June 20, 1973
Page 20402
Mr. MUSKIE. Mr. President, I have a few opening remarks to make on the bill in general and then I will be calling up the first of three amendments which I intend to offer.
I should like to say to the distinguished floor manager and the author of the bill and the chairman of the committee, as well as to the distinguished Senator from Arizona (Mr. FANNIN) that I am amenable to a time limitation on this amendment at any time.
Mr. JACKSON. Mr. President, I do not need more than a few minutes. I would suggest to the Senator that he take whatever time he needs to comment, but I do not believe that I will need more than 1 or 2 minutes.
Mr. MUSKIE. All right. Then why do I not take a few minutes at this point while the Senator is considering the question of a time limitation with the Senator from Arizona.
Mr. FANNIN. If the Senator could delay asking for a time limitation and would go right ahead and make his comments now, I should like to have a little time to study the amendment
Mr. MUSKIE. Fine. I yield myself 10 minutes for my general comments and in that time perhaps we can reach an agreement.
The PRESIDING OFFICER (Mr. SCOTT of Virginia). The Senator from Maine is recognized for 10 minutes.
Mr. MUSKIE. Mr. President, I have had the opportunity to review the Land Use Policy and Planning Assistance Act, S. 268, and the committee report on the bill. I want to compliment the Senator from Washington and his colleagues on the Committee on Interior and Insular Affairs for their diligent work and careful consideration of this vital legislation
As my colleagues know, I believe that a major Federal role in land-use planning is essential if States and local governments are to properly coordinate land-use conservation and development programs. A Federal presence will be necessary if the pressures for unwise and haphazard development which now confront States and political subdivisions are to be resisted. And Federal guidance will be important in determining good and bad land-use practices.
The experience which the Subcommittee on Air and Water Pollution has gained in implementation of the Clean Air Act indicates that States and local governments can and will act responsibly with Federal cooperation to consider more carefully land uses and the structure of development patterns which are environmentally sound.
Last week, the Environmental Protection Agency published proposed transportation controls, many of which have been worked out in cooperation with States and local governments to structure transportation-related land uses to avoid violation of health-related air quality standards required by the Clean Air Act. But the absence of sound land use planning mechanisms have complicated this process.
Currently the Environmental Protection Agency is working with States and localities to develop land-use control process for complex sources of air pollution, such as shopping centers, major housing developments, other commercial activities, and such transportation facilities as highways and airports. These regulations are intended to avert future adverse air quality impacts from unsound site location decisions. State and local land-use decisional capability will be essential to the effectiveness of this process.
The controversial nature of currently proposed transportation control not only points out the difficulty of undoing the damage of past failures, but also underscores the need to avoid future mistakes as land-use decisions are made.
S. 268 can be of assistance in the development of this Federal-State-local partnership. States and localities, in many cases, will be encouraged to take a comprehensive look at land-use conservation and development activities and to plan patterns of land conservation and development which will be in the best interest of the citizens of the State and local governments involved.
Mr. President, last year, during Senate debate on similar legislation and early in this session, I proposed legislation to aid this Federal, State and local planning process by establishing Federal policy criteria which should be considered in any rational land-use decisional process. I am pleased to see that some of these criteria are included in the legislation before us today. I ask unanimous consent that the text of S. 792 and, my introductory remarks be included in the RECORD at this point.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
ENVIRONMENTAL PROTECTION PERMIT LEGISLATION
Mr. MUSKIE. As I indicated earlier, I believe that establishment by Congress of criteria similar to those proposed in S. 792 are absolutely necessary to any definition of acceptable land use planning policy and to avoid ad hoc bureaucratic and judicial determinations in the absence of statutory guidance.
I am pleased to note that the bill, in addition to limited application of some of the criteria which I proposed in S. 792, proposes a review of the need for and desirability of national land use policies to guide State and local government.
Section 307(c) instructs the Council on Environmental Quality to report to the Interagency Advisory Board on Land Use Policy within 1 year specific recommendations for the establishment of national land use policies. Additionally, the Board must recommend legislation to implement such policies to the Congress within 3 years.
Mr. President, the States are on notice. They have an opportunity to come to grips with critical land use decisions. They are on notice to decide what is good and what is bad land use and to act accordingly.
As a result of this legislation, future Federal initiatives in this area of public policy can be reduced if not avoided. This legislation is instructive not destructive. No sanctions are provided except the warning that positive, public interest oriented, environmentally sound land use programs must be developed at the State and local level. Failure to develop such programs will predictably result in Federal policies and Federal sanctions.
However, in the interim, congressional guidance as to the basis for land use decisions is so important that I would urge that even the limited application of land use criteria established in this bill should be extended to major developmental activities in all areas of States. The proposed limitation in application of such criteria to land sales or development projects which are proposed at least 10 miles outside of metropolitan areas should be deleted and such criteria should be made applicable to other key facilities and large scale developments which have major impact on the environment.
There is no justification for these distinctions. If these criteria are appropriate for land sales or development projects, then they are equally appropriate for key facilities and large scale development regardless of their location. I shall propose an amendment to achieve that result.
As I have indicated, other issues which I discussed during debate on last year's bill are recognized to a greater degree in this year's bill. Other executive agencies, in addition to the Interior Department, have an expanded role in establishing and overseeing implementation of the policies established under this law. While the Interior Department is still the lead agency, EPA, HUD and other Federal agencies with environmental and land use responsibility will actively participate in the review process. While I continue to have strong reservations regarding the Interior Department's role in this legislation, I am pleased to note the general guidelines authority has been vested in the Executive Office of the President.
This is en important addition to the bill. It is consistent with the amendment which I offered last year. It will assure consideration of competing Federal interests and provide an executive to executive relationship between the State and the Federal Government. Conflicting goals will be rationalized in the executive office of the President.
While Interior will serve as the administrative-granting agency, the executive office of the President will fulfill two important functions: first, it will issue guidelines to Federal agencies to insure maximum cooperation with the purposes of the Act consistent with other national policies, goals and objectives; and second, to issue guidelines to States to assure that the minimal requirements of the Act are adhered to and that Federal funds do not subsidize development of programs which are inconsistent with the policy of this act.
But, most important, this provision clearly establishes that the overall responsibility for implementation of national land use policy rests with the President of the United States.
I am also pleased to note that, under section 202(e), States must consider the impact of land use programs on the local property tax base. The requirement should force recognition of the developmental pressures which the current property tax-based revenue system creates. It should also create pressure to reform the heavy local property tax burden and, thus, relieve these communities from existing pressure for unplanned development.
The addition of the provision to S. 268 is recognition of the fact that you cannot seriously consider land use planning without considering the impact of the property tax on land use.
Today 66 percent of all locally generated revenues come from the property tax – $38 billion.
Today about 40 States set maximum limits on the property tax rates cities may charge and set limits on local borrowing which relate to the property tax base.
When a city reaches the limits imposed by State law – as some cities have – its only recourse is to somehow influence use of land for greater tax productivity. If this fails, municipal services – police, fire protection, sanitation, et cetera – must be cut beck.
My Subcommittee on Intergovernmental Relations has published a study entitled "Property Taxation: Effects of Land Use and Local Government Revenue." This study clearly identified the close identity of property tax and land use. It stated:
The low taxation of land based on present-use value also facilitates speculative holding of land in the path of urban development for large capital gains. An added incentive for withholding land from the market for large price rises comes from the favorable capital gains treatment of land investment profits under the Federal income tax laws. Another Federal income tax feature, the allowance of business building depreciation, creates local pressures to allocate more value to building improvements and less to non-depreciable land. A focus on building improvements in assessments for local property taxation inhibits rehabilitation of older residential properties.
Large acreages of vacant close-in suburban land as well as rebuildable central city sites are withheld from the market for large price rises under the present property tax system. That occurs as land is taxed at low effective rates, in relation to realistic market value, and building improvements are subject to a relatively greater tax burden. Consequently land prices are high in urbanizing areas and builders "leapfrog" further out to cheaper lands for residential development.
Less than optimum size communities are created, entailing high per-unit costs of services, increased daily commutation, and an extension of urban sprawl.
Mr. President, S. 268 represents a significant improvement over last year's bill. Many of the proposals which I advanced last year have been recognized. The executive office of the President has responsibility to guide Federal and State agency compliance with this statute.
There is a limited application of national policy guidelines in the development of State land use processes. And there is recognition of the need to develop more precise national land use policy guidelines. There is recognition of the relationship of the property tax structure to land use decision. And there is recognition of the relationship between State and local agencies in the development of land use planning programs.
These are essential elements of proposals which I have advanced. While their scope is more limited than I have proposed, their inclusion in the legislation is a good beginning.
Mr. President, I send my amendment to the desk and ask that it be stated.
The PRESIDING OFFICER. The amendment will be stalled.
The assistant legislative clerk read as follows:
On page 102, line 24, after "policies" insert the following: "and any requirements or procedures necessary to assure that the national land use policies are implemented"
Mr. MUSKIE. Mr. President, at this point, before proceeding with an explanation of the amendment, I yield 2 minutes to the distinguished Senator from New Jersey (Mr. CASE).
[Unrelated intervening action omitted]
The PRESIDING OFFICER. The amendment of the Senator from New Jersey having been withdrawn, the question recurs on the amendment of the Senator from Maine.
Mr. MUSKIE. Mr. President, is it in order to ask for the yeas and nays on the amendment? I ask for the yeas and nays on the amendment.
The PRESIDING OFFICER. There is not a sufficient second.
Mr. MUSKIE. Mr. President I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The second assistant legislative clerk proceeded to call the roll.
Mr. MUSKIE. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. MUSKIE. Mr. President, I ask for the yeas and nays on the amendment. .
The yeas and nays were ordered.
Mr. MUSKIE. Mr. President, I can state the case for the amendment in less than 5 minutes. At that point we can judge whether or not we can move quickly to a vote. The amendment is very short and it would be an addition to section 307(c) of the bill on page 102, to which I have already made reference. The last sentence in that section reads:
Before the end of the third full fiscal year following the enactment of this Act, the Board shall recommend to the Congress such legislation as it may deem appropriate or necessary to establish national land use policies.
That sentence ends at that point in the bill. I would add the following to the sentence:
and any requirements or procedures necessary to assure that the national land use policies are implemented.
Earlier in the day the Senate rejected the so-called sanctions amendment offered by the distinguished floor manager of the bill (Mr. JACKSON) to bring pressure upon the States and localities to implement the provisions of the bill. I voted against that because I felt that we needed to see more clearly the policy directions which would be taken under the bill before we imposed such sanctions.
This amendment is designed to require that the Interagency Advisory Board on Land Use Policy suggest to Congress not only additional land use policy, but also the requirements and procedures which are necessary to assure that land use policies which the board recommends are implemented as the land use policy for the 50 State programs.
