FROM THE START the administration's proposal to create a regulatory "fast track" for a few favored synthetic fuels projects was vulnerable to abuse. Now comes something known as the "substantive waiver" provision of the prospective legislation -- and it is surely that abuse made vivid. It would empower the Energy Mobilization Board -- to give the proposed agency its proper name -- to recommend that substantive (as well as procedural) laws be waived to expedite a particular project.
There are so many things wrong and dangerous about such a waiver that it's hard to know where to start, but here are few highlights. The waiver would allow these environmental laws, among many others, to be waived: the acts controlling air and water pollution, the acts governing hazardous waste dumping and the production of toxic substnaces, the acts protecting coastal and offshore resources, the statutes protecting the National Park and wilderness system, the strip mining control act, and land and water conservation laws.
Waivers could create huge inequities between two identical projects -- one chosen by the EMB for acceleration, and a postualted neighbor, not so favored. Waivers could give the first a competitive advantage worth millions of dollars. Plant designers and managers will be forced to take shortcuts: why should they take the trouble to design a process that meets existing standards when they might instead apply for a free waiver? What will happen when it is discovered that a plant operating under a waiver may be contaminating a scare water source? How long will it take before unfavored companies sue the chosen one? And more important, how long will it be before other industries -- chemical, nuclear, mining and many more -- begin demanding equally favorable treatment?
Legally, the proposed waiver makes a joke of government, jumpling the traditional functions of each separate branch. By its very nature, it would provide special treatment for some rather than equal protection for all. It would preempt traditional legislative prerogatives since the EMB -- an executive agency -- would determine which laws would be waived and under what terms and conditions. In many cases, judicial review would be prohibited.
The four-month-long House-senate conference on this legislation has ground to a halt over this issue. The president writes letters exhorting the conferees to finish their work, but for more than six months administration people have been working against a waiver in the Senate, and for one in the House. The president makes clear statements in writing -- "Decision making can be streamlined without overriding of substantive law, which I strongly oppose." Does he know that high-level administration lobbyists continue to make their rounds saying that the president wants a bill -- any bill?
The EMB legislation -- which Mr. Carter regards as a pillar of his energy policy -- is in trouble from which only unambiguous presidential action can rescue it. We would let the EMB die a quiet death. But if Mr. Carter wants a bill and a relatively safe and decent one, he is going to have to get himself and his administration on one side: firm opposition to a substantive waiver.