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Volume 6, Issue 9 — September 1976

Articles

Michigan's Environmental Protection Act in Its Sixth Year: Substantive Environmental Law From Citizen Suits

by Jeffrey K. Haynes

I. Introduction

The Michigan Environmental Protection Act of 1970 (MEPA),1 the first statute in history to authorize citizens directly to enforce their right to environmental quality, has led an active life for nearly six years. The statute's passage in 1970 resulted from an outpouring of public feeling that citizen-initiated litigation could provide an important supplement to existing administrative enforcement of environmental laws. To test this thesis, all of the court cases and administrative proceedings in voking MEPA have been monitored under a program at the University of Michigan Law School directed by Prof. Joseph L. Sax, author of the bill that ultimately was enacted as MEPA. Two reports from this project, published in 19722 and 1974,3 analyzed the early cases filed under MEPA and concluded that the Act had, in most cases, been successfully employed.

Those reports and this Article assume that the effect of a statute like MEPA cannot be accurately gauged solely by perusing reported appellate cases.4 Although there has been considerable appellate interpretation of MEPA since 1974, much of the statute's growth and impact continues to occur at the trial court level and depends on the resourcefulness of lawyers and judges faced with environmental controversies. Indeed, the true effect of MEPA might be more accurately analyzed in terms of litigation that has not been filed, or in terms of the extent to which potential defendants have incorporated MEPA's substantive environmental protection commends intotheir behavior. The nature of litigation filed under the Act can be expected to change as MEPA's precepts are acknowledged by environmental actors. Courts will not only be faced with controversies involving bald environmental misfeasance by agencies. They also will adjudicate situations in which a plaintiff is dissatisfied with the degree of proper environmental management by a defendant. Thus, subtle behavioral changes in potential defendants, which would seldom appear in appellate litigation, might become the ultimate criterion of MEPA's success.

Wildlife Population Management Under the Marine Mammal Protection Act of 1972

by Sanford E. Gaines and Dale R. Schmidt

Introduction

In the first years of the 1970s, at the height of the national blossoming of environmental awareness, a common concern for the condition of marine mammals crystallized in the public mind. Commercial whalers had decimated the populations of the great whales, and the blue whale, it was then thought, was perhaps already fated to subside gradually into extinction. Sport hunting jeopardized the polar bear, boaters harassed the rare manatee, and the sea otter was recovering but still vulnerable. The United States government killed seals by the thousands in commercial harvests of disputed scientific justification and alleged brutality. To wildlife conservationists, it seemed that the viability of marine mammals was seriously threatened by human activities. Yet, some of these same marine mammals were widely judged to be intelligent, highly organized, and socially responsive species, and therefore especially worthy of human care and protection. The public concern over the plight of marine mammals and a complementary public interest in their unique characteristics generated a broadly based movement to grant them special legislative protection going far beyond existing wildlife management and endangered species protection laws.

The product of that movement was the ambitious Marine Mammal Protection Act of 1972 (MMPA),1 which aspires to "protect, conserve, and preserve the marine mammals of the world."2 It envisions a sophisticated pattern of scientific management of these mammals for the ultimate purpose of maintaining the health and stability of the marine ecosystem. To this end, the Act prescribes a number of specific objectives:3

Comment(s)

Environmentalists Attack NRC's Nuclear Fuel Export Licensing

Environmentalists have historically challenged only the domestic manifestations of nuclear power. The tangible fact of a nuclear power plant, together with a well-established regulatory system, lends itself to neighborhood mobilization and discrete legal fights. Recently, however, some environmentalists have ambitiously questioned a less visible aspect of the nuclear energy issue: exports of nuclear fuel destined for use in reactors operated in foreign countries.

The first such suit, Sierra Club v. AEC,1 set the precedent that the National Environmental Policy Act (NEPA) applies to the federal government's international programs, specifically the Atomic Energy Commission's (AEC) licensing of nuclear fuel exports. The Sierra Club plaintiffs have now taken the fight directly to the Nuclear Regulatory Commission (NRC), the agency authorized, when the AEC was divided into regulatory and promotional functions, to regulate the exportation of nuclear fuel for foreign reactors. These groups, the Natural Resources Defense Council (NRDC), the Sierra Club, and the Union of Concerned Scientists, have thus gone where few have dared to tread, into the high stakes and sensitive foreign policy area of nuclear proliferation.

The Coastal Zone Management Act Amendments of 1976: Tailoring Coastal Zone Protection to Expanded Offshore Oil Production

On July 26, 1976, President Ford signed into law the Coastal Zone Management Act (CZM Act) Amendments of 1976,1 a measure designed to improve the ability of the nation's 30 coastal states to plan for and control the impact of energy facility and resource development in their coastal areas. The Amendments, which several executive departments had vainly urged the President to veto, augment the present system of federal financial assistance for state development and implementation of coastal zone management programs. They also introduce several new elements into the Act, including a "coastal energy impact program" supported by federal grants and loans, and they modify the CZM Act's "federal consistency" requirements concerning outer continental shelf activities, a change which may be of central importance to coastal states.

As originally passed in 1972, the CZM Act2 was intended to establish a regulatory structure through which the nation's coastline, including the Great Lakes, would be protected from the adverse effects of haphazard commercial, residential, and recreational development. Because it pre-dated the 1973 oil embargo and ensuing "energy crisis," however, the Act did not reflect the new national policy of energy self-sufficiency, which depends to a large extent on expanded oil production from the nation's outer continental shelf (OCS). The statute did require state coastal zone management plans to provide for "adequate consideration of the national interest involved in the siting of facilities necessary to meet requirements which are other than local in nature."3 But the Atlantic states, off whose shores there had as yet been no OCS leasing, read this language as referring to the siting of electric power plants rather than onshore oil processing and storage facilities.

