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Volume 6, Issue 12 — December 1976


Special Status of Wildlife Receives Judicial Approval

A number of judicial decisions have made 1976 a watershed year in the area of federal wildlife law, presaging increased litigation over the balance to be drawn between animals (particularly where Congress has mandated special consideration) and those forces that tend to promote commercial use of resources at the inevitable expense of wildlife. It is a battle that has been fought for years on the grand scale of the preservationists versus the developers, but now that greater interest has focused on the problem, the conflict has become particularized. And in the process, wildlife is beginning to obtain the protection that Congress has declared it is due.

Progress has not been easy. Although the Endangered Species Act1 became law in 1973, it was not until this year that the important §7, which mandates that federal activity may not "jeopardize the continued existence" of endangered and threatened species, has been given real substance by courts and agencies.2 Concern for the simple survival of the last 40 Mississippi sandhill cranes resulted in blocking an interstate highway from running through the cranes' habitat,3 but the fact that only about 2 percent of the entire population of 700,000 Indiana bats were in such imminent danger allowed a dam project to continue.4 In addition, opponents seeking to halt the Tellico Dam in the Little Tennessee River turned, as a last-ditch effort, to the strategy of preserving the snail darter, a small fish that was discovered in 1973 and put on the endangered species list by the Interior Department in November 1975.5 In the United States Supreme Court, the doctrine of implied federal reservation of rights in water was used to prevent withdrawal of water by a nearby farmer from the Devil's Hole National Monument, which would have exterminated the unique Devil's Hole pupfish, the preservation of which was one of the purposes behind creation of the National Monument.6

Michigan and Maine Pass Bottle Bills

Successful referenda on the ballot in recent elections have added Michigan and Maine to the growing number of states that require deposits on beverage containers1 and mark a significant gain toward improved control of solid waste. The new laws follow fairly closely the 1972 Oregon bottle bill, which is generally considered to be quite successful, and in combination with a very close race in Massachusetts indicate that the example set by Oregon may be catching on.2

Mandatory deposits on beverage containers represent an attempt to deal with a significant part of the solid waste problem; beverage containers amount to about eight percent of all solid waste and 54 to 70 percent of highway litter by volume.3 Other approaches to the beverage-container waste problem have ranged from a tax on litter, a minimal fee paid on the sale of each container at the point of purchase to be used for litter collection,4 to an outright ban on nonreturnable beverage containers.5 Besides litter control, mandatory deposits are also seen as a means of encouraging resource and energy conservation—last year, 60 billion beverage containers consumed 7 million tons of glass, 2 million tons of steel, and 500,000 tons of aluminum6—and less energy is needed to refill a bottle than to make a new container.

NEPA and National Defense: Trident Base Allowed to Proceed Despite Inadequate Impact Statement

On October 13, 1976, the United States Court of Appeals for the D.C. Circuit found the United States Navy's environmental impact statement for construction of the Trident nuclear submarine base in Bangor, Washington, deficient in two respects, but allowed construction to continue.1 Placing an interesting gloss on §§101(b)(1) and 102(2)(C)(iv) of NEPA, the court disapproved the Navy's failure to forecast Trident's environmental impacts beyond 1981, the projected completion date for the base. The court, in an opinion written by Judge Tamm, also examined the relationship between NEPA and national defense, holding that the Navy's strategic decisions relating to Trident were not exempt from NEPA's requirements. No injunction was issued, however, because the Navy's decision to proceed with the Trident base reflected a good-faith weighing of environmental factors and was not arbitrary. A second majority opinion written by Judge Leventhal and joined in by Judge Kaufman suggested that strong strategic considerations in favor of a project escalate the threshold of the NEPA violation required to warrant injunctive relief.

Plaintiffs in the case, local and national environmental groups and two persons residing in the Bangor area, had raised a number of questions concerning the adequacy of the impact statement, and alleged the Navy had failed to follow proper decisionmaking procedures regarding Trident. After a trial on the merits, the district court ruled against plaintiffs on all their allegations and dismissed the complaint.2

Losing the Battle . . . New York Court of Appeals Overturns Development Rights Transfer Scheme

So long as the Fifth Amendment to the United States Constitution exists, there will be litigation over the nature and extent of the takings question: when does governmental action abrogate private property rights through appropriation or arbitrariness? Equally certain is that there will be disagreement over the appropriate theoretical tests in takings litigation. What is uncertain, however, is the outcome of takings cases, dependent as they continue to be on the individual circumstances surrounding each case and upon judicial attitudes and perceptions of "due process" and "fairness." Several recent wetlands regulation cases in state courts exemplify these vagaries of takings law.1

A recent decision by the New York Court of Appeals, Fred F. French Investing Co. v. City of New York,2 attempts to smooth some of the conceptual turmoil in the takings area. The court may, however, have merely multiplied the confusion. In the process, land use controls advocates may have merely lost a battle in preparation for winning their war.

CEQ Issues Less Ambitious Seventh Annual Report

Without much fanfare, the Council on Environmental Quality has issued its seventh annual report, a document notable for both its brevity and relative punctuality.Entitled Environmental Quality—1976,1 it totals only 378 pages, barely one-half the length of last year's report. As CEQ notes in the Preface, this shortening is purposeful; the Council has adopted a new format which it hopes will make the report more useful as a reference document. Lengthy chapters on special topics such as those on carcinogens in 1975 and land use in 1974 will henceforth be issued as individual publications rather than included in annual reports. The first example of this new policy seems to be Environmental Impact Statements: An Analysis of Six Years' Experience by Seventy Federal Agencies, a 103-page study issued by the Council in March 1976. Perhaps, as a consequence of this separate publication, the section in this year's report dealing with the National Environmental Policy Act (NEPA) has shrunk to 15 pages, as compared to 38 pages in last year's volume.

Rather than a number of chapters covering broad subject areas, the 1976 report is divided into only two parts: "Events of the Past Year," which recounts new legislative, judicial, administrative and private sector developments affecting the environment, and "Conditions and Trends," which analyzes data relating to environmental improvement or deterioration. These two sections are then broken down into subject area subcategories within which discrete events or issues are described and discussed.