October 3, 1979
Page 27137
Mr. RIBICOFF. Mr. President, I yield myself 1 minute.
Mr. President, when the administration submitted its energy proposals in July, a White House assistant stated that, in the energy area, the time had come to move "from a government of law to a government of men." While I do not underestimate the gravity of the energy crisis, I do not agree with that assertion. I believe that Congress can fashion sensible, workable systems to bring online needed energy facilities more expeditiously without, at the same time, trampling our State and local communities and overturning our citizens' rights to due process. The pending amendment accomplishes this goal, while S. 1308 would take us far down the road toward an arbitrary government of men rather than a government of laws.
Let me briefly review the issues presented by the two bills.
First. Openness of government and public accountability.
S. 1308, in reality, does not create a collegial board, for in all matters except one, the chairman has sole decision making authority. The chairman, who will act as a political officer in, or close to, the White House, is being granted unprecedented and dangerous authority to intrude upon Federal, State, and local responsibilities and destroy due process protections. Acting alone, he will not be subject to the Government in the Sunset Act, nor will he be subject to the normal safeguards included in the Administrative Procedures Act. Thus, decisions affecting the lives of hundreds of thousands of our citizens and many State and local communities will be made behind closed doors and with little or no public involvement. I can think of no better mechanism or scheme for producing turmoil and outright defiance from State and local communities than the imposition of such an unchecked czar.
In addition, the three other members of the Board who advise the chairman will not be subject to the normal conflict of interest laws. The administration and the Energy Committee have stated openly that the reason for this exemption is to allow major executives from energy companies to serve in these part-time positions. Thus, the chairman will be advised on decisions to eliminate State and local responsibilities, shortcut and curtail due process protections for affected citizens by a group of persons who may well have a direct interest in the projects under discussion. I do not see how such an arrangement could possibly achieve the credibility necessary to attain public support.
By contrast, the pending amendment provides for a three-member Board that makes its decisions collectively and is subject to the Government in the Sunshine Act, the Administrative Procedures Act and to conflict of interest laws.
Second. Enforcement.
The amendment provides for an efficient and effective means for the Board to enforce deadlines for regulatory actions by Federal, State, and local agencies. It gives the Board power to seek a court order compelling action in accordance with the Project Decision Schedule. It also gives the Board the authority to monitor closely Federal, State, and local agency actions and to move in before a final deadline is missed if there is evidence that through neglect, lack of leadership or dilatory tactics an agency will at some future date not meet the deadline established by the Project Decision Schedule.
S. 1308 allows the Board to step in and make the decision if a Federal, State, or local agency fails to meet a deadline. This alternative enforcement mechanism will inevitably lead to more litigation and greater delay. Almost by definition, the issues raised in these priority energy project proceedings will be difficult, if for no other reason than that the projects will be large. Unlike the agency with the normal decisional authority, the Board will have no expertise in the areas covered, and will have to pick up in the middle of a particular case and start from scratch. Given those two factors, and assuming that the Board will attempt to do its substantive jobs properly, it is virtually certain that the Board will be unable to issue a reasoned decision in less than the time that the responsible agency could. And, if there is more than one missed deadline at a time, the prognosis for an accelerated decision is even less favorable.
Knowing that the EMB will step in and make a decision for it could also produce delay for another reason. It could lead Federal and State agencies faced with difficult policy decisions to delay their decision until after the deadline. This would shift the responsibility for any unpopular decision to EMB, but only at the cost of considerable delay in obtaining final agency action. S. 1308 would thus achieve exactly the opposite effect than the one intended.
Then too, any provision giving EMB the authority to make the substantive decision will inevitably create only more litigation. And this will in turn mean only more delay.
The Board would have to apply substantive law with which it is unfamiliar. It may have to apply both State and Federal law. Even assuming the Board can correctly identify the substantive law to be applied, it is a virtual certainty that every decision the Board makes of this kind will be appealed. There will be a real problem of the quality of the Board's decisions if it is called upon to decide a Clean Air Act question one day, a strip mining issue the next, and a local zoning variance the third — and still continue its duties of setting schedules and providing overall monitoring for the program. Given its lack of expertise, decisions of the Board are likely to be reversed far more often than those of agencies who originally had responsibility for making the decision. The Board will then have to spend time to redecide the case. And more delay will result.
