August 8, 1978
Page 24849
Mr. MUSKIE. Mr. President, I regret that it is necessary to take the time of the Senate to deal with this problem. I have been addressing myself to the sponsors of the amendment and its coauthors the whole day, at the same time that I have been trying to resolve a New England problem involved in this bill. I have not succeeded in resolving either one, which says something about my persuasiveness, I guess.
It was my desire to try to accommodate the basic objectives of Senator CANNON and the other cosponsors of the amendment, and at the same time try and serve some other interests that I think are valid.
Basically, as I understand it — and at some point I am going to raise a point of order to the amendment — if I may make this parliamentary inquiry, I take it that may precede the making of a point of order by appropriate remarks without losing my right to make the point of order later?
The PRESIDING OFFICER. The Senator is correct. Once the Senator has made the point of order, however, the point of order itself is not debatable.
Mr. MUSKIE. As long as that is understood, I have no objection to whatever discussion the sponsors of this amendment may like to engage in, after I have made what I hope will be brief remarks. I make these remarks only for the purpose of making the RECORD clear as to my reasons for getting involved in this problem which affects the far western area of the country, and not my region.
The PRESIDING OFFICER. The Senate will be in order.
Mr. MUSKIE. I am sympathetic to the basic objectives of the sponsors of this amendment, but I have some difficulties which will appear.
The difficulties arise, Mr. President, under the National Environmental Policy Act. That act originated in the Senate Committee on the Interior. There was considerable debate on that piece of legislation at the time, and one of the amendments offered on the floor came out of the Senate Committee on Public Works, as it was described at that time, which resulted in the requirement for an environmental impact statement to accompany any action or any decision of the Federal Government which might have an impact on the environment.
The motivation in the Public Works Committee was very simple. Time and again, we were asked by witnesses, as we considered environmental legislation, why it was that we imposed these requirements on private business and private citizens, while the Federal Government, through its activities, completely ignored the same laws and were not subject to their discipline. Witness after witness would bring to our attention military bases, Federal buildings, and other Federal activities which violated the environmental standards that we were seeking to impose upon the private sector and the rest of the country.
So the committee struggled over a number of years to find a handle on it. Appropriations Committees would not provide the money to install waste treatment facilities to prevent emissions into the atmosphere. In other words, the Federal Government was held up, time and again by witnesses in our hearings, as a bad environmental citizen.
So all we did, when the Environmental Policy Act was enacted, was to require that whenever major Federal actions or decisions might impact upon the environment, that that impact must be assessed and evaluated before the decision or the action goes forward. The environmental impact statement has no operative effect. An environmental impact statement can be 100 percent unfavorable to a project and the decision maker can still go forward with it, subjecting himself, of course, to possible judicial action initiated by interested citizens. But the environmental impact statement was not operated in a way to implement the thrust of the statement.
So the whole purpose was to make sure that the decision maker would have before him the possible environmental consequences of his decision before he made it. The act became law and it has had an impact on decision making, on planning by public agencies and by private citizens which have gone far beyond the expectations of those of us involved in the initial law.
It has turned out to be a time-consuming process, it has turned out to be a frustrating process, and it has led, of course, to a great deal of litigation.
I think it is in the interest of the country that we can find ways to streamline the process, to shortcut the time periods that are involved, and to make the decision making that is based upon those statements more clear cut and more relevant to realities.
In any case, that is the background of the Environmental Policy Act, against which I make my point.
Most environmental impact statements have been site specific. That is, they have related to specific projects. We have one in Maine, the Dickey-Lincoln School power project on the St. Johns River which has been undergoing analysis under the environmental impact statement for the last 3 years. The project was authorized in 1965 and we still have not approached the point where we can move ahead with construction even if the environmental impact process did not stand in the way. We have been going for 15 years, 3 of those years representing involvement in the environmental impact process. So I understand the frustration.
That was an example of a site specific environmental impact statement, and most of them have been site specific in nature.
The three projects which are the subject of Senator Cannon's amendment have been subjected to the environmental impact process, and the process has been completed with respect to those specific projects. It is not my desire to hold up those projects by the action I take today. All day I have discussed with the sponsors of this amendment ways in which we can assure that those projects could go forward, notwithstanding the next point that I want to make.
The next point that I want to make is this: that there are projects that have not only individual impacts upon environmental values or which have environmental consequences, but projects in a river basin, for example, which together, have a total and maybe different impact on environmental values and environmental consequences which should be taken into account.
With respect to that, I would like to read from a letter written by the Secretary of the Interior, Secretary Andrus, on November 3, 1977, to Senator JACKSON and to Senator HANSEN as the chairman and the ranking Republican members of the Senate Interior Committee. I will read several paragraphs because really it describes better than I could exactly what is behind the second point:
DEAR SENATORS : This will respond to your letters of October 19 inquiring about the reason for undertaking a comprehensive environmental impact statement on the Colorado River Basin, and its anticipated effect on current and future projects and activities along the basin.
