The Law and the Environment

THE LAW AND THE ENVIRONMENT

Reprinted from Environmental Quality: the Second Annual Report of the Council on Environmental Quality (August, 1971), Chapter Five [1 ELR 50057]

On January 1, 1970, as his first official act of the new decade, the President signed into law the National Environmental Policy Act (NEPA). That symbolic step has highlighted a year and a half of unprecedented development of the law relating to protection of the environment.

There have followed: court decisions giving force to NEPA and similar Federal laws, actions forcing more consideration of environmental factors in Federal administrative decisions, stronger Federal pollution control laws, and a host of innovative environmental actions by the States. Together they furnish important evidence that the Nation is beginning to institutionalize its concern for the quality of life.

Perhaps the most striking recent legal development has been the step-up in citizen "public interest" litigation to halt degradation of the environment. In the face of a history of administrative decisions that ignored environmental impacts and against a tide of legislative delays in developing pollution control law, citizens concluded that they must use the courts to cure the neglect. The citizen litigation has not only challenged specific government and private actions which were environmentally undesirable. It has speeded court definition of what is required of Federal agencies under environmental protection statutes. The suits have forced greater sensitivity in both government and industry to environmental considerations. And they have educated lawmakers and the public to the need for new environmental legislation.

Citizens in environmental suits have: stopped construction of a road and oil pipeline across the Alaska wilderness, pending thorough environmental studies; prompted cancellation proceedings against the pesticide DDT; halted construction of an expressway on the banks of the Hudson River; shielded wildlife habitats in Texas and Arizona from development; suspended construction of a Corps of Engineers dam in Arkansas until NEPA was complied with; postponed highway encroachment on Overton Park in Memphis, Tenn., pending review of its necessity; and protected parts of the National Forests until it was decided whether they should be saved as wilderness areas. In this litigation, the courts have broadened the concept of a citizen's right to bring suit and the scope of court review of administrative actions.

A less dramatic development — but perhaps of more long-term significance — has been the trend in government toward tighter systems of environmental regulation. There has come with it a greater Federal recognition of the breadth of the areas needing protection. Already the progress indicates that development of the law may be as important to environmental quality as it has been, for example, to civil rights.

federal law

federal agencies and the environment — a framework emerges

A key trend in Federal legislation is the series of provisions — of which NEPA is the broadest and most important — which write environmental interests into Federal Government decision-making.

NEPA laid down the environmental impact statement requirement in section 102(2)(C),¹ since supplemented by guidelines from the Council on Environmental Quality.² An agency proposing a major action with significant environmental impact must: describe the impact; study and describe alternatives to its proposal; obtain comments from environmentally expert Federal, State, and local agencies; and make public, in advance, its environmental analysis and the comments of other agencies. This process — and the advance public response to these environmental analyses — are making Federal agencies far more sensitive to the environment.

Most courts have concluded that the NEPA "102" environmental statement procedure is court enforceable at the suit of interested citizens. This provides a new basis for judicial review of Federal administrative action affecting the environment. In the year and a half since enactment of NEPA, there have been over 20 reported Federal district court decisions involving citizen challenges to Federal action under the Act. They involved, for example, federally financed highway projects,³ Interior Department permits for the Alaska pipeline and its related haul road,⁴ an Interior Department contract termination,⁵ a Bonneville Administration powerline,⁶ Forest Service management of National Forests,⁷ Department of Agriculture use of the pesticide Mirex against fire ants,⁸ Corps of Engineers water resource projects,⁹ a Corps of Engineers permit action,¹⁰ a Farmers' Home Administration loan,¹¹ and a Justice Department grant for a prison facility.¹² Although one decision, arising from a somewhat special set of circumstances, states that NEPA does not impose court-enforceable duties,¹³ the great bulk of district court decisions have allowed citizens to enforce the "102" procedure.

In a number of early cases, the Federal activities challenged had been commenced prior to the enactment of NEPA, and the question arose whether the "102" procedure applied to them. In several instances, the courts held that it did, because there remained further major Federal actions to which the procedure could be applied.¹⁴ In other instances, courts ruled that the procedure did not apply because all significant Federal decisions with respect to the activity were made before NEPA took effect.¹⁵

Significantly, several district court NEPA decisions indicate that the courts will do more than just determine whether the required impact statement has been filed. They will also review whether agency compliance with the necessary analytical procedures is adequate.¹⁶ In this review the courts have taken evidence from the plaintiffs on the environmental impact of, and alternatives to, a proposed action. These aspects of NEPA will receive more definitive interpretation as NEPA cases move into the Federal appellate courts.

NEPA has a further important effect through its requirement in section 102(1) — that "the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act." That section arms Federal agencies with the authority and duty to exercise their powers to promote environmental ends. In a leading case, Zabel v. Tabb,¹⁷ the Corps of Engineers denied a permit, on ecological grounds, to a developer who wished to fill a portion of [1 ELR 50058] Florida's Boca Ciega Bay for a trailer park. A Federal district court held that the Corps could deny a permit only to protect navigation, which was the original concern of the permit statute. However, the Court of Appeals for the Fifth Circuit reversed the decision, relying in part on the conclusion that NEPA "essentially states that every Federal agency shall consider ecological factors when dealing with activities which may have an impact on man's environment."¹⁸

A second key case, Calvert Cliffs,¹⁹ involved Atomic Energy Commission (AEC) responsibility under NEPA to consider environmental factors beyond radiological health and safety in nuclear plant licensing. Although AEC began applying procedures for considering environmental factors after March 1971, the Federal appeals court was not satisfield. It criticized AEC for not implementing such procedures earlier and for the limitations built into them. The court ordered the Commission to conduct an environmental review of the Calvert Cliffs plant already under consruction on Chesapeake Bay, for which a license had been granted.

Other agencies now include environmental considerations in exercising their regulatory authority. The Coast Guard now considers land use and pollution factors when it reviews bridge permit requests. And the Interstate Commerce Commission considers what freight rates for scrap metal will do to the economics of recycling. The Securities and Exchange Commission is moving to require that corporate reports now include environmental information. NEPA also buttress the President's decision to institute a Corps of Engineers permit program to enforce water quality standards under the Refuse Act of 1899.

NEPA is the major statutory lever for environmental quality in Federal Government actions. But it is neither the first nor the only one.

The Congress, more and more in recent years, has enacted environmental protection laws aimed at particular Federal programs. Some of these predate NEPA and served as models for its broader directives. All of them apply some safeguard against environmentally adverse decisions in specific programs. And many of the key court decisions to protect environmental values are based on them. (For relevant sections of these environmental protection provisions, see the appendix to this chapter.)

Section 4(f) of the Department of Transportation Act of 1966²⁰ broadly protects public parks, wildlife refuges, and historic sites against encroaching federally approved transportation projects. It prohibits such encroachment unless there is no feasible and prudent alternative and unless the project is shaped to minimize harm to the environment. The Supreme Court this year in Citizens to Preserve Overton Park v. Volpe,²¹ citing the strong congressional policy against encroachment upon parkland expressed in section 4(f), ruled:

The few green havens that were public parks were not to be lost unless there were truly unusual factors present in a particular case or the cost or community disruption resulting from alternative routes reached extraordinary magnitudes.

