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National Environmental Policy Act:

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6 Responses to an inquiry of various Federal agencies as to the delays caused by implementation of : Appalachian Regional Commission.

599 Atomic Energy Commission--

589 Canal Zone Government

602 Civil Aeronautics Board_

590
Departments :
Agriculture:
Agricultural Research Service---

593 Animal and Plant Health Inspection Service

593 Consumer and Marketing Service

594 Extension Service --

594 Farmers Home Administration

574 Forest Service--

594 Rural Electrification Administration.

595 Soil Conservation Service

581 Commerce

602 Defense

583 Housing and Urban Development.

595 Interior.

580 Justice

596 State----

597, 598 Transportation

590 Treasury

598 Environmental Protection Agency

580 Federal Communications Commission.

604 Federal Power Commission..

591 Federal Trade Commission -

600 Interstate Commerce Commission.

575 National Aeronautics and Space Administration.

600 National Science Foundation.

601 Postal Service.-

600 Small Business Administration.

601 Smithsonian Institution

601 Tennessee Valley Authority

579 Veterans' Administration.

602 Water Resources Council.

602 Schlesinger, Dr. James R., Chairman, Atomic Energy Commission, material supplied by : Draft detailed statement on the environmental considerations by the

Atomic Energy Commission related to the proposed issuance of an
operating license to the Duke Power Co. for the Oconee nuclear sta-
tion, unit 1.--

190 Electric energy needs of the country

107 Mini-NEPA review for Quad Cities.

133

Train, Dr. Russell E., Chairman, Council on Environmental Quality, material supplied by :

Page Briefing paper-Hearings on the National Environmental Policy Act-- 81 Cumulative listing of 102 statements received.-

51 Executive Order 11514, March 5, 1970, “Protection and Enhancement of Environmental Quality".

37 Letters addressed to: Senator Baker dated March 14, 1972.

572 Congressman John A. Blatnik.

559 Congressman William A. Harsha..

599 Memorandums to agency and general counsel liaison on NEPA matters

39-51, 85 Projects in which actions have been held up in whole or part by court orders under NEPA..

85 Reported judicial decisions involving the National Environmental Policy Act through February 15, 1972_

73 Summary of 102 statements filed with the CEQ through January 31, 1972 (by project type)

13 Summary of 102 statements filed with the CEQ through January 31, 1972 (by agency)

14 Summary of 102 statements filed with the CEQ through November 30, 1971.

51 Statements on proposed Federal action affecting the environment.-- 58 Utah Power & Light Co., letter to Senator Randolph from E. A. Hunter, president and general manager..

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NATIONAL ENVIRONMENTAL POLICY ACT OF 1969

WEDNESDAY, MARCH 1, 1972

UNITED STATES SENATE,

COMMITTEE ON PUBLIC WORKS
AND COMMITTEE ON INTERIOR AND INSULAR AFFAIRS,

Washington, D.C. The committees met, pursuant to notice, at 9:30 a.m., in room 4200, New Senate Office Building, Hon. Howard H. Baker, Jr., presiding.

Present: Senators Baker, Gravel, Buckley, Bellmon, and Hansen. Senator BAKER. The hearing will come to order.

The Senate Committee on Interior and Insular Affairs and the Senate Committee on Public Works begin this morning a series of public hearings on the operation of the National Environmental Policy Act of 1969–NEPA.

It is my personal judgment that the act itself, the efforts of various Federal agencies to comply with it, and interpretations of the act by the Federal judiciary have posed and will continue to pose momentous questions for the society and its Government.

It is appropriate that the Congress should begin to explore these questions in some depth.

I would like at the very outset to make a personal statement of my own view as to what these hearings are about and, perhaps more importantly, what they are not about. First of all, these hearings have not been called because of

my conviction that NEPA-in whole or in part—is bad law.

On the contrary, as far as I am concerned, NEPA and the controversy that has grown up around it have served to focus the attention of the Government, private industry, and the public on some fundamental issues that have long cried out for attention.

It may be that NEPA has had effects unintended by the Congress at the time of its enactment; it may be that the Congress will at some future time choose to make changes in NEPA. But I emphasize that the fact of these hearings is not premised on displeasure with the act.

The second point I would make is that these hearings are exploratory and not legislative in nature. The two committees are not taking testimony on any proposed amendments to NEPA nor on any other legislative proposal.

We are making an effort to inform ourselves as fully as possible about the operation of the act since it was signed by the President on January 1, 1970.

Although we solicit no amendments, if any witness believes that the act should be amended and cares to propose an amendment or amend

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ments, such testimony will obviously be received and made a part of the record.

