October 3, 1979
Page 27156
AMENDMENT NO. 490 — AS MODIFIED
(Purpose: To provide for the postponement of new requirements (other than those relating to occupational or mine safety) adopted after the commencement of construction of a priority energy project)
Mr. RIBICOFF. Mr. President, on behalf of the Senator from West Virginia (Mr. RANDOLPH) I send to the desk an amendment or modification of amendment No. 490, to modify the Muskie amendment.
The PRESIDING OFFICER. Will the Senator send his modification to the desk?
The amendment follows:
Beginning on page 140, line 3, strike all through and insert in lieu thereof the following:
POSTPONEMENT OF NEW REQUIREMENTS
SEC. 36. (a) The Board by majority vote, is authorized 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, for only such time as necessary to allow compliance with such statute, regulation, or requirement with no resultant substantial delay in the completion or commencement of operation of the affected energy facility, but in no event longer than five years. Such waiver may be granted only where (1) the Board finds that the waiver is necessary to avoid a significant delay in the completion and commencement of operation of the facility, and (2) the Administrator of the Environmental Protection Agency has not disapproved such waiver on the basis that it may result in the discharge, emission, or release of any toxic or hazardous pollutant or any other pollutant which may reasonably be anticipated to present a substantial endangerment to the public health or in any other condition which may reasonably be anticipated to present such endangerment, and (3) the Secretary of the Interior has not disapproved such waiver on the basis that it may result in any irretrievable loss of fish or wildlife which cannot be mitigated.
(b) For the purposes of this section, "commencement of construction" means that the owner or operator of a priority energy project has obtained all necessary preconstruction approvals or permits required by Federal, State, or local laws or regulations and either has (1) begun or caused to begin, a continuous program of physical onsite construction of the facility, or (2) entered into binding agreements or contractual obligations, which cannot be canceled or modified without substantial loss to the owner or operator, to undertake a program of construction of the facility to be completed within a reasonable time. For the purpose of this subsection, interruptions resulting from acts of God, strikes, litigation, or other matters beyond the control of the owner shall be disregarded in determining whether such construction is continuous.
(c) Any extension pursuant to this section may be conditioned on the imposition of a less stringent requirement or other alternative to the requirement which is to be extended.
(d) This section shall not apply to or modify in any way—
(1) any law, regulation or rule of law governing labor management relations, pensions, working conditions (including health and safety), or minimum wages and maximum hours of employment;
(2) any law, regulation or rule of law guaranteeing equal employment opportunities or prohibiting discrimination on the basis of race, creed, sex, or national origin;
(3) any law prohibiting any act similar to any crime at common law;
(4) any antitrust law of the United States.
Mr. ROBERT C. BYRD. Mr. President, will the Senator allow me to get a clarification from the Chair?
Is it the understanding of the Chair that following the disposition of the pending amendment, Mr. STEVENS and Mr. HUDDLESTON will be recognized to call up their amendment next?
The PRESIDING OFFICER. The Senator is correct.
Mr. ROBERT C. BYRD. I thank the Chair.
Mr. RIBICOFF. Mr. President, giving the Board power to act in lieu of an agency which misses its deadline is an unwise proposal. Specifically, it would :
Lead to complications and inevitable delays in court actions if a court remands a case either to the Energy Mobilization Board or to an agency to develop a further record for decision; or if a court decides that the Board has improperly applied the relevant law;
Decrease Government accountability by tempting agencies to "pass the buck" to the Energy Mobilization Board on particularly tough or policy-sensitive issues;
Erode the authority of independent regulatory agencies at all levels of government;
Invite abuse of enforcement power for political purposes on decisions affecting large, capital intensive energy projects; and
Lead to the establishment of a large bureaucracy at the Board which would have to have the expertise to make decisions on a wide range of Federal, State, and local matters.
Senator MUSKIE's and my amendment seeks 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 our approach and S. 1308 is how we seek to insure 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 1 day.
Our amendment 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 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 as it now stands will only result in more delay and more litigation.
The principal import of our approach — and which is contained in part of S. 1308 — 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.
Impressive precedent for this approach demonstrates its effectiveness and workability. As the District of Columbia 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).
It is true that there have been 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 insure 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 will only be called upon to enforce the deadline which an expert body, the EMB, 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 U.S. Government behind it in support of these projects, this will not be a problem.