Prior to this administration, the Department had been considering undertaking a comprehensive impact statement for the Colorado on its own initiative. Subsequently, the Environmental Defense Fund, the Colorado Council of Trout Unlimited, and The Wilderness Society wrote to request such a study, and a moratorium on water development projects until the study was completed.
After careful review of the current judicial interpretations of the National Environmental Policy Act, we concluded that such a study was required under law. We base this primarily on the principle that was reaffirmed in Kleppe v. Sierra Club. Briefly stated, it says that an agency must do a comprehensive study whenever there are several proposals pending concurrently before it which will have a cumulative or synergistic. environmental impact upon a region.
Kleppe v. Sierra Club went on to say that the Department did not need to prepare a comprehensive statement in the case before the court because those conditions did not exist in that specific case. But the court strongly reaffirmed the principle. Consequently, failure to prepare a comprehensive study on the Colorado would invite litigation, in our judgment.
Concerning the effect of the statement on pending and present projects, the Department has always maintained, and we continue to maintain that it is not practical or necessary to postpone construction while the statement is being prepared. As far as any future projects are concerned, we will prepare individual site specific statements as usual.
The comprehensive statement will not address leasing of fuel resources or granting of right of ways. So we do not expect any effects on these matters.
I have read all that is necessary out of that letter, I believe, to make my point, but I ask unanimous consent that the full text of the letter be printed in the RECORD at this point.
There being no objection, the letter was ordered to be printed in the RECORD, as follows:
U.S. DEPARTMENT OF THE INTERIOR,
Washington, D.C.,
November 3, 1977.
Hon. HENRY M. JACKSON, Hon. CLIFFORD P. HANSEN,
U.S. Senate,
Washington, D.C.
DEAR SENATORS: This will respond to your letters of October 19 inquiring about the reason for undertaking a comprehensive environmental impact statement on the Colorado River Basin, and its anticipated effect on current and future projects and activities along the basin.
Prior to this administration, the Department had been considering undertaking a comprehensive impact statement for the Colorado on its own initiative. Subsequently, the Environmental Defense Fund, the Colorado Council of Trout Unlimited, and The Wilderness Society wrote to request such a study, and a moratorium on water development projects until the study was completed.
After careful review of the current judicial interpretation of the National Environmental Policy Act, we concluded that such a study was required under law. We base this primarily on the principle that was reaffirmed in Kleppe v. Sierra Club. Briefly stated, it says that an agency must do a comprehensive study whenever there are several proposals pending concurrently before it which will have a cumulative or synergistic environmental impact upon a region.
Kleppe v. Sierra Club went on to say that the Department did not need to prepare a comprehensive statement in the case before the court because those conditions did not exist in that specific case. But the court strongly reaffirmed the principle. Consequently, failure to prepare a comprehensive study on the Colorado would invite litigation in our judgment.
Concerning the effect of the statement on pending and present projects, the Department has always maintained, and we continue to maintain that it is not practical or necessary to postpone construction while the statement is being prepared. As far as any future projects are concerned, we will prepare individual site specific statements as usual.
The comprehensive statement will not address leasing of fuel resources or granting of right of ways. So we do not expect any effects on these matters.
Finally, the Regional Reclamation Director in Salt Lake City notified the Congressional delegations of Arizona, Colorado, Wyoming, Utah, and New Mexico of our intention to prepare a comprehensive statement by letter dated September 22, 1977. The letters were sent to the Washington offices of each Senator and Congressman and included a list of upcoming public informational meetings of the subject.
We appreciate the opportunity to respond to your inquiries. If we can provide any further information, we would be most pleased to do so.
Sincerely,
CECIL D. ANDRUS,
Secretary.
Mr. MUSKIE. Mr. President, what is involved? The question of whether such a comprehensive environmental impact statement is required by the present law under the circumstances described in that letter and in Kleppe against Sierra Club. I think that question is a legitimate public question. It is not my desire to prejudice the final judicial interpretation of the law with respect to that point by anything I do this afternoon. But neither should we do anything today, or in the legislative process, to make it impossible to have that question decided in the courts. Nor should we make it impossible for the Department of the Interior to continue the development of the comprehensive environmental impact statement which it had begun with respect to the Colorado.
It is on the basis of that analysis of the situation that I undertook to try to first put together a compromise that would make it possible to proceed with the three projects which are the subject of Senator CANNON's amendment.
Second, to protect those projects against any lawsuit while the comprehensive environmental impact process was going forward.
