far transcending the norm; and that judicial guidance, by virtue of the very nature of the litigation process, has been essentially happenstance. A significant consequence is that the boundaries of an agency's implementation responsibilities are in some instances no better defined than the conjectured results of the next judicial decision on the matter. In the present status of things, environmentalists and Government agencies are tempted to take sharply contrasting approaches to the existing situation. The environmentalist, contemplating an action by an agency for which the requirement for an environmental statement exists, attempts, by freedom of information requests, agency administrative action, or by lawsuit, to get the maximum conceivable environmental review of the facility or action. He feels he must attempt to reopen the early beginnings of the facility in order to assess whether a pre-NEPA facility should have been built at all, or a pre-NEPA chain of events should ever have been started. At the same time, he looks toward the future and attempts to require an assessment of every conceivable long-term effect of the contemplated action, suggesting that nothing should be done until all of the developments can be identified and evaluated.

The agencies of Government may succumb to the temptation to regard the present situation as either temporary or transitional. They may thus be in the unfortunate position of reacting to immediate circumstances without appreciation of a long run, overall procedural strategy for environmental evaluation. While we can all make educated guesses at what the structure of the environmental review process will be in the next few years, there is a growing possibility that, with respect to major and significant Federal actions, we are wasting valuable time and valuable resources if, in fact, we are individually off on the wrong track, or are not proceeding as Congress intended or expects.

A congressional legislative strategy that includes throwing the arena open by the broad language of the present statute implies a willingness of Congress to maintain an overview and willingness to assist in the more detailed fashioning of the approach to the environment as the need arises.

It is a pleasure for me to attempt to contribute to such efforts.

The Calvert Cliffs decision was handed down by the courts in August. On September 9, the AEC promulgated its new regulations which were regarded as stringent by both industry and by environmental groups. There was some concern on the part of industry that the AEC had overreacted to that decision. I think it is a fair statement that most environmental groups were satisfied, and perhaps surprised, by the stringency of those regulations.

We thought that we could live with those regulations. It was our intention to make NEPA workable. The problem that we faced at the time was of a number of plants that were caught in the transition, plants that were about to be completed, and for those plants, we established certain special provisos.

One proviso permitted the plant to be operated at 20 percent of power, in order to go through testing and startup, so that if there were difficulties in running the plant, those difficulties would be brought out as rapidly as possible. This is a normal procedure in the case of

nuclear plants, and that 20 percent of power was taken to be a precautionary action, which would permit adequate testing, and would mitigate the delays which would occur in the period before a final environmental statement could be published.

Similarly, the Commission reserved to itself, by an affirmative vote of the Commission, to go above the 20-percent power level in the case of a clear public need for more power. Under no circumstances would we go above a 20 percent, unless there was a demonstrated public need testified to by public officials.

We are at the present time facing one of those possible situations in the Midwest this summer.

We thought that the regulations of September 9 were workable. I think they were widely regarded as workable. The Quad Cities decision raised some apprehensions, because the court in that case decided that the AEC should not even permit partial power in any facility until the final environmental report was in. We believe also that unduly restrictive action moves against the flexibility of the AEC, that it does not coincide with the realities we face today, so we have been concerned about the implications of Quad Cities, and that concern has intensified as a result of the situation we perceive to be prospective in the Midwest this summer, and to some extent in the Southeast.

The Midwest is particularly critical because of the low proportions of reserves available and because so much of the new capacity happens to be nuclear. I will quote to some extent from my statement starting on page 5.

Senator BAKER. Before you do, Doctor, would you care to elaborate a little further what you mean by Quad Cities not accommodating the realities of the situation?

Dr. SCHLESINGER. Proper testing is a necessity to assure safe operation of these plants. It requires a period of at least 8 weeks to build up to its higher levels of power. One must assure that the thermal balance is correct, that the coolant is working as expected, that the instrumentation does operate at a high temperature within the specified levels of tolerance. Each plant is subjected to a very stringent workout before it is permitted to go to commercial operations. By permitting this testing period, we would be able to get some of these facilities on the line before the peak power demand in the Midwest this summer.

