May 14, 1974
Page 14542
Mr. McCLURE. Mr. President, will the Senator yield?
Mr. BUCKLEY. I yield.
Mr. McCLURE. Mr. President, one question has been raised which I think demands a little more analysis than has been given it. I do not intend at this time to do any more than raise the question and point to the fact that there may ultimately be further legislative debate and perhaps legislative resolution of a problem which was first raised by the Senator from Maine (Mr. MUSKIE) as he dealt with the question of environmental impact statement requirements by the Administrator of the Environmental Protection Agency.
Senator MUSKIE says that the legislative history is abundantly clear that this is present law. It well may be that the courts would find that to be true, or it may well be that the courts might disagree with that finding. If the latter be the case, this is not a restatement of the law but a creation of statute.
Rather than simply pass it by at this time without comment, I think some question should be raised as to whether or not the Environmental Protection Agency in every instance should operate outside the law which applies to all other Federal agencies, requiring them to file an impact statement. The National Environmental Policy Act very definitely has a careful balance written into the statute requiring several different factors to be considered in any Federal decision, and the impact statement that is required of other Federal agencies requires a balancing of those factors in the statement and discussion of that balance in the promulgation of the statement.
The Senator from Maine is quite correct that there are times when decisions required of the administrator by the statute are not sufficiently long to give him the opportunity to develop an environmental impact statement within the time frame required by the statutes. It is very true. It is equally true of all other administrative agencies which must meet the requirements of the impact statement law. It is also suggested that it would subject the Administrator's decisions to prolonged litigation, and this is possibly true. That is equally true of other administrative agencies.
While I do not intend at this time to attempt to change the language that has been inserted in this measure, because I think it needs a more thoughtful and lengthy discussion than we would give it today, I do think the question ultimately will have to be resolved by Congress, after a full debate of the extent to which the Administrator of the Environmental Protection Agency should be exempted from a law which applies to every other Federal Administrator but, under this language, not to him.
I believe that the balancing of public discussion that is required in the development of the impact statement in many, if not most – if not all – of the Administrator's decisions would be in the public interest, even though it might at times make it more difficult for the Administrator to arrive at a decision.
I take this time – and I thank the Senator from New York for yielding this time to me – only to raise the issue as a subject for continuing discussion and perhaps ultimate resolution; because I believe a serious fundamental question which has been raised, which ought to have a full discussion and final decision by Congress.
Mr. MUSKIE. Mr. President, will the Senator yield?
Mr. BUCKLEY. I yield.
Mr. MUSKIE. I understand that we have been making a record on this question.
Let me make the point, as the originator of the environmental impact statement, as the author of it, as the prime force in having the requirement to prepare an environmental impact statement included in the National Environmental Policy Act, as to what its intention was.
It was our intention to inject into the decision making of mission-oriented agencies environmental values that were not previously taken into account. In the discussion of this proposal – which I repeat was mine – we developed phraseology to distinguish between two categories of agencies: we referred to the agencies to be covered as environmental impact agencies and the agencies to be excluded as environmental protection agencies. The courts understood that.
For example, in International Harvester against Ruckelshaus, which was decided in the District of Columbia Circuit, on February 10, 1973, the court said this and it captures the essence of the legislative intent right on the nose:
Although we do not reach the question whether EPA is automatically and completely exempt from NEPA, we see little need in requiring a NEPA statement from an agency whose raison d'etre is the protection of the environment and whose decision on suspension is necessarily infused with the environmental considerations so pertinent to Congress in designing the statutory framework. To require a "statement" in addition to a decision setting forth the same consideration, would be a legalism carried to the extreme.
I would like to be able to persuade the distinguished Senator from Idaho and the distinguished Senator from New York to my point of view, but I make the limited point on which I hope the Senators would agree. That point is that the environmental laws written since NEPA was written were developed on the basis of an assumption that NEPA did not apply. Thus, we wrote into the laws many specific regulatory requirements and deadlines that did not take into account the potential delay that would be cranked in by a NEPA application or values that might be cranked in that were not reflected in the standard setting procedures of the environmental law.
If we want to undo and crank in NEPA, what we would need is a thorough committee review in both Houses as to the impact, in specific detail, on environmental laws.
When one looks at the list of current and future rulemaking actions possibly affected I think the point is clear.
Mr. President, I ask unanimous consent to have printed in the RECORD a list of current and future rulemaking actions possibly affected by this decision.
There being no objection, the list was ordered to be printed in the RECORD, as follows:
CURRENT AND FUTURE RULEMAKING ACTIONS POSSIBLY AFFECTED BY EIS PROVISION
1. SIP variances from fuel, sulfur regulations.
2. SIP revisions to implement Clean Fuels Policy.
3. Transportation control plans.
4. Complex source review regulations.
5. New source performance standards Group II: asphalt plants, petroleum refineries, petroleum storage tanks, iron and steel (basic oxygen furnaces), sewage sludge incinerators, brass and bronze, and secondary lead smelters
Group IIA: Primary copper, lead, and zinc smelters.
Group III: Aluminum reduction, ferroalloy plants, kraft pulp mills, iron and steel (electric furnaces), phosphate fertilizer plants, and stationary gas turbines.
6. Lead additive regulations (to limit lead content of leaded grades).
7. Approval of SIPS to implement secondary standards for particulate matter.
8. Supplementary control systems regulations.
9. Regulations to prevent significant deterioration.
Mr. MUSKIE. I will not give a complete recital of the list at this time but I have placed it in the RECORD for the perusal of Senators.
Mr. McCLURE. Mr. President, will the Senator yield further?
Mr. BUCKLEY. I yield.
Mr. McCLURE. The thing that concerns me is whether or not the balance that is written into the National Environmental Policy Act is also a balance which is always followed at EPA in their
decisions.
Mr. MUSKIE. Mr. President, if the Senator will yield, on one point clearly it is not and that is the underlying basis of the Clean Air Act. We said in the Clean Air Act that health and health alone
shall dictate the primary air quality standards; that neither economic nor technological considerations should compromise those standards. How rapidly that should be achieved is a compromisable issue but on the standards the entire Congress said that the health basis shall be the only basis. If NEPA applies, presumably that basis could be followed.
Mr. McCLURE. I did not raise the point of whether NEPA had a balancing requirement with respect to the Clean Air Act, but under other acts
Mr. MUSKIE. I just said with respect to the clean air standards Congress itself did not compromise health considerations by economic or technological considerations, and that was clear. Nobody was fooled by it; that was clear.
Mr. McCLURE. I do not argue that point with the Senator from Maine. I think that is obvious.
Mr. MUSKIE. That is the heart of my point.
Mr. McCLURE. The question is whether or not the Environmental Protection Agency should be exempted from filing impact statements in the broad range of the subjects and not just the Clean Air Act.
Mr. MUSKIE. The question is the same. NEPA was designed to insure that mission-oriented decisions like those of the Atomic Energy Commission must take into account environmental considerations. NEPA was not designed in the view of one of its authors, namely, me, to enable the Atomic Energy Commission to compromise environmental standards set by the Environmental Protection Agency. It is that simple. If Congress decides that the Atomic Energy Commission, or the Corps of Engineers, or other mission-oriented agencies should have the right and power to compromise environmental values, that certainly is the prerogative of Congress.
What I object to is to see that result achieved through the backdoor and non-legislative means.
Mr. McCLURE. Let us make a distinction here and it needs to be made because apparently I have not made myself understood. I do not quarrel with the fact that Congress has set standards in the Air Quality Act. There is no question about that. The question I have is the implication of a statement or a policy that the Environmental Protection Agency does not have to balance factors where they are mandated by Congress, because the National Environmental Policy Act said they must be balanced.
Mr. MUSKIE. That question depends on whether NEPA applies to EPA, and on that the Senator and I disagree.
Mr. McCLURE. That is the point I am trying to make: Not the air quality standards set by Congress, but the balancing requirements of the National Environmental Policy Act which many people feel are not being adequately carried out by the decisions of the Environmental Protection Agency.
