September 19, 1972
Page 31190
Mr. MILLER. Mr. President, I send an amendment to the desk and ask that it be stated.
The PRESIDING OFFICER. The amendment will be stated.
The amendment was read, as follows: On page 74, line 21, delete all after the word "by".
Mr. ROBERT C. BYRD. Mr. President, will the Senator yield?
Mr. MILLER. I yield.
Mr. ROBERT C. BYRD. Mr. President, I ask unanimous consent that on each remaining rollcall vote today there be a time limitation of 10 minutes, with the warning bell to be sounded after the first two and a half minutes.
Mr. COOK. Mr. President, I object.
The PRESIDING OFFICER. Objection is heard.
Mr. MILLER. Mr. President, I yield myself such time as I may require.
I have coordinated this amendment with both the manager of the bill, the distinguished Senator from Washington, and the manager of the bill on this side of the aisle, the distinguished Senator from Idaho (Mr. JORDAN).
This amendment would merely strike out the words "the public and the" The reason for doing so is that in the previous paragraph, item 12, on page 74, the conducting of public hearings concerning State land use planning process or aspect thereof, the language is broad enough to cover the matter referred to in the next paragraph, item 13. So that item 13 would now read: "the provision, and continuation thereof, of opportunities for participation by appropriate officials or representatives of local governments in the planning process and in the formulation of guidelines, rules, and regulations for the administration of the planning process."
If we do not delete the four words to which I have referred, I suggest that there will be some ambivalence and confusion as to what is intended. By deleting them and using the conducting of public hearings in item 12, I think there will be no confusion, and it will be clear cut that public hearings are going to be involved in the planning process and in all aspects thereof.
Mr. JACKSON. Mr. President, will the Senator yield?
Mr. MILLER. I yield.
Mr. JACKSON. Mr. President, the distinguished ranking minority member of the committee and I have reviewed this amendment, and I think it would help to clarify the matter. It is a purely technical amendment. I am pleased to accept it.
Mr. MILLER. I thank the Senator from Washington.
Mr. JACKSON. Mr. President, I am supporting the amendment of the Senator from Iowa because I view it as a technical amendment designed to avoid redundancy.
The intent of S. 632 is to encourage public participation at all stages of the State planning process. I endorse this concept.
I do not view or understand the amendment of the Senator from Iowa as in any way being contrary to this concept.
Mr. MUSKIE. Mr. President, will the Senator yield?
Mr. MILLER. I yield to the Senator from Maine.
Mr. MUSKIE. Mr. President, I say to the Senator that I am concerned that the effect of his amendment may be to narrow the role that non-governmental citizens may play in this planning process.
Subsection 12, which precedes, refers to public hearings. Those, I take it, would usually take place somewhere down the road in the planning process.
I found it useful in my own community to get the public involved before you get to the stage of public hearings in committees and the actual development of propositions and policies.
It seems to me that the effect of the Senator's amendment would be to foreclose that possibility. If the participation of the public has to do only with formal hearings at some stage after the input of ideas has been made, after tentative policies have been framed, that may be a little late, I say to the Senator. I would support his motion of eliminating the redundancy, but l do not really think this is a redundancy in the place it is found in the bill. I did not write the bill.
Mr. MILLER. The Senator is correct that this is not purely a redundant thing. The point I am making is that the conducting of public hearings concerning the State land use planning process or aspects thereof – as the Senator can understand, there are many aspects thereof – is very broad. If we go beyond that, I do not know what kind of thicket we are going to get into.
What I would hope the Senator from Maine would like to see is something not unlike what we have at the Federal level now, where, in connection with a proposed regulation, for example, there is public notice, opportunity for people who feel aggrieved to come in for a hearing. I think that this type of procedure at the State level would be helpful. I think item 12 will cover that.
But I think that to require that a State plan be open to participation by the public in other than public hearings is a pretty far-reaching and rather dangerous approach, because this could admit of all kinds of public action or actions by the public apart from a public hearing. The public hearing is where the public really has a chance to manifest its views. If item 12 permits the public to participate in all aspects, I do not know what more we need.
Mr. MUSKIE. The language on line 21 to which the Senator takes objection reads: "the provision of opportunities for participation."
It does not specify what form those opportunities ought to take or at what place in the process they ought to be provided. I do not consider that far reaching.
When we wrote the first zoning law in my community, it was not left to the city fathers to write it. They invited several members of the public, including myself, including other lawyers, including other citizens, to sit down and to participate in the development of the policies which ultimately were submitted to the governmental institutions. But the public was invited to participate. That was opportunity for participation. The Senator assumes that such opportunities will be inappropriate.
Mr. MILLER. No, no – now wait. May I say to my friend from Maine that he does not presume anything of the sort. The Senator assumes that what the Senator has been talking about, which he refers to in his own State of Maine, could be desirable under certain circumstances, but to write that in as a requirement is what I think is dangerous and far reaching. If we have the public hearings written in, we have a good guarantee and I think that is sufficient.
