October 2, 1979
Page 27084
Mr. MUSKIE. Mr. President, I would like to step back with respect to the details of this legislation for just a moment and make a few observations which may have been obscured in the past few months since the President sounded the call for energy mobilization.
First, the President proposed the creation of a new executive agency, an Energy Mobilization Board, to carry out a portion of his national energy program, a new executive agency, a concept that generally would be subject to extraordinary scrutiny by the Senate, particularly the Committee on Governmental Affairs.
However, this was not just a new Federal entity, as is clear from the debate that has taken place thus far this afternoon. It was one with extraordinary powers to alter Federal, State, and local laws relating to energy facilities. Most specifically targeted were laws such as environmental protection.
I was concerned 3 months ago, as I remain today, about the rush to create this new body, with little of the thorough and searching examination usually accorded to such major legislative initiatives. I am not opposed to the development of synfuels to reduce our dependence on imported oil. I am not opposed to increased use of coal to reduce our dependence on foreign oil. I am not opposed to expediting the review of energy facilities to achieve the President's goal of a 50-percent reduction in the use of imported oil by 1990.
What I do oppose is a headlong rush to create a powerful, new Federal entity, without consideration of alternate, perhaps existing, mechanisms to expedite energy facility review, the failure to identify the specific problems associated with energy development which the Senate must address, and the failure to agree on the purpose for which the legislation is being enacted.
As a product of that concern, which obviously was shared by other Members of this body, including Senator RIBICOFF, the principal sponsor of the substitute; Senator ROTH, the principal cosponsor of the substitute; and other Senators, S. 1806 was developed.
Frankly, I think it is superior legislation in its entire structure, apart from issues raised by the committee bill which the substitute seeks to address. I simply think it is a sounder piece of legislation.
So we have tried today to make one last attempt to focus the attention of the Senate on the magnitude of the implication of S. 1308, the Federal, State, and local laws especially as they apply to environmental matters at the State, Federal, and local level.
We must continually remind ourselves during this debate that the original goal of this legislation was to reduce our dependence on foreign oil. The President presented us 3 months ago with a many-faceted plan to reduce our dependence on foreign oil by 50 percent by the year 1990. One mechanism he proposed to achieve this goal was the creation of an Energy Mobilization Board to expedite consideration and review of proposed energy facilities to replace imported oil. Yet the Energy Committee has chosen to give expedited treatment and substantive and procedure waivers to any energy facility which the Board finds could, directly or indirectly, reduce the Nation's dependence on foreign oil.
I ask my colleagues, can they think of any energy project which could not claim that it indirectly reduces our dependence on foreign oil through some sort of convoluted reasoning?
Surely, we cannot assume that the Board will exercise the restraint that has not been shown by the authors of the legislation.
And is the Board accountable to anyone in deciding which facilities receive special expedited treatment? That is an important question, Mr. President, because the Board puts in place a loose, ambiguous test, the only one in the committee bill, as a criteria and then gives to the Board the power to decide which projects go on the fast track. The Board's decision is not reviewable in the court or anywhere else.
There is no judicial review available of the decision to fast track any number and any type of non-nuclear energy facilities.
This legislation is targeted obviously on environmental laws, and most specifically the Clean Air Act, but including others as well. Yet there is no requirement in this bill that in deciding whether or not to fast track a project the Board should at least identify the environmental considerations, values, and risks that are involved.
It will make a nonreviewable decision to fast track a project only upon its own notion of the projects that need to be built for energy purposes, without consideration at that point of the environmental implications.
Mr. JOHNSTON. Mr. President, will the Senator yield at that point?
Mr. MUSKIE. I am glad to yield.
Mr. JOHNSTON. The Senator does understand that we did make the decision on the committee, and the bill reflects it, not to waive any substantive law. The only thing it waives here is a time limit so that the State, local, and Federal decision makers must comport their decision time to the decision schedule. But all of the substantive requirements of the Clean Air Act or the Clean Water Act or all of these acts to which the Senator refers that do involve environmental values are all preserved; and, indeed, when the Board finally decides for the recalcitrant agency, it must use the decision criteria of that particular agency — State, local, or Federal. The Senator does understand that provision?
Mr. MUSKIE. I understand it, but I am not impressed by it.
I have been in the business of writing environmental laws since 1963 and I have come to understand the importance that procedural requirements and procedural safeguards have with respect to protecting the substantive law itself, a lesson I learned in law school years ago, as I started to say earlier this afternoon. Substantive rights can be destroyed by a denial of procedural rights. And time schedules we found in environmental laws are all too often too short to present either the interest of those who would be regulated by environmental legislation or those whose interests are designed to be protected.
What we have here is a board which would he waiving procedural safeguards and requirements, shortening deadlines in some instances, extending them in other instances, without the kind of appreciation for the substantive implications of those decisions. That is what troubles me.
On the face of things the language to which my good friend refers indicates an intent on the part of the committee to separate substantive and procedural law. I just do not think it is going to work, especially when what you have, in effect, is an across-the-board deadline setting mechanism instead of a deadline setting mechanism that to the maximum extent possible reflects the differences in deadlines and their importance in different laws. It is just an across-the-board, I will not use the word "meat-ax," but an across-the-board sweeping kind of deadline setting that may or may not adequately protect the substantive values involved.
Mr. JOHNSTON. Mr. President, will the Senator yield further?
Mr. MUSKIE. Yes, I yield.
Mr. JOHNSTON. I invite the Senator's attention to two other provisions of the bill. That is not only the protection which I have just referred to. That is that no substantive law is waived, except in the case of the grandfather clause, but also the fact that if the time limit set is unreasonable then that decision itself is appealable to the TECA court. So if a State or other litigant is not able within the time limit to perform those procedural steps that are essential to protecting the substance, then he has full remedy to go to the Temporary Emergency Court of Appeals. Moreover,we do not supplant the right of the State, local, or the Federal people to make their own decision. They still have the right to say no.
Mr. MUSKIE. Yes. I have heard that argument. But let me ask my good friend a question.
I will let the Senator finish his point while I find the document I was looking for.
Mr. JOHNSTON. I also invite the Senator's attention to page 39 of our report which makes this description which, I think, is very accurate. It says:
Although the deadlines and procedures established by the Board could be binding, they do not authorize agencies to ignore any other statutory requirements in their efforts to meet their deadlines. Agencies must still comply with such laws in every respect.
So it is a balancing, on the one hand, when you set deadlines, but reasonable deadlines subject to appeal.
On the other hand, all of the substantive criteria must, as the report says, comply with such laws in every respect.
So I fail to see the Senator's concern, given the elaborate safeguards of the bill, of how it would be possible to roll over the substantive requirements so carefully built into the law by the Senator from Maine and others in this body.
