October 4, 1972
Page 33708
Mr. JACKSON. Mr. President, I have certain basic questions concerning the policy reflected in section 511(c). I would like to determine, to the extent that we can clarify it, the intent of that section of the conference report.
Therefore, I would like to address some questions to the manager of the report. First, how broad is the exemption proposed for EPA in section 511 (c) (1) ? Does the exemption cover only section 102(2) (C) and the requirement for preparing environmental impact statements? I am referring, of course, to the National Environmental Policy Act. Is it clear that EPA would be subject to all other requirements of NEPA except section 102 (2) (C) ?
Mr. MUSKIE. Mr. President, may I say first to the Senator, to preface my answer to the question, and in response to something the Senator from New York has said on the same subject, that in my judgment it was clearly intended at the time Congress enacted NEPA that environmental regulatory agencies such as those authorized by the Federal Water Pollution Control Act and the Clean Air Act would not be subject to NEPA's provisions. The Senator and I had discussions on this point, and it was clearly understood, from the colloquies in the CONGRESSIONAL RECORD on the subject it is clear, that it was the intention of NEPA to put mission-oriented agencies, not the environmental enhancement agencies, under an environmental stricture and that the environmental enhancement or improvement agencies such as the Federal Water Pollution Control Administration and the Clean Air Act would not be subject to NEPA's provisions.
So the effect of the language to which the Senator has referred is to breach that understanding, and to bring activities of the Administrator which would not be under NEPA in terms of that history under NEPA.
So let me answer the Senator's question.
Because the language of 511(c) (1) speaks of "major Federal actions significantly affecting the quality of the human environment" – a phrase which only appears in section 102(2) (C) of NEPA – some will argue that the conferees intended to limit their attention to section 102(2) (C) and that all of the other provisions are therefore meant to be applicable to actions of the Administrator. I address myself to those who would grasp at this slender straw. The term "major Federal action" and NEPA are synonymous in the minds of the conferees. It is the clear intent of conferees of both Houses – it was certainly the clear intent of the conferees when this provision was unanimously adopted – that all of the provisions of NEPA should apply to the making of grants under section 201 and the granting of a permit under section 402 for a new source and that none of the provisions of NEPA would apply to any other action of the Administrator.
At page 149 of Report No. 92-1236, in the joint statement of managers on the part of the House and the Senate, we state:
If the actions of the Administrator were subject to the requirements of NEPA, administration of the Act would be greatly impeded.
We do not say "one of the requirements of NEPA." We do not say "some of the requirements of NEPA" We say "the requirements of NEPA" That is what we said, and that is what we meant.
May I say in addition, to cover both the Senator's question and that of the senator from New York, why did we do it? We did it because we have written into the procedures for cleaning up the water deadlines geared to the time required for the procedures of the administrator.
Now, if we were to impose, on top of those procedures, additional ad hoc requirements that might be established by the administration of NEPA, the deadlines would go out the window, because in effect what we would be doing is giving industrial polluters another forum after they have taken their run at the procedures and policies of the administrator.
This is why, of course, I was so concerned at the time we enacted the NEPA legislation that environmental improvement agencies would not be subject to it.
Now we have made an exception that brings two environmental improvement activities under NEPA, and that is an exception that expands and does not restrict the authority of NEPA.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. JACKSON. Mr. President, 1 more minute.
Mr. COOPER. Mr. President, how much time remains?
The PRESIDING OFFICER. The time of the Senator from Maine has expired. The Senator from Kentucky has 6 minutes.
Mr. COOPER. I promised 3 minutes to the Senator from Wisconsin (Mr. NELSON) .
Mr. JACKSON. Could I have 1 minute?
Mr. COOPER. Yes.
Mr. JACKSON. Mr. President, in view of the limitation on time, I ask unanimous consent to have printed in the RECORD certain prepared statements and questions dealing with. section 511 (c) of the conference report.