That is the principal problem that we face.

Senator BAKER. The realities then being the necessity for testing under operating conditions, and/or the necessity to make power.

I am not sure whether Quad Cities is failing to meet the realities of the circumstances, of the situation, whether it means according to your explanation that it fails to give you necessity for partial power testing, or it fails to meet the desirability of meeting the peak load in the summer, or both.

Dr. SCHLESINGER. It is both. At the time we wrote the regulation, we felt it was essential to permit plants to go through the testing period. Whether or not there would be a power emergency was something we could not foresee at that time.

As it turns out, we fear there will be a power emergency in the Midwest, and consequently, it is both problems that we now face with regard to Quad Cities.

Senator BAKER. But there are really two problems?

Dr. SCHLESINGER. Yes, sir.

Senator BAKER. One is that you have to plan at partial power, to demonstrate design verification and safety, and the other, you need to do what the plant was intended to do?

Dr. SCHLESINGER. That is right. Those are two separate problems. Senator BAKER. But AEC under Quad Cities is permitted to do neither of those things?

Dr. SCHLESINGER. Yes, sir.

Senator BAKER. Can you give me some estimate of how long it takes to bring the plant on the line to operating capacity, after you commence power testing?

Dr. SCHLESINGER. In the past, the minimum time has been & weeks to get substantial volume of power out of a reactor. Now, if there are difficulties in terms of discovering deficiencies in the hardware, then it may take an extended period of time, up to 5 or 6 months, so there is no certainty that even if we were able to permit power in the month of April, that the Quad Cities plant would make a contribution, a major contribution, to solving the power problems in the Midwest this

summer.

There is a very high probability, however, that that will be the case. Senator BAKER. Since there are two problems involved, since they both stem from the Quad Cities interpretation of NEPA, but since they lend themselves to being treated separately, does the AEC have, or does it propose legislation that might amend NEPA in either respect or both?

Dr. SCHLESINGER. The question that Senator Buckley asked some time ago, the question of whether or not the legislation would amend NEPA as opposed to the Atomic Energy Act, is still under consideration. We are preparing legislation, and we think that the administration will send that legislation to the Hill promptly, and that legislation would permit us to deal with both problems. What legislation would do, essentially, is to write into the law the regulations adopted by the Commission on September 9.

Senator BAKER. Has AEC appealed the Quad Cities case?

Dr. SCHLESINGER. We have appealed the Quad Cities case. We had hoped we would get an expedited review of that case. The plaintiff in this case did not accommodate the Government's desire to expedite the case, and as a result, it is still pending in the courts. Hearings begin, I believe, in the middle or the end of March.

Senator BAKER. I will not pursue this much further. You have Mr. Hoffmann, your general counsel with you, for whom I have great respect.

This is a legal drafting problem, but I am curious to know a little more about how you amend the Atomic Energy Act and have any affect on section 102 of NEPA, unless you amend NEPA in the process of amending of the Atomic Energy Act.

Dr. SCHLESINGER. Well, NEPA, is a broad statement of social policy, and it would be more clearly defined. Now, as you know, in the

NEPA there was a statement in section 103, that all agencies of the Federal Government shall review their present statutory authority, administrative regulations and current policies and procedures for the purpose of determining whether or not there are any inconsistencies which would prohibit full compliance with the purpose and provisions of the act. That section required proposal to the President not later than July 1, 1971, of such measures as might be necessary. NEPA recognized that there was a broad statement of social policy, and that there would be need for refinement.

The Calvert Cliff's decision came after the date for submission specified in the law, and we were able to adjust to the Calvert Cliffs decision. What has been difficult to adjust to is the Quad Cities decision, in light of the prospective emergencies this summer.

Senator BAKER. Nevertheless, is it your view that not operating Quad Cities is an action that will have material impact on the environment?

Dr. SCHLESINGER. The affidavits that were presented to the courts indicated that there might be some impact on the reproductive habits of two major species of fish in the Mississippi.

