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Volume 8, Issue 4 — April 1978


NEPA Meets the Energy Crisis: D.C. Circuit Finds Statutory Violations But Refuses to Enjoin Ongoing Energy Projects

In two recent decisions, the United States Court of Appeals for the District of Columbia Circuit found violations of the National Environmental Policy Act (NEPA) in the conduct of federal agencies concerning the 1976 sale of outer continental shelf oil and gas leases in the Gulf of Alaska1 and the approval of construction of a joint railroad line for the transportation of coal out of the Powder River Basin in Wyoming.2 The court, however, refused to grant injunctive relief pending full compliance with NEPA's requirements. In both cases, the environmental impact statements (EISs) were held inadequate for failure to discuss certain alternatives, yet injunctions vacating the sale and the approval order and prohibiting further exploratory drilling or railroad construction were denied as inappropriate under the circumstances.

Some environmental advocates see in these rulings the spector of a disturbing trend away from past judicial willingness to enjoin projects until full compliance with the statutory requirements has been achieved, a judicial stance that has molded NEPA into an effective tool for the protection of environmental values. The D.C. Circuit however, saw itself as simply applying traditional equitable analysis rather than breaking new legal ground on the question of injunctive relief in NEPA litigation.

Environmental Aesthetics: New Horizons for Billboard Controls

Several cases recently decided by or pending before courts in New York,1 California,2 and Maine3 signal the reemergence of a difficult legal issue which is of major significance to state and local governments: the regulation and/or elimination of billboards. Although superficially not subject which stirs the emotions, outdoor advertising clearly possesses and frequently realizes the potential to degrade the visual quality of the human environment. All too common are the images of a rural highway marred by a string of two-dimensional eyesores, or a street scene consisting of little more than a mass of neon and flashing lights. Many localities view the "invasion of the billboards" as not only a threat to personal privacy and the quality of the environment but as a deterrent to tourism posing indirect but substantial impact upon local economies as well.4 The outdoor advertising industry, on the other hand, sees itself as a purveyor of valuable information, an essential link between business and the consumer, and a low-cost communications medium of crucial importance to small businesses and public service organizations.

For reasons as obvious as the subject matter, outdoor advertising has proven a particularly appealing target of attempts by state and local governments to enhance the visual character of their landscape. This is not a new development; since the turn of the century, billboard controls have been adopted, enforced, and upheld in the courts to varying degrees.5 In recent years, however, such measures have tended to be far more Draconian than their predecessors and have predictably precipitated a wave of legal challenges by the outdoor advertising industry. Because of the breadth and severity of many of these enactments, the case law that has developed over the last 80 years provides little guidance in sorting out the novel issues which have arisen. Litigation which in the past would have turned on the limits of the state's regulatory (police) power is now centered around questions of the state's taking (eminent domain) power and substantive due process. In cases where substantial or complete elimination of a significant medium of communication is threatened, courts now find themselves confronted with intricate First Amendment problems. Moreover, a trend toward liberalized judicial interpretations of state authority to control land use as well as an evolving public stance in favor of environmental protection and against all forms of visual blight have mandated reevaluation of the balancing tests traditionally relied upon to reconcile these competing public and private interests. As a result, there are few aspects of the law on this subject which can be considered well settled.

Supreme Court Holds Washington Tanker Law Preempted

As the federal government increasingly concerns itself with activites posing environmental dangers, federal initiatives increasingly preempt the traditional exercise of local police power to curb these activities.1 When conflicts between state and federal regulatory efforts inevitably arise, the courts are often called upon to determine the extent to which federal regulation has supplanted this local authority to restrict activities that cause local harm.

On March 6, a divided Supreme Court made a cautious foray into the legal thicket surrounding the question of preemption to determine how far federal regulation of oil tankers had ousted the state of Washington's authority to regulate the size, design, and movement of the large tankers that use Puget Sound. In Ray v. Atlantic Richfield Company (Ray v. ARCO),2 the court substantially affirmed3 the ruling of the three-judge lower court, holding that most of the restrictions on tanker design, size, and movement imposed by the Washington Tanker Law were preempted by the federal Ports and Waterways Safety Act (PWSA)4 and regulations issued pursuant to it.