September 18, 1972
Page 31079
Mr. BIBLE. Would this apply, then, to the primary highway system, which is not interstate, or the secondary road system?
Mr. JACKSON. It could apply to primary and secondary roads which would, in fact, have a substantial environmental impact as they would affect the land.
Mr. BIBLE. Well, would it apply to the construction of a large airport?
Mr. JACKSON. Yes.
Mr. HANSEN. Mr. President, will the Senator yield at that point?
Mr. JACKSON. I yield.
Mr. HANSEN. I meant to ask, and I thought I did ask, the question just posed by the Senator from Nevada; and I thought the chairman's response was that it would not apply to airport expansions and highways. Do I now understand that it does?
Mr. JACKSON. I was referring to the amendment that will be offered in behalf of the Senator from Nevada (Mr. CANNON) by Senator MAGNUSON. He is offering an amendment which would exempt airports, as I recall.
Mr. HANSEN. I was wondering, if the Senator will yield further – maybe I am interrupting here–
Mr. BIBLE. It is perfectly all right. I interrupted the Senator, turnabout is fair play. Go right ahead.
Mr. HANSEN. I am sure we had the same purpose in mind, Mr. President, and that is to understand clearly what the amendment proposes to do. We are talking about amendment 1535. Is that correct?
Mr. JACKSON. That is correct. This key language is on page 3, beginning on line 6:
After five fiscal years from the date of enactment of this Act, no Federal department or agency shall, except with respect to Federal lands, propose or undertake any new action, financially support any new State-administered action, or approve any loan or loan guarantee which might have a substantial adverse environmental impact or which would significantly affect land use in any State which has not been found eligible far grants pursuant to this Act.
Mr. HANSEN. If the Senator will yield further, it is my understanding, on the basis of past experience, that almost any activity that one can think of has been construed by some and has been supported by the courts to have an environmental impact. We are talking about expanding the airport in Jackson, Wyoming, approximately 1,700 feet.
Mr. JACKSON. I think the courts very clearly are not going to place within the purview of the language I have referred to, "substantial adverse environmental impact"
The PRESIDING OFFICER. The time of the Senator from Washington on the amendment has expired.
Mr. JORDAN of Idaho. I yield 2 minutes to the Senator.
Mr. JACKSON. It would have to be a large project. It is one that would have a substantial impact on the land, the use of the land. It does not apply to smaller projects. Although these things cannot be described by metes and bounds or in terms of dollars, we are talking about very large projects.
Mr. HANSEN. The Park Service, I think, is laboring under the illusion, in Grand Teton, that this does have a major environmental impact. Is the Senator saying that it does not?
Mr. JACKSON. It would not apply at all if the State complies with the provisions of the act and is eligible.
Mr. HANSEN. Assuming that it does not.
Mr. JACKSON. Assuming that it does not, I do not see how it would apply to a small airport, unless it was in, shall we say, a pristine area, which obviously could have a serious environmental impact.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. JORDAN of Idaho. I yield 1 additional minute to the Senator.
Mr. HANSEN. I should like a definition.
Mr. JACKSON. The way the Senator describes it, I do not see how it would.
Mr. HANSEN. The Park Service feels it is of critical environmental concern.
Mr. JACKSON. Is this going to be in a park?
Mr. HANSEN. It is in a park.
Mr. JACKSON. In which park?
Mr. HANSEN. Grand Teton.
Mr. JACKSON. Under existing policy, I do not know that there can be an airport in a national park. I defer to the Senator from Nevada.
Mr. BIBLE. My memory is that we normally do not, but I think we passed special legislation – and a couple of dollars to go with the legislation – to put an airport there.
Mr. HANSEN. It is already there.
Mr. BIBLE. I think it is an exception.
Mr. JACKSON. Based on what I now find, that it is in the Grand Teton, I would say that it is Federal land, and that, therefore, this bill does not apply. The pending measure does not apply to Federal land. We have a provision about joint coordination between the Federal Government and the State government to bring about a more compatible adjoining use, but the requirements of the act relate specifically to non-Federal lands.
Mr. BIBLE. May I ask the Senator one more question?
Mr. JACKSON. Yes.
Mr. BIBLE. This has been suggested to me by Elmo DiRico. I think the Senator from Washington knows him. He is director of our department of conservation and natural resources. He wants to know what, if any, effect the sanction provision – I am calling it that for want of a better name – has upon land and water conservation funds. Does it have any effect whatever? If the State does not come into complete conformity within the periods prescribed, do you hold back on the land and water conservation funds?
Mr. JACKSON. It would be my judgment that it would not apply to the land and water conservation fund.
That was in the previous bill. It has been taken out now. In light of that legislative history, it would not apply.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. JORDAN of Idaho. I yield 2 additional minutes to the Senator.
Mr. BIBLE. Would that apply in cases where, under the Land and Water Conservation Fund, there might be some adverse effect on the environment?
Mr. JACKSON. I do not know what kind of situation that would be, because the moneys of the Land and Water Conservation Fund are used to enhance the environment for park and recreational purposes. I suppose the environmental impact statement requirement under existing law, the National Environmental Policy Act, would apply, in any event.
Mr. BIBLE. I just want to clear that up, so that I can answer the Director properly.
