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which none of us currently dream of, as necessary elements to meet the resource problem of the United States, and the rest of the world.
Senator BAKER. Mr. Chairman, thank you for a very excellent statement, and for a very, very useful colloquy with the committee, and we very gratefully appreciate your participation, and we thank you for that.
If there are no further questions of the chairman, we will take a 5-minute recess while we see what we are going to do with the rest of the day.
(Whereupon, the hearing was in recess.)
Senator BAKER. The committee will come to order.
Our next witness is Mr. Roger C. Cramton, chairman of the Administrative Conference of the United States.
Mr. Cramton, we welcome you to these hearings, and you may proceed as you wish with your statement.
STATEMENT OF ROGER C. CRAMTON, CHAIRMAN, ADMINISTRA
TIVE CONFERENCE OF THE UNITED STATES, ACCOMPANIED BY RICHARD BERG, RESEARCH DIRECTOR
Mr. CRAMTON. Mr. Chairman, members of the two committees, I would like first to introduce my associate, Richard Berg, research director of the Administrative Conference, and to ask permission to have my prepared statement included in the record of these proceedings.
Senator BAKER. Without objection, the statement will be received and included in the record.
(The statement appears on p. 411.)
Mr. CRAMTON. I am grateful for the opportunity to testify at this important hearing, at which a vital subject—the consideration of environmental values in the decisionmaking process of Federal administrative agencies—is under consideration. This is an important subject, both to me personally and also to the Administrative Conference of the United States.
The Administrative Conference, as you know, is an independent Federal agency that is devoted to the improvement of the procedures by 'which the Federal Government carries out its activities. One of the areas to which we are giving a very considerable amount of study is the handling of environmental issues in powerplant licensing and the reliance on trial-type hearings in the decisionmaking process in Federal administrative agencies.
I am expressing my personal views today as chairman, and as a person presumably knowledgeable on administrative procedures, because the Conference itself has not taken, and probably will not take, a formal position on the implementation and effectiveness of NEPA.
I would like to touch upon time points, each dealing with the effectiveness of NEPA and its consequences for administrative decisionmaking
First, what benefits has NEPA conferred on us? Second, what uncertainties perhaps cry out for clarification, and, third, what dangers have emerged ? NEPA in my view is a dramatic success story of the orderly change
a in governmental institutions. I do not have to tell you that there is widespread skepticism concerning the responsiveness of the Government to changing needs and conditions. Any success story on the part of the Government needs to be chronicled and retold, and NEPA, in my view, is an important success story.
Why has NEPA been a success story? In nudging and pushing Federal agencies toward a more constructive and rational position in balancing environmental considerations with other values, NEPA has been effective in part because it constitutes the first broad congressional statement of a reordering of national priorities in the environmental field. It tells agencies that they must consider environmental values along with other relevant values in their decisionmaking.
We all know that there is a tendency of each agency to become absorbed in its own mission, in its own special constituency, that tends to limit its perspective and its breadth of view. NEPA pushes in the other direction, requiring agencies to take a broader view, a wider perspective.
Second, NEPA requires a public airing of issues, some of which have been foreclosed from public view and comment. Take, for example, the important decisions involved in the use and management of public property, the proprietary functions of the Federal Government. The statutes governing these functions for the most part do not require detailed procedures or public participation, and NEPA has opened up for the first time to public gaze and scrutiny some very important decisions of Government, such as storage and transportation of germ gas, underground testing of nuclear devices, and the like. In my view, this has been all to the good.
Third, agencies have been forced to expose the bases of their decisions. They not only must receive outside comments, but they must take them seriously, repond and reply to them, and explain the results they reach. The outcome in my view is likely to be more thoughtful, more informed decisionmaking by Federal agencies.
Finally, the citizen's suit provides a handy mechanism to enforce the NEPA requirements, and the courts have been sensitive and eager to enforce NEPA. This in turn has meant the agencies must take NEPA seriously. The requirement is a real one, not mere exhortation.
