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Volume 17, Issue 1 — January 1987


Rediscovering the Limits of the Regulatory Review Authority of the Office of Management and Budget

by Robert V. Percival

Editors' Summary: Environmental statutes frequently leave important policy and implementation issues to subsequent rulemaking by the Environmental Protection Agency. In practice, however, the EPA does not have a free hand in promulgating regulations; it has often needed to convince the Office of Management and Budget (OMB) of the wisdom of its proposals. In this article, the author outlines the legal basis of OMB involvement and describes the strengths and weaknesses flowing from OMB's authority. He notes that although vigorous oversight in the political process will continue as a key check on OMB, recent litigation also suggests areas in which courts may be willing to intervene.


The Congress: Past Imperfect, Future Tense

by John P.C. Fogarty

Editors' Summary: The 99th Congress closed out its second session with a flourish, passing several key environmental bills and coming close to agreement on several others. The new Democratic majority in the Senate gives every indication that the 100th Congress will be even more active. This comment reviews the major environmental activities of the 99th Congress' second session, and discusses the likely topics of environmental debate on tap for the first session of the 100th.


Historic Preservation: A New Section 106 Process

by Charlotte R. Bell

Section 106 of the National Historic Preservation Act (NHPA)1 requires federal agencies to take into account the effects of their undertakings on properties eligible for or listed in the National Register of Historic Places. Agencies must afford the Advisory Council on Historic Preservation (the Council)2 an opportunity to comment on those undertakings, prior to any licensing or approval of the expenditure of funds.3 In 1979, the Council issued regulations setting out the means by which federal agencies were to comply with §106.4 The process set forth in the regulations became known as the "Section 106 process."

In 1981, the President instituted a government-wide regulatory reform effort, calling on agencies to review existing regulations and revise them when necessary to reduce regulatory burden, increase agency accountability, and ensure well-reasoned regulations.5 The chairman of the Council initiated a review of the §106 regulations. In September 1986, after considerable deliberation within the government, the Council published revised §106 regulations.6

The Congress and the President: From Confrontation to Creative Tension

by James M. Strock

With the 100th Congress taking its place in Washington, now may be an appropriate time for the environmental community, broadly defined, to consider the increasingly contentious relationship which has evolved between the Congress and the executive branch on environmental matters. Indeed, the "relationship" has become more akin to a series of confrontations in which the greatest uncertainty is whether any specific incident might lead the Congress to precipitate legislative action. In many instances, the "creative tension" necessary for effective separation of powers has become dysfunctional, leading to mistrust among branches of government and thwarting much needed environmental reforms.

Both the Superfund Amendments and Reauthorization Act of 19861 and the vetoed Clean Water Act Amendments2 reflect the continuing tendency of the Congress to limit executive discretion in environmental law by means of detailed statutory provisions more like agency regulations than traditional statutes.3 As in the Hazardous and Solid Waste Amendments of 1984,4 Congress simultaneously moved with great specificity on particulars while leaving general ambiguity in its wake as to the manner in which many provisions are expected to work in practice, The new Superfund includes not only mandatory schedules for the achievement of cleanup activities,5 but also detailed procedures for decisionmaking as to cleanup standards at individual sites,6 and even specific numerical requirements of the number of employees to be assigned certain health assessment-related duties.7 Concerned but casual spectators at open meetings of the tortuous Superfund conference were often bewildered by the arcana discussed by members of Congress concerned with issues such as "Settlement Policy" and "Community-Right-To-Know."