conservation, and reforestation, fish and wildlife protection and restoration, and the grave social and economic needs of the communities, large and small, throughout the river basins of America.

Mr. Chairman, the tabulation that I referred to earlier in the statement has arrived with a little covering memorandum. It is very detailed and I see no particular advantage to going into it here. I will submit it, if I may, as part of my statement.

Mr. DINGELL. Without objection, the document referred to will appear at the appropriate point in the record.

(The material follows:)

National Parks and Conservation Association is a private, non-profit, educational, and scientific institution concerned primarily with the protection of the National Park System, but also with the protection of the natural environment and other major conservation and environmental issues.

The National Parks and Conservation Association has more than 51,000 members all over the United States and abroad. It publishes a monthly magazine, National Parks and Conservation Magazine: The Environmental Journal, received by all members.

DECEMBER 18, 1970.

ANTHONY WAYNE SMITH

President and General Counsel, National Parks and Conservation association since 1958.

Attorney admitted to practice in the Courts of New York and the District of Columbia.

Chairman, Environmental Coalition for North America; General Counsel, Citizens Permanent Conference on the Potomac River Basin (Citpercon); Legislative Counsel, Chesapeake and Ohio Canal Association; Executive Committee member, Citizens Committee on Natural Resources; President, South Central Pennsylvania Citizens Association; in all cases serving in a personal, professional capacity on personal time without compensation pro bono publico.

Co-Chairman, Everglades Coalition: for personal identification only in this respect, the Everglades Coalition protested successfully in April, 1969 against a proposed giant jetport in Big Cypress Swamp in the Florida Everglades country. Member of and executive in conservation organizations and movements in watershed management, river basin planning, forestry, soil conservation, and wildlife management for over 20 years.

Professional student of government operations, specifically with reference to natural resources management and regional planning; specialist in the coordination of disciplines involved in such management and planning.

Graduate of University of Pittsburgh and Yale School of Law; Board of Editors, Yale Law Journal.

Secretary to Governor Gifford Pinchot of Pennsylvania 1932–33.

Practiced law in New York with Donovan, Leisure, Newton & Irvine, Two Wall Street, after graduation from Law School.

Assistant General Counsel, Congress of Industrial Organizations, 1937-56; Assistant Director of CIO State and Local Central Organizations 1941-56; Executive Secretary of CIO Committee on Regional Development and Conservation. 1945-56; Committee on Political Education, AFL-CIO 1956-58.

Commercial dairyman. Franklin County. Pennsylvania, since 1954. Member Farm Bureau, Grange, Milk Producers Federation, Soil Conservation District, and other farm organizations.

Mr. SMITH. We will be glad to be of any assistance to the staff of the committee or the committee in analyzing that tabulation and submitting any further material that we can.

I want to thank you again, Mr. Chairman, for the opportunity to appear.

Mr. DINGELL. We will have the staff be in touch with you, Mr. Smith, regarding any questions that might properly be raised about that matter. Mr. Everett.

Mr. SMITH. Thank you.

Mr. EVERETT. Thank you, Mr. Chairman. On page 13, Mr. Smith, you stated:

The Council on Environmental Quality has interpreted the Environmental Protection Act as not requiring it to review projects of this kind in advance of presentation to Congress.

I assume you are talking about the National Environmental Policy Act. Is that correct?

Mr. SMITH. Oh, yes; Policy Act. I'm sorry.

Mr. DINGELL. It is a rather common slip.

Mr. EVERETT. You indicated that this means that the projects go to Congress without comment by the CEQ. According to the guidelines issued by the Council, I was of the opinion that the responsible agency that has the responsibility to file a statement on legislation would solicit comments from other agencies that have expertise on the subject matter. Do I understand you to say that the Environmental Protection Agency is not to be included as one of the experts to be contacted?

Mr. SMITH. Yes, sir; that is correct. The Council on Environmental Quality does not regard itself as a Federal agency within the meaning of the Environmental Protection Act.

Mr. EVERETT. But you were not talking about the new agency that was just set up?

Mr. SMITH. Oh, no. I am talking about the Council on Environmental Quality, not the Environmental Protection Agency. No; I would assume that the Environmental Protection Agency would be asked for its comments on the impact statements. What has happened has been essentially that the Secretaries and departments have been asked for their comments and the Secretaries have replied on behalf of their agencies within their own departments and the replies have been very cursory. There has been a one-paragraph thing in most cases which said, we have no objection or we have no comments, and I suppose that the Army Engineers would in the future ask the Environmental Protection Agency for comments also.

Mr. EVERETT. Mr. Smith, you indicated with respect to the comments on the legislation that recently came up to the Congress before the Public Works Committees that the public did not have an opportunity to look at the environmental impact statements. Since that time have you had an opporunity to see the statements that were presented with the legislation?

Mr. SMITH. I believe we have obtained copies of them since that time. I suppose they are included in the committee reports.

Mr. EVERVTT. Do you know whether there are any adverse comments from the departments on the legislation that you refer to?

Mr. SMITH. On the two projects on the Potomac I don't believe there were.