D.C. Circuit Sustains Food and Drug Administration's "Anticipatory" Ban of Red No. 2

Amaranth, the food color additive popularly known as Red No. 21 was one of the first chemical compounds to receive regulatory approval under the Pure Food and Drug Law of 1906,2 the original federal food additive legislation. For nearly 70 years, the color was widely used to create or brighten the red, purple, brown and white color of foods, drugs and cosmetics. Then, in early 1976, following literally decades of short- and long-term tests of the chemical, the Food and Drug Administration (FDA) abruptly ordered Red No. 2 off the market,3 and the Court of Appeals for the D.C. Circuit unanimously upheld this ban against an industry challenge.4

The case of Red No. 2 demonstrates growing sophistication over the last half-century in administrative, congressional and judicial responses to the subtle health threats posed by synthetic organic chemicals. The color's testing history—initial acceptance based on short-term acute toxicity tests, lengthy re-evaluation with long-term animal feeding tests, and discovery of cancer-causing (carcinogenic) potential through the use of mathematical statistics—reflects both the growing rigor of toxicological research techniques and the difficulty of discovering widely-used chemicals' risks. The evolution of the legal matrix—initial imposition of the statutory burden of proof respecting food additive safety on the government and then its transfer to a substance's proponent—typifies growing congressional sensitivity to the need to anticipate subtle health effects of chemicals. Finally, the judicial response—firm support for administrative intervention to protect the public health despite very limited evidence of harm and palpable injury to the industry—follows a short but swiftly lengthening line of sympathetic judicial reactions to precautionary regulatory actions in the environmental/public health field.

Interior's Flexible Approach to Strip Mining: Energy Self-Sufficiency Through Minimal Environmental Protection

Under heavy administration and industry pressure to end its five-year moratorium on the leasing of federal coal lands, the Interior Department has issued a series of regulations that permit massive strip mining of western coal deposits. In a claim that is disputed by environmentalists, Secretary Kleppe has asserted that the flexible nature of these coal leasing procedures and mining operation standards will ensure achievement of the goal of 300 million tons of annual coal production on federal lands by 1985 through mining procedures consistent with the requirements of environmental protection.1

Revision of the regulations is a certainty, since the recently enacted Federal Coal Leasing Amendments Act of 1975 requires additional mechanisms to prevent monopoly development of coal resources and mandates stricter supervision of site selection.2 And although the reclamation standards set in the rules have yet to be directly challenged, the state of Wyoming is seeking to eliminate provisions which allow the Secretary to preempt more stringent state reclamation standards.3 Moreover, despite enactment of the Coal Leasing Amendments, congressional delay in passing a bill aimed specifically at strip mining increases the likelihood that western coal development will occur under rules so flexible that mine operators may avoid even minimal reclamation efforts and environmental quality safeguards.

Seventh Circuit Reverses Ban on Impact Statement Delegation, Requires Extension of Impact Statement Scope

Prior to Public Law No. 94-83, the 1975 amendment1 to NEPA, the Second and Seventh judicial circuits had developed strict interpretations of the statute's requirements concerning federal participation in environmental impact statement (EIS) preparation. Both courts reached these conclusions in the context of the peculiar federal-state interaction that surrounds the planning and construction of federal-aid highways. Now both have recanted. The Second Circuit did so earlier this year in Conservation Society of Southern Vermont v. Secretary of Transportation,2 after that case had been tersely remanded by the Supreme Court.3 And the Seventh Circuit has now fallen in step by reversing its earlier ruling in Swain v. Brinegar4 that the Federal Highway Administration (FHWA) had improperly delegated preparation of an EIS for an interstate highway segment in Illinois to the state highway department.

Unlike the Second Circuit's approval of an impact statement limited to one segment of a larger highway upgrading effort, the Seventh Circuit went on to hold that the focus of the EIS was illegally restricted to a 15-mile segment of a 42-mile highway project. Coming in the wake of the Supreme Court's opinion in Kleppe v. Sierra Club,5 the Seventh Circuit's en banc decision in Swain v. Brinegar6 reaffirms the necessity for program impact statements under NEPA in situations where incremental federal decision making threatens to foreclose later project alternatives and thereby to predetermine an entire project's environmental consequences.

Airport Noise Regulation Reconsidered: The Footnote That May Swallow Burbank

The federal district court for the northern district of California has for the second time in two years upheld the constitutionality of state and local ordinances enacted to control noise around municipal airports in the face of claims that the restrictions illegally invade a field of regulation preempted by the federal government. The cases are noteworthy because they suggest that the seemingly broad federal preemption of aircraft noise regulation announced by Justice Douglas in City of Burbank v. Lockheed Air Terminal,1 may in reality be quite narrow. The district court's latest ruling, in National Aviation v. City of Hayward,2 involved a challenge by four commercial airline operators to an ordinance prohibiting aircraft operations producing noise levels above 75 decibels (on the A scale) between 11:00 p.m. and 7:00 a.m., a restriction very similar to the one invalidated in Burbank. The court held that the Hayward ordinance was constitutional, however, after concluding that it was a valid exercise of the municipality's proprietary powers as owner and operator of the airport in question.

The doctrine of preemption arose in American jurisprudence as a response to the need for nationally uniform regulation over certain activities. Simply stated, the basic principle is that when the federal government validly regulates some activity, the Supremacy Clause of the federal Constitution operates to bar subordinate government entities from also regulating it.3 In order for a court to rule that a particular field of regulation has been preempted, it must find a clear expression of congressional intent to exclude state regulation and that conflicting state regulations would upset the pervasive scheme of federal control.