I would like to comment both on Title VIII of the Administration's proposed Energy Independence Act, S. 619, and on Title III, the energy facilities planning element of S. 984, the proposed Land Resource Planning Assistance Act introduced by Senator Jackson and co-sponsored by many of his fellow Senators.

OVERALL PROBLEM OF REGULATORY DELAYS

The energy facilities siting elements of these bills have the worthy objective, among other things, of expediting the siting and construction of needed additional electric power facilities. However, the principal cause of regulatory delays in siting and construction of new electric power capacity is not an absence of the right kind of state land use planning laws. Regular zoning laws as administered by state and local governments have generally been adaptive enough to permit utilities to find sites for electric power plants.

The most critical sources of regulatory delay today are a number of special-purpose Federal statutes, each enacted with a single worthwhile objective, but which together have become a Gordian knot of regulations and procedures required at both Federal and state levels.

EXAMPLES OF DELAY-CAUSING LAWS AND PROCEDURES

One such statute is the Clean Air Act with its court-ordered requirement for no significant deterioration of the air, with its allowance of state standards more restrictive than Federal standards, and with its provision for new source performance standards, which as fixed by the EPA often go far beyond public health and welfare requirements and make no allowance for regional, local, and transient conditions.

Another is the Federal Water Pollution Control Act, pursuant to which rigid and unnecessarily restrictive regulations have been adopted due, at least in part, to the lack of cost/benefit analyses being made before extensive and costly installations of questionable environmental value are mandated.

Another example is the Coastal Zone Management Act. This Act, as now administered, permits the development of state plans that can arbitrarily foreclose extensive areas of coastline to the siting of power plants, and then requires that an applicant for a Federal permit or license comply with the state coastal plan.

Then there is the Atomic Energy Act, which causes delays in building nuclear plants because of its very long and cumbersome licensing procedures.

And overall, there is the National Environmental Policy Act, which, as implemented by the Council on Environmental Quality and other Federal agencies and interpreted by the courts, has made the preparation and review of environmental impact statements a costly and time-consuming process that surely must go beyond the original intent of Congress.

Such controlling and restrictive Federal laws, plus clearances required from many agencies, such as the Corps of Engineers, Bureau of Land Management, Forest Service, Federal Aviation Agency, and so forth, have been the main sources of regulatory delay and frustration which currently beset electric companies.

Confronting us now is still another problem which could cause irreparable harm to the nation's nuclear energy program. That is the proliferation, in various forms, of nuclear moratorium measures at the state level. Although we believe they are in most instances unconstitutional, they could, if enacted, give rise to litigation which would cause further delays in the planning, siting, and construction of nuclear power plants. We believe that Congress should act promptly to prevent such delays by more carefully stating the Federal preemption of regulation in this field.

AUTHORITY OF THIS COMMITTEE

We are aware, of course, that this single Committee of the Senate does not have jurisdiction over all the subject matter to which have referred. Yet we believe it is important that each Committee in the Congress recognize the overall impact caused by the various special-purpose acts with which it deals.

This Committee, for example, has jurisdiction over the National Environmental Policy Act. One helpful amendment to NEPA which this Committee

could very well sponsor as an aid in siting power facilities would be a proviso declaring that once a state or local government had determined that a particular proposed use of land for an electric power facility was a permitted land use under state or local law, then the question of whether such land use should be permitted by Federal authority is not an issue to be considered or "second guessed" by a Federal agency in an Environmental Impact Statement required by NEPA. Such a prohibition against "second guessing" would be consistent with the philosophy expressed in Section 3 of S. 984 and would remove a needless source of delay and controversy in NEPA procedures.

PROPOSALS OF S. 619 AND 984 FOR FEDERAL PROCEDURES

Turning to the bills before you, they attempt to treat some of the Federal procedural problems by requiring that FEA act as a coordinator and expediter of the various Federal actions needed to license or otherwise approve energy facilities. We have no quarrel in principle with this proposed requirement. But it should be noted that everything these bills require the FEA to do could simply be required by Presidential executive order without legislation, since all of the individual agency procedures are left intact.

One of the most harmful provisions of these bills is that they both require that all Federal authorizations be obtained before the start of construction. That provision is even more restrictive than existing practice and would lead to intolerable delays. It should be deleted in both bills.

Also, it should be noted that the detailed additional Federal procedures proposed by these bills, unless very carefully administered, could be counterproductive by simply adding another layer of delay-causing Federal procedures. The Institute believes, however, that much could be accomplished by a relatively simple provision authorizing the FEA to act as an expediter and coordinator of Federal agency procedures for energy facilities. We believe that this authorization should be provided as soon as possible, either by executive order or by a simplified version of the legislation before you.

