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Volume 5, Issue 8 — August 1975

Articles

Toward Compatible International and Domestic Regimes of Civil Liability for Oil Pollution of Navigable Waters

by Lance D. Wood

Even though the highly-publicized problem of vessel-source oil pollution has generated much discussion among attorneys in the United States and in other nations,1 the private-law remedies for oil pollution damage both here and abroad remain grossly inadequate. The vast majority of those United States citizens who are exposed to detrimental aftereffects of oil spills from ships still have little or no chance to recover any compensation for their losses under state or federal law.

The only comprehensive plan yet adopted to deal with the international problem of liability for oil discharges from vessels that transport oil is found in the two related treaties drafted under the aegis of the Inter-Governmental Maritime Consultative Organization (IMCO), a specialized agency of the United Nations. These proposed treaties are the International Convention on Civil Liability for Oil Pollution Damage2 (hereinafter the "Civil Liability Convention" or "Liability Convention") and the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage3 (hereinafter the "Fund Convention").

The ESECA Coal Conversion Program: Saving Oil the Hard Way

by Robert Meltz

Though the Arab oil embargo recedes mercifully into history, its legislative progeny remain with us. One such creation is the Energy Supply and Environmental Coordination Act of 19741 (ESECA), a proclamation by Congress that the oil- and gas-burning electric utilities of the nation would, where feasible, have to convert to the use of coal. Recent months have seen this mandate move from rhetoric to reality in a dizzying rush of events that included issuance of impact statements, promulgation of regulations, issuance of conversion orders, and congressional consideration of amendments.

It is time to take stock.

Some environmental issues are clear-cut, capable of being fully analyzed within their own four corners. Coal conversion epitomizes the opposite type, touching as it does on several of the most intensely fought environmental issues of the day. It has, most visibly, led to disconcerting pressures upon the Clean Air Act, an enactment already under anti-environmental fire. It has renewed the prennial debate on the health effects of the stationary source emissions, and has provided a focus for further attacks on the stack gas scrubber. It has brought new urgency to the stripmining controversy. Lastly, and most significant, it has forced government officialdom to ask the critical question: Where should the burden of the nation's drive to reduce oil consumption and lessen import dependency fall most heavily?

Synthetics, Latent Risks, and Governmental Response: The Case of Fluorocarbons and Stratospheric Ozone

by John E. Schulz

At the molecular level, it has always been a chemical world. But since the 1930s, when the chemical industry began its phenomenal 15 percent annual growth, it has become a synthetic chemical world. Some 250,000 new artificial chemical compounds are invented each year, of which over 500 are introduced into general use; about 10,000 synthetic organic chemicals are already in industrial, commercial and personal use as fuels, lubricants, plasticizers, food additives, feed additives, preservatives, packaging and construction materials, cosmetics, drugs, household convenience products, pigments, aerosol propellants, wearing apparel, and so on. Annual worldwide production of synthetic organic chemicals, which jumped from seven million tons in 1950 to 63 million tons in 1970, is expected to attain 250 million tons by 1985.

Comment(s)

Comprehensive Planning Under NEPA: D.C. Circuit Widens Applicability of Program Impact Statement

The vast majority of environmental impact statements prepared under the National Environmental Policy Act (NEPA) during the last five years have concerned the localized environmental effects of particular major federal actions such as highway segments and dams, or of specific federal loans, grants, permits, and licenses. That NEPA was intended to have such an impact at the lower levels of federal decisionmaking, where most decisions regarding environmentally harmful projects are formulated and made final, is clear from its legislative history.1

A more recent and equally important trend regarding the "environmental quality" of federal decisionmaking, however, has been growing recognition among both agencies and courts that in certain circumstances NEPA also requires preparation of "program" environmental impact statements, that is, statements that examine the environmental effects of a broad federal policy or program decision, which will entail a number of discreet major federal actions. In an important decision2 written by Judge J. Skelley Wright, the D.C. Circuit Court of Appeals has now extended this doctrine by holding that NEPA can require preparation of a program EIS on nominally independent major federal actions within the same geographical area, even where the government claims no federal program exists.

United States District Court Extends Impact Statement to Annual Budget Request

In a far-reaching decision announced June 6, 1975,1 District Court Judge John H. Pratt has ordered the Department of Interior to prepare, consider, and disseminate environmental impact statements on annual budget requests for financing the National Wildlife Refuge System. Judge Pratt found that such requests are "proposals for legislation" within the meaning of §102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), and are also "major federal actions" that clearly have a significant effect on the environment. Furthermore, the decision orders the Director of the Office of Management and Budget (OMB), also a defendant in the action, to develop formal methods and procedures that will, with respect to OMB's own administrative actions and proposals, "identify those agency actions requiring environmental impact statements to be prepared, considered and disseminated."

The suit, brought by the Sierra Club and other environmental organizations in July 1974, challenged threatened cutbacks in federal ownership, management, and financing of the Refuge System. The System consists of more than 350 refuge units, totaling over 30 million acres of land and water, and is administered by the Fish and Wildlife Service, an arm of the Department of the Interior.

SCRAP II: No Excuse for NEPA Foot-Dragging

Hard cases make bad law. So do unique, serpentine factual patterns. In a seven to one decision handed down June 24 in just such a case,1 the Supreme Court "excused," in the words of dissenting Justice Douglas, "a history of foot-dragging" by the Interstate Commerce Commission in complying with the mandates of the National Environmental Policy Act (NEPA).2 The Court reversed a three-judge district court decision3 that held inadequate the ICC's environmental impact statement on proposed increased rates for rail freight including recyclables. But the Court's apparent relaxation of NEPA's impact statement requirements is significantly limited to the peculiarities of the proceeding under review.

The nation's railroad, environmentalists charge, discriminate in their rate schedules against recyclable commodities in favor of virgin materials, forcing scrap materials to pay for more than their fair share of the ride. This practice has an allegedly direct effect on the economic efficacy of recycling programs. The discriminatory practices have been exacerbated, it is claimed, by across-the-board increases requested by the railroads in 1972 and approved by the ICC.

Congress Orders Moratorium on Garrison Diversion Unit

In June 1975, Congress finally diverted the Bureau of Reclamation's Garrison Diversion Unit, a massive irrigation project with potentially catastrophic environmental and diplomatic impacts. The House voted 377 to 28 to approve an appropriations bill for public water and power development that included an amendment calling for a temporary halt to the Garrison project, now 18 percent complete, and allocating one million dollars to study present plans and alternatives "in order to provide the basis for a sound environmental decision on whether or not to proceed with the project."1 In part, the vote reflected urgent congressional concern which followed revelation of Reclamation Commissioner Gilbert Stamm's sub rosa suggestions that studies of potential alternatives be withheld from State Department officials who have been conducting GDU negotiations with Canada. Though the decision followed formal objection to the plan by Canadian officials, who predicted pollution in violation of the Boundary Waters Treaty of 1909,2 the amendment is concerned with more than international legal issues. Publication of previously secret Interior Department memos also revealed that Reclamation had not actually run the economic-environmental analyses that supposedly proved all alternatives to the Garrison Diversion Unit to be "infeasible," as reported in the environmental impact statement (EIS). The proposed study will entail a thorough evaluation of the Unit's environmental impact on North Dakota and neighboring states, as well as on Canada, and a concrete economic analysis of costs and benefits. Because funds are not to be cut off until the end of the current fiscal year, which runs until September 30, 1976, the vote provides only a limited victory for environmentalists; 13.6 million dollars remain to be used for 1976 construction.