October 3, 1979
Page 27152
Mr. JOHNSTON. Mr. President, I had asked for the yeas and nays. I still have no recommendations, but I should like to vitiate the order for the yeas and nays unless somebody else wants them. I am willing to submit it to the Senate on a voice vote unless any Senator desires to have a record vote.
The PRESIDING OFFICER. Is there any objection to vitiating the yeas and nays?
Mr. MUSKIE. Mr. President, I find myself tangled up, which has been my posture all day.
I have read the amendment and I have listened to the discussion and also had the opportunity to discuss it with the proponents. My information and my reaction to it are the same, I gather, as that of the floor manager. I think it is just not good legislation to create a Board of this kind and give it discretionary authority, and then mandate the application of that discretionary authority in the same legislation. I think it is simply bad legislation.
I am not inclined to push that point any further, because I have a couple of other things I should like to get involved in and would like to call up an amendment when this one is disposed of. So I am not disposed to ask for a recorded vote. I simply rose in order to indicate my reservations about this kind of procedure, which is a bad procedure.
If we create discretion in an agency and we have adequate guidelines — and the proponents of the bill argue that there are adequate guidelines — then we ought to leave it to the Board to make decisions. I expect that the Board probably would give consideration to the list of projects that have been brought to my attention as eligible for consideration. I do not know that much about them, but from what I have been told about them, I would expect that, without any action on this amendment, the Board would probably give consideration, even up front consideration, to the projects on that list. But that, to me, is not a justification for this amendment; it is an argument against it.
Having said that, Mr. President, I say to the floor manager, I am not disposed to ask for a record vote.
I yield the floor.
Mr. FORD. Mr. President, may I have just 1 minute?
The PRESIDING OFFICER. The Senator from Kentucky is recognized.
Mr. FORD. First, let me thank the floor manager for his cooperation. I associate myself with the remarks of my distinguished colleague (Mr. HUDDLESTON) and the distinguished Senator from West Virginia.
I do recognize the position of the Senator from Maine, the helpful position he has taken. Let me make two quick points.
Two bills have been passed. Both of those bills made an attempt to convert to coal. That has not happened. Three administrations have said we should convert these utilities to coal. Nothing has happened. I think it is time now that the Senate make its voice heard, as it has in the past.
Everyone here today admits that we must back off from the oil we purchase from foreign sources. My distinguished colleague from Kentucky has said that we have a limit, and we are going to be pushing that limit for some time, on imported oil. Why, then, should we not find a way to keep our dollars at home, use our own energy, create new capital investment, give additional Americans jobs, and do it with American resources?
I hope all my colleagues will vote "aye"and that this amendment will be accepted.
Mr. HUDDLESTON. Mr. President, I ask unanimous consent that the name of the distinguished Senator from Virginia (Mr. HARRY F. BYRD, JR.) be added as a cosponsor to this amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Is there objection to the vitiation of the order for the yeas and nays? Without objection, it is so ordered.
The question is on agreeing to the amendment of the Senator from Kentucky.
The amendment was agreed to.
Mr. FORD. I move to reconsider the vote by which the amendment was agreed to.
Mr. HUDDLESTON. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. MUSKIE and Mr. ARMSTRONG addressed the Chair.
Mr. MUSKIE. Mr. President, I think the Senator from Colorado is seeking recognition and would like to call up an amendment.
Mr. ARMSTRONG. Mr. President, I am seeking recognition for the same purpose as the Senator from Maine. I shall be happy to defer to him at this time.
Mr. MUSKIE. I appreciate that, Mr. President, and I shall accept the Senator's generous offer, because I think maybe this will bring to a head a couple of key issues in the bill.
AMENDMENT NO. 486
(Purpose: To amend S. 1308)
Mr. MUSKIE. Mr. President, I call up amendment No. 486 and I think that might expedite consideration of this bill.
The PRESIDING OFFICER. The amendment will be stated.
The assistant legislative clerk read as follows:
The Senator from Maine (Mr. MUSKIE) for himself, Mr. STAFFORD, and Mr. RIBICOFF, proposes an amendment numbered 486.
Mr. MUSKIE. Mr. President, I ask unanimous consent that further reading be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
On page 140, line 3, strike all through page 141, line 8.
Beginning on page 51, line 23, strike "(a) " and all after through "(b) " on page 52, line 17.
(Mr. TSONGAS assumed the chair.)
Mr. MUSKIE. Mr. President, what this amendment does is, first, strike the grandfather clause in the bill. We have had considerable discussion on that clause over the past 2 days, so I think that single reference will clearly indicate what it is that I seek to do.
The second part of the amendment strikes the authority of the Board to make a decision in lieu of State and local agencies.
This issue, also, has been debated in the course of the last 2 days. I think it speaks for itself.
The first provision is found on page 140 of the bill, line 3, and the amendment would strike all through page 141, line 8.That language to be stricken constitutes the grandfather clause in its present form.
The second part of the amendment begins on page 51, line 23, and the amendment would strike (a) and all after through (b) on page 52, line 17.
That second section to which I have referred is described in the bill as "enforcement of the project decision schedule."
With respect to the grandfather clause, Mr. President, I have indicated at great length my concern about the clause. I do not know that it is necessary at this time to discuss it at great length.
But I, and the other sponsors of this amendment, support the basic principle of S. 1308.
As a method of expediting decision making on energy projects that would contribute to reducing the Nation's dependence on imported oil, it is clearly desirable. But because of two flaws that this amendment seeks to strike, S. 1308 will not lead to expeditious decision making.
The ability of the Board to substitute its judgment for that of State, local, and Federal decision makers and to waive all State, local, or Federal requirements adopted subsequent to contraction, will complicate, not ease the development of new energy facilities. I emphasize that it is my conviction these authorities will complicate the development of new energy facilities and not expedite them.
These provisions will lead to a morass of contention and indecision for every project in which they are involved. As the National Conference of State Legislatures has observed:
We must take care that we do not create an agency that would only add to delays by imposing more cumbersome procedures fraught with more opportunities for litigation. The National Conference is concerned that the powers proposed for the Mobilization Board in S. 1308, the Energy and Natural Resources Committee bill, could well have just this effect.
Our amendment strikes section 36 and 21(a) of S. 1308. Both of these provisions are directly contrary to the heart of our federal system. They both allow the legitimate decision making processes of State and local government to be flung aside in favor of a narrow interest. Statutes and other requirements adopted to protect workers and the general public can be abrogated by a single-minded Federal official.
Such proposals are of dubious constitutionality, infringing on the sovereign powers of States to protect their citizens. But beyond that, they directly conflict with the cooperative spirit which will be essential to speedy determinations on critical energy projects. These two provisions will bog the Energy Mobilization Board down in matters it is not suited to address, which it cannot become competent to address. The use of these authorities will inevitably lead to litigation in which State and local governments are the complaining parties.
Mr. President, on September 28, 1979, Senator ROTH placed in the RECORD letters of opposition to these two provisions from every State and local government group. The National Governors' Association, the National Association of Counties, the National League of Cities, the U.S. Conference of Mayors, the National Conference of State Legislatures — every one of these spokesmen for State or local officials protested these intrusions into areas of State and local responsibility. Mr. President, an energy mobilization effort will not work unless it has the cooperation and support of all levels of government. These two provisions are major obstacles to that cooperation.
Mr. President, section 36 of the Energy Committee bill allows the waiver of all requirements adopted after a priority energy project has commenced construction.
We referred to that over and over again today.
This "grandfather" provision is apparently based on the notion that imposing any new requirement, no matter what its motivations or justification, will threaten an energy facility's viability. Are the projects this fast track legislation seeks to advance truly so economically vulnerable? Must they be protected from all the benefits of later acquired wisdom?