Senator BAKER. I am not talking about operation. I say the stopping of the Quad Cities.

Dr. SCHLESINGER. Yes, indeed. The Illinois Pollution Control Board has specified that the operation of Quad Cities would be desirable in that it would be permitting the shutting down of some old fossil-fuel plants.

Senator BAKER. In addition to that, in addition to preventing the shutting down offending fossil-fuel plants, it contributes to a possible power shortage or blackout.

It occurs to me that 102 statements of the act as it now is drawn might very well be required before the Federal Court could order a shutdown of such a facility.

I wonder if, for instance, the Federal Court might not have been required to file 102 statements on Quad Cities.

Now, that is something I expect Mr. Hoffman would have to talk about.

Dr. SCHLESINGER. Mr. Chairman, your logic is quite clear on that point. Of course, the absence of electric power would have a detrimental effect.

Senator BAKER. I see we have another vote going, but before we leave again, lest the record appear to reflect a facetious attitude on my part toward that question, I want to make it clear that I am entirely serious, but I think 102 statements of NEPA may well be required, not only when an action is proposed, but when an action is present, because the Federal judiciary is, in fact, a Federal agency.

I wonder if, in fact, the missing ingredient in the proceedings has not been a requirement for alternatives to enjoining the operation of plants.

Dr. SCHLESINGER. With separation of powers, Mr. Chairman, I think you will find it hard to discover a lead agency.

Senator BAKER. Well, there may be a quarrel with that.

Well, if my colleagues agree, we will recess now for only such time as we need to go to the floor to vote and return.

(Whereupon, the hearing was in recess.)

AFTER RECESS

Senator BAKER. The committees will resume the hearing.

I apologize to the witness for the interruption. I expect that we have about 45 minutes before the next interruption, so if it is agreeable, we will try to complete Dr. Schlesinger's testimony.

Will you continue now with your statement?

Dr. SCHLESINGER. Yes, sir.

NEPA, in essence, is a broad congressional statement of social policy, coupled with a comparably generalized enjoinder that Federal agencies carry out their programs in conformity with those policies. It also contains a relatively specific direction for agency preparation of an environmental report analyzing each proposed action which may have significant environmental impact. The environment report-or impact statement-as the only "procedural" requirement of the statute, has been taken by the courts as the gage for measuring agency compliance with the overall policy announced by the Congress in NEPA. While this corresponds on its face with traditional concepts of judicial review, and seemingly imparts an element of certainty to the agency implementation process, the unsettling reality is that NEPA's sweeping scope, its broadly stated social goals, and its meager legislative history combine to leave both the agencies and the courts with a formidable task of devising a workable implementation regime.

A problem that has arisen as a result is the overproceduralization of NEPA, or rigid proceduralization. It is perhaps a dramatic example of Whitehead's "fallacy of misplaced concreteness."

These environmental statements are intended to deal with the particular facility or a particular project. They are not intended to evaluate the total environmental history of man, as it might be affected by a particular project; that is an interesting question, but it is not necessarily the question that has to be answered in an impact statement. We have had a number of problems, and these problems are addressed on pages 8 and 9 of my testimony.

The effect of the overproceduralization has led to the feeling that everything from the Garden of Eden to the Day of Judgment should be addressed in a single impact statement.

We have a number of problems. One problem is that of R. & D. R. & D. is designed to answer questions.

R. & D. represents a recognition of the fact that there are unknowns, that there are uncertainties, and that development work must be done to resolve those uncertainties.

In the case of R. & D. facilities, if the question was intended by the Congress that before you do any R. & D. work, that you must have the answers, that in itself is in conflict with the underlying perspective of R. & D.

We run into that problem with respect to the LMFBR R. & D. demonstration facility, which will be located in the Tennessee Valley, if I may refer to that aspect of the problem, Mr. Chairman. What we are attempting to do at the LMFBR demonstration plant is to go through the final phases of R. & D. to establish the economic and commercial, the technical, and the environmental aspect of that facility.