The Fish and Wildlife Coordination Act,²² as amended in 1958, bars water resource projects undertaken by a Federal agency, or with a Federal permit, from running roughshod over wildlife. It requires that wildlife be given "equal consideration" with other aspects of water resource development. It further requires that Interior's Fish and Wildlife Service and State wildlife agencies be consulted prior to project approval. In its 1970 decision in Zabel v. Tabb,²³ the Court of Appeals for the Fifth Circuit ruled in effect that a Federal agency could deny or condition a permit if the action threatened wildlife. The Court observed:

Common sense and reason dictate that it would be incongruous for Congress, in light of the fact that it intends conservation to be considered in private dredge and fill operations … not to direct the only Federal agency concerned with licensing such projects both to consult and to take such factors into accounts.

The Wilderness Act²⁴ establishes a National Wilderness Preservation System of Federal lands and legally protects it against inroads. The Act itself puts certain Federal lands within the System and creates a mechanism to review further tracts in the National Forests, National Parks, and National Wildlife Refuges for the same protection. Over 10 million acres have been set aside as wilderness so far.President Nixon has recommended 3 million acres more for congressional approval. In Parker v. United States,²⁵ a Federal district court barred the sale of lumber rights in a relatively untouched tract of a National Forest — until a study is completed and the wilderness character of the tract determined.

The Federal Power Act²⁶ requires the Federal Power Commission to insure that any dam or related project for which it issues a license be adapted to a comprehensive plan which considers commerce, water power, and "other beneficial public uses, including recreational purposes." In Scenic Hudson Preservation Conference v. FPC,²⁷ local groups challenged licensing of the Storm King powerplant on the Hudson River. They argued that the FPC had failed to consider the plant's impact on the scenic beauty of the river. The Second Circuit Court held that "recreational purposes" includes conservation of natural resources and maintenance of natural beauty. It directed the FPC to reconsider the application with an eye to these factors and to possible alternatives to the project. Two years later, in Udall v. FPC,²⁸ the Supreme Court gave the statute the same reading and overturned a license for the High Mountain Sheep Dam on the Snake River — because the FPC failed to consider, among other things, its impact on fish and wildlife and the relative desirability of private and Federal development.

Section 1 of the National Park Service Act²⁹ is another potentially important piece of environmental protection legislation. It requires the park areas be kept "unimpaired" for future enjoyment. The National Historic Preservation Act of 1966³⁰ is another. It establishes a register of historic places and requires consultation prior to any Federal action potentially damaging to them. The Multiple Use-Sustained Yield Act of 1960³¹ is still another. It directs the Forest Service to combine environmental and economic purposes in administering the National Forests.

A growing number of other environmental protection provisions have yet to go before the courts. The most recent are: section 136 of the Federal-Aid Highway Act of 1970,³² requiring that final decisions on Federal-aid highway projects reflect environmental factors to be outlined by the Secretary of Transportation; section 16(c)(4) of the Airport and Airway Development Act,³³ prohibiting Federal approval of airport projects that hurt the environment except under stringent conditions; and section 14 of the Urban Mass Transportation Act of 1964, as amended,³⁴ requiring a detailed statement of environmental impact plus public hearings prior to project approval.

The court decisions on environmental protection legislation have had and will have a much more lasting impact than merely clarifying particular legislation. Scenic Hudson, by placing a positive responsibility on the FPC to consider less environmentally damaging alternatives, laid a foundation for the obligation to develop alternatives imposed by NEPA. Overton Park, Parker, Zabel v. Tabb, Scenic Hudson, and Udall v. FPC confirm that courts will apply congressional expressions of environmental policy to overturn agency actions when environmental values are not adequately considered, or, conversely, to uphold agency authority to take action based on these values.

federal pollution control — new legal techniques

New legal techniques of pollution control have accompanied tighter Federal pollution control standards. The Congress has authorized the Federal Government to set national standards of its own for ambient air quality and for certain emissions — moving [1 ELR 50059] away from the former approach in which States set standards based on Federal criteria. New provisions in the air pollution laws and other proposed pollution control legislation signal a change in the burden of proof. Now those discharging certain materials into the environment will be required to show that their actions will not be harmful, rather than the Government having to prove the danger after the fact. Federal air and water quality laws have been changed to place new legal restrictions on pollution from Federal facilities. New legislation now permits citizens to augment Government enforcement (see Chapter 1) by suing polluters in Federal court if they do not meet Federal-State air quality standards. Finally, the Federal Government is strongly backing international efforts to control marine pollution.

national antipollution standards — Nationwide controls have previously existed on pollution from certain mobile sources — motor vehicles, aircraft, and vessels — and pesticides and radiation. Federal control over mobile sources is necessary because no State or local government or individual can protect against environmental degradation from a moving source without creating an unacceptable burden on commerce. Pesticides and radiation have been subjected to nationwide controls because they are inherently dangerous.

The Clean Air Amendments of 1970³⁵ set a variety of legal precedents. In the past, air pollution was regulated primarily in airsheds by State and local authorities. The Clean Air Act authorized national standards. The Act calls for national air quality standards on certain pollutants designated by the Environmental Protection Agency (EPA). It sets a deadling for primary standards — those designed to protect health. Significant new sources of air pollution, such as new powerplants and smelters, and both new and old sources of hazardous air pollutants will fall under national emission standards. The President's water pollution control legislation sent to the Congress also calls for national effluent standards on hazardous materials.³⁶

Federal authority was also extended to include every area of the Nation under the requirements of the Clean Air Act.³⁷ Similar extension is requested in the Administration's proposed water pollution legislation. That legislation would require that the States or EPA establish water quality standards for all intrastate as well as interstate waters — and would give EPA new muscle to enforce them. Current Federal law requires federally approved water quality standards on interstate waters only and authorizes Federal enforcement ordinarily only when pollution from one State damages the health and welfare of citizens in another.

burden of proof — on the polluter — The Clean Air Amendments of 1970³⁸ are an example of a recent shift in burden of proof in pollution control. Once the EPA Administrator tags an air pollutant as hazardous, he may, after giving notice, publish emission standards. Then any objector must establish "that such pollutant clearly is not a hazardous air pollutant." When EPA believes that an air pollutant is a health hazard, industry must either comply with the emission standards or prove that the hazard does not exist.

The Administration's proposed bill to regulate ocean dumping³⁹ further illustrates this new approach to burden of proof. The bill would place the burden on the applicant for a dumping permit. He would be obliged to show that the proposed dumping will not unreasonably degrade or unreasonably endanger human health or other specified environmental values.

