September 18, 1972
Page 31072
Mr. MUSKIE. Mr. President, the Land Use Policy and Planning Assistance Act which we consider today has significant implications – perhaps greater than any domestic legislation we have yet considered in this session of Congress.
It mandates that States closely supervise or control land use decisions which have long been the province of local government; it requires States to coordinate all State and local services which significantly affect land use; it establishes the Federal Government as supervisor of these newly centralized State responsibilities; and it proposes policies for land use and resource conservation which appear to be oriented towards development and may conflict with environmental legislation we have enacted.
These proposals will have significant ramifications on the financial structure and sovereignty of State and local government, on the relationship of the Federal Government and States in the federal system, and upon the future of Federal and State laws to protect the environment.
This bill creates an outline for national land use policy with no substance; declares a national policy but concedes to the several States responsibility to determine what that policy should be, subject only to procedural review by the Department of Interior.
Federal legislation of this magnitude, with far-reaching impact on many Federal programs – at least 112 by the Interior Committee's count – must provide some Federal policy guidance. This legislation provides none. It is my intent to offer amendments to assure that the bold steps taken in the Clean Air Act and the Federal Water Pollution Control Act are not set back by seeming conflict and inconsistency with the legislation which we consider today. I would also hope there would be little controversy as to an amendment to assure that States and localities continue to be permitted to adopt strict controls on development without dilution by the policy provisions of this legislation.
Mr. President, beyond the impact on environmental laws, there are three issues raised by S. 632 I would like to discuss. I discussed these issues in a Senate floor speech on August 16. I tried to identify the deficiencies which I felt were inherent in the reported bill.
I discussed these issues on the Senate floor in a speech on August 16. I ask unanimous consent that the text of that speech be printed at this point in the RECORD.
There being no objection, the text was ordered to be printed in the RECORD, as follows:
Mr. MUSKIE. Mr. President, in that speech I tried to identify some of the key issues of this legislation.
Today I will be more precise. Today I have prepared and have translated into legislative language amendments which address those three critical areas. I think the failure to adopt these amendments will result in confusion, lack of guidance, lack of leadership, lack of effective management of land use and, without question, subrogation of a myriad of national policies to the judgment of the Interior Department and the States.
Mr. President, S. 632 as reported from committee requires that Federal programs which affect land use conform to State land use plans. But S. 632 does not provide any mechanism to permit a Federal substantive involvement in the nature of those land use plans nor does the legislation as reported provide any guidance as to what is and what is not good land use planning.
A State is permitted to establish land use policy which may frustrate national policy. This authority could be devastating in a creative and cooperative federal system. I do not think that States can operate without guidance from the Federal Government and without substantive involvement from the Federal Government. There are obviously too many national interests involved to require Federal conformity to plans in which the Federal Government has only a procedural involvement.
As a practical matter, of course, Federal policy guidance may quickly develop. The lack of Federal policy guidance in S. 632 will present an opening for those in the Federal bureaucracy to impose their individual views of what is best upon the States. Stating a national policy in the law will assure that States are not subjected to these bureaucratic whims and assure a true national policy.
Land use policy is but one of the considerations which must be identified in making public policy. There is no question but that land use decisions will affect transportation, energy, and the environment. And yet we have or should have a national policy for each. To impose one on top of the other without consideration of their relative impact would be irresponsible.
Land use control does not by itself protect the public health even though public health may be adversely affected by air and water pollution associated with a given land use. But existing law provides for that. The Interior Committee does not argue that S. 632 is public health legislation.
Certainly, no one would suggest that air and water pollution laws designed to protect public health and welfare should be subrogated to land use decisions which may only relate to economic development. Therefore, it is essential that we not only have guidance as to land use but also have the capacity for the Federal Government to become sufficiently involved in the development of land use plans to assure that other equally or more important national policies will not be upset in pursuit of land use decisions.
I do not doubt that the initial steps anticipated by this legislation will lead to a substantive Federal presence in State land use decisions in any event, whether or not the sponsors of this legislation so intend. I simply intend in my amendments to clarify that role, to establish the necessary guidance and to assure a substantive response.
Repeatedly, statements which have been made about this bill argue that the Federal Government only procedurally becomes involved in land use. But I would point out to my colleagues that under the guise of procedural involvement with the penalty provisions established in the legislation, there is an indirect Federal involvement in the State land use plans which is as great as that which I would propose, without the guidance of the Congress as to what the nature and extent of that involvement should be. Any Federal program which is initiated on the presumption that failure to adequately perform can result in reduction of Government funds must necessarily leave to the administrators of that program the determination of adequacy of performance. Such a determination without policy guidance simply means an ad hoc judgment, in this case by the Secretary of the Interior, as to whether or not he likes a land use plan developed by a State.
There are other vital areas of concern. No land use policy can be effective in this country without attention to and reform of the property based tax system. The degree of reliance of local governments on the property tax base is such that no meaningful land use decisions can be made without first focusing on what the property tax will permit. This matter is not addressed anywhere in S. 632 and yet it is integral to S. 632.
