Volume 141, No. 38 covering the 1st Session of the 104th Congress (1995 - 1996) was published by the Congressional Record.
The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“PRIVATE PROPERTY PROTECTION ACT OF 1995” mentioning the Environmental Protection Agency was published in the House of Representatives section on pages H2459-H2473 on March 1, 1995.
The publication is reproduced in full below:
PRIVATE PROPERTY PROTECTION ACT OF 1995
Mrs. WALDHOLTZ. Mr. Speaker, by direction of the Committee on Rules, I call up House Resolution 101 and ask for its immediate consideration.
The Clerk read the resolution, as follows:
H. Res. 101
Resolved, That at any time after the adoption of this resolution the Speaker may, pursuant to clause 1(b) of rule XXIII, declare the House resolved into the Committee of the Whole House on the state of the Union for consideration of the bill (H.R. 925) to compensate owners of private property for the effect of certain regulatory restrictions. The first reading of the bill shall be dispensed with. Points of order against consideration of the bill for failure to comply with section 302(f), 308(a), 311(a), or 401(b) of the Congressional Budget Act of 1974 are waived. General debate shall be confined to the bill and the amendment recommended by the Committee on the Judiciary and shall not exceed one hour equally divided and controlled by the chairman and ranking minority member of the Committee on the Judiciary. After general debate the bill shall be considered for amendment under the five-minute rule for a period not to exceed twelve hours. It shall be in order to consider as an original bill for the purpose of amendment under the five-minute rule the amendment in the nature of a substitute recommended by the Committee on the Judiciary now printed in the bill. The committee amendment in the nature of a substitute shall be considered as read. Points of order against the committee amendment in the nature of a substitute for failure to comply with clause 7 of rule XVI, clause 5(a) of rule XXI, or section 302(f), 311(a), or 401(b) of the Congressional Budget Act of 1974 are waived. No amendment to the committee amendment in the nature of a substitute shall be in order unless printed in the portion of the Congressional Record designated for that purpose in clause 6 of rule XXIII before the beginning of consideration of the bill for amendment. Amendments so printed shall be considered as read. Points of order against the amendment specified in the report of the Committee on Rules accompanying this resolution to be offered by Representative Canady of Florida or a designee for failure to comply with clause 5(a) of rule XXI are waived. Pending the consideration of that amendment and before the consideration of any other amendment, it shall be in order to consider the amendment thereto specified in the report of the Committee on Rules to be offered by Representative Tauzin of Louisiana or a designee. At the conclusion of consideration of the bill for amendment the Committee shall rise and report the bill to the House with such amendments as may have been adopted. Any Member may demand a separate vote in the House on any amendment adopted in the Committee of the Whole to the bill or to the committee amendment in the nature of a substitute. The previous question shall be considered as ordered on the bill and amendments thereto to final passage without intervening motion except one motion to recommit with or without instructions.
Sec. 2. After passage of H.R. 925, it shall be in order to consider in the House the bill (H.R. 9) to create jobs, enhance wages, strengthen property rights, maintain certain economic liberties, decentralize and reduce the power of the Federal Government with respect to the States, localities, and citizens of the United States, and to increase the accountability of Federal officials. All points of order against the bill and against its consideration are waived. It shall be in order to move to strike all after section 1 of the bill and insert a text composed of four divisions as follows: (1) division A, consisting of the text of H.R. 830, as passed by the House; (2) division B, consisting of the text of H.R. 925, as passed by the House; (3) division C, consisting of the text of H.R. 926, as passed by the House; and (4) division D, consisting of the text of H.R. 1022, as passed by the House. All points of order against that motion are waived. The previous question shall be considered as ordered on the motion to amend and on the bill to final passage without intervening motion except one motion to recommit with or without instructions.
The SPEAKER pro tempore. The gentlewoman from Utah [Mrs. Waldholtz] is recognized for 1 hour.
Mrs. WALDHOLTZ. Mr. Speaker, for purposes of debate only, I yield the customary 30 minutes to the gentleman from California [Mr. Beilenson], pending which I yield myself such time as I may consume.
During consideration of this resolution, all time yielded is for the purpose of debate only.
Mr. Speaker, I yield such time as she may consume to the gentlewoman from Ohio [Ms. Pryce].
(Ms. PRYCE asked and was given permission to revise and extend her remarks.)
Ms. PRYCE. Mr. Speaker, I rise in strong support of the rule.
Mr. Speaker, as my distinguished colleague from Utah ably explained in her opening remarks, this rule provides for the fair and orderly consideration of one of the most significant regulatory reform proposals to be debated on the House floor in recent memory, and that is the fundamental idea of compensating private property owners when the use of their property is limited by over-reaching Federal regulations.
This is a very complex issue, Mr. Speaker, and the legislation before us has understandably prompted legitimate concerns about the future of Federal rulemaking. To afford Members amply opportunity to discuss changes in the bill, this rule provides for 1 hour of general debate, followed by up to 12 hours of amendment under the 5-minute rule.
While I know the minority would prefer to have unlimited debate on this legislation, I am confident that the rule provides the minority with an ample block of time to manage as they see fit in order to organize and prioritize amendments they would bring to the House floor.
The rule also enables the House to consider two very important amendments. First, in the
[[Page H2460]] continuing effort to be more fiscally responsible, the rule makes in order a substitute to be offered by the gentleman from Florida [Mr. Canady]. This substitute, which requires only a single waiver of House rules, pursues essentially the same goals as the bill reported by the Judiciary Committee, but it links compensation for property owners to the availability of appropriations.
The rule also allows the gentleman from Louisiana [Mr. Tauzin] to amend the Canady substitute by narrowing the scope of the legislation to apply only to the Endangered Species Act, wetlands regulations, water rights, and parts of the 1981 Food Security Act.
These amendments reflect bipartisan efforts to reach a compromise, and I urge my colleagues to consider them very carefully.
The notion of protecting private property rights is not a new concept. It has its roots in our Nation's most sacred document, our Constitution. But those rights have steadily been eroded by excessive regulations which force farmers, ranchers, and other property owners to bear the full burden of the law, which the public receives the benefits and pays none of the costs.
If the fifth amendment is going to be worth more than the paper it is written on, then private property protection must be strengthened.
A strong system of property rights in America is an essential means of protecting individual liberty, and the bill before us provides the appropriate balance between the power of government, the rights of individuals, and the betterment of our society.
Mr. Speaker, I urge my colleagues to support both the rule and the bill, and I yield back the balance of my time.
Mrs. WALDHOLTZ. Mr. Speaker, I yield myself such time as I may consume.
{time} 2000
Mr. Speaker, I reserve the balance of my time.
Mr. Speaker, for too long the Federal Government has trampled on the rights of private property owners. Federal agencies have made rules and taken actions that have severely impacted private citizens, drastically reducing the value of their homes and property. Yet because of restrictive interpretations by the Courts of the ``takings'' clause of the Constitution, these citizens have had no means of redress to be compensated for their losses.
This bill will change that and protect the interests of private citizens where the government restricts the use of their property. H.R. 925 requires that the Federal Government compensate a property owner when a limitation placed on the use of their property by a federal agency action causes the fair market value to be reduced by 10 percent or more. If a Federal agency refuses to compensate a property owner for their losses, the bill allows the owner to seek compensation through the courts. Further, the bill recognizes the need to protect public health and safety by exempting actions taken by an agency that would prevent identifiable hazards to the public.
Under amendments to be offered under this rule, the compensation to the private citizen will not come out of a new fund to be established, or through more deficit financing, but directly from the budget of the agency that harmed the property. In other words, this bill is based on the radical idea that people harmed by the Government's actions deserve to be compensated and that the agency that caused the harm should pay for it out of their existing budget.
This idea is so radical that our current budget rules do not even allow us to consider this legislation without waiving certain budget rules. So, we've got to waive certain budgetary procedures just to be able to bring this bill to the floor for debate. The budget waivers will simply clarify a disagreement over the technical interpretation of the rules necessary to bring the bill to the floor for debate. Accordingly, we have crafted a rule that is admittedly somewhat technical in nature, as it waives certain budget rules against both the committee bill and the committee substitute.
The Canady substitute, which is made in order under this rule, clarifies our intent to pay for losses to property by simply reallocating current agency spending rather than create new
entitlement authority. Accordingly, neither that amendment nor the Tauzin amendment, which will be considered as an amendment to the Canady amendment, require budget waivers. As a result, Mr. Speaker, the intent of our budget rules is preserved by the structure of this rule, despite technical waivers necessary to consider this important legislation.
The rule makes in order the committee substitute from the Judiciary Committee and provides for 1 hour of general debate followed by up to 12 hours of amendment under the 5-minute rule. The rule makes it in order to first consider the Tauzin amendment to the Canady amendment and requires that all amendments to the committee substitute be preprinted in the Congressional Record. The rule also provides for one motion to recommit with or without instructions.
Section 2 of the rule provides that after passage of H.R. 925, it will be in order to consider H.R. 9, and then combine the text composed of four regulatory reform bills as passed by the House. Those bills are H.R. 925, H.R. 830, the Paperwork Reduction Act, H.R. 926, the Regulatory Reform and Relief Act, and H.R. 1022, the Risk Assessment and Cost-Benefit Act. This allows us to send one bill to the Senate for consideration, as was done last year with the crime bill.
This modified-open rule provides for fair and open debate. This rule will allow for a total of 14 hours of floor debate on this bill--1 hour for the rule, 1 hour for general debate, and 12 hours for amendments. Fourteen hours is more than adequate to discuss the merits of this legislation.
I am sure some Members on the other side of the aisle will question the time limit. We discussed it in the Committee on Rules and I am sure we will discuss it more here. But I am confident that the 12-hour time limit will give the minority adequate time for consideration of amendments. Of course, it will require a prudent management of time to ensure that the most important amendments receive priority consideration, but Mr.
Speaker, managing our time wisely is one of the responsibilities we all must shoulder in order to accomplish the people's business.
I know some concern may be expressed about the preprinting requirement. However, Members have not been shut out from offering amendments to the bill. While the pre-printing requirement applies to the committee substitute because of the critical nature of clarifying the budget impact of the means of payment, Members had sufficient notice of this requirement. Further, that requirement does not apply to amendments to the Canady and Tauzin amendments, which it is anticipated will shortly become the base text of this legislation. Members of this body will have ample opportunity to offer their amendments on the floor.
Mr. Speaker, since there is a good chance that the Canady substitute may be adopted, Members are encouraged to re-draft their amendments to be offered to the Canady substitute rather than the base bill. In that way the time of the House will be saved and Members will be protected against having their amendments nullified by the adoption of Canady.
Mr. Speaker, the Private Property Protection Act is a very important bill and this is a fair rule for its consideration. I urge my colleagues to support both the rule and the bill.
Mr. BEILENSON. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, we are opposed to this rule, and to the bill it makes in order, the so-called Private Property Protection Act of 1995.
Mr. Speaker, this rule contains the same kind of time restriction on the amendment process that has been used for the consideration of five other bills the House has considered recently.
Although we do appreciate the fact that the majority proposed lengthening the time for the amendment process from the usual 10 hours to 12 hours, we are still concerned that Members who want to offer amendments to this bill may be denied that opportunity.
In fact, we were advised that 15 hours would be needed just to accommodate the minority members of the Judiciary Committee who wanted to offer amendments. The 12-hour limit--which is actually a 9- or 10-
hour limit on debating amendments themselves, because it includes time spent on recorded votes--will most certainly deny some Members the opportunity to offer the amendments they wish to present.
Mr. Speaker, we understand the desire of the majority to have H.R. 925 considered in a timely manner. And, as
[[Page H2461]] our Republican colleagues have frequently pointed out, rules issued by the Rules Committee when Democrats were in the majority often did place time limits on amendments. What we take issue with is not whether the time caps exist, but whether they are fair.
When we issued rules with time limits, in earlier Congresses they did not preclude any Member from offering an amendment. We have two charts which show the contrast between what happened under rules with time limitations during the 103d Congress, and what has happened during this Congress.
