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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — January 1975


Council on Environmental Quality, Fifth Annual Report, The National Environmental Policy Act

"The public interest requires doing today those things that men of intelligence and good will would wish, five or ten years hence, had been done," declared Edmund Burke nearly two centuries ago. At the turn of this decade, in pursuit of the public interest, Congress passed the National Environmental Policy Act1—a comprehensive national policy for restoring, protecting, and enhancing the quality of our environment.

In NEPA, Congress declared that "each person should enjoy a healthful environment, and . . . each person has the responsibility to contribute to the preservation and enhancement of the environment." Congress also authorized and directed that "to the fullest extent possible . . . the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act." And focusing on the decisionmaking processes of Federal departments and agencies, Congress ordered that agencies prepare an environmental impact statement in connection with every major action which significantly affects the environment. Congress further ordered that this environmental analysis accompany the corresponding proposal through the agency's decisionmaking process and that agency officials carefully consider it at each stage. In passing the law, Congress demanded no less than a major new way of thinking and acting by the executive agencies of the Federal Government.

The Deepwater Ports Act of 1974: Half Speed Ahead

by Robert Meltz

On January 3, 1975, the Deepwater Ports Act of 19741 was signed into law, and the United States thereby prepared to join the sizeable fraternity of nations already using this type of facility. Congressional consideration of deepwater ports—offshore tanker moorings at which oil is unloaded and piped ashore—led House and Senate committees through a tangle of vexing issues, including supertanker design, conflicting local and national interests, international law, antitrust implications, and the ubiquitous clash between energy needs and environmental considerations. The legislation, which was backed by both the Nixon and Ford administrations, gives primary responsibility for licensing and regulating deepwater ports beyond the three-mile limit to the Secretary of Transportation and contains strong environmental safeguards. The immediate effect of the Act, therefore, is to extend federal jurisdiction to facilities beyond the territorial waters of the United States, and thereby fill the regulatory void which has so far deterred deepwater port development.

A NEPA Settlement: Conservation Council of North Carolina v. Froehlke

by Thomas P. Davis

On February 5, 1974, a Consent Judgment in the case of Conservation Council of North Carolina v. Froehlke,1 signed by District Court Judge Eugene A. Gordon, was docketed in the United States District Court of North Carolina, thereby concluding a principal phase of litigation in the B. Everett Jordan Dam (formerly New Hope Dam) project controversy. The Judgment culminated a two-and-one-half-year legal battle in which the environmentalist plaintiffs had challenged the Army Corps of Engineers project on the grounds that its construction would violate the procedural and substantive mandates of the National Environmental Policy Act of 1969.2

By the terms of the Consent Judgment, although the Corps of Engineers was permitted to proceed with the completion of the dam structure, the environmentalist plaintiffs at least temporarily prevented the creation of a permanent conservation pool, thus postponing the clearing, and permitting, for the interim, alternate uses of 14,300 acres which otherwise would have been lake-bottom. The Corps agreed to operate the facility as a dry dam, allowing the water to be discharged from the outlet structure of the dam at the maximum flow rate consistent with the flood protection needs of downstream areas, and to reassess the reservoir water quality aspects of the project. This last point was, as shall be discussed below, the major environmental issue raised by the plaintiffs. Data for the water quality studies and for the operation of the dam as a flood retention structure were to be collected until March 1, 1975, following which a supplemental environmental statement will be prepared and circulated. Upon filing the final statement, expected by January 1, 1976, the Corps may then petition the Court for permission to strip the area and to impound water. Plaintiffs will have 30 days in which to respond to such a petition, and final disposition will be made at the district court level within 120 days.

The Case for the Returnable Beverage Container

by John R. Quarles Jr.

The beverage container industry has shifted over the last several years from a deposit-and-return system to the "throwaway" metal or glass container. Legislation has been introduced in Congress that would require a deposit on all containers of beer and soft drinks, and thus have the effect of causing a widespread return to "returnable" containers. Laws that have this objective have been enacted in three states and several communities, and have been presented to the governing bodies of numerous other communities and states.

