September 22, 1970
Page 33099
Mr. MUSKIE. Mr. President, I yield 3 minutes to the distinguished Senator from Kentucky (Mr. COOK) on the bill.
Mr. COOK. Mr. President, yesterday the Senate took up consideration of S. 4358, the National Air Quality Standards Act of 1970. All of the members of the Public Works Committee deserve credit for their tireless efforts in marking up and reporting out what may very well be one of the most significant pieces of legislation of the 91st Congress.
Of course, much attention has been focused on certain sections of the bill, such as section 202 which requires that 1975 model automobiles achieve at least a 90-percent reduction from the 1970 emission standards.
Because of this very close examination of these sections by many of my distinguished colleagues, I shall confine my remarks to section 306, "Federal procurement."
It is with great interest that I take up this section, because on March 20 I introduced S. 3614, the Federal Procurement and Environmental Enhancement Act of 1970. In essence, it would prohibit all departments, independent agencies, and other instrumentalities of the United States using federally appropriated funds, from purchasing goods, materials and services from any person operating in violation of Federal air or water pollution control laws. On May 6 I testified before the Air and Water Pollution Subcommittee on behalf of this measure – which, incidentally, was cosponsored by 10 of my colleagues, including the distinguished senior Senator from Montana.
Also, the distinguished chairman of the Air and Water Pollution Subcommittee introduced two major air and water quality bills containing similar, but less comprehensive provisions.
With three exceptions, I shall not explain in detail the provisions of S. 3614. However, I ask unanimous consent that my testimony be printed in the RECORD at this point.
There being no objection, the testimony was ordered to be printed in the RECORD, as follows:
TESTIMONY OF SENATOR COOK
Mr. Chairman, I thank this very busy and productive subcommittee for allowing me the opportunity to discuss the concept of prohibiting the federal government from purchasing goods or services from persons in violation of federal pollution control laws.
On March 20, I introduced S. 3614, the "Federal Procurement and Environmental Enhancement Act of 1970," which would accomplish this purpose by amending the Clean Air and the Federal Water Pollution Control Act. If enacted, it would prohibit all departments, independent agencies and other instrumentalities of the United States using federally appropriated funds from purchasing goods, materials and services from any person operating in violation of these two laws. It would require the establishment of contract regulations and the insertion thereof, in all federal procurement contracts.
Sections 13 (B) (C) and 113 (B) (C) make mandatory the establishment of contract regulations, and the insertion thereof, in all federal procurement contracts.
By Section (C) (1), the contractor or seller agrees to furnish adequate proof or compliance with the aforementioned air and water pollution acts. I would interpret this to mean a simple statement of compliance. In the alternative, at the time of contract the seller agrees to implement an affirmative plan for compliance pursuant to those acts.
This section takes into account those manufacturers who are earnestly trying to comply with federal pollution laws, while penalizing those who refuse to comply. At the discretion of the Secretary, it also permits the transaction of business with those persons who have filed implementation schedules with the Federal Water Pollution Control Administration and the National Air Pollution Control Administration.
Second, upon notice of a violation – and with notice to the seller – the government is compelled to terminate the agreement. Section (C) (2) also relieves the government of any damages, penalties or other liabilities.
Third, Section (C) (3) permits the continuance of a contract, otherwise terminated, if the seller has implemented an affirmative plan or schedule pursuant to the Air and Water Pollution Control Acts.
Fourth, the last contractual requirement, Section (C) (4) exempts the government from adjusting either the contract price or the delivery or performance schedule due to continuation of the agreement under (C) (3).
A distinction is made in Section (F) between a "contract directly related to a pollution action" and all others. Only in the former would the termination, continuance, and exemption procedures of (C) (2). (3) and (4) apply. The Secretary of the Department of Health, Education, and Welfare or of the Department of the Interior, after consulting with the appropriate contracting agency head, determines the direct relatedness of the pollution action to the contract.
As an example, where the "X" Supply Company's paper factory is violating either the Air or Water Pollution Control Law, all "X" paper contracts with the government are subject to immediate suspension and termination. However, all other "X" contracts supplying other office equipment are not subject to this immediate action.
Section (F) is intended to prevent undue chaos where a large manufacturer supplies a diverse number of items to many government agencies. An immediate end to all such contracts may produce unnecessary adverse effects. Therefore, this section provides that such contracts not directly related "shall continue until completed, at which time the prohibition becomes effective." Consequently, once the government is notified that "X's" paper factory is an unrepentant polluter. henceforth, "X" will be ineligible for all procurement contracts.
Section (A) declares that such person is ineligible for a period up to 3 years. At the discretion of the Secretary, the seller may become eligible prior to 3 years if he determines that the pollution has been abated.
To insure that the vast reaches of the federal bureaucracy are informed of individual violations, Section (B) causes both the Secretary of the Department of Health, Education, and Welfare and the Department of the Interior to establish the necessary notification procedures.
Finally, Section (D) exempts the Department of Defense from this act, if the Secretary determines that such exemption is necessary for national defense. It does provide, however, for public hearings on the pollution action. In this manner, the necessary attention may be focused on the problem to encourage voluntary compliance.
Also, the distinguished chairman of this subcommittee has introduced two bills containing similar provisions. Senator Muskie's S. 3546, the "National Air Quality Standards Act of 1970" and S. 3637, the "National Water Quality Standards Act of 1970" state that no federal department or agency shall procure goods from those in violation of these standards.
Mr. Chairman, since the introduction of these measures a number of objections have been raised questioning the need and practicability of such a prohibition.
As to the first objection, I can only say that the prevention of further degradation of the environment requires a total commitment by all – especially the federal government. With a budget exceeding $200 billion per year, the federal government is the largest single purchaser of goods and services. A substantial portion of this amount is for procurement of goods and materials ranging from highly sophisticated weapons systems to ordinary supplies necessary for day-to-day operation.
As to its feasibility, it has long been the established policy of this government to declare that an agreed-upon public policy be followed in the government's dealings in the free marketplace.