Mr. Speaker, I include for the Record information regarding floor procedures in the 104th Congress and the amount of time spent on voting under the restrictive time cap procedure in the 104th Congress.
The material referred to is as follows:
FLOOR PROCEDURE IN THE 104TH CONGRESS
----------------------------------------------------------------------------------------------------------------
Process used for floor Amendments in
Bill No. Title Resolution consideration order
----------------------------------------------------------------------------------------------------------------
H.R. 1................. Compliance............. H. Res. 6 Closed...................... None.
H. Res. 6.............. Opening Day Rules H. Res. 5 Closed; contained a closed None.
Package. rule on H.R. 1 within the closed rule. H.R. 5................. Unfunded Mandates...... H. Res. 38 Restrictive; Motion adopted N/A.
over Democratic objection in the Committee of the
Whole to limit debate on section 4; Pre-printing gets preference. H.J. Res. 2............ Balanced Budget........ H. Res. 44 Restrictive; only certain 2R; 4D.
substitutes. H. Res. 43............. Committee Hearings H. Res. 43 (OJ) Restrictive; considered in N/A.
Scheduling. House no amendments. H.R. 2................. Line Item Veto......... H. Res. 55 Open; Pre-printing gets N/A.
preference. H.R. 665............... Victim Restitution Act H. Res. 61 Open; Pre-printing gets N/A.
of 1995. preference. H.R. 666............... Exclusionary Rule H. Res. 60 Open; Pre-printing gets N/A.
Reform Act of 1995. preference. H.R. 667............... Violent Criminal H. Res. 63 Restrictive; 10 hr. Time Cap N/A.
Incarceration Act of on amendments.
1995. H.R. 668............... The Criminal Alien H. Res. 69 Open; Pre-printing gets N/A.
Deportation preference; Contains self-
Improvement Act. executing provision. H.R. 728............... Local Government Law H. Res. 79 Restrictive; 10 hr. Time Cap N/A.
Enforcement Block on amendments; Pre-printing
Grants. gets preference. H.R. 7................. National Security H. Res. 83 Restrictive; 10 hr. Time Cap N/A.
Revitalization Act. on amendments; Pre-printing gets preference. H.R. 729............... Death Penalty/Habeas... N/A Restrictive; brought up N/A.
under UC with a 6 hr. time cap on amendments. S. 2................... Senate Compliance...... N/A Closed; Put on suspension None.
calendar over Democratic objection. H.R. 831............... To Permanently Extend H. Res. 88 Restrictive; makes in order 1D.
the Health Insurance only the Gibbons amendment;
Deduction for the Self- waives all points of order;
Employed. Contains self-executing provision. H.R. 830............... The Paperwork Reduction H. Res. 91 Open........................ N/A.
Act. H.R. 889............... Emergency Supplemental/ H. Res. 92 Restrictive; makes in order 1D.
Rescinding Certain only the Obey substitute.
Budget Authority. H.R. 450............... Regulatory Moratorium.. H. Res. 93 Restrictive; 10 hr. Time Cap N/A.
on amendments; Pre-printing gets preference. H.R. 1022.............. Risk Assessment........ H. Res. 96 Restrictive; 10 hr. Time Cap N/A.
on amendments. H.R. 926............... Regulatory Flexibility. H. Res. 100 Open........................ N/A.
H.R. 925............... Private Property H. Res. 101 Restrictive; 12 hr. time cap 1D.
Protection Act. on amendments; Requires
Members to pre-print their amendments in the Record prior to the bill's consideration for amendment, waives germaneness and budget act points of order as well as points of order concerning appropriating on a legislative bill against the committee substitute used as base text.
----------------------------------------------------------------------------------------------------------------
Note: 71% restrictive; 29% open. These figures use Republican scoring methods from the 103rd Congress. Not included in this chart are three bills which should have been placed on the Suspension Calendar. H.R. 101,
H.R. 400, H.R. 440.
AMOUNT OF TIME SPENT ON VOTING UNDER THE RESTRICTIVE TIME CAP PROCEDURE IN THE 104TH CONGRESS
----------------------------------------------------------------------------------------------------------------
Bill No. Bill title Roll calls Time spent Time on amends
----------------------------------------------------------------------------------------------------------------
H.R. 667................ Violent Criminal 8 2 hrs. 40 min. 7 hrs. 20 min.
Incarceration Act. H.R. 728................ Block grants................. 7 2 hrs. 20 min. 7 hrs. 40 min.
H.R. 7.................. National security 11 3 hrs. 40 min. 6 hrs. 20 min.
revitalization. H.R. 450................ Regulatory moratorium........ 13 3 hrs. 30 min. 6 hrs. 30 min.
H.R. 1022............... Risk assessment.............. 6 2 hrs. 8 hrs.
----------------------------------------------------------------------------------------------------------------
Members Shut out by a Time Cap 104th Congress
This is list of Members who were not allowed to offer amendments to major legislation because the 10 hour time cap on amendments had expired. These amendments were also pre-printed in the Congressional Record. This list is not an exhaustive one. It contains only Members who had pre-printed their amendments, others may have wished to offer amendments but would have been prevented from doing so because the time for amendment had expired.
H.R. 728--Law Enforcement Block Grants--10 Members; Mr. Bereuter, Mr. Kasich, Ms. Jackson-Lee, Mr. Stupak, Mr. Serrano, Mr. Watt, Ms. Waters, Mr. Wise, Ms. Furse, Mr. Fields.
H.R. 7--National Security Revitalization Act--8 Members; Ms. Lofgren, Mr. Bereuter, Mr. Bonior, Mr. Meehan, Mr. Sanders(2), Mr. Schiff, Ms. Schroeder, Ms. Waters.
H.R. 450--Regulatory Moratorium--15 Members; Mr. Towns, Bentsen, Volkmer, Markey, Moran, Fields, Abercrombie, Richardson, Traffcicant, Mfume, Collins, Cooley, Hansen, Radanovich, Schiff.
H.R. 1022--Risk assessment--3 Members (at least three other Members had amendments prepared but were not allowed to offer them Mr. Doggett, Mr. Mica, Mr. Markey); Mr. Cooley(2), Mr. Fields, Mr. Vento.
The Republican stall: The ayes were called and amendments were passed by voice vote on the following votes during consideration of the Regulatory Moratorium bill. However, recorded votes were aksed for.
Mr. Clinger asked for a vote on the Norton Amendment as amended by McIntosh which passed on a vote of 405-0.
Mr. Clinger asked for a vote on Hayes amendment which passed on a vote of 383-34.
Mr. Tate asked for a vote on his amendment which passed on a vote of 370-45.
Timecaps in the 103d Congress
I. Time caps specifically excluded voting time in the 103rd in 4 out of 5 cases
In the 103rd Congress, there were 5 bills considered under rules with time caps on the amendment process; four in 1994 and one in 1993. All four of the time caps from last year specifically excluded voting time. The single exception in the 103rd, from 1993, was H.R. 1036, ERISA Amendments Act. The Rules Committee asked for amendment in advance and received only 2 (Reps. Fawell and Berman). On the floor, Mr. Fawell offered his; it was defeated. Mr. Berman did not offer. No other amendments were offered and the total consumed by the amendment process (including votes) was about one hour and 15 minutes.
II. The test of whether a time cap is restrictive is not the amount of time allotted but whether Members are excluded from offering germane amendments.
In the 103rd Congress, no bills considered under a time cap consumed the entire amount of time.
------------------------------------------------------------------------
Floor time
Bill Rule Time cap consumed
------------------------------------------------------------------------
H.R. 1036....................... H. Res. 299 4 hour 75 min.
H.R. 2108....................... H. Res. 428 3 hour 2 hrs 25 min.
H.R. 3433....................... H. Res. 516 3 hour 80 min.
H.R. 4799....................... H. Res. 551 4 hour 70 min.
H.R. 5044....................... H. Res. 562 4 hour 3 hrs 20 min.
------------------------------------------------------------------------
III. Bottom line: look at Committee of the Whole rising.
In the 103rd Congress, there was not a single case in which the full time allotted was consumed. That means no one in the 103rd Congress was shut out by a time cap. No Member with a germane amendment to a bill considered under a time cap was denied the opportunity to offer because the time has expired.
Before the Committee rose, on each of the time-cap rules in the 103rd Congress, the Chair asked, ``Are there any additional amendments?'' and then said, ``If there are no further amendments, under the rule the Committee rises.''
In the 104th, on each and every time-cap rule so far, the Chair has been forced to state that all time for consideration of amendment has expired. In each and every case, there were identifiable Members with preprinted amendments that were shut out--3 on risk assessment, 15 on regulatory moratorium; 8 (with 9 amendments) on defense revitalization; 10 on law enforcement block grants. Who knows how many others who did not print their amendments in advance were shut out?
Mr. BEILENSON. Mr. Speaker, as these charts show, last Congress, no Members were precluded from offering amendments under rules with time limits on amendments; this Congress, at least 36 Members have been denied the opportunity to offer amendments to five bills which have been considered recently, even though their amendments were preprinted in the Congressional Record.
[[Page H2462]] During consideration of this rule in the Rules Committee yesterday, we offered an amendment to strike the 10-hour time limit on the amendment process, since it was our first preference not to have any time limit at all. That amendment was rejected on a straight party-line vote.
We also offered an amendment to exclude time spent on recorded votes from the ten-hour limit that was originally proposed. Instead of accepting that change, the rule was amended to provide for twelve hours for the amendment process.
While we appreciated getting 2 more hours, the inclusion of the time it takes to hold recorded votes is still a problem for us. If voting time is not excluded, sponsors of amendments are put in the uncomfortable position of having to choose between seeking a recorded vote, or foregoing a recorded vote in order to increase the likelihood that other Members will get a change to offer their amendments. It is simply not fair to put Members in that position.
The argument that was made against excluding voting time from the time limit was that such a change would encourage dilatory tactics--
that opponents of the bill would call for recorded votes on every amendment. But, in fact, by not excluding voting time, a parliamentary tactic of another sort can be employed by the bill's proponents--and, in fact, has been.
Three times during consideration of amendments to the Regulatory Transition Act, Members who agreed with the outcome of the amendments on voice vote nonetheless called for recorded votes in order to consume time allotted for considering amendments.
Mr. Speaker, we have other objections to the rule besides the time limit.
First, we have very serious concerns about the Budget Act waivers that are included in this rule. This rule contains four waivers of the Budget Act against consideration of the bill and three against consideration of the committee substitute. In both cases, two of the waivers represent violations of the most important safeguards that our Budget Act provides against increasing federal budget deficits.
One of those safeguards is Section 302(f), which prohibits consideration of measures that would cause the appropriate subcommittee or program-level ceiling to be breached. This is the provision which keeps committees from reporting bills that spend more money than they are allocated to spend under our budget resolution.
The other important safeguard is Section 311(a), which prohibits consideration of legislation that would cause the new budget authority or outlay ceilings to be breached. This is the provision that keeps the House from considering legislation that exceeds total spending allowed under the budget resolution.
This bill requires these waivers because in its current form, as Mrs. Waldholtz correctly pointed out, it creates a new entitlement--a new expenditure of an unknown amount to compensate property owners who are able to claim that their property has been subjected to a regulatory taking.
Although the Canady substitute would eliminate the need to waive the Budget Act, I think it is important for Members to understand that the legislation made in order by this rule seriously violates the rules we have established to prevent us from spending more money than we have agreed to spend under our existing budget resolution.
Moreover, the Canady substitute, while technically eliminating the entitlement to compensation, will not change the fact that this legislation could be extremely expensive. The Statement of Administration Policy on this bill states that ``preliminary estimates indicate that the effect of this bill would be to increase the deficit by at least several billion dollars during fiscal years 1995-1998.''
We also object to the procedure for amending this bill that will result from making the Judiciary Committee substitute in order as original text, rather than the Canady substitute. In effect, the rule cuts off one degree of amendment, which limits the opportunities to change the Canady substitute.