The Administration's proposed Toxic Substances Control Act⁴⁰ would require industry to perform tests prescribed by the Administrator of EPA prior to marketing any new chemical substance. The Administrator could request information on the results of these tests. Based on EPA's analysis of the tests or other information, it could ban or prohibit uses of a chemical substance if necessary to protect human health or the environment.

abatement of pollution from federal facilities — The Congress has enacted into law the policy of an earlier Executive Order aimed at pollution from Federal facilities. It amended both the Federal Water Pollution Control Act⁴¹ and the Clean Air Act⁴² to make Federal facilities fall in line with air and water quality standards. In addition, the new vessel sewage control provisions in the Federal Water Pollution Control Act were made to apply to Federal vessels.⁴³

The Clean Air Amendments also limit the exemptions that may be granted. No exemption is now permitted from the performance standards set for new stationary sources, and hazardous emission standards may be postponed only if the technology is lacking or if the polluting operation is necessary to the national security.⁴⁴ No exemption may be granted on the basis of lack of an appropriation unless the President "shall have specifically requested such appropriation … and the Congress shall have failed to make available such requested appropriation."⁴⁵ By expressly waiving soverign immunity, the Amendments also permit State or local government — or citizens — to enforce Clean Air Act rules against Federal facilities.⁴⁶

citizen enforcement of pollution standards — Citizens may sue to enforce air pollution standards against Government and private entities. In the Clean Air Amendments, the Congress set a major precedent when it created this power of citizen enforcement⁴⁷

Concurring that citizen enforcement suits can provide a valuable supplement to Federal enforcement efforts in areas in which clearly established Federal or Federal-State pollution control standards exist, the Administration has proposed that similar provisions be added to the Federal Water Pollution Control Act.⁴⁸

international controls over marine pollution — Just as Federal antipollution laws are trending strongly toward nationwide standards and enforcement, there is now movement to set certain international controls. These first international measures relate to marine pollution.

The Torrey Canyon stranding dramatically spotlighted oil spills — both large and small — and spurred international efforts to prevent and cope with oil pollution. President Nixon has forwarded three treaty actions on this subject to the Senate.⁴⁹ And the United States, together with other nations, is actively pursuing efforts to secure other international agreements. The U.N.'s Intergovernmental Maritime Consultative Organization (IMCO), NATO's Committee on the Challenges of Modern Society, and the U.N.'s 1972 Conference on the Human Environment all have important marine pollution control items on their agendas.

The Administration's proposed legislation on ocean dumping⁵⁰ would order the Secretary of State to "seek effective international action and cooperation" to support the policy of that Act. In 1972, the U.N. Conference on the Human Environment at Stockholm may consider an international agreement on ocean dumping. The International Seabeds Convention, proposed by the United States, also contains environmental control provisions.

Finally, the United States and Canada are negotiating a bilateral agreement to control pollution of the Great Lakes. The agreement would establish common water quality objectives for the Lakes to be overseen by the International Joint Commission.⁵¹

citizen checks on agency action affecting the environment — the law responds

The ability of citizens and citizen groups to make their views known and to participate in government decisionmaking on the environment is critically important. Often individuals and groups can contribute data and insights beyond the expertise of the agency involved. In some cases, citizen groups are seeking — and making — significant changes in agency policy.

There has been a marked expansion in citizen rights to know about, to participate in, and ultimately to challenge Federal [1 ELR 50060] agency actions, particularly those affecting the environment. This new citizen's role has evolved in many different forums. The courts have contributed — through new interpretations of such existing laws as the Freedom of Information Act and the Administrative Procedure Act. And a variety of administrative agencies have instituted procedural changes to implement NEPA.

The new openness to citizen involvement is bound to check, stimulate, and test future Federal agency activities. Citizen concern cannot substitute for assumption of environmental responsibilities by government and industry. Nor can it provide the mechanism to resolve the many policy issues involved. What it can provide, however, is a highly potent quality control and "feedback." This citizen role has been greatly developed in the last year and a half.

the citizen's right to know — The Freedom of Information Act,⁵² passed in 1966, predates the upwelling of citizen environmental action. It laid down a general rule that all agency data must be available to the public, with certain exceptions, and is basic, therefore, to public availability of environmental data. The exception most likely to enter into environmental controversies permits agencies to refuse to disclose any internal papers with opinions or advice on matters of policy. But in a recent decision on whether the public could see a scientific report on the SST, a U.S. court of appeals held that the exemption does not protect "purely factual or investigatory reports."⁵³ Factual information is exempted "only if it is inextricably intertwined with policymaking processes." Read thus, the Act should open to the public factual studies and analyses of environmental issues used by Federal agencies in preparing environmental impact statements, as well as the statements themselves.

NEPA recognizes the importance of public access as a force for corrective action. It does so by requiring public availability of environmental impact statements and of agency comments, regardless of whether they contain advice on matters of policy. An Executive Order and the guidelines issued by the Council on Environmental Quality have both implemented this policy. Executive Order 11514, of March 5, 1970, directs Federal agencies to maximize public information about environmentally significant programs so that the public's views can bve considered.⁵⁴ The Council guidelines generally require that draft and final environmental impact statements be available to the public for minimum periods of 90 and 30 days, respectively, before the agency acts.⁵⁵ The guidelines also require that draft statements be made public at least 15 days before hearings. As described in Chapter 1, various channels of distribution are being set up to make the environmental impact statements and agency comments more easily available to the public.

Section 309 of the Clean Air Act,⁵⁶ added in 1970, gives the public an additional right to information on the environmental aspects of Federal action. It requires the Administrator of EPA to comment on any proposed legislation, regulation, or agency action affecting air or water quality, pesticides, solid waste disposal, radiation, or noise control. These comments must be publicly available in writing at the end of EPA's review.

Together, these legal provisions greatly expand the citizen's right to the environmental information on which proposed Government actions are based. Opening the decisionmaking process to public scrutin should help insure that Federal agencies act in the public interest. It should also guarantee that actions not responsive to the national environmental goals set in NEPA receive timely attention.

the citizen's right to participate — Citizens and citizen groups have obtained ever increasing rights and opportunities to participate meaningfully in Federal agency decisionmaking. The extent of participation varies considerably, depending chiefly on whether the agency determination is made formally or informally. Formal procedures are prescribed by the Administrative Procedure Act (APA)⁵⁷ and by similar provisions in other acts. A wide variety of Government decisions are made informally, without legislatively set procedures.

NEPA has enhanced the citizen's possible role, whether or not statutory formalities apply to the agency action. It ensures more detailed and easily available notice to citizens of environmental issues. It permits the public to focus on the agency's environmental findings and conclusions through the environmental impact statement.

formal proceedings under the apa — The Administrative Procedure Act defines and prescribes procedures for two types of formal agency proceedings: adjudications and ruleamking.⁵⁸ An adjudication is a formal process in which the agency's decision must be made on the record of a hearing similar to a trial. Parties to the proceeding are allowed to submit evidence, rebut opposing evidence, and cross examine opposing witnesses. Examples of agency adjudications are: the assessment by the Coast Guard of a civil penalty against a person who knowingly discharges oil into U.S. navigable waters, contrary to the Federal Water Pollution Control Act;⁵⁹ and the refusal by the Environmental Protection Agency to register a new pesticide for a particular use under the pesticide laws.⁶⁰ The agency must provide a statement of "findings and conclusions, and the reasons or basis therefor," on all issues involved. The decision can be reviewed and set aside by a court if the record does not contain substantial evidence to support it.⁶¹

The public's right to participate in adjudications has received wide recognition. The APA leaves the agencies free to decide who may participate in the proceedings. Initially, agencies limited participation to persons who would be the direct objects of the agency action or regulation. Spurred by a 1966 landmark Federal circuit court decision in Church of Christ v. FCC,⁶² emphasizing agency obligations to take cognizance of a wider spectrum of public interests, the agencies that conduct APA adjudications have, by and large, considerably expanded public participation.

