September 22, 1970
Page 33078
NATIONAL AIR QUALITY STANDARDS ACT OF 1970
The Senate continued with the consideration of the bill (S. 4358) to amend the Clean Air Act, and for other purposes.
AMENDMENT No. 928
Mr. DOLE. Mr. President, I call up amendment No. 928.
The PRESIDING OFFICER. The amendment will be stated.
The assistant legislative clerk proceeded to state the amendment.
Mr. DOLE. 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 the amendment will be printed in the RECORD.
The amendment reads as follows:
On page 48, beginning with line 11, strike out all through line 6 on page 52, and insert in lieu thereof the following:
"(4) (A) Within twenty-four months but no later than twelve months before the effective date of standards established pursuant to this subsection any manufacturer or manufacturers may file with the Secretary an application for a public hearing on the question of a suspension of the effective date of such standards for one year. Upon receipt of such application, the Secretary shall promptly hold a hearing to enable such manufacturer or manufacturers and any other interested person to present information relevant to implementation of the standards.
"(B) In connection with any hearing under this subsection, the Secretary may sign and issue subpenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents, and administer oaths. Witnesses summoned shall be paid the same fees and mileage that are paid witnesses in the courts of the United States. In case of contumacy or refusal to obey a subpena served upon any person under this subparagraph, the district court of the United States for any district in which such is found or resides or transacts business, upon application by the United States and after notice to such person to appear and give testimony before the Secretary or to appear and produce documents before the Secretary, or both, and any failure to obey such order of the court may be punished by such court as a contempt thereof.
"(C) Within six months after such receipt of the application for suspension the Secretary shall, if he finds upon a preponderance of evidence adduced at such hearing that a suspension is essential to the public interest and the general welfare of the United States, that all possible and good faith efforts have been made to meet the standards established by this subsection, and that effective control technology, processes, operating methods, or other alternatives are not available or have not been available for sufficient period to achieve compliance prior to the effective date of such standards even with the full applications of section 309 of this Act, recommend to Congress that (i) the effective date of such standard be suspended for a period of only one year, and (ii) the emission standard that should be applied during any such suspension which standard shall reflect the greatest degree or emission control possible through the use of technology available.
"(D) The findings and recommendations required by this subsection shall not be subject to judicial review. Such recommendations shall be effective as law at the end of the first period of sixty calendar days of continuous session of Congress after the date on which the recommendation is transmitted to it unless, between the date of transmittal and the end of the sixty-day period, either House passes a resolution stating in substance that the House does not favor such recommendation.
"(E) For the purpose of this paragraph"(i) continuity of session is broken only by an adjournment of Congress sine die; and "(ii) the days on which either House is not in session because of an adjournment of more than three days to a day certain are excluded in the computation of the sixty-day period.
"(F) Nothing in this paragraph shall extend the effective date of any emission standard established pursuant to this subsection for more than one year."
Mr. DOLE. Mr. President, a parliamentary inquiry.
The PRESIDING OFFICER. The Senator will state it.
Mr. DOLE. Mr. President, we are under a time limitation of 1 hour.
The PRESIDING OFFICER. The Senator is correct, 1 hour, 30 minutes on each side.
How much time does the Senator from Kansas yield himself?
Mr. DOLE. Mr. President, I yield myself 10 minutes.
The PRESIDING OFFICER. The Senator from Kansas is recognized for 10 minutes.
Mr. DOLE. Mr. President, in 1968, moving sources were responsible for more than 42 percent of the total emissions of the five major pollutants – including 64 percent of the carbon monoxide and 50 percent of the hydrocarbons. In health effects, these pollutants may cause cancer, headache, dizziness, nausea, metabolic and respiratory diseases, and the impairment of mental processes. In particular, the President pointed out in his message on the environment that:
Studies show that exposure to 10 parts per million of carbon monoxide for approximately 8 hours may dull mental performance. Such levels of carbon monoxide are commonly found in cities throughout the world. In heavy traffic situations, levels of 70, 80 or 100 parts per million are not uncommon for short periods.
Solving our air pollution problems therefore depends on the achievement of significant reductions in automobile emissions. Because of this fact, the Public Works Committee determined that the establishment of motor vehicle emission standards is a policy decision so important to public health that it should be made by the Congress, rather than the Secretary of Health, Education, and Welfare. Because Congress has made the establishment of emission standards a question of congressional policy, it should retain the authority to review that policy decision on the basis of social, health, and economic considerations. Congress will have a complete record on the basis of the Secretary's findings, which will enable it to act expeditiously, if action is required.
Further, the argument for judicial review is convincing, but I cannot agree with that approach for several reasons. First, there is an increasing tendency to delegate responsibility for policy decisions to the judiciary. While that branch of Government is less susceptible to political and economic pressures, it has been increasingly subjected to the pressure of a growing backlog of cases. The senior Senator from Nebraska, in discussing section 304 of this bill, noted yesterday that Chief Justice Burger had called attention to the plight of the judicial system. The words of the Chief Justice are worthy of our serious consideration:
Meanwhile, not a week passes without speeches in Congress and elsewhere, and editorials, demanding new laws, new laws to control pollution, new laws to change the environment, new laws to allow class actions by consumers to protect the public; but the difficulty lies in our tendency to meet new and legitimate demands for new laws but without adequate considerations for the consequences on the courts.
The Senator from Nebraska also inserted the appendix of the fiscal year 1969 annual report of the Director of the Administrative Office of the U.S. Courts. It contained convincing figures that indicate the Congress must be very careful not to further overload the judicial system.
Although the provision for judicial review contained in the bill provides that the automobile manufacturers' petition would be expedited, the decision of the U.S. Court of Appeals for the District of Columbia is subject to review by the U.S. Supreme Court. It is likely that if the automobile manufacturers do not appeal, other interested persons or the United States will.
Furthermore, there are other procedural safeguards incumbent in the judicial process that may delay the final decision on whether an extension will be granted until the issue becomes moot.
I believe congressional review, based on the Secretary's findings and recommendations, is the best answer to the difficult problem created by the establishment of a 1975 deadline.
Mr. President, let me read some excerpts from the amendment so that it may be fully understood.
The amendment reads in part:
"(4) (A) Within twenty-four months but no later than twelve months before the effective date of standards established pursuant to this subsection any manufacturer or manufacturers may file with the Secretary an application for a public hearing on the question of a suspension of the effective date of such standards for one year. Upon receipt of such application, the Secretary shall promptly hold a hearing to enable such manufacturer or manufacturers and any other interested person to present information relevant to implementation of the standards."
The next section indicates that in connection with the hearings, of course, certain subpoenas and other procedures will be followed.
Section (C) states:
"(C) Within six months after such receipt of the application for suspension the Secretary shall, if he finds upon a preponderance of evidence adduced at such hearing that a suspension is essential to the public interest and the general welfare of the United States, that all possible and good faith efforts have been made to meet the standards established by this subsection, and that effective control technology, processes, operating methods, or other alternatives are not available or have not been available for sufficient period to achieve compliance prior to the effective date of such standards even with the full applications of section 309 of this Act, recommend to Congress that (i) the effective date of such standard be suspended for a period of only one year, and (ii) the emission standard that should be applied during any such suspension which standard shall reflect the greatest degree or emission control possible through the use of technology available."
Mr. President, I specifically note the language in section (D)
"(D) The findings and recommendations required by this subsection shall not be subject to judicial review. Such recommendations shall be effective as law at the end of the first period of sixty calendar days of continuous session of Congress after the date on which the recommendation is transmitted to it unless, between the date of transmittal and the end of the sixty-day period either House passes a resolution stating in substance that the House does not favor such recommendation."
Mr. President, the chairman of our subcommittee and the ranking minority member of the subcommittee stressed time and time again that we are making very difficult policy decisions.
They have been made time after time by Congress, but we have to accept the responsibility for making these very difficult decisions. The same is true with respect to emission standards for model year 1975. It seems to me that if we wish to be consistent, Congress must accept responsibility for extension of that deadline in the event the standards cannot be met.
While I have no quarrel with judicial review as an orderly procedure, in this instance where Congress imposes standards, if good faith efforts are made, an extension might be necessary.
Why should not Congress have the final word on whether or not the extension should be granted?
By Congress making the final judgment, the automobile industry would not have to wait 1, 3, 4, 5, 6 months, or 2 years for a court to act, but would have a decision within 60 days.
I have no pride of authorship in the amendment. I believe it fits the situation. It puts the matter squarely up to Congress: Should we pass a law which everyone agrees imposes very strict standards, and then back away from it and say, "Leave it up to the Court or the Secretary." I feel if we are willing to impose deadlines today we should be willing to determine in the future whether the deadlines should be extended.
Therefore, I strongly suggest this amendment does offer some compromise. Mr. President, in conclusion I wish to say that this amendment is the result of efforts by the subcommittee and the full committee to find the best possible avenue of resolving a very difficult problem. If we tell a great industry it must meet certain standards by January 1, 1975, or the 1975 model year, then as indicated earlier, we must accept the responsibility for making the final judgment. My amendment would be a substitute for language now contained in the bill and would give Congress this vital responsibility. It is patterned very much after the reorganization acts submitted by the executive branch from time to time.
If either the House or the Senate do not accept the recommendations of the Secretary for a 1-year extension, then there is not a 1-year extension, but at least we then come to grips with the problem we created by the passage of this legislation. It occurs to me that in fairness to the industry, to the courts, and the Secretary, this should be a partnership. There should be a coming together and this amendment would provide that compromise because in the first instance the Secretary holds the hearings, he makes the recommendations, and we have 60 legislative days in which to act or not to act.
It does offer a compromise and we would not "pass the buck," so to speak, to the judiciary system of the United States.
Mr. BOGGS. Mr. President, will the Senator yield for 3 minutes?
Mr. DOLE. I yield 3 minutes to the Senator from Delaware.
Mr. BOGGS. Mr. President, I wish to commend the distinguished Senator from Kansas (Mr. DOLE) for offering this amendment, together with his excellent presentation and explanation of the amendment.
I wish to express my strong support for the amendment.
One of the most significant aspects of this legislation is the deadline proposed under section 202(b) which requires a specific degree of emission control by the 1975 automotive model year.
We must realize that a possibility exists that good faith effort will still find the automotive industry short of that low-pollution goal. Therefore, the committee wisely provided a provision for secretarial review, on the question of granting relief for 1 year in the deadline. Under the proposal made by the Senator from Kentucky (Mr. COOPER) and the Senator from Tennessee (Mr. BAKER) and incorporated into the bill, the Secretary's decision would be subject to judicial review.
The Dole amendment preserves the basic thrust of section 202(b) (4), but returns the responsibility for review of the Secretary's decision to the Congress.
It is my view that congressional review is more appropriate in light of the responsibility that the Congress is assuming in establishing a specific standard of emissions control.
The amendment of the Senator from Kansas (Mr. DOLE) encourages the Congress to meet that responsibility.
I am happy to join with him, and I do support his amendment.
I thank the Senator for yielding.
Mr. MUSKIE. Mr. President, will the Senator yield to me for a minute or two?
Mr. DOLE. I yield.
The PRESIDING OFFICER. The Senator from Maine has his own time.
Mr. MUSKIE. Mr. President. I support the amendment and the time in opposition should go to someone else. I would suggest, if he is willing, the Senator from Kentucky take the time in opposition.
The PRESIDING OFFICER. Who yields time?
Mr. COOPER. Mr. President, I yield myself 1 minute.
The PRESIDING OFFICER. The Senator from Kentucky is recognized for 1 minute.
Mr. COOPER. Mr. President, the Senator from Delaware is controlling the time.
Mr. BOGGS. The Senator from Kansas is controlling time for those in favor.
Mr. MUSKIE. Technically I control time of those against.
Mr. COOPER. I understand the Senator from Florida (Mr. GURNEY) will offer an amendment to the amendment of the Senator from Kansas. Is it the Senator's intent to offer that amendment now?
Mr. GURNEY. Mr. President, will the Senator yield?
Mr. COOPER. I yield.
Mr. GURNEY. Once we debate the issues on the Dole amendment I do intend to offer an amendment to the Dole amendment to change the time provision in the Dole amendment.
Mr. COOPER. Is the Senator prepared to offer his amendment now?
Mr. RANDOLPH. Mr. President, I cannot hear the discussion that is going on. I am not critical but I make the point of order that the Senate is not in order.
The PRESIDING OFFICER. The Senate is not in order and the Senate will be in order.
Since the Senator from Maine is supporting the amendment, the minority leader or his designee will control time in opposition.
Mr. BOGGS. Mr. President, the Senator from Kentucky (Mr. COOPER) is in opposition.
The PRESIDING OFFICER. The Senator from Kentucky has control of the time in opposition. Does the Senator yield himself time?
Mr. COOPER. I yield myself 2 minutes. Mr. President, if the Senator from Florida is not ready to send his amendment to the Dole amendment to the desk, I am ready to present my case against the Dole amendment.
Mr. GURNEY. Mr. President, if the Senator would yield, I shall be very happy to send my amendment to the desk. Then we can dispose of the whole thing.
Mr. COOPER. Mr. President, I yield the floor.
The PRESIDING OFFICER. Who yields time to the Senator from Florida?
Mr. DOLE. Mr. President, I yield 1 minute to the Senator from Florida.
Mr. GURNEY. Mr. President, I send an amendment to the amendment to the desk.
The PRESIDING OFFICER. The Chair is advised that the Senator may not offer his amendment until all time is yielded back or used on the pending amendment.
Mr. GURNEY. Mr. President, a parliamentary inquiry.
The PRESIDING OFFICER. The Senator will state it.
Mr. GURNEY. Can the amendment simply be read? That is all I want to do.
The PRESIDING OFFICER. The amendment may be read.
The assistant legislative clerk read the amendments intended to be proposed to the amendment of
Mr. DOLE, as follows:
On page 1, beginning on line 1, strike "Within twenty-four months but no later than twelve months".
On page 1, line 2, capitalize the word "before".
On page 1, line 4, after the word "application" insert the following: "in a timely manner to be determined by the Secretary".
Mr. GURNEY. Mr. President, I shall take just a minute to explain my amendment briefly, so the Senator from Kentucky can have the two amendments before him and present his argument to both.
All this amendment does is change the time provision in the Dole amendment in which application can be made to the Secretary for relief under the bill. The Dole amendment provides that application cannot be made before 2 years prior to January 1, 1975, when the standards take effect, and they cannot be made any later than 1 year prior to that date. My amendment simply provides that the automobile manufacturers may make application–
The PRESIDING OFFICER. The time of the Senator from Florida has expired.
Mr. DOLE. Mr. President, I yield 1 minute to the Senator from Florida.
The PRESIDING OFFICER. The Senator from Florida.
Mr. GURNEY. My amendment merely provides that the automobile manufacturers may go to the Secretary at any time, in a manner to be determined timely by him, to present their case.
The reason why I am offering the amendment is that, as I understand it, a great deal of lead time is necessary, somewhere between 2 and 2½ years, of tooling-up-time processes for the manufacturers, and that they need a longer time than 24 months.
Mr. DOLE. Mr. President, I yield 2 minutes to the Senator from Maine (Mr. MUsKIE).
Mr. MUSKIE. Mr. President, two issues have been raised. I would like to respond to the first one initially in the 2 minutes the Senator has just given me.
The issue raised by the Senator from Florida I shall discuss later, but, with respect to the Dole amendment, I support it. I supported it in committee. It was offered in committee as a substitute for the judicial review provision which is in the bill.
I support it for these reasons, all of which I think have been touched upon by the distinguished Senator from Kansas:
First of all, we are making a congressional policy decision if we enact the law. It is a serious one and without precedent. We have done it because of the urgency of the problem. If the policy is changed, only the Congress should change it. The advantage of the Dole amendment is that it would bring the decision back to Congress to be made. For that reason I support the Dole amendment.
The second reason why I support the Dole amendment is that this is a technical question. I think the judiciary, within the judicial review provisions in the bill, would find it difficult to come to grips with technical decisions of this complexity. On the other hand, in the administration we have an agency established by Congress which has developed the expertise, know-how, and background to review any request for a change in the deadline. The Dole amendment would put that machinery into motion. After it had completed its work, the Secretary would then make a recommendation to the Congress, and the policy decision would be made here, with the benefit of all the background developed by the Secretary in the administrative process.
So I think the Dole amendment is an ideal way to get at the question of whether or not to postpone the deadline at some point in the future. For that reason, I support it. I think it makes a great deal of sense. It was offered in committee. The vote was very close. As I recall it, it was 8 to 6. So the committee was pretty closely divided on it. For that reason, I have no hesitation to support this amendment, as I did in committee, to support it on the floor, and to urge the Senate to support it, as well.
The PRESIDING OFFICER. Who yields time?
Mr. GRIFFIN. Mr. President, I ask the Senator from Kentucky to yield me time.
Mr. COOPER. I shall yield the Senator, but first I yield myself 30 seconds. This is an important amendment. It involves the only possibility of review, what I would call due process of law, in this provision of the bill. I can attest that it is hard to understand the bill, with all its provisions, even after working on it for weeks and months. The Senator from Maine knows that so well.
I would like to ask unanimous consent that we may have a quorum call, without the time being taken from either side, in order to get more Senators to listen to the debate on this bill which will have great impact upon the economic and social fabric of this country.
Mr. MUSKIE. Mr. President, is this to be a live quorum?
Mr. COOPER. No.
Mr. MUSKIE. I have no objection.
The PRESIDING OFFICER. The clerk will call the roll, and without objection the time will be taken from neither side.
The assistant legislative clerk proceeded to call the roll.
Mr. COOPER. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered. Who yields time?
Mr. COOPER. Mr. President, I yield to the distinguished Senator from Michigan (Mr. GRIFFIN), but since this is a statement, as I understand it, or a discussion of the bill, I ask that the time be taken from the time allotted to the bill.
The PRESIDING OFFICER. The Senator from Michigan himself has the time on the bill.
Mr. GRIFFIN. I thank the Senator. Mr. President, I yield myself 15 minutes. Mr. President, while Senators are considering the merits of the Dole amendment and the proposed amendment thereto offered by the Senator from Florida (Mr. GURNEY), I should like to address myself to some broader aspects of the bill.
I am deeply concerned about this bill because it introduces a novel concept to automotive emission control – the concept of brinkmanship. An industry pivotal to the U.S. economy is to be required by statute to meet standards which the committee itself acknowledges cannot be met with existing technology.
Mr. President, brinkmanship is risky business. It is especially risky when it is applied to a key industry, and when it is based upon such questionable premises.
Mr. President, there can be no argument about the need for establishing and pursuing air quality standards that will protect the public health. We are long past the day when anyone could think that improving our air quality will be neither painful nor expensive.
But another unavoidable fact is that air pollution – whether coming from factory smokestacks, automobile tail-pipes, or backyard incinerators – is the end product of an otherwise highly successful economic system which is second only to the environment in assuring the physical well-being of most Americans.
Obviously, to the extent that it is reasonably necessary to penalize the economy to gain cleaner air, we must do so. But if we penalize the economy excessively – beyond what is necessary – we shall win no victory.
In that light, it becomes important to point up some of the problems which title 2 of the bill is likely to cause the automobile industry. It is significant that the most far reaching of these provisions was devised when the bill was considered by the subcommittee in executive session, long after hearings had been concluded. Indeed, as I understand it, there has never been testimony in either the House or Senate on the concepts put forth in section 202 of this bill. Because that is the situation, I want to develop some facts for the record – facts which otherwise might not come to the attention of Senators because of the absence of hearings on section 202.
Interestingly enough, for Congress to establish standards, as proposed in section 202 without even a hearing or the benefit of written comment, is to set an example which no administrative agency would dare to follow.
Amid the current fad to blame the automobile for a variety of problems, Congress should not lose sight of the fact that the manufacture, sale and servicing of motor vehicles is a vital industry in the U.S. economy. The availability of automotive transportation is a basic factor in the personal economy and daily living of most of the identical people we seek to protect from the effects of pollution.
Mr. President, 800,000 Americans are directly dependent upon the automobile industry for their livelihoods and more than 14 million other jobs are dependent upon its products – in all, 28 percent of all private nonfarm employment in the United States. Cars and trucks generate 10 percent of all taxes collected by Federal, State, and local governments combined. Expenditures for automotive transportation account for more than 16 percent of our gross national product. Even a slight dip in auto sales, to say nothing of a strike at General Motors, sends shock waves throughout the financial community.
This bill, as written, proposes to give the automobile industry from 18 to 30 months to make a technological breakthrough that has withstood more than 15 years of research – and even this illogically short time frame ignores procedural requirements of the legislation which could easily consume in excess of 12 months.
This bill, as written, would saddle the automobile industry with additional problems, harassments, and unreasonable demands and expenses at a time when rapidly rising costs are already putting it under a severe handicap in competing with foreign producers – to the detriment of our balance of payments.
In short, Mr. President, this bill holds a gun at the head of the American automobile industry in a very dangerous game of economic roulette.
Such a monumental gamble should not be taken unless we are reasonably sure the potential results are worth the risk we incur. Let us look, therefore, at what it is that we actually stand to gain.
Section 202 of the bill would require that, by 1975, emissions of hydrocarbons and carbon monoxide be reduced by 90 percent below the 1970 levels. It would require that oxides of nitrogen, which are not now federally regulated, undergo a similar reduction 5 years after standards are set. Since the Secretary is expected to set standards in 1971, the 90-percent reduction in nitrogen oxides would be required in 1976.
At first blush, those sound like impressive gains. They are, in effect, a 5-year advance over the timetable that the President, supported by the Department of Health, Education, and Welfare, announced last February.
However, I think we need to look more closely at these legislatively imposed standards if we are to put them into perspective with the full record as it stands today.
To start with, it is interesting to note that last month the Council on Environmental Quality submitted data attributing 42 percent of manmade pollutants to transportation. I understand that the automobile share is set at 39 percent – 39 percent, not the 60 to 90 percent that has been so frequently charged. It is a serious mistake to pin too much hope on cleaning up the air by cracking down on automobiles. Total elimination of automotive pollution would still leave us with more than 60 percent of the total pollution problem to deal with.
Yet this bill concentrates its heaviest fire on the smaller part of the job. It is another serious mistake to fall into the trap of thinking that stationary sources of pollution can be offset by reducing automotive pollution. It may be recalled that Mayor Lindsay recently enunciated that fallacious policy in reference to allowing expansion of Consolidated Edison's Astoria plant to relieve New York City's severe power shortage. He indicated it would be possible to offset added pollution from the powerplant by curtailing auto emissions – but the apparent logic of this position is quite misleading.
The fact is that the photochemical smog and the carbon monoxide concentrations caused, in large pant, by automotive emissions are not to be confused with the kind of air pollution that brought on London's famous "killer fog" of 1952 or the 1948 tragedy in Donora, Pa. Those catastrophes were not caused by hydrocarbons, oxides of nitrogen, or carbon monoxide – the major automotive pollutants. They were caused by the combination of sulfur oxides and particulates, which come from stationary sources, including power generating plants. Motor vehicles contribute about 1 percent of the sulfur oxides and, even with leaded gasoline, about 3 percent of the particulates in our national air. I might mention that London's progress in cleaning its atmosphere has been accomplished by putting controls on everything but automotive vehicles.
Furthermore, the automobile contributes 39 percent of our total manmade air pollution only when pollutants are measured on a tonnage basis, primarily because of carbon monoxide. On the same weight basis, however, it takes something like 220 times as much carbon monoxide to attain the same "threshold health effect" as that which results from sulfur oxides. This was the judgment of California's health authorities, who have had more actual experience with pollution than anybody else, in setting their ambient air standards.
The point is that when pollutants are measured by their effects on health rather than by their gross weight, the automobile's role in the picture drops off sharply. In the June 1970 issue of Environmental Science and Technology, two University of California professors concluded that automobiles are responsible for only 12 percent of total U.S. air pollution when measured by pollution harmfulness.
Whichever figure we choose to accept – 12 percent or 39 percent – much of this automotive pollution is being produced by older uncontrolled automobiles which predate the use of present emission controls. The committee report itself makes this clear. These older cars are being scrapped at the rate of more than 7 million a year. Let us look from an emissions viewpoint at the new and used cars which are replacing them.
Beginning in 1963, automobiles were equipped with crankcase ventilation systems which eliminate 20 percent of the hydrocarbon emissions from an uncontrolled vehicle.
Another 60 percent of the hydrocarbons and all of the carbon monoxide comes from the exhaust pipe. Beginning with the 1966 models in California and 1968 nationwide, exhaust controls substantially lessened that source of emissions. In the 1968 and 1969 models, 62 percent of hydrocarbons and 54 percent of carbon monoxide emissions were eliminated. Improvements in 1970 controls raised these percentages to 69 percent for hydrocarbons and 70 percent for carbon monoxide.
So, Mr. President, as we consider this bill, it is very important to keep in mind that the automobile industry already – due to their own efforts and due, certainly, to the prodding by governments, both State and Federal, has already about eliminated 70 percent of the pollutants coming out of automobile exhausts. Now, this bill would require the further elimination of 90 percent of the remaining 30 percent within a very short period of time – by 1975 – even though the technology to do so does not exist today.
Of the 31 percent of the remaining hydrocarbon emissions, nearly two-thirds resulted from evaporation from the gas tank and carburetor. Evaporative control systems on all 1971 cars have virtually shut off that source of pollution.
All told, then, 80 percent of the hydrocarbons and up to 70 percent of the carbon monoxide emissions have been eliminated on 1971 models. Oxides of nitrogen will come under control in California in 1971 and nationwide in 1973.
The committee report cites testimony from the National Air Pollution Control Administration to the effect that these gains are illusory because present exhaust controls quickly lose their efficiency through use. However, NAPCA qualified this conclusion by noting that it was based on a broad interpretation of field surveillance tests conducted by the State of California.
Actually, these tests show that the durability of exhaust control systems has improved year by year with the technology. For 1969 cars, carbon monoxide emissions were more than 15 percent below the standard even for the greatest amounts of driving mileage reported. Even though hydrocarbon deterioration has been more resistant to solution, less than 6 percent of the hydrocarbon reduction has been found to be lost through deterioration at 50,000 miles of driving.
The PRESIDING OFFICER. The Senator's 15 minutes have expired.
Mr. GRIFFIN. I yield myself an additional 10 minutes.
Some experts allege that lead additives are a major factor in the deterioration of emission control.
Reduction in the amounts of lead additives in gasoline appears to be a further step in improving the long-range performance of emission controls. More rapid progress will be made in this area as petroleum companies move almost daily to expand the availability of such fuels, for which the major part of current U.S. auto engine production is designed.
The best proof of how well present emission controls work is the fact that air quality already is improving as far as automotive emissions are concerned. Even in Los Angeles, with its steady increase in automotive population, the peak output of hydrocarbons and carbon monoxide was reached in 1966 and has been steadily declining ever since. At the current rate – including the rate of automotive growth – even if no improvements in emission controls were made beyond the 1971 level, by 1980 Los Angeles would have less automotive hydrocarbons in its air than it had in 1940. Its carbon monoxide levels would be back to where they were late in the forties.
This much has been accomplished with relatively little additional cost to the car buyer and with relatively little sacrifice in vehicle performance. From here on, however, the costs go up sharply and the actual improvement to the atmosphere becomes less and less at each step.
Consider, for example, what the section 202 standards – which the automobile industry says it has no reason to hope it can meet by 1975 – would accomplish as compared with the 1975 standards set by HEW, which the automobile industry has expressed confidence it can meet.
Whether or not our confidence in the industry's ability exceeds its own, the fact is that meeting the requirements of section 202 would result in only minimal improvements in air quality.
Since 80 percent of the hydrocarbon emissions already have been eliminated in the 1971 cars, under either the HEW requirement or section 202, the control would be nearly total by 1975 – 95 percent in the one instance and 98 percent in the other. Not a very significant difference.
Section 202 would bring oxides of nitrogen under 90 percent control 5 years after standards are set, compared with HEW's 83 percent by 1975. In New York City's own "Emission Inventory Summary," incidentally, only 18 percent of total emissions of oxides of nitrogen were attributed to surface transportation. That would seem to indicate that again section 202 offers a very limited amount of improvement over HEW standards – about a 1-percent reduction of oxides of nitrogen in New York City, for example.
Reduction of carbon monoxide levels would be 97 percent under section 202 and 86 percent under the HEW timetable. The significance of the gain, however, is somewhat dimmed by recent scientific findings that nature renders atmospheric carbon monoxide harmless in about a month's time. Formerly, it was believed that carbon monoxide lasted about 3 years, which would gravely increase the danger of cumulative buildup.
Unquestionably, any improvement at all in air purity is much to be desired. The desire, however, should not be allowed to overcome our sense of the practical. We are not living in Camelot, where the very elements could be controlled by decree.
Mr. President, in my several years in both houses of this Congress, I have never encountered so remarkable a statement as this passage from the committee report pertaining to section 202:
The Secretary is expected to press for the development and application of improved technology rather than being limited by that which exists. In other words, standards should be a function of the degree of control required, not the degree of technology available today.
Mr. President, I suggest that confirms the statement I have made over and over again; that the technology for achieving the standards set in legislative concrete by this bill are not available.
Also according to the report, the standards envisioned by section 202 are derived from a paper presented in June of this year at the annual meeting of the Air Pollution Control Association by D. S. Barth of HEW.
What the report does not mention is that Mr. Barth, in presenting his paper, clearly and repeatedly stated that he was preparing a groundwork for standards rather than proposing firm conclusions on which official standards should be based.
In his calculations, Mr. Barth used what can only be called a "best ball" approach which at each step compounded the safety factors for health protection.
For present air quality, he used onetime peak values rather than statistically valid maximum readings. For desired air quality, he applied the lowest values ever reported, not the most widely-accepted values of what is needed to avoid detrimental effects on health. For the background concentration factor, he used the highest reported values of "natural pollution" rather than more generally accepted figures. And in anticipating the future growth of the automotive population, he went far beyond most estimates including that published by the Department of Transportation.
By using this "best ball" approach – that is, by assuming the worst at each stage of his calculations – Mr. Barth arrived at hypothetical vehicle emission goals which are from six to 20 times more severe than would be indicated if more widely accepted values were applied.
That is the basis of the standards proposed in section 202 with what the committee report refers to as, quote, "requirements for margins of safety," end quote.
If we are to believe both the bill and the automobile industry – one saying that these standards must be met by 1976 at the latest and the other saying that the technology for doing it is not yet in sight – we could be headed for an economic and transportation crisis in 5 or 6 years' time.
In this conneciton, I have mentioned that the automobile industry believes it could meet the 1975 standards proposed by the administration. I should also mention that there was one qualification to their promise. At the White House meeting last November, industry officials indicated their confidence in meeting the standards if and only if the 1970-71 Federal standards were stabilized through the 1974 model year. They emphasized that meeting the 1975 goals would require the full concentration of their efforts without being diverted onto interim goals. Imposing new 1975 standards and requiring a change of research effort at this point can only handicap the effort to meet either set of goals.
This is especially so because the automobile industry does not have 5 years, or even the 6 years the bill provides at the discretion of the Secretary of Health, Education, and Welfare, in which to come up with the answer. The lead times involved in the mass production of a machine as complex as the automobile at reasonable cost and acceptable reliability drastically reduce the grace period that the manufacturers would have.
If the provisions of the present bill were to take effect at the end of this session, the industry would have 3½ years left before starting up 1975 model production. Three and a half years is about the normal production lead time, particularly for sophisticated antipolluting systems which may require major changes in the configuration of the vehicle. Even if production lead time is compressed to 2 years, simple arithmetic shows that automotive engineers would have only 18 months in which to invent the new approach or 30 months if the industry can gain the 1 year only suspension of the standards provided for in the bill.
Actually, the industry does not have that much time because procedural requirements grant the Secretary 6 months in which to make his momentous decision on whether to grant the suspension. Then appellate provisions are provided – and I am sure they will be used no matter what the Secretary's decision is. These appellate provisions include an appeal to the circuit court of appeals which, I conclude, cannot consume less than 3 months, and application to the Supreme Court for a writ of certiorari which almost certainly would consume at least 3 months more.
During this period, cars cannot be built for the simple reason that the emissions systems are integral to the car design and the design cannot be established until the standards are set. In this connection, it is important to bear in mind that the Secretary, if he extends the statutory deadline, must establish new standards which are the most stringent that the technology can meet.
Even if the Secretary does this concurrently with his decision to extend the deadline, can manufacturers would be unable to build to that specification until they know for certain that the Secretary's judgment will not be overturned.
A few days ago, the junior Senator from Wisconsin (Mr. NELSON) released a letter he had written to the chairman of the Senate Public Works Committee. In that letter, which received wide publicity, the Senator criticized the automobile industry for claiming that it cannot do by 1975 what a group of students had already accomplished in the 1970 cross-country clean air car race.
Judging from what I have read in the papers and seen on television, that seemed like a plausible charge, and it was certainly a serious one. I therefore decided to look into the matter to determine for myself whether or not the automobile manufacturers are trying to pull the wool over our eyes.
I should like to summarize what I found out.
My colleague, the junior Senator from Wisconsin, said that the automobile companies "know the results – of the clean air car race – and are deeply embarrassed by them."
Of course the manufacturers know the results of the race. To their credit, several of them were deeply involved in it – providing vehicles, special equipment, financing, testing facilities, and expert technical advice.
The junior Senator from Wisconsin went on to discuss the winning car, a highly modified 1971 Ford Capri. He said:
What the giants of the automobile industry are claiming cannot be done, was demonstrated to the American public by a team of night students at Wayne State who are employed as technicians by Ford Motor Co.... without the financial or technical resources available to the auto industry.
The facts are these: The winning car was put together by a team of five students and two other young engineers. Three of the students and the other two team members are highly regarded engineers at Ford Motor Co. Without taking away from their accomplishment in the least, I am sure that they would be the first to acknowledge that they received not only every encouragement but financial and technical assistance as well from Ford Motor Co., which worked closely with them in selecting their emission control equipment.
Now let us consider what it is that the vehicle and others in the race are supposed to have demonstrated. It was said: The student-modified internal combustion engine using nonleaded gasoline surpassed not only the proposed 1975 Federal standards, but were far below the proposed 1980 Federal standards which your subcommittee has recommended be advanced for 1975. The above results demonstrate the fact that a 1971 Ford internal combustion engine can meet the proposed 1980 standards today.
It was also claimed that a total of nine of the cars in the race met the proposed 1975 standards and that two of them met the proposed 1980 standards.
The facts are that nobody knows whether any of these cars met the 1975 or the 1980 proposed standards. The reason is that none of them were tested by using either the present or the proposed Federal emission test procedures. This is not just a technicality. When we are measuring pollution in terms of parts per million – and that is what we are talking about – different test procedures can yield results that vary by 100 percent or more. That is why detailed test procedure requirements are an integral part of Federal emission standards.
The test procedures used during the clean air car race were less stringent and yielded lower results than would be obtained from the Federal Government's present and proposed procedures.
Consequently, the race test results cannot be equated with the results that are obtained when a car is tested for emissions certification by the Department of Health, Education, and Welfare.
For the moment, let us assume that nine cars in the race would meet the proposed 1975 Federal standards and two would meet the proposed 1980 standards if tested in the prescribed manner.
It was argued that such results support those provisions of the legislation proposed by your Subcommittee on Air and Water Pollution which would require compliance with the proposed 1980 Federal emission standards by 1975. Senator NELSON said
One can also conclude that the accomplishments of the Wayne State University students with a minimum of experience with a major manufacturer should be well within the expertise of all segments of the entire automobile industry.
Of course, there is no question that automobile manufacturers could build cars exactly like the Wayne State Capri. The question is whether this would be a practical and realistic way of meeting the emission standards we are now being asked to freeze into law.
Let us take a look at that car. To make up for the loss of performance resulting from the complex emission control equipment added to the car, an engine three times as big as the standard engine was installed. To make up for the loss of performance and fuel economy resulting from the extra weight and the emission equipment, the car was lightened by substituting plastic for much of the original steel and glass and removing virtually all of the interior trim and unessential hardware – hardly a practical substitution for normal use.
The principal modifications, of course, were the addition of an extremely complex and costly emission control system, including four platinum catalytic converters. Aside from the very high cost of the platinum in the exhaust system, the fact is that there is now a worldwide shortage of platinum and it is totally impractical to contemplate use in production line cars of large quantities of this precious material, such as was used in the winning car.
Furthermore, the car and its emission control equipment were specifically designed merely to meet the requirements of the race – that means designed to get across the country once, in good time and with minimum emissions. They were not designed to perform satisfactorily for 50,000 miles as demanded by the warranty provisions of the clean air bill. In fact, the winning car suffered a 60-percent deterioration in hydrocarbon control on its 3,600-mile trip.
The car entered in the race was a car that would cost substantially more than today's cars to build, and would probably require frequent replacement of its platinum converters.
