have generally felt that under the provisions of the Commander in Chief authority under the Constitution that there was a greater opportunity or perhaps authority, implied authority, than certainly in the other areas of impoundment. I draw this as a historical reality rather than being one that I would like to support myself.

I personally feel that we ought to use the same rules for both areas but I think that there is this distinction in reading the history of the impoundment.

Mr. KURLAND. Thank you, Senator.

Mr. MILLER. May I ask one question, Senator?

Have you had an opportunity to study Senator Muskie's OMB bill which would require that Congress would get the same information? Senator KENNEDY. I think it is a very positive and useful suggestion, a very constructive suggestion.

Mr. MILLER. In other words, Congress should get the same information from the Department that OMB gets at the same time.

Senator KENNEDY. Exactly. I think it was a very constructive proposal, hopefully to be accomplished.

Senator CHILES. How did you envision this would be done under provision one where you were going to have less than 10 percent in a period pursuant to antideficiency statutes? You would have these before they take effect come to the Appropriations Committee?

Senator KENNEDY. Any proposed impoundment, statutory or antideficiency, would be noticed but the Congress would have to act affirmatively only if it was to be over 10 percent. If it is over 10 percent, Congress would have to act in such ways to repeal or rescind the authority on appropriations. If the Congress did not act within 60 days as has been outlined in the Ervin proposal, then the funds would have to be spent. The impoundment would be vacated if Congress did not act to grant the authority within that period of time.

I think there are some factual situations which I know have been suggested here as to whether the President can impound if Congress goes out, or to keep doing it for successive 60 day periods to try and frustrate the clear intention of the impoundment bill. I am willing to recognize the difficulty that imposes and to anticipate it in advance. Senator CHILES. If it was over 10 percent Congress would have to confirm it?

Senator KENNEDY. That is correct. I think we ought to have notification even in statutory situations. We don't gain that at the present time, and even under the Anti-Deficiency Act I think we ought to have notification.

But it seems to me the 10 percent is a reasonable cutoff level, where we wouldn't be getting into the situation where we are just rubberstamping. If it were required for every impoundment we might get in the situation of rubberstamping. But over 10 percent you would have this type of requirement.

Senator ERVIN. I think that Professor Kurland was making the point which I would make in this way: That regardless of the practice with respect of Congress for appropriations for military purposes, that the constitutioinal provisions clearly gives Congress the right to control these powers, and it is sort of analogous to the situation that we have had murder committed in every generation, but that hasn't made murder or larceny legal.

Thank you very much. It was a very fine statement.
Senator KENNEDY. Thank you very much.

Senator CHILES. Our next witness will be the Honorable Joseph T.
Sneed, the Deputy Attorney General, Department of Justice.
We are delighted to have you appear before the committee.

STATEMENT OF HON. JOSEPH T. SNEED,1 DEPUTY ATTORNEY GENERAL, DEPARTMENT OF JUSTICE

Mr. SNEED. Thank you, Senator Chiles. I am very happy to be here this morning.

I read the other day, Senator Chiles, in the transcript of these hearings that perhaps the representatives of the administration should be equipped with a copy of the Constitution and Dale Carnegie's book on "How to Win Friends and Influence People." I frankly could not find the other volume.

Senator ERVIN. Excuse an interruption, but unfortunately there are too many conflicting obligations around here for a Senator.

I have been called by the Rules Committee to come over to discuss the budget of the subcommittees of which I am chairman, in order to have money on which to operate, and they say I would have to speak now or perhaps hereafter hold my peace because they didn't want to hold a session this afternoon.

I regret that I must leave, but since we are going to need the money, I guess I had better go. I will be delayed for about 30 minutes.

Senator CHILES. Mr. Chairman, I wonder if it could be possible if we could delay Dean Sneed for a few minutes and perhaps take one of our afternoon witnesses?

Senator ERVIN. That would be fine. I hate that I must leave, but I am on the Hill. Dean Sneed has been teaching law in a great institution in my State and I want to see that they get the true faith and deliverance of the Senate.

Mr. SNEED. That is perfectly satisfactory to me.

(Short recess taken.)

Senator CHILES. We will reconvene our hearings now.

