, Counsel

HANNAH S. SISTARE, Minority Staff Director and Counsel

PAUL R. NOE, Minority Senior Counsel

DARLA D. CASSELL, Chief Clerk

(III)

C O N T E N T S

Opening statements: Page

Senator Lieberman ........................................................................................... 1

Senator Collins ................................................................................................. 3

Senator Voinovich ............................................................................................. 4

Senator Thompson ............................................................................................ 13

Senator Stevens ................................................................................................ 15

Senator Carper ................................................................................................. 17

WITNESSES

TUESDAY, JULY 24, 2001

Hon. Barbara Boxer, a U.S. Senator from the State of California ...................... 5

Hon. Sherwood L. Boehlert, a Representative in Congress from the State

of New York .......................................................................................................... 7

Hon. Christine Todd Whitman, Administrator, U.S. Environmental Protection

Agency ................................................................................................................... 9

Hon. Carol M. Browner, Former Administrator, U.S. Environmental Protection Agency ........................................................................................................... 20

Hon. William K. Reilly, Former Administrator, U.S. Environmental Protection

Agency ................................................................................................................... 22

Hon. E. Donald Elliott, Former General Counsel, U.S. Environmental Protection Agency ........................................................................................................... 24

ALPHABETICAL LIST OF WITNESSES

Boehlert, Hon. Sherwood L.:

Testimony .......................................................................................................... 7

Prepared statement .......................................................................................... 42

Boxer, Hon. Barbara:

Testimony .......................................................................................................... 5

Prepared statement .......................................................................................... 37

Browner, Hon. Carol M.:

Testimony .......................................................................................................... 20

Prepared statement .......................................................................................... 46

Elliott, Hon. E. Donald:

Testimony .......................................................................................................... 24

Prepared statement with an attachment ....................................................... 55

Reilly, Hon. William K.:

Testimony .......................................................................................................... 22

Prepared statement .......................................................................................... 48

Whitman, Hon. Christine Todd:

Testimony .......................................................................................................... 9

Prepared statement .......................................................................................... 44

APPENDIX

Hon. Robert Smith, a U.S. Senator from the State of New Hampshire, prepared statement ................................................................................................... 65

Copy of S. 159 .......................................................................................................... 68

(1)

S. 159—A BILL TO ELEVATE THE ENVIRONMENTAL PROTECTION AGENCY TO A CABINET-LEVEL DEPARTMENT

TUESDAY, JULY 24, 2001

U.S. SENATE,

COMMITTEE ON GOVERNMENTAL AFFAIRS,

Washington, DC.

The Committee met, pursuant to notice, at 10 a.m., in room SD–

342, Dirksen Senate Office Building, Hon. Joseph Lieberman,

Chairman of the Committee, presiding.

Present: Senators Lieberman, Collins, Voinovich, Thompson, Stevens, and Carper.

OPENING STATEMENT OF CHAIRMAN LIEBERMAN

Chairman LIEBERMAN. Good morning and welcome to this hearing today on S. 159, a bill introduced by two of our colleagues, Senator Barbara Boxer of California and Senator Susan Collins of

Maine, who I am pleased to say is serving as the Ranking Member

for this hearing. I apologize to all in attendance. I am suffering

from a summer cold, undoubtedly aggravated by air pollution,

which would undoubtedly be alleviated by the elevation of EPA to

cabinet status. So I should probably start my opening statement

there.

I have been a Member of this Committee since I came to the

Congress in 1989, and we have twice held hearings in 1990 and

1993 on raising EPA to the cabinet. I have been an enthusiastic

supporter of this legislation and was generally disappointed when

it failed to be enacted. Today, I continue to believe strongly that

EPA should be made a cabinet department. The time is really right

for our Nation to say that we hold protection of our environment

so high that we want to put it on a par with other agencies that

have cabinet status, such as those that defend our national security

or work to improve the quality of our education system. In fact, I

do think that if we elevate EPA to cabinet status, we will be reflecting what has become an expression, a consensus expression, of

our national values.

We have come a long way since the 1970’s and the first Earth

Day, from the creating of EPA by President Nixon in 1970, driven

by the vision and the insights originally then, that we were acting

with disrespect toward our environment, and while there was a

time in which we thought that would have no consequences, it obviously was having serious consequences on the state of our magnifiVerDate 11-MAY-2000 08:40 Mar 08, 2002 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 75478.TXT SAFFAIRS PsN: SAFFAIRS
2

cent natural resources in this country, but also on our own health,

as a result of pollutants in the air and in the water.

That led to the first generation of environmental protection laws

at the Federal and State level, which, in turn, as occasionally happens in the history of civilization, the law reflected the value that

Americans placed on the protection of the environment, but it also

broadened the acceptance of those values such that we now have

a very wide consensus in our society that cuts across every demographic and certainly every political describer, in favor of environmental protection. It seems to me that conferring cabinet status on

EPA reflects that very profound and widely held American value

of environmental protection.

Second, I would say that EPA’s status ought to be elevated as a

way of making sure that the reality follows the status and the symbol, which is to say that environmental concerns are put, structurally and every other way, on an equal par with other concerns

with which they occasionally confront. I am thinking of the recent

California power crisis, but generally the concern about meeting

our energy needs, which so often impacts questions of environmental protection. So the bottom line is, I think, we need an EPA

that has equal standing in the cabinet and in our government with,

for instance, the Department of Energy in developing a balanced

policy to meet our energy needs.

There are other times when EPA needs to work with the Department of Defense, for instance, over toxic waste sites on military

bases; or negotiate with the Department of Agriculture about the

use of chemicals on farms. I think as a matter of status as well as

reality, EPA ought to start those discussions and negotiations,

which are important, on a level playing field.

Finally, I do think that elevating EPA to cabinet status would

help it be more effective in dealing with matters of the environment on the international stage. Obviously, problems associated

with the quality of our air, land, and water do not stop at the border. There is a global dimension to our most serious environmental

concerns. It is a fact that as far as we could determine that of 198

nations in the world today, only 10, unfortunately including the

United States, do not maintain a cabinet department or ministry

devoted to the environment. So it is time for us to get with it. I,

for the moment, resisted, but I cannot any longer resist one of

those inevitable senatorial lines, which is, that puts us in the company of States like Libya and Myanmar. OK, I have done it.

One of the great challenges that we have, that both of the bills

that have been put forward, both S. 159 and Congressman Boehlert’s bill in the House, are, generally speaking, straight-ahead bills

that deal with structure. One of the problems that has affected previous attempts to raise EPA to cabinet level is a lack of discipline

in the Congress itself, which is to see these bills as an opportunity

to attach any and all environmental riders, about whatever happens to be concerning a particular member of Congress at that particular time. That is the greatest threat to the enactment of this

bill, and I hope that together, certainly across party lines as reflected in the sponsors of this bill, that we can work to say to our

colleagues on both sides of the aisle, we know you are concerned

about that, wait, there will be another day. Let’s just get this bill

3

passed and put EPA where it belongs, which is into the cabinet. I

am delighted that—Senator Collins has jumped a few seats and

pushed Senator Thompson further away from me.

Senator THOMPSON. Mr. Chairman, do you get the impression I

may be going in the wrong direction? I do not know.

Chairman LIEBERMAN. It is good to see you, Fred.

Senator Collins, I look forward to your opening statement now.

OPENING STATEMENT OF SENATOR COLLINS

Senator COLLINS. I would be happy to defer to Senator Thompson

if he wants to say some comments. Let me begin by thanking Senator Lieberman for convening today’s hearing and for recognizing

the importance of elevating EPA to cabinet-level status. The Chairman has a deep commitment and an appreciation for environmental protection, a commitment that I share. In fact, we frequently had the opportunity to work together on environmental initiatives. We are co-sponsors of many of the same bills. I want to

thank him for convening today’s hearing and also for selecting the

Boxer-Collins bill for the Committee’s consideration.

I would also like to extend my gratitude to Senator Thompson.

He knows how much this issue means to me and with his customary grace, has allowed me to serve in his stead as Ranking

Member for today’s hearing. Senator Thompson has always done a

terrific job in leading this Committee and I sincerely hope that I

can fill his shoes today. I mean that metaphorically, of course.

Perhaps most important, I would like to recognize our two colleagues, Senator Boxer and our colleague from the House side,

Congressman Boehlert, for their leadership on this important issue.

I am very pleased to join Senator Boxer, the architect of the Senate

bill, in bringing S. 159 before the Committee, and I look forward

to working with her closely to ensure that this legislation becomes

law.

There are many good reasons to elevate EPA to cabinet status.

We will hear about many of these reasons today, so I am not going

to go through a full litany now. Instead, let me just say why I believe this bill is so important. In a sentence, it comes down to ensuring that the environmental implications are front and center

when decisions are made by this or any other administration. Elevating the EPA to cabinet-level status will give the agency the status, the resources and the voice to do a better job for the environment and our economy.

In order to achieve the cleanest environment in the most efficient

manner possible, today’s problems require innovative solutions that

span State and international boundaries. Let me cite just one example that is a very important issue in the State of Maine, and

that is mercury pollution. In Maine, every lake, river, and stream

is subject to a State mercury advisory warning of the health risks

for pregnant women of consuming fish from these waters. However,

much of the mercury originates from outside of the State of Maine

and a significant fraction comes from beyond the borders of the

United States. To address problems such as these, EPA will need

a strong relationship with the Secretary of State and with other

members of the President’s cabinet. The EPA will need ready acVerDate 11-MAY-2000 08:40 Mar 08, 2002 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 75478.TXT SAFFAIRS PsN: SAFFAIRS
4

cess to the President and EPA will need to have the best possible

people to devise innovative and flexible solutions.

S. 159 will help EPA achieve those goals. In short, elevating EPA

to cabinet level will help the agency acquire the resources necessary and command the attention needed to do the best possible

job of protecting human health and preserving our environment. I

would note that Congress has tried many times before to elevate

EPA to cabinet-level status. The congressman and I were talking

before the hearing, and he told me he had been working on this

issue since 1988, I think it was. I am hopeful that this time, we

will finally be successful.

Each time in the past the effort has failed, not from opposition

to the idea itself, but as a result of extraneous baggage that was

added to each effort and eventually sunk each effort. Each of us

has criticisms of the EPA and can think of mistakes that the EPA

has made, and of ways in which Congress could restructure the

agency to make it work better. The trouble is that it is very difficult to achieve consensus on these ancillary issues.

So what I hope is that we can concentrate on the issue before us

today, and that we can all agree that EPA should be included in

the President’s cabinet. I would like to hear from my colleagues on

both sides of the aisle on other ways that we can improve the EPA

and make it more effective. Let’s talk about improvements and

think about additional ways as we move forward, but let’s not get

so mired down in other issues that we are unable to get this important initiative enacted.

S. 159 and the House bill stand on their own merits and they deserve to be passed and signed into law. I hope that our colleagues

will join us in doing what many previous Congresses have tried to

do before, but failed. I hope that we will elevate EPA to cabinetlevel status.

Thank you, Mr. Chairman.

Chairman LIEBERMAN. Thanks, Senator Collins, for an excellent

statement and for your kind words. It has been the practice of the

Committee just to have the Chairman and Ranking Member make

opening statements, but seeing Senator Thompson over there, I

wonder if either Senator Voinovich or Senator Thompson would

like to say a word or two before we go to our witnesses.

Senator THOMPSON. Thank you, Mr. Chairman. I will wait for the

questioning round to make any comments. Thank you.

Chairman LIEBERMAN. Senator Voinovich.

OPENING STATEMENT OF SENATOR VOINOVICH

Senator VOINOVICH. I just want to say that I am very supportive

of this legislation and would hope to be included as a co-sponsor

of the legislation. There is no question that EPA has an enormous

impact on our Nation’s competitive position in the world marketplace, on our national security, our foreign policy, and it permeates

many aspects of the Federal Government, and I believe that it is

appropriate that it now join the cabinet officially, so that it can

have more influence and be more a part of the team.

Chairman LIEBERMAN. Thanks, Senator Voinovich.

I am delighted to welcome our colleagues today. Senator Boxer,

thanks so much for your leadership in this matter. I am glad we

5

1The prepared statement of Senator Boxer appears in the Appendix on page 37.

could take it to an early hearing, and I hope we can report this bill

out soon and see if we can get it on the floor in the fall. I look forward to hearing from you now.

TESTIMONY OF HON. BARBARA BOXER,1 A U.S. SENATOR FROM

THE STATE OF CALIFORNIA

Senator BOXER. Thank you so much, Senator. Mr. Chairman,

Senator Collins, Senator Thompson, and Senator Voinovich, I have

had the pleasure of working with Senator Collins and Senator

Voinovich on this bill. Senator Voinovich is tough to get on a bill,

because he really thinks it through, and his announcement today

that he will be a co-sponsor is very exciting to me. I think it adds

a great balance to our bill, which is co-sponsored by Republicans,

Democrats and one independent, so we are very happy.

Before I get into my testimony, and I will go through it quickly

for you, I want you to know that the bill that I authored is really

based on a bill that was introduced by the wonderful Senator John

Glenn back in 1993, in the 103rd Congress, but as has been stated

by you, Mr. Chairman, and by Senator Collins, that effort was

weighted down, and even though it got out of this Committee in a

bipartisan way, we lost the fight. I hope we can stick together and

work with both leaders to make sure this bill stays clean, and if

there is anything in this bill of Senator Collins’ and mine, and Senator Voinovich’s now, that you feel, Mr. Chairman, or anyone feels

weighs it down, we will be glad to take a look at it.

But essentially what we do in the bill is we take the way the

EPA is running right now and we put that into the statute. We do

not make judgments about it. We just say the assistant secretary

shall be put into place, etc. We add nothing new in terms of the

statute. Mr. Chairman, just to let you know how much this means

to me, on the first working day of this new Congress, I introduced

a bill to address the energy crisis in California. On the second day,

I introduced this bill. So it ranks right up there with things that

matter to me, and it matters to me because—I think Senator Collins said it well, ‘‘We need a place at the table for the environment.’’

There are always arguments about it. Put it at the table and let’s

work together so we can make progress. I think that is the best

way. You are going to hear from former EPA Secretary Reilly, and

we came over on the plane together, and I do not want to steal anything from his testimony, but I think he will tell you how important the work of the EPA is around the world, and how much it

means to people around the world who is actually heading the

EPA, and I think that argues for cabinet-level position and he will

tell it to you in a much better way than I can.

As we all know, the EPA was created by President Nixon over

30 years ago, in part because there were so many problems in our

environment. The President felt we needed to give more attention

to those problems. The waters were too polluted to drink. The air

was getting too dirty to breathe, and we realized then very clearly

that clean air, waste and water pollution do not respect State

boundaries, that, in fact, this is a national issue.

6

As you look at the history of the EPA, I think it has played a

critical role in ensuring that all Americans enjoy the same basic

level of public health and environmental protection, and at the

same time, the world has changed a great deal. In many ways, the

world is catching up with our recognition of these issues, again arguing for moving toward this cabinet-level position.

So I do not want to put unnecessary words on the table now, because I sense there is a good deal to support and one thing I know

is if you have a lot of support, do not say too many things. So I

ask unanimous consent that all my words be placed in the record

that are in this statement, and I would simply say that what we

do is we codify what is really happening at the EPA, and I will add

a couple of countries to what Senator Lieberman said.

The wonderful Senate method here of arguing: According to CRS,

198 countries were surveyed; only 10 do not afford cabinet or ministerial status to their highest environmental official. So we do, in

fact, by virtue of having no cabinet-level position, we join nations

such as Libya, Yemen, Qatar and Uzbekistan in failing to grant

permanent status to our EPA. We can change all this. I think, if

you will, the ingredients are here to change it.

Mr. Chairman, with you as the Chairman and Senator Thompson

as the Ranking Member, with Senator Collins and Senator

Voinovich joining in this effort, I just see only good things, and

again I want to particularly thank Senator Collins for coming out

there. She could have held out for a different bill. She read the bill.

She felt it was good, and we will work with you to change it,

amend it in whatever way you see fit, Mr. Chairman and Members

of the Committee.

Thank you very much.

Chairman LIEBERMAN. Thank you, Senator Boxer, for an excellent statement. We will certainly print the statement in full in the

record, and thanks to you and Senator Collins for your leadership

on this. If you have to depart, we certainly understand.

Senator BOXER. Yes, we have a hearing on another subject that

is a favorite of yours, missile defense.

Chairman LIEBERMAN. Oh, yes.

Senator BOXER. So I will go over to the Foreign Relations Committee.

Senator THOMPSON. At least we are keeping the Chairman here.

Chairman LIEBERMAN. I think you may want to keep Senator

Boxer here. [Laughter.]

Senator BOXER. I am going to leave this in your good hands.

Thank you very much.

Chairman LIEBERMAN. Thank you. OK. Thanks very much.

Congressman Boehlert, you have been an extraordinary leader on

matters of environmental protection and really have created a

bridge in the House time and time again, when it has not been

easy, I know, politically, although I honestly believe, if I can take

Connecticut as a measure and my occasional trips around the country, particularly last fall, I do not think there is a partisan divide

on matters of environmental protection at all, once you get out and

talk to people. I always say I can go into a room in Connecticut

and, on environmental protection, I cannot pick out who the Republicans and Democrats are. They are pretty much people of like

7

1The prepared statement of Representative Boehlert appears in the Appendix on page 42.

minds. So you have really stood for that, as others have here on

the panel with me. I welcome you and thank you once again for

your leadership in this matter.

TESTIMONY OF HON. SHERWOOD L. BOEHLERT,1 A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW

YORK

Mr. BOEHLERT. Thank you very much, Mr. Chairman. Senators,

I really appreciate the courtesy you are extending to me to allow

me to testify, and I will extend to you the same courtesy. I will do

you a favor. I will say the four words that you most welcome: I will

be brief. That challenge can be real difficult, given the importance

of the subject and my long and sometimes tortuous legislative experience with this effort, dating back to 1988, when, in anticipation

of your arrival the next year, then-Congressman Jim Florio and I

first introduced the elevation bill.

Chairman LIEBERMAN. Very far-sighted of you.

Mr. BOEHLERT. But, alas, it did not succeed, so we are still at

it. You know and the Senators know the importance of elevating

EPA, not just to Senator Boxer and me, but to the administration,

the previous administration, and the Nation as a whole. So I will

get right to the point, and actually there are three points. The first

point is Congress should elevate EPA to the cabinet-level status it

deserves and needs. I will not play a game of trivial pursuits with

you or Senator Boxer, but I notice you both neglected to mention

that Monaco also is in the same boat.

Chairman LIEBERMAN. My apologies.

Mr. BOEHLERT. All right. [Laughter.]

Every major country in the world, with apologies to Monaco and

Yemen and Uzbekistan, all the others, the nine, every major country in the world has accorded cabinet-level status to the top environmental agency, and it is about time we did the same thing.

Today, more than ever before, we need to make EPA an official

member by statute of the President’s cabinet. This has nothing to

do with the stature or capability of governor—soon to be secretary—Ms. Whitman, who I think is doing an outstanding job. Instead, it is a question of timing and national and global conditions.

Environmental issues are becoming more complex, more international, and more global. Climate change, widespread toxic pollution and invasive species are obvious examples.

The House Science Committee, which I am privileged to chair, is

looking precisely at such issues. There are also growing complexities involving natural resource damages and environmental challenges among many Federal agencies, such as the Department of

Energy and the Department of Defense. I think it is important that

our top environmentalist deal with the Secretary of Energy and the

Secretary of Defense on an equal standing.

Mr. Chairman, the stars may have finally aligned to make EPA

elevation a reality, and as Chairman of the Science Committee,

which has jurisdiction over NASA, I will do all of my power to ensure that the stars stay properly aligned. As Chairman of this

Committee, you are in a position to do all the hard work and to

8

help get the bill to the President in an acceptable form. The second

point I wish to make, and you have said it well, is do not be tempted by side issues or diversions. We need discipline. Based on my

previous experiences with cabinet-level legislation, I cannot overemphasize the importance of staying focused. Let’s not forget the

lessons of 1993 and 1994, when elevation bills addressed wideranging and controversial issues and became magnets for further

controversy. The effort ultimately failed.

Republican, Democrats, conservatives, and liberals alike, they all

recognized what all of us should recognize today, only a straightforward, clean elevation bill can make it through the process. The

third point is that S. 159 and H.R. 2438 are both on the right

track. Both are bipartisan, excellent bills, although I must say the

Boehlert-Borski bill is a little more excellent than S. 159. In all seriousness, Mr. Chairman, there is not a large difference between

the two bills. Both bills can be called clean, although S. 159 includes more detail in housekeeping, findings, and related provisions. The 25-page bill includes several provisions that some may

question the need for or view as new grants of authority—for example, non-delegation or international responsibilities—or they will

argue they should trigger multiple referrals to other committees.

The five-page Boehlert-Borski bill is an attempt to cover the bare

minimum of housekeeping and conforming changes to get the job

done. I trust you will find an appropriate middle ground, keeping

in mind that some provisions, no matter how legitimate in their

own right, may provoke needless or mischievous debate.

Thank you again, Mr. Chairman, and Senator Collins, Senator

Thompson, Senator Stevens, for the courtesy of allowing me to participate in this most important hearing. I hope a markup of a

clean, bipartisan bill will follow very soon. You and I, Mr. Chairman, have worked together on many important environmental

issues over the years, ranging from multi-pollutant controls—let’s

hope we get them this year, finally, under the Clean Air Act.

Superfund reform, that should be on the front burner, too—restoration of Long Island Sound. I am confident that with your help, the

support of the administration, and the bipartisan teamwork of

Boxer and Collins and Boehlert and Borski, and we want to add

Lieberman to that list, we can make this important effort a complete success.

Let me close, Mr. Chairman, by saying people often say to me,

as I am sure this happens to Senator Collins, ‘‘What do you get so

excited about the environment for?’’ We live in a town that takes

a poll every nanosecond, and in every poll, when the American public is asked an open-ended question, what concerns you most, they

say the economy, health-care delivery, education. And so the doubters say, ‘‘Look at this, Boehlert, it is way down at number 25, the

environment. Why is that?’’ And I say, ‘‘That is easy to explain.

The American people do not think we are going to take leave of our

senses and undo a quarter-century of progress, with the Clean Air

Act, the Clean Water Act, the Endangered Species Act.’’

Let’s add this to that list. This is very important for all the right

reasons, and I appreciate your allowing me this courtesy, and I will

be brief, as I said at the beginning.

9

1The prepared statement of Ms. Whitman appears in the Appendix on page 44.

Chairman LIEBERMAN. Very well said. Thank you. If you ask on

those polls, as you know, do you think the government should be

playing an active role in protecting the environment, the numbers

go way off the charts.

Mr. BOEHLERT. The other thing I point out, let somebody get up

on the floor of the Senate or the House and propose something that

is going to do damage to the environment, and, quite frankly, all

hell breaks loose. Our faxes are on overdrive. The phones start

ringing. The letters come in. This is a very important issue. The

American people expect us to protect the air we breathe and water

we drink and food we eat, and the Environmental Protection Agency is a very important steward.

