January 29, 1974
Page 1148
Mr. NELSON. Mr. President, if the Senator will yield at that point, as to that provision in the bill, is it not correct that the distinguished Senator from Washington joined me in cosponsoring the Energy Information Act, which is a much more comprehensive bill than this one?
Mr. JACKSON. The Senator is correct. That would be permanent. That legislation would supersede this. But I point out to my friend from Wisconsin that this is an emergency act. Mr. Simon cannot now command submission of any information at all. It has to be voluntary. That is crucial. What is happening now is that the Permanent Committee on Investigations is turning over sworn testimony to the Federal Emergency Agency Administration so that they can analyze it.
I commend the Senator from Wisconsin. I have joined him as a cosponsor of that legislation but, in the meantime, what do they do? They do not have the authority they must have.
Then, I would point out, lest my colleagues forget, that section 129 deals with this arbitrary problem of price gouging.
Let me read that section in full so that every Member of this body will understand what he is doing if he votes to recommit this measure, because there is nothing that is driving the American people up the wall more than real and alleged price gouging.
Here is what section 129 says:
The President shall exercise his authority under the Economic Stabilization Act of 1970, as amended, and the Emergency Petroleum Allocation Act of 1973 to specify prices for sales of crude oil, residual fuel oil, or refined petroleum products in or imported into the United States which avoid windfall profits by sellers. For purposes of this section, windfall profits shall be defined as those profits which are excessive or unreasonable, taking into consideration normal profit levels.
There is no definition of it? There it is. Let us not go around kidding people by trying to make them believe that the bill may be unconstitutional. We applied elementary law regarding the question raised by the Senator from Wisconsin (Mr. NELSON) and the Senator from Louisiana (Mr. LONG) as it relates to every section in the bill. That is the section on separability. That is standard legislative practice. If the renegotiation authority is declared to be unconstitutional, that does not bring the house down. We have gone through that routine.
The PRESIDING OFFICER. The time of the Senator from Washington has expired.
Mr. JACKSON. I yield myself 5 more minutes.
I yield to the distinguished senator from Maine.
Mr. MUSKIE. Mr. President, will the Senator yield for a question?
Mr. JACKSON. I yield.
Mr. MUSKIE. I listened earlier with great interest, I say to the Senator from Washington, to the discussion between the Senator from Wisconsin and the Senator from Louisiana. I make this point: This issue, as it was discussed in the conference report – the provision in the conference report – was in the House bill. Of all the provisions in the bill on which they insisted, this is one in which they took the strongest position.
There were those on the Senate side who were not sure that it was workable. We had some doubts about aspects of it. The discussion went on and approached a stalemate. How does one resolve an issue which is strongly supported by the one side, but as to which the other side has only doubt as to the validity of the provision?
So I offered an amendment, as the Senator will recall, making the provision effective January 1, 1975. The idea was that in later legislation there would be ample opportunity for the appropriate committee either to revise and improve the program in which the House believed, or offer something further, something better, or something different. We thought 1 year would provide adequate time.
So it puzzles me, in light of the discussion I heard earlier this afternoon – the commitment by the Senator from Wisconsin and the Senator from Louisiana – that, of course, there would be legislation by the committee which would be reported to the Senate and debated on the floor of the Senate.
What I could not quite figure out for myself was why it was easier to bring legislation of an original generic nature to the floor. Why do they not act to bring to the floor legislation that will supersede the provisions of the conference reports, if there really is a commitment to deal with the children?
I can understand why they were going to strike it here and bring it to the floor of the Senate in the form of new legislation, on which the Senate would have a chance to deliberate for whatever time the Senate wants, but the other route is just as viable.
The House insisted on this provision. They insisted on it. They rejected the bill the Senate sent over to them. I listened to that debate. If any Senator believes that the. House conferees can be shaken, he is completely mistaken.
Mr. JACKSON. I could not agree more completely with the Senator. As a matter of fact, there were only 20 votes for the attempted compromise in the House of Representatives. They fought the omission renegotiation provision. So the Senate is now on notice that if this bill goes to conference, they are killing all the things we have recited in here, all the things that are in this conference report.
The Senator from Maine deserves great credit for working out the compromise so that it would not be effective until January 1, 1975, giving Congress a whole year to deal with the problem of excessive profits.