When these four ingredients or elements of which I have spoken are combined, an explanation is provided for the fact that NEPA has produced a great deal of change in large governmental organizations That tend to resist change. Dramatic change has occurred in the policies and perspectives of a number of Federal agencies, and examples are mentioned in my prepared statement.
Moreover, even greater change is likely to occur in the future—the suure, steady change that is the result of building into the decisionmaking process new inputs and new people. I would like to emphasize this point. By requiring agencies to develop an in-house expertise in environmental disciplines, NEPA has infused new people and new perspectives into the bureaucracy. The process of change thus tends to be selfperpetuating
We all know that individual agencies tend to develop what might be referred to as belief patterns. They are concerned with particular missions. Their employees, often of a common background and with a common training, over time tend to see the agency's mission and the world through the same set of glasses, the same set of shared attitudes. There are many examples. A civil engineer who has spent 30 years in the Bureau of Roads, laying down highways in our relentless pursuit to spend the funds accummulated in the highway trust fund, acquires a certain view of the world. If you want to change that view, the view of an agency composed of people like that, you need the introduction of both outside comments, and, particularly, new personnel into the agencypeople with biological sophistication or environmental science background who have more concern about some other values that perhaps which have not been fully reflected in the highway design and construction decisional process in the past.
The result of infusing new attitudes and skills cannot help but be all to the good.
Here I would like to make a transition. I have been talking about the positive aspects of NEPA. Now, I want to throw out a few words of caution.
Success is not without its dangers, and only the naive or zealous would perceive NEPA as being without a negative side at all.
There are two kinds of negative side effects, one involves the current uncertainties in the meaning and application of NEPA which hopefully will be temporary. To what governmental actions does NEPA apply? What does it require of governmental decisionmakers?
Hopefully, these questions will be clarified as soon as possible, so that agencies will know the ground rules that they have to meet, and not just be hit over the head after the fact in the reviewing courts.
Then there is danger at both extremes, if we move away from a moderate and reasonable interpretation of the act. On the one hand, there is a danger that from the point of view of some agencies, NEPA can become a wooden, formal, mechanical requirement, in which you grind out a lot of pieces of paper-a new kind of bureaucratic gamesmanship in which the writing of environmental impact statements becomes an esoteric art form, like producing advertising copy-but has no meaning in terms of the decisionmaking process in the life of the agency.
That is one extreme danger. The danger on the other hand is that too zealous an imposition of a procedural straitjacket, or too broad, too heroic a notion of what decisionmakers have to go through to make individual decisions, will cripple or impair the Federal decisionmaking process.
I notice from the hearing schedule that a number of my friends in the environmental area are testifying tomorrow, and I will leave it to them to develop the danger of wooden, mechanical, or formal compliance on the part of agencies. I will move to the other side of uncertainty in the meaning and application of NEPA, and some possible dangers if NEPA is conceived of as imposing too heroic a decisionmaking process.
My prepared statement discusses a number of uncertainties in the application of the NEPA requirements.
What substantive effect does NEPA have in the areas in which governmental agencies regulate otherwise private affairs ? Take such matters as Securities and Exchange Commission regulations of proxy statement, or issuance of “no-action” letters, or Internal Revenue Service rulings on tax questions that come up in connection with the corporate expansion. Must the SEC or the IRS consider the social desirability in terms of the environment of the underlying activity in which the private person wants to engage in ? My own answer would be "No." To do so would be chaotic or unwise.
Senator BAKER. Would it be because you think it would be chaotic and unwise, or because of what NEPA says?
Mr. CRAMTON. NEPA does not deal with it at all. Senator BAKER. Except in terms of environmental impact. Mr. CRAMTON. It purports to deal generally with all decisions of Government. It does not narrow in on any. But Congress has given very specific guides as to what situation a taxpayer is entitled to a ruling and the like, and his motives and other aspects of his behavior have not been subject to tax consequences. If Congress wants tax consequences to be involved, I think it should say so, and say so somewhat more explicitly.
