Muskie appears to support this conclusion with respect to section 102 (c). However, Senator Muskie's remarks were confined to section 102 (c) of the revised S. 1075 and sections 102(a), 102(b) and 105, which of the Se 1075 could also have served as the basis for an interpretation of the Act that would enlarge Federal agencies' regulatory authorities, were not discussed. Senator Muskie's remarks should be contrasted with Sen"ator Jackson's unambiguous statement that "[a]gencies 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." However, the AEC has never claimed a lack of authority to consider environmental matters in carrying out its operational and programmatic responsibilities, and the choice by Senator Jackson of Project Bronco and the Amchitka test as examples makes the intent of the statement somewhat unclear.35

In view of this ambiguity, the resolution of the question under discussion depends upon an analysis of the legislative history subsequent to the appointment of Senate conferees. In carrying out this analysis, attention will be devoted to the interpretation to be given to the changes outlined in (1) and (3) above, and particular attention will be devoted to the interpretation to be given to the phrase "to the fullest extent possible" in section 102 of the bill as approved.36 There appear to be three possible interpretations of the phrase: (1) "to the fullest extent possible" means "to the fullest extent physically possible". If this is the proper interpretation, then neither lack of regulatory authority nor an express prohibition in a Federal agency's enabling Act would excuse the agency from complying with the full requirements of section 102. Under this interpretation, not only

Additional evidence of Senator Jackson's intent in this regard can be found in a letter from Senator Jackson to Senator Ellender, D-La., Chairman, Public Works Appropriations Subcommittee, Senate Committee on Appropriations, dated October 15, 1969. The letter was In response to testimony by Mr. Larry Bogart before the Subcommittee during hearings on H.R. 14159, a bill making appropriations for public works for water, pollution control and power development, and for the Atomic Energy Commission. In the letter, Senator Jackson stated as follows:

"Quoting Mr. Bogart directly, he said: 'Senator Jackson, who has introduced S. 1075 to provide for studies and an Environmental Quality Council, may be finding confirmation for his belief that the AEC 18 a formidable enemy of the integrity of the environment.'

"Mr. Chairman, at no time have I expressed the belief that the AEC is a formidable enemy of the integrity of the environment.' What I have said is that my bill would grant the AEC as well as every other agency of the Federal government both the legal authorityTM and a responsibility to take into consideration all relevant environmental values in their planning and decision-making. The AEC and a number of other agencies content that they do not have the authority to consider environmental values in connection with the making of decisions, including the issuance of licenses.

"It is my view that a consideration of all relevant environmental values at an early point in the planning and decisionmaking process of all Federal agencies will serve to reduce public conflict over projects having an impact on the environment and will result in projects that are compatible with the broad range of public interest in recreation, natural beauty, preservation and a clean, healthy environment.

"As you know, Mr. Chairman, recent years have seen an increasing number of instances in which private citizens and conservation organizations have filed suits to enjoin the construction of needed power generation plants. This has resulted in very critical power shortages and a growing number of brownouts in many areas of the nation. Enactment of S. 1075 will go far to restore public confidence in both the ability and willingness of the Federal government to incorporate appropriate safeguards to insure that these projects can proceed." [Emphasis added.]

The letter is printed in Hearings Before the Subcommittee of the Committee on Appropriation, United States Senate, Part 7, on H.R. 14159, 91st Cong., 1st Sess. (1969) at 7132. 30 Apparently the phrase "to the fullest extent possible" did not appear in the opening language of section 102 of the version of S. 1075 as it was ordered reported by the Senate Interior Committee on June 18, 1969, because its inclusion in the opening language of section 102 (dealing with the interpretation and administration of policies, regulations, and public laws) was recommended by the BOB in its July 7. 1969 letter to Senator Jackson. Rather, the phrase apparently appeared only in section 102(a) of the bill as it was ordered reported (dealing with the "systematic interdisciplinary approach”). However, the BOB. letter offers no reason for the inclusion of the phrase.

would Federal agencies' regulatory authorities be enlarged, but any provision in an agency's enabling Act prohibiting consideration of certain environmental matters in regulatory decisionmaking would be amended or repealed by this Act.

(2) "to the fullest extent possible" means "to the fullest extent not expressly prohibited by the agency's enabling Act". If this is the proper interpretation, then only a provision in an agency's enabling Act which expressly excluded consideration of certain environmental matters in regulatory decisionmaking would excuse the agency from complying with the full requirements of section 102. A mere lack of regulatory authority would not excuse an agency from full compliance. Under this interpretation, Federal agencies' regulatory authorities would be enlarged, but this Act would not amend or repeal any provision of any agency's enabling Act.

(3) "to the fullest extent possible" means "to the fullest extent per mitted by an agency's existing regulatory authority." If this is the proper interpretation, then a lack of regulatory authority with respect to certain environmental matters would excuse the agency from complying with the full requirements of section 102. Under this interpretation, the Act would neither enlarge the regulatory authority of any Federal agency nor repeal or amend any provisions in any agency's enabling Act.