Members need to be ready to offer amendments both to the Canady substitute, and to the Judiciary Committee substitute, which is the original text. This is a parliamentary situation that could cause a great deal of confusion--and cost some precious time--as we work through the amendment process.
Finally, Mr. Speaker, we have grave reservations about the bill itself that this rule makes in order.
As we will hear in the ensuing debate, the Private Property Protection Act would severely limit the government's ability to respond to the public's demand for laws ensuring health and safety, and we believe it will have severe and unintended policy and fiscal consequences.
Mr. Speaker, I urge a ``no'' vote on this rule.
Mr. Speaker, I reserve the balance of my time.
Removal of Name of Member as Cosponsor of H.J. Res. 2.
(By unanimous consent, Mr. Hilleary was given permission to speak out of order.)
Mr. HILLEARY. Mr. Speaker, I ask unanimous consent to have my name removed as a cosponsor of House Joint Resolution 2.
The Speaker pro tempore (Mr. Goodlatte). Is there objection to the request of the gentleman from Tennessee?
There was no objection.
Mrs. WALDHOLTZ. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, before I yield to the chairman of the Committee on Rules, I would like to correct something that is perhaps a misstatement by my colleague on the Committee on Rules, the gentleman from California [Mr. Beilenson].
That is that I did not believe that the base bill created an entitlement, but there was a question as to interpretation of the language. That is the reason that we are bringing forward a rule that requests budget waivers, so that in the case it was determined through a reading of the bill with which a number of us disagree that entitlement was created by this bill, that we can consider the bill and move to an amendment that will clarify that no entitlement is being created.
I wanted to clarify that before we move forward.
Mr. Speaker, I yield such time as he may consume to the gentleman from New York [Mr. Solomon], chairman of the Committee on Rules.
Mr. SOLOMON. Mr. Speaker, I thank the gentlewoman, for yielding time to me.
Mr. Speaker, I will not take time to explain the rule, because it has been more than adequately explained by the gentlewoman from Utah. I would like, however, to speak later about the merits of the bill this rule makes in order, but first I would like to speak to the fairness issue.
Mr. Speaker, this modified open rule for the Property Protection Act is the 19th rule issued by the Rules Committee on legislation in this 104th Congress.
Of those 19 rules, 16 or 84 percent have been open or modified open rules and only 3 have been modified closed.
Compare this, if you will, to the 103d Congress in which only 44 percent of the rules were open or modified open and 56 percent were closed or modified closed.
And yet the Democrat minority this year, the same people who foisted all those restrictive rules on us, are now complaining about modified open rules that only place an overall timecap on the amendment process.
Mr. Speaker, I have gone back and looked at the first 17 rules issued by the Rules Committee in this Congress and the last Congress to find-
out how different the amendment process has been on this House floor.
What I found is truly an eye-opening contrast between the way the Democrats ran things and the way we Republicans are running things.
Mr. DREIER. Mr. Speaker, will the gentleman yield?
Mr. SOLOMON. I am glad to yield to the gentleman from California.
Mr. DREIER. Mr. Speaker, I would just like to ask the chairman to reiterate one very important figure. Would my colleague share again the number of open and modified open rules that we have had in the 104th Congress, juxtaposed to what happened in the 103d Congress?
[[Page H2463]] Mr. SOLOMON. Mr. Speaker, again, with the amendments that we have offered under the rules we brought to this floor, truly 84 percent of them were open, 84 percent have been open, compared to 70 percent that we closed down last term.
Mr. DREIER. In the 103d Congress. I thank my friend for yielding. It is a very important point that needs to be reiterated.
Mr. SOLOMON. Mr. Speaker, let me just dramatize that a little bit, without taking up too much time.
In the Democrat-controlled 103d Congress, again, let me just say that if we look at those first 17 rules in the last Congress, we will find that there were just 4 that were open and the other 13 were closed or modified.
In the Democrat-controlled Congress, of those 13 rules on which the Committee on Rules made amendments in order, listen to this, only 52 amendments were allowed, while 219 amendments filed with the committee were denied. That means that 219 Members of this Congress were literally gagged, and many of them from Members on the Democrat side of the aisle, conservative Democrats.
While my minority colleagues like to lament about how many amendments could not be offered due to the time caps, I suspect it is nowhere near the 219 shut out by the Committee on Rules in the last Congress on the first 17 rules.
Moreover, if you take a very close look at the amendments offered in this Congress, I think you will see that the Democrats are doing quite well, especially the conservative Democrats who are smiling like Cheshire cats, I see one sitting over here right now, look at that smile on his face, because they are no longer gagged by their own Democrat leadership.
Of the 180 amendments offered, 49 were by Republicans and 181 by Democrats. Of those 180 amendments, 94, or roughly half, were adopted, and listen to this, including 50 by Democrats. In other words, 53 percent of the amendments adopted in this Congress have been offered by Democrats and just 47 percent by Republicans, so I do not really understand all this whinning and complaining from the other side about how they are somehow being unfairly treated in this amendment process, when they have offered 73 percent of the total amendments considered and can take credit for 53 percent of the amendments adopted.
Mr. Speaker, let me just conclude by saying to those who complain that the glass is only one-fifth empty. I want them to cheer up and consider just how full that glass really is. We are all benefiting from a legislative process that is both fuller and more open then it has ever been in some two decades. Think about that.
I am very proud of our leadership and of our Committee on Rules for allowing such an open and deliberative process in this new House.
Mr. Speaker, I include for the Record the following extraneous material:
AMENDMENTS OFFERED TO BILLS IN HOUSE UNDER SPECIAL RULES, 104TH CONGRESS
----------------------------------------------------------------------------------------------------------------
Bill and subject Rule and type Amendments offered Adopted Rejected
----------------------------------------------------------------------------------------------------------------
H.R. 5--Unfunded H. Res. 38--Open........ 53 (R:7;D:46)...... 17 (R:7;D:10)...... 36 (R:0;D:36)
Mandates. H.J. Res. 1--Balanced H. Res. 44--Mod Closed.. 6 (R:2;D:4)........ 2 (R:2;D:0)........ 4 (R:0;D:4)
Budget. H.R. 101--Land Transfer. H. Res. 51--Open........ 0.................. 0.................. 0 H.R. 400--Land Exchange. H. Res. 52--Open........ 0.................. 0.................. 0 H.R. 440--Land H. Res. 53--Open........ 0.................. 0.................. 0
Conveyance. H.R. 2--Line Item Veto.. H. Res. 55--Open........ 17 (R:3;D:14)...... 6 (R:2;D:4)........ 11 (R:1;D:10) H.R. 665--Victim H. Res. 60--Open........ 1 (R:0;D:1)........ 1 (R:0;D:1)........ 0
Restitution. H.R. 666--Exclusionary H. Res. 61--Open........ 6 (R:0;D:6)........ 5 (R:0;D:5)........ 1 (R:0;D:1)
Rule. H.R. 667--Prisons....... H. Res. 63--Mod. Open... 23 (R:11;D:12)..... 14 (R:11;D:3)...... 9 (R:0;D:9) H.R. 668--Alien H. Res. 69--Open........ 5 (R:4;D:1)........ 5 (R:4;D:1)........ 0
Deportation. H.R. 728--Law Block H. Res. 79--Mod. Open... 19 (R:7;D:12)...... 13 (R:6;D:7)....... 6 (R:1;D:5)
Grants. H.R. 7--National H. Res. 83--Mod. Open... 17 (R:5;D:12)...... 11 (R:4;D:7)....... 6 (R:1;D:5)
Security Act. H.R. 831--Health H. Res. 88--Mod. Closed. 1 (R:0;D:1)........ 0.................. 1 (R:0;D:1)
Deduction. H.R. 830--Paperwork H. Res. 91--Open........ 5 (R:2;D:3)........ 3 (R:2;D:1)........ 2 (R:0;D:2)
Reduction. H.R. 889--Defense H. Res. 92--Mod Closed.. 1 (R:0;D:1)........ 0.................. 0
Supplemental. H.R. 450--Regulatory H. Res. 93--Mod. Open... 15 (R:2;D:13)...... 11 (R:2;D:9)....... 4 (R:0;D:4)
Transition. H.R. 1022--Risk H. Res. 96--Mod. Open... 11 (R:6;D:5)....... 6 (R:4;D:2)........ 5 (R:2;D:3)
Assessment. H.R. 926--RegFlex....... H. Res. 100--Open....... ................... ................... ..................
H.R. 925--Property H. Res. 101--Mod. Open.. ................... ................... ..................
Protection.
-------------------------------------------------------------
Totals............ ........................ 180 (R:49;D:131)... 94 (R:44;D:50)..... 86 (R:5;D:81)
----------------------------------------------------------------------------------------------------------------
Source: Congressional Record, Daily Digest.
Mr. SOLOMON. Mr. Speaker, I yield to the gentleman from California.
Mr. DREIER. I thank my friend for yielding.
Mr. Speaker, I would simply like to compliment him on an excellent statement; the fact that within the past 56 days we have seen the kind of openness when it comes to amendments, debate, the opportunity to participate in the process that has not existed for years and years and years, not just the 103d, Congress, but for, unfortunately, several Congresses before that.
Mr. Speaker, I think Members on both sides of the aisle have been able to benefit from that degree of openness. I think it is very unfortunate that some in the minority today are trying to claim that we have been more restrictive than they have been, and I think that the very important figures that the chairman of our committee has provided clearly show that the openness has existed under the 104th Congress, and I know under his leadership it is going to continue.
Mr. SOLOMON. The gentleman can count on it.
Mr. Speaker, let me rush to the bill itself because it is so very important.
On this particular rule today we begin consideration of one of the most important elements of the Contract With America, and that is, the Private Property Protection Act, more commonly known as the takings bill.
Mr. Speaker, the fifth amendment to the United States Constitution includes the following language: ``nor shall private property be taken for public use without just compensation.'' The problem is that the courts have interpreted that language so narrowly that it does not adequately protect private property owners from loss in value due to some burdensome Federal regulations.
The bill before us today is designed to establish as policy of the Federal Government the proposition that no law and no agency action should limit the use of privately owned property so as to diminish its value, and this is the key, ``Without fair compensation for that lost value.''
{time} 2045
Mr. BEILENSON. Mr. Speaker, for the purposes of debate only, I yield 4 minutes to the distinguished gentleman from Minnesota [Mr. Sabo].
Mr. SABO. Mr. Speaker, I rise in strong opposition to this rule because of the long list of Budget Act waivers it contains.
These Budget Act waivers are needed because H.R. 925 creates a massive new entitlement program.
Under the bill, property owners who successfully claim that the value of their property has been diminished by a government regulatory action would be entitled to compensation. The new right to payments would be enforceable through binding arbitration or in court. Payments would be required even for regulatory actions that the government is absolutely required to take under other existing laws.
The cost of this new entitlement program is difficult--if not impossible--to calculate with precision, but the cost could be extremely large. Under the bill, landowners would have an incentive to apply for all sorts of Federal
[[Page H2464]] permits--even for actions they never previously planned to take. If any of the permits were denied, the landowner would be entitled to a check.
Compensation would be due even when the Government was simply denying permission for an activity that the landowner knew would not be allowed when he acquired the land.
The Office of Management and Budget states that ``preliminary estimates indicate that the effect of the bill would be to increase the deficit by at least several billion dollars during fiscal year 1995 through 1998.''
The Congressional Budget Office cost estimate says that CBO has not yet completed its analysis of the costs of this legislation, but that those costs could be significant.
The report of the Rules Committee acknowledges that H.R. 925 creates a new entitlement, and that this entitlement requires numerous Budget Act waivers. In fact, the rule is waiving almost every major provision of the Congressional Budget Act.
It waives section 302(f)--the point of order against bills that breach the allocations of spending authority to committees. It waives section 311(a)--the point of order against bills that breach the ceiling on total spending set by the budget resolution. It waives section 308--the rule that requires committee reports on new entitlement bills to disclose and justify the new entitlement.
And finally it waives section 401(b)--the point of order against new entitlements effective before the start of the new fiscal year.
This rule marks at least the fifth time this year that our Republican colleagues have asked us to waive or circumvent the Budget Act.
Ironically, many of the same Republicans who denounced Budget Act waivers in previous Congresses are now supporting waivers in this Congress.
We should not be repeatedly waiving our basic budget controls--and especially not for bills like H.R. 925 that have the potential to be huge budget busters. I therefore urge defeat of this rule.
Mrs. WALDHOLTZ. Mr. Speaker, I am pleased to yield 3 minutes to the gentleman from Florida [Mr. Goss], my colleague on the Committee on Rules.
(Mr. GOSS asked and was given permission to revise and extend his remarks.)
Mr. GOSS. Mr. Speaker, I thank the gentlewoman from Salt Lake City, UT, for yielding me this time.
Mr. Speaker, the conflict between private property and ``public well-
being'' is as old as government itself. The takings issue is a complicated subject that cannot be resolved with one bill; in fact, it's fanciful to believe that the legislative branch of the Federal Government alone can solve all our private property rights problems.
Land use and zoning cases by their nature are unique, and are best considered on a case-by-case basis at the local level, sometimes with the assistance of the courts, not through some one-size-fits-all Federal formula. Mr. Speaker, the rule we are considering is itself unique--and probably not one we can expect to see on this floor very often. But after we get past the technicalities, it is
clear that this rule is well crafted to allow a fair debate on the takings issue--as we promised in the Contract With America. I am pleased that this rule allows us to immediately consider two improvements to H.R. 925: the Canady substitute and the Tauzin amendment.
The substitute offered by my friend from Florida fixes several of the potential budget conflicts in the bill, including an important clarification that H.R. 925 would not, repeat not, create a new entitlement whatever ambiguity there may have been. The Tauzin amendment will limit the scope of the bill to just four specific areas: endangered species, wetlands, water draining and food safety.
In addition, the Rules Committee voted to extend the open amendment process to 12 hours, a full dozen, and I hope that colleagues will take advantage of that time to make further improvements to this bill. For instance, I am very concerned about the practicality and affordability of the 10-affected-property threshold in this bill; I intend to offer an amendment to raise this threshold to 30 percent of total parcel market value.
I also look forward to debating the Gilchrest/Wyden proposal, which focuses on the negative impact that questionable development can have on individuals' private property rights--questionable development that could be allowed, if not encouraged, under H.R. 925.
Messrs. Porter/Ehlers/Farr may offer a measure that would replace the potentially costly and unwieldy compensation formula in H.R. 925 with comprehensive Federal agency reporting requirements.
Mr. Speaker, I have much front-line experience with the takings issue--from zoning board, planning commissions city council, county commission, State planning boards, court cases, and Federal agency hearings, ad infinitum. I confidently predict that this will not be the last takings debate we have in this body. As the coming debate will show, there are very unhappy people on both sides of this issue. H.R. 925 is not a magical fix because there is no magical fix--trying to strike a balance is as close as we will come to a real solution. I urge support of the rule so that we can move forward with this important debate.
Mr. BEILENSON. Mr. Speaker, for purposes of debate only, I yield 4 minutes to the gentleman from Oregon [Mr.Wyden].
Mr. WYDEN. Mr. Speaker, I thank the gentleman from California for yielding me this time. I want to commend the gentleman from Florida, the previous speaker, for his balanced statement. It seems to me, Mr. Speaker, when most Americans look at the title of the bill, they see this sweeping name, ``the Private Property Protection Act,'' and they walk away and believe that this bill protects all of our citizens. The fact of the matter is that this legislation protects only a limited group of private property owners, those property owners whose use or development of their property is regulated by the Federal Government.
The typical homeowners in our country, and there are 65 million of them, want to continue to enjoy the use of their property even when the Federal Government is not involved in regulating it. I believe that the typical homeowner is not fairly represented in this legislation, and on a bipartisan basis, the gentleman from Maryland [Mr. Gilchrest] and I will try to correct this legislation to make sure that the voice of that typical homeowner is heard.
One way that we could go about doing that, and making sure that the typical homeowners got a fair shake would be to expand the exceptions when compensation is not paid. Right now the legislation provides two exceptions when agencies do not have to pay compensation for agencies' actions that diminish the value of private property. The first is when the agency action prevents a public health or safety hazard, the second is when it prevents damage to specific property.
It would also be helpful to make sure that these 65 million typical homeowners in our country get a fair shake to create a third exception when agencies do not have to pay compensation, and this would apply when the agency's action would prevent or restrict any activity likely to diminish the fair market value of private homes.
This amendment would enable agencies to avoid having to make a Hobson's choice of either restricting development and incurring liability to the developer or allowing the development to proceed and have those homeowners in our country suffer the devaluation of their property.
When agencies take action to protect the value of private homes they would not incur liability to developers whose ability to develop their property is limited by the agency's action.
In contrast to H.R. 925, this approach also provides protection for homeowners in situations where there has been no physical damage to homeowners' property but the market value is likely to be diminished by development activity adjoining the home. This would be the kind of situation where we would have the filling of a wetland that would increase the risk of flooding the homes, but there has not yet been any damage.
What it comes down to, I would offer to may colleagues, is that the gentleman from Maryland [Mr. Gilchrest] and I hope that this legislation can have a bit more balance.
[[Page H2465]] I would like to stipulate, and my seatmate from Louisiana on the Committee on Commerce has made this case over the year, that there are takings and there are takings that warrant compensation. But let us before we finish this bill make sure that the 65 million typical homeowners who use their property in a fashion that is not regulated by the Federal Government get the same voice in this legislation as those developers and others who also deserve a fair treatment and likely to get it under this bill.
Mr. Speaker, I look forward to working with my colleagues to ensure that this legislation has a bit more balance, and that the voice of the typical homeowner is heard.
Mrs. WALDHOLTZ. Mr. Speaker, I am pleased to yield such time as he may consume to the gentleman from Florida [Mr. Canady], the author of the amendment that will show this is not a new entitlement, that this is not a budget buster that requires agencies to pay out of existing funds for the harm that they cause.
Mr. CANADY of Florida. Mr. Speaker, I thank the gentlewoman for yielding me this time.
Mr. Speaker, I rise today in support of the rule on H.R. 925.
Regulatory restrictions on private property have increased dramatically in the 20th century, but the question of who pays for the public benefit that ensues from the regulations has not been adequately addressed. H.R. 925 is the answer to the question of who should pay for benefits to the general public.
The act provides for the Federal Government to pay compensation to those individual property owners who are singled out to bear the cost of intrusive regulation that benefits the public at large.
I believe the rule allows a generous amount of time for amendments and encourages a productive floor debate on amendments to this important legislation.
Under the rule we will first take up a substitute amendment which I will offer, and then we will consider Mr. Tauzin's amendment to my substitute. Together, these amendments form a bipartisan compromise on the Private Property Protection Act.
The compromise sets the threshold diminution in property value required for compensation at 10 percent of the portion of property affected and allows a property owner to force the Federal Government to buy the portion of property affected outright if that portion's value is diminished by 50 percent or more.
The compromise also narrows the scope of the legislation to cover only agency actions taken under the Endangered Species Act, wetlands regulations, and specific statutes relating to water rights.
Members on both sides of the aisle who value property rights support this compromise legislation.
I urge my colleagues to support this open rule so that we can move forward with consideration of this important issue.
{time} 2030
Mr. BEILENSON. Mr. Speaker, for purposes of debate only, I yield 4 minutes to the distinguished gentleman from Michigan [Mr. Conyers], the ranking minority member on the Committee on the Judiciary.
Mr. CONYERS. Mr. Speaker, I rise to oppose this rule.
At a time when the Senate is considering passage of the balanced budget amendment, here comes the new majority proposing a massive new spending program. The only way it can do that is to waive nearly every budget rule.
This rule waives budget rules restricting new entitlements. The rules say that a committee cannot enact new entitlement authority beyond that allocated by the budget resolution. This rule waives that budget discipline requirement in the Budget Act.
Current rules requires legislative reports accompanying legislative reports on bills creating new authority to fully explain the entitlement implications. This rule waives that requirement.
Budget Rules require that any new entitlement spending conform with total outlays or make the proper adjustments. This rule waives that.
Budget rules prevent new entitlements too late in a fiscal year to make other needed budgetary offsets. This rule waives that.
Want some more? Let us try the appropriations side.
House rules prevent appropriations authority in legislative bills. This rule waives that.
House rules require germaneness of amendments and substitutes. Republican members have argued the need for strict adherence on germaneness for decades. This rule waives germaneness requirements.
Mr. Speaker, the only people being ``taken'' by this taking bill are the American people. This bill will be a massive raid on the Treasury. Its costs are so incalculable, that even CBO said that its costs, while unscorable because of the speculative nature of future agency actions, could be enormous. The bill will allow for potentially tens of thousands of claims against the Government, legitimate and illegitimate, and for endless attempts to raid the U.S. Treasury just when Congress has promised to bring it into balance.
The bill would also require a vast new bureaucracy. Someone is going to have sift through the thousands of claims against the Government. Administrative proceedings will have to be held to adjudicate claims. New bureaucracy will spring up everywhere. At a time when the Clinton administration has reduced the Federal bureaucracy beyond that accomplished by any Republican presidency, this bill will create a massive new bureaucracy to process what could easily become hundreds of thousands of claims that would ensure any such act.
Better this bill be entitled the ``Bureaucrats and Lawyers Relief Acts?'' Just for the price of a 32-cent stamp, anyone who believes that any governmental action reduced his property value by more than 10 percent could trigger a vast bureaucracy into motion to determine how much compensation should be paid. Imagine all the new jobs for assessors, evaluators, arbitrators and--of course--lots and lots of lawyers. There will be mounds of new paperwork and swirls of new red tape: all leading clearly to more government, not less.
And what bothers me most is the likelihood that many of these claims could be fraudulent ones. This bill sets up the possibility that greedy land speculators could make false claims on the United States saying that actions deprived them for use of property that they never intended to use in the stated fashion.
Mr. Speaker, if you want to waive every budget rule imposing discipline, if you want to raid the Treasury, increase bureaucracy, set up a situation for swindlers scheming against the U.S. Government, then this rule is for you.
Mrs. WALDHOLTZ. Mr. Speaker, I yield 3 minutes to the gentleman from Maryland [Mr. Gilchrest].
Mr. GILCHREST. Mr. Speaker, I support the rule because I think it offers an opportunity for us to debate this most controversial bill and this most controversial topic. I will say a couple of things before we get lost in the debate as to the importance of some of the issues that will be raised, I am sure, tonight and tomorrow. All of us understand that the fifth amendment protects property rights. I say, ``If your property is taken away for the public good, you should be compensated. There is no question about that. The question, I guess, arises, if your property is regulated to prevent public harm, should you be compensated? My judgment on this, based on the fifth amendment, is that you should not be compensated.''
Now there is something else that may get lost in this debate, and that is the importance because we are going to focus in a little while on wetlands and endangered species. Let us not throw the baby out with the bath water. Wetlands provide an invaluable service to us in this country for a number of reasons: filtration into waterways. It offers habitat for a variety of species. It is, at last in my district, very important economically.
Also there is the fact of biodiversity and how useful that is to maintain the quality of our lives in many areas, one of which is medicine. Biodiversity offers us a whole series of opportunities to cure diseases like cancer, dreaded problems of depression, glaucoma, heart disease. All of these come from the natural environment. So, when we
[[Page H2466]] are talking about the endangered species, when we are talking about the takings bill tomorrow, it is vitally important for us to understand the nature of our existence on this planet, and let us not give away the thing that we need to hold on to, the quality of our life, and that is biodiversity on the planet.
Tomorrow the gentleman from Oregon [Mr. Wyden] and I will be offering an amendment which seeks to provide home owners. If we are going to be to the point where we are going to compensate people through this legislation, we also need to make sure that we provide home owners with a means to obtain compensation from polluters whose action adversely affects their property. In cases where federally permitted polluting action has direct impact on a person's home, that person should be able to be compensated by the polluter who reduced the value of their property. If we are going to provide compensation to people whose property values are compromised by Federal requirements that they not pollute, then the least we can do is to provide compensation to those whose property values are hurt by the resulting pollution.
