Senate Report 105-60 - ENVIRONMENTAL POLICY AND CONFLICT RESOLUTION ACT OF 1997

[Senate Report 105-60]
[From the U.S. Government Publishing Office]

Calendar No. 142
105th Congress Report
SENATE

1st Session 105-60
_______________________________________________________________________

ENVIRONMENTAL POLICY AND CONFLICT RESOLUTION ACT OF 1997
_______

July 31, 1997.--Ordered to be printed

_______________________________________________________________________

Mr. Chafee, from the Committee on Environment and Public Works,
submitted the following

R E P O R T

[To accompany S. 399]

The Committee on Environment and Public Works, to which was
referred the bill (S. 399), a bill to amend the Morris K. Udall
Scholarship and Excellence in National Environmental and Native
American Public Policy Act of 1992 to establish the United
States Institute for Environmental Conflict Resolution to
conduct environmental conflict resolution and training, and for
other purposes, having considered the same, reports favorably
thereon with an amendment and recommends that the bill do pass.

General Statement

Background

The Morris K. Udall Scholarship and Excellence in National
Environmental Policy Act of 1992 was signed into law by
President Bush on March 19, 1992. The Act established the
Morris K. Udall Foundation for several purposes including: (1)
to award scholarships and fellowships to outstanding students
intending to pursue careers in the environment and internships
to outstanding Native Americans and Alaska Native college
students intending to pursue careers in health care and tribal
public policy; (2) to provide for a panel of experts to meet
annually to discuss contemporary environmental issues; and (3)
to establish a program for environmental policy research and a
program for environmental conflict resolution.
Although the Morris K. Udall Foundation was originally
charged with the task of establishing a program for
environmental dispute resolution, it has lacked the funding and
explicit direction thatwould enable it to run a program that
could provide conflict-resolution services. Thus, although the
Foundation has sponsored seminars and workshops on conflict resolution,
it has been unable to provide a program for environmental conflict
resolution.

Congressional legislation

On March 5, 1997, Senator McCain introduced S. 399, the
Environmental Policy and Conflict Resolution Act of 1997, which
was referred to the Committee on Environment and Public Works.
On July 24, 1997, the committee considered the bill, and
ordered it reported, as amended, by voice vote. Senator Thomas
voted against the motion to report the bill.

Summary of S. 399

As amended and ordered reported by the Committee on
Environment and Public Works, the bill includes one title with
eight sections amending the Morris K. Udall Scholarship and
Excellence in National Environmental and Native American Public
Policy Act of 1992 to allow the Morris K. Udall Foundation to
establish the United States Institute for Environmental
Conflict Resolution. The Institute would offer alternative
dispute-resolution services, including assessment, mediation,
and other related services to facilitate the resolution of
environmental disputes between parties without resorting to
protracted and costly litigation.

Section-by-Section Analysis

Section 1. Short title

Section 1 contains the short title.

Section 2. Definitions

Section 2 defines key terms used in the bill. Specifically,
this section defines an ``environmental dispute'' as a dispute
or conflict relating to the environment, public lands, or
natural resources.

Section 3. Board of trustees

Section 3 includes a provision to add the chairperson of
the President's Council on Environmental Quality (CEQ) as a
non-voting, ex-officio member of the Morris K. Udall Foundation
Board of Trustees. Adding the chairperson of CEQ to the Udall
Board's membership would reinforce the role of CEQ in
overseeing the dispute-resolution activities of the Institute.
This section further provides that the chairperson of CEQ would
not be eligible to serve as chairperson of the Board of
Trustees.