Mr. JACKSON. I think the Senator has raised a very proper question. It would be my judgment, as the author of this amendment, that it would not apply.
Mr. MUSKIE. Mr. President, will the Senator yield?
Mr. JORDAN of Idaho. I yield 2 minutes to the Senator.
The PRESIDING OFFICER. The Senator from Idaho has 10 minutes remaining. The Senator from Washington has no remaining time.
Mr. MUSKIE. As I understand it, the penalty provision of this bill is designed to put teeth into it after 5 years. That is, if a State does not come up with an adequate land use program after 5 years, then funds in these various programs can be withdrawn or withheld, up to a certain maximum.
My concern about the penalty provision written into the pending bill is that, in effect, it gives the administrative agency, the Secretary of the Interior, the authority to impose his own judgment about what is an adequate land use program; and if his personal judgment is not agreed to by the State, he can implement that personal judgment by withholding program funds.
As I understand the amendment that has been offered, the penalty would be broadened to include not just those programs included in the bill – that is, the highway programs, the airport programs, and the park programs – but also any one of the 112 Federal programs which are covered and which involve grants or potential grants to the States. Am I correct in that?
Mr. JACKSON. My understanding is that before the Secretary could act, there has to be a hearing before the ad hoc board set up by the President. In addition, the head of EPA and the Secretary would have to join in the findings and recommendations of the ad hoc board which would be appointed by the President.
Mr. MUSKIE. But the penalty provision is to be broadened to include any one of these 112 programs which involve grants to States. Any one of these can be cut back for failure of the State to conform to the land-use policy requirement in the proposed legislation?
Mr. JACKSON. If such programs have a substantial adverse environmental impact and therefore would significantly affect land use. Of course, there is an exception: It is provided that health and safety matters are exempt from this sanction.
Mr. MUSKIE. I may be confused on this, and I want clarification because it would be of interest to the Senate.
As I understand the penalty provision of the act, this sanction could be applied, under the pending bill and under this amendment, if a State failed to produce an adequate land-use program, period.
This sanction could be held up as a threat to a State to force it to adopt what the Secretary, and whatever other agency is involved, consider an adequate land-use program. Am I in error on that?
Mr. JACKSON. The whole question is whether or not, as the Senator knows, on land use, a plan has to go through the stated procedures in the act. There is an appeal from that. There is adequate opportunity for States to be heard. Before any sanctions can be imposed, there has to be the ad hoc hearing committee set up in which the head of the EPA and the Secretary of the Interior will have an opportunity to participate. It does not deny all Federal programs. It only applies where such programs, no matter what they are, other than those affecting public health and safety or welfare, where the Governor of the State intervenes and asks for a suspension on that ground. It has to be of a substantial adverse type of environmental impact.
Mr. MUSKIE. Here is another clause. Let me read it from the amendment – part 6 on page 2 if I am referring to the same page. It has to do with this particular language we are discussing – page 2, halfway down is No. 6 on page 87–
Mr. JACKSON. The key language starts on page 3, line 6, of the pending amendment No. 1535 that we are using.
Mr. MUSKIE. Let me refer to the printed amendment, then, which contains the same language. Page 3, lines 11 and 12 – the Senator has said that the program funds can be withheld in the event the project would have a substantial and adverse environmental impact, but I refer the Senator to the next line, "or which would significantly affect land use in any State." Almost any one of the 112 programs would affect land use. This language does not suggest that the effect must be deleterious or harmful. It simply says if it affects–
Mr. JACKSON. Significantly affects.
Mr. MUSKIE. If a State has not adopted a satisfactory land-use program, as I read line 12 of the Senator's printed amendment, or there is failure to deal with such programs, it would give the administrator the authority, whether he would exercise it or not, to withhold the funds.
Mr. JACKSON. It has to have a significant effect. It is just not any effect. Its use is disjunctive.
Mr. MUSKIE. It might affect the programs involved for the Airport and Airway Development Act, the Appalachian Regional Development Act, the Atomic Energy Act, the Consolidated Farmers Home Administration Act, the Demonstration Cities and Metropolitan Development Act, the Elementary and Secondary Education Act, the Federal Aid Highway Act, the Federal Power Act, and so forth. Every one of these programs has a significant land use impact, intentionally if not in fact, in every project.
Mr. President, I ask unanimous consent to proceed for another 15 minutes to continue discussion on this issue which, in my judgment, in many ways is one of the key elements in this legislation.
The time will be under the control of the Senator from Washington and the Senator from Idaho, of course.
The PRESIDING OFFICER (Mr. KENNEDY). Is that 15 minutes total or on each side?
Mr. MUSKIE. Fifteen minutes total because the discussion should involve both.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. NELSON. Mr. President, I have about 3 minutes in total in which I should like to propound a question to the Senator from Washington. It might take a minute and a half for the question and another minute and a half for the answer. Could I be permitted to get that total of 3 minutes within the 15-minute period?
Mr. MUSKIE. I have no objection. We are flexible enough here, to get additional time.
Mr. JACKSON. Yes, I would be happy to yield.
Mr. NELSON. The total would be about 3 minutes. I thank the Senator.
Mr. MUSKIE. My concern with the penalty provisions is not so much that there are penalties – they seem to concern other Senators – but the fact that the penalties would give the Secretary of the Interior a substantive impact on land use programs developed by the State without any guidelines written into the law. Those penalty provisions give him some clout, in my opinion on an ad hoc basis, to tell the States what they should do with land use policy. Because of my concern with that, which I will raise later in an amendment, I wonder whether I am ready to agree at this point in effect to increase the penalties. That is what I would do. As I understand it, there are 112 Federal programs which can be affected by implementation of this legislation. I have already referred to a number. I ask unanimous consent that a list of some of the major ones which I began to read from be printed in the RECORD.
There being no objection, the list was ordered to be printed in the RECORD, as follows:
Some of the major programs whose planning and funding processes or licensing practices will be significantly affected by S. 632 – the land-use bill – are:
Airport and Airway Development Act.
Appalachian Regional Development Act.
Atomic Energy Act.
Consolidated Farmers Home Administration Act.
Demonstration Cities and Metropolitan Development Act.
Elementary and Secondary Education Act.
Federal Aid Highway Act.
Federal Power Act.
Federal Water Pollution Control Act.
Flood Control Act.
Higher Education Act.
Housing Act.
Hill-Burton Act (hospital construction).
Land and Water Conservation Fund Act.
National Housing Act.
Public Works and Economic Development Act.
River and Harbor Act. Rural Electrification Act.
Public Land Sale Act.
Urban Mass Transportation Act.
Chapter 12 of Title 23, U.S. Code (Reclamation and Irrigation of Lands by the Federal Government).
Mr. MUSKIE. Mr. President, if there is a penalty provision and it should be broad enough to include all programs which have a significant land-use impact, then I would not have any differences with it, but until the question of whether the legislation itself has guidelines for the establishment of land use policy is settled, I am not ready to agree to an increase in the penalties.
That is what is troubling me. I feel that the cart is before the horse here, because of my concerns in debate on this legislation. So the one question I want to have answered relates to line 12 because, as I read it in the Senator's printed amendment, on page 3, what it says is that if the State fails to produce overall land use programs satisfactory to the Secretary of the Interior and whatever agencies or boards advise him, grants under all the programs can be withheld from the offending State until it produces an overall land use program that is satisfactory to him.
Mr. JACKSON. Could I clarify one point here which I think is the main point the Senator is making. First of all, no sanctions can be invoked by the Secretary of the Interior. Rather, the ad hoc hearing board, which is appointed by the President, made up of a neutral head of a Federal agency, and a representative of one of the States appointed by a neutral Governor, and an unbiased prominent citizen – three members – make the decision. So it is not a case of the Secretary of the Interior's trying to dominate other departments.
I would point out that on page 83 of the bill, beginning on page 83 line 11 it states:
In the event the Secretary determines that a State is ineligible for grants pursuant to this Act or, having found a State eligible for such grants, subsequently determines that grounds exist for withdrawal of such eligibility, he shall notify the President, who shall order the establishment of an ad hoc hearing board (hereinafter referred to as "hearing board"), the membership of which shall consist of:
(A) the Governor of a State other than the State the grant eligibility of which is in question, whose State does not have a particular interest in whether State grant eligibility or ineligibility is determined, selected by the President within thirty days after notification by the Secretary, or, within ten days thereafter, such alternate person as the Governor selected by the President may designate.
Then the next part–
one knowledgeable, impartial Federal official, selected by the President within thirty days after notification by the Secretary, who is not an official of an agency listed in clauses (1) through (3) of subsection (b) of section 203; and
(c) one knowledgeable, impartial private citizen, selected by the other two members: Provided, That if the other two members cannot agree upon a third member within twenty days after the appointment of the second member to be appointed, the third member shall be selected by the President within twenty days thereafter.
(2) The Secretary shall specify in detail, in writing, to the hearing board his reasons for considering a State ineligible, or for withdrawing a State's eligibility, for grants pursuant to this title. The hearing board shall hold such hearings and receive such evidence as it deems necessary. The hearing board shall then determine whether a finding of ineligibility or withdrawal of eligibility would be reasonable, and set forth in detail, in writing, the reasons for its determination. If the hearing board determines that ineligibility would be unreasonable, the Secretary shall find the State eligible for grants pursuant to this Act. If the hearing board concurs in the finding of ineligibility or withdrawal of eligibility the Secretary shall find the State ineligible for grants pursuant to this Act.
Mr. MUSKIE. Mr. President, my point is that the Senator refers to the language of the bill which provides for a repeal or a review and the Secretary determining that a State is ineligible for a grant.
The first point I want to establish is whether the eligibility for grant applies to all 112 programs and whether or not it depends upon a State's being within the land use program within the meaning of the pending legislation.
If the answer to my question on those two points is in the affirmative, then I gather that the language that the Senator is reading from on page 83 of the legislation, in that respect says yes, that if the Secretary determines that a State is ineligible for grants, he makes that determination after the board is established and set up.
