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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — November 1976


Major New Public Land Laws Provide Detailed Guidance for Activities of Forest Service, Bureau of Land Management

Two of the most significant public lands laws in many years came out of the end-of-session logjam in the 94th Congress. Under the new laws, both the Forest Service and the Bureau of Land Management, whose practices have been the foci of criticism from environmentalists in recent years, have obtained broad new statutory guidance in carrying out their duties. (At press time, the President had not signed either bill, but no problems were anticipated.)

Congress Fails to Amend the Clean Air Act or §404 of the FWPCA

The proposed Clean Air Act Amendments of 1976, a product of almost two years of legislative effort, died on the last day of the 94th Congress, because of a Senate filibuster of the final version agreed to by Senate and House conferees. The legislation addressed numerous policy issues which have arisen during implementation of the original statute, including significant deterioration of currently clean air, the necessity for urban transportation controls, and control of air pollution from federal facilities. It also spoke to the general issue of extending the statutory compliance timetable for stationary sources and new automobiles where compliance with the deadlines currently imposed has proven impossible.

In a similar denouement, an amendment to §404 of the Federal Water Pollution Control Act1 aimed at modifying the Army Corps of Engineers authority for regulating dredge and fill activities in all waters of the United States also died when House and Senate conferees failed to agree on a conference report for the measure. Defeat of the §404 amendment leaves intact the current regulatory structure, generally regarded as comprehensive and workable by environmentalists.

From Microbes to Men: The New Toxic Substances Control Act and Bacterial Mutagenicity/Carcinogenicity Tests

On October 11, 1976, five years after initial introduction of federal legislation to regulate toxic substances, President Ford signed into law the Toxic Substances Control Act (TSCA).1 Although the regulatory scheme established by the TSCA is in some respects cumbersome and fragmented, due in large part to the close balance of opposing forces in the 94th Congress, the Act is probably the most significant piece of environmental legislation to be enacted in the last two years. Moreover, recent advances in the science of toxicology give substantial promise of easing the cumbersome and costly aspects of regulation under the TSCA.

The TSCA subjects a broad range of consumer, commerical and industrial chemicals and mixtures to direct (and, for new compounds, anticipatory) federal regulation for the first time. In general terms, it fills the regulatory gap between pesticides, already subject to pre-market screening by the Environmental Protection Agency (EPA), and food, drug and cosmetic chemicals, which fall under the jurisdiction of the Food and Drug Administration (FDA). The Toxics Act subjects to commercial restrictions any chemical found unreasonably hazardous by the Administrator of EPA.

Environmental Benefits of the Tax Reform Act

The Tax Reform Act of 1976, Pub. L. No. 94-455, signed by President Ford on October 4, 1976, includes among its hodge-podge of some 1,500 pages several provisions of interest to those involved with environmental protection. The Act establishes new lobbying rules for tax-exempt charitable organizations, adds tax incentives to encourage the preservation of historic structures, and changes the tax treatment of pollution control facilities.

Section 2502 of the Act1 provides a new elective set of tests for determining whether an organization (except a church, church affiliate, or private foundation) that is tax-exempt under Internal Revenue Code §501(c)(3) has engaged in lobbying activities sufficient to cause it to lose its tax exemption and qualification for receiving deductible contributions.

Second Circuit, CEQ Clarify Permissibility of Interim Actions Prior to Completion of Program EIS

In one of the first direct judicial responses to the Supreme Court's discussion last term in Kleppe v. Sierra Club1 of NEPA's programmatic impact statement requirements, the Second Circuit Court of Appeals has denied2 a motion for rehearing of its earlier decision in Natural Resources Defense Council v. Nuclear Regulatory Commission.3 Instead, the court reaffirmed its conclusion that the Nuclear Regulatory Commission (NRC) cannot license any commercial activities related to spent-fuel reprocessing and mixed-oxide fuel use by nuclear power plants until NRC has completed its supplemental NEPA inquiry into the safeguards aspect of the generic issue of plutonium recycling. This ruling, in combination with a recently-issued Council on Environmental Quality Memorandum to executive agencies, clarifies, at least to some extent, Kleppe's impact on one of the gray areas in NEPA law, the question of what interim action may be taken prior to completion of a programmatic impact statement.

The rehearing petition in Natural Resources Defense Council, Inc. v. NRC had argued that under Kleppe, individual NRC licensing actions could go forward if accompanied by adequate impact statements, despite the fact that the generic impact statement is as yet incomplete. This contention was based on footnotes 164 and 26,5 in Kleppe which apparently approve of such action in certain circumstances. Justice Powell suggested in footnote 16 that so long as the impact statement covering an individual action is adequate, there is no basis for enjoining that action pending preparation of a broader program statement. Footnote 26 followed this up by apparently disapproving the notion that completion of a program statement must preceed approval of individual projects. Noting that approval of one coal lease or mining plan does not foreordain the approval of others, the Supreme Court stated that "an agency could approve one pending project that is fully covered by an impact statement, then take into consideration the environmental effects of that existing project when preparing the comprehensive statement on the cumulative impact of the remaining proposals."6

Two Circuits Scuttle Expansion of Federal Common Law

Overlooked for many years as an enforcement tool, the doctrine of federal common law of water pollution rocketed to national prominence following the Supreme Court's historic decision in Illinois v. City of Milwaukee.1 Although the Court declined to exercise its original jurisdiction over the allegation by Illinois that Milwaukee caused a public nuisance by its discharge of raw sewage into Lake Michigan, it did hold that the word "laws" in the federal question statute, §1331(a),2 embraces federal court-created common law. It also found that federal district courts have jurisdiction to entertain claims by states (and perhaps others) that a defendant's discharges into "interstate or navigable waters" create a public nuisance.