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 to other Federal agencies with the substantive expertise, the procedures in S. 1308 are unwise because they will produce more, not less, delay.
Mr. STAFFORD. Mr. President, proponents of the Energy Committee bill have argued that S. 1308 does not waive the application of substantial Federal, State, or local laws. However, section 36 does empower the Energy Mobilization Board to waive any future Federal, State, or local law, regulation or requirements if "necessary to completion of the priority project in a timely fashion."
It is clear to this Senator from the debate, Mr. President, that the so-called "grandfather clause" is directed at new environmental requirements.
What may not be clear is that the grandfather clause may also be applied to a variety of statutes which are not environmental in nature. The only justification that the Board needs to waive such laws is the timely completion of a priority energy project. Senators should realize that the laws of their States can be effectively overturned by a simple finding that the progress of a priority energy project will be slowed down. This clearly, in the opinion of this Senator, empowers the Board to waive a State's energy facility siting law or changes in local building codes. And, to the extent that they would inhibit the progress of a priority energy project, other type of actions prohibited by the grandfather clause may include:
The enactment of a severance tax;
Changes in rates or rate structures for electricity;
Increases in property tax or method of property valuation; or
An increase in royalty or other Government or tribal share of mining revenues.
Clearly, none of these statutes would threaten public health or safety but they could delay a project's completion or otherwise threaten a project's economic viability.
Where waivers are applied to new environmental requirements, I shall repeat the concerns I expressed yesterday, but do so briefly. The grandfather clause fails to recognize that new requirements are often enacted as specific remedial responses to problems which were unknown before the project was begun. Such a prohibition would effectively prevent corrective action needed to protect public health in the environment. Although Senator JOHNSTON's amendment to section 36, which was adopted yesterday permits the Board to impose a lesser requirement, the Board cannot know what those requirements ought to be better than the State or Federal agencies charged with protecting public health and the environment.
Subsection 21(a) which authorizes the Board to substitute its judgment for that of any Federal, State, or local agency, is also a major defect in this bill, in the opinion of this Senator.
This provision may very well cause delays and bad decisions, since the agencies the Board would displace have specialized expertise and experienced staffs. Whatever their failings, they are better qualified to perform the functions assigned to them by law than the Board would be.
The Board would be compelled either to develop its own record and expertise, a time-consuming exercise, or to render an ill-informed, poorly justified decision that would be vulnerable to litigation. Within a few years, with dozens of projects designated, the Board would require an enormous staff to process decisions taken over from a variety of Federal, State, and local agencies involving expertise from land-use planning to toxic waste disposal. The members and chairman would be entangled in the net of their own power, unable to carry out all of their functions. The Board would become the ultimate unresponsive bureaucracy.
Again, Mr. President, we are not just talking about environmental laws; we are not just talking about shortening the time to reach a decision. The grandfather clause empowers the Board — a Federal agency — to interfere in some of the most fundamental powers traditionally reserved by State and local governments.
Therefore, Mr. President, I urge my colleagues to reject the grandfather clause and support the amendment offered by my distinguished colleagues, Senators MUSKIE and RIBICOFF. I hope that vote will come, as planned, at 4:30.
The PRESIDING OFFICER. The Senator from Connecticut is recognized.
Mr. WEICKER. I ask the distinguished Senator from Maine for 10 minutes.
Mr. MUSKIE. Mr. President, I yield 10 minutes to the Senator from Connecticut.
The PRESIDING OFFICER. The Chair informs the Senator that there is no time agreement to this amendment.
Mr. WEICKER. Mr. President, I direct my attention toward that portion of the Muskie-Ribicoff amendment which would delete subsection 21(a) of the bill. This subsection would authorize the Energy Mobilization Board to make a decision or take an action in lieu of any agency, whether it be Federal, State, or local, if the agency fails to meet a project decision schedule deadline established by the Board.
Mr. JOHNSTON. Mr. President, will the Senator yield for a parliamentary inquiry?
Mr. WEICKER. Yes.
Mr. JOHNSTON. Mr. President, what is the pending amendment?
The PRESIDING OFFICER. The pending amendment is the amendment offered by the Senator from Connecticut modifying the existing language.