So the State must then defend itself against a finding by the Secretary of ineligibility for a grant under 112 programs, after the board sustains the Secretary. And if it does so within the four corners of this legislation and within the four corners of the policy laid down by this legislation, then a State is ineligible for 112 programs.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. JACKSON. Mr. President, I ask unanimous consent that we may have an additional 2 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. JACKSON. Mr. President, may I say to my good friend that he seems to be saying that only the Secretary of the Interior could do this.
Mr. MUSKIE. No, I am not. I am trying to focus not on that aspect. However, the Senator only referred to that language. I am trying to get two questions answered.
The first is whether a State's eligibility for grants under 112 programs depends upon the broad language of the program which meets the requirements of the legislation.
Mr. JACKSON. The answer to that specific question is no. It is a selective program.
Mr. MUSKIE. Then, I would like to know the meaning of the language on page 3, line 12, and if eligibility is dependent upon these words, "which would significantly affect land use in any State."
In my judgment, at least, the 20 to 21 major programs which I have listed before all significantly affect land use in any State if grants are made to such State under such a program, and all of the States – and there are 21 of them – would have a significant effect upon land use in any State.
I take it that would be across the board if the State is declared ineligible by the Secretary. After review by the Land Use Board, in all of the respects which the Senator referred to, a State would be ineligible for grants across the board in 112 programs.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. JACKSON. Mr. President, I yield the Senator an additional 2 minutes.
The PRESIDING OFFICER. The Senator is recognized for an additional 2 minutes.
Mr. JACKSON. Mr. President, the answer to that, of course, is no. The administering Federal agency, as provided in the amendment, will make a determination which is a condition precedent to the ad hoc board being set up and everything else. It will have to determine whether or not the project in question might have a substantial adverse environmental affect or would significantly affect the use of the land.
This applies, of course, to the agencies in question. As the Senator knows, the question of ineligibility must be established first by the heads of the agencies involved, who are not only the Secretary of the Interior, but also the Secretary of Housing and Urban Development and the Administrator of the EPA. And these are conditions precedent to the setting up of the ad hoc board which I referred to earlier and which the President appoints and which makes the final decision.
Mr. President, let me point out that when we adopted the Land and Water Conservation Fund Act back in 1965, I believe it was, we stipulated that as a condition precedent to getting procurement grant-in-aid funds, a State had to establish a statewide park and recreation plan. A good number of States did not like this planning requirement. However, this is something that all the States should have done over the years, but did not do. And, they have since complied with that act.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. JACKSON. Mr. President, I yield myself 2 minutes.
The PRESIDING OFFICER. The Senator from Washington is recognized for 2 minutes.
Mr. JACKSON. There would be no need for this legislation had the States seen fit to go ahead with the kind of land use planning which would have resolved the great conflicts over land use, whether they relate to saving land for park and recreation use or other conservation purposes or to using land for development purposes – or whether it is the proper location for a plant or whether or not a power plant ought to be located. In most cases, the States have not been able to
accomplish this. This bill would encourage the States to do so.
We are trying here very simply to set up a forum in which we can deal with the critical problems that face us resolving environmental, social, and developmental issues as they relate to the land.
There is no such forum today where one can go and get a land use matter considered and have a resolution of these adverse interests. What happens? Land that ought to be destroyed is being preserved, and land that should be utilized for development, for power, and for various economic purposes is not being put to those purposes. We have blackouts; we have brownouts; we have picketing, we have litigation, we have – to put it simply – confusion. All of this stems from the fact that we have 80,000 governmental entities in the United States involved in land use planning.
This is why the Governors' Conference unanimously endorses the pending measure. The Governors need help in trying to get the States that they represent to recognize the need to use their police power and engage in the kind of sensible land use planning that will achieve both goals: Economic development and the conservation of our resources.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. MUSKIE. Mr. President, would the Senator yield for one observation?
The PRESIDING OFFICER. Who yields time?
Mr. JACKSON. Mr. President, I yield the Senator 1 minute.
The PRESIDING OFFICER. Without objection, the Senator from Maine is recognized for 1 minute.
Mr. MUSKIE. Mr. President, I regret that time is so restricted on this legislation. However, I am not satisfied with the interpretation of the penalty provisions as I understand them, having read the pending bill and the amendment. They do not have the effect that I have suggested. And I think that ambiguity exists.
I cannot support the pending amendments. They are being considered en bloc. Other amendments are included which I have no difficulty with. However, until this matter is clarified, I cannot support the pending amendments in that respect.
I hope that other Senators will indicate their position on the matter if they think my interpretation is wrong. However, I have read them carefully and as I understand it, what this would do is give the Secretary authority, subject to hearings, to eliminate the grants right across the board in as many as 112 programs if he feels that they have failed to produce land use programs satisfactory to the Secretary of the Interior – without guidelines in the bill to protect a State undertaking in good faith to do its job.
Mr. NELSON. Mr. President, I wish to propound a question to the distinguished Senator from Washington.
The PRESIDING OFFICER. The Senator from Washington has no time remaining.