Rulemaking is the agency process for formulating, amending, or repealing a rule. It involves major Federal regulations, such as EPA's setting air and water quality standards. Because of the broad and pervasive nature of rulemaking, participation in developing agency rules is a key opportunity for citizen input into Government decisions.

The APA requires an agency generally to give advance notice of rulemaking in the Federal Register. Then the agency must allow 30 or more days between the notice and adoption of a rule. During this time, any interested person may "participate in the rulemaking through submission of written data, views, or arguments." The agency may hold an informational hearing but need not unless required by another statute.⁶³ An interested person does not have to depend on the agency to initiate action. He may "petition for the issuance, amendment, or repeal of a rule."⁶⁴ An agency's failure to act on such a petition is an "agency action" reviewable in court.⁶⁵

When an adjudication or a rulemaking falls within section 102(2)(C)'s requirement for an environmental impact statement, NEPA strengthens the citizen's right to present relevant environmental information to the agency. It has also increased the amount of detailed environmental information that must be included in the advance notice.

determinations made informally — Thousands of Federal agency determinations take place without the formalities of adjudications or rulemaking. These include the day-to-day decisions of a Federal agency as well as performance of specific duties — such as consulting under the National Historic Preservation Act of 1966.⁶⁶ The APA does not specify procedures for these decisions but merely provides for court review. Generally no law requires a public hearing, but in some instances agencies hold an informational hearing on their own initiative.

[1 ELR 50061]

When a hearing is held, citizens may object and make suggestions. For example, an interested person may testify at the public hearings held by the Corps of Engineers for proposed water resource projects. Agency practices, however, are not yet uniform in notifying the public of hearings.

Traditionally, citizens have had particularly little voice in the innumerable decisions made by agencies without public hearings. In the past, Defense Department decisions on the ocean disposal of surplus munitions and many Interior Department decisions to grant mineral leases on Federal lands have been made without public notice and without any means, other than by letter, for citizens to be heard.

NEPA'S requirements are particularly important in informal agency decisions. Without APA proceedings or other public hearings, the environmental impact statement is the only way the public can learn of an impending action — or of the environmental issues raised. Even more important, NEPA and the Council's revised guidelines require agencies, when appropriate, to consider the comments of citizens as well as those of government agencies.⁶⁷ Another effect of NEPA and the Executive Order which implements it is its influence on agencies to hold hearings when they would not otherwise have done so.

the citizen's right to challenge in court — One of the most striking and significant developments in environmental law is the right of citizens to take to court Federal agency actions affecting the environment. NEPA and other laws require agencies to consider the environment in their actions. And citizens are now initiating lawsuits when they believe an agency has failed to do that.

The citizen's success in challenging an agency decision depends in part on a number of legal doctrines that limit court intervention in agency affairs. These doctrines determine the citizens's standing to bring suit. They regulate the extent to which a court may review an agency decision. They determine the evidence the court may consider beyond that developed by the agency. And they dictate whether the plaintiff must participate in the agency decision before seeking court review. Citizen suits to protect the environment are bringing evolution in all of these doctrines.

standing — Citizens do not automatically have standing to seek review of agency decisions in court. In the past, lack of standing has been a significant impediment to a citizen's right to challenge Federal agency actions. The law generally allows only persons who are "aggrieved" by agency action to seek court review.⁶⁸ Several court review provisions give standing to "aggrieved" persons, and despite earlier uncertainty, the courts have concluded that the APA permits "aggrieved" persons to seek review of agency actions in almost every case in which a specific review provision is lacking.⁶⁹

The Supreme Court, in Data Processing Service v. Camp,⁷⁰ recently held that to be "aggrieved," a person must have suffered "injury in fact" from the agency action, and the interest he seeks to assert must be an interest intended to be protected by the specific statute invoked. Environmental plaintiffs have usually been successful in meeting both requirements.

In Data Processing, the Court did not clearly define "injury in fact." But it did stress that the injury need not be economic but may be "aesthetic, conservational or recreational." This may mean that any responsible citizen or group may sue to protect an environmental resource, such as a recreational area, that exists for the benefit of the public.

Three U.S. Courts of Appeals, for the Second, Fourth, and District of Columbia Circuits, seem to have reached this conclusion.⁷¹ The Second Circuit concluded "that the public interest in environmental resources … is a legally protected interest affording these [environmental groups] … standing to obtain judicial review of agency action . …"⁷² On the other hand, the Ninth Circuit, in Sierra Club v. Morton⁷³ (known as the Mineral King case), refused to permit the Sierra Club to sue to protect Sequoia National Park. It did so because neither the Club nor its members had property threatened by the action and the Club's status as an organization was not threatened. In a later decision,⁷⁴ the Ninth Circuit refused to permit an environmental group to sue to protect San Francisco Bay on the same grounds. The court, however, did permit individual members of the organization to stay in the suit. The conflict between the courts of appeals will be resolved when the Supreme Court reviews the Mineral King case in the fall of 1971.

The Ninth Circuit's rule that citizen groups lack a sufficient interest to sue to enforce environmental laws threatens to leave such enforcement exclusively to Government — whose actions may on occasion conflict with those laws. As the Federal District Court for Alaska has noted, denying citizen groups standing to raise environmental issues "would have the practical effect of preempting many meritorious actions, as one individual, or a small number of individual, would have to sustain the entire financial burden of the lawsuit." The costs of effective litigation are so high that "few members of the general public will have resources or courage to face such odds for the sake of vindicating a right to which all are entitled as a matter of law."⁷⁵

Because environmental lawsuits are usually brought under statutes clearly intended to protect environmental values, they easily meet the protected-interest test of Data Processing. Citizen groups have successfully won standing not only under NEPA but also under the Federal Power Act, the Department of Transportation Act, the Multiple Use-Sustained Yield Act, the Wilderness Act, and Federal pesticide laws.⁷⁶ Court decisions under NEPA, which has a broadly stated environmental purpose, indicate that virtually any environmental interest falls within the protection of that Act.

court review of agency decisions — The courts do not hesitate to review questions of law decided by Federal agencies. But traditionally they have deferred to the agency for determinations of fact. As a general rule, particularly for informal decisions, the courts overturn agency "factual" findings only if they are "arbitrary or capricious."⁷⁷ This rule makes it primarily the agencies' job to find the basic, objective facts.

Interpreting facts is a subjective process, however. And an agency's "factual" conclusions may involve weighing environmental values against other policies important to the agency. Recognizing this, the courts have recently begun to broaden the meaning of "arbitrary or capricious." It now includes agency decisions that disregard the policies of environmental laws.

In Overton Park, the Supreme Court confirmed this recent trend to give greater bite to review under the arbitrary-or-capricious test. Such review "is to be searching and careful," and action should be reversed when "there has been a clear error of judgment." Although the Court also gave the reassurance that the reviewing court "is not empowered to substitute its judgment for that of the agency," its discussion indicated that court review of the facts will be exacting.⁷⁸

evidence outside the agency record — In reviewing an agency's adjudication or formal rulemaking, the courts are required to decide whether the agency record supports the agency action.⁷⁹ [1 ELR 50062] If it does not, the action is set aside. If the agency failed to consider relevant factors, the court directs it to consider evidence and then to make a new decision. The citizen is not, however, allowed to present new evidence to the court to discredit the agency's decision.

An agency decision made without formal APA proceedings may be backed by little or no written record to explain it. So unless the court receives some evidence, it has little against which to test the agency's action. By prodding the agency to make a more complete record and by permitting the citizen to submit his own evidence, the courts are making citizen review more effective.

In Overton Park, the Court said that in reviewing informal agency decisions, courts must examine the "full administrative record" on which the agency acted. They cannot be satisfied with after-the-fact "rationalizations" alone. When the record does not disclose all the factors considered, the reviewing court may require the responsible officials to explain their action. The agencies thus are encouraged to produce thorough, contemporaneous written records backing their decisions.⁸⁰

The Supreme Court did not discuss the extent to which a plaintiff may submit his own evidence to discredit an agency action. However, in cases under NEPA the lower courts have freely admitted evidence bearing on the legality of action under the Act. For example, evidence was admitted in Environmental Defense Fund, Inc. v. Corps of Engineers⁸¹ to show the inadequacy of the Corps' section 102 statement in considering the danger posed for the environment by the Gillham Dam project. In the recent Mirex case,⁸² the court received evidence on the fire ant situation and determined that the Department of Agriculture's environmental study was adequate. Similarly, in Parker v. United States,⁸³ the court heard evidence to show that an area was protected by the Wilderness Act until a study of its wilderness character was finished.⁸⁴ Further litigation will define the limits of the citizen's right to introduce evidence that was not considered by the agency.

exhaustion of administrative remedies — The citizen's expanded right to challenge Federal agency decisions in court complements his right to participate in agency decisions; together, they give him a new role in shaping the environmental impact of government activity. However, the citizen may not always be free to choose the stage at which to interject his views. Generally, one who foregoes an opportunity to make his claims before an agency cannot later go into court, because he failed to "exhaust administrative remedies."

The reason for this rule is that failure to object to the agency initially deprives it of the chance to consider the objections and perhaps modify its action without judicial intervention. The exhaustion rule supports the form of decisionmaking created by the Congress.By permitting the agency to make a factual record, it also promotes more effective judicial review.⁸⁵

The exhaustion requirement applies primarily when the agency has followed formal procedures allowing for citizen participation. However, it may apply more and more to informal decisions now that citizens receive notice and can participate.An example is the recent decision in Sierra Club v. Hardin.⁸⁶ There the Sierra Club challenged a Forest Service timber sale in the Tongass National Forest. Although it knew of the impending timber sale, the Club did not invoke Forest Service procedures for protest and review, and the court therefore refused to consider its claims. Similarly, the Audubon Society was foreclosed from challenging Corps of Engineers permits for dredging in Texas waters because it did not show that it had objected to the appropriate agencies first.⁸⁷

state law

State governments have responded to environmental problems with a variety of legal innovations.

constitutional changes

Constitutional amendments are a fundamental form of expression of legal policy. A number of States have added environmental protection provisions to their constitutions. Other States are considering doing so. Some State constitutions already contain provisions dealing with conservation of natural resources. However, recent proposals focus on the individual's right to environmental protection and raise the possibility of increased resort to the courts to vindicate that right.

New York's constitutional amendment, effective January 1, 1970, was one of the first recent changes. Popularly called the "Conservation Bill of Rights," it declares a State policy "to conserve and protect its natural resources and scenic beauty." It directs the State legislature to act to carry out that policy. The amendment addresses legislative responsibility more than individual rights, but another provision of the State constitution permits citizen suits to restrain its violation.⁸⁸

A constitutional provision adopted by the Illinois electorate in December 1970 is more directly oriented toward individual rights and obligations. Besides declaring a state policy to protect the environment, it provides that "[e]ach person has the right to a healthful environment." The Illinois amendment authorizes every person to sue to enforce this right against "any party, governmental or private." The right is subject to reasonable limitation and regulation by the State legislature.⁸⁹

Pennsylvania's and Rhode Island's new constitutional amendments also declare environmental "rights" in the people, but they do not expressly authorize private suits.⁹⁰ Amendments of these several types are under consideration in a number of other States.

Experience under these State constitutional amendments is still too short to determine how well they work to protect the environment. It is unclear whether the New York amendment was intended to be enforceable by private citizens or merely a declaration of policy to be implemented by the legislature. Even where direct private enforcement is clearly contemplated, as in Illinois, the courts may take years to define the constitutionally protected rights. Despite these difficulties, support appears to be growing for writing environmental guarantees into State charters.

environmental statements for state agency actions

Since enactment of NEPA, a number of State legislatures have passed "action forcing" requirements similar to NEPA's environmental impact statement requirement. At least four State legislatures and the Commonwealth of Puerto Rico have established such procedures.

In June 1970, only 6 months after passage of NEPA, the Commonwealth of Puerto Rico enacted a law directing agencies to consider the environment in their actions. It created an environmental statement procedure identical to NEPA's.⁹¹ The law also creates in the Governor's Office an Environmental Quality Board, which has both policymaking and regulatory authority over air and water pollution, solid waste disposal, and other environmental problems. The law also authorizes citizen suits for violation of its regulatory provisions.

Montana enacted legislation in March 1971 that adopts the environmental statement procedure of NEPA and creates a State Environmental Quality Council.⁹² The Montana Council's role differs from that of either the Federal Council or the Puerto Rican body. Its 13 members include the Governor or his representative, four gubernatorial appointees, and four members of each house of the State legislature. It thus serves as a joint arm of the executive and legislative branches to review and formulate State environmental policy. Legislation derived from NEPA [1 ELR 50063] has also been enacted in California,⁹³ Washington,⁹⁴ and Delaware⁹⁵ and is under consideration elsewhere.⁹⁶

State government activities, no less than Federal, have farreaching, often unanticipated, environmental impacts. The recent State statutes are new efforts to control those consequences. Other States may be expected to make similar efforts — either by adopting the environmental statement mechanism or by developing new and and as yet untried procedures.

Citizen suit legislation

State legislature, like the U.S. Congress, have moved to bolster the citizen's right to challenge activities detrimental to the environment in court. The Michigan Environmental Protection Act of 1970 is one of the most publicized of these measures.⁹⁷ It authorizes any private or public entity to sue any other private or public entity for equitable relief from "pollution, impairment or destruction" of the "air, water, and other natural resources and the public trust therein."

Like section 304 of the Federal Clean Air Act,⁹⁸ the Michigan Act eliminates the defenses of lack of standing and sovereign immunity. However, although the Federal law provides a mechanism for private citizens to enforce antipollution standards established by Government agencies, the Michigan statute takes a different approach. It directs State courts to develop a common law of environmental degradation through case-by-case definition of "pollution, impairment or destruction" of the environment. Antipollution standards fixed by State agencies can be challenged. If found deficient, they may be replaced by a court-ordered substitute.

