96th Congress, 1st Session: Environmental Issues in Limbo

From an environmental perspective, the midterm record of the 96th Congress was notable less for its achievements than as convincing evidence that the climate of concern and commitment to protection that led to a surge in environmental legislation in the early part of the 1970s has drastically changed. There is a certain irony in this shift because it comes at a time when continuing and newly recognized threats to environmental integrity beset the country as never before. Yet as the new decade begins, there is a greater understanding that the problems are more complex than was once thought and that the answers are correspondingly less obvious. In all quarters, there is a heightened sensitivity to the economic costs of environmental protection, and it is often accompanied by a somewhat jaundiced look at the tangible and intangible benefits that such costs produce. Despite the solid evidence of continuing public support for environmental protection,¹ political opposition to environmental laws has broadened and become more powerful if the most recent session of Congress serves as a guide. In 1979, there was little final legislative action on environmental issues, and even rear-guard efforts to preserve earlier gains had difficulty competing with other major national concerns regarding the economy and foreign affairs.

Energy was the dominant issue in 1979, as environmental considerations were de-emphasized to facilitate a number of schemes to increase the nation's energy supplies. While 1980 may see a retreat from the President's proposed massive federal subsidization of synthetic fuel production, an action that could have major environmental consequences, a plan to overcome the delays in licensing energy facilities by waiving the deliberate review procedures set forth in environmental statutes is expected to pass. Protection of the vast undeveloped Alaskan lands was the major non-event as Congress failed to follow up on President Carter's administrative initiatives at the end of 1978.² Congress did, however, make progress in grappling with the issues of hazardous wastes and spills of oil and toxic substances, but their final resolution in a Congress sensitive to the upcoming elections is difficult to forecast.

Energy

Regardless of what legislation is ultimately passed, the 1979 energy crisis signals a greatly expanded federal role in the energy production field, not only through tax credits, loans, and incentives but also through purchase guarantees, direct investment in new energy sources, and hastened construction of energy facilities. In mid-July, President Carter announced his proposed solution to the energy crisis.³ In an effort to substitute the nation's massive supplies of coal for foreign oil, the President proposed creation of an Energy Security Corporation with a mandate to invest up to $88 billion to produce 2.5 million barrels per day of oil substitutes, primarily synthetic fuel derived from coal, by 1990.

Public and congressional skepticism greeted this proposal for rapid development of essentially unproved technology. In the first place, serious environmental problems were quickly identified, including disposal of solid waste containing carcinogenic contaminants, heavy use of scarce western water supplies, increased air pollution, and the destruction of vast amounts of undeveloped land to obtain the necessary coal supplies. Second and more persuasive to Congress was serious doubt about the economic feasibility of federal immersion in such a large-scale program without substantial private investment.

Congress did, however, take steps towards development of synthetic fuels, albeit less aggressively than the President's plan. The House proposed to give the President authority to commit the Defense Department to purchase up to $3 billion worth of synthetic fuels in order to provide a stimulus to development of the industry, as wellas provide loan guarantees to producers.⁴ The objective is establishment of an industry capable of producing 500,000 barrels of oil equivalent per day by 1985 and two million barrels per day by 1990.

Like the Administration's bill, the Senate measure⁵ would establish a government-owned Synthetic Fuels Corporation to guide the program, but the Senate's more cautious bill would set a target of only 1.5 million barrels per day by 1995 in a carefully monitored two-phase program. The first step envisions a five-year plan in which [10 ELR 10010] the corporation would make up to $20 billion available through purchase commitments, joint ventures, loans, and loan guarantees⁶ to assist in demonstrating and developing a diversity of technologies. In phase one, the corporation could build as many as three facilities on its own (these would be government-owned and contractor-operated) if no private developers proved willing to do so. The second phase, aimed at achieving the production goal through infusion of an additional $68 billion, would go into effect only after further congressional approval. When Congress recessed in December, the bill was still in conference, but indications are that a variation of the Senate proposal will likely be adopted. In the short run, however, since it will be some time before the corporation can begin operating, preliminary steps will probably emphasize purchase commitments.