The PRESIDING OFFICER. Without objection, it is so ordered.
STATEMENT BY SENATOR JACKSON
I am concerned about the precedent and the policy proposed in Subsection 511 (c) of the Conference Report on the Federal Water Pollution Control Act Amendments of 1972. I am concerned because the policy proposed creates a troublesome precedent which may pave the way for effectively disarming the Nation's most important, long-range environmental law: the National Environmental Policy Act of 1969 (Public Law 91-190).
The Senate is being asked to vote on a conference report which contains in Subsection 511(a) a new provision which was not in the measure the Senate passed on November 2, 1971, which was not in the water quality bill passed in the House, and which was not, in my view, properly before the Conference Committee.
Mr. President, I presume that one of the purposes the House and Senate Public Works Committees had in mind in adopting Section 511(c) of the Conference Report was to reverse the effect of the Circuit Court of Appeals decision in the Calvert Cliffs case and other cases insofar as those decisions of the Federal Court affirmatively applied the requirements of Section 102(2) (C) to the Environmental Protection Agency.
Members of the Senate should be aware that portions of the legislative history of the National Environmental Policy Act do reflect a general understanding between myself and the junior Senator from Maine, that the adoption of NEPA would not change the statutory mandate under which EPA and other environmental agencies operate. This legislative history was, as I recall, made in response to concerns expressed by the Senator from Maine that the provisions of Section 102(2) (C) and Section 103 might in some way set new standards or new requirements for the Air and Water Quality programs. This was not the intent of the Act. Section 102 (2) (C) establishes procedural requirements that apply to the decision making process for all major Federal decisions that could have an adverse environmental impact. It is not a substantive standard and I, therefore, agreed that the adoption of NEPA would not change the substantive mandate for programs administered by EPA. Subsequent to this legislative history and the enactment of NEPA into law January 1, 1970, the guidelines promulgated by the Council on Environmental Quality, the regulations of some Federal agencies, and a number of major Federal Court decisions have construed NEPA to require the application of the Section 102 (2) (C) procedural requirement for the preparation of an environmental impact statement to any major Federal action undertaken by EPA and other Federal agencies whose mandate involves the promotion of environmental quality objectives.
The action of CEQ and the subsequent decisions of the Federal Courts were in my view contrary in some respects to NEPA's legislative history. In all candor, however, I must acknowledge that the legislative history is ambiguous with respect to both the scope of the exemption sought to be established for EPA and the policy objectives sought to be achieved by the exemption.
In view of the Court's action and the present construction being given to NEPA by the judiciary and CEQ, I believe that the Congress is now faced with the issues of whether: (1) Any proper public purpose is served by granting to the Environmental Protection Agency a major exemption from the requirements of Section 102(2) (C) which is not enjoyed by any other Federal agency; and (2) If any exemption is warranted, the nature, class and types of activities and programs the exemption should cover.
Mr. President, after having had an opportunity to review the application of Section 102(2) (C) of NEPA to the many activities and programs conducted by all of the Federal agencies, it is my firm judgment that no exemptions should be granted to any Federal agency where the action proposed is a "major Federal action significantly affecting the quality of the human environment."
Requiring Federal agencies to examine in a rigorous fashion the alternatives to proposed decisions has, in my view, greatly improved the quality of government. It has mandated a "balancing process" and a weighing of alternatives in which all legitimate interests and values receive fair and proper consideration. Section 102(2) (C) has also opened the processes of Federal decision making to the scrutiny of Congress and the American public. Insuring that any Federal agency proposing a major Federal action consult with and obtain the comments of other Federal agencies having special expertise on the subject involved goes far toward improving the quality of Federal decisions. This consultation procedure guarantees that single-purpose, mission-oriented objectives do not have unintended and unanticipated consequences far beyond the intent of the agency proposing the action under consideration.