Mr. JACKSON. Mr. President, I ask unanimous consent to proceed for 3 minutes in order to answer the Senator's question.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. NELSON. Mr. President, in 1968, the Senate Small Business Subcommittee on Monopoly held hearings on the movement of corporations into farming. In 1969, the full committee issued a report, Senate Report No. 91-628, summarizing the hearings and the principal recommendations received from witnesses. One of the problems that was noted was the shortage of reliable information on corporate ownership and control of agricultural land. In the list of remedial proposals, recommendation No. 8, on page 24 of the report, read as follows–
8. Require farm and ranch ownership registration (owner's name and address, property size and location, acquisition date and type of ownership) with farm companies required, in addition, to list stockholders with more than a 5-percent interest and report any ties to farm supply, processing or marketing firms.
As I read section 202 of S. 632, as reported, it would seem to me that the new Office of Land Use Policy Administration will have authority to carry out that recommendation in full. In fact, it would seem to me virtually impossible for that office to carry out its assigned functions, its mandatory functions, under the section, unless it developed, in cooperation with the States, standard methods of obtaining and classifying information on the ownership of land, including but not limited to agricultural land. Would the distinguished chairman of the Committee on Interior and Insular Affairs agree with that interpretation of the scope and unavoidable effect of section 202?
Mr. JACKSON. The Senator's interpretation is correct. The Senator from Illinois (Mr. STEVENSON) asked a similar question, and I answered that question the same way. It will be the duty of the Office of Land Use Policy Administration to develop and make available to governments at all levels, and the public, "statistical data and information on past, present, and projected land use patterns, which are of more than local significance." The office will also be required to develop and maintain files on "the plans and programs of State and local governments and private enterprises which have more than local significance for land use planning and management." It would obviously be impossible to develop and maintain and make public files of information on "plans and programs of private enterprises which have more than local significance for land use planning and management" without identifying the private enterprises that own or control the land and make the plans and programs. It seems not only probable, but inevitable that, among the many other benefits of this legislation, the country may expect to obtain fairly soon a system of identifying and classifying the ownership and control of land, wherever the amount and use of the land in question is of more than local significance.
Mr. NELSON, I thank the distinguished Senator.
Mr. AIKEN. Mr. President, I wonder if I might ask a question.
Mr. JORDAN of Idaho. Mr. President, I yield 1 minute to the Senator.
Mr. AIKEN. Mr. President, on page 3 of the amendment, paragraph (b) (1), it states that no agency shall approve any loan or guarantee which might have an adverse environmental impact or which would significantly affect land use in any State which has not been found eligible for grants pursuant to the act.
Would that not put the Small Business Administration pretty much under the Secretary of the Interior or whatever agency is decided upon to run this program, because that agency would determine the eligibility of loans from the Farmers Home Administration or the Small Business Administration, as provided for in the Rural Development Act, which has just become law.
Mr. JACKSON. No. I see what the point the Senator is making. If the Senator will go back to line 7 on page 3 it states:
No Federal agency shall undertake any new action.... which might have a substantial adverse environmental impact or which would significantly affect land use....
The initial decision as to whether a State land use program complies with the act is shared by the Secretaries of the Interior and HUD and Administrator of the EPA; and the ultimate decision of eligibility rests with the ad hoc hearing board, which I referred to earlier, which would be appointed by the President. The ad hoc hearing board would be made up of a three-man board consisting of a representative from one of the Federal agencies, a Governor, and the third selected by the first two, and if not, selected by the President.
Mr. AIKEN. I wonder if the administering agency would make the final decision and could overrule the Farmers Home Administration.
Mr. JACKSON. The final decision, if it is an appeal from an initial decision of ineligibility, would be made by the ad hoc hearing board. They have to be found ineligible – first by the Secretaries of the Interior or HUD or the Administrator of EPA. The final decision would be made by the ad hoc hearing board appointed by the President.
Mr. AIKEN. I want to make sure the Farmers Home Administration and the Small Business Administration and the rural development program are not subordinated to this super agency being set up under this bill.
Mr. JACKSON. They would not be. As the author of it I can assure you of that.
Mr. AIKEN. The Senator does not intend that they would?
Mr. JACKSON, I do not intend that by this amendment.
Mr. COOPER. Mr. President, will the Senator from Idaho yield?
Mr. JORDAN of Idaho. I yield.
Mr. COOPER. I have read the language on page 87, section 307. It seems to me the Secretary does have the final authority. In every case where a question is raised and it is not objected to by the board within a certain number of days, the ad hoc board hears the question and then the Secretary has to make final determination. It is well that we know that.
I know the objectives of the bill are fine, but I think the Senator has to recognize he is placing in the hands of one man perhaps the largest grant of power ever given to any man in the world.
Mr. JACKSON. On page 87, line 16–
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. JORDAN of Idaho. I yield 2 additional minutes.
Mr. JACKSON. On line 16, page 87 of the bill before us it states:
The Secretary shall have authority to terminate any financial assistance extended to a State under this act and withdraw his determination of grant eligibility whenever the Secretary finds, and the hearing board concurs, ...
The hearing board is the one, as I mentioned, the ad hoc hearing board appointed by the President of the United States. There would be one member from the Federal agency, one from one of the Governors, and the third to be appointed by the first two, and if they cannot agree, the President will select a distinguished citizen, so the Secretary does not have any such authority.
That section applies only to the $100 million of grant funds provided by the act. The Senator was reading from the one that applies to the grant-in-aid program, which is $100 million a year is for 8 years.