In contrast to the synthetic fuels program, one proposal that has lost little momentum is the concept of "fast-track licensing," or expedited completion of government approvals for certain energy production facilities. If enacted, this legislation will shorten and sometimes bypass existing licensing procedures as well as statutory requirements ensuring protection of the environment during development and construction. President Carter proposed an Energy Mobilization Board that would designate as "critical" certain non-nuclear energy facilities deemed necessary to the achievement of oil import reduction goals. The board would modify or eliminate procedural barriers to development and construction by setting binding schedules for federal, state, and local permit decisions. Failure to meet the schedule would allow the board itself to make the particular decision on the basis of the relevant substantive law. The board could also waive compliance with procedural requirements altogether.

Fast-track licensing has been well received on Capitol Hill as a means to overcome what have become serious obstacles to obtaining necessary government approvals for proposed energy facilities. Industry and energy companies, however, favor going further by allowing the board to waive substantive statutory requirements, such as Clean Air Act standards. Environmental groups, on the other hand, while not organically opposed to the fast-track concept, fear the loss of public health safeguards if substantive requirements can be waived. They argue that the procedures requiring careful consideration of energy projects often result in environmentally preferable design modifications. In addition, state and local governments weighed in against preemption of their decision-making authority, particularly in matters of land use, because of their greater sensitivity to the local consequences of such decisions.

Before Congress recessed, both houses had passed versions of the Priority Energy Project Act of 1979,⁷ but a number of important disagreements remain to be ironed out in conference. Both bills conceive of the board as a collegial body with a strong chairman and would empower it to establish decision schedules for federal, state, and local approvals for each designated project, extend such deadlines, and make its own rulings in lieu of government agencies under certain circumstances. The question of waivers of substantive federal laws, however, seems to be the major conflict between the houses. The Senate version prohibits waiver of preexisting substantive legal requirements, but the House bill would allow all substantive requirements of federal environmental laws to be waived upon a Presidential recommendation and congressional approval. An amendment adopted on the House floor would allow waiver of state and local laws only if they were enacted after the project timetable was established. Indications are that the authority to waive substantive federal laws may not survive the conference, which is the hope of the Carter Administration, but the price of this deletion may be an expansion of the "grandfather" clause to allow waiver of any law or requirement enacted or coming into effect after construction begins on a project.

Although nuclear facilities are not covered by the fast-track licensing proposals, Congress, particularly in the wake of the Three Mile Island incident, is in the midst of a review of the merits of nuclear power. Doubtless recognizing that with the uncertainty in Middle East oil supplies the nation cannot afford to reject lightly any possible energy source, both houses passed the Nuclear Regulatory Commission (NRC) authorization bill⁸ without a controversial proposal to place a six-month moratorium on new reactor construction. The bill does call for increased penalties for violators of safety regulations, but a disagreement remains over whether there should be deadlines for state preparation of emergency evacuation plans for areas around nuclear plants. Notwithstanding these actions, a number of congressional probes into the role of nuclear energy in the nation's overall energy mix are ongoing, and the NRC is responding by upgrading its safeguards.

The alarming accumulation of spent nuclear fuel at power plants, however, has created a sense of urgency that may well result in legislation in 1980. Shortly before recess, the Senate Energy Committee reported a nuclear waste storage bill,⁹ and President Carter is expected to unveil an alternative program shortly. One question will be the extent to which states are involved in the process, particularly whether they will have veto power over siting decisions.

