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Volume 8, Issue 12 — December 1978


Funding Public Participation in Administrative Proceedings: District Court Finds Implicit Agency Authority to Award Costs

Whether federal agencies have implicit power to fund the participation of particular groups or parties in their administrative proceedings in the absence of explicit statutory authorization remains one of the most controversial issues in administrative law.1 The Second Circuit's en banc ruling last year in Greene County Planning Board v. Federal Power Commission2 that the Federal Power Commission (FPC) had correctly determined that it had no authority to furnish such assistance created a possibly significant roadblock to the developing movement among federal agencies toward the initiation of such assistance programs.3 In essence, the Second Circuit held that the Supreme Court's disapproval, in Alyeska Pipeline Service Co. v. Wilderness Society,4 of judicial awards of attorney fees under the private attorney general rational without express congressional authorization precluded unauthorized fee awards in administrative proceedings as well.

To the criticism of this decision voiced by commentators5 has now been added the recent ruling of a district court which flies in the face of the broad Greene County holding. On October 10, Judge Thomas Flannery of the federal district court in Washington, D.C. refused, in Chamber of Commerce v. Department of Agriculture,6 to enjoin that agency from funding a consumer group study of the economic impact of proposed regulations. The court determined that several industry groups were unlikely to succeed on the merits of their claim that the agency lacked the power to fund such participation in rule making without explicit statutory authorization. This decision, particularly the court's view of the limited scope of the Greene County ruling, promises to add further impetus to the widespread move toward voluntary initiation of agency programs for assisting public participation in administrative proceedings.

Congressional Stall Prompts Administrative Actions to Protect the Alaska National Interest Lands

In a dramatic announcement on December 1, 1978,1 President Carter made good on his pledge that protection of the environmental values of the vast "national interest" lands2 in Alaska is the most important environmental goal of his administration. By setting aside 56 million acres of Alaska as national monuments and affirming the Secretary of the Interior's temporary withdrawal two weeks earlier3 of 105 million acres from state selection and resource exploitation, the President brought to a close a major phase in the struggle over the disposition of the vast federal domain in the 49th state, a struggle which has pitted those who view the Alaskan wilderness in terms of its potential for economic development against those who see Alaska as the last opportunity to preserve and protect wildlife and wilderness values that have all but vanished from the lower 48 states.

In 1971, Congress assigned to itself the task of settling the fate of the public domain lands in Alaska by authorizing the temporary withdrawal of up to 80 million acres from private or state claims while it chose which areas to place in permanent, federally protected reserves.4 Congress failed to meet its self-imposed deadline of December 16, 1978, however, necessitating executive branch action to ensure continued protection. The net result of the actions of the President and Secretary Andrus is to overlay several different protective classifications and thereby establish multiple mechanisms to preserve the Alaskan lands while congressional debate continues. The administrative actions have already survived a procedural challenge from the state government under the National Environmental Policy Act (NEPA) and appear strong enough to withstand additional charges of substantive invalidity. Despite the permanent nature of national monument designations, no administrative solution can be characterized as morethan temporary because of continuing congressional deliberation over the ultimate disposition of these lands. As President Carter indicated, his action and those taken by Secretary Andrus were aimed only at preserving for Congress all options on the ultimate fate of the "national interest" lands in Alaska.

Assessing Regulatory Costs and Benefits: Fifth Circuit Vacates OSHA Benzene Standard

Given that legislative and administrative controls on environmental pollution involve considerable economic sacrifices, a crucial underlying question is whether the prices paid for environmental protection by taxpayers, consumers, and industry are justified. Lawmakers have traditionally eschewed this difficult question, dismissing it as unanswerable. Within the last year or so, however, environmental, health, and safety regulations have been widely blamed for contributing to a uniquely pernicious and malignant economic malady: Inflation. This allegation had precipitated a nationwide reevaluation of the costs and, to a lesser extent, the benefits, of regulation. Critics of stringent regulation assert that such rules and to the cost of consumer goods and therefore to the inflation rate. Defenders rejoin that the protections offered by such regulations, in terms of human health and mortality as well as aesthetics, are more valuable to society than the economic costs and are thus noninflationary. The key concept in this debate is cost-benefit analysis. Environmental controls for which the benefits exceed the costs are considered worthy, while all others are considered unjustified.

Intensive scrutiny of the cost of environmental regulation is now being conducted in Congress1 and in the executive branch. On October 31, 1978, the Carter Administration announced the formation of yet another panel of upper echelon officials whose prime task it is to review impending federal regulations for the economic effects.2 It appears that these bodies will be less concerned with subjecting proposed regulations to cost-benefit analysis than with institutionalizing priorities under which resources will be applied first to rules which are most "cost effective." In theory this means that the agencies will first issue regulations which appear to provide benefits at the lowest cost, assuming that other important objectives are not defeated. Although environmentalists concede the noble ends of this theory, they are concerned that in practice the application of cost-benefit techniques or cost-effectiveness review may prove a guise for reducing the overall level of environmental protection.