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Volume 3, Issue 7 — July 1973


More on Standing: The Supreme Court's Latest Word, The Tenth Circuit's Last Stand

The decision of the Supreme Court last year in Sierra Club v. Morton1 generated fears that the recent acceptance of broadened standing in environmental cases might be reversed. In its June 18th decision in United States v. SCRAP, the Court resolved some of the ambiguity inherent in Sierra Club v. Morton in favor of the trend toward liberalized standing requirements. The same day, however, the Tenth Circuit handed down a surprising decision in Natural Resources Defense Council v. Environmental Protection Agency2 that may serve as a reminder to environmental lawyers that standing must still be treated with some care in pleadings. For standing in another recent case, see the Comment in this issue on Scientists' Institute for Public Information v. Atomic Energy Comm.

Application of NEPA to Long-Range Technology Development Programs: SIPI v. AEC

The U.S. Court of Appeals for the District of Columbia Circuit has issued another landmark decision under the National Environmental Policy Act. The ruling in Scientists' Institute for Public Information, Inc. v. Atomic Energy Commission, reprinted in full at 3 ELR 20525, goes significantly beyond the court's earlier decisions in Calvert Cliffs1 and NRDC v. Morton.2 After three years of litigation that has largely focused on the application of NEPA's action-forcing requirements to discrete federal projects, SIPI shifts attention to NEPA's impact on the earliest phases of agency policy formulation and program development.3

The case deals with the AEC's long-range commitment to develop the Liquid-Metal Fast Breeder Reactor (LMFBR), so-called because of its capacity to generate fuel for other reactors. Research in the area has been encouraged within the AEC for over 20 years, with Congress recently appropriating an average of $100 million per year for the program. Future outlays will bring the total to about $2 billion by 1980, as much as that spent federally for the development of all other energy sources combined. The AEC estimates that by the year 2000, one-fourth of all electrical energy in the United States will be produced by LMFBRs. At that same time, the breeder will have also produced 600,000 cubic feet of high-level concentrated radioactive wastes that will retain harmful levels of radioactivity for hundreds of years. In light of the program's rapid movement toward implementation and its potential environmental hazards, the plaintiffs requested that a programmatic impact statement assessing aggregate effects and technological alternatives be filed now while the program is still in the research and development stages.

Oregon's "Bottle Bill" Survives Challenges, Produces Results

On October 1, 1972, the Oregon Minimum Deposit Act,1 popularly known as the "bottle bill," went into effect. The first state act of its kind, the controversial Minimum Deposit Act seeks to reduce roadside litter by requiring refunds to be paid on all beer, malt, and carbonated soft drink containers and by banning pull-top cans. The main force of the law is directed against popular use of disposable beverage cans and bottles, a significant step inasmuch as the Crusade for a Cleaner Environment recently estimated that it now costs the nation $1.5 billion per year to dispose of cans, nonreturnable bottles, and plastic containers.

In promoting the use of returnable beverage containers, the Act has a three-fold purpose. Primarily it is a latter reduction measure. However, the law also provides a way to conserve energy, since returnable beverage containers have a considerably lower energy loss than disposable cans and bottles. Finally, the law promotes a method of resource conservation other than recycling, which has had little concrete success in Oregon. Rodale's Environmental Action Bulletin reports that glass returned by local citizens to a Portland Owens-Illinois bottle manufacturing plant represented less than five percent of the plant's total production.

Impoundment: Courts Move to Compel Release of Withheld Funds

Last month's ELR reported the decision of the District Court for the District of Columbia in City of New York v. Ruckelshaus,1 ordering the Administrator of EPA to allot among the states the entire sum authorized by Congress for water quality improvement under the Federal Water Pollution Control Amendments of 1972. The ruling invalidates the Administrator's December 1972 order, issued at the direction of the president, by which no more than $2 billion of the $5 billion authorized under FWPCA for fiscal 1972, and $3 billion of the $6 billion authorized for fiscal 1973, could be allotted. Once an allotment to a state is made, applications for grants for the construction of sewage treatment facilities may be acted upon by the Administrator.

The ruling represents a victory for proponents of environmental improvement. It also constitutes another in a series of courtroom triumphs for Congress in its continuing battle with the Nixon Administration over the "impoundment" of funds.2 In fact, the Administration has yet to score its first success in the courts on the impoundment issue.

Project Rio Blanco Goes Ahead Despite Envionmental Challenges

On May 17th, the Atomic Energy Commission, in conjunction with the CER Geonuclear Corporation, exploded three 30- kiloton nuclear devices beneath Rio Blanco County in northwest Colorado in an experiment designed to test the feasibility of releasing natural gas trapped below the earth's surface. Repercussions from the project, both figurative and literal, may extend into the distant future. Prior to the blast, numerous objections were raised during the public comment procedure under NEPA and in a hearing held by the Subcommittee on Public Lands of the Senate Interior and Insular Affairs Committee, chaired by Senator Haskell of Colorado. The merits of the project were also argued in a lawsuit filed in state court by several environmental groups that challenged the grant of a permit by the Colorado Water Pollution Control Commission for the disposal of radioactive waste.1

Project Rio Blanco is the last of three undergroud explosions comprising the first phase of a three-part program developed under the Plowshare Program, which seeks to find peaceful uses for nuclear explosives. The AEC claims that later phases will be undertaken only if Rio Blanco proves successful and if private industry remains interested in paying most of the costs. If undertaken, the second phase will involve 12 to 30 additional detonations testing the feasibility of further development. A third phase would require 60 to 300 nuclear explosions to create 20 to 60 producing wells, a number intended to justify the construction of a major gas pipeline into the area. Full development of these natural gas reserves would involve 400 to 1400 detonations throughout the Rocky Mountain region over a period of about 35 years. The AEC believes that there is approximately 300 trillion cubic feet (tcf) of recoverable gas in the area, and that if the experiments are successful, one tcf per year could be made available, a significant contribution to the present national gas consumption rate of almost 25 tcf per year.