Mr. HANSEN. Does the Senator anticipate the hearing board would reverse the finding of t the Secretary?
Mr. JACKSON. I cannot, of course, make such a judgment. I would point out that the elements of impartiality are there. First, the States are represented on the hearing board, and second, the representative of a neutral Federal agency would sit on the board. It would have to be a neutral Federal agency that had no interest in the problem
Mr. AIKEN. Are Presidents always neutral?
Mr. JACKSON. We do have the problem of the administering of our laws by the executive branch of the Government.
Mr. FANNIN. I yield myself 1 minute to ask a question of the distinguished manager of the bill.
On page 2 of the amendment on lines 15 and 16, the Senator refers to the goals of the Federal Water Pollution Control Act, the Clean Air Act, and other Federal laws controlling pollution, and then it goes on.
For purposes of clarification, what does the Senator mean by the goals? What is intended by the goals? How could we determine what is intended by that language?
Mr. JACKSON. I think the intent of it is to establish that there is a good faith showing of intention to comply with the provisions of the act.
Mr. FANNIN. Well, I just ask the distinguished Senator who would make that interpretation? Who would make this determination?
Mr. JACKSON. In this case, in the area of pollution, it would involve a determination by the head of EPA. That would be a condition precedent. Of course, in each case an ad hoc committee would be established, which would have to take the final action, as I outlined earlier.
Mr. FANNIN. I would just say that the Secretary is given this authority, according to the reading here, starting on page 12. Is the Director of the Environmental Protection Agency then going to overrule the Secretary, or how would they make that determination?
Mr. JACKSON. No. I covered that earlier by saying that a State cannot be ruled ineligible, except after approval has been given by the ad hoc committee appointed by the President of the United States. No agency can do it.
Mr. FANNIN. I remind the Senator that when he says the goals, that is an interpretation.
Mr. JACKSON. That is a good faith bit of language and it involves the question whether there is a good faith compliance.
Mr. FANNIN. I think it could be a very troublesome matter if we are going to say it is good faith and do not tie it down to a formula.
Mr. JACKSON. Words are very difficult at best to provide for that kind of inclusion. We have to couch the language in rather broad terms in order to achieve what we have in mind here and so that there will not be a manifest abuse of discretion or an arbitrary or capricious act upon the part of the–
The PRESIDING OFFICER. All time on the amendment has expired.
Mr. HARRY F. BYRD, JR. Mr. President, will the Senator yield for a question?
The PRESIDING OFFICER. There is no time left on the amendment.
Mr. JACKSON. One minute?
Mr. HARRY F. BYRD, JR. I do not think I can ask the question in 1 minute on a bill of this magnitude.
Mr. JACKSON. I ask unanimous consent, despite the previous unanimous consent agreement – how much time does the Senator want?
Mr. HARRY F. BYRD, JR. I do not know how long it is going to take. I want to try to get an understanding.
Mr. JACKSON. Mr. President, I ask unanimous consent that the Senator from Virginia may proceed for 5 minutes.
The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered.
Mr. HARRY. F. BYRD, JR. I would like to go back to the question raised by the distinguished Senator from Maine. I am not clear as to the Senator from Washington's response. As I recollect; the Senator from Maine raised the question whether, if a State did not have what a Washington board would consider an adequate land use program, the board in Washington could withhold grants from any one or all of a multitude of programs. Would that be correct?
Mr. JACKSON. The requirement basically centers upon a plan that the States must submit.
Mr. HARRY F. BYRD, JR. Suppose they do not submit it?
Mr. JACKSON. There is the right of appeal, I will say to the Senator. It deals with the critical areas, and I outlined them in my opening statement. There are areas of critical environmental concern which they must plan for, such as flood plains, wetlands, beaches and dunes, shore lands, flood plains, and scenic or historic areas.
Mr. HARRY F. BYRD, JR. Suppose they do that, but in doing that do not satisfy the individual or individuals here in Washington who must subsequently pass on it. If they do not satisfy the individuals in Washington, can they then lose or stand to lose all the entitlements of the various programs involved?
Mr. JACKSON. I will make it very, very clear. This is not a subjective thing where the Federal Government can intercede and substitute its subjective judgment for the State's judgment.
As long as the plan covers the four principal areas that I have mentioned, then the Federal Government is required to accept it. They do not have to go into all the details, but they have to deal with the substantive issues that I have mentioned and that can be found in the bill. I will give the Senator the citation in just a moment.
Secondly, let me point out the safeguards here. Number one is the one I just mentioned, that the States do not have to satisfy the Federal Government in every detail, but they have to wrestle with these four areas I have mentioned. They have to show they have made a good faith effort with a plan to deal with those principal environmental problems that do have a very wide range of impact.
Then if there is a dispute on this and the agencies say that it does not comply, the President appoints–
Mr. HARRY F. BYRD, JR. Regardless of who appoints, it still rests with the board in Washington, does it not?
Mr. JACKSON. The board in Washington, though, is made up of three individuals. One is from the Federal department, one is a Governor, and the third one would be selected by the first two; so the States also would be involved in this.
I thought that was very necessary, and if the first two cannot agree on the third one, then the President can appoint a third person, who is an impartial, disinterested citizen, who cannot be out of the Federal bureaucracy. So the States are involved, as I mentioned, in this board.