This approach fails to recognize that new requirements are often developed and adopted as specific remedial responses to problems which were unknown or unknowable at the time a project was initially approved. The waiver provision could effectively prevent corrective action needed to protect workers, or the public, or the environment.
Mr. President, the Nation's priorities shift as rapidly as our knowledge advances. The consequences of any waiver of subsequently adopted requirements is to freeze in place the values and judgment of a single moment. The ability of State and local decision makers, or indeed the Federal Congress, to respond to future developments with effective action would be severely hampered.
The National League of Cities stated:
While S. 1308 limits substantive waiver to future laws, this is nevertheless a major incursion on the rights of local government. Many of the projects designated as priority will be new and untested technologies. They may cause new and unforeseen problems. To impair a local government's ability to deal with those problems, as S. 1308 does, is an unconstitutional intrusion on the right of local government to protect the health and welfare of its citizens.
A common example of the energy projects for which accelerated consideration is thought necessary is synthetic fuels production. Yet such projects have the potential for creating serious new toxic pollutants.
We do not know how harmful the pollutants are.
We do not know how sweeping the contamination would be.
But we do know that splitting the molecules of coal to make oil or gas creates some different pollutants from the mere combustion of coal. And these pollutants are frequently cancer-causing or suspected of being so.
Too often we waited to observe the effects of long-term exposure and only then recognized that mistakes were made. We should not duplicate that some process knowingly. Yet, we are close to adopting an energy policy that would guarantee such an approach. Facilities would not have to meet any additional requirements once construction had commenced.
No additional cleanup, even if we find the toxic levels are threatening local populations.
No additional cleanup, even if groundwater supplies of the local population become contaminated by discharges.
No additional cleanup, even if we discover that workers in the plants are developing cancer-like skin lesions.
Such impacts on workers are not mere conjecture. In 1960, Union Carbide closed a synthetic fuels plant precisely because such lesions were appearing on plant workers.
Particularly in a new area, we should not bar our capability to improve a facility after we place it in operation.
This provision could actually hurt the development of synthetic fuels. It would bar the orderly development of environmental controls, and create continued resistance on environmental grounds.
Not only environmental requirements would be affected by this waiver provision, but also siting laws, tax laws — such as the severance tax, especially — zoning laws, environmental laws, and others which I described this morning, could be waived if the Board — a body whose sole purpose is expeditious energy development — feels these requirements affect the "cost effectiveness" of the project.
Detailed examination of section 36 reveals further problems. It is not a board, but a single official, the chairman, who actually wields the waiver authority.The only check is that the waiver is "necessary to ensure timely and cost-effective completion" and "will not unduly endanger public health and safety" — again, as determined by this single Federal official.
We have no assurance whatsoever of what standards will be applied in the terms "cost-effective" and "unduly endanger." The legislative history on this provision contains nothing but a repetition of the language of the bill. I submit that the phrase "unduly endanger" is too vague to be entrusted to the sole discretion of an individual whose primary orientation is energy development. If the phrase means anything, it suggests a balancing process which demands agency-type expertise, public participation, and the consideration of alternative measures to attain the same end. There is no hint of any of these needs in section 36.
The section does provide that the Congress may explicitly prohibit the waiver of subsequently enacted requirements. But there is no direction on how such a prohibition must be expressed. This invites future conflicts between the executive branch, or at least the Energy Mobilization Board Chairman, and the Congress.
One major ambiguity in section 36 is the reference to "public health and safety." This phrase customarily does not include workers, yet occupational exposure may be one of the most serious problems of these newer facilities. Section 36 does not require the Board Chairman to consider protection of workers before granting a waiver.
We have learned that major plants often act as restraints on further growth in an area. Their air emissions, water use, sewage discharges, or demands for public services make it impossible for newer plants to locate in the surrounding area. This waiver provision would prevent a State or community from requiring any reductions in such consumption, even those well within technological capability. There would be no effective way to make room for new growth. A "fast-tracked" plant would have priority for all time.
