The NEPA process is, of course, experimental in nature, and we expect to find ways to sharpen its focus.

But in our view it represents an outstanding joint effort by Congress, the executive branch, the courts, and the public in upgrading Government's performance, and we feel privileged to participate. Mr. Chairman, that concludes my prepared statement. Senator BAKER. Thank you very much, Dr. Train.

We appreciate your statement, and since I already imposed on my colleagues' time with a number of questions put forth during the course of your testimony, rather than put any further questions now, I would like to call on Senator Gravel, and then Senator Buckley.

Senator GRAVEL. Thank you very much.

Dr. Train, I want to compliment you on a very fine statement.

I am very impressed with the approach. In fact, I think the following language from your statement, and I quote:

"In short, we believe smart agency leadership should see NEPA as an opportunity rather than a stumbling block."

I quite agree. If I could touch upon a few areas that are of interest to me. In reference to your statement, "The NEPA process is, of course, experimental in nature," I think this is certainly true, that it is a very experimental situation, and that what we probably need is more running time before we talk of say adding to it.

I understand there may be some people that want to diminish the present law. You obviously do not want to see it diminished, and you come up with concrete proposals for adding to it. I would like to probe some possibilities.

With respect to economic dislocation that takes place due to measures to protect the environment, could the Government provide relief in private areas, where there is some pain and suffering in employment or in investment returns, greater interest charges and greater costs, is there any thought at all to offering some type of relief through Government, or through appropriations in these cases?

Dr. TRAIN. This is a little bit out of the particular line of this testimony.

Certainly we are very alert, and we should be alert to the economic impact including employment impact of our environmental program. We should not overlook, we should keep a very careful eye on the furtherance of this sense of responsibility. The Council took the leadership last autumn in undertaking a variety of specific industry studies of environmental impact, and projected environmental impact based on existing statutory regulatory authority.

We are presently in the process of analyzing these, and I cite this in part to answer your question, we do feel a strong sense of concern about these problems.

We do not feel that where there is a severe impact on a community, on an employment group, or on a business, that this should be overlooked in the planning process.

I think we feel it is too early at this point to be developing any specific proposal, such as you have mentioned.

Now, not to say there may not be some, but at this point I do not think we are ready to suggest some.

As I have indicated in my answer, there are a variety of kinds of impact, and it is not always easy to identify and pinpoint just how

an adjustment relief should be provided, whether to a community, whether to a work force, or whether directly to a business in some fashion.

We had endeavored through the Internal Revenue Code-this has been of fairly long standing-to provide some easing of the tax impact on investment in the case of pollution abatement facilities, rapid amortization.

One of the problems involved which requires very careful weighing and attention in the development of any proposals in this area is that one must be sure that by giving relief, you are not building in, in a permanent sense, the pollution you are trying to avoid.

These are in the overall transitional problems, I think, quite clearly. This does not make them any the less real to the human beings affected, and I will simply reiterate what I said at the beginning. We are very much aware of this aspect of our environmental programs, and we should increasingly be sensitive to this as our environmental programs and standards become stronger, and enforcement becomes firmer, as it has.

Senator GRAVEL. This leads me to the next question, that is the question of police powers.

Dr. TRAIN. I am sorry.

Senator GRAVEL. The police powers involved. As I read NEPA, we make a study, try to make this complete as possible, we may expose environmental or economic problems, or we may find something dangerous, and then agencies go ahead with it anyway because of so-called "need." We now have merely an exposé, perfectly or imperfectly, of the problem, but we can still go ahead with some unhealthy projects. We seem to have arrived at a position in our society, and in this Government today, where we are at least mature enough to begin in very general terms to describe the problem.

What is our next step to prevent environmental degradation?
What is your recommendation?

Dr. TRAIN. Well, you have two kinds of environmental statutory requirements.

One, I think, is exemplified by our Air Quality Act, and water quality legislation, where you have reasonably precise standards, or at least criteria under which precise standards can be developed and promulgated, and these typically carry with them strong enforcement mechanisms, and court enforceable penalties, and I do not think there is any question, and I know you have no question over the fact that this is implicit all through our pollution abatement legislated framework.

Now, when you deal with something like the National Environmental Policy Act, you are quite correct, the act itself really sets forth no specific procedures other than the 102 process, and contains within. it

Senator GRAVEL. Which merely exposes.

Dr. TRAIN. That is correct, and it does not provide enforcement mechanism.

I would seriously question how you would put an enforcement mechanism in.

One of the mandates of the act is expressed in very broad policy terms.

I think that the courts would be the first to say that the standards are too indefinite to permit the kind of specific enforcement about which you are talking, and what you are talking about is the case where an agency, let us assume has met all procedural requirements, has identified all of the alternatives to itself, to its actions properly, has identified all of the identifiable environmental impact, has identified the fact that one of them is exceedingly adverse, exceedingly severe, and indeed might even be said to outweigh the environmental force, outweigh the projected benefits, and yet says we are going ahead anyway.

Now, I do not think you can build in an enforcement process the usual case of penalties, and so forth, with that kind of action.

As I indicated, the National Environmental Policy Act we see has been self-operative, and I think that is the way Congress has conceived of it.

It lays out a broad policy for agencies to follow up. It simply says agencies shall file those 102's with our Council. It does not say what our Council shall do with them.

It does not say we are to review them. It does not say we are to veto

Senator GRAVEL. I appreciate that, Dr. Train.

We have an interesting situations, where we have agencies that perform a study, perfect or imperfect, depending on their motivation, and here is this bureaucracy that is promoting that activity, so it has a very human and very normal vested interest in the course of action it has presently undertaken. So NEPA says, "Gentlemen, collect your information, and then check with other agencies to state the problem, but after you have studied it, published it, then you can just go ahead and continue with what you are doing, or maybe * * *”

Well, you see the point. I am not saying there is a solution now. I am just wondering if we are creatively thinking how we will take the next step.

