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Issue

Volume 3, Issue 4 — April 1973

Articles

Developments in Environmental Law

by James L. Oakes

I will try to give you in a few moments one federal judge's view of certain recent developments in environmental law. It will necessarily be rapid-fire and broadly reportorial. I will follow with some thoughts on the role of litigation in safeguarding the environment. Despite the title of this talk, I come to you today with no gospel, no Word, very little sermon, but merely with a built-in set of biases and prejudices probably equivalent to those of the person sitting next to you, but not to your own.

The first problem for an introductory speaker is to attempt to answer the question, what is environmental law? I underestand there are now five casebooks on it and 80 professors teaching it; there are two law reporter services (Environmental Law Reporter, Environment Reporter) and a number of law reviews. The field, however, is diffuse. It comes, among other things, from international law, constitutional law, administrative law, public health law, nuisance law, natural resources and property law, conservation law, and a myriad of statutes, federal and state. So, to narrow the field somewhat, I will consider developments in the courts—that is, in litigation only—and will discuss briefly four areas that are largely procedural in nature: (1) standing, (2) financing the costs of litigation, (3) NEPA, and (4) nuisance as a form of environmental action.

Comment(s)

Recent Federal and International Measures to Protect Wildlife

According to the Department of the Interior, more than 100 species of fish and wildlife may presently be threatened with extinction within the United States. The recently concluded Convention to Control International Trade in Endangered Species of Wild Flora and Fauna (ELR 40336) listed 375 species of animals as imminently threatened with extinction throughout the world, and another 239 species of animals as not yet threatened with extinction but requiring additional controls over trade in them.

The threat to animals may arise from a variety of sources—pollution, destruction of habitat, and the pressures of trade. For the most part, federal legislative attention in recent years has concentrated upon commercial exploitation in an attempt to reduce or eliminate the financial incentives to trading in endangered species.

Alaskan Oil Pipeline Now Up to Congress

The oil industry has been frustrated since 1970 in its efforts to build a hot oil trans-Alaskan pipeline across federal domain lands from Prudhoe Bay on Alaska's North Slope to the Pacific Port of Valdez 800 miles to the southwest. Environmentalists maintain that pipeline ruptures across earthquake prone Alaska could cause lasting ecological damage in the last large wilderness in North America, and that the tankers required to carry the oil from Valdez to the West Coast could cause serious marine pollution.

In the first court challenge, the Wilderness Society and other environmental organizations obtained a preliminary injunction against the issuance of a construction permit by the Department of the Interior until all environmental factors and alternatives had been explored in an adequate NEPA impact statement.1 At the time the first injunction was issued, commentators tended to overlook a second ground for the court's terse order, the Mineral Leasing Act of 1920, which prohibits rights-of-way in excess of 25 feet on either side of the pipe itself. The pipeline consortium does not possess the technology that would enable it to carry out construction in a right-of-way of less than 100 feet. Along some sections, up to eight times the maximum allowable width would be required. In a lengthy recent opinion, the District of Columbia Circuit reversed a district court order dissolving the injunction on both the NEPA and Mineral Leasing Act grounds and confirmed that the statutory maximum was in fact a bar to pipeline construction.2 The Supreme Court appeared to sanction this result by denying certiorari only a few weeks later.3 By deciding the Alaskan pipeline case on the narrow technical grounds of a 1920 statute limiting maximum permissible rights-of-way over federal lands, and hence avoiding the policy-laden NEPA arguments, the courts have left the method of exploitation of the North Slope oil fields squarely up to Congress. How, and whether, this Alaskan oil will be developed has in effect been "remanded" to Congress for decision.

Leading District Court Opinion on NEPA: The Trinity River-Wallisville Dam Case

A recent district court opinion from Texas may constitute something of a watershed for the National Environmental Policy Act in the courts. Just as the lengthy district court opinion over two years ago in the Gillham Dam case1 led the way in identifying and resolving the first generation of NEPA issues, the even more lengthy decision in Sierra Club v. Froehlke2 leads the way in identifying and resolving a second generation of issues that cluster around NEPA's substantive requirements and the basic decisionmaking tools used to implement the national environmental policy. Because the case raises such a wide variety of issues, this Comment will attempt only to draw attention to the most important aspects of Judge Bue's remarkable opinion.

In Sierra Club v. Froehlke, plaintiffs challenged the imminent construction of the Wallisville Dam on the Trinity River near its mouth at Houston, Texas. The project allegedly had substantial local benefits, especially the protection of upstream rice crops threatened by salt water that had begun to penetrate freshwater areas as a result of the construction of navigation projects.

