Mr. DINGELL. I have to confess, Mr. Commissioner, I follow the logic of what you have done. I still come back to the same point. I have always kind of figured you treated everybody sort of alike. I am not fully satisfied you have done that in this event but I think you have been quite open, fair, and frank and I will probably be engaging you in more correspondence on this because I am still distressed over the fact that you have treated some differently than others.

Mr. THROWER. May I ask this question for you to consider, Mr. Chairman, because it is what we have to consider? A new organization is formed. It has done nothing. It sets up its organizational pattern in its charter. It proposes to litigate in the public interest, designating no field of interest.

It asks us to rule in advance of operations that it will be an exempt. charitable organization and to give to it and to its potential contributors the advance assurance of deductibility of contributions. What do we need to ask that organization in order to be able to assure the public that it is organized and operated exclusively for charitable purposes? Mr. DINGELL. I have the distinct feeling that what has taken place, has been that your ruling has covered too many things and at the same time, too few.

My attitude would be this: You probably ought not to have drafted it so broadly to cover organizations that may or may not be in litigation on environmental questions. As I see it, it covers organizations which may not necessarily primarily be engaged in litigation.

I think had you dealt solely with the question of the so-called public interest law firm, probably I think, our problem would have been much different, perhaps simpler.

You tried to keep organizations which are under the Environmental Policy Act in the same fashion as you would be treating people who would be litigating in the public interest on entirely different questions. As I see it, the environmental policy action gives you clear action here, but you have none in the Departmental Policy Act with regard to other issues.

Mr. THROWER. May I invite your attention to the Senate subcommittee hearings because it was for this very point that they commended us. We did not undertake to evaluate each cause, to say, "This is a good cause," and "This one is not." We concluded that an organization could be charitable if it sought seriously to resolve by litigation an issue reasonably determined to be in the public interest and not affected in any significant way by private financial interests. Mr. DINGELL. It is my view we should have a statute.

Mr. THROWER. We must nevertheless determine as a matter of law whether a proposed activity is charitable, and that law has not been changed.

I would be happy to have the chairman tell me what provisions of our guidelines seem inconsistent with the aims and objectives of the National Environmental Policy Act.

Mr. DINGELL. I want to express the thanks of the Chair and the committee for your helpful presentation and for your patience. The Chair observes the railroad bill is up for consideration on the House floor again, so with great regret I have to go again.

I want to express my appreciation to you; you have been abundantly gracious and helpful and I appreciate it very much.

Thank you.

The committee stands adjourned subject to the call of the Chair. (Following this hearing, several documents were received by the committee which pertain to the subject matter of the hearings. These documents are reproduced below :)

STATEMENT OF SPENCER M. Smith, Jr., SeCRETARY OF THE CITIZENS COMMITTEE ON NATURAL RESOURCES

Mr. Chairman and members of the committee, I am Dr. Spencer M. Smith, Jr., Secretary of the Citizens Committee on Natural Resources, a national conservation organization with offices in Washington, D.C. The Citizens Committee on Natural Resources has been a strong supporter of the National Environmental Policy Act of 1969 since the introduction of S. 1075 and H.R. 12549.

The National Environmental Policy Act of 1969 was a declaration of national purpose and provided for the establishment of a Council on Environmental Quality. Mr. Chairman, for purposes of lending continuity to my remarks, I have reproduced hereafter the Declaration of Policy and the operational part of the Statute (PL 91-190) affecting Federal Agencies dealing with the environment. "To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality

"SEC. 102. The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act, and (2) all agencies of the Federal Government shall—

"(A) utilize systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man's environment;

"(B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by title II of this Act. which will insure that presently unqualified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations;

"(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official

on

"(i) the environmental impact of the proposed action.

"(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

"(iii) alternatives to the proposed action.

"(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

"(v) any reversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of title 5, United States Code, and shall accompany the proposal through the existing agency review processes;

"(D) study, develop, and describe appropriate alternatives to recommend courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources;

"(E) recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States. lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind's world environment:

"(F) make available to States, counties, municipalities, institutions, and individuals, advice and information useful in restoring, maintaining, and enhancing the quality of the environment;

"(G) initiate and utilize ecological information in the planning and development of resource-oriented projects; and

"(H) assist the Council on Environmental Quality established by title II of this Act."

