Mr. GOODLING. That is all, Mr. Chairman.

Mr. DINGELL. Mr. McCloskey?

Mr. MCCLOSKEY. Mr. Train, I don't think I need compliment you because, as I understand it, quite clearly you are appointed by the President, by and with the advice and consent of the Senate, and found to be:

A person who, as a result of his training, experience, and attainments, is exceptionally well qualified to analyze and interpret environmental trends and information of all kinds, to appraise programs and activities of the Federal Government in the light of the policy set forth in title I of this Act; ***

I am concerned that in defining your job we made you and the Council the key Federal agency to submit comments and recommendations to the President on the impact on environmental quality of any Federal program, and yet since you serve at the pleasure of the President if your comments are adverse to any particular administrative program I imagine you serve with the peril of losing your job on a day-to-day basis. I am concerned over your comment about. oral comments because, as I read the act, it is the intention of the act that, and I quote from section 102(2)(C):

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 ***.

How can comments be made available to the public if they are oral?

Mr. TRAIN. Mr. McCloskey, we require by our guidelines that these comments by the various agencies be in writing. We share your interpretation of the statute. Now, the statute doesn't say that they must be in writing but we have interpreted it as meaning they must be. Likewise, it was this provision of the statute which gave rise to our decision that draft statements should be developed. The concept of a draft statement does not exist in the statute at all, and it was our decision that in order for an originating agency to fairly and intelligently elicit the comments of a variety of other agencies there has. to be one specific proposal to which all comments were being directed. This could only be done if some sort of a draft statement were prepared and that is required by our guidelines.

Mr. MCCLOSKEY. My question, though, is: I would interpret the draft statement as defined by you as a comment by the appropriate agency involved and those comments, under the law, are to accompany these recommendations through the existing agency review processes. and they are to be made available to the public, are they not? Mr. TRAIN. The originating agency's draft statement?

Mr. MCCLOSKEY. That is correct.

Mr. TRAIN. We have not interpreted the statute this was, of course, the subject of my letter to the chairman of some while ago-as requiring the publication of draft statements. In fact, I think the statutequite clearly says that the detailed statement, which is the statement prepared after receiving agency comments, shall be made public under the Freedom of Information Act.

We have ourselves, as I indicated, developed this concept of a draft statement. It didn't exist in the statute. And it is these draft state

ments that the demand is now being made with respect to their being made public. We have not required this. We have had included in the President's Executive order implementing this act a requirement, again not found in the statute the President's Executive order in this respect does go really well beyond the statute-calling for full public disclosure of plans and procedures, and so forth, to the fullest extent practicable. It doesn't make a mandatory requirement, and we have endeavored to urge, and I think with a great deal of success, the fullest disclosure by all agencies of draft statements.

In the case of the Corps of Engineers, for example, these are made available to the public and, in fact, as I pointed out in my statement, they now have a preliminary draft statement and this, too, is made available to the public under their own procedures formally. All of the Atomic Energy Commission draft statements are made available to the public. Whenever there is a draft submitted of some real public interest, unless there is some very important reason to the contrary, we try to persuade the agency to make it public.

Now, I think that the draft statement which the Department of Defense has just prepared with respect to shipment of nerve gas from Okinawa to Johnston Island has, I believe, been made public and I know it is their intention to make it public. Now, this is well in advance of the completion of any final statement, in advance of the receipt of any agency comments.

Now, as to whether our comments should be made public or not, which may have been part of your question, we do not interpret the statute as saying that. The section which you have read, Mr. McCloskey, refers to the comments of agencies with expertise or jurisdiction over the subject matter.

Mr. MCCLOSKEY. This is why I asked the question as I did, because, as I read the act, it makes the Council on Environmental Quality by lawmen of special expertise with respect to any environmental impact. Mr. TRAIN. We hope that we are, yes.

Mr. MCCLOSKEY. If that is true, then every project ultimately has to receive your consultation and comments.