Encouraging energy conservation is the aim of the Senate omnibus energy bill's¹⁰ Energy Conservation Bank to be located in the Department of Housing and Urban Development. The bank will make available several billion dollars in low-interest long-term loans for installation of conservation improvements in homes, an approach similar to the bill reported by the House Commerce Committee shortly before Christmas.¹¹ Outright grants to renters and owners who make improvements would also be available in the Senate version, and bills from both chambers foresee an expanded role for utilities in assisting their customers through energy audits and financing conservation improvements. Creation of a [10 ELR 10011] federal solar bank to promote the use of solar energy in commercial and residential structures is also included in both the House and Senate energy bills. The second major device for encouraging conservation and the use of renewable energy resources is tax credits for residential and business improvements. These are contained in the Senate version of the windfall profits tax measure¹² now in conference, and no House opposition is expected.

Finally, after an initial defeat in the House, Congress enacted, and the President signed, a bill dealing with gasoline rationing.¹³ The law requires the President to draft, subject to congressional approval, a standby rationing plan and to develop national and state conservation plans with monthly targets.

Hazardous Substances

Reauthorization of the Federal Insecticide, Fungicide and Rodenticide Act¹⁴ failed to make it through Congress, but passage may be unnecessary in the near term because funds for the Environmental Protection Agency (EPA) to continue its pesticide control program through September 1980 have already been appropriated in another bill. The Senate had passed a routine one-year authorization¹⁵ late in the spring but the bill reported by the House Agriculture Committee¹⁶ contained (1) a provision approving the use of the EPA-banned pesticide Mirex to kill fire ants in the South, (2) a sunset provision for the law to expire in 1985, and (3) a provision allowing either house of Congress to veto EPA's pesticide regulations. The Mirex provision was deleted prior to House passage, and the conference committee adjourned without resolving the legislative veto issue, which the Carter Administration strongly opposes.

One of the highest environmental priorities of both Congress and the Carter Administration is enactment of legislation to clean up oil and hazardous substances spills and abandoned dumps of hazarous wastes. The "super-fund" bills introduced early in the year were generally limited to spills, but as the magnitude of the hazardous waste sites problem became more apparent,¹⁷ the Administration took the position that the fund should cover both problems. Despite this shared concern, no final action was taken by Congress in 1979, although extensive hearings have been conducted.

The Administration proposal,¹⁸ which has not progressed beyond the hearings stage, anticipates establishment of a $325 million fund, created by a fee paid by oil refiners and suppliers of petrochemical feedstocks, to pay containment costs for dump sites, spill cleanups, and losses by commercial fishermen.¹⁹ Liability of those responsible for dumps and spills would be limited to $50 million except in cases of willful misconduct or gross negligence.

The oil spill bill that has made the most progress in the House²⁰ would create a $200 million fund from industry-paid fees for emergency cleanup, removal, and economic losses but not for recovery for personal injuries. Liability is imposed on spillers subject to a similar $50 million limitation. Another House bill would establish a cleanup fund for hazardous waste dumps,²¹ to be financed 75 percent through assessments on industry and 25 percent through the federal government. The bill imposes strict liability upon any person causing or contributing to the release or threatened release of hazardous waste into the environment for cleanup costs, economic losses, and for both personal injury and property damage. The leading Senate bill²² would cover both oil spills and contaminants from waste dumps and would provide for a cleanup fund to be financed by manufacturers, importers, and generators of hazardous substances. Liability would be imposed for discharges which could reasonably have been anticipated. The fund would pay damages for third-party economic losses and medical costs, but the discharger would remain liable for personal injury claims. Significantly, the federal government could also recover for damages to natural resources, suing as trustee for the public.

Supporters of the superfund and compensation bills emphasize the importance of having a single set of federal liability laws and of imposing financial responsibility for damages on those who profit from the generation and transport of oil and hazardous substances. Certain aspects of the liability and compensation schemes have attracted vigorous industry opposition and remain unresolved.²³ Further hearings will focus on whether victims of all types of spills and discharges should be treated similarly. If comprehensive legislation is finally enacted in 1980, and election-year support for some form of action is growing, it will be a major step in consolidating the present patchwork of state and federal compensation schemes and should close the most obvious remaining gap in the nation's environmental laws.

