Page images

Proponents of the legislation do not believe that it provides a tremendously strong federal role. Mr. Russell Train, then chairman of the Council on Environmental Quality, told the Senate Interior Committee during the hearings in 1973 that S. 268 would not prevent the states and localities from making "the vast majority of public decisions over land use."23 The main purpose, it is argued, is to encourage the states themselves to adopt and carry out comprehensive regulatory plans, not to force a federal plan on the states. The Senate committee report described S. 268 as "enabling...legislation designed to require the states to gain the authority and ability to develop their own land use policies and to implement those policies. "24

While conceding that the administration's 1973 land use bill "does in some respect curb the complete discretion of the state government," Mr. John R. Quarles, Jr., an administrator at EPA, testified that he expects the state government to be "the critical decision making point."

I believe that in addressing the basic questions it is not wise to try
to bring one ideological cut-and-dried answer to any specific legis-
lative needs. Rather, each of these problems has to be viewed in its
own context. We have found that even in an administration that
has been making very serious efforts to place more of the responsi-
bility in the States and in local governments, there has been an
extension of the Federal authority in the environmental area
which seems to present a certain paradox.

I believe the key to the paradox is the recognition that in some of these areas, there are in the local and State political structures dynamics which do not adequately reflect and support and protect elements of the public interest.

The forces working in favor of business development are stronger, typically, in the local political structures. This is the basic reason why local zoning has failed to do the job in providing for good land use programs. The administration proposal is designed to recognize this developing legislative need by setting forth a framework within which there is a Federal role, an important Federal role....

However, at the same time, there is a clear focus on the State
government as the critical decisionmaking point in the process.
The results which will come out of this process will be predomi-
nantly controlled by the forces that operate within the State struc-
ture, through the State legislatures, at the State capitols.2


Senator Dewey F. Bartlett (R-Okla.) argued that a previous land use proposal would have aggravated problems of energy supply. In a press release on 7 June 1973 Senator Bartlett said:

In view of the Energy Crisis that our nation is facing, it would seem that a national land use plan would take into consideration the important aspects of mineral extraction and the siting of key facilities of overriding national interest....

S. 268 is aimed at the surface use of land and therefore would hinder exploration for underground resources whose existence and extent are now unknown. A conflict exists between a land use program that is surface oriented and those activities which are required to develop sub-surface resources. S. 268 will compound the difficulties of our nation's current efforts to discover and utilize domestic resources to ease our energy and metal shortage. We must not handcuff domestic potential in this area of grave need. 26

The Senate accommodated Senator Bartlett's objections during the 93rd Congress by passing his amendment, which included mineral exploration, development, and production in the process that a state must employ in its land use planning.27 In addition, the current Jackson bill (S. 984) contains an entirely new chapter about the siting of energy facilities. Senator Jackson explained that this chapter was

addressed to energy facility planning issues, not included in the
Senate-passed bill of last Congress. Title III encourages the devel-
opment of State energy facility planning programs as integral com-
ponents of the State land resource programs and establishes an
expedited Federal energy facility licensing program.... [The pro-
gram], established by Title III does not add to or pre-empt various
Federal agencies' licensing authorities, but instead provides a
streamlined procedure for obtaining those agencies' approvals or
disapprovals of energy facility license or permit applications....

The purpose of the title is not simply to remove uncertain constraints in energy facility siting but rather to provide for a more rational, balanced, open, and rapid siting decisionmaking....[The planning] must not be left solely to the necessary, but necessarily limited, vision and interests, shaped largely by economic concerns of utility board members or corporation executives or to the equally important, but sporadic, ad hoc, and often litigious, opposition of determined environmentalists. We can no longer countenance a facility siting process which selects sites solely on the economic basis of cost or on the political basis of least community resistance. 28

H.R. 3510 contains no comparable provision. It does, however, require consideration of "future energy, industrial, and commercial needs."29

Opponents contend that inclusion of these provisions is a small step in the right direction. They argue that both bills are still overweighted in favor of environmental concerns, and that this will create incalculable future costs in terms of energy deficiencies.

Environmental Protection

The proliferation of overlapping federal laws affecting the use of land causes problems. While proponents say that the purpose of regulating the use of land is to minimize adverse effects on the environment, critics of the land use proposals reply that various laws have already been enacted and programs inaugurated to accomplish this purpose. They cite as examples the Federal Water Pollution Control Act, the Clear Air Act, the Coastal Zone Management Act, the land use planning authority given the Department of Housing and Urban Development (HUD), and the powers of EPA. The Government Organization Manual lists numerous activities and agencies under the heading "Environmental Protection." Asked how the activities of these agencies would be coordinated under the administration's 1973 land use bill, Mr. John R. Quarles of EPA told the Senate Interior Committee in 1973 that, while some "mechanisms of integration" are outlined in the bill, the problem of coodinating these activities "is something that will have to evolve after whatever legislation is passed."30