We all want to be rational and reasonable about it. But what we have done here is to put a burr under the saddle of the House and Senate so that there will be some action on excessive profits and price gouging. That is the purpose of it.
Mr. MUSKIE. Mr. President, will the Senator yield?
Mr. JACKSON. I yield.
Mr. MUSKIE. The Senator made reference earlier to the nature of the opposition to this conference report. I have listened to this debate all afternoon. Just one target has emerged and that is the windfall profits section. That is the one target of the opposition that has surfaced, has been discussed, and has been debated. The administration proposes recommittal, and I take it that this is the administration's principal target. Spokesmen who reflect the views of the oil industry have done so. So this is the one target.
Mr. NELSON. Mr. President, will the Senator yield?
Mr. MUSKIE. I should like to finish, and then I will be happy to yield.
All we did, as Senate conferees, in the light of the adamant position the House took, was to make a commitment which we felt the Senate would be willing to make, a commitment that the issue of windfall profits would be dealt with this year. We made no commitment to this particular mechanism. We need no commitment, to this particular provision, notwithstanding the enthusiasm of the House for it. We saw this as an opportunity to make a commitment to take action before January 1, 1975, and it is that commitment which we are being urged to abandon this afternoon.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. JACKSON. I yield 1 additional, minute.
Mr. President, this is the crucial question: Does it make any sense for this body to send the conference report back to conference, when we tried that course, in effect, by sending a bill to the House with this windfall profits section out and only got 20 votes for it?
We are on notice, every Member is on notice, that if we send it back, we are killing not just the question of renegotiation but also all the safeguards that deal with price gouging, unemployment insurance, a requirement on reporting, and all the other things that go with it, to protect the little dealer, to deal with antitrust.
Let us not kid ourselves. Why shed crocodile tears over all those increases that are on the graph? That is what it boils down to.
This issue was adjudicated in December, and the House turned it down cold. I must say that we are fooling ourselves when we move to recommit it.
There is no one in this body for whom I have a higher regard than the Senator from Wisconsin, but I am a little confused in this particular situation.
Mr. NELSON. Mr. President, will the Senator yield?
Mr. JACKSON. I yield 1 minute.
Mr. NELSON. I should like to say, with respect to the reference to the crocodile tears about the profits, that I am sure the Senator is familiar with my 10-year record here in support of removal of the depletion allowance and with the excess profits tax proposals.
Mr. JACKSON. The Senator and I have voted together on those issues. I voted to kill the foreign depletion allowance a long time ago when it was up. I voted against the special foreign tax credits. I voted to cut the depletion allowance, just as the Senator did. But what I do not understand, really, is why there is this constitutional concern about this section when, if it is unconstitutional, the courts will decide it, and it will not touch the rest of the bill. This I do not understand.
Mr. NELSON. May I respond?
Mr. JACKSON. Yes.
Mr. NELSON. There are two points. I am concerned about two provisions. One is the environmental provision, which I realize was the best the Senator could get at that time. I object to the waiver of the standards for a 5-year period.
Mr. MUSKIE. Mr. President, will the Senator Yield?
Mr. JACKSON. I yield.
Mr. MUSKIE. I have been waiting all afternoon to get the specifics. I understand that the Senator objects to a 5-year waiver. There is no 5-year waiver of standards in this conference report.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. JACKSON. I yield 1 additional minute.
Mr. MUSKIE. I would be glad to discuss that at further length; but I have been waiting, and all I have heard is a discussion of the windfall tax provision. That is why I addressed my remarks to it. I discussed the environmental provisions in the half hour prior to the offering of the motion to recommit, and I have been waiting for the case that I was told would be made on the floor. I shall be glad to get into it.
Mr. NELSON. Mr. President, will the Senator yield?
Mr. JACKSON. I yield.
Mr. NELSON. I never got to the provision, because the distinguished chairman of the Committee on Finance started asking me questions, and we carried on a dialog so long that I never got to read all of my remarks on that subject.
Mr. MUSKIE. I got the distinct impression that the Senator's case against the environmental provisions was not as important, in his mind, as his case against the windfall profits provisions.