Mr. DOMENICI. And we made more than 150 — I ask him today — changes in the report because we were so concerned that it is difficult to write into a statute the things you want to write into it, and we were even having a report helping to interpret the second Clean Air Act.
Mr. MUSKIE. The Senator is making my argument better than I am.
Mr. DOMENICI. I will say this: We did not get on this bill thinking we were substituting this Board for the substantive environmental laws of this land. In fact, I can tell the Senator that what I have assumed was this, and I will give the Senator a simple hypothetical, knowing full well that he can find very complicated issues in terms of clean air.
But before I give you my example I want to say that I, for one, having been part of all that, do not assume for one moment that there are not delays in that process that are uncalled for, that could be constrained without in any way changing the substantive law, meaning the mandate of performance in terms of clean air in a factory, in a pipeline or refinery or whatever it is. So I assumed the following: That if one of these projects was going to be fast tracked that this Board would not determine compliance with the Clean Air Act either the United States or New Mexico, but rather New Mexico's EPA will, and the United States will, and if there is not compliance they will say "No."
The only thing we are saying is we are going to, within reason, set the time within which you say, "You are in compliance,"or, "You are not in compliance." In no way would you be saying to either EPA or New Mexico, using my State, that they need to say to this Board, "You, Board, take over for us and dictate to us the standards of clean air required by some kind of construction."
I do not know how else we can do it, but that is the intention from this Senator's standpoint. Yet I want to see it expedited as much as possible.
Mr. MUSKIE. Let me say to my good friend from New Mexico that if we had followed a similar process of assumptions or good intentions in writing the Clean Air Act the clean air law would be much shorter, much simpler, much clearer. But among those Senators who insisted that you could not make such assumptions, in order to protect the interests with which they were concerned, the law had to be made more complicated, clearer as to its safeguards, clearer as to the rights of judicial review. I mean a lot of the complications in the Clean Water Act are written in to protect those who are regulated, and the members of the committee would accept no assumptions that the bureaucracy would not abuse businessmen trying in good faith to comply or industries trying in good faith to comply. They wanted it written into the law.
We are told that we have written an over-complicated law, that the bureaucracy uses that over-complicated law to delay and stretch out decision making. I mean if we could write a law the way the Senator describes he wrote this one we would not be here, because I would have made sure that we wrote crystal-clear objectives in the law and assumed that with the Administrative Procedure Act the rights of interested parties would be protected.
Mr. MUSKIE. Well, Senator, in this agency, whose primary responsibility is to expedite energy projects, you would not for a moment suggest that that body is as qualified to consider the administration of the Clean Air Act as those now in charge.
Mr. JOHNSTON. No, absolutely not.
Mr. MUSKIE. If I may complete my thought, and the whole bias is going to be to push energy projects and to minimize obstacles. That is the word that will be used "obstacles."
I am not one, having struggled to write the Clean Air Act for all these years, who regards the Clean Air Act as an obstacle. I regard it as a protector of public health. But those whose primary responsibility is to build energy projects will be inclined to look on safeguards of the Clean Air Act and the Clean Water Act as obstacles standing in the way of the performance of their primary responsibility, and they are going to look upon those who raise such questions as aggravating and undesirable interferers in the discharge of their responsibility.
Moreover, they are not going to have at their disposal, unless what is contemplated is a bureaucracy the size of which is not projected in this legislation, the expertise or the background in dealing with the problems encountered in the administration of the Clean Air Act or the understanding of the implications of the legislative language and the regulatory language that is in place, that the administrators of the Clean Air Act have accumulated over the year.
So whether it is deliberate or intended by the pending bill or simply the product of unfamiliarity, ignorance, lack of expertise, or whatever, the Board will be making procedural decisions which could have significant substantive impacts. I think examples of that could be listed in ways that would take a week to cover them all.
Mr. DOMENICI. Mr. President, will the distinguished Senator yield for an observation and a discussion with him?
Mr. MUSKIE. Of course.
Mr. DOMENICI. I do not want the floor, but just to share a few thoughts.
I think you know that two of the Senators who spoke before, and who are on the committee, Senator MCCLURE and myself, while we have not struggled nearly as long as the Senator from Maine with either the Clean Air Act or the Clean Water Act, both of us went through two conferences, saw one of our bills killed on the floor in the waning hours, and then had to go through it all again, as the Senator will recall, and the Senator had the support of both of us, Senator MCCLURE and myself, and, in fact, I think the Senator will recall that one of the Members who is on this report, Senator MCCLURE, as I recall the Senator's words, for the first time asked that a report be subject to committee scrutiny in detail.
Mr. MUSKIE. That is right.
Now you tell me that I do not have to fear a similar approach of yours. That the shortening of a deadline — there cannot be anything wrong with shortening a deadline — who on the face of it can object to the shortening of a deadline? Well, the Senator knows the kinds of discussion and deliberation and disagreement that went into establishing the deadlines in the Clean Air Act and Clean Water Act in the first place. There were some who said they were too long, too far in the future. Others said they were too short. Why did that arguing go on? Because those offering either one or the other argument knew that their substantive rights could be affected if a deadline was too short, and those who were interested in implementation of the law feared a deadline too far in the future would not protect the public interest.
So when you tell me changing a deadline has no substantive impact, I am not impressed, Senator. I am not impressed. I have been hearing that argument since 1963. I am not the one who offered the deadline, or who originated it.
Mr. DOMENICI. Mr. President, will the Senator yield?
Mr. MUSKIE. So if the Senator tells me, "Look, we are only asking to shorten deadlines and that surely has no substantive effect," baloney. That is not the fact.
Mr. DOMENICI. Let me say this to the Senator. If the Senator would just give me a moment
Mr. MUSKIE. Well, it is my time, and I will yield it to the Senator when I have finished, and I will be glad to at that point.
Mr. DOMENICI. If the Senator is saying to me and to the American people that the Clean Water Act and the Clean Air Act have not caused any delays that could be cured without doing any violence to the health of these people, then I am not impressed, because you know they have.
Mr. MUSKIE. I have yielded for a question and not for a diatribe, but I have not said any such thing.
Mr. DOMENICI. You said you were not impressed about any delay.
Mr. MUSKIE. I am suggesting that this additional bureaucracy you would create could produce more delays, and if you tell me and the American people it will not, then you are disabusing the American people.
You are talking here about a process that will put you in confrontation with State and local agencies and with Federal agencies, which after all, do have a duty, and they are not dreamers.
They are charged with doing what? Protecting two other scarce resources.
You emphasize energy. How about air? How about air? There are many cities in this country today that do not have enough clean air or enough air of sufficient quality to protect public health; and that quality is being protected by what? By deadlines requiring people to do something about it by a certain time.
