ADMINISTRATION OF THE NATIONAL
ENVIRONMENTAL POLICY ACT

FRIDAY, DECEMBER 18, 1970

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON FISHERIES AND WILDLIFE CONSERVATION,

OF THE COMMITTEE ON MERCHANT MARINE AND FISHERIES,
Washington D.C.

The subcommittee met at 10:05 a.m., pursuant to recess, in room 1334, Longworth House Office Building, Hon. John D. Dingell (chairman of the subcommittee) presiding.

Mr. DINGELL. The subcommittee will come to order.

This is a continuation of the hearings of the Subcommittee on Fisheries and Wildlife Conservation, on the implementation of the National Environmental Policy Act.

The committee is happy to welcome for our first witness Mr. Charles J. Orlebeke, Deputy Under Secretary, Housing and Urban Development. Mr. Orlebeke, we are certainly pleased to have you with us and after you have introduced those members of your staff and associates who are present with you this morning for our hearing, we will be happy to recognize you for such statement as you wish to give. STATEMENT OF CHARLES J. ORLEBEKE, DEPUTY UNDER SECRETARY; ACCOMPANIED BY GEORGE W. WRIGHT, OFFICE OF DEPUTY UNDER SECRETARY; LEIGH CURRY, ASSOCIATE GENERAL COUNSEL; ROBERT PAUL, OFFICE OF METROPOLITAN PLANNING AND DEVELOPMENT; AND DAVID DINWOODEY, OFFICE OF GENERAL COUNSEL, DEPARTMENT OF HOUSING AND URBAN

DEVELOPMENT

Mr. ORLEBEKE. Thank you very much, Mr. Chairman. I have sitting next to me on my right Mr. George Wright of my immediate staff who assists me in environmental matters. Also with me is Mr. Leigh Curry, associate general counsel.

Mr. DINGELL. Would you like to have Mr. Curry sit with you at the table? There is no reason why he couldn't do so, if you would like it.

Mr. ORLEBEKE. Thank you. It is usually helpful to have one's lawyer close.

Mr. DINGELL. There have been some witnesses who have gone through hearings who have found it to be quite useful. Some of them didn't bring their lawyers and they have had somewhat of a difficulty.

Mr. ORLEBEKE. I have two lawyers, Mr. Chairman; also Mr. David Dinwoodey sitting behind me.

Mr. DINGELL. Good morning.

Mr. ORLEBEKE. And Mr. Robert Paul, who I believe is known to the Chair.

Mr. DINGELL. I have known Mr. Paul for a long time and regard him highly. I am certainly happy to have him back.

Mr. ORLEBEKE. If I may, then, Mr. Chairman, I will proceed with my brief prepared statement and then would welcome any questions. The Department of Housing and Urban Development welcomes and applauds increased public interest in the environment. This Department has long had a strong interest in environment: the Housing Act of 1949 established the goal of "a decent home in a suitable living environment" for every American family, and subsequent housing legislation has reaffirmed that goal. We hope that heightened interest in environment, including the passage of Public Law 91-190, will result in a higher national priority on achieving these goals.

In response to your letter of November 4, 1970, Mr. Chairman, we are pleased to take this opportunity to set down preliminary departmental responses to Public Law 91-190, especially with respect to sections 102 and 102 (2) C.

SECTION 103 REVIEW

The legislation, of course, calls for a review of statutory authority and of administrative policies and procedures to determine whether there are any deficiencies or inconsistencies which prohibit full compliance with the act, and for the agencies to report findings to the President not later than July 1, 1971. An early preliminary report was requested by a Presidential Executive Order. On October 2, 1970, Secretary Romney reported to Chairman Train that:

On the basis of this preliminary review, we find no substantive inconsistencies or conflicts which prevent full support of Public Law 91-190.

The Secretary also indicated that:

It is conceivable that, when the goals (of Public Law 91-190) are defined more specifically, or when alternative approached so these goals are placed in mature form, some inconsistencies or conflicts will be identified.