Dr. TRAIN. I think you have made a very clear point.

I think in dealing with very broad policy as the Congress has in the National Environmental Policy Act, it is in a sense requiring that we follow a rule of reason, if you will, in the implementation of the act, and it is relying on our democratic political process in the final analysis to implement the policy of the act, and it does this by a variety of, I think, exceedingly effective procedures. The requirement of making project analysis available to other Federal agencies, and to State and local agencies with jurisdiction, is a very important requirement. This is really to my knowledge almost revolutionary within the Federal system this procedure, and I think that we have all seen the somewhat uncomfortable process of an agency developing a project and then having one of its sister agencies say something publicly that was a little less than kind about that project.

Now, this is not a veto, but it is surfacing, it seems to me, in the public eye, the various conflicts, and I mean conflict in the best sense of the term.

We have conflicts involved here, and it relies then very heavily on the political process, the public diclosure, full disclosure, such as I have indicated-all are giving very strong emphasis to moving that

originating agency toward a modification of its position, and the courts are very much involved with this.

The courts have been ready to find a right on the part of citizens to bring an action under the National Environmental Policy Act, and this has proven a very important part of this self-operative mechanism I described.

Now, I would like to make a point of that, and that is that it has not been just the National Environmental Policy Act, which has given rise to litigation in the environmental field.

The courts several years ago have identified and recognized a good environment as being a matter of broad public interest.

The Scenic Hudson case involving the FTC and the Overton Park case involving section 4 of the Transportation Act, I am not sure of the title, all of these were situations not involving NEPA at all, so I think it is important we recognize that NEPA is not the cause of judicial interests in the field of environment.

It was happening in any event, and I think it is simply a judicial reflection of an underlying current in our entire society.

Now, things do happen as a result of NEPA, and I would refer to the most dramatic case that comes to mind, quickly, the Florida Barge Canal, the halting of it after some $50 million had been expended on the project, and as the President said in his announcement stopping that project, he was accepting the advice of our Council, that the environmental impacts outweigh the potential benefits, and he pointed out that we have a new perception today in our decisionmaking of the importance of environmental factors, a perception which did not really exist, at least in a very signficant sense at the time that project was developed and authorized, and some things are happening as a result of the National Environmental Policy Act, a great many things.

Senator GRAVEL. Is that decision a product of litigation?

Dr. TRAIN. No. There was litigation that was in process at that time, and indeed, the court did grant a temporary restraining order at or about the same time as the President's announcement, my own clear recollection is that the President's action was not associated with the court's consideration.

I know our recommendation was made quite some while before that. Senator GRAVEL. How did it come to your attention, was it through another agency, or was it because of the initiation of litigation?

Dr. TRAIN. This came to my attention, I would say, well back when I was Under Secretary of the Interior.

I really cannot tell you, Senator.

Senator GRAVEL. You state that there are 160 cases throughout the United States.

How many of those are interagency, or are they all initiated by private citizens?

Dr. TRAIN. I am advised they are all private parties.

Senator GRAVEL. The concern that comes to my mind very simply is that private suits are undoubtedly not funded by the Government at all, and that what we take credit for in Government, is really what private citizens are willing to make sacrifices for, to donate money for, to bring themselves together to fight Government or industry, in order to get something accomplished.

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Of course, the decisionmaking process you spoke of was interagency, but it would seem, based on your statement here and my own experience, that what is accomplished seems to come about out there in the citizenland, where there is no Federal appropriations, no nothing except fighting citizens.

Is there not a better way we could approach this?

Do we have to depend on these poor people with their donations to take on the bigness of Government?

Dr. TRAIN. I do not think it is fair to say anybody else is fighting the cause, except those people out there, because I think those of us in Government likewise are, but I think I have made it quite clear, and if I have not, I certainly wish to at this point, to say that we believe the citizen plays an exceedingly important role, an alert citizenry, exercised at times, and it is they that are making NEPA effective.

Senator GRAVEL. Is there anybody else that is in on this onslaught? Dr. TRAIN. Let me also mention that while the Federal Government is not directly paying the costs of citizen suits against itself, and I would suppose this would be an unlikely eventuality, the Federal Government did act through the Internal Revenue Service, strongly supported by our Council, which is very much involved in this decision, to assure the deductibility of contributions and the tax exemptions of public-interest law firms, and so I think the Federal Government has taken an effective step, and has indicated a very sympathetic view toward the exercise of this kind of citizen responsibility.

Senator GRAVEL. Is there any place in Government

Dr. TRAIN. And so you can say, in a practical sense, the Federal Government through the tax deduction route is paying a portion at least of those expenses.

Senator GRAVEL. Then what we are saying is, if people choose to give their own money with some allowance for tax deduction, which is far different from a tax credit that we can get some substantial action. Is there not another way to address ourselves in Government more aggressively to the problem than just hoping for the voluntarism of the citizen?

This is like saying let's not do anything on cancer research; let's wait to see if the people will donate more for cancer research.

A lot of people will participate in elections, hoping that Government will solve some of the problems, but I think the record is clear: In 160 pieces of litigation, in every case the litigation has come from out in citizenland. Other than the example you just pointed out, in which the President stopped a litigated program we had already spent $50 million on, can we not claim here that the Government has done something great voluntarily?

Dr. TRAIN. What you never hear about are the decisions that do not get made, or the decisions which are substantially modified early in the decision process, because of the National Environmental Policy Act, and the general policy of the Administration to take environmental factors fully into account.

This is a very hard thing to document. It is impossible to document influences that come to bear on individual decisionmakers, low down the line, and far down the line in the Federal bureaucracy, but I have