October 3, 1979
Page 27123
Mr. RIBICOFF. I yield 2 minutes to the Senator.
Mr. JOHNSTON. I might say the answer is that that is subject to judicial review, that question of public health or safety. The Board must initially make the finding it does not endanger it and that, in turn, is subject to judicial review.
Mr. HART. Is the waiver operating while it is being reviewed? That can take years. In the meantime, people can be getting carcinogens in their lungs.
Mr. JOHNSTON. There is a possibility of injunction, but we vest it in TECA, under expedited procedures, which is one of the greatest utilities of this bill, the expedited procedure in TECA. So it is the fastest way to get the relief sought.
Mr. HART. One more question, what is the standard for judicial review, which in the law is arbitrariness and capriciousness?
Mr. JOHNSTON. It is the same as existing law.
Mr. HART. The Board has to be arbitrary or capricious—
Mr. JOHNSTON. That is not the standard in existing law, that is whether or not, in the case of evidence, there is a preponderance of evidence. In the case of law, whether or not it is legal.
There is no presumption with respect to law, but there is a preponderance test with respect to evidence.
Mr. MUSKIE. Will the Senator from Connecticut yield?
Mr. RIBICOFF. I yield 2 minutes to the Senator from Maine.
Mr. MUSKIE. Mr. President, I am veryfamiliar with the Senator's amendment. I wholeheartedly agree with the analysis of it made by my good friend from Colorado (Mr. HART) .
Mr. President, I would like to add some comments of my own.
Mr. President, I expressed my general concern yesterday about the Energy Mobilization Board legislation reported from the Energy Committee. I would like to make a few additional observations about that bill as well as the alternative legislation I have cosponsored and on which we will vote later today.
I would like to reiterate that I still have considerable doubt that the Energy Mobilization Board is a necessary body. I still have doubt as to exactly what kinds of projects the Energy Committee has in mind for special treatment..
I still have doubt that the Energy Committee bill will be a major contributor to the goal of the President to reduce oil imports by 50 percent by 1990.
And most important, I still have grave doubt that the serious intrusions into Federal, State, and local safeguards are really necessary to achieve energy independence.
S. 1806 answers my concerns in a manner which S. 1308 could not. And frankly,Mr. President, if the kinds of authorities taken away from State and local governments and given to the Board by the Energy Committee are necessary to speed up the review process for energy facilities, then I do not think that fast track legislation should be enacted.
But I refuse to believe that the legitimate concerns and protections for our citizens must be overridden to achieve energy independence. If this is the case, then perhaps we should be examining the principles of federalism upon which our system is based. A bill creating an Energy Mobilization Board is not the appropriate vehicle for this examination.
I would now like to discuss the specific provisions of S. 1806 which address my concerns, concerns I believe are shared by many Members of the Senate.
DESIGNATION CRITERIA
S. 1806 requires the Board to make a finding that a project will contribute to a 50-percent reduction in the use of imported oil by 1990, the President's goal, and that it needs the fast track system to make that contribution to the goal.
Mr. President, this set of criteria embodies the rhetoric that others have used as only a justification for their meat axe approach. That rhetoric has never been translated into a statutory requirement except in the Ribicoff substitute. The designation of a project as a priority energy project will result in significant consequences no matter what bill is accepted today. It is only equitable that a facility should make this contribution to the Nation and its citizens in return for an alteration of existing procedural and substantive safeguards.
The committee bill does not require the Board to even consider the social, economic or environmental consequences of the exercise of its powers over a project. Nor could the Board be required to consider the views of other Federal agencies, State or local government, or the public.
Nothing in S. 1308 would even compel theBoard to choose the best among competing projects.
Since the number of projects would be unlimited, and indeed the Board could designate an entire "class of projects" as one project, the impact of designation upon an agency's capacity to deal with other nonpriority applicants might be significant. Yet S. 1308 does not require that the Board consider the consequences, necessity or practicality of priority treatment for a project.
The Ribicoff substitute on the other hand, requires the Board to consider all of the consequences of designation. It also provides for consultation with Federal agencies and State and local governments. It sets forth clearly specified criteria for designation and requires that the projects selected represent a diverse range of energy sources and technologies.
In addition, only 24 priority energy projects may be designated for fast track treatment at any one time under S. 1806. The numerical limit, not contained in the Energy Committee bill, has the obvious advantage of limiting the number of projects which can receive any sort ofexpedited treatment and thus prevent the clogging of a fast track system with unwarranted designations.
JUDICIAL REVIEW
We all know that the purpose of judicial review is accountability. The expansion of the concept of standing to sue to any person affected by an agency action is one of the most important developments in recent decades. To a large extent, in fact, the expanded availability of judicial review of agency action in environmental statutes may be the single most important factor in the fulfillment of congressional mandates.
Yet the Energy Committee has insulated the Mobilization Board from any sort of accountability for its designation decisions. Thus, even if the designation criteria were more satisfactory, they remain meaningless without judicial review because the Board is not bound by the applicable criteria in any practical sense.
