Page images

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 ?
Senator HASKELL. Yes.

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.
Senator HASKELL. Thank you very much.
[The prepared statement of Mr. Marshall follows:]

[blocks in formation]


[ocr errors]

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

regulations on

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

93-145 0.73 - 20

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

[ocr errors]

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.

The same


is contained

in the three bills befor us today. It

suggests something ofthe impetus for the bills, yet to us

takes for

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

to engage

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 and

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

left to

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

a very

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)

« PreviousContinue »