Mr. JOHNSTON. The Senator from Connecticut?
The PRESIDING OFFICER. Senator RIBICOFF.
Mr. JOHNSTON. Mr. President, we do not have a copy of that amendment. I was informed that another amendment was pending, the Muskie amendment.
A further parliamentary inquiry, Mr. President.
The PRESIDING OFFICER. The Senator will state it.
Mr. JOHNSTON. I wonder if the Senator from Maine or the Senator from Connecticut intended the so-called Randolph amendment to be in lieu of the Muskie amendment and to be voted on at 4:30 p.m., or whether they intended the original Muskie amendment to be voted on?
Mr. MUSKIE. I am sorry, may I say to the Senator from Louisiana, I did not hear what he was saying.
Mr. JOHNSTON. The question is, if the pending amendment is the so-called Ribicoff amendment, which is a reincarnation, as I understand it, of the Randolph amendment, that now is the pending amendment, is that in lieu of the Muskie amendment for which a unanimous consent request was ordered for a vote at 4:30?
Mr. MUSKIE. I understood, caught up in the pressures of the request for unanimous consent, that Senator RANDOLPH wanted to modify the first part of my amendment, and, if he succeeded, then the vote would come on my amendment, as modified in the first part. In other words, the motion to strike section 21 would be the second part.
That is what we were contemplating.
Mr. McCLURE. Is it offered as an amendment to the amendment?
Mr. MUSKIE. The difficulty, may I say to the Senator from Idaho, is that the unanimous consent having been agreed to, we are facing the problem of whether any amendment is in order.
I do not know whether that has been worked out. The Parliamentarian has been consulted.
The PRESIDING OFFICER. To inquire of the Senator from Maine, is it his understanding that if the Randolph-Ribicoff language is accepted, that would then result in the second part of his amendment to be acted upon at 4:30, without the first part?
Mr. MUSKIE. I have no objection to that, whether or not that is the parliamentary situation
The PRESIDING OFFICER. The Chair would inform the Senator, that is what the precedents would require.
Mr. MUSKIE. So if I understand correctly, what I am being asked is whether, if the Randolph amendment is offered to the first half of mine and is accepted, that would resolve the Randolph amendment issue, and the remaining issue would be the second half of my amendment.
The PRESIDING OFFICER. The Senator is partially correct.
Mr. MUSKIE. I would have no objection to that, if that is the Parliamentarian's ruling, as the result of what has taken place.
The PRESIDING OFFICER. The Chair also informs the Senator the language introduced by the Senator from West Virginia and the Senator from Connecticut is to the bill, not to the language of the Senator from Maine's amendment. It would perfect the language that the Senator from Maine would strike and, therefore, takes precedence.
Mr. MUSKIE. What the Chair is saying is that if the Randolph amendment is adopted it would, in effect, amend the bill and not my amendment?
The PRESIDING OFFICER. The Senator is correct.
Mr. MUSKIE. And, nevertheless, it would impact upon my amendment to the extent that all that would be left of my amendment to be voted on at 4:30 would be the second half?
The PRESIDING OFFICER. The Senator is correct.
Mr. McCLURE. Mr. President, a parliamentary inquiry.
The PRESIDING OFFICER. The Senator will state it.
Mr. McCLURE. There is already a unanimous consent entered into by this body that says that the Muskie amendment will be voted upon at 4:30.
If, as a matter of fact, any intervening action interferes with that unanimous consent, is not the intervening action out of order?
The PRESIDING OFFICER. The unanimous consent to vote at 4:30 does not preclude other amendments being offered that have preference.
Mr. McCLURE. Even though the intervening amendments that would otherwise have preference have the effect of vitiating and nullifying the unanimous consent agreement already entered into by the Senate?
Mr. President, before answering that question and, therefore, making a precedent, I wonder if we might not solve this problem by propounding another unanimous consent agreement, because I am concerned that if, as a matter of fact, the Chair should rule that it would have the effect of vitiating the unanimous consent agreement, then unanimous consent agreements do not mean anything.
I would much prefer to solve the question in a different manner, if, indeed, that is the wish and desire of the Members present.
The PRESIDING OFFICER. The Chair does not—
Mr. McCLURE. Mr. President, I suggest the absence of a quorum so that we might see if we can arrive at such a unanimous consent request.