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Volume 3, Issue 12 — December 1973


Clearcutting Ordered Halted on Federally Owned Lands

Ever since the Forest Service in 1964 endorsed clearcutting as an acceptable method of harvesting trees on public lands, a running battle has been fought on the issue between conservationists and the timber industry. To the latter, the technique of logging all trees within a designated area, irrespective of their age, size, and health, is the most efficient way to meet the nation's timber needs in a time of rapidly climbing prices. Conservationists, on the other hand, charge that clearcutting is needlessly wasteful of growing trees, creates serious erosion problems, and defaces the landscape.

On November 6, a federal judge at Elkins, West Virginia, handed conservationists a stunning victory.1 Judge Robert Maxwell ruled that the Organic Act of 18972 does not permit clearcutting on federal owned forest lands. Plaintiffs, West Virginia Division of the Izaak Walton League, Sierra Club, Natural Resources Defense Council, West Virginia Highlands Conservancy, and an individual West Virginia resident, sought declaratory and injunctive relief to assure that in three proposed timber harvesting contracts, and in all future contracts, matured, or large-growth trees that had previously been selected and marked by Forest Service personnel, would require the removal of all felled trees. The plaintiffs pointed to §476 of the Organic Act, which provides that "for the purpose of preserving the living and growing timber and promoting the younger growth on national forests, the Secretary of Agriculture . . . may cause to be designated . . . so much of the dead, matured or large growth of trees found upon such may sell the same." The defendants, Secretary of Agriculture Earl Butz and several officials of the Forest Service, argued that §475 of the Act, which states that the purpose of establishing national forests is in part "to furnish a continuous supply of timber for the uses and necessities of the citizens of the United States," should be given great weight. Clearcutting, they urged, represented a decision that a group of trees had been determined to be collectively "dead, matured, or large growth." By the same logic, they contended, trees could be "designated" as a group. Extension of this "collective" argument to the Act's requirement that all cut timber be removed would seem difficult, but the defendants somewhat bafflingly explained that "the same approach can be applied to the 'cut and remove' language—every tree and stick need not be removed."

Proposed Indirect Source Regulation: A Partial Integration of Land Use and Air Quality Planning

Environmentalists have long known that one of the causes of urban air pollution is the sprawl generated by shopping centers, entertainment areas, and airports that are inadequately served by mass transit. These centers encourage—indeed demand—numerous automobile trips. Therefore, environmentalists were pleased when the Environmental Protection Agency, in response to a suit by the Natural Resources Defense Council, promulgated regulations1 that inject air quality control considerations into the heart of the planning process for such auto magnets. The possibility that land use decisions would take into account values beyond the profit motive alone seemed real. On October 30, 1973, the Administrator of the Environmental Protection Agency proposed regulations that in many respects failed to carry out the hopes of environmentalists.

The proposed regulations for controlling air pollution generated by facilities that attract large numbers of cars are in the form of guidelines for states to follow in establishing their own standards. However, the federal guidelines apply until the states' plans are accepted. State and local agencies are required to assess the probable impact upon air quality of construction or modification of "complex sources" to determine whether their operation would impede the attainment or maintenance of national ambient air standards. The regulations complement an EPA directive, issued in June, which required states to designate potential air quality problem areas and to establish procedures for evaluating the air quality impact of proposed construction or modification of sources.

Environmentalists Challenge Nuclear Export Program

Three environmental organizations recently filed suit seeking to force the Export-Import Bank of the United States and the Atomic Energy Commission to comply with NEPA requirements in the nuclear export program.1 The suit raises a potentially significant and so far unlitigated question as to NEPA's applicability to agency activities outside the United States. If successful, the suit might set a precedent for requiring environmental analysis of other international programs, such as foreign aid, which so far have not complied with NEPA.

The nuclear export program consists of a series of interlocking transactions. The AEC negotiates bilateral agreements for cooperation with foreign governments interested in receiving nuclear equipment. The agreement governs the general terms of any future exports, including safety and restrictions on military use required by law. The foreign government may then seek financing for a proposed purchase of nuclear equipment and fuel by submitting an application to the Export-Import Bank. If financing is approved, the foreign purchaser must obtain an export license from the AEC before the transaction can be completed.