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Issue

Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — May 1973

Articles

Environmental Court Vel Non

by Walter Kiechel Jr.

A somewhat obscure provision (§9) of the 88-page Federal Water Pollution Control Act Amendments of October 18, 1972 [Public Law No. 92-500] requires the president, acting through the Attorney General, to: (1) "[M]ake a full and complete investigation and study of the feasibility of establishing a separate court, or court system, having jurisdiction over environmental matters;" and, (2) Within one year from the date of the Act, "report the results of such investigation and study together with his recommendations to Congress."

Little is known of the thought processes behind this provision. The congressional committee [House Committee on Public Works] responsible for the provision stated only that:

Controlling Forest Service Discretion Under the Multiple Use Act

by Durwood J. Zaelke

Statutory standards for managing federal lands have not been adequately implemented by the land management agencies. The result is that environmental values are often severely damaged or completely overlooked. This Article examines the principal statutory management concept—multiple use—especially as it is applied by the Forest Service through the Multiple Use Act, and explores the few judicial attempts to control the multiple use concept. After providing a background by discussing the appropriate standard for judicial review of informal administrative decisions, the Article examines the 1970 Dorothy Thomas case and the more recent Tongass Forest litigation. The Ninth Circuit's Tongass Forest decision is given special attention because it reasserts judicial control over the Forest Service's discretion to weigh the various statutory uses under the Multiple Use Act. In addition, the Article suggests that vigorous enforcement of the National Environmental Policy Act by the land management agencies, although not yet a reality, has the potential for providing much of the environmental protection presently lacking in the agencies' procedures. The Article concludes by stating that NEPA and the Ninth Circuit Tongass decision provide a clear mandate for the land agencies to consider the four non-timber uses equally with timber use under the Multiple Use Act and to manage the public lands to maximize public benefits.

Wilderness Preservation I: A Recent Case and Not-So Recent Treaty

by Thomas G.P. Guilbert

A recent decision by a district court in Minnesota, Izaak Walton League v. St. Clair,1 has brought again to national consciousness the anomalous exemption granted to mining activities2 in the Wilderness Act of 1964.3 That exemption,4 allegedly inserted into the Wilderness Act by former Rep. Wayne Aspinall as the price of reporting the bill out of the House Committee on Interior and Insular Affairs,5 has been viewed with alarm by environmentalists, but has not heretofore been the subject of reported litigation.6

St. Clair made national headlines7 because sweeping language in the section of the opinion entitled "Conclusion" apparently struck down the entire mining activities exemption, and perhaps other provisions in the Wilderness Act that limit the absolute protection of the wilderness character of designated areas:8

Comment(s)

CEQ Proposes New Guidelines for NEPA

The Council on Environmental Quality has once again proposed revisions in its guidelines.1 ELR subscribers were sent Federal Register reprints of the proposed guidelines as an insert with the regular monthly mailing of the April 1973 issue, to enable them to respond to CEQ within the brief 45-day comment period. Here, ELR will simply summarize the major changes and provisions in the guidelines.

By way of background, CEQ published interim guidelines not long after NEPA became law.2 From the beginning, CEQ called upon the separate agencies to prepare their own NEPA procedures with the assistance of CEQ staff and with guidance afforded by the Guidelines. ELR's first issue, in fact, carried the NEPA procedures of 20 agencies.3 CEQ's second set of guidelines were published in late April 1971.4 Most agencies responded by revising their internal procedures, albeit slowly,5 and released them to the public in some form, although not necessarily through the Federal Register. In a laudable action that went unchallenged, CEQ itself undertook to place in the Federal Register for comment those procedures that some agencies had neglected to publish themselves.6 As users of ELR know, ELR has published all available agency procedures since the commencement of NEPA's implementation. A complete listing is contained in the Table of Contents to the Statutory & Administrative Materials tabular section.

Justice Department Study of Environmental Courts: Article by Deputy Assistant Attorney General Kiechel in This Issue

The Justice Department is presently investigating the feasibility of establishing a separate court system having exclusive jurisdiction over environmental issues.Section 9 of the Federal Water Pollution Control Act Amendments of 1972 authorized the study that will culminate in a report to Congress by October 1973. As the keynote address of a two-day conference of the Special Committee on Environmental Law of the ABA, Deputy Assistant Attorney General Walter Kiechel Jr. of the Justice Department gave a progress report on the feasibility study.1 Although the study is not yet half over, it appears that Justice will probably recommend strongly against establishing an environmental court.

In his address, Mr. Kiechel described the three proposed models for an environmental court. The first model is patterned after the Court of Claims and would have jurisdiction to hear environmental cases generally. Trial judges would hear trial matters, and a panel of such judges would constitute a reviewing court. Jurisdiction would be exclusive. The second model would establish a panel of judges with exclusive jurisdiction to review federal administrative decisions affecting the environment. This would be the sole function of the court. The third model would also have a panel of judges, but the review would only encompass decisions of designated agencies or of specified matters of such agencies.

The Independent Offices Appropriations Act of 1952: Who Should Pay for Preparing the Impact Statement?