California Asserts Authority to Control Environmental Effects of Federal Reclamation Project

On June 12, the Attorney General of California filed suit in federal district court seeking a judgment that the state may impose reasonable conditions on the operation of a federal water project in order to protect environmental interests. The action, California v. Morton,1 grows out of a conflict between the State Water Resources Control Board and the U.S. Bureau of Reclamation regarding the operation of the federal Central Valley Project (CVP). State review of the program has been more responsive to environmental concerns and has now forced a confrontation on the limits of a state's authority to protect these interests against federal encroachment. The litigation demonstrates an increased momentum on the state level in efforts to protect the environment, encouraged by recent federal legislation and implemented by state environmental quality statutes.

California has a long history of attempts to better manage its water resources. The state experiences both spring floods and summer droughts, with much of its land unusable and growth in many areas limited without water transported from other parts of the state. In 1919, the state attempted to solve this situation with the "Marshall Plan," a statewide plan for water management proposed by Colonel Robert Marshall of the U.S. Geological Survey. When state resources to cope with the problem were outstripped, Congress passed legislation that created the Central Valley Project, now the largest reclamation project in the United States. Total reservoir capacity presently exceeds 8.5 million acre-feet of water.

Settlement Fixes Deadlines for EPA Compliance With Water Act: New Notice Requirements for Agency Actions

On October 16, 1972, Congress passed the Federal Water Pollution Control Act Amendments over the president's veto.1 The Act, which took effect immediately, settled numerous discretionary and non-discretionary duties on the Administrator of EPA and prescribed deadlines for compliance with his mandatory responsibilities. In May 1973, the National Resources Defense Council filed suit against Robert Fri, the agency's Acting Administrator, alleging failure to perform the duties mandated by fourteen separate provisions of the new law, despite expiration of the time limits set on his actions ranging from mid-December to mid-May. In early June, the parties signed a stipulation agreement, setting new deadlines for agency compliance with the 14 statutory directives.2

Criminal Liability of Corporation President From Corporate Facilities: Stock v. Alaska

The superior court case of Stock v. Alaska1 has established for the first time in that state standards for determining when an officer of a corporation can be held criminally liable for the acts of his corporation. At issue in this appeal was the criminal conviction of a corporation president for allowing raw sewage from his corporately-owned Juneau trailer court to flow into state waters in violation of the state water pollution statute.

Although the defendant did not personally cause the discharge of sewage, the court found that he knew of the illegal situation, and that, having the necessary authority, he exposed himself to criminal liability by not ordering the discharge stopped. The judge also made clear that the prosecution of a pollution-related offense can be initiated in the same manner as any other criminal violation, i.e., by the issuance of a summons or warrant at any time upon probable cause. The enforcement agency does not need to issue prior notices and compliance orders before proceeding.

National Wildlife Federation Files Suit Challenging Federal Highway Regulations

The National Wildlife Federation recently filed three suits seeking to reform Federal Highway Administration (FHwA) procedures for administering the federal-aid highway program. Readers of ELR will recall that last month's issue included a Comment regarding the partial publication of FHwA procedures. That Comment in turn relied upon an earlier ELR article co-authored by Robert Kennan, attorney for the National Wildlife Federation, which criticized the FHwA for failing to give its procedures adequate circulation.1

The first lawsuit is directed at FHwA's unwillingness to make a firm commitment to publish those of its procedures that fit the definition of "rules" under the Administrative Procedure Act. The second suit challenges the provision in the new Part 790.9(f) of the Code of Federal Regulations that amends previous procedures so as to allow for possible right-of-way acquisition before a corridor hearing on the location of a highway.2 The third suit asks that FHwA policy exempting certain projects that received design approval before February 1, 1971, from environmental impact statement requirements be judged in violation of NEPA.

Building Code Insulation Requirements for Energy Conservation

Two Ohio cities, Wooster and Cuyahoga Falls, have enacted strict insulation requirements for new construction in an effort to conserve energy. Proponents of the new ordinance estimate that the additional costs of construction caused by these insulation requirements will be more than offset by fuel savings in the long run. Meanwhile, fuel consumption will be substantially reduced.

The forerunners of these ordinances were minimum property standards for insulation promulgated in 1971 and 1972 by the Federal Housing Administration in response to CEQ requests that government agencies follow sound energy conservation practices.1 Residential and commercial space heating and cooling account for approximately 20.4 percent of the nation's total energy consumption.2 FHA-financed housing uses only a small fraction of this amount, but FHA nevertheless recognized an obligation to contribute to energy conservation by increasing insulation requirements in new construction that it financed.