For these and many other reasons, I feel it is important that the Senate consider and fully understand the scope, nature and content of what is being proposed in connection with the adoption of the Conference Report and Section 511(c).
I call my colleagues' attention to subsection 511(c) of S. 2770. Clause (1) of this remarkable subsection exempts entirely the Environmental Protection Agency (EPA) from complying with the section 102(2) (C) environmental impact statement requirements of NEPA for all – I emphasize all – activities under the water quality bill except for the issuance of discharge permits for new sources and sewage treatment construction grants.
Activities which may be exempted by Clause (1) include the promulgation of new source performance standards, the establishment of "best available treatment" and "best practicable treatment" standards, issuance of guidelines for State control of non-point sources of pollutants, and approval of regional water quality management plans and State permit plans. Clause (2) states that nothing in NEPA is to be deemed (1) as authorizing any Federal agency authorized to license or permit the conduct of any activity which may result in a discharge into the navigable waters to review any effluent limitation or other requirement established pursuant to S. 2770 or the adequacy of any certification pursuant to section 401 that a discharge complies with the requirements of S. 2770, and (2) as authorizing any Federal agency to impose any effluent limitation different from effluent limitations established pursuant to S. 2770.
Subsection 511 (c) (2) is a rewording of the so-called "Baker Amendment", formerly section 511(d) of the Senate bill. The Baker Amendment was devised to clarify the relationship of State or EPA certification under the Federal Water Pollution. Control Act with the NEPA-mandated balancing judgment of environmental costs versus economic and technical benefits made by Federal licensing or permitting agencies. Its modest purpose was to clarify the nature of that relationship in accord with the original legislative intent at the time of NEPA's passage, not with the very different definition given to that relationship by the U.S. Court of Appeals for the District of Columbia in Calvert Cliffs Coordinating Committee v. AEC, 449 F. 2d 1109 (D.C. Cir. 1971) and by the Council on Environmental Quality in its guidelines to implement NEPA.
I am concerned that this revision of the Baker Amendment is intended to place greater restrictions on the ability of Federal permitting and licensing agencies to perform their NEPA responsibilities than did the original amendment to the Senate bill. In commenting on his amendment in this Chamber, Mr. Baker stated, "My amendment should not in any way be construed to mean that water quality considerations do not play a role in [the NEPA] ‘balancing judgment' [required of Federal permitting and licensing agencies]. On the contrary, where pertinent, water quality considerations must be considered by any agency when it decides, under the NEPA mandate, whether it is in the public interest to grant a license or permit and, if so, under what conditions and stipulations." (Congressional Record, pt. 30, vol. 117, p. 38857)
However, I question whether under the new subsection 511(c) (2) water quality considerations can, in fact, be reviewed in the NEPA "balancing judgment." Absent the major factor of water quality, the 102(2) (C) impact statement "balancing" and "weighing of alternatives" analyses are rendered useless as policymaking or decision making tools. I hope to receive clarification on this point from the Senate managers of the S. 2770 conference report.
I am particularly concerned about clause 511 (c) (2) (B). This clause bars any Federal permitting or licensing agency, such as AEC, from imposing, as a condition precedent to the issuance of any license or permit, any effluent limitation other than such limitation established pursuant to S. 2770.
Articles in today's Washington Post and New York Times document an important environmental policy decision. According to the articles, the AEC required Consolidated Edison to add an expensive "closed cycle" cooling system to its second nuclear plant at Indian Point, New York, to protect fish life in the Hudson River. This requirement was a part of a pre-licensing staff report.
It appears to me that environmental victories of this type are barred by clause 511 (c) (2) (B) of the conference report on S. 2770. This appears to be an "effluent limitation" which is a "condition precedent" to a license. Therefore, I read 511 (c) (2) (B) as prohibiting the AEC- Indian Point action. It is my worry that 511 (c) (2) (B) will bar environmentalists from ever intervening in AEC licensing procedures in order to obtain tougher effluent limitations – perhaps to protect wetlands, wildlife refuges, etc. – than the limitations prescribed by the standards of the EPA-run water quality program. Am I correct in assuming that environmentalists and citizens groups particularly concerned about the effects of water pollution at, for instance, the sites of certain proposed nuclear powerplants are entirely at the mercy of EPA and the general, nationwide standards it has set?