The Energy Committee does however, provide judicial review to those who are denied designations. In other words, those who are singled out to share in the largess will not have their status jeopardized by an outside party challenging the designation; but a project which misses out on the competitive advantage of the fast track may indeed challenge the Board's judgment. This unequal treatment cannot be justified on any grounds relating to the goals of the legislation.
The Ribicoff bill does provide for judicial review of designation decisions. The review is of an appellate nature, that is, simply a review by the court of whether information on which the Board based its designation actually meets the criteria. It involves no additional trial type techniques which can be time consuming.
The mere existence of the availability of judicial review will deter designations which abuse the discretion given to the Board. This safeguard against unwarranted designations will also prevent the clogging of the fast track system with projects which do not deserve expedited treatment.
DEADLINES FOR AGENCY ACTION
If one accepts the concept of an Energy Mobilization Board, it is necessary to set deadlines by which required agency actions must be completed. S. 1806 would require the Board to set deadlines binding on agencies which must perform actions relating to the approval of a priority energy project. That deadline could be no longer than 1 year after the completion of a permit application, unless a longer period is clearly necessary. This approach provides the flexibility absent in the uniform deadline in S. 1308. It also provides an incentive to both the applicant and the agency to determine the contents of an application and to complete it as soon as possible.
The uniform 2-year deadline imposed on all agency action under the Energy Committee bill is arbitrary and unworkable. It has no reference to the particular requirements of any statute which may be longer or shorter than a uniform deadline imposed for every action. It may preclude any possibility of obtaining four-season baseline data for evaluating later environmental changes. It may result in inadequate substantive review of permit applications and this inflexibility virtually guarantees that the Board will be given the opportunity to make the decision in lieu of an agency which misses its deadline.
ALTERATION OF LAWS
There seems to be an assumption on the part of many Members that because S. 1308 contains no across-the-board substantive waivers, it is therefore acceptable. This is not the case. S. 1308 specifically states that the Board is empowered to "alter" laws dealing with the National Environmental Policy Act, agency deadlines, agency procedures, judicial review, and substantive requirements of laws developed or implemented in the future. This power could be used to alter any Federal, State, or local law.
The Board is thus given legislative, executive and judicial functions over Federal, State, and. local agencies alike. Do we really believe this is warranted to achieve energy independence?
The Ribicoff substitute preserves both the procedural and substantive requirements of law and the Federal-State relationship.
PREEMPTION OF STATE AND LOCAL DECISION MAKING AUTHORITY
The Energy Committee bill authorizes the Board to enforce deadlines it has set for an agency by making the decision for that agency once a deadline is missed. This is an unprecedented and unwarranted intrusion into the prerogatives of State and local governments.
The provision has other flaws as well. The Board will be unfamiliar with the Federal, State or local law it must implement, thus adding unnecessary time to the decision making process. The Board's sole mission is to expedite construction of energy facilities, a concern which will be at odds with the mission of the involved Federal, State or local agency. This is likely to lead to imbalanced decisions, and to more court challenges.
S. 1806 preserves the prerogatives of Federal, State, and local responsibilities while providing an alternative effective mechanism for enforcement of deadlines. The Board is authorized to obtain a court order either in Federal or State court to compel agency action. This will expedite the review process without preempting the significant protections enacted by Federal, State, and local governments for the good of their citizens. This approach has been endorsed by the National Conference of State Legislatures, the National Governors Conference, the National League of Cities, the U.S. Conference of Mayors, and the League of Women Voters.
PROCEDURAL WAIVERS
The Energy Committee bill authorizes the Board to adopt special procedures for Federal agencies governed by the deadlines set by the Board. This approach is objectionable because the Board may impose such special procedures on an agency without any regard for the particular statutory requirement that the agency is implementing and the particular procedural needs associated with it.
I understand that the intention of the Energy Committee to expedite the procedural requirements of Federal, State, and local laws is central to this legislation. Some procedural requirements are of such fundamental importance, however, that they rise to the level of substantive law.
In some cases, the exercise of a substantive right hinges on a procedural requirement. In such cases eliminating the procedural right is tantamount to eliminating the substantive right itself.
The goal of this legislation, that is, to expedite decision making, can be best accomplished by the establishment of realistic deadlines for agency action, coupled with a court order enforcement mechanism, the approach of the Ribicoff substitute.
GRANDFATHER PROVISION
Another provision of the Jackson bill which strikes at the heart of State and local governments' ability to protect the rights of their citizens is the grandfather provision. This authority would authorize the Board to waive any laws or regulation enacted or promulgated by a Federal, State or local body after commencement of construction of a priority project.
I think the best way to put it would be this: I would be interested in the reaction of the proponents of this grandfather clause and this whole Energy Mobilization Board, if administration of this act were placed in the Environmental Protection Agency.
Obviously, they would argue we were putting the fox in charge of the chicken coop.