Article by Judge Oakes in This Issue: "Developments in Environmental Law"

This month's issue of ELR contains an article by Judge James L. Oakes of the Second Circuit (3 ELR 50001). The article, Developments in Environmental Law, is based upon the Judge's introductory address at Environmental Law II, the third annual conference on environmental law sponsored by the American Law Institute and the Smithsonian Institution. This year, the Environmental Law Institute cooperated with the sponsoring institutions in conducting the conference.

Judge Oakes' opinions in several environmental lawsuits will be remembered for their depth of concern that environmental factors were not receiving full consideration in federal agency decisionmaking. His dissent in Scenic Hudson II,1 the latest decision in the precedent-setting Storm King litigation, laid bare what he viewed as major inadequacies in the Federal Power Commission's review of possible environmental effects caused by construction of the pumped storage power project at issue in the case. His opinion in Conservation Society of Southern Vermont v. Volpe,2 in which he sat as a federal district judge, answered affirmatively his own question, "Will highway development be held up for one little hill and one beaver pond?" where the requirements of federal law had not been fully satisfied. Controversies such as those in Scenic Hudson II and Conservation Society of Southern Vermont have given Judge Oakes a special opportunity to observe and participate in the evolution of environmental law. We are treated in his article, not only to his insightful summary of current trends, but to his prognosis—and even sometimes his prescriptions—for the future of the field.

EDF Attacks EPA's Airborne Lead Standards

Small doses of airborne lead in the urban environment may be lowering human resistance to infectious diseases. In a comment addressed to the Environmental Protection Agency's proposed regulations for fuels and fuel additives, the Environmental Defense Fund cited several recent studies demonstrating that in experimental animals lead exposures comparable to those found in many urban populations caused both decreased resistance to bacterial infection and decreased life spans.1 EDF charged that EPA completely overlooked this evidence when setting its standards, and criticized EPA's recent proposal to relax its original plan to reduce lead in gasoline (which accounts for 90% of airborne lead).

In 1972, EPA had originally proposed to reduce the maximum content of lead in a gallon of gasoline to 1.25 grams by 1977. However, in January of this year, EPA proposed new regulations that are less strict than the original restrictions and would give the oil industry an additional year from 1977 to meet the standards. EDF attacked this latest proposal as "inconsistent and irresponsible," particularly in light of the documented medical evidence that makes it "reasonable to assume that the same lead-induced susceptibility in the animals tested is now operating in the human population." EDF argued that the increased estimate of the health hazard of airborne lead should be met with accelerated corrective action rather than a delay, a decrease in the average lead allowed in gasoline rather than an increase, and a greater restriction of maximum permitted levels rather than removal of such restrictions. EDF concluded that the petroleum industry will only meet the new standards when it is required to do so, and that no additional delay should be allowed to increase and prolong the lead exposure of urban dwellers. EDF urged EPA to reconsider the valuable medical evidence, "keeping in mind that it is not only the cost effectiveness of automobile and gasoline production that deserves protection. Also threatened or already compromised is the health of millions of Americans."

ELI Undertakes Study of Energy Research Needs

The Institute is preparing a series of recommendations on non-technological research and development needs in the energy field under a grant from Resources for the Future (RFF), Washington, D.C. The Institute's proposals, together with those generated by RFF, will be submitted to the National Science Foundation (NSF). The study is being conducted in conjunction with the Federal Power Commission's Power Survey, and the research suggestions will be given to the Power Commission for consideration. It is also expected that many of the research needs identified by the ELI/RFF study will be considered for funding by NSF, private foundations, and other research organizations.

There has been considerable research—although certainly not enough—concerning the technological developments needed to solve the nation's energy problems. Likewise, there have been a number of strong policy positions taken by advocates of differing viewpoints. The Institute's study is not designed to treat either category. Instead, the Institute, speaking from the environmental viewpoint, will identify problem areas in which well conceived research or development studies might isolate the actual costs of policy alternatives, or might demonstrate and evaluate alternate implementation strategies for achieving stated goals, or might produce suitable institutional structures for decisionmaking. Examples of the type of problems that ELI's study will suggest for further research might include studies of incentive mechanisms for lowering energy consumption, suggestions for redesigning state regulatory agencies to improve their responsiveness to non-economic factors, or new mechanisms for reflecting heretofor unquantified environmental costs in energy prices.