In short, there is no basis for the conclusion that this car or any other car in the race represents an immediately available, practical way to meet the emission standards included in the bill. All that is proved by the results of the race is that it is possible, if cost and practicality are no object, to build a car that comes close to meeting the proposed standards for somewhat less than 4,000 miles.
A serious problem in the bill is the warranty provision. The warranty provision is impractical, and I suggest that it may be unenforceable. In the first place, a warranty based on emission standards requires some method of measurement in the field. I understand that at present it would require some $50,000 worth of equipment and several trained technicians and would take 13 hours of time to measure and test the performance of one car.
I am aware of the fact that the committee report speaks about development by the HEW Secretary of a quick-testing procedure.
Interestingly enough, I find no reference whatever to this in the bill. There is no assurance whatever that the HEW Secretary will be able to develop such a quick-testing procedure – or when he will be able to do so. Many people have been trying to develop a quick, inexpensive testing procedure – and they have had little success so far.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. GRIFFIN. Mr. President, I yield myself an additional 2 minutes.
The PRESIDING OFFICER. The Senator from Michigan is recognized for an additional 2 minutes.
Mr. GRIFFIN. Mr. President, the goals set forth in this bill are commendable. There is no reason that we should not put as much pressure as we can reasonably place upon the automobile industry to meet reasonable goals to control the pollution caused by automobiles. I am all for that.
I am very deeply concerned, however, that in this particular legislation, the Senate seems to place itself in the position of scientists and automotive engineers. As Senators, we do not have the expertise that is needed. And, obviously, the committee is not willing to delegate any authority to those who do have expertise.
President Kennedy announced a goal when he said we would go to the moon by a certain date.
But no one suggested a law that would have put space industries out of business if we had fallen short in developing the needed technology.
Certainly some expertise – more expertise than the junior Senator from Michigan has, should be employed in determining what is feasible and reasonable in this field.
The Senator from Kansas has offered an amendment, and I know he believes it moves in the right direction. Frankly, I think it does not. He would provide for a 1-year extension period dependent upon another vote of Congress.
Frankly, I think one of the problems with this legislation right now is that – and I say this with all due respect for my colleagues and without pointing the finger at either side of the aisle – too many of the decisions with regard to this bill are being made on a political basis.
I know it is difficult politically to vote for any amendment that would be characterized by the press as weakening the clean air bill. Everyone is for clean air and against pollution.
But without an adequate understanding of what is really involved in some respects, I am afraid that some Senators – and I say this with all due respect – will be casting their votes on a political basis.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. GRIFFIN. Mr. President, I yield myself 2 additional minutes.
The PRESIDING OFFICER. The Senator from Michigan is recognized for 2 additional minutes.
Mr. GRIFFIN. If these standards prove to be completely unrealistic and threaten to put the automobile industry out of business, the amendment offered would require the industry to come back to Congress for what I fear could be another political decision.
I believe the decision should be in the hands of an administrator who, surrounded with experts, can look at facts objectively.
I believe the amendment offered by the Senator from Florida is helpful and that it would provide a little more flexibility. I shall vote for it, but, unfortunately, I shall then vote against the amendment offered by the Senator from Kansas.
Mr. DOLE. Mr. President, will the Senator yield?
Mr. GRIFFIN. I believe we are back on the amendment now.
Mr. DOLE. Mr. President, I yield myself 2 minutes. First, I wish to inquire of the time remaining.
The PRESIDING OFFICER. Thirty minutes remain on the amendment.
Mr. DOLE. How much time remains on my side?
The PRESIDING OFFICER. The Senator has 25 minutes remaining.
Mr. DOLE. Mr. President, I wish to say to the distinguished Senator from Michigan, first of all, that I commend him for pointing out and emphasizing what a tremendous burden we place on the automobile industry. I share the views expressed by the distinguished Senator from Michigan. As he indicated, there is a tremendous problem and my point is we create the problem by fixing a date for imposition of certain standards.
We should be willing to face up to that problem in the future. Congress should be willing, at that time, to make a judgment on whether there should be an extension. We should not pass that judgment on to the courts.
I have been doing some checking to find out how long it takes for a case to go from the court of appeals to the U.S. Supreme Court. I would guess the average time would be several months and perhaps a year or longer. It occurs to me that if we are willing in the first instance to impose stringent standards, we should not duck the responsibility when it comes to changing those standards. I hope the Senate will accept the principle that we do provide for an extension. My substitute provides for an extension. After a determination by the Secretary of Health, Education, and Welfare, who has the expertise, and in the event the House and the Senate do not act, the deadline is then extended for not more than 1 year. I am unable to say what will happen in conference. The House bill has no such provision.
I know the Senator is aware that we are making an effort to be of assistance to him and others.
The PRESIDING OFFICER. Who yields time?
Mr. COOPER. Mr. President, I yield myself 5 minutes.
The PRESIDING OFFICER. The Senator from Kentucky is recognized for 5 minutes.
Mr. COOPER. Mr. President, I understand the pending business is the question of whether or not the Dole amendment will be substituted for section 202(b)4 in the bill, which was a subsection placed in the bill in committee by an amendment offered by the Senator from Tennessee and me. The choice is clear cut.
I might say that the Senate can make a choice of the type review it wants. The original draft of the bill in committee provided no review of the effective date to the manufacturer. The bill, as we all know, provides that by January 1, 1975, or by the time the 1975 model is ready to be introduced into commerce, the automobile must be in conformity with standards proposed by the bill to be fixed by law. I support that provision.
As I said, under early drafts in the committee, if it should develop that in the intervening time the automobile companies could prove that using all available technology, and proceeding in good faith, they were not able to meet these standards, they would have no way to present it except that Congress might act as it saw fit.
I know of no other pollution control bill, which does not provide for a review of administrative decisions. I think it is unfair to any group of citizens in our country not to provide for them a method of review, a method whereby they can be dealt with fairly. That is the principle of due process which is imbedded, not only in our Constitution but throughout our legal system. It is a process provided by the 14th amendment to the Constitution.
The amendment which the Senator from Tennessee (Mr. BAKER) and I offered, in Committee, which was adopted by a vote of 10 to 3 in committee – equally divided on both sides of the aisle, majority and minority – is identical with the Dole amendment in the first requirement. In both provisions the manufacturers, upon application to the Secretary, may present their case and must prove that they have acted in good faith and exhausted all reasonable possibilities to come into conformity with the required standards.
Following the administrative proceeding, the Secretary makes a decision either granting or denying an extension of 1 year. At that point our amendments differ.
The amendment of the Senator from Kansas provides that the Secretary's decision granting an extension shall become final within 60 days, unless within that period one House of Congress by resolution overturns that decision. The amendment which was adopted in committee provides that within 30 days of the Secretary's decision the applicant or other interested party can appeal to the U.S. Court of Appeals for the District of Columbia. There is no further trial, the action of the court of appeals shall be taken on the record made by the Secretary; and such record shall be presumed to be correct. Following the court of appeals decision the applicant, or any other intervenor could carry the case to the Supreme Court, if he so desired.
It has been said this is a long procedure, but if it took longer than 1 year the case would become moot. There is no remission of emission standards and requirements during the period of appeal.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. COOPER. Mr. President, I yield myself 2 additional minutes.
The PRESIDING OFFICER. The Senator from Kentucky is recognized for 2 additional minutes.
Mr. COOPER. Mr. President, the committee will make every provision to expedite the matter. I think it is eminently fair.
Under the present law, the law we are amending, the Secretary is required every year to make reports to Congress and, of course, Congress, at any time, can take whatever action it desires.
I point out that the amendment of the Senator from Kansas would provide 60 days between the finding of the Secretary and the required action by Congress.
Mr. President, when we think of the year and one-half spent in developing this bill, I submit that 60 days permits little if any substantive consideration by Congress. In fact, if one house acted quickly, the other house would be frozen out of any action.
I can think of no instance where there is not provided to our citizens an opportunity to have an administrative decision reviewed by the courts. The courts by design and tradition are insulated and therefore are less subject to pressure and emotion than even Congress. I think judicial review is best in this case.
This remedy is available not only to the manufacturers. The Secretary could permit other interested parties to intervene. The Sierra Club, other conservationists, and Mr. Nader could present their case. They, too, could appeal to the courts if they so desired.
I ask the Senate to return the constitutional method of due process. I think it is fair to all parties concerned and fair to the Congress.
Mr. BAKER. Mr. President, will the Senator yield me 5 minutes?
Mr. COOPER. I yield 5 minutes to the Senator from Tennessee.
Mr. BAKER. Mr. President, I oppose the Dole amendment. I support the committee version. I have no great quarrel with the Dole proposal. The Congress is faced with this basic problem. Do we require in this bill an accomplishment for the automobile industry that we are not certain can be accomplished, at least by the time set forth – 1975? The answer we have made in the bill we have reported is, "Yes, we do," and I support that for the reasons I noted in my opening statement.
The committee has decided that the automobile industry can accomplish the emissions standards we require in the bill in the time established. But I believe, in view of the element of doubt that still remains, we should require a realistic escape hatch, so that, if we guessed wrong, someone can administer redress.
That redress can come from three sources. It can come from the executive department; it can come from the legislative department; or it can come from the judiciary. That really is the question that confronts us on the Dole amendment. Where do we put it?
There is a good bit to be said for each case and a good bit to be said against each. Of the three propositions, none is perfect. I prefer judicial review, and I shall elaborate on that in a moment.