Desired policy has been implemented by both executive fiat and legislation.
Legislatively, the Congress enacted the "Buy American Act" (41 U.S.C. 10). This law requires the use of American manufactured materials and American mined supplies in "every contract, for construction, alteration or repair of any public building". Failure on the part of the contractor to comply may result in his name being placed on a debarment or blacklist and declared an ineligible bidder for a 3-year period.
There have been a variety of standard labor clauses dealing with employment and labor and prescribed for use in government contracts. The Davis-Bacon Act, the Copeland Anti-Kickback Act and the Work Hours Act (5 U.S.C. 673 (c); 28 U.S.C. 1499; 40 U.S.C. 327-332) govern the employment of laborers and mechanics on public works projects. The Davis-Bacon Act (40 U.S.C. 276a-276a-5) prescribes that such employees are entitled to the minimum wage as determined by the Secretary of Labor to the prevailing corresponding classes of laborers and mechanics or similar projects in the locale where the contract is to be performed. The Copeland Act prohibits the requiring by a contractor from requiring any "kickbacks from any employees so defined in the regulations." The Act is intended to aid in the enforcement of minimum wage provisions of the Davis-Bacon Act and other similar statutes. The Work Hours Act requires that employees must be paid at least time and one-half their basic rates of pay for hours worked in excess of eight hours per day or forty per week.
Contracts for the procurement of services are governed by the terms of the Walsh-Healy Act, (41 U.S.C. 35). Any contract entered into by the executive or legislative branch or any instrumentality of the United States shall include provisions relating to minimum wages, child labor, maximum working hours and health and safety conditions. A breach of any of these conditions requires not only the cancellation of the contract, but subjects the party to fines as well. In 1965, the Congress passed the Service Contract Act, (41 U.S.C. 351), extending to employees of government service contracts the federal minimum wage law, a breach of this law subjects the contractor to cancellation and the difference in the wages paid and what is required by law to be paid.
Because of Congress' concern with the decline of the small businessman, 41 U.S.C. 252 provides that "a fair proportion of the total purchases and contracts for property and services for the government shall be placed with small business concerns."
By executive action all government contracts and subcontracts must contain an equal opportunity clause prohibiting contractors from discriminating against employees on the basis of race, color, creed, religion or national origin, in hiring, promotion, pay rates and job training. The contract clause also requires affirmative action on the part of the contractor and compliance with executive orders 10925 and 11246, and regulations issued by the secretary of Labor pursuant to those orders. It also requires the filing of reports and for termination in cases of noncompliance.
The protection of American industry, small business, and the social and civil rights of the American laborer are all worthy of a firm governmental policy of enforcement through the procurement of goods and services. I contend that the protection of the environment deserves no less a firm policy,
An additional question raised about S. 3614 is the lack of hearing procedures ensuring a fair termination because of a pollution violation. Experience has shown that the time consuming and complicated procedures required by the Federal Water Pollution Control Act provides more than ample opportunity for an alleged polluter to be accorded a full hearing. In regard to hearings on the contract cancellation due to a pollution violation, the existing standard government contract procedures governing such matters would apply. However, if the present regulations are inadequate, I support any necessary curing legislation.
Also, after reviewing all the pending legislative measures, it appears that they are limited in application to the Federal Water Pollution Control Act and the Clean Air Act. However, because of the long and tedious enforcement procedures involved in these acts, the Department of Justice has recently filed charges under an obscure 1899 federal statute. This law, Section 13 of the River and Harbor Act, (33 U.S.C. 407), prohibits the dumping or depositing of "any refuse matter of any kind or description" into any navigable water or tributary thereof. I suggest, therefore, that the subcommittee also consider applying the governmental procurement ban to those persons found in violation of this law.
Mr. Chairman, while the Congress is considering these bills, the Executive Branch has also expressed an interest in this idea. On February 21 I wrote to the Secretary of Defense concerning the President's February 4 executive order in regard to the prevention, control and abatement of air and water pollution at all federal facilities. In the letter, I suggested that the Department of Defense take the lead in administratively implementing – by amending the Armed Services procurement regulations – the suggestions that later developed into S. 3614. The Department ruled that a White House directed inter-agency task force was exploring the possibility of developing "a comprehensive federal program for utilizing purchasing, contracting and other policies to reduce environmental pollution". (At this point, I insert for the record, copies of this correspondence). I have requested a status report on the work of the task force, but thus far I have received no reply.
On February 24, I wrote a letter to every cabinet level department requesting their comments on the implementation of the procurement ban at the department level. Most of the replies stated that (1) any revision of procurement contracts should be directed to the General Services Administration, or (2) the White House is presently studying this matter. However, the Department of Interior replied that they have "reached the conclusion that we must include provisions in our contracts and grants requiring contractors and grantees to comply with regulatory standards." But, the Department also recommended that to have the desired effect any such procurement requirements must have government-wide application. (I include in the record, my letter and the replies from Interior and the other departments.)
Mr. Chairman, the federal government has an obligation to provide moral leadership in the fight for a livable environment. The passage of this legislation would not only be a positive step in this direction, but also give industry additional incentive to comply with existing law. I therefore urge the subcommittee to give serious consideration to this proposal.
Mr. COOK. Mr. President, section 306 of the committee bill, while similar in principle, departs considerably from S. 3614 and the existing law upon which it was modeled. First, the procurement prohibition takes effect only upon a "knowing" violation of standards defined in the act. I see no reason for the insertion of an additional factor which can only work to the detriment of the purpose of the section. The word "knowing" creates a presumption not found in similar and existing laws.
Other Federal procurement laws are not encumbered by such language. The Buy American Act – 41 U.S.C. 10, 10(b) – bars a contractor from Government work for a period of 3 years upon "a failure to comply with such provisions" of that act. The Walsh-Healy Act – 41 U.S.C. 35 – relating to minimum wages, maximum working hours, child labor laws, and health and safety conditions, subjects a violator to its penalty provision upon "any breach or violation of any of the stipulations" in the contract. Also, the Service Contract Act – 41 U.S.C. 351 – which extends to employees of Government service contracts the Federal minimum wage law, subjects a violator to the procurement penalty upon "any violation" or "when a violation is found." Mr. President, I contend that pollution violators deserve no greater protection than other lawbreakers.
Another major difference between the two measures is that section 306 of the committee bill only applies prospectively. Therefore, a polluter presently in violation of air quality standards is allowed to continue any existing contract, and to continue profiting from the U.S. Government at the expense of the community. However, S. 3614 applies not only prospectively, but also provides for the cancellation during the life of the contract should a pollution violation occur after both parties enter into the agreement.
Again, I can only cite the Walsh-Healy Act which permits the Federal Government to cancel a contract and "to make open market purchases or enter into other contracts for the completion of the original contract, charging any additional cost to the original contractor." The Service Contract Act also provides for "cancellation" and the charging of additional cost.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. MUSKIE. I yield 2 additional minutes to the Senator.
Mr. COOK. The last major difference between the two measures is that S. 4358 would apply the procurement ban only to "any facilities subject to such action by the court which are owned, leased, or supervised by such person." In explaining this language, the committee report states that procurement sanctions are limited "to contracts affecting only the facility not in compliance, rather than an entire corporate entity or operative division." It further states that a company with a "contract unrelated to the violation" is eligible for business with the Federal Government. I must differ with the committee on this point. It is possible, even with the strong sanctions contained in this act, that a large and diversified corporation may continue its multimillion dollar contractual arrangements with the Government even though one of its plants or factories is guilty of a so-called "unrelated violation." I can see no reason for such distinction.
A company is either in compliance with the law, or it is not in compliance. The Government will either do business with pollution lawbreakers, or it will not do business with pollution lawbreakers.
If a total procurement ban is in effect for the entire company it will certainly encourage compliance with the law. That I believe should be the purpose of section 306. That is the purpose of S. 3614.
Mr. President, I feel very strongly about the points I have discussed. However, I am fully aware of the pressures that the Public Works Committee operated under in drafting this far-reaching legislation. I commend the committee for reporting out the most stringent pollution control legislation in history. Therefore, in order that the Senate conferees may press for complete acceptance of the bill in conference with the House, I decline to offer my suggestions as amendments. However, since the House bill differs from ours, I fully expect my distinguished colleagues to retain section 306 in conference.
Mr. MUSKIE. I yield myself 2 minutes.
Mr. President, I compliment the distinguished Senator from Kentucky for having pressed this concept. Had it not been for his interest, I am sure that we would not have it even in its present form in the committee bill.
I ask unanimous consent to have printed at this point in the RECORD the portion of the committee report relating to this subject, so that we may have a full understanding of what the committee had in blind.
There being no objection, the excerpt was ordered to be printed in the RECORD, as follows:
SECTION 306. FEDERAL PROCUREMENT
The Committee considered proposals offered by Senator Muskie and by Senator Cook to assure that the Federal Government does not patronize or subsidize polluters through its procurement practices and policies.
Section 306 would make any person or corporation who fails to comply with a court order issued under this Act or who is convicted of a knowing violation of any schedule or timetable of compliance, emission requirement, prohibition, emission standard, or standard of performance, ineligible for a Federal contract for any work to be done at the polluting facility. This ineligibility would continue until the Secretary certifies that the facility is in compliance with the court order or the provisions of the Act.
This section would be limited, whenever feasible and reasonable, to contracts affecting only the facility not in compliance, rather than an entire corporate entity or operating division.
There might be cases where a plant could not participate in a Federal contract due to a violation but another plant owned by the same company might bid and transfer work to the first plant. This type of action would circumvent the intent of this provision. In this case, the company's second facility should also be barred from bidding until the first plant returns to compliance.
There would also be instances where a second plant within a corporation was seeking a contract unrelated to the violation at the first plant. In such a case, the unrelated facility should be permitted to bid and receive Federal contracts.
It is anticipated by the Committee that the Executive Branch will, in the near future, publish new Federal contract guidelines that will enable the Federal Government to suspend or revoke a contract once the contracting party is found to be in noncompliance with the air pollution standards or other requirements of this Act. This executive action would be specifically mandated by section 306(c).
The effectiveness of this section would depend on fast, accurate dissemination of information.
All Federal agencies would have to be rapidly apprized of any abatement order or conviction which would bar a facility from eligibility for Federal contracts. The Secretary would also have to act expeditiously to certify that a facility had achieved compliance, and notify all Federal agencies of that fact. Delays in reporting such information, leading to inaccurate public disclosures, would quickly render this section unworkable.
Mr. MUSKIE. Mr. President, earlier I sent to the desk an amendment on behalf of myself and the Senator from Kentucky (Mr. COOPER). I call up the amendment at this time.
The PRESIDING OFFICER. The amendment will be stated.
The assistant legislative clerk proceeded to read the amendment.
Mr. MUSKIE. Mr. President, I ask unanimous consent that further reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered; and, without objection, the amendment will be printed in the RECORD.
The amendment is as follows:
On page 48, line 11, insert the following new paragraph (4), and renumber succeeding paragraphs:
"(4) Six months following enactment of this section, and each year thereafter, the Secretary shall report to the Congress with respect to the development of systems necessary to implement the emission standards established pursuant to this section. Such reports shall include information regarding the continuing effects of such air pollution agents on the public health and welfare, the extent and progress of efforts being made to develop the necessary systems, the costs associated with development and application of such systems, and, following such hearings as he may deem advisable, any recommendations for additional Congressional action necessary to achieve the purposes of this Act. In gathering information for the purposes of the paragraph and in connection with any hearing, the provisions of subsection (5) (B) of this section shall apply."
Mr. MUSKIE. Mr. President, this is an amendment which I offered in committee in lieu of the judicial review amendment which Senator COOPER introduced and which the committee adopted. Nevertheless, the Senator from Kentucky (Mr. COOPER) thought that this provision ought to be included as complementary to his amendment on judicial review, because it provides for periodic reports to Congress on the development of systems necessary to implement the emission standards established pursuant to this section.
I think that those reports would be useful to Congress. I think they would be useful to us in evaluating any request for an extension of the deadline that might be made. So I offered the amendment, and the Senator from Kentucky supports it, and, so far as I know, the whole committee does.
Mr. COOPER. Mr. President, will the Senator yield?
Mr. MUSKIE. I yield.
Mr. COOPER. Mr. President, I am glad the Senator has offered this amendment. It would present to Congress, I believe, every 6 months–
Mr. MUSKIE. Six months would be the first one, and then every year thereafter.
Mr. COOPER. Progress on this bill; so if it became apparent to Congress that some action should be taken, it would be in a better position to do so. I am very pleased that the Senator has offered this amendment.
The PRESIDING OFFICER. Do Senators yield back their time?
Mr. HANSEN. Mr. President, before that, will the Senator yield?
Mr. MUSKIE. I yield.
Mr. HANSEN. Mr. President, I was just talking with a Member of Parliament from Israel. In discussing the proposed legislation before the Senate this afternoon, he observed that the nation of Israel had passed similar legislation some 8 years ago. He also observed that that legislation had never been enforced.
My question to the distinguished Senator from Maine is this: Am I correct that if the situation arose in time of war or in time of emergency when it was obvious that the paramount interest of the country would require that these standards be held in abeyance, when other concerns are of greater moment to us than the quality of the air under this legislation, does the President, or does someone in this country have the authority to suspend them for such time as may be required, in order to serve the paramount interest of the country?
Mr. MUSKIE. Congress has such authority, and only Congress.
Mr. HANSEN. Only Congress. The President does not have that authority.
Mr. MUSKIE. No.
Mr. HANSEN. I thank my distinguished colleague.
The PRESIDING OFFICER (Mr. GURNEY). The question is on agreeing to the amendment of the Senator from Maine.
The amendment was agreed to.
Mr. BOGGS. Mr. President, on behalf of the distinguished minority leader, the Senator from Pennsylvania (Mr. SCOTT), I ask unanimous consent that a statement by him in support of S. 4358, the bill now pending before the Senate, be printed in the RECORD.
There being no objection, Senator Scott's statement was ordered to be printed in the RECORD, as follows:
STATEMENT OF SENATOR SCOTT
Mr. President, I want to congratulate Senator Randolph and the members of the Public Works Committee on the excellent bill they have reported to us. S. 4358 represents the combined input of the Administration, both Houses of Congress and numerous concerned groups from the national community. I note with pleasure that many of the provisions of President Nixon's S. 3466, Amendments to the Clean Air Act, which I had the pleasure to work on and introduce, have been included in the Committee version. This legislation represents the highest form of nonpartisan political cooperation. Senators from both sides of the aisle took an active personal interest in developing the strongest possible air pollution control legislation. The bill before us represents a dynamic and aggressive assault on our national air pollution problems.
Every year, 200 million tons of contaminants are spilled into the air. The presence of these contaminants is not only dangerous from a health point of view, but it is also extremely costly in terms of economic damage to clothing, buildings, plant life and animal life. Unless this outpouring of contaminants is controlled, scientists tell us we may very well experience irreversible atmospheric and climatic changes capable of producing a snowballing adverse effect to the health and safety of our citizens. Four aspects of this bill are worthy of special note. They would accomplish
1. The implementation of a system of national ambient air quality standards to reduce at least ten major contaminants. These national ambient air quality standards should provide a minimum level of national air quality protection. Along with national air quality goals and standards for newly constructed sources of pollution the Secretary of HEW has the authority to enforce a cleaner air standard.
2. The "Hazardous Substances" provision gives the Secretary of HEW the authority to prohibit emissions of those substances having an adverse effect on the health of the surrounding community.
3. Automobile emissions comprise nearly 50 percent of our national air pollution control problem. By 1975, subject to possible delay of one year, the automobile industry will have to meet certain emission standards. This provision is tough, but necessary if we are to make a serious impact on our air pollution control problems.
4. The bill establishes a novel concept of public participation in the environmental enforcement process. The citizens suits authorized in the legislation will guarantee that public officials are making good on our national commitment to provide meaningful environmental protection.
Mr. President. No discussion of the environment would be complete if I were not to pay a special tribute to the Ranking Minority member of the Subcommittee on Air and Water Pollution, the distinguished Senator from Delaware, Mr. Boggs. Few men in this chamber have contributed as much to the betterment of our environment than the Senator from Delaware. His efforts, together with those of the Chairman of the Subcommittee, Mr. Muskie, and all members, both Republican and Democrat, are reflected in this meaningful piece of legislation.
In 1947, a rare air inversion over the town of Donora, Pennsylvania, trapped emissions from industrial plants in the Pittsburgh area. A lethal cloud of contaminants suffocated Donora for five days. During this period of time, over twenty people died and hundreds of others experienced severe respiratory problems. To guarantee that future generations of Americans can live without fear of the destruction of the very air they breathe, I urge immediate passage.
Mr. GRIFFIN. Mr. President, I yield myself 5 minutes.
The PRESIDING OFFICER. The Senator from Michigan is recognized for 5 minutes.
Mr. GRIFFIN. The Senator from Nebraska (Mr. HRUSKA) could not be here this afternoon, but he was very much concerned and wanted an indication of his concern reflected in this debate, regarding the provision in this bill authorizing certain class actions against the Secretary of Health, Education, and Welfare, or a manufacturer, in the event of noncompliance.
As a member of the Committee on the Judiciary, it is disturbing to me that this far-reaching provision was included in the bill without any testimony from the Judicial Conference, the Department of Justice, or the Office of Budget and Management concerning the possible impact this might have on the Federal judiciary.
No hearings were held. Obviously, it is related to other legislation providing for class actions – legislation being considered now by the Commerce and Judiciary Committees.
It would seem to me, even if such actions were to be authorized, that it would have been more appropriate to allow them to be instituted at some later date, after a period of time had elapsed, after Congress had an opportunity by 1975 or 1976 to see whether these standards could be met.
But to write such a provision into this bill now, without any idea of what it means – especially in terms of our judicial system – seems very unfortunate.
The Senator from Nebraska (Mr. HRUSKA), the ranking member of the Judiciary Committee, wanted that concern expressed. I certainly share it.
I yield now to the Senator from Kentucky.
Mr. COOK. Mr. President, I am very much concerned about this, as a member of both the Commerce and Judiciary Committees. I suggested at a much earlier date that we conceivably in the respective committees could get together and make a pattern for class actions.
I want the Senate to understand that we are now taking up in the Judiciary Committee a suit in the District of Columbia that, it is contended, could possibly include as many as 117 million plaintiffs. There is presently a suit in New York with 3,750,000 plaintiffs. There was a settlement made in a case, not too long ago, which was a class action, which was settled for a sum of approximately $135 million, and the judge in writing his opinion suggested acceptance of this for some 70,000 or 80,000 plaintiffs, stating that they should accept this settlement because the chances of their recovery on a trial were 50-50, if not less.
I would only say to the Senator that I am glad he brought this up. I am very much concerned about this discussion of a plaintiff being able to bring an action which he himself – and members like him – seeks, but he knows not whether anyone else has been damaged in any way, shape, or form. Yet, we set ourselves up here in a position to make it more convenient to settle a case than to try it on its own merits because of the overall estimated cost of a trial.
I repeat, I am glad the Senator brought up that point, because we have been struggling between the Commerce and Judiciary Committees for many weeks in an effort to bring up a motion for a class action suit.
I am sorry that we did not have an opportunity to sit down with the Public Works Committee and come up with basic standards for all class action suits that would be, at least, legally sanctioned by Congress. Suffice it to say that I am glad the Senator brought it up and that these remarks are in the RECORD.
Mr. GRIFFIN. Mr. President, as in the case of Senators, the various interested agencies could not learn about some provisions of this bill until a text was finally available on Monday of this week.
Mr. MUSKIE. Mr. President, let me say in response that first, there were hearings. This provision was included in legislation introduced last winter. There was considerable testimony. We have here, for instance, the testimony of Governor Sargent of Massachusetts, endorsing it.
We have the testimony of Paul Treusch, President of the Federal Bar Association, endorsing it.
We have the testimony of Douglas Head, the Republican Attorney General of the State of Minnesota, endorsing it. We have Prof. James Jeans of the American Trial Lawyers Association, endorsing it.
Furthermore, this is not a class action provision. I suggest that Senators read it.
Senate bill 3201, to which comparison was made by the Senator from Nebraska (Mr. HRUSKA) on yesterday, is a class action bill. S. 4358 is not. S. 4358 is limited to citizens acting on their own behalf.
Senate bill 3201 provides damages and a remedy for recovery of fines and restitution, and other monetary damages. The pending bill is limited to seek abatement of violation of standards established administratively under the act, and expressly excludes damage actions.
Senate bill 3201 provides for redress of consumer injury. The pending bill is limited to an action for enforcement on abatement of violations of administratively set standards.
Mr. President, I ask unanimous consent to have printed in the RECORD two staff memoranda prepared for me in response to the comments yesterday of the Senator from Nebraska (Mr. HRUSKA.)
There being no objection, the memorandums were ordered to be printed in the RECORD, as follows:
MEMORANDUM
1. The Administrative Procedure Act provides that reviewing courts "shall . . . compel agency action unlawfully withheld." The concept of compelling bureaucratic agencies to carry out their duties is integral to democratic society. Senator Hruska mentioned yesterday an example of where an administrative agency failed to act. The concept in the bill is that administrative failure should not frustrate public policy and that citizens should have the right to seek enforcement where administrative agencies fail.
2. Extracts from the hearing record on the citizen suit provision:
a. Governor Sargent, Republican Governor of Massachusetts, speaking on behalf of the National Governors Conference in response to a question if he supported the concept. Governor Sargent replied as follows: "Yes, I do. As a matter of fact, in my message to the legislature this year, I proposed a bill of rights which would give to the citizens of our State the right to clean air, the right to waters that are not contaminated, and the opportunity to take legal action if legal action is called for."
b. Paul Treusch, President of the Federal Bar Association "Section 4, by adding Section 108(c) (13), authorizes suits for private enforcement of air quality standards, implementation plans, and emission standards established under this section. We are very much in favor of this provision. Not only will this provision help establish a distinct public attitude of participation in the quality of our environment, it will give the public a problem-resolving tool to protect and enhance air quality."
c. Douglas Head, Republican Attorney General, State of Minnesota "The provision for private civil suits would be supported, I believe, by a large number of attorneys general with the caveat . . .
"The one danger that we can see from the men that I have talked with is the multiplicity of suits that would override compliance agreements already entered into by the Pollution Control Agency so that I believe that citizens should be very carefully correlated with the present enforcement provision so that we do not unnecessarily duplicate the enforcement of the law and that we do not unnecessarily clog up the courts where we are in fact making very swift efforts to enforce." The provision as currently drafted affords these protections.
d. Professor James Jeans for the American Trial Lawyers Association ". . . but we do want to commend the authors of the bill for the recognition of the value of private actions in a democratic society."
3. The fact that (a) citizens will be enforcing the same standards as administrative agencies, (b) notices are required to administrative agencies prior to bringing of an enforcement by citizens, and (c) clear discretion of the court to consolidate actions, will avoid multiplicity of suits.
4. The provision on the award of cost litigation is intended by the Committee, as it is stated in the report, to provide a mechanism for the courts to avoid frivolous and harassing litigation by permitting the courts to award costs to defendants when plaintiffs seek only harassment.