Mr. NELSON. I think there is no doubt at all that the renegotiation provision is simply an incredible disaster. I would not say that about the negotiated settlement that the distinguished Senator from Maine made in the conference.
Mr. MUSKIE. I would hope not. I would challenge that with all the vigor at my command.
Mr. NELSON. But what the Senator put into the bill and took out of his committee, with a vote of 14 to nothing, was a better provision than what we got from conference.
Mr. MUSKIE. I respectfully disagree with the Senator, so that the record is clear.
Mr. JACKSON. In fairness to the Senator from Maine, in its bill the House virtually disposed of the Clean Air Act, and the safeguards that we had in the Senate were retained in conference. We
came out of conference with a much stronger bill, from an environmental point of view, than what the House had passed.
Mr. MUSKIE. There was no comparison.
Mr. NELSON. To what the House had passed – that is correct.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. JACKSON. I yield 1 additional minute.
Mr. NELSON. I agree with the Senator from Washington when he says that this is a burr under the saddle, because the bill is such a disaster that Congress will have to do something about it.
We have a situation in which the President is going to set the prices at the retail, wholesale, and production levels. Then, after he sets the price and the retail operator charges the price the President sets, I can come in and complain against the price and I go up to the Renegotiation Board, and they say that under the guidelines it is an excess profit and that he has to give it back.
Mr. JACKSON. As I understand the Senator's point of view, he is raising questions we all raised in connection with renegotiation and the Clean Air Act. But does it make much sense to turn around and throw out an emergency bill with this long list of safeguards that protect the little dealer–
Mr. NELSON. The motion to recommit does not throw it out. If the Senator goes to conference and they cannot agree, he can come back with it.
Mr. JACKSON. The Senator from Wisconsin and I have been here a little while. The House has gone through this exercise once, and they gave us 20 votes on the issue of renegotiation.
Mr. NELSON. But that was last year, was it not?
Mr. JACKSON. Last year, but it is not that long ago. It was last month, in the closing days of the session, not a year ago.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. JACKSON. I yield 1 additional minute.
Mr. NELSON. Is it not correct that at the time this agreement was negotiated, to which the Senator from Washington is opposed and voted against and to which the Senator from Maine is opposed and voted against, which I think both will say privately is no good – and not a single tax expert in America thus far, that anyone can name, supports the renegotiation proposal – is it not true that now there are hearings, which were not existent then, with respect to the excess profits tax?
I thank the Senator for the time.
Mr. JACKSON. We have been whipping around this renegotiation provision dealing with windfall profits. But if it did nothing else – and I hope my colleagues will listen to this – 2 days after the conference agreed on the windfall profits section, the administration came out for a windfall profit tax bill. Do I need to say more?
Mr. LONG. Mr. President, will the Senator yield?
Mr. JACKSON. I yield.
Mr. LONG. The Senator certainly should say more. They told me about that a week before it came out.
Mr. JACKSON. The Senator has a better arrangement than I have.
Mr. LONG. The Senator ought to say more than that.
Mr. JACKSON. I know they got religion, Mr. President. I know they got religion when the conference agreed to section 110, just as they got religion when the conference agreed on unemployment insurance provision. The list of items is long on which they have switched their position.
They opposed the windfall tax provision; they opposed the unemployment insurance provision; they opposed. the public disclosure provision; they opposed congressional review of their conservation plans; and now they are all for them. If that terrible renegotiation provision did not do anything else, it really brought religion down to the other end of Pennsylvania Avenue.
Mr. FANNIN. We should be fair. We had information about the excess profits tax before that conference was over.
Mr. JACKSON. When did they make it public?
Mr. FANNIN. I do not know when they told the Senator.
Mr. JACKSON. They did not tell me anything.
Mr. FANNIN. Let us disclose it. Let us be fair.
Mr. JACKSON. I want to be fair.
Mr. FANNIN. I have a letter from the President as to what he wants to do. He certainly is in support of what the Senator is talking about. Sunday on "Face the Nation" the Senator from Washington said what should be done, but this conference report does not carry it through.