Closely related to Congress' attempts at dealing with hazardous waste dumps in 1979 was legislation to amend and reauthorize the Resource Conservation and Recovery Act²⁴ (RCRA), of which a key title deals with the regulation of hazardous wastes.²⁵ The Senate approved a three-year [10 ELR 10012] extension²⁶ in June, but the House's one-year authorization²⁷ was still poised for floor debate at the Christmas recess. Besides the difference in time periods, one of the central issues concerns exemptions from the regulatory authority of the Environmental Protection Agency. Afloat are several proposals to exempt oil and gas drilling muds and brines,²⁸ solid or dissolved materials in waste waters discharged from industrial or municipal waste water treatment facilities, and wastes generated by the combustion of coal and other fossil fuels. Another proposed amendment would ease the regulatory standards for hazardous waste facilities in operation when the regulations are finally issued.²⁹

In response to the Love Canal disaster and the belated discoveries of other hazardous waste dumps, both bills seek to strengthen RCRA's enforcement provisions to cover such facilities. In particular, and in response to urging by the Justice Department, EPA's authority to take emergency action where the handling of any solid or hazardous waste may present an imminent or substantial threat to public health would be expanded to include, among other things, additional inspection and penalty provisions. Furthermore, states may establish more stringent standards under the Senate bill, and the House version directs states to inventory storage and disposal sites.

Finally, although EPA was given funds in its fiscal year 1980 budget to continue its toxics program, reauthorization of the Toxic Substances Control Act³⁰ failed to pass before the end of the year. The Senate passed a simple three-year extension,³¹ and the House's one-year authorization³² has been reported and is ready for floor debate.

Land and Water Resources

As has been the case for the last two years, the center-piece of the President's environmental program in 1980 will again be enactment of a strong Alaskan lands bill. For the second year in a row, the House passed a bill,³³ hailed by President Carter and environmentalists, that would set aside 125 million acres as national parks, wildlife refuges, forests, and wild and scenic rivers, including 67 million acres designated as wilderness. The story in the Senate is also a repeat from 1978: the bill reported by the Energy Committee, setting aside 102 million acres with only 38 million acres as wilderness, is strongly backed by the Alaskan delegation and industry developers who argue for multiple use to the maximum degree. One area of intense dispute is the Arctic National Wildlife Range, east of the mammoth oil and gas reserves at Prudhoe Bay on Alaska's North Slope. The Range may likewise contain substantial oil and gas reserves, but it is also one of the world's outstanding wildlife areas and the breeding ground for a major caribou herd. The House bill designates the entire area as wilderness, but the Senate bill would allow exploration to determine the extent of the oil and gas reserves.

Although the Senate version was reported out of committee in October, it never reached the floor because of fears by the state's two senators that a more protective bill would be substituted during debate. Best projections are that, despite Carter Administration pressure, the Senate will not act on the bill until spring.³⁴

Coal mining interests have long argued that environmental constraints, particularly the 1977 Surface Mining Control and Reclamation Act,³⁵ have unduly restricted their ability to develop the alternative sources necessary to meet the nation's energy crisis. When the Interior Department's Office of Surface Mining (OSM) issued very thorough and tough strip mining regulations, it completely alienated the industry, leading to a host of lawsuits challenging its authority and the substance of its regulations, as well as considerable criticism from coal-state politicians.³⁶ In September, the Senate passed a bill³⁷ undercutting the federal government's earlier efforts to regulate strip mining by not only extending for a year the deadlines for submission of state reclamation plans and approval by the Interior Department,³⁸ but more importantly by deleting the requirement that state plans must comply with OSM's regulations; thus, state programs would have to comply with the "intent" of the Act, a legally slippery concept. The measure was shelved in the House, however, because Rep. Udall (D-Ariz.), whose Interior Committee is responsible for it, refused to consider the bill, arguing that disregarding the regulations would effectively gut the law and render irrelevant the strong federal oversight role before the process had [10 ELR 10013] been given an opportunity to work. A compromise may be reached in 1980 limited to extending the deadlines.³⁹

