June 10, 1977
Page 18459
Mr. SCOTT. Mr. President, a copy of the amendment, of course, is on the desk of each Senator, as is a copy of a "Dear Colleague" letter that has been on the desk for the past 24 hours.
I ask unanimous consent that this letter be printed in the RECORD.
There being no objection, the letter was ordered to be printed in the RECORD as follows:
JUNE 9, 1977.
NONDEGRADATION AMENDMENT TO S. 252
DEAR COLLEAGUE: My amendment to the Clean Air bill would retain the right of the Environmental Protection Agency to regulate air quality for the nation as a whole but would authorize states and localities to determine whether the air quality standards above those established nationally should be required to meet special conditions within a given area. A copy of the amendment should be on your desk.
In all probability there are areas throughout the country essentially rural in natural where the air quality is far higher than the primary and secondary standards established by the Environmental Protection Agency to protect the health and welfare of citizens generally. These areas may well be suitable for construction of business or industrial establishments necessary to promote our economic growth and to retain our present standard of living.
One county in Virginia, for example, has a population less than it had a century ago and the principal industry today is tree farming. This county is not many miles from the state capital and might well be a reasonable site for a business or industrial facility that would provide employment and still have air quality considerably above national standards. Where such a situation exists it would seem reasonable to permit the determination of land use to be made by the State and local government rather than by the Environmental Protection Agency.
No one would quarrel with the concept of a clean and wholesome environment but reason dictates that this be coupled with the ability of an industrial nation to continue to develop its economic capacity in the general public interest and both Federal and state governments should share in this process. Therefore, I hope you will examine and t support my amendment. Sincerely,
WILLIAM L. SCOTT, U.S.S.
Mr. SCOTT. Mr. President, this bill is a long and complex measure. The bill itself consists of 130 pages. It has a report containing 233 pages.
Yet my amendment relating to nondegradation is familiar to all of the members of the committee and I believe to most Members of the Senate.
The bill insofar as it relates to nondegradation is substantially the same as the measure that we had before us last year.
When Congress enacted the Clean Air Act some years ago, I believe it was intended to deal with air pollution problems on the Federal level. The act authorized the Administrator of the Environmental Protection Agency to set national standards and contemplated that States would develop programs to reduce pollution to the levels required by these national standards.
However, in a 4-to-4 decision in the case of Sierra Club against Ruckelshaus, the Supreme Court left standing a decision of the Circuit Court of Appeals for the District of Columbia which held that the act prevented significant deterioration in the quality of clean air even though the air quality was still higher than that required by Federal standards. The present bill before us would provide a statutory basis for the court decision and this is what my amendment is addressed to.
No one can quarrel with the concept that we need a clean and wholesome environment. Since our air is ambient, since it travels almost continuously from place to place, and does not stop at any State line, it appears reasonable for the Federal Government to require that the quality be high enough to protect the health and welfare of the people of the country. The Administrator of the Environmental Protection Agency has established primary and secondary standards to meet that need. I am concerned, however, about States and localities retaining the right to make decisions with regard to land use, the construction of homes, of shopping centers, of commercial and industrial complexes rather than to have those decisions determined by someone in Washington who may not be familiar with the local situation. It seems reasonable to me that the Federal Government should not make decisions of an essentially local nature with regard to air quality or act to prevent the construction of any facility so long as the standards established nationally to protect the health and welfare of citizens are met.
My secretary told me that in these prepared remarks that I had used this phrase "protect the health and welfare of citizens" on several occasions. I do that because that is the language that is used in the Clean Air Act and the Administrator does have the authority to raise these standards, lower them, to adjust them in any manner that he sees fit if situations change so that we will be protecting the health and welfare of the people throughout our Nation.
State and local officials, however, should be permitted to make decisions concerning localities and to establish higher standards when in their opinion this is necessary. I believe they are much better qualified to do so than for us in Congress to attempt to delegate the authority to make decisions affecting localities everywhere in the Nation. In my opinion, the nondegradation, or no substantial deterioration concept establishes a no-growth policy that could further retard economic development.
An editorial in this month's issue of Nation's Business stated that the United States produces 32 percent of the world's gross product, although we only have 6 percent of the population of the world. The economic strength and industrial power of this Nation has made possible the standard of living we enjoy and I doubt that Members of the Senate want to reduce the standard of living.
Yet, under our economic system that we enjoy, the economy must continue to grow and to expand or it will stagnate. We have to have new buildings, new industries, and expansion of existing ones. A no-growth policy, in my judgment, means economic recession and unemployment. I do not believe the Senate wants to stunt the economic growth of the country.
This amendment recognizes the need to protect and enhance the quality of the Nation's air resources. It recognizes the need to have national air quality standards; to protect the public health and welfare, but my amendment adds the phrase, "nothing in this act is intended to require or provide for the establishment of Federal standards more stringent than primary and secondary ambient air quality standards."
American citizens and people generally are pretty much the same. We all have a set of lungs operating in much the same fashion. All of us need a clean and wholesome environment. The Administrator of the Environmental Protection Agency will still retain the right to set standards high enough and to change them when necessary to protect the public health and welfare of the people of the country, but States and localities will have the right and the duty to determine whether air quality standards above those set for the Nation as a whole should be established and maintained. Planning and zoning has traditionally been a function of State and local government.
In my opinion, the determination as to whether a business or industrial complex should be established should remain under the control of the State and local governments so long as it does not interfere with the air quality standards set for the Nation as a whole.
There are many rural areas of our Nation where there is little business or industry. Farming, forestry, and generally nonpolluting activities are still carried on in large areas of the United States. Yet, the people of those localities should have the right to say whether they want a factory to be constructed, rather than have the decision made for them by an unelected Federal official in Washington.
Mr. President, when we were considering the clean air amendments last year, the Wall Street Journal wrote an editorial comparing the effect of nondegradation to the weight of an individual. The editorial states:
Imagine that Congress passes a law, and an appropriate agency issues a regulation, that prohibits adult male Americans from weighing more than 200 lbs., on the grounds that excessive weight is both unhealthy and unattractive.
Then imagine the little people's lobby wins a Federal court ruling that even skinny teenagers weighing 120 lbs. aren't allowed to add any significant weight, on the grounds that this is what Congress seemed to have intended when it passed the law.
Imagine further the outrage of those who think the court ruling to be nonsense — because it bears no relation to either health or attractiveness, and in error — because Congress didn't intend to starve skinny teenagers when it passed the legislation.
Mr. President, quotation of a portion of the July 26, 1976, editorial seems to illustrate the point I have been trying to make. The rural areas of our Nation need to continue to grow, to become industrialized if they want to, to provide additional employment for their people if this is needed, and so long as the Nation as a whole is not harmed by the actions taken by the States and localities it would seem reasonable for the decisions to be madeat the local level. This is in accord with the Federal concept of government, the concept of dual sovereignty established
by our forefathers.
We live in a nation that is diverse, a nation with people of various backgrounds, a nation that has both urban and rural areas, vast national resources — a nation where individual initiative is encouraged, and an industrial giant has developed that produces 32 percent of the world's gross product.
It seems unreasonable to throttle that growth by a nondegradation policy.
If my amendment is adopted, the national standards will be retained but localities can determine whether the skinny teenager will be permitted to grow to adulthood, whether the economic
growth of our rural areas will be permitted, whether there will be economic expansion rather than stagnation. I do not believe there is anything complex about this proposal. National standards of air quality would continue to be made at the Federal level, but so long as those National standards are met States and localities could determine for themselves whether or not they wanted to expand their economies.
Mr. President, I believe that any further statement on my part would only tend to cloud the issue. This is not a new subject. I have copies of various letters and various editorials that have been inserted in the RECORD in the past, and I do not wish to clutter the RECORD by reinserting them. I do ask that each Senator examine the amendment. I hope Senators can support it.
The entire purpose is to retain the ability of our industrial Nation to continue to develop its economic capacity in the general public interest, while retaining a clean and wholesome environment.
Mr. President, I ask for the yeas and nays on my amendment.
The PRESIDING OFFICER (Mr. HASKELL). Is there a sufficient second? There is not a sufficient second.
Mr. SCOTT. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The 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, the amendment of the distinguished Senator from Virginia, I believe, is the same as the amendment that he offered last year, essentially.
Mr. SCOTT. It is substantially the same; the Senator is correct.
Mr. MUSKIE. If I may characterize it, and I think the Senator himself has done so, what it does is establish the Federal primary and secondary ambient air quality standards in clean air areas as a substitute for the nondegradation provisions of the committee bill.
In other words, there is the assumption in the Scott amendment that the primary and secondary standards applying to the dirty air areas of the country are sufficient for the clean air areas of the country.
Why is that not so? First of all, may I say to the Senator and to the Senate, we do not regard those standards as adequate in the committee, for reasons that I will try to outline.
In the first place, the national primary and secondary standards were set for dirty air areas as the minimum necessary and the minimum reasonably attainable in the dirty air areas, in order to put them up to minimal health standards. They are not ultimate; they are not maximum; they are minimal. And, if I may highlight this, testimony on the health question over the last 7 years over and over again has made the point that there is no such thing as a threshold for health effects. Even at the national primary standard level, which is the health standard, there are health effects that are not protected against.
Long term, low level exposure to pollutants produce health effects which are not guarded against by national primary standards. We would have to get down to zero pollution in order to eliminate all health effects. At any level between zero pollution and the pollution permitted by national primary standards, there are health effects.
Let us not disabuse ourselves on that score. Unless we bear that in mind, if we set national primary standards as the nationwide standards in clean air areas, we are saying that in clean air areas we are deliberately willing to throw that health protection away.
What we are saying in the committee bill is, "Let us not throw it away at the beginning of the game, but let us, in a rational way, approach the question of how much of the air quality values of the clean air areas of the country we give away."
