August 4, 1977
Page 26756
Mr. KENNEDY. In the letter from Mr. Costle, there is a rather revealing example of where these duplications have taken place and how, because of the failure of national applications, a particular national regulation was delayed and delayed, comprising the effective protection of valuable resources. Perhaps during the course of debate, we shall have a chance to examine this in detail.
Before concluding, I ask the distinguished Senator from Maine whether, in the Clean Air Act, for example, this type of provision — again that applied only to national standards — has been a workable and functioning provision. I ask whether there have been inequities and injustices which have been perpetrated because of that provision, or whether it has functioned well? Perhaps he can tell us from his experience with that legislation, as well as his understanding of the broader issues which are included in the legislation, whether he thinks that this is a workable solution.
Mr. MUSKIE. Yes. I say to my good friend from Massachusetts that I do support this amendment. It was considered briefly in the committee, then put aside on a list of items which we felt we would not have time to address fully. We did not resolve those issues, so they were not decided by the committee.
My own position is favorable to it for the reasons that I think were so well set out in the letter from Mr. Costle, dated July 21, 1977. It is a provision that is found in the Clean Air Act. It is applicable to nationally applicable regulations, as it should be.
A recent example of the kind of confusion that can develop without this kind of approach is provided in this example: In January of 1977, EPA promulgated toxic effluent limitations for six toxic pollutants. EPA was sued on three of these standards in the U.S. Court of Appeals for the Third, Fourth, Fifth, Sixth, and District of Columbia circuits. Five months were wasted in motions and other procedural activities before the case was finally consolidated in the District of Columbia court.
The effect of the Senator's amendment would be to consolidate such cases, in effect, in the District of Columbia court. I think there is great merit to his proposal.
With respect to the risk that the district court may be tilted one way or another, I think the Senator has correctly stated the record. There have been 19 cases which have been decided by the district court. Ten of those upheld EPA, and nine substantially reversed EPA. It is an evenly balanced court. On most issues, there are four liberal votes and four conservative votes, with the ninth as a swing vote in case of a tie. So it seems to me the forum to which these cases would be referred under the Senator's amendment would be a balanced one. There is also the benefit of easy access to EPA records.
For those reasons and the others which Senator Kennedy has so cogently stated, I personally support the amendment. But there is no committee position on it.
Mr. KENNEDY. I would be interested whether the Senator thinks injustices would be perpetrated on interests, for example, by requiring that they come to Washington to litigate. This is an argument that will be raised and made. Will the Senator not agree with me that most of the interests that probably would be affected, for the most part, either have offices here or, certainly, representation here?
We obviously have to be sensitive to that issue under any circumstances, but, as we have seen in legislation which has been considered previously, this has not worked much of a hardship. I wonder what the Senator from Maine thinks of that.
Mr. MUSKIE. My instinct on that question is the same as the Senator's. As I view the audiences which we have during markup sessions, I am under the very strong impression that every interest involved in every provision of the Act is effectively represented by somebody in that room, who had to get there by traveling from some other place in the country. They have no difficulty in doing so.
I think that the issues involved in regulatory legislation of this magnitude is of such importance to interests all over the country that they would be benefited by a uniformity of judicial interpretation. They would not be inconvenienced by the necessity to come to Washington.
On the other hand, they have developed a habit of coming to Washington. So I think that is not a significant argument.