You tell me that deadlines have nothing to do with substantive rights or the health of people or the quality of our water or the state of our economy?
I am tempted, you know, perversely tempted to suggest that those of us who have questions about this legislation just sit down, be quiet, let the proponents have their way and write this into law, so that after 15 years of arguing for legislation and regulation to protect the public health, those who find them a burdensome kind of regulation can have their way to go ahead and expedite these projects, without limit. There is no limit in the bill. These projects can be rubber stamped — 50, 100, 150, or 200, it does not matter.
Let them have their way and build these synthetic fuel plants. After they have turned the first shovelful of earth, you grandfather them, so that no matter what you learn about danger to the air, while it is under protection, we are forbidden to do anything about it.
Then just let these pollutants discharge into the air and begin finally to destroy the atmosphere, without which combustion of your energy is not possible, and then the first city becomes unlivable for a day, for 2 days, for a week, and then you will have to explain why you impressed this kind of a law on the American people. Then I can say, "I told you so."
That would be a nice feeling, except that I do not want to see that day come. I mean, what is wrong with having the decision on the fast track judicially reviewable? What is wrong with that? Those who seek to advance the issues of big business want judicial review wherever they can write it into the statute books. You bet your boots they do.
Mr. JOHNSTON. Will the Senator yield?
Mr. MUSKIE. I want to finish my argument first; then I will yield.
But, no, you designate the fast track with nothing in the statute requiring that you even take a look at the environmental implications, without any limitation on the numbers of facilities, and without any real demonstration that the decision will contribute to a reduction of our dependence on foreign oil by 50 percent by 1990. Not even that is written into the law.
Of course you do not want it judicially reviewable; there is nothing to review. Absolutely nothing to review.
So, having made that start, for which the only consideration is that it be just any project, any old project having anything to do at all with energy, it can be put on the fast track. I have been told that deepwater ports which receive foreign oil are being considered, or at least are lining up as candidates for designation. I do not know what is going to prevent them from receiving preferred treatment. There is one in my State that will be a candidate. From the beginning of its design, almost a decade ago, the whole thing was premised on importing foreign oil. It is lining up to get on the fast track, and I do not see anything in the criteria of this bill that will prevent or prohibit an administrative decision that will permit it to do so.
All the environmental considerations that are of concern to Canada as well as to my State, impacting on the air as well as the water which are being adjudicated in the courts and administrative agencies, none of those would amount to a hill of beans, because they are going to be on the fast track. And let me say this to my good friend from New Mexico: Here is another fact. You know, you put a project on the fast track and a signal is sent through the bureaucracy, Federal, State, and local, that this project is a project the country needs, because Congress has said so. That is a green light for all such projects.
Just what kind of consideration will an environmental agency give to a fast track project? They are going to give it the green light. They are going to give it minimal consideration, at least that will be the pressure: "Push this thing through, or you will be hauled up before a congressional committee, or the GAO will be sicced on you," or whatever.
Once they give it the green light, there is nothing in the criteria that sends up any red flags about the environment — no criteria, except that a Board whose opinion is not going to be second guessed by anybody says this is a fast track project. This means it has got to be built, hell or high water. Once you turn the first shovelful of earth, anything you learn about its environmental effects, however toxic, dangerous, or damaging to the health, goes by the board. You cannot do anything about it. That is the grandfather clause; you cannot do anything about it.
When an environmental agency gets the signal that an energy project has gotten that kind of a blessing from the Energy Mobilization Board, what inclination will it have to discharge its principal obligation, which is protecting the health of people and protecting the quality of the environment?
Mr. President, it is possible — and this is what frustrates me about this whole thing — the substitute makes possible the expediting of the regulatory Process with respect to environmental law in a sound way. You know, what the writers of this legislation overlooked is the enormous ingenuity which groups and individual citizens in this country have found, in such a public policy, to delay, to have court tests, and to do whatever we do to try to write laws to prevent it.
You think you have eliminated judicial review of the designation of fast track projects. I would be willing to make a small bet that somebody will find a way to get you in court on that.
Somebody is going to find a way to get you in court, and not just once. By denying judicial review to that decision, you are just going to trigger efforts on the part of environmental groups and other groups to get that decision into court.
There is no way that you can guarantee what the courts will decide with respect to it. I have my doubts that you will succeed in keeping that issue out of court. But by writing it in, you almost guarantee time-consuming delay and frustration at the new level of administrative bureaucracy that you are creating with this bill.
They will get you into court. You can bet your boots they will. We have tried as have other committees to cut down on the litigation on issues involved in policies that we have established by legislation. It just is not the name of the game any more.
When you start to cut off the State agency and to assume its decision making powers because it has failed to meet your deadline, whether failing to meet it was for good cause or not — this bill assumes that the delay by the State agency was completely without justification. When a Federal bureau comes in to make that decision under State law, without the expertise, without the background, the whole State will rally against the Federal bureaucracy. You are going to find yourself caught up in a tangled web of litigation when you try to substitute the Federal administrative agency's judgment in the administration of State or local law for that of the State or local agency.
It is not going to stand up; it is not going to last. It is just not the kind of thing that the American political system will accept. And to hear it proposed by people who come from areas of the country that I have always identified with strong support for States rights as against the Federal bureaucracy, I find myself somewhat stunned. The fact is that you can argue the details of your language and your provisions, but what you are doing here is creating an agency that can alter substantive law. As a matter of fact, the bill says that. The bill says in section 6; "The Board may alter Federal, State, and local law."
The amendment that was offered a little earlier narrowed its application to environmental legislation. As far as I can tell from my present analysis, until that amendment was offered, the Board could alter any law — civil rights, labor laws. To that, apparently, the proponents of the bill, having been alerted to the dangers of that language by the opposition that we have raised and the allies that we have acquired along the way in opposition to it, have offered a modification.
The fact that they have stricken some of these laws from its application does not mean that the application is any wiser or any sounder with respect to what is left. If it was bad law with respect to labor-management relations, pensions, working conditions, minimum wages, maximum hours of employment; if it was bad law with respect to State civil rights laws; if it was bad law with respect to State criminal laws; if it was bad law with respect to the antitrust law of the United States, then it is bad law with respect to environmental laws. Is there something peculiarly abhorrent about environmental laws that they should be set aside in this way?
Suppose that laws dealing with labor-management relations do, in fact, delay the construction of an energy project. Why is that delay any different than a delay attributable to environmental laws? If a civil rights law, in fact, because of threatened practices at the project or in the vicinity, results in a delay of the construction of the project, why is that delay any different than a delay generated by environmental laws?
So, I think it is a bad, bad precedent. The sponsors of the legislation recognize it in the amendment they offer. If it is bad there, it is bad with respect to environmental legislation.