The provision in the bill S. 4358 providing for citizen suits bears little resemblance to the provision mentioned by Senator Hruska in the bill S. 3201.
a. S. 3201 provides for class action, such class required to meet the complex and difficult requirements of Rule 23 of the Federal Rules of Civil Procedures. S. 4358 is limited to citizens acting on their own behalf.
b. S. 3201 is designed to provide a damages remedy for recovery of fines, restitution and other monetary damages. S. 4358 is limited to seeking abatement of violations of standards established administratively under the Act and expressly excludes damage actions.
c. S. 3201 provides for redress of consumer injury. S. 4358 is limited to an action for enforcement or abatement of a violation of an administratively set standard.
6. Citizen enforcement may add to the burden of the courts – but in a democracy, the answer cannot lie in the denial of citizen access to the courts. In a society of Government of and by the people we foreclose participation by citizens at our peril. The provision is directed at providing citizen enforcement when administrative bureaucracies fail to act.
7. Time for establishment of enforceable standards is at a maximum twelve months away and it will be considerably more time before many administrative standards are eligible for enforcement – so any impact on the courts is in effect postponed until the courts will have the additional judges mentioned by Senator Hruska.
8. The Council on Environmental Quality, chaired by Russell Train, has established a Legal Advisory Committee to assist the Council. The Committee's chairman is Whitney North Seymour, Jr., United States Attorney for the Southern District of New York, and it includes many others. I ask unanimous consent that the membership of the Committee be inserted at this point in the record.
Malcolm Baldwin, Esq. senior legal associate, the Conservation Foundation, Washington, D.C.; William T. Coleman, Esq., Dilworth, Paxson, Kalish and Levy, Philadelphia, Pa.; Prof. David Currie, University of Chicago Law School and coordinator for Environmental Quality to the Governor of Illinois; Prof. Frank P. Grad, director, Legislative Drafting Service, Columbia Law School; Roger P. Hansen, executive director, Rocky Mountain Center on Environment, Denver, Colo.; A. Wesley Hodge, Esq., Hodge, Hillis and Dahlgren, Seattle, Wash.; Prof. Louis Jaffe, Harvard Law School; William F. Kennedy, Esq., corporate counsel, General Electric Co.; Nicholas Robinson, chairman, Environmental Law Council, Columbia Law School; Prof. Ann Strong, director, Institute for Environmental Studies, University of Pennsylvania; Prof. Joseph Sax, University of Michigan Law School; David Sive, Esq., Winer, Neuberger and Sive, New York City.
The Advisory Committee last week passed the following resolution on citizen participation in the courts:
It is the sense of the Advisory Committee that: Private litigation before courts and administrative agencies has been and will continue to be an important environmental protection technique supplementing and reinforcing government environmental protection programs.
ARGUMENTS ON CITIZEN SUITS
1. The citizen suit provision is new to members of the Senate and has not had adequate hearing.
A similar provision was included in S. 3546 as introduced, and substantial testimony from citizens' groups supported it as a key provision in this year's air pollution legislation.
2. This provision would encourage frivolous or harassing suits against industries and government agencies.
The bill provides no action for damages, only for the abatement of violation of standards, which are public policy. Expressly for the purpose of limiting harassing or frivolous suits, the bill provides that the court may award the costs of litigation, including reasonable attorney and expert witness, to either party as the public interest requires. The court would surely award costs to the defendant, a potentially expensive risk for the plaintiff, where the litigation was obviously harassing or frivolous.
3. A citizen suit provision is based on the assumption that the Federal and State agencies will be incompetent, corrupt or otherwise not discharge their responsibilities.
Citizens in bringing such actions are performing a public service. The limited resources of many State enforcement agencies, bearing the first line of responsibility under this bill, will be fully extended. This provision, requiring 30 days notice to State and Federal agencies, in which they may initiate abatement proceedings, will allow many violations to come to their attention which might otherwise escape notice. The only exceptions to this 30-day period for administrative action come for hazardous emissions or those of which the Secretary can be assumed to already have noticed.
4. Authorizing citizens actions against polluters and government agencies would burden already clogged courts.
A great number of these actions would come to the courts anyway, even if vigorously pursued by administrative agencies. Enforcement of an order to abate must be obtained in the courts, whether an agency or a private citizen initiates action. But more importantly, should the granting and protection of a right to clean air rooted in public policy be limited to what the courts can comfortably handle? We must legislate to protect the public health, then strengthen our court system as appears necessary.
The courts do not have the competence to handle the issues in air pollution control actions, and sending such actions there rather than confining them to expert administrative agencies, delays and confuses enforcement.
Enforcement of air pollution standards and regulations is not a technical matter beyond the competence of courts. This provision merely asks the court to do what it does best: a fact-finding job as to violations of a definite numerical standard. If a violation is found, a judicial remedy is fashioned as indicated above, citizen enforcement would not disrupt administrative enforcement, but would reinforce and extend it. Standards would be the same under either mode.
Mr. MUSKIE. Mr. President, we are talking, gentlemen, about apples and pears. What we are talking about here is a judicial way for citizens to enforce the provisions of this act.
May I make another point about it, that before any citizen can bring an action, he is required to notify the enforcement agency concerned of his intent to do so, and the specific, alleged violation which he has in mind. In other words, the idea is to use citizens to trigger the enforcement mechanism. If that enforcement mechanism does not respond, then the citizen has his right to go to court. This is a much more limited application of the concept of citizen access to the courts than anything that has been discussed by the Senator from Nebraska (Mr. HRUSKA ) or the Senator from Kentucky (Mr. COOK).
