defensive and enforcement litigation. Most of the Division's litigation is the result of policy thrusts of agencies and departments administering these laws. Thus, the Division has virtually no control over the size of its dockets.

The Division has established two major policy objectives for FY 1979. First, we are focusing resources to handle the substantial amount of litigation that is being generated by new legislation. Second, we are pursuing several initiatives to provide better management for the Division.

The dramatic increase in significant litigation is already being felt in the Pollution Control Program. We expect 1,150 defensive and enforcement referrals in FY 1979. New legislation is largely responsible for this growing workload. First, the Clean Air Act Amendments of 1977 are expected to generate a large number of enforcement actions over the next three years. Second, the Clean Water Act Amendments of 1977 will add to the already substantial defensive and enforcement litigation that has resulted from the program to abate water pollution. In the short term, these programs may involve over 800 enforcement actions. Third, the Program is also responsible for litigation resulting from implementation of the new Toxic Substance Control Act and Resources Conservation and Recovery Act. Fourth, as the enforcement programs mandated by several pollution control statutes have matured, the number and complexity of our cases have increased. We anticipate several major white collar crime cases this year.

The affirmative civil litigation and the criminal litigation comprise enforcement of the regulations under the Air Act, the permits issued under the Water Act, the Corps of Engineers dredge-and-fill permit program and the pesticide registration requirements. The potential for litigation can be seen by looking at the national enforcement task assigned to EPA. More than 45,000 permits have been issued under the Water Act; in 28 states EPA shares responsibility with the state for assuring compliance with the terms and conditions of those permits. In the other states the responsibility is primarily that of EPA.

Under the Air Act approximately 200,000 stationary sources are required to comply with regulations issued under the state implementation plans mandated by statute; 22,000 are classified as major stationary sources. Hundreds of thousands of cars are required to meet the air pollution standards for mobile sources. Under the pesticide statutes, the agency must review more than 35,000 submissions supporting the regulated use of pesticides. Under all of these statutes Congress has provided both civil and criminal penalties for violation of the law.

To meet the challenge of additional litigation in the Pollution Control Program, we requested an increase of 10 positions in the budget approved for transmittal to Congress.

The general litigation program is also experiencing increased emphasis in the area of environmental protection. The Surface Mining Control and Reclamation Act already has given rise to a substantial amount of litigation in defense of regulations promulgated by the Secretary of the Interior. We will begin soon to enforce the new statute. We estimate as many as 50 substantial enforcement actions will be initiated in FY 1978, possibly 400 in FY 1979, and possibly 50 attacks on the regulations and statutes themselves in this period. In addition, the program must continue to service a substantial case load in other areas. For example, we expect that over 500 cases will be filed under the Guam Claims Act alone, and a series of cases is anticipated involving expansion of the Redwood National Park.

The marine resources program is also experiencing growth in its workload. Further expansion will result from new regulations under the Fishery Conservation and Management Act of 1976. The value of the commercial fisheries covered by this program has been estimated by the National Marine Fisheries Service at over one billion dollars. We anticipate receiving about 20 complex cases in FY 1978 and 20 in FY 1979 as the National Oceanic and Atmospheric Administration promulgates regulations covering the 70 species of fish taken off our coasts. The remainder of the expected expansion in this program is based on anticipated growth of Supreme Court original jurisdiction cases concerning the rights of the Federal Government and the States to the natural resources of the coast under the Submerged Lands and the Outer Continental Shelf Lands Act. These are highly complex factual cases involving billions of dollars. We expect as many as four of these cases in each of the two fiscal years-FY 78 and FY 79.

The land acquisition program has expanded as Congress passes new acts to acquire lands, and as agencies increase their acquisition activities under existing law. For example, the Big Cypress National Preserve acquisition program of the National Park Service is alone responsible for generating several thousand cases for the program and the Department of Energy's Strategic Petroleum Reserve

Project is generating a significant number of highly complex acquisitions of salt domes for oil storage sites. So far, $61.4 million has been deposited in the four salt dome cases filed in 1977. The section is responsible for condemnation of some 19,000 tracts of land. The government's estimate of compensation is approximately $330 million as against claims which exceed $800 million.

The second policy objective that we have undertaken is to improve the quality of legal services provided by achieving better management of the Division. The most significant initiatives include:

Creation of a Division trial training program to improve client representation in the trial courts.

Development of an automated litigation management system, including attorney time reporting and case weighting, to develop better ways to make decisions on allocations of resources, and to maintain better coordination with U.S. Attorneys' Offices which handle a large number of Division cases.

Emphasis on improved client consultation to ensure that policies of Congress are carried out in litigation decision.

Development of policy, planning and program analysis and evaluation capability in the Division to improve resource allocation to priority program areas. In summary, the Division is planning for the heavier caseload that has arisen from several new statutes, and we are embarking on a new management program designed to improve the quality, the efficiency and the productivity of the Division.

Chairman RODINO. Thank you very much.

Mr. Harmon.

TESTIMONY OF JOHN M. HARMON, ASSISTANT ATTORNEY
GENERAL, OFFICE OF LEGAL COUNSEL

Mr. HARMON. I do have a prepared statement, which I will submit for the record.

The Office of Legal Counsel serves as legal adviser to the Attorney General. Our function is to assist the Attorney General in his role as legal adviser to the President and the members of the Cabinet.

The Office presently consists of 22 attorney positions and 17 clerical positions.

Our function and our workload have in fact, increased. The Office does not have a statutory responsibility. We are something like an independent private law firm. Business depends upon the referrals to that Office, and depends in large measure on the relationship between the President and his Attorney General.

This President relies a great deal on this Attorney General for legal advice. Consequently, business is good.

I will be pleased to answer any questions the committee might have. [The prepared statement of Mr. Harmon follows:]

STATEMENT OF JOHN M. HARMON, ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL

Mr. Chairman and Members of the Committee: I appreciate this opportunity to present to you the 1979 authorization request for $1,505,000 and 42 positions for the Office of Legal Counsel.

The principal function of the Office of Legal Counsel is to assist the Attorney General in his role as legal adviser to the President and agencies in the Executive Branch. The Office is headed by an Assistant Attorney General who has three deputies (one of whom is a re-employed annuitant) and, at the present time, a legal staff of 16 attorneys. The Office drafts the Attorney General's formal opinions and renders its own formal and informal opinions on a variety of legal questions involving the operations of the Executive Branch.

Formal opinions of the Attorney General are relatively few in number, and ordinarily involve issues of major significance. Legal advice provided directly by the Office of Legal Counsel itself is much more frequent. During the past fiscal year over 380 formal opinions, an increase of over 45 percent from the previous fiscal year, were issued by the Office of Legal Counsel to various agencies of the

Government, concerning the scope of, and limitations upon, Executive powers, and concerning the interpretation of many Federal statutes, including the conflict of interest laws, the Privacy Act, and the Federal Advisory Committee Act. In addition, the Office issued 695 informal opinions to other Executive agencies as well as other components of the Department of Justice.

All proposed Executive orders and Presidential proclamations are reviewed by the Office as to form and legality before issuance. During the past year the Office passed on more than 125 of these, many calling for careful analysis of Presidential authority.

The Office provided legal assistance to the President's Personal Representative for Micronesian Status Negotiations in connection with the arrangement of a new status for the Trust Territory of the Pacific Islands. The Office also gave advice to the Guam Constitutional Convention in connection with the drafting of the Guam Constitution under Public Law 94-584, and was substantially involved in the process of extending a large portion of the Constitution and laws of the United States to the Northern Mariana Islands.

The Office chairs an intradepartmental committee to draft guidelines for the Federal Bureau of Investigation. Guidelines in force to date include those dealing with domestic security, civil disorders, and counterintelligence.

The Office heads the Department of Justice Freedom of Information Committee (consisting of lawyers from the office and the Department's Civil Division) which provides pre-litigation advice to other agencies on questions under the Freedom of Information Act, particularly when the denial of an information request is contemplated. The Office also participates in the Interagency Claissification Review Committee and the Departmental Review Committee, which supervise the declassification of documents involving the national security. During the past year, several interdepartmental studies were undertaken by the Administration on topics ranging from the reorganization of the intelligence community to the development of a telecommunications protection policy; the Office regularly furnished the Department's representative on these projects.

Although the Office conducts no litigation, it is occasionally consulted by other divisions of the Department in the preparation of briefs relating to constitutional or statutory issues within its areas of expertise. It also assists the Attorney General, the Deputy Attorney General, the Associate Attorney General and the Office of Legislative Affairs in preparing legislation desired by the Department; during the past fiscal year, for example, the Office had primary responsibility within the Department and among the various agencies of the intelligence community for preparing the Administration's proposal for establishing a warrant procedure applicable to electronic surveillance conducted for foreign intelligence purposes. The Office frequently provides formal legal evaluations of proposed or recently enacted legislation for the benefit of other Federal agencies and the responsible congressional committees.

During the year the Office prepared and delivered congressional testimony on a number of legislative matters, including the Panama Canal Treaty, the Foreign Intelligence Surveillance Act, Exemption One of the Freedom of Information Act, the proposal to extend the time for ratification of the Equal Rights Amendment and legislation providing for the disapproval by concurrent or one-house resolutions of rules or regulations issued by the Executive Branch. The Office also routinely assists committees of the Senate in providing its views as to the existence of any conflict of interest under Federal law with respect to Presidential nominees for appointive positions.

In addition to assisting the Attorney General, in his capacity as legal adviser to the Executive Branch, the Office serves as his General Counsel with respect to Departmental activities. In that capacity, it reviews all orders and regulations submitted for the Attorney General's issuance, and provides advice with respect to his formal review of certain decisions of the Board of Immigration Appeals of the Department. Written opinions to other components of the Department numbered over 690 during the year.

The final area, already touched on in the preceding discussion, that has occupied the Office during the past year and will continue to be of major importance in the year to come is the regulation of the United States foreign intelligence activities, particularly within the United States. The Office played a major role in the drafting of the new Executive order, promulgated on January 24, 1978, that will govern United States intelligence activities until the Congress completes the process of adopting statutory charters for the intelligence agencies. Under that order the Attorney General has important oversight and regulatory functions, including the development of prodecures that, along with the order, will be the "law" under

which most intelligence activities are conducted; the Office has primary responsibility for coordinating the drafting of the procedures as well as for their effective implementation. As in other areas, the Office serves as the Attorney General's principal legal adviser with respect to his role in the foreign intelligence field. The Office will also be the Department's representative in the statutory charters development process.

In addition to each of the substantive responsibilities outlined above, the Office of Legal Counsel has taken on-at the direction of the Attorney General-the responsibility for publishing its legal opinions so that others in the Executive Branch and the public at-large can have the benefit of our analysis. Historically, only the formal opinions of the Attorney General have been published, but in recent years there have been few such opinions while the numbers of important legal opinions issued by this Office have continued to increase. The task of reviewing our opinions and preparing them for publication has proved a significant additional burden both in terms of allocation of lawyer and staff time and in terms of financial resource commitment.

This concludes my statement, Mr. Chairman. I shall be happy to answer any questions you or other members of the Committee may have.

Chairman RODINO. Ms. Babcock.

TESTIMONY OF BARBARA A. BABCOCK, ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION

Ms. BABCOCK. I would like, Mr. Chairman, members of the committee, to highlight and read a little bit from my statement, which I will submit.

I think that the work of the Civil Division, as I have been learning over the past year that I have been Assistant Attorney General, is incredibly complex and various. Described in its simplest terms, the Civil Division is the Government's lawyer. For clients, we number 98 agencies and commissions, individual employees acting in their official capacities who are regularly sued, and indeed, Congress itself. Our major policy thrust is to provide effective representation in the traditional ways of good lawyering: counseling, negotiating, prevailing in court, hand-holding, and providing reassurance. But the role of the Government's lawyer, as we learn every day, is somewhat more complicated than that of the traditional attorney in that we have in every case two clients: the agency concerned, and the people of the United States.

Over the door of the Attorney General's office is printed, "The United States wins its point whenever justice is done its citizens in court."

We try in our litigation to reach fair results and to be fair in our handling of cases.