Mr. President, the National League of Cities summarized its concerns with section 36 in this way:
Most objectionable to local governments is the power which S. 1308 gives the EMB to override substantive requirements of laws enacted after construction has begun on a priority energy project. Such unprecedented power for a federal agency is very probably an unconstitutional infringement of local and state rights. It will undoubtedly be challenged in court by a number of parties, which would hinder EMB from functioning effectively for some time.
The power of the EMB to waive laws is also unchecked by any requirement for presidential or congressional concurrence. This would leave local officials without any recourse or appeal from a decision by the EMB to waive a local ordinance.
Similarly persuasive observations were made by the National Conference of State Legislatures:
Despite the sparse evidence for state intransigence, S. 1308 would give the EMB unprecedented power to annul state and local laws. This power itself raises major constitutional questions about state sovereignty and due process, and could well draw the Board into more litigation. New energy technologies will almost certainly develop unanticipated problems, and state and local governments should retain their rights to protect public health and safety. Yet the Board's decisions to waive these rights would be subject to the procedures designed to protect the facility, not the rights. The Board would have to consult the affected state or local agency and find that the waiver would not "unduly endanger public health or safety," but there is no requirement for public participation, no requirement for a formal record, not even a commitment to impose alternative measures to reduce public risks. A waiver would take effect unless Congress "explicitly prohibits" it, but the bill says nothing about the form of this prohibition, or when it must be considered, or whether it must be considered at all. These are hardly adequate safeguards against such a far-reaching and constitutionally questionable intrusion into state and local prerogatives.
There are several principal objections to section 21's authority for the Board to make decisions in lieu of State, local, or Federal agencies that have not met deadlines in the project decision schedule. Again, this is a power which under S. 1308 would be exercised by one person, the chairman, and not the Board as a whole. And the chairman's full time job is accelerating energy development, not the cultivation of those values the State, local, and Federal substantive agencies are intended to protect.
The National Conference of State Legislatures has criticized section 21 with these words:
One of the most troublesome aspects of S. 1308 is the authority it gives the Board to make decisions in lieu of state or local agencies that fail to meet Board-set decision schedules. As a practical matter, substantial momentum could be lost during the time it would take the Board to complete the decision making record of the state or local agency, decide what information is most important and review existing state or local statutes and case law to determine how they should be applied. Secondly, the Board would probably be more subject to lawsuits because it would be perceived as a single-purpose agency whose primary mission is to facilitate energy projects, not to observe the spirit of state and local laws.
A more important question is whether the lean, fast-moving entity originally conceived by its authors could even pretend to know the intricacies of the many state and local functions it might seek to displace. Simply to assume the responsibilities of a state or local agency, the Board would need substantial expertise to assure that its decisions are judicially sustainable. The likely result is thus not timely action but a redundant bureaucracy absorbed in defending itself against the unnecessary litigation its every action makes possible. Far better to let the state or local agency make the decision itself, under court order if necessary, than to create an untried entity with powers that tend to make self-justification its primary reason for existence.
Mr. President, I have read at length from these communications I have received from these distinguished conferences representing State legislatures, State governments, and State Governors, because I think that anyone reading what they have had to say, anyone hearing what they have had to say should be impressed with the thoughtfulness and sense of responsibility with which they addressed these issues.
For those who have lost faith in the ability of State and local government to perform the responsibilities which are theirs, they should read these letters. Are these the people who are responsible for our energy crisis? Are these the people who created all these problems that are going to be solved overnight with the passage of this bill? These are responsible legislators and Governors and State officials, who are conscious of their responsibility, also, perceptive as to the risks for local government and for an effective energy program which lie within the parameters of the legislation pending before us.
Either the Board will have to develop a parallel bureaucracy to provide a defensible basis on which it can make these critical decisions, or it will make them in ignorance. Neither of these alternatives is attractive. Another large bureaucracy to make decisions on State and local law is the last thing we want, especially at the Federal level. And the temptation to spend all its time and effort defending its decisions against the inevitable litigation will paralyze the Board.
