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MAY 11, 1999, TUESDAY

SECTION: IN THE NEWS

LENGTH: 2611 words

HEADLINE: PREPARED STATEMENT BY
SENATOR FRANK MURKOWSKI
BEFORE THE SENATE ENERGY AND NATURAL RESOURCES COMMITTEE

BODY:

Welcome. Today we will receive testimony from George T. Frampton - President Clinton's nominee to head the Council on Environmental Quality (CEQ). Mr. Frampton was Assistant Secretary for Fish, Wildlife and Parks at the Department of the Interior (DOI) from 1993 until 1997.
Today's hearing has two purposes. First, Mr. Frampton will be testifying on behalf of the Clinton Administration on a number of legislative proposals to spend revenues earned from off and gas development on the Outer Continental Shelf or OCS: S. 25 - the Conservation and Reinvestment Act introduced by Senator Landrieu and me; S. 446 -- the Resources 2000 Act introduced by Senator Boxer; S. 532 -- the Public Land and Recreation Investment Act introduced by Senator Feinstein; S. 819 -- the National Park Preservation Act; along with the Administration's Lands Legacy Initiative. Second, Mr. Frampton's appearance will allow the members of this Committee to discuss the relationship between CEQ and the Federal land management agencies -- the Forest Service, the Bureau of Land Management (BLM), and the National Park Service (NPS). OCS Revenue Sharing Proposals/Lands Legacy
To date, the Energy and Natural Resources Committee has held one oversight hearing and three legislative hearings on S. 25, S. 446, S. 532, S. 819, and the Lands Legacy Initiative. We have heard from dozens of witnesses, though this morning will be our first opportunity to hear the Administration's position on the bills. The time the Committee has spent on this issue is indicative of its importance. I anticipate the Committee will continue to devote significant time so that it can report a bill to the Senate floor which reflects the disparate desires and needs of the members of this Committee.
While the Committee is working on this long-term funding proposal, President Clinton announced earlier this year the Lands Legacy Initiative which provides conservation funding for the Fiscal Year 2000. The Administration is claiming this proposal fully funds the Land and Water Conservation Fund (LWCF), which is authorized at $900 million for Federal land acquisition and the state-side matching grant program. However, many of the programs the President seeks to fund from the LWCF are not authorized uses of LWCF monies, such as the Forest Legacy program. Moreover, many of these programs are not even contained in the DOI appropriations bill, such as National Oceanic and Atmospheric Administration's (NOAA) marine sanctuary program. In large part, the proposal seeks to raid the LWCF to replace or supplement other Federal programs that should seek their own funding.
Within the Lands Legacy request, only $413 million for Federal land acquisition by DOI and the Forest Service is clearly authorized by the LWCF Act. This request is only marginally greater than historic funding levels for Federal land purchases. Last year, Congress appropriated $329 million for Federal land purchases.
Similarly, the Administration claims that the Lands Legacy Initiative p00 million for the state-side LWCF matching grant program. As I discussed with Secretary Babbitt in February, for six years this Administration has resisted bipartisan calls to fund the State-side portion of the LWCF to fund vitally needed state and local park and recreation programs. Despite the Administration's rhetoric that it funds these programs, this budget request does not provide such funding. Instead of supporting the Federal-state partnership established under the LWCF, the Administration seeks to subvert the process and bend the States to a Federal will.