Mr. TRAIN. The statute does not require that. The statute requires that they be filed with our Council and, believe me, we do our level best to review them and where comments are called for we try to do this. Again, in all honesty, I will say we have a great deal of trouble staffwise in trying to do that. We are getting about 100 a month now, about four each working day or thereabouts, and it is practically impossible for us to effectively review all of these.

Mr. MCCLOSKEY. Mr. Train, let me make the point perfectly clear. What I think the Congress is concerned with here is the danger that we will not receive adverse comments of various State and Federal agencies with specific expertise on a given project or program because, understandably, any administration might not want to have its ultimate decision criticized by the use of adverse documents conceived in the process of reaching that decision, and it is for that reason, as I read the statute, that the comments of all agencies that were to be solicited were to accompany these reports as they went through and were to be available to the public.

Now, I respect the decision of the administration to require that these comments be in writing because I would suspect if the writings

were to be disclosed to the public many adverse comments by responsible officials would be made orally rather than be revealed to a critical public or possibly a critical Congress. This is the difficulty that I have with your statement on the interpretation of this law, because it seems to me quite clear under section 102 that those comments were to be made public, and I am referring to that specific paragraph again to which I don't understand your statement to refer.

I can understand that draft reports might not be made public but how do you remove those draft reports from the title "comments"? The statute referred to "comments."

Mr. TRAIN. Well, the comments are made available to the public. All the agency comments and the State and local agency comments are required to be made available to the public at the same time that the detailed statement is, and this is done.

Mr. MCCLOSKEY. Even the adverse comments?

Mr. TRAIN. Yes.

Mr. ROGERS. Would the gentleman yield?

Mr. MCCLOSKEY. Yes.

Mr. ROGERS. I think what you are telling us is all of the comments of the agencies are made public but your comments are not.

Mr. TRAIN. That is correct.

Mr. ROGERS. And your comments, you say, are not required by law to be made public?

Mr. TRAIN. We have interpreted it that way.

Mr. ROGERS. Yes.

Mr. TRAIN. The statute is not specific.

Mr. ROGERS. I think we should center some attention on that, per

haps.

Mr. MCCLOSKEY. Let me move to another subject.

Mr. DINGELL. Will the gentleman yield here for a question?

Mr. MCCLOSKEY. Yes.

Mr. DINGELL. If you are going to have, Mr. Train, comments of the agencies which antedate the impact statement made public, why then should not the statement of the Council in its draft form be made public?

Mr. TRAIN. I suppose the basic reason goes back to our relationship to the President. We are part of the Executive Office of the President and his advisers on these matters, and just as OMB's comments on budget requests, so far as I know, are not generally made available to the general public, neither are ours.

Mr. DINGELL. Isn't it a fact, however, that your agency is an agency by law or special expertise with respect to environmental impact? Isn't your agency one "which has jurisdiction by law or special expertise with respect to any environmental impact involved" and I am quoting now directly from the statute?

Mr. TRAIN. Well, we have not interpreted those particular words as referring to us. We considered that what is meant there is, when the Corps of Engineers, for example, is preparing a dredge and fill project, that it should consult with the Department of the Interior with respect to the impact on fish and wildlife, and we prepared a lengthy list of all the agencies which we considered had any possible environmental expertise, which I am informed we actually discussed with your staff, and it does not include our Council. This has been published, and it is published in your documented hearings.

Mr. DINGELL. I am not trying to set a trap for you there, Mr. Train, but this is a matter of considerable strength of feeling which I will pursue at a time later. I thank the gentleman.

Mr. TRAIN. May I just go a little further on it? The language of the statute itself does seem to us to draw a distinction between the Council and agencies whose comments should be made public. If I may just read this again:

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*

It seems to me in reading that it is a fair conclusion that the Congress was not considering the Council in that respect as one of the expert agencies like all of the other agencies in the development of its

comments.

Mr. DINGELL. Yes. Of course, if the gentleman would yield, in the language that does follow, though, it says:

*** and shall accompany the proposal through the existing agency review processes;

Mr. TRAIN. The detailed statement with the agency comments.