Mr. EVERETT. But the point is that no attempt has been made to give these documents to the public for their consideration?

Mr. SMITH. That is right.

Mr. EVERETT. Now, where does that leave you in regard to the legislation? What alternatives do you have in this respect?

Mr. SMITH. Well, I think the only alternative we have are to appear before your committee here, for one thing, and express our views that this procedure is entirely unsatisfactory. We don't even have an op

portunity to appear before the Public Works Committees because their public hearings are all over.

We can protest to the President. We can protest to the agencies involved. We have expressed ourselves on many occasions to the Corps of Engineers itself. You get a feeling that you are talking to all the available governmental agencies on these things and that nobody is listening and almost nobody is there.

Mr. EVERETT. Do you feel that these actions have been in violation of the act?

Mr. SMITH. Very definitely. I think that this tabulation that we have submitted here will show with respect to many of the subsections of section 102 (2) C of the Environmental Policy Act that there were not even any reports made. The Corps of Engineers did not respond to the requirement that it comment in respect to those subsections.

For example, it did not comment as to the alternatives available in place of the Sixes Bridge Reservoir and the Verona Dam in the Potomac River Basin. The alternative was there. The alternative had been presented to them in hearing after hearing, and meeting after meeting, and document after document for 8 years. It is publicly known that there is an alternative and there is a reasonable alternative, and when the impact statements were submitted they said with respect to alternatives to those reservoirs the only alternative is no development.

Mr. EVERETT. Those are all the questions I have, Mr. Chairman. Mr. DINGELL. Mr. Smith, the committee is grateful to you for your very helpful presentation. We want to thank you for your presence today. If you have any additional additions that you would like to make for purposes of the record you may feel free to do so. The record will be open for a brief period after the conclusion of the hearings.. Mr. SMITH. Thank you, Mr. Chairman.

Mr. DINGELL. Our next witness is Mr. Edward Berlin. Mr. Berlin, we are happy to welcome you to the committee for such statement as you choose to give. If you have anyone with you you would like to have present with you at the witness table you may feel free to do so. If you will please give your full name, address, and those of your associates with you at the table to the reporter for the purpose of the record we will be happy to recognize you for such statement you choose to give.

STATEMENT OF EDWARD BERLIN, COUNSEL; ACCOMPANIED BY WILLIAM A. BUTLER, WASHINGTON COUNSEL, ENVIRONMENTAL DEFENSE FUND

Mr. BERLIN. Thank you, Mr. Chairman. My name is Edward Berlin, a member of the law firm of Berlin, Roisman and Kessler. We are counsel for the Environmental Defense Fund. With me at the table this afternoon is Mr. William Butler, who is the Washington counsel for the Environmental Defense Fund.

Mr. DINGELL. Mr. Butler, we are happy to welcome you.

Mr. BERLIN. I know, Mr. Chairman, that these hearings have been long and tedious and, if it meets with your approval, it would be perfectly agreeable to us to submit our prepared statement as if read and proceed to summarize it.

Mr. DINGELL. Without objection, you may feel free to do so, and it is so ordered.

(Mr. Berlin's statement follows:)

STATEMENT OF EDWARD BERLIN, COUNSEL, OF THE ENVIRONMENTAL
DEFENSE FUND, INC.

Mr. Chairman: I am Edward Berlin of the firm of Berlin, Roisman and Kessler, counsel for the Environmental Defense Fund, Inc. With me this morning is William A. Butler, Washington counsel for EDF. EDF is pleased to appear here this morning at the request of the Subcommittee.

Too often the Congress, unfortunately and quite inappropriately, has viewed its task as complete when it has legislatively addressed a pressing social problem. As you know it usually is not practicable for the Congress to do much more than outline a broad legislative response leaving it to the responsible agencies to fill in the required substance. In recent years this has been the accepted pattern for meeting social problems and it is most appropriate, for the problems are dynamic and it would be unrealistic, and dangerous, for the Congress to endeavor to anticipate all specific areas of concern.

Nonetheless it is essential that the Congress actively maintain and demonstrate its continuing oversight into the manner in which these delegated legislative functions are being discharged. Mr. Chairman, you and the members of your Committee are to be congratulated for dedication in this area.

Congress, in enacting the National Environmental Policy Act, made unprecedented promises to the American public; it promised that there would be a basic restructuring of the administrative decision-making process with environmental integrity becoming a matter of central priority.

The extent to which that most basic, and pervasive, goal will be realized will be dependent upon a similar dedication by each and every federal agency; in turn the sincerity of that dedication will be influenced by a continual Congressional presence.

Shortly we will celebrate the Act's first anniversary. We would have hoped that the administrative response would have by now been such as would warrant festive tributes. Unfortunately, many agencies have yet to appreciate the clear Congressional message; some have responded to the Act in a way which can serve only to thwart its objectives perhaps even to the point of having a regressive effect.

We shall be more specific and we shall offer our view of how implementation must be realized. Preliminarily, however, we should focus on the activities of the Council on Environmental Quality.

