October 3, 1979
Page 27171
Mr. JOHNSTON. Mr. President, the amendment of the Senator from Kentucky would authorize a waiver of Federal requirements under the circumstances stated in his amendment. Frankly, there was some strong sentiment in the Energy and Natural Resources Committee for such a waiver. Under some circumstances, Mr. President, I personally am in favor of such a waiver.
However, legislation is made up of the compromise and reconciliation of opposing views. As I announced in my opening statement on this bill, we were able to put together what I think is a meaningful, a significant, an important bill and break the logjam. We did so by reconciling many divergent views. We were able to pass the bill by a vote of 13 to 3 out of committee, with only 3 dissenting votes. We were able to do that principally, Mr. President, because we agreed to a strong, enforceable fast track with respect to time schedules, but we also made the compromise within the committee that there would be no waiver of Federal law.
So, Mr. President, in spite of the fact that I have a great deal of sympathy personally for the view of the Senator from Kentucky and in spite of the fact that others on the committee had similar sentiments, I believe that to be true to the compromise, to the thrust of this bill, and to the presentation we have made here for the last 2 days on the floor, we would reluctantly have to oppose the amendment of the Senator from Kentucky.
Mr. HUDDLESTON. Mr. President, have the yeas and nays been ordered?
The PRESIDING OFFICER. The yeas and nays have not been ordered.
Mr. HUDDLESTON. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There is a sufficient second.
The yeas and nays were ordered.
Mr. MUSKIE. Mr. President, I am not sure that I can speak to this amendment or that, given the evident mood of the Senate, to speak serves any useful purpose. I have had a great deal to say today about the pending bill — my concerns, the dangers that I see. This amendment would simply compound them all.
Mr. President, I have watched the legislative process in this Chamber for, now, my 21st year. I have to say that in that 21 years, I have observed that we do our worst job of legislating when we respond in the name of a current crisis and adopt just anything by way of legislation in order to demonstrate to the people back home that we are coming to grips with the problem, that we are tough, that we are going to be effective.
Every time I have seen one of those tough, effective laws passed, I have observed the cycle turning and inevitably — in 2 years, 3 years, 4 years, 5 years — I begin to hear criticisms of the over regulation that we wrote into that law, of the arbitrary decisions that are coming out of the administrators of that law, of their insensitivity to the interests of this group or that group. In my 20 years, I suppose I have been exposed to the greatest revulsion of arbitrary Government authority, from the imperial Presidency through the bureaucracy to the present anti-regulation mood, the anti-Government mood, the make-Government-smaller mood. And here I see it happening all over again in the name of another — and I use the word used by the distinguished Senator from Kentucky — another untouchable.
Anything done in the name of energy legislation is untouchable. And the justification is that we have on the books other laws that are untouchable.
Maybe they were written, too, in large part in response to an earlier outpouring of public emotion and feeling about a current problem. But we are going to do it again.
I tell you this: I shall have no part of this bill with this amendment on it. I am not sure I shall vote for it without this amendment. It is bad enough without it.
Mr. President, what does this do? This proposes that an administrative agency, headed by one man, since the committee would not even make the other two full time members, one man can suspend laws written by the Congress of the United States, by State legislatures, by local government bodies. Executive fiat, changing laws, substantive laws, deliberately in the name of a national emergency.
Let us suspend the Constitution, let us suspend this body, let us not do it by indirection.
What is the case for this? I have not heard in 2 days anybody give us a list of the substantive laws that are creating the roadblocks against which this legislation is aimed. Not a word. Not a syllable.
The Department of Energy concluded in a report this July that waiver of substantive laws was not necessary to establish a synthetic fuels industry.
Whence comes the necessity then? People looking for ghosts in a closet? People just willing to do anything in the name of demonstrating to the people back home that, by God, they are concerned about energy?
In a way, I rather hope this amendment succeeds, that it passes. It has already been adopted by the House committee, so it would not be in conference. Then let the sponsors bear the responsibility, bear the responsibility of the consequences that would stretch out into the years into the future for this kind of arbitrary authority.
I mean, what amuses me about it is that the sponsors say, "We have got to do it this way because the people who administer environmental laws are arbitrary."
Where are they going to find the Christlike figure who administers this program without being accused of being arbitrary? Where?
Have they got a field of candidates, of persons, men or women, who are going to fulfill these places of responsibility with a guarantee of no arbitrariness?
If that is the case, they have not reassured the National Conference of State Legislators, or the National Association of Counties, or these other agencies of State officials. They surely have not assured me.
I concede the bureaucrats are arbitrary. I think the Administrator of EPA from time to time is inclined to be. I have never found a bureaucrat who totally escapes the temptation to arbitrariness.
But to give this one a whole field, not only of environmental law, it does not exempt all of the other laws that could be set aside. It does not even name them. I doubt the sponsors could list them.
I mean, yesterday the manager of the bill offered a technical amendment to the grandfather provision which exempted some of the other laws that would be impacted by the committee bill, which we have not yet had listed. We identified a lot of other laws overnight that were not exempted. If we study it over tonight, we will find others.
So nobody in this body, including the sponsors of this amendment — if I am wrong, I will apologize — can tell me or the Members of this body what laws, other than environmental laws, could be set aside and waived by administrative fiat if this amendment is adopted.
And we do this blithely. I have seen Senators voting today, Senators who I have heard argue against legislation because it trespassed upon State authority or local prerogatives, because it delegated too much authority to administrative agencies that only the Congress should wield, against Presidential use of congressional prerogatives. All of this suddenly goes out the window because we have another untouchable.
God save us from the untouchables in the name of which legislation is enacted. This is not the first one I have seen. It probably will not be the last one. But I say that we see the impact of these untouchables in the Federal budget. We see it in over regulation. We see it in a public saying, "Get off our backs. Get out of our pockets."
How many times have I heard this loudly recited in this pre-election year, "Off our backs. Out of our pockets. Out of our hair. Cut down the size of Government."
If we think adoption of this amendment will eliminate litigation, keep these issues out of the courts, we have not been looking at what has been going on around this country.
In the last 10 years the enraged citizens and enraged citizen groups in this country have used the ingenuity of a proliferating number of lawyers to put these things in court, and they get there.
Even when the statute says they have no right to be there, they find a way to get there.
I say to the sponsors of this amendment and to the sponsors of this bill, offend people sufficiently, and they will find a way to get to the courts and we will find ourselves tangled up in litigation, in a case we have not dreamed about.
If they think they are shortcutting anything with this, they could not be more wrong.
I say these things with a sense of having watched the votes, that it is useless. The Senate is inclined to embrace another untouchable.
We are not going to touch it in conference because the conference has the same thing.
I say this, if that is what happens, this is going to be a case where I am not going to be responsible for the public policy. I am not going to have to take the heat of the criticism that has been directed against environmental laws and other laws for which I have been responsible. I will be in a position to say, "I told you so," and, believe me, there will be an "I told you so" to which my constituents and other Senators' constituents will say, "Amen."
Mr. DOMENICI. Will the Senator from Kentucky yield to the Senator from New Mexico for 3 minutes?
Mr. HUDDLESTON. Yes.
Mr. DOMENICI. I want to support the position of Senator MUSKIE. Maybe I should ask him.
Who controls the time in opposition?
The PRESIDING OFFICER (Mr. BOREN). We are not under controlled time.
Mr. DOMENICI. Mr. President, I yield myself 3 minutes, if the Chair would advise me when I have used 3 minutes.
I say to my good friend from Maine, what I am going to say is going to make neither the Senator happy, nor the Senator from Kentucky happy.
Mr. MUSKIE. The Senator has not made me happy all day.
Mr. DOMENICI. So I might as well beconsistent, except that I will vote with the Senator. That is the point I wanted to make. I am going to support the committee.
But I truly believe the truth of the matter is that many of the things the good Senator from Maine has said about the environmental laws, including clean air, as he indicated, the people say that they will do this and that, and holding up this, that, and the other, are true.
I do believe we have drawn a body of law in terms of clean air, clean water, and toxic substances, that but for a serious crisis in energy we would not be here on the floor.
On the other hand, if we were considering those laws with this energy crisis when we were discussing them, I believe we would have found a way to adjust to some very serious delays and some laws where we did want to risk anything for a project.
Mr. MUSKIE. Mr. President, will the Senator yield?
Mr. DOMENICI. Let me finish.
Mr. MUSKIE. I commend that process now.
Mr. DOMENICI. Having said that, I am in accord that we came to the floor, as a committee, saying we do not want to waive any substantive law. This might be the right mechanism to address those needs, because there is a need to make some exceptions. But I am going to live up to my commitment to the committee.
There is a provision in. the bill for a study and a report back by this Board on matters other than time delay on projects, and we are going to accept an amendment from Senator BOSCHWlTZ to make the study more in depth and the report back even more in depth, as to what is delaying things, which will give us a chance to take a look, rather than to amend the bill.