Both the Michigan Act and section 304 of the Federal Clean Air Act affirm the importance of the citizen's role before the courts. However, the Michigan Act transfers to the courts much of the standard-setting authority traditionally exercised by the other two branches of government. It thus places this authority in the branch most insulated from the elective process. In contrast, the Federal provision reaffirms the role of Congress and the executive in setting standards and enlists the citizen's aid in enforcing those standards.

Legislation similar to the Michigan Act was passed recently in Connecticut.⁹⁹ New citizen suit statutes in Indiana and Minnesota, like the Federal provision, direct the courts to look to the antipollution standards adopted by State agencies.¹⁰⁰

invoking nuisance law

All States maintain programs to control air and water pollution under the Federal Clean Air Act and Water Pollution Control Act. Yet many continue to provide alternative pollution control remedies under older, court-evolved, common law doctrines. One of these, the law of public nuisance, has been used more and more as an antipollution tool. A public nuisance is generally defined as conduct causing "an unreasonable interference with a right common to the general public."¹⁰¹ It may be enjoined in a suit by State authorities or, in some cases, by private citizens.

Resort to the public nuisance doctrine in the aftermath of a 5-day air pollution crisis in Birmingham, Ala., during April 1971 is discussed in Chapter 2. There the State attorney general sought an injunction against 13 major industrial corporations to require them to curb their emissions within 6 months. He charged that they endangered Birmingham citizens.

Public nuisance law arms State officials with an enforcement tool free of cumbersome pollution control procedures. But it has certain shortcomings that limit its effectiveness. Because the concept of public nuisance is general and nonquantitative, the courts have no way to assess permissible limits of polluting activities. Rather, they must try to weigh the gravity of the harm against the social utility of the defendant's conduct.¹⁰² In nuisance cases involving pollution, the problem could be overcome with pollution control standards as the measure of conduct amounting to a nuisance.¹⁰³

The courts now are being asked more and more to entertain public nuisance suits brought by private citizens. Under the common law, if all members of the community suffered equally, none could sue. Their elected officials were expected to sue for them — on behalf of the State. However, very recently, there have been signs that the courts may permit private persons to sue to abate a public nuisance when only prospective relief, and not monetary damages, is sought.¹⁰⁴ In a proposed study of the law on this subject, the American Law Institute has noted that this development is consistent with expanded concepts of the standing of citizen groups generally.¹⁰⁵

state suits in the supreme court

The U.S. Constitution empowers the Supreme Court of the United States to exercise original (trial court) jurisdiction over "all Cases, in Law and Equity … between a State and Citizens of another State."¹⁰⁶ The States have invoked this authority rarely on pollution matters. But growing concern about interstate pollution has triggered increased State interest in this direct resort to the Supreme Court.

In the first of several recent cases, Ohio v. Wyandotte Chemicals Corp.,¹⁰⁷ Ohio sought an order to abate mercury pollution of Lake Erie by several Michigan and Canadian chemical companies. Ohio charged that this was a public nuisance. The Supreme Court declined to adjudicate the case, explaining that State courts were a more suitable and generally better equipped trial forum. The Court also implied that current State, Federal, and international government efforts to deal with mercury pollution were "a more practical basis" for solving the problem than a nuisance action in any court. The Court's position on the availability of its original jurisdiction in interstate pollution matters may be further clarified in three other cases which it will hear this fall.¹⁰⁸

state authority to control land use

The States are growing more concerned about protecting the public interest in valuable land resources. Chapter 2 describes new State laws passed to provide this protection. As in Maine and Vermont, these laws often increase restrictions on the way private landowners use their property. They do this under the authority of broad State "police powers" to protect the general welfare. However, the Fifth and Fourteenth Amendments to the U.S. Constitution forbid States to take property for public purposes without paying the owner "just compensation." Landowners often challenge restrictions on their rights on the basis that the regulations amount to a State "taking" of property, which requires compensation. Obviously, the States may be inhibited from pursuing new regulatory approaches if the courts too freely find the new restrictions to be a "taking" of property. The States cannot protect all critical areas and control major development if they must compensate for — or purchase — the land whose use they seek to regulate.

The Supreme Court upheld State authority to control land use through general zoning in 1926.¹⁰⁹ it has not yet ruled on more modern land use control techniques. Although some State courts have been skeptical,¹¹⁰ other recent decisions are giving fairly broad latitude to States to channel private land use decisions [1 ELR 50064] along State policy lines. For example, in 1970, a California court upheld the power of the State's new Bay Conservation and Development Commission to control filing of San Francisco Bay.¹¹¹ The Commission had refused to permit a corporation to fill submerged land that it had purchased for disposal of debris. The court rejected the corporation's claim that this refusal amounted to a taking of its property. The court stressed that the State law creating the Commission "clearly define[d] the public interest in San Francisco Bay." It held that prevention of filling was not an "undue restriction" on the landowner's property rights.

Other forms of land use control present a similar problem.For example, some States have tried to preserve open space by requiring that subdividers dedicate a portion of each new development to public recreational use. Landowners have challenged this type of measure, also, as a taking of property. A recent decision by the California Supreme Court rejected such a challenge. The developers insisted that a city ordinance designed to preserve for park use 2 1/2 acres of land for each 1,000 new subdivision residents was a taking of property.¹¹² The ordinance required each subdivider either to dedicate a portion of his tract or to pay a fee. The court held that because new subdivisions both increase city population and diminish available open space, the city's measure was a legitimate way to maintain a balance between population and park areas. The court implied that the ordinance would be valid even if the new park were not located near the subdivision.

Although too few to establish a trend, these decisions suggest that the Fifth Amendment permits innovative land use control without compensation when a clear State interest exists.

conclusions

Development of the law by itself cannot achieve environmental quality. It will require concerted use of economic, scientific, and management tools — along with application of law. But the recent pace of development in the law's handling of environmental issues has been encouraging. It is both a sign of progress on environmental problems and evidence of the responsiveness of our legal system.

The successes of citizen participation in this development owe much to the groundwork laid in other areas of public concern. The experience of groups litigating for civil rights, consumer protection, and other "public interest" issues set the stage for environmental litigation. So did previous work in implementing the Administrative Procedure Act and the Freedom of Information Act. Also, what has been done to develop the concept of citizen standing to present intangible concerns is highly relevant to environmental litigation. In turn, environmental suits can be expected to increase the effectiveness of other citizen public interest litigation.

As in other areas of public concern, the organized legal profession is providing aid and guidance in the development of environmental law. National and local bar associations have spawned new committees to study, recommend, and testify before the Congress on environmental issues. Law schools have broadened their curricula to include environmental law, and new law students' organizations are devoting themselves to environmental protection.

What is unique about current citizen environmental litigation is that the considerable resources, nationwide attention, and judicial receptivity accorded it have created, in effect, an "environmental ombudsman" for the Nation. Rather than creating a new public officer to challenge official actions on environmental issues publicly, citizen groups are now doing it themselves — and are being effective. Legal developments have fostered this, and the environment has stirred widespred public support as an issue. No other country has yet experienced this development. In the United States, the process will lead to the most rigorous probing of the environmental impacts of government action and private action subject to governmental regulation.