There is no reason to believe that the policies developed under this legislation and imposed on local government will take into account the need for tax reform unless the Congress insists that tax reform be an integral part of land use policy. To do less would be irresponsible. To encourage and, in fact, require the States to take over local land use decision making responsibility without requiring that States assure continued availability of local services and fulfillment of all local government financial obligations, regardless of losses associated with changes in value of property re-zoned to meet State plans, is ridiculous.
Mr. President, we have today an outstanding example of how foolish it would be to permit land use reform without tax reform. The Subcommittee on Air and Water Pollution recently held a hearing on pollution of the Lake Tahoe Basin.
My colleagues know that the Tahoe basin is a unique national resource. Its ecology is fragile and it is being destroyed. If current development plans for that basin were permitted to proceed unchecked Lake Tahoe could be written off now. In recognition of this, the States of California, Nevada, and the Congress enacted an interstate compact with the power to make determinations as to how best to use the land in that area in order to protect that fragile environment.
The Tahoe Regional Planning Agency has developed a land use plan and, as should have been expected, has changed entirely the property tax base for the political subdivisions which operate in that area. Land formerly valued at speculative rates because of anticipated development has been devalued because the fragility of the land surface will not permit any development whatsoever. And yet, the political subdivisions within that basin, anticipating development and responding to the needs created by that development, have invested heavily in improvements such as water, sewer, waste treatment plant, so on, to meet the needs of anticipated growth.
Today those communities are desperate. Debt service must be retired or the communities in question will face severe fiscal crisis. But there are no funds. There has been no reform. There is no mechanism to compensate those communities for the loss associated with re-zoning requirements which have been determined essential for the preservation of that basin.
Mr. President, this example alone should serve as warning to the Senate of the need to mandate, as a part of this legislation, an absolute requirement that property tax reform accompany, if not precede, any land use policy decisions at the State level. Today, I shall propose amendments to assure consideration of these matters as part of the land use program.
Mr. President, the Land Use Policy and Planning Assistance Act would rest responsibility for procedural review of State land use plans in an Office of Land Use in the Department of the Interior. I question this viability and the wisdom of this provision. The Interior Department has a long and distinguished history of involvement in development of public land, wilderness areas, and national parks.
Unfortunately, the Interior Department has no broad-based planning responsibility as would be established under S. 632. The Interior Department has no awareness of issues relating to State and local tax patterns. The Interior Department has had no involvement or experience in the Nation's urban areas where 70 percent of the population lives and where the major, critical land use planning problems exist. Because of the Interior Department's limited experience in these areas, I am concerned that solution to urban-based land use problems, at worse, may be misjudged and at least delayed or complicated. Sound evaluation of public policy requirements argue that an Interior Department traditionally oriented toward public lands and rural areas will not comprehend other issues, including the host of problems which confront urban areas in 50 States.
An argument can be made for charging several Federal agencies with the lead agency role in land use planning. But any fair evaluation of the Federal structure demands the conclusion that no single agency has either the ability or the breadth to do the job. The Department of Housing and Urban Development, for example, has experience in comprehensive planning in urban areas but has limited understanding in such matters as watersheds, irrigation rights, wilderness needs, and mineral exploration which affect many important land use decisions outside of urban areas.
The Environmental Protection Agency, with knowledge of environmental issues, has but little involvement with the social and fiscal implications which affect land use planning in urban areas or the land management issues which must be recognized in non-urban areas.
For this reason, it is essential that, should the Federal Government assume the role in guiding development of State land use planning programs assigned by S. 632, coordinating it must occur through an agency with the breadth to recognize all of the broad issues, with capacity to bring together all of the experience of Federal agencies relating to the land use planning which does not exist in the narrow line agencies. Only the Executive Office of the President has the overall capability to coordinate this responsibility.
My amendment would vest responsibility for implementation of this legislation in the Executive Office of the President. I admit that this is an imperfect solution, but land use is so complex – land use involves so many facets of public activity – land use involves the programs of so many Federal agencies – that land use must be within the responsibility of a Federal office which has the capability to bring to bear all of the resources of the Federal Government.
Under my amendment, the President would have to establish an Office of Land Use Planning in the White House. That office should be able to draw immediately the best talent available from the Departments of the Interior, Housing and Urban Development, Transportation, and Agriculture as well as EPA, independent agencies, the academic community, and the private sector. I do not expect this office to be political. Like the Office of Management and Budget, it should be an agency composed of civil servants dedicated to a specific responsibility.
And, the White House which has ultimate responsibility of implementation and coordination of those national policies to which I have referred is the only logical location for the responsibilities proposed by this bill and the amendments thereto.
So, Mr. President, I shall offer an amendment to change jurisdiction over this land-use program from the Department of the Interior to the Executive Office of the White House itself.