Chairman LIEBERMAN. Amen. I do not have any questions. Any

of the panel? Congressman, thanks a lot. Persistence is sometimes

rewarded with success here, and this ought to be the year.

Mr. BOEHLERT. Thank you very much.

Chairman LIEBERMAN. We look forward to working with you. You

have been great. Our next witness on our second panel will be the

Hon. Christine Todd Whitman, Administrator of the Environmental

Protection Agency. Thank you so much for being here.

Ms. WHITMAN. A pleasure.

Chairman LIEBERMAN. We look forward to your testimony.

TESTIMONY OF HON. CHRISTINE TODD WHITMAN,1 ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY

Ms. WHITMAN. It is a pleasure to appear before you, and thank

you very much for this opportunity. This is a topic that is of obvious importance to the environment, and that is really why I am

here in support of these efforts, of the two bills, particularly in this

instance the Boxer-Collins bill that is being considered.

When the Environmental Protection Agency was created in 1970

by Richard Nixon, it was a combination of 10 different units from

five departments and agencies. In a message to the Congress,

President Nixon submitted his reasoning for the reorganization

plan that would establish the EPA, and at that time, he said, ‘‘As

concern with the conditions of our physical environment have intensified, it has become increasingly clear that only by reorganizing

our Federal efforts can we effectively ensure the protection, development and advancement of the total environment.’’ This statement still rings true, I believe, more than 30 years later.

The environment continues to gain prominence and is routinely

ranked among the public’s most important national concerns, as we

have heard from you, Senator, and from Congressman Boehlert.

Without an organic statute of its own, there continues to be a need

for an institutional framework to protect the environment that is

equal in scope and significance to the pervasive nature of this

issue. Establishing EPA as a cabinet department is not a new idea,

again something that has been pointed out time and time again.

The first bill to elevate EPA to cabinet-status level was introduced

in the Senate in June 1988, and since that time a dozen similar

proposals have followed.

10

Former President Bush was the first President to support elevating the EPA to cabinet level, mentioning it in his State of the

Union address more than a decade ago, and inviting then-Administrator Reilly to attend cabinet meetings. President Clinton and

President George W. Bush have followed suit with both Presidential support for the legislation and with a seat at the cabinet

table for the administrator of the Environmental Protection Agency. Without legislation that codifies these practices, however, there

is no guarantee that future administrations will do the same and

accord the same status.

The mission of the EPA is vital to all of our lives. The actions

of this agency protect our environment and the public health by ensuring the most basic of life’s necessities: Clean air to breathe and

safe water to drink. In the short history of this agency, its work

has helped transform the way Americans view the environment,

planting in the American consciousness a clear sense of environmental stewardship and its importance. The EPA has helped underscore the universal agreement that our natural resources are

valuable, not just for economic prosperity, but for a sustained quality of life.

No longer do we debate whether or not to act to protect the environment, rather now our discussions are about how we can keep

America green while continuing to grow our economy. The EPA is

a natural fit among other cabinet-level departments. Our mission,

to protect human health and safeguard the environment, both complements and contributes to the overall service of the cabinet. Already I will say that I have found my participation at the cabinet

level helpful in navigating many of the important issues that overlap between and amongst the work of the EPA and the other departments, including, as has already been mentioned, Energy, Agriculture, Interior, Housing and Labor. Quite frankly, I cannot think

of a department that the EPA does not interact with.

I would consider it vital to the work of future administrators and

vital to our country to ensure similar cooperation and participation

in the future. The time has come to establish the EPA as a full

member of the cabinet, and doing so would be consistent with the

observation of State governments, and as well as our international

counterparts. All of you have mentioned the other nations who

have elevated their environmental protection to cabinet level. As

Governor of New Jersey, I will tell you I felt it very important to

have my Secretary of the Environmental Protection Agency as part

of my cabinet, and I find it instructive that all but five States of

those that have cabinets have, in fact, elevated their environmental

agency to cabinet status.

As President Bush calls for increased cooperation between Federal environmental regulators and State and local governments, it

is appropriate, I believe, to follow their leadership on this issue.

Further, as has been mentioned over and over, the environment

continues to play a central role in international relations. This legislation would bring the United States on a par with the rest of the

G–8 and more than 60 others by establishing a Secretary of the

Environment. I am pleased that Congress supports this important

step. Both the Boxer-Collins bill, S. 159, and the Boehlert-Borski

bill, H.R. 2438, would elevate EPA to cabinet status and both proVerDate 11-MAY-2000 08:40 Mar 08, 2002 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 75478.TXT SAFFAIRS PsN: SAFFAIRS
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vide for the orderly transfer of responsibilities from the agency to

a department.

Moreover, both bills are clean bills, in that they exclude extraneous policy issues that in the past have derailed the legislative

process, to establish a Department of the Environment. While the

Boxer-Collins bill is more prescriptive, technical changes are easily

made. It is nothing that is a show-stopper, and I believe that the

Boehlert-Borski bill provides the agency with the flexibility that it

needs to ensure that the transition to cabinet status goes smoothly

and as efficiently as possible.

The justification for placing EPA in the cabinet is compelling.

Creating a Department of the Environment will ensure that our

country prioritizes this issue today and long into the future. As I

have said repeatedly, my aim for this agency is to leave America’s

air cleaner, water purer, and land better-protected than when I

took office. I enjoy the full support of the President in the pursuit

of these goals. Elevating the EPA to cabinet-level status will ensure that future administrators are able to set and achieve similar

goals for the future. Taking this step will be a reflection of the importance the Congress and the President place on the environment

in America today.

Thank you for allowing me to appear before you, and if you have

any questions, I would be happy to answer them.

Chairman LIEBERMAN. Thanks very much for that excellent

statement and the support that you give to the proposal. Just a few

questions; I know it is hard to evaluate in real terms, but I take

it from your statement that you feel that elevation to cabinet level

would enhance your standing, both among your international peers

and perhaps even in your relationship with the States of the

United States; is that true?

Ms. WHITMAN. I think it would be very helpful. I am fortunate

to enjoy a very good relationship with the States, and the international community has been very polite. But, as we know, particularly with the international community, they set high store on titles and how a particular department or agency is viewed by an administration. So it means more to them to have that cabinet-level

status. It would be sending a strong message.

Chairman LIEBERMAN. I take it, also, that you agree with the

statements that just about all of us have made, in that the administration will work with us as this bill goes forward to try to, as

we have been saying, keep it clean; in other words, keep it focused

on this, the change in status, and try to keep off unrelated matters.

Ms. WHITMAN. Absolutely, and we are certainly willing to work

with anyone in the Senate and the Congress that has other ideas,

as Senator Collins indicated, to improve the work that we do. But

for the purposes of this bill, I think it is very important to keep

it to what it is about, raising the level to cabinet status.

Chairman LIEBERMAN. I have no further questions.

Senator Collins.

Senator COLLINS. Thank you very much, Mr. Chairman.

First, Administrator Whitman, let me say how fortunate I think

we are that you are leading this important agency, and it was a

great appointment by the President and I look forward to continuing to work with you. I also want to thank you for your enVerDate 11-MAY-2000 08:40 Mar 08, 2002 Jkt 000000 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 75478.TXT SAFFAIRS PsN: SAFFAIRS
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dorsement of our legislation and for your emphasizing that we do

need to keep this a clean bill, so that it can pass and it is not

weighed down by other, more contentious issues. Some of the critics of this legislation have expressed concerns that making EPA a

cabinet-level department would somehow expand government bureaucracy or increase cost to taxpayers.

Just for the record, could you address that criticism? Do you

think there would be any sort of expansion of bureaucracy or increased cost to the taxpayer if we were to elevate EPA?

Ms. WHITMAN. Both bills are clean bills, in that they just take

what is already occurring now and put it into statute at cabinet

level, at a department level. They do not call for expanded responsibilities in the sense of requiring more investment. I think I might

get a raise, but other than that, I do not think there is much of

a financial impact.

Senator COLLINS. Well, that would be well-deserved. You have

mentioned that you have excellent lines of communication with our

President, but that, obviously, might not be the case for future EPA

administrators, and one of my goals is by instituting the EPA at

the cabinet level, I believe it would lead to increased communication and coordination on environmental issues within the Executive

Branch. And it seems to me that having better communication and

coordination, by instituting EPA as a cabinet-level agency, might

well produce better decisions and perhaps even avoid duplication of

efforts; would you agree with that?

Ms. WHITMAN. Senator, I would. I would say again that, in this

administration, and I believe my two immediate predecessors will

testify to the same in their experience, that they were accorded

that kind of courtesy and they were at the table as cabinet decisions were being made. But it is clear that our relationships are

based on the access that you are given, and should a future administration not choose to have the Environmental Protection Agency

at the table, there would be an enormous amount of lost opportunity; there would be duplication of effort, and I think it would

be detrimental to the overall environmental health of the country.

Senator COLLINS. Finally, I think you raised an excellent point

about the status of the EPA administrator in dealing with your

counterparts in other nations. One of the things that our bill does

is specifically recognize the growing global role of environmental

issues by listing the international responsibilities of the Secretary

of Environmental Protection. Could you comment on some of the

international challenges that you believe we will be facing and how

it would be helpful to you to have the status of a cabinet secretary

in dealing with your counterparts?

Ms. WHITMAN. Well, I was able to participate in the signing of

the Persistent Organic Pollutants Treaty recently, and clearly there

are now many steps that we need to take to help enforce that and

to look at what the next round of pollutants is, to which we need

to turn our attention, and it will be helpful. That is definitely an

international exercise. As Senator Stevens knows, there are enormous impacts from what happens in other parts of the globe on

citizens of the United States, and we need to be involved. And certainly, as we work with some of our counterparts around the world,

it is helpful to have that kind of status behind you, which tells the

13

rest of the world that, yes, in fact, the administration does take

this seriously, and when the administrator or, at that point, secretary, talks, they are talking with some level of authority behind

them. We are looking at an upcoming event in Johannesburg in

2002, on sustainability. It is going to be a very comprehensive conference. It is going to be one of enormous importance, and it will

be very helpful again to have the kind of status that would allow

us to have the impact that we think is important for this country

as we discuss these issues.

Senator COLLINS. Thank you. Thank you, Mr. Chairman.

Chairman LIEBERMAN. Thanks, Senator Collins. Senator Thompson.

OPENING STATEMENT OF SENATOR THOMPSON

Senator THOMPSON. Thank you very much, Mr. Chairman, and

congratulations to you, Senator Collins, for your leadership in this

area. I think it is an important bill. Clearly, environmental considerations and issues are not only national issues now, they are

international issues. We deal with them here on a daily basis,

whether they be in the national-international arena or locally. We

have a real big concern back in my State: The Smoky Mountains.

All these issues converge. The energy issues and the environmental

issues now are coming together, and we are going to have to make

some hard decisions and trade-offs with regard to the pollution in

State parks.

We always point out, with due regard to my friends from New

York, that the top of the Smokies on some days is more polluted

than downtown New York City. So this is all, I think, a step in the

right direction in elevating these considerations. There is one thing

that I would like to pursue with you, though. I hear what everyone

is saying about a clean bill and keeping it simple and so forth—

but I think if we are going to elevate the EPA to a cabinet-level

position, it is legitimate to ask whether that same set-up is necessarily one that should be carried over intact to the cabinet-level

position. I am specifically referring to the role of science in the

EPA’s decisionmaking process.

I have been somewhat concerned, and I think others have been

too—that we sometimes get into a trade-off with the politics versus

the science, and the politics oftentimes wins. We see an extraordinary number of EPA regs being overturned by the courts, and

sometimes it is because we have neglected the science. We do not

want to start a negative process with regard to this bill. I am wondering whether or not we should take the opportunity to institutionalize science in EPA’s decisionmaking process here. I think it

is such an integral part and the department is going to become

more and more important. It is more and more important that they

do what they do right.

