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Volume 8, Issue 10 — October 1978


Prevention of Significant Deterioration: EPA Challenged on Effective Date of New Preconstruction Requirements

The Environmental Protection Agency's (EPA's) efforts to implement provisions of the 1977 Clean Air Act Amendments aimed at preventing the significant deterioration (PSD) of air quality in clean air areas of the nation have quickly become the subject of a number of lawsuits. The first set of issues in this groundswell of litigation involves the date upon which the new PSD preconstruction review requirements contained in §165 of the amended Act became effective.1 Adopting a controversial interpretation of the statute, EPA has determined that §165 did not become immediately effective when the amendments were signed into law on August 7, 1977. Instead, the agency has decided, the review requirements in the amendments will apply only to facilities that did not obtain PSD construction permits under the preexisting EPA regulations before March 1, 1978, or upon which construction does not commence prior to March 19, 1979.

Several environmental groups have challenged EPA's timing decision, charging that it flies in the face of the express language of §165(a) and will allow more than 100 new major industrial facilities to be constructed in clean air areas without complying with the strict new preconstruction review safeguards of the 1977 Amendments. The result, they assert, will be a greater level of emissions from particular plants in many PSD areas than would be allowed under the current statutory provisions, and a consequent lessening of the potential for future industrial growth in these areas as the maximum ambient pollution levels allowable under the Act are approached at an accelerated rate. Industrial parties, on the other hand, generally agree with EPA's assessment that immediate application of §165 was not statutorily required and would have produced highly disruptive economic effects. Judicial resolution of this dispute will involve an analysis of apparently inconsistent statutory provisions and a synthesis of contrary indications of intent in the legislative history of the 1977 Amendments. It will also undoubtedly include at least some tacit assessment and balancing of the practical environmental and economic effects of immediate as compared to delayed application of the new preconstruction review rquirements of §165.

National Wildlife Federation v. United States: Judicial Review of Environmental Budget Requests

Recent litigation and congressional enactments have served to spotlight a relatively new and little considered statutory mechanism which attempts to inject congressional oversight into the process of formulating the President's annual budget request. This mechanism, which has appeared as an appendage to certain environmental legislation,1 requires the President, when requesting congressional appropriations for programs established by such statutes, to provide a "statement of reasons" explaining in detail whether the level of funding requested meets the target levels set out in the legislation. If the appropriation request envisions less than full achievement of the statutory goals, the President must also explain why other national objectives have been assigned a higher budgetary priority.

Outwardly such provisions would appear to require merely the transmission of the same information congressional committees routinely receive via the massive federal budgetary statement and the subsequent testimony of agency representatives. But the innocuous facade belies a larger purpose. The apparent intent behind such provisions is to elicit from the Chief Executive a detailed explanation of the political horse-trading that underlies a particular aspect of the budget request. Where congressionally authorized programs to manage better the nation's natural resources have been whittled away by the President, full justification must be presented publicly, much in the way of "dirty laundry."

CEQA's Substantive Mandate Clouded by Appellate Court

A California state court recently interpreted the California Environmental Quality Act (CEQA),1 one of the strongest environmental statutes in the country, in a manner which apparently limits the utility of that statute as a powerful substantive tool for environmental protection.Like the National Environmental Policy Act (NEPA)2 on which it is modeled, CEQA requires that an environmental impact report (EIR) be prepared for proposed government and government-licensed projects affecting the environment. A 1976 amendment3 added a substantive component to the state act which has no parallel in the federal statute, however. As amended, CEQA now declares that state agencies should not approve proposed projects "if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects" of the projects.

In Laurel Hills Homeowners Association v. City Council of Los Angeles,4 the California Court of Appeal ruled that this provision does not prevent an agency from approving a subdivision plan despite the existence of environmentally superior alternatives so long as mitigation measures are imposed that will reduce the adverse environmental effects of the proposal to an "acceptable" level.5 With the unanimous denial by the California Supreme Court of a petition for review,6 state agencies apparently now have discretion under CEQA as amended to choose to mitigate the environmental damage from a proposed project, stopping short, however, of avoiding completely the avoidable damage by adopting the environmentally preferable alternative, a degree of discretion that was not thought to exist under prior court decisions interpreting the Act.