However, they are trying to persuade us that putting their fox in charge of the environmental chicken coop is sound and that the Board will be as sensitive to environmental considerations as EPA or the State or local environmental agency.
Well, it works two ways, I say to my good friends. I just do not accept the argument that this Board — first, would be as knowledgeable about the intricaciesand the background and the precedents of State and local laws dealing with the environment as those boards would be.
Second, it would not be as knowledgeable as EPA would be.
Mr. President, the grandfather provision would authorize the Board to waive any laws or regulation enacted or promulgated by Federal, State, and local bodies at the commencement of construction of a priority project. This approach would have the following serious results, and this is not procedural, this is substantive:
It removes the ability of all levels of government to deal with unknown or unanticipated toxic environmental effects of energy facilities that were not anticipated before the first shovelful of earth was turned;
It bars the possibility that technology to minimize these problems would be developed to insure the commercial viability of these processes;
Failure to develop controls will also guarantee continued resistance to the more widespread construction of energy facilities without adequate protection of the public health and safety of affected citizens.
Now, to argue that a provision that has those potential consequences is not substantive is the height of legislative cynicism, Mr. President.
Just yesterday an amendment was accepted to this provision which exempts from the waiver laws relating to labor management, pensions, safety, civil rights, crimes, and antitrust. Why do the alleged delays associated with those statutes have more significance than those which protect the public health and the environment or those relating to energy facility siting; rate making; rights- of-way for Federal, State or local lands; land acquisition and relocation; planning and zoning; allocation of energy supplies; regulation of transportation, including pipelines; tax determinations, including severance taxes; and historic preservation. It seems to me that our priorities are misguided in a very serious way if this amendment reflects them.
That is another list of laws that would be waived by this provision.
The amendment of yesterday did not touch those.
Now, why did they pick the ones they did to exempt from the waiver? To pick up votes, not because they had any doubts about the wisdom of the original provision.
So they conveniently overlooked these other significant and substantive provisions of State law.
S. 1806 contains no authority to waive substantive requirements, whether they be existing or future. No compelling reason for such a waiver has yet been provided by its proponents. I think that this waiver authority is simply another example of using the goal of energy as a shield for amending certain statutes a backdoor fashion. I have tried to get information on the need for the grandfather provision; yet none has been provided. I must assume then that the real motivation for the provision is not that it is necessary to expedite the operation of energy facilities but that environmental statutes are simply an inconvenience to some, who will try to avoid the requirement of law through any tactic.
NATIONAL ENVIRONMENTAL POLICY ACT
Congress enacted NEPA in 1969 to redress the mistakes being made by Federal officials who obstinately refused to consider the consequences of their actions for the human environment. Yet the Jackson bill would take us back to that very situation. The statute would be amended to give the Board the power to say who prepares the statement, and whether an impact statement was even necessary.
The Ribicoff substitute preserves the substance of NEPA while streamlining the process. It retains the current role of the Council on Environmental Quality and requires that deadlines be set for completion of each agencies role in the EIS. Again, there has been no indication that the existing process has not worked. Thus our bill seeks to simply speed up that process.
Mr. President, I think Senators ought to understand the limitations of the amendment yesterday, as well as the substantive impact of the grandfather clause.
I thank my good friend from Connecticut for giving me an opportunity to make those points in the RECORD at this time.
Mr. DOMENICI. Mr. President, a parliamentary inquiry.
The PRESIDING OFFICER. The Senator will state it.
Mr. DOMENICI. Mr. President, how much time does the proponent of the substitute have and how much does the opponent have at this point?
The PRESIDING OFFICER. Would the Senator repeat his inquiry?
Mr. DOMENICI. How much time does the proponent of the substitute (Mr. RIBICOFF) have and how much does the opponent's side have?
The PRESIDING OFFICER. The Senator from Connecticut has 26 minutes and the Senator from Louisiana has 25 minutes.
Mr. DOMENICI. I thank the Chair.
Mr. ROBERT C. BYRD. Mr. President, I ask unanimous consent that it be in order for Mr. JOHNSTON to make the motion to table now, notwithstanding the fact that the debate has not expired and will not expire until 12 o'clock.
Mr. MUSKIE. Reserving the right to object, may I ask the majority leader, the motion will be voted on at 12 o'clock?
Mr. ROBERT C. BYRD. Yes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. JOHNSTON. I so move, Mr. President, and ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There is a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The yeas and nays have been ordered for 12 o'clock noon.
Mr. RIBICOFF. I yield 1 minute to the Senator from Maine.
Mr. MUSKIE. Mr. President, the Senator from Connecticut yielded me 1 minute.
I would like to read this language frompage 39 of the committee report:
The Committee intends to authorize agencies to make the changes enumerated in this section whether or not they can be categorized as procedural or substantive and whether or not they have substantive as well as procedural implications.
Mr. President, that has been the burden of my argument for 2 days. I thought the Senate would be interested in finding support for that analysis in the committee report itself.