The Council on Environmental Quality estimates that the federal agencies will spend $65 million annually to administer the National Environmental Policy Act when its provisions are fully operable.1 After some initial agency attempts to delegate substantially all of the burden of impact statement preparation, the Greene County case2 reversed the trend by stressing that the federal agencies themselves were primarily responsible for preparing the impact statement. This Comment suggests that, consistent with Greene County, a significant portion of the cost of preparation can be shifted to the nonfederal parties, without impairing the agencies' responsibility to undertake, on occasion, rather extensive field analyses for inclusion in the impact statement.

The mechanism for further shifting costs is the Independent Offices Appropriations Act of 1952, which confers authority on the federal agencies to charge parties for most, if not all, of the cost of impact statement preparation. The substantive burden of preparation, assessment, and analysis would not change; only the distribution of costs would. While preserving the duty of the agency itself to make the environmental assessment, the Act could aid in shifting the cost of compliance with NEPA to the direct beneficiaries of the "major federal action" that they have stimulated.

The Wilderness Act, Izaak Walton League v. St. Clair, and a Neglected 1942 Treaty on Wilderness: All the Subject of an Article in This Issue

A signed staff article in this month's issue discusses Izaak Walton League v. St. Clair, a recent Wilderness Act decision. The case raises anew the perplexing problem of how to resolve the contradiction between the policy and purposes of the 1964 Wilderness Act and the exemption for mining activities embedded in that Act. Thomas Guilbert finds, despite criticism of the opinion that has been heard from some quarters, that the holding in the case is sound and that the allegedly overbroad and overblown language of the widely-reported dictum stating that mineral rights must give way where wilderness is threatened has much to recommend it.

The most interesting and fully developed point made in the article, however, is an argument never raised in the St. Clair case: that the mining exemption should be strictly construed against because it is in derogation of the international obligations of the United States. Specifically, mining activities would violate the Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere, ELR 40346, which defines "strict wilderness reserves" in such a way that the National Wilderness Preservation System must be included, and then sets strict limitations on what activities the contracting nations may allow in such areas. Thus, the most vexing loophole in the Wilderness Act—the mining exemption—may have been closed off long before its self-included December 31, 1983, termination date, and environmentalists will be able to devote more attention toward getting Congress to add new areas to the Wilderness System, and less toward protecting already included areas against pickaxe and steam shovel.

State Water Board Decision May Halt New Melones Project

The decision of a state administrative agency recently went a long way toward mitigating the worst of the environmental impacts associated with the New Melones Dam on the Stanislaus River in California. The decision by the California Water Resources Control Board gives a much-needed shot in the arm to litigation on the project in federal district court. The controversy illustrates how environmental protection efforts, even for a large federal project, may often proceed as energetically and forcefully on the state level as on the federal. The result here must be contrasted to the less successful efforts of parties in the long-lived Storm King litigation to achieve a more searching state review of the merits of the pumped storage project at issue in that case, via the state certification of water quality required by §21(b) of the Water Quality Improvement Act of 1970.1

On April 4, 1973, the California Water Resources Control Board issued Decision 1422, which adjudicated the U.S. Bureau of Reclamation's applications for water rights permits to the Stanislaus River. Its order contains 25 conditions, the net effect of which is to allow New Melones Reservoir to be filled less than halfway (1.1 million of 2.4 million acre-feet storage) and to protect almost all of the whitewater reach of the Stanislaus, which the Board found to be a "unique asset to the state and the nation."

Judicial Control of Agency Discretion Under The Multiple Use Act: Article in This Issue

Judicial control of administrative discretion under the Multiple Use Act is the subject of a staff article in this issue by Mr. Durwood Zaelke, Assistant Editor of ELR. The article, which is entitled Controlling Forest Service Discretion Under the Multiple Use Act and appears at 3 ELR 50017, examines the Forest Service's procedures under the Multiple Use-Sustained Yield Act and explores the few judicial attempts to control the agency's discretion. After stating the appropriate standard for judicial review of informal agency decisions, the article discusses the 1970 Dorothy Thomas case and the more recent Tongass Forest litigation. The Ninth Circuit's Tongass Forest decision is given special attention in its reassertion of judicial control over the Forest Service's discretion to weigh the various statutory uses under the Multiple Use-Sustained Yield Act. In addition, Mr. Zaelke suggests that vigorous enforcement of the National Environmental Policy Act by the land-management agencies, though not yet a reality, has the potential for providing much of the environmental protection presently lacking in the agencies' procedures. The article concludes optimistically by stating that together, NEPA and the Ninth Circuit Tongass Forest decision provide a clear mandate for the land agencies to consider the four non-timber uses equally with timber use under the Multiple Use-Sustained Yield Act and to manage the public lands to maximize public benefits.

New SEC Environmental Disclosure Rules

The Securities and Exchange Commission recently adopted rules requiring companies to disclose the financial effect of compliance with federal, state, and local environmental protection laws. The rules, which become effective July 3, 1973, also require disclosure of information regarding environmental litigation in which the companies are involved. Adopted pursuant to the Securities Act of 1933, the Securities Exchange Act of 1934 and the National Environmental Policy Act of 1969, the rules are expected to promote the purposes of NEPA.

The forms affected include those filed when a company registers securities, the annual reports of such companies, and forms for reporting the occurrence of specific events that the SEC deems material to the economic interests of stockholders. (On materiality, see infra.) The latter forms must be filed within one month after the occurrence of one of the enumerated events, including "material" litigation.