Mr. Speaker, I cannot imagine a bill which fails to protect the property rights of the Nation's 65 million home owners can seriously be called a property rights bill. Our constituents have the right to be secure in the knowledge that the Federal Government will protect their property from the polluting effect of others.
I say to my colleagues, ``When we deal with this issue, let's deal with it in a very comprehensive way. Let's understand that the Endangered Species Act protects biodiversity, which is the quality of our lives, yet there are many good positive functions for wetlands, and there are many more home owners out there who don't seek Federal permits that should be protected by our actions.''
Mr. BEILENSON. Mr. Speaker, for purposes of debate only, I yield 5 minutes to the gentleman from California [Mr. Farr].
Mr. FARR. Mr. Speaker, I rise in strong apposition to the rule.
We are here tonight to debate the rule. I think in the opening we heard how complex this rule has been. What was not explained is that this rule really violates the law.
The bill is a very serious issue. It opens a major debate and changes existing law. The existing law deals with takings, this bill deals with givings, and in that it is a budget buster. It is the biggest waiver in the history of the Budget Act. It is a violation of the Budget Act. If we are serious about the issue, then we have got to be honest about the consequences.
The Committee on Rules knew this bill was so controversial that they just waived all of the provisions. The bill, as reported by the committee, creates an entitlement because it creates a right to payment regardless of whether appropriations are available on the budget. The basic rule of the Budget Act is that new entitlements have to be provided for in the budget resolution or they have to be paid for. This bill does neither.
Accordingly, Mr. Speaker, it violates, the rule, section 302(f), the basic rule that any new spending bills have to be within the committee spending allocation. The Committee on the Judiciary has zero allocation for entitlement authority.
Section 311(a) is the rule against bills that breach the total ceiling on spending set by the budget resolution. We have no cost estimates.
It violates section 308, the reporting requirement. Every bill must have a spending report. I say, ``When you have a bill, committee report, it should compare the spending, disclose and justify new spending, but the Committee on the Judiciary report on the Canady bill does really none of these things. The explanation in the report is that the CBO report was not complete, but duty lies with the committee, not with the CBO.''
It violates section 401(b) which prohibits new entitlements before October 1.
OMB cost estimates are that several billion dollars during the fiscal years 1995-98 will occur. In fact, Mr. Speaker, let me read the Executive Office of the President, the Office of Management and Budget, and their statement on here is that the administration strongly supports property rights and is continuing to implement regulatory reforms that will provide relief to property owners. However H.R. 925, as reported by the Committee on the Judiciary, would impose, without regard for the Government's important role in protecting the general welfare, an arbitrary compensation requirement for reductions in property values attributable to regulatory or other actions by Federal agencies. This is unacceptable and an extreme requirement.
First, it seriously undermines the Federal Government's ability to protect the general welfare. Second, it imposes an almost unlimited fiscal burden upon the American taxpayer. Third, it creates a potentially costly new direct spending program as well as a new and costly Federal bureaucracy to evaluate compensation claims. Fourth, it supplements 200 years of constitutional jurisprudence under the fifth amendment.
For these reasons the administration strongly opposes H.R. 925. The administration is prepared to work with Congress to provide relief and does not impose new burdens on the American taxpayer which would create new bureaucracy, or costly spending programs, or threaten the public welfare.
Pay-as-you-go scoring: H.R. 925 would affect direct spending. Therefore it would be subject to pay-as-you-go requirements of the Omnibus Reconciliation Act of 1990. Preliminary estimates indicate that the effect of the bill would be to increase the deficit, increase the deficit by at least several billion dollars in the fiscal year 1995 through 1998.
The bill does not contain provisions to offset the increased deficit spending. Therefore, if the bill were enacted, its deficit effect would contribute to a sequester of the mandatory programs. Such a sequester would force automatic reductions in Medicare, veterans readjustment benefits, various programs providing grants to States, child support administration, farmer income and price support payments, agricultural export promotion, student loan assistance, foster care and adoption assistance, and vocational rehabilitation.
This estimate is based upon a preliminary analysis and is likely to increase as agencies analyze the bill's full effect. Thus final scoring of this legislation may deviate from this estimate.
In closing I urge defeat of the rule.
{time} 2045
Mrs. WALDHOLTZ. Mr. Speaker, I am pleased to yield three minutes to my colleague the gentleman from Farmington, UT [Mr. Hansen].
(Mr. HANSEN asked and was given permission to revise and extend his remarks.)
Mr. HANSEN. Mr. Speaker, most of us who have come to this place have come out of the city councils, the county commissions, the state legislative bodies. In those particular bodies we had the right to practice eminent domain. If we needed some place for a water system or a road or whatever it my be, we would have that ground in a matter of minutes and we would take that ground over. But it may take months and years before we paid the property owner. We would haggle it in court, but eventually we would have to pay the person because we took his land.
Today we are now looking at things where people have thought of a way around that. We have the 1973 Endangered Species Act; we have the Wetlands Act. And now we take a person wherever he may be in this United States and we walk in and say we just found the desert tortoise on your ground, or there is a wetland there.
In my little state of Utah there is a grape farmer, a fourth generation farmer in a little place called Clearfield, poor old Joe Jenson. Joe made the mistake of letting his irrigation system break, and in two years there were wetlands around.
For four generations they farmed that area, but in swaggered the Corps of Engineers with the swagger stick and said ``Mr. Jenson, if you farm this, we are going to charge you $17,000 thousand a year.'' Mr. Jenson said ``I have been doing this for years. My father and grandfather did it. What are you talking about?'' But Mr. Jenson is no longer farming his property.
[[Page H2467]] All up and down this great country, in the Mississippi Delta and other areas, you hear more horror stories on the takings for wetlands or endangered species than you do on food stamps. Every day there is a new one in my office.
Let us not be deceived by saying this is a raid on the budget. This is a raid on people who own ground, and they have a right to use it. Little by little the extremists have taken this over, and no longer can we use it the way we wanted to.
Government trying to take property for their use without paying, this is not new. The first recorded attempt at a taking occurs in the Bible, in I Kings, Chapter 21. King Ahab wanted Naboth's farm, but he would not sell it to the king. So Queen Jezebel by official decree ordered him stoned to death, and Ahab had his farm.
Well, now, the only difference in this story I want my colleagues to see is they first wanted to buy it. They first wanted to pay for it. But, no, they would not take it, so they took it away from him.
In walks the Secretary of Interior in my little place in Cedar City, Utah, and says, ``Sure, we will buy it from you.'' And the man said,
``I paid 30 thousand dollars an acre for it 10 years ago, and I intend to develop it.'' They say, ``It is not worth that anymore because we found the slimy slug,'' or whatever it is on it, I can't remember the species, ``but we found that on the property, so therefore we will give you $600 for it.''
You people say that is a raid on the budget? You are taking the man's farm. You are taking the man's property. My goodness gracious, is not this Constitution supposed to take care of people, the private property owner?
Mr. Speaker, I rise in support of this great rule we have got here and also of the bill. Let us take care of these people that we have pushed around and not given them just compensation.
Mr. BEILENSON. Mr. Speaker, I yield 3 minutes to the gentleman from Louisiana [Mr. Tauzin].
Mr. TAUZIN. I thank the gentleman for yielding to me.
Mr. Chairman, I rise in support of the rule under which we are finally going to take up the issue of private property rights in this body in an affirmative way that I hope will lead to a victory for the private property owners of America against the uncompensated takings by the Federal Government.
The opponents of this rule have complained that the rule waives the rules on entitlements, budgets and appropriations. Let me tell you why. It is the Fifth Amendment of the Constitution which creates the entitlement here. It says ``Nor shall private property be taken for public purposes without just compensation.''
Property owners in America are entitled to that compensation when their property is taken by virtue of the civil right guaranteed in the fifth amendment of the Bill of Rights of the U.S. Constitution.
To my friend from Maryland who says he does not think they deserve compensation, he happens to disagree with the Supreme Court in the case of Lucas, which said that the right of compensation for wetlands taken is guaranteed under that fifth amendment. He disagrees with the case of Dolan versus the City of Tigert, a Supreme Court decision of just last year, which said in effect that the right to receive compensation for government takings by regulation is a right as sacred as the rights guaranteed of free speech, free religion, free press, assembly, and all the sacred civil rights contained in our Bill of Rights; no less sacred than any one of the others. In fact, the Court said it is not a distant cousin. It is entitled to the same respect and dignity as any one of those other rights. So maybe my friend has not read the Supreme Court decision.
When we debate this bill tomorrow, I will be offering an amendment, an amendment to limit this bill to the central acts that we have been debating for the last several Congresses when my friend the gentleman from Texas, Jack Fields, and I, have led the effort to get this body one day to consider the obligation of this government to compensate private property owners for government regulatory takings.
We will offer an amendment to limit the scope of this bill to the issues we have debated for several Congresses now in an effort to get it before this floor. The bills involved the Endangered Species Act and the wetlands controls under the 404 section of the Corps of Engineers Clean Water Act, and the sodbusters provision of the Food Security Act. And we will also provide in our amendment protection for water rights out West, which to westerners are as sacred as land rights are to easterners.
Let me tell my friend from Oregon who spoke earlier, this bill protects every property owner in America, particularly the small property owners who cannot afford a trip to the Supreme Court, as some have had to do, at $500,000 of court costs and legal fees. Every property owner ought to have a chance at home to get the remedies and the rights he is due or she is due under our Constitution and the Fifth Amendment. That is why we will debate tomorrow. I hope this rule passes and we get that chance.
Mr. BEILENSON. Mr. Speaker, I yield the balance of my time to the gentleman from Minnesota [Mr. Vento].
(Mr. VENTO asked and was given permission to revise and extend his remarks and include extraneous matter.)
Mr. VENTO. Mr. Speaker, I rise in opposition to the rule and to the bill. This rule I think makes a mockery of the deliberate consideration of matters before this House. This is an issue of significant importance, but yet the Committee on Rules and the committees of this House have chosen to in fact have a deliberate consideration of the various issues that are inherent in this. It touches the most important and fundamental rights of citizens and people of this country.
The problem is, as has been stated, not only is it inconsistent with the Budget Act that we have that was passed in 1974, and subsequently amended, to try and provide and steer the policy path of prudence and protection of the taxpayers' pocketbook in that property right, but it also of course violates the appropriation measures and the idea of appropriating directly on the House floor here, as well as the germaneness rules of this House.
It baffles I think the mind, boggles the mind, that the committees of the House could not sit down and write this up. I mean, we are patching together here two or three amendments made in order which are not germane in terms of trying to understand what the policy direction and some degree of clarity of what is intended here.
The fact is what is going on, of course, is we have split up and subdivided many of the topics and trying to put them back together this way regards to some political contract that is being wrapped in the virtue of property rights. Quite candidly, I think it is a rather transparent veil that hangs over it in terms of what the impact and what the goals are here that is going on.
What is happening is these issues on their merits to be dealt with should be forthrightly dealt with. If you are concerned about the Wetlands Act, I would suggest that the measure, the new majority has the authority to bring that up in the House and debate it, or the Endangered Species Act.
The fact of the mater is the Republican contract, which is so proudly proclaimed a contract with the people, does not in fact mention the word ``environment.'' Yet as you look through the fabric of that contract and the specifics, time and time again a goodly portion of it has a significant adverse impact on what constitutes 25, 30, 40 years of environmental law.
I would just suggest to my Republican colleagues, the new majority in this House, that in all deference, these are not Democratic laws. The reasons that we stayed in a position of responsibility is because we often did respond to these laws which are very important and very significant to the people we represent.
I would just suggest you ought to deal with these issues forthrightly. I think there is a very substantial change that is being perpetrated here in terms of the public, and that is, of course, increasing the cost of doing business. These regulations represent very often, this assault regulation, these regulations represent the wheels on the vehicle that puts laws into effect. Can you not put laws into effect
[[Page H2468]] unless we can sit here and precisely write in detail all of that?