Of course, a fundamental objection to this approach is that it usurps State and local decision making responsibilities, as well as those of Federal agencies charged by law with specific tasks. As the National Association of Counties observed:
While we support an Energy Mobilization Board we feel very strongly that state and local governments should retain authority over the final determination of decision deadlines as it relates to our laws and procedures. In addition, we feel that we should retain our authority over siting and permitting decisions without fear of federal preemption. Consequently, we oppose any structure which would allow an appointed federal body to substitute its judgment for that of state and local decision makers.
So, Mr. President, I called up this amendment not simply as a reflection of my own concerns with this legislation, which I have amply described, but because I think I have a duty to insure that these representatives of State and local governments whom I have quoted are effectively and vigorously represented in the Chamber of this body, presenting their protests against the threatened intrusion upon their responsibilities, upon the performance of their responsibilities, upon the very viability of local government to act in these areas and to respond to the unanticipated, unknowable, unpredictable risks which the people of their constituencies will call upon them to address if these energy projects create the kind of risks for public health, public safety, and the environment that I think clearly lie in the future.
For anyone to vote on this legislation on the assumption there are no such risks is to perform a disservice to the people of this country and to the future of their health. To handcuff the agencies which have been created over the last 15 years, with widespread public support, to deal with such unknown, and unanticipated risks is a second disservice.
That is what these distinguished public servants from the State and local levels of this federal system are saying to us. The letters I can only describe as thoughtful, perceptive and deserving of serious consideration.
Mr. President, I yield the floor.
Mr. JOHNSTON. Mr. President, this is essentially the same amendment we considered this morning, not in all its parts, but in its principal parts. That is the grandfather clause, which we debated over a period of hours, and the essential part of the enforcement of the projects schedule.
That is the right of the Energy Mobilization Board to decide in place of the agency or the State or local agency should they fail to make the decision within the reasonable time provided. The amendment simply guts the bill.
Mr. DOMENICI. Mr. President, will the Senator yield for a question?
Mr. JOHNSTON. Certainly.
Mr. DOMENICI. When the Senator says it guts the bill I say to my good friend is he saying that this is not an amendment that modifies or changes the grandfather section but totally deletes and leaves the bill totally void of any grandfather provisions?
Mr. JOHNSTON. The Senator is correct. Not only the grandfather provisions but the so-called bumper provisions by allowing the Board to decide in place of the agency should the agency itself fail to meet the deadlines.
Mr. DOMENICI. So, as to the grandfather provisions, and some kind of grandfather provisions are thought by most people to be necessary to carry out some of the critical purposes of a Mobilization Board, then if this amendment is adopted that characteristic is gone from the bill. There is no ability to grandfather anything even qualified, conditioned, or otherwise. It is gone. Is that correct?
Mr. JOHNSTON. The Senator is correct and, as I repeat, not only the grandfather but the right of the Energy Mobilization Board to decide in lieu of the recalcitrant State or the Federal agency.
So if this amendment were passed, I think this bill would have lost its utility. I think it would be an empty shell and, Mr. President, a turkey whether baked, broiled, or basted is still a turkey. It is the same amendment essentially that we voted on this morning.
So, Mr. President, I am going to move to table because it is the same thing we have debated all this while. Therefore, I move to table the amendment.
Mr. MUSKIE. Mr. President, will the Senator withhold, please? This is not the same thing. This is not another substitute. This is two bills addressed to the principal issues which have been debated.
The distinguished Senator from Connecticut, who is a coauthor of these amendments, would like to speak. If the sponsors' position on these amendments is so unassailable, as they would suggest it is, they surely ought not to be afraid of whatever arguments we may offer. These two amendments address the very heart of the issue that separates us, and to dismiss it so casually as to table it immediately after they are presented, I think to me is to ignore the public stake that is involved in this legislation.
Mr. JOHNSTON. Mr. President, I certainly do not want to treat the amendment in cavalier fashion. To the contrary, I think the amendment guts the bill, and—
Mr. MUSKIE. Then you ought to be forced to make a case.