Mr. President, the bill undertakes to modify the National Environmental Policy Act. I am one of the authors of the National Environmental Policy Act. Congress enacted that law because of the mistakes being made by Federal officials, who obstinately refused to consider the consequences of their actions for the human environment. The Senate report on NEPA states it very well:
Environmental problems are only dealt with when they reach crisis proportions. Public desires are seldom consulted. Important decisions concerning man's future environment continue to be made in small, but steady, increments which perpetuate rather than avoid the recognized mistakes in previous decades.
There is nothing to suggest, Mr. President, that anything but NEPA stands between the more or less informed decisionmaking of today and the tunnel vision of a decade ago. The problem at that time was not rooted in the intransigence of individuals or individual officials but in the nature of institutions. If the mission of an institution is to get something built, it inevitably looks on all considerations other than how to complete that mission as obstacles to be overcome, not essential issues to be addressed.
What were the examples before us when we wrote NEPA? The Corps of Engineers, which was created to build projects; the Department of Interior in the reclamation program, created to build projects.
My good friend from Louisiana is a principal advocate of water projects. I believe in their development.
The Defense Department, involved in construction. So every Federal agency that was involved in building something before NEPA paid absolutely no attention to environmental considerations. Witness after witness came before us in the Environmental Pollution Subcommittee in those days and said, "Well. now, you have a nerve, asking us in business and private life to meet certain standards and then you refuse to meet them in Federal activities, Federal programs, Federal agencies and departments."
So NEPA was written for that purpose. The purpose is to broaden the vision of governmental officials to make them think before they act, to look before they leaped. It was more than a mandate to stop and think. It contained a set of procedural requirements for agencies to follow, and the reason is simple. As Senator JACKSON, principal architect of NEPA, said:
Realistically what is needed in restructuring the governmental side of this problem is to legislatively create those situations that will bring about an action-forcing procedure the departments must comply with. Otherwise, these lofty declarations are nothing more than that.
(Senator HENRY JACKSON, Hearings on S. 1075, S. 237 and S. 1752 Before Senate Committee on Interior and Insular Affairs, 91st Cong., 1st Sess. 116 (1969).)
So now we are going to reverse that, go back to the pre-NEPA period, tell these agencies the only thing they have to be concerned about now is energy, energy projects of any kind, whether they affect importation of oil or not.
The purpose of all of the procedural requirements set forth in section 102(2) of NEPA is to structure environmental analysis into Federal decision making to force Federal officials to obey the law. The purpose of the written record required in an EIS is, in short, to prove that the law has been obeyed.
S. 1308 preserves the form of NEPA but abandons the substance. While an EIS will be written on most priority energy projects, S. 1308 renders that EIS a meaningless exercise. The Board would choose the agency to write the EIS (S. 1308, section 13(e) ) and could order that agency to proceed "without requiring assistance from any other Federal agency" (section 13(g)) including, I suppose, EPA, the principal agency that could advise the Board on the environmental implications.
So we are going to have an environmental impact process, the lead agency picked by that Energy Board, and that Board can order the lead agency to proceed without requiring assistance from any other Federal agency.
The Board could then "[n]otwithstanding any other provision of law" require that the statement prepared in isolation by a single agency be used for any or all Federal agencies to satisfy [NEPA] and by any or all State or local agencies to substitute for any comparable statement required by State or local law. S. 1308, section 13(d) (emphasis supplied).
The result would be a heavy book describing environmental issues, but it would have nothing to do with the thinking of agency decision makers. The decision makers would be released by S. 1308 from the NEPA requirement that they consider the environmental consequencesof their actions. There is no purpose in writing EIS's for show, their only function is to force Federal officials to demonstrate that they have analyzed the impact of their decisions on the human environment.
When we have an EIS ordered by an Energy Board, written by a lead agency not skilled with background in environmental issues, with environmental agencies excluded, as the Board can order from any consideration of environmental issues, of what value would that be?
I can hear the supporters saying that they do not mean it to come out that way. Well, then they should not have written it that way.
The Ribicoff-Muskie substitute preserves the substance of NEPA while streamlining the process. It permits agency compliance with NEPA to be reflected in a single EIS (S. 1806, section 12(d) (1) ), and requires that that compliance be completed within deadlines set by the Board (S. 1806, section 12(f)). There is no language in S. 1806 purporting to authorize the Board to alter NEPA.
Mr. President, there is one final subject I would like to address before I yield the floor. I have referred to it already, and that is the "grandfather clause."
S. 1308, unlike the Ribicoff-Muskie substitute, permits the Board to set aside laws and regulations yet to be written.
Section 36 of S. 1308 empowers the Board to waive the application of any Federal, State or local statute, regulation or requirement enacted or promulgated after the commencement of construction of a priority energy project.
That has been modified by the amendment offered today, as I described, and as the sponsors described it earlier. But the grandfather clause still applies to environmental laws.
The only conditions for the exercise of this "grandfather waiver" authority are that the Board must find the waiver necessary to "insure timely and cost-effective completion and operation of the project" (section 36(a) (1)) and that the "waiver will not unduly endanger public health or safety" (section 36(a) (2) ). Thus the Energy Mobilization Board would have authority to balance industry's dollars against the health of the public.
The energy technologies most often suggested as candidates for environmental "grand fathering" are new synthetic fuel technologies. It is because they are new that the dangers to public health that they present and the means for their control have not yet been evaluated. Yet it is known that oil shale and coal liquefaction processes generate toxic wastes and carcinogens. The health and safety statutes to which such technologies would be subject were enacted by Congress with full consideration of which provisions should permit the application of rules to new sources of pollution only and which warranted application to existing sources. Virtually all of those statutes provide for agency consideration of costs and benefits. That function should not be transferred to the EMB. The prospective grant of "grandfather" authority to the EMB implies that we neither can nor should learn from experience. Imagine the situation today if an EMB had been in existence to waive the control and cleanup requirements related to the disasters from PCB's polyvinyl chloride, kepone, and Three Mile Island.
The new energy technologies, because they are new, involve dangers that have not been assessed. As the data to assess these dangers become available, the power to respond should be left with the agencies created by Congress to make such judgments, agencies whose responsibility is to protect the public and whose expertise renders them competent to do so.
Mr. President, I yield the floor.
The PRESIDING OFFICER (Mr. BAUCUS) . The Senator from Louisiana.
Mr. JOHNSTON. Mr. President, the Senator from Maine is eloquent, persuasive, and has done a magnificent job of tearing down some straw men which we did not erect.
I am sure he has unintentionally misconstrued some of the provisions of the bill, and I will be very brief, just to set the record straight.
I do not want to keep arguing and repeating some various things, but just to set the RECORD straight and make a couple of things quite clear.