Our witness will be Dr. Barry Commoner of Washington University.

Doctor, we are delighted to have you with us this morning, and we will hear your testimony now.

STATEMENT OF BARRY COMMONER, DIRECTOR, CENTER FOR THE BIOLOGY OF NATURAL SYSTEMS, WASHINGTON UNIVERSITY, ST. LOUIS, MO.

Mr. COMMONER. Thank you, Mr. Chairman.

It is a privilege to appear before this committee, for the issue which you have chosen to confront is grave and momentous-not only for the survival of the Nation as a democratic society but also for its survival in an environment fit for human life. I am not an expert on constitutional law and I am not going to discuss that, but I do know something about the environmental problem which has turned out to be the arena in which this legal problem exists.

1 See also statement on p. 358.

The point I would like to make is: Responding to a newly awakened ecological conscience, the Nation has begun a fateful effort to improve the environment before it degrades to the point of no return. In my opinion-given the present trend of administration policy on the environment-unless steps are taken by Congress to require that the Executive authorize the programs and expenditures enacted by Congress for environmental improvement, we are likely, during the next few years, to lose enough ground to imperil the outcome of our race for survival.

It is fitting that the Nation's concern with environmental qualityas expressed, for example, in the Water Pollution Control Act of 1972 should become a major issue in the growing confrontation between the intentions of the Congress and the actions of the Executive. Congress is, of course, the branch of Government which by design. is most sensitive to the public conscience; and the demand for environmental quality is one that clearly arises out of that conscience. Surprise is often expressed over the unexpected emergence of intense public concern for environmental quality in the last few years. I believe that the explanation has a good deal to do with the general issue before this committee. What has placed the issue of environmental quality high on the Nation's agenda is neither the initiative of the President nor of the Congress. Rather, the initiative has come from the people; environmental quality is a truly grassroots issue. It arose everywhere in the Nation over the last decade; in the minds of the citizens, as they learned from the scientific community the long list of environmental blunders; and in their hearts, as they realized that the world that we are destroying is our legacy to our children. All the evidence I know shows that environmental concern originates not in any institution of Government, not in the news media, but primarily in the people themselves: the spontaneous outburst of Earth Day 1970, and its subsequent quieter, but deeper, celebrations every year since then; the citizens groups that have sprung up in most communities to defend the environment, and the realistic expression of their concern in the form of new bond issues for pollution control.

One point I want to make about the public experience here is that in the past that has been very difficult to get the kind of information the public needs from the Government, and to have it in a form that the public can respond to, and those of us who have been privileged to participate in public information on this have found it a very rewarding experience, particularly in these days of manipulative politics, because it seems to me a test of validity on the assumption on which the Nation was founded; that is, that its people are capable of deciding what qualities of life they deem to be good and of determining how to achieve them. In other words, the campaign for environmental quality I think is a healthy reminder that the fundamental source of democracy is the will of the people to govern themselves. This is a somewhat old fashioned idea and the chief point I want to make is that those of us who have been participating in the environmental campaign have had a healthy reminder that this old fashioned idea is something that really means something to people today.

Now, I have gone through all this for the obvious reason that the people of the United States have themselves discerned the urgency

of the environmental crisis and in themselves generated the will to survival. The next step is, of course, the legislative response and after that the intention of the executive to carry out the will of the legislature.

I want to take up those two steps now.

Senator CHILES. Doctor, I wonder, if for the sake of time we would put your entire statement in the record. If you could brief it for us— I know Senator Muskie might want to ask you some questions and we are going to be under some real time restraint.

Mr. COMMONER. I am trying to do that, I will do some more.
Senator CHILES. Thank you.

Mr. COMMONER. I just want to express the opinion that I think the congressional response to the crisis has been remarkable, both in its vigor and effectiveness. These are complex issues. They touch on many technical, social, and economic policies and some of the hearings I know have dealt with these very well. Many of us use the hearings as a source of scientific data and analysis. There is no list for me to go through the list of landmark legislation the Congress has passed. I think it is clear the Congress has done its job.

