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Why is it that you assume that the Congress of the United States does not represent the public will when we legislate, but does represent the public will, or the only repository of the public will, with regard to the decision on the pipeline?
Mr. MARSHALL. I don't believe that I made the first statement. I do believe that the Congress represents the public will.
I am inquiring into the methods by which Congress intends to elicit the public will in the case of these bills. I am asking—I hope modestly—whether or not Congress is prepared to consider a very much more extensive series of hearings than this rather hurried effort in Washington, D.C.
Senator HASKELL. Senator Jackson already announced we are having another hearing on the 27th of this month.
Mr. MARSHALL. In Washington ?
Mr. MARSHALL. But you don't at this point, if I understand it, intend or have not decided to hold a series of meetings in different states.
Senator HASKELL. That was not decided.
In any event, Senator Jackson is the committee chairman. I am chairman of the subcommittee. That will be up to him.
Senator McCLURE. I have no further questions.
STATEMENT PREPARED FOR THE SENATE COMMITTEE ON INTERIOR AND
Mr. Chairman, Members of the Committee. I am David Marshall,
Coordinator of Environment:Pittsburgh, an action group
in 1970 which has been involved since then in putting on
Pittsburgh's Environmental Teach-In, and in local projects
in parks, streams, rivers and the inner-city.
My remarks concern s. 1040, S. 1041 and S. 1081.
My group cannot afford to send a
representative to testify at
different hearings on different parts of the same bills. If there
are hearings on rights of way they shouid
be on rights of way
bills or on the whole bills in which rights of way are embedded.
But rights of way cannot for long be intelligently discussed
without reference to their context. My remarks therefore go
beyond the Chairman's expressed preference for discussing rights
of way only in these hearings.
No one denies that rights of way legislation and administrative
them are incoherent. Yet that they are incoherent
is not itself unintelligible. Legislation and its administrative
interpretation is a
a felt social need. Different
pressures on land use at different times have built up willy nilly
a patchwork quilt of rights of way legislation. The attempt to
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detect a pattern and
to plan to reduce in future its dazzling
variety is therefore laudable. This is what we take to be the
fundamental intent of these bills --and as an example I refer
common corridors concept of
of S. 1081. Yet the
incoherence is not without merit. Who would have thought that
an old law passed for a diff :rent purpose at a
time when a different
and less powerful technology was
to hand would have been used
to stop an Alaska pipeline 50 years later?
I refer to the Mineral
Leasing Act of 1920. Yet we support the efforts to stop the pipeline,
and are therefore grateful for this particular incoherence. If
the M.L.A. had given the Secretary of the Interior carte blanche
to permít whatever rights of way were required, the damage to
public lands would arguably have been greater. Yet this is precisely
what these bills propose to do: S. 1040, Sec.122;S.1041, Sec.402;
S.1081, Sec.3. As I hope to show, the intended controls on this carte
blanche are inadequate. But first, I wish to explore the Alaska
pipeline problem and its relationship to these bills.
Senator Stevens is quite explicit, about this.
In Cong. Record S.3006/7
February 21, 1973 he argues that the energy crisis which exists
will be solved by S. 970, by permitting the Alaska pipeline to be
built by the simple expedient of giving the Secretary power to
establish whatever width of right of way is required to build it.
in the three bills befor us today. It
suggests something ofthe impetus for the bills, yet to us
granted what is yet to be proved: first, that the crisis exists, and
second that the Alaska pipeline is the appropriate solution.
Congressman Meeds is also explicit, but has a more subtle argument.
In Cong. Record 1.1108 February 22, 1973, in connection with H.R. 4651, he says that "it is not in the public interest for us
in a debate with the courts (over whether or not the M.L.A. permits
the Secretary to grant whatever right of way width is required)" and that by granting such authority by Act of Congress "the administrative choice of a pipeline route (is not affected by Congress but by]
those seeking the permit, the Secretary of the Interior and ultimately,
the courts:"Senator Jackson elaborates on this argument. In Cong.
Record s. 3751 he says that "the (recent decision of the D.C.Circuit
Court) did not
to grips with the challenge to the pipeline
under NEPA" and that "these kinds of
issues are ones into which
Congress should not interpose its judgment except for the most
compelling reasons." Further, in his March 1 press release, he
is "opposed to congressional authorization of the pipeline for Alaska
or anyplace else. Yet this same press release lets the cat out of the
bag. "it is outrageous that we have been unable to get a decision
that involves one-fourth of all the known oil reserves possessed by
the United States when we're confronted by a massive requirement to import
petroleum from foreign sources" and again " (he would nog'rule out
Congressional intervention on the pipeline or any other vital energy
matter if litigation should go
on without resolution."
For opponents of the Alaska pipeline, these ideas constitute threats.
NEPA requires only an impact statement.
It does not require that
the impact statement be full
or complete, much less that it show
unambiguously that the social benefits from a proposed action
outweigh its social costs.
I am arguing, then, that a decision on
the Alaska pipeline is one
that must be made by Congress. The administrative machinery coupled
to the engine of private profits is still inadequate to ensure that
the public good is upheld if broadly-conceived. It is understandable
that Congress should prefer to establish broad policy, with details
the Administrative branch. But the danger is that a succession
of administrative decisions which taken in isolation may appear to
be no bad thing lead to a
total of decisions which is
bad thing indeed.
In economics, this is familiar as
the fallacy of
composition. When this happens, and the agency concerned has made
a bad decision, it has entered the domain of broad public policy,
whereas such policy, whether good or bad, is surely the prerogaiive
of Congress. This
cannot be escaped by leaving it up to the agencies
and the courts. To the extent that these bills imply an intent to
establish a Congressional policy
--one of support for the building of
the pipeline, we are opposed to them. But our opposition goes beyond
this particular controversy. To explain the reasons for our
concern, then, we wish to look at the bills' broader purposes.
is the least broad, concerning as
it does rights of way only.
Yet its provisons for protecting the environment are cursory at best
--Sec.5(d) (2) (A). S.1041 provides for the sale of public lands.
To our mind, the key phrase here is that of Sec.104 (a) (3) where
may be transferred out of Federal ownership if such disposal
"will serve important public objectives which cannot be achieved
prudently or feasibly on land other than national resource lands
and which outweizh other public objectives and values, including
recreation and scenic values, which would be served by maintaining
such tract in Federal ownership." (underlining added)