September 24, 1979
Page 25856
Mr. MUSKIE. Mr. President, the Members of the Senate have discussed at length the need for a national energy plan in recent months. The President has presented us with a many-faceted program to reduce our dependence on imported oil, including the creation of an Energy Mobilization Board. The Board's purpose would be to expedite consideration of proposed energy facilities. As the Senate Energy and Natural Resources Committee has developed its bill to create such a Board, I have examined carefully the advantages and disadvantages of this mechanism.
There is no evidence to justify waiving substantive statutes to which energy facilities are subject, yet such a waiver came very close to being adopted by the Energy Committee. The call for energy independence has been a convenient shield for those who cannot find any other way to wipe away the environmental health, safety, labor, and civil rights requirements crafted so carefully by the Congress.
Some have lost sight of the original goal of the legislation: The goal is to reduce our dependence on foreign oil.
Proposals have been advanced to afford special treatment to deepwater ports which would receive foreign oil, and to refineries which would process imported crude oil. Those are outside the proper scope of such legislation.
This bill which we introduce today is, therefore, an attempt to separate the wheat from the chaff. It is an attempt to identify a mechanism by which projects capable of producing domestic energy can be constructed expeditiously without bypassing the requirements of protective laws developed over many decades.
Specifically, this bill would do the following:
An Energy Mobilization Board would be created to designate priority energy projects that would be put on a fast decision making track;
Projects would be designated for fast decision making only if they reduced dependency on imported oil and needed such designation;
The Department of Energy would screen applications for priority treatment and forward for the Board's consideration those proposals which were consistent with the national energy plan, thus assuring coordination between the two agencies and rational choices among competing projects.
Local, State, and Federal officials, as well as other interested persons, would have an opportunity for participation in the designation process;
Only one environmental impact statement would be prepared for a priority project, thereby reducing paperwork and delay, although State and local environmental impact assessment requirements must be met;
The Board would set deadlines for all government actions necessary to begin operation of the facility and all government agencies would be required to adhere to those deadlines;
The Board would enforce the deadlines through court order;
Judicial review of agency decisions would be expedited, but State courts' jurisdictions over purely local matters would be preserved.
There is no provision for waiver of any substantive law, Federal, State or local. The evidence available indicates that environmental requirements have not seriously constrained the construction of energy facilities. For example, EPA has issued air pollution permits in clean air areas for 81 units since the program began in 1975. Only two permits have been denied. And, EPA has granted 74 of 76 permit applications for new coal-fired powerplants.
Nor has the time required by the Agency to process permits been excessive. Delays have more often resulted from failure of an applicant to provide required data, and financing problems.
The bill we are introducing does not provide for the waiver of new requirements for projects under construction, or after their completion. Such a waiver fails to recognize that new requirements are often enacted or promulgated as specific remedial responses to problems which were unknown or unknowable at the time a project was initially approved. Such a prohibition would effectively prevent corrective action needed to protect public health or the environment.
In summary, Mr. President, I believe we can expedite decision making without doing damage to State and local rights or to the substantive and procedural protections afforded in existing Federal, State and local laws. And, I believe it is the desire of the Congress to achieve both of these goals in developing a comprehensive national energy plan. We offer this bill as an alternative mechanism to do just that.
I ask unanimous consent that a letter from Maine's Attorney General Richard S. Cohen and a resolution adopted by the Eastern Regional Conference of the National Association of Attorneys General bearing on this issue, be printed in the RECORD at this point.
STATE OF MAINE,
DEPARTMENT OF THE ATTORNEY GENERAL,
Augusta, Maine,
September 21, 1979.
Hon. EDMUND S. MUSKIE,
U.S. Senate,
Russell Building,
Washington, D.C.
DEAR SENATOR MUSKIE: It has come to my attention that Senator Johnston of Louisiana has offered an amendment to S. 1308 that would authorize the proposed Energy Mobilization Board to supersede any federal, state or local regulatory act, including public health, safety, environmental and land use laws, deemed to be a substantial impediment to completion of a priority energy project.
I have grave concerns about the wisdom of this proposal and would oppose passage of any legislation containing a provision such as that proposed, since I believe it to be bad public policy to supersede laws designed to protect public health and safety. My position is also shared by the Eastern Regional Conference of the National Association of Attorneys General, which group recently adopted a resolution opposing such a Johnston Amendment. A copy of the draft resolution is enclosed.
Please feel free to call me if you wish to discuss this further.
Best regards.
Sincerely,
RICHARD S. COHEN,
Attorney General.
Whereas, the Attorneys General, as the chief law enforcement officers of their respective states, are concerned with all statutes relating to the health and welfare of citizens of their states; and
Whereas, all states and their subdivisions have enacted statutes, bylaws and ordinances that provide for the health and welfare of their citizens; and
Whereas, the operation of those statutes, bylaws and ordinances is indicative of healthy federal-state relations: and
Whereas, the power of states and their subdivisions to enact and enforce such statutes, bylaws and ordinances has long been recognized by the courts; and
Whereas, the solution to our concededly real energy crisis lies in a careful, long-range program of energy development and conservation and not in hasty solutions that will undermine existing protections for public health and welfare;
Now, therefore, be it resolved that the Eastern Association of Attorneys General opposes the adoption of the amendment to S. 1308 offered by Senator Johnston of Louisiana, which amendment provides for the waiver by the Energy Mobilization Board of any federal, state or local law deemed to be a "substantial impediment" to the completion of a "priority energy project."