First of all, the Senator read from a section of the bill. He read this statement:
The Board may alter Federal, State, and local law.
The bill does say that in subsection 6(h) on page 31. Unfortunately, the Senator did not read the rest of the sentence which says :
only as authorized by sections 13, 17, 18, 21, 22, 28, 34, and 36 of this Act.
Mr. MUSKIE. Will the Senator yield.
Mr. JOHNSTON. That refers to the so-called grandfather clause. It was, as a matter of fact, an amendment put in by the Senator from Arkansas (Mr. BUMPERS) who wanted it to be crystal clear in this act that there was no implied waiver, that the only waiver of State law, really, was that which applied to the project decision schedule with respect to time limits and to the grandfather clause.
So he put that amendment in, not to broaden the effect of the argument, but to make it very clear there was no implied waiver.
The report makes it particularly clear in discussing this section 6, on page 36 of the report, as follows:
The intent of section 6(h) is to make it clear that the Board could alter Federal, State and local law only as authorized by the enumerated sections. The provision is included to eliminate any doubt about the scope of the Board's powers. The Board does not have any implied authority to alter Federal, State, or local laws.
Another section of the report, in section 17, on page 39, also makes it clear, as follows:
Although the deadlines and procedures established by the Board would be binding, they do not authorize agencies to ignore any other statutory requirements in their efforts to meet their deadlines. Agencies must still comply with such laws in every respect.
So all I am saying, Mr. President, is that there is a waiver of State law in a very limited way, and that is principally with deadlines, where the Board can set the deadlines for State, local, and Federal decisions, with the procedure being provided for expanding those deadlines where they are unreasonable, with access to the courts and the grandfather clause, which prevents States, particularly States or local subdivisions, from coming in with this kind of after-the-fact, discriminatory law which says, "Yes, we know you spent 7 years and $50 million getting all these permits, but now we have changed our minds, and now we have a new requirement for you."
We say they can make that new requirement if it deals with health and safety. But if it is another of those laws the State of North Carolina passed, which says, "We changed our minds; no refinery at Piney Point, North Carolina" — yes, that is prohibited by the grandfather clause, but it is a very narrow grandfather clause indeed.
Mr. MUSKIE. Mr. President, will the Senator yield?
Mr. JOHNSTON. Let me finish these points, and I will yield.
Mr. President, there is also a statement here about the EIS, about the fact that the Board does not have to consult with respect to the EIS.
One of the problems with building energy projects has been the proliferation of environmental impact statements — separate statements required by more than one Federal agency and more than one State and local agency — and they are all to serve the same decision making process. They all involve precisely the same interests, the same values.
So, in discussing this legislation with the committee — by the way, we had a proliferation of hearings and 15 markup sessions — we said, "Let's consolidate this."
So the scheme is this: The Board, after discussion with the Council on Environmental Quality and before making this project schedule, shall designate the lead agency. After that lead agency is designated, it has what we call "scoping" meetings. The purpose of the scoping meetings is to identify the issues, to establish the content of the environmental impact statement, and to
determine whether and how responsibilities should be apportioned among the Federal agencies.
Mr. President, that only makes sense, to designate a lead agency and not have a committee with no centralization of authority and that the work be seeped so that it is all moving together with some sense of direction, rather than proliferated, without any sense of direction or responsibility.
However, it specifically provides that any comments, opinions, or materials submitted by Federal, State, or local agencies shall be considered by the lead agency and made available to the public.
So it is absolutely clear here that any Federal board or any State agency has the right to have its comments, the facts it wants to adduce, any other material which it wants to provide — it has a right to have that considered by the Federal agency, and that, in turn, shall be made public.
So, Mr. President, not only is there no intent to cut off any Federal agency or State or local agency from having its material considered; to the contrary, the right of such agency with respect to Federal, State, or local law is guaranteed, that they shall have that considered.
Two other quick points:
First, we get these doomsday pictures of the Clean Air Act and all its values and all its injunctions and all its protection for the public, somehow being thrown out the window. That is a compromise we made in this bill early on. There is no surrender — let me repeat — there is no surrender of any requirement of the Clean Air Act, of the Clean Water Act, or any public law, whether it deals with toxic substances or any other Federal law, save in two respects: First, the right of the Board to make a project decision schedule; second; the grandfather clause, which says you cannot change the rules of the game after companies have relied upon permits and spent a considerable amount of money, except for purposes of health and safety. If those purposes are served by the ex post facto laws, then ex post facto laws are legal.
Not only do we require that every provision of Federal, State, or local law be adhered to in terms of the decision criteria for all these decisions — every one of those criteria must be adhered to — but, also, there is an appeal; and in addition, there is the right to say, "No." We are not telling the State, local, or Federal people how to decide. We are not telling them, "You have to give them the clean air permit." We are not telling them that they are entitled to a zoning permit or any other permit. But we are saying that there is a time for decision. Give us your yes or no, but make it timely.
Mr. President, I will close by saying this: I read into the RECORD a list of 20 or 30, projects, when I started my presentation this afternoon, that had been stopped by delay, by delay, by delay. I suppose that probably the most conspicuous example — at least, the most recent conspicuous example — is the Sohio pipeline.
Consider this, Mr. President: The Sohio pipeline people wanted to build a pipeline from California across the mid-part of the country, terminating in Midland, Tex., as I recall. It was to handle the Alaskan oil which right now must go through the canal or all the way around the Cape.
The extra cost of that to the consumers of this country is tremendous.To have to go all that distance, it was dollars and dollars on the backs of every American user of gasoline. So they were going to build this pipeline.
Do Senators know what they were faced with? They had 700 permits to file for. Seven hundred permits, Mr. President, and they spent 5 years applying for those permits; and they spent $50 million applying for those permits. Seven hundred permits, 5 years, and $50 million.
Do Senators know what happened during that period of time? The cost of the pipeline went from $500 million to $1 billion, and they never could get their permits, and they gave up.
We can talk about all these wonderful values of the Clean Air Act. That happens to be one law. But what do you do when you are trying to build a project to provide energy to get away from the Arabs, away from OPEC, to provide energy at cheaper prices for Americans, and get away from $1.05 a gallon of gasoline, and come up with something that says you have to have 700 permits and we will let you spend $50 million in 5 years, and we still are not going to give it to you?
If anybody on the floor of the Senate can defend that kind of action, I would be very surprised to hear any logical argument.
Why do we say that we object to the Muskie approach, that you go to court every time you want to enforce one of these deadlines? That makes the Sohio thing that much more difficult. I would rather have the present status quo than to have the Muskie approach. Do Senators know what we would have in the Muskie approach? We would have 700 permits, the same as we have now
Mr. MUSKIE. Mr. President, will the Senator yield for a question?
Mr. JOHNSTON. I will yield in a moment.