So even on the health question, national primary standards, in my judgment, coming from a State which is reasonably clean, are not the standards I am willing to accept as the ultimate protection for health in the clean air areas of my State.
Mr. SCOTT. Will the Senator yield at that point?
Mr. MUSKIE. I am happy to yield.
Mr. SCOTT. The Senator, of course, is the chairman of the subcommittee and is very familiar with this bill. I would ask if the word "minimal" appears anywhere in the statute. He refers to minimal health standards. It is my understanding, and I would ask to be corrected if I am mistaken on this
Mr. MUSKIE. The Senator is correct, but I believe it is appropriate for me to describe how we arrived at the health standard in the bill.
Mr. SCOTT. Certainly. But I would ask if the Administrator of the Environmental Protection Agency, even if my amendment should be adopted, is not still authorized to set primary and secondary standards which are necessary to protect the health and welfare of the people of the country? The word "minimal," I submit, is misleading. He can raise the standards or lower them.
Mr. MUSKIE. It is because the word "minimal" is a very difficult one to define that we did not put it into the statute, may I say to the Senator. Does the Senator believe that a Senator ought to close his eyes to the fact, supported by pages upon pages of testimony before the committee, that below those health standards there are still health effects, and serious health effects, for many people?
The Senator may choose to close his eyes, but I cannot close my eyes.
The second point I make in response to the Senator is if the Congress were to adopt the Senator's amendment and, in effect, say to the Administrator in the judgment of the Congress the national primary standards arrived at, as I have described, are sufficient for the clean air areas of the country, what possible basis, politically or otherwise, could he use to justify a stiffening of the primary standards in the nonattainment areas of the country which are already struggling in order to achieve a balance between their needs for growth and their citizens' needs for health?
Once we say to him, "The primary standards now established are sufficient for the clean air areas of the country," which could do better, then what possible justification could he use that he could expect the Congress to support to impose stiffer standards?
Mr. SCOTT. Mr. President, if the Senator will yield further — my amendment does not in any way affect the action of the Administrator of the Environmental Protection Agency insofar as national standards are concerned, standards which would apply throughout the country. The amendment says that nothing in the act is intended to require or provide for the establishment of Federal standards more stringent than primary and secondary ambient air quality.
Mr. MUSKIE. Have I described the Senator's amendment in any other way than the language of his own amendment?
Mr. SCOTT. In the event the Administrator feels it is necessary to require higher standards, if circumstances changed, he would still have the authority to change the standards insofar as they apply on a nationwide basis.
Mr. MUSKIE. May I say to the Senator that the constraints on the Administrator which resulted in the present primary standards still exist. The necessity for balancing health requirements against the need for growth still exists. If more stringent standards are applied by the Administrator, they will apply to the dirty air areas and the clean air areas alike, under the Senator's amendment. So the constraint still exists.
If the Congress has said to him in the meantime that the present primary standards are good enough in the clean air areas, which are in a better position than the dirty air areas to do better, I submit to the Senator the Administrator is not likely to do anything more than to try to continue to protect what he has already done, the standards as they exist. That is the way I would react if I were the Administrator.
Mr. SCOTT. Will the Senator yield?
Mr. MUSKIE. I yield.
Mr. SCOTT. I am thinking about an area such as we have in King and Queen County, Va., an area where the principal industry, I believe, is tree farming. I suppose there must be thousands of counties throughout our country where they have no major industry. Suppose the people of these areas would want to construct a factory, and they would construct a factory which would have a degree of pollution. Yet the factory, if established, would not interfere with maintaining the Federal standards.
Should not the people of the locality be permitted to determine whether or not they want a factory?
Mr. MUSKIE. If the Senator will yield, if he will let me complete my opening statement, he will find that I am going to touch upon that very question. The Senator wanted to interrupt me for the purpose of examining the health question, and I am perfectly happy to do that.
When I finish the next point, I will be happy to yield to him at that time. I believe it would be helpful if I could lay out my exposition in the way I started. With respect to the health question I believe I have covered the point.
The second point I would make is the assumption of the Senator's amendment is that there are no air quality values other than those protected by national primary and secondary standards which need protection; that if we can achieve those across the country, and if we set them as national standards, that would be the maximum. The Congress would be saying to the country, "That is good enough for every square inch of this country for the future." so if the country as a whole, in increasing its industrial and productive activity, its polluting activity, moves up to the national primary and secondary standards, that is a good enough quality of air in every square inch of this country for the indefinite future.
I submit if there was some way of exposing all 220 million people of this country to an urban area of this country which barely hovers at the national primary and secondary air quality level, the people of this country would overwhelmingly reject it as a standard sufficient for them.
Why do we need something better than the national health and national welfare standards as embodied in the primary and secondary standards?
Mr. President, secondary standards were envisioned as a goal for the cleanupof dirty air areas. They were intended to identify the degree to which pollution needed to be reduced to stop damage to crops, to household plants, to buildings, and general aesthetic deterioration.
