September 19, 1972
Page 31188
AMENDMENT NO. 1548
Mr. TALMADGE. Mr. President, I call up my amendment No. 1549 and ask that it be stated.
The PRESIDING OFFICER. The amendment will be stated.
At the end of page 107, add a new subsection as follows:
(d) granting to the Federal Government any of the constitutional or statutory authority now possessed by State and local governments to zone non-Federal lands.
Mr. TALMADGE. Mr. President, I modify my amendment by adding the word "as" between the letter "(d)" and the word "granting" on line 1.
That is section 512 on page 106 of the bill.
The amendment would read:
Nothing in this Act span be construed . . . (d) as granting to the Federal Government any of the constitutional statutory authority now possessed by State and local governments to zone non-Federal lands.
The PRESIDING OFFICER. The amendment is accordingly modified.
Mr. TALMADGE. I have listened with much interest to the discussion of my distinguished friend, the Senator from Washington (Mr. JACKSON), the floor manager of the bill. I agree with him implicitly. There is no inherent power in the Federal Government in the zoning of land. That is traditionally State power under State law which has been delegated in most instances to local boards.
This bill is very broad. It is very complex. It is more than 100 pages in length. It delegates to the Federal Government broad new power that has not heretofore been delegated.
It would vest in the Secretary of the Interior the authority to receive the land use programs from the Governors of the respective States setting out their proposals for utilizing land within their jurisdictions.
Mr. President, it would also authorize the Secretary of the Interior under certain conditions and in his discretion to cut off funds previously authorized under Federal law to the States. In other words, it gives the Secretary of the Interior a punitive power, because he would determine whether the States could receive funds under existing Federal law.
In my amendment, I want to make it implicitly clear, Mr. President, that this legislation makes no such delegation of power to any Federal authorities whatever and gives them no right to go to a
State and its political subdivisions and dictate how they can zone land for use within their respective jurisdictions. There is nothing that is more peculiarly local than the authority to determine whether a man can build a dairy, a poultry house, a home, a filling station, or how he can use property that he owns in fee simple and pays taxes on year after year.
Virtually every local county government in the Nation now has a zoning authority. The zoning authority determines the best use of land within its particular jurisdiction. The local government officials elected by the people normally appoint that zoning authority. Appointments and zoning decisions are usually matters of controversy. People who live in a residential neighborhood, for instance, may not want a filling station located on the corner. However, under existing law, that is determined by the local officials elected at the local level who are responsible to local people for the decision they make which affects local property.
I think we ought to keep it that way. That is what this amendment is designed to do. I have discussed it with the distinguished floor manager of the bill. And from his comments, I understand there is nothing in the bill that would prohibit this. However, I want to make it implicitly clear, and he wants to make it implicitly clear, that the zoning decisions would remain with the local people, at the local level.
Mr. BIBLE. Mr. President, will the Senator yield?
Mr. TALMADGE. Mr. President, I am delighted to yield to the Senator from Nevada.
Mr. BIBLE. Mr. President, I compliment the Senator' from Georgia for this amendment. I know that he has worked on allied problems over the years. I would hope that the chairman would accept the amendment, as I think he is inclined to do. However, has the Senator not found over his years in Congress that more and more and more the tendency has been to move the government from whatever county it might be in Georgia or from whatever county it might be in the State of Nevada to the halls of the mighty in Washington, D.C.? Has not the Senator found that to be true constantly in incident after incident and in area after area?
Mr. TALMADGE. Not only have I found it to be true in incident after incident, but I have also found that if we give the Federal bureaucracy an inch, it will take 2 miles.
Mr. BIBLE. Does the Senator think this might broaden that?
Mr. TALMADGE. The bureaucrats will say that this bill gives them authority to tell State and local officials how they will utilize their land. If the local people do not do it the way the bureaucrats want it done, the Federal Establishment will then cut out money for highway construction, for airport construction, and for various other Federal programs.
