us legislative proposals such as powerplant siting, whi not what is called for by section 103. Mr. DINGELL. The Chair notes that I have received a co from my good friend and colleague, Henry Reuss, deal question of the availability of environmental impact stat The Chair, without objection, will insert that in the The Chair also will insert in the record a paper by M Potter on public access to environmental statements. In like fashion, the Chair will insert a very excelle which has been brought to my attention by Mr. Ronald on title I of the National Environmental Policy Act of 196 The Chair will request, Mr. Train, that you afford our Everett, opportunity to submit additional questions to yo can answer in more appropriate detail and in a more fashion than you would be compelled to do here. The Chair also wishes to afford you opportunity to comments and statements as would clarify the record, i you, as you would deem appropriate. The record will rem that purpose. The Chair also wishes to thank you for a very long and and very fine appearance before this committee. As I in have had quite a harsh go and the Chair wishes again to mendations to you and Dr. MacDonald and Mr. Atke course, the other member of the Council who is not presen ing. You have done a fine job, and we are grateful to you. Mr. TRAIN. Thank you, Mr. Chairman. Mr. DINGELL. If there is no further business to come be committee at this time, the subcommittee will, after this or ment, recess until 10 o'clock tomorrow, at which time the tee will hear Secretary Volpe. The Chair wishes to announce tentatively, as near as complete witness list, which is as follows: Tomorrow, 10 a.m., Secretary Volpe; 2:30 p.m., James Commissioner, Atomic Energy Commission. Wednesday, 10 a.m., John Nassikas, Chairman, Fed Commission. Wednesday, 2:30 p.m., William D. Ruckelshaus, Admini vironmental Protection Agency. Thursday we will hear from our good friend and colleagu jamin B. Blackburn, at 10 a.m. Also, at 10:15 a.m., M Loesch, Assistant Secretary for Public Land Manageme ment of the Interior. At 2:30 p.m. on Thursday, we will hear Steve Schanes, sistant for Policy Development, Department of Commerc On Friday we will hear, at 10 a.m., from Brig. Gen. Ge Principal Deputy, Office of Assistant Secretary of Defense and Environment, and Brig. Gen. R. H. Groves, Deputy Civil Works, Corps of Engineers. At 2:30 p.m. on Friday we will hear from Dr. Ted Bye ant Director, Science and Education, Department of Agricu The Chair intends as fully as possible to hear from int zens and afford them opportunity to be heard on this m Everett, or with a member of the committee staff, and we will try to find time to afford them full opportunity to be heard. If there is no further business to come before the committee at this time, the committee stands adjourned until 10 o'clock tomorrow morning. (The material mentioned follows herewith:) CONGRESS OF THE UNITED STATES, Mr. RUSSELL E. TRAIN, HOUSE OF REPRESENTATIVES, Washington, D.C., November 24, 1970. Chairman, Council on Environment Quality, DEAR CHAIRMAN TRAIN: A recent newspaper article quotes your General Counsel, Mr. Atkeson, as saying that the public is not entitled, under Section 102(2)(C) of the National Environmental Policy Act of 1969 (Public Law 91-190), to see the "detailed statements" required by that Act until "the end of the process" of review, and that the "public gets a retrospective look, and their impact comes largely as some comment ** about the same decision in the future." Such a restrictive application of the Act largely destroys its purpose of enabling the public to express its views on proposed governmental actions which may have irreversible consequences on the environment, and inhibits efficient and economical operations of governmental agencies. Congress, in Section 102 of the 1969 Act, mandated (1) that "the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies" of the National Environmental Policy Act, and (2) that "all agencies of the Federal Government shall" develop procedures which will "insure that presently unquantified environmental amenities and values" be given "appropriate consideration in decision making along with economic and technical considerations." Section 102 also requires "all agencies of the Federal Government" to prepare a "detailed statement" to be included in "every recommendation or report" concerning major "Federal actions significantly affecting the quality of the human environment," after consulting with, and obtaining the comments of, each "Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved." That detailed statement must include each of the following matters: (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 a long-term productivity; and (v) Any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. Section 102 (2) (C) of the 1969 Act also directed that copies of the detailed statements and the "comments and views" of the above public agencies "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." (Italic supplied). Your letter of November 19, 1970 to Senator Henry M. Jackson (Cong. Rec. (daily issue), Nov. 20, 1970, p. $18586), attempts to justify Mr. Atkeson's interpretation by asserting that the 1969 Act "clearly refers to the completed, detailed, and commented-upon statements (the only statements contemplated in the law)," not to draft environmental impact statements. Such an interpretation is plainly inconsistent with the statutory requirement that the statement "shall accompany the proposal through the existing agency review process." The Act does not say that the detailed statement which must "accompany" the proposal shall be “completed . . . commented-upon statement." On the contrary, it assumes that the agency review process will occur before the statement is "completed." Furthermore, your Council, in its Guidelines of April 30, 1970 (35 FR 7396) recognized that the Act contemplated the use of draft statements in the review process. Thus, Section 10(b) of the Guidelines states: (b) Seven (7) copies of draft environmental statements (when prepared), seven (7) copies of all comments received thereon (when received), and seven (7) copies of the final text of environmental statements should be supplied to the Council on Environmental Quality in the Executive Office of the President (this will serve as making environmental statements available to the President). It is important that draft environmental statements be prepared and circulated for comment and furnished to the Council early enough in the agency review process before an action is taken in order to permit meaningful consideration of the environmental issues involved. (Italic supplied). The Council thus interpreted the Act to mean that a "draft," not a "final,” statement was the document (a) to be submitted to the Council for “meaningful consideration," and (b) to accompany the proposal "in the agency review process." The Council did not require that public agency "comments and views" on the draft statement be obtained first. Certainly, this decision is an eminently wise one, since for the Council to defer its review until a final statement is prepared would not result in any "meaningful" consideration. Plainly, therefore, the Council is to get the statement (and the Guidelines so state) in its draft form, not as a "final" statement. We call your attention to the fact that the 1969 Act says that the detailed statement "shall be made available" to the President, the Council, "and" the public. The Act necessarily implies that such statements will be made available to all three simultaneously. There is no hint in the Act that the detailed statements shall be withheld from the public while the Council, and other agencies, are reviewing a "draft" of the statement. Indeed, unless the public can obtain the statement when the Council does, the public will be deprived of the opportunity of "meaningful consideration" of the detailed statement which Congress made so important a part of the environmental review under the 1969 Act. Instead, as Mr. Atkeson so pithily expressed it, the public would be relegated simply to "some comment"-not about the matter being decided, and with some hope of affecting it but about some other similar case, if it ever arises, "in the future." The Act is very clear that if the Council receives a statement in "draft" form, so too must the public at the same time. Executive Order 11514 (35 F. R. 4247) directs that procedures be developed "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." Making available such draft detailed statements to the public and the Council simultaneously, complies with that order. Withholding them from the public defeats the purpose of the Execu tive Order. We understand that several agencies, such as the Corps of Engineers and the Federal Power Commission, now make available to the public their draft statements even before holding hearings. This is evidence that at least some agencies interpret the law as we do. We believe all agencies should do likewise, whether or not public hearings are held. The mere fact that an agency does not hold a public hearing on the action does not lessen the requirement of the Act that the statements be available to the public as soon as the Council gets them. Public participation at an early stage will help to make these statements meaningful and may even assist the Council and its small staff in its review. The House Committee on Government Operations in its recent report entitled "Protecting America's Estuaries: The San Francisco Bay and Delta" (H. Rept. 911433, August 19, 1970) discussed the importance of these statements and emphasized as follows: It is important that these detailed statements be meaningful documents developed, not in haste, but after careful consideration of the environmental impact. They must not become stereotyped documents which do not adequately examine the five criteria specified in section 102 (C) of the 1969 Act. Each agency and the Council on Environmental Quality must guard against this possibility. The new Office of Environmental Quality, established by the Environmental Quality Improvement Act of 1970 (Public Law 91-224; 84 Stat. 91, 114; Title II) to provide the Council with a professional and administrative staff, should rigorously review these statements for the Council. Public review at an early stage should assist in this objective. Mr. Atkeson's position, and the attempted justification for it expressed in your letter of November 19, are plainly contrary to the letter and purpose of the 1969 Act, the President's Executive Order, the Council's Guidelines, and the Freedom of Information Act (5 U.S.C. 552). We request that you promptly reverse that position, and inform all agencies that every draft statement prepared under the 1969 Act be made available to the public as soon as it is transmitted to any other agency, including the Council. Please advise us when you take such action, and send us a copy of your instructions to the agencies. We would also appreciate your providing to us the following: 1. A copy of each of the periodic summaries issued by the Council listing the detailed statements received by it to date. 2. Lists of all statements received by the Council in the future. 3. A copy of each of the draft and final statements received by the Council, and the Council's comments on each, in regard to the following: (1) a proposed airport near Los Angeles; (2) the dumping of nerve gas; (3) a paper mill at Echo Cove, Alaska; and (4) the air pollution control bill as passed by the Senate; HENRY S. REUSS, Chairman, Conservation and Natural Resources Subcommittee. PUBLIC ACCESS TO AGENCY ENVIRONMENTAL STATEMENTS (By Frank M. Potter, Jr.) Quite recently, considerable attention has been devoted to the question of the extent that the public is or should be entitled to review statements of agencies of the Federal government, pursuant to Section 102 (2) (C) of the National Environmental Policy Act of 1969 (42 USC 4331 et seq.). To some extent, this concern has arisen from an unclear understanding of the position of the Council on Environmental Quality, as well of the individual agencies concerned. Not all of the problem is, however, due to the admitted lack of clear communication; the Council and many agencies have taken the position that “draft" environmental impact statements are privileged, and that the public has no right to see them. The position adopted in this paper is that, while the Act (NEPA) is not entirely clear, the language of the statute strongly indicates that the public should be allowed free access to these statements, once they have been circulated to other agencies of federal and state government, that the history of that Act and of the Freedom of Information Act (P.L. 89-554, 5 U.S.C. 552) is consistent with this view, and that considerations of public policy also indicate a strong value in permitting a freer interchange of information between government agencies and the public on environmental questions. If, indeed, there are occasions when the public should be refused this type of information, these should be the exception, rather than the rule. Moreover, and in many ways this appears the most compelling argument of all, to the extent that an ambiguity does exist, it would seem that the Council in carrying out its statutory directive should exercise its discretion by liberally interpreting the Act. NEPA-STATUTORY LANGUAGE The section in controversy reads: Sec. 102. The Congress authorizes and directs that, to the fullest extent possible *** all agencies of the Federal Government shall ✶✶✶ 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 * * * 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 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. (sic) United States Code, and shall accompany the proposal through the existing agency review processes *** This section is contained in Title I, which was added by the Senate following hearings on what ultimately became Title II (creating the Council itself). The paragraph requiring consultation with other agencies and ultimate submission to the public first appeared in a draft for the use of the House and Senate conferees, and once drafted, was not significantly changed thereafter. NEPA-LEGISLATIVE HISTORY Because of the way that this issue evolved in conference, there is very little information to go on as to just what it meant to the conferees. The language "to the fullest extent possible" appears to have been inserted for two reasons: one, to attempt to force the agencies to be liberal in their interpretations of what was, after all, an entire new statement of environmental policy with sweeping implications. and two, to acknowledge that in some cases, it might not be possible to carry out these high intentions. This latter point arose as the conferees worked out their differences over language proposed by Congressman Wayne Aspinall as his price for letting the bill go through the Rules Committee. His language, accepted in good grace by the House floor manager and sponsor of the legislation, John D. Dingell, stated that: Sec. 9. Nothing in this Act shall increase, decrease, or change any responsibility or authority of any Federal official or agency created by other provision of law. Also in response to this problem, the Act ultimately emerged from conference with the requirement that all agencies review their own authorizing and enabling legislation and to report to the President by July 1, 1971 on any measures that might be necessary to bring their operations into full compliance with the language and policies of the Act (Sec. 103). In any case, as the Act now stands, all agencies are required to carry out the provisions of the Act to the fullest extent possible, and in conformance with the language of the Freedom of Information Act. That Act, in turn, requires broad public disclosure of agency documents in general, with 9 specific exceptions, none of which appear to be relevant to this issue. PUBLIC POLICY CONSIDERATIONS In general, it would seem that there is little public benefit to be derived from withholding from public scrutiny the considerations underlying an agency's decision on a matter with environmental implications. To the contrary, the decisionmaking process would appear to be, if anything, enriched by the potential for addition of information to which it would not normally have access, and which in many cases would ultimately be presented to it in some sort of adversary proceeding. It would appear that the typical Federal/nonfederal review process would go through several stages: (a) Intra-agency review. (b) A draft position on the basis of step (a). (c) Circulation of step (b) draft between other Federal agencies. (d) A draft Federal position on the basis of step (c). (e) Circulation of step (d) draft to State and local agencies. (f) A "final" position paper. Apparently the Council injects itself into the agency review process quite early, probably at step (b), but quite possibly, in areas suspected to be sensitive, even earlier. It also appears to have foreclosed the possibility of public access to this process of review prior to the last step, the "final" position paper. It might reasonably be asked "What advantage is there to the government in keeping early agency views from the public?" To some extent, to be sure, this |