December 17, 1974
Page 40371
Mr. MUSKIE. Mr. President, I oppose inclusion of language in the conference report on the Agricultural/Environmental and Consumer Protection appropriations bill which would have the effect of amending the Clean Air Act in a substantive fashion.
The amendment is a continuation of a long effort on the part of the House Appropriations Committee to include language in an appropriation bill that does not belong in the appropriations process.
The Senate Appropriations Committee, as it has frequently done, eliminated the language of amendment No. 8 from the appropriation bill during its consideration. I appreciate very much the efforts of the able chairman of the subcommittee, Senator McGEE, and the ranking Republican, Senator FONG. They have shown sensitivity to environmental issues in the past, and they were correct in their action in striking this language from the bill when it was before the Senate. And, the Senate voted to reject this exact language on December 12, 1973, during consideration of the fiscal year 1974 supplemental appropriations bill.
But we are faced with an amendment to the conference report which proposes including the House language in that report. The language is as follows:
No part of any funds appropriated under this Act may be used by the Environmental Protection Agency to administer any program to tax, limit, or otherwise regulate parking facilities.
This language is entirely inappropriate. The amendment raises four important questions.
We must ask if it is proper to use an appropriations procedure to accomplish substantive change in legislative policy. This amendment could not be reached in the House on a point of order because it is purportedly a procedural limitation on the use of funds. It is more than that. Broadly construed, this amendment could void current regulations of the Environmental Protection Agency applicable to parking lots.
The language of the House amendment is legislative in nature, yet it has had no legislative hearings. It was adopted with little public discussion. This is not proper legislative process.
We must ask ourselves whether the Congress wants to restrict any of EPA's pollution control authority through this process without any review of the ramifications of that restriction on the health of citizens in areas where such controls are required.
We must ask ourselves whether or not we want to remove an additional regulatory tool from the Environmental Protection Agency and thus make more difficult the achievement of public health-related air quality standards by statutory deadlines. Last year the Senate bowed to House demands in the energy emergency legislation to prohibit the Environmental Protection Agency from using parking surtaxes as an element of pollution control without a specific Congressional authorization. This year we are being asked to delay EPA's regulations of parking lots.
Finally, we must address ourselves to the question of the meaning of this amendment. Precisely stated, this amendment bars EPA from administering "any program to tax, limit, or otherwise regulate parking facilities."
I would like to address a series of questions regarding the intent of this amendment to Senator McGEE, the distinguished floor manager of this bill. Is it a fact that this amendment only limits EPA's authority as regards regulation or limitation of facilities the sole purpose of which is to provide parking?
Mr. McGEE. I would respond to the Senator from Maine that I believe the House language and the legislative history speak for themselves. In my opinion the House language restricts its operation to parking and I think the legislative history supports that interpretation. As the Senator knows very well, this provision was amended in conference at the initiative of some of the Senate conferees. It is my understanding that the compromise provision would have expanded the restriction to include programs other than parking but would have done so on a temporary basis only. In other words, while the Senate compromise language was perhaps broader in terms of programs to be covered it was less restrictive as to the time element. That language was eliminated on a point of order in the House on the basis that the language was indeed broader than the original language. So, I think it is clear that we are now dealing with parking restrictions and parking restrictions only.
Mr. MUSKIE. This amendment could not be construed then to affect EPA's authority to regulate other facilities which generate automobile and other vehicular traffic and which, as a result of such traffic, cause an increase in the incidence of air pollution and thus contribute to air pollution in excess of air quality standards? Is that also true?
Mr. McGEE. As I indicated in response to the Senator's original question, I believe we are dealing with restrictions on parking programs and parking programs only. No other EPA programs would in my opinion fall under this restrictive language.
Mr. MUSKIE. I take it that there is no intention on the part of the conferees to affect EPA's authority to make grants to States and otherwise make available technical assistance to assure compliance with plans for implementation of air quality standards, which plans may include local or State parking regulations. Is that correct?