Of far greater importance, however, is the sweeping new language contained in subsection 511 (c) (1). Under this Subsection, except for new-source permits and construction grants, all actions of EPA are exempted from compliance in any manner whatsoever with the NEPA Section 102 (2) (C) environmental impact statement requirement.
The operating philosophy behind this sweeping exemption appears to be that environmental control programs should be free of environmental law requirements. On page 149 of the conference report this rationale is made all too evident. We find the statement, "The sole purpose of the Act is the enhancement of environmental quality." This is followed on the same page by the statement, "If the actions of the Administrator under this Act were subject to the requirements of NEPA, administration of the Act would be greatly impeded."
One could certainly take issue with this conclusion, but the real point to be made is why environmental control programs should be exempt from the constraints of environmental laws?
Do we exempt civil rights programs from anti-discrimination requirements? Are labor programs exempted from minimum wage and child labor laws? Are law enforcement officers free to disobey criminal laws?
In short, the question is, "Who shall police the police?" EPA should certainly be required to undertake the same open, balancing decision making which NEPA has required of other agencies.
Decisions, reversals, and new decisions by EPA in the fields of auto emissions, phosphates, and pesticides reinforce the critical need for this type of decision making by all Federal agencies.
The National Wildlife Federation in its September 22, 1972, Conservation Report, further criticized the 511 (c) exemptions and the rationale of EPA's environmental purity:
"It cannot be assumed that EPA will always be the good guy. Since EPA was formed, they have done an admirable job and they are continuing to do so, at least for the present. However, it cannot be forgotten that EPA is a regulatory agency and in the past in Washington almost all regulatory agencies have eventually come under the control of those that they are charged with regulating. Everyone hopes that this will not occur but, if it does, the exemptions granted in the water bill could prove disastrous for the environment.
"The most important thing that NEPA does is require that decisions affecting the environment be made more or less in public rather than behind closed doors. These exemptions would take the decision making and standard setting processes out of public view. In fact, the decision making authority, would probably be taken away from EPA and lodged with the Office of Management and Budget (OMB) under their Quality of Life Reviews ... behind closed doors."
I suspect that the chief incentive for exempting environmental control programs is, as the conference report suggests, that to apply NEPA to these programs would be to increase their administrative burden. I question whether the application of the exemption to "one-shot" activities such as promulgation of new-source performance standards, the establishment of treatment standards, issuance of guidelines for State control of non-point sources of pollutants, and approval of regional water quality management plans and State permit plans will reduce administrative work to such an extent as to justify this reason for an exemption. But beyond this, I find this same concern over the potential administrative burdens of EPA shared by all other Federal agencies and officials involved in most other Federal programs. Many other worthwhile programs – social programs, housing programs, recreation programs – also would dearly love to shrug off legislative mandates which may require additional administrative work. To exempt important Federal programs from essential legislative mandates simply because they increase the administrative burden of such programs is not good public policy.
A second concern over this wide exemption relates to its possible use as a precedent for further exemptions. The rationale for the 511 (c) exemption would make it equally applicable to all other environmental programs. However, what one agency or one Congress may regard as an environmental program, the next may not. Are we to apply such a wide ranging exemption on the basis of the momentary definition of what is an "environmental program?"
Rationales for legislation tend to mutate or lapse into extinction rather more quickly than do the legislation's precedential values. Again. I quote the Conservation Report:
"[Subsection 511 (c) (1)] sets a bad precedent for other federal agencies, such as the Corps of Engineers, the Federal Highway Administration (FHA), etc., who are also seeking to have their activities exempted from EPA. During the spring environmentals fought to have two bills (H.R. 13752 and H.R. 14103), which would have granted exemptions from NEPA, defeated. Their victory in stopping those two bills has now been wiped out in the water pollution bill. It is also a bad precedent that the exemptions to NEPA were granted by the Public Works Committee rather than the committees under which NEPA was enacted, namely, the Senate Interior and Insular Affairs Committee and the House Merchant Marine and Fisheries Committee."
I would certainly welcome responses from the manager of this Conference Report on the general questions of advisability of exempting environmental programs from NEPA and of the possible precedent being established here. However, these questions cannot be resolved on the floor today. What would be useful, is a more detailed description of how 511(c) would operate and of
the reasons why the conferees felt an expansion of the Baker Amendment was necessary. I must say I find the application of this amendment to be confusing in a number of cases. Let me give a few examples:
(1) No environmental impact statement analyses would be required for EPA approval of regional water quality management plans, even though environmental impact statements are prepared for such plans under EPA's existing procedures (Subpart E, EPA Procedures for Implementation of the National Environmental Policy Act). I believe a discussion is in order on the reasons for preserving the existing duty to prepare statements on some EPA actions such as waste water treatment projects, while removing the requirements on other activities, such as the water quality management plans.
(2) Discharge permits for new sources would still be subject to section 102(2) (C) of NEPA. Yet, the far more significant activity – the setting of new-source performance standards upon which the discharge permits would be based – apparently would be exempted from the required NEPA "balancing judgment." This creates the anomalous situation of requiring an impact statement on discharge permits which are to be based on performance standards which themselves will not be the subject of an impact statement and which, under section 511(c)(2), would not be subject to any reexamination in the context of issuing the permit. Therefore, under section 511 (c) (2), the impact statement is limited to the review of only the non-water quality considerations.
(3) I am not certain of the breadth of this exemption. One of the two exceptions to the 511(c) (1) exemption is new-source permits. However, I am confused as to whether, upon the publication of regulations under S. 2770, should such regulations require any new construction or alterations in equipment, plant, or operation, all new permits would be considered permits for "new sources." If this is true, the exemption is limited.
(4) On the other hand, I believe the exemption is made virtually unlimited through another means. No environmental impact statement apparently would be required for EPA approval of State permit plans. Yet, once approved, these plans would allow the State to issue permits – presumably even for new source discharges – without further Federal review, including NEPA review. Therefore, even one of the two exceptions to the exemptions – new source permits – can be folded into the exemption through the approval of State plans.
(5) No NEPA analysis would be required for the establishment of the "best practicable treatment" and "best available treatment" standards for categories of waste discharging facilities. And yet the 102(2) (C) impact statement with its "balancing" and "weighing of alternatives" analyses is particularly appropriate for such standard setting. I am at a loss to understand why these standards are exempted.
(6) Similarly, the issuance of guidelines by EPA for State control of non-point sources of pollutants would not be the subject of an impact statement. Again, such guidelines are particularly appropriate subjects for environmental impact statements.
I am particularly concerned about the apparent view of the Senator from Maine that the 511 (c) exemption from NEPA is, in fact, an exemption from all of the major provisions of NEPA. On its face, as wide as the 511 (c) exemption is, it is still clearly limited to the 102(2) (C) environmental impact statement of NEPA. The words "major Federal actions" are found only in clause 102 (2) (C) and the effect of those words is limited only to clause 102(2) (C). Therefore, the 511 (c) (1) exemption applies only to the requirement of an environmental impact statement. Furthermore, 511 (c) (2) does not touch upon NEPA's requirements vis-a-vis the Environmental Protection Agency or S. 2770's water quality programs at all, but only upon how NEPA applies to other agencies in their relationship to EPA and S. 2770's programs.
There is no intent expressed in either the Conference Report or the managers statement to use S. 2770 as a vehicle for exempting other Federal permitting and regulating agencies from NEPA's requirement.