But the purpose of these hearings is to hear firsthand the thinking of some of those who have been most directly involved in the implementation of the act.

The purpose is not to build a record for any particular change in NEPA or any other public law.

Third, I will take a moment to explain why it is that these two committees are joining together for the hearings.

The National Environmental Policy Act had its genesis in Senate bill 1075, introduced by Senator Jackson on February 18, 1969, and referred to the Committee on Interior and Insular Affairs, of which Senator Jackson is, of course, chairman.

Title II of the Water Quality Improvement Act of 1970, which originated in the Committee on Public Works, created an Office of Environmental Quality to provide staff services for and further define the duties of the Council on Environmental Quality, which was established by title II of NEPA.

The two committees worked closely during the gestation of these two statutes.

There is another area in which the two committees have a common interest, and that has to do with the impact of NEPA on programs carried out by various Federal agencies created by legislation that originated in the two committees.

The Interior Committee has a strong interest, for example, in the effect of NEPA on the operations of the Department of the Interior, as discussion later in these hearings of the Outer Continental Shelf Lands case will make abundantly clear.

The Committee on Public Works has a strong interest in the relationship between NEPA and the several environmental regulatory programs authorized by legislation under its jurisdiction, such as those carried out by the Environmental Protection Agency.

So, in the judgment of the distinguished chairmen of these two committees, Senators Randolph and Jackson, it appeared useful and desirable that these hearings be conducted jointly.

On July 23, 1971, the U.S. Court of Appeals for the District of Columbia decided simultaneously two cases involving the Calvert Cliffs nuclear powerplant.

The opening sentence of the court's opinion, written by Judge Wright, was this:

"These cases are only the beginning of what promises to become a flood of new litigation- litigation seeking judicial assistance in protecting our natural environment."

The judge knew whereof he spoke. To date there have been more than 60 Federal court decisions involving NEPA. I can think of no more convenient way to give the witnesses and other interested persons an idea of the sorts of issues these committees wish to explore than to make brief mention of four of the more prominent of these decisions, each of which raises related but somewhat separable aspects of the subject matter before us.

First of all, there is the Calvert Cliff's opinion itself, which found, in simple terms, that the Atomic Energy Commission had failed to comply with the procedural requirements of section 102 of NEPA.

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But in his lengthy and discursive opinion, Judge Wright raised several interesting questions, and I will mention two of them.

He devoted a significant amount of attention to just what the substantive requirements of NEPA are. He noted that the "general substantive policy of the act is a flexible one. It leaves room,” he continued, "for a responsible exercise of discretion and may not require particular substantive results in particular problematic instances.'

Although Judge Wright states that “NEPA * * * makes environmental protection a part of the mandate of every Federal agency and department,” he also declares that “the reviewing courts probably cannot reverse a substantive decision on its merits, under section 101, unless it be shown that the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental values."

Thus, although several Federal courts have elaborated in some detail on the procedural requirements of section 102, the broad substantive mandate of section 101 is subject to a wide variety of interpretations, a matter of interest to these committees.

The Calvert Cliffs case also raised the issue of the relationship of NEPA to a regulatory action of State water pollution control agencies authorized by the Federal Water Pollution Control Act.

The court held that the AEC was required by NEPA to review de novo a State certification as to compliance with water quality standards and to include water quality considerations in its overall balancing judgment as to whether a given license or permit should issue.

The two committees are interested in the relationship between NEPA and environmental regulatory programs.

This same issue is raised in an even more dramatic way by the decision rendered by the District of Columbia District Court in the Kalur and Large v. Resor, et al. case on December 16, 1971.

In that case Judge Robinson held that permits issued pursuant to the Refuse Act of 1899 are "major Federal actions significantly affecting the quality of the human environment," and, therefore, subject to the full substantive and procedural requirements of NEPA.

The Corps of Engineers now has pending some 25,000 Refuse Act permit applications. The purported intent of the Refuse Act permit program was to provide a framework for controlling the discharge of wastes into the Nation's waterways, assuming that prior to issuance of each permit a "balancing judgment” would be made by EPA and the corps as to what degree of effluent control could be achieved and would be required.

Compliance with Kalur is likely to significantly alter the operation of the permit program, whether for good or for ill.

This is an issue of interest to these committees.

On January 13, 1972, the District of Columbia Court of Appeals decided a case generally referred to as the Outer Continental Shelf Lands decision.

The case and the opinion by Judge Leventhal concerned themselves primarily with that requirement of section 102 of NEPA that each Federal agency in conducting its NEPA review consider alternatives to the proposed action” in question.

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