Last spring, President Carter presented Congress with his recommendation⁴⁰ from the Forest Service's second roadless area review and evaluation (RARE II) for allocation of the 62 million acres of national forests as either wilderness or open for commercial exploitation. Rather than dealing with the intricate proposal en mass, Congress decided to tackle the issue piecemeal by reviewing specific legislation for discrete geographic areas. Thirty bills have been introduced to carry out separate designations, but only three have passed either house.⁴¹ A controversy has developed, however, over whether lands not recommended for wilderness in RARE II or if recommended but not so designated by Congress should be "released" from further consideration for wilderness. Near the end of the session, a bill was introduced that would "release" such lands if they have not been designated wilderness by Congress by January 1, 1984.⁴²

Wetlands preservation received a substantial boost by a new law that not only tripled the funds available under the Water Bank Act of 1970⁴³ to pay landowners if they leave their wetlands in a natural state but also expanded the types of wetlands eligible for the program.⁴⁴ On the other hand, the President's proposals for reforming the little-enforced⁴⁵ provisions of the 1902 reclamation law⁴⁶ that set a limit of 160 acres per resident farmer for irrigation by water from federally funded projects were substantially watered down in the bill that passed the Senate.⁴⁷ Reform advocates have argued that the Senate's amendments which include raising the limitation to 1,280 acres per farm⁴⁸ represent a collapse of the effort to restore equity to reclamation policy.

In 1979, the Carter Administration took another beating over water resources projects policy reforms, but its proposals will doubtless surface again in 1980. The gist of the reforms would apply strict environmental and costbenfit tests to projects at the initial stage of consideration and require states to share some of the project costs. The omnibus water resources bill approved by the House Public Works Committee⁴⁹ not only fails to require the states to share project costs but directs the federal government to pick up costs traditionally borne by local governments. Even though the bill authorizes several projects for which no feasibility studies have been completed and waives cost-benefit requirements on other projects, it does terminate the authorization for the huge and controversial Dickey-Lincoln School hydroelectric project in Maine. The Senate bill⁵⁰ is still is subcommittee, but minus a proposed amendment that would have shifted project selection from Congress to the states and would have required the states to pay up to a quarter of the costs. The President has proposed giving the Water Resources Council power to conduct cost-benefit reviews of projects and to develop a national water resources policy. The prospects for this proposal are questionable, however, as Congress is clearly reluctant to lose control of the water project decision-making process.⁵¹

Wildlife and Other Issues

The endangered snail darter finally succumbed to the slings and arrows of the Tennessee congressional delegation as authorization to complete the Tellico Dam⁵² was included in the fiscal year 1980 energy and water appropriations bill that President Carter signed⁵³ in a move that caught many of his environmental allies by surprise.Sacrifice of the snail darter was the price he had to pay, however, to obtain a three-year authorization⁵⁴ for the Endangered Species Act.⁵⁵ The sole significant feature of [10 ELR 10014] the bill was the transfer the regulatory authority of the independent Endangered Species Scientific Authority⁵⁶ to the Secretary of the Interior.

Continued failure of the international Law of the Sea conference to produce a treaty finally led the Senate in mid-December to pass a measure⁵⁷ to establish a program to encourage and regulate deep seabed hard mineral exploration and recovery by American citizens pending completion of an international agreement. Although the bill disclaims United States jurisdiction over deep seabeds, it provides for a federal licensing scheme and specifies that in the event of entry into force of an international agreement, certain continuing seabed mining rights of United States citizens would be protected. A similar House bill⁵⁸ has been reported by several committees, but floor consideration is not expected until after the next round of Law of the Sea talks in the spring.