At the outset, we can exclude alternative (1) from further consideration for two reasons. First of all, there is the well-known principle that legislation should be interpreted in such a way as to give effect to all of its provisions. If alternative (1) were adopted, the effect of section 103 of the Act, which requires Federal agencies to "review their present statutory authority... for the purpose of determining whether there are any deficiencies or inconsistencies therein which prohibit full compliance", would be nugatory, since section 102 of the Act would be self-executing in removing any "deficiencies or inconsistencies". Secondly, in explaining section 105 of the Act, which provi that "[t]he policies and goals set forth in this Act are supplementary to those set forth in existing authorizations of Federal agencies", the House conferees stated clearly in the Conference Statement that "[t]he effect of this section... is to give recognition to the fact that the bill does not repeal existing law."

It is clear that neither of these two reasons would exclude alternative (3) from further consideration. The second reason would not exclude alternative (2) since under this interpretation the bill would not amend or repeal any of existing law. The first reason would only exclude alternative (2) if section 103 were interpreted so as to require Federal agencies not only to examine their existing statutory authority for provisions excluding consideration of certain environmental matters in regulatory decisionmaking, but also to examine their existing statutory authority for any lack of regulatory authority to consider certain environmental matters. With this in mind, the action by the conferees will be examined in more detail.

The action by the conferees in amending the Senate-passed S. 1075 so as to make the phrase "to the fullest extent possible" qualify all of the requirements of section 102, and the action by the conferees in rejecting the provision in section 9 of the House-passed S. 1075, were

37

explained in the Statement accompanying the Conference Report " as follows:

In accepting this change to section 102 (and also to the provisions of section 103), the House conferees agreed to delete section 9 of the House amendment from the conference substitute. Section 9 of the House amendment provided that "nothing in this Act shall increase, decrease or change any responsibility or authority of any Federal officials or agency created by other provision of law" In receding from this House provision in favor of the less restrictive provision "to the fullest extent possible”, the House conferees are of the view that the new language does not in any way limit the Congressional authorization and directive to all agencies of the Federal Government set out in subparagraph (A) through (H) of clause (2) of section 102. The purpose of the new language is to make it clear that each agency of the Federal Government shall comply with the directives set out in such subparagraphs (A) through (H) unless the existing law applicable to such agency's operations expressly prohibits or makes full compliance with one of the directives impossible. If such is found to be the case, then compliance with the particular directive is not immediately required. However, as to other activities of that agency, compliance is required. Thus, it is the intent of the conferees that the provision “to the fullest extent possible" shall not be used by any Federal agency as a means of avoiding compliance with the directives set out in section 102. Rather, the language in section 102 is intended to assure that all agencies of the Federal Government shall comply with the directives set out in said section "to the fullest extent possible” under their statutory authorizations and that no agency shall utilize an excessively narrow construction of its existing statutory authorizations to avoid compliance.

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In addition, sections 103 and 105 of the conferees' version of S. 1075 were explained in the Statement as follows:

SECTION 103

This section is based upon a provision of the Senate bill (section 102(f)) not in the House amendment. This section, as agreed to by the conferees, provides that all agencies of the Federal Government shall review their "present statutory authority, administrative regulations, and current policies and procedures to determine whether there are any deficiencies and inconsistencies therein which prohibit full compliance with the purpose and provisions” of the bill. If an agency finds such deficiencies or inconsistencies, it is required under this section to propose to the President not later than July 1, 1971, such measures as may be necessary to bring its authority and policies into conformity with the intent, purposes, and procedures of the bill. Section 103 thereby provides a mechanism which shall be utilized by all Federal agencies (1) to ascertain whether there is any provision of their statutory authority which clearly precludes full compliance with the bill and (2) if such is found, to recommend changes in their statutory authority which will enable full compliance with the bill. In conducting the review noted above, it is the understanding of the conferees that an agency shall not construe its existing authority in an unduly narrow manner. Rather, the intent of the conferees is that all Federal agencies shall comply with the provisions of section 102 "to the fullest extent possible", unless, of course, there is found to be a clear conflict between its existing statutory authority and the bill,

SECTION 105

This section declares that the policies and goals set forth in the bill are supplementary to those set forth in existing authorities of Federal agencies. The effect of this section, which is a slightly revised version of section 103 of the Senate bill, is to give recognition to the fact that the bill does not repeal existing law. This sections does not, however, obviate the requirement that the Federal

* The Rules of the House of Representatives provide that all conference reports must be accompanied by a "detailed statement sufficiently explicit to inform the House what effect such amendments or propositions will have upon the measures to which ther relate." House of Representatives Rule XXVIII, cl .1(c). In the Senate, however conferees issueno written statements and members generally are given an informal oral explanation from: the manager of the bill in conference.

38 H.R. Rep. No. 91–765, 91st Cong., 1st Sess. (1969) at 9–10 [emphasis added].

89 Id. at 10 (emphasis added).

agencies conduct their activities in accordance with the provisions of the bill unless to do so would clearly violate their existing statutory authorizations.“

From an analysis of these statements, it appears that they contain language which would support either alternative (2) or (3) as the proper interpretation of the phrase "to the fullest extent possible." The following language in the Statement would appear to support alternative (3):

The statement cited in note 38 that "the language in section 102 is intended to assure that all agencies... shall comply with ... said section 'to the fullest extent possible' under their statutory authorizations and that no agency shall utilize an excessively narrow construction of its existing statutory authorizations. to avoid compliance." This implies that a construction of their statutory authority that is not "excessively narrow" could excuse an agency from compliance. Furthermore, if, as in alternative (2), only a statutory prohibition could excuse agencies from compliance, one would not, strictly speaking, be concerned with a "narrow" construction, but with a “broad” one.