SECTION 102 (2) C PROCEDURES

Section 102 (2) C mandates a new decision process by requiring environmental statements with identification and analysis of environmental consequences of major Federal actions before decisions are made. Section 102 (2) C also requires comments by other agencies, encourages reactions by public interest groups, and mandates consideration of alternative approaches by which to lessen or avoid adverse environmental consequences.

Secretary Romney, on June 19, 1970, established the basic HUD implementation of Public Law 91-190 (included in appendix A, p. 348.)

Mr. DINGELL. Mr. Orlebeke, the Chair notes you indicate in your statement that two memos are attached, and without objection the Chair will see to it that those are inserted in the record. Do you want them at this point or do you want them at the conclusion of your statement?

Mr. ORLEBEKE. They can be inserted at the conclusion, Mr. Chair

man.

Mr. DINGELL. At the conclusion?

Mr. ORLEBEKE. Yes.

Mr. DINGELL. Without objection, that will be done.

Mr. ORLEBEKE. Essentially, he assigned the Deputy Under Secretary overall responsibility and called upon the HUD general counsel, assistant secretaries, and regional administrators for appropriate support in their respective areas. Secretary Romney has determined that the Federal insurance administrator, and the general counsel, initially should concentrate on controversial and precedent-making cases. Subsequently, my office has established a network of "environmental clearance officers" in the central office under each assistant secretary, the Federal insurance administrator and the general counsel. and in the field offices under each regional administrator. We have also provided interim guidance on drafting and clearing environmental statements in the field for project decisions, and in the central office for policy circulars, program handbooks, and new legislation.

I have personally met at length with HUD's regional administrators and area office directors to review and discuss Public Law 91-190 procedures, and to impress on them the importance of HUD responsiveness to the act. In addition, I have asked each regional administrator to survey all pending departmental actions, and report to me regarding the need for environmental statements. These reports are now coming in.

The balance of my testimony will outline our general experience in the initial implementation of the National Environmental Policy Act of 1969. As you know, Mr. Chairman, the CEQ is now making the rounds of Federal agencies to review progress and problems under its interim guidelines. We look forward to our session with CEQ later today when we will be discussing the following points with them as well:

1. Without question, the National Environmental Policy Act has had a pervasive beneficial effect on HUD. There is a new sensitivity to environmental problems and issues, and the organizational network established by HUD to implement the act reaches from Washington and into the field structure where dealing with applicants and funding decisions really happen.

2. HUD's procedures to date call for the preparation of environmental statements on controversial or precedent-setting projects, as well as large-scale new developments such as new communities. We are currently trying to arrive at more specific criteria for screening applications to determine when environmental statements should be prepared.

Like all agencies, we have had difficulty in determining such criteria, given the broad and all-embracing language of the National Environmental Policy Act and interim CEQ guidelines. HUD's principal development programs, such as the renewal of blighted urban areas, water and sewer grants, and open space grants contribute directly to environmental enhancement. Our housing programs involve tens of thousands of departmental actions each year to insure or subsidize individual houses or apartment units, and the preparation of statements would quickly bring the Department to a standstill. We believe that thresholds should be established for determining whether

102(2)(C) environmental statements should be produced for these and other HUD programs.

3. We believe that the present method for securing outside comments needs careful review. The present two-stage process which requires the originating agency to prepare a draft environmental statement, to circulate this draft environmental statement for comment, and then prepare a final environmental statement, places a nearly unmanageable processing burden on HUD, and agencies generally. We believe either (a) this system should be used very selectively for cases with obvious adverse environmental consequences or precedent-making character, or (b) the administration should be changed to permit circulation of project applications or summaries (instead of draft environmental statements), which in most cases would be sufficient for a sister agency or unit of local government to establish the need that a formal detailed environmental statement be prepared. Moreover, currently there is no system for insuring that agency comments are considered or even read. The 102(2)(C) process is just gearing up, but HUD has already spent thousands of hours of scarce staff time preparing comments on scores of statements from other agencies. It is physically impossible to track down what receiving agencies have done, if anything, to reflect these comments in their decisions. Nor is it possible for the able, highly motivated, and vastly overworked staff of the CEQ, at this time, to review any but the most significant of the 102 (2) (C) statements.

