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Volume 8, Issue 7 — July 1978


NEPA and the Budget Process: D.C. Circuit Announces EIS Requirement Applies to "Non-Routine" Annual Requests

On May 15, 1978, the United States Court of Appeals for the District of Columbia Circuit tried its hand at resolving the thorny question of the applicability of the National Environmental Policy Act's (NEPA's) environmental impact statement (EIS) requirements to the federal budget process. The court ruled in Sierra Club v. Andrus1 that the Fish and Wildlife Service of the Department of the Interior was not required to prepare an individual impact statement in conjunction with its submission to the Office of Management and Budget (OMB) of a "routine" annual budget request for the National Wildlife Refuge System which envisioned roughly constant funding levels. The court suggested that an EIS would be necessary, however, for budget requests which follow programmatic reviews or contemplate revised funding levels that will work environmentally significant changes in a program's status quo. In addition, the court directed OMB to develop formal procedures for complying with its NEPA obligations regarding such requests.

The D.C. Circuit's decision bears close examination as the most extensive judicial interpretation of this largely unexplored aspect of NEPA. Not surprisingly, the ruling opens more doors than it closes, and further administrative and judicial specification of the contours of NEPA's requirements in this area will undoubtedly be necessary.

CEQ Proposes Ambitious NEPA Regulations for Comment, Stands Ground Despite Agency Criticism

The Council on Environmental Quality (CEQ) has promulgated for public comment proposed regulations designed both to reform and upgrade federal agency compliance with all aspects of the National Environmental Policy Act (NEPA), and to lessen the burden felt by the agencies in preparing environmental impact statements (EISs) under the Act.1 The regulations were drafted in response to Executive Order No. 11991,2 which directed the Council to revise and reissue in the form of binding regulations its current advisory.NEPA compliance Guidelines.3 The regulations are aimed at reducing the considerable paperwork, delay, and duplication to which existing NEPA procedures are subject and improving the quality of federal decisions affecting the environment.

Supreme Court Invalidates Warrantless Entry Under OSHA: Enforcement of Environmental Laws Threatened

In a decision that may have substantial repercussions on the enforcement of environmental protection statutes, the Supreme Court on May 23 declared in Marshall v. Barlow's, Inc.1 that a provision of the Occupational Safety and Health Act2 authorizing warrantless inspections of workplace premises for safety hazards3 violates the Fourth Amendment. The majority opinion, written by Justice White, attempted to limit the Court's holding to the unique facts in the case, but the constitutional logic of the decision seems equally applicable to other statutes that provide for various forms of warrantless inspections to seek out violations. In particular, the constitutionality of enforcement provisions in several environmental statutes may be called into question under Barlow's, with the result being the imposition of a substantial burden upon the enforcement efforts of the Environmental Protection Agency (EPA).

Supreme Court Finds Broad State Power to Limit Nonresident Access to Recreational Resources

On May 23, the United States Supreme Court upheld a state scheme for hunting licenses that required nonresidents to pay 25 times the fee of residents for the right to shoot elk in Montana. In Baldwin v. Fish and Game Commission,1 Justice Blackmun, writing for the six-man majority, found that hunting was a recreational activity and thus not protected by the Privileges and Immunities Clause of the United States Constitution. Furthermore, the Court ruled, since the fee scheme was rationally related to the legitimate state objective of conserving wildlife, the state legislature had not violated the Equal Protection Clause by establishing such a marked difference in the resident and nonresident fees even though the differential could not be exactly justified by the added cost burden of regulating nonresident hunters.

The decision strengthens the role of the states in protecting wildlife found within their borders, but it raises disturbing suggestions that recreational access by nonresidents to a state's natural resourcess, be it wildlife or lakes or state parks, can be severely limited. The Court in effect held that the enjoyment of a state's natural resources was not an activity that must be offered to nonresidents on an equal basis with residents because such activity is not a right inseparable from national citizenship. The Court's failure to put discernible limits on the extent of discrimination that a state may practice against nonresidents raises the danger that a state may now charge nonresidents such a high fee to enjoy its natural resources as to virtually exclude them.