Third, to make sure that the Department had funds to go forward with the comprehensive environmental process so that the area may benefit from the information to be obtained.
I was agreeable, in addition, to a clear statement that providing the money for such a comprehensive environmental impact statement should not be interpreted in any way by the courts as prejudging the interpretation of the National Environmental Policy Act with respect to the requirement of a comprehensive environmental impact statement. It seemed to me that that compromise covered all the points of interest to all the parties involved.
I went even one step farther. I said that so long as the question was pending before the courts, other Federal activities not yet taken in the region should not be blocked by the requirement of a comprehensive environmental impact statement until the courts had ruled on that question.
It seemed to me that we had conceded everything that, until a few months ago, I understood to be the imperatives of the situation from the point of view of the sponsors of this amendment. They could go forward with these three projects, they would be funded, construction could begin, no suits could be brought to block it.
That is all there was in the original amendment. Then, in the discussion about those three, these other questions were raised: Well, if the comprehensive environmental impact statement is funded, does that not prejudice the issue in the courts. I said, well, let us put a statement in the legislative language making it clear that it is not our intention to prejudice the decision in the courts.
Someone else raised the question, what about other Federal activities in the basin? Will they be blocked and suspended while the court is considering the question? I said, let us put language in the act making clear that they will not be affected.
Well, I did not give away enough, nor offer anything else that they wanted of me, so there was nothing else that I could give — nothing else that was demanded of me. I can only conclude that it is the desire, unstated, to take an action today which would persuade the courts that the Congress has changed its mind and has interpreted the National Environmental Policy Act to mean that a comprehensive environmental impact statement is not required.
If that is really what the sponsors of this amendment are hanging on to get, I say the place to decide that legislatively is in legislation addressed specifically to that point, fully considered in committee, and fully debated on the floor. I am not prepared to surrender it as the price of harmony and regional comity on the floor of the Senate this afternoon. I think that I have offered to give the sponsors of this amendment more than they asked for in the first place, everything that they explicitly asked for today. They are still not satisfied. So I am forced to make my point of order in order to insure that the issue of whether or not the National Environmental Policy Act requires comprehensive environmental impact statements in appropriate eases is left to the courts to decide. That is the only way I can protect that, as I see it, so I will make my point of order—
Mr. GOLDWATER. Will the Senator yield?
Mr. MUSKIE. I have not made it yet, I say to the Senator, I shall withhold it. I am just describing it.
I will make the point of order that the amendment is legislation on an appropriation bill and out of order. I shall make it after other Senators have engaged in whatever discussion they would like to. I am not trying to enforce a time limitation or anything of the sort. The Senator has been generous in giving me time to explain my position.
I would really, from a personal point of view, rather not be involved in this whole matter, because I am sympathetic to the problems of the West in respect of the development of these river basins. But I shall make my point of order, when I do, for the reasons stated.
I am happy to yield to the Senator from Arizona.
Mr. GOLDWATER. Will the Senator from Nevada yield me some time?
Mr. CANNON. There is no controlled time.
Mr. GOLDWATER. Mr. President, I thank the distinguished Senator from Maine, who is, more or less, the godfather of environmental legislation in this country. I might say we are indebted to him for it. I think he has brought out some points about the Environmental Act that more and more Americans, both private citizens and Government people, are beginning to recognize as needing overhaul.
The Senator mentioned, in his remarks, that the private sector has been hounded by the environmental people. I agree on that. I think every Member of this body has been receiving complaints about it. Now, however, I think, for the first time, we have seen the impact brought to bear upon Federal projects. If I were a Senator from any State affected, I would be deeply concerned about that. I do not believe there is a Senator in this body that does not have some project going in his State that could require environmental inspection. I think of post offices, parks, roads; any construction that entails Federal funds, in my opinion, could come under this type of surveillance. I am the last one that will suggest that that is proper.
I think of the vast projects in the southern part of our country, where water behind dam after dam has brought richness to that part of America. I think of the projects in the Northeast that we have very happily participated in providing. I think of the projects along the Mississippi. We had a long debate here just a short while ago about providing locks on the Mississippi. These can all come under the environmental study program.
The Senator from Maine mentioned specific projects. This specific project that I happen to be interested in, which I shall broaden from the Central Arizona Project to include the entire Colorado River Basin, is one of such magnitude that I do not believe many people in this body have any understanding of what we are talking about. We are not just talking about 15 million acre feet of water per year; we are talking about water that will provide the livelihood for the people of southern California, most of southern Arizona, most of southern Nevada, Utah, and the other basin States.
For example, we have already constructed, and these projects are in operation, to mention just a few: The Imperial Dam with the water for the Imperial Valley. The first project was started there in 1906. Yet we have gotten along pretty well without environmental studies there.