Mr, JOHNSTON. Mr. President, every argument I would make against the amendment has already been made, has already been made over and over to almost the point of distraction, and all we can do by further debate, Mr. President, is to prolong the decision on this bill.
Mr. President, yesterday I spoke about tabling the amendment of the distinguished Senator from Maine and the distinguished Senator from Connecticut. Of course, I was more than willing to extend the time to allow full debate.
Mr. MUSKIE. Mr. President, will the Senator yield at that point?
Mr. JOHNSTON. I will yield for a question.
Mr. MUSKIE. I am really struck by the Senator's attitude. This legislation is principally within the jurisdiction of the Committee on Environment and Public Works. We yielded our right to request sequential referral in the interest of expediting it, so we were given no opportunity as a committee to address these issues.
When we try to do it on the floor the Senator likes to suggest he is being magnanimous in allowing one or another of us to speak. That is my concern with the bill — that environmental values will be treated just as cavalierly by an Energy Board, created with an energy emphasis, as it is the disposition of the proponents of this bill to treat us.
You do not even want to hear the case. You may think that the amendment has been adequately covered by debate up to this point. We do not, and State legislatures do not, State Governors do not, and the counties of this country do not think so, because they are calling me now urging me to present these amendments. Now the Senator wants to cut us off.
Mr. JOHNSTON. Mr. President, may I ask the Senator from Maine how much time he would like? Is he willing to go with a unanimous consent request that a vote on the motion to table occur at a time certain?
Mr. MUSKIE. Half an hour would be fine.
Mr. JOHNSTON. Mr. President, I therefore ask unanimous consent that on my motion to table a vote occur at 4:05 p.m.
The PRESIDING OFFICER. Is there objection?
Mr. ARMSTRONG. Mr. President, reserving the right to object, I have no objection to a vote being taken on this matter at 4:05, providing that during that time the Senator from Colorado is allocated 5 minutes.
Mr. MUSKIE. Not later than 4:15.
Mr. JOHNSTON. Mr. President, I would amend the unanimous consent request to state that the vote occur on the motion to table the amendment of the Senator from Maine no later than—
Mr. MUSKIE. Just a moment, if the Senator will withhold. There is a possibility that we might want to get to the point where we would want to consider a modification of the amendment. If we agree to a unanimous consent request at this point, we may be foreclosed.
One of the reasons why I called up the amendments, in addition to wanting to present them certainly on their merits was to open up the opportunity for modification.
Mr. DOMENICI. May I say to the Senator from Maine I would have to object, not on a substantive basis, but I have told the Senator from Alaska that he would go immediately after your substitute, and we accommodated others. He must leave at 5 o'clock, and he wants to offer his substitute no later than 4:15, 4:30, and if we cannot accommodate him I would not go along with the unanimous consent request.
Mr. MUSKIE. May I say to the Senator, No. 1, I was not a party to that agreement. No. 2, I did not call up the amendment from the time we voted on the motion to table at 12 o'clock until 3 o'clock, waiting for Senator STEVENS to offer his amendment. I understood he wanted to offer it immediately after the vote on the tabling motion. He did not do so.
Now I am being asked to cut short my discussion of my amendment because he did not. I am sorry, I would like to accommodate other Senators, and I thought I was doing so.
Mr. JOHNSTON. The Senator, of course, would have the right to put in a modified amendment after this, and we do not mean to cut off any negotiation if the Senator wants to negotiate. We simply want to bring this matter to a head. The Senator from Louisiana desires to push this to a vote as quickly as possible consistent with the ability of the Senator to be heard.
Mr. MUSKIE. There are other Senators who have modifications of the grandfather clause.
Senator RANDOLPH has one, Senator DOLE has one, and there may be others.
Mr. JOHNSTON. This will not cut off their rights.