Secondary standards as promulgated did not address ecological and aesthetic values.
EPA apparently assumed that if secondary standards had been established to protect these values, their achievement in dirty air areas would have been virtually impossible in any reasonable time frame.
So those values in dirty air areas are not protected by secondary standards.
The nondegradation provision is intended to provide protection against harmful environmental effects not anticipated by secondary standards and to assure that a single, new major emitting facility will not consume the entire regional air resource, thus barring any future growth.
For example, if the secondary standards were the only restraint on new sources of clean air areas, visibility, which is now 100 miles or more — and that is a valuable resource in some of our Western States — 100 miles or more in some areas could deteriorate to 12 miles.
If humidity happens to be high, visibility would be reduced even further.
Now, while visibility may not be important in dirty air areas because it has been absent for so long that people do not remember what it was like, it does have high public value in many clean air regions, particularly in the national park areas, and should have been protected by secondary standards, but is not.
Another example of the inadequacy of secondary standards is the increasing number of studies indicating that pollutants were transported for much greater distances than previously thought.
This means that emissions from sources in rural areas contribute to urban problems, and vice versa.
In its report to the Senate Public Works Committee in March 1975, the National Academy of Sciences expressed concern that emissions as far away as 300 miles could contribute to unhealthy air in major cities.
Sulfur oxides, Mr. President, increasingly are returning to the ground in the form of acid rain which damages valuable water and soil resources.
Great Britain, for example, has used tall stacks to lift pollution above the level of the people in the immediate vicinity. What is now beginning to appear is the transport of those pollutants to the Scandinavian peninsula with the production of acid rain and other pollutants which are damaging the air qualities and the potential growth in that peninsula.
The same thing is happening in this country. Acid rain is being generated in the industrial areas of the country and being transported to the wild natural areas of northern Maine. This is happening in northern Vermont, in New England. It is happening elsewhere.
We are learning that polluted air is not a local matter. It is generated in one place and moves to another place.
So the idea that if a community interested in growth for its own sake narrowly circumscribes and safeguards that growth, it has eliminated the air pollution consequences of that activity is simply not part of the real world.
A conference was held in the summer of 1975 in Columbus, Ohio, where many scientists expressed concern over this impact.
They noted particularly the experience of Norway, which has experienced a substantial decline in its fishery resources, which has been attributed to acid rain.
A 20 year study in Scandinavia indicates that acid rain has killed fish and caused an ecological change. Forest growth and yield have declined.
The Senator indicated an interest in the tree farming activities of his own State.
Pollution levels at the national primary and secondary standards can affect forest growth and forest yield.
Fish populations have been adversely affected by acid rain in 75 percent of the high elevation lakes of the Adirondack Mountains.
Pollution at less than the concentrations allowed by the national secondary standards have been proved to damage vegetation. Acute injury to spruce trees has been reported when average concentrations of sulfur dioxide were only two-thirds the level allowed by ambient secondary standards.
Studies indicate that other crops are also damaged at concentrations less than the secondary standards, including, Mr. President, wheat, potatoes, spinach, apples — an important crop in the Senator's State — and the white pine.
Exposure to low level concentrations of pollutants, as indicated earlier, does have health effects.
Studies done in Japan since the establishment of primary standards in the United States indicate that air pollution concentrations lower than the national standards cause increases in reported illnesses.
The National Cancer Institute estimates that 60 to 90 percent of cancer is environmentally caused.
The ambient standards as presently established, Mr. President, do not include consideration of these facts.
The nondegradation amendment is intended to help reduce overall emissions and thus provide protection against these kinds of adverse effects.
The Senator deplores what he describes as the effect of the nondegradation provision in taking decisionmaking away from State and local government and concentrating it at the national level.
Now, what does the bill do? The bill provides protection for class 1 areas, national parks and wilderness areas. I assume that when we established those areas, going back years ago, that it was a national decision to protect the natural qualities of those areas. Some of those were established at a time when air pollution as a threat was not recognized.
But, nevertheless, today we understand that air pollution is a threat to the pristine natural qualities of these natural parks and wilderness areas.
So this bill does provide protection for national park and wilderness areas.
There are a great many other national monuments, historical sites, and so on, that are not included in the class 1 protection. Maybe they should be. There are those who believe they should be, but we have not done so in order to minimize the kinds of fear expressed by the Senator from Virginia.
With respect to other areas, they are classified as class 2 areas. The Senator seems to describe those as areas in which the States have no authority.
Mr. President, the States have the authority to decide on siting decisions. Where are we going to build power plants? The State decides that. Where we are going to build new paper mills? The State decides that.
Yesterday I put in the RECORD a letter that had been written to the distinguished Senator from Vermont by the Environmental Protection Agency in January of 1977. It indicates the kind of industrial activities that are permitted in class 2 areas and as to which the State has the authority to make the siting decisions.
Let me read some of them: Power plants, coal cleaning plants — otherwise called thermal dryers, Kraft pulp mills, recovery furnaces, portland cement plants, primary zinc smelters, iron and steel metallurgical furnaces, primary aluminum ore reduction plants, primary copper smelters, municipal incinerators, sulfuric acid plants, petroleum refineries, lime plants, by-product coke oven batteries, sulfur recovery plants, carbon black plants.
I do not know how many of those the Senator's tree farmers would like sited in the middle of their tree farms, but it seems to me that they have ample choice. When one considers the choice of activities that are less polluting than these, the range is pretty wide and the decisions as to which of those should be permitted is a State and local election. It is not a decision that is made by this bill. So the siting decisions are made at the State and local level. That is an important State authority.
Second, the bill requires that the best available control technology be used to minimize the polluting effects of activities of this kind.
I cannot believe that the Senator would agree that a new power plant or a new coal plant located near his tree farms should not take advantage of the best technology available to minimize the emission of pollutants in his tree farms. In any case, the kind of best available control technology to be installed is, again, a State and local decision. The State decides as to whether there should be new class 1 areas, whether those new class 1 areas are Federal lands of one kind or another or State parks and areas that the State has protected. The State alone decides whether or not to include those areas, to add them to the class 1 protection of the bill. So a good deal of State authority and State responsibility are required under the provision of the committee bill. I think that is as it should be.
However, to say that the standard of air quality which circumstances have mandated for years in cities such as Los Angeles, Chicago, Philadelphia, and NewYork, in order to provide minimal protection for health, is good enough for the Senator's tree farmers or for my own natural areas in Maine, I submit, is not and would not be wise national policy.
That is the gist of the committee's position on the need to do something better.
(At this point, Mr. LEAHY assumed the chair.)
Mr. President, I conclude with this observation: I have been involved in writing environmental laws for 14 years; and one of the great frustrations that we faced in writing those laws was that much already had been done in building this country and this industrial structure which created unacceptable pollution which could not be undone. Nobody could seriously suggest that the way to move into the pollution problems of Los Angeles, Chicago, Philadelphia, and New York is to destroy those polluting activities which cause excess pollution over the primary and secondary standards. Nobody could seriously suggest that the way to get New York down to the standards that the Senator from Virginia advocates for the country is to move in there and to close plants, close down power generating facilities, close down shopping centers which attract automobiles. Everybody knows that that would be an unreal answer to the problems of the dirty air areas of this country. It would bring the economy to a halt, create massive unemployment, and destroy our ability to deal with the very problem we are seeking to cure.
So the Committee on Environment and Public Works — some distinguished Members of this body have served on that committee during those 14 years, Members ranging from the liberal to the conservative — long ago concluded that one thing we could do was to insure that the mistakes which created the problems of Los Angeles, Chicago, New York, and Philadelphia would not be repeated as other areas of the country sought to grow and to provide futures for their people.
If we are to return to the kind of philosophy that produced those mistakes — the philosophy of "Let anybody do what he wants to until he gets up to the national primary and secondary standards" — we are going to be faced with the same condition again.
I remind the Senate that the nondegradation provisions apply only to major emitting facilities — those facilities that can produce a hundred tons or more of pollutants a year. Below that level in nondegradation areas there are going to be all kinds of other pollution generating activities going on: the building of homes, the building of main street businesses, small activities. All those are going to be served by automobiles. The degree to which automobiles contribute to growing pollution problems in nondegradation areas of the country depends, of course, upon how soon the automobile industry cleans up the car. It has not displayed a great sense of urgency about that.
Yesterday we extended the time some more. But all those things which are not regulated directly under the nondegradation provisions of this bill are going to be generating pollution and, in the process, limiting the capacity of clean air areas to grow much more than is done by the committee bill. The committee bill does not do anything to restrain those activities.
All we are trying to do, I say to the Senate, is to insure, in a way that may not really be very effective if the truth be told, that the major industrial polluters will be put in place in response to some rational policy — a policy that is triggered by national standards, but a policy that will be implemented in large part by State and local governments.
I believe that is a reasonable approach. It is an approach that would permit the building of a 1,000 megawatt power plant in my State — more than one. We do not have any that large at the present time. So I do not regard that as much of a restriction. It would permit the duplication of the largest pulp and paper mill in my State. We have some now which are pretty large. It would permit their duplication. We have more than 20 pulp and paper mills. They all could be duplicated in my State, under the nondegradation provisions of this bill.
I say to the Senator that if he wants a 5,000 megawatt power plant in his tree farms, that could be permitted, that might even be permitted, under the provisions of our bill, provided it is not located in a valley between steep hills, provided it is built on flat terrain and there are not other constraining considerations. But how many places want a 5,000 megawatt power plant in their neighborhood, even if it were permitted? I do not know. That is a question for the Senator to answer.
Plants smaller than 1,000 megawatts have been adequate for our needs in northern New England. Frankly, I think that, in terms of assuring the viability and efficiency of electricity distributing systems, it is better to distribute the generation of power in smaller plants. But that is a decision for the States to make, under the constraints of air quality, minimal air quality, and under the constraints of terrain.
Now, the bill did not create the constraints of terrain. We did not build the mountains of Maine, we did not create the mountains of West Virginia, we did not create the mountains of western Virginia, we did not create the Rockies or the Alleghenies, the Appalachians. God created them, and they do impose constraints with respect to air quality that God did not create when he built the desert or the plains. But those constraints exist whether or not this bill is passed. Those constraints obtain, and anybody who lives in the mountainous areas of this country who does not pay attention to them just does not care about the health of his children, because if you build a dirty polluter in the bottom pit of a valley you increase the risk to health, and you attract, of course, others.
That is the philosophy behind the nondegradation provisions. If the Senators are willing to accept, in light of all of these considerations, national ambient primary and secondary standards as adequate, adequate in all respects for health, welfare, other air quality values that the people of this country prize, then they will vote for this amendment. If they agree with me that the ambient primary and secondary standards are not adequate in all cases, then they will oppose the amendment of the Senator from Virginia.
The PRESIDING OFFICER. The Senator from Virginia is recognized.
Mr. SCOTT. Mr. President, the distinguished Senator from Maine, who is very familiar with the air quality law, has expressed his views that are considerably different from my own, and I would really not recognize my amendment from the description given it by the distinguished floor leader of the bill.
I think, perhaps, it might be well to turn to the act itself very briefly to determine what the existing law is. If we look at page 143 of the report we find that Congress had delegated to the Administrator of the Environmental Protection Agency the right to establish national primary and secondary air quality standards, and then the primary ambient air quality standards are described as "air quality standards the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health. Such primary standards may be revised in the same manner as promulgated."
Now, Mr. President, this gives the Administrator considerable authority. I would submit that the air quality necessary to protect the health of an individual in the State of Maine and in the State of Virginia are essentially the same. Whether we live in Maine or Virginia or some other part of the country we have to breathe, we need the same clean air in one area of the country as we need in another area, as a general proposition.
But it goes further and then defines secondary air quality standards, and it says the secondary ambient air quality "shall specify a level of air quality the attainment and maintenance of which in the judgment of the Administrator, based on such criteria, is requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air. Such secondary standards may be revised in the same manner as promulgated."
The distinguished Senator from Maine did comment on the secondary standards. I would also call attention to the provisions of the law in 42 U.S.C. 1857c4,section 109, which reads as follows:
All language referring to effects and welfare includes but is not limited to, effects on soils, water, crops, vegetation, manmade materials, animals, wildlife, weather, visibility and climate, damage to and deterioration of property, and hazards to transportation as well as effects on economic values and on personal comfort and well being.
I would not disturb in any way the authority of the Administrator to set these national standards. My only thought is that insofar as the Federal Government is concerned, the standards should be the same all over.
Mr. MUSKIE. Mr. President, will the Senator yield?
Mr. SCOTT. In just 1 minute, if I may.
But the States can provide higher standards to meet local situations. Under my amendment the States would be permitted to provide higher standards.
The distinguished Senator referred to the national parks and to the national forests and his desire to protect those national parks and national forests.
I can share his concern. But the Federal Government owns this land. The Federal Government controls this land. Even before the act was passed the Federal Government, as the proprietor of this area, and undoubtedly it had not only proprietary jurisdiction but it even went further and had police jurisdiction over many of the national parks — maybe not the national forests — and I would not quarrel with the desire for pristine air quality, but if we take another example and, being familiar with my own State, I think about the valley of Virginia.
Up in the mountains we have Skyline Drive, we have Shenandoah National Park, we have a number of parks going all along the valley which goes through Virginia, and if we adopt this bill, this will provide that we cannot establish industry in the valley where some of the pollution might come over and damage the pristine areas of these parks and these national forests. Now this is a matter that concerns me. I do not believe we need to have the parks and the forests so protected that we cannot construct industry in the valley of Virginia.
What I say of my own State is, I am sure, true of various States throughout the country.
Yes, I will be glad to yield to the distinguished Senator.
Mr. MUSKIE. First of all, may I say to the Senator I wish it were possible for the Administrator to set national primary and secondary standards that fully implement the statutory language which the Senator has read.
But if it were done with respect to the nonattainment areas of this country he would impose unacceptable kinds of restrictions. To demonstrate how unacceptable they are, I can only point to the fact that the Senator, in his amendment, finds them unacceptable for the clean air areas. He says we should have nothing more than the standards as now established. The fact is, as testimony and documents disclose, the standards do not fully protect in accordance with the statutory language which gives the Administrator authority to provide for additional protection.
He has had to make a pragmatic judgment in the face of the fact that he found there is no threshold on health effects, which makes it very difficult then to apply absolute health protection, and he has not been able to do that.
Second, to set a standard that protects crops in New York City is a hardly realistic standard for New York City.