KIND OF LEGISLATION NEEDED TO EXPEDITE

Such action alone, however, is clearly not enough. The root causes of regulatory delay can be attacked only by dealing substantively with the several single-purpose acts that in the aggregate tie up the building of new power facilities. There are two ways of dealing with these laws: One is by amending each single-purpose act to remove language which is needlessly restrictive and to insert language that mandates a balanced approach to energy-environment matters one example being the particular amendment to NEPA I suggested earlier. The other is by establishing a single, one-stop Federal siting agency that would take jurisdiction where Federal approval of a project is required. Such an agency would use one application form; it would hold one hearing in which all interested Federal agencies and parties before the Federal agencies would participate; and it would exercise authority to modify the requirements of other Federal agencies when found to be in the public interest to do so. This would be the one-stop approach which both bills before you provide for state action, but do not mandate for Federal action.

Whether or not such legislation is passed, it would be in the national interest to enact emergency-type legislation under which the President, after finding that a particular energy facility is urgently needed to meet national energy requirements, could direct the Federal Energy Administration to assert jurisdiction, consider the views and recommendations of the Federal, state, or local agencies involved, and then license the facility expeditiously, granting waivers of particular Federal, state, or local laws and regulations if found to be necessary in the public interest.

FEDERAL CONTROL OF STATE ENERGY FACILITIES SITING PROCEDURES

I would also like to comment on one of the major points of difference between the two bills before you with respect to their teratment of state siting

procedures. The Administration bill, S. 619, provides for Federal imposition of a siting program upon any state which fails to develop its own program. There is no such provision in S. 984. The Institute believes the approach adopted in S. 984 is preferable.

But in our view even S. 984 goes too far in specifying the precise kind of energy facility planning program required of the states for entitlement to the grant program. Many states have adopted siting or land use legislation to deal with problems the electric utility industry faces in siting plants. These new state procedures should be given time to work before being put into a Federal mold which may require that the state effort be undone. Other states should be allowed to develop programs which fit their individual needs.

We believe the detailed provisions in both bills aimed at controlling state actions would be a divisive source of contention and litigation between state and Federal authorities. This could arrest the already significant progress being made by the states in enacting energy facility siting legislation. At the very minimum, S. 984 should be amended to limit the denial of grants to only the energy facilities planning portion of the state program if this portion of the state's program is shown to be deficient. More fundamentally, however, the criteria for entitlement to the grants for energy facilities siting programs should be simplified to allow for greater flexibility in state programs.

NATIONAL ENERGY FACILITY PLANNING REPORT

We support the concept of a National Energy Facility Planning Report to be prepared by the FEA in consultation with states, industry, and appropriate Federal agencies. However, we believe that the Report can be prepared from information and data which are already available or easily obtainable. Federal and state reporting requirements on our industry are already extensive and costly. It is important to avoid duplication, tieing up additional personnel, and the expenditure of additional funds in the gathering and reporting of information already available in other reports. We therefore recommend that the bills under consideration be amended to direct the FEA to prepare the Report insofar as possible from information already reported to Federal or state agencies or available from the utilities in an already compiled form.

SUMMARY

In summary, although there are positive aspects to the bills which this Committee is considering today, several provisions of them would compound the problem of siting energy facilities. Moreover the bills fall short of coming to grips with the core problems which must be solved if we are to expedite the building of electric power facilities and meet the energy needs of the nation. We urge consideration of the kinds of legislation which I have suggested in this statement as a necessary and desirable adjunct of a national energy policy.

[Whereupon, at 12:45 p.m., the hearing was recessed, to reconvene at 2 p.m.]

AFTERNOON SESSION

Senator FANNIN [presiding]. The hearings will come to order. I apologize for the delay. The first witness this afternoon is Chuck Clusen of the Sierra Club and Marc Messing of the Environmental Policy Center.

Mr. MESSING. I am Mr. Messing. Mr. Clusen will be here momentarily.

Senator FANNIN. Please proceed as you desire.

STATEMENT OF MARC MESSING, ENVIRONMENTAL POLICY CENTER

Mr. MESSING. We have prepared detailed comments on title III of S. 984, including a thorough examination of the number of needed facilities which the legislation will address and a section-bysection analysis of title III itself. I will submit a lengthier statement next week and summarize our fiindings at this time. There are basically five separate issues which we address.

