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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — November 1978

Comment(s)

95th Congress, 2d Session: Emphasis on Resource Protection

In contrast to the environmental record of the 95th Congress in its first session, which displays an emphasis on pollution prevention, the focus of attention in the second session clearly shifted toward natural resources conservation. Though some significant accomplishments in this area were recorded in 1978, the luster of these gains was dimmed by lack of action on several important issues and the failure to fully protect environmental values in some instances. In its first session in 1977, the 95th Congress amended the principal air1 and water2 pollution control laws, incorporating changes that represented a partial retreat from the strict statutory standards they replaced. The new strip mining law,3 toward which environmentalists had been working for years, was not as strong as the bill that had been vetoed in 1976 by President Ford. In 1978, Congress extended special environmental protection to large areas of the public lands, but it failed at the last minute to settle the fate of the great tracts of untouched public lands in Alaska. The House of Representatives sustained President Carter's veto of the expensive public works bill authorizing vast sums for several environmentally detrimental water projects. On the other hand, Congress continued funding for a number of questionable water resources projects and failed to impose a substantial fee on commercial users of inland waterways to pay for facility maintenance. Although funding for Endangered Species Act programs was reauthorized, the Act was weakened through amendment, drawing strong criticism from many quarters that there was no need for Congress' dilution of its strict prohibition against federal activities which threaten protected species.

Eleventh Hour Amendment to FWPCA Resuscitates EPA's Hazardous Substance Discharge Program

In a classic legislative "quick fix," the 95th Congress on the next to last day of its second session rushed through to passage an amendment to §311 of the Federal Water Pollution Control Act (FWPCA)1 that breathes new life into the federal program for the regulation of hazardous substances spills into the nation's waters. The program had been plunged into a state of suspended animation by a recent federal district court decision in Manufacturing Chemists Association v. Costle2 which invalidated as inconsistent with the explicit requirements of §311 the Environmental Protection Agency's (EPA's) regulations governing spills or discharges of hazardous chemicals. The last-minute congressional removal of this judicial roadblock saved the Agency from the unpleasant choice between an uncertain and time-consuming appeal and the lengthy process of demonstrating the harmfulness of particular discharge amounts in various receiving waters.

By dramatically reducing the maximum civil penalty that can be levied against violators, these changes to §311 diluted the strength of the provision as a deterrent to hazardous substances discharges. More importantly, however, the amendments finally clear the way for implementation of this long-delayed but environmentally crucial program. From a broad perspective, the episode also illustrates the difficulties inherent in attempting to administer a statutory formulation that requires a determination of actual ecological harm prior to regulation or prohibition.