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Volume 6, Issue 5 — May 1976


Precautionary Controls: D.C. Circuit Upholds EPA's Phase-Down of Gasoline Lead Additives in the Interest of Public Health

The entire gamut of judicial responses to precautionary administrative action aimed at potential environmental threats to public health marked the D.C. Circuit's recent en banc decision1 upholding the Environmental Protection Agency's 1973 regulations requiringprogressive phasing out of gasoline lead additives in the interests of public health. The closeness of the vote,2 the depth of the differences between court majority and minority, and the lengths to which each side went to develop its arguments,3 all underscore the difficulties that the judiciary continues to have in reviewing future-oriented administrative action, even when supported by the relatively specific precautionary statutory authority of the Clean Air Act. And it is only by going to great lengths to minimize the uniqueness of the kind of risk assessment and uncertain prediction engaged in by the EPA Administrator in regulating lead that Judge Wright's opinion for the majority makes a beginning at incorporating such actions within the parameters of normal judicial review.

At issue was the Administrator's decision to promulgate regulations phasing out automotive lead additives under §211(c)(1)(A) of the Clean Air Amendments of 1970 (CAA).4 More specifically, the dispute centered around (1) EPA's interpretation of the statutory term "will endanger public health or welfare," which sets the threshold determination to be made before the Administrator can regulate fuel additives; (2) the adequacy of EPA's data base of scientific and medical studies to support its conclusion that airborne lead from automobile emissions presents a "serious risk of harm" to a significant portion of the urban public and a large fraction of urban children; (3) the proper scope and method of judicial review under the arbitrary and capricious standard as interpreted by the Supreme Court in Citizens to Preserve Overton Park v. Volpe,5 and (4) the procedural propriety of the manner in which the EPA promulgated the final regulations and their supporting data base. The court majority and minority were totally at odds over all these issues.

Fourth Circuit Rules EPA May Issue Presumptively Valid Effluent Limitations Under §301 of the FWPCA

The Fourth Circuit Court of Appeals has become the latest court to hand down a decision in the welter of litigation1 surrounding EPA's establishment of single-number effluent limitations for industrial point sources under the Federal Water Pollution Control Act Amendments of 1972 (FWPCA). Jumping foursquare into the effluent limitations controversy, the court held in E.I. DuPont de Nemours & Co. v. Train2 that EPA has the authority to issue such limitations under §301 of the FWPCA, but that such numbers are only "presumptively applicable" to individual point sources.

This ruling gives continuing judicial momentum to the view, already advanced by the Third3 and Seventh4 Circuits, that EPA has the power to promulgate discharge limitations under §301. However, the decision serves to confuse even further the related question of the form and effect those limitations should have, and thereby leaves uncertain the achievability of nationally uniform discharge standards within each category or class of industrial polluters.

Scaling the Garbage Mountain: New Jersey Supreme Court Upholds Prohibition on Solid Waste Importation

In a decision that is likely to be emulated in other states, the Supreme Court of New Jersey has recently rejected Commerce Clause challenges to that state's ban on the in-state dumping of solid waste originating outside New Jersey. The unanimous opinion in Hackensack Meadowlands Development Commission v. Municipal Sanitary Landfill Authority1 found that state erection of such barriers was an undeniably legitimate police power action, and that the beneficial postponement of sacrificing increasingly scarce wetlands to landfill operators far outweighed any corresponding hindrance to interstate transportation of non-recyclable solid wastes. Following in the wake of notably unsuccessful attempts under the Commerce Clause to overturn bans on nonreturnable bottles,2 phosphate detergents,3 and marine oil spillage,4 the decision may ultimately lead to enactment of similar measures in other states,5 a development that would only accelerate the balkanization of environmental management. On the other hand, the case serves as a bellwhether for the tough solid waste-related land-use decisions that may soon become the national norm.