We have the Parker Dam above that that provides the drinking water for Los Angeles and its vast complex of cities and towns.
Above that, we have Davis Dam that impounds water to produce power for most of Arizona and parts of Nevada. I might say at Searchlight, Nev., there is under construction a giant generating plant that will use the waters of the Colorado to be developed by steam for power.
Above that, we have the giant Hoover Dam. Then above that, we have Glen Canyon Dam and, of course, going up, several other projects, including the Big Thompson project, that diverts water into the eastern part of the Western Plains States.
The thing that we fear is not what they might do to new projects under construction or new projects that are even in the planning stages, but what this environmental impact idea can do to already existing projects.
Can they rule, for example, that the water we divert from the Imperial Dam through the All American Canal into the lower valleys of California presents an environmental impact upon the area?
Can we rule that the giant Lake Meade, that has brought pleasure in boating and fishing and a change of weather to millions and millions of people, is to be called environmentally incorrect?
I can see it going both ways, and I can talk about every dam and every project we have on the river.
I would hope on this opportunity to legislate in favor of this particular basin, which drains one-twelfth of the whole United States, and it is the fourth biggest river in the whole world, that we would have an opportunity by legislation to express our opinion that environmentalism goes so far, and when it gets to the point of impeding the progress of people and affecting the lives of people and the livelihood of people, then I think we have to have a re-understanding of just what the environmental laws were intended to do and what they are doing now.
I backed those laws. I thought they were good. I still think they are good. I think they are being misused, badly used by organization people who really do not understand what they are supposed to do, nor what we intended them to do.
So, Mr. President, I am hopeful the Senator from Maine will not throw this up to a judgment of germaneness.
I do not want to impede the progress of legislation on this floor, but I can say this, that my State is not ready to take this sitting down. I can say this to my colleagues, that there will probably be, if this is not decided, there will probably be court orders issued, or attempted to be issued, against every project in this country that has one dime of Federal money in it.
So stop and think what that could do to your State.
I hope we can support the Cannon amendment, as written, and I hope that if the point of germaneness is raised by the Senator from Maine that we can defeat it.
Mr. CANNON addressed the Chair.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. CANNON. Mr. President, just two or three points.
I want to say to the distinguished Senator from Maine, he referred to these projects that are affecting the West. I want to point out, as the Senator from Arizona did, that this type of a policy affects projects all over the country.
The Mississippi Valley, the Tennessee Valley Authority operation which has been so good, and many other areas throughout the country, all would be affected by the indications that a comprehensive environmental impact statement is to be required on a complete region, basin, or on a complete basin.
The projects we have in this amendment have all had an individual site environmental impact statement filed. They have all been justified and they are all under construction.
I think it has been pointed out there is a pending lawsuit and the fear, of course, is what position the courts might take, absent any indication from the Congress.
The Senator from Maine is correct. We did work this afternoon to try to work out an agreement, a settlement that could be mutually accepted, and part of that involved an appropriation to the Secretary, so that the Secretary, if he so desired, could go ahead with a comprehensive basin wide environmental impact statement.
Now, to try to protect against any undue inferences from the court, we did discuss the possibility of legislation that would say it was not the intent of this action that it be interpreted to affect the outcome of litigation dealing with the preparation of a comprehensive environmental impact statement for the basin.
However, some of my colleagues were fearful that the fact the money was appropriated and authorized for that purpose would, therefore influence the court in some way, and we did not want to do that. That is why we did not elect to go along with a compromise agreement that would have provided money so that the Secretary could have used it, if he saw fit, to carry out a comprehensive environmental impact statement of the entire Colorado River Basin.
Mr. MUSKIE. Will the Senator yield?
Mr. CANNON. Yes, I am glad to yield.
Mr. MUSKIE. May I say to the Senator, if I had a legislative compromise, which involves those on different sides of the issue giving away something, I could have argued just as persuasively, and I do, that by agreeing to these three specific projects, which had not been subjected to comprehensive environmental impact statements, our agreement might be interpreted by the courts as concluding that a comprehensive environmental impact statement is not necessary.
I doubt very much that a court is going to close its eyes to the kind of language that we are now discussing.
Incidentally, I ask unanimous consent, Mr. President, that the full text of the amendment which I was prepared to accept be printed at this point in the RECORD.
There being no objection, the amendment was ordered to be printed in the RECORD, as follows:
On page 30, after line 26, add the following :
Sec. 110. (a) Notwithstanding any provisions of the National Environmental Policy Act of 1969, Public Law 91-190 (42 U.S.C. § 4321 et seq.), construction of any feature of the Upper Colorado River Storage Project as authorized by the Act of April 11, 1956, as amended, shall proceed if a final Environmental Impact Statement has been filed on such feature.
