Environmental Law in the Supreme Court: 1979 Term Was Active, Major Issues Are on Docket for 1980 Term

In its October Term, 1979, the United States Supreme Court was unusually active in the area of environmental law. For the most part, however, its record over the last year can be viewed as a series of housekeeping measures which resolved important but largely noncontroversial and narrow points of law. Indeed, in two of its eagerly awaited opinions, the Occupational Safety and Health Administration benzene standard and the California open-space zoning cases, it appeared to postpone rather than lay to rest the issues. In a number of instances, the Court upheld the Environmental Protection Agency's efforts. It also agreed to hear several important cases, involving the constitutionality of the federal strip-mining law and the development of the federal common law of nuisance, that may bring forth major decisions in the coming year.

Land Use

One of the most potentially explosive decisions of the Term fizzled when the Court ultimately determined that it had no occasion to reach the question of a citizen's ability to obtain a money judgment from a municipality by challenging the validity of a zoning ordinance through a suit in inverse condemnation. In Agins v. City of Tiburon,¹ the Court affirmed the California Supreme Court and confirmed that preservation of open space was a legitimate police power objective by holding that a local ordinance with such purposes did not on its face constitute a taking. The plaintiffs, however, who had demanded $2 million in damages because they allegedly were unable to develop their unimproved land, had failed to apply for a building permit; the Court was thus unable to rule on the constitutionality of the ordinance as applied. The week after Agins was handed down, the Court agreed to review another case implicating the propriety of monetary awards for frustrated development expectations, and its decision this coming Term in San Diego Gas & Electric Co. v. City of San Diego² may well be crucial to the future of municipal efforts to regulate suburban overcrowding.

Restrictions on the public right of access to navigable waters were upheld in two Supreme Court decisions in the 1979 Term. Although the limits of the federal government's constitutional powers over the nation's navigable waters have always defied precise definition, the Court's latest pronouncements promise to inject new uncertainty in takings law. In Kaiser Aetna v. United States,³ the Court held that the federal government's attempt to require that the public be given access to a private marina, which was constructed in a preexisting fish pond, amounted to a taking of property without compensation in violation of the Fifth Amendment. In Vaughn v. Vermillion Corp.,⁴ the Court held that the public has no general right of access to canals constructed on private property. Taken together, these decisions appear to cast a cloud over the doctrine of the federal navigation servitude. Furthermore, Kaiser Aetna highlights the Court's growing sensitivity for private property rights when they are in conflict with regulatory initiatives.

Finally, of concern to large-scale agribusiness in California, the Court in Bryant v. Yellen⁵ held that § 46 of the Omnibus Adjustment Act of 1926, which precludes delivery of water from federal impoundment projects to farm tracts exceeding 160 acres under single ownership, is inapplicable to certain areas in the Imperial Valley, which became a lush agricultural area due to reclamation and irrigation projects.

Environmental Health

In a major decision of the 1979 Term, the Supreme Court invalidated an Occupational Safety and Health Administration workplace regulation reducing the permissable airborne concentration of the carcinogen benzene. The Court held in Industrial Union Department, AFL-CIO v. American Petroleum Institute⁶ that the federal agency's reduction of the permissable airborne concentration to one part per million (ppm) was invalid because OSHA failed to show that a significant health risk existed at the previous standard of 10 ppm; thus, the agency failed to show that lowering the standard was reasonably necessary to maintain safe working conditions. The strength of the Court's decision was diluted, however, because of a splintering in opinions issued; the plurality opinion was supported in its entirety by only three Justices, while four Justices united in a strong dissent. As a result, the federal government's ability to regulate environmental toxicants in the face of scientific uncertainty remains somewhat unclear and further judicial [10 ELR 10174] wrangling with this issue seems inevitable.⁷ On the same day the benzene case was decided, the Court agreed to review a Third Circuit decision⁸ upholding OSHA's coke oven emissions standard, but the industry petitioners have asked the Court to remove the case from its docket.

National Environmental Policy Act

Now more than a decade old, the National Environmental Policy Act (NEPA) continues to generate litigation concerning agency compliance with its procedural requirement of preparing environmental impact statements. Commentators have argued, however, that any substantive statutory mandate regarding environmental protection has been overlooked by the courts. In its brief per curiam opinion in Strycker's Bay Neighborhood Council, Inc. v. Karlen,⁹ the Court took a first hesitant step at interpreting NEPA's substantive mandate. The Court rebuked the Second Circuit for going too far in holding that NEPA required environmental factors to be given paramount weight in agency decision making. According to the Court, agencies need only "consider" such factors.

On the procedural side of NEPA, the Court declined to review decisions in which courts had upheld agency determinations that environmental impact statements were not necessary for the leasing of a federal parking lot to a private management firm,¹⁰ the termination of passenger service on three rail routes,¹¹ and the establishment of a Job Corps center in a residential neighborhood.¹² In the 1980 Term, cases have been docketed regarding agency decisions not to require environmental impact statements for a landfill project to dispose of sewage sludge,¹³ to issue a mineral patent under the Mining Law of 1872,¹⁴ to provide federal funds for a sewage treatment plant,¹⁵ and to issue a permit for construction of an outfall pipe from a manufacturing facility.¹⁶

Air Pollution

The Court's major Clean Air Act decision was Harrison v. PPG Industries, Inc.,¹⁷ in which it settled conclusively the proper forum for judicial review of certain types of Environmental Protection Agency actions. The Court ruled that the phrase "any other final action" as used in § 307(b)(1) of the Act operates to place jurisdiction to review even informal adjudicatory determinations exclusively in the circuit courts of appeal. Although this decision could bring about a substantial jurisdictional upheaval, increasing the caseload of the circuit courts and forcing EPA to compile more extensive administrative records for its informal actions, it may expedite judicial review of EPA decision making. On the other hand, the result may lead Congress to amend the Act if it concludes that it intended the district court to play a larger role than the Court's interpretation of the Act signifies.¹⁸

The Court denied review in two cases that upheld EPA's administrative authority under the Act. In one, the lower court had ruled that pre-enforcement compliance proceedings instituted by the Agency pursuant to the Clean Air Act could proceed without interference from the federal courts.¹⁹ In the other, the Agency had waived federal preemption of California regulations governing auto manufacturers' warranties of emission control devices.²⁰ The Court also denied review of another case involving EPA's rule making under the Clean Air Act, [10 ELR 10175] however, that leaves unresolved a major split of authority among the circuits. In United States Steel Corp. v. Environmental Protection Agency,²¹ the Seventh Circuit held that EPA complied with the Administrative Procedure Act (APA) in dispensing with prior notice and comment when designating "non-attainment" areas under the 1977 Clean Air Act amendments. Furthermore, reversal for such a procedural violation would in any event be precluded by the harmless-error provision of § 307(d)(9)(D) of the Clean Air Act. Three Justices dissented from the denial of certiorari, arguing that the Court should resolve the circuit conflict²² regarding application of the APA good-cause exemption and to review the Seventh Circuit's expansive reading of the harmless-error provision. Finally, a lower court decision has been put on the Court's docket affirming an EPA order for recall of vehicles for failure to comply with emission standards.²³

Water Pollution

The Court was relatively active on water pollution control issues in the 1979 Term, settling several important though not earth-shaking disputes, denying review in cases which upheld the Environmental Protection Agency's exercise of authority, and accepting for argument next Term a decision dealing with the emerging federal common law of nuisance. In United States v. Ward,²⁴ the Court reversed a maverick Tenth Circuit decision and held that the penalty for oil spills imposed under § 311(b)(6) of the Federal Water Pollution Control Act (FWPCA) is civil rather than criminal; therefore, the self-reporting requirements in § 311(b)(5) do not violate the Fifth Amendment guarantee against self-incrimination. Although most circuits had ruled the same way, the Supreme Court's adherence to this view rebuffed what could have been a significant threat to the smooth functioning of one element of the Act's enforcement mechanism.

EPA's public participation procedures for issuing a national pollutant discharge elimination system (NPDES) permit were upheld in Costle v. Pacific Legal Foundation.²⁵ The Court interpreted the FWPCA not to require the holding of a public hearing whenever a permit is proposed to be issued or modified but to require only that the public be invited to request a hearing; if no such requests are received, no hearing need be held. In Crown Simpson Pulp Co. v. Costle,²⁶ the Court handed down another decision that should streamline administration of NPDES permits. Reversing per curiam the Ninth Circuit, the Court held that the federal appeals courts are the proper forum in which to seek judicial review of EPA vetoes of state issuance of proposed NPDES permits.

The Supreme Court denied review in two other water pollution cases, one that had affirmed the imposition of criminal sanctions on a corporation and its officers for illegal discharges,²⁷ and another that upheld EPA's regulations setting effluent limitations for pollutant discharges by the pesticide industry.²⁸ Furthermore, the Court agreed to review a Fourth Circuit decision which remanded EPA's effluent limitations for crushed stone and construction sand and gravel processing facilities because of procedural and substantive deficiencies.²⁹

The federal common law of nuisance, unknown just a decade ago, is rapidly emerging as a judge-made body of law that offers adaptable and effective relief to victims of pollution. Building on a precedent-setting Supreme Court decision in 1972,³⁰ several circuit courts have redrawn the contours of the doctrine to permit suits by private plaintiffs to redress pollution of any "navigable" waters, regardless of whether the pollutants have crossed state boundaries.³¹ Although the Court previously denied review of an expansive and forward-looking decision in this area,³² it agreed to review the Seventh Circuit's opinion³³ following remand in the landmark 1972 decision. In [10 ELR 10176] addition, on the Court's docket are two other cases³⁴ that add