A separate federal land use law is not needed to protect the environment, in the opinion of Mr. Lester Edelman, a congressional expert on pollution legislation. In a speech before the Practicing Law Institute, Edelman, counsel on the staff of the House Committee on Public Works, said, "I am amused" to hear the argument that land use legislation is needed to deal with pollution “because Congress has already taken this action. We have a land use act-it's section 208 of the Federal Water Pollution Control Act...." Under this provision, Edelman pointed out, “a regulatory program must be developed which can regulate the location, modification, and construction of any facility that may have discharges...,” and the plan must apply to all wastes generated in the area. Edelman continued:

Flood control planners, pollution control planners, site planners, land use planners, watershed planners--all have been going off in their own separate directions as if each were independent of and apart from the others, each with its own individual goals. There has been a proliferation of planning programs, all worthy in purpose, but little or nothing has been done to tie them together.

The Senate Interior Committee majority took up the subject of overlapping federal land use laws and problems of coordination in the June 1973 report to accompany S. 268:

The Committee believes laws already embodying policies with land
use implications or planning mandates-such as housing, pollution,
and coastal zone management laws-will be strengthened by the
increased land use authority required of the States in this Act. To
insure such a strengthening, and to insure that a State does not
"forum-hop" and use funds available under this Act to replace
funds available under other Federal laws the requirements of
which it wishes to avoid, Federal review would include three addi-
tional determinations: (1) The State land use program must be
coordinated with other planning activities and programs of the
Federal government; (2) the program must be coordinated with
the regulatory activites of all State agencies enforcing air, water,
noise, or other pollution standards and must assure that no viola-
tions of any applicable air, water, noise or other pollution stan-
dard or implementation plan occur in areas or uses within the
program's compass; and (3) the State must be participating in the
programs provided for in section 701 of the Housing Act of 1954,
as amended, and in the Coastal Zone Management Act of 1972.31

It is not certain whether or not the Ford administration will support a federal land use planning act during the 94th Congress. President Gerald Ford, in his state of the union message on 15 January 1975, urged Congress to restrain the growth of existing programs. He stated that he had "concluded that no new spending programs can be initiated this year, except for energy" and that he would "not hesitate to veto any new spending programs adopted by the Congress."32

Nevertheless the administration's position concerning the land use bill may not be absolute. Former Interior Secretary Rogers C.B. Morton told the Senate Environment and Land Resources Subcommittee that President Ford's opposition was based on the projected cost of the measure. Secretary Morton said that he disagreed with this position, and was doing everything he could to change the administration's policy.3 33

Another issue, reportedly unsettled within the administration is whether control of the land use program should be placed in the Department of Interior-where both bills currently place control-in HUD, or in the Department of Agriculture. 34

57-493 76 pt. 2 45


Jackson Bill, S. 984

The proposed Land Resource Planning Assistance Act of 1975 would establish a grant program designed to induce the states to plan for and undertake statewide land use planning. Appropriations for the basic state assistance program would be authorized at $100 million a year for eight years, with a federal share of 90 percent for the first five years and 66-2/3 percent thereafter. In addition, the act would provide $10 million a year for eight years, at 100 percent of cost, to Indian tribes to assist them to plan for tribal lands, and $2 million annually for eight years for grants for research and training in land resource planning and management. The grant programs would be administered by the Department of Interior.

State Land Resource Programs. The grants would be authorized for the purpose of assisting "each State in developing and administering a State land resource program for non-federal lands." 35 The bill defines an eligible state program as one

that meets eight criteria, within specified time limits.

For continued eligibility under the grant program a state would be required to establish a land resource planning process within three full fiscal years after enactment. This process would include the preparation and continuing revision of a statewide inventory of the land, water, and other natural resources of the state. In addition to this broad inventory, the state would also be required to prepare inventories of the environmental, geological, and physical conditions of the land that influence the desirability of various land uses. Natural or historic lands with important scientific, educational, recreational or esthetic value would also be included in the inventory. The state would also be required to compile, and update continuously, information related to population densities and trends, economic characteristics and projections, environmental conditions, trends, and directions, and extent of urban and rural growth. This planning process would be required to provide arrangements for the exchange of land resource information among the various state agencies, local governments and the federal government, and provisions would also be required for interstate consideration of land resource issues of more than local concern.36

Another condition of continued grant eligibility would be the establishment by law, within three full fiscal years of enactment, of a land planning agency that would have primary authority and responsibility for the development and administration of the state land resource program.- 37 The state would be allowed to designate as the land planning agency an existing state agency that participates in the Housing Act of 1954 38 or the Coastal Zone Management Act of 1972.39

« PreviousContinue »