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 NEPA 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

danger is that statements about the oil import quota program are going to be drafted by one agency, and then adopted by other agencies without really being seriously considered.

Senator BAKER. Just a minute.

You mean, Mr. Cramton, you mean that you do not expect in the future, that the Department of Interior will have much problem in making the balancing judgment of oil import quota policy, and offshore leasing?

Mr. CRAMTON. I did not say that. I think they may have great difficulty in making that balancing judgment, if in fact it is an open issue, but the question as to the mere procedural requirement of having a statement which discusses all alternatives that are reasonably available-assuming we can decide what that subjective term "reasonably available" means-will not be too bothersome.

Senator BAKER. It will not be too bothersome to discuss it, but will it be too bothersome to make a balancing judgment? For instance, will the Secretary of Interior or the State Department, decide how this affects our relations with oil producing countries?

Mr. CRAMTON. I think to the extent it forces him into areas which are beyond his expertise and beyond his agency, as to how he makes the judgments, it is an unrealistic requirement.

Senator BAKER. Is that the thrust of the Outer Shelf case?

Mr. CRAMTON. Yes, it surely requires that the Secretary of Interior consider issues which are in the statement, even though those issues are beyond his power. He has to consider issues that he cannot act upon, except by doing nothing, and to a certain extent this may create some pressure toward what might be referred to as "government by impasse." No agency can do anything, if it properly takes into account the issues that Congress has delegated to another agency, or even to another level of government, local or State.

Senator BAKER. There is no requirement of NEPA to that effect, there is no requirement that we delegate a particular function to a particular agency.

Mr. CRAMTON. That is right.

Senator BAKER. There is no requirement in the law, that forbids Interior to look into the international impact of changing of the oil import quota system in the United States at any given moment.

Mr. CRAMTON. You are anticipating the next point in my oral summary of my prepared statement, Senator.

Senator BAKER. Then I will wait with great patience.

Mr. CRAMTON. No, there is no reason why you should. I was going to say that every decisionmaker is under a necessity, it seems to me, to cut his problems down to manageable size.

We cannot reconsider our life style every morning when we face the day. That road is the road to insanity. We cannot reexamine first principles in every case. We cannot in fact canvass all alternatives and the implications of all alternatives in a sequence of individual cases. If NEPA is interpreted to mean that, NEPA requires the impossible, and the impossible cannot be done.

There is an old French saying, "The best is the enemy of the good." Here I would again argue for a degree of moderation and compromise and reasonableness. Administrators must act in the absence of a full knowledge of the implications and consequences of all possible alter

natives to their action, and that is particularly true where Congress has in fact limited an agency in its jurisdiction, in what it can consider, or where our federal system has put some problems like fossil fuel plant matters in the States or where land-use problems are handled primarily by local communities, and the like.

There is nothing in NEPA which purports to reshuffle an agency's power or jurisdiction, or which requires a change in its decisionmaking process, other than that the agency consider environmental values. If there is confusion or uncertainty of national policy in such fields as energy or transportation, NEPA cannot cure that uncertainty or confusion. If there is a problem created by the diffusion of authority among Federal agencies or between Federal and State and local agencies, the lack of a centralized agency to resolve those problems is not being to be cured by NEPA. To interpret NEPA as requiring agencies essentially to do nothing, until Congress restructures or rethinks this basic process cannot be contemplated and will not be permitted. That is what I refer to as "government by impasse." NEPA, it does seem to me, imposes a special responsibility on the President and the Congress to rethink some of these basic questions, such as the coordination of national policies in areas like energy and transportation and public-land use, in which environmental questions are going to raise the most serious problems.

Now, there is one other aspect, particularly in the Calvert Cliffs case that worries me. This is the emphasis on individualized case-bycase balancing, that supposedly results in the optimally beneficial decision, to quote Judge Wright's opinion. If all that language means is that the decisionmakers must consider the broadest alternatives in doing the best job they can, massing the most information they can, and consider it all, all to the good. But if it means the result has to be totally rational, that each agency has to make every governmental decision in accord with the strict dictates of the scientific method, then again it is requiring the impossible.

Some actions must be made and ought to be made in terms of nothing larger than political compromise between the affected interests. We are a democracy. There is a political process going on, there are public and private interest groups that are speaking out, there are elected representatives of the people, and there are administrators who have been delegated certain responsibilities.

Many of the decisions they make are going to be made on the basis of an intuition that the result will be marginally better than inaction. It may rest on accommodation. It cannot purport to be a totally raional plan, based on comprehensive operations analysis, and to require that it be so not only requires the impossible, but I think is inconsistent with the basic democratic nature of our institutions.

Let me give a specific example in the highway area. The trust fund is still accumulating some $6 billion or so dollars a year. Congress has provided that that money can only be spent on highways. Until Congress changes that, one must expect that the agencies that administer those funds will do what Congress has told them to do spend the money on highways. That is what they are required to do. It would be lawless for them to do anything else.

