October 10, 1973
Page 33540
Mr. MUSKIE. Mr. President, the bill reported from conference would appropriate $5,000,000 "for the preparation of environmental impact statements as required by section 102(2) (c) of the National Environmental Policy Act on all proposed actions by the Environmental Protection Agency, except where prohibited by law." The ambiguous language of this section requires some clarification, since an unwarranted and improper construction of it could call into question the settled relationship of the National Environmental Policy Act – NEPA – to the regulatory activities of the Environmental Protection Agency – EPA. Therefore, I would first like to ask the Senator from Wyoming whether the conferees intended for this language to change or modify existing substantive law in any way?
Mr. McGEE. The answer, of course, to the question raised by the Senator from Maine is, "No."
As we all know, it would not be in order for the Congress to legislate through the vehicle of an appropriations bill. In fact when the House passed this bill on June 15 a point of order was raised on aspects of this item. The House manager, Mr. WHITTEN, struck that part of this provision which was legislation. I can only assume that the remainder to which you refer was not considered legislation in the other body either or it also would have been stricken.
Mr. MUSKIE. In that case, let me outline for the benefit of the Senator my understanding of the existing law governing the application of NEPA to the EPA. I would, appreciate knowing whether it corresponds to the view of the law held by the Senate conferees when they agreed to accept this amendment. Under existing statutory and case law, the only instances wherein the EPA is required to prepare environmental impact statements are in connection with the making of waste treatment construction grants and the issuance of discharge permits for new water pollution sources under the Federal Water Pollution Control Act. Section 511(c) (1) and the legislative history of that act clearly state that all of the provisions of NEPA are to apply to those two specific activities. Except for that narrow extension of NEPA's coverage authorized under section 511(c) (1), the Congress has never wavered from the intention expressed in enacting NEPA that the legislative mandates of the environmental improvement agencies – now EPA – were not to be changed in any way by NEPA.
The courts have enforced this legislative intent in dealing with the question of NEPA's application to the EPA's regulatory functions. In several recent Clean Air Act decisions – including Appalachian Power Co. against EPA, Getty Oil Co. against Ruckelshaus, Anaconda Co. against Ruckelshaus, Portland Cement Association against Ruckelshaus, and others – several circuit courts of appeals have held uniformly that the law prohibits the application of NEPA to the EPA's regulatory functions.
Mr. McGEE. In view of the Senator from Maine's knowledge on this complex issue, I would respect his view of the law on this question. In that connection, I would point out that the language of the section which we are discussing provides explicitly that the funds appropriated are to be used only for the preparation of impact statements where such statements are not prohibited by existing law.
Mr. MUSKIE. Am I correct, then, in my understanding that the language of this section should be construed to provide funds for the EPA to prepare environmental impact statements where the Agency is required to do so by existing law?
Mr. McGEE. Yes.
Mr. MUSKIE. I thank the Senator, and I express to him my appreciation for helping to make available the funding necessary to expedite the Agency's environmental regulatory and improvement efforts with which we are all so deeply concerned.