In examination of the legislation, we look at projected energy growth rates, at the needed number of energy facilities at the Federal role in energy siting on an emergency basis, and Federal licensing procedures. The justification for energy facility siting and/or planning legislation derives from projected levels of energy growth and development. Based on a recent analysis of the ERDA-Energy Reserach and Development Administration-model for projected energy growth rates, we would expect that both the ERDA and FEAFederal Energy Administration-projections are high.

While FEA projects an electric energy growth rate of 6.6 per cent annually through 1985, it is apparent from an examination of the ERDA data, that with an annual growth rate of 5.8 percent, installed per capita generating would increase more than threshold, 3.78, by the year 2000, while per capita electric energy consumption would increase more than fourfold, 4.12, and total electric generating capacity would increase more than fivefold, 5.12, and total electric energy production would increase almost sixfold, 5.63.

Based on these projections, per capita electric energy consumption would be expected to increase from a level of 7,800 kilowatt-hours in 1971, to a level of 32,210 kilowatt-hours in the year 2000. In the absence of supporting market analysis, these figures appear unrealistically high. The following tables indicate the relation of these growth rates to other trends in energy consumption.

Although the FEA justification paper for title VIII of the President's omnibus energy package estimated that 640 new electric generating plants must be in operation by 1985, which would be the equivalent of 200-1,000-megawatt nuclear plants and 150 new 800megawatt coal-fired plants and cited a list of attendant synthetic fuel plants, deepwater ports, transfer facilities, pipelines, transmission lines, and nuclear fuel cycle facilities. The perspective on these siting needs has changed substantially since the President's facility siting legislation was introduced several months ago.

Plans for oil shale and synthetic fuel plants have been revised substantially, the adjustment of load growth projections and rescheduling of nuclear powerplants have altered the need for nuclear facilities dramatically, while the consideration of nuclear energy centers to address safeguards problems has altered the siting requirements under consideration, deepwater port selection does not present a numerical siting problem, transfer facilities and other coastal developments must be accommodated within a framework of compliance with approved management plans, and in its more recent environmental statement on the Project Independence blueprint, FEA has even acknowledged that the number and mix of new

facilities needed to accommodate the Nation's energy demand in 1985 cannot be estimated in detail at this time.

In fact, if one were to take the original estimate of 640 new generating facilities needed and average this demand over the 50 States and the 10-year period involved, it would require the siting of little more than one facility, 1.28, per State per year. More importantly, it should be noted that of the 640 generating plants estimated to be needed by 1985, most are presumably under construction now, or in the final preconstruction stages, due to the 5- 9-year leadtime required. Many will doubtless be constructed as additional units on currently operative sites and many more can likely be sited on preacquired sites, and many have already been postponed due to adjusted load growth. Finally, it should not be overlooked that 21 States currently have coordinated powerplant siting laws, and these include many of the States with largest load demand: 45 percent of the electricity produced in 1973 was generated in only 8 States.

With regard to the Federal role in energy facility siting and planning assistance, we strongly believe that the Federal presence, and preemptive Federal authorities contained in title VIII of the President's energy package, are unwarranted in the pursuit of our national energy goals, and inappropriate in the formulation of our national energy policies, and we endorse the approach of S. 984 to integrate energy facility planning with other land use planning functions on the State and local levels.

With regard to the national energy report, if the Land Use Planning Assistance Act is, in fact, to strengthen States' authorities as it is intended, then it is important that the national energy report defined in section 305 be constructive as a tool to assist State planning and regional cooperation and not become an instrument of de facto Federal pressure upon the State planning process. For this reason, it is important to emphasize that the Federal report should aggregate and make available all pertinent data for use by Government agencies at all levels as well as public and private interests.

It should not be the function of the report to summarize, interpret, or suggest national energy goals. Although the national energy facility planning report might logically serve as a basis for the proposal of subsequent Federal energy plans, it is our feeling that they do not belong in the Land Use Planning Assistance Act and their inclusion would effectively alter the basic impact of the act.

With regard to expediting Federal licensing procedures in the context of S. 984, we similarly support the approach of sections 306 and 307, and believe that it is more important to coordinate existing Federal authorities, both within the Federal Government and with stage agencies, than to consolidate them. We will offer more detailed comments in our section-by-section analysis.

In conclusion, we believe that the need for energy facility siting has been exaggerated, and that the constraints on energy facility development are problems neither of land use per se, nor of necessary Federl concern. That concludes my formal statement. There is one additional point I might address, in view of some of the testimony