Mr. MUSKIE. This creates the opportunity for resolving all these issues at one point. It would seem to me that is a constructive objective. We can instead proliferate the debate on various grandfather clause amendments and stretch out the time on this bill indefinitely. If that is the pleasure of the managers of the bill, so be it. But I think we have called this one up, we are on the issue
Mr. JOHNSTON. The Senator wants the ability to modify his amendment?
Mr. MUSKIE. I think other Senators may.
Mr. JOHNSTON. And to have votes on those?
Mr. MUSKIE. I might consider them. I am not going to initiate one because I think — I like the amendment as it is.
But, on the other hand, I also can count votes; at least I understand where the votes are, and if Senators are interested in promoting one modification or another, it seems to me this is a good opportunity to do so. I do not know why we should cut it off arbitrarily at this point only to have to resurrect the opportunity subsequently.
Mr. DOMENICI. Mr. President, reserving the right to object, I want to say to my good friend from Maine I was not implying a while ago that the Senator was in violation of any agreement with the minority whip, Senator STEVENS, but rather Senator JOHNSTON had made a motion to table, and the Senator was asking that it be delayed, and in agreeing to a time I was just concerned that we were not going to let another Senator down with whom we had agreed. So I am not in any way saying the Senator is a party to that agreement to help Senator STEVENS. I did not mean that at all.
Mr. RIBICOFF. Mr. President, may I make a comment? I would hope that the manager of this bill would not compound a pyrrhic victory being achieved by the administration in creation of this EMB by trying to be heavy handed. By being so heavy handed, you are denying the opportunity of the opponents to discuss this proposal.
A very able newspaper person in the Washington Star today has pointed out the unholy alliance between the White House and the energy lobbyists to try to defeat the Ribicoff-Muskie proposal.
Frightened at the prospect of support for the proposal, they called upon a lobbyists for the oil companies, the gas companies, the coal companies, and others to bring pressure against the Ribicoff-Muskie proposal.
I believe the President, in following such policies, has done great damage to his energy proposals, which are now in tatters.
Mr. JOHNSTON. Mr. President, will the Senator yield?
Mr. RIBICOFF. No. It will be a mistake to continue this effort on the floor of this body to cut off debate on behalf of a group of Senators who, in my 18 years in the Senate, have never indulged in a filibuster, never held this floor unnecessarily, and are always willing to agree upon time.
Those attempting to prevent a full discussion, I believe, have exercised a degree of bad faith concerning the understanding that was entered into in the majority leader's office before the August recess. We had agreed to try to work out proposals and bring a degree of understanding and statesmanship to this program.
The Senator from Louisiana can move to table if he so wishes, but it is my opinion that the whole energy program will pay a heavy price for tactics such as this.
Mr. JOHNSTON. Mr. President, I think the Senator from Connecticut knows that I do not want to cut him off from debate.
We certainly do not want to be heavy handed.
If I had intended to cut him off, I would have moved to table without withholding, as the Senator from Maine asked, or without even suggesting — I asked how much time he would need, which was the reason I requested unanimous consent. If the Senator thinks it is being heavy handed to ask how much time would be needed, I am willing not to ask for it.
I only ask that if we withhold our parliamentary right, which is a right to move to table on a matter which I believe was debated this morning — you can disagree with that if you wish — I would hope we could bring the matter to a reasonably rapid conclusion.
With that statement, Mr. President, I will withdraw my request for unanimous consent, I will withdraw my motion to table, and I will simply appeal to the sense of expedition of the two Senators.
Let me say one thing further with respect to an agreement in the majority leader's office. I, of course, was not there,as the Senator knows.
Mr. MUSKIE. You were not there, but the chairman of your committee was there.
Mr. JOHNSTON. At the same time let me say, Mr. President, the staff advises me, first, that the Committee on Environment and Public Works never adopted by vote a position. Second, they—
Mr. MUSKIE. What difference does that make?
Mr. JOHNSTON. Well, the difference is simply that there are certain members of the Environment and Public Works Committee which had concerns which were, to a large extent, accommodated, I am advised, in this bill.
Mr. MUSKIE. They were not accommodated. We agreed to yield our rights as a committee, and now that has been thrown at us as some kind of abrogation of duty. I do not understand this at all.
Mr. ROBERT C. BYRD. Mr. President,will the Senator yield?
Mr. JOHNSTON. Let me say one thing; then I will yield to the majority leader.
I am not aware of any agreement being reached. As I say, we are very sensitive to the conflicting jurisdictions. It is at best always a difficult thing to reconcile conflicting jurisdictions. I hope it was done adequately in this case. If it was not, I personally regret it, and we will try in the future to harmonize, reconcile, and accommodate the desires of Senators, as I am doing at the present time by withholding the motion to table and withholding the unanimous consent request.
Whatever was done in that respect, it is too late now to go back and correct the past, but if the Senator has an amendment, he can of course bring it up at the present time.
I yield to the majority leader.
Mr. ROBERT C. BYRD. Mr. President, we have spent about 10 minutes here talking about nothing, with all due respect to everyone.
I ask unanimous consent that the Senator may have an up-or-down vote on his amendment, and that the vote occur not later than 4:30 p.m. today, and that it be followed by an amendment by Mr. STEVENS and Mr. HUDDLESTON.
We did have a kind of gentlemen's understanding yesterday to the effect that Mr. STEVENS would be given an opportunity to call up his amendment after the disposition of the first amendment by Mr. MUSKIE today. I do not know what happened at that point, but at any rate, this will give Messrs. RIBICOFF and MUSKIE an up-or-down vote on their amendment, and give Mr. STEVENS and Mr. HUDDLESTON an opportunity to present their amendments today. I think that would be a good day's work.
The PRESIDING OFFICER. Is there objection?
Mr. MUSKIE. Mr. President, reservingthe right to object, I do need to offer a technical amendment.
Mr. ROBERT C. BYRD. I temporarily withdraw my request.
Mr. MUSKIE. I would like to conclude on the amendment. If it creates any problem, it is simply technical and does not change the substance of the amendment.
The PRESIDING OFFICER. The clerk will state the modification.
The assistant legislative clerk read as follows:
Amendment 486 is modified to read as follows:
Beginning on page 140, line 3, strike all of section 36.
The PRESIDING OFFICER. The amendment is so modified.
The amendment, as modified, is as follows:
Beginning on page 140, line 3, strike all of section 36.
Beginning on page 51, line 23, strike "(a)"and all after through "(b)" on page 52, line 17.
Mr. ROBERT C. BYRD. Mr. President,I ask unanimous consent that the vote on the amendment by Mr. MUSKIE and Mr. RIBICOFF occur no later than 4:30 p.m. today. That protects them against a motion to table. If the distinguished Senator from Louisiana objects, I will certainly have no feeling about it.
Mr. JOHNSTON. I have no objection to that.
Mr. DOMENICI. Mr. President, reserving the right to object, I want to take only about 30 seconds of the time that remains.
I do not want to deny you any right to amend the bill, but we do want to make this point: This amendment is an amendment that merely strikes two provisions in the bill.
Mr. MUSKIE. I am aware of that.
Mr. DOMENICI. Well, there is a slight difference in terms of the debate on something that strikes versus a modification. I thought we had made that point, and we did not, in prerogative to our motion to table.
I want to say I am not for tabling it. I want to vote up or down. I do not have a unanimous consent request; I just want to say there is a difference, to some people, between an amendment and a motion to strike in an amendment.
Mr. MUSKIE. May I say to the Senator, half-way between zero and 10 is five, so you get to five from zero.
Mr. DOMENICI. I understand.
Mr. ROBERT C. BYRD. Mr. President,I am not trying to inject myself into the management of the bill. If the managers want to object, fine. But I do hope we will have an up-or-down vote, which would give the authors of the amendment a feeling that they have had their day in court.
The PRESIDING OFFICER. Is there objection to the request of the Senator from West Virginia? Without objection, it is so ordered.