Section 4. Purpose

Section 4 establishes the United States Institute for
Environmental Conflict Resolution for the purposes of providing
assessment, mediation, and other related services to resolve
environmental disputes involving agencies and instrumentalities
of the United States. The bill provides that an additional
purpose of the Institute is to complement Executive Order
12988, signed February 5, 1997. Executive Order 12988 directs
Federal agencies to makegreater use of alternative dispute
resolution in litigation involving the United States.
In the past two decades, Federal courts have handed down
over 5,000 decisions on environmental litigation. Approximately
400 to 500 environmental lawsuits are filed each year in the
nation's Federal courts. In its Sixteenth Annual Report, CEQ
estimated that 85 percent of Environmental Protection Agency's
regulations are challenged at some time in the courts by
litigants who find the rules too stringent or too lax. In
short, resorting to the courts is all too common in
environmental disputes.

Section 5. Authority

Section 5 authorizes the Morris K. Udall Foundation to
establish the United States Institute for Environmental
Conflict Resolution and to identify and conduct appropriate
programs to provide assessment, mediation, training, and other
related services to resolve environmental disputes. The
Institute is intended to give stakeholders in environmental
disputes involving the Federal Government the opportunity to
resolve their disputes outside the courtroom through the use of
the mediation and dispute-resolution services.
When the Udall Foundation was established in 1992, it was
charged with the task of establishing a program for
environmental dispute resolution. The Foundation has sponsored
workshops and seminars on conflict resolution; however, it has
lacked the explicit direction and funding necessary to provide
conflict-resolution services. This section provides the
direction for the Foundation to carry out environmental dispute
resolution.
Section 5 also directs the Institute to provide these
services, to the maximum extent practicable, using conflict-
resolution providers within the geographic proximity of the
conflict. This provision was included to promote the
Institute's use of dispute-resolution providers with special
knowledge of local disputes, wherever it is practicable to do
so, rather than the use of dispute-resolution providers from
outside the affected area who may lack a complete understanding
of localized or regional disputes.

Section 6. Use of the institute by a Federal agency

Section 6 authorizes Federal agencies to enter into
contracts and expend funds to obtain services from the
Institute for environmental conflict resolution. The Institute
is intended to use the payments received from agencies for its
services to fund operational expenses in the out-years when the
authorization of appropriations has expired.
Section 6 also requires a Federal agency to notify the
chairperson of the President's Council on Environmental Quality
when using the Institute. When a dispute involves two or more
Federal agencies, concurrence of the chairperson is required.
This provision is in no way intended to impede an agency's use
of the Institute's services. The chairperson is to indicate
concurrence or non-concurrence within 20 days of notification
by the agencies to use the Institute's services.

Section 7. Authorization of appropriations

Section 7 authorizes appropriations of $9,250,000 over a 5-
year period beginning in fiscal year 1998. Of the $9,250,000
total, the bill provides $3,000,000 for capital start-up costs
in fiscal year 1998 and $1,250,000 for each of fiscal years
1998 through 2002 for operational costs. This section provides
the necessary funding to carry out dispute resolution that the
Foundation has lacked in the past.

Section 8. Conforming amendments

Section 8 contains conforming amendments.

Regulatory Impact

In compliance with section 11(b) of rule XXVI of the
Standing Rules of the Senate, the committee makes the following
evaluation of the regulatory impact of the reported bill.
Given the incentive-based and non-regulatory nature of the
bill, the regulatory impact of the reported bill is expected to
be minimal. S. 399 adds no new regulatory burden because use of
the Institute is voluntary. Thus, the bill's regulatory impact,
if any, should be de minimis.
The bill would not have any impact on the personal privacy
of individuals.

Mandates Assessment

In compliance with the Unfunded Mandates Reform Act of 1995
(Public Law 104-4), the committee makes the following
evaluation of the Federal mandates contained in the reported
bill.
S. 399 imposes no Federal intergovernmental mandates on
State, local, or tribal governments. All of its governmental
directives are imposed on Federal agencies. The bill does not
impose any Federal Private Sector mandates either. The reported
bill will have no effect on the competitive balance between the
public and private sectors.

Hearings

No hearings were held on S. 399.

Rollcall Votes

Section 7(b) of rule XXVI of the Standing Rules of the
Senate and the rules of the Committee on Environment and Public
Works require that any rollcall votes taken during
consideration of legislation be noted in the report.
On July 24, 1997, the committee considered S. 399, and
accepted the Chafee amendment in the nature of a substitute,
which was further amended by the Baucus amendment. Senator
Chafee's motion to report the bill as amended was agreed to by
voice vote, with Senator Thomas voting ``no.''

Cost of Legislation

Section 403 of the Congressional Budget and Impoundment
Control Act requires that a statement of the cost of a reported
bill, prepared by the Congressional Budget Office, be included
in the report. That statement follows:

U.S. Congress,
Congressional Budget Office,
Washington, DC, July 30, 1997.
Hon. John H. Chafee,
Chairman, Committee on Environment and Public Works,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 399, the
Environmental Policy and Conflict Resolution Act of 1997.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Christina
Hawley Sadoti.
Sincerely,
June E. O'Neil, Director.
Enclosure.

Congressional Budget Office Cost Estimate

S. 399, Environmental Policy and Conflict Resolution Act of
1997, as ordered reported by the Senate Committee on
Environment and Public Works on July 24, 1997.
Summary: S. 399 would create an Institute for Environmental
Conflict Resolution within the Morris K. Udall Scholarship and
Excellence in National Environmental Policy Foundation. The
bill would authorize $4.25 million in fiscal year 1998 and
$1.25 million in each of fiscal years 1999-2002 to be
appropriated to the foundation's trust fund. The total $9.25
million in authorizations would result in about $2 million in
increased interest payments to the trust fund over the fiscal
years 1998-2002. The interest earned (but not the principal)
could be spent by the foundation without additional
appropriations and would therefore be subject to pay-as-you-go
procedures. In fiscal year 1998, spending subject to pay-as-
you-go procedures would total about $175,000.
S. 399 contains no intergovernmental or private-sector
mandates as defined by the Unfunded Mandates Reform Act (UMRA)
and would not affect the budgets of state, local, or tribal
governments.
Estimated Cost to the Federal Government: The estimated
budgetary impact of S. 399 is shown in the following table.

DIRECT SPENDING
[By fiscal year, in millions of dollars]
----------------------------------------------------------------------------------------------------------------
1997 1998 1999 2000 2001 2002
----------------------------------------------------------------------------------------------------------------
Direct spending under current law:
Estimated budget authority...................... 1 1 1 1 1 1
Estimated outlays............................... 1 1 1 1 1 1
Proposed changes:
Estimated budget authority...................... -- (\1\) (\1\) (\1\) (\1\) 1
Estimated outlays............................... -- (\1\) (\1\) (\1\) (\1\) 1
Spending under S. 399:
Estimated budget authority...................... 1 1 2 2 2 2
Estimated outlays............................... 1 1 1 2 2 2
----------------------------------------------------------------------------------------------------------------
\1\ Less than $500,000.

The costs of this legislation fall within budget function
500 (Education, Employment, Training, and Social Services).
Basis of Estimate: The Morris K. Udall Scholarship and
Excellence in National Environmental Policy Foundation was
established in 1992 to provide educational resources to promote
studies in the natural environment and Native American public
health and tribal policy. The foundation is operating expenses
and scholarship funds come from interest earned on its $20
million trust fund. S. 399 would create an Institute for
Environmental Conflict Resolution within the foundation, and
would authorize to be appropriated to the trust fund $4.25
million in fiscal year 1998 and $1.25 million in each of fiscal
years 1999-2002. The Institute would provide assessment,
mediation, and other related services to resolve environmental
disputes involving U.S. agencies.
Enactment of S. 399 would increase trust fund balances and
thus increase interest earned. CBO estimates that the trust
fund would earn approximately $2 million more over the 1998-
2002 period than would have been earned under current law.
These additional earnings would be spent on the capital
expenditures and operating expenses of the Institute created by
S. 399.
If the $9.25 million authorized by this bill were to serve
as an authorization of appropriations for the Institute--rather
than as an appropriation to the foundation's trust fund--CBO
estimates that the resulting outlays would total $2 million in
fiscal year 1998 and $9 million over fiscal years 1998-2002.
Under such a scenario, these outlays would be considered
discretionary spending and would not be subject to pay-as-you-
go procedures.
Intergovernmental and Private Sector Impact: S. 399
contains no intergovernmental or private sector mandates as
defined in UMRA and would not affect the budgets of state,
local, or tribal governments.
Estimate prepared by: Federal cost--Christina Hawley
Sadoti; Impact on State, local, and tribal Governments--Marc
Nicole; Impact on the private sector--Patrice Gordon.
Estimate approved by: Paul N. Van de Water, Assistant
Director for Budget Analysis.

