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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.
The court found that the Department of the Interior had not adequately considered available alternatives to the proposed sale of oil leases off the Louisiana coast.
It also found that the Department should have considered and weighed alternatives that were beyond the authority of the Department to implement, for example, adjustments in oil import quotas and changes in the Federal Power Commission's natural gas rate structure.
The judge suggests that perhaps "the impact statement function could have been assigned to the group designated by the President to coordinate and analyze overall questions for the executive branchthe Energy Subcommittee of the Executive Council.”
While the opinion states that “a rule of reason is implicit in this aspect of the law,” the potential ramifications of this case, for good or for ill, are a matter of interest to these committees.
The last case I will mention is the Quad Cities decision by the District Court for the District of Columbia on December 13, 1971.
In that case Judge Parker decided that the proposed issuance of an interim operating license for the Quad Cities Nuclear Generating Power Station at Cordova, Ill., was a major Federal action,” as contemplated by NEPA and, therefore, required full compliance with the procedures of section 102, including the preparation and circulation of a full and detailed environmental impact statement.
The AEC had argued that such an interim license did not constitute a "final agency action” and, therefore, something less than full NEPA review was sufficient.
The AEC also argued that in the face of possible blackouts or brownouts, the public interest required the timely issuance of the license.
Thus, a question of equitable judgment is raised, balancing what the AEC believed to be the immediate and urgent public interest against the procedural requirements of NEPA.
The Quad Cities case also raised the issue of whether Federal actions undertaken prior to the enactment of NEPA should be treated any differently than those undertaken after the date of enactment.
The preponderance of case law indicates that they should not.
Thus, at more length that I had intended, I have tried to suggest some of the issues that are of interest to the two committees.
There are, of course, others. The committees are committed to the policy set out in NEPÁ: the creation and maintenance of "conditions under which man and nature can exist in productive harmony."
It may well be that NEPA and other environmental related statutes are carrying out that policy in the most progressive and efficient manner that can be devised.
It may be that further action by the Congress is necessary to provide additional guidance to the executive and judicial branches.
But, as I stated at the beginning, the purpose of these hearings is exploratory. We are here to learn.
Senator Hansen. Mr. Chairman, may I observe that I am deeply interested in the testimony that will be given by the witnesses this morning.
I regret that I will not be able to stay for these hearings, as the chairman knows, they were scheduled, I guess, rather late last afternoon, and I have a hearing in the Finance Committee this morning, that I had been committed to attend.
I simply wanted to let the very fine witnesses and those others here know that I will be reading the testimony of each of the witnesses and very much interested in what may be disclosed here.
I hope you will excuse me.
Senator BAKER. Senator Hansen, thank you very much. We appreciate your participation as long as you can, and we understand your problem.
Senator BELLMON. I have a similar problem, Mr. Chairman, and we have an important marking up of a bill in another committee, but I will have a staffman present.
Senator BAKER. Thank you, Senator Bellmon.
We have two witnesses here this morning. Before we turn to the testimony, I would like to thank Senator Buckley for his attendance.
He and Senator Gravel are the only members of both the Interior and Public Works Committees.
I happen to be a member of the Joint Committee on Atomic Energy, which is not involved in these joint hearings, but it is certainly involved in the subject matter.
Before we proceed to our first witness, I would like to put a copy of the National Environmental Policy Act into the record at this point.
(The act referred to follows:)
Public Law 91-190 91st Congress, s. 1075
January 1, 1970
83 STAT, 652
To establish a national policy for the environment, to provide for the establish
ment of a Council on Environmental Quality, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may National Inbe cited as the “National Environmental Policy Act of 1969". vironmontal
Polioy Aot of 1969.
Sec. 2. The purposes of this Act are: To declare a national policy which will encourage productive and enjoyable ha ony between man and his environment; to promote efforts which will prevent or eliminato damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.
DECLARATION OF NATIONAL ENVIRONMENTAL POLICY
Sec. 101. (a) The Congress, recognizing the profound impact of Pol1010s and man's activity on the interrelations of all components of the natural goals. environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a man. ner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.
(b) In order to carry out the policy set forth in this Act, it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may
(1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;
(2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings;
(3) attain the widest range of beneficial uses of the environment without degradation, risk to health or sa fety, or other undesirable and unintended consequences;
(4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice;
(6) achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities; and
(6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources. (c) The Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contributė
to the preservation and enhancement of the environment. Administration. Sec. 102. The Congress authorizes and directs that, to the fullest
extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act, and (2) all agencies of the Federal Government shall
(A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man's environment;
(B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by title II of this Act, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations;
(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action
should it be implemented. Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Fed
eral agency which has jurisdiction by law or special expertise with Copies of state- respect to any environmental impact involved. Copies of such ments, etc.; avail- statement and the comments and views of the appropriate Federal, ability.
State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of title 5. United States Code, and shall accompany the proposal through the existing agency review processes;
(D) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources;
(E) recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind's world environment;
(F) make available to States, counties, municipalities, institutions, and individuals, advice and information useful in restoring, maintaining, and enhancing the quality of the environment;
81 Stat. 54.