Mr. BIBLE. For land and water conservation?
Mr. TALMADGE. For land and water conservation and other programs where there are contributions from the Federal Government.
Mr. BIBLE. I am in complete agreement with the Senator. I hope the chairman accepts the amendment. I think it is a good safeguard, because the Senator is correct that once you give them a little authority and open the door a crack they will drive a Mack truck through it.
Mr. TALMADGE. I thank the Senator. I hope the Senator from Washington will accept the amendment.
Mr. President, I reserve the remainder of my time.
Mr. MUSKIE. Mr. President, I wish to ask the Senator from Georgia a question.
The authors of this legislation argued that what it does is to simply set up a procedure or process designed to prod the States and communities into making wiser land use decisions. As I interpret the legislation it is more than a procedure or process, because in the statement of national policy objectives at the outset, it lays down some criteria that ought to be followed by whatever governmental entities are involved. Somebody has to decide whether or not the State and local governments have met that criteria. In my judgment, that is the Secretary of the Interior.
I am not sure what the effect of the Senator's amendment would be on the legislation with regard to that point.
I turn to the statement of policy in the legislation. For example it says on page 60, line 15, if the Senator will turn to it:
(b) The Congress further declares that it is the national policy to–
(1) favor patterns of land use planning, management, and development which are in accord with sound environmental, economic, and social values and which encourage the wise and balanced use of the Nation's land resources;
Certainly, I do not quarrel with that objective. But on page 61, line 17, it states:
(c) The Congress further declares that intelligent land use planning and management can and should be a singularly important process for preserving and enhancing the environment, encouraging beneficial economic development, and maintaining conditions capable of improving the quality of life.
If that, indeed, becomes national policy upon the enactment of this legislation, then it seems to me inevitable that the Secretary of Interior, using whatever authority the legislation gives him, must prod State and local governments to make their land use decisions in accordance with his interpretation of what these policies require.
So I ask the Senator this question. It seems to me that even though his amendment is adopted, this authority, if it exists, and I think it does, would mandate the Secretary of Interior to require of local government the kind of land use decision it would make even though he cannot directly zone local lands.
Mr. TALMADGE. That is what I was apprehensive about. Such a broad delegation of policymaking authority to a national official is exactly what this amendment prohibits.
The Senator from Georgia wanted to make certain that this legislation would not take from the States and their political subdivisions their inherent police power in the use of their land. That is all the amendment is designed to achieve.
The Senator from Washington may desire to explain his position further, because I am not the author of the bill; I am merely the author of the amendment.
Mr. MUSKIE. I wish to make one observation. I thank the Senator, and I shall disagree on an amendment I am going to offer later. But it has been my view that if this kind of authority is granted to the Secretary, the legislation itself should spell out the parameters within which he will exercise the authority. Without that kind of guidance in the legislation itself, that authority could be exercised arbitrarily.
I shall support the Senator's amendment.
Mr. TALMADGE. I thank the Senator.
Mr. MUSKIE. But I do not think it gets to the question I will raise later with my amendment. I wanted to make that clear.
Mr. TALMADGE. I will consider the Senator's amendment when it is offered. I want to make it clear that no Federal official can sit here in Washington and determine how every acre of land in the United States will be used.
Mr. JACKSON. Mr. President, maybe I can be helpful. I yield myself 5 minutes.
The PRESIDING OFFICER. The Senator is recognized for 5 minutes.
Mr. JACKSON. In further response to the question by the Senator from Maine to the Senator from Georgia, may we turn to page 61 of the pending bill, starting on line 23 where the purpose is set out in section 103 (a).