Changes in Existing Law

In compliance with section 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill
as reported are shown as follows: existing law as proposed to
be omitted is printed inside of [bold brackets]; new matter
proposed to be added to existing law is printed in italic; and
existing law in which no change is proposed is shown in roman.

UNITED STATES CODE

TITLE 20--EDUCATION

CHAPTER 66--MORRIS K. UDALL SCHOLARSHIP AND EXCELLENCE IN NATIONAL
ENVIRONMENTAL POLICY FOUNDATION

* * * * * * *

Sec. 5602. Definitions

For the purposes of this chapter--
(1) * * *
* * * * * * *
(4) the term ``environmental dispute'' means a
dispute or conflict relating to the environment, public
lands, or natural resources;
[(4)](5) the term ``Foundation'' means the Morris K.
Udall Scholarship and Excellence in National
Environmental Policy Foundation established under
section 5603(a) of this title;
(6) the term ``Institute'' means the United States
Institute for Environmental Conflict Resolution
established pursuant to section 7(a)(1)(D);
[(6)](7) the term ``institution of higher education''
has the same meaning given to such term by section
1141(a) of this title;[and]
[(7)](8) the term ``State'' means each of the several
States, the District of Columbia, Guam, the Virgin
Islands, American Samoa, the Commonwealth of the
Northern Mariana Islands, the Republic of the Marshall
Islands, the Federal States of Micronesia, and the
Republic of Palau (until the Compact of Free
Association is ratified)[.]; and
[(5)](9) the term [``fund'']``Trust Fund'' means the
Morris K. Udall Scholarship and Excellence in National
Environmental Policy Trust Fund established in section
5606 of this title[;].

Sec. 5603. Establishment of Morris K. Udall Scholarship and Excellence
in National Environmental Policy Foundation

(a) Establishment.--
* * * * * * *
(b) Board of Trustees.--The Foundation shall be subject to
the supervision and direction of the Board of Trustees. The
Board shall be comprised of [twelve]thirteen trustees, eleven
of whom shall be voting members of the Board, as follows:
(1) * * *
* * * * * * *
(7) The chairperson of the President's Council on
Environmental Quality, who shall serve as a nonvoting,
ex officio member and shall not be eligible to serve as
chairperson.
* * * * * * *

Sec. 5604. Purpose of Foundation

It is the purpose of the Foundation to--
(1) * * *
(4) establish a Program for Environmental Policy
Research and an Environmental Conflict Resolution and
Training at the Center;
(5) develop resources to properly train professionals
in the environmental and related fields;
(6) provide educational outreach regarding
environmental policy; [and]
(7) develop resources to properly train Native
American and Alaska Native professionals in health care
and public policy[.]; and
(8) establish as part of the Foundation the United
States Institute for Environmental Conflict Resolution
to assist the Federal government in implementing
section 101 of the National Environmental Policy Act of
1969 (42 U.S.C. 4331) by providing assessment,
mediation, and other related services to resolve
environmental disputes involving agencies and
instrumentalities of the United States; and
(9) complement the direction established by the
President in Executive Order 12988 (61 Fed. Reg. 4729;
relating to civil justice reform).