Thus, even without considering the undesirable effects of establishing another substantial bureaucracy to make decisions properly left to State or local governments, or to other Federal agencies with the substantive expertise, the procedures in S. 1308 are unwise because they will produce more, not less, delay.
S. 1308 also raises serious due process questions. When the Energy Mobilization Board makes its decision, there is no requirement for a hearing, no requirement for cross examination, no provision for witnesses to testify, no opportunity foraffected parties to be represented by counsel.
In short, it provides none of the protections that individuals or businesses would normally have when a Government agency makes a decision that directly affects them. And all of this will take place before a board which has no expertise in applying a law — whether it be an environmental law, antitrust law, zoning law, water law, or other law. Perhaps more important, the Board will not be a neutral decisionmaker; its single mission of promoting energy projects makes likely the appearance, if not the presence, of bias.
By contrast, our amendment insures that decisions will be made by agencies having specific expertise in the law which is to be applied, and the agencies will do so under procedures which protect the due process rights of affected parties. At a minimum, no decision can be made under our amendment without notice to all affected interests, opportunity for comment, and opportunity for representation by counsel. Full rights of cross examination will be provided where it is needed.And it will be the agencies — not the Energy Mobilization Board — that will determine when to make cross examination available.
Third. Intergovernmental relations.
Mr. President, during the past few years, the onset of the energy crisis has greatly exacerbated sectional and Federal-State tensions and conflicts. Yet if we are to work out solutions to our energy problems, the Federal Government must have the cooperation and support of State governments and local communities. S. 1308 does little or nothing to ease the existing intergovernmental conflicts. By contrast, the amendment has been crafted with help of State and local officials and for that reason has the endorsement of every organization representing State and local governments, including the NACO, National Governors Association, the National League of Cities, the U.S. Conference of Mayors, and the National Conference of State Legislatures.
The bill contains a number of provisions to protect the authority and rights of State and local governments. These include:
A mandate to the Energy Secretary to consult with State and local agencies before making a final selection of candidates for priority energy project status;
Provision that where a single environmental impact statement is called for, that statement must include all the factors and criteria in a State or local law or ordinance in the manner provided in that law or ordinance;
Allowance for a State or local government to undertake to complete those parts of an environmental impact statement that relate to its jurisdiction and concerns;
Preservation of State court jurisdiction on purely State law matters;
Provision for the use of State courts for the enforcement of the Board's deadlines in matters related to State laws;
Reinforcement of States' rights in the area of water law.
Mr. President, there are a number of other issues that are raised by S. 1308,but these are the most important. The solutions proposed in the amendment have received the endorsement of two of the most thoughtful and responsible organizations in the country, the League of Women Voters and Common Cause. In addition, this morning, the Washington Post directly endorsed the Ribicoff-Muskie amendment.
The following editorial appeared in this morning's Washington Post in support of amendment No. 488, the amendment in the nature of a substitute introduced by myself and Senators MUSKIE, GLENN, ROTH, PERCY, STAFFORD, HART, JAVITS, DURENBERGER, CRANSTON, WILLIAMS, PROXMIRE, MATHIAS, WEICKER, and BIDEN:
HOW FAST A TRACK
If the Nation is serious about expanding domestic energy production a mobilization board is needed to steer crucial projects on a "fast track" through the regulatory labyrinths. But how much muscle should such a board have? The Senate energy committee's bill, backed by the White House, takes an expansive approach. It would, for instance, let the mobilization board step in to make a decision if a federal, state or local agency missed a deadline. The board could also waive any impeding law or regulation adopted after construction had begun.
The Senate committee's bill goes too far. The case for it rests on some large and untested assumptions: that a number of big projects should be built in a hurry; that most regulatory agencies, especially in the states, will be unsympathetic and intolerably slow, and that mid-course adjustments will be few.
In fact, the Senate is showing more and more reluctance to rush into a huge synfuels program. A number of states, especially in the West, have responded to energy pressures and the threat of federal preemption and are overhauling their own laws. Indeed, delay at the state level is often less a problem than conflicts among federal agencies — not to speak of Congress' own uncoordinated actions.
All this argues for a more temperate approach that puts some projects on a fast track and lets the mobilization board enforce deadlines in court but nonetheless encourages decision makers at every level to accept their responsibilities. The Ribicoff-Muskie substitute meets this test. It would create a sensible fast track but not a greased skid. It should be passed.
Mr. President, for all of these reasons, I urge my colleagues to vote against the motion to table this amendment.
Mr. President, I yield the remainder of my time to the distinguished Senator from Maine.
Mr. MUSKIE. Mr. President, I want to emphasize in the closing 2 minutes what that Post editorial said.
The distinguished Senator from New Mexico argued that those who are for the committee substitute are against expedited procedure. Mr. President, that is not the issue at all. The issue is, as stated in this last sentence of the Post editorial :
The Ribicoff-Muskie substitute meets the test. It would create a sensible fast track but not a greased skid.
Not a greased skid. My good friend from Washington argues that. what we are concerned about is an energy problem. Of course we are. But he would imply that, therefore, we need not be concerned about another limited resource, the air within which the energy must burn. With what consequences? Constructive production, but also, pollution risks for the environment which not only affect the health of people but the capacity of the environment to sustain productive activity.
So, in his preoccupation with energy, he is not sensitive, as he should have been and as the committee should have been, to procedures which would protect not only the energy priorities of this country, but the environmental quality priority of this country.
The Senator from New Mexico argued that there is nothing in here that affects substantive law.
We have discussed that for 2 days, and I read once before the language of the committee report dealing with section 19, which establishes the Board's authority to adopt special procedures — special procedures designed to modify the procedures created under existing law by the agencies involved.
What does the committee report say about that section? The committee intends to authorize agencies to make the changes enumerated in this section whether or not they can be categorized as procedural or substantive and whether or not they have substantive as well as procedural implications.
There is no provision of the bill which highlights this point more than the grandfather provision.
That provision, Mr. President, would authorize the Board to waive any laws or regulation enacted or promulgated by a Federal, State, or local body after commencement of construction of a priority project.
What would be the implications of that waiver? It would say that it would remove the ability of all levels of Government to deal with unknown or unanticipated toxic environmental effects of energy facilities. Principally, we are focusing on the production of synthetic fuels. We do not have a synthetic fuels plant in a commercial state today. It is impossible to anticipate before the first shovelful of earth what the pollution implications of this new technology would be.
Senator RIBICOFF, in his Committee on Governmental Affairs, conducted hearings on those dangers. What this waiver provision does is remove the ability to act, once the first shovelful of earth is turned, to deal with such unanticipated pollution.
Second, it bars the possibility that technology to minimize these problems would be developed to assure the commercial viability of these processes.. We have learned in the environmental laws that American industry and science have developed technology to meet the requirements of public health mandated by law. Now, if we prohibit, if we write into law this provision which says they do not have to worry about it, what incentive is there for American industry to develop the very technologies that make synthetic fuels a viable — viable not only from the point of view of energy but the environment as well — option in the energy crisis ahead?
The Senator from Washington speaks about the delays that would be generated by the substitute.
Mr. President, the failure to develop controls will also guarantee continued resistance to the more widespread construction of energy facilities without adequate protection of the public health and safety of affected citizens.
If you think that, by limiting the right of judicial review — and with respect to the designation of fast track projects, you eliminate it entirely except for those who are denied fast track. So there is unequal justice. If the Energy Board says, yes, you have a green light, no appeal. But if it says, no, you have no green light, appeal. Well, if you think that kind of restriction on judicial review protects your bill from the judicial process once it becomes law, no one could be more mistaken.
The people of this country have found it possible, using all kinds of ingenuity, to get into the courts, whatever the law says.