Described in its most complicated terms, the Civil Division's activities are as broad and diverse as the activities of the Government itself. Since the departments and agencies of the Government engage in innumerable commercial ventures similar to those of a modern corporation such as buying, selling, construction, shipping, production of energy, insurance and banking-the litigation arising from such activities encompasses the complete spectrum of legal problems encountered by private business enterprises. In addition, the Division litigates the highly significant polley issues, often rising to constitutional dimension, associated with governmental activities.

I think the tradition of the Civil Division has been a very good one in terms of providing adequate representation and protection for the Government programs in court. However, we are laboring under spiraling caseloads, and not under equally spiraling resources.

It has become, I am sure as this committee is aware, very popular to sue the Government. The Government is sued for issuing regulations, for failing to issue regulations, for issuing allegedly incorrect regulations; and eventually, these matters all come to court and to the Civil Division to defend the Government. We are seeking a substantial increase in our resources in 1979 from the Appropriations Committees in order to continue what we believe is a record and a tradition of fine representation for the Government and for the people of the United States.

[The prepared statement of Ms. Babcock follows:]

STATEMENT OF BARBARA ALLEN BABCOCK, ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION

Mr. Chairman and Members of the Committee: Described in simplest terms, the Civil Division is the Government's lawyer. For clients, we number 98 agencies and commissions, individual employees acting in their official capacities, and, indeed, Congress itself. Our major policy thrust is to provide effective representation to our clients in all of the traditional ways of good lawyering: counseling, negotiating, prevaling in court, hand-holding and providing reassurance. But the role of the Government's lawyer is somewhat more complicated than that of the traditional attorney in that we have, in every case, two clients: the agency concerned and the people of the United States. Over the door of the Attorney General's office is printed: "The United States wins its point whenever Justice is done its citizens in the Courts." We try in our litigation to reach fair results and to be fair in our handling of cases.

Described in its most complicated terms, the Civil Division's activities are as broad and diverse as the activities of the Government itself. Since the departments and agencies of the Government engage in innumerable commercial ventures similar to those of a modern corporation-such as buying, selling, construction, shipping, production of energy, insurance and banking-the litigation arising from such activities encompasses the complete spectrum of legal problems encountered by private business enterprises. In addition, the Division litigates the highly significant policy issues, often rising to Constitutional dimension, associated with Governmental activities. These issues often arise in the context of attacks upon the constitutionality or statutory validity of actions or programs of various components of the Federal bureaucracy.

To the extent that money collected or recovered is a measure of the importance of the Division's work, the following facts are interesting: almost 12 billion dollars was at issue in the more than 13,000 cases received during the last fiscal year, and approximately 61 billion dollars was involved in the 12,000 cases terminated; pending at the close of the fiscal year were over 24,000 cases in a total dollar amount of 56 billion dollars; the cases terminated during the year resulted in an aggregate award to the Government of 135 million dollars. This was over three times the total amount awarded to the opponents.

Most of the awards were in cases in which the Government was a plaintiff, which is only about one-third of our cases. In the cases in which we defend the Government many more millions are involved, and our success in defending or negotiating settlements also has a direct monetary impact on the public. For example, in the cases terminated during FY 1977 in which 60 billion dollars was at issue only .07 percent of this amount was awarded to opponents.

The Civil Division, with its range of responsibilities, is perhaps the best exemplar of the rationale for centralized litigating authority. In a day-to-day way the Division's lawyers reconcile conflicting agency positions, confer and consult with agency clients about possible inconsistencies between the legal positions they desire to take, and those taken for the Government in other cases, and generally seek to assure that the Government maintains a uniform and defensible position before the courts.

The Civil Division is one of the oldest divisions in the Department of Justice. Congress, recognizing that claims constituted a major portion of the Government's legal work, authorized the establishment of a position in the Department in 1868 to handle this function. In 25 years, the Division has grown from approximately 180 attorneys and 182 support personnel to its present size of 299 attorneys and 258 support personnel. Historically, the Division has managed its litigation and other responsibilities well, but over the last five years, the amount and scope of litigation against the Government has increased dramatically.