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Volume 5, Issue 10 — October 1975


Section 7 of the Endangered Species Act of 1973: A Significant Restriction for All Federal Activities

by Lance D. Wood

In legislation and administrative regulations of great potential significance, Congress and the federal executive departments have committed the United States to the protection of animal and plant species that are threatened with extinction. The primary instrument for implementing that commitment is the Endangered Species Act of 1973,1 a statute that now is emerging as an important component of federal law.

Undoubtedly, many federal administrators and judges have little awareness of, or sympathy for, the new national policy to preserve rate animals and plants. However, all attorneys and federal officials should recognize the great potential impact that the Endangered Species Act can have on virtually any type of activity that involves the federal government.

A Look at the Present Status of the Breeder Reactor Program: Power "Too Cheap to Meter" Revisited

by James L. Harrop

Recent developments in both the Congress and various federal agencies may have significantly altered the once rosy future of the Liquid Metal Fast Breeder Reactor (LMFBR) program. Only four years ago, the program was endorsed by the Nixon Administration for commercial development in this decade as urgently as the Kennedy Administration pledged to place an astronaut on the moon by the end of the last.1 As recently as his State of the Union Message last January, President Ford stressed the importance of the breeder reactor as a means of achieving energy independence. But the program has received an increasing amount of criticism over the last several years on the basis of seemingly inherent environmental, safety and economic problems. A battle royal thus seems to be brewing over the breeder, of which we may have seen only the opening skirmishes. This Article will recount and examine the arguments of both sides in this dispute, and will then focus on certain recent legislative and administrative developments in an attempt to determine where the breeder program now stands and to discern the likely directions of future conflict in this area.


How Slow Can You Grow? Ninth Circuit Upholds Constitutionality of Petaluma's Growth Control Plan

The question of whether and how to control growth has come to the fore in the last several years as one of the broadest and most serious environmental issues facing the United States.1 In the area of land use, this abstract question reduces to the dilemma of managing or controlling the rapid and chaotic development at the perimeters of metropolitan centers that has drastically reshaped the face of our nation since 1945.

Can a small city located within a larger metropolitan region and threatened with strong market pressures for development act to limit numerically its rate of growth? Or must it instead accept all who wish to live there, no matter what the environmental, social and energy costs associated with the resulting "sprawl?" On August 13, 1975, the Ninth Circuit Court of Appeals became the latest court to venture into the constitutional thicket surrounding these questions as it reversed a lower court and upheld a five-year housing and growth limitation plan adopted by the city of Petaluma, Californial.2

Two Amendments Leave NEPA Intact; Congress Confers Limited Authority on State Officials to Prepare NEPA Statements

A pair of amendments to the National Environmental Policy Act has recently been signed into law. One of the acts, Public Law No. 94-83, seeks to clarify federal and state roles in preparing environmental impact statements, and will have a significant bearing on future litigation directed at NEPA statements on federal aid highway projects and other federal actions. The second act authorizes 1976 appropriations and several minor administrative changes for the Council on Environmental Quality, of interest primarily to the Council itself. The texts of both acts, and the full text of NEPA as amended, are printed elsewhere in this issue of ELR.1 This comment addresses Pub. L. No. 94-83 only.

Public Law No. 94-83 is the enactment of H.R. 3130, a bill that was hotly debated both within and outside the environmental community from the time of its introduction by Congressman LaFalce (D-NY) in February, 1975.2 The original impetus behind the bill was the desire to override judicial decisions by the Second Circuit and more recently the Seventh Circuit Courts of Appeals, which held environmental impact statements inadequate under NEPA solely because they were prepared in the first instance by a state agency rather than the responsible federal official.3 As enacted, the measure declares, with a number of important provisos and limitations, that a NEPA impact statement "shall not be deemed to be legally insufficient solely by reason of having been prepared by a state agency or official." Some, including CEQ officials, viewed the bill's provisions merely as a legislative recognition of existing CEQ Guidelines that, in line with holdings of the Fourth, Fifth, Eighth, Ninth, and Tench Circuits, specify that significant and active participation by the federal agency is sufficient to satisfy NEPA.4 The CEQ Guidelines have long permitted state agencies, such as highway departments, to perform initial data collection on the environmental impacts of federally funded projects, and to transmit such data in the form of draft impact statements of the federal official responsible for circulating the impact statement for public and interagency comment and for ultimately filing the statement with CEQ.5

Fourth Circuit Affirms Ban on Clearcutting in Monongahela National Forest

In a landmark decision1 that may have far-reaching effects on the U.S. Forest Service's management of the nation's timber resources, the Fourth Circuit Court of Appeals has upheld a lower court ruling that the Organic Act of 18972 bans clearcutting on federally owned land in the Monongahela National Forest in West Virginia. Conservationists have strenuously objected to the use of this harvesting technique, which consists of felling all trees within a designated area regardless of size, age, or health, in national forests. They contend that it unnecessarily wastes growing trees, defaces the landscape, and creates serious erosion problems. Lumber companies, on the other hand, argue that clearcutting is the most efficient way to meet the nation's timber needs.3

In December 1973, a number of environmental groups, including the West Virginia Division of the Izaak Walton League, the Sierra Club, the Natural Resources Defense Council, and the West Virginia Highlands Conservancy, won a federal district dcourt injunction barring the Forest Service from allowing the cutting of trees within the Monongahela other than those that are "dead, matured, or large growth" and that have been individually marked prior to harvesting.4 The Service was also told not to permit the leaving of unmarketable felled timber at the harvesting site, and to revise its regulations in accordance with the court's opinion.

Federal Highway Administration Launches New Effort to Win Congressional Reduction of Its NEPA Obligations

The National Environmental Policy Act of 1969 (NEPA), now approaching its sixth year as the cornerstone of legal efforts to protect the environment, is still under attack by federal agencies seeking to limit, transfer, or avoid their NEPA workload. In August 1974, the Department of Housing and Urban Development won congressional authorization to transfer the responsibility for impact statement preparation to local and regional applicants for HUD funds under its community development block grant program.1 A year later, an effort initiated by the Federal Highway Administration (FHwA) led to the passage of Public Law 94-83, which amended NEPA to allow statewide agencies receiving federal funds to play a part in preparing NEPA statements previously required in some judicial circuits to be solely the product of the responsible federal officials.2 Both of these acts, however, incorporated elaborate statutory safeguards to protect the effectiveness of NEPA's operative provisions.

Now, other less-cautious proposals to reduce direct agency involvement in NEPA statement preparation are emerging. A number of energy bills have proposed exemptions or moratoria on NEPA requirements as they apply to energy resource development projects. The Office of Management and Budget, responding to a recent district court decision ordering it to promulgate NEPA regulations covering its own actions,3 has not ruled out asking Congress to exempt it and the whole budget process from NEPA. Several other like proposals, some of which are quite dubious, have also been advanced in congressional bills.4