Mr. COOK. Mr. President, I merely brought this up in regard to the remarks of the Senator from Michigan (Mr. GRIFFIN), because I felt that it would be a good opportunity to do so. I am sorry that that opportunity has passed. I felt it was a good opportunity when I first suggested it, that we might change the uniform standards for class actions because the call for class actions was in the language, regardless of the amount in controversy, or the citizenship of the parties, which is in the language on page 83, lines 18 and 19, which constitutes, in essence, a class action. I felt that uniformity of language for class actions for this bill, and S. 3201, would be a good step forward in the name of uniformity.
Mr. MUSKIE. This does not require as class actions do, identification of the class or group before a suit is brought in the name of a class. This can be brought by an individual citizen. The court has authority to consolidate actions that might be taken by individual citizens.
Mr. COOK. May I say that the opportunity for the court to consolidate actions has been a part of Federal rules of procedure for a long, long time. That is already in existence.
Mr. MUSKIE. I understand. But the important distinction I want to make, if it is one – and I am told that it is – is that it is not necessary for a citizen to take advantage of this right to establish himself as a member of a class. He can bring suit as an individual citizen under this provision.
Mr. RANDOLPH. Mr. President, will the Senator yield?
Mr. MUSKIE. I yield.
Mr. RANDOLPH. Mr. President, the Senator from Maine mentioned several individuals who appeared at the hearings on that occasion. I would like the RECORD to reflect that one of the gentlemen was Stanley Preiser, of West Virginia, who is recognized as one of the finest trial lawyers not only in our State but also in the Nation.
Mr. GRIFFIN. Mr. President, I yield myself 3 minutes.
The PRESIDING OFFICER. The Senator from Michigan is recognized for 3 minutes.
Mr. GRIFFIN. Mr. President, I understand now that hearings were held around a year ago – and I stand corrected. I was mistaken.
Mr. MUSKIE. They were held on March 23 of this year, and not a year ago.
Mr. GRIFFIN. But, in spite of the impact upon the Federal courts, it is still true, I take it, that the views of the Justice Department and the views of the Bureau of the Budget was not requested.
Mr. MUSKIE. This is part of every bill. Administrative agencies are asked to report. This provision is in the legislation introduced. If these departments did not report on the matter, it is not my responsibility. It is theirs.
Mr. GRIFFIN. Mr. President, I wanted to make the point that this is a matter which is very much within the interest of the jurisdiction of the Judiciary Committee. I do stand corrected on the point that some hearings were held.
Mr. COOK. Mr. President, will the Senator yield 1 minute to me?
Mr. MUSKIE. Mr. President, I yield 1 additional minute to the Senator from Kentucky.
Mr. COOK. Mr. President, I state to the Senator from West Virginia that I am delighted that Mr. Preisor testified. Mr. Preisor and I went to law school together. He is a fine and distinguished lawyer.
I say again to the Senator from Maine that I merely brought this up for the RECORD. Page 84, lines 9 and 10 state:
Nothing in this section shall affect the right of such persons as a class or as individuals
That is plural. It is not as an individual, but as individuals who would constitute a class.
I merely set this out for the legislative record.
I say this to again emphasize that I think they are discussing and indicating a class action.
In this instance there is no jurisdictional amount in the bill. Therefore, the limit of authority is the $10,000 amount to get into the Federal courts.
I merely say that S. 3201 is the same. It allows anyone to bring suit in Federal court on the basis of $10 or more. But we are writing new authority and a new cause of action in the Federal court and not placing a jurisdictional amount on it.
I might say that I have no objection except that I think in the future we will eliminate all jurisdictional amounts in Federal court and we had better be ready to appoint a whale of a lot more Federal judges.
Mr. MUSKIE. Mr. President, I read from page 83, lines 24 and 25 of the bill. It states that such actions "may be brought by one or more persons on their own behalf."
Mr. HART. Mr. President, will the Senator yield?
Mr. MUSKIE. Mr. President, I yield 2 minutes to the Senator from Michigan.
Mr. HART. Mr. President, I would like to address myself at this time to section 304 of S. 4358, the citizen suit provision of the bill. I regard this provision as one of the most attractive features of the bill and am therefore disturbed by criticism of it which has been offered both within and without this Chamber.
The basic argument for the provision is plain: namely, that Government simply is not equipped to take court action against the numerous violations of legislation of this type which are likely to occur. In testifying on a similar bill before the Senate Subcommittee on Energy, Natural Resources and the Environment, former Attorney General Ramsey Clark spoke convincingly of this inevitable incapability. Mr. Clark stated:
It will be impossible for government enforcement to control all significant acts of pollution . . .
The extension of private right and effective sanctions for the persons directly affected or concerned will be essential if vital interests are to be protected. Our experience in areas of massive unlawful racial discrimination, such as in schooling, employment, and housing tells us that however hard it might try, government will never have the manpower, the techniques, or the awareness necessary to enforce the law for all. Private enforcement of those laws is the only way the individual can be assured that the rights cannot be violated with impunity.
Pollution control is another such area. If we are really serious about controlling the quality of our environment before it destroys the quality of our lives, we must give the individuals affected by, or concerned about pollution in his life, the power to stop them through legal process.
Far from risking an undue or inhibiting interference with Government enforcement, it will provide powerful supplementary enforcement. . . . and an effective and desirable prod to officials to do their duty.
It has been argued, however, that conferring additional rights on the citizen may burden the courts unduly. I would argue that the citizen suit provision of S. 4358 has been carefully drafted to prevent this consequence from arising. First of all, it should be noted that the bill makes no provision for damages to the individual. It therefore provides no incentives to suit other than to protect the health and welfare of those suing and others similarly situated. It will be the rare, rather than the ordinary, person, I suspect, who, with no hope of financial gain and the very real prospect of financial loss, will initiate court action under this bill. For the most part, only in the case where there is a crying need for action will action in fact be likely. In such cases, I would argue that action must be in the public interest.
The bill also provides for a notice requirement to State and Federal pollution agencies prior to the bringing of suit. This requirement, it is expected, will have the effect of prodding these agencies to act. In many cases, it is hoped, they will be able to act without resorting to the courts.
