Mr. MCCLOSKEY. Let me go to another topic, if I may. I was impressed in your report with the suggestion that the Government should move toward a national land use policy, and the President stated this in his message in August, and the statute I think is very clear that the Federal Government has the obligation to inventory the resources and the state of the terrestrial resources of the United States. Can you tell this committee exactly who in the Federal Government is moving to develop a national land use policy? Is it the contractor dealing with your agency? Is it a White House task force? Is it some other agency of the Federal Government that is taking the initiative in moving toward a national land use policy?

Mr. TRAIN. It is the Council on Environmental Quality itself.
Mr. MCCLOSKEY. You have that specific responsibility?

Mr. TRAIN. Yes. I don't say that others don't think they also have the responsiblity. Now, we are developing a national land use policy program. Now, to what extent this will mature and be submitted I don't know at this point.

Mr. MCCLOSKEY. With the budget that you have and are limited to at the present time, you are almost dependent upon the cooperation of other Federal agencies involving that policy, are you not?

Mr. TRAIN. Not entirely; no sir. We have, I think, very substantial competence in land law and related land use fields on the Council staff. Mr. MCCLOSKEY. You spoke with some agencies that were less cooperative than others.

Mr. TRAIN. Mr. Reilly here, for example, is expert in this field. Mr. MCCLOSKEY. Could you give us a list in declining order of cooperative attitudes of the Federal agencies that have been reluctant to comply with the act as you would interpret it?

Mr. TRAIN. I would hope you wouldn't press that question, Mr. McCloskey. Our effort is to elicit their cooperation and it seems to me that kind of characterization would perhaps be tailormade to result in no cooperation.

Mr. MCCLOSKEY. It seems to me that your duties as defined in the act would be the most difficult of any individual in Government because of precisely that point. Under this law you are in effect an ombudsman for every other Federal agency, and to the extent that you as an adviser to the President, cannot apprise the Congress of who is failing to cooperate, then the public loses the benefit of more stringent congressional oversight on this agency. It seems to me that under this particular law the Congress itself almost depends on that kind of candid statement by a special adviser to the President as to which of the agencies of Government are less willing than others to cooperate so that we can exercise our oversight, and let me use a specific example. When the Congress had the President's proposal for Reorganization Plan No. 4 there were those in the Congress who were rightfully concerned about the Department of Commerce, which did not have much to do with the environment in the past. Some thought that it might be like putting the fox in the chicken coop with respect to guarding the environment of the ocean.

With respect to our oversight, I will say the National Industrial Pollution Council, which has private meetings and keeps no transcripts of the records of its meetings, how can we

Mr. TRAIN. All their meetings are recorded and their full minutes are kept, and they are made public.

Mr. MCCLOSKEY. Have they now been made available?

Mr. TRAIN. I think as a matter of going back to the beginning, as far as I know this is required by the Department of Justice for all such advisory councils.

Mr. MCCLOSKEY. I am just concerned about our duty in the Congress to exercise proper legislative oversight over those agencies of the Federal Government that have a material impact on the environment. If we can't get from the Council on Enironmental Quality a fair appraisal of which agencies are and which are not complying with the law, how can we exercise proper oversight?

Mr. TRAIN. I was not trying to avoid that question, Mr. McCloskey. I did want to avoid a list, 1, 2, 3, these are the good guys and these are the bad guys. I would rather not characterize whether they are cooperating or not.

By and large, as I said in my statement, there is a good spirit of cooperation. Performance has not been as good in all cases as we would like. I would rather focus on the actual performance, rather than on such subjective factors as cooperative attitude.

Mr. MCCLOSKEY. For example, if there has been bad performance by an agency, would you feel that the appropriate congressional committee with legislative oversight should be advised?

Mr. TRAIN. This is seldom on a particular project, I should think. Again, I would emphasize this has really been going on for only a matter of months now. The statute came into being on the 1st of January. This Council came into being in February. The Executive order was issued in March. Our guidelines were issued at the end of April. The agency procedures came into being early in June, and some are still in process of development. It really has been a matter of only a very few months that this very revolutionary new process has been under way in the Federal agencies.

I have identified those, at least two, that we think have been doing an exceedingly good job of support as far as meeting procedural requirements are concerned. One is the Corps of Engineers, and one is the Atomic Energy Commission.

With respect to other Federal agencies, I would say the Department of Transportation, in view of its very extensive impacts through highway programs, airport programs, and so forth, has been slow in the development of its procedures, particularly in the field of public roads. I think this will be a subject which the Department witness will himself want to address himself to, and you probably will wish to ask. We have had extensive discussions with the Department of Transportation. On the other hand, the Department has established, as you know, an Assistant Secretary with particular responsibility in the field of environment. It is my understanding that the staffing of this office has been substantially increased recently or is being increased. This is on the plus side.

The Department of Commerce has filed no statements at all. All of this is a matter of record. On the other hand, the Department probably does not have too many activities of importance, outside of EDA, that affect the environment. There is an area in which some statements should be filed.

Mr. MCCLOSKEY. I, too, wish to extend to the Council my compliments. I probably speak for this committee unanimously when I say that we feel you and the Council have perhaps the most difficult job in the United States in this field. We respect you for the work you have done. I would hope the vigor of our questions to you might be indicative of our interest and perhaps might be helpful in obtaining the cooperation of other agencies, because the vigor of our inquiries to you will be followed with vigorous inquiries to the other agencies involved, to ascertain how they interpret this act.

I am still in doubt as to whether or not we should amend the act to make clear that these comments at every step of the procedure, even though they be adverse, should be made public unless there is an international security or land valuation impact. It seems to me you have properly termed this law as revolutionary. It does place a far different burden on the administrative branch of Government from the usual conduct of administrative policy. It seems to me this act asks the Federal Government to appraise and criticize itself as the procedures go forward. That perhaps is indeed revolutionary. I believe that is the congressional intent.

Thank you.

Mr. TRAIN. The statute does require adverse agency comments to be made fully public, like every other comment. The area where comments have not been made public under our practice have been our own, whether adverse or favorable.

Mr. MCCLOSKEY. We will have to change that so we can get the benefit of your particular expertise.

Mr. DINGELL. Mr. Everett?

Mr. EVERETT. Thank you, Mr. Chairman.

In line with Mr. McCloskey's questions, Mr. Train, I wonder how you reconcile your interpretation of section 102 (2) (C), that is, the detailed statement, with respect to legislation. I see you state the opinion that with respect to legislation, the public should not receive these statements prior to the Congress. I am wondering where Public Law 91-190 gives this interpretation.

Mr. TRAIN. It simply seemed to us a matter of the constitutional relationship between the executive and legislative branches, that if the President in effect was making a legislative proposal to the Congress, he ought to propose it to the Congress and not submit it to public comment first.

I think that is a matter for congressional decision. It seemed to us, further, that where you have a proposal for legislation or for an appropriation, you have ample procedures in the Congress for full public hearing and public knowledge of the proposal, so there isn't the problem involved that exists in other areas. It did not seem necessary to us to have a public process prior to such matters going to Congress.

Mr. EVERETT. I can appreciate your concern in that respect, but I do not see anything in the act itself that would authorize you to interpret it in that manner.

Mr. TRAIN. I do not think there is anything in the act which says we cannot interpret it that way.

Mr. EVERETT. Likewise, as indicated by Mr. McCloskey and by several public witnesses that we have had an opportunity to talk with,

there is no distinction between a draft statement which you refer to, and a detailed statement. I only see one mention of any statement in the law itself.

Even with your interpretation of a draft statement or a detailed statement, where do the State and local agencies fit it with respect to your draft statement or detailed statement? They are not mentioned in the first sentence which requires the Federal agencies to be consulted. The second sentence says comments of local, and State agencies are to be made a part of the statement and accompany the statement in the review process.

In your interpretation, where does this put the public with respect to local and State agencies?

Mr. TRAIN. As I recall, our guidelines require that the agency solicit the comments of State and local agencies where appropriate, at the same time that they circulate a draft statement for comment to the Federal agencies.

Mr. EVERETT. Do you see any particular problem with the public at that time being asked for review at the same time it is going to State and local agencies?

Mr. TRAIN. I do not see any problem with that at all.

Mr. EVERETT. Would you be in favor of clearing up this discrepancy by having uniform procedures? About 10 departments are already voluntarily making their draft statements available to the public. Mr. TRAIN. As I indicated in my statement, we believe this is very definitely one possibility that could be considered, that is, to make available to the public the draft statements at the same time that they are circulated for comment, but pointing out, as I did, that you probably will have to consider some exceptions to that rule, and pointing out also that these exceptions begin to give rise to the problem, as Mr. Rogers pointed out.

I think we have to recognize that in the vast number of cases, the information is fully available to the public when you consider the legislative process, the appropriation process, the fact that AEC and the Corps of Engineers' own procedures call for making these public, the fact that many agencies are doing so on a voluntary basis.

Although this has been described as a great problem in the press, in practice the problem is really one of very small dimensions. It is a problem in principle, perhaps, that you will want to address yourselves to, rather than a practice.

Mr. DINGELL. We have, then, a situation which involves, as I see it now, approximately three different possibilities: One, legislative impact statements, impact statements made by agencies with special expertise and jurisdiction, and, finally, statements made by the President's Council on Environmental Quality. It that correct?

Mr. TRAIN. That is correct.

Mr. DINGELL. First, the legislative impact statements are submitted with the statement of the President when he submits a bill to Congress. The statements of agencies with special expertise, and so forth, are made available as soon as as they are submitted. Is that correct? Mr. TRAIN. As I understand it, they are generally made available at the same time as the detailed statement.

Mr. DINGELL. At the same time as the detailed statement?

Mr. TRAIN. That is correct.

Mr. DINGELL. Why should they not be made available at the moment they are in final form?

Mr. TRAIN. I would think that you would want to follow the same rule with respect to draft statements. If draft statements are required to be made available to the public, then I see no reason why agency comments submitted prior to the completion of the final statement should not be made available to the public.

Mr. DINGELL. Under the statute we have before us today, this is a public document, one which is in final form. I see no statutory justification for suppressing agency comments, that is, agency statements which would go into the makeup of the 102 (2) (C) statement.

Where, if you please, Mr. Train, is the authority for the suppression of agency statements with regard to, let us say, a particular matter like the Cross-Florida Barge Canal or the SST or the dumping of oil out in the Pacific? Where is the justification in law for withholding that statement until the environmental impact statement comes forward?

Mr. TRAIN. It is simply what the statute says. As I recall, the statute reads, "Copies of such statement"--the "such statement" refers to the final detailed statement-"and the comments and views of the appropriate Federal, State, and local agencies, shall be made avail able" to the public. I am paraphrasing a bit.

Mr. DINGELL. Shall be made available to the President, the Council on Environmental Quality and the public.

Mr. TRAIN. That is right.

Mr. DINGELL. Where is the authorization for withholding the comments of the agency until the impact statement is made available to the public? Where is your statutory authority for withholding the departments' comments, that is, department with special expertise, jurisdiction, and so forth, until the impact statement is made public? Mr. TRAIN. I would say there is no ironclad requirement in the statute that they may not be released in advance. I think it is more a matter of policy.

Mr. DINGELL. You realize some agencies are making this available to the public, and of course you have expressed no objection. The question then is, why should not all agencies do so? If they should not, where is the justification for withholding those statements until such time as the final statement by your agency comes forward?

Mr. TRAIN. It is a sort of anomalous situation to be making the comments of other agencies public before your own draft statement has been made public, if that is the case. That is why I said I think you ought to have the same rule for both.

Mr. DINGELL. Perhaps your logic is sound. I am not in a position at this moment to challenge it.

But again I say you are dealing here with the statutory authority. You see, my problem with the impact statement and the statements of the agencies with special expertise and jurisdiction which go into the make-up, is simply that it is my strong feeling that in order to have this statute work, those documents must reach the hands of the public in the broadest possible form and at the earliest possible moment. Public Law 91-190, in my opinion, literally drips language which