The statement cited in note 39 that an agency shall not construe its existing authority in an "unduly narrow manner”.

On the other hand, the following language in the Statement would appear to support alternative (2) :

The statement cited in note 38 that section 9 of the House-passed S. 1075 was rejected in favor of a “less restrictive provision.” It is difficult to see how the adoption of alternative (3) could be regarded as resulting in a “less restrictive. provision" than section 9 of the House-passed bill and, in fact, the adoption of alternative (3) would have the same effect on the interpretation of the bill as: would the inclusion into the bill of the rejected provision.

The statement cited in note 39 that "[s]ection 103 thereby provides a mechanism which shall be utilized to ascertain whether there is any provision of their statutory authority which clearly precludes full compliance. ..." This seems to be talking about statutory prohibitions rather than lack of regulatory authority.

The statement cited in note 40 that "this section does not, however, obviate the requirement that... agencies conduct their activities in accordance with the provisions of this bill unless to do so would clearly violate their existing statutory authorizations." This again seems to be referring to statutory prohibitions.

The statements cited in note 38 that "the new language does not in any way limit the Congressional authorization and directive. . . set out [in] section 102", and that "the provision to the fullest extent possible' shall not be used by any Federal agency as a means of avoiding compliance." These two statements, taken out of context, do not support either alternative (1) or alternative (2) because, taken literally, they would even preclude an agency from relying upon an express statutory prohibition to avoid full compliance with the requirements. of section 102. However, when considered along with the other language in the Statement, they evidence an intent that agencies shall make only a very limited use of the phrase "to the fullest extent possible" to avoid full compliance with the requirements of section 102. Since the adoption of alternative (2) as the proper interpretation of the phrase "to the fullest extent possible" would result in a more limited use of the phrase to avoid compliance than the adoption of alternative (3), the statements favor alternative (2) as the proper interpretation.

The rest of the language cited in notes 38, 39, and 40 would appear, to support either alternative (2) or alternative (3) as the proper interpretation of the phrase "to the fullest extent possible."

The remarks on the floor of the Senate and House in connection with Senate and House consideration of the Conference Report will next be analyzed for an indication as to the intent of the conferees.

In the Senate, the Conference Report was submitted by Senator Jackson, the sponsor of S. 1075. Senator Jackson not only discussed the acton of the conferees on the Senate floor, but also inserted into the Record two exhibits, one entitled "Major Changes in S. 1075 as Passed by the Senate" (Exhibit 1), and the other entitled "Section by Section Analysis" (Exhibit 2). Language in the floor remarks and in both exhibits would appear to support alternative (2) as the proper interpretation of the phrase "to the fullest extent possible":

Taken together, the provisions of section 102 direct any Federal agency which takes action that it must take into account environmental management and environmental quality considerations. [Floor remarks.]

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Many existing agencies such as the National Park Service, the Federal Water Pollution Control Administration and the National Air Pollution Control Administration already have important responsibilities in the area of environmental control. The provision of Secton 102 (as well as 103) are not designed to result in any change in the manner in which they carry out their environmental protection authority. This provision is, however, clearly designed to assure consideration of environmental matters by all agencies in their planning and decision making—especially those agencies who now have little or no legislative authority to take environmental considerations into account. (Exhibit 1.) “2 In some areas of Federal action there is no body of experience or precedent to assure substantial and consistent consideration of environmental factors in decisionmaking. In some areas of Federal activity, existing legislation does not provide clear authority to assure consideration of environmental factors which conflict with other Federal objectives.

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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, regulation, 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 as follows:

*

*

*

*

*

All agencies of the Federal Government are directed to review their present statutory authority, administrative regulations, and current policies and procedures to determine whether existing law prohibits full compliance with the purposes of this act. The agencies will comply with the provisions of this act wherever possible. If, however, there are existing provisions of law, regulations, or policies which are beyond the authority of the particular agency to revise, and of these laws, regulations, or policies which prohibit the agency from acting in full compliance with the provisions of this Act, the agency is required by section 103 to recommend such measures as are necessary to make its authority consistent with this act. (Exhibit 2.)

The floor remarks by Senator Muskie bring out an intended distinction, not heretofore indicated in the legislative history of the bill, between the effect of the measure on so-called "environmental improvement agencies" and the effect of the measure on so-called "environmental impact agencies". In the former category are included the National Park Service, the FWPCA, and the National Air Pollution

41 115 Cong. Rec. $17451 (daily ed., December 20, 1969) [emphasis added]. 42 115 Cong. Rec. $17453 (daily ed., December 20, 1969) [emphasis added]. 43 115 Cong. Rec.:S17455 (daily ed., December 20, 1969) [emphasis added].