Senator BAKER. I think you make another point, that significant impact may be some impact, and, therefore, arguably might come under requirements of 102.
Mr. CRAMTON. It is likely to have a fairly marginal impact, except as the repeated actions of a number of private persons tend to move in the same direction. If they do, as in land development, public regulation needs to step in, but perhaps it needs to step in more specifically
Senator BAKER. I understand your observation, that this would be an example of an arguably extreme interpretation of the act, not the probable interpretation of it.
Mr. CRAMTON. Well, it is a danger. There is some uncertainty now that needs to be clarified, and if it is resolved in terms of extremely broad applicability, I think it will create a whole host of problems that will result in even more litigation.
Senator BAKER. The point came up in the previous hearings about the actions of the judiciary.
Would that be in the same category?
Mr. CRAMTON. I think not. I think the coverage of this act would probably be interpreted in accordance with the definition of "agency in the Administrative Procedure Act, which excludes the legislature and the judiciary. Thus I would say, with respect to a court order involving school busing, that an environmental impact statement would not be needed if made by the court, but if the ICC made the same order it would have to make an environmnetal impact statement.
Senator BAKER. I understand it is all of the agencies.
Mr. CRAMTON. Yes, but that will be intepreted as administrative agencies, not the judiciary.
Senator BAKER. Especially since the judiciary will inierpret it.
It is my view that the NEPA procedure is fairly easily applied to decisions that are proprietary in character, or that are made by means of notice-and-comment rulemaking. There will be some transition problems in determining whether NEPA applies and what does it require of agencies. But once those questions are clarified, it seems to me that the kind of decision involved in Secretary Morton's oil leasing action fits into the environmental impact-statement procedure fairly well. The agency merely has to give notice of the proposed action, spell out the environmental effects, hold a period open for receiving comments, and then have a period which takes into account the comments.
It is in regard to actions that must be made after a trial-type hearing that the NEPA requirement seems to me to cause the most concern. This is partly because the bare statutory language about the environmental statement accompanying the agency's proposal through the existing review processes, fails to reflect the variety and complexity of trial proceedings. If you read the judicial decisions, some seem to me too exacting in their requirements.
NEPA speaks of the agency's "existing review processes. .” That seems to me to imply that NÈPA was not intended to change the decisional or review process, but merely to require consideration of environmental values. I would agree with Mr. Gooch's answer this morning on the Greene County case that some discretion, in fact a large degree of discretion, ought to be accorded different agencies as to how they meet that requirement of ventilating the environmental issues, thoroughly considering them and deciding them.
NEPA is not a straitjacket. It needs not be responded to by every agency in exactly the same way. There are questions of who prepares the statement, which seems to me a question of notice prior to hearing of environmental issues. There is a question whether the staff bears the burden in the hearing, or can the burden be put in some instances on private parties. Can the hearing examiner be left to develop the statement of consideration of environmental issues ?
There is also a question of whether or not NEPA should be viewed as requiring mandatory hearings in situations which are otherwise uncontested. I think not, that it would be a mistake. These are very serious uncertainties in the application of the NEPA requirement to trialtype proceedings. My view is that the time, the manner, and the scope of consideration of environmental issues must involve a large degree of agency discretion.
The agency must give consideration to the environmental issues; they must develop them, but the manner, time, and scope should be discretionary in large part.
Let me turn in the last few minutes to some remarks about some dangers if NEPA is interpreted as requiring too heroic a decisionmaking process.
There is danger in the notion that all alternatives that are reasonably available must be considered, particularly as it is applied to trial-type hearings. The NRDC case, as you know, holds that the environmental statement must consider alternatives that are beyond the agency's power to act upon. Secretary Morton must consider the oil import quota program in engaging in an offshore oil-leasing action.
I have already said that, except for the problem of knowing what he has to include in his statement, and having some clarity about that, I do not think that would pose too much of a problem in the future. The