the agencies would be required both in quasi-judicial proceedings and in legislative comments to the Congress to meet certain environmental conditions."

Senator JACKSON. Well, for example, the President certainly couldn't intercede in a quasi-judicial proceeding and advise, whether it is the Federal Power Commission or the Interstate Commerce Commission, or the AEC, when it is exercising its quasi-judicial responsibilites as to what standards they should follow.

As a matter of fact, they could get into litigation in court, and it would certainly be no defense for the agency to claim that they were acting pursuant to an Executive order; they would have to point to statutory authority which gives them the authority to deny a permit or a license under a certain set of circumstances.”

Senator JACKSON. I appreciate your comments, Dr. Caldwell. I would like to say that as chairman of the committee that I will be calling on you for some specific language to implement what we have discussed here this afternoon. It seems to me that the policy problem falls into two categories; First, a broad statement of environmental policy that would apply to all of the governmental departments, with the Bureau of the Budget in a position to stipulate that when proposals come over, that they must meet certain environmental policies and standards.

I think the other area relates to quasi-judicial proceedings where independent agencies are in a position to grant permits and licenses for activities that potentially have an enormous impact on the environment. Perhaps we could work out some kind of a general statutory provision that would be applicable to all quasi-judicial proceedings.

Do you think that this is a valid distinction? I am trying to

Dr. CALDWELL, I think it is.

Senator JACKSON. Look at this from the standpoint of a general statute so that we do not get involved in the tedious task of going through the enabling legislation of every agency of the Government and trying to amend a long list of laws.

26

Additional evidence if this intent is contained in the Senate Report and in floor remarks by Senator Jackson in connection with Senate passage of the measure:

S. 1075, as reported by the committee, would provide all agencies and all Federal officials with a legislative mandate and a responsibility to consider the consequences of their actions on the environment. This would be true of the licensing functions of independent agencies as well as the ongoing activities of the regular Federal agencies."

The policies and goals set forth in section 101 can be implemented if they are incorporated into the ongoing activities of the Federal Government in carrying out its other responsibilities to the public. In many areas of Federal action there is no body of experience or precedent for substantial and consistent consideration of environmental factors in decisionmaking. In some areas of Federal activity, existing legislation does not provide clear authority for the consideration of environmental factors which conflict with other objectives.

To remedy present shortcomings in the legislative foundation of existing programs, and to establish action-forcing procedures which will help to insure that the policies enunciated in section 101 are implemented, section 102 authorizes and directs that the existing body of Federal law, regulations, and policy be interpreted and administered to the fullest extent possible in accordance with the policies set forth in this act. It further establishes a number of operating procedures to be followed by all Federal agencies . . . .”

128

The bill directs that all Federal agenices conduct their activities in accordance with these goals, and provides "action-forcing" procedures to insure that these goals, and principles are observed. The bill specifically provides that its

24 Hearings at 117 (Emphasis added). Hearings at 117 (Emphasis added).

20 Hearings at 121 (Emphasis added).

S. Rep. No. 91-296, 91st Cong., 1st Sess. (1969) at 14 (Emphasis added). 29 Id at 19-20 (Emphasis added).

provisions are supplemental to the existing mandates and authorizations of all: Federal agenices. This constitutes a statutory enlargement of the responsibilities and the concerns of all instrumentalities of the Federal Government.2

29

Although this interpretation was apparently based upon the provisions of sections 102 and 103 of the bill, it was not tied down to any particular subsection.

(2) Meaning of "Major Federal Actions”

The provisions of section 102(c) of S. 1075 as reported and passed by the Senate were generally similar to the provisions of section 102 (2) (C) of the bill as finally approved. In both versions the section only applies to "every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." [Emphasis added.]

The bill as it was ordered reported on June 18 apparently contained the phrase "every recommendation or report on proposals for legislation or other significant Federal actions affecting the quality of the human environment," rather than the phrase cited above [Emphasis added.] The language in the phase of the bill as finally reported was adopted by the Committee at the suggestion of the BOB in its July 7. 1969 letter, no reason was provided in the BOB letter to support this change. An analysis of the language would seem to indicate that the effect of the change was to exempt "significant" Federal actions which had little environmental effect from the requirements of the subsection. The only detailed explanation of the opening phrase of section 102(c) of the bill as passed by the Senate is contained in the Senate Report:

(c) Each agency which proposes any major actions, such as project proposals, proposals for new legislation, regulations, policy statements, or expansion or revision of ongoing programs, shall make a determination as to whether the proposal would have a significant effect upon the quality of the human environment. If the proposal is considered to have such an effect, then the recommendation or report supporting the proposal must include statements by the responsible official of certain findings as follows: 30

The inclusion of "regulations" in the list of examples of "major actions" could be taken as an indication that regulatory activities were intended to be covered. While licensing activities were not mentioned in the Report, it should be noted in this context that at the hearing Senator Jackson indicated an interest in a policy declaration that would require the AEC to make an environmental "finding" in connection with licensing nuclear powerplants, and section 102 (c) of the Senate-passed bill is the only provision explicitly requiring any "finding."

Therefore, while the matter is somewhat uncertain, the preponderance of evidence in the legislative history at the time of Senate passage of S. 1075 indicated that at least some regulatory activities (both licensing and rulemaking) were intended to be covered by the phrase "major Federal actions" in section 102(c).

20115 Cong. Rec. $7815 (daily ed., June 10, 1969). [Emphasis added.] 30 S. Rep. No. 91-296, 91st Cong., 1st Sess. (1969) at 20.

Hearings at 117, supra page 6.

B. The House-Passed Version

The version of S. 1075 as passed by the House is attached as Annex 2. Unlike Senate-passed S. 1075, the version as reported to the House contained only a short statement of policy. Congressman Aspinall was responsible for having the following provision included:

SEC 9. Nothing in this Act shall increase, decrease, or change any responsi-bility or authority of any Federal official or agency created by other provision of law.

During House consideration of the measure, Congressman Daddario, D-Conn., offered an amendment which would have incorporated the language of Title I of the Senate-passed bill into the House bill, but a point of order was raised on procedural grounds and the amendment was not considered.

Thus it is clear that the House-passed version would not have enlarged the regulatory authority of any Federal agency. Furthermore, there was nothing in the House-passed version similar to the provisions of section 102 of the Senate-passed version.

C. Action by the Conferees

Since the Senate-passed and House-passed versions of S. 1075 differed so drastically, the resolution of the two questions under discussion depends, to a great extent, upon the proper interpretation to be given to the action of the conferees.

(1) Effect on AEC's Regulatory Authority

As indicated above, while the interpretation of the bill that would enlarge the regulatory authority of Federal agencies such as the AEC was apparently based upon sections 102 and 103, it was never tied down to a particular subsection. Sections 102 and 103 of the Senatepassed bill provided as follows:

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

(a) utilize to the fullest extent possible a systematic, interdisciplinary ap proach 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 which will insure that presently unquantified 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 finding by the responsible official that-

(i) the environmental impact of the proposed action has been studied and considered;

(ii) any adverse environmental effects which cannot be avoided by following reasonable alternatives are justified by other stated considerations of national policy;

(iii) local short-term uses of man's environment are consistent with maintaining and enhancing long-term productivity; and that

(iv) any irreversible and irretrievable commitments of resources are warranted.

(d) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of land, water, or air;

(e) recognize the worldwide and long-range character of environmental problems and 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; and

(f) review present statutory authority, administrative regulations, and current policies and procedures for conformity to the purposes and provisions of this Act and propose to the President and to the Congress such measures as may be necessary to make their authority consistent with this Act.

SEC. 103. The policies and goals set forth in this Act are supplementary to, but shall not be considered to repeal the existing mandates and authorizations of Federal agencies."

From the language in the bill, the most likely suspects as the basis for this interpretation would seem to be sections 102(a), 102(b), 102(c) (assuming this subsection applies to regulatory activities), and 103.

The version of the bill recommended by the conferees follows generally the Senate-passed bill. From an analysis of the two versions of the bill, it appears that the following important amendments to sections 102 (a), 102(b), 102 (c) and 103 of the Senate-passed version were agreed upon by the conferees:

(1)-The phrase "to the fullest extent possible" is made to modify all of the authorizations and directives of section 102 (including subsections (a), (b), and (c)). In the Senate-passed bill, the phrase only applied to the provision that "policies, regulations, and public laws ...be interpreted and administered in accordance with the policies set forth in this Act," and to the provision in section 102(a) dealing with a "systematic, interdisciplinary approach."

(2)-Section 102(c) was amended so as to generally delete the requirement for any "finding" with respect to the environmental impact of "major Federal actions." Instead, there appears a requirement for a "detailed statement" on environmental matters. The requirement for a "detailed statement" was worded so as to not require any statement that the environmental impact of the proposed action had actually been considered by the agency.

(3)-Section 102(f) was removed from section 102 and appears instead as a revised section 103. Instead of reviewing present statutory authority, administrative regulations, and current policies and procedures for "conformity" to the purpose and provisions of the Act, the agencies are directed to review these matters in order to determine whether there are any "deficiencies" or inconsistencies therein which prohibit full compliance with the purposes and provisions of the Act. (4)-Section 103 appears as section 105, and was amended so as to provide that "[t]he policies and goals set forth in this Act are supplementary to those set forth in existing authorizations of Federal agencies."

At the same time, the provision in the House-passed version of S. 1075 that "[n]othing in this Act shall increase, decrease, or change any responsibility or authority of any Federal official or agency" was rejected by the conferees.

The changes in the Senate-passed bill outlined in (2) and (4) above follow substantially the revised S. 1075 which the Senate conferees were instructed to insist upon when S. 7 was being considered in the Senate. The changes outlined in (1) and (3) above appear for the first time in the Conference Report.

The legislative history is ambiguous as to what was intended when the changes outlined in (2) and (4) above were agreed upon by the Senate when the conferees were instructed. Senator Muskie, in discussing the relationship between S. 7 and the revised S. 1075, stated on the Senate floor as follows:

The concept of self-policing by Federal agencies which pollute or license pollution is contrary to the philosophy and intent of existing environmental quality legislation. In hearing after hearing agencies of the Federal Government have argued that their primary authorization, whether it be maintenance of the navigable waters by the Corps of Engineers or licensing of nuclear powerplants by the Atomic Energy Commission, takes precedence over water quality requirements. I repeat, these agencies have always emphasized their primary responsibility making environmental considerations secondary in their view.

It is for this reason that the legislation pending before the Senate includes a provision which would require water quality compliance by Federal agencies in both their own activities and the activities in which they are involved. Section 16 of S. 7 would require water quality compliance as a precondition of Federal activities; it would not leave the determination of water quality effects to the polluter. By requiring compliance certification from the water pollution control agency, section 16 would assign policing responsibility to those agencies most qualified to make an environmental decision and not to those committed to carrying out some other function at minimum cost.

The proposed compromise language developed for section 102(c) clearly indicates the extent to which the polluter is involved in determining environmental effects. This language eliminated the requirement that a ‘finding' be made but provides that environmental impact be discussed as a part of any report on legislation, or any decision to commence a major activity. The requirement that established environmental agencies be consulted and that their comments accompany any such report would place the environmental control responsibility where it should be.32

However, this statement should be compared with the subsequent statements by Senator Jackson on the Senate floor:

The agreed-upon changes mentioned previously would change the language of some of these requirements, but their substance would remain relatively unchanged."

33

If enacted, titles I and II of S. 1075 will give all agencies a mandate, a responsibility, and a meaningful tool to insure that the quality of America's future environment is as good or better than today's. Departments such as the Departments of Defense, Transportation, Commerce, and Housing and Urban Development will then no longer have an excuse for ignoring environmental values in the pursuit of narrower, more immediate, mission-oriented goals. Agencies such as the Atomic Energy Commission which now contend they have no legislative authority to consider environmental values will be given the authority, the responsibility, and a directive to do so. In view of the recent public concern over AEC activities in connection with Project Bronco and the Amchitka test, it is time that AEC be given a larger mandate against which to weigh the environmental impact of its planned and proposed activities. The same is true of many other agencies."

These statements by Senators Muskie and Jackson seem difficult to reconcile. The deletion of the requirement of a "finding" on environmental matters and the careful wording of the required "detailed statement" in the revised section 102(c) so as to avoid any statement that environmental matters had actually been considered by the agency would appear to remove that subsection from consideration as a possible basis for an interpretation of S. 1075 that would enlarge Federal agencies' regulatory authorities. The statement by Senator

115 Cong. Rec. S12111 (daily ed., October 8, 1969). Section 16 of S. 7, as reported, applied to Federal agencies in the exercise of their proprietary jurisdiction over property and facilities, in leasing Federal property or facilities, and in licensing. 3115 Cong. Rec. $12113 (daily ed., October 8, 1969).

115 Cong. Rec. S12114 (dally ed., October 8, 1969) (emphasis added).