(b) Notwithstanding any provisions of the National Environmental Policy Act of 1989, Public Law 91-190 (42 U.S.C. § 4321 et seq.), construction of any feature of the Central Arizona Project as authorized by Public Law 90-537, September 30, 1968 (43 U.S.C. § 1501 et seq.), shall proceed if a final Environmental Impact Statement has been filed on such feature.
(c) Notwithstanding any provisions of the National Environmental Policy Act of 1969 Public Law 91-190 (42 U.S.C. § 4321 et seq.), construction of any feature of the Southern Nevada Water Project as authorized by Public Law 89-292 (43 U.S.C. 616ggg), as amended, shall proceed if a final Environmental Impact Statement has been filed on any such feature.
(d) For expenses necessary for the Secretary to prepare a comprehensive environmental impact statement for the Colorado River Basin, $2,145,000, to remain available until expended, which shall not be reimbursable. It is not the intent that this action be interpreted as affecting the outcome of litigation dealing with the preparation of a comprehensive environmental impact statement for the Basin.
(e) The lack of such a comprehensive environmental impact statement shall not serve as a bar to proceeding with other federal actions in the Basin.
Mr. MUSKIE. Now, the Senator has read it correctly, or that part of it having to do with the $2,145,000 for the comprehensive environmental impact statement.
Now, let me make the record clear, that process had begun before the Cannon amendment was ever offered.
It had begun and then suit was brought to challenge it. So it was stopped in mid-passage.
I thought it was reasonable to ask, from my side of this issue, that that process continue in the same way. I was agreeable to letting these three projects continue.
In other words, what I was offering was the status quo, with a neutral effect on the litigation.
I just do not believe a court is so naive with respect to the compromising nature of the legislative process as to ignore this language, and I repeat it, which Senator CANNON has already read:
It is not the intent that this action be interpreted as affecting the outcome of litigation dealing with the preparation of a comprehensive environmental impact statement for the basin.
I think that language is clear. I think we made it clear to Senator CANNON that if that specific language was not clear enough, we would be glad to have it clarified even further to make it absolutely clear that the provision of money necessary to go forward with the comprehensive environmental impact statement was not intended, and should not be interpreted, as prejudicing the judicial result.
I think it is possible for us to do that. I have seen similar things like that done over and over again in my 20 years in the Senate.
I think the compromise would have been workable and I regret we are not going forward with it.
Even at this moment, if any of the supporters of the Cannon amendment can devise language that would be even clearer on the point Senator CANNON is discussing, I would be glad to accept that language.
Mr. CANNON. I thank the Senator for his statement.
I just simply say that a number of the States are intervenors in the lawsuit we referred to earlier and they have their own position to advance.
Their position is that a comprehensive environmental impact statement for the entire basin is not required and should not be required. Frankly, I, for one who is a supporter of the initial Environmental Protection Act, certainly did not intend, and I do not believe the balance of my colleagues here intended, to require a comprehensive study of an entire area or an entire basin, such as the entire Colorado River Basin, which the Senator from Arizona pointed out earlier, I think, was about 1,400 miles long, if I remember his statement.
We intended that an environmental impact statement would be required on specific projects to make a determination whether they should go ahead. That is what we are trying to do here.
Mr. MUSKIE. Will the Senator yield?
Mr. CANNON. Yes.
Mr. MUSKIE. Is it the intent of the Senator then, if I understand what he just said this afternoon by means of his amendment, to amend the National Environmental Policy Act so that it would clearly not require a comprehensive environmental impact statement.
Mr. CANNON. No, it is not my intention.
I may say that I would like to do it, because I think it should be amended. But I agree with the Senator, as he said earlier, that we should consider that at some other place.
I do say here that we want to make it absolutely clear to the court that is considering this matter that these projects on which an environmental impact statement has been filed and approved, and on which construction has been started, should be permitted to go ahead. We are simply saying that specifically and precisely with respect to three projects — the Upper Colorado River project, the Central Arizona Project, and the southern Nevada water project.
Mr. MUSKIE. That simply is not in issue.
We have a letter, and the Senator knows perfectly that the amendments to which I agreed gave him the green light on these three projects. The Senator knows perfectly well that that amendment is consistent with a letter from Secretary Andrus, which I put in the RECORD this afternoon, which gives the green light to these projects.
So if that is the only point the Senator is pursuing, he can have it without a fight, without a point of order, without a debate, without a challenge — and that has been clear to him this entire day, I am sure.
Then the Senator says that these other States have a point of view on the comprehensive issue to be discussed. There are two places available to them: the court, where they already are — and we make clear in this language that we do not prejudice that at all and do not intend to — or, they can come back with legislation amending the National Environmental Policy Act, which the Senator from Nevada says he does not mean to try to do this afternoon.