Change in this area, however, is coming about slowly. The American consumer appears to prefer the "no-deposit, no-return" system. A trip along a few miles of a country road or a walk on a city street will attest to the convenience of having a container that can be discarded as soon as its contents have been consumed. The system is not only convenient for the consumer; it also is not burdensome to the retailer or the manufacturer.

Environmental Provisions in State Constitutions

by Roland M. Frye Jr.

In recent years, the United States has finally awakened to the fact that its environmental assets are being rapidly and irreparably depleted due to lack of care and foresight, and that this destruction of our environment could ultimately result in our own collective demise. Many citizens consider the problem serious enough to merit constitutional recognition and have been pressing for such reform at both the state and federal levels. The federal government's attitude towards granting such recognition can hardly be described as enthusiastic. The White House has made no recommendations in this direction. The Congress, with several notable exceptions, such as Sen. Gaylord Nelson2 and Rep. Richard Ottinger,3 has taken no action in this area. The federal courts have almost unanimously rejected all arguments that the 5th, 9th or 14th Amendments might be construed to contain a right to a decent environment.4 Furthermore, the Supreme Court's holding in Zahn v. International Paper Co.5 (that diversity suits cannot be maintained under Fed. R. Civ. P. 23(b)(3) on behalf of unnamed plaintiffs whose claims do not meet the jurisdictional amount requirements even though those of named plaintiffs do) will make it extremely difficult for environmental class action suits to be brought in federal courts.

However, efforts to incorporate environmental provisions into state constitutions have met with considerable success. This is due at least in part to the tremendous rise of interest in state constitutional reform within the last twenty-five years.6 Since 1950, state constitutions have received more official attention than in any similar period in the nation's history excepting possibly the Civil War and Reconstruction,7 and one of the most prevalent subjects of constitutional reform has been the environment. In fact, a survey on substantive changes in state constitutions from 1966 through 1972 found that a higher percentage of proposed amendments concerning the state functions of conservation and protection of the environment were passed than of proposals in any other area surveyed.8 Second place went to amendments to the Bills ofRights,9 several of which declared a right to a healthful environment.10 The fact that brevity is a feature common to all new state constitutions11 places these facts in an even more startling perspective. The noticeable trend towards ridding these documents of unnecessary subject matter is in striking contrast with the inclusion of one new subject—the environment—in all new or revised constitutions.12 The frequent inclusion of this heretofore largely neglected subject is an unusual development on the state constitutional scene; while it is a result of increased interest in constitutional reform, it is also an anomalous exception to the current tendency to excise material from constitutions.

A Prescriptive Analysis of the U.S. Navy's Program to Implement the National Environmental Policy Act

by Lance D. Wood

Editors' Summary: This Article examines the policies and systems with which the U.S. Navy implements the National Environmental Policy Act (NEPA). The author analyzes the many problems regarding NEPA compliance that the Navy has encountered, and proposes numerous reforms in the Navy's NEPA implementation system. This topic is especially timely because the Navy's NEPA program is currently facing a major court challenge in Concerned About Trident v. Schlesinger, in the U.S. District Court for the District of Columbia. In addition, the Navy's extensive NEPA experience carries lessons for other federal agencies that face many of the same questions and dilemmas in seeking to comply with the statute.

Speeding Past the Danger Signs, the American Joy Ride Rolls On

by John R. Quarles Jr.

It has been a year now since the term "energy crisis" burst into our vocabulary. To most of us, it meant sitting in a line for gasoline and hoping that we would make it to the pump. To some of us, it meant "dialing down" the heat in our homes and a hefty increase in our electric bills. But with the spring came the thaw. Gasoline was once more plentiful—no more lines and fearful waits. We turned off the heat and enjoyed the sunshine. Our electric bills were still high and prices of everything else seemed on the increase, too, but it was great to climb into the car once more and let the engine roar. We were back to normal again.The energy crisis was over.

I wish that it were so, but it is not. The Arab oil embargo was lifted, but we still face a snarl of critical energy problems. H.G. Wells once wrote that "the crisis of today is the joke of tomorrow." I would like to think he might be right, but I cannot believe that it will happen in this case.


Toward an Energy Policy: Recent Studies Offer Guidance in Assessing the Administation's Forthcoming Proposals

More than one year has passed since the Arab oil embargo threw a complacent America into temporary panic and made it clear that Americans have irrevocably added energy to food, clothing, and shelter as one of life's essentials. While the panic is gone, at least for now, the crisis is likely to be with us for a long time in one form or another. Our appetite for energy, already six times the world per capita average,1 continues to grow faster than our capacity to develop new sources of supply.

Remarkable agreement exists among analysts as to the dimensions of the crisis. Its essence is that while the United States relies on oil and gas for 77 percent of its energy needs (46 percent oil, 31 percent natural gas) only about 10 years of proven domestic oil and gas reserves remain at current prices. Domestic crude oil production peaked in 1970 and has been steadily declining ever since.2 United States' coal reserves will last more than 800 years at current rates of consumption, but coal presently constitutes only 18 percent of our usage, and efforts to increase that percentage carry high costs in terms of environmental damage and social disruption. It was our increasing reliance on imported sources of crude oil (35 percent of our crude oil needs in 1973) that put drivers into gas lines this time last year, and while they waited in those lines the per barrel price of imported crude oil rose from $3 to $11. Clearly, current usage patterns cannot continue much longer.

Tall Stacks Versus Scrubbers: $3.5-Million Publicity Campaign Fails to Discredit Emission Reduction Technology

The latest skirmish in the battle for clean air centers around a recently developed device known as the flue gas desulphurization system or "stack gas scrubber." This emission control device utilizes a process by which flue gases are passed through a water suspension, or slurry, of lime or limestone that chemically removes the toxic sulphur oxides from the smoke before it is released into the atmosphere. Since the principal sources of sulphur oxide emissions throughout the nation are coal-fired electric power plants, the scrubbers controversy has focused on whether these plants should be required to install the devices.

This dispute, unlike most other environmental controversies at the federal level, has not been limited to the usual administrative battlegrounds of hearing rooms, public comment within the rule-making process, and litigation. Donald C. Cook, feisty head of the American Electric Power Company, the nation's largest privately owned utility company, added a new twist by mounting a $3.5-million campaign of full-page advertisements in major newspapers and national news magazines vigorously attacking both the efficacy of scrubbers and the advisability of requiring their use by coal-fired power plants.1 The ads have been so strident—and sometimes misleading—as to draw strong public protests from both Russell Peterson, Chairman of the Council on Environmental Quality, and John Sawhill, at the time, head of the Federal Energy Administration.

Freon Endangers Ozone Layer, Increases Risk of Skin Cancer, NRDC Charges

In November, the Natural Resources Defense Council petitioned the Consumer Product Safety Commission for an immediate ban on spray cans using freon (a DuPont tradename) and similar fluorocarbons as a propellant. NRDC cited growing scientific evidence that the gases released from aerosol cans are causing gradual deterioration of the ozone layer in the upper atmosphere. The ozone layer, about 10 to 20 miles up, shields the earth from ultraviolet radiation, a major cause of skin cancer. A study conducted by Dr. Michael McElroy of Harvard University predicted that if the use of freon continues at present rates, the ozone layer will be diminished by 10 percent within 15 years, and that as a result, the incidence of skin cancer will rise by 20 percent. By the year 2000, the study estimated, the ozone layer will have been reduced by 14 percent.

The fluorocarbons used in aerosol cans were originally thought to be ideal propellants, owing to their chemical stability. In the past five years, use of freon has increased some 15 percent per year, in spray cans of cosmetics, paints, and a variety of household products. In 1972, 1 1/2 billion aerosol cans of cosmetics were sold, and some 700 million cans of household products. One million tons of freon are released into the atmosphere each year. Recently, however, scientists discovered that at stratospheric levels, ultraviolet light causes fluorocarbons to break down, releasing free chlorine atoms that in turn break down the ozone. The Atomic Energy Commission has found fluorocarbons in the stratosphere from as far north as Greenland to as far south as Argentina. The sharp decrease in the ozone layer began in 1971, after 10 years in which the density of the gas increased. That increase is attributed to the 1963 ban on nuclear testing in the atmosphere.