First, the grants can only be used for land acquisition or open space preservation. The LWCF Act allows states and local communities to use LWCF grants for not only for acquisition but also for the development of recreation facilities. As we heard at earlier hearings, State and local governments' primary need is not for additional land purchases but for recreation development. The President's proposal changes the state-side program from a "recreation" program to an "open space" program.
Second, instead of allocating the money to the States pursuant to law and allowing the States to decide how to expend the grants, the proposal would make States compete against one another for funding. That is, DOI would determine what land the States should purchase and only those States that accede to DOI's dictates will receive funding. This fundamentally undercuts the policy in the present LWCF formula and the Federalism embodied in the LWCF Act. The proposal also seeks $50 million for state open-space planning grants. It is unclear exactly what this program will do.
The White House has claimed that these changes to the LWCF Act are minor tweaks. I disagree. I believe the Administration's Lands Legacy Initiative makes fundamental changes to the terms of the LWCF Act. Changes which are subject to the purview of the authorizing Committee -- this Committee.
President Clinton also has indicated that he intends to work with Congress to enact OCS revenue sharing legislation which would provide permanent funding, using OCS revenues, for a series of conservation programs. The Administration has promulgated a series of principles which it believes should be included in such legislation. I am eager to hear Mr. Frampton's description of these principles and how the Administration intends to address some of the difficult budget problems posed by these proposals.
CEO/NEPA
The second purpose for Mr. Frampton's appearance before the Committee is to provide the members of this Committee with an opportunity to discuss the relationship between the CEQ and the Federal land management agencies -- the Forest Service, the Bureau of Land Management (BLM), and the National Park Service (NPS). CEQ's involvement with the operations of these agencies originates from two sources: through fulfilling its responsibilities under the National Environmental Policy Act (NEPA) and as the President's principal advisor on environmental issues.
This Committee has a longstanding interest in the operation of N-EPA and the role of the CEQ. NEPA came out of the Senate Committee on Interior and Insular Affairs Committee -- predecessor of the Energy and Natural Resources Committee -- and was drafted by Senator Scoop Jackson, Chairman of the Committee. The Energy and Natural Resources Committee lost jurisdiction over NEPA and CEQ in 1978 during a Senate reorganization. Yet, NEPA and CEQ have had a disproportionate impact on the agencies within the Committee's jurisdiction.
Between 1992 and 1997, the Forest Service filed more Environmental Impact Statements (EISs) than any other Federal agency. Significantly, the Forest Service and the Bureau of Land Management annually complete the most number of Environmental Assessments (EAs). In recognition of NEPA's impact on the land management agencies, CEQ started -- but never completed -- a NEPA reinvention project which focused on three activities occurring on Federal lands: off and gas leasing, grazing, and timber management. All of these issues are within the jurisdiction of the Energy Committee.
Many of the members of this Committee hear repeatedly from public land users and representatives of Federal agencies about NEPA implementation problems, including the amount of time and money it takes to prepare and defend NEPA documents. The Forest Service, in particular, has incurred rapidly increasing unit costs associated with N-EPA compliance responsibilities.