Mr. HARRY F. BYRD, JR. But if that board is not satisfied, then under the proposed amendment that particular State which is involved could lose–
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. JACKSON. I yield 1 minute to the Senator.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HARRY F. BYRD, JR. Could lose funds that otherwise they would be entitled to in a multitude of programs having nothing to do with land use; is that correct?
Mr. JACKSON. Oh, no. The point is we do not want to be granting funds for programs that will have an adverse effect on the land. The programs that would be affected would only be those programs that significantly affect land use in any State. Look on page 3 of the amendment. Does the Senator have that?
Mr. HARRY F. BYRD, JR. Yes. I have the amendment.
Mr. JACKSON. If the Senator will look down on line 12, it reads "which would significantly affect land use in any State", that is the key language. For example, we run into the classic case of providing grant-in-aid funds for a park to a State then finding that they are going to undo the park by using adjacent land for some other purpose involving the Federal grant of funds.
We have the case of the Everglades in Florida, where we were going to build a commercial airport adjacent to the Everglades National Park that we are also supporting; we also had a Federal engineering project that would take water away from the Everglades, all of this involving Federal funds. This is what we want to avoid.
Mr. HARRY F. BYRD, JR. But is it not correct, as the Senator from Maine brought out, that there are 112 programs that could be affected
Mr. JACKSON. One hundred twelve Federal agencies could be affected, only where those agencies have large projects, substantial projects, that have a substantial adverse environmental impact – that is on line 11 – or which would significantly affect land use in any State.
It seems that we have to decide here if we are going to have the kind of coordinated Federal help that will not go one way in one program and an adverse way in another.
Mr. HARRY F. BYRD, JR. That is not the–
The PRESIDING OFFICER. All time on the amendment has expired. There is no time remaining.
Mr. HARRY F. BYRD, JR. Mr. President, I think this is important. I ask unanimous consent that we proceed on this amendment for another 6 minutes.
The PRESIDING OFFICER. Is there objection? The Chair hears none, and it is so ordered.
Mr. MUSKIE. Mr. President, will the Senator yield?
Mr. HARRY F. BYRD, JR. I yield to the Senator from Maine.
The PRESIDING OFFICER. Who is in control of the time?
Mr. JACKSON. I will yield to the Senator.
Mr. MUSKIE. Mr. President, I refer to section 307 (a) of the bill, on page 87, line 16. That language would be left in the bill if the amendment were agreed to. It reads as follows:
The Secretary shall have authority to terminate any financial assistance extended to a State under this Act and withdraw his determination of grant eligibility whenever the Secretary finds, and the hearing board concurs, that the statewide land use planning process or the State land use program does not meet the requirements of this Act.
The Senator must have that language in mind in order to understand the language on page 3 of the en bloc amendment of the Senator from Washington.
Mr. HARRY F. BYRD, JR. If the Senator from Maine will yield, what the language actually says is that the Secretary shall have the authority to terminate any financial assistance.
Mr. MUSKIE. Yes. We can debate the meaning of the section, but the section applies to States which do not meet the requirements of this act in terms of land use planning policies. It is those States, and no others.
Mr. JACKSON. Mr. President, if the Senator will yield, this section 307 applies only to the grant-in-aid programs to the States, which involve $100 million a year.
Mr. MUSKIE. Oh, but if the Senator will yield, on page 3 of the Senator's pending amendment–
Mr. JACKSON. Section 307(a), we are talking about.
Mr. MUSKIE. On page 3 of the pending amendment, the language we have been discussing now for some time–
Mr. JACKSON. That is entirely different.
Mr. MUSKIE. Wait a minute. That section applies to "any State which has not been found eligible for grants pursuant to this Act."
I agree that section 307 terminates eligibility for grants under this act, but the Senator's pending amendment, by having left that reference in, applies these sanctions, these broad sanctions, to States which are denied eligibility under this act.
Mr. JACKSON. But in addition, though, I want to point out to the Senator – and we have gone through this until it is getting repetitious – that in connection with section 307(a) and in connection with section 307(b) – and I request the attention of the Senator from Virginia on this point – both of these provisions require the concurrence of the hearing board. That is the board that I referred to earlier, which is appointed by the President, which is made up of a representative of one of the Governors or the Governor and the head of a Federal agency, and a distinguished third citizen, whomever they choose to agree upon. So the States are tied into this. No one agency can do anything to detract from it.
Mr. HARRY F. BYRD, JR. It appears to me to be quite broad. What I am trying to do is get a better understanding than I have of it.
As I understand the Senator's amendment, it would eliminate from the bill subsections (b), (c), (d), and (e) of section 307 of the bill.
In doing that, the Senator would eliminate public hearings. What is the purpose of eliminating public hearings, which are provided for as a part of the bill which was submitted by the committee to the Senate?
Mr. JACKSON. I must say the public hearings provision remains. That is not eliminated.
Mr. HARRY F. BYRD, JR. As I read the amendment, on page 3, it says:
On page 87 lines 23 through page 91, line 9, strike subsections (b), (c), (d), and (e) of section 307.