Mr. DINGELL. Which says, to me, that this has to be made available not only to the agencies concerned but to the public at the earliest. possible moment, to really have the public's views, thoughts, feelings, and concerns appropriately included in this whole process that is required by the language up above in section 101 where you are required to bring the public into this decisionmaking process. Mr. ROGERS. Would the chairman yield just for one question? Mr. DINGELL. I don't have the floor.

Mr. MCCLOSKEY. I yield.

Mr. ROGERS. I think your interpretation is probably right the way the present law is written, but I think that what we are talking about is whether we need a change because it seems to me the group that we are most concerned about getting the view of is the National Council after they have seen all of the other recommendations, and I did not realize that we could not get your viewpoint on the record and I think the gentleman from California has shared that feeling. Thank you. Should we do something?

Mr. TRAIN. I think, gentlemen, to be very honest about it, there is a major dilemma here. It depends upon what kind of a Council you want and what kind of a role you want it to fill. It can't fill all roles. I think that is a fact. We cannot be, in a sense, the public ombudsman on environment and at the same time be the confidential advisers to the President on the development of policy. It is just an impossibility to fill both these roles.

Mr. MCCLOSKEY. That is the question I was getting at, whether by nature of this job and this statute, Mr. Train, you felt that you and the Council were confidential advisers to the President rather than somewhat of an ombudsman in the matter of environment because, in contrast to those statutes that set up the fiscal advisers and the National Security Council, running through this statute we thought

that every step in the procedure in matters of the environment were to be made public and, frankly, as you recall, the administration testified against this bill before the committee.

We certainly gathered from the testimony of the administration in 1969, that it had a deep commitment to the establishment of this type of a Council, so the question of how the Council is formed and how it considers itself is very much a question as to whether this statute should be amended.

I go back to that first section that I quoted to you at the start. We set the criteria for this Council, that they be men of special expertise in matters of the environment. While I tend to accept what you have said that if these commitments are to be made to the President, the public and the Council, perhaps the Council was not intended to have its own comments made public, this may require us to include that in considerations of statutory amendment.

Mr. TRAIN. We have, for example, on occasion commented directly to the President rather than to the agency. Now, would it be in the interest of good public administration to require such comments to be available? Generally, I think that is considered to be a privilege. Mr. MCCLOSKEY. Let me give you another example. How about the Bureau of the Budget or OMB? Would the Council on Environmental Quality feel the decisions of the OMB should receive your adverse comments necessarily on matters affecting the environment?

Mr. TRAIN. Yes; it works both ways. OMB is frequently asking us now for our views on various proposals which have both a fiscal impact and an environmental impact.

Mr. MCCLOSKEY. And then you would feel that those views need not be made public under the law as it now stands?

Mr. TRAIN. I think our interpretation to date would be that they need not, or at least it would be inadvisable to make them public as a matter of practice.

Mr. MCCLOSKEY. If we are raising this question as a matter of first impact, perhaps the Council might want to review it and give a more considered judgment, because I think this would impel us, if your interpretation is correct, to amend the act, if the intention was, as we thought it was in the beginning, to require that at every step of the procedure these matters be made public.

Mr. TRAIN. There are serious implications here, no matter what you do, Mr. McCloskey, as I know you are aware. If you should require, for example, that all comments that we make to ÖMB be in writing and be made public, I seriously question whether OMB would continue to ask for our comments.

Mr. MCCLOSKEY. Then they would be violating the law as it now stands, wouldn't they?

Mr. TRAIN. It is pretty hard to insist if somebody asks you for a comment, you know, the thousands and thousands of budget items that conceivably raise environmental questions.

Mr. MCCLOSKEY. But it is clear, isn't it, under the act that OMB does have the obligation to ask any Federal agency with expertise about its impact on the environment if any decision they make substantially affects the public?

Mr. TRAIN. Any proposal that comes in to OMB, if it has a significant impact on environment, is accompanied by a section 102 statement and OMB has perceived it in effect now to require this.