Seven hundred permits, with the possibility of 700 lawsuits, some of them going through the Federal courts here, some of them going through one county court and another in another county court, some in the State court of appeals, some in the State supreme courts.
Mr. President, if that costs $50 million unsuccessfully by the time you put lawyers fees on top of the Sohio pipeline you might have a billion dollars in legal fees. Well, I guess that is an exaggeration.
Why do I oppose the Muskie amendment in going to court, Mr. President? It is because courts are the problem now.
Mr. MUSKIE. Let me answer.
Mr. JOHNSTON. I will yield in 1 minute.
Mr. MUSKIE. The Senator asked the question.
Mr. JOHNSTON. Courts and attorneysare the problem. And, oh, I used to love all these laws you know because as my dear departed father used to say when I came into law practice with him, "Son, the safety of the Republic lies in a well paid bar."
I took that to mind and to heart, at least while I was a lawyer, trying to prove the truth of that.
Since I have gotten in the Senate I see the safety of the Republic lying in quite another aspect. I see the safety of the Republic literally lying in trying to get some energy for this country.
Unless we cut through some of this redtape and unless we eliminate some of the lawyers, some of the appeals, and some of the lawsuits, we are likely to be around here 10 years from now and still not have the Sohio pipeline built and still not have any of these refineries — this is the list of about 20 I read — that they have been trying to build on the east coast and certainly no synfuels projects and no oil terminals and no pipeline projects, and we will just be worse off, more into recession, more into inflation, with higher interest rates and all that goes with being dependent upon OPEC oil.
Let me say one thing and then I will yield. This will be very short. Just last week there was an article in the Washington Post that I would have thought would have shook this Nation to its very foundation. That article said that the SPOR project, the Strategic Petroleum Oil Reserve which this Nation, this Congress decreed as its first priority in dealing with the energy crisis — that was the program under which we were going to try to put over a billion barrels of oil in salt domes in Louisiana in case we have an interdiction of supply. It was very important and Congress voted it and provided for it. That article in the Washington Post said that the Executive had stopped that program because Saudi Arabia had objected. Because Saudi Arabia objected this country stopped doing what we considered and this Congress considered to be the most important thing we could do for energy independence.
Mr. President, we are being strangled in our economy, in our independence, in our foreign policy, indeed in the very essence of America we are being strangled by lack of energy. We better get this bill or something like it and get away from the lawyers, the lawsuits, and the delays.If we do not we are in bad shape.
Mr. MUSKIE. Mr. President, will the Senator yield?
Mr. JOHNSTON. Yes.
Mr. MUSKIE. I will not take more than a minute or two because I know Senator JEPSEN wishes to speak and Senator PERCY is also coming over to the Chamber to speak.
I find myself sort of at the wrong end of a shotgun. At least I implied from what the Senator said that I am responsible for Saudi Arabia's interruption of some project and that I am responsible for the Sohio problem, and so on. I wish to get the Senator's attention. I conclude from what the Senator had to say on my bill that his bill would eliminate the 700 permits and his bill would eliminate judicial review.
Mr. JOHNSTON. Mr. President, no. There would still be 700 permits. There would still be the 700 statutes.
Mr. MUSKIE. That is my point.
Mr. JOHNSTON. But what the Energy Mobilization Board would do is provide a project decision for the 700 permits, so they would not all be in sequence, so they would all be decided within a reasonable time and then on the appeal if they wished to take appeal all of those appeals would be consolidated and considered in one court, the Temporary Emergency Court of Appeals.
Instead of going to 17 different county courts, different levels of State courts, and different Federal courts, it all goes into one court of appeals for a decision.
Mr. MUSKIE. The question I want to focus on is, first, you would not eliminate the 700 permits. If the Senator had answered otherwise he would have been getting into substantive law which is a source of contention between us.
Mr. JQHNSTON. The Senator is correct.
Mr. MUSKIE. So you would not eliminate the 700 permits but would put them on a rational time scale, something with which the substitute as well as the Senator's bill is concerned. So to suggest that we are not concerned about that problem is not an accurate description of the substitute.
Let me ask the Senator this about the 700 permits in the Sohio case: How many of them were appealed to the courts?
Mr. JOHNSTON. I do not know how many lawsuits were involved. Some of them never have been decided in a period of 5 years. Perhaps staff has that information as to how many appeals were taken.
Mr. MUSKIE. In any case I agree withthe Senator on that kind of problem. I do not want to take up too much time lest we take time away from Senator JEPSEN and Senator PERCY. That kind of problem is a legitimate problem to address. Whether or not such judicial review as there is should go into the temporary court of appeals or to the court of appeals of the district in which the project is located is a difference between the two bills. I prefer my own. But whether it is one court or the other, I do not know how lawyers are going to be constrained from doing whatever their clients want or what their clients may be permitted to do under either piece of legislation.
Mr. JOHNSTON. Mr. President, will the Senator yield at that point?
Mr. MUSKIE. Yes; of course.
Mr. JOHNSTON. Let me read from a memo on this project, which really focuses in. It says this :
Sohio has stated that even if all PACTEX — Pactex is the pipeline in question — permits had been granted immediately, pending and threatened litigation (primarily on environmental issues) would still significantly delay the initiation of the project, further endangering its economic attractiveness. All of the pending litigation relates to local or State actions, and has occurred in State courts. A suit challenging the adequacy of the basic California Environmental Impact Report (EIR) was pending in the California Supreme Court for a year. On March 29, 1979, the court remanded that case to a trial for hearing, meaning that the appeal process had to start over from the beginning. No construction can begin, moreover, until the EIR is declared adequate.
Mr. MUSKIE. Let me make the point. First, the Senator is talking about the 700 permits. It should be clear for the record that that involved legislation in the several States. I do not recall how many states through which the pipeline would go. And that created a problem because of the nature of our Federal system.
The Senator is not proposing to eliminate the Federal system, as I take it. As a matter of fact, he has said in rebuttal to my interpretation of the implications of his bill that the requirements of State and local law must be observed.
Mr. JOHNSTON. That is correct.
Mr. MUSKIE. So if a pipeline of this kind has to traverse several States and meet each of their requirements of substantive law, about all you have succeeded in doing, after court challenges, is the rationalization of deadlines. Whether or not this can be accomplished, given the diversity and the structure of these various State and local laws, I do not know. I have no view of that. But it is going to be a tremendous problem to rationalize and accommodate all these varying requirements, and there is a frustration. I concede that. Whether or not you can really do so and still retain the prerogatives of State and local governments is going to be an interesting test. I do not know.
Mr. JOHNSTON. It is a great compromise as we say in our bill because, on the one hand, we preserve the decision making criteria, State and local law.
Mr. MUSKIE. I am not sure about that. That is the point of disagreement.
Mr. JOHNSTON. We do it in explicit language.
Mr. MUSKIE. That is the Senator's intent. I doubt he can achieve it.
Mr. JOHNSTON. Moreover, we give them an appeal on using the criteria — excuse me — in the first instance, the State, local, or Federal people have the right to make their own decision. They can say "no."
Mr. MUSKIE. If they do it within the deadline.
Mr. JOHNSTON. That is right or they can go to court and ask for an extension of the deadline based on unreasonableness. That is a first right to go to court and say, "Look, 1 year within which to make this decision is not enough time." They have that right to that appeal at that point. Then—
Mr. MUSKIE. They will be pushed and prodded by environmental groups and other citizen groups who will think, who will believe, who will argue the unreasonableness of the new deadline. You are going to be caught up in litigation just as expensive and as frustrating and time-consuming as that—
Mr. JOHNSTON. If the Senator please, this would go all to one court, you see, all through the TECA court, and the beauty of this mechanism is that it centralizes these appeals so that if you had conceivably 700 appeals on the question of time—
Mr. MUSKIE. One court is going to handle 700 appeals?
Mr. JOHNSTON. Yes, but all on this same subject.
Mr. MUSKIE. How could you? I mean, if the 700 permits involved 700 State laws and Federal laws, how is the court going to handle it as though it was one case? Are you going to have the one court handle 700 appeals?
Mr. JOHNSTON. I did not say as one case. Obviously there would not be 700.
Mr. MUSKIE. It is a tremendous caseload for one court, 700 appeals for just one project. And if you pose 700 appeals under my substitute, I do not know why it is not legitimate to pose 700 appeals under yours. One court is going to handle yours and several courts are going to handle mine.
Mr. JOHNSTON. Mr. President, I would like to answer all of these questions but—
Mr. MUSKIE. We will have an hour and a half tomorrow.
Mr. JOHNSTON. Do I have the floor, Mr. President?
Mr. MUSKIE. I think you do.
The PRESIDING OFFICER. The Senator from Maine has the floor.
Mr. JOHNSTON. I was going to suggest that there are two Senators who are going to ask for time, Senator JEPSEN and Senator BENTSEN.
Mr. MUSKIE. Mr. President, I ask unanimous consent that Senator BIDEN be added as a cosponsor of the Ribicoff-Muskie amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. MUSKIE. I have one memo and, at the request of Senator RIBICOFF, I ask unanimous consent that the memo en titled "Greater Effectiveness of S. 1806's Remedies to Avoid Delay" be printed in the RECORD at this point.
There being no objection, the memorandum was ordered to be printed in the RECORD, as follows:
GREATER EFFECTIVENESS OF S. 1806's REMEDIES TO AVOID DELAY
Both S. 1308 and S. 1806 seek to eliminate delays in completing vital energy projects by establishing an Energy Mobilization Board to cut through red tape and secure prompt action. One of the major differences between the two bills is how they seek to ensure compliance with any schedule the Board establishes for completing action on an energy project. Under the provisions of S. 1308 the Board would substitute its judgment for that of any federal, state, or local agency which failed to meet a deadline by even one day. The provisions of S. 1806 would instead empower the Board to go to court to obtain a court order, requiring the agency to act if the agency has missed, or appeared likely to miss, a deadline.
Past experience demonstrates that the approach of S. 1806 is both workable, and effective. It will result in better decisions, less delay, and less intrusion into the workings of other federal, state, and local agencies. On the other hand the approach proposed by S. 1308 will only result in more delay and more litigation.
AMPLE PRECEDENT FOR JUDICIAL ENFORCEMENT OF DEADLINES
The principal import of section 19 of S. 1806 is to allow the Board which sets the schedules to go to court and obtain a court order directing another agency to conclude its deliberations and decide the matter one way or the other. This remedy is available either when a deadline has already been missed or when a future deadline is likely to be missed. As this memorandum demonstrates impressive precedent for this approach demonstrates its effectiveness and workability. As the Court of Appeals observed, the establishment of time limits "should serve like adrenaline to heighten the response and to stimulate the fullest use of resources." NRDC v. Train, 510 F.2d 692, 712 (D.C. Cir. 1973).
The right to sue over agency action unreasonably delayed is one already provided parties under the Administrative Procedure Act. It is one which the courts already enforce. Section 706(1) of the Administrative Procedure Act has long authorized a court to compel agency action on the grounds that it has been unlawfully withheld. See Deering Milliken, Inc. v. Johnston, 295 F.2d 856, 865 (4th Cir. 1961). See generally, Note, Judicial Acceleration of the Administrative Process: the Right to Relief from Unduly Protracted Proceedings, 72 Yale L.J. 574 (1963).
There follow some examples of actual cases demonstrating that the provisions of Section 19 will work in practice. In some cases the court actually forced an agency to act by a certain date, and the deadline was met. In other cases, the mere filing of a lawsuit was enough to secure rapid agency action, without even the need for a judicial hearing. All of the examples demonstrate that the reality of a lawsuit, including the possibility of contempt, plus the assurance of unfavorable
publicity from continuing to delay action on vital energy projects, will prove highly effective in seeing to it that if deadlines are missed, it will not be for long.
In many of the cases listed below the court established and enforced a deadline on its own even though there was no specific deadline established by law. The Board will have a far easier time winning any case it brings under Section 19 since there will already be a specific deadline established by it pursuant to a clear Congressional directive.
EXAMPLES OF COURT SUITS RESULTING IN PROMPT AGENCY ACTION
North American Van Lines v. United States, 412 F. Supp. 782 (N.D. Ind. 1976).
The court held that the Interstate Commerce Commission had unlawfully "flagged" North American Van's applications for new operating authority thereby delaying action on it while it completed a separate investigation to determine North American Van's fitness. The court ordered the Commission to grant or deny the illegally delayed applications within sixty days. In response to the court order, the ICC acted promptly on each application.
Home Box Office, Inc. v. FCC (D.C. Cir. 1977).
The court held that the Commission had unreasonably delayed the completion of its "program exclusivity" rule making proceeding. Although only eighteen months had elapsed since the publication of the notice of proposed rulemaking and twelve months since the close of the comment period, the Commission had been studying the problem for nearly six years. The court ordered the Commission to "terminate" its program exclusivity proceeding within 180 days. As ordered, theFCC acted within 180 days to terminate the proceeding.
Booth American Company v. FCC, No. 23862 (D.C. Cir. 1970).
Plaintiff’s application for an emergency license had been pending before the Federal Communications Commission for 17 months. Even though there was no applicable statutory deadline the court ordered the agency to act on the license request within 20 days or explain its failure to do so. Fifteen days after the court order the FCC granted the license.
Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 475 F.2d 968 (D.C. Cir. 1973).
The Natural Resources Defense Council challenged the EPA's administration of the Clean Air Amendments of 1970, 42 U.S.C. § 1857 et. seq. (1970), which required that each state formulate within a fixed period of time a plan to implement the environmental quality standards established by EDP. After determining that EPA had not followed proper procedures in granting states extensions under the Act, the court established time frames for both the States and the EPA to meet. The court first set a date by which all states were required to have submitted implementation plans to the EPA. It also set deadlines by which EPA was either to have approved or rejected these plans. In compliance with the court order the states submitted proposed plans within the time specified, and EPA acted promptly to approve or reject the plans.
Commonwealth of Pennsylvania v. Environmental Protection Agency, 500 F.2d 246 (3rd Cir. 1974).
The court found that EPA could, if necessary, institute proceedings under § 113 of the Clean Air Amendments of 1970 to enforce compliance by a state with a transportation control plan which included deadlines for its implementation. By analogy, S. 1806 would direct the EMB to set similar deadlines for compliance and would allow that agency to seek enforcement in the federal courts.
Public Citizen Health Research Group v. Califano, Civil Action No. 77-0911, D.D.C.
On April 22, 1977, a petition was filed to remove the drug phenformen from the market as an imminent hazard, pursuant to 21 U.S.C. § 355(e). When no action occurred, suit was filed on May 27th, and in mid-July without a court order, the Secretary of HEW ordered the drug removed from the market.
Public Citizen v. Cook, Civil Action No. 743-73, D.D.C.
A petition for rule making was filed with the SEC on March 15 1972 and was denied on August 25, 1972. After a petition for review and a motion for summary reversal were filed in the Court of Appeals, the agency agreed to ask for comments on the proposal. All comments were due on December 1, 1972 and responses to them were filed promptly thereafter. Despite several promises of immediate action, nothing was forthcoming. Therefore, suit was filed on April 18th and within three weeks, the action was taken by the agency.
PROD v. Train, Civil Action No. 74-999, D.D.C.
EPA was required under the Noise Control Act to issue a report on the principal sources of noise, and to propose regulations for them, by April 27th, 1974. When it failed to meet that deadline, PROD, a group of drivers of trucks and other vehicles, wrote the EPA on May 1, 1974, demanding that action be taken. The report, but not the proposed regulations, was issued on June 21st, and on July 2nd, suit was filed. The government obtained several delays in responding, but after it did, and before the Court could rule, EPA issued the rules on October 15, 1974.
Nader v. Browne, Civil Action No. 1240-72, D.D.C.
Ralph Nader had asked the CAB to deal with the problem of smoking on airlines by a petition filed on December 16, 1969. A colleague of his, Reuben Robertson, filed a formal third party complaint with the CAB on August 13, 1970, asking for an investigation of alleged violations of the ownership reporting requirements by 16 carriers. When the Board had not responded to either request, a lawsuit was filed on June 12, 1972, and a motion for summary judgment filed on July 18th. Just three days before its response was due, the CAB issued a major proposal on smoking, thereby mooting the Nader claim. It failed to act on the Robertson complaint, and so on November 10, 1972, the Court issued an order giving the Board 30 days to issue its response to the complaint filed by Robertson. The Board acted in compliance with the court order by issuing its response to the petition on the thirtieth day.
It should be noted that this list of examples does not include numerous cases involving the Freedom of Information Act where an agency has missed its statutory deadline under 5 U.S.C. § 552(a) (6), and the filing of a lawsuit brought forth immediate and substantial relief.
It is true that there have been other instances where courts have been reluctant to adopt or enforce a deadline against an agency. But in these situations, either an inflexible deadline was established by a statute without regard to the particular circumstances of the case, or the court was asked to establish a deadline of its own without the expertise or knowledge the agency itself possesses. Courts have also occasionally resisted adopting a deadline which would force the agency to put one proceeding ahead of another, or otherwise choose between competing priorities.
None of these situations will apply with deadlines set by the EMB. First, the deadline will have been established and monitored by an expert body with the difficulty and importance of the particular proceeding in mind. Second, the court will be asked to enforce a deadline that was adopted only after full consultation with the agency, and after consideration of what it can reasonably be expected to do. Finally, the court will be able to rely on the expert judgment of the EMB to tell it whether the agency could reasonably have been expected to meet the deadline and what court action is necessary to ensure rapid completion of the proceeding.
It should also be noted that, under the Ribicoff substitute, the EMB will be monitoring the agency action on a continual basis. If EMB determines the need for judicial intervention it will be able to file suit early in the process, before the agency falls hopelessly behind in its schedule. The court will not be confronted with a situation already doomed, as a realistic matter, to result in considerable delay regardless of what action it takes.
Enactment of legislation establishing an Energy Mobilization Board will establish a clear national policy that certain designated projects should be given top priority by the agencies because of overriding national needs. Thus the court under S. 1806 will only be called upon to enforce the deadline which an expert body, the EMS, has already determined is reasonable and necessary and consistent with the overriding national policy established in this Act. The Court will not be asked to choose on its own between several competing and equally important priorities, as is the usual case when courts are asked to impose deadlines.
One additional factor will further increase the effectiveness of EMB beyond anything experienced to date. Although the right to obtain a court order requiring agency action is well established, many parties and their attorneys are reluctant to seek relief in court from agency inaction for fear of only angering the agency that must act on its request. Since the Board will not be a party but merely seeking to obtain compliance with its schedule, and since it will have the full prestige of the United States government behind it in support of these projects, this will not be a problem.
MORE DELAY WILL RESULT FROM THE ALTERNATIVE APPROACH
In contrast, the alternative approach of allowing the Board to take over and actually make decisions for agencies which are tardy will only produce more delay. Almost by definition, the issues raised in these 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 toother federal agencies with the substantive expertise, the procedures in S. 1308 are unwise because they will produce more, not less, delay.
Mr. MUSKIE. With that I yield the floor so that other Senators may have some time.
Mr. JOHNSTON. How much time, Mr. President, does the Senator from Iowa wish? I yield 10 minutes to the Senator from Iowa, and after that 10 minutes to the Senator from Texas, and the remainder of the time to the Senator from New Mexico.
Mr. DOMENICI. Let me ask the Senator from Maine, if you please, is the Senator going to remain here until.the debate is finished?
Mr. MUSKIE. Tonight?
Mr. DOMENICI. Yes.
Mr. MUSKIE. I will unless someone else on my side wishes the floor, unless Senator PERCY would like the floor.
Mr. DOMENICI. I wanted a couple of minutes to just respond to the Senator's observations about clean air in this bill, and if the Senator was not going to be here I was not going to make them, that is all.
Mr. MUSKIE. I am here and the Senator can go ahead.