Mr. JACKSON. The press, which follows this matter closely, knows when they came out for the excess profits tax, after the conference agreed to this. They propose an excise tax for this purpose which would be passed on to the consumer, like a sales tax. I do not know how big a load the consumer can carry with the terrible escalation of prices now going on. We cannot afford many such new proposals that add to consumer costs, such as deregulating new oil. And I hope we do not have any more wheat deals for a while. We are now going to buy wheat from Russia and buy wheat from Canada. This is typical of this administration's mismanagement of the economy, for which we pay. A little more of this and we could be facing the greatest economic crisis since the 1930's.
Mr. President, how much time do I have remaining?
The PRESIDING OFFICER. The Senator has 28 minutes remaining.
Mr. JACKSON. The Senator from New York (Mr. JAVITS) wanted to be heard.
Mr. RANDOLPH. Mr. President, will the gentleman yield for a question.
Mr. JACKSON. I yield to my good friend from West Virginia.
Mr. RANDOLPH. The conference report at section 301(2) (C) requires the Administrator to conduct a study regarding further development of the Nation's hydroelectric power resources.
This directive is altogether wise. A million kilowatts of hydroelectric capacity operating at 40 percent plant factor saves consumption of 6 million barrels of crude oil annually, or the amount needed to generate equivalent energy by an oil-fueled power plant. Today we have eight million kilowatts of authorized un-constructed Federal hydroelectric capacity. We also have proposals for 18 million kilowatts before the Federal Power Commission. My question to the gentleman is, will the study directed by the conference report consider further hydroelectric development by all interests of our Nation, both Federal and non-Federal?
Mr. JACKSON. My good friend correctly states the intent of this provision. The study will consider possible development of the Nation's hydroelectric resources by whomsoever it might be undertaken, toward the end of increasing the conservation of fossil fuels.
Mr. RANDOLPH. I thank the Senator.
Mr. JACKSON. I yield 10 minutes to the distinguished Senator from Maine. He and the Senator from West Virginia were the real anchor men in that conference we have heard so much about.
Mr. MUSKIE. Mr. President, I would be happy to answer any questions that any Member of the Senate would like to put to me about the environmental issue. I have not heard a case made against these provisions. I would be happy to go into it in a colloquy with any Senator. I already have placed a statement in the RECORD today explaining the conference agreement on these questions; and last month when we reported the conference report to the Senate I made a statement at that time explaining it.
I have heard the conference report on these questions distorted, misrepresented and misunderstood, so I am available, and I have been since 1:30 this afternoon to go into these questions, and I would be happy to do so.
Mr. NELSON. Mr. President, will the Senator yield?
Mr. MUSKIE. I yield.
Mr. NELSON. Did I understand the Senator correctly a moment ago to say that the conference agreement was better than the provision that the Senate adopted?
Mr. MUSKIE. That is right. I explained that earlier this afternoon.
Mr. NELSON. I did not hear the Senator's explanation. In reading it, I do not see how. The environmental organizations do not agree with that.
Mr. MUSKIE. The only environmental organization comments I have seen are from the Sierra Club. I see this two-page analysis with many errors in it. I have been waiting all afternoon for someone to advance these arguments so I could respond, but it has not been done.
There are errors, I am sure, made in good faith. That is why I am here. That is my business. I was a member of the conference on these issues. I try to be knowledgeable about them, and accurate and objective about them.
The Senator, for example, referred to this as a 5-year suspension. The suspension of clean air standards is only until November 1 of this year. Thereafter, any fuel burning source which converts to coal before November 1, 1974, must file another compliance schedule which immediately puts them under standards of the act in a time frame compared to their implementation. There is no 5-year suspension. I heard that in some of these statements. To get into all the technicalities is a little bit of a problem. Let me read some of the language of the legislation which is enlightening. I wish to read section 106 which is a definition of the extent to which standards can be modified under this bill. I read subsection (c)
SEC. 106. COAL CONVERSION AND ALLOCATION.
(a) The Administrator shall, to the extent practicable and consistent with the objectives of this Act, by order, after balancing on a plant-by-plant basis the environmental effects of use of coal against the need to fulfill the purposes of this Act, prohibit, as its primary energy source, the burning of natural gas or petroleum products by any major fuel-burning installation (including any existing electric power plant) which, on the date of enactment of this Act, has the capability and necessary plant equipment to burn coal.
