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

no doubt that there has been a very pervasive influence throughout the decisionmaking machinery of the Federal Government.

Now, the cases you hear about are the cases where at least some citizens feel that a good job has not been done, and in some of those cases, the courts have agreed, but you might say they are really, perhaps at the tip of the iceberg. There are 160 cases, and given the fact we are talking about a statute that cuts across the entire fabric of our society to every activity of the Federal Government, without exception, I would say, generally, I think that it is not but a bit that is surfacing with those 160 cases in the courts over a 2-year period, and I do not think this indicates that the Federal Government has been lax in any general sense, derelict in any general sense in its implementation of the National Environmental Policy Act.

This is the tip of the iceberg. What is not visible is the real revolution, and the decisionmaking process going on within Government, and we have a long way to go, and I would never sit here and tell you we do not have a long way to go in making that actually effective, not today, but we have come a very long way in 2 years since this act was enacted.

Senator GRAVEL. I agree with that, and I appreciate that.

I am just pointing out what appears to be the existing situation, that is, that most of the action, maybe the tip of the iceberg, seems to be coming from citizenland. It seems to me Government does have a vested interest, because many of the environmentally harmful projects undertaken are operated or licensed by Government itself.

Is there any thought by your agency about broadening the NEPA device, beyond just Government activity, so that any activity in our society that has a significant effect on the environment should be required to put forth a 102 statement acknowledging the problem?

Dr. TRAIN. Well, we have our hands full enough with what we have got at the moment without trying to get into family decisions and everything else going on in our society through a 102 process.

We have within the Council made a great deal of effort to encourage State governments to undertake similar procedures though not necessarily exactly the same, and I think in that respect, it is important to get diversity of approaches around.

That is one of the advantages of a Federal system. We do not think we necessarily have here the best answer to good environmental decisionmaking, others may come up with some better ideas, and more power to them, but we have made every effort within the Council to encourage State action along these lines.

We have met with a number of State agencies, we are participating this month with the State Council of Governments, who are meeting here in Washington, with a symposium on environmental legislation, and this is something we have been supporting and encouraging, and a very major question for discussion then will be the environmental impact and analysis kind of requirement.

I would also say that in just about every speech made to business groups I urge them to adopt some such decisionmaking and planning process, in-house, but I do believe it is too early to try to require this kind of thing by statute, and I do not think it would really be helpful. Senator GRAVEL. Thank you, very much.

Dr. TRAIN. I do not mean to be making a speech here, but on the litigation aspects, I think that we tend to see the negative side of that: why should there be cases anyway? That indicates something is wrong. But I seriously doubt we can ever expect Government regulations to be so completely all embracing-nor should it be that it covers every possible eventuality.

I think it is good that we have the citizen ready to step into the gaps that may appear.

I think this is an essential part of our process. I think this is a positive thing on our system and not to be looked at as something that is negative.

There is no other system to my knowledge around the worldI am talking about governmental systems-that gives its citizens this kind of opportunity.

I have talked about this with those who share our own legal traditions, such as the Canadians and the British, and I say, they frankly think we are crazy to inject this kind of citizen judicial activity into the bureaucratic process.

I think it speaks very highly of our entire democratic system. Senator GRAVEL. I agree with you on that proposal. I might offer a suggestion, and see if you would be willing to back it up. If the judge feels that the litigation is worthy, which means he entertains the litigation, would it not be fair and wise for the Federal Government to appropriate the money, so that these citizens do not have to go hat-in-hand begging for it?

If the court entertains the litigation, and says this is a decent suit, then why not let the Government pay for this suit?

Would this not be a fair way? Since this citizen-suit process is a good process, let's get more of it, and we can have more of it by paying for it.

Would this not be a proper implementation of your statement?
Dr. TRAIN. It sounds like a fairly technical question.

I really would not want to add to that.

Senator BAKER. Let me call attention that we just have a vote signal. I just began to recognize Senator Buckley, and I wonder if he wants to continue until he gets the 5-minute warning, or do you want to reserve your questions?

Senator BUCKLEY. I prefer to reserve.

Senator BAKER. Is it agreeable to you, Dr. Train and Dr. Schlesinger, to come back?

It takes about 25 minutes to do this rollcall and be back in committee.
Dr. TRAIN. Yes, sir.

Dr. SCHLESINGER. Yes, sir.

Senator BAKER. We will recess the committees until 11:30.

(Whereupon, the committees were in recess.)

AFTER RECESS

Senator BAKER. The hearing is back in session.

Senator BUCKLEY. Dr. Train, I just wanted to also say how much I appreciate your testimony, and that is a very fine summary of where we have gone.