All NEPA means is that agencies must go through the environmental-impact procedure, and they must consider in making their

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decisions about the locations of the highway, the quality of the highways, esthetics, environmental factors. It does not mean the highways will not be built. I think it will have desirable effects on their locations and the like.

People talk of NEPA as if it will shift priorities to fewer highways, fewer automobiles; they have not faced up to the real question.

The governing policies are those Congress has stated, and until Congress changes those policies, the agencies must comply with the congressional mandate.

Senator BAKER. That is not quite right.

Is it not so under NEPA they clearly can stop building a highway? Mr. CRAMPTON. I think not. They are required to spend the trust fund, and they are required to spend it for highways. If a particular segment should or should not be built through a park, they can say we will not build that segment, we will spend $30 million more and build it around.

Senator BAKER. They could say, we will not build that segment, we will not build anything.

Mr. CRAMPTON. I think that would be lawless behavior on the part of the agency, which has been told by Congress that it is to spend the money for that purpose.

Senator BAKER. Well, certainly the Roads Subcommittee of Public Works, on which I serve will consider that point later, but it is my interpretation of the Highway Act that the money can only be spent for these purposes, but when read together with NEPA, there would be no requirement that that money be spent for a particular segment of highway.

Mr. CRAMPTON. The fund could just be allowed to accumulate? I perhaps should give more detailed study to that act and its proper interpretation. I do not purport to be giving a definitive legal opinion as to what that statute means. The Senator undoubtedly is better informed on that question than I am.

Senator BAKER. But you are saying you visualize NEPA as in no way abrogating the responsibility of a line agency, of a mission agency, to fulfill its function, notwithstanding that the agency under NEPA the courts may decide that a particular course of action has a better alternative.

Mr. CRAMPTON. It is not the function of the reviewing courts to decide, what is the better alternative. That function has been delegated to agencies, and there should be a limited scope of review. If NEPA is used by reviewing courts as a crutch to reverse and remand agency decisions that the judges do not like, then the judges are behaving improperly.

Congress has told the AEC, for example, to license nuclear reactors. It has told it to promote the peaceful use of atomic energy. The AEC has no jurisdiction over the oil-import quota, over fossil fuel or electric transmission lines. Yet it must develop an environmental impact statement that considers and discusses those alternatives.

I think in fact the result is probably foreordained, because the more specific requirement on AEC is that it promote the peaceful use of atomic energy, and, providing the plant is safe and providing we do have a fuel shortage, unless you create a new energy agency that has some broader authority, the AEC must go ahead and license facilities

that meet standards consistent with what they consider to be proper environmental values.

Should the AEC say, "Even though society needs fuel and even though we are supposed to promote the peaceful uses of atomic energy, we are going to stop licensing plants, because we think the risks outweigh the need for fuel," I suppose they could do that, but I would think in the light of the statutory requirements, it is not only unlikely, but it perhaps would be a dereliction of their duty.

Senator BAKER. I really cannot follow that, Mr. Cramton.

It seems to me that if the selection of the lead agency, which is responsible for making the overall balancing of judgment, predetermines the outcome, then the section of NEPA which requires consideration of alternatives to the proposed action is meaningless.

Mr. CRAMPTON. It is not totally meaningless. It may have very dramatic effects on the design of a particular plant. It may have dramatic effects on requirements built in in terms of thermal pollution, in terms of a number of esthetic and environmental values, and it may affect the cost, it may affect the economics of the plant.

I suppose if the environmental requirements are too high, it might dry up the stream of applications. However, I am inclined to think that as a practical matter, the more specific requirements of the agency's basic statute and the agency's concern with the mission Congress has given it-in the case of AEC, promoting the peaceful use of atomic energy-will in fact always predominate as long as we have a fuel shortage. That means that to the extent NEPA has an effect, it is on the details of the plant rather than on the fundamental question of do we have plants at all.

I don't think you can expect the AEC or other agencies under NEPA to say we will be better off without a plant. I think if that sort of decision is to be made, Congress will have to do it. You need some fundamental and specific ordering of priorities in specific instances.

Senator BAKER. It seems to me and I will not pursue the subject, because I am afraid there is a gap between your meaning and my understanding-that what you are saying is that NEPA becomes a mechanism for embellishing and extending administrative procedures, but that it will not change the ultimate result of the given proposal.

Mr. CRAMPTON. I think to a degree that is right on the fundamental questions. That is why I say NEPA, if it will be meaningful over the long haul, requires reconsideration and rethinking and coordination by the President, by those in the major executive departments, and by the Congress, of these fundamental questions of what is our national energy policy, and what fuel sources should be relied upon for meeting what is said to be the need.

In that, the White House and the President can play a role by giving out energy messages. The Congress can do something by providing more explicit statutory policies, and if things get bad enough, I suppose we could create a super energy agency that would have authority to deal with the entire field.

I think we are all fooling ourselves if we really think the Civil Aeronautics Board is going to stop its essentially promotional activities on behalf of local service air carriers-in bringing air service to small communities around the country-because these actions have