My good friend and colleague Mo Udall used to say there are two kinds of people in Washington, those that don't know and those that don't know they don't know. The Members of the House will be well-advised to recognize the limitations we have and the responsibilities that we give to the Executive in terms of putting laws into effect. These rules and regulations that are being beat about the head these days are the basis of putting laws into effect.
What we are doing here, of course, is trying to write regulations and specifics for the Court with regards to the fifth amendment of the Constitution. I would say in doing that, cutting it out of whole cloth, so-to-speak, and defining what constitutes a property right, a takings, we are doing a great injustice in terms of putting a burden on the Federal Government and limiting its ability to carry out the public good in this country. If that public good is manifested in environmental and regulatory laws, and I know the amendments you have you are going to specifically target in on the environmental laws specified in the Tauzin amendment. I understand that. But I think in terms of doing it and attempting to superimpose this particular ruling and takings, we are doing great injustice and causing great expense on the taxpayers. We should not have to pay the polluters, in essence pay them so they will not pollute, Mr. Speaker. I would ask Members to defeat this rule and this bill.
[From the Minneapolis Star Tribune, Feb. 25, 1995]
Environment--Did America Vote To Trash Regulation?
Did the Republican triumph in last fall's elections mean that voters wanted to eliminate major environmental, public health and safety protections? According to polls and common sense, the answer is no. Instead, the public wants less bureaucracy and more flexible regulation. What they will get if Congress passes the bills sprouting from HR 9, the so-called ``Job Creation and Wage Enhancement Act,'' is less protection for the public, more bureaucracy and higher costs.
Federal regulation and bureaucracy can be burdensome and senseless, as with ``one size fits all'' regulations that impose identical landfill design requirements for dry Arizona and swampy Louisiana. Sometimes the cost to remove the last few parts per billion of a toxic compound from a water supply simply does not justify the expense. And red tape can be voluminous. Business groups have good reason to target reduction of regulations as their top legislative priority.
Reasonable regulations must take appropriate risk-benefit calculations into account. And reasonable regulations must be based on hard science, not public hysteria or political influence. But the solution to an occasional problem is not a wholesale abrogation of 35 years of legislation that has demonstrably improved public and environmental health. Yet that's what the convoluted bills growing out of HR 9 could do. Consider:
Risk/benefit analysis? HR 926 requires an assessment of regulatory costs--but not benefits--before a rule can be promulgated. Health benefits may be difficult to quantify, but it's stupid to leave them out. ``Radical'' organizations such as the American Lung Association are dismayed at the public health disaster such mindless accounting will bring, reminding Congress that current, successful pollution regulations were created only after extensive local efforts failed to curb pollution.
Less bureaucracy? Adding 22 or 23 additional analytical exercises prior to any rulemaking action involves more bureaucracy, not less.
Tort reform to reduce the influence of lawsuits and lawyers? This legislation offers a feast for lawyers wishing to impede regulatory processes. The law allows numerous new avenues for lawsuits including--wildly--suits against individual regulators.
Save money? EPA director Carol Browner estimates that compliance within her agency alone would require nearly a thousand additional employees and $200 million annually. The cost to business and public inefficiency would be much higher.
Cut entitlements? HR 925 would create a whole new entitlement, requiring reimbursement of landowners if their property value was reduced by 10 percent due to a regulation. That's a huge new fiscal burden, and of course no mention is made of requiring private property owners to share with taxpayers the financial benefits they routinely receive as a consequence of government actions.
The bills resulting from HR 9 are overt efforts to gum up Washington, not make it more efficient. Congress should reject such wholesale, ideologically based trashing of this nation's environmental laws, then go about saving business from inappropriate regulation the old-fashioned way: with common sense, one regulation at a time.
Mrs. WALDHOLTZ. Mr. Speaker, most of the debate tonight has centered on budget waivers, and it is appropriate that when we decide to waive the requirement of the Budget Act in a rule, that we take it very seriously.
The new Republican majority in fact takes the budget so seriously that we enacted rule XI, clause 4(e) that states as follows: ``Whenever the Committee on Rules reports a resolution providing for the consideration of any measure, it shall to the maximum extent possible specify in the resolution the object of any waiver of a point of order against the measure or against its consideration.''
We take this seriously, Mr. Speaker. And because we took it seriously, we outlined in this rule every budget waiver that we are asking this body to consider so that we can consider this very important legislation.
But, Mr. Speaker, it has been alleged tonight that this is the most serious waiver of the budget rules that has ever happened to this House. Nothing could be further from the truth.
Mr. Speaker, I refer the House to the survey of activities of the House Committee on Rules of the 103d Congress, the last Congress. In that Congress, 193 rules were offered to this House and passed. Of those 193 rules, 114 rules waived all of the rules of the House. All of the rules of the House, including the Budget Act. This does not even begin, Mr. Speaker, to be the most egregious example.
Now, why are we trying to waive budget rules tonight? Not because we intend to create a new entitlement. We do not. Not because we are going to allow this to be a budget buster. It is not. The reason that we are trying to waive these rules tonight is to allow us to bring forward legislation that will address this, and to make in order an amendment that will make it clear that the authors of this bill did not intend to create a new entitlement, did not intend to add 1 more dollar to the budget deficit or appropriate 1 more dollar to agencies.
What they did intend and what the amendments will establish is that agencies who take the property of private citizens of the United States will have to pay for that property out of their existing budgets.
So, Mr. Speaker, we ask tonight to waive these rules to allow us to bring forward legislation that will make it clear that we are not creating a new entitlement, that we are not adding 1 more dollar to the budget deficit that is far too high already, and that we are not appropriating a single extra dollar to agencies to pay for their invasion of the rights of private citizens.
{time} 2100
What we are doing is bringing forward a rule that allows us to get to this radical idea of making agencies pay through existing funds for the actions that they take. That is the intent of this rule. That is the intent of this legislation, and that is what this rule will provide.
Let me address one other thing, Mr. Speaker. It has been suggested that one of the greatest failings of this bill is there is no estimate from the CBO as to how much this bill will cost.
Mr. Speaker, when these amendments pass that are made in order specifically under this rule, there will be no additional cost. But I would suggest, Mr. Speaker, that the fact that the Congressional Budget Office today does not even know how much we are costing private citizens every year through taking their property is the best argument there is for passing this bill, becuase the Government of the United States, which is here to protect these private citizens, is taking hundreds of thousands, if not millions or billions of property away from private citizens every year without compensating them.
We do not even know, Mr. Speaker, how much we are costing them becuase we have been so cavalier in the past.
Mr. Speaker, this is a fair rule. It is a rule that will allow us to enact the intent of the authors to make agencies compensate citizens through existing funds.
I urge my colleagues to support this rule and the bill.
Mr. Speaker, I include for the Record the following information.
[[Page H2469]]THE AMENDMENT PROCESS UNDER SPECIAL RULES REPORTED BY THE RULES
COMMITTEE,\1\ 103D CONGRESS V. 104TH CONGRESS
[As of March 1, 1995]
------------------------------------------------------------------------
103d Congress 104th Congress
-----------------------------------------------
Rule type Number of Percent of Number of Percent of
rules total rules total
------------------------------------------------------------------------
Open/Modified-open\2\... 46 44 16 84
Modified Closed\3\...... 49 47 3 16
Closed\4\............... 9 9 0 0
-----------------------------------------------
Totals:........... 104 100 19 100
------------------------------------------------------------------------
\1\This table applies only to rules which provide for the original consideration of bills, joint resolutions or budget resolutions and which provide for an amendment process. It does not apply to special rules which only waive points of order against appropriations bills which are already privileged and are considered under an open amendment process under House rules.
\2\An open rule is one under which any Member may offer a germane amendment under the five-minute rule. A modified open rule is one under which any Member may offer a germane amendment under the five- minute rule subject only to an overall time limit on the amendment process and/or a requirement that the amendment be preprinted in the
Congressional Record.
\3\A modified closed rule is one under which the Rules Committee limits the amendments that may be offered only to those amendments designated
in the special rule or the Rules Committee report to accompany it, or which preclude amendments to a particular portion of a bill, even though the rest of the bill may be completely open to amendment.
\4\A closed rule is one under which no amendments may be offered (other than amendments recommended by the committee in reporting the bill).
SPECIAL RULES REPORTED BY THE RULES COMMITTEE, 104TH CONGRESS
[As of March 1, 1995]
----------------------------------------------------------------------------------------------------------------
H. Res. No. (Date rept.) Rule type Bill No. Subject Disposition of rule
----------------------------------------------------------------------------------------------------------------
H. Res. 38 (1/18/95) O................... H.R. 5.............. Unfunded Mandate Reform.. A: 350-71 (1/19/
95). H. Res. 44 (1/24/95) MC.................. H. Con. Res. 17..... Social Security.......... A: 255-172 (1/25/
H.J. Res. 1......... Balanced Budget Amdt..... 95). H. Res. 51 (1/31/95) O................... H.R. 101............ Land Transfer, Taos A: voice vote (2/1/
Pueblo Indians. 95). H. Res. 52 (1/31/95) O................... H.R. 400............ Land Exchange, Arctic A: voice vote (2/1/
Nat'l. Park and Preserve. 95). H. Res. 53 (1/31/95) O................... H.R. 440............ Land Conveyance, Butte A: voice vote (2/1/
County, Calif. 95). H. Res. 55 (2/1/95). O................... H.R. 2.............. Line Item Veto........... A: voice vote (2/2/
95). H. Res. 60 (2/6/95). O................... H.R. 665............ Victim Restitution....... A: voice vote (2/7/
95). H. Res. 61 (2/6/95). O................... H.R. 666............ Exclusionary Rule Reform. A: voice vote (2/7/
95). H. Res. 63 (2/8/95). MO.................. H.R. 667............ Violent Criminal A: voice vote (2/9/
Incarceration. 95). H. Res. 69 (2/9/95). O................... H.R. 668............ Criminal Alien A: voice vote (2/10/
Deportation. 95). H. Res. 79 (2/10/95) MO.................. H.R. 728............ Law Enforcement Block A: voice vote (2/10/
Grants. 95). H. Res. 83 (2/13/95) MO.................. H.R. 7.............. National Security PQ: 229-100; A: 227-
Revitalization. 127 (2/15/95). H. Res. 88 (2/16/95) MC.................. H.R. 831............ Health Insurance PQ: 230-191; A: 229-
Deductibility. 188 (2/21/95). H. Res. 91 (2/21/95) O................... H.R. 830............ Paperwork Reduction Act.. A: v.v. (2/2?/95). H. Res. 92 (2/21/95) MC.................. H.R. 889............ Defense Supplemental..... A: 282-144 (2/22/
95). H. Res. 93 (2/22/95) MO.................. H.R. 450............ Regulatory Transition Act A: 252-175 (2/23/
95). H. Res. 96 (2/24/95) MO.................. H.R. 1022........... Risk Assessment.......... A: 253-165 (2/27/
95). H. Res. 100 (2/27/ O................... H.R. 926............ Regulatory Reform and A: voice vote (2/28/
95). Relief Act. 95). H. Res. 101 (2/28/ MO.................. H.R. 925............ Private Property ...................
95). Protection Act.
----------------------------------------------------------------------------------------------------------------
Codes: O-open rule; MO-modified open rule; MC-modified closed rule; C-closed rule; A-adoption vote; PQ-previous question vote. Source: Notices of Action Taken, Committee on Rules, 104th Congress.
Mr. Speaker, I yield back the balance of my time, and I move the previous question on the resolution.
The previous question was ordered.
The SPEAKER pro tempore (Mr. Klug). The question is on the resolution.
The question was taken; and the Speaker pro tempore announced that the ayes appeared to have it.
Mr. BEILENSON. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 5 of rule I, further proceedings on this vote will be postponed.
Pursuant to the order of the House of today and rule XXIII, the Chair declares the House in the Committee of the Whole House on the State of the Union for the consideration of the bill, H.R. 925.
