a whole to continue as chair of CEQ, I will work with you to make the examples I have noted the rule rather than the exception. The challenges are great, but I believe that the opportunities are many, and I hope I will have the opportunity to gain the confidence of this committee, and then to work with you as we take these challenges on. Thank you very much. Senator KEMPTHORNE (ASSUMING CHAIR). Ms. McGinty, thank you very much. We will now begin rounds of questions, and if we could, we will start the clock. First, if there is no objection, I will ask that the letter which I sent to you on September 12 and the response back from you on September 19 be made part of the record. Senator KEMPTHORNE. Ms. McGinty, if I understand correctly, in the first 2 years of President Clinton's Administration he had two offices in the White House that handled environmental policy. There was the White House Office of Environmental Policy, which you directed, and there was the Council on Environmental Quality. Why was there a need to have not one, but two, environmental offices in the White House? And did the offices compete, or compliment, or conflict with one another? Ms. MCGINTY. Mr. Chairman, we agree that there is a need for only one. At the time that you are referring to, the President had created the White House Office on Environmental Policy, but had simultaneously proposed to the Congress as part of an initiative to elevate the Environmental Protection Agency to cabinet status, to eliminate the Council on Environmental Quality. So our objective was to have one office, and we worked with this committee through those issues when the President had presented the legislation. Senator KEMPTHORNE. OK. Didn't this ever lead to confusion or duplication over which office was responsible for a particular issue? In the 1993 CEQ annual report that you transmitted, the President talks about the issue of ecosystem management, and has this to say about environmental regulation: "In many cases, several Federal agencies operated independently in the same area under different rules." Doesn't the President's quote accurately reflect the situation that existed between your office and CEQ? Ms. MCGINTY. No, sir. That was a reference, for example, to the wetlands situation where we had four different agencies with overlapping jurisdiction, but using different manuals and guides, so that there were different directives being given. For example, the Environmental Protection Agency had been using a different scientific assessment of "wetlands" than the Department of Agriculture was using. That is what the reference is to, and we have since changed that policy. Senator KEMPTHORNE. OK. As I understand, then, CEQ served with an acting chairmanMs. MCGINTY. Yes, sir. Senator KEMPTHORNE [continuing]. For 2 years, and that was a Mr. Ray Clark. He served 1 year, and then was reappointed-is that correct? Ms. MCGINTY. Mr. Clark served for part of that time, sir. Previous to Mr. Clark, Dr. James Baker, who is the head of NOAA, served as the acting chairman of CEQ. Senator KEMPTHORNE. OK. When Mr. Clark served, was there any concern about whether he should be reappointed? And was there any concern about whether there was sufficient legal authority to reappoint Mr. Clark for a second year, and then again for a third year? Ms. MCGINTY. Senator, part of the reason that the President moved to appoint me in a recess appointment, as I laid out in part in the letter that you referred to earlier, was because we wanted to be certain that we did have a duly appointed chair of CEQ in place because of some very pressing matters that were before the Council at that time. The Department of Justice advice was that we should move to a recess appointment because there could be a question under the Vacancies Act as to whether a second appointment or a reappointment of Mr. Clark would be possible. Senator KEMPTHORNE. But he was appointed twice, was he not, as acting? Ms. MCGINTY. I believe just once, and Dr. Baker before Mr. Clark. Senator KEMPTHORNE. OK. Ms. MCGINTY. I'd be happy to respond more fully for the record. Senator KEMPTHORNE. OK. [Information to be supplied follows:] DIRK KEMPTHORNE United States Senate WASHINGTON, DC 20510-1204 September 12, 1995 The Honorable Katy McGinty, Chairman The White House Washington, D. C. 20500 Dear Ms. McGinty: I appreciated the opportunity to meet with you to discuss your pending nomination and Senate confirmation that would allow you to remain as Chairman of the Council on Environmental Quality. In preparation for your upcoming confirmation hearing, I would appreciate knowing the background of the President's recess appointment, and why it was thought necessary to circumvent the Senate confirmation process. Second, and in light of the recess appointment, I would ask that you provide a compilation of your work while serving as CEQ chairman. I would also appreciate a compilation of your major activities while serving on the staff of CEQ and/or the White House office of Environmental Policy prior to the recess appointment. I have asked my legislative director, Buzz Fawcett, to work on your confirmation hearing, and he will be in touch with you. If you have any questions, you are welcome to call Buzz at 224 6142. Sincerely, DIRK KEMPTHORNE United States Senator Thank you for your letter of September 12. I, too, appreciated the opportunity to meet with you to discuss the upcoming hearing on my nomination to be Chair of the Council on Environmental Quality (CEQ) and thank you for taking time out of your busy schedule. Most importantly, however, I sincerely appreciate both your willingness to listen and your efforts to open a dialogue. First, you inquire as to the background of my recess appointment by the President. I appreciate your concern about my appointment. There was never any intention to circumvent the Senate confirmation process and to the extent we did not make this expressly clear to you and the Committee, let me do so now. As you may know, on December 1, 1994, the President submitted my nomination to be Chair of the Council on Environmental Quality. When the Senate recessed without acting upon the nomination, CEQ legal counsel, in consultation with the Department of Justice, was concerned that the agency would be hampered in its ability to fulfill its statutory and regulatory responsibilities under the National Environmental Policy Act (NEPA). In addition, there were several urgent matters pending before CEQ that CEQ and Justice Department counsel advised required a duly appointed Chair. One matter involved the shipment of spent nuclear fuel rods into South Carolina from research reactors in Western Europe. The spent fuel contained weapons grade, highly enriched uranium which, as a matter of nonproliferation policy, the United States wished to keep out of international commerce. The Department of Energy learned, during the course of the effort to return the spent fuel to this country, that CEQ regulations require formal consultation with the Council prior to CEQ exercising its emergency authority to develop alternative procedures for NEPA compliance. Although no emergency authority was invoked, CEQ counsel, working with the Department of Justice, determined at that time that a duly appointed Chair of CEQ should be available. The other matter involved the potential for armed conflict in one country. During contingency planning it was determined that emergency action to remove nuclear fuel rods from that country might be necessary. Again, in this case, a duly appointed Chair was judged to be necessary. Accordingly, the President appointed me as CEQ Chair on December 30, 1994. Recycled Paper As soon as the 104th Congress convened, on January 5, 1995, my nomination was resubmitted. We forwarded my nomination to the Senate immediately so that the Committee could move forward with confirmation proceedings at its discretion. Secondly, you requested a compilation of activities on which I have worked during my tenure at CEQ and the White House Office on Environmental Policy. As the in-house policy advisor to the President, I am responsible for the host of environmental issues that fall within the purview of the Federal Government. Dispute resolution, coordination of major federal environmental actions and reform of environmental laws and processes are my priorities. My responsibilities involve policy matters as diverse as energy efficiency, Congressional inquiries on behalf of constituents, Clean Air and other statutes, reinventing environmental regulations, federal facilities cleanup issues, nuclear waste policy, endangered species issues, timber and other natural resource issues, and more. Attached you will find two documents which are further responsive to your request for a compilation of the matters on which I have worked. The first document compiles a list of issues which are reflective of CEQ's mandate to coordinate agency activities, resolve disputes and implement the President's policy directives. The second document is a compilation of issues related to the Agency's NEPA oversight role. I hope you will find the information helpful. Please know that I am available, at your convenience, to discuss your requests in more detail or to provide any clarification you, or your staff, may require. Again, thank you for your attention. Sincerely, Kathleen A. McGinty Recycled Paper |