Obviously at this time we are also learning as we go along, and, of course, this is the purpose of these hearings, to get a better understanding of how the system is working.

I would like to observe that we do have a full-disclosure situation, that it is one which has the broadest possible statement of environment policy.

Do you feel in your judgment it is so broad, as to be perhaps selfdefeating in terms of giving the court any guidance?

Dr. TRAIN. I do not feel that at the present time at all; no.

It is a broad statute, it does give only broad guidance, and I think it is important the courts exercise restraint in the degree to which they attempt to substitute judicial judgment for what are mainly decisions which belong properly in the administrative agencies.

I do not think we have seen that, certainly not to any great extent. Senator BUCKLEY. As of the present time, under the philosophy structure, each of the agencies is required to make a determination, after all of the evidence of these environmental impact statements, as to where the balance lies.

The congressional mandate to consider with all seriousness the environmental considerations, and as I gather, the gist of the court decisions today, they have been primarily aimed at making sure that the agencies are not too casual in this respect.

Now, do you provide the agencies, in addition to the guidelines on environmental aspects, do you provide them with any suggestions as to how to go about weighing these different factors, these social and

economic factors?

Dr. TRAIN. We meet quite frequently with individual agencies, particularly those that represent the great bulk of the environmental impact statements, and likewise with those such as the Atomic Energy Commission, whose statements are very significant in dealing with very substantial matters. We are available to work with agencies at their request at all times.

We do volunteer suggestions when this seems to be indicated, particularly when we received a draft statement, which in our view seems to not to represent the kind of weighing that we believe the statute contemplates.

The statute is, as we have already indicated, very general in certain specific areas, such as what does constitute a major Federal action significantly affecting the quality of the environment, and while our guidelines touch on this, and give some help, I think it is quite plain that we have not really endeavored to spell out in detail just exactly what that phrase, sentence means.

Senator BUCKLEY. I think I did not explain well what I clearly had in mind.

Let us assume that the environmental impact statement is everything you would like it to be in a particular case.

It spells out all of the potential hazards to the environment, all of the alternatives and everything else. Nevertheless, somebody in the agency must make a final determination, given all of this information, but also given the other policy considerations in terms of generation of power, or what not.

Somebody must make that judgment as to where is the economic and tradeoff. What I am really getting at is: Do we in fact at the pres

ent state of the art know enough about long-term consequences, and so on, to measure it to any degree of precision?

Dr. TRAIN. I think in fairness to that; no, we do not.

This is an evolving situation. I think we are much more aware of the factors involved, and we certainly are in a better position today than we were 2 years ago to make intelligent decisions, but we still do have a long way to go.

In specific reference to your question, the Council has on occasion indicated expressly to an agency that in our view the environmental costs identified in the analysis, do outweigh the possible benefits for which the project is designed, and that it should not go forward in our view.

On occasion, this is accepted by the Agency, and on occasion it is not, but we have, I think this is responsive to your question, involved ourselves where we thought we could be helpful, in that particular weighing process.

Senator BUCKLEY. Given the present state of the art, it is not surprising, I gather, that for many decisions made known by various agencies, people will question whether they are genuine in judgment.

Dr. TRAIN. I think inevitably, we are dealing in the overall decisionmaking process, which is typically complex with a wide range of factors, including environmental, economic, engineering, health, national security at times, and a number of others, and different people have a different perspective as to the particular weight that should be assigned to any one of these, and so necessarily one finds controversy with respect to almost any such decision when it is of significant public interest. Likewise, given the range of factors involved, I think that there is probably a built-in limitation to the extent to which the Council on Environmental Quality should inject itself into the weight that should be attached to known environmental factors.

Senator BUCKLEY. I was suggesting or inquiring as to whether or not there was the conscious attempt, and let's say a very earnest attempt, to try to develop techniques for the measurement of some of these factors that have a balance sheet qualification, in order to develop mutually accepted standards, so as to hasten the time when these decisions will be made, and when the courts themselves can determine whether or not the proper judgment is made.

Dr. TRAIN. We have been working on a number of such efforts. We have met with a number of people on the outside who develop various kinds of methods that would purportedly provide qualitative approaches at least in part, to decisionmaking in this area, and I think we have yet to find anything we think is really very helpful.

We have seen checklists, and we have helped develop checklists to assist agencies in not overlooking matters, which should be taken into account, and I think this kind of thing can be done very usefully.

I am not overly optimistic myself that we can quantify beyond a certain point this kind of decisionmaking.

Senator BUCKLEY. In terms of your own authority, you issued guidelines, you have worked with agencies.

If an agency, in your estimation, fails to follow adequately the guidelines you issued, or if the decision is in your judgment entirely arbitrary, what sanctions are you able to impose?