David Cay Johnston

Those may be requirements of risk assessment or cost-benefit analysis which, to the extent they are relevant, can be used to challenge the final agency action. Maybe so. But those are only arguments you make. The first one there is notice…

There is the standard right there. It is plain English. It is as plain as it can be. It is ``arbitrary and capricious or abuse of discretion,'' that is the sole and only basis for review of the cost-benefit analysis or of the risk…

But you said you would have a separate review, even under what counsel for EPA says, that would come only at the final review and solely for the purpose of determining whether or not the final agency action was arbitrary and capricious; is…

I say to my friend, that is a different question. That is a different section. We are talking about the review of cost-benefit analysis and risk assessment which, under our language, specifically states that it is solely for the purpose of…

I suggest to my friend from Ohio that there is only one review, explicitly only one review, under our proposal, and that is final agency action.

I believe this is a well-drawn amendment now. It speaks to a much needed principle of the law, and that is that Federal officials ought to tell the truth. And we ought to be able to rely on them when they do. This amendment carries out…

I thank the Senator. On page 4, line 15 of his amendment, it says if the Secretary cannot make the certification required under section 1(C), he shall notify the Congress and publish his statement. 1(C) says, the main part there, that the…

The reg-flex amendment which we adopted yesterday which was designed to take care of small business includes in its definition of small entity, small governmental jurisdiction, which goes on to mean government, cities, towns, townships…

About 5 million. When they affect small business, they are likely to be a major rule. But we have that provided for in the Coverdell amendment of yesterday with the reg-flex, and I believe that solves that problem. What we do not want to…

One final short question. I ask my friend to read the Secretary's letter. It pertains only to risk assessment, which, as I say, is contained in the Glenn-Daschle bill. That is all he talks about. He does not talk about the exception. I…

Yes. First of all, are you aware that the Glenn substitute has peer review in it of an even stronger variety than is contained in S. 343?

We do not admit of that possibility. Mr. President, I think this has been a very useful exchange. And I hope, maybe following up on this, we can make clear that those health-based standards and technology-based standards of the…

If you would just leave out that ``in the event of conflict,'' because there is no conflict. That is why we say it shall supplement and not supersede, because we have written it in such a way that it does not conflict and we do not want…

May I suggest here a way, perhaps, to get at this question of conflict? Part of my problem is to say that ``in the event of conflict''--in my judgment there is no possibility of conflict. We have written conflict out. So, therefore, you do…

Does the Senator understand my problem with the phrase, ``in the event of conflict, the statute under which the rule is promulgated shall govern''?

We are reading actually from the substitute. In any event, it says, ``reasonably identifiable, significant favorable effects, quantifiable and nonquantifiable, including social and environmental health and economic effects.'' We did not…

I tell my friend that it is indeed a complicated statute. But I think it is clear, and the problem is that--you talk about will ``social'' embrace all these things. We say ``benefit'' means the reasonably identifiable--this is page 13…

I would have no problem with proper language to do that. The problem is that, first of all, I think we have very clear language right now. I think it is very clear. The offered language creates its own ambiguity.

Under the law of the Supreme Court, in the Chevron case, the last and most definitive case I know of on the issue, they say specifically if the Congress has specifically spoken to an issue and the intent is clear, then the agency must…

I would like to see that because we have talked about these hypothetical clashes. You see, in your hypothetical, the benefits justified the cost, because in the first instance you saved lives----

It is maximum achievable controlled technology, which is not stated in parts per million. There are other standards. For example, there are radiation standards that do specify so many rems or millirems per year, et cetera. The Clean Air…

Not true, Mr. President, I tell my colleague, because there is nothing here--first of all, I do not know of any statute that says a minimum of so many parts per million with discretion to go higher.

You see, his hypothetical was that if you add a little bit of extra cost, you get a big benefit.

I do not know whether the Senator understands what I am saying. Did the benefits justify the cost of your--what was it--did they or did they not?

Yes, but you see, all of those costs, whether quantifiable or nonquantifiable in the first instance, to determine whether the benefits justify the cost, were taken into consideration. So I ask under your hypothetical, are you telling me…