Mr. HERTER. Thank you, Mr. Chairman. We were pleased and privileged to have a chance to talk with you. Mr. DINGELL. Thank you. If there is no further business to come before the subcommittee at this time, the subcommittee will stand adjourned until 2:30 this afternoon, when Mr. Shiro Kashiwa, Assistant Attorney General, Land and Natural Resources Division of the Department of Justice, will be present. (The following letter was later received by the committee, concerning AID financing of foreign pesticide programs:) DEPARTMENT OF STATE, Washington, D.C., January 25, 1971. Hon. JOHN D. DINGELL, DEAR MR. CHAIRMAN: During Mr. Herter's appearance on December 21, 1970 before the Subcommittee on Fisheries and Wildlife Conservation of the House Committee on Merchant Marine and Fisheries, you raised the question of the application of Section 102(2)(C) of the National Environmental Policy Act to AID financing of foreign country purchases in the United States of substances such as pesticides that are to be used in the foreign countries purchasing them. We are pleased to provide you with a further elaboration of our views on the question. We believe that the difficulties in interpreting Section 102(2) (C) stem principally from the phrase "Federal actions significantly affecting the quality of the human environment." We consider the phrase ambiguous on the question whether it includes decisions made and effectuated within the United States that do not, in themselves, significantly affect the quality of the human environment, but that are steps in a chain of events leading toward an actiton in a foreign country that has such an effect in that country. The ambiguity is not removed by considering the provisions of the Act as a whole. The Act contains language that refers broadly to the worldwide environment, but also language that refers to the nation's environment. Thus, Section 201 calls for an annual report on the environment "of the nation". The language in Section 102 (2) (C), which requires consultation in the preparation of an environmental impact statement with "any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved", implies that actions in foreign countries were not intended to be covered. Moreover, one could reasonably view Section 102 (2) (E), calling on all Federal agencies to recognize the worldwide character of environmental problems and to lend support to international cooperation in the field, as the device Congress intended to employ to meet the need to pursue internationally the policy set out in Section 101 of the Act. In these circumstances, it is appropriate to interpret the provision in question in light of the "purpose or intent of the whole act." (Sutherland Statutory Construction, 3rd Ed., Vol. 3, sec. 4704), which House Report No. 91-378 stated was to create a Council with an overview of "trends in the quality of our national environment" and advise of steps to be taken "to improve the quality of that environment," (emphasis added) as well as in light of the principle of construction that a statute should not be interpreted to have an extraterritorial application unless there is a clearly expressed intent that it do so. The interim guidelines issued by the Council on Environmental Quality on April 30. 1970 (35 Fed. Reg. 7391), do not, in our view, help resolve this question. Paragraph 5, on "actions included", refers to "projects and continuing activities... supported in whole or in part through Federal . . . loans, or other forms of funding assistance. . . ." The purpose of this language is to define the relationship between an action and the Federal Government that is necessary to bring the provisions of Section 102 (2) (C) into oneration. It does not bear on the question of where the impact must be felt or the action causing it take place (nor do the rest of the guidelines). Moreover, if read literally, paragraph 5 would suggest that the "action included" is only the project itself, which is subject to the jurisdiction of a foreign country, and not the AID loan or other Federal financing, since the latter is referred to only for the purpose of establishing a link with the Federal Government to define "Federal actions". The type of case under consideration should be differentiated from the case involving a decision by a domestic agency, such as the Small Business Administration, which participates in the financing of a project within the United States. In the latter case, the Act applies under the terms of paragraph 5 of the interim guidelines and the issue then is when the Federal agency involved should prepare its environmental impact statement. Since its involvement with the project hinges on its financing, that is the appropriate occasion for the report. However, in the case of actions in foreign countries, the question is whether there is any "Federal action significantly affecting the quality of the human environment" within the meaning of the Act. The crucial difference between the two cases is where the action affecting the environment is to take place. In our view, an interpretation of Section 102 (2) (C) that would include within the phrase "Federal action" any action in the world that depends in some way on a Federal act within the United States would represent an expansion of United States legislative jurisdiction not contemplated by Congress when it enacted the Act. We believe this view is supported by the House Report cited above. As a practical matter, an interpretation extending the Act's coverage to every decision made in the United States regarding actions occurring in other nations might be resented as a unilateral intrusion of the United States into the decision-making process of foreign governments, and might be cited as a justification for unilateral action by others in areas which we believe should be dealt with on an international basis. Moreover, pursuing such an interpretation of the Act would be almost impossible to accomplish because of the difficulties in obtaining all the relevant factual data, and might frustrate some of our assistance programs. As Mr. Herter and Mr. Schweitzer elaborated in their testimony before your subcommittee with these points in mind, we recognize that it is desirable to pursue, to the extent possible, the policies of the Act, both through Section 102 (2) (E) and through taking into account environmental considerations in all overseas activities of State, AID, and related agencies. Sincerely yours, DAVID M. ABSHIRE, Assistant Secretary for Congressional Relations. (Whereupon, at 11:58 a.m., the subcommittee recessed, subject to the call of the Chair.) ADMINISTRATION OF THE NATIONAL TUESDAY, DECEMBER 22, 1970 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON FISHERIES AND WILDLIFE CONSERVATION, Washington, D.C. The subcommittee met at 10:15 a.m., pursuant to call, 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 before the Subcommittee on Fisheries and Wildlife Conservation on the administration of the National Environmental Policy Act. We have had witnesses from almost every Government agency before us to discuss their actions under this new statute and to advise the committee on the procedures for handling the 102 and 103 statements, and we are happy to welcome this morning Mr. Shiro Kashiwa, Assistant Attorney General for Land and Natural Resources Division of the Department of Justice. Mr. Kashiwa, we are glad to welcome you this morning for such statement as you choose to give. The committee will be most pleased to have you identify for the purpose of the record the gentlemen of your staff who are present at the witness table with you, and at that point we will be most happy to recognize you for such statement as you choose to give. STATEMENT OF SHIRO KASHIWA, ASSISTANT ATTORNEY GENERAL, LAND AND NATURAL RESOURCES DIVISION, DEPARTMENT OF JUSTICE; ACCOMPANIED BY WALTER KIECHEL, JR., DEPUTY ASSISTANT ATTORNEY GENERAL; MARTIN GREEN, CHIEF OF THE POLLUTION CONTROL SECTION; EDWARD S. LAZOWSKA, LEGISLATIVE ASSISTANT; AND MISS LILLIAN SCOTT, CRIMINAL DIVISION Mr. KASHIWA. Thank you, Mr. Chairman. My name is Shiro Kashiwa. I have the honor of being the Assistant Attorney General in charge of the Land and Natural Resources Division of the Department of Justice, and am here in response to this committee's request. With me today are Mr. Walter Kiechel, Jr., Deputy Assistant Attorney General, Mr. Martin Green, Chief of the Pollution Control Section of my Division, and Mr. Edward S. Lazowska, Legislative Assistant for the Division. This series of hearings by this committee is, I understand, by way of oversight into executive branch administration of the laws relating to control of environmental pollution. In accordance with my understanding of the committee's wishes, I am submitting this short opening statement, and then will endeavor to respond to the committee's questions. First, let me say that though the Department of Justice has the leading role in the enforcement of pollution control laws, it has very little to do with administration of those laws. The limited administrative functions which it does have relate to the property interests of the Department, mainly surveying properties operated by the Bureau of Prisons and the Immigration and Naturalization Service, for compliance with the policies the Congress has stated in section 101 (a) of the National Environmental Policy Act, and filing with the Council on Environmental Quality the report required by section 103 of the act and section 2(d) of Executive Order 11514. The Department on December 16 advised this committee of the contents of its report to the Council, but for your convenient reference I am furnishing a copy of the report itself, dated December 7, 1970, with this statement. Mr. DINGELL. Without objection, that will appear at the appropriate place in the record. (The letter follows:) COUNCIL ON ENVIRONMENTAL QUALITY, DECEMBER 7, 1970. GENTLEMEN: As required by Section 2(d) of Executive Order 11514, March 7, 1970, the result of the Department's review indicates that there are no deficiencies or inconsistencies in our regulations or policies which would prohibit or limit compliance with the purposes of Public Law 91-190, known as the National Environmental Policy Act of 1969. This report has also been submitted to the Subcommittee on Fisheries and Wildlife Conservation as requested by Congressman John D. Dingell. Sincerely, WILLIAM H. O'DONOGHOE, Director, Office of Administrative Services. (Copy to Hon. John D. Dingell, Chairman, Subcommittee on Fisheries and Wildlife Conservation, House of Representatives.) Mr. KASHIWA. Thank you. In any report on legislation or other actions which might significantly affect the environment, we will, of course, file the statement required by section 102. As of this time, we have not yet had occasion to do so. The major concern of the Department of Justice as to environmental matters is with representation of the United States in litigation, civil or criminal, to abate pollution. More accurately, this is where our client agencies charged with administration of these laws furnish us with information indicating a violation or violations subject to Federal legal action. |