So they must first have the capability present and necessary plant equipment have to burn coal. If they do and if on a plant-by-plant basis a balancing of the environmental effects is positive – that is, the result is not harmful to the health – then the procedures we included in this conference report will take hold. This authority here that I have just read is effective only until May 15, 1975. At that point by the terms of this bill it expires.
There can be no conversions after that date. With respect to conversions that take place before that date, they must be made, if they are made, on a permit basis. They must follow the procedures outlined in section 119.
I wish to read from the language in section 119(b) (1)
"(b)(1) Except as provided in paragraph (2) of this subsection, any fuel-burning stationary source (A) which is prohibited from using petroleum products or natural gas as fuel by reason of an order issued under section 106(a) of the Energy Emergency Act, or which the Administrator determines began conversion to the use of coal as fuel during the 90-day period ending on December 15, 1973, and (B) which converts to the use of coal as fuel, shall not, until January 1, 1979, be prohibited, by reason of the application of any air pollution requirement, from burning coal which is available to such source."
Paragraph 1, which I have just read, shall apply to a source only if the Administrator finds that emissions from the source will not materially contribute to a significant risk to public health and if the source has submitted to the Administrator a plan for compliance for such source which the Administrator has approved, after notice to interested persons and opportunity for presentation of views (including oral presentations of views). A plan submitted under the preceding sentence shall be approved only if it provides (i) reasonable assurance that such source will achieve at least the same degree of emission reduction by January 1, 1979, as it is required to achieve by the applicable implementation plan in effect on the date of enactment of this section (ii) for compliance by the means specified in subparagraph (B) in accordance with a schedule for compliance which meets the requirements of such subparagraph; and (iii) that such source will comply with requirements which the Administrator shall prescribe to assure that emissions from such source will not materially contribute to a significant risk to public health. The Administrator shall approve or disapprove any such plan within 60 days after such plan is submitted.
(B) The Administrator shall by regulation prescribe requirements that sources to which this subsection applies submit and obtain approval of schedules of compliance, such regulations shall include requirements that such schedules shall include dates by which such source must (i) enter into contracts or other enforceable obligations for obtaining a long-term supply of coal or coal by-products (which contracts or obligations must have received prior approval of the Administrator), and (ii) take steps to obtain continuous emission reduction systems necessary to permit such coal or coal by-products to be burned in compliance with the applicable implementation plan (which steps and systems must have received prior approval of the Administrator). Such regulations shall also require that the source achieve as expeditiously as practicable considering the type of coal to be used (but not later than January 1, 1979) the same degree of emission reduction as it is required to achieve by the applicable implementation plan in effect on the date of enactment of this section.
It provides for the compliance, by the means specified in Paragraph (B), in accordance with a schedule for compliance which meets the requirements of such paragraph.
Such source will comply with the requirements which the Administrator shall prescribe to assure that emissions from such source will not materially contribute to a significant risk to public health.
Now, paragraph (B):
The Administrator shall by regulation prescribe requirements that sources to which this subsection applies submit and obtain approval of schedules of compliance. Such regulations shall include requirements that such schedules shall include dates by which such source must (i) enter into contracts or other enforceable obligations for obtaining a long-term supply of coal or coal byproducts (which contracts or obligations must have received prior approval of the Administrator), and (ii) take steps to obtain continuous emission reduction systems.
You know, Mr. President, the Sierra Club document which I hold contains this language:
Long-range expansion of coal-fired power capacity should involve development and installation of pollution control equipment and exploitation of low-sulfur reserves. Such expansion will then involve no violations of air pollution standards, and so would require no special exemptions.
The language which I have just read writes into this law the exact provisions which they prescribe in their document. That is what I mean by a lack of understanding and knowledge of what is in this conference report.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. JACKSON. Mr. president, does the Senator want more time?
Mr. MUSKIE. I will be glad to continue if it is helpful at all to any Senator.
Mr. JACKSON. Mr. President, how much time do I have?
The PRESIDING OFFICER. The Senator has 18 minutes.
Mr. JACKSON. I yield 3 minutes to the Senator, and I will add to that.
Mr. MUSKIE. Mr. President, may I say this? The Senator from Wisconsin may wish to put other questions. While he is considering that, let me make this observation.
