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Volume 8, Issue 1 — January 1978


The Clean Water Act of 1977: Congress Passes "Mid-Course Correction" Amendments to the FWPCA

After a protracted conference reminiscent of the deadlock that preceded enactment of the Clean Air Act Amendments of 1977, Congress has finally passed a compromise set of revisions1 to the Federal Water Pollution Control Act Amendments of 1972 (FWPCA).2 The conference report was filed on December 6,3 and both houses approved the measure on December 15, 1977 and sent it to the White House for President Carter's signature. The revisions, which industry generally accepted as fair while certain environmental advocates voiced disappointment, represent more than two years of legislative effort. A similar package of proposed amendments to the FWPCA was aborted in 1976 when a conference committee could not reach a compromise between divergent Senate and House bills at the end of the 94th Congress.4

The amendments will make a number of important changes in the FWPCA, perhaps the most obvious being a new "popular" name, the Clean Water Act. Equally noteworthy, however, is the retention of certain central aspects of the original statutory scheme, such as the broad scope of the Army Corps of Engineers' jurisdiction over discharges of dredge and fill material pursuant to §404, which had been under prolonged attack.5 This Comment will describe the salient features of the amendments and analyze their regulatory significance.

The Selection of an Alaskan Natural Gas Pipeline: A Preliminary Appraisal

On November 8, 1977, President Carter signed into law a joint congressional resolution1 ratifying his selection of a proposal by the Alcan Company to construct a pipeline to transport natural gas from Alaska's North Slope to the lower 48 states. This event marked the culmination of a new and complex procedure established by the Alaska Natural Gas Transportation Act of 1976 (ANGTA)2 to facilitate the identification of the most advantageous means of tapping this important new energy source. The Act directed the president to make the initial selection of a gas transportation system, provided for public and state and federal government input, subjected the president's decision to congressional ratification, and exempted the entire process from judicial review. The Council on Environmental Quality (CEQ) was given the central role of holding public hearings and expressing a formal opinion as to the substance of the environmental impacts of the various proposals under consideration and the adequacy of the environmental impact statements (EISs) previously prepared. This procedure represents a provocative approach to resource decision making which avoids much of the delay inherent in the established administrative and judicial mehods of preparing and reviewing environmental impact statements. It thus may hold promise as a starting point on which to model similar mechanisms which may, in the future, be deemed necessary when confronted with national questions requiring expedited resolution of complex issues. Questions exist, however, as to whether this procedure allows the sober and deliberate consideration of environmental amenities contemplated by the National Environmental Policy Act (NEPA),3 and whether it ensures an accuracy and soundness of judgment commensurate with the importance of the Alaskan gas transportation decision.

95th Congress: Mid-Term Progress on Environmental Issues Reflects Conflicting Priorities

After its first session, the 95th Congress can take credit for completing work on long-standing controversies in several major fields of environmental protection.The new amendments to the air and water pollution control laws represent a partial retreat from the strict statutory standards they replaced, but this retrenchment may be a result of both the pressures of economic uncertainty and a widespread inability to comply with past ambitious antipollution restrictions. Even the new strip mining law, considered a victory by environmental advocates who had pushed for such legislation for a decade, is less protective of the environment than was a similar measure vetoed by President Ford. In other areas, notably energy, there was much congressional activity in the form of hearings and debates, but the end result was a failure to put new laws on the books because of disagreement with Carter Administration proposals or an inability to iron out differences in committees.

Overall, the environmental record in the first half of the 95th Congress is positive, considering that the objectives of environmental protection and other national priorities are still perceived on Capitol Hill, as well as in some parts of the nation, as being mutually exclusive. The bad news is that Congress chose to defer resolution of many important environmental issues until 1978, an election year in which political considerations and the pressures to spend time campaigning may make enactment of needed environmental legislation even more difficult.