Mr. McGEE. The Senator is correct. To my knowledge there was no intention on the part of any of the conferees to affect in any way the grants made to the States or otherwise interfere with the States or local jurisdictions from developing or implementing parking programs. As a matter of fact, the States and local jurisdictions are encouraged to proceed in this regard and I believe EPA should be able to assist them under their regular programs which provide both financial and technical assistance.
Mr. MUSKIE. Under this amendment, EPA would be prohibited only from using Agency funds to administer federally, any program to regulate parking facilities. Nothing in this amendment could be construed as limiting EPA's authority to regulate, for air quality purposes, the location or the size of shopping centers, sports arenas, apartment houses, highways, airports, or other facilities which, because of their nature, stimulate automobile or other vehicular traffic causing or contributing to pollution in excess of applicable standards. Is that a correct statement?
Mr. McGEE. Again, I would agree with the Senator and again refer him back to my more detailed response to his original question. We are dealing here with parking programs and the restriction, in my opinion, is limited to that.
Mr. MUSKIE. Finally, I would assume that the amendment would not in any was affect the authority of the Administrator to require those who would develop facilities which generate vehicular traffic to demonstrate to the Administrator and/or to a State – or to the court – whichever is appropriate, that any such traffic would not cause or contribute to air pollution in excess of applicable air quality standards. Is that correct?
Mr. McGEE. The Senator is correct. I might add by way of further clarification of this colloquy that I have received a letter from Russell Train, Administrator of the Environmental Protection Agency, in which he addresses himself to many of the issues the Senator from Maine has raised here today. I ask unanimous consent that a copy of this letter be made a part of the RECORD at this point. I think it serves to reinforce the understanding that coincides generally with the understanding of the Senator from Maine and the Senator from Wyoming.
There being no objection, the letter was ordered to be printed in the RECORD, as follows:
U.S. ENVIRONMENTAL PROTECTION AGENCY,
Washington, D.C.,
December 17, 1974.
DEAR MR. CHAIRMAN: You have asked me how EPA construes the language of section 510 of H.R. 16901, to be considered by the Senate today. The section states:
No part of any funds appropriated under this Act may be used by the Environmental Protection Agency to administer any program to tax, limit, or otherwise regulate parking facilities.
EPA's interpretation of this section is that there potentially will be an effect on two programs: indirect source regulations as they pertain to parking facilities, and the management of parking supply regulations under the transportation control plans.
The complete indirect source regulations contained in 40 CFR 5222 require a preconstruction review of certain facilities that attract large volumes of traffic. The definition includes highways, roads and airports in addition to parking associated with large developments. Section 510 would not affect the preconstruction review of highways and airports since they are not part of any "program to tax, limit, or otherwise regulate parking facilities."
The complete indirect source regulations were promulgated on February 25, 1974 in 39 F.R. 7270 and re-promulgated on July 9, 1974 in 39 F.R. 25292. The portion of the indirect source regulations covering parking facilities requires a preconstruction review of those parking facilities of specified sizes that have not commenced construction prior to January 1, 1975. These regulations are designed to prevent violations of the health-based ambient air quality standard for carbon monoxide. The effect of section 510 will be to prevent EPA from taking formal action on an indirect source application for a parking facility until the end of the fiscal year on June 30, 1975. It is not anticipated that this provision will have any effect on either existing state programs or those which may come into effect prior to July 1, 1975, nor do I view this section as a limitation on EPA's ability to make grants to States or to provide technical assistance when requested.
The second program potentially affected is the management of parking supply regulations which are part of the transportation control strategies in 18 metropolitan areas. The regulations require a preconstruction review of new parking facilities of specified sizes to ensure that they will not cause or exacerbate a violation of the carbon monoxide standard or be inconsistent with the oxidant control strategy. These regulations only apply to facilities which are to be constructed after June 30, 1975. Since the intent of section 510 is to delay implementation of parking control programs until July 1, 1975, enactment of this section would not require EPA to modify the regulations.