The attention now given citizen litigation should not, however, be allowed to overshadow the need for systematic administrative action. Nor should it upstage the strides taken by the Federal Government in controlling the environmental impact of its own actions and in improving the regulation of pollution. Nor can litigation be a substitute for legislative authority to deal with the basic problems of air and water quality and land use.

There are serious limits to what citizen litigation can do. The courts, deciding only the particular cases that reach them, are not in a position to develop coordinated policies or to provide consistent implementation. Insulated from the elective process, they are not equipped to develop standards responsive to public preferences when values conflict.

Ultimately, government, to which NEPA and the other environmental protection legislation assign clear responsibility, must supply the responsive and systematic action needed for effective environmental management. Undoubtedly this calls for major reform in agency attitudes and procedures and difficult decisions for legislatures. Citizen litigation makes its greatest contribution by forcing the pace of reform and by acting as one quality control over government programs. Currently this litigation helps compel agencies to come to grips with the need for new environmental policies. And it fuels the move for more open and responsive agency procedures and highlights the need for comprehensive legislative solutions.

NEPA has brought about a basis policy commitment by the Federal Government comparable to the Full Employment Act of 1946,¹¹³ which created the Council of Economic Advisers, upon which the Council on Environmental Quality was patterned. It has also supplied tools for implementing that commitment. Its environmental statement requirement has proved an effective "action forcing" procedure. And its expansion of agency authority to act on the basis of environmental considerations is having steadily growing impact.

Important innovations in Federal and State environmental regulation are taking place. At both the Federal and State levels, the pace of new institutional development in environmental management has quickened beyond expectation. The broadest program of environmental legislation ever transmitted to the Congress is now awaiting action.

The Court of Appeals for the District of Columbia recently observed:

A new public sensitivity to issues of environmental protection has imposed new responsibilities on the courts, the legislature, and the administrative agencies.¹¹⁴

Recent developments in the law of environmental protection indicate that all three branches are facing up to these responsibilities.

1. The full text of NEPA appears in the original as an appendix, and may be found at 1 ELR 41009. [Ed.]

2. The full text of the Council's Guidelines, as revised April 23, 1971, appears at 1 ELR 46049.

3. E.g., Brooks v. Volpe, 319 F. Supp. 90 (W.D. Wash. 1970); Bucklein v. Volpe, 2 ERC 1082, 1 ELR 20045 (N.D. Calif. 1970); Pennsylvania Environmental Council v. Bartlett, 315 F. Supp. 238 (M.D. Pa. 1970).

4. Wilderness Society v. Hickel, 325 F. Supp. 422 (D.D.C. 1970).

5. National Helium Corp. v. Morton, 326 F. Supp. 151 (D. Kan. 1971).

6. Investment Syndicates, Inc. v. Richmond, 318 F. Supp. 1038 (D. Ore. 1970).

7. Sierra Club v. Hardin, 325 F. Supp. 99 (D. Alaska 1971); see also West Virginia Highlands Conservancy v. Island Creek Coal Co., 441 F.2d 232 (4th Cir. 1971).

8. Environmental Defense Fund, Inc. v. Hardin, 325 F. Supp. 1401 (D.D.C. 1971).

9. Environmental Defense Fund, Inc. v. Corps of Engineers, 324 F. Supp. 878 (D.D.C. 1971); Environmental Defense Fund, Inc. v. Corps of Engineers, 325 F. Supp. 728, 749 (E.D. Ark. 1971); Sierra Club v. Laird, 1 ELR 20085 (D. Ariz. 1970).

10. Delaware v. Pennsylvania New York Central Transp. Co., 323 F. Supp. 487 (D. Del. 1971).

11. Texas Committee v. United States, 1 ERC 1303 (W.D. Tex.), dismissed as moot, __ F.2d __ (5th Cir. 1970).

12. Ely v. Velde, 321 F. Supp. 1088 (E.D. Va. 1971), on appeal to the Court of Appeals for the Fourth Circuit.

13. Bucklein v. Volpe, supra note 3.

14. E.g., Environmental Defense Fund, Inc. v. Corps of Engineers, 325 F. Supp. 728, 749 (E.D. Ark. 1971); Sierra Club v. Laird, supra note 9; Texas Committee v. United States, supra note 11.

15. E.g., Pennsylvania Environmental Council v. Bartlett, supra note 3; Elliott v. Volpe, 2 ERC 1498, 1 ELR 20243 (D. Mass. 1970); cf. Daly v. Volpe, 2 ERC 1506, 1 ELR 20242 (W.D. Wash. 1971); Sierra Club v. Hardin, supra note 7.

16. E.g., Wilderness Society v. Hickel, supra note 4; Environmental Defense Fund, Inc. v. Corps of Engineers, 324 F. Supp. 878 (D.D.C. 1971); Environmental Defense Fund, Inc. v. Corps of Engineers, 325 F. Supp. 728, 749 (E.D. Ark. 1971); Environmental Defense Fund, Inc. v. Hardin, supra note 8.

17. 430 F.2d 199 (1970), cert. denied, 39 U.S.L.W. 3360 (1971).

18. Id. at 211; see also Peterson, An Analysis of the National Environmental Policy Act, 1 ELR 50035.

19. Calvert Cliffs' Coordinating Committee, Inc. v. AEC, No. 24, 839 (D.C. Cir., decided July 23, 1971).

20. 49 U.S.C. § 1653(f).

21. 401 U.S. 402 (1971).

22. 16 U.S.C. §§ 661, et seq.

23. 430 F.2d at 209; see also Udall v. FPC, 387 U.S. 428, 443-44 (1967).

24. 16 U.S.C. §§ 1131, et seq.

25. 1 ERC 1163 (D. Colo. 1970), on appeal to the Court of Appeals for the Tenth Circuit; see also West Virginia Highlands Conservancy v. Island Creek Coal Co., supra note 7.

26. 16 U.S.C. § 803(a).

27. 354 F.2d 608, 614 (2d Cir. 1965).

28. 387 U.S. 428 (1967).

29. 16 U.S.C. § 1.

30. 16 U.S.C. §§ 470, et seq.

31. 16 U.S.C. §§ 528, et seq.

32. 23 U.S.C. §§ 109 (g)-(j).

33. 49 U.S.C. § 1716(c)(4).

34. 49 U.S.C. § 1610; see Primer for the Practice of Federal Environmental Law, 1 ELR 50001 (1971).

35. P.L. 91-604, 91st Cong., 2d Sess. (December 31, 1970).

36. S. 1014, H.R. 5966, 92d Cong., 1st Sess. (1971).

37. 42 U.S.C. §§ 1857, et seq.

38. P.L. 91-604, 91st Cong., 2d Sess. (December 31, 1970).

39. S. 1238, H.R. 4247, H.R. 4723, 92d Cong., 1st Sess. (1971).

40. S. 1478, H.R. 5276, H.R. 5390, 92d Cong., 1st Sess. (1971).

41. 33 U.S.C. § 1171(a).

42. 42 U.S.C. § 1857f.

43. 33 U.S.C. § 1163.