{time} 2102
In the Committee of the Whole
Accordingly the House resolved itself into the Committee of the Whole House on the State of the Union for the consideration of the bill (H.R. 925) to compensate owners of private property for the effect of certain regulatory restrictions, with Mr. Shuster in the chair.
The Clerk read the title of the bill.
The CHAIRMAN. Pursuant to the order of the House of today, the bill is considered as having been read the first time.
Under the rule, the gentleman from Florida [Mr. Canady] will be recognized for 30 minutes, and the gentleman from Michigan [Mr. Conyers] will be recognized for 30 minutes.
The Chair recognizes the gentleman from Florida [Mr. Canady].
Mr. CANADY of Florida. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, I rise tonight in support of H.R. 925--a bill which provides a reasonable means of redress for landowners who are subjected to Federal regulation which substantially reduces the value of their property.
We can appropriately begin our consideration of H.R. 925 by referring to a recent court decision. Chief Judge Loren Smith of the Court of Federal Claims recently voiced his concern over the inadequacy of the law of takings at addressing the impact of regulation on private property rights. In Bowles v. United States, Judge Smith stated:
This case presents in sharp relief the difficulty that current takings law forces upon both the federal government and the private citizen. The government here had little guidance from the law as to whether its action was a taking in advance of a long and expensive course of litigation. The citizen likewise had little more precedential guidance than faith in the justice of his cause to sustain a long and costly suit in several courts. There must be a better way to balance legitimate public goals with fundamental individual rights. Courts, however, cannot produce comprehensive solutions. They can only interpret the rather precise language of the fifth amendment to our Constitution in very specific factual circumstances. . . . Judicial decisions are far less sensitive to societal problems than the law and policy made by the political branches of our great constitutional system. At best courts sketch the outlines of individual rights, they cannot hope to fill in the portrait of wise and just social and economic policy. (Bowles v. United States 31 Fed. Cl. 37 (1994).
H.R. 925 is aimed at filling in ``the portrait of wise and just social and economic policy'' with regard to private property rights.
It will establish a mechanism which represents in the words of Judge Smith a ``better way to balance legitimate public goals with fundamental individual rights.''
It provides a workable way to ensure that property owners receive compensation when Federal regulation causes a significant reduction in the market value of the owners' property.
It is important to understand some things this bill does not do.
The bill expressly prohibits compensation for any agency action undertaken to prevent an identifiable hazard to public health and safety or identifiable damage to specific property other than the property whose use is limited.
Contrary to the claims of some critics, this bill will not pay polluters to stop polluting.
The bill provides that any payment made under the act shall be paid from the annual appropriation of the agency whose action resulted in the limitation on the use of the property.
If the agency does not have sufficient funds to compensate the owner, the agency head is required to seek the appropriation of such funds in the next fiscal year. Contrary to the claims of some opponents of the bill, it does not create a new entitlement. This point is made clear beyond any doubt in the amendment in the nature of a substitute which I will offer.
H.R. 925 will force agencies to recognize that when they limit the use of an owner's property, there are economic consequences. Agencies will have to weight the benefits and costs of their
[[Page H2470]] actions carefully--paying close attention to the impact of those actions on individuals and the general public. Agencies also will be more accountable to Congress, and therefore, will be more likely to carry out the true intent of the statutes they are charged with enforcing--rather than continually extending their bureaucratic reach.
Supreme Court Justice Joseph Story many years ago stated that, ``One of the fundamental objects of every good government must be the due administration of justice; and how vain it would be to speak of such an administration, when all property is subject to the will or caprice of the legislature and the rulers.''
H.R. 925 will help to ensure that private property is not subjected
``to the will or caprice of'' agencies. I urge my colleagues to support this important legislation.
Mr. Chairman, I reserve the balance of my time.
Mr. CONYERS. Mr. Chairman, I yield myself such time as I may consume.
The opposition to this measure comes from the view of compensating private property owners under the Constitution's taking clause when Government regulation results in reducing the fair market value of private property by more than 10 percent. This is a serious departure from long-established Supreme Court doctrine in an effort that, I think, is very clear and is getting clearer the more this debate goes on, to undermine the Government's ability to promote the common good by providing for clean skies, fresh water, and safe and fair work places that the American people have come to expect.
The result of such a measure passing would be, as one witness testified, hard-working American taxpayers will be forced to watch as their hard-earned wages are collected by the Government, as taxes are paid out to corporations and large landowners as takings compensations and large landowners as takings compensation. And all this at a time when the Government downsizing is the rallying cry with the new majority in the contract.
This measure senselessly creates a vast new bureaucracy and a new entitlement program with so much uncertainty that endless litigation is a distinct likelihood.
Oh, yes, there is another motivation for takings legislation, to undermine the enforcement of one of the Nation's most important civil rights laws, the Americans with Disabilities Act, which will surely occur once a measure of this drastic nature is brought into our law.
This measure radically expands subtle Supreme Court law and leads to an absurd result and windfalls to investors of every stripe.
For centuries now the courts have grappled with the essential questions arising from the few words in the fifth amendment which drives the takings law. What uses are public and how much compensation is just and what is property and what amounts to a taking? In the Armstrong versus the United States case, the Court described the takings clause underlying purpose:
The fifth amendment's guarantee that private property shall not be taken without just compensation was designed to bar the government from forcing some people alone to bear burdens which in all fairness and justice should be borne by the public as a whole.
In several subsequent cases, there have been further definitions of the ways that a taking can occur. We proceed in this general debate absolutely stunned at the way we would turn this concept of taking on its head.
Mr. Chairman, I reserve the balance of my time.
Mr. CANADY of Florida. Mr. Chairman, I yield 4 minutes to the gentleman from Texas [Mr. Smith].
Mr. SMITH of Texas. Mr. Chairman, I thank the gentleman from Florida for yielding time to me.
Mr. Chairman, there is a giant sucking sound in America in 1995. It is the governmental grabbing of private property through ruinous regulation.
Our farmers in the Midwest and across the Great Plains are unable to use their farmland because the Government calls their dry lands
``wetlands.''
Property owners on the east coast are denied the right to build homes for their families because bureaucrats oppose construction.
Across Texas, homeowners, ranchers, and farmers are warned they may not be able to use private land if a golden-cheeked warbler decides to nest there.
And in southern California, ranchers, farmers, and homeowners are denied access to water because of a fairy shrimp upstream.
These are today's forgotten Americans. Their rights are trampled by a government that forces them to shoulder the entire costs of ruinous regulations. These citizens are denied the productive use of farms, ranches, and businesses acquired after a lifetime of hard work.
And many of those who claim to speak for society's neglected and left out are strangely silent and often hostile to the plight of these citizens.
Mr. Chairman, today help has arrived. Through a bipartisan effort in the people's House, these Americans will be forgotten no longer. The people who do the work, pay the taxes, and pull the wagon will have the same rights as the golden-cheeked warbler, fairy shrimp, and blind cave spider.
The private property rights legislation we are considering stands for a fundamental and very simple principle of basic fairness: If a landowner is prevented from using a portion of his or her land in order to provide a public benefit like a wetlands reserve or wildlife preserve, the costs of acquiring these benefits should be shared by the public as a whole. It's not fair to force the individual landowner to shoulder the entire burden.
The Private Property Protection Act of 1995 will not eliminate our Nation's environmental laws. It won't prevent the protection of endangered species or preservation of wetlands. It will permit us to protect as many endangered species and as many wetlands as we the people are willing to pay for.
The Private Property Protection Act of 1995 is about fairness, accountability, and shared responsibility. It's about holding the Federal Government to standards of public accountability. And it's about putting people first.
On November 8, 1994, the American people demanded that their government reduce its size, scope, and burden. Regulatory burdens imposed in the name of protection of the environment are among the most onerous. The Private Property Protection Act of 1995 would relieve those burdens, fulfill the American people's mandate, and restore freedom and fairness to all Americans.
{time} 2115
Mr. CONYERS. Mr. Chairman, I am pleased to yield 4 minutes to the gentleman from California [Mr. Farr].
Mr. FARR of California. Mr. Chairman, I rise on the general debate on the bill, and I think we really ought to take a very close look at this, because this bill shifts the law, really shifts the law from an issue which has been long held in our Constitution, that when the Government takes something, they ought to pay for it.
Certainly that is the role of our courts, to determine, if landowners and Government regulators cannot agree on it, exactly what that taking process is and what the value is.
This bill shifts that. Just in the bill itself, it says that this bill relates to diminishing the fair market value of the property by 10 percent. Let me repeat that again. This bill goes to any action that diminishes the fair market value of the property by 10 percent.
That, Mr. Chairman, is absolutely ridiculous. What is the fair market value? Who determines fair market value? Is it what we thought we would make if we got a big windfall in a big development? Is that the fair market value: expectation?
What is the price of that? What is 10 percent? My God, when you went out and bought a house, there was an appraisal on that house. You probably did not pay full price. You bargained it down. But this bill says no, if the value of the owner is diminished by 10 percent, then you trigger a taking.
This legislation is going to cost State, Federal, and local governments billions of tax dollars. It is going to increase the government bureaucracy, not only for the government agencies to try to figure out what a taking is and whether 10 percent is diminished, but then the argument will be carried out by appraisers, land appraisers, lawyers.
This is a wonderful bill for lawyers, because it is going to guarantee a full-
[[Page H2471]] time employment act for them. It is going to clog our court systems. It is going to create a new entitlement program.
Just think, you can own a piece of land and you know that land may be thousands of acres, but you have a couple of acres that are in a wetland. Maybe you have a couple of acres that are in that habitat of an identified endangered species; not the whole property, just that couple of acres.
You can say, ``All right, I want to do all my development right on those couple of acres.'' You know that the government will prohibit you from taking, and you can then trigger and say, ``That is a taking. You have taken my land. Compensate me for it. Then I am going to use that compensation to build all over the rest of the land.'' That indeed is going to create chaos.
Mr. Chairman, I think we ought to look at the people that are down in the trenches. I have been there as a county supervisor dealing with land use regulation and master plans and zoning and elements of those master plans that require that the zoning be consistent.
I have dealt with the State legislature in those issues when I was in the California State Legislature, a very complex State. Look at the people down in the trenches. What do the State legislatures say about it? The National Conference of State Legislators' policy resolution passed this last year strongly opposes any legislation or regulations at the national level that would, one, attempt to define or categorize compensable takings under the fifth amendment of the U.S. Constitution, or, two, interfere with the State's ability to define and categorize regulatory taking requirements requiring State compensation.
Let us look at the League of Cities, all the cities in the United States; these are the people that do this land-use regulation at the local level. They oppose this.
Let us look at the State attorneys general, who have to go to court and defend what State and local governments have done. The attorneys general oppose this legislation.
Virtually everybody who knows anything about land-use planning at the local level opposes this legislation. It is a bad bill, and I urge Members to defeat it.
Mr. CANADY of Florida. Mr. Chairman, I yield 2 minutes to the gentleman from Tennessee [Mr. Bryant].
Mr. BRYANT of Tennessee. Mr. Chairman, I thank the gentleman for yielding to me.
Mr. Chairman, I rise today in support of H.R. 925.
It is time Congress injected some substance into the spirit of the fifth amendment.
Perhaps James Madison put it best when he said ``No land or merchandise shall be taken directly even for public use without indemnification to the owner.''
I could not agree more.
And neither could the people of middle and west Tennessee who I represent.
Time and again, I hear from propertyowners who have seen their land values decline.
This is thanks to the propensity of this Government to regulate and mandate and to effectively limit the use of this property.
I have a good friend, Anthony Bolton, from my hometown of Henderson, TN, who is experiencing this right now.
He and his family own about 500 acres on the Forked Deer River in west Tennessee.
The land used to consist of about 50 acres in production with the other 450 acres in prime hardwood.
But a beaver built a dam, and that's where their nightmare began.
The 500 prime acres have since become nothing more than a muddy swamp, with no real economic value.
Now rather than earning money with the land, he instead only gets to pay its taxes.
Why? Because the Federal Government says they can't remove the beaver dam because it has created a wetland.
Where is the common sense in this?
Why does this Government deem it necessary to place unnecessary financial burdens on hard-working taxpayers?
It is time we reverse these unfair burdens on America's landoweners.
That is exactly what H.R. 925 will do.
This legislation will not take away the sovereignty of this Government.
It will begin to put the constitutional rights of landowners before the rights of spotted owls, woodpeckers, and kangaroo rats. And yes, beavers too.
If we as a government and society want to conserve something, that is fine.
But we should not place that entire burden on the shoulders of property owners.
Mr. Chairman, the issue before us is paramount.
There are few rights more important in this republic than the right to own property.
It is indeed one of the basic elements on which our Founding Fathers crafted our Constitution.
Therefore, it is imminently fair to compensate a property owner for the taking of their property by declaring it a wetland or a sanctuary for endangered species.
Why can't we put this commonsense philosophy into law?
I urge my colleagues to support H.R. 925.
The Anthony Boltons of this country deserve it.
Mr. CONYERS. Mr. Chairman, I am pleased to yield 3 minutes to the gentleman from New York [Mr. Nadler], a member of the committee.
Mr. NADLER. Mr. Chairman, I rise in opposition to this bill. It is a truly radical piece of legislation and goes against the entire thrust of the constitutional history of the United States Government for the last 200 years.
Mr. Chairman, the Supreme Court has said that in construing the takings provision of the fifth amendment, the court has defined that,
``Elimination of the most profitable use of the property is not a taking.''
It has stated that, ``A reduction of property value occasioned by government regulation must generally be severe or total for there to be a taking; a mere diminution in the value of property, however serious, is insufficient to demonstrate a taking.''
It is not a taking if ``the property owner retains some viable use of the property (as measured by the owner's reasonable investment backed expectations).'' Those are all from the Supreme Court.
Why? Why have the courts consistently read the fifth amendment this way? The answer is because to read it any other way, to read it the way this bill would read it, would totally undermine the ability of the Federal Government, or if applied to local government, of local governments, to protect the general welfare. The Federal Government was instituted to protect the general welfare.
With this bill, Mr. Chairman, we say that if the Federal Government wants to protect the air or the water or any other environmental aspect, or anything else, in a way that imposes any kind of burden on the piece of property, then it may not do so unless it will compensate for the change in value of that property, which would be infinite, almost infinite.
I note that this bill does not provide, and the gentlewoman from Utah
[Mrs. Waldholtz] says it has no fiscal impact because the agency would have to pay from its own money. How could an agency pay from its own money when any action that may impose a burden on the property may impose it on hundreds or thousands or millions unpredictably?
The philosophy of this legislation is radical because it says that private property is absolute and that the rights of the public are greatly subordinate. Teddy Roosevelt said to the contrary. President Roosevelt, the great Republican President, said, ``Every man holds his property subject to the general right of the community to regulate it to whatever degree the public welfare may require it.''
I have carried this around in my pocket for the last 12 years, waiting for an appropriate occasion to read it, and this is the appropriate occasion, to remind the people here that the proper philosophy of government is that private property is not absolute. The right of the public ultimately is superior, and that to legislate this bill would say that the public welfare has no bearing in this country.
Mr. CANADY of Florida. Mr. Chairman, I yield 5 minutes to the gentleman from Texas [Mr. Fields].
[[Page H2472]] Mr. FIELDS of Texas. Mr. Chairman, I rise in support of this legislation, and specifically, I rise in support of an amendment that will be offered tomorrow by the gentleman from Louisiana
[Mr. Tauzin] and myself.
Mr. TAUZIN. Mr. Chairman, will the gentleman yield?
Mr. FIELDS of Texas. I yield to the gentleman from Louisiana, to clear up a statement made earlier, that was made in error.
Mr. TAUZIN. Mr. Chairman, one of the things that is going to happen, I suppose, in this debate is that we are going to be debating the old bill, the bill that was filed in some other year, perhaps, or some other bill that is not before us.
The bill that will be before us tomorrow, that would have been today, is a bill that applies only to Federal statutes and only gives a cause of action for recovery for takings under Federal statutes, not State statutes, not local statutes, city statutes.
The bill will only cover the right of property owners to be compensated when Federal regulations take away their property. Tomorrow, the gentleman from Texas [Mr. Fields] and I will be offering an amendment to even limit the Federal statutes we are dealing with to a very few, the Endangered Species Act, wetlands regulations under 404, and sodbuster provisions and Federal statutes dealing with water rights.
It will be those limited Federal statutes only, so the objections of Attorneys General and cities and counties and States to us meddling with their problems with taking laws are objections that are not well founded when it comes to the bill that will be before us tomorrow.
Mr. FIELDS of Texas. Mr. Chairman, people are probably wondering why are we standing here at this later hour debating this issue. This is a significant issue, becuase we are talking about something that is basic and fundamental to all Americans. That is the ability to not only own but to beneficially use our private property.
I got involved in this issue becuase of some specific instances in my home State of Texas. I had a road that was very important, that needed to be built, connecting a major subdivision called Kingwood in Tuskakita with a major beltway system. Local property owners came together and donated the property for that road.
All of sudden, some people walked through and said, ``That road cannot be built becuase we see what we think is an abandoned eagle's nest.'' My family had lived in that area since the 1860's. We had never seen an eagle's nest. We hope eagles are there. No one could prove it was an abandoned eagle's nest, but because of that, the property owners had to mitigate, as if the eagle flew back to that one specific tree, if it was an eagle, rebuilt the nest, reestablished, climbed down the tree, and then walked a distance to Lake Houston.
We thought that was the problem and that it was over. The landowners had given up more of their property.
Then as we begin to go further with the road, someone walked in and said, ``Oh, my gosh, you have upland hardwood, wetlands.'' For me it was a little hit hard to understand that if something was upland, how it could be a wetland. The property owners came together, mitigated once again.
Then we though the road was going to be built. Then someone walked in and said, ``Oh, my gosh, you've got prairie dawn,'' which is a dressed-
up word for bitter weed. The property owners played the game one more time and said, ``We will find property to mitigate.'' They found property without the prairie dawn, but someone said, ``This property does not have prairie dawn, but it is conducive for the growth of prairie dawn.''
It took approximately 5 years to finally get the permits needed to built a very short piece of road. It just is not that problem. North of us we have a red cockaded woopecker. If that lands on your property and a colony is established, you lose the ability to use your property.
West of us in Travis country there is the black-capped vireo, the golden-cheeked warbler. That has cost Travis county in Austin, TX, literally hundreds of millions of dollars in property value. The local ranchers in the hill country cannot cut their cedar because of those particular species.
One last example, a darter in the Comel Springs and also in New Braunsfels, the springs there, have forced the city of San Antonio to look for a new water supply that could end up costing that city billions of dollars, with the farmers and ranchers west of there having to have there wells permitted, their use restricted, and at some point in the future of total abrogation of their rights.
Mr. Chairman, this is not right. Their must be reform. The most important thing that has been lost by the conservation community, they have lost most of the hospitality and the cooperation of the landowner.
{time} 2130
Without that cooperation, species will not be saved, and wetlands will not be preserved.
Mr. CONYERS. Mr. Chairman, I am pleased to yield 4 minutes to the gentleman from Colorado [Mr. Skaggs]. I presume that will leave me with 15 minutes for tomorrow?
The CHAIRMAN. The gentleman is correct.
The gentleman from Colorado [Mr. Skaggs] is recognized for 4 minutes.
Mr. SKAGGS. Mr. Chairman, I want to thank the ranking member for yielding the time to me.
In a 1-minute speech this morning I told you, in brief, the story of the deadly Summitville Mine--Colorado's worst environmental disaster in a decade. Tonight I'd like to tell you more about that catastrophe, and about the insult that this takings bill would add to that injury.
For about 6 years, Summitville was an active gold mine near Del Norte, CO, in the spectacular San Juan Mountains. Like many such mines, the Summitville operation used cyanide to leach the gold from the ore that was taken from the site.
In 1991, during the spring run-off from the melting winter snowpack, the mine's poorly designed holding ponds overflowed, sending a poisonous surge of cyanide, heavy metals, and other toxins into Alamosa Creek. The contamination was so severe that fish and other river creatures were killed for 17 miles downstream. Lesser effects of the contamination were felt more than 50 miles downstream. We don't yet know the extent of the lasting environmental consequences--on other wildlife, on downstream farmers, on drinking water supplies.
A year and a half later, Summitville Consolidated Mining Company, the foreign-owned company that leased the property and had been running the mine, declared bankruptcy and walked away, avoiding all responsibility and liability for preventing further contamination. We were left with an environmental time bomb, with no protection against future overflows or collapse of the impoundments holding the cyanide wastes. The companies that owned the land--Aztec Minerals, Gray Eagle Mining, and South Mountain Minerals--did nothing to step in to protect the environment, or their downstream neighbors, or even their own property.
At the request of the State of Colorado, the Environmental Protection Agency took over, designated the mine a Superfund site, and began emergency action to prevent more poison from finding its way downstream.
So the American people have already paid twice for this disaster. First, we've suffered environmental damages. Second, we're paying for the EPA to prevent future spills, an effort which is costing the taxpayer about $30,000 a day, more than $50 million so far.
Now here's where insult is added to the injury. The corporate owners are now suing the Federal Government,
claiming that EPA's emergency cleanup amounts to a governmental taking of their property. They claim that they should be compensated because the Government's cleanup of the abandoned, leaking, poisonous mine on their property is keeping them from using it to turn a profit.
So the bizarre scenario we're faced with is corporate landowners and a foreign mining company abdicating all responsibility for an environmental catastrophe, refusing to lift a finger to protect or clean up their own property, and running for the hills. And when the Government steps into the emergency to clean up the property, the companies show up in time to sue the Government for its trouble.
[[Page H2473]] This is the sort of mindlessness the Republicans want to encourage with the takings bill.
Of course, the irony of this is that the Constitution is already perfectly clear in saying that private property owners are protected from genuine takings. The fifth amendment says that property can't be
``taken for public use, without just compensation,'' and the courts have made plenty of consistent rulings on what this means. As recently as 1994, in Dolan versus City of Tigard, the Supreme Court held that a city government could not require a hardware store owner to build a bicycle pathway on her property as a condition for getting a permit to increase the size of her store and build a parking lot. And if the city did require it, she'd have to be compensated.
Under the Constitution, this ridiculous Summitville suit, which is a money grab, and not a genuine taking, would be thrown out of court. But if the takings bill passes, the suit would no doubt prevail, and every American taxpayer would pay for this catastrophe a third time when they're forced to write a check to Aztec Minerals, Gray Eagle Mining, and South Mountain Minerals.
If the takings bill passes, here's the choice we'd face at Summitville: EPA could continue to contain the chemicals at the plant, and protect the people and environment downstream. The companies who are suing the Federal Government would win their ridiculous suit, and the taxpayers would be forced to pay them who knows how much money. Or, in order to avoid the lawsuit, EPA could stop the containment efforts, pull up stakes, and let cyanide run down the river. That's the choice--
the absurd, incredible choice.
Mr. CANADY of Florida. Mr. Chairman, may I inquire as to the amount of time remaining for each side?
The CHAIRMAN. The gentleman from Florida [Mr. Canady] has 14\1/2\ minutes remaining, and the gentleman from Michigan [Mr. Conyers] has 15 minutes remaining.
Mr. CANADY of Florida. Mr. Chairman, I reserve the balance of my time.
Mr. Chairman, I move that the Committee do now rise.
The motion was agreed to.
Accordingly, the Committee rose; and the Speaker pro tempore (Mrs. Waldholtz), having assumed the chair, Mr. Shuster, Chairman of the Committee of the Whole House on the State of the Union, reported that that Committee, having had under consideration the bill (H.R. 925) to compensate owners of private property for the effect of certain regulatory restrictions, had come to no resolution thereon.
____________________
Alerts Sign-up