Sincerely yours,
RUSSELL E. TRAIN,
Administrator.
Mr. MUSKIE. Mr. President, in light of these assurances from Senator McGEE, I would suggest that the Environmental Protection Agency under this amendment would be required to republish any regulations applicable to parking lots which would become effective prior to June 30, 1975 – the end of the fiscal year to which this appropriation applies – to require any indirect source or other non-parking facility subject to EPA's regulations to demonstrate compliance with and maintenance of acceptable air quality standards without regard to the amount of parking available at such facility.
Mr. President, this language may cause concern from another perspective. It does not require and, in fact, may prohibit revision of any outstanding EPA regulations which relate to parking facilities until substitute regulations have been promulgated.
EPA is under court order to promulgate land use and transportation control plans which will assure achievement and maintenance of air quality standards. Regulations of parking facilities – parking lots – heretofore promulgated are in response to that court order. The court may, in its wisdom, and with justification, estop EPA from withdrawing or modifying any pending regulations until EPA has re-promulgated regulations which effectuate the same purpose as those that are aimed at parking lots.
Mr. President, regulation of parking facilities is but one tool available to the Administrator of the Environmental Protection Agency to achieve and maintain air quality standards. Authority to require permits governing the construction and location of facilities which generate vehicular traffic is another tool unaffected by this amendment. EPA's authority to regulate programs to develop mass transit, implement exclusive bus and car pool lanes, and encourage car pooling are also unaffected by this narrow amendment.
And, equally important, Mr. President, while EPA may not be able to administer a program regulating parking lots between now and June 30, 1975, a long range authority to do so is unaffected by this limitation.
Mr. President, the Senate has repeatedly expressed its will on the issue of clean air. The Clean Air Act of 1970 began in this body. Now in the waning hours of the 93d Congress, we are once again confronted with a gun at our head by the House Appropriations Committee.
I see no reason to take the time of my colleagues from other vital issues and to endanger the livelihoods of thousands of Americans dependent on this appropriation to provoke a confrontation with the other body on a matter the effect of which is de minimus.
Mr. President, my willingness not to press this matter and to permit this conference report to go to the President should not be construed by anyone as condoning the process which generated this amendment in the first instance. No matter how insignificant, this amendment is still legislation on an appropriations bill and is therefore unacceptable. The principle remains the same; only the circumstances which we face in the last hours of this Congress change the results.
The House Appropriations Committee has repeatedly utilized the appropriations process to attack and undermine the environmental regulatory process. For 3 years this appropriations bill has been accompanied, in the House, by either report language or legislation the effect of which is to try to amend substantively Federal environmental law. This process must stop.
I serve notice on the Senate that I will make every effort in the future to see that we are not again confronted, through the back door, with this kind of devious, uncalled for, ill-advised effort such as we see today.
Mr. President, the Subcommittee on Environmental Pollution is committed to review Federal environmental statutes. That review will continue next year. We will examine EPA's regulations on parking lots which are tentatively set aside by this language as well as EPA's regulations of shopping centers, sports arenas, highways, airports, and other facilities which are not affected by this amendment. By mid-year next year, we should be in the position to make recommendations to the Senate. I assure my colleagues that our recommendations will be based upon public hearings, public participation, and full legislative process.
Mr. BAKER. Mr. President, I have listened with interest to the statement of the very able chairman of our Public Works Subcommittee on Environmental Pollution and to his colloquy with Senator McGee, the able chairman of the Appropriations Subcommittee that is responsible for this bill. I agree fully with Senator MUSKIE's opposition to the inclusion of language in H.R. 16901 that would limit EPA's authority to spend funds on parking regulations under the Clean Air Act. As the ranking minority member on the Public Works Committee, I believe that the rationale for this position and the interpretation of the amendment's effect are definitively set forth in the statements and colloquy of Senators MUSKIE and McGEE.