I want to mention one creative piece of legislation which I think is particularly important, and that is the section of the National Environmental Policy Act of 1970, which requires that environmental impact statements be filed. In my opinion this is probably the single most important step toward improving the environment, because it forces the facts out in the open where the scientific community and the public can get at them. There have been a series of examples in which before that act was passed it was necessary to wrench information out of the Atomic Energy Commission and other agencies in order to get the facts about environmental degradation before the public.

Let me turn to the third step. What I have said so far is that the environmental issue arises clearly in the public conscience, that the next step, the response of the legislature to it has, I think, by and large been very good. We now come to the third step in the classical progression of the democratic process, and that is the administration of the policies established by Congress in response to the public's express desire for environmental improvement. This is, of course, the responsibility of the executive branch of Government.

Now, it is here that we begin to discover why, despite all the optimistic things I have said, that the public is aroused and Congress has acted that despite that the air still reeks, the waters are still foul and children continue to die of lead poisoning. The will of the people and actions and intentions of Congress to improve the environment have in my opinion been frustrated by the failure of the executive branch to carry out its part of the constitutional contract.

Now, the historical example, historical by now, I think, of the Water Pollution Control Act of 1972 is, of course, the prime example of the failure on the part of the executive. What I would like to do is demonstrate why the very environmental problem that that act was supposed to have solved makes it clear that any delay in solving it is not merely a delay in improving the environment but an act which will encourage the degradation of the environment.

I want to take as an example the situation in Lake Erie. Section 108 (d) of the Water Pollution Control Act calls for a program for the

rehabilitation and environmental repair of Lake Erie and the question I want to ask is: What will be the consequence of failing to carry out that program?

Let me remind you about some technical facts here. The way we handle our water pollution problems is to set up secondary, primary treatment, get rid of solvents, secondary treatment is to break down the organic matter converting it to inorganic material, and this is usually then released to the water. But sometimes, as in Lake Erie, the release of these nutrients cause huge outgrowths and when they die they will pollute the water.

So if the act is to be carried out around Lake Erie, advanced facilities will have to be built to recapture the nutrients.

Let us now consider the ultimate effect of the presidential impoundment of funds on Congress' intention to meet the need for advanced waste treatment in areas such as Lake Erie. One might imagine that the resulting delay in constructing advanced treatment facilities for the wastes entering Lake Erie would only delay for a time the improvement of water quality in the lake. In actual fact, the effect will be far worse; it may, in my opinion, lead to a drastic worsening of the already bad situation in Lake Erie.

Let me explain. As a result of inadequate waste treatment in the cities around it, Lake Erie has become a kind of huge underwater cesspool. From a century of sewage and other wastes, there has accumulated in the bottom mud a vast store of plant nutrients (such as nitrogen and phosphate), which, if released into the waters of the lake could set off an overwhelming growth of algae. As this huge overgrowth decayed, it could use up most of the oxygen in the lake and kill off vast quantities of fish and other forms of life. What has thus far prevented this catastrophe has been a thin layer, lying on the lake's bed of mud, of iron oxide in a form (ferric iron) which is highly insoluble and which, therefore, effectively seals off the mud and prevents its nutrients from entering the overlying water. Unfortunately, however, this same iron oxide film can be readily converted into a very soluble form (ferrous iron)-which is incapable of sealing off the mud-when the Oxygen content of the water above the mud falls to zero for a long enough period of time. Because Lake Erie is already polluted, most of the bottom water begins to lose oxygen as each summer season starts and the resultant temperature gradients cut down the movement of oxygen from the lake's surface. As a result, in most areas of the lake, the bottom now reaches zero oxygen some weeks after the start of each summer season. But, since the water is always reoxygenated by the fall period of intense recirculation, the duration of this zero-oxygen period has thus far been too short to convert the iron oxide film to the soluble, nonprotective form. Nevertheless, the situation is worsening year by year and new data show that the duration of the zero-oxygen period in the lake bottom has been lengthening rapidly in recent years. These data suggest that in the next decade, the bottom water may reach the point at which it remains in the zero-oxygen condition essentially all summer long-creating, in my opinion, the distinct possibility that the iron oxide film will break down and trigger a catastrophic loss of oxygen in large masses of the lake. This impending disaster can only be avoided by the timely installation of advanced waste treatment facilities, as proposed in the act.