[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.