4. We are concerned that the present system has strong centralizing tendencies at a time when domestic agencies are diligently carrying out the Presidential policy of decentralizing administration to the field. We would like to explore the potential of the new regional council mechanism, which exists now in all 10 regions for the principal domestic agencies, for carrying out many of the functions called for in the act.

5. Until some of the basic procedural problems outlined above are sorted out and solved, and I would insert parenthetically, Mr. Chairman, I think they can be solved, we suggest a halt in the environmental statement numbers' game. Partly as a result of congressional goading, the present preoccupation with grinding out environmental statements threatens to establish a false equation between numbers of statements and actual agency performance on environmental matters. In all candor, Mr. Chairman, we are in danger of creating a large bureaucracy of professional statement writers and readers, as well as encouraging a parasitic consulting industry to thrive on the business of environmental statement preparation.

The Congress enacted a strong and sweeping law. You do not want to see this law become a clumsy paper tiger, and neither does this Department. That is why I have leveled with you about the concerns outlined above.

In conclusion, Mr. Chairman, I want to assure you that HUD is committed to working with your subcommittee, with the CEQ, and with our sister agencies at Federal, State, and local levels, to make the National Environmental Policy Act an effective tool for protecting and enhancing the environment. It is basically sound legislation. It is having a significant impact on Federal agencies. We are learning to

work with it and focus it on appropriate projects. We are determined to continue to improve and sharpen our performance in the future. This completes my prepared statement. I will be pleased to respond to questions.

(The attachments to Mr. Orlebeke's were placed in app. A, p. 347.) Mr. DINGELL. Thank you very much, Mr. Orlebeke, and, as already previously noted, the committee will see to it that the memos and appendixes suggested earlier in your statement are included at this point in the record.

The Chair is happy to recognize my good friend, Mr. Pelly.

Mr. PELLY. Thank you, Mr. Chairman.

Mr. Secretary, I must say I commend you for your forthright statement about overdoing paperwork. We see it in every branch of government, and when Chairman Russell Train was here he indicated they didn't have the staff to handle these reports and they hoped to have a bigger staff, but certainly it doesn't do any good to go to the expense and time and trouble to file an impact statement and then have it repose in a pigeonhole some place and never see the light of day again.

I can't quite reconcile the fact, when most of your operation, as I know it, is to engage in antipollution efforts, that to have to report on those would, of course, defeat the purpose of the report itself. I am certainly glad to know that you and the council are meeting this afternoon to try to work out some reasonable basis for complying with the law. I hope that perhaps the chairman will provide you an opportunity to submit for the record later something of the nature of the way you work out this problem.

I certainly think you have made a real contribution in forthrightly coming up here and telling us of your problem. I presume, in view of the help in some distressed areas to create a new, decent housing community, that you are not going to have that go-ahead unless you are assured that it will not contribute to pollution, and I don't quite know whether you are supposed to file a report on what your assurances are that it will not, or just exactly how far you are supposed to go. Is it on the overall programs or on the individual specifice ones? I would be interested in having that final determination placed in the record so we know just how you are going to work this out.

Mr. ORLEBEKE. We would be pleased to do that, Mr. Chairman. (The information may be found in appendix A, p. 348.)

Mr. ORLEBEKE. I appreciate your comments. It is true that our major housing programs, the development programs, have volumes of specifications and criteria, many of which relate not only to the standards of the structures involved but also to the impact of the structures on the immediate and surrounding environment. These are a normal part of our departmental operations and, of course, have been for a long time, so it is a perplexing area to decide just exactly where the new procedure called for under the act should cut in. At this point our Department is administering a rather recently enacted new communities program and we believe that this is clearly a program which calls for the preparation of environmental statements, and we are doing so.

Mr. DINGELL. Will the gentleman yield?

Mr. PELLY. Yes.