Mr. MUSKIE. Let me suggest another one foreclosed by the Senator's amendment. In my city, when we had urban renewal and the requirement of local zoning laws, we went to the people with a referendum and if we had not done that, the chances were we would never have had it worked out the way the people wanted it. A referendum of that kind would be foreclosed by the Senator's amendment and all sorts of opportunities for public participation which would be perfectly appropriate. What the Senator's amendment would do would be to foreclose both appropriate and inappropriate occasions for public participation.
Mr. MILLER. No, the Senator is misinterpreting the amendment I am offering. It does not foreclose it at all. I just said that I can understand how the procedure the Senator referred to in Maine could be desirable, but I do not want to have it written in as an absolute requirement. With public hearings as an absolute requirement, we are amply protected.
Mr. MUSKIE. I do not regard the language as establishing an absolute requirement of anything specific. All it says is "opportunities for participation."
By making the kind of legislative history we would be making, if we adopted the Senator's amendment, by positively striking out that language, the effect, in my judgment, would be to limit public participation to public hearings, unless there is some other language in the bill which broadens it. I want no part of that legislative history. I think it is too restrictive.
Mr. MILLER. Let me point out to the Senator from Maine, on page 72, the precise language on line 13 is, "which process shall include." It does not say "may" include, it says "shall" include.
Mr. MUSKIE. Appropriate opportunities for participation.
Mr. MILLER. Then, reading down here, "opportunities for participation."
Mr. MUSKIE. It does not specify what the opportunities shall be.
Mr. MILLER. No.
Mr. MUSKIE. What the Senator is saying is that he does not want public participation in any way except in informal public hearings.
Mr. MILLER. I wish the Senator would not try to put words in my mouth. I do not try to do that to him. I hope that he will do me the same courtesy. Apparently the Senator from Maine did not know what I was saying
Mr. MUSKIE. Yes, I did.
Mr. MILLER. That I think it would be desirable to do such things as he indicated had been done in Maine, but it should not be placed in the bill as a matter of an absolute requirement, when we already have public hearings provided for in item 12.
Mr. MUSKIE. The kind of things I have mentioned are not public hearings by any definition
Mr. MILLER. I so understood.
Mr. MUSKIE. There is no language in the bill other than the language "public hearings." I am saying that the effect of the Senator's amendment would be to limit participation by the public to limited public hearings.
Mr. MILLER, No, no. The effect is to make clear that a State plan does not necessarily have to do what the Senator found helpful up in Maine. If Maine wants to do it that way, let them do it. There is nothing to prevent them from doing that.
Mr. MUSKIE. All I am trying to say–
Mr. MILLER. Item 12 says all aspects of the planning process, so that I do not believe we should write in an absolute requirement binding each and every State plan to do what the Senator found to be a good procedure in Maine.
Mr. MUSKIE. What the Senator is saying is, if we leave this to the instincts of government, it will be to involve the public, that we should let that instinct have its way. I will say that the instinct has been directly contrary to that. One of the reasons for the great unrest we are experiencing politically is the failure of institutions to open up to public participation. It seems to me that if we object to such innocuous language as the Senator would seek to strike, that is "opportunities for participation," all we would be doing would be to evidence the reluctance of this institution to create opportunities for participation by the public. I do not have any confidence that that instinct exists or that it exists broadly or that it will result in meaningful public participation. Thus, I would oppose the Senator's amendment.
Mr. MILLER. May I say that I am sorry the Senator from Maine feels that way about it. He knows legislative history as well as any Member of the Senate, and he knows that the colloquy we have had already will make it clear there is nothing by way of what has been said that would indicate the Senate intends to discourage, in appropriate situations, a State from doing something such as the Senator found helpful in Maine. All that is intended by this amendment is to make clear that a State does not have to do this in order to have a State plan that would qualify. That is all.
Mr. MUSKIE. The Senator has stated my interpretation of the bill very well. What it means is that the administrator cannot encourage the State or local government to include public participation, cannot play a negative role, but also cannot play a positive role if the Senator's amendment is adopted.
Mr. MILLER. I think the Senator from Maine and I are pretty well at issue on this. We both understand and recognize that in certain situations it may be helpful to do what the Senator alluded to had been done in Maine. At the same time, he says he wants to write it in as an absolute requirement. I say that I do not think we should do so, particularly in view of the requirement – and it is an absolute requirement, as the Senator from Maine knows very well – that the public hearings will be a part of the State plan, in item 12, covering all aspects. I think that is what is pretty much at issue here.
Mr. MUSKIE. I think we should have a roll call vote on this amendment. I think it is very important. I have many questions about the bill, but one of the provisions in the bill on which I was relying, in spite of its shortcomings, so that it will be in the public interest, is the very one the Senator proposes to strike. I think the record is clear.
Therefore, Mr. President, I ask for the yeas and nays on the amendment of the Senator from Iowa.
The yeas and nays were ordered.
The PRESIDING OFFICER (Mr. GAMBRELL). Who yields time?
Mr. MILLER. Mr. President, I yield back the remainder of my time.
Mr. JACKSON. Mr. President, I yield back my time.
The PRESIDING OFFICER. All time on this amendment has now been yielded back.
The question is on agreeing to the amendment of the Senator from Iowa. On this question the yeas and nays have been ordered and the clerk will call the roll.
The legislative clerk called the roll.
The result was announced – yeas 35, nays 41, as follows:
[Roll call vote listing omitted]