Another piece of legislation that nearly passed dealt with aircraft noise standards.⁵⁹ The Senate had urged pushing back the deadlines for compliance with Federal Aviation Authority noise reduction standards, particularly for small passenger aircraft, but strong opposition coupled with the threat of a Presidential veto effectively blocked House consideration of the conference compromise on the eve of adjournment.

Conclusion

In the 1970s, Congress passed a number of strong environmental statutes and created an elaborate federal administrative machine for implementing them. In the 1980s, although there is no immediate danger that the machinery will be dismantled, Congress will be looking to streamline if not prune the federal apparatus. Regulatory reform⁶⁰ clearly promises to have salutary effects, but a convincing case has been made by those who see it as a guise for a retreat from the federal government's commitment to protecting the environment. And on all fronts, industry interests are investing increasing resources to persuade Congress of the merits of their positions while the public is often lost in a welter of complexities on environmental issues.

In 1980, decisions on Capitol Hill will be influenced by the usual election year pressures on representatives and senators to parade attractive legislative trophies before their constituents. Progress toward solving the nation's energy problems is a major demand on the domestic front, and Congress will respond, undoubtedly assigning a lower priority to environmental issues. On the other hand, strong action on some environmental problems may pay electoral dividends. The dangers of hazardous waste dumps are coming home to haunt an increasing segment of the population, and Congress will be pressed to act. Alaska is a fragile jewel which few Americans are likely to experience firsthand unless steps are taken to provide it with permanent protection. The prospects for such action are not sanguine, however, as the legislative impasse of the last two years shows few signs of easing. While the environmental euphoria of a decade ago has waned, environmental problems have continued to proliferate in scope and complexity. Congress may thus be hard put to continue making progress in the struggle to protect environmental quality.

1. In a recent article, Robert Mitchell of Resources for the Future synthesized the results of a number of recent public opinion polls. He concluded that although pollution ranks behind inflation, energy, and foreign policy as a major concern of the public,

when people are asked specifically about environmental problems in the polls, they judge them to be serious, they express a willingness to increase government spending for their mitigation, and when trade-offs between environmental protection and lower prices, higher taxes, more energy, growth, or jobs are posed, pluralities almost always choose the pro-environmental position.

The environment is no longer a motherhood issue, if it ever was. But it appears to be one of our more enduring social concerns.

PUBLIC OPINION 16, 55 (Aug./Sept. 1979). Polls conducted by Louis Harris for the Soil Conservation Service last year and by Stephen Kellert of the Yale School of Forestry and Environmental Studies 18 months ago on wildlife issues support Mitchell's conclusions.

2. See Comment, Congressional Stall Prompts Administrative Actions to Protect the Alaska National Interest Lands, 8 ELR 10245 (1978).

3. See Comment, The President's Energy Proposals: Dramatic Initiatives Plagued by Environmental, Constitutional Difficulties, 9 ELR 10148 (1979).

4. H.R. 3930, 96th Cong., 1st Sess. (1979).

5. S. 932, 96th Cong., 1st Sess. (1979), titled the Energy Security Act, is the Senate's omnibus energy bill.Synthetic fuels are covered in Title I.

6. Up to 75 percent of the project costs.

7. S. 1308, 96th Cong., 1st Sess. (1979), passed the Senate on October 4 and passed the House on November 1 in lieu of H.R. 4985, 96th Cong., 1st Sess. (1979)

8. S. 562, 96th Cong., 1st Sess. (1979).

9. S. 685, 96th Cong., 1st Sess. (1979).

10. The portion of S. 932 dealing with conservation is Title IV.

11. H.R. 5726, 96th Cong., 1st Sess. (1979).

12. H.R. 3919, 96th Cong., 1st Sess. (1979)

13. Emergency Energy Conservation Act of 1979, Pub. L. No. 96-102, 93 Stat. 749 (Nov. 15, 1979).

14. 7 U.S.C. §§ 135-135k, ELR STAT. & REG. 42301.