I know that you have undertaken some in-house initiatives to

beef up science and economics at the EPA. Others have suggested

that we have perhaps an assistant secretary. We have a chief information officer for these departments and a chief financial officer.

What about a chief science officer? Why not institutionalize that?

It is such an integral part and, in some cases, a legal requirement

so perhaps it is appropriate to take this opportunity to ask ourVerDate 11-MAY-2000 08:40 Mar 08, 2002 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 75478.TXT SAFFAIRS PsN: SAFFAIRS
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selves that question. What do you think about that? What do you

think can be done, short of a statutory embodiment of some kind,

and what would be wrong with a provision in this statute that

would, in some way, institutionalize what I think many of us think

should play a larger role than it has in times past in the process?

Ms. WHITMAN. Well, Senator, I could not agree with you more

that science needs to be at the heart of the decisionmaking process

at the agency, and without sound science we do not have the credibility we need to support the regulatory actions we take, and it is

at the heart and must be at the heart of everything that we do.

As you have mentioned, I have undertaken certain steps internally

to ensure that we do start to consider the science up front, to ensure that it is part of the process, and we are institutionalizing

that.

I have no conceptual objection to having a discussion about the

importance of science and how to ensure that it is always there at

the forefront of decisionmaking. My concern is that we do not lose

the objective of this bill at this time. The importance here is to

raise the agency to cabinet level. That, in and of itself, I believe,

brings the importance of the science, because that is behind the environment, to a higher level, and then engage, perhaps, in discussions as to whether there are other changes that need to be made

to fine-tune the agency or better ensure that changes that we

might recommend, if agreed to by that Congress, are things that

want to be institutionalized and embodied in law or regulation. But

my concern really is that we have seen this bill since 1988.

Versions of this bill come through and get lost because of very good

and important issues that needed to be discussed that got added

to it, and every time the bill has then gone down, because once one

thing is added, then another thing—and they are all important.

They are all good points to be argued, but I just hesitate to incorporate it now, open it up now, simply because of the what the past

history has shown us might well happen then to the bill itself.

Senator THOMPSON. I understand that. In looking back over it,

I know Senator Bennett had an amendment back some years ago

that required for each major rule the cost/benefit analysis and risk

assessment and all of that. While maybe laudatory, that is getting

pretty far down into the weeds, and I can see why that would have

complicated things. It looks to me like there might be a way of

doing it that would not complicate things that much, nor defeat the

bill. But you make a good point, and I understand that. My concern

is, if it is something that ought to be done, we are losing an opportunity to do it. You know how it is around here. The opportunities,

the windows to get things done, open rarely and close quickly. So

that is my concern.

You mentioned the front end of the process. I think that is what

I am getting at. We have a mechanism whereby, after something

has been kicked around for a few years, the guy at OIRA takes a

look at it, and by that time all the forces that can be brought to

bear in this town are there on his desk. Oftentimes there are a lot

of political considerations there that have to be taken into account.

The question is whether or not we should have someone in the

front end of the process, as we have in the back end now. It concerns me and it is something that I want to talk to my good friend,

15

the Chairman, and Senator Collins about as we go along, as we

consider markup here in our Committee. I am not sure I have the

answer to that, but it is something I think we all ought to be thinking about.

Thank you, Mr. Chairman.

Ms. WHITMAN. Senator, I would only share your window-of-opportunity concern for the bill as a whole.

Chairman LIEBERMAN. Thanks, Senator Thompson.

Administrator Whitman, I appreciate very much your answer to

that question. The question of whether EPA should have a deputy

administrator for science or science and technology is an interesting question, and, in fact, Senator Voinovich has a bill in on it,

but I can tell you that it will make this bill more controversial, because as you have suggested—because I have already begun to receive, particularly from environmental groups, expressions of concern and opposition to the idea of a deputy administrator, on the

argument that OIRA already performs that function and why do it?

That is a debate that we ought to have and I am happy to have

a hearing separately on Senator Voinovich’s bill, but I do think it

will complicate our desire to pass this legislation.

Senator THOMPSON. Mr. Chairman, if I may ask your indulgence

just for a second?

Chairman LIEBERMAN. Sure.

Senator THOMPSON. You very well may be right, and I do not intend to do that. I must say I find it somewhat depressing that any

time anyone wants to inject some objective, peer-reviewed science

into this process, some of these groups come out of the woodwork

and immediately start raising Cain about it. Surely we can sit

down together and see what makes sense. I do not like this antiscience prejudice that we see every time we try to do something

that makes a little bit of sense at a time when I have heard estimates that over half of the regulations coming out now are getting

overturned by the courts. So I apologize for mounting my soapbox

here for a second, but let’s work together and see if we can come

up with something that makes sense.

Chairman LIEBERMAN. It is your senatorial privilege to mount

your soapbox whenever you want, and I look forward to working

with you on that idea.

Senator Stevens.

OPENING STATEMENT OF SENATOR STEVENS

Senator STEVENS. Thank you very much, Mr. Chairman. It is

nice to see you this morning. I have some other reservations. I really do not think we have a road map of what is going to happen on

the other departments when EPA becomes a department. Almost

every department now has a whole series of people that are involved in environmental activities, and I do not know who is going

to be setting the real trend for what is the decision, based upon,

as Senator Thompson said, some scientific involvement, as well as

some basic environmental concerns expressed by people who are in

these enormous environmental organizations.

Take wetlands, for instance. Wetlands, when it was a doctrine

announced in the country by President Bush he pointed out—41;

is that right? He pointed out that over half of the wetlands had

16

been used. That statement was only valid if it applied to the South

48, as we call it, the contiguous 48 States. In Alaska, we had used

less than half of one percent of our wetlands, but suddenly we were

burdened with regulations that were issued for the Nation that

were attacking those who had used already more than 50 percent

of their wetlands. We have tried and tried and tried to get some

understanding of that. In my State, if you start to pave your driveway, you have to go to EPA. When the St. Vincent DePaul Society

in Juneau wanted to pave a parking lot in order to save having

people tramp in mud into their second-hand store, not-so-new store,

they had to wait a year-and-a-half for EPA approval.

You spend more time regulating Alaska, your agency does, than

you do looking at things like POPS. As you know, most of the pollutants are coming down in the Arctic, and most of the EPA people

spend their time in town trying to say: Why are you paving that

parking lot? Why are you building this road? Why are you putting

up this building? I see enormous malls in Seattle, San Francisco,

Denver, wherever I go. We tried to build a mall, it takes us 2 years

to clear the EPA. I am not going to go so easy on this bill this year

unless we get something in this bill that says that concepts of EPA,

including wetlands, shall be applied evenly across the country. I do

believe we have been held hostage by the EPA since the wetlands

doctrine was announced, which was intended to be primarily for

Florida, and why should Alaska be hostage to that?

I think that this concept that Senator Thompson has mentioned,

Ms. Whitman, is absolutely correct. Too much of environmental

protection is prejudiced and not based on science. I think that

amendment, Mr. Chairman, is going to be offered and it is going

to be debated and we are going to find out why we cannot listen

to the scientists. Why can’t we listen to them with regard to the

permanent—organic pollution concept in my State, for instance?

We know that a lot of people are being harmed up there right now.

As a matter of fact, there is a killer whale dead in Prince William

Sound right now because of pollution that came from Japan. Those

chemicals were never used in Alaska and yet this killer whale is

dying because of pollution that came through the winds, apparently, into the Prince William Sound.

I think we ought to listen to science and your agency ought to

be bound more by it than by the lobbying and the extreme political

aspirations of so many people out there in this radical environmental world, and I hope that people will listen to us as we go forward. I believe your agency should be a department, but it should

not be a department that does not have authority over these other

agencies in terms of laying down some sound scientific guidelines

and how to deal with the problems we face in the future.

I do not have any questions. I appreciate your visit to my State.

I hope you will come back again and again, because I think that

the more that people come to our State, they understand how some

of these extreme positions that are being announced are retarding

our ability to deal with environmental problems. I hope that the result of having a Department of the Environment will give us more

strength to deal within government with this extreme radical lobby

that is out there who they just set goals without knowing what

they really mean, or how they really impact our environment, but

17

that is their goal without regard to science. I think science ought

to be our guideline for the future in dealing with environmental

problems.

Thank you very much, Mr. Chairman.

Chairman LIEBERMAN. Would you like to respond?

Ms. WHITMAN. I will simply say to the Senator that from his eloquent expression, he could think that things could not get a whole

lot worse, so making us a department might, in fact, make it better

as far as interaction with other departments. But a large part of

what you are talking about, Senator, as you and I have discussed,

goes to the application of regulations as much to the science behind

them. I would say that part of the problem we all suffer with from

Washington is that we tend to think in global concepts and think

from the perspective that what we know here is right for everybody

in exactly the same way. As we well know, what happens in Alaska

is very different from what happens in Arizona, and the way we

apply our regulations, the way we apply our standards, it needs to

take into effect the fact that there are real differences that have

real impacts on environmental regulations and on environmental

outcomes. We need to be better about that as much as we need to

be better about ensuring that science forms the basis of any decision and regulation that we make.

Senator STEVENS. I only have one thing, as former chairman of

Appropriations, you should take a look at where your money is

spent. It is spent where the population is, not where the problems

are. I really question that sincerely. You look at the Arctic. The

Arctic has warmed seven degrees; the rest of the world, one degree.

Do you know how many people we have working in Alaska, working on trying to find the answers to some of the questions that

come from the fact that the Northwest Passage is open, that the

ice off our shores has thinned by three inches last year alone?

They are not looking at the science. They still are trying to consider how much more of our land ought to be withdrawn and how

many more things ought to be laid down to prohibit us from doing

things we have to do to live in Alaska, than to make the studies

of what is happening to the globe because we do not understand

what is going on in the Arctic. I think you spend most of your

money along 50 miles of the coastline of the South 48. Look at it

some time. Thank you.

Chairman LIEBERMAN. Thank you. I was just thinking about

what a difficult job it is to be administrator of EPA, why it may

be difficult to engender the raise in status, because of the many

hearings I have sat through at this Committee on environmental

protection looking at Carol Browner, Bill Reilly and yourself, where

I have heard EPA criticized for its failure to do enough to protect

the environment, based on the evaluation that the witnesses before

is made of the science in those cases.

Senator Carper.

OPENING STATEMENT OF SENATOR CARPER

Senator CARPER. Thanks, Mr. Chairman. Governor, welcome,

how are you? It is nice to see you. Senator Stevens said that he

hopes you will come to Alaska often. He says you are always welVerDate 11-MAY-2000 08:40 Mar 08, 2002 Jkt 000000 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 75478.TXT SAFFAIRS PsN: SAFFAIRS
18

come there. We would like for you to come to Delaware, too, even

this week.

Ms. WHITMAN. We might be able to arrange that.

Senator CARPER. If we are not here voting, I hope to be there to

welcome you to the Chrysler assembly plant where we build all the

world’s Durangos. Thank you for coming back to Delaware. I must

say, Mr. Chairman, this is an aside here. Senator Stevens was

talking about the effect of global warming and I do not mean to be

flip about this, but he mentioned—what did he say? The temperature has risen by seven degrees?

Ms. WHITMAN. In the last 100 years, it has been seven degrees.

Senator CARPER. I am thinking spring break in Alaska for our

college students instead of the Bahamas or Fort Lauderdale. That

is pretty remarkable. That is remarkable. On page two of your testimony, Governor, I am going to ask you this because it is pretty

short. It says, ‘‘While the Boxer-Collins bill is more prescriptive, I

believe that the Boehlert-Borski bill provides the agency with the

flexibility it needs to ensure that the transition to cabinet status

goes as smoothly and efficiently as possible.’’ I would just ask you

if you would be willing to give us some idea of what you are talking

about there with respect to this Boxer-Collins bill being more prescriptive?

Ms. WHITMAN. Actually, I changed that testimony slightly to say

that there were technical changes that we thought were very easily

made with it and I would be happy to submit those. I would be

happy to work with the staff to make any changes. Some of them

are technical changes. They have to do with language of things

that are already in statute and the language used in the bill might

put us in conflicts with some other laws and regulations that govern what happens. So they are not huge.

Senator CARPER. Good.

Ms. WHITMAN. It is the difference between 25 and 5. Is that what

they said the number of pages were?

Senator CARPER. That is a lot of changes. All right, I want to go

back to the point that the Chairman touched on, and that is this

legislative proposal of Governor Voinovich and the junior Senator

from Delaware with respect to science. I have been George

Voinovich’s No. 2 guy for a long time. He was chairman of the NGA

when I was vice chairman. He was chairman of Jobs for America’s

Graduates. I was vice chairman. I get here to the Senate and he

is Chairman of my Subcommittee and I am sick of it. Here I am,

playing his second banana again on this legislation. I do not know

if you are familiar with what we have proposed, but I would welcome any comments that you might have to share with us.

Ms. WHITMAN. Well, as I indicated before, I am in absolute

agreement with all the comments that were made and the thinking

behind the bill in the sense of the importance of science forming

the basis of the decisionmaking down at the Environmental Protection Agency. It gives us our credibility. It needs to be at the heart

of every decision that we make. My concern at the moment, and

Senator Thompson expressed it well, although from a different perspective about having a window of opportunity, the window of opportunity for elevation of the Environmental Protection Agency to

a cabinet-level position seems to be coming together now. Those

19

windows are brief. We have seen this bill attempted numerous

times since 1988, when the first piece of legislation elevating the

agency was first introduced.

It is one of those questions that I believe is deserving of a thorough review. It is deserving of a very comprehensive discussion. I

am more than happy to have it. I have undertaken some internal

changes within the agency to ensure that science is an automatic

part of the front of decisionmaking as we start to look at regulations, that we incorporate science from the very beginning.

My concern is that by adding it at this point to this legislation,

to what has been offered, will, in fact, start to shut that window

on us. This is what has happened to the legislation in the past,

when clean bills have been introduced, very legitimate interests,

very legitimate concerns have been added to it in order to make it

better, and in doing that other interests then have come forward

and said that they needed to be added and at the end of the day

the legislation grew so top-heavy that it was defeated. I would hate

to see us lose that window of opportunity while at the same time

saying that the concerns raised through the Voinovich-Carper bill

are very real and ones that we need to continue to discuss.

Senator CARPER. I would very much like to be able to call you

Secretary Whitman instead of Governor Whitman all the time, and

I would like to see the Boxer-Collins bill be enacted and am pleased

to be supportive of it. I would hope that George Voinovich and you

and I and our colleagues here could put our heads together and figure out how to constructively address the concerns that are raised

in our joint proposal as we go forward.

The last thing, I met with our former colleague, Tommy Thompson, last week, and I asked him, ‘‘How are you doing?’’ He said, ‘‘Well, I am pretty busy.’’ I said, ‘‘Is there anything I can do to help

you?’’ He said, ‘‘We are trying to get some folks confirmed before

the August recess, and I have been working with our leadership on

our side and the Finance Committee Chairman, to try to get some

names moved along.’’ How are we doing with respect to your key

nominees before the August recess? Are there some that we need

to be helpful on?

Ms. WHITMAN. Absolutely, Senator, I will take you at your word.

In fact, I have four before your Committee tomorrow and I would

hope that we would be able to move them forward. You do not recognize what a difference it makes having people aboard, confirmed,

until you get them, and then you suddenly realize what an incredible difference it makes to have someone else who can come up

here to testify to give you the technical expertise and answers that

you need, as well as to appear and to negotiate with other outside

groups and just take some of the burden off. Right now, I only have

two confirmed people at the agency, my deputy and the head of the

Office of Prevention, Pesticides, and Toxic Substances. So it would

be enormously helpful if we can get these others through and to a

vote on the Senate floor.

Senator CARPER. I would just ask your staff who are here to

please communicate today with Jim Reilly on my staff, and we will

do whatever we can to be helpful.

Ms. WHITMAN. We will do that.

Senator CARPER. Thank you.

20

1The prepared statement of Ms. Browner appears in the Appendix on page 46.

Thank you, Mr. Chairman.

Chairman LIEBERMAN. Thanks, Senator Carper. Administrator

Whitman, we have no further questions. Thanks for your testimony, for your support of the bill, and also for your steadfastness

to the idea of working together to keep this a clean bill, and I think

if we do we can achieve this and it will be significant, and, as Senator Carper said, we look forward to welcoming you back hopefully

in this session of Congress as Secretary Whitman.

Ms. WHITMAN. Thank you very much.

Chairman LIEBERMAN. Thank you. The third panel will be Carol

Browner, former Administrator, Environmental Protection Agency;

Bill Reilly, former Administrator, EPA; and Don Elliott, former

General Counsel, EPA. I really appreciate the trouble that you all

took to be here today. I was thinking, as I looked over at the three

of you sitting there, and I hope you do not take this the wrong way,

that suggests that I think you are aging, because you are not. You

all look wonderful. But I had the same feeling I had when I read

the stories about old-timers day at the stadium; you know, like

Yogi, Whitey and Willie. Anyway, you are all stars. You served our

Nation. You belong in a—if I may continue this awkward metaphor—in an environmental Hall of Fame.

Senator CARPER. Mr. Chairman, if they are old-timers, they are

rookie old-timers.

Chairman LIEBERMAN. They are very rookie old-timers.

Mr. REILLY. So long as it is not Lou Gehrig day.

Senator THOMPSON. Do we have an opportunity to disassociate

ourselves with your remarks?

Chairman LIEBERMAN. I think it is self-evident. [Laughter.]

Thank you for being here.

Carol Browner—Hon. Carol Browner—we look forward to hearing your testimony now.

TESTIMONY OF HON. CAROL M. BROWNER,1 FORMER ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY

Ms. BROWNER. Thank you, Mr. Chairman, and let me thank all

of you for the opportunity to appear before this Committee on this

matter. Obviously, after 8 years of public service, there are a number of things I miss. You may be surprised to hear that one of the

things I miss is testifying before Congress. I did a lot of it. There

was 1 week when I testified five times, five separate committees,

and five separate issues. But I always enjoyed the opportunity to

engage in a thoughtful debate and discussion on matters important

to the people of this country and I thank you for including me in

this hearing today. It is a real pleasure to be here with one of my

predecessors, William Reilly, and I have to say I look forward to

calling my successor, Governor Whitman, Secretary. It is a long

overdue elevation and I want to thank you, Senators Collins and

Boxer, and Congressmen Boehlert and Borski for taking the initiative to bring this matter back before the Congress.

I was a part of President Clinton’s cabinet from the day I took

office at EPA, January 23. I had a seat, a chair at the table, as

did Mr. Reilly and as does Administrator Whitman today. The time

21

to make this a permanent chair on behalf of the Environmental

Protection Agency is truly long overdue. I believe that making EPA

a permanent member of the President’s cabinet will guarantee EPA

the stature and recognition that it deserves and it will reaffirm its

position of importance in the health and welfare of the American

people and the world today and into the future. I also want to say

that I think it is a fitting tribute to the work of the 18,000 public

servants who make up the EPA.

These are some of the most wonderful and committed professionals and staff that I ever had the opportunity to work for, and

it would be a very fitting tribute to their commitment to public

service. Many of the senior people at EPA have been there literately from the beginning. They helped give birth to the new

agency and have led it through all of its tremendous successes and

obviously through many challenges. When the Senate and House

were considering the creation of EPA many years ago, Russell

Train, who subsequently served as the second administrator of

EPA, said, ‘‘The EPA will provide us with the unity and the leadership necessary to protect our environment,’’ and I think in the last

30 years it is certainly true that EPA, working on behalf of the

American people, working with members of this body, of the Congress, of the Senate, have certainly provided the leadership and the

incredible progress that we have made in cleaning and protecting

our air, our water, our land, the health of our families, and the

health of our communities.

EPA has strengthened and improved air and water quality in

communities across the country. It has set limits on dumping waste

and cleaned up hundreds, literately hundreds now, of the largest

Superfund toxic waste sites. EPA has met new challenges, creating

cutting-edge programs such as Brownfields, which is a huge success, and I hope that legislation will also be passed this year. It is

something I spent a lot of time supporting. Unfortunately, we were

not able to see it all the way through, but I hope you will do that

now—the STAR program, Science to Achieve Results, another cutting-edge program.

EPA has banned pesticides that are harmful to our children’s

health. It has honored the public’s right to know about their community and environmental challenges in their community. When I

came to EPA almost 9 years ago, the EPA web site got about a

half-a-million visits a month. By the time I left EPA in January,

it was 100 million visits a month. The American people care about

the work of the EPA. They are interested and I will always believe

that any decision EPA makes on behalf of the American people and

their environment will be a better decision when the public is informed and engaged in that decisionmaking process, and fundamental to that is honoring the public’s right to know.

As you heard, EPA works around the world. It is joined with

countries to secure important global environmental agreements. I

was very pleased when the current administration signed the convention on the persistent organic chemicals. We spent a lot of time

negotiating that. I was very pleased that had been signed. The

Montreal Protocol, another important international agreement that

is reaping benefits—we are actually making progress and fixing the

hole in the upper ozone. We have heard a lot of countries have

22

1The prepared statement of Mr. Reilly appears in the Appendix on page 48.

these agencies and they are cabinet level. I am just going to add

two to the list of countries.

I just want to point out that the Bahamas and Kenya also treat

their EPA as members of their cabinet. The United Nations has

numerous Committee’s now, recognizing that environmental policy

is part and parcel of foreign policy, and nothing in that is going to

change in the short-term. I believe that the United States is

uniquely situated with the experience, the expertise of EPA, to provide important global leadership. When the EPA was being created,

an alternative was actually proposed by some, and that was the

creation of a more comprehensive cabinet-level Department of Environmental Quality.

Well, today, I believe that the EPA has become essentially that.

It deals with matters spanning all types of environmental issues,

government bodies. However, with every change of administration,

EPA risks losing its voice in the cabinet at the table. Permanent

conclusion, as I said, is long overdue. It will ensure that the work

of the EPA is front and center in the work of any administration,

and I can think of no finer tribute to the successes of EPA over the

last 31 years, and a recognition of the challenges that still lie

ahead when it comes to protecting the health of our citizens and

our environment.

Thank you.

Chairman LIEBERMAN. Thank you very much, Administrator

Browner. That was an excellent statement. I appreciate it. I am

having trouble pulling away from baseball here.

Ms. BROWNER. My favorite sport.

Chairman LIEBERMAN. I know. Statistics are so important. Apart

from the extraordinary accomplishments of your time at EPA, if I

am not mistaken, you hold the record as the longest-serving administrator of EPA.

Ms. BROWNER. That would be correct. Someone was once introducing me and got to the point of wanting to point out that I had

the record, and instead of saying serving, they said, ‘‘And she’s the

longest-suffering administrator.’’ Chairman LIEBERMAN. We can identify with that.

Ms. BROWNER. It was a great job and it was an honor.

Chairman LIEBERMAN. Thanks. Administrator Reilly, thanks for

being here. It is great to see you, and in your case, maybe you are

the one who engendered that baseball—the old-timer feeling—because I have recollection of those now fabled days and weeks we

spent together with many others in that room off the then-Majority

Leader George Mitchell’s office, when we negotiated in painstaking

and painful detail what became the Clean Air Act Amendments of

1990, which have really been such a remarkable success, and in no

small measure due to your leadership. So a pleasure to welcome

you back. Good to see you.

TESTIMONY OF HON. WILLIAM K. REILLY,1 FORMER ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY

Mr. REILLY. Thank you very much, Mr. Chairman. It is a pleasure and an honor, as it always is, to be consulted by the Senate

23

on a matter of importance. This is only the second issue I think I

have testified on since I left office. The other was the establishment

of the Presidio National Park and the Presidio Trust, to which

President Clinton then appointed me, and that, for your information, parenthetically, is going swimmingly.

Let me first of all compliment you all. I have a statement that

I have provided and ask that be included in the record.

Chairman LIEBERMAN. We have it and it will be printed in the

record in full. Thank you.

Mr. REILLY. Let me first of all say that I congratulate you, sir,

Senator Collins, Senator Boxer, Senator Thompson, and Senator

Carper. Mr. Boehlert, of course, has been on this issue for a long

time, as I have. As you recall, President Bush did, in fact, propose

cabinet status for EPA. We had a run at it and the measure ended

up being encumbered with a lot of good ideas, many of them, but

too many to build a consensus necessary to pass it. I think that lesson is before us. I hope it is learned and I that this time we do

keep the bill clean as you yourself had earlier suggested.

Many things have been said that make clear why the Environmental Protection Agency should be in the cabinet. Let me also say

what a pleasure it is to appear with both my predecessor, Carol

Browner, my friend and also my former general counsel, Don Elliott. This is old home week here. It is not Lou Gehrig day, though.

Let me give you essentially three reasons why I believe EPA belongs in the cabinet, and in doing so will try to respond to some

of the concerns that Senator Stevens has expressed.

I recall, before going to EPA, having a conversation with an oldtime reporter who said to me, ‘‘Well,’’ he said, ‘‘You know, you are

going to the best agency, and I have covered them all.’’ I said, ‘‘That is not exactly the reputation on the street.’’ ‘‘Oh,’’ he said, ‘‘Look, EPA will make two decisions a week that it would take Interior, Agriculture or HUD 6 months or the better part of a year to

make.’’ He pointed out that the decisions of EPA typically involve

the intersection of science, health, economics, and thus require the

most sensitive and sophisticated interrelationships of any agency,

and EPA must do this as a matter of course and it must do it over

and over again.

The job of the environment is essentially a task of integrating a

variety of concerns with a broad environmental perspective. That

brings the agency into conflict frequently with other interests and

those who speak for them and who have a different sense of priority and turf. In one of the experiences I had, and I suspect Carol

Browner had, and I know Russell Train had, because we talked

about it, and Bill Ruckelshaus had, is of going early to a cabinet

meeting and walking in and finding an otherwise congenial group

suddenly looking warily at the EPA Administrator because he or

she has an argument with every one of them. You are arguing with

HUD about siting public housing in wetlands, and you are arguing

with the Agriculture Department about pesticides and with Interior

about water contracts, and so it goes.

At that moment, you very much need a President to say that is

the nature of the job. I had one. It is not guaranteed one always

will, and the fact of lacking parity of status in that room does, in

fact, I believe, matter. It matters to some more than others. ObviVerDate 11-MAY-2000 08:40 Mar 08, 2002 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6633 75478.TXT SAFFAIRS PsN: SAFFAIRS
24

1The prepared statement of Mr. Elliott with an attachment appears in the Appendix on page

55.

ously, the agency has more power than several of the domestic departments, but nevertheless that matter of status, that symbolism,

is important. It is important also around the world, and perhaps

is more important. I testified seven times for the North American

Free Trade Agreement. I sent people to China to work on the recapture of methane from coal mines and on the suppression of

cement kiln gas, and those relationships proved enormously important in winning China’s support for the Montreal Protocol, which

was a close-run thing. They were planning to bring 700 million refrigerators over the next 10 years into manufacture containing

ozone-depleting CFCs.

Those international activities we undertook were important to

our mission, and I particularly applaud the inclusion of the international responsibility very specifically in the Boxer bill. What we

did, internationally we financed by stealth—we borrowed from the

water program or the air program. We did that because the problems in different parts of the world, however much they seem egregious and difficult in the United States, are so vastly more serious,

complicated, and much larger threats to health. Other nations desperately need our help. The agency will be in a far better position

to provide that help if it is a cabinet department.

Finally, I think there is an issue that goes to Senator Stevens’ concern, and it has to do with the self-understanding of the agency

itself. The EPA is—first and foremost, its core responsibility is a

regulatory responsibility. Protection is in the title, but that is, by

far, not the full story. The agency, the department, in recent years

has had to concern itself with information, with technology transfer, with partnerships with State and local governments, with advising on air conditioner technologies and dry cleaning establishments, a whole range of things, to say nothing of free trade, and,

as you know, one dare not bring a trade bill before the Congress

without attending to its environmental ramifications.

There is no one else to speak to those issues with the same perspective and authority as the EPA administrator. In fact, without

that responsibility assumed by administrators, often it would not

be often spoken for at all. I believe very much that cabinet status

for EPA is an important issue. I think its time has come. It will

send the right signals to the agency itself with respect to the range

of responsibilities, the sensitivities it should display beyond regulation. It will send one to the international community and it will

send one to those other cabinet officers who often have occasion to

have conversations with the EPA administrator about things they

are doing that he or she would rather they not.

Thank you, sir.

Chairman LIEBERMAN. Very well done. Thank you.

Don Elliott, welcome back.

TESTIMONY OF HON. E. DONALD ELLIOTT,1 FORMER GENERAL

COUNSEL, U.S. ENVIRONMENTAL PROTECTION AGENCY

Mr. ELLIOTT. Thank you, Mr. Chairman.

Chairman LIEBERMAN. Neighbor.

25

Mr. ELLIOTT. It is a great pleasure to be testifying in front of this

distinguished Committee, which is now chaired by Senator

Lieberman from my home State of Connecticut, just as it was a

pleasure to testify in the past when it was chaired by Senator

Thompson. It is particularly a pleasure to be testifying on something that has more bipartisan support than some of the regulatory

reform proposals that I testified on in the past. I strongly support

the bipartisan proposals to elevate EPA to cabinet status. It is

time, really long past time, to make our environmental department

part of the cabinet.

Some of my friends in industry have expressed to me their concerns that in elevating EPA to the cabinet, we might further politicize its decisions. I think this need not be the case, but I do believe

we should build into the structure of the new environmental department provision for a high-level chief science officer. So I support the Voinovich-Carper proposals for a chief science officer. I

think they can be improved in some ways that we can talk about,

perhaps in the questioning period, by creating an under secretary,

rather than a deputy. I think two deputies would be a mistake.

We all understand the importance of a clean bill. There are a lot

of things substantively that I would like to see. I have been a longtime supporter of substantive provisions for alternative compliance

legislation, like Senator Lieberman has been supporting for a number of years. I think that would do a lot to deal with some of the

one-size-fits-all problems that Senator Stevens and others have

talked about, but I do not think that those kind of substantive provisions belong in this bill. So we will have to wait on those.

But I do think it is appropriate to discuss structural and organizational issues, and I think there is plenty of room in this bill to

designate a high-level chief science officer, just as the pending bills

designate chief legal officers, chief financial officers, and chief information officers. In a sense, science is conspicuous by its absence

from mention in some of the current bills. I think the single greatest failing in the current structure of EPA is the absence of a highlevel advocate for good science at the agency’s highest echelon.

The philosopher Adam Smith wrote, ‘‘Science is the antidote for

enthusiasm and superstition.’’ Good science can be very helpful in

counteracting the enthusiasms, either of the right or the left, and

making sure that the agency stays on a steady course. Now, of

course, science alone cannot make decisions. There are always uncertainties and values, but the risk today is not that we will have

too much science and too little politics in our environmental decisions, but rather the opposite. As Professor Steve Goldberg at

Georgetown put it one time, ‘‘people accuse regulatory agencies of

being captured by all sorts of interests, but nobody accused a regulatory agency, particularly not EPA, of being captured by scientists.’’

I applaud the efforts that have been made in recent years to upgrade the role of science at the agency. There is a world-class

science advisory board. I think the STAR program and enhanced

peer-review, enhanced role is for scientists on the work groups, and

a number of things that Administrator Browner did were very good

steps. The remaining problem, though, is that science is not often

heard in the top councils of the agency when decisions are finally

26

made. Science needs a high-level voice at the department, just like

the law has a high-level voice through the general counsel, and I

support the recent recommendation by the National Academy of

Sciences that, ‘‘Just as the advice of the agency’s legal counsel is

relied upon by the administrator to determine whether or not a

proposal is legal, an appropriately qualified and empowered chief

science official is needed to attest to the administrator and the Nation that proposed action is not inconsistent with available scientific information.’’ Members of the Committee, the reality of the matter is that a

strong norm of turf has developed at EPA, and it is part of the culture that AAs in one program do not comment and criticize on

what is going on in the bailiwick of another. For that reason, I believe that creating a chief science officer, not just at the AA level,

but at a higher level, such as the under secretary level, would send

a strong organizational message to the agency about the importance of science. In government, the best is often the enemy of the

good, and I support elevation, but it is my judgment that structural

and organizational issues, like creating a chief science officer, are

not really loading the bill down with extraneous materials in the

way that if we were trying to address substantive matters we

might be.

Just one final point. At some times in the past, we have had assistant administrators for ORD, the Office of Research and Development, that have performed that role. In the same way that we

need to create a permanent organizational status for EPA in the

cabinet, we need to create a permanent organizational status for

science in the structure of the Department of the Environment, so

that it is not dependent upon the whim of a particular administrator or the personality of a particular assistant secretary.

Thank you.

Chairman LIEBERMAN. Thank you, Mr. Elliott. As you heard, we

talked about this before, and I think you make a good point, which

is that adding a deputy is different from, for instance, adding an

amendment with your favorite position on climate change. But the

reality is that it will be controversial. We have already had input

on the bill that I erroneously referred to as the Voinovich bill. Now

it is the Voinovich-Carper bill, and it is, in fact, the Voinovich-Carper bill, and so I think that is what should concern us. I know that

Senator Boxer, in her work with Senator Collins, actually turned

away from some initial ideas she had about, for instance, creating

in this bill a new Office of Environmental Justice, which one could

certainly make a case for. But out of concern that it would arouse

opposition to the essential purpose here, I wonder whether the two

previous administrators would like to comment on this proposal

and its relevance to the elevation bill.

Mr. REILLY. For my part, Senator Lieberman, I tried to give a

very high priority to science, and I think that the integrity of scientific research underlying regulations is central to their effectiveness, their acceptance publicly, their survival. The question of

whether and why science should have more status and does not

have the status at the agency that it might is a complicated one,

but in my experience it was difficult to recruit an assistant administrator for science for ORD. It was difficult to staff the agency, to

27

interest graduating Ph.D.’s and researchers in working for EPA

and hitching their wagon to that star. The reason was the episodic

ups and downs of budget for science at the agency. OMB has not

supported a strong scientific component, budgetarily, historically,

at the agency, for a variety of reasons.

One reason was made clear to me once very explicitly. The more

we give you money over there for research, the more rocks you will

lift up and find things that we have got to regulate and pay for.

