IF ALL goes according to the schedule, every member of the House will have a chance today to take a second close look at what could be landmark legislation. The bill in question creates an Energy Mobilization Board empowered to put selected energy facilities on a "fast track" bypassing federal, state and local laws and regulations.
What makes this a landmark bill, however, is not the positive achievements it might produce, but rather the damage it is likely to do: to federal-state relations, to separation of powers within the federal government and to environmental, health and safety laws already on the books. This imbalance between the bill's potential to do good and its likelihood of making things worse is reflected in its lack of supporters. Outside the administration, in fact, it is hard to find anybody who is enthusiastic about the idea. Even representatives of energy industries and other business groups who stand to gain most from it are lukewarm or conspicuously absent from the debate.
The EMB is intended to cut through bureaucratic red tape, speed up new construction, reduce litigation and end regulatory uncertainty. Closer examination reveals that it is likely to do the opposite. As the president of one energy company put it, "It just puts another layer of bureaucrats on top of the bureaucrats." The new agency, though headed by only a three-person board, would have a staff of several hundred.The bureaucratic infighting between it and the many established agencies with overlapping jurisdictions is easy to foresee. Despite the drafters' effort to rule out grounds for judicial challenge, experts from business, state and environmental groups all believe that increased litigation is inevitable. And instead of making the energy business more predictable, the EMB's power to grant economic advantages worth tens of millions of dollars to one project, but not to its competitors, would add a new wild card to an already stacked deck.
The current draft of the legislation also empowers the EMB to grant waivers of federal law and of state and local laws. Yet during its consideration of the bill, the House, by a vote of 415 to 1, passes an amendment prohibiting the board from waiving any state laws. The House provision -- now gone -- was a sensible one, eliminating a prospective source of unending conflict between the federal government and the states. The motion now before the House is to recommit the EMB bill to the House-Senate conference with instructions to remove the board's power to waive existing state and local laws and to tighten up its authority to waive laws that may be passed in the future. Both are wise and necessary improvements.
The EMB was a had idea from the beginning, one that sets aside the central constitutional principle of equal justice under the law in favor of case-by-case waivers of law for individual projects. If it eventually speeds up anything at all, it will not be by much, and it is just as likely to end by slowing projects down. Those who oppose the motion to recommit what is meant to correct a glaring flaw do so on the ground that the compromise that has been worked out is "too fragile" to withstand further consideration. But a proposal that holds such a great potential for constitutional mischief and environmental damage demands the most careful scrutiny that Congress can give. If it cannot stand up to such consideration, it is not good enough to be passed.