I. Introduction

The environmental movement has long held as its basic tenet the conservation of natural resources, but conservationists traditionally have sought to protect only the more obvious components of our ecological heritage, such as wilderness and scenic areas, waterways, wetlands, coastlines, wildlife, and clean air. Energy-producing materials such as coal, oil, and gas have all too often been taken for granted as inexhaustible reservoirs predestined to feed the appetite of an ever-expanding technology.

As everyone knows by now, the Clean Air Act, once a relatively innocuous expression of congressional good wishes,¹ was amended in 1970 to become what is still the most sweeping and consequential environmental legislation on the books.² The Energy Supply and Environmental Coordination Act of 1974³ (ESECA) contains the first amendments to the Clean Air Act to clear Congress since that date. These amendments arose out of the hurried congressional and national reaction to the "energy crisis" of last winter.

On October 18, 1972, Congress overrode President Nixon's veto of the Federal Water Pollution Control Act Amendments of 1972, and enacted the broadest, most complex, and most costly legislation ever to deal with this country's water pollution problem.

Editors' Summary: The Special Committee on Environmental Law of the American Bar Association held its annual meeting in April, 1974, at Airlie House in the foothills of Virginia's Blue Ridge Mountains. The conference focused on the capacity of the federal administrative process to deal with environmental issues.This month, ELR is pleased to present a selection of the participants' remarks, beginning with an overview by Frederick R. Anderson, Executive Director of the Environmental Law Institute.

Federal agency decisionmaking that affects the environment is influenced by a variety of factors. Among them are the statutes and executive orders that define an agency's mandate; the standards of review applied by the courts; the attitudes of agency personnel; the agency's relationships with groups in the private sector, the congressional committees with jurisdiction over its programs, other federal agencies such as the Office of Management and Budget, and the public; and the priorities and politics of the administration in power.

This morning, Fred Anderson described several assessments of the performance of federal regulatory agencies. He identified one as "pessimistic." That view held that federal agencies would always remain more responsive to money, economic and political power than to the "public interest." With some qualifications, I subscribe to that pessimistic view. My judgment, however, is tempered by sympathy for the plight of the bureaucrat at all levels of government. The problem, as I see it, is that the bureaucrat's constituency is unbalanced.

My comments will be directed to federal issues encountered during my short experience as General Counsel of the Council on Environmental Quality. I would like to start by describing NEPA in perspectives that I have seen during these last few months.

Federal agency decisionmakers with environmental responsibilities have discovered the hidden truth that Lincoln forgot to mention. It is, in fact, possible to please none of the people all of the time.

This year, a new entry will appear in the legislative branch section of the U.S. Government Organization Manual; the long awaited Congressional Office of Technology Assessment (OTA) is now in business. Like the Library of Congress' Congressional Research Service or the General Accounting Office, OTA is an arm of the legislative branch. Its assignment is to help congressional committees better assess the impacts of new technologies that Congress is called upon the regulate or finance.