So both those avenues are open to them, and the point of order of the Senator from Maine does not interfere with either of them. The Senator can have his amendment, and these projects will be funded, and construction will go forward, and they will be protected against lawsuits that will take them into court. The Senator can have all that, without an argument, without a point of order.
So I must say that I am completely mystified as to what it is that I must answer in the Senator's argument.
He said no, he does not mean to try to amend the National Environmental Policy Act — and I said, "Fine."
He said all he wants is these three projects to go forward, without interference. I said, "Fine."
He said he wanted to preserve the rights of all the States involved in order to insure the excision of the comprehensive environmental impact statement from the act, and that option is available in two places.
So what this fight or this argument is all about mystifies me completely, and I find myself punching a balloon because whenever I try to meet what I think is behind the amendment, I am told that is not behind the amendment.
We have tried to serve every purpose that the Senator from Nevada has described in his floor statement. We have not tried to prejudice the question of the comprehensive environmental impact statement in any way. I have offered to take any language anyone in the Senate can devise to make that even clearer.
The only purpose this debate is serving is my purpose in New England, because there is another issue somebody is going to try to attach to this bill which concerns me personally — much more than this one. This debate gives us the time — at least, I hope my staff and the staffs of other Senators are using the time — to try to work out that problem so that we will not take the time of other Senators to discuss that matter on the floor.
So I suppose there is some utility to it and that by asking these questions, and possibly frustrating the Senator from Nevada, I really am filibustering in an indirect way, in order to provide some time for the resolution of this other problem.
I know the Senator understands that on these three particular projects I am sympathetic to the Senator's objective.
Mr. CANNON. I appreciate that. The Senator has made it clear that he is not opposed to these three specific projects; in fact, that they should go ahead.
The only difficulty we have is that the court may not necessarily agree, and we want to make it absolutely clear that the court will look at the legislative language and say, "Yes, those projects are permitted to go ahead." That is what we want to insure.
Along with it, on the compromise language that was offered, as I said earlier, we want to insure that the Secretary does not proceed with a comprehensive basin wide environmental impact statement simply because we have given him money here at a time when the States, in good faith, are litigating before the courts whether or not that kind of general, broad environmental statement basin wide can be required.
If the Senator does not desire to make his point of order, I will call for a vote on the amendment. If he desires to make it, I think we could get on with the business of the Senate.
Mr. MUSKIE. I will make the point of order as soon as I ascertain whether or not the Senators who indicated a desire to speak on this matter wish to do so.
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 (Mr. SASSER). Without objection, it is so ordered.
Mr. MUSKIE. Mr. President, I am going to make the point of order in just a second.
Mr. President, one point I wish to make is that as an individual Senator, as well as one who is so often asked to respond to policy issues as they arise in the Chamber, and as chairman of the Budget Committee, I am becoming increasingly concerned about the growing practice of attaching legislation to appropriations bills. One effect of this is to give Senators almost no notice of the policy issues which are arising.
This morning when I arrived, or it was last night, I suddenly discovered that on this Interior appropriations bill there were two policy issues, legislative issues, this one and another one affecting the oil entitlements program in my region of New England, both coming up on an appropriation bill, as to which we had inadequate time to prepare, inadequate time to consult.
I thought we had legislative committees around here to deal with policy. Anyone reading this amendment, who could conclude that it is not about as blatant an example of out and out legislation on an appropriation bill, simply cannot read, or is so caught up in his desires with respect to the substantive part of Senator CANNON's amendment that he votes his interest rather than senatorial procedures.
What I am saying to you, my colleagues, is if this trend continues, we need only two committees, and maybe only one, the Budget and Appropriations Committees or maybe only the Appropriations Committee, because it is no longer just abortion that comes to us via appropriation bills, it is every conceivable issue.
Now we are going to amend or propose to amend the National Environmental Policy Act. To some that is a dirty word. But what are the limits? I can pick targets too; and if the Senate is going to approve this kind of legislation on an appropriation bill, I am going to begin looking for targets that I can use this for as a precedent, since the precedent setting impact of what we are doing has been part of the discussion and the negotiation.
I really do not think we want to go that way. But this is another blatant effect, and I simply raise that cautionary word about that trend which bothers me, because as the chairman of the Budget Committee I am supposed to be here on the floor on the whole range of issues affecting the Federal Government.When they come at me through appropriations bills, in addition to authorizing bills, it becomes a little dizzying to try to stay on top of it and offer sane and responsible judgment to the Senate.
Mr. President, I make the point of order that the amendment is legislation on an appropriation act.
Mr. CANNON. Mr. President, I raise the point of germaneness.
The PRESIDING OFFICER. Under rule XVI, paragraph 4 questions of relevancy of amendments to a general appropriation bill when raised must be submitted to the Senate and decided without debate. However, in submitting this question to the Senate, the Chair wants to advise the Senate that under the precedents the question of germaneness, when raised after a point of order has been made that the language is legislation on an appropriation bill, tolls the point of order if the Senate decides the question of germaneness in the affirmative, and those precedents have uniformly held in such a situation that "an amendment legislative in character is in order on a general appropriation bill if it is germane to the language as passed by the House". Thus, "if the House of Representatives opens the door by incorporating legislation in a general appropriation bill, the Senate has an inherent right to amend such proposed legislation, and to perfect that language, notwithstanding its rules."
Therefore, since there is no House language involved here, the Chair thinks that the question of germaneness is not properly raised, but submits it as he must under the rule.
Mr. CANNON. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there asufficient second? There is a sufficient second.
The yeas and nays were ordered.
Mr. MUSKIE. Mr. President, a parliamentary inquiry.
The PRESIDING OFFICER. The Senator will state it.
Mr. MUSKIE. Is a "yea" vote a vote sustaining a point of order or opposing it?
The PRESIDING OFFICER. The point of order is not being acted upon. The question is, is the amendment relevant or germane to the subject matter of the House-passed bill?
The yeas and nays have been ordered, and the clerk will call the roll.
The assistant legislative clerk called the roll.
The question now is on agreeing to the amendment.
Mr. CANNON. Mr. President, I move to reconsider the vote by which the amendment was held germane.
Mr. STEVENS. Mr. President, I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. CANNON. Mr. President, I have no objection to having a voice vote.
Mr. CHURCH. Mr. President, I voted to support the ruling of the Chair because I feel that it is improper to change basic law by way of an amendment to an appropriation bill. It is a clear case of legislating on an appropriation bill and it is a very bad precedent to set, particularly when it relates to legislation of this importance.
On the merits of the amendment itself I am favorable. I simply want the RECORD to show that while I support the amendment on its merits, I do object to the procedure which has been followed.
Mr. JACKSON. Will the Senator yield?
Mr. CHURCH. I yield.
Mr. JACKSON. Mr. President, I want to make the same point and associate myself with the remarks made by the distinguished senior Senator from Idaho (Mr. CHURCH) .
Mr. RANDOLPH. Mr. President, we cannot hear.
The PRESIDING OFFICER. The Senate will be in order.
Mr. CHURCH. I yield to the able senior Senator from Washington.
Mr. MAGNUSON. Mr. President, I want to say that I thoroughly agree with the viewpoint taken by the Senator from Idaho. I have made a long attempt, which has been futile in most cases, to keep legislation off appropriations bills. It seems that we just cannot seem to do it. The legislative committees are not doing their jobs. There are many things which are not authorized which are in the appropriations. This is a matter which should have been done by the legislative committee or should be done by the legislative committee. I thoroughly agree with the Senators on this matter.
Mr. McINTYRE. Mr. President, may we have order?
The PRESIDING OFFICER. The Senate will be in order.
Mr. MAGNUSON. The situation out West in some of these river basins is just intolerable. I am going to vote with them on this. But here, again, the Appropriations Committee is writing all the legislation in the body, it sometimes seems to me, on everything. I just hope that we will not continue this practice. If we do, there will not be any committees left in the Congress except the Budget Committee, the Appropriations Committee and the Finance Committee. Those are about all that will be left.
Mr. ROBERT C. BYRD. Mr. President, let us vote on the amendment.
Mr. MUSKIE. Mr. President, if I may take a moment, I want to say that I have carried the load all day trying to make the points which I thought relevant in opposition to the Cannon amendment. I have had a very sparse audience. I am not going to try to repeat, but I would like to make at least three points.
Number one, if this amendment is not clearly legislation on an appropriation bill to any Senator who looks at it, independent of what he perceives as his State or regional interest, there will never be legislation on an appropriation bill.
I have watched with great concern the growing tendency to send legislative issues to the floor on appropriation bills. I woke up this morning and found myself faced with two on this bill, both clearly legislation, with no time to prepare and no time to enlighten other Senators as to the issues or my point of view. They were just offered as amendments to an appropriation bill.
We went through the farce of a point of order, and it is nothing but a farce to anyone who examines the RECORD today. Nobody cares any more. If you can pursue a legislative objective, get it by quickly and fast, without having to go through the deliberateness of the legislative process, "Then I am going to do it." That is the philosophy of the moment. This is as clear a demonstration of that as I have ever seen.
But the Senate has worked its will and I am not going to ask for any more rollcall votes on it.
The second point I would make is that, with respect to the issues raised in this amendment, in 5 hours of negotiation today I offered the sponsors of this amendment everything they asked for except one thing: I would not concede the right to amend the National Environmental Policy Act with respect to this issue on an appropriation bill. I said that question must be left to the courts, where it is now, or it should be brought to the Senate via the legislative process. I gave them the three projects, I offered to protect them against lawsuits, I offered to write in language that would make it clear that the action in the courts would not be prejudiced by anything we did today. I gave them every single thing they asked for over 5 hours of negotiation, and they turned me down. The only conclusion I can draw is that they wanted to use Senators' interests in river basins as a way of amending the National Environmental Policy Act by implication with this vote.
Well, we shall see what happens. We shall see what happens.
Third, gentlemen, in the interest of orderly procedure, as chairman of the Committee on the Budget, I have to constantly watch the flow of legislation to the floor, across the whole range of problems and issues that affect the country. I am expected to advise the Senate as best I can. Well, I am telling you, there is no way of keeping track if legislation is going to come at us through the cracks in appropriations bills, through appropriations bills that the House originates, and legislation they put on. Under the precedents, if they put legislative language on an appropriation bill, we cannot challenge it at all on the Senate floor. If legislation changing basic national policy can come at us in all these various, diverse ways, and we are tempted to use them to serve our own parochial interests, the legislative process is going to become nothing but chaos.
I have river basins in my State. Do you not believe so? How do I protect them? By sneaking something through legislatively in an appropriation bill that provides the least possible warning to my colleagues in advance, with insufficient time to prepare and rationally debate the issues? Is that the way? The answer to that question this afternoon was yes.
Mr. GOLDWATER. Will the Senator yield on just one point?
Mr. MUSKIE. Yes, I yield.
Mr. GOLDWATER. Mr. President, I find myself in general agreement with what the Senator from Maine has been saying, but there are times when there are emergencies. When you threaten the livelihood of people who live in one-twelfth of the United States and have had that happen only about 4 or 5 weeks ago, when there is no chance — no chance — to go through the legislative processes this year, and by the time we would have the chance, it would be next year, and the courts would have acted — I think there are times when we have to go around the rules when parts of the country are threatened. I think in this particular case, we in the West, particularly in the Colorado River Basin, felt threatened, just as I feel every Senator who represents every State who depends upon projects of water or anything else felt threatened by this. We who supported the Environmental Act never dreamed that it would go this far, that they could, in effect, contest the erection of a post office or a bridge or a parking lot or a football stadium, or one-twelfth of the United States. I think that, in this particular case, we were justified. We have to get the message some way.
I will admit that the Senator yielded greatly and I have a suspicion that had we taken his approach, we would probably have been all right. But we were concerned about our people, just as he is concerned about his people, and we took this step, and I am glad it came out the way it did.
Mr. MUSKIE. May I say to the Senator that if one can rationalize an emergency out of the agreement that I was willing to make, and even modify beyond — further discussion was pointless. If one can rationalize an emergency out of that, one can rationalize an emergency out of anything.
SEVERAL SENATORS. "Vote."
The PRESIDING OFFICER. The question is on agreeing to the amendment (putting the
question) .
Mr. CURTIS. Mr. President, I move to reconsider the vote.
The PRESIDING OFFICER. The Chair is in doubt. Senators in favor of the amendment will rise and stand until counted.
Those opposed will rise and stand until counted.
On a division, the amendment (UP No. 1612) , as modified, was agreed to.
Mr. METZENBAUM. Mr. President, I ask for the yeas and nays.
SEVERAL SENATORS. It is too late.
Mr. METZENBAUM. Mr. President, I asked for the floor before the Chair had ruled.
The PRESIDING OFFICER. The Senator from Ohio was not recognized until the Chair had ruled.
Mr. CANNON. Mr. President, I move to reconsider the vote.
Mr. STEVENS. I move to lay that motion on the table.
Mr. METZENBAUM. Mr. President, I move to reconsider that vote and ask for the yeas and nays.
Mr. CURTIS. Mr. President, I move to lay that on the table.
Mr. BUMPERS. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There is a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The clerk will call the roll.
Mr. STEVENS. A parliamentary inquiry.
The PRESIDING OFFICER. The Senator will state it.
Mr. STEVENS. Is that on the motion to reconsider or the motion to table?
The PRESIDING OFFICER. The question is on agreeing to the motion to table the motion to reconsider.
Mr. STEVENS. I thank the Chair.
Mr. HEINZ. Mr. President, a parliamentary inquiry.
The PRESIDING OFFICER. The Senator will state it.
Mr. HEINZ. How was the Senator from Ohio recorded on the last vote?
The PRESIDING OFFICER. It was a division vote. There was no record. The clerk will call the roll.
The legislative clerk called the roll.
The result was announced — yeas 59, nays 33, as follows:
[Roll call vote tally omitted]
So the motion to lay on the table the motion to reconsider was agreed to.