Should the conferees wish S. 2770 to be exempt from all the NEPA requirements, they should support such an amendment when the legislation first comes before the Senate and the House – at a time when all members have an opportunity to do more than vote up or down a conference report. A back-door attempt at legislation through last minute speeches on the floor of the Senate is not the proper conduct of the Nation's business. Fortunately, as Calvert Cliffs and other court decisions have indicated, the courts will not abide the diminution of the authority of environmental laws through the vehicle of floor speeches re-interpreting clear legislative language.
I did not object to 511(d) of S. 2770, the original Baker Amendment, when it was first considered in the Senate. As I understand that amendment, it established that – contrary to a holding in the Calvert Cliffs decision – the impact statement required of AEC and other Federal permitting or licensing agencies did not need to include an independent evaluation of water quality alone.
These agencies could accept State or EPA certification under the water quality laws as conclusive on that point. However, as Senator Baker noted in the floor debate on S. 2770, his amendment would not bar water quality consideration in the overall balancing of costs and benefits required in the environmental statement.
As I read the new language contained in clause 511 (c) (2) all water quality considerations are barred from the impact statement analyses. If this is true, this exemption not only frees EPA from the environmental impact statement requirement (in clause 1) but also (in clause 2) makes that requirement useless to all other Federal permitting and licensing agencies whose activities touch on water quality. To have consideration of such an important variable as water quality barred from the balancing and alternative weighing analyses of AEC and similar Federal licensing agencies makes the impact statement a less useful decision making tool and useless to the public as a means of bringing decision making which affects the environment into the open.
Could the manager of the Conference Report comment on the rewording and enlarging of the Baker Amendment beyond the scope of either the Senate or House bills and on the concerns I have expressed concerning such a step?
Mr. JACKSON. I would just point out, Mr. President, that the words "major Federal action" which my good friend from Maine has referred to are to be found only in section 102(2) (C) of NEPA. They do not occur in any other place in the act.
I am particularly concerned about the apparent interpretation given to 511(c) by the Senator from Maine that this subsection embodies an exemption from not just the NEPA 102(2) (C) impact statement requirements but from all the major requirements and provisions of NEPA. On its face, as wide as the 511 (c) exemption is, it is still clearly limited to the 102(2) (C) requirement. The words "major Federal actions" are found only in clause 102(2) (C) and the effect of those words is limited only to clause 102 (2)(C). Therefore, the 511(c)(1) exemption must be construed as applying only to the 102(2) (C) environmental impact statement requirement. Clause 511 (c) (2) does not touch upon NEPA's requirements vis-a-vis the Environmental Protection Agency or S. 2770's water quality program at all, but only upon how NEPA applies to other Federal permitting and licensing agencies in their relationship to EPA and S. 2770's programs. Certainly, this clause (B) cannot be intended to be so wide as to exempt all major Federal permitting and licensing agencies from all the requirements of NEPA.
Should an exemption of all requirements of NEPA have been contemplated by the conferees, it was clearly not achieved in the language of 511(c). I suggest that such a wide-ranging exemption, if intended, should be the subject of debate when the legislation first comes before the Senate and House – at a time when all Members have an opportunity to do more than vote up or down a conference report. Fortunately, as Calvert Cliffs and other court decisions have indicated, the courts will not abide the diminution of the authority of environmental laws through the vehicle of floor speeches reinterpreting clear legislative language.
I think there are limitations on how far one can go in interpreting the explicit and unambiguous language of the conference report. May I say that I agree with the Senator that we did have the colloquy on the Senate floor that he referred to, and we did have that understanding.
Unfortunately since that time we have had a number of Federal decisions, including the Calvert Cliffs case. In addition, we have had guidelines promulgated by the Council on Environmental Quality and even regulations promulgated by EPA, which has abrogated our understanding and the effect of that colloquy.