15. S. 717, 96th Cong., 1st Sess. (1979).

16. H.R. 3546, 96th Cong., 1st Sess. (1979).

17. Rep. Eckhardt (D-Tex.) released a waste disposal site survey showing that, since 1950, 53 chemical companies operating 1,605 plants have dumped more than 700 million tons of waste at 3,383 sites across the nation. Comm. Print 96-IFC 33. A new hazardous waste section in the Land and Natural Resources Division of the Justice Department recently initiated a series of lawsuits against several chemical companies with egregious records in hazardous waste disposal.

18. S. 1341, H.R. 4566, 96th Cong., 1st Sess. (1979).

19. If emergency action were needed to clean up an accident, the state would be required to reimburse the fund for a portion of the costs.

20. H.R. 85, 96th Cong., 1st Sess. (1979).

21. H.R. 5790, 96th Cong., 1st Sess. (1979).

22. S. 1480, 96th Cong., 1st Sess. (1979).

23. The chemical industry opposes the idea of existing companies having to pay for the past misdeeds of bankrupt businesses not only in fees to finance the funds but also through any extension of liability for damages. In addition, it contends that it is unfair for an entire industry to be made to pay for the poor practices of individual companies. They also contest the fairness of making any company contributing to the release of wastes jointly and severally liable for all the damages.

24. 42 U.S.C. §§ 6901-6987, ELR STAT. & REG. 41901.

25. See Comment, The Hazardous Waste Crisis: EPA Struggles to Implement RCRA; Amendments Needed, 9 ELR 10060 (1979).

26. S. 1156, 96th Cong., 1st Sess. (1979).

27. H.R. 3994, 96th Cong., 1st Sess. (1979).

28. The industry has argued that these wastes should be exempt because they are not dangerous, unless EPA studies prove otherwise.

29. The statute currently allows only those facilities in existence on October 21, 1976, when the law was enacted, to be eligible for interim permits, the first stage in licensing hazardous waste facilities, which would allow them to continue operating while permanent permits were being processed. Section 3005(e)(1), 42 U.S.C. § 6925(e)(1). Because of EPA's delay in promulgating its hazardous waste regulations, which are already nearly two years overdue, this proposal would grant interim status to all facilities now in existence and any others established before the regulations are finally promulgated.

30. 15 U.S.C. §§ 2601-2629, ELR STAT. & REG. 41335.

31. S. 1147, 96th Cong., 1st Sess. (1979).

32. H.R. 2606, 96th Cong., 1st Sess. (1979).

33. H.R. 39, 96th Cong., 1st Sess. (1979).

34. After Congress failed to pass legislation in 1978, the Administration permanently withdrew 56 million acres from development and made temporary withdrawals of an additional 54 million acres. See Comment, Congressional Stall Prompts Administrative Actions to Protect the Alaska National Interest Lands, 8 ELR 10245 (1978). Interior Secretary Andrus has threatened to extend the time period of the temporary withdrawals if Congress fails to move quickly this year.

35. 30 U.S.C. §§ 1201-1328, ELR STAT. & REG. 42401.

36. See Comment, The 1977 Surface Mining Act Revisited: National Regulatory Program Surmounts Judicial and Legislative Challenges, 9 ELR 10199 (1979).

37. S. 1403, 96th Cong., 1st Sess. (1979).

38. Because of the delay in promulgating the final regulations, which resulted from an original delay in funding the program due to recalcitrance in Congress in providing a timely appropriation, both the Administration and environmental groups agree that extension of the deadline is necessary in order to give both the states and OSM sufficient time to develop and review the state plans.

39. In a concession, OSM has delayed the requirement that new and existing operations on federal lands must be in compliance with the Act until state regulatory programs are in effect. 44 Fed. Reg. 77440 (Dec. 31, 1979).

