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Issue

Volume 6, Issue 2 — February 1976

Comment(s)

Imminent Hazards From Pesticides: EPA Administrator Suspends Major Uses of Heptachlor and Chlordane

In an action reminiscent of his predecessor's handling of the DDT cancellation case,1 EPA Administrator Russell Train recently declined to follow an administrative law judge's recommendation and suspended registrations for the major uses of the pesticides chlordane and heptachlor.2 The ruling is expected to result in a drop of 70 and 85 percent, respectively, in the use of the chemicals.

The Administrator's analysis of the "imminent hazard" standard which governs suspension proceedings under §6 of the Federal Environmental Pesticide Control Act of 1972, still referred to as the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA),3 adds to the growing body of judicial and administrative law dealing with the latent health risks associated with environmental dispersion of various toxic industrial and agricultural chemicals. The decision also ventures into the thicket of weighing the risks presented by the continued use of chlordane and heptachlor against the economic benefits of such use.

FIFRA Amendment: Agricultural Interests Make Some Inroads at Expnse of Environment

In mid-November 1975, a congressional conference committee1 finally settled a bitter conflict which had broken out last summer between conservationists and farming interests over federal pesticide policy. The focus of the adversaries' well-prepared legislative campaigns, which quickly polarized the houses of Congress, was the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA),2 the funding authorization for which was due to expire November 15.

Agricultural groups and pesticide manufacturers objected primarily to FIFRA's original transfer of pesticide control power from the Secretary of Agriculture (Secretary) to the Administrator of the Environmental Protection Agency (Administrator). They claimed that this had deprived agricultural interests of adequate representation in the Administrator's pesticide control decisions, including cancellation of DDT, aldrin and dieldrin, and suspension of chlordane and heptachlor.3 Other major issues included composition of a newly-mandated scientific advisory panel, alleged burdensomeness of the Administrator's standards for certifying private applicators' knowledge of the dangers of highly toxic pesticides and retroactivity of FIFRA's provision requiring a pesticide registrant to pay reasonable compensation to an earlier registrant for reliance on his test data.

SEC's New Corporate Environmental Disclosure Rules Hinge on Overly Narrow Reading of Both Its Law and NEPA

The latest brief in a protracted legal struggle between environmentalists and the Securities and Exchange Commission (SEC) was filed in early November when the SEC published its proposed revised corporate environmental disclosure rules under the securities acts and National Environmental Policy Act (NEPA). The new rules promulgated in obedience to court order and following a month-long public hearing held last spring, add little to the Commission's original environmental disclosure rules, which the Natural Resources Defense Council (NRDC) and two other plaintiffs had previously attacked as not going far enough to meet the requirements of NEPA. An analysis of the new rules, of organic SEC authority, and of the dictates of NEPA compels the conclusion that the new rules also fail to go far enough to meet those requirements.

The original rules were promulgated in April 1973. Although Judge Richey invalidated the rulemaking procedure by which they were developed, he maintained them in effect pending further SEC rulemaking. The original rules require SEC registrants (corporations reporting to the SEC) to disclose all "material" effects of their compliance with environmental laws and any "material" environmental litigation involving the corporation.

Aesthetics Off the Pedestal: Massachusetts Supreme Judicial Court Upholds Aesthetics as Basis for Exercise of the Police Power

Beauty can indeed by viewed by the eyes of the law, the Massachusetts Supreme Judicial Court has concluded, rejecting a statutory and constitutional challenge to a town by-law prohibiting off-premise advertising signs in residential, industrial or business zones.1 The court held that a police power regulation does not violate due process simply because it is based solely on aesthetic considerations, and that municipalities may enact reasonable billboard regulations in order to preserve or enhance their urban environment. The ruling in John Donnelly & Sons, Inc. v. Outdoor Advertising Board adds Massachusetts to the growing ranks of states which have now progressed beyond Justice Pound's famous statement:

Beauty may not be queen but she is not an outcast beyond the pale of protection or respect. She may at least shelter herself under the wing of safety, morality or decency.2

Implementation of Section 208 In Finally Underway: Environmenal Law Institute Will Assist by Preparing Handbook for Designated Agencies

The Environmental Protection Agency recently awarded the Environmental Law Institute an eight-month contract to prepare a handbook which will assist local governmental bodies known as "208 planning agencies" in the design of regulatory programs for the control of water pollution. The handbook will focus on the legal and institutional aspects of programs regulating water pollution and will supplement other EPA technical studies.

Section 2081 is the most significant of several planning requirements in the Federal Water Pollution Control Act Amendments of 1972 (the Act).2 It provides for designation of state and local government agencies to do areawide waste treatment planning and management, including developing procedures for control of nonpoint sources of pollution, such as erosion, construction and agriculturally related run-off. Section 208 is the only provision in the Act that deals directly with these important sources of water pollution.

Federal Tax Policy Has Only Modest Impact on Recycling, Environmental Law Institute Study Concludes

Economist Robert C. Anderson and other members of the Environmental Law Institute staff recently completed a sixteen-month long study of the impact of the federal tax code on the recycling of scrap materials.1 The report, done under contract for the Environmental Protection Agency, measures the size of income tax subsidies enjoyed by certain virgin raw materials as compared with recycled materials, calculates the impact which these subsidies may have on the market price of virgin-based products, and estimates the impacts of these price effects on the amount of recycled resources in use. It concludes that tax subsidies alone have little impact on recycling and conservation of depletable resources.2

Many other economic factors appear to favor the use of primary or virgin raw materials over secondary or recycled materials.3 These include freight rates, souce labeling requirements, former federal procurement policies, federal mineral discovery policy, and municipal waste removal subsidies.