That, I think, has been a somewhat persistent view through the

history of the agency, and it has had a deleterious impact on the

scientific establishment within the organization. With respect to

the structure of the agency, what I am suggesting is the problem

has not been structure. We have tried to give a high priority to

science at the agency. It is one of the most important concerns, and

the assisted administrator for ORD is supposed to speak to those

concerns. I certainly would not create the impression that science,

all of a sudden, is the responsibility of one individual or office holder in the agency and therefore the rest of them can forget about

it. If that is the implication of the deputy, I would think that a big

mistake, and finally I do think that it is starting down a road of

encumbering the bill with arguably good ideas that will not seem

good to somebody and we will be right back where we were in

1991.

Chairman LIEBERMAN. Thanks. Ms. Browner.

Ms. BROWNER. Well, in keeping with the bipartisan commitment

to this piece of legislation, I will largely align myself with my predecessor, but let me add a few quick points. There is a Senate-confirmed position in EPA today responsible for science. That is the

Office of Research and Development, and I think, as Mr. Reilly

said, the person who serves in that job functions in many ways as

a chief science officer for the agency.

One of the concerns I have with singling out one person to speak

on behalf of all of the science of the agency is that the breadth of

knowledge and the breadth of scientific research that the agency

engages in is not going to be easily spoken to or represented by one

individual. For example, when we were working on the air pollution standards for ozone and fine particles, which I spent many,

many years working on, there were numerous scientists that I met

with in the agency who had committed their life to the analysis

and the scientific research, and they knew little pieces of each area.

So I think we need to be cognizant of the fact that when we talk

about good science, we are not simply talking about qualified researchers, we are also talking about process, peer review, and I appreciate Mr. Elliott’s kind words about everything we did to institutionalize a scientific process. I think if I had one thought as you

look forward, it would be not to focus on necessarily the structure,

per se, but to ensure that the agency has the resources to manage

the scientific process. It is expensive to run peer-review panels. You

pay all those people. You have to bring them in. They meet over

extended periods of time, and we were very successful in getting

a good, strong budget and maintaining it, but as the agency goes

forward in the future, that will be even more critical.

Science is fundamental to everything EPA does. Good science is

absolutely essential, but we need to be flexible to allow the sciVerDate 11-MAY-2000 08:40 Mar 08, 2002 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6633 75478.TXT SAFFAIRS PsN: SAFFAIRS
28

entists to do to work that they are skilled at doing and then do the

peer review that gives the administrator, the secretary, the ability

to make the decision.

Mr. ELLIOTT. Mr. Chairman, could I just respond very briefly?

Chairman LIEBERMAN. Yes, and when you do, let me ask you to

answer this question: Why would not a deputy or under secretary

in EPA dealing with science be a duplication of the work that

OIRA does, and we have just been through a battle over the nomination of John Graham. He has been confirmed, but in his hearings, in his confirmation hearings, he was actually quite explicit

about the fact that he would like OIRA to get more involved up

front and actually with the agencies as they develop their regulations, and I think part of it, from his point of view, would be to

infuse cost benefit, economic, and scientific evaluations.

Mr. ELLIOTT. In my prepared testimony, which I would ask to be

made part of the record, I specifically stay away from endorsing the

specific question of a deputy, because I think having two deputies

at EPA would be a problem. That would really create turf wars.

With regard to OIRA, as you know, I was a strong supporter of

John Graham, but I do not think OIRA or its staff has a great deal

of scientific expertise or knowledge. That is part of their mandate,

but I do not think that is really their strong point, as opposed to

economics.

With regard to ORD, there are two issues. First of all, at some

points in the past, the Office of Research and Development has

played the role and it could play the role that we are talking about.

It has not always done that, and as I point out in my prepared testimony, some of the language about non-delegation could be read

as essentially prohibiting one assistant administrator or assistant

secretary from, ‘‘supervising the work of another.’’ So I think at a

minimum it would be helpful to clarify in legislative history or statutory language that it is not the intent of that provision to prohibit

ORD from playing that role.

What I have argued for in my testimony is the designation of a

chief science officer as an adviser to the administrator at the political level on scientific questions. Now, I believe that you need the

staff level of expertise, which we have beefed up, but I think you

have put that together with a principal who is committed to being

an advocate for the issue. Good staff work without member support

does not get the job done. You need both a good staff—and I think

enhanced peer review provides that—but you also need a principal

who is going to go in to the administrator every once in awhile and

say, ‘‘Boss, this just does not wash from a scientific perspective.’’ I do not view that as something that is going to happen every day.

The general counsel does that maybe two or three times a year.

But it is very important to empower the scientists on the working group, that they have a principal who can back them up and

has the ear of the administrator. Sometimes that happens, but

today it is dependent on the personality and forcefulness of the

people that we get in that job, and by raising its status, particularly to the under secretary level, I think that the Congress would

send a strong message and we would recruit better people. It is not

a substitute for budget. It is not a panacea, but it would help.

Chairman LIEBERMAN. Thanks. My time is up. Senator Collins.

29

Senator COLLINS. Thank you, Mr. Chairman. Mr. Chairman, I

think there is a legitimate distinction between structural changes,

such as adding another assistant secretary or deputy or chief

science officer, versus changes that would alter EPA’s authority or

powers. So I can see why the issue of creating some sort of chief

science position is coming up in this debate, because I think those

are structural changes and ones that the Committee might well

look at as we consider this legislation. I would note that Congressman Boehlert, who is the strongest proponent of elevating EPA on

the House side, is also a co-sponsor of a separate bill in the House

that would create a deputy secretary of science for EPA. Mr. Elliott

has mentioned that there are structural issues on what exactly

that position should be. I guess, however, my concern remains as

to whether raising this issue would impede the progress of this bill

on which there is strong bipartisan consensus, and I do not know

the answer to that question. I am unclear why creating this position would be controversial, in that it sounds quite logical to me.

So I guess my first question for Mr. Reilly is to enlighten me as

to why it would be deemed controversial to create this position.

Mr. REILLY. Well, I think, Senator Collins, that the idea of elevating science, like the idea of ensuring good cost/benefit or good

economic analysis, doing a number of other things, has an appeal

and would certainly have supporters. But I think one of the first

questions that would be raised is if we are going to look at the

agency structurally and in detail to that degree, to elevate a concern we think has had inadequate attention in the past, why confine it to science? There are many other things that the agency is

responsible for, as I mentioned. One could say public health ought

to be something that over-arches many of the things that the agency has done.

In my own time, I thought that ecology had been under-represented. One could have someone who is responsible for making

sure that the non-health concerns of the agency, which get less attention from the press and from the public than the health concerns, be elevated. You cannot win those arguments. They are very

compelling arguments. But as you start down that road, pretty

soon I think you have a bill that will not command the support

that simple elevation will command.

By elevating the agency, one certainly does not rule out the possibility of revisiting the question of is there an effective way to ensure that science is better represented in the decisionmaking at the

agency? Honestly, if you do that, I think you will find that there

are problems with many of the statutes that do not accord the kind

of respect for science, were not debated even here with a good scientific formulation or background, and that perhaps they ought to

be revisited, as well. What I am suggesting is that is a long and

important, but I think difficult road, and I would not try to go

down it at the same time as I tried to do the elevation of EPA.

Senator COLLINS. Thank you. That is helpful, and that leads me

to suggest to the Chairman most respectfully that maybe the answer is to move both bills separately, because the Voinovich-Carper

bill clearly has a lot of interest and a lot of support. Maybe that

is an important debate, but it should be a separate debate. Mr.

Reilly, I want to ask you one other question. You talked about the

30

difficulties in recruiting well-qualified scientists to take positions at

EPA. Do you think that raising the EPA status to cabinet level

might well help with some of the recruitment by increasing the status or the prestige of working at EPA?

Mr. REILLY. I think that the consequence of having a Department

of the Environment or having a group or entity that is broader

than purely regulatory, both in its own eyes or in the eyes of the

country, will have the effect of causing scientists to understand

they can come to the agency and look forward to making a career

doing some basic science, doing some innovative science that will

have long-term support because it is part of what the agency is

supposed to do. In other words, that the only reason to investigate

a particular scientific question is no longer simply because we have

got a reg to get out next year and we need some science to back

it up; that you need a broader perspective on the scientific status

of the environment, for example, nationwide, and that is a legitimate responsibility of the agency and I think the answer to your

question then is yes.

Senator COLLINS. Ms. Browner, would you like to comment?

Ms. BROWNER. I just want to add that we recognized early on in

our tenure that this was a real challenge for the agency, attracting

young scientists into the agency. If you think about it, 30 years

ago, if you wanted to do environmental science. you went to the

EPA. There were not the State agencies. There were not all of the

industry opportunities and environmental organization opportunities that exist today. We had some tremendous success by thinking

creatively. For example, I think Don Elliott mentioned our STAR

program, Science to Achieve Results. Essentially what we did there

is we said, ‘‘You know what? There are a lot of great graduate students out there whose work would be valuable to the agency. They

do not need to come work for the agency. We can provide some financial resources. They can stay in their university. They can do

their work. they learn about EPA, and they do work that is a benefit to EPA.’’ So I think part of attracting scientists, it is like industry today.

They have a hard time attracting high-level scientists. Thinking

creatively—much as I would like to think it would be simply fixed

by calling it a department, I think it is going to require a lot more

creative thinking and monitoring of how the dynamics in the employment of scientists is going broadly. Our STAR program, the

first time we advertised it, we thought we might get a handful of

applicants. We got hundreds and hundreds. We were completely

overwhelmed by the number of young scientists who wanted to do

work for the agency, but did not necessarily want to come into the

agency. Subsequently, many of them did. It became a nice way to

build a relationship. So I think that kind of creative thinking is

going to continue to be very important.

Senator COLLINS. Thank you. My time has expired. I do not want

you to feel neglected, and I appreciated your testimony. Thank you.

Mr. ELLIOTT. I will try and squeeze it in someplace else. [Laughter.]

Chairman LIEBERMAN. Senator Carper.

Senator CARPER. Mr. Chairman, I want to thank you for holding

this hearing on the Voinovich-Carper bill.

31

Chairman LIEBERMAN. Incidentally, I have to tell you my staff

has informed me that the bill is actually before the Environment

and Public Works Committee, so I was engaged in an act of manifest destiny in thinking that it was here.

Senator CARPER. Mr. Reilly, I have never had a chance, I do not

think, to work with you. I want to thank you for your stewardship

of our country, for our country, and welcome you today. To Carol

Browner, with whom I served—your terms as director and my term

as Governor of Delaware overlapping—we very much appreciated

the great relationship we had, not just from my State, but through

the Nation’s Governors, and it is great to see you. I will always remember the time you came to Sussex County, Delaware and

brought your son about 4 or 5 years ago on a very rainy day, and

after, I went to Rehobeth Beach and it poured down the rain. But

we appreciated your coming and trying to get a two-fer in that day,

and I know we were pleased you would participate in our event.

I am sorry that it rained for your son.

Ms. BROWNER. It was a wonderful day. Thank you.

Senator CARPER. Mr. Elliott, you mentioned your neighbor. I

think I heard Senator Lieberman call you neighbor. How does that

work? Do you live in his neighborhood?

Mr. ELLIOTT. Yes, I teach half-time at Yale Law School. I have

been teaching there for 20 years. So I still think of myself primarily as a professor and an environmental law professor. So I

have a house there and a house here, and I go back and forth every

week. So I have been teaching at Yale since 1981. In fact, that is

how we met, in some academic conference on tort reform and other

issues.

Senator CARPER. You mentioned in your comments and your testimony—you talked about other areas of expertise that are addressed in the legislation outside of science. I think you may have

mentioned the role of the general counsel and several others, that

we do take the time to address in this bill. Could you just mention

a few of those again?

Mr. ELLIOTT. The bills talk about a chief legal officer, a chief information officer, and a chief financial officer. If we had codified

the practices and structure of EPA at a somewhat earlier time, we

would be codifying in statute the role of the assistant administrator

for ORD in reviewing the underlying science. We had for many

years at EPA something called the Red Border Review Process,

which resulted in proposed rules being circulated for comment by

all the other assistant secretaries, and that did provide a mechanism by which the science underlying a particular regulation would

be taken a look at by the assistant secretary for ORD. That was

abolished in the last administration as part of a streamlining program.

It is important to codify the practices at EPA, but there is a

question legitimately as to which particular practice do you codify?

I think it is literally the case that the scientists have been taken

out of the reviewing loop at EPA in recent years. They still have

a very important role in terms of peer review and in terms of the

working groups, and that is all to the good, but I think it needs

to be balanced. I would have the peer-reviewed documents come

back to a chief science officer, as well as the program offices, so

32

that somebody can take a look at the very excellent comments and

questions that are raised about proposed rules by these outside

peer reviewers.

Senator CARPER. Administrator Browner was shaking her head

just a moment earlier, before I gave her a chance to do more than

that. Let me just say to my colleagues, the concern has been raised

that we should not just have one person at EPA who is thinking

about science, and I would agree with that, but at the same time

I do not think we want to have just one person at EPA who is

thinking about legal aspects, would not have one person who is

thinking about information aspects, one person who just happened

to be thinking about the finances. Obviously, those have to be concerns that go beyond any one person, and the same applies here

to science.

What I really want to do here is engage in a dialogue with you

that goes beyond today, certainly with George Voinovich and the

leadership of this Committee, and Senators Boxer and Collins. I

want us to find a way to come up with an effective compromise

that helps ensure that we do focus more of science within EPA,

that we do elevate it to the position of a full department with the

Secretary in charge. I am convinced with people as smart as you

are, and people as amenable as the rest of us are up here, we can

work this out. We have to be able to work this out.

Ms. Browner.

Ms. BROWNER. I have never in my 8 years of testifying at EPA

had to discuss Red Border Review. It is a technical issue of moving

files around at EPA, and to suggest—and I do not think Mr. Elliott

was suggesting this—but somehow or other discontinuing that in

the last days of making a regulatory decision did damage to the scientists’ ability to participate, is not probably exactly right. The

most important thing for EPA is to have science on the front end.

A scientist coming along 10 years after a group of scientists have

been doing complicated research, subjected to external peer review,

and then saying, ‘‘Oops, wrong,’’ is not going to be helpful to the

integrity of EPA’s decisionmaking. So as we think about this, I

think we need to be very well-informed on what is an appropriate

scientific process for the agency, and to strengthen that and not

add a gotcha at the end.

Senator CARPER. Thank you. Mr. Reilly.

Mr. REILLY. May I just add something, Senator Carper, that goes

a little bit beyond science, and it perhaps is a provocative point,

but as you open up the question of how to get better scientific integrity underlying EPA decisionmaking, I think it is an excellent

question to ask, but you will find that many of the problems lie

with the statutes themselves and within the diverse interests of

the various committees that authored them. You will have different

characterizations of risk, different concern about threats, different

balancing of health versus ecological concerns, different, maybe, exposure assumptions if the statute is that detailed. And it is profoundly in the interest of the Nation’s environmental laws, in my

view, to try to integrate those things. It is not easy and it would

involve many committees of the Congress.

This bill, I believe, opens the door to do that. It provides enabling

authority for the first time in an organic statute to put things toVerDate 11-MAY-2000 08:40 Mar 08, 2002 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6633 75478.TXT SAFFAIRS PsN: SAFFAIRS
33

gether that have never been effectively put together, that came, as

was mentioned earlier, from five different departments. That is one

of the great merits of cabinet status. I think it will begin that debate about integrating our perspective, and people will see that

there should be fewer disparities among these different statutes

and the concerns that trigger a regulation as a result.

Senator CARPER. Mr. Chairman, my time has expired. I again

very much appreciate your testimony here, and, Mr. Elliott, especially your comments in support of the initiative. I did not realize

Sherwood Boehlert over in the House, and Senator Voinovich and

myself, and you all have forgotten more about this stuff than I will

ever know. I say that freely. I would really appreciate your willingness to work with us as Senator Voinovich and I, and Congressman

Boehlert, try to find the right balance here. We do not want to derail the bill. We want to see this legislation passed, but at the same

time, we want to make sure that when we do that, that the concerns that we have expressed that have frankly been expressed by

a lot of people around the country with respect to the role of

science are addressed.

No one will ever accuse EPA of being blinded by science, but we

want to make sure that, in the end, that its role is enhanced, as

well. Thank you.

Chairman LIEBERMAN. Thanks, Senator Carper.

Senator Thompson.

Senator THOMPSON. Thank you, Mr. Chairman. A couple of observations: First of all, I’d like to thank all three of you. This has

been extremely helpful to me—the things you say would be beneficial to the EPA by elevating it, and also to the science position,

by elevating it. Both involve having a seat at the table. You can

have some science influence there, but that is, to a great extent,

the discretion of whoever happens to be administrator and what

their goals are. Just as EPA becomes a cabinet-level position, there

are certain things you cannot do to EPA anymore, and there are

certain things that you cannot do to freeze out or not use scientific

input as much as one should, so I think we need to keep that in

mind. Also, Mr. Reilly, all of the things that you mentioned of concern, it seems to me like there was one common denominator for

all of that, and that is they all should require sound science.

Mr. REILLY. Yes, sir.

Senator THOMPSON. Science is the common denominator for all

those interests, because science is not just another interest group.

Science should be an integral part of everything that we do. On the

legal side of things, I think your point is well-made, different

standards, different laws and so forth. In some cases you cannot

even consider the cost of something, and in other cases, the cost/

benefit analysis is required and best science is required. So I think

that is a good point. On the other hand, we have seen some significant instances where—and you assume that a person in this position is not going to make things any worse, that he would apply

the law as he went about his or her job. But we have seen instances where more science input would have been beneficial. I

think maybe the PM ozone layer situation is a good example of

that. The court held there that EPA was arbitrary and capricious

34

in refusing to or not considering the substitution risk of reducing

ozone.

Is that not an example where the science part of the decisionmaking process should have been given greater weight, Ms. Browner?

Ms. BROWNER. I am happy to respond as the person who, obviously oversaw that. I know you are aware that the Supreme Court,

Justice Scalia writing for all nine members of the court, did uphold

those fine particle and the ozone standards. I think the issue you

are raising——

Senator THOMPSON. I do not think EPA even contested this part.

Ms. BROWNER. The issue that came up into the lower court that

I think you are raising is whether or not allowing excess pollution

in the air reduces skin cancer, and as I understand it, EPA is going

through the process of considering that. The fact that EPA did not

speak to that in its regulation, however, does not mean that it was

not part of a rigorous science review. I know you know this, but

I think it is worth repeating. It is widely accepted that on PM and

on ozone, EPA had more science process and more external scientific review and studies than any decision in the history of EPA.

The process started with hundreds of external peer-reviewed

studies. That was narrowed by an external peer-review board to 87

studies, which were then peer-reviewed again. I can go through it,

and I do not want to belabor it.

Senator THOMPSON. I am sure all those points were made to the

court as they ruled against you.

Ms. BROWNER. No, they did not rule—sir, with all due respect,

those standards are on the books now and the new administration

has embraced them as the pollution standards. The issue goes to

the regulatory, not the science side, which is in adopting the regulation, the pollution standard, did EPA speak to the issue of excess

pollution and a reduction in skin cancer? It is a very small piece

of a much, much larger public health decision.

Senator THOMPSON. My understanding was it did not go to what

a substitution risk would show. For example, it went to the fact

that, in the court’s opinion, at the DC level, that the EPA did not

consider the substitution risk at that point. So, to that point, and

it is a procedural one, my concern is whether or not on something

very important, very costly, we have a case in point. I have not

read the Supreme Court opinion, but my understanding is the Supreme Court did not address this because EPA did not contest that

part of it.

Mr. Elliott, do you have any input on that, from your vantage

point?

Mr. ELLIOTT. There are lots of cases recently where reviewing

courts have reversed EPA decisions because of concern about the

science. I think the chloroform standard is perhaps a better example, and in an article that I have provided as part of my testimony,

I have cited a number of cases. But I think there is a general consensus in academia that more EPA rules are being reversed in

court on scientific grounds than in the past, and I, at least in print,

have expressed the concern that the courts are stepping in, because

some of EPA’s scientific credibility has been undermined.

35

In terms of recruiting good scientists, if you look at other agencies that perhaps do a better job of recruiting scientists and have

a high-level of credibility in terms of science—I think, for example

of FDA—it is not so much the funding issues as that the scientists

are part of the policy process. That is one of the mistakes that we

have made at EPA. People come to Washington not for the money,

but because they are committed to public service and the role that

they have in making public policy. We cannot ask scientists to

come to EPA and put them off in a research lab and not have them

be fully part of the same policy process that motivates lawyers and

others to come to the agency.

We have separated scientists a little bit too much from the policy

process. There is a great line by Samuel Coleridge, that every generation has to deal with the consequences of the past generation’s

reforms. Some of the reforms and streamlining that was done in

the last administration that get science at the front end, I think

does really create a problem in terms of not having a high-level advocate for science. I do not think the high-level advocate for

science, at the end of the line, is the answer. I think you need both.

I think you need scientists on the work group and you need peer

review, but you also need somebody who is in the upper counsels

of the agency as the advocate for science, because there are advocates for politics, there are advocates for interest groups, there are

advocates for economics. What is missing in the structure today is

a high-level forceful advocate for science, and I would plead with

the Committee to figure out some way to get that back into the

process.

It has been there at some points in the past, but in my opinion,

as somebody who spends his life studying this stuff, as well as a

former participant, I do think that science is more excluded from

the high-level policy process at EPA today than it has been in the

past, and I think it is appropriate for this Committee to try to

nudge things back in the right course.

Senator THOMPSON. Thank you very much, Mr. Chairman.

Chairman LIEBERMAN. Thanks, Senator Thompson.

Do my colleagues have any other questions? If not, I thank the

witnesses very much. The fact that we had not only the current administrator, but her two predecessors here and a former general

counsel, really lends tremendous weight to this recommendation.

Maybe I should have said it was more like an all-star team than

old-timers day.

Senator THOMPSON. Still trying to get out of that; aren’t you?

Chairman LIEBERMAN. Yes, I am. I do think the hearing also—

and the arguments that you and others before you have made for

elevating EPA to cabinet status—makes those arguments very

powerfully, and in the discussions we have had here, we have also

shown the temptations or the challenges that we are going to have

as we steer this bill through the legislative process, to stay between

the lines and just focus on elevation to cabinet status, or we are

going to get into difficulties, and I hope we can do it. Did you have

something more you wanted to say?

Mr. REILLY. Well, I was struck listening to Senator Thompson.

Once when I testified before the Environment Committee, Senator

Moynihan was in attendance, and he made a memorable point. I

36

think, Senator Thompson, you are now picking up the standard of

concern for science at EPA, and you no doubt know of Senator Moynihan’s passion for science. I remember he concluded once by saying, ‘‘Sooner a diabolist in the convent than a member of the scientific community on the Environment and Public Works Committee.’’ Senator THOMPSON. That is an expression I am sure he got from

me somewhere along the line. [Laughter.]

Chairman LIEBERMAN. That is an old Smoky Mountain expression; isn’t it? [Laughter.]

Thanks to you all very much. The hearing is adjourned.

[Whereupon, at 12:03 p.m., the Committee was adjourned.]

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