[Congressional Record Volume 140, Number 140 (Friday, September 30, 1994)] [Senate] [Page S] From the Congressional Record Online through the Government Printing Office [www.gpo.gov] [Congressional Record: September 30, 1994] From the Congressional Record Online via GPO Access [wais.access.gpo.gov] OPPOSING CONSIDERATION OF THE CONVENTION ON BIO-DIVERSITY Mrs. HUTCHISON. Mr. President, on August 5, 35 Senators signed a letter to the majority leader regarding consideration by the Senate of the Convention on Bio-Diversity. The letter requested that the Senate delay consideration of the treaty until our concerns were addressed. These concerns remain, but it appears that the majority leader intends to bring up the treaty before adjournment. Under the treaty, a conference of parties will meet after the treaty is in force to negotiate the details of the treaty. We need to know how the Senate, in fulfilling its constitutional responsibilities to concur in treaties, can review the provisions of a treaty that will not be written until the meeting of the conference of parties. As Senators Helms, Pressler, and Coverdell stated in the committee report on this Bio-Diversity Treaty. The financing mechanism, the degree to which intellectual property is protected, the definitions of developed and developing states, the voting weights and procedures for member states: all of these and other important matters are left undecided. Moreover, the convention and resolution of ratification do not require that protocols or amendments developed by the conference of parties that are signed by the President be submitted to the Senate for ratification. Protocols are being drafted for the November conference that we have not had a chance to review and will not have the opportunity to approve. We are sworn to uphold the Constitution. We cannot delegate that duty with a blank check to an international body, or to the President. We need to know why the treaty prohibits countries from making reservations from agreeing to any of its provisions. Because the treaty is not subject to reservation, any congressional or Executive statements saying we do not agree to be bound by a provision of the treaty will be ineffective after the treaty is in force. We will instead be bound by the conference's interpretations of the treaty. I am especially concerned about the effect of the treaty on private property rights in my State and throughout America. Private property is constitutionally protected, yet one of the draft protocols to this treaty proposes ``an increase in the area and connectivity of habitat.'' It envisions buffer zones and corridors connecting habitat areas where human use will be severely limited. Are we going to agree to a treaty that will require the U.S. Government to condemn property for wildlife highways? Are we planning to pay for this property? One group, the Maine Conservation Rights Institute, has prepared maps of what this would mean--I do not know if they are accurate yet, but that is my point. Neither do the proponents of this treaty. Article 10 of the treaty states that we must ``protect and encourage customary use of biological resources * * * that are compatible with conservation or sustainable use requirements''--as set by the treaty. Whether our ranchers could continue to use public and private land for grazing could depend not just on the Secretary of the Interior's latest grazing rulemaking, but on whether grazing is considered a compatible use for conservation under the treaty. This bio-diversity treaty could preempt the decisions of local, State, and Federal lawmakers for use of our natural resources. The details that are left for negotiation could subject every wetlands permit, building permit, waste disposal permit, and incidental taking permit to international review. We would be subjecting property owners to international review, which would be yet another step in the already egregious bureaucratic processes, just to have the very basic permits necessary for the use of their own private property. I believe that arguments that the treaty should have been approved by August 30, 1994, in order to have a vote at the conference of parties in November 1994, are without merit. The administration is fully aware of the Senate's authority to approve treaties and the time necessary for approval. The administration should have left more time for consideration by the full Senate. Here we are, in the last 10 days of scheduled session, and we are being asked to consider a very important international treaty that is not very well known, and the consequences of which are even less well known. I am well aware of some Senators' concerns about approving the treaty before the November conference of parties so that we can be a participant. But we will qualify as an observer to the negotiations. The United States would be the largest donor to the Global Environment Facility--the proposed financing mechanism--and certainly can expect the parties to pay close attention to our suggestions if they want us to contribute money. Mr. President, I think the responsible approach here would be to let the November conference of parties come together before we have passed this treaty. Let us review what other parties propose at the negotiations. I think it would be better to pass the treaty later, after we know the details. I do not feel comfortable, Mr. President, giving a blank check, passing a treaty which is a very important constitutional responsibility of this Senate, before we have fully negotiated the treaty and know what will be in it. I think it is very, very important that we wait and get more information. We can ratify the treaty later. The important thing, Mr. President, is that we do not pass something that will bind this Congress and our Nation when we do not have enough information about what is going to be in the treaty. We cannot approve a treaty on someone else's timetable. Unless we are given adequate time to fully debate the treaty and make reservations and understandings as are absolutely necessary, we should not act. We should have full and open debate on these issues. We should not rush this treaty at the last moment before the end of Congress. Several of my colleagues and I have statements for the Record in opposition to consideration of the treaty at this time, and about the concerns that we would like to have addressed before or during the November meeting. The five of us, and many others of our colleagues, will oppose a motion to proceed to consideration of the treaty. the biodiversity treaty Mr. BURNS. Mr. President, the Biological Diversity Treaty may come before the Senate for ratification. I strongly oppose this treaty. I am fearful of how this treaty will effect Montana's agriculture and our other natural resource industries. This is yet another example of the Clinton administration's war on the West. The Convention on Biological Diversity was reached at the Rio De Janeiro meeting in 1992. At the time the treaty was drafted, the United States was cautious about embracing such a sweeping plan. Since that time the Clinton administration has asked the Senate to ratify the treaty. This treaty makes me nervous. U.S. environmental laws are currently encroaching on our private property rights. Provisions like the Endangered Species Act and wetlands laws are dictating what private land owners can and cannot do with their own land. This treaty could give a panel outside the United States the right to dictate what our environmental laws should say. That is wrong. I have long believed that the best land management decisions are those made at the local level. Instead of moving our decisions from Washington to the local level, this treaty moves these decisions overseas. Each Senator should have received a letter from 293 groups from around the Nation who oppose this treaty--14 Montanan groups, including the Montana Farm Bureau Federation, Putting People First, and Grassroots for Multiple Use have joined in this impressive letter. These folks are right, the treaty is vague and leaves too many questions unanswered. Just as the intent of the Endangered Species Act has been twisted, I am fearful of how this treaty could be twisted to push legitimate, job creating activities, off not only public, but private lands. Montanans do not want that. I urge my Senate colleagues to join me in opposing this treaty. convention on biological diversity Mr. CRAIG. Mr. President, on August 5, 1994, I was one of 35 Senators who wrote to the majority leader raising a number of questions about the Convention on Biological Diversity. The concerns I had then remain, despite attempts of the administration to explain away apparent flaws in the document. If anything, I have become even more concerned about the convention after reading the analysis titled Technical Review of the Convention on Biological Diversity written by Mark Pollot and Allan Fitzsimmons. This new report raises very serious questions about the purpose of the convention and the impact it may have on domestic policy. My reading is that States' rights and private property rights could be severely compromised. I am not at all inclined to take the position that it will all work out for the best, and accept the premise that the convention will not be used to inflict added regulation on property owners and public land uses. I have seen too much of that in recent years. I have no doubt that environmental interest groups are waiting in the wings to attack the Western public lands States with legal actions stemming from new authorities they find in the convention. Article 8, for instance, calls for the eradication of alien species which threaten ecosystems. I envision that provision being used as leverage to eliminate cattle and sheep grazing from public lands. Article 8 also calls for added regulations outside protected areas. That sounds exactly like the calls I have heard, so far unsuccessful, from opponents of multiple use who wish to create artificial buffer zones for millions of acres outside Yellowstone National Park and Hell's Canyon National Recreation Area. The Federal Government controls 63 percent of the land in the State of Idaho. Our economy and our lifestyle are sensitive to the pull and tug of environmental laws and their interpretation by Federal agencies--particularly so when it comes to the Endangered Species Act. The majority of the State's land area is encumbered by one or another species listed under the ESA. Unfortunately, the ESA has become a tool for those groups attempting to stop logging, mining, and irrigation, and to remove cattle from the public range. They have used every nuance offered by the ESA and its interpretation in the courts to raise challenges and pursue litigation at an alarming rate. At this very moment, a Federal judge is considering a request for injunction which would shut down all activities on six national forests in Idaho. Environmentalists will stop at nothing in their zeal to extend the power of the ESA, regardless of the disruption and damage which results. Though the ESA is well beyond its time for reauthorization, the Environment and Public Works Committee has delayed markup and rebuffed amendments. I believe the convention would lend even more strength to the ESA and offer further opportunity for those who oppose traditional Western public land uses. I am not about to let that happen. There are many other examples I could quote from the convention which appear to open public land management to a new barrage of legal initiatives from those who would close these lands to public use. The convention simply is not ready for ratification by the Senate. Terms are too vague and definitions are lacking. The convention needs much more thorough review by committees with jurisdiction before any action is taken. One hearing was held in the Foreign Relations Committee. I believe the Committee on Energy and Natural Resources, and perhaps others, have an interest and shoud have time to hold hearings and develop the record in terms of public land and agricultural implications. As I understand it, there is no advantage to the United States to ratify the treaty at this time. The United States will be in attendance at the conference of parties which is scheduled for late November. Our status there will not change if the treaty is ratified now. The conference will begin to add details and understandings to the convention. Even today, a 300 page draft of protocols to be considered at the conference is just arriving for review. We will know much more after the convention about how the terms of the convention will be interpreted. An argument has been made that our negotiating position at the conference is stronger if the Senate has not ratified the treaty. Other countries will be aware that the United States is withholding approval until after definition is added and we have had a chance to review and analyze it. Mr. President, there are simply too many unanswered questions about the convention. The Senate needs more time to examine all aspects. I strongly urge that we not act on the resolution for ratification at this time. convention on biological diversity Mr. HELMS. Mr. President, I have a number of concerns about this treaty--concerns that I have expressed before, and which I will repeat for the record. The many nations represented at the negotiation of this treaty at the so-called Earth summit had widely varying national agendas--agendas that had little to do with environmental protection. Further, I believe that many of the clauses and statements in this treaty reflect a rather common view among so-called developing nations that this treaty is some sort of an international cash cow to be milked by transferring, with no strings attached, wealth and technology from developed nations to promote the economic growth of developing nations. I give them credit for recognizing their own national interests and pursuing them--a matter in which I believe our own State Department could learn a thing or two. In particular, I find the convention's treatment of intellectual property rights, finances, voting procedures, technology transfer and biotechnology dangerously muddled, vague and disturbing. But there is an even more fundamental concern: The treaty before us will commit the United States to certain obligations, but the Senate, which is being urged to ratify this treaty now, has no way of knowing the nature and extent of those obligations. The treaty spells out no details, nor does it refer directly to any existing mechanism or structure. For example, articles 20 and 21 of this treaty commit the developed country parties to provide new and additional financial resources to developing country parties. Who are the developed countries and who are the developing countries? That will not be known until after the treaty enters into force. At its first meeting, the so-called conference of parties will establish a list. What about these new and additional financial resources? How much money will the Senate be committing the United States to paying by ratifying this treaty? Is that not a reasonable and straightforward question, one which we are obliged to ask before ratifying? Yet we don't know. Once again, we learn that there shall be a mechanism for the provision of financial resources to developing countries and the operation of that mechanism shall be carried out by such institutional structure as may be decided upon by the conference of parties at its first meeting. Tim Wirth came before this committee and assured us that our financial obligations are known, that the financial mechanism is in fact established. I challenge him to specify where that is stated in the treaty. The treaty itself is silent on these matters, and, according to the Vienna Convention on the Law of Treaties, matters or disputes requiring interpretation shall refer to the text of the treaty itself. The administration assures us that it will guard U.S. interests at the conference of parties. It assures us that it will not allow any surprise developments that we would not support. I am gratified to hear that, but I cannot accept this abdication of the Senate's constitutional privilege to advise and consent to a treaty before ratification. This so-called treaty is scarcely more than a mere preamble, not a treaty. The real treaty--the essential nuts and bolts--is yet to be created at the conference of parties. If the Senate precipitously ratifies this preamble falsely described as a treaty, it will have given away one of its major constitutional authorities and will have betrayed the trust of the American people. There is a simple solution: Article 23, paragraph 5 of the treaty provides that any state not party to this convention may be represented as observers at meetings of the conference of parties. Even if the United States ratified the convention now, it could participate in this first conference of parties only as observers. But that is just fine: the United States' voice will be heard loud and clear. The United States is the single largest contributor to this convention; it plans to fund it to the tune of $420 million over 5 years. If that does not count for something, then we are crazy to even consider ratification. When some of the vagueness of this convention is cured--the voting rules, financial procedures, definitions of developed and developing States, definition of terms like ``alien species'' and ``biosystem,'' technology transfer arrangements, biotechnology issues, et cetera then bring it back to the Senate for hearings and consideration. The more this administration tries to push this through at the eleventh hour of the 103d Congress, the more suspicious I get. the convention on biological diversity Mr. NICKLES. Mr. President, along with several of my colleagues, I continue to have serious concerns regarding the Convention on Biological Diversity, treaty document 103-20. I understand that the distinguished majority leader may bring the convention before the Senate prior to adjournment. One of several major issues that has not been adequately addressed by the Clinton administration relates to the effect of the convention on State, local, and tribal laws and rules. Prior to Senate consideration, it is imperative that we are sure about the extent to which this convention will impact Federal agency regulations and actions taken by the Federal Government, its agencies, or its agents in pursuit of or in furtherance of the convention. Will the convention be construed by courts to preempt, supersede, or limit any existing or future State, local, or tribal laws or regulations, including those laws or regulations that apply to private lands, such as those lands that may lie adjacent to Federal wildlife refuges or wilderness? At this point, we do not know. The Clinton administration has frequently assured us that they will take care of these problems. They have sent up supporting statements about the convention, but they have given little information on the likely effect on State, local and tribal law. I point out that the memorandum of record signed by the Secretaries of State, Agriculture, and Interior on August 16, 1994, states that the convention does not provide for a private right of action. This is small comfort, and may not even be true. Many Federal environmental and administrative procedure laws generously provide third parties with standing to bring enforcement actions or challenges into Federal courts. Frivolous suits brought by groups against individuals and small businesses have been devastating to the defendants named in those suits, even if the plaintiffs' suits are ultimately dismissed for lack of standing. But standing may be granted simply because this is a treaty, irrespective of the absence of specific language in the convention providing a private right of action. As discussed by constitutional lawyer Mark Pollot in ``Technical Review of the Convention on Biological Diversity:'' Indeed, the very existence of the convention itself may be used by opponents of the state-based action to move actions into federal court on the theory that the convention makes local and State land use and zoning questions inevitably Federal questions based on a claim of preemption. It is not the treaty itself which gives rise to the question, but the supremacy clause [of the U.S. Constitution]. I am very concerned about the potential reach of this convention into the realm of constitutionally protected property rights of individuals and the rights of State, local, and tribal governments to control uses of land within their jurisdictions. I am also highly concerned about the effect of the convention and actions taken under it on the financial and other resources of the individuals and State, local, and tribal governments who will be forced to expend those resources to defend against the infringement of their constitutionally protected rights when actions taken in pursuance of the convention affect those rights. This is only one of the many issues left unanswered about the convention's possible impact. It is clear that the Senate should not try to rush through its advice and consent to the convention's ratification until we have more information. In particular, the conference of the parties provided for in the convention will meet in November, and is expected color in many of the blank areas in the convention text. Also, hundreds of pages of protocol language is currently being drafted for the November meeting, none of which will be subject to Senate advice and consent if the Senate rushes to take action now. The Senate must be allowed to review the convention with these details attached before deciding whether this is in the interest of the United States. We should at least wait until next year before committing our country to unknown obligations we may have reason later to regret. convention on biological diversity Mr. WALLOP. Mr. President, I rise today to express my concern on the haste with which we are being asked to act on the Convention on Biological Diversity. When reviewing international treaties, it is the role of the Senate to provide advice and consent to the President. This process is meant to protect the interests of the U.S. treaties define the United States relations in the international community and, as such, can have a tremendous effect on domestic law. The so-called biodiversity treaty attempts to globalize the enforcement of restrictive environmental laws. These laws, as contained in the treaty, remain consistent with this administration's current environmental policies. At the agency level and in Federal courts across this Nation, the administration has fought to subordinate private property rights to the newly proclaimed rights of various plant and animal species. It has sought to define ponds and lawns wet from leaky sprinkler systems as navigable waterways under the Clean Water Act, simply to transfer more property from private ownership to the Government. The biodiversity treaty, as written, would give the Clinton administration even greater authority to accomplish suspect environmental goals. Furthermore, article 8 of this treaty mandates that parties to the treaty take appropriate action and special measures to conserve biological diversity in protected areas. What is a protected area? By the treaty's definition, it is a geographically defined area which is regulated to achieve specific conservation objectives. In other words, a protected area is whatever an anonymous Federal bureaucrat says it is. Under this treaty, the Federal Government would be required to manage biological resources important for the conservation of biological diversity whether within or outside these protected areas. Yet, nowhere in this treaty, or in any literature about the treaty, is there an explanation of the substantive qualities of protected areas, threatened species, or alien species, which necessitate their regulation or, in the case of alien species, their eradication. Many of us have taken long lists of concerns to the State Department. In return we have received the weakest of verbal assurances that our concerns will be taken care of. We have been told that unseen, forthcoming protocols will rectify and clarify any and all problems. The State Department has even gone so far to say that we can safely agree to the treaty without ever seeing these 300 pages of protocols. We know that this treaty is not complete, and we know it will not be complete until after the conference of parties has completed its work. I ask you, can the United States Senate, in good faith, give its consent to this treaty without having had an opportunity to scrutinize the completed convention? The best advice we can give President Clinton right now is to wait until the Convention on Biological Diversity has been completed before asking for our consent. amendment no. 2601 Mr. CHAFEE. Mr. President, I am relieved Senators Metzenbaum and Hatch have agreed to withdraw their amendment to limit the antitrust exemption conferred upon major league baseball by a 1922 Supreme Court decision. First, this is no way to legislate. We are in the 11th hour of the session, on the last appropriation conference report pending in the Congress. The Judiciary Committee is the place to consider, debate and refine an authorization such as this--not the Senate floor. The real issue is whether or not the Federal Government should inject itself into a private labor-management dispute--plain and simple. It is my steadfast view that the Congress has no business interfering in a collective bargaining dispute, except under the most extraordinary of circumstances. Second, and finally, I am opposed to this amendment because it would have a detrimental impact on minor league baseball, which draws substantial financial support from the major league franchises. This is the farm team system, the fresh blood for the major leagues, and thus, crucial to the future of baseball. The salaries of all minor league players are covered by major league baseball--a cost to the clubs of about $8 million per year. This subsidy enable minor league baseball to sell affordable tickets, and to provide maximum benefit to the fans. Rhode Island is a minor league State, and we are extremely proud of our own Pawtucket Red Sox, a club within the International League. And let me tell you, they have had a great season, with a packed stadium almost every night. That team has been the training ground for some great players including Jim Rice, Fred Lynn, Wade Boggs, and Roger Clemens. Rhode Island has had a long tradition of minor league baseball, dating back to the founding of the Providence Grays in the 1890's. Our own Pawtucket Red Sox began their great tradition in 1968. They are a valued asset in our State, with a passionate and loyal following. Their future would be threatened if this legislation were enacted, and thus, I will continue to oppose legislation along these lines. Mr. WOFFORD. Mr. President, here it is the end of September--and there are no pennant races. Obviously, baseball has serious problems. We are at a major impasse. The owners and the players could not sit down at a table and work out a compromise to save the season, and we are all the losers for it. The amendment offered by my colleague from Ohio, Senator Metzenbaum however well-intentioned, is not the best way to go forward. I'm concerned that it would hurt small market teams. While I agree that it is proper for Congress to review the state of the game, I will vote against Senator Metzenbaum's amendment. The PRESIDING OFFICER. The Senator from North Dakota is recognized. Mr. DORGAN. Mr. President, I ask unanimous consent to speak as in morning business. The PRESIDING OFFICER. Without objection, it is so ordered. ____________________