44. 42 U.S.C. § 1857(c)(2).

45. 42 U.S.C. § 1857f.

46. 42 U.S.C. § 1857h-2.

47. Id.

48. Supra note 36.

49. Executive G, 91st Cong., 2d Sess. (May 20, 1970).

50. S. 1238, H.R. 4247, H.R. 4723, 92d Cong., 1st Sess. (1971).

51. For further discussion of international developments, see Chapter 1.

52. P.L. 89-554, as amended, 5 U.S.C. § 552.

53. Soucie v. David, 2 ERC 1626, 1 ELR 20147 (D.C. Cir. 1971).

54. Executive Order No. 11514, 3 C.F.R. chap. II, at 104 (March 5, 1970).

55. CEQ, Guidelines § 10(b), reproduced in Appendix G.

56. 42 U.S.C. § 1857h-7.

57. Act of June 11, 1946, ch. 324, 60 Stat. 237, as amended and codified, 5 U.S.C. §§ 551, et seq.

58. 5 U.S.C. §§ 551(5), (7).

59. 33 U.S.C. § 1161(b)(2).

60. 7 U.S.C. §§ 135, et seq.

61. 5 U.S.C. §§ 706(2)(E).

62. 359 F.2d 994 (D.C. Cir. 1966) (opinion by Burger, J.).

63. 5 U.S.C. § 553.

64. 5 U.S.C. § 553(e).

65. 5 U.S.C. § 551(13).

66. 16 U.S.C. § 470f.

67. CEQ, Guidelines § 6(a)(vii), reproduced in Appendix G.

68. 5 U.S.C. § 702.

69. Data Processing Service v. Camp, 397 U.S. 150 (1970); Abbott Laboratories v. Gardner, 387 U.S. 136 (1967); Citizens Committee for the Hudson Valley v. Volpe, 425 F.2d 97 (2d Cir.), cert. denied, 400 U.S. 949 (1970); Sierra Club v. Hardin, supra note 7; Road Review League v. Boyd, 270 F. Supp. 650 (S.D.N.Y. 1967).

70. 397 U.S. 150 (1970).

71. Citizens Committee for the Hudson Valley v. Volpe, supra note 69; West Virginia Highlands Conservancy v. Island Creek Coal Co., supra note 7; Environmental Defense Fund, Inc. v. Hardin, 428 F.2d 1093 (D.C. Cir. 1970).

72. Citizens Committee for the Hudson Valley v. Volpe, supra note 69, at 105.

73. 433 F.2d 24 (9th Cir. 1970) (Hamley, J., dissented on the issue of standing).

74. Alameda Conservation Association v. California, 2 ERC 1175, 1 ELR 20097 (1971).

75. Sierra Club v. Hardin, supra note 7, at 111.

76. See, e.g., Scenic Hudson Preservation Conference v. FPC, supra note 27; Citizens to Preserve Overton Park v. Volpe, supra note 21; Sierra Club v. Hardin, supra note 7; Parker v. United States, supra note 25; Environmental Defense Fund, Inc. v. Ruckelshaus, 439 F.2d 584 (D.C. Cir. 1971).

77. 5 U.S.C. § 706(2)(A).

78. See also Environmental Defense Fund, Inc. v. Ruckelshaus, supra note 76.

79. 5 U.S.C. § 706(2)(E).

80. Supra note 21; see also Environmental Defense Fund, Inc. v. Hardin, supra note 71, at 1099-100.

81. 325 F. Supp. 728, 749 (E.D. Ark. 1971).

82. Environmental Defense Fund, Inc. v. Hardin, supra note 8.

83. Supra note 25.

84. See also Sierra Club v. Hardin, supra note 7, at 124.

85. McGee v. United States, 39 U.S.L.W. 4571 (U.S. 1971).

86. Supra note 7, at 115-17.

87. National Audubon Society v. Johnson, 1 ERC 1709 (S.D. Tex. 1970).

88. N.Y. Const., Art. XIV, §§ 4, 5.

89. Pa. Const. art. 1, § 27 (approved by electorate May 18, 1971, but not yet certified); Ill. Const., Art. XI, §§ 1, 2, effective January 1, 1972.

90. Rhode Island Const. § 17, adopted November 3, 1970.

91. Public Environmental Policy Act, Law No. 9, [1971] Puerto Rico Laws (Senate Law 258 and 703), June 18, 1970.

92. Montana Environmental Policy Act, Ch. 238, [1971] Montana Laws (House Bill 66), March 9, 1971.

93. Cal. Public Resources Code §§ 2100 et seq.

94. Ch. 109, [1971] Washington Laws (Senate Bill 545), Aug. 9, 1971.

95. Ch. 70, Title 7, [1971] Delaware Laws (House Bill 300), June 28, 1971.

96. E.g., Calif. Assembly Bill 1056, introduced Mar. 18, 1971 (bill to modify existing California statute); Mass. House Bill 5144, introduced Mar. 10, 1971.

97. Mich. Stat. Ann. §§ 14.528(201), et seq., reprinted in 1 ELR 43001.

98. 42 U.S.C. § 1857h-2.

99. House Bill No. 5037, [1971] Conn. Laws, May 9, 1971.

100. Senate Enrolled Act 345, [1971] Ind. Laws; Minnesota Environmental Rights Act, Ch. 952, [1971] Minn. Laws (S.F. No. 418), June 7, 1971.

101. American Law Institute, Restatement (Second) of the Law of Torts § 821B(1) (Tent. Draft No. 17, April 26, 1971).

102. American Law Institute, supra note 101, § 821B comment e.

103. Note, Water Quality Standards in Private Nuisance Actions, 79 Yale L.J. 102 (1969).

104. E.g., Miami v. Coral Gables, 1 ERC 1184 (Fla. Dist. Ct. App. 1970); American Law Institute, supra note 101, § 821C.

105. American Law Institute, supra note 101, § 821C comment j.

106. U.S. Const., Art. III, § 2; Eleventh Amendment; see also 28 U.S.C. § 1251(b).

107. 39 U.S.L.W. 4323, 2 ERC 1331, 1 ELR 20124; see also Comment, 1 ELR 10038 (U.S. 1971).

108. Illinois v. Milwaukee, 49 Orig.; Vermont v. New York, 50 Orig.; Washington v. General Motors, 45 Orig.; 39 U.S.L.W. 3486 (U.S. 1971); see also Comment, 1 ELR 10018.

109. Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).

110. E.g., MacGibbon v. Duxbury, 1 ERC 1122 (Mass. Sup. Jud. Ct. 1970); Bartlett v. Zoning Commission, 2 ERC 1684, 1 ELR 20177 (Conn. Sup. Ct. 1971).

111. Candlestick Properties, Inc. v. San Francisco Bay Conservation and Development Commission, 2 ERC 1075 (Cal. Dist. Ct. App. 1970).

112. Associated Home Builders v. Walnut Creek, 484 P.2d 606, 94 Cal. Rptr. 630, 2 ERC 1490, 1 ELR 20223 (1971).

113. 15 U.S.C. §§ 1021-25.

114. Welford v. Ruckelshaus, 2 ERC 1123, 1125, 1 ELR 20065, 20067 (1971).