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Volume 6, Issue 7 — July 1976


Solar Energy and Land Use in Colorado

by Alan S. Miller

This Article is intended to give readers an overview of a wide range of issues involving solar energy that the Environmental Law Institute Solar Project staff is currently examining. The complexity of the legal issues and the speculative nature of many of the questions associated with this new and largely unrealized technology account for the broad approach taken here. There are too objectives in presenting in broad fashion the legal, institutional, and policy issues surrounding solar energy. First, we hope to stimulate additional inquiry into those questions we raise but which we have little hope of answering in this research. Second, we wish to invite reactions as to the importance and, indeed, the relevance of the public policy issues identified so far.


In Anticipation: Comparing the 1976 Toxic Substances Control Bills

In early June, a bipartisan, industry-supported substitute version of the proposed Toxic Substances Control Act (TSCA), cleared the House Interstate and Foreign Commerce Committee.1 Because of the substitution, agreed to by the subcommittee bill's sponsor, Rep. Bob Eckhardt (D-TX), in order to ease committee action, the House measure, H.R. 14032, differs substantially from the Senate-passed bill, S. 3149.2 Thus, for the third time in five years,3 there is some prospect that Congress may not agree on this legislation, which would greatly augment the Environmental Protection Agency's power to regulate dangerous chemicals.

Because of its bipartisan backing and industry support, the House bill sailed through markup with few changes.4 The same combination of forces is likely to assure relatively quick House passage, again with few amendments, when it reaches the floor at the end of July. It is thus timely to compare the two bills, to evaluate the merits and significance of their differences, and to address the likelihood of enactment of toxics legislation in the 94th Congress.

Ocean Dumping, the Revised EPA Criteria, and the National Soil Fertility Program

Centuries ago—before its health threat was appreciated—garbage was thrown out of house windows onto streets, which seemed convenient commons for disposal of private wastes. Public health measures long ago banned garbage in the streets, and now the last remaining convenient commons are the oceans, which have begun receiving increasingly voluminous and toxic human garbage. Council on Environmental Quality (CEQ) figures show that the nation's ocean dumping activities have expanded from almost 10 million tons in 1968 to over 14 million tons in 1974.1 Most of this increase is attributable to sewage sludge and construction and demolition debris, primarily originating along the East Coast. The CEQ figures, however, represent an almost insignificant portion of the overall dumping problem. In 1974, over 120 million tons of dredged spoil were dumped into the oceans, triple the level reported in 1968.2

Ocean dumping has increased in the face of domestic and international law. Congressional policy, as enunciated in the Marine Protection, Research, and Sanctuaries Act of 1972 (Ocean Dumping Act), is to "prevent or strictly limit the dumping into ocean waters of any material which would adversely affect human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities."3 Also, the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matters, which entered into force on August 30, 1975, and to which the United States is a party, imposes upon its signatories the duty to prohibit ocean dumping of all radioactive materials, oil, and highly toxic wastes, and to regulate strictly the dumping of heavy metals, pesticides, and other wastes.4 To meet this duty, Congress amended the Ocean Dumping Act in 19745 to require the Environmental Protection Agency (EPA) to apply the criteria of the Convention and its Annexes where these criteria would be no less stringent than the restrictions established under the Act.

Federal Courts and Congress Review Tuna-Porpoise Controversy

In the first extensive judicial interpretation of the Marine Mammal Protection Act of 1972,1 federal district court Judge Charles R. Richey has found that the National Marine Fisheries Service violated the Act by allowing continued killing of porpoises incidental to tuna fishing operations.2 The court also declared void regulations promulgated by the Service and a general permit issued to the American Tunaboat Association to allow taking of porpoise during tuna fishing.3

Judge Richey's decision in Committee for Humane Legislation, Inc. v. Richardson was, however, only the beginning. Nine days later, 11 days before the order was scheduled to take effect, congressional hearings began on H.R. 13865, a bill designed to overturn the decision by amending the Act, and so to keep the tuna fishermen in business. A few days later, President Ford "climbed aboard a tuna boat" while on a campaign trip and promised to fight the decision.4

Second Circuit Holds Citizen Suit Central Enforcement Device Under the Clean Air Act

One of the most novel enforcement mechanisms devised by the drafters of the Clean Air Act Amendments of 1970 was §304's "citizen suit" provision.1 This section, variants of which were later incorporated in the Federal Water Pollution Control Act Amendments of 19722 and a number of other federal environmental statutes,3 authorizes any person to commence civil enforcement suits in federal district court. Such suits may be brought against any person (including the United States, its agencies, and any state or local government instrumentality) alleged to be in violation of an emission standard or limitation or a compliance order issued by the EPA Administrator, if EPA has not already commenced a civil enforcement action under §113.4 In addition, an action may be brought against the Administrator himself where he is alleged to have failed to perform any non-discretionary duty under the statute. The purpose of the provision was to encourage, as well as to supplement, federal and state efforts at enforcement.5

Of the suits brought to date under §304, most have consisted of challenges to alleged abuses of discretion by the Administrator in setting or failing to issue or revise various regulations or emission standards.6 The few suits that have been aimed directly at enforcing an "emission standard or limitation" have run into several obstacles, not the least of which is the charge of being premature while administrative implementation of the Act was still at the standard-setting stage.7

New NEPA Study Published by Environmental Law Institute Staff Member

The Environmental Law Institute has announced publication of A National Policy for the Environment: NEPA and Its Aftermath,1 by Staff Political Scientist Richard A. Liroff. The book analyzes both enactment of the National Environmental Policy Act (NEPA) and the behavior of each of the key actors in its implementation.

The author concludes that the impact of NEPA was probably greater than that expected by many congressmen, and that the pattern of conflict over its implementation probably assumed a form far different from that which they anticipated. The absence of clear criteria within the law by which to evaluate the legal adequacy of administrative decisions, the limited policy-coordinating power of the Council on Environmental Quality (CEQ), and the opportunity NEPA provided for judicial review of agency decisions all encouraged definition and enforcement of the law's requirements through judicial rather than administrative processes. Environmental groups acted as surrogates for CEQ through their litigation, playing a considerable oversight role that was beyond the Council's capabilities. Agency actions having significant impacts on the environment that were taken in NEPA's wake were shaped by CEQ's interpretation of NEPA, by the agencies' own procedural guidelines for compliance with the Act, by the litigation initiated by environmental activists, and by the response of Congress to judicial decisions resulting from the environmentalists' lawsuits.