It has become popular sport of late to damn the Council for all environmental frustrations and administrative inadequacies. We are distressed by these attacks. To be sure were we to have a free hand in writing the Council's charter, undoubtedly we would offer some basic revisions. But neither we nor the Council has that authority and therefore it is irresponsible to judge the Council without reference to its narrowly delineated scope.

The Council itself is not an action-oriented agency; its Chairman and its members serve as personal advisers to the President with all of the constraints that that relationship presupposes. As we have indicated, the Act is designed basically to effect alterations in the processes of each individual agency; central to the Council's mission is to effect a similar reordering of priorities on an interagency coordinated basis. The extent to which it will be able to realize this critical objective is dependent solely upon its ability to enjoy and utilize the confidence of the President.

It is easy to become frustrated over the Council's failure to take a strong public stand on a particular issue; but it is foolhardy to assume that it can regularly engage in such debate without impairing significantly its ability to effect the basic fundamental changes which are of unequaled significance if in the future we are to move away from an ad hoc crisis-oriented approach to one pedicated on well-reasoned long-range comprehensive planning.

Moreover, we should not ignore the fact that when critical environmental issues have arisen Chairman Train and Council members Cahn and MacDonald have not remained silent. We remind the Committee of the Council's statements with respect to the proposed Internal Revenue Service ruling that would have precluded litigation by tax-exempt organizations, to its stand on the proposed

Everglades jetport, and to its position on the dumping of nerve gas by the Army. Nor should we ignore the interim guidelines for the implementation of NEPA promulgated by the Council on April 30, 1970 which, in the main, are excellent. Notwithstanding the foregoing we do feel that there is ample basis to permit the Council to interpret its authority more broadly. For example, it could publieize those agencies which have failed to comply with NEPA or have filed cynically inadequate environmental impact statements. Also, the Council has been unnecessarily reticent in releasing to the public draft statements submitted to it by agencies for their approval.

However, principal responsibility for the abysmal failure to have moved significantly toward the realization of NEPA's goals rests, in our view, squarely on the shoulders of each individual administrative agency. Let us, however, avoid generalizations and focus on the implementing activities of two critical agencies, the Federal Power and Atomic Energy Commissions.

Recently the FPC proposed procedures to implement NEPA. However, its basic difficulty is that it proceeds from the premise that the responsibility for considering environmental impacts rests with the applicant and with all wouldbe interveners. That is, that the responsibility for the development of the full record, which is the essential predicate of the decision-making process, rests on parties other than the Commission and its staff. It is impossible to reconcile that premise with Scenic Hudson, Udall v. FPC, or NEPA and its legislative history.1

The proposed rule is explicit in directing that applicants and "all interveners" must, in a limited range of proceedings, file a detailed environmental statement. In contested matters, however, the obligation imposed on the Commission staff does not go beyond presenting evidence in support of its "own environmental position". We are not sure what is meant by the staff's own environmental position. We assume, from Scenic Hudson and Udall v. FPC, that there is a mandate on the staff to analyze fully all environmental issues (indeed all issues) and develop a complete record-whether or not that analysis or record is necessary to support the staff's "own position".

The assumption that active staff analysis is less essential where thirdparties have intervened is fallacious. First, while we agree that in most cases staff vigilance will be most essential where third-parties have not intervened, we are mindful of the fact that environmental issues undoubtedly will be most pressing and complex in contested proceedings. Second, the Commission assumes that interveners will have the ability to undertake the NEPA analysis. But that assumption is legally and logically inappropriate. As to its illegality we need refer only to Scenic Hudson and Udall v. FPC. As to its logical inappropriateness we need only point out (and surely the Commission need not be reminded of the fact) that the issues involved are complex and their identification, let alone resolution, requires the availability of a broad range of technical expertise.

The Environmental Defense Fund is fortunate; being essentially a scientificoriented environmental group, it has available to it specialized competence not usually available to most groups. But even its breadth of expertise will no doubt leave something to be desired when confronted with complex economic and energy matters such as arise routinely under the Federal Power and Natural Gas Acts. To the ordinary environmental and citizen group the obligations which the Commission contemplates imposing would be an absolute bar to participation.

There is no surer way to frustrate NEPA than to impede participationespecially by local citizens groups that are concerned with the preservation of local environmental attributes, which they can articulate, but are unable to prepare the requisite "detailed environmental statement". The Commission will only be able to discharge its planning responsibilities if it is assured that all relevant considerations are brought to its attention. The burden improperly imposed on would-be interveners is inconsistent with this objective and must not be finalized.

We have pointed these basic problems out to the Commission in comments which we have jointly filed with the Consumer Federation of America. In

Scenic Hudson Preservation Conference v. FPC. 354 F. 2d 608 (CA2, 1965), certiorari denied sub. nom. Consolidated Edison Company of New York v. FPC, 384 U.S. 941 (1966): Udall v. FPC, 376 U.S. 428 (1967); Cong. Rec., July 10, 1969. S 7815. October 8. 1969, S 12125 and 12143: December 12, 1969, S 17450-17454; December 23, 1969. H 1309313095; and Senate Report No. 296, 91st Cong., 1st Sess., pp. 6-9, 14 and 19-20.