I gather, from the remarks of the distinguished Senator from Michigan, that he would prefer that the judgment on relief be vested in the Executive department, in the Secretary. I judge, further, that the only fair intendment of the proposal of the junior Senator from Kansas is that it be vested in the legislative department, in the form of a plan similar to that found in the Reorganization Act.
The proposal in the bill offered in concert by the senior Senator from Kentucky and myself provides for review by the judiciary, but on a very limited basis, on the basis that the relief the court can grant is circumscribed to one question only: That the extension beyond 1975 will be granted for 1 year or it will not be granted for 1 year; and that the extension can be granted, if it is to be granted, only on certain specified statutory grounds.
We do not run the risk that the court will insert itself into policymaking determinations in this field, as it must restrict itself to the basis of jurisdiction conferred on it by the statute.
What are the relative merits, really, of the three contentions? I believe the question before the country in 1975, if the automobile industry has not succeeded in producing a clean car according to the statutory standards, will be essentially a question of fact – that is, whether the industry applied good faith efforts and whether it was possible within the then state of the art to produce a clean car.
Questions of fact, historically and traditionally, are best tried, and have always been best tried, except in certain specific instances, by the judiciary. They are certainly more amenable to being tried in the judiciary than they. are by 535 legislators. The procedure for determining these issues is already formalized and imbedded in the judicial precedents of this country, indeed reduced to writing in this statute.
But, not least of all, it occurs to me that if in 1975 the automobile industry, for whatever reason, has not produced a clean car, the amount and type of interest in the judgment of the Secretary, the Congress, and the courts will be extraordinary indeed, because the net effect of this statute, Mr. President – and I think it is important that we realize it – is to simply say, "Produce a clean car by 1975 or stop producing internal combustion cars."
If there is to be a 1-year reprieve, I have an idea that there will be a substantial interest in the proceedings by which that is determined. I believe the court, in the sanctity of its judicial undertaking, in the calm, cool deliberations of its fact finding function, in its detachment from the immediate pressures–
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. COOPER. Mr. President, I yield 2 minutes to the Senator from Tennessee.
Mr. BAKER. – is best suited to undertake this task, rather than 535 legislators, 435 of them standing for election in 12 months and one-third of the Senate standing for election in 1976, to say nothing of the pressure, the heat, and the confrontation of a political campaign for President in 1976. The Congress is probably the least likely place to have clear, calm determination of that fact issue.
Congress is perfectly within its right to reserve to itself the determination of this issue of fact, but I believe we are doing ourselves a disservice if we do not vest it in the judiciary.
That leaves only the other alternative, then, of the executive department. I would have no great quarrel with letting the Secretary decide whether or not the automobile industry had used good faith and had made its very best effort to produce a clean car by 1975, but this may be the biggest industrial judgment that has been made in the United States in this century. It may have the biggest impact on the economy that any of us have participated in in recent years. It is going to be of extraordinary importance and an extraordinarily emotional situation if the industry has not produced a clean car, according to this formula, by 1975.
I can guarantee my colleagues that, whatever judgment we make, whichever of the three departments we elect to determine whether or not the industry would have a 1-year reprieve in the event it had not produced a clean car, will not be perfect. I think we must realize that the best we can do is the best we can do and that there will be a great deal of criticism of whatever judgment we make, but I believe the judiciary is the one best equipped, best suited, and best able to make this determination.
Mr. MUSKIE. Mr. President, I wonder if the Senator from Kansas wanted to ask for the yeas and nays on his amendment.
Mr. DOLE. Mr. President, I ask for the yeas and nays on my amendment.
The yeas and nays were ordered.
Mr. SPONG. Mr. President, will the Senator from Kentucky yield me 2 minutes?
Mr. COOPER. Mr. President, I yield the Senator from Virginia 3 minutes, and more if he needs it.
Mr. SPONG, I thank the Senator. Mr. President, the question on the Dole amendment is the determination by the Senate of the best method by which the Secretary's decision concerning the capability and technology available for the automobile industry to meet what this bill requires of it by January 1, 1975, can best be judged to be correct.
I want to concur in the statements already made that, as between Congress deciding within a 60-day period whether the Secretary has been correct in his judgment, and a court of law deciding it, having the right of subpoena, the right of discovery, the night of calling expert witnesses, and making a judgment, we would be serving the public interest if we placed this issue where it would be subject to judicial review rather than our own.
For that reason, I oppose the Dole amendment and support the amendment offered in the committee by Senators COOPER and BAKER.
Mr. GRIFFIN. Mr. President, will the Senator yield?
Mr. SPONG. I yield.
Mr. GRIFFIN. I associate myself with the Senator's line of reasoning. I personally would prefer an administrative decision. I think it would be better placed there. But I can see there would be very little chance that this body would accept that change.
But as to a choice between a judicial decision and what I regret to say, unfortunately, might be a political decision in Congress, I think the industry and the public would be better served by a judicial decision.
Mr. SPONG. I thank the Senator from Michigan.
The PRESIDING OFFICER. Who yields time?
Mr. DOLE. Mr. President, I yield myself 2 minutes.
It is important that we review how these different procedures might apply. As the Senator from Kentucky pointed out earlier, the Dole amendment and the language now in the bill are very much alike in the initial stages. The first possible time that a petition could be filed with the Secretary would be September 1, 1972, if we take the model year, or January 1, 1973, if we go on a calendar date basis. Then we allow the Secretary 6 months to make a recommendation.
If we take the first date, the petition being filed on September 1, 1972, then he would have until March 1, 1973. If we take a calendar date, he would have until July 1, 1973. Then after that finding, if we use the judicial review approach, he would have 30 days in which to file a petition with the U.S. Court of Appeals in the District of Columbia. That would either be April of 1973 or August of 1973. I have been trying to determine just how long it might take for this case to be heard by the court of appeals. I have been informed that it might be as short as 3 or 4 months, but possibly it might extend to 6 months, 8 months, or even a year.
Then, of course, there is the right of appeal to the U.S. Supreme Court. The point I wish to make is that it would probably be a moot question, because it would never be determined by the Court by the time the 1975 model year was on the market.
I might ask the Senator from Kentucky a question at this point: In the event the Court has not made a final determination, and January 1, 1975, was rolling around, or the 1975 model was available, and the matter was still in court, what would be the effect of the judicial review section? Would the standards apply, or would they be held in abeyance while the Court made the determination?
Mr. COOPER. Mr. President, I discussed this in the short statement I made.
I point out, first, that even though application is made, there is no relaxation or postponement: of the application of emission requirements. Automobile companies must continue to come into conformity, and if they have not reached conformity on the effective date, the burden would fall on them.
The Senator asks me what would happen if the court had not passed upon it at that time. We discussed this in the committee. The Senator from Virginia and I discussed it, and the Senator from Maine asked questions about it.
It was our judgment, first, that Congress can limit the courts in respect to the remedy they can grant and this the committee has done by limiting jurisdiction to a 1-year extension. Our judgment was that if it took more than 1 year to reach a decision, the case was moot, and the automobile companies would have to come into conformity or seek a remedy from Congress. On the other hand, I want to be straightforward and honest about it: I cannot determine nor direct how or when a court might determine the question of due process, and I do not believe anyone can do that. The provision does provide for an expedited procedure and I expect the court would make every effort to handle such a matter with dispatch.
I must say again, however, that I do not believe that the Senator's amendment provides due process. Although there is authority to the contrary, I still believe that even if no review is provided in this measure, an interested person could go into court and say, "I have been denied constitutional due process," and my judgment is that the court would grant some review. Thus the Senator's provision may still give rise to judicial review, without, however, the directions contained in the committee bill.
The committee bill places very concrete limits upon judicial review and I think it is as precise in its limits as any method of review can be.
Mr. DOLE. I say with all due respect to the distinguished Senator from Kentucky that this does appear to be a weakness in the judicial review section. There has been much stress on the point that time is of the essence, and we must make a final determination at the earliest possible time, unless we want to penalize unfairly a great industry in America.
Under the so-called Dole amendment, we have the same effective date, but then, after the Secretary makes his decision, he has 6 months. He would make that decision either on March 1, 1973, or July 1, 1973, again depending on whether he used the model year to determine the date or the calendar year. Then the Congress would have to act within 60 days. So we would be certain, that the decision made by one House of Congress or the decision made by the Secretary would be final not later than September 1, 1973, and perhaps as early as May 1, 1973.
I say again that perhaps the underlying weakness of judicial review, in this particular instance, is the fact that there might not be a decision by January 1, 1975, or by the time the 1975 model was on the market and we would then do a disservice to an important industry.
But if we make the judgment in the first instance, as we are about to do today, despite political pressures, political pressures which are surely greater now than they will be in 1975, because hopefully there will be progress and less pollution then, I am convinced that the political pressures will be something we can withstand.
If Congress is willing to impose stringent standards today, then Congress should be willing to face up to that judgment 2 years from now. If we were wrong, the extension should be granted; and if we were right, the extension should not be granted. Of course, if we are totally wrong or far off base, then perhaps the entire law would need to be revised. But it occurs to me that if we are willing, in September of 1970, to state that 5 years from now we are going to meet certain standards, then the same body, the same Congress, should say 2 years hence that we were right or we were wrong. We should make the final judgment; we should not pass it off onto some court because of imagined political pressures in Congress.
Mr. President, I reserve the remainder of my time.