In other words, this amendment would place before Congress, in 3 years, recommendations as to either incentives or sanctions designed to move the States toward a national land use policy.
Both last year and this year, much controversy has surrounded the question of sanctions to force the States and localities to comply with the land use planning requirements specified in the law.
To date, I have not been satisfied with any of the solutions which have been proposed.
The full land use program specified in this bill would not become effective for 5 years. Certainly, if that is the case, we do have more time for deliberation as to what methods may be most appropriate to assure that the programs are implemented consistent with the national policy directions which Congress specifies.
For that reason, I think a further review after 3 years, as would occur as a result of this amendment is fully appropriate. To adopt a strict sanction provision now without determining the relationship of those sanctions to national land use policies would be premature. To burden this important legislation with sanctions which would not be relevant for 5 years is equally unnecessary.
My proposal would permit the development of more realistic, program-related sanctions or incentives, as appropriate.
We will have an opportunity to observe the States' response to this legislation.
We will have the benefit of the policy recommendations of the Council on Environmental Quality and the Interagency Advisory Board.
We will have the benefit of a 3-year learning period.
If, after that time, sanctions or incentives are deemed appropriate they can be evaluated in light of national land use policy recommendations. The Congress will have the opportunity to consider the most appropriate combination of both and act or refuse to act on the basis of State performance and national need.
For that reason I offer the amendment to the Senate at this time.
Mr. President, that completes my explanation.
Mr. JACKSON. Mr. President, I commend the Senator from Maine for offering the amendment. He discusses very clearly the concern for environmental quality and the need for the Council on Environmental Quality and the Interagency Advisory Board to follow this matter very closely to determine whether or not the act can bee implemented and then come up with the necessary requirements or procedures, as the amendment states, to make sure the national land use policies are implemented.
I believe this would occur, as I understand it, under the terms of the bill, after the full 3 years have expired.
I am very pleased that there is a clear policy directive of the Congress expressing this concern, so that the Chairman of the Council on Environmental Quality would come to Congress and ask for legislation or authority, whatever he needs, to see that the Act is a reality. That is the thrust of it.
Mr. MUSKIE. This is something like the psychology of a second shoe falling. This bill is the first shoe, and it will give a clear indication, if adopted, to the States that Congress is serious about this business. If the States do not respond effectively, Congress is thinking of sanctions in 3 years. It may have a very salutary effect. The Senator has correctly interpreted the amendment.
Mr. JACKSON. I am ready for a vote on the amendment. I know that a roll call has been ordered. I know of no other Senators who have asked for time. I am prepared to vote.
The PRESIDING OFFICER. The question is on adoption of the amendment offered by the Senator from Maine for himself and other Senators. The yeas and nays have been ordered, and the clerk will call the roll.
The assistant legislative clerk called the roll.
The result was announced-yeas 61, nays 37, as follows:
[Roll call vote tally omitted]
So the amendment offered by Mr. MUSKIE, for himself and other Senators, was agreed to.
Mr. JACKSON. Mr. President, I move that the Senate reconsider the vote by which the amendment was agreed to.
Mr. MUSKIE. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. MUSKIE. Mr. President, I send my second amendment to the desk.
The PRESIDING OFFICER. The clerk will state the amendment.
The assistant legislative clerk proceeded to read the amendment.
Mr. MUSKIE. Mr. President, I ask unanimous consent that the further reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
On page 68, line 6, after "regulatory" insert "and planning".
On page 74, strike out all beginning at line 24 and continuing through line 4 on page 75 and insert in lieu thereof:
"(F) assuring that (1) any source of air, water, noise, or other pollution pertaining to the areas and developmental activities listed in this clause (i) will not be located where it will result in a violation of any applicable air, water, noise, or other pollution standard or implementation plan, (ii) any developmental activities in combination with pollution sources will not cause such violations to occur, and (iii) the program is consistent with the goals, policies, objectives, standards, and other requirements of the Federal Water Pollution Control Act, the Clean Air Act, and other Federal laws controlling pollution."
On page 94, line 10, after "with" insert the following: "and will not cause violation of."
On page 94, line 16, after "Secretary" strike the period and insert the following: Provided, however, That for the first full fiscal year following initial submission of State land use programs to the Administrator, he shall have one hundred and eighty days in which to communicate his views to the Secretary."
Mr. MUSKIE. Mr. President, I shall not ask for a yea-and-nay vote on this amendment. It is designed to clarify the relationship between this bill and other environmental laws. It should not take too long to explain it. I cannot predict how long a discussion it may trigger, but I do not believe it will be very time consuming.
Mr. JACKSON. Mr. President, I might say that I am prepared, at the outset, to accept the amendment. I believe that what the Senator has done is to take four amendments and treat them en bloc as one amendment. I am prepared to accept the amendment.
I believe that the Senator from Idaho (Mr. McCLURE) would like to speak. It will not be necessary for me to take any time, but we have a caveat with respect to the Senator from Idaho. I may say that I doubt whether there will be any other speakers on the amendment.
Mr. MUSKIE. Mr. President, it may be helpful if I take just 2 or 3 minutes to explain the thrust of these amendments for the benefit of those Senators who are in the Chamber and listening.
This amendment, while it addresses separate sections of the bill, is for one purpose – to implement the stated intent of the Interior Committee to insure that State land use programs are
coordinated with the regulatory activities of all State agencies enforcing air, water, noise or other pollution standards and must assure that no violation of any applicable air, water, noise or other pollution standards or implementation plan occur in areas or uses within the program's compass.
Both the Clean Air Act (sec. 110) and the Federal Water Pollution Control Act (sec. 208) have specified pollution-related land use requirements. Waste management planning for the latter and transportation and land use controls for the former, are important aspects of programs to fulfill water and air quality objectives.
These are regulatory programs. They are supported by civil, economic and, in some cases, criminal sanctions. They are intended to stimulate public and private efforts to protect public health and welfare and enhance the quality of a deteriorating environment.
My only interest is to assure that S. 268 indeed "strengthens" the ability of States – that it is in fact "nuts and bolts" legislation to require States to gain "authority and ability to develop their own land use policies," not to supplant, reduce or otherwise limit the effect of regulatory statutes.
The first part of the amendment is to subsection 202(b) (4). This part includes the planning aspects of pollution control regulatory programs among those with which the State land use planning agency must coordinate its activities. As the law is presently written, only the
regulatory aspects of pollution control programs are covered. However, as I have indicated, the air and water programs include requirements related to planning to assure achievement of pollution control standards, and I believe it is essential that these planning activities, along with the regulatory activities, be given recognition in any effort to coordinate with a State land use program.
The second provision of this amendment revises clause (F), paragraph (3) of subsection 203 (a) to broaden coverage from a showing that sources of air, water, noise and other pollution do not violate applicable pollution requirements, to also assure that new developmental activities do not create violations of the pollution control laws. Examples of developmental activities which, while they may not be sources of serious pollution themselves, may result in violation of pollution control laws are shopping centers, drive-in movies, race tracks, or other activities which can draw large concentrations of people or automobiles to them and thus result in violation of pollution control standards.
Currently, the Environmental Protection Agency is implementing both regulations covering transportation controls and what they call complex sources of pollution such as those I have listed above. These regulations are intended to assure that the results of concentrations of people and vehicles at such developments are anticipated and planned for in overall programs. This provision assures that the land use program is supportive of, and in no way infringes upon, these planning activities. The addition of this provision will also assure that the land use program is consistent with the goals, policies, objectives, standards, and other requirements of the Federal Water Pollution Control Act, the Clean Air Act and other Federal laws controlling pollution.
May I emphasize, anticipating a question that may be asked, that it is not the intent of this amendment to, in effect, add to the goals, policies, objectives, standards, and other requirements of those pieces of environmental legislation, but simply to assure that this legislation is implemented in a way which is consistent with those pieces of legislation. The purpose of this is to assure that, beyond focusing on control of individual sources as the present provision of S. 268 does, there is also general recognition of the policies and objectives which these other environmental laws are meant to achieve and there is assurance that the land use program will proceed consistent with these policies and objectives articulated in existing laws.
The third part of the amendment, to paragraph 2 of subsection 306(b) directs the Administrator of the Environmental Protection Agency, in reviewing State land use programs, to assure that not only is there nothing in the State program which is incompatible with the environmental laws now in existence, but also that there is nothing in the State program which will cause any violation of the standard through creating activities which attract concentrations of people or vehicles and cause pollution.
The final provision of the amendment revises the current 60-day limit on Environmental Protection Agency review of plans to give the EPA 180 days to review State programs during the first fiscal year in which these programs are submitted for review. This 180-day period during the initial submission phase is intended to allow the Agency to gain experience in examining plans and avoid undue burdens which could be imposed on the Agency if heavy and tight time schedules are imposed at a time when it faces the largest volume of State plans and has the most limited degree of experience in dealing with them.
Mr. President, that concludes my explanation. It is technical in many respects, but it had to be made, and I am happy now to answer any questions. with respect to it.
Mr. McCLURE. Mr. President, there are parts of the amendment offered by the distinguished Senator from Maine with which we would have no disagreement at all. I think the portion providing for planning, which is the first part of the amendment, is not harmful at all, and perhaps is constructive.
The third portion of the amendment, which refers to the addition of language to say what it will not cause violation of, I think, does not change but makes clear that the plans cannot violate the provisions of these other standards. That again, while it may not be necessary, is certainly not harmful to the intentions of this act.
The final provision is a relatively simple one that says instead of a 2-month review period, the Environmental Protection Agency shall have 6 months to review the plans submitted by the States. In that connection, I might say if we really want the plans in operation, we ought not to extend unreasonably the length of time for review by Federal agencies. That is one of the problems we have now, that it is hard to get decisions from State agencies, and here we are passing a law requiring the States to do certain things, but extending very greatly the time period in which Federal bureaucrats can make their decisions, and I am not certain that it is wise.
However, I think that is a simple, easily-understood portion of the amendment, and I suggest that we will all be able to make up our minds as to whether that is good or bad. But the one I should like to address myself to is the second provision of the Senator's amendment. This language, or language at least in part identical to this, was in the original legislation and was considered by the committee after extended discussion and it was stricken. It was stricken for a very real and valid reason. The Senator says that it is not intended by this language to broaden any existing law. But I would say that no statement of intent of that kind can possibly overrule the very express provisions of this amendment that would, indeed, very greatly broaden the application of present law, to the extent which is not clear at this time.
This becomes a dangerous kind of addition to the language of the bill. I refer to this language within the bill – within the amendment – which is subsection (2), subsection (f) as set forth in the amendment–
Any developmental activities in combination with pollution sources will not cause such violations to occur.