I join Senator JOHNSTON in saying that we have a reasonably good bill, with a chance of success, and I will support the committee position.
Mr. HUDDLESTON. Mr. President, I want to take a few minutes to respond to the distinguished Senator from Maine. I always have admired his performance in the Senate and his judgment, and I hold him in extreme high regard.
The Senator made a much more eloquent presentation on behalf of my amendment than I have been able to make. He talked about my reference to untouchable legislation. Frankly, I was referring to the body of environmental law. He talked about untouchable legislation referring to energy law, and that is the very point we are trying to get at here.
All of us have some untouchable legislation; and while we worry among ourselves about our untouchable legislation, the country goes down the drain, wondering what we are going to do about the energy problems.
There is no mechanism available to resolve the differences when these untouchables clash, so that we can determine where the national interests lie; and surely somebody in this great country is in a position to make that determination — whether we are going to forfeit an opportunity to provide us with energy and reduce our dependence on foreign oil; whether we are going to uphold every law that has been passed, as if it were sacred, without any modification to meet any kind of emergency need. That is all we are asking to be done here.
The Senator said it was very dangerous that one man could make this kind of determination, and I agree. My amendment does not provide that in any way. Not one man, not even the Board we are creating here, can make that decision. The Energy Mobilization Board can only recommend to the President that some waiver or some modification, some deferment, some delay of a Federal statute or a regulation, be made in order to provide for an energy project in this Nation.
We have not taken it away from the Congress of the United States; because once the Board recommends, and if the President decides to accept that recommendation, if he, too, believes that the national interest requires that some modification be made, then he has to publish that in the Federal Register. He has to supply the reasons; he has to supply the comment from the agency that has jurisdiction, as to how they feel about it; and then Congress has 60 days in which to veto that decision. Frankly, I think that is too loose, and I would rather not have it in the amendment, but it is there. So Congress has a role to play, the Board has a role to play, and the President of the United States has a role to play.
If we are a country, and if we are a government, somebody has to be able tomake the kind of decisions that have to be made to wage this war against our energy crisis.
SEVERAL SENATORS. Mr. President, will the Senator yield?
Mr. HUDDLESTON. Let me address two more points the Senator from Maine made.
Mr. MUSKIE. I want to get to that point.
Mr. HUDDLESTON. I yield.
Mr. MUSKIE. The Senator from Kentucky says that somebody should make these decisions. According to the testimony before the House committee, the most recent OMB update shows that PSD permits for 81 coal fired utilities have been issued since the program began in 1975, and permits for only 2 plants have been denied.
The Senator from Kentucky says somebody needs to make these decisions. They are being made. If there is evidence to the contrary, why is it not brought to the floor? Why are we not told?
Here are some facts, part of the hearing record, and that shows a disposition to be positive with respect to coal fired plants. Only two were denied.
Mr. HUDDLESTON. The Senator should read the hearing record of the Small Business Committee, which looked into the problem of governmental regulations on various aspects of our energy needs.
Mr. MUSKIE. What does that hearing record show?
Mr. HUDDLESTON. It indicates that not only are they not able to move forward because of clean air standards—
Mr: MUSKIE. I would like to see that record. The record of the Energy Committee on this legislation has not been printed yet.
Mr. HUDDLESTON. But, more important, it indicates that some projects are not even started because of the difficulty they have encountered.
Mr. MUSKIE. Is that the evidence?
Mr. HUDDLESTON. We have evidence.
Mr. MUSKIE. I would like to hear it.
Mr. HUDDLESTON. There are two areas in which the Senator from Maine expressed considerable concern that simply are not in the amendment.
One was his reference to the ability of the Board to waive State law or State regulation. This does not cover that at all, nor does it cover local. The opposition to which he referred from the National Association of State Legislatures and the National Association of Counties was based on that authority, which is not in this bill.
The Senator said that there would be cases in which waivers that were not necessary would be made. Well, that is ridiculous per se. If there is no necessity for a waiver, no waiver would be forthcoming, and the project would be going forward. So it would be highly unlikely that there would be a request for a waiver.
So far as the arbitrariness is concerned of those who might have some part to play in this process, I think we are at a point in history in this country not because people are arbitrary but because people are trying to administer laws that have been passed here. Laws are passed where there is no way to resolve differences as they try to achieve a particular objective — a very desirable objective in nearly every case.
That is all we are trying to do here — to provide some mechanism so that we can resolve impasses, so that we can resolve conflicts when desirable objectives hit head on, and so that we can move forward with an energy program.