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Volume 8, Issue 3 — March 1978


A Step-by-Step Analysis of the Interim Federal Surface Mining Program

by John P. Williams

The Surface Mining Control and Reclamation Act of 1977, signed into law on August 3, 1977, authorized the Department of the Interior to issue regulations implementing the Act's environmental protection provisions.1 The Secretary of the Interior was required to promulgate interim regulations within 90 days of the date of enactment2 and to issue permanent regulations within one year.3

On December 13, 1977, the Department promulgated the interim regulations,4 missing the statutory deadline by 42 days.5 These interim regulations will govern surface mining operations on nonfederal lands until the approval of a state's regulatory program by the Department or the implementation of a federal regulatory program in that state.6 The Secretary will administer the regulations through his Assistant Secretary for Energy and Minerals and the newly created Office of Surface Mining Reclamation and Enforcement.7

The Marine Sanctuaries Program: A Framework for Critical Areas Management in the Sea

by Michael C. Blumm and Joel G. Blumstein

The search for a viable national policy toward the marine environment has been an elusive one. For more than a decade Congress has been calling for a "balanced" and "comprehensive" approach to the management of the nation's marine resources.1 As attempts continue in the 95th Congress to elucidate and implement such a national policy,2 a nearly forgotten federal program is rising like a phoenix from the ashes of bureaucratic obscurity to play a potentially prominent role in assuring that the nation's approach to its marine resources is both comprehensive and balanced. Established over five years ago by Title III of the Marine Protection, Research and Sanctuaries Act of 1972 (MPRSA),3 but largely ignored until the recent recognition given to it by President Carter in his Environmental Message,4 the Department of Commerce's marine sanctuaries program provides a means of comprehensively managing marine activities by designating and assuring the protection of marine areas of environmental value.

Of course, Title III of the MPRSA is not the only congressional initiative aimed at controlling the allocation of marine resources. Increasing competition for the utilization of these resources has precipitated a flurry of legislative activity in recent years. Perhaps, the best starting point for understanding the potential of the marine sanctuaries program is to highlight this intensifying competition and the congressional reactions it has fostered. For example, the use of the marine environment as a national sink for the disposal of waste products, such as sewage sludge, industrial wastes, and dredge and fill materials,5 has resulted in the enactment of legislation designed to control marine pollution.6 Similarly, a growing dependence on the waters off the United States' coasts as a major source of the world's food supply7 led to an extension of the nation's jurisdiction over its offshore fisheries.8 Likewise, increasing exploitation of oil and gas reserves on the outer continental shelf9 prompted a complete reexamination of the federal government's mineral leasing system.10 And the anticipated reliance on the sea to support energy facilities, such as deepwater ports, liquified natural gas terminals, and floating nuclear power plants,11 has led to federal studies and legislation aimed at providing for the efficient and safe siting of these facilities.12


Reinvigorating the NEPA Process: CEQ's Draft Compliance Regulations Stir Controversy

In a promising but controversial attempt to ensure fuller compliance with the mandates of the National Environmental Policy Act (NEPA), the Council on Environmental Quality (CEQ) has formulated a draft set of regulations which, when made final, will require all federal agencies to follow more rigorous NEPA procedures than has been the case to date. The Council drafted the regulations pursuant to Executive Order No. 11991, which accompanied President Carter's 1977 Environmental Message and authorized CEQ to promulgate legally binding regulations governing implementation of NEPA's procedural provisions.1 When finally adopted, the new NEPA regulations will replace CEQ's present advisory guidelines2 and necessitate revision of the compliance procedures of the other federal agencies. The rules will result in a greater standardization of NEPA compliance procedures and an increase in the Council's supervisory power over implementation of the statute.

CEQ's initial draft of the regulations, which has been circulated for interagency comment but has not yet been officially released to the public, gives an expansive construction to the statute's requirements and assigns the Council itself a major role in assuring agency compliance with them. The draft provoked a hornets' nest of criticism in the interagency commenting process, however, with other federal agencies objecting that the Council's preliminary proposals exceed the authority granted by the executive order under which they were issued and in some instances go beyond the terms of the Act and the limits set by NEPA case law. The Council's timetable for publishing the proposed regulations for public comment after incorporating interagency suggestions has been pushed back from the original February target date as it has become apparent that portions of the draft regulations will require reconsideration.

Federal Court Caps OCS Oil and Gas Lease Sale, Sketches New Horizons for OCS Lands Act

For the second time in less than a year, a federal district court has enjoined the Department of the Interior's program to accelerate development of outer continental shelf (OCS) petroleum resources off the shores of the middle Atlantic states. On January 28, 1978, only three days prior to the formal commencement of the sale of leases to tracts for oil and gas development in the Georges Bank region of the mid-Atlantic1, Federal District Judge Arthur Garrity, in Massachusetts v. Andrus,2 preliminarily enjoined the Secretary of the Interior from receiving or opening any bids in connection with the sale, finding that the Secretary's last-minute decision to proceed was contrary to his duties under the Outer Continental Shelf Lands Act (OCSLA),3 the National Environmental Policy Act (NEPA),4 and the Administrative Procedure Act (APA).5 On January 30, the day before the scheduled sale, defendants and intervenors brought an emergency appeal before the First circuit Court of Appeals, which declined to stay the injunction, expressing an inability to declare the lower court's order either arbitrary or patently erroneous.6 The parties have agreed to file briefs with the appellate court on an expendited basis, and a full hearing has been scheduled for early March.

The lower court's opinion is a rich gumbo of innovative legal interpretations which, if upheld on appeal and supported by the district court's subsequent opinion on the merits, may establish important precedent with respect to OCS leasing, NEPA litigation, and other areas of environmental law as well. In the short term, however, the most significant consequence of the decision is that a small but visible component of the Carter Administration's push to develop new sources of energy while accepting greater environmental risks has been sidetracked.

D.C. Circuit Rejects EPA's Use of the "Bubble Concept" in Applying New Source Performance Standards

On January 27, the United States Court of Appeals for the District of Columbia Circuit ruled that the Environmental Protection Agency (EPA) cannot apply the "bubble concept" in determining whether a modification in an existing plant is subject to new source performance standards under §111 of the Clean Air Act.1 In ASARCO, Inc. v. Environmental Protection Agency,2 the court invalidated portions of EPA regulations providing that the new source performance standards, which are generally more stringent than emission standards for existing sources, do not apply if net emissions from the entire plant do the increase as a result of modification of a portion of it. This concept, which is similar to the agency's emission offset method of determining whether to allow new sources in nonattainment areas,3 treats the collection of individual buildings and facilities which make up an existing plant as a single "source" for the purpose of deciding whether a modification has resulted in an increase in emissions.4 If the pollutants emitted by a modified component are more than offset by reductions in emissions from components that have been partially or completely taken out of service, for example, the addition will not bring the new source performance standards into play.5 "Modification" of an existing source is covered by the bubble concept whereas new construction or "reconstruction" at the plant site is not.6

Although the bubble concept was adopted to deal with the special problems of the nonferrous smelter industry, its ramifications are much broader. The definition applies equally to owners or operators of other major industrial plants seeking to avoid the more stringent new source performance standards. Reductions in emissions from portions of the plant could serve to allow such operators to expand production (and increase emissions) at other facilities without having to acquire the more effective but more expensive control technology required to meet those standards.