That is far beyond any existing statutory provision in the Air Quality Control Act or in the Water Pollution Control Act. This is an addition to present law that extends it into areas which none of us have defined as yet. I suggest that adoption of this amendment will cause untold difficulty in that one provision alone.
The second part is, in my estimation and this may be arguable – an extension of the present provision of this act, to say that this act must be used to further the goals of the act. It does not say "not to be inconsistent." It says–
You shall use this act as a lever to make certain things happen which are not required by other laws but are the goals of other laws.
We took that language out of the bill, after discussion in the committee and by agreement of the committee, because we felt that that kind of statutory enactment here would undoubtedly lead to an expansion of the provisions of other laws, without us really being able to see exactly how they would operate in practice.
So, for that reason, subsection (2) and subsection (3) of subsection (f), the second amendment – second portion of the amendment of the Senator from Maine, suggests to me that the amendment should be defeated. It is a very dangerous extension without any prescribing of the limits or the definitions of that extension. So that I think we would find, after having done it and it was put into practice, we had unleashed a monster.
We should reject the amendment of the Senator from Maine.
Mr. MUSKIE. Mr. President, I must apologize to the Senator from Idaho, because I found it very difficult to hear everything he said. For some reason, there seems to be some interference with the acoustics in the Chamber and I could not hear everything he said. However, I think I understand his objection to the amendment, and if I misstate what his objection is, I hope that he will correct me because I do not do so intentionally.
I gather that the Senator is concerned with the second of the amendments – the second of the provisions in my amendment, on the grounds that it would have the effect of augmenting or adding to the requirements of the standards or the goals of the environmental legislation. I am sure I have made it clear that is not the intent, nor do I believe it to be the effect.
Let me put my point in this way: I think the Senator focused on this language:
Any developmental activities in combination with pollution sources will not cause such violations to occur.
My answer to the Senator is, was it the intent that S. 268 permit developmental activities which would cause such violations to occur? Because that is the reverse of his interpretation.
Mr. McCLURE. Mr. President, will the Senator from Maine yield?
Mr. MUSKIE. I yield.
Mr. McCLURE. We are getting into a dangerous area when we assume that the negative of something is the opposite of the positive. For instance, we can say that if something is not black then we assume it is white. I assure the Senator, and I am sure that he would agree, there are many other changes which could be made, but that is one that is not really the positive. So I do not believe that my opposition to this language necessarily carries the implication that S. 268 is intended to permit violations. That is why I indicated some positive action. But when we read this in connection with the Supreme Court decision, the Pratt case just recently handed down, which permits absolutely no degradation of the existing quality standards, and then add to that, activities in combination with other sources, then we have virtually said no change of any kind in land use can be permitted under a State plan which is formulated in conjunction with this legislation. I am certain that is not the intention of the Senator from Maine.
He has stated that it is not his intention, but I submit that is the effect of the language he is submitting.
Mr. MUSKIE. I do not agree with the distinguished Senator. I do not think that the merit of the amendment is dismissed by suggesting holding it up to a mirror which would be a reverse picture of the Senator's position.
Let me read from the report of the National Air Quality Act of 1970. It touches on this question:
Implementation standards will require other changes of public policy. Land use policy must be developed to prevent location of facilities which are not compatible with implementation of national standards.
That is what my amendment talks about.
Here I have before me, materials issued by EPA on June 11, 1973, dealing with complex source regulations – let me read from that regulation:
On April 18, 1973, the Administrator proposed amendments to those regulations designed primarily to expand the scope of review prior to construction or modification of buildings, facilities, and installations, so as to require consideration of the air quality impact not only of pollutants emitted directly from stationary sources but also the pollution arising from mobile source activity associated with such buildings, facilities, and installations.
That language, I say to the Senator, is a correct interpretation of what is required by the Clean Air Act. If S. 268 is not amended as I have suggested, then the effect of S.268 may be to amend. those considerations, those values, and those requirements out of the Clean Air Act.
If it is the desire of the Senator or of the Senate to remodel the Clean Air Acts let us do it directly.
The tenor of this amendment and its thrust are to make S.268 neutral with respect to the clean air laws. I think it does that. I have no pride of authorship in this language. If the Senator can suggest better language to achieve that purpose, I would welcome it. I do not think the Senator's interpretation of it is correct or, if it is correct, that his understanding of the Clean Air Act is consistent with that act or with the regulations which have been developed under it or the policies established under it.
I repeat that the intent of this language is to neutralize the effect of this legislation on the clean air law and the Water Pollution Act, and I do not think it does any more than that.
Mr. McCLURE. Mr. President, if, indeed, as the Senator suggests, it is the desire to make certain that this is neutral with respect to these other Acts, I can refer him to no better language than that which the committee painstakingly developed over the course of many days of hearings and discussion and executive session and amendments of this bill. I refer to the very language which he suggests should be stricken, because it indeed does leave this bill in the posture of being neutral with respect to the requirements of the Clean Air Act and the Water Pollution Control Act.
The language he is suggesting, far from leaving it neutral, injects entirely new and untried standards for the enforcement of that act which, taken in conjunction with the recent Supreme Court decision, would make a completely different application of this act from that which has been stated is the intention of the Senator from Maine. I might add, too, while we are talking about review by EPA and what EPA wishes to do with respect to the State plans, Mr. Ruckelshaus, the Administrator of the Environmental Protection Agency, in commenting upon the proposed legislation – I refer to the report that is on file in connection with this measure – said:
From the point of view of this Agency, our interests are adequately represented in S. 924 through the representation on the National Advisory Board and the review mechanism in section 203 (a) and (c).