Even if litigation is in fact expanded under this bill, it must still be contended that such expansion is justifiable. As Ramsey Clark also stated at the hearings previously referred to:
There is no question that justice is denied in America because it is delayed, and court backlogs are a serious problem for society from every standpoint. But society has to have priorities and survival should be a pretty high priority. Survival depends upon the protection of our environment, and I think legal redress in America will be a major method of protecting that environment. The imposition of any additional caseload that might follow from this bill on the courts is one that it must gladly assume.
It may be that our judicial system must be expanded to provide for this caseload. Or it may be, as Mr. Clark states, that we may have to adjust the priorities within that system. The time perhaps has come to take major action to compel that adjustment. It is in part for that reason that some have suggested the elimination of threshold procedural defenses that consume a court's time en route to its examination of the merits of cases. And it is in part for that reason that some have suggested an end to the fault principle that monopolizes so much time in automobile accident litigation.
It has been argued that even if the courts can meet the burden of cases arising under this bill, defendants may be unduly harassed by frivolous suits which may be brought. The bill defends this criticism by providing that the court "may award costs of litigation, including reasonable attorney and expert witness fees, whenever the court determines such action is in the public interest." Given the escalating costs of attorneys fees today, I find it difficult to imagine that many will engage in the frivolity which appears so worrisome to some.
Yesterday, the distinguished Senator from Nebraska (Mr. HRUSKA) referred to Chief Justice Burger's remarks about the dangers inherent in providing additional rights of action enforceable in Federal courts.
I am aware of the Chief Justice's caution in this area, and I believe it to be soundly based.
However, I would remind my colleagues of another cautionary remark to which he referred in one of his opinions, namely, Office of Communication of United Church of Christ v. FCC, 359 F. 2d 994 (1966). In that opinion referring to the right of citizens to appear before the FCC, he cited with approval a statement of the late Edmond Cahn, which reads:
Some consumers need bread; others need Shakespeare; others need their rightful place in the national society – what they all need is processors of law who will consider the people's needs more significant than administrative convenience.
It is my hope that both we and those administering our judicial system will take heed of that advice and continue to be guided by it.
Mr. President, I was off the floor when the Senator from Kentucky made his remarks and I may not be responding to what was said.
I would make this point, however, relative to the specific issue now before the Senate.
In legislation of this type, we will find very likely noncompliance which in number or degree are far beyond the capacity of the Government to respond to. This is one of the frustrations.
We do not have to serve on commissions such as the Commission on Civil Disorders or Violence or anything else to know that one of the frustrations across this country is the increasing number of our citizens who feel that Congress has made them a promise, but that there are no means of obtaining delivery on that promise.
The burden on the Department of Justice is so great that the agency cannot respond to it. To allow the citizen the right to sue on his own behalf may indeed increase the burden on the Federal courts. But this is not an adequate response to the frustrated citizen who seeks that right.
Our obligation, I feel, is to bear that burden by expanding the capacity of the court system to respond to the frustrated citizens.
Mr. MATHIAS. Mr. President, I send to the desk an amendment and ask that it be stated.
The PRESIDING OFFICER. The amendment will be stated.
The assistant legislative clerk read as follows:
On page 62, after line 22, insert:
"(d) The Secretary shall publish in the Federal Register the results of each of his tests of vehicles and vehicle engines under this section, as promptly as possible and at least every six months, in such nontechnical manner as will reasonably disclose to prospective purchasers (at retail) of new motor vehicles and new motor vehicle engines the comparative performance of the vehicles and engines tested in meeting the air pollution emission standards required by the regulations prescribed under section 202 of this Act."
Mr. MATHIAS. Mr. President, this is an amendment which would require that every 6 months the Secretary publish automobile pollutant emission levels which have been determined for the various makes and models of cars in the Federal Register.
It makes it possible, therefore, for the public to actively participate in the program for purity and cleaner air by purchasing the cars which are in greatest compliance with the purpose of this act.
Mr. MUSKIE. Mr. President, on the face of the amendment, it is perfectly consistent with the objectives of the bill and the desire to make the performance standards understandable to the public.
I want to indicate to the Senator from Maryland that I am willing to take the amendment to conference, if the Senate approves, with the further understanding that if there are problems as we evaluate the matter, I will take them up with the Senate and with the conferees.
Mr. MATHIAS. Mr. President, I thank the Senator from Maine.
Mr. MUSKIE. Mr. President, I yield back the remainder of my time.
Mr. MATHIAS. Mr. President, I yield back the remainder of my time.
The PRESIDING OFFICER. The question is on agreeing to the amendment of the Senator from Maryland.
The amendment was agreed to.
The PRESIDING OFFICER. If there be no further amendment to be proposed, the question is on the engrossment and third reading of the bill.
The bill was ordered to be engrossed for a third reading and was read the third time.
Mr. MUSKIE. Mr. President, I ask unanimous consent that the Committee on Public Works be discharged from further consideration of H.R. 17255.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. MUSKIE. Mr. President, I ask unanimous consent that the Senate proceed to the consideration of H.R. 17255.
The PRESIDING OFFICER. The bill will be stated by title.
The ASSISTANT LEGISLATIVE CLERK. A bill (H.R. 17255) to amend the Clean Air Act and for other purposes.
The PRESIDING OFFICER. Is there objection to the request of the Senator from Maine?
There being no objection, the Senate proceeded to consider the bill.
Mr. MUSKIE. Mr. President, I ask unanimous consent that all after the enacting clause be stricken and that the text of S. 4358, as amended, be substituted.
The PRESIDING OFFICER. Without objection, it is so ordered.
The question is on agreeing to the amendment in the nature of a substitute. The amendment was agreed to.
The PRESIDING OFFICER. The question is on the engrossment of the amendment and third reading of the bill.
The amendment was ordered to be engrossed and the bill to be read a third time.
The bill was read a third time.
Mr. MUSKIE. Mr. President, I ask for the yeas and nays on passage.
The yeas and nays were ordered.