This is the wrong amendment at the wrong time in the wrong legislation. It is the wrong amendment because it will lessen EPA's ability to achieve cleaner air through regulation of parking lots just at the time when the National Academy of Sciences and others have indicated that we need to achieve at least the existing standards to protect health. Reductions in automotive traffic through reduction in parking also will conserve energy and thus help our economy. It is the wrong time because certain of the affected regulations are still in court review and because the Public Works Committee, early in the next Congress, will be completing its thorough
process of review leading toward revision of the Clean Air Act where needed. It is the wrong legislation because certain of our colleagues in the House – instead of amending the Clean Air Act through the regular course of hearings on the substantive legislation – have fixed upon the inappropriate vehicle of cutting funds to gut a program which some of them find onerous in its side effects.
The saving grace of this amendment is that it is very limited in its real effect – as Senator MUSKIE has amply demonstrated. In the 94th Congress, we can act on the basis of hearings to remedy any damage and correct any deficiencies which this unfortunate amendment may have caused.
Mr. President, I think that we must keep in mind the considerable progress which the automobile industry has made under the Clean Air Act amendments of 1970 in controlling auto pollutants at the source. By 1978, if not sooner, we will have achieved about all that we can through emission controls. This means that, if we are to achieve clean and healthful air in our Nation's cities and towns, we must turn to controls on automotive transportation and concomitant development of public mass transportation to do the job. In this light, it is clear that we impose a more difficult burden on the Administrator of EPA when we direct him to achieve clean air that protects public health and welfare while taking away one of the tools – regulation of parking facilities – which he has to achieve that goal. For these reasons I oppose inclusion of the amendment in the conference report.
Mr. BUCKLEY. Mr. President, I appreciate the clarification on the impact of amendment No. 8 to the Agriculture-EPA Appropriation Conference Report which the Senators from Wyoming and Maine have provided to the Senate through their colloquy. As I understand the amendment, it does not prevent the Environmental Protection Agency from providing technical or administrative assistance to States whose implementation plans for meeting air quality standards happen to include local or State parking regulations.
I would also like to endorse the comments of my colleagues, Senator MUSKIE and Senator BAKER, in strongly objecting to the method by which the Senate is asked to accept amendment No. 8. There can be no doubt that the amendment is a poorly disguised effort to substantively amend the Clean Air Act, to eliminate a pollution control tool of which the amendment's sponsors do not approve. It has nothing to do with the expenditure of the taxpayer's money, and is inappropriate to an appropriations bill.
As the ranking minority member of the Environmental Pollution Subcommittee, I believe the issue of parking regulations is properly the responsibility of our subcommittee, which has oversight responsibility for the Clean Air Act and EPA's regulations thereunder. We are quite plainly in a better position to evaluate all of the evidence and make recommendations to the Senate on this and any other requirements under the Clean Air Act which might warrant reconsideration.
I, for one, am completely open to the scientific evaluations of this strategy as well as the economic arguments on the effects of parking regulations. However, this information should be presented to the Subcommittee on Environmental Pollution and our members should have the opportunity to make its evaluation and recommendations on this basis.
Such "back door" legislation, if allowed to proliferate, threatens the orderly consideration of important proposals such as this one and should be avoided.
Mr. McGEE. Mr. President, I move that the Senate recede from Senate amendment numbered 8.
The motion was agreed to.
Mr. McGEE. Mr. President, I ask unanimous consent that the conference table, which was included by the House of Representatives in the RECORD when it acted on the pending report, be incorporated in the RECORD by reference. This table states the results of the conference in tabular form, and shows the comparison of the conference action with the new budget.
The PRESIDING OFFICER. Without objection, the table will be incorporated by reference.
(See House proceedings of December 16, 1974, at p. 40222.)
Mr. McGEE. I ask unanimous consent that the provision of the law requiring that the conference report be printed as a Senate document be waived, since the report is identical to the report of the House, which has already been printed.
The PRESIDING OFFICER. Without objection, it is so ordered.