Anybody who reads the House record of debate on the original House bill, or who reads the House record on the bill which we sent over to the Senate on the last day, has to be aware of the strong and vigorous and rising opposition to every piece of environmental legislation we have put on the books.
In the course of the debate on the House version of the original bill, the Representative from New Hampshire, Mr. WYMAN, introduced an amendment to wipe away all controls on automobile emissions – all of them – and he came within 20 or 30 votes of carrying that amendment.
During the recent recess, I – and I suspect many other Senators and many Members of the House – was asked to meet with automobile dealers across my State. Their mission was this: to pressure us or to persuade us to vote for the Wyman amendment.
Mr. President, if you open this thing up and send it back to conference, and perhaps back to the House, those of us who are really concerned about preserving the laws we have put on the books to preserve the environment had better consider whether we really want to open it up. Under the form of the motion to recommit the conference report, everything in the report is opened up. No agreement which we made in the original conference is binding upon anybody. So every provision we have in here – and those provisions touch not only stationary sources but automobiles and all the rest of it – is open again and is subject to whatever consequences the pressures brought during the recess may achieve. To you who are really concerned about protecting as much as we can of the environmental policies we have written over so many difficult and frustrating and agonizing years and that are now on the law books of our country, I urge you not to open this compromise up to the kind of attacks it could receive if it got back to the House, by any stretch of the imagination. The people who are fighting the windfall profits tax, the oil industry also, would like to see every piece of environmental legislation go down the drain. That is not to say that a Senator who may vote to recommit, for any number of reasons, is motivated that way, but I think it ought to be made clear that the oil industry has been one of the strong proponents for undermining environmental laws.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. JACKSON. Mr. President, I will yield later to the Senator from Maine. I yield 3 minutes now to the Senator from New York (Mr. JAVITS) .
Mr. JAVITS. Mr. President, I understand completely the arguments already made in respect of end-use rationing, allocation, new exploration, control of exports, unemployment assistance, franchise dealers, and so forth, and the disadvantages of the diminution of environmental protection, that brings the Senator from Wisconsin (Mr. NELSON) to bring this motion.
Additionally, I have followed the arguments in respect of section 110, the renegotiation or windfall tax provision.
I think that renegotiation provision is bad. I believe it will be found invalid because of its indefiniteness. However, I believe it will be dealt with in an excess profits tax which we will be considering promptly, well before this provision takes effect. There is no liability until the Board actually acts. In other words, there is no right of action until the Renegotiation Board acts. So nobody will be prejudiced by that section if it gets wiped out in an excess profits tax provision.
What this conference report means is that it is of importance in trying to get an end to the oil embargo. It is my considered judgment that unless we act by adopting the report – and I shall vote against recommittal and for the report for this principal reason – we will not have served notice upon the Arab States that the United States intends to make itself strong and well nigh invulnerable in terms of its petroleum product consumption within very short order, and therefore that it is in an excellent position to lead, in respect of Western Europe and Japan, in an effort to coordinate their policies with ours, because it is the breakdown in that coordination which has put the world in such a disarray as to endanger all mankind.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. JAVITS. May I have 2 minutes?
Mr. JACKSON. I yield 2 minutes to the Senator from New York.
Mr. JAVITS. This to me is the critical point. It is that we are taking this action in order to demonstrate that the United States is not going to be overcome by this oil embargo or by production cutbacks, or what may turn out even worse, the enormously escalating prices of oil, but that we are putting ourselves in a stronger position to deal with it.
I believe, in view of the uncertainty and delay that are bound to ensue if this matter is returned to conference and if this conference report is not approved, the tradeoffs for the imperfections that admittedly are in this bill simply are not worth it. And it is much too dangerous from the point of view of hoping to bring an end to the high prices which the world simply cannot bear as well as the actual physical deprivation caused by the shortage of oil which neither the people of the United States nor Europe and Japan can bear.
The key answer to that now is the stance of the United States. Can we take on the responsibility? In my judgment we can serve notice to the world that we can and we will by acting now in terms of giving ourselves the power inherent in this act.
For those reasons, and because I believe the deficiencies in the bill can be corrected by appropriate and swiftly enacted legislation, I shall vote against the recommittal of the conference report.
Mr. JACKSON. Mr. President, I thank the Senator from New York for his very fine statement.