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Volume 6, Issue 8 — August 1976


The Promise of Federal Consistency Under §307 of the Coastal Zone Management Act

by Michael C. Blumm and John B. Noble

This Article represents an anticipatory exercise in analytic environmental law. It is anticipatory in the sense that the Coastal Zone Management Act of 1972 (hereafter referred to as CZMA) has yet to have an on-the-ground impact on land and water use decisions in the nation's coastal areas. Thus, this Article is designed to facilitate understanding of how that Act will function once the state programs created pursuant to it are implemented, as well as to illustrate the potentials and pitfalls for the states that may lie hidden in its statutory structure.

Because the CZMA contains a number of provisions designed to result in federal accommodation to state interests, it can be viewed as a unique attempt to provide the states with leverage over the activities of federal agencies. Moreover, these provisions represent one of the fundamental incentives offered to the states to implement their CZM plans, which are now in the process of being developed. Consequently, the Article begins with an assessment of the provisions of the Coastal Zone Management Act in general, and proceeds to outline the federal-state coordinative mechanisms of the Act in particular. The heart of these coordinative mechanisms are the federal consistency provisions of §307, and these are analyzed in detail. A section of the Article also explains the exceptions to the consistency provisions written into the Act.


NEPA Off the Top: The Supreme Court Interprets Impact Statement Requirement

The United States Supreme Court has undercut recent judicial1 and scholarly2 attempts to expand the use of programmatic impact statements under the National Environmental Policy Act (NEPA) in order to inject environmental factors more deeply into agency policymaking. In Kleppe v. Sierra Club,3 Justice Powell, writing for a seven-member majority, specifically disapproved the D.C. Circuit's attempt to quicken program impact statement timing by requiring commencement of statement preparation where programmatic major federal action is shown to be imminent, even though the agency denies that it is contemplating a program. The Court also concluded that, except in rare cases, agencies determinations of the proper geographical scope of such impact statements in situations involving multiple private proposals for action are entitled to judicial deference. And it rejected the suggestion, discussed with favor by the court of appeals, that NEPA imposes substantial comprehensive planning duties on federal agencies.

High Court Concludes Water Act Was Not Intended to Affect Nuclear Regulatory Commission's Jurisdiction

In one of the most closely reasoned of its many end-of-term environmental law decisions, the Supreme Court held on June 1, 1976,1 that Congress did not intend the 1972 Federal Water Pollution Control Act Amendments (FWPCA)2 to transfer regulatory authority over nuclear materials in nuclear power plant effluents from the Nuclear Regulatory Commission (NRC)3 to the Environmental Protection Agency (EPA).

The Atomic Energy Act of 19544 gave the NRC broad regulatory authority over what it called "source materials,"5 "special nuclear materials,"6 and "by-product materials,"7 in short, all the substances involved in the nuclear fuel process for nuclear power plants. The FWPCA empowered the EPA (and states acting under its control) to regulate, through a permit program, discharges of all "pollutants" into the nation's waters, and it defined pollutants to include, inter alia, "radioactive materials."8 When the EPA Administrator issued regulations establishing the permit program, he explicitly excluded the NRC-regulated nuclear materials, citing the legislative history of the FWPCA.9

Supreme Court Confirms Supremacy of Federal Authority to Manage Wildlife on Federal Lands

With its recent unanimous decision in Kleppe v. New Mexico,1 the Supreme Court has probably written its last chapter in a half-century old controversy concerning the authority of the federal government to manage wildlife on federal lands. The issue decided by the Court was the constitutionality of the Wild Free-Roaming Horses and Burros Act (Act),2 a measure enacted in 1971 to protect all unbranded and unclaimed horses and burros on public lands of the United States as "living symbols of the historic and pioneer spirit of the West."3

The Act protects such animals by declaring them to be "an integral part of the natural system of the public lands" and by directing the Secretaries of Interior and Agriculture "to protect and manage [them] as components of the public lands." Criminal penalties are provided for anyone who maliciously kills a protected horse or burro or converts it to private use without authorization from the appropriate Secretary. Further, if a protected horse or burro strays onto private land, and the owner thereof wishes to have the animal removed, the must notify federal authorities to arrange for its removal.

Other End-of-Term Supreme Court Decisions

In addition to its rulings in Kleppe v. Sierra Club,1 Train v. Colorado Public Interest Research Group,2 and Kleppe v. New Mexico,3 which are individually analyzed elsewhere in this issue, the Supreme Court rendered several other significant decisions in environmental cases as part of its end-of-term flurry of activity. Resolving a split in authority among the judicial circuits,4 the Court ruled on June 7 that while federal facilities must comply with air and water pollution control standards and compliance schedules adopted by states pursuant to the Clean Air Act and Federal Water Pollution Control Act Amendments of 1972 (FWPCA), such installations need not obtain state-issued discharge permits required of other dischargers under these same statutes.

In reaching its decisions in Hancock v. Train5 and Environmental Protection Agency v. California,6 the Court started from the basic premise that any congressional action to subject federal installations to state regulation must be "clear and unambiguous." The two specific provisions at issue, §118 of the Clean Air Act7 and §313 of the FWPCA,8 respectively, call in identical language for federal compliance with "requirements respecting control and abatement of . . . pollution to the same extent that any person is subject to such requirements." This, the Court concluded, was not specific enough.

Garrison Diversion Faces New Challenges

The Garrison Diversion Unit (GDU), a massive $496 million irrigation project in North Dakota sponsored by the United States Bureau of Reclamation, continues to receive widespread criticism because of its alleged adverse economic and environmental impacts. The Environmental Protection Agency (EPA), Council on Environmental Quality (CEQ), and the House Government Operations Subcommittee on Conservation, Energy, and Natural Resources (Subcommittee) have requested a moratorium on project construction, of which 20 percent has been completed, pending full analysis of ecological hazards.1 Other organizations, including the United States Fish and Wildlife Service, the South Dakota Legislature, the Minnesota Pollution Control Agency, and The Institute of Ecology have challenged the need for further work on the project. The most formidable challenge, however, may be a suit recently filed by the National Audubon Society which seeks to enjoin project-related purchases, site preparation, and construction because of alleged violations of the National Environmental Policy Act (NEPA) and other environmental statutes.2

Fallout From the California Nuclear Initiative

In a mixed portent for the future, California voters recently closed the first act in what is likely to be a long-running power play. On June 8th, California voted, by a two-to-one margin, against a ballot proposal, known as Proposition 15 or the California Nuclear Initiative, that was the first of a series of state plebiscites challenging the continue expansion—or even further use—of nuclear power as an energy source. Similar referenda are now on the ballot in Oregon and Colorado for the November election and are being put forward in about 20 other states. The fights there promise to be no less vehement, and the partisans no less dedicated, than those surrouncing Proposition 15. As is often the case in American policy decisions, however, lawyers may have the last word: the nuclear initiative battle may ultimately turn on the legality of such proposals in light of the existing federal regulatory scheme set up by the Atomic Energy Act.