It is subsection (b), on page 88, that provides for the public hearings. The amendment offered by the Senator from Washington does not appear to provide for public hearings, unless I missed something there.
Mr. JACKSON. There is a public hearing provision elsewhere. I will state the section.
Sections 302 and 303 cover that, and the language was changed simply to make it conform with the other provisions in the act. The right of a hearing still applies; that has not been taken away.
In addition, I might say that–
The PRESIDING OFFICER. All time has expired.
Mr. HARRY F. BYRD, JR. I ask unanimous consent for 5 additional minutes.
Mr. PASTORE. Mr. President, we have been here since 10 o'clock this morning. We have been walking back and forth all day from our offices over here. I would like to know from the leadership how long we are going to be here tonight. This bill came up an hour and a half ago, and we have not completed work on one amendment. It strikes me that anyone who has a case to state can state it in 15 or 20 minutes. This is no reflection on anyone.
The PRESIDING OFFICER. Is there objection?
Mr. MANSFIELD. Mr. President, reserving the right to object, and I do so only because the Senator from Rhode Island raised the question, I thought we had reached a unanimous-consent agreement all the way around last week that we would spend 1 hour on the bill and one-half hour on amendments. I did hope there would be no further extensions on the bill, that if Senators wanted to speak, they would offer amendments in good faith, and in that way help the bill along, because, as the Senator from Rhode Island has indicated, we have been in session since 9 o'clock, it has been a long day, and we have a lot of long days ahead of us, and I would hope the Senate would take this statement in good faith and pay some heed.
I shall not, at this time, object to the request of the Senator from Virginia.
Mr. PASTORE. Neither will I.
Mr. MUSKIE. Mr. President, reserving the right to object, as a party to the time limitation agreement on this legislation, I would like to indicate the reservations I had about a time agreement. I have been concerned about this legislation, its complexity, and its difficulty for some weeks. I agreed to a time limitation agreement because I was aware of the leadership's desire to expedite the work of the Senate. I was willing to be cooperative, but it was understood that because the time on this particular legislation was restrictive there would be flexibility on the giving of additional time. I do not want to abuse that, and I have not, except in one instance, asked for additional time, not for my purposes, but for the purpose of undertaking to explain a matter to a Senator who has not had an opportunity to study this legislation, in response to a serious question he had.
I think if we are going to have unanimous consent agreements, there must be some flexibility with respect to Senators who do not study particular legislation as closely as others. This, as I said in the beginning, is one of the most complicated pieces of domestic legislation the Senate will consider this session. I do not intend to filibuster it, stall it, or delay it, but the Senator from Virginia is deeply concerned about a particular question, and ought to have the right to pursue it.
Mr. JACKSON. Mr. President, it might help to expedite matters here–
The PRESIDING OFFICER. Is there objection? Without objection, the request of the Senator from Virginia for 5 additional minutes is agreed to.
Mr. JACKSON. Mr. President, will the Senator yield?
Mr. HARRY F. BYRD, JR. I yield.
Mr. JACKSON. In the interest of trying to expedite action on the pending amendment, I ask unanimous consent to delete from my amendment – which, by the way, I worked out with the chairman of the Committee on Public Works (Mr. RANDOLPH) – that language, starting on page 3, line 3, which is the area in controversy. Does the Senator have that?
Mr. HARRY F. BYRD, JR. Yes, I have it.
Mr. JACKSON. On page 3, line 3, strike ail the language to the bottom of the page – that is, subsection 6 – to and including line 2 on page 4. That matter can be dealt with at another time.
The PRESIDING OFFICER. Is there objection?
Mr. HANSEN. Mr. President, will the Senator repeat that?
Mr. JACKSON. On page 3, line 3, of the pending amendment, strike all the language through line 25 and lines 1 and 2 on page 4.
Mr. MUSKIE. Mr. President, may I ask the Senator a question?
Mr. JACKSON. Yes.
Mr. MUSKIE. Is it the Senator's intention to offer that part of his amendment later in the discussion?
Mr. JACKSON. I may. I want to reserve judgment on that. But in the interest of expediting the matter – I think this goes to the heart of the question the Senator raised and other Senators have raised – I ask unanimous consent that this request be granted.
Mr. HARRY F. BYRD, JR. Mr. President, reserving the right to object – and I shall not object – I want to say that this is a very far-reaching piece of legislation; 50 pages are involved. It deals with a subject of importance to every citizen of our Nation.
The Senator from Kentucky has just called my attention to some very important points in this bill that I do not have an answer to, and I do not think the Senator from Kentucky does, and perhaps many other Senators do not. I think we ought to devote an adequate amount of time to understanding just how far-reaching this legislation is.
Mr. BAYH. Mr. President, will the Senator yield?
Mr. JACKSON. I yield whatever time I have remaining.
Mr. BAYH. Mr. President, I have listened to the colloquy – I just came to the Chamber after attending to some committee business – and I am concerned about the matter raised by the Senator from Virginia with respect to hearings. At an appropriate time, I have an amendment to offer, which I understand the Senator from Washington is prepared to accept, so far as the whole matter of public hearing is concerned.
Mr. JACKSON. That is correct. I am prepared to accept the Senator's amendment. I am aware of it.