The question does not come at this time whether the goals of the Air Quality Act should be compromised. The question is: Absent those goals and standards mandated by Congress, the Environmental Protection Agency should reach a balanced judgment.
Mr. MUSKIE. That is my point. What is the Senator going to balance the health standards against? The Senator is talking about balancing as though those values would be balanced against some unknown.
The people who want to achieve this balancing judgment by imposing NEPA on EPA want to compromise those environmental values by forcing the agency to take into account values Congress has already taken into account and decided in favor of the environmental values.
What is the purpose of the balancing exercise In the name of health standards? What is the purpose? Is it to protect them?
Mr. McCLURE. I would say that the Senator is focused on the Air Quality Act.
Mr. MUSKIE. It is as good an illustration as any of what I am talking about.
Mr. McCLURE. It is not because Congress set those standards in that instance. It said, "Do not balance it; apply these standards." But Congress did not in every environmental field say, "Ignore balance." It specifically said to apply balance except where Congress specifically provided otherwise, as we did in the Air Quality Act.
The development of the environmental impact statement is the guarantee of public input and discussion that will bring about the balance Congress required in the Environmental Policy Act.
Mr. MUSKIE. It really is not quite that simple. First, this amendment applies only to the Clean Air Act.
Mr. McCLURE. That is correct.
Mr. MUSKIE. Second, with respect to the Clean Water Act Congress legislated a clarification of the application of NEPA to the Clean Water Act and the intent is that the regulatory functions of NEPA with regard to water pollution are not covered by NEPA.
With respect to air, the health basis is simply the underlying philosophy but it is translated across the board – with respect to the automobile, stationary sources, implementation plans of the States – and in each case addition of the balancing judgment required by NEPA means other agencies not concerned with the environment should have the opportunity to dilute the philosophy of the Clean Air Act, as reflected in the standards set under that act. I tried to use a simple illustration, which I think is pertinent, but I am happy to get into the more complex standard-setting procedures of EPA; but they are the same as what the courts have held insofar as the courts have spoken on it.
Mr. McCLURE. Either the Senator misses my point or he does not want to debate my point.
Mr. MUSKIE. I see the Senator's point. The Senator does not see my explanation.
Mr. McCLURE. The Senator's explanation is tied to the Clean Air Act.
Mr. MUSKIE. Yes.
Mr. McCLURE. Would the Senator permit me to make my statement? I would appreciate that. I thank him for his courtesy.
The question is not involved with the standards set under the Clean Air Act, because the Congress has mandated them, and I know the amendment we are dealing with here today should deal only with the Clean Air Act. That is why I am not attempting to go into any change in the amendment that is adopted in the bill. But the statement of the Senator from Maine goes far beyond this amendment and he has said that the Environmental Protection Agency should be exempted from the balancing that is required of all other agencies, and I am saying that the Environmental Policy Act requires that balancing. We start off with a fundamental disagreement or misunderstanding, perhaps, of what the environment is.
We debated this in the Interior and Insular Affairs Committee, of which the Senator from New York and I are both members, for hours on end in trying to adopt a definition of the term "environment," because there are people who have a narrow definition of the term "environment" that excludes all economic, social, and political considerations that go into the entire environment of a person in this country. One cannot ignore part of it without in some way damaging the environment in which people live.
What good does it do for us to have clean air and clean water for people who are starving to death or freezing? There is a balancing that is required in some of these decisions, and what I am suggesting is that Congress recognize that at the time the National Environmental Policy Act was adopted, it inserted into the Environmental Policy Act the consideration of factors broad enough, much broader, I believe, than some people have suggested that the term "environment" embraces.
There are those who believe, apparently, that the only thing in the environment that is worth protecting is what God put in it. I would suggest that there are many things that man put in it that are worthy of protection as well. Man has made it possible for men and women to live better than animals and make them less subject to the forces of nature, and those things are worthwhile and they are worth protecting, and the National Environment Policy Act recognizes that from that necessity. I do not think the Environmental Protection Agency should be exempted from the principle that applies to every other agency, to determine whether or not they have made a proper evaluation of the tradeoffs that are required in these decisions.
Again, I would say I know this amendment in the bill applies only so far as the Clean Air Act is concerned. I take this time only so that I do not want this discussion to assume that I accept this rationale as being applicable to every decision made by the Environmental Protection Agency, because I believe we are running into a great deal of trouble because of that very narrow, limited interpretation of the word "environment," and the very narrow and limited interpretation of the responsibility of the Environmental Protection Agency.
I think it is an important fact which the Congress must sometime at least confront – that the Environmental Protection Agency is not God Almighty, that the Environmental Protection Agency has at times put blinders on in ignoring some of the factors which Congress directed it should consider, and I think the environmental impact statement should be directed toward those broad considerations in a manner which would not interfere with the ability to make decisions by the Environmental Protection Agency which would in the long run best be served by that policy, and certainly as the public, the people of the country who live here in this total environment, would best be served by that interpretation of the Act.
I am quite sure, despite statements that have been made that court decisions always find the other way, there are court decisions that have found that the Environmental Protection Agency must make that balanced finding and that the decisions that the Environmental Protection Agency makes are sometimes indeed major Federal decisions which require an impact statement as required by the NEPA Act itself.
I thank the Senator again for yielding this time.
Mr. BUCKLEY. Mr. President, I think the colloquy we have just listened to is an enormously useful one. I think it touches a subject that must be studied, at great length at an appropriate time.
I must confess that I do not share the distinguished Senator from Maine's apprehensions as to the effect of the House Appropriations Committee action. As I read that statute, it does not in any degree change existing law, though; to the extent that NEPA impacts on EPA, there has been no change whatever; therefore, curative amendments are not required. But I do believe the NEPA procedure requires a check list, as it were, that is enormously useful, and it is one that I believe from time to time the EPA could have availed itself of with great benefit to all concerned.
But I do agree that what we are discussing here affects only the Clean Air Act, and I do hope that at some later time we might have a chance, in a review of the NEPA legislation, to have the opportunity to explore further whether or not environmental needs, broadly defined, would not be better served by bringing EPA under the overall umbrella of requiring impact statements.
Mr. MUSKIE. Mr. President, will the Senator yield?
Mr. BUCKLEY. I yield.
Mr. MUSKIE. I would like to make the point which I made in my opening statement, that adoption of this amendment would not prohibit Mr. Train from filing "voluntary" statements which he has announced he will file, but it would prohibit the imposition of mandatory requirements which would have the effect, conceivably, of upsetting statutory EPA procedures.
So, as I understand what the Senator is saying, it seems to me this amendment is consistent with his view of what ought to be done if Mr. Train follows through on the "voluntary" statements.
Mr. BUCKLEY. I thank the Senator from Maine for that clarification. He does, of course, state the intent of his amendment – that it does not preclude voluntary compliance.
I would say that one thing I am a little concerned about with reference to the Senator from Maine's statement, namely, that it was not the intention of the environmental policy legislation to affect environmental protection agencies, and I say that because I believe the debate at the time named the National Park Service as an environmental agency.
Mr. MUSKIE. No. What we had in mind, may I say to the Senator – and I appreciate this opportunity to clarify that – was those environmental protection agencies with regulatory authority, without spelling out the authority in the statute. We wanted to exclude agencies whose legislators responsibility could be offset by that legislation. It is in that limited sense, not in the overall sense, including the Park Service, the Forest Service, and all the rest, that we used the term environmental protection activities.
Mr. McCLURE. Mr. President, will the Senator yield just briefly, because I think it would be instructive if we included in the RECORD at this point, so that people reading the RECORD might have it forth with, without having to go outside the RECORD to determine what it is I am trying to say, the applicable part of the statute?
The National Environmental Policy Act in title I, section 101, includes in its first subsection the following language:
To use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.
I think it is useful to have that language from the Environmental Policy Act included in this act.
Mr. President, I thank the distinguished Senator from Maine for yielding.
Mr. MUSKIE. Mr. President, I subscribe fully to that philosophy. I did so at the time I offered the environmental impact statement amendment to the act.