He went on, both before and after in that report, to indicate that since this was a process-oriented bill that was being suggested by the administration, they did not want to get into the review. Rather than extending the period of time in which they should review it, he said:
We do not need to at all so long as we are satisfied that the process which the State is implying and the review mechanisms which are set forth within the bill are more than adequate to meet the needs of the Environmental Protection Agency in seeing that the legitimate interests of the Federal Government were protected on Federal lands, on Federal decisions, and with respect to the process followed by the state.
So, for all these reasons, it seems to me that, in spite of what the Senator from Maine has said, it does something different from what he intends it to do.
For example, I suggest to the Senator from Maine that I am certain he did not intend, when Congress was talking about air quality control, that there should be a 100-percent ban on vehicular traffic in Los Angeles. I am certain that right now there is no intention on the part of anyone here to say to the people of Los Angeles that they cannot drive their automobiles any more during certain periods of the year, that they have to stop, 100 percent. Yet, the effect of legislation which has been passed has been precisely that.
It was not the intention of Congress, in passing air quality control legislation, to greatly invade the prerogatives of the State and the police powers of the State in such things as parking regulations, licensing taxis, and fees for use of interstate tunnels, as has been suggested now by the EPA, as necessary to meet the requirements of the air quality standards that have been adopted.
So we have to be careful that we do not go beyond our stated intention when we adopt language that has results we did not intend.
I agree with what the Senator says about his intention. I am saying that, in my view, the language necessarily will result in consequences which go far beyond the stated intention of the Senator.
Mr. JACKSON. Mr. President, first let me say that the Muskie amendment basically involves the language we had adopted in the bill last year; second, it is in the bill as I introduced it this year.
As I interpret the language – and, in fairness to the Senator from Idaho and the Senator from Maine, I think we are talking about interpretation – as the floor manager of the bill, the amendment does take a neutral stance. This is the way I interpret it.
I read from subsection (F) of the amendment:
(1) will not be located where it will result in a violation of any applicable air, water, noise, or other pollution standard or implementation plan.
Then it goes on:
... any developmental activities in combination with pollution sources will not cause such violations to occur.
It goes on, further:
The program is consistent with the goals, policies, objectives, standards and other requirements of the Federal Water Pollution Control Act, the Clean Air Act, and other Federal laws controlling pollution.
As I interpret it – and I say this for the legislative history – it does not add anything new. It does, in effect, make clear that those laws are applicable and that we are not by implication – and I think this is what the Senator from Maine has in mind – repealing any of the existing law.
We accepted it previously on that basis, and I wanted to make this statement so that the legislative history would be clear. I sum it all by saying that we are not adding and we are not detracting; we are clarifying it – at least, I am, in accepting the amendment.
Mr. McCLURE. Mr. President, will the Senator yield on that point?
Mr. JACKSON. I yield.
Mr. McCLURE. The language in the bill – perhaps I should read it for the benefit of those who may not be familiar with that language – at the bottom of page 74 and the top of page 75, says, in effect, after the previous language that appears on page 73, that the State has developed an adequate State land use program, which program shall include a statement of State land use policies, objectives, and methods of implementation for assuring that any source of air, water, noise, or other pollution pertaining to the areas and developmental activities listed in this clause"(1) will not be located where it will result in a violation of any applicable air, water, noise, or other pollution standard or implementation plan."
That is the language in the bill. If it is our intention to leave it neutral, what could be more clear than that the plans cannot be in conflict with applicable statutes? I ask the Senator from Washington and the Senator from Maine what applicable State or Federal statute in the pollution control areas today speaks, as No. 2 in the second portion does speak, of combinations of pollution sources as a violation of the law? Point out for me one statute that has that standard today?
Mr. JACKSON. I suggest that the Senator from Maine may wish to respond as he interprets his language. I have given my interpretation of the language, and perhaps we can complete the record by the Senator from Maine commenting on the language in (F) as contained in his amendment, as contrasted with (F) in the pending bill.
Mr. MUSKIE. Mr. President, I say in response to the Senator, first of all, that I have indeed, read that language of the committee.
Mr. McCLURE. I did not mean that the Senator had not.
Mr. MUSKIE. Second, I do not always agree with Mr. Ruckelshaus and neither does the Senator or the committee, because Mr. Ruckelshaus is opposed to provisions of the bill.
But let me say on the question of ambient air standards, which are subject to the Clean Air Act, pollution is the product of a combination of sources – stationary sources, mobile sources, inanimate sources, power sources, industries, backyard burning. The Clean Air Act requires the establishment of ambient air standards.
But now, let us get down to the specific language. Subsection (F) on page 74 states:
... assuring that any source of air, water, noise, or other pollution pertaining to the areas and developmental activities listed in this clause (1) will not be located where it will result in a violation of any applicable air, water, noise, or other pollution standard or implementation plan;
I want to read several things into the RECORD, so the RECORD will disclose the intention of this amendment.
In my explanation earlier this afternoon of my amendment I had this to say about it.
The second provision of this amendment – and that is my amendment – revises clause (F), paragraph (3) of subsection 203 (a) to broaden coverage from a showing that sources of air, water, noise, and other pollution do not violate applicable pollution requirements, to also assure that new developmental activities do not create violations of the pollution control laws.
Examples of developmental activities which, while they may not be sources of serious pollution themselves, may result in violation of pollution control laws are shopping centers, drive-in movies, racetracks, or other activities which can draw large concentrations of people or automobiles to them and thus result in violation of pollution control standards.
I quoted from EPA regulations earlier because it is an EPA responsibility to administer and enforce the Clean Air Act. Now, whether or not the language I have just read from my remarks earlier this afternoon is a valid explanation of the policy established under the Clean Air Act, I think it is testified to by this language in the regulation. I read it:
The Administrator proposed amendments to those regulations designed primarily to expand the scope of review prior to construction or modification of buildings, facilities, and installations so as to require consideration of the air quality impact not only of pollutants emitted directly from stationary sources, but also pollution arising from mobile source activity associated with buildings, facilities, and installations.
That was my understanding, as the author of the Clean Air Act, of its intent with respect to this situation. I felt that S. 268 impinged upon that policy implication of the Clean Air Act, and so I offered this amendment.
The language itself, which the Senator addressed my attention to in the bill, does not clarify the ambiguity, however painstakingly the committee considered it. It simply avoids the question.
The Senator and I may disagree as to what the policy should be, but I think it is clear what the policy established by the Clean Air Act is, and I think it is clear that S. 268 as written can be interpreted to undermine that policy as encompassed in the Clean Air Act.
Mr. McCLURE. Mr. President, the Senator from Maine suggests that since ambient air quality standards are a combination of several different inputs or contributions, that satisfies the combination of elements language which I questioned in his amendment.
Would not the Senator also agree that in addition to the law which Congress enacted it also directed the administering agency to adopt regulations, and those regulations become a part of the law, just as much as if we had written them ourselves. Is that not a correct statement of the posture of the law?
Mr. MUSKIE. No. I think the regulations are something to be challenged in some circumstances.
There is such a thing as arbitrary, unreasonable, inaccurate regulations, improperly interpreting the will of the legislature. I do not give them a blank check.
I cite EPA's regulation because it coincides with my interpretation of the Clean Air Act.
Mr. McCLURE. The regulation was adopted pursuant to a standard or finding in law, just as the statute is, just as any law we pass is binding until it is upset or changed.
While the Senator refers to ambient air quality standards, the regulations talk about emissions; they do not talk about ambient air quality standards.
Mr. MUSKIE. May I say to the Senator that to enforce ambient air quality standards one must get to the emissions.
Mr. McCLURE. That is the point I am getting at. But the combination of things here are not things under the statutes, but combinations of things under the regulations, and the regulations do not refer to ambient air quality standards.
Mr. MUSKIE. What creates pollution is the consumption of energy by increasing concentrations in numbers of people and energy consuming machines. If we really want to get at the reasons for that pollution, we can avoid all the consequences that we want, but we have to be concerned with the combinations and the combinations are determined and established by land use policies or the lack of them. That surely must be clear.
Mr. McCLURE. And it surely must be clear that the use of this language, which is not used in air quality standards, although it is indirectly referred to, that ambient air standards and the regulations which make no such reference, combined with other factors, shows an abdication of principles of those acts.
Mr. MUSKIE. I guess what I need to have answered, if I have not had answered already, is an explanation of what he has not made clear, of what deleterious effects he thinks will flow from the use of this language in my amendment.
Mr. McCLURE. There are two parts of the amendment which I object to, and which I outlined previously in the deliberations of the committee. One is this. The other is furthering the aims of other acts by using this act as a tool to accomplish what could not be accomplished by other acts. It says that this act shall be used to attain the goals of another act.
Mr. MUSKIE. That language is not found in my amendment. My amendment says; "The policies shall be consistent with."
Mr. McCLURE. It says "Shall further the aims and goals." That is the kind of language that I think is wrong.
The Senator says, what causes pollution? Certainly, any activity of any human being or animal, or nature itself. Rotting vegetation causes methane gas. It is pollution if man does it; it is not pollution if nature does it. We do not like eutrophication of our lakes and streams, but it is a natural process. If we accelerate it, it is pollution.
Mr. MUSKIE. I have not addressed any of my remarks to any of the natural forms of pollution, but to man-made forms of pollution. I do not think there is anything in the amendment that aims at natural forms of pollution. We are getting at man-made forms of pollution.
Mr. McCLURE. The point I am trying to make is that we are extending the implications of those acts in ways which cannot be predicted with any kind of certainty when we inject the two factors I have mentioned.
Mr. MUSKIE. I do not agree.
Mr. McCLURE. That is just as plain at this time as if we were to assure that the Senator from Maine, in some rare and rash moment, would try to suggest that Maine potatoes are superior to Idaho potatoes, which I would not agree to, and I think the facts are all on my side.
Mr. MUSKIE. If the Senator's judgment in other matters is as unsound as in this one, then I command the unanimous support of the Senate.
Mr. McCLURE. I have some evidence on my side that suggests that the buying and preference habits of the American public clearly show which is the preferable product, and that comes down on my side.
Mr. MUSKIE. The unanimous buying habits have resulted in the internal combustion engine and the gas-consuming monster which has confronted us with the problems we have, so buying habits are not necessarily the best test of what is best for America.
Mr. McCLURE. Aside from the difference of opinion on that slightly extraneous subject, I think it is important for us, in adopting this language, to realize the kinds of implications which are read into language in the interpretations by the courts. That is the fear which I express. That is the reason why the committee, in amending this language, adopted the very clear provision which is in the proposed statute as presented to the Senate now, and which the Senator proposes to strike. I think the considered action of the committee is the kind of action that ought to be sustained by the Senate.
Mr. MUSKIE. May I just add this to the RECORD, so that it may be complete? In my colloquy with the distinguished Senator, a reader of the RECORD – one who is wise enough to attempt to make that kind of effort – may be under a misapprehension as to what the clean air law requires with respect to implementation. So let me read this from section 110 of the act under the portion of the act entitled "Implementation Plan":
The Administrator shall approve such plan or any portion thereof if he determines that it was adopted after reasonable notice and hearing and that: (B) it includes emission limitations, schedules, and timetables for compliance with such limitations and such other measures as may be necessary to assure attainment and maintenance of such primary or secondary standards, including, but not limited to, land use and transportation controls.
In other words, contrary to the Senator's suggestion that the standards provided for in any way will be implemented only by emission controls, the act provides other implementation means that are clearly indicated in the language which I have just read.
Mr. FANNIN. Mr. President, will the Senator yield for a question?
Mr. MUSKIE Yes, I am glad to yield for a question.
Mr. FANNIN. "We must enhance the air," says a recent Supreme Court case. "We cannot now degrade the air even if the air is of a higher standard than Federal law requires."
Do you agree with my interpretation of the court case?
Mr. MUSKIE. Will the Senator repeat that?
Mr. FANNIN. "We must enhance the air," says the Supreme Court. "We cannot now degrade the air even if the air is of a higher standard than Federal law requires."
Mr. MUSKIE. The Senator is reading from the Supreme Court's decision, and I do not have the language of that decision before me. I assume the Senator is reading accurately.
Mr. FANNIN. I trust so.
I will ask the Senator this question: Does not this amendment really ratify that Supreme Court decision, if that is the Supreme Court decision as I have indicated?
Mr. MUSKIE. The effect of this amendment is to insure, to the extent that I am able to anticipate the effects of he bill before us, that the bill does not have the effect of modifying the clean air law. This amendment is not addressed to that decision or the subject of that decision; it is addressed to the point of making this bill neutral with respect to the clean air law. If that effect of the clean air law is effectively stated, reading from the Court's decision, then the effect of this amendment will be not to charge it.
Mr. FANNIN. I agree that that is the effect of this amendment. It seems to me it would not change it, but it would ratify it.
Mr. MUSKIE. No; it is not the effect of the amendment to modify, repeal, ratify, or in any way change the clean air law.
Mr. FANNIN. That is a different interpretation from mine, but the Senator is certainly entitled to his interpretation.
Could the Senator give me his meaning of "developmental activities," as used in his amendment?
Mr. MUSKIE. I think the words "developmental activities" are so well known that they can be described by endless lists of illustrations either by the Senator from Arizona or myself.
There is housing construction, erection of structures of one kind or another, building of roads, transporting of people, construction of rail lines – you name it. "Developmental activities" are activities designed, I suppose to build communities, to build homes, and all the related activities.
Mr. FANNIN. As incorporated in the amendment, it would be my concern that this would be a no-growth, no-progress amendment. In other words, the Senator would say that we should just let our land sit idly by and do nothing.
Mr. MUSKIE. I chink the Senator is really straining. It reminds me of the anecdote Mr. Gromyko told us at lunch yesterday. He said the hardest task in the world is to catch a black dog in a dark room when the dog is not there. I think that describes the Senator's reaction to that question with respect to this amendment.
Mr FANNIN. I would not agree, but let us listen to what it says:
Assuring that any source of air, water, noise, or other pollution pertaining to the areas and developmental activities listed in this clause will not be located where it will result in a violation of any applicable air, water, noise, or other pollution standard, or implementation plan, any developmental activities in combination with pollution sources will not cause such violations to occur, and the program is consistent with the goals, policies, objectives, standards and other requirements of the Federal Water Pollution Control Act. the Clean Air Act, and other Federal laws controlling pollution.
So with this amendment the Senator wants to reaffirm our current predicament that does not allow any building that would degrade our air.
Mr. MUSKIE. Mr. President, may I say to the Senator that I must vigorously disagree with his interpretation. The amendment has to be read in the context of the bill.
Mr. FANNIN. Mr. President, may I ask the Senator–
Mr. MUSKIE. Mr. President, may I finish. The Senator has put a question to me. The Senator objects to the bill.
Mr. FANNIN. The Senator is correct if these amendments are passed.
Mr. MUSKIE. Mr. President, I respect that disagreement. However, let us not attribute it to my amendment. The bill will control developmental activities. That is the effect and the purpose. It will channel developmental activities.
All I am saying is that the developmental activities under this bill are planned to work so that they should not have an effect on or violate the air and water pollution law. That is all I am saying. I am not creating a bill as far as I am concerned. The problem addressed to me would not exist without this legislation. I am trying to amend the bill so as to be sure that it prevents violation of the law.
Mr. FANNIN. My opinion is that it goes further than this country can afford. Laws that tie the Nation's hands and prevent it from building are dangerous.
Mr. MUSKIE. Mr. President, all I am saying is that the Senator is chasing a black dog in a dark room.
Mr. FANNIN. Mr. President, I cannot agree with the Senator. A careful analysis of this language would show it to be a no-growth, no-progress provision.
Mr. MUSKIE Mr. President, I vigorously disagree with the Senator. It has no such effect. It is not intended to have such effect. The clean air law has not had that effect. It is the clean air law that this amendment relates to.
Mr. FANNIN. Mr. President, I feel that it goes beyond that.
Mr. MUSKIE. Mr. President, I think the record is clear that the Senator and I do not agree.