NEPA is a unique statute. It has been described as the nation's environmental charter and sets forth policies and goals that today we all would agree seem both obvious and important. However, unlike the myriad of later, complex environmental regulatory statutes, NEPA is surprisingly brief.
A single section embodies the procedural requirements of NEPA. Section 102 of the statute requires that all Federal agencies, when proposing actions that will significantly affect the environment, study and consider a project's likely environmental impacts and take actions to minimize those impacts. Unfortunately, Congress provided little direction, either in the statute or its sparse legislative history, of what this requirement means. In the absence of such guidance, the courts were called upon to interpret this language. And courts, and lawyers, as judges and attorneys often do, have turned the brief language of NEPA into an expansive common law which frustrates agency decision makers, the public and, importantly, taxpayers and creates an uncertainty the drafters of NEPA did not contemplate. Most importantly, Federal land managers as environmentally forward-thinking as former Forest Service Chief Jack Ward Thomas have testified to instances in which rising NEPA compliance costs are confounding, not enhancing, enlightened resource stewardship.
It was the courts who decided what Federal agency actions require compliance with NEPA and what level of compliance is mandated. It was the courts who dictated what impacts and alternatives an agency must consider in a NEPA document. It was the courts who told the agencies when and how they must solicit public comment on NEPA documents. It was these court decisions interpreting the scope of NEPA which formed the basis for the 1978 CEQ NEPA regulations. And, it continues to be, court decisions interpreting CEQ regulations with which Federal agencies must comply.
What NEPA means to agency decision makers cannot be found in the statute, nor in the regulations, but in the thousands of judicial rulings interpreting NEPA -- often in conflicting, or at least unpredictable, ways. It is this intricate set of procedural NEPA requirements developed through nearly three decades of judicial rulings that dictate how Federal decision makers meet the mandates of NEPA. Despite this, almost no Congressional or Administration effort has been made over the past three decades to confront this changing reality and to assist the Federal land managers, and other Federal agencies in complying with NEPA. NEPA has been amended once, and it was a minor amendment. What statute which impacts the actions of every Federal agency only has been amended once in 30 years? Whenever the possibility of improving or modernizing NEPA is mentioned, CEQ has been quick to respond that no changes to the statute are necessary.
Further, since November 1978 when CEQ first promulgated implementing regulations, those regulations have been amended once -- two months later in January 1979. For over twenty years, CEQ has not changed its implementing regulations. As we all know, the world has changed significantly in twenty years, yet CEQ has felt no need to change its regulations despite these changes and the judicial rulings on the meaning of NEPA. While CEQ has periodically issued guidance memoranda to one or another agency that found itself in dire need of direction, these memoranda have seldom, if ever, been subject to public review or comment.
This inactivity -- on all levels-- causes me to question the role of CEQ and whether or not the Senate even needs to confirm Mr. Frampton as a CEQ chair. It is appropriate for President Clinton to have an environmental policy advisor of his choosing in the White House. However, there appears to be no need for that to be a Senate-confirmed position.
As evidenced by CEQ's actions, and inactions, over the past 6 years, CEQ's purpose is apparently not to make N-EPA work better. Rather, CEQ's purpose is to make environmental policy for the White House. The Chair of CEQ has been actively involved in numerous activities over this time that have nothing to do with whether or not NEPA works -- everything from the designation of the Grand Staircase- Escalante National Monument in Utah to the determination of timber sale levels in our national forests. During that same time, there has been no improvement in the operation of NEPA. Indeed, Congressional requests and suggestions for bipartisan approaches in this area have gone unanswered.
The members of this Committee have been told repeatedly by the Executive Branch, and Mr. Frampton may be no exception, that any problems with NEPA are caused by agency implementation of the statute and that administrative reforms taken by the agencies will remedy these problems. This explanation is, at least, only part of the solution. Administrative reforms can only go so far to address the issues associated with NEPA implementation by the Federal agencies. Administrative reforms can attempt to make the process work better, but they cannot fully address the procedural requirements and mandates imposed by the courts. Only Congress can do that. It may be time, after nearly 30 years, for Congress to look more closely at how the courts have interpreted the requirements of N-EPA and for Congress to make a decision about whether or not those requirements are consistent with Congressional intent. This responsibility is not just Congress' but also the Federal agencies. Every time a Federal agency representative comes before Congress and testifies that poor agency management is the source of complaints about the NEPA process, she avoids her responsibilities to the American people. Federal agencies are on the front line of NEPA compliance. Federal agencies know what administrative reforms can and cannot address. Federal agencies know what court orders do not make sense or can't be addressed by administrative changes. It is the budgets and personnel of Federal agencies who are being stretched to the limit as more and, more judicial decisions dictate what NEPA requires. And, it is Federal agencies who have an obligation to come to Congress and seek assistance when legislative action is needed.
As we enter the twenty-first century, the country is a much different place than it was in 1970. Environmental protection is not a new idea or one, certainly, that we will neglect. We are committed to the public process of environmental protection. Federal agencies confront a much different reality than 30 years ago. Federal agencies must comply with increasing obligations imposed on them by statute, regulations, and the courts. At the same time, Federal budgets and personnel are shrinking. This new reality puts Federal agencies in an unenviable position -- having to balance ever increasing demands with decreasing resources. Dally agency struggles with NEPA compliance evidence this new reality. It is time for both the Executive Branch and Congress to take this 30 years of experience and look for ways to do things better.
Yet, based on CEQ's previous inactivity, I fear that Congress may embark on this journey without the White House. In the Clinton Administration, CEQ has done little, if anything, to address the day- in and day-out problems NEPA poses for Federal land managers. During this same period, CEQ has focused its attention on the operations of the Federal land management agencies within the jurisdiction of this Committee -- the Forest Service, the Bureau of Land Management and the National Park Service. This Committee has learned firsthand that the authority to dictate the future of this country's public lands lies not with the Secretary of the Interior and the Secretary of Agriculture but with the Chairman of CEQ. To pretend otherwise, ignores the power CEQ possesses to lord over Federal land managers. Accordingly, if Mr. Frampton is confirmed as Chairman of CEQ, today will be the first of what I anticipate to be numerous appearances before the Senate Committee on Energy and Natural Resources to discuss Federal land management issues.
END

LOAD-DATE: May 12, 1999

Document 6 of 92.


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