Sec. 5605. Authority of Foundation

(a) Authority of Foundation.--
(1) In general.--
(A) * * *
* * * * * * *
(D) Institute for environmental conflict
resolution.--
(i) In general.--The Foundation
shall--
(I) establish the United
States Institute for
Environmental Conflict
Resolution as part of the
Foundation; and
(II) identify and conduct
such programs, activities, and
services as the Foundation
determines appropriate to
permit the Foundation to
provide assessment, mediation,
training, and other related
services to resolve
environmental disputes.
(ii) Geographic proximity of conflict
resolution provision.--In providing
assessment, mediation, training, and
other related services under clause
(i)(II) to resolve environmental
disputes, the Foundation shall
consider, to the maximum extent
practicable, conflict resolution
providers within the geographic
proximity of the conflict.
* * * * * * *
(7) Coordination.--The Foundation shall assist in the
development and implementation of a Program for
Environmental Policy Research and Environmental
Conflict Resolution and Training to be located at the
Center.
* * * * * * *
(8) Use of the institute by a federal agency.--
(a) Authorization.--A Federal agency may use
the Foundation and the Institute to provide
assessment, mediation, or other related
services in connection with a dispute or
conflict related to the environment, public
lands, or natural resources.
(b) Payment.--
(1) In general.--A Federal agency may
enter into a contract and expend funds
to obtain the services of the
Institute.
(2) Payment into trust fund.--A
payment from an executive agency on a
contract entered into under paragraph
(1) shall be paid into the Trust Fund.
(c) Notification and concurrence.--
(1) Notification.--An agency or
instrumentality of the Federal
Government shall notify the chairperson
of the President's Council on
Environmental Quality when using the
Foundation or the Institute to provide
the services described in subsection
(a).
(2) Notification descriptions.--A
notification under paragraph (1) shall
include a written description of--
(A) the issues and parties
involved;
(B) prior efforts, if any,
undertaken by the agency to
resolve or address the issue or
issues; and
(C) other relevant
information.
(3) Concurrence.--
(A) In general.--In a case
that involves a dispute or
conflict between 2 or more
agencies or instrumentalities
of the Federal Government
(including branches or
divisions of a single agency or
instrumentality), an agency or
instrumentality of the Federal
Government shall obtain the
concurrence of the chairperson
of the President's Council on
Environmental Quality before
using the Foundation or
Institute to provide the
services described in
subsection (a).
(B) Indication of concurrence
or nonconcurrence.--The
chairperson of the President's
Council on Environmental
Quality shall indicate
concurrence or nonconcurrence
under subparagraph (A) not
later than 20 days after
receiving notice of the dispute
or conflict.
* * * * * * *

Sec. 5606. Establishment of Morris K. Udall Scholarship and Excellence
in National Environmental Policy Trust Fund

(a) Establishment of Fund.--There is established in the
Treasury of the United States a trust fund to be known as the
``Morris K. Udall Scholarship and Excellence in National
Environmental Policy Trust Fund'' to be administered by a
Foundation. The [fund] Trust Fund shall consist of amounts
appropriated to it pursuant to section 5609 of this title and
amounts credited to it under subsection (b) of this section.
* * * * * * *

Sec. 5607. Expenditures and audit of trust fund

(a) In General.--The Foundation shall pay from the interest
and earnings of the [Fund] Trust Fund such sums as the Board
determines are necessary and appropriate to enable the
Foundation to carry out the provisions of this chapter.
* * * * * * *

Sec. 5609. Authorization of appropriations

[There are authorized to be appropriated to the Fund
¹] (a) Trust Fund.--There is authorized to be
appropriated to the Trust Fund $40,000,000 to carry out the
provisions of this chapter.
(b) Additional Amounts.--There are authorized to be
appropriated to the Trust Fund to carry out this Act an
additional amount of--
(1) $4,250,000 for fiscal year 1998, of which--
(A) $3,000,000 shall be for capitalization;
and
(B) $1,250,000 shall be for operation costs;
and
(2) $1,250,000 for each of fiscal years 1999 through
2002 for operation costs.