When the Council of Economic Advisors was established under the Full Employment Act, there was a great deal of discussion as to the relationship of this organization and other departments of the Executive, the Congress, and the President. Over the years, the Council of Economic Advisors has come to be regarded as an extension of the immediate Presidential Office. Each President has utilized this council in a somewhat different manner. In some instances, the Council chairman has taken strong policy positions before Committees of the Congress and have stated their positions publicly. On the other hand, Council Chairmen have urged that their statements be in Executive sessions and since they were advisors to the President and their activities had expression only through the statements and or activities of the President.

This relationship has been debated at great length, but in the final analysis the failure of the members of the Council to speak out on major economic policy issues show by this omission a need to test the Council, which Congress and the public at large has done.

At the risk of being dogmatic, I shall not attempt to document each impression with specific references to the legislative history. Rather, I should like to suggest our interpretation of the way in which the Act should be implemented. For example, if a project was proposed for authorization by the Army Corps of Engineers, the law and the accepted procedure prior to the passage of NEPA was for affected Federal agencies and other affected states to report on the project. In short, if a project was scheduled for the State of Pennsylvania, a commentary and evaluation from the Governor of that State would be expected. If such a report was omitted such an omission would be brought to the attention of the members of the House and Senate, and the action would be postponed until the Governor's report was received. By the same token, if a reservoir was to back water into a National Forest, the Department of Agriculture would be asked for an opinion or judgment as to the project. If the Report of the Department of Agriculture is not knowledgeable, and if it is clear that the opinion of the Forest Service has not been solicited, then the project would suffer from this failure.

There are those who argue that required in Section 102 of the National Environmental Policy Act need not be made public in a draft state and that hearings on such statements are not contemplated by the Act. It has been further indicated that public hearings are not required on the 102 statements. All of these arguments fail, in our judgment, to understand properly the significance of the National Environmental Policy Act of 1969. It is completely clear that the environmental statements required in Section 102 are to be accomplished by the Department as a further extension of their responsibility. Again, in the case of a project prepared by the Army Corps of Engineers, the 102 statement would be as much a part of the project proposed as would the cost/benefit ratio, the statements of states and local governments, and the statements would be available for inspection by the public just as any other part of the proposal is available.

It may be that the Council on Environmental Quality is not required to give an opinion or to make its opinion known to the public at large because of its unique role as personal advisor to the President. Some of my colleagues regard this as a serious omission whether in the Act or in the implementation of the Act by the Executive. It should appear obvious to all, however, that the Council on Environmental Quality will be very much on trial irrespective of whether it comments or fails to do so. In the final analysis, it is the action of the Executive which must be held accountable, or perhaps stated in the succinct words of former President Harry S. Truman-"the buck stops here." If the Executive Branch of Government continues to follow a policy or policies which worsen the environment or which exacerbate the poor conditions now existing, then one or two conclusions are possible. Either the Council on Environmental Quality is not giving the President the correct advice, or they are giving the President the correct advice, but for reasons of his own, he prefers to ignore it. In either

instance, the Council is discredited. On the other hand, for failure to advise the President properly, and, on the other, for its failure to have been persuasive or to be in the President's confidence.

It would appear to us that the Public's right to know does not necessarily suffer from the President's personal prerogative. We fell, however, that the agencies are in difficult posture and are obligated to extend to the public their own recommendations and evaluation, in order that the public in turn may make an intelligent in-put into the overall policy making procedure.

If the Environmental Policy Act is to be honored in the compliance and not in the breach, then the individual agencies' justification for projects proposed must include Section 102 statements regarding the effect of proposals upon the environment. Recently statements have not been prepared in time for the public to give an intelligent reaction to the environmental consequences of particular proposals. Filing 102 statements after public hearings on the projects violates both the specifications and the spirit of the statute. The Environmental Act is not a pro forma appendage. Rather, if the stated purposes of the Act are to be implemented, the environmental portion of any proposal must be an integral part thereof. Unless such is to be the case, then one must wonder what purpose the Congress had in mind when it passed this legislation. The issue of the environment is fast approaching the time when rhetoricno matter how eloquent-will not suffice. Results of purposeful, functioning, ongoing programs are required to give substance to the word. At present the issue is in abeyance.

We wish to thank the Committee for the opportunity of offering our views on a measure considered to be one of the most important of this Congress.

STATEMENT OF J. G. SPETH, NATURAL RESOURCES DEFENSE COUNCIL

INTRODUCTION

Under Section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), federal agencies are required to prepare a "detailed statement” on the environmental impact of proposed "legislation and other major federal actions" significantly affecting the quality of the environment. Pursuant to Executive Order 11514, the Council on Environmental Quality (CEQ) on May 11, 1969, issued "Interim Guidelines" to be followed by federal agencies in the preparation of these environmental impact statements. The guidelines are essentally regulations: their importance derives both from the brevity of NEPA itself and from the importance of the impact statement in the overall NEPA scheme.

Although parts of the guidelines are excellent, there is one respect in which they are woefully deficient. A key provision of NEPA is the requirement that the detailed statements be made available for public scrutiny at a time when meaningful consideration of alternatives to the proposed action or legislation is still a realistic possibility and before the agency or Congress has reached an effectively final decision. Public participation in agency decisions having an effect on the environment was one of the principal means envisioned by Congress for protecting the environment from unwise governmental action. Unfortunately, the present guidelines do not enforce NEPA's requirement of timely public disclosure. In fact, the guidelines tend to undercut, rather than protect, the public's right under NEPA to participate meaningfully in the agency decision-making process. Hopefully, CEQ will take this opportunity to revise its guidelines to make the public disclosure provisions more consistent with NEPA's language and legislative history. To assist the Council, this memorandum concludes with some suggestions for amending the present guidelines.

THE PUBLIC'S RIGHT TO ENVIRONMENTAL IMPACT STATEMENTS

NEPA's great significance is that it both declared a national policy in favor of environmental protection and also made the agencies of the federal government legally responsible for considering environmental values in each of their undertakings. Section 101 of the Act sets out an extensive list of national environ

mental goals, and section 102 then imposes a substantive duty on federal agencies by directing that "the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act." Senator Jackson, sponsor of NEPA and Chairman of the Interior and Insular Affairs Committee, summed up the basic purpose of the Act as follows:

"What is involved is a Congressional declaration that we do not intend, as a government or as a people, to initiate actions which endanger the continued existence of the health of mankind; that we will not intentionally initiate actions which will do irreparable damage to the air, land, and water which support life on earth."

NEPA also sought to increase the level of citizen involvement in agency decisions that affect the environment. The Senate Interior and Insular Affairs Committee Report on NEPA noted the "rising public concern over the manner in which Federal policies and activities have contributed to environmental decay .." And that same Report stated that one of the purposes of NEPA was to restructure a decision-making process in which "(p)ublic desires and aspirations are seldom consulted." Senator Jackson saw the Act as a means to ensure that decisions affecting the environment are to be made "in the light of public scrutiny." The goal of citizen involvement is expressed in NEPA itself:

"(I)t is the continuing policy of the Federal Government, in co-operation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures to create and maintain conditions under which man and nature can exist in productive harmony . . .' (Emphasis added.)

...

And the theme of citizen participation is expressed forcefully in Executive Order 11514:

"Consonant with Title I of the National Environmental Policy Act of 1969 . . . the heads of Federal agencies shall

"(b) Develop procedures to ensure the fullest practicable provision of timely public information and understanding of Federal plans and programs with environmental impact in order to obtain the views of interested parties. These procedures shall include, whenever appropriate, provision for public hearings, and shall provide the public with relevant information, including information on alternative courses of action. Federal agencies shall also encourage State and local agencies to adopt similar procedures for informing the public concerning their activities affecting the quality of the environment."

Despite the strong substantive declarations found in NEPA and its legislative history, the Act's sponsors feared that the absence of procedural safeguards might enable an agency to evade the Act's policies. With this in mind, certain procedural obligations were imposed upon federal agencies. This logic is succinctly stated in the Senate Committee analysis of the Act as reported from the Conference Committee:

“To remedy present shortcomings in the legislative foundation of existing programs, and to establish action-forcing procedures which will help to ensure that the policies enunciated in Section 101 are implemented, Section 102. establishes a number of operating procedures to be followed by all Federal agencies. . . " 10

The most important of these section 102 procedures is the requirement of section 102(2) (C) that all federal agencies prepare a "detailed statement" on the environmental impact of proposed "legislation and other major Federal actions significantly affecting the quality of the human environment." NEPA specifies that the following five points are to be covered in each detailed statement: "(i) the environmental impact of the proposed action,

"(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

"(iii) alternatives to the proposed action,

"(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

"(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented." "

In terms of mechanics, the Act directs federal agencies to do the following: "Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdic