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Issue

Volume 3, Issue 10 — October 1973

Comment(s)

Endangered and Threatened Species Preservation Act of 1973 Nears Final Passage

In March of this year, after the United States signed the Convention on International Trade in Endangered Species of Wild Fauna and Flora,1 two bills designed to implement the Convention were introduced in the House of Representatives. The two measures, one proposed by the Administration, the other by Rep. John Dingell, were analyzed in a comment in the April, 1973, issue of ELR.2 On September 18, a toughened version of the Dingell bill passed the House by an overwhelming 390-12 vote; in the Senate, a similar bill was approved unanimously in July. Although the two measures differ significantly, both would grant the Secretary of the Interior sweeping new power to take actions necessary to preserve species currently or potentially in danger of extinction.

The Convention required compilation of three lists: animals and plants in imminent danger of extinction; those that may become threatened with extinction unless trade in the species is regulated closely; and those that are protected within signatory countries irrespective of the danger of extinction. For the first category, trade in the species is permitted only for noncommercial purposes, and with the permission of both the importing and exporting countries; for the second and third, trade is allowed only with a permit from the country of export. The House and Senate bills, which direct the Secretary of the Interior to prepare such lists for this country, are designed to bring United States law into conformity with the Convention even before its ratification.

Oregon Governor Bans Lighted Advertising in Energy Conservation Move

On September 23, 1973, Oregon Gov. Tom McCall ordered a complete ban on the use of electricity for commercial display or decorative purposes throughout the state.1 The Governor declared that the "inherent authority" of his office provided the legal basis for the unprecedented order.

After an unusually dry summer in the normally rainsoaked Northwest, water levels in the state's reservoirs had dropped alarmingly, causing a reduction in the hydroelectric power output on which Oregon depends. On August 21, the Governor issued an executive order2 that declared an energy emergency and directed the state Department of General Services to take the following steps to conserve energy:

Silva I: The Need for HUD "Status Quo" Regulations

A question that has begun to appear with increasing frequency in recent NEPA litigation concerns the environmental damage that a private or state party may cause in the early, "pre-federal" stages of a project before it becomes a "major federal action" and an impact statement must be prepared. This is another of the second-generation NEPA issues that have come to the fore as the battle lines between environmental plaintiffs and nonfederal developers have been drawn. Thus far, the courts that have dealt with this question have provided minimal guidelines as to when, in order to preserve the environmental status quo, private parties may be enjoined from preparatory work, but these standards remain too vague for either environmentalists or developers to form clear expectations of what is enjoinable conduct.

This state of affairs was noted with distress by Chief Judge Coffin of the First Circuit Court of Appeals in Silva v. Romney.1 A large part of Judge Coffin's opinion was devoted to urging the Department of Housing and Urban Development to adopt suitable regulations to guide federal agencies and federal aid recipients as to what action may be taken to alter the status quo under such circumstances, prior to the point at which the private party can be said to have entered into a "partnership" with the government. Such regulations would inform the agencies and private parties and guide their conduct so as to ensure a minimum of environmental damage prior to partnership and obviate the danger of a project's being stopped after considerable work and expense when it is found to be environmentally harmful in the post-partnership NEPA examination. By providing a framework for decisionmaking, the regulations would also aid the court in reviewing agency decisions.

EPA's Responsibilities Under the National Environmental Policy Act: Further Developments

A comment in last month's ELR1 analyzed the question of NEPA's applicability to "major federal actions" taken by the Environmental Protection Agency, and called on EPA to prepare impact statements, rather than "environmental explanations," for its guidelines, regulations, and standards. On September 20, the House received the conference report on H.R. 8619, authorizing agricultural, environmental, and consumer protection appropriations for the fiscal year ending June 30, 1974.2 The report stated that while the House had proposed a $5,000,000 appropriation to EPA to enable the Agency to prepare environmental impact statements, the Senate bill provided the same amount to fund "environmental explanations" instead. The conferees agreed on the House version, declaring that "had the Agency prepared environmental impact statements and given consideration to such things as cost to consumers and producers our present and foreseeable energy problems would likely not be as serious as they now appear to be."3

Rep. John Dingell, who was floor manager for NEPA in the House four years ago and has remained a strong supporter of the law, applauded the conferees' decision.4 At the same time, he released an opinion that he had requested from the Comptroller General, head of the General Accounting Office, on the question of NEPA's applicability to EPA under present law.

ELI to Carry Out Study of Economic Incentives and Waste Oil Control

This past summer, the Environmental Law Institute and the Environmental Protection Agency contracted for a year-long research project entitled "Legal Aspects of Incentive Approaches to Pollution Control." The contract calls for a survey and analysis of federal environmental statutes to determine what flexibility they may allow for the adoption of incentive mechanisms at the federal, state, or local level; and for an intensive case study of the legal aspects of alternative policies for controlling the disposal of used lubricating oils.

Section 104(m)(1) of the Federal Water Pollution Control Act Amendments of 1972 (see 2 ELR 41103) requires the Administrator of the Environmental Protection Agency, "in an effort to prevent degradation of the environment from the disposal of waste oil," to conduct a study of