Mr: GURNEY. Mr. President, I ask unanimous consent that my amendment to the pending Dole amendment be considered at this time.
The PRESIDING OFFICER. Is there objection?
Mr. MUSKIE. Mr. President, reserving the right to object, would the effect of the unanimous consent request, if agreed to, be to terminate the time otherwise still available on the Dole amendment?
The PRESIDING OFFICER. No. It would allow the Gurney amendment to be called up at this time.
Mr. MUSKIE. Would the effect be to add the time on the Gurney amendment to the time still remaining on the Dole amendment?
The PRESIDING OFFICER. It would add 15 minutes to a side.
Mr. MUSKIE. I have no objection.
The PRESIDING OFFICER. Is there objection?
Several Senators addressed the Chair.
Mr. RANDOLPH. Mr. President, I would like the Chair to clarify one thing. He may already have done that, but–
The PRESIDING OFFICER. Who yields time?
Mr. DOLE. Mr. President, reserving the right to object–
The PRESIDING OFFICER. Who yields time?
Mr. DOLE. I yield the Senator 1 minute.
Mr. MUSKIE. Mr. President, I yield the Senator from West Virginia a minute on the bill, or whatever time the Senator may require.
Mr. RANDOLPH. I would simply like a clarification from the Presiding Officer that perhaps has been given, but I could not hear it.
I first inquire, if this is not permitted as requested by the junior Senator from Florida, what time now remains on the Dole amendment?
The PRESIDING OFFICER. One minute to the Senator from Kansas, 8 minutes to the Senator from Kentucky.
Mr. DOLE. Mr. President, reserving the right to object, a parliamentary inquiry.
The PRESIDING OFFICER. The Senator will state it.
Mr. DOLE. In either event, the first vote would come upon the Gurney amendment; is that correct?
The PRESIDING OFFICER. The Senator is correct.
Mr. BAKER. Mr, President, a parliamentary inquiry.
The PRESIDING OFFICER. Who yields time?
Mr. BOGGS. I yield the Senator 1 minute on the bill.
Mr. BAKER. Will the Chair inform the Senator from Tennessee if he is correct in his understanding that the Gurney amendment would be subject to the limitation previously agreed upon?
The PRESIDING OFFICER. There would be a limitation of one-half hour, 15 minutes to the side.
Mr. BAKER. I thank the Chair.
The PRESIDING OFFICER. Is there objection to the request of the Senator from Florida? The Chair hears none, and it is so ordered. The amendment will be stated.
AMENDMENT No. 928
The legislative clerk read the amendment, as follows:
On page 1. beginning on line 1. strike "Within twenty-four months but no later than twelve months".
On page 1, line 2, capitalize the word "before".
On page 1, line 4, after the word "application" insert the following: "in a timely manner to be determined by the Secretary".
Mr. GURNEY. Mr. President, I ask for the yeas and nays on the amendment.
The yeas and nays were ordered.
Mr. GURNEY. Mr. President, this amendment would change the time provisions in the Dole amendment in which application for relief may be sought under the Dole amendment. We have been talking in the last 15 or 20 minutes, on the argument of both the Dole amendment and the provision now in the bill about the judicial review, about the importance of time. Time is important in this provision, because there has to be a very considerable lead time for the automobile manufacturers to jell their model, the elements that go into the model as well as the antipollution device, and order tools to manufacture the antipollution device; and I am informed that it means a very considerable body change. So there will have to be many tools besides the ones needed to manufacture the antipollution device. All this requires time.
This is a tough bill. We all admit that it is so. That is the reason why we have in the bill at this time a review method, so that relief can be obtained from this bill for at least 1 year, under the judicial review measure. That is why the Senator from Kansas (Mr. DOLE) has offered his differing amendment for relief, also, because no one is sure in the automobile industry, in the Public Works Committee which heard this matter, or in the Secretary of Health, Education, and Welfare's shop whether the automobile industry can meet this January 1, 1975, deadline.
Everyone says that right now it is not within the state of the art, although we will hope that it can be met by January 1, 1975. The point is that if it cannot, then we must have relief for this great industry in America that employs so many people and means so much to the prosperity of the country. I have heard all kinds of differing people on what kind of lead time is required by the automobile industry. Some say 3 years; some say three and a half years. The shortest I have heard is 2 years.
The Dole amendment provides that the automobile industry cannot make application to the Secretary until 24 months prior to the effective date of January 1, 1975. Then we add 6 months that the Secretary has within which to make his determination, and add 2 months more within which Congress has to either agree with the Secretary or not agree with the Secretary, and we have shortened the 24 months to 8 months less. I have not heard any statement from anybody that says that is enough lead time within which the automobile industry can tool up and produce the 1975 models requiring this antipollution device.
All my amendment does is to take out this 24-month period and the 12-month period, and it puts in there this language: "in a timely manner to be determined by the Secretary."
In other words, the Secretary, himself may determine what is timely on the part of the automobile industry within which to make application for relief under this bill. No one is better prepared to make that determination than the Secretary. He has the experts within his shop who have been dealing with the matter of air pollution for a matter of years. As a matter of fact, I am informed that they continually check closely with the automobile industry in Detroit, finding out what is going on within the experimental stages now, within the research and development on this antipollution device; and the Secretary, indeed, would know when it was timely for the automobile industry to make an application.
I know that arguments will be made that the automobile industry is going to appear before the Secretary within a day or two after this bill is passed if we put in "in a timely manner." The other argument, on the other end of the pole, is that they will wait until the last minute. I do not believe that they have that bad faith, but I think something else will compel them to do otherwise.
Obviously, the automobile industry is not going to go to the Secretary within a day or two or a week or two or a month or two after this bill becomes law, because they want the best case they can get, too.
The best case they can get is to wait as long as they can, showing the results of their research and development. On the other end of the pole, they are not going to wait until the last minute, either, because they cannot do that. They have to jell their model; they have to order their tools; they have to be in a condition to get in their 1975 models.
So it seems to me that the only sensible way to handle this matter is to leave it up to the Secretary to determine, when the application comes to him, and in a timely fashion. Then I think we will have a sensible approach to this matter and a relief method that will work.
I reserve the remainder of my time.
Mr. MUSKIE. Mr. President, I will not take too much time, but I should like to make some points that I think are relevant to the amendment.
First of all, the provision in the bill was written after consideration by the committee, without dissent in committee. The purpose of the provision is this: We wanted the provision for appeal to be made available late enough in this 5-year time frame so that the industry would make, and be forced to make, a good faith effort toward achieving the objectives of the bill before resorting to the courts. At the same time, we wanted to provide that there would be sufficient time to resolve the appeal and to get a decision so that the industry could then respond to that decision in its production schedules.
So the committee carefully, and after considerable deliberation, agreed on the 12- to 24-month formula. In other words, the appeal must be initiated and completed within calendar year 1973.
The question that the Senator from Florida raises and is concerned about is whether there would then be time to put production models into the process. Let me cite the record.
The California standards which were the first standards applying to automobiles, were adopted by California in May of 1964. The industry managed to incorporate them in the 1966 model cars, which were in the showrooms in the fall of 1965. In other words, a little more than a year after California imposed the standards, California automobiles were being manufactured in accordance with those standards.
With respect to Congress, Congress enacted the current law in the fall of 1965, applicable to the 1968 model cars, which were available in the fall of 1967. So that 2 years after the authority was given to the Secretary, and less than 2 years after the Secretary actually imposed the standards, the industry was producing cars that conformed to the standards.
Here is another piece of testimony that is revealing. It was by Vice President Ackerman, of Chrysler Corp., in 1959, long before pollution control standards were involved. At that time, without the pressure of deadlines, he said this:
Once these hurdles are over–
He was talking about the hardware being available–
Once these hurdles are over, we have said that we believe this thing could be available within a year.
So there is time to respond to the results of the review process, whether it is the review process incorporated in the bill, the so-called Cooper amendment, or the review process proposed by the Senator from Kansas (Mr. DOLE).
For that reason, Mr. President, I oppose the amendment and urge the Senate to vote against it.
I am prepared to yield back the remainder of my time.
The PRESIDING OFFICER. Does the Senator from Florida yield back the remainder of his time?
Mr. GRIFFIN. Mr. President, would the Senator from Florida yield to me, briefly ?
Mr. GURNEY. I yield 5 minutes to the Senator from Michigan.
Mr. GRIFFIN. Mr. President, I rise to indicate my strong support for the amendment offered by the Senator from Florida. He points out that the lead time required by the industry is all-important to the applicability of this particular legislative measure.
Yesterday, the distinguished Senator from Maine, in discussing this measure, referred to testimony back in 1967 by Mr. Mann of the automobile association. He cited Mr. Mann's testimony as evidence that only 2 years was actually required to put such a change into effect, as I recall the statement.
Mr. MUSKIE. If the Senator will yield there, simply to clarify my use of the testimony, it was to indicate that by the testimony of the industry itself, not more than 2 years was necessary. There is evidence, which I have already placed in the RECORD today, indicating less than that time is sufficient.
Mr. GRIFFIN. I want to read from Mr. Mann's testimony. It appears on page 402 of the hearings of 1967. He says:
Normally what I have referred to in the preceding paragraph takes approximately two years, in addition to the time needed for research, design, and development stages.
On yesterday, in a colloquy with the Senator from Maine, I said that it could take as much as 43 months from the drawing board stage until automobiles actually come off the assembly line – that much time to incorporate such technology – if and when it is available. At the present time, it is not available.
So, I wish to emphasize that the 2 years referred to yesterday is in addition to such time as would be needed for research, design, and development.
The Senator from Florida, I think, moves in the right direction by providing some measure of flexibility. He makes the case, very wisely, that there would be no reason or motive for the industry to rush in without a case, so that they would not go in prematurely in any event. But they would like the opportunity to go in as early as the case is available to make sure that this legislation will not absolutely close the automobile industry down – and that could happen if we put them in a completely unrealistic straitjacket.
Accordingly, I hope very much that the amendment of the Senator from Florida will be agreed to.
Mr. GURNEY. Mr. President, how much time do I have remaining?
The PRESIDING OFFICER (Mr. PACKWOOD). Seven minutes remain to the Senator from Florida.
Mr. GURNEY. I shall not take all 7 minutes but I would like to reply to the Senator from Maine in his arguments against the amendment.
I could detect only two arguments against it. One has to do with the fact that California standards as applied to aid emissions and requiring pollution devices in California a few years ago did not need the amount of time that I am talking about. I do not see that this is an analogous situation at all. What was done in California a few years ago is nothing so drastic as what we are proposing to do here. We go way beyond the California standards.
What I am saying is that perhaps California standards could be met in the 2-year lead-time, but now we have a completely changed situation.
Mr. MUSKIE. If the Senator from Florida would yield on that point, the attitude of the industry prior to the time it was required to conform to the California standards was the same as it is in this case. They said it could not be done. But, it was done.
Mr. GURNEY. Then I might further treat with the other argument made by the Senator from Maine, which seems to me to be even more untenable. I, too, read the testimony he read to the Senate a short time ago, the testimony by the vice president of General Motors Corp. in 1959.
That was 11 years ago. We have proceeded 11 years beyond 1959 in this pollution business.
We have here now a bill that is as different from the situation he was talking about in 1959 as the North Pole is from the South Pole. They could not be further apart. Thus, I do not think the arguments made by the Senator from Maine are viable in either case.
Finally, in closing and wrapping up the arguments on behalf of my amendment, I do not disagree with the Dole amendment. I am supporting it. It is a good one. But I also think, as the Senator from Michigan (Mr. GRIFFIN) just pointed out, that if we put in the arbitrary dates of 24 months before this that the automobile industry must apply, it cannot apply any later than 12 months before that date, we do, indeed, put them in a straitjacket.
The facts and circumstances are, when we all admit, in the committee, in the industry, and the people in Government who are experts in this business, that we do not even know whether they can be met, the industry itself says it does not have the technology to do it, although it hopes to be able to meet it. Under these facts and circumstances, we look ridiculous in the Senate not to give the Secretary of Health, Education, and Welfare a little leeway as to when he will receive this application for relief.
All I say is that my amendment makes more viable, more sensible, and more reasonable when this application may be presented to the Secretary of Health, Education, and Welfare.
Mr. President, I yield back the remainder of my time.
Mr. MUSKIE. Mr. President, I should like to read one quotation to the Senate from a letter by President Cole of General Motors, dated January 31, 1969, which reads:
It is apparent that it is technically feasible to achieve very low pollution levels with internal combustion engines – levels at least as low as known ambient air quality needs. More importantly, of the various approaches to controlling vehicular pollution, the gasoline engine seems to offer a better cost-benefit relationship than the unconventional powerplants in the lower right-hand corner of these charts.
May I also read from the hearings of 1967. This is testimony by an industry spokesman–
Since the late 1940's, General Motors engineers and scientists have been doing basic research on emissions and developing the results of these into practical hardware. Between now and 1980, we sincerely believe that current research and engineering development programs on our current gasoline engines will result in continued progress toward solution of this important problem.
Later in the testimony, there was the same pessimism about meeting deadlines that the Senator has expressed.
Since the late 1940's, a quarter of a century ago, the industry has been occupied with this problem by its own statements. It has been developing technology. Every time it is pressed to apply the technology, it pleads for time. It says it is not possible. It said this to California in 1964. It said this to us in the hearings in 1964 and in 1965. It says it again now.
What we need in this 5-year period is a period not only for production line work but also time for development of the concepts which have been on the drawing boards all these years. Because that is time the committee does not want to reduce, that is why we fix a time when the appeal time starts. It is as simple as that.
Mr. GURNEY. Let me point out that the Senator and I do not disagree on the applicable time–
The PRESIDING OFFICER. The Chair would advise the Senator from Florida that he has yielded back his time.
Mr. MUSKIE. I yield 1 minute to the Senator from Florida.
The PRESIDING OFFICER. The Senator from Florida is recognized for 1 minute.
Mr. GURNEY. I thank the Senator from Maine.
We do not disagree on that at all. My amendment, of course, in no way weakens the applicable standard date, which is January 1, 1975.
It simply revises the method and the time by which the automobile industry could make application to the Secretary, which I think is reasonable.
Mr. MUSKIE. Mr. President, I yield back the remainder of my time.
The PRESIDING OFFICER. All time having expired, the question is on agreeing to the amendment of the Senator from Florida to the amendment of the Senator from Kansas. On this question the yeas and nays have been ordered, and the clerk will call the roll.
The assistant legislative clerk called the roll.
The result was announced – yeas 22, nays 57, as follows:
[ROLL CALL VOTE LISTING OMITTED]
So Mr. GURNEY's amendment to Mr. DOLE'S amendment (No. 958) was rejected.
Mr. MUSKIE, Mr. President, I move to reconsider the vote by which the amendment was rejected.
Mr. BOGGS. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. COOPER. I yield 5 minutes to the Senator from West Virginia.
Mr. RANDOLPH. Mr. President, I suggest we might have a little order in the Senate.
The PRESIDING OFFICER. The Senate will be in order so the remarks of the Senator from West Virginia can be heard.
Mr. RANDOLPH. Mr. President, by a vote of more than 2 to 1 we have defeated the Gurney amendment and we now are approaching the vote on the Dole amendment. I think the core of the problem as presented in the Committee on Public Works, and again as we have considered the matter in the Senate this afternoon, is, in effect, whether we are for or against judicial review which is embodied in the amendment offered by the Senator from Kentucky and the Senator from Tennessee in the Committee on Public Works.
The amendment of the Senator from Kansas was defeated in committee. The chairman of the Subcommittee on Air and Water Pollution has indicated that the vote was close. The vote was 8 to 6.
I think it is important, however, to realize that the vote in the Committee on Public Works on the Cooper-Baker amendment was 10 to 3 for that amendment.
Mr. President, I supported the amendment of Senators COOPER and BAKER in the committee. I did so because I thought it was important to have judicial review. I feel very strongly today, as I did then, that the bill, before the Senate, should include the Cooper-Baker language.
The basic reasons supporting such review have certainly been amply set forth during the consideration of this measure by other speakers, including Senators COOPER, BAKER, and SPONG.
Mr. President, in my opinion, judicial review is superior to the pending proposal of the junior Senator from Kansas (Mr. DOLE). It is superior because judges, I feel, will be less subject to the pressures and cross currents of opinions expressed outside the courtroom.
Furthermore, it is axiomatic that the Congress can act on the law, can amend it, at any time it believes circumstances necessitate such action.
If we abolish court review by defeating the Cooper-Baker amendment and approve the Dole amendment, then our only recourse would be to the Congress. If we sustain the principle of court review in the Cooper-Baker amendment, Congress can still act whenever conditions seem to require it.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. MUSKIE. Mr. President, is there any time left?
The PRESIDING OFFICER. The Senator from Kansas has 1 minute, the Senator from Kentucky has 3 minutes.
Mr. DOLE. Mr. President, may I have 30 seconds?
Mr. MUSKIE. Mr. President, since there are Senators present on the floor who were not here earlier, I would simply like to say that I supported the Dole amendment in committee. I support it here, for the following reasons: First, if this bill is enacted into law, it is a congressional decision which ought to be modified only by Congress. Second, the Secretary would continue to have the staff and know-how necessary to do the job better than the courts. His recommendation would come to Congress. Congress would have to act affirmatively to affirm his recommendation.
Mr. DOLE. Mr. President, ,I yield myself 30 seconds to say the only difference between the Baker-Cooper amendment and my amendment is as to whether the court or Congress shall determine the matter. If Congress imposes the standards, we should make the judgment 2 years hence.
Mr. COOPER. Mr. President, I yield myself 1 minute to clarify a statement previously made. The Secretary, in each case, will first review all the evidence, with all its technical staff. This would be the record available in either case.
It should be noted also that the Baker-Cooper amendment was adopted in committee by a 10-to-3 vote. I would like to repeat that this provision will give the due process which I believe Congress wants to give to all its citizens.
The PRESIDING OFFICER. Do Senators yield back their time?
Mr. COOPER. I yield back my time.
Mr. DOLE. I yield back my time.
The PRESIDING OFFICER. All time on the amendment having been yielded back, the question is on agreeing to the amendment of the Senator from Kansas. On this question the yeas and nays have been ordered, and the clerk will call the roll.
The assistant legislative clerk called the roll.
The result was announced – yeas 32, nays 43, as follows:
[ROLL CALL VOTE LISTING OMITTED]
So Mr. DOLE'S amendment was rejected.
Mr. COOPER. Mr. President, I move to reconsider the vote by which the amendment was rejected.
Mr. RANDOLPH. I move to lay that motion on the table.
The motion to lay on the table was agreed to.