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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — January 1983

Articles

Reasoned Decisionmaking in Regulatory Reform: The Third Circuit Reinstates EPA's Pretreatment Rules

by Edward L. Strohbehn Jr.

Editors' Summary: Regulatory reform must be carried out through the same reasoned decisionmaking processes which the Administrative Procedure Act (APA) requires for the promulgation of new rules. This, Mr. Stohbehn argues, is the Third Circuit's message to the Environmental Protection Agency (EPA) in Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 12 ELR 20833. The Reagan EPA had indefinitely deferred the effective date of pretreatment regulations promulgated on January 29, 1981 (in a midnight action of the Carter Administration) in order to subject them to the regulatory impact analysis mandated by President Reagan's regulatory reform Executive Order 12291. The court found the deferral to be tantamount to repeal of the rule, an action which requires compliance with the APA's notice and comment procedures.

Mr. Strohbehn analyzes the regulatory history of the pretreatment regulation and court's decision. Noting that the court carefully avoided the substantive implications of the Reagan regulatory reform actions, and even sidestepped the question of whether a deferral of fixed duration would have required notice and comment, he concludes that the Third Circuit's primary concern was to ensure that the principles of good government decision-making embodied in the APA not be circumvented in the regulatory reform process.

Preservation vs. Mineral Development of Withdrawn Federal Lands—Much Ado, But Little to Show

by David W. Tundermann

Editors' Summary: As the 97th Congress came to a close, the Reagan Administration, natural resource development interests, the Congress, and conservationists had come to a stalemate in a high stakes battle over mineral development on the nation's public lands. Mr. Tundermann examines the reasons for the stalemate and discusses several congressional and administrative actions of the past year that have contributed to it. He explains that as much as 50 percent of the federal lands are currently withdrawn from mineral development. With the depletion of high grade mineral deposits, interest has focused on these lands, many of which are withdrawn to protect environmental values. Thus, intense conflicts have arisen between development interests and environmentalist interests.

In 1982, several administrative and congressional proposals emerged to increase or decrease mineral access to withdrawn federal lands. The proposed National Minerals Securities Act, aimed to improve the economic and regulatory environment for mining, and numerous bills to either withdraw RARE II lands from development or to "release" them to development, died in the 97th Congress. However, Congress extended a moratorium on mineral leasing in wilderness areas. In conclusion, Mr. Tundermann points out that a substantial amount of the lands are withdrawn for other than preservation interests. He suggests that the active parties in the debate focus their efforts on these lands where the value conflicts are more easily resolved.

Comment(s)

Tenth Circuit Approves Interior's Wilderness Protection Policies in Energy-Rich Rocky Mountain Region

by F.L. McChesney

Editors' Summary: The Bureau of Land Management is in the process of reviewing 23.8 million acres of its lands for possible wilderness designation. During this review it must manage these wilderness study areas under §603(c), an ambiguous provision which mandates the application of a strict nonimpairment standard to WSAs but "grandfathers" certain poorly-defined pre-FLPMA activities. In 1978, the Solicitor of the Department of the Interior wrote a legal opinion construing the provision to provide stringent limits on oil and gas leasing in WSAs. In a challenge to this policy, oil and gas interests won an overwhelming victory in district court, but late in 1982, the Tenth Circuit reversed. While better reasoned than the district court's decision, the Tenth Circuit failed to resolve an important issue which troubled the district court: to what extent does §701(h), which protects "valid existing rights," limit the applicability of the nonimpairment standard. A 1981 Solicitor's opinion, modifying the 1978 opinion's discussion of "valid existing rights" further complicates the question, and will likely lead to more litigation before the issue is resolved.

Dialogue

New BAT Standards: Lowering the Ceiling or Raising the Floor?

by Phillip D. Reed

Over the last several months, under pressureof court-ordered deadlines, the Environmental Protection Agency (EPA) has been promulgating long overdue Clean Water Act best available technology (BAT) standards for toxic pollutants. In the final BAT effluent limitations guide-lines BAT often is the same as the best practicable technology (BPT). Where the new BAT is more stringent than BPT, the difference is relatively small and potentially more effective technologies were rejected. On the other hand, some BPT standards in the new rules are based on control technologies too advanced to have been considered "practicable" in 1972. It can be argued that EPA has coupled relatively tough BPT with relatively lenient BAT.

The new BAT rules raise several questions. Answering those questions requires detailed familiarity with the technological and economic data and analysis in the development documents used by EPA in setting the standards; as well as careful weighing of ambiguous statutory language, lengthy legislative history, and a variety of relevant, but not dispositive precedent. Final answers (mercifully) may be left to others, but a review of the Federal Register notices suggests that two questions should be addressed: