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


Who Should Pay for the Impact Statement: More on the Independent Offices Appropriation Act of 1952

A Comment in last month's ELR1 described the decision of the District of Columbia Circuit in New England Power v. Federal Power Commission,2 which struck down the FPC's attempt to make itself self-sustaining under the 1952 Act by assessing a proportional share of the agency's costs to every company subject to FPC regulation. Since that time, the Supreme Court has granted certiorari to review that decision, as well as a decision of the Fifth Circuit that recently upheld an analogous fee schedule adopted by the FCC under the same statute.3 This Comment will further examine these two cases in light of ELR's earlier suggestion that under the 1952 Act, costs incurred by federal agencies in preparing NEPA impact statements could be billed to nonfederal parties.

The authority to charge costs to private parties derives from Title V of the 1952 Act, which states that it was the sense of Congress that

any work, service, publication, report, document, benefit, privilege, authority, use, franchise, permit certificate, registration or similar thing of value or utility performed, furnished, provided, granted, prepared, or issued by any federal agency . . . to or for any person . . . shall be self-sustaining to the full extent possible, and the head of each Federal agency is authorized . . . to prescribe therefor such fee, charge, or price, if any, as shall determine . . . to be fair and equitable taking into consideration direct and indirect cost to the government, value to the recipient, public policy or interest served, and other pertinent facts. . . .4

More About a Dusty but Vital Treaty: Article in This Isssue Rounds Out Discussion of the 1942 Convention

The discussion of the Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere, begun by Thomas Guilbert in an article in the May issue of ELR, is completed this month in an article at 3 ELR 50044. Readers of the first article will recognize the Convention as a broadly phrased treaty including wilderness preservation provisions that Mr. Guilbert marshalled in support of the recent decision in Izaak Walton League v. St. Clair.

In this month's article, Mr. Guilbert takes up some of the objections that may be interposed against introducing the Convention into a domestic legal proceeding and sketches out how the objections may be answered by the environmental lawyer. As he lists the obstacles to successful invocation of the treaty, he admits "the environmental lawyer may well ask if the flame is worth the candle": is the Convention worth the effort it would take to brief and argue for its introduction into court? Mr. Guilbert is of the opinion the exercise is worthwhile, for "in a close case, such as the recent St. Clair decision, or Parker v. United States, the Convention introduces a weighty new factor into the legal balancing process which may be decisive."

Federal Highway Administration Considers Publishing Procedures

The Federal Highway Administration (FHwA) recently promulgated additional regulations for public hearings on highway locations and design and for consideration of social, economic, and environmental effects in the development of federal-aid highway projects.1 These regulations codify earlier policies and procedures contained in Policy and Procedure Memorandum (PPM) 20-82 and Instructional Memorandums (IM) 20-3-72 and 20-4-72.3 The substance of those earlier documents has been brought over into the codification with few changes, although the highway department has been informally soliciting comments for a wholesale revision.

Promulgation of highway regulations has traditionally been a rare event. In an earlier ELR article,4 Ronald Peterson and Robert Kennan reviewed existing FHwA procedures and found them "incomplete, outdated and virtually inaccessible." At that time, only eight pages of FHwA procedures had been published as formal regulations. Since the publication of that article, FHwA has begun a process of reviewing all their operating procedures to determine which of them should be promulgated formally and published in the Federal Register. FHwA also plans to publish a manual of those internal procedures not viewed as appropriate for formal promulgation. The recent codification, the new Part 790, is the first amendment to result from the review process.

Cases Newly Filed Under §307 of the Clean Air Act Current Through April 30, 1973

(See Comment, Litigation Under the Clean Air Act, 3 ELR 10007, and Table, 3 ELR 10022.)