40. The President proposed that 15.4 million acres of national forests be designated as wilderness and 36 million acres, 60 percent of the national forests, should be opened to non-wilderness multiple-use management, including logging, oil and mineral exploration and development, and use by motorized recreational vehicles. The remaining 10.8 million acres were left for further study. EXEC. COMM. NO. 1504, HOUSE DOC. NO. 96-119, 96th Cong., 1st Sess. (1979).

41. S. 2009 (River of No Return Wilderness in Idaho) passed the Senate on November 20; S. 2031 (Oregon) passed the Senate on November 26; and H.R. 5487 (Colorado and South Dakota) passed the House on December 10.

42. H.R. 6070, 96th Cong., 1st Sess. (1979).

43. 16 U.S.C. §§ 1301-1311.

44. Pub. L. No. 96-182, 93 Stat. 1317 (Jan. 2, 1980). The law boosts the funds available to $30 million annually, and the expansion of eligible ewtlands includes 20.6 million acres of wooded and shrub swamplands primarily in California, the Southeast, and the lower Mississippi River valley.

45. One enforcement case, however, is up for Supreme Court review. United States v. Imperial Irrigation District, 595 F.2d 524 (9th Cir. 1979), 559 F.2d 509 (9th Cir. 1977), petition for cert. filed sub nom., Bryant v. Yellen, California v. Yellen, Imperial Irrigation District v. Yellen, 48 U.S.L.W. 3174 (U.S. Sept. 14, 1979) (Nos. 79-421, -425, -435).

46. 43 U.S.C. § 431.

47. S. 14, 96th Cong., 1st Sess. (1979).

48. The Senate bill would also exempt Army Corps of Engineers water resource projects from the acreage limitations and would exempt large farmers in California's lush Imperial Valley from both the acreage limitation and the residency requirement.

49. H.R. 4788, 96th Cong., 1st Sess. (1979).

50. S. 703, 96th Cong., 1st Sess. (1979).

51. The Senate passed its bill in September but specifically prohibited any water project review function, although it did authorize financial assistance to the states for their water management programs. S. 480, 96th Cong., 1st Sess. (1979). The House version reported by the Public Works Committee added assistance for water conservation programs, but, despite sentiment in several committees for a beefed-up council, the bill does not include this reform. H.R. 2610, 96th Cong., 1st Sess. (1979).

52. Unless Fish and Wildlife Service efforts to transplant the snail darter to other rivers are successful, completion of the Tellico Dam will wipe out the fish species. Reprieves from this final "execution" had included a major Supreme Court decision, Tennessee Valley Authority v. Hill, 437 U.S. 153, 8 ELR 20513 (1978), which upheld the absolute prohibition in § 7 of the Endangered Species Act as originally enacted, and a rejection of the dam on economic grounds by the Cabinet-level Endangered Species Committee, a group established by the amendment of § 7 in 1978 and directed to make a final decision in the event of an "irreconcilable conflict" between carrying out a federal project and protecting an endangered species.

53. Pub. L. No. 96-69, 93 Stat. 437 (Sept. 25, 1979).

54. Pub. L. No. 96-159, 93 Stat. 1225 (Dec. 28, 1979).

55. 16 U.S.C. §§ 1531-1543, ELR STAT. & REG. 41825.

56. The Endangered Species Scientific Authority was the American independent regulatory body established pursuant to the Convention on International Trade in Endangered Species of Wild Fauna and Flora, T.I.A.S. No. 8249, ELR STAT. & REG. 40336.

57. S. 493, 96th Cong., 1st Sess. (1979).

58. H.R. 2759, 96th Cong., 1st Sess. (1979).

59. H.R. 2440, 96th Cong., 1st Sess. (1979).

60. See Comment, Reconditioning the Administrative Process: Congress Weighs "Regulatory Reform" Legislation, 9 ELR 10100 (1979).