It is the purpose of this Act–
(a) to establish a national policy to encourage and assist the several States to more effectively exercise their constitutional responsibilities for the planning and management of their land base through the development and implementation of State land use programs designed to achieve economically and environmentally sound uses of the Nation's land resources;
Mr. President, I submit that the amendment of the Senator from Georgia is in keeping with the stated purpose of the bill as found on page 61 which I have just read. So, Mr. President, I support the amendment by the Senator from Georgia. I think it helps to make very clear the intent of Congress in connection with this matter. It is in keeping with the philosophy of the bill, which is to add to the capacity, if one wishes to put it that way, of State and local government to exercise responsibility for land use planning and not to expand the Federal Government authority to control land use.
Mr. President, I just want to say that section 103, which I have just read into the RECORD, is corroborated once again in the report. I wish to read from the report, which states:
It is the view of the Committee that the Federal government is not sufficiently wise nor prepared to lay down a series of national policies on land use to which strict adherence by the States and localities should be required. Rather, the national policy should be that the Federal government will render financial and technical assistance to the States to enable them to develop their own land use policies. The Federal review of the individual States' performances should focus on whether they have methods for, and are making good faith efforts toward, implementation of their policies and not on what is the substance of those policies (p. 25).
This [limited Federal review] is in keeping with the Act's purpose to encourage better land use decision making at the State and local levels, and not to provide substantial new land use decision making authority on the Federal level (p. 22).
The Act does not require or contemplate radical or sweeping changes in the traditional relationship and responsibility of local government for land use management. Decisions of local concern will continue to be made by local government. It does, however, require that the States play an active role in major land use planning and management decisions which are of regional, State or national concern (p. 22).
The State need not, and indeed in most cases is not expected to, directly plan for the areas and uses within its land use program. Two alternative but not mutually exclusive methods of implementation would be required by the Act: (1) direct State planning; and (2) State establishment of guidelines for, and administrative review of, local land use planning, zoning, and regulating. In the latter case, the State would reaffirm the authority of local governments to continue to exercise all their land use powers and, through guidelines, criteria and an appeals process, would exercise guidance and oversight over the local efforts. In most of the recent innovative State land use legislation, this local government-State partnership approach has been chosen over the less flexible and less "local" approach of direct State planning (pp. 27-28).
Mr. President, it completely corroborates the efforts of the Senator from Georgia to see to it that the constitutional and statutory responsibilities of the several States and their subdivisions to zone for or otherwise regulate land use under the police power are not invaded.
I want to conclude by saying that the amendment reinforces both the provisions contained in section 103 (a) and the provisions of the report to be found on page 25 to which I have just referred. So I hope that the amendment would be adopted.
I yield such time as he may require to the Senator from Idaho.
Mr. JORDAN of Idaho. I thank the Senator.
Mr. President, I think the amendment offered by the distinguished Senator from Georgia is entirely consonant with the purposes of this act. I think it defines and clarifies certain relationships between the States and the Federal Government that need clarification. He has done a good job of clarification of that relationship. I urge its adoption.
Mr. TALMADGE. Mr. President, I suggest the absence of a quorum and desire that the aides notify Senators in the proximity of the Chamber that we need two more Members on the floor in order to request the yeas and nays. I anticipate that we will vote immediately thereafter.
The PRESIDING OFFICER. The Senator does not have enough time to suggest the absence of a quorum.
Mr. TALMADGE. Mr. President, I yield back the remainder of my time.
Mr. JACKSON. Mr. President, I yield back the remainder of my time.
Mr. TALMADGE. Mr. President, I suggest the absence of a quorum. I suggest that the aides notify absent Senators that we need a sufficient number of Senators to order the yeas and nays and that there will be a vote immediately thereafter.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. TALMADGE. Mr. President, I ask unanimous consent that the order for a quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. TALMADGE. Mr. President, I ask for the yeas and the nays on the amendment.
The yeas and nays were ordered.
The PRESIDING OFFICER. The question is on agreeing to the amendment of the Senator from Georgia. The yeas and nays have been ordered, and the clerk will call the roll.
The assistant legislative clerk called the roil.
The result was announced – yeas 75, nays 0, as follows:
[Roll call tally omitted]