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


The Supreme Court Limits Attorneys' Fee Awards

The public interest suffered a major judicial setback on May 12, when the Supreme Court announced its decision in Alyeska Pipeline Service Co. v. Wilderness Society,1 declaring erroneous a line of decisions awarding attorneys' fees to environmental and other public interest plaintiffs.2 The five-Justice majority held that only Congress, not the courts, can authorize an exception to the "American rule" that attorneys' fees cannot ordinarily be recovered by a prevailing party from a losing party. In so holding, the Court reversed a United States Court of Appeals decision that such awards are within the equitable powers of the federal courts when plaintiffs have served as private attorneys general by enforcing an important public policy.3 Justices Marshall and Brennan agreed with the Court of Appeals, and reasoned that the case was a proper one for the exercise of the Court's power in equity to award attorneys' fees to plaintiffs. Justices Douglas and Powell did not take part in the case.

Justice White, writing for the majority, offered no assessment of the American rule itself, limiting the decision to a holding that establishing an exception to the American rule for plaintiffs serving as private attorneys general is properly a matter for the Conress and not the courts.4 Thus, the majority never reached the merits of the plaintiffs claim for an award of attorneys' fees. In effect, however, the result was to deny the request, since the basis on which it was granted in the Court of Appeals was struck down by the High Court.

Comprehensive Wetlands Protection: One Step Closer to Full Implementation of §404 of the FWPCA

A recent court ruling has brought one step closer to resolution the long-simmering dispute between the Army Corps of Engineers on the one hand and EPA, the Department of Justice, and numerous environmental groups on the other, concerning the proper scope of federal regulatory jurisdiction over dredge and fill activities throughout the nation. The Corps' position has been that §404 of the Federal Water Pollution Control Act Amendments of 1972 does not significantly expand the Corps' traditionally limited jurisdiction over the depositing of dredged or fill material in "navigable waters." EPA and several environmental groups have contended, however, that §404 does indeed enlarge the scope of the Corps' fill jurisdiction so as to cover such projects in "waters of the United States," a much broader category of water resources including for instance, environmentally critical, non-tidal, inland wetlands.

The Corps' refusal to accept this expanded jurisdiction in its initial regulations governing the issuance of dredge and fill permits was challenged in federal district court by the Natural Resources Defense Council (NRDC) and the National Wildlife Federation. The primary motivation behind both the enactment of §404 and the filing of the lawsuit challenging the Corps' implementation of that provision was the protection of the nation's rapidly dwindling wetlands areas. These areas serve a number of vital ecological functions, including fish and shellfish propagation, recharge of groundwater supplies, natural flood control, biological and chemical water purification, and wildlife habitat. Yet, according to the National Wildlife Federal, the United States has already lost 40 percent—45 million acres—of its wetland resources, largely to filling projects.

NEPA's Power to Amend Other Federal Laws: EDF Seeks to Compel the FDA to Consider Environmental Criteria

Two previously unrelated trends, the demise of the returnable glass bottle and the evolution of NEPA into a substantive statute, have recently converged in a suit brought by the Environmental Defense Fund (EDF).1 EDF is challenging a regulation recently promulgated by the Food and Drug Administration (FDA) that severely restricts the impact of NEPA on the agency's decisionmaking process.2 If upheld, the agency rule will effectively render the FDA powerless to regulate the nationwide use of non-biogradable plastic beer and soft drink bottles on the grounds of their adverse environmental effects.

The regulation in question is general in scope, dealing with all FDA decisions involving NEPA. It acknowledges the agency's responsibility to comply with the procedural requirements of §102(2)(c) of NEPA, concerning the preparation of environmental impact statements. The agency, however, reads its enabling statute, the Federal Food, Drug, and Cosmetic Act (FFDCA),3 as both specifically restricting the criteria for FDA regulatory action to considerations of public health and safety, and requiring approval of any substance or packaging scheme if those criteria are not violated. FDA Commissioner Schmidt declined to read NEPA's declarations of environmental policy as broadening this regulatory mandate by supplementing or amending the agency's enabling act. Unless adverse environmental impacts can be shown to be either directly or indirectly related to a public health or safety hazard within the FDA's traditional areas of concern, the agency maintains that it has no legal authority to take these impacts into consideration.

ELI Engages in International Environmental Law Programs

The Environmental Law Institute has launched several programs in international and comparative environmental law in 1975.

In April, the Ford Foundation made a grant to ELI which will support research comparing the implementation of laws of several industrialized nations that govern the production, use, transportation, storage, cleanup of spills, and recycling or "ultimate" disposal of toxic substances. A related study supported by this grant will report on the implementation of Japan's 1973 law for the compensation of victims of pollution and compare it to the approaches prevailing in the United States and selected civil law nations. The Japanese approach projects the number of victims of toxic substance pollution, calculates the budget for a compensation fund, and allocates the costs of the fund to the companies which produce the substance. These concurrent, year-long studies will be carried out respectively by Will Irwin of ELI and Prof. Julian Gresser of the University of Hawaii Law School and should each result in a book useful to those who formulate and implement environmental policies. The Ford Foundation grant will also support publication of an ELI monograph by Will Irwin on various European nation's systems for charging for wastewater discharges.