So he has not set a secondary standard that protects crops. That is one of the reasons, may I say to the Senator, that we have found it necessary to provide the nondegradation standards.
Second, on national parks we are not really talking about prohibiting activities within the parks. Of course, the Federal Government as the owner of those parks can prohibit those. We do not need additional legislation to prohibit that. There is only one park in which the Federal Government finds itself somewhat hamstrung, and that is Hot Springs National Park in Arkansas, which is the middle of a city. You cannot do very much about that aspect of it. What we are concerned about are activities outside the land areas owned by the Federal Government in national park and wilderness areas which can intrude upon the values that we seek to protect within the park.
Let me cite a personal experience, if I may, to the Senator. A year ago last January, when I had launched my campaign for reelection I was up in northern Maine and it was about 6:30 in the morning. That was a very sparsely settled area of our State. It was 42 below zero. I took off in a small plane at an airport on top of the coldest hill in the eastern part of the United States. When we were up several thousand feet we were over thousands of square miles of Maine wilderness areas. There were nothing but trees. There were no public roads, no towns, and no mills. There were not even lumber mills or wood turning mills below. It was an absolute wilderness. As the sun came up there was smog over that area. That was not created below. It was not created in the tiny little town that I had left 100 or so miles behind me.
Mr. SCOTT. Maybe it came across the Canadian border.
Mr. MUSKIE. It moved in from industrial areas of the country outside of the borders of the State of Maine. I was shocked to discover it. But it happened. If it can happen in those distances from industry, because that part of Maine is a long, long way away from the industries of Boston and Chicago and Pennsylvania, if it can happen that far away, then one perhaps can understand why we are concerned as to what kinds of activities should be located 5, 10, 15, or 20 miles outside a natural area. That is what we are concerned about.
As I say, depending upon the size of the plant, the technology that they are able and willing to use, and the terrain in which they are sited, those activities can be located quite close to class I areas without creating dangers. Even if technically there may be a violation of the class I increments within the park area, the people who propose to build a plant can apply for consideration of the application for a permit on the basis that the damage would be to air quality values nonexistent. So there is opportunity and some flexibility even close to some of these class I areas which the bill seeks to protect.
Mr. SCOTT. Mr. President, the distinguished Senator actually is making the point for me, that under the bill as reported by the committee the Federal Government would control land areas in private ownership adjacent to or near national parks and national forests.
Mr. MUSKIE. If the Senator will yield, that is not what the Senator from Maine has said.
Mr. SCOTT. As I understand it.
Mr. MUSKIE. I said earlier that the siting decision is within the control of the State; the State handles the procedure which I have just described.
Mr. SCOTT. The Federal Government does not play a part in this?
Mr. MUSKIE. The Federal Government is interested in the overall limitations of class 2 areas. If the Senator suggests, in order to avoid any Federal intrusion we do not have a Federal law, of course the bill does not go that far. But to say that it is total Federal control as a result is also an extreme.
Mr. SCOTT. The Senator says somewhere between total and no control.
Mr. MUSKIE. I say it is the responsibility where the initiative rests with the State and where the burden rests on the State. That is not to say there is no responsibility at the Federal level.
Obviously if we set Federal standards there is some responsibility at the Federal level. The Federal decision makers are also bound to consider the provisions for flexibility which are written into the statute, and we would expect them to be so bound.
Mr. SCOTT. I have no objection to the Federal standards that are equally applicable throughout the country. But is it not true under the amendments that are being offered today that we would write into the law the interpretations by the court in Sierra Club against Ruckelshaus that is not now statutory law? We are by the passage of this bill putting into the law the things that the court said in Sierra Club against Ruckelshaus. Is that not generally true?
Mr. MUSKIE. I think that is too broad a generalization to make considering the definition of the class 1 areas and the procedures we have written in.
Mr. SCOTT. The nondegradation clause.
Mr. MUSKIE. I mean the authority we have delegated to States and local governments. Those kinds of things were not anticipated in the Sierra Club decision to the best of my knowledge, although I will say to the Senator I did not memorize that decision and I do not have it in mind, and the Senator has it before him. So anything I say is sort of like shooting fish in a barrel. The Senator may find the phrase in that Sierra Club against Ruckelshaus decision which will undermine my answer. But as far as I recall the Sierra Club against Ruckelshaus decision does not set out the structure of this bill. It does not set out the delegation of authority laid out in this bill or the increments which were involved by EPA under its regulations.
But aside from the increments, which are not the whole bill, by any means, and the definition of the area to which they apply, I think the bill contains important changes.
Mr. SCOTT. Mr. President, I was not trying to put the Senator in a box. I have not read the decision myself recently.
Mr. MUSKIE. It would be the Senator's prerogative to so do if he wanted.
Mr. SCOTT. I have not read the decision myself for a year or more. But I do believe, and I believe the Senator would agree, that the nondegradation provision is similar to what the Supreme Court said.
Mr. MUSKIE. Yes. The objectives of both are the same.
Mr. SCOTT. And we would not put into statutory law at least a portion of the decisions of the Sierra Club against the Ruckelshaus decision.
Mr. MUSKIE. But all the remaining provisions of the bill are important attempts to implement those increments in the real world.
We are asked and begged to do so by industry, when we first began hearings, because they otherwise foresaw the possibility of ad hoc dealing with this question by the courts on a case by case basis with the long stretched out period of uncertainty, if we were to leave it to EPA regulation and the court's interpretation.
Now, we could leave it at that, and frankly I was tempted last year, when we got into this wrangle about nondegradation, to say, "Let's forget it and let EPA and the courts handle it."
But I do not really think that is in the public interest, or the interest of industry. I think we need some certainty here, and I think also we need to have a significant State role in implementing it.
We have tried to write a significant State role into this measure, and I think we have. But if one's definition of a significant State role is no Federal role at all, then we have not done that.
Mr. SCOTT. Mr. President, as the Senator knows, I am not trying to say no Federal role at all. I am saying that the Federal regulations should be the same all over the country, and apply equally all over the country. That is what my amendment says.
But it does provide that the Federal Government would not have the authority to establish Federal standards more stringent than the primary and secondary ambient air quality standards. We would leave that up to the State governments.
The distinguished Senator spoke of the conditions in New York. I would call his attention to the situations as they exist in Los Angeles. I believe that in a local area where they have particular air quality standards, the State government and the local governments do impose more stringent control.
I feel that this is the way it should be. The Senator from Maine referred to the fact that areas adjoining a national park or a national forest, if they cared to construct industry, could apply to the Federal Government for a permit, a permit from the Federal Government to construct some industry.
Mr. President, in my opinion we have more than enough Federal regulation of the business community and of the lives of our citizens, and I do not feel that we need more.
I have some question in my mind as to whether or not we are going to have further lawsuits in the event that this bill is enacted. We all know that in our Constitution, under the fifth amendment, we have a provision with regard to eminent domain. We know the prohibition that is put in the Constitution, which says "nor shall private property be taken for public use, without just compensation."
I wonder if someone is not going to raise the question of whether or not Federal control of the use that they can make of their land might not constitute a taking under the fifth amendment to the Constitution for which the Government would have to pay.
We know that Shakespeare said, if the Senators will permit me to finish my thought:
You take my property when you take away my right to use of it.
If we are going to be telling the owner of property in the valley of Virginia or anywhere in the country that he cannot use his property, and we are going to make his use different from what other people can do with their property in other parts of the country, it may be that we will have some court decisions to determine whether or not that is a taking.
The whole thrust of my amendment is to have the law equally applicable throughout the country, with the same air quality standards set by the Federal Government, and then the States and localities could establish higher standards to meet specific local situations, as the one in the California case.
Mr. President, I know the distinguished Senator from Maine wants to respond to the comments that I have just made.
Mr. MUSKIE. Yes.
Mr. SCOTT. I do not know but that we have an irreconcilable difference of opinion on this issue. I do not see that we can add a whole lot to what has been said. I am willing to yield back the remainder of my time after the distinguished Senator from Maine makes his remarks, in the event that he is, unless he raises something that I would like to respond to.
Mr. MUSKIE. I thank my good friend. Incidentally, let me thank the Senator for what I think ought to be a good and useful record to illuminate the differences which he and I hold, and which I am sure are shared on each side of the argument by other Members of the Senate. I think it is a good record. It has given me an opportunity to respond to some questions that other Senators and other people have put to me, so I think the record will serve a very useful purpose, whatever the outcome.
Let me say, in respect to the constitutional question which the Senator has suggested: Since the Senator, by his amendment, argues that the States ought to establish the stricter standards, then, if the States should so act, I assume that if there is an unconstitutional taking, suits might be brought against State governments, just as they might be brought against the Federal Government under the committee bill. After all, a taking by a government is a taking by a government, and if it is an unconstitutional taking it is an unconstitutional taking whether or not the Federal Government is involved.
Another point he makes is that the Federal ambient primary and secondary standards have the effect of limiting the use of property. If so, that would be just as subject to unconstitutional taking suits against the Federal Government as if the nondegradation standards applied. So the argument, if there is one, is not limited just to the nondegradation provisions of the bill.
Mr. SCOTT. Mr. President, the Senator may well be right on that. In fact, the Virginia law provides for either a taking or damage; it adds the phrase "or damage" that is not contained in the Federal law. So the State law might go even farther than the Federal law with regard to the taking of property.
Mr. MUSKIE. I thank my good friend. I am prepared to yield back the remainder of my time. I wonder if we might suggest the absence of a quorum to get enough Senators to have a sufficient second for a roll call.
Mr. SCOTT. Mr. President, I have nothing further to say. I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. MELCHER). The clerk will call the roll.
The 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. SCOTT. Mr. President, I ask for the yeas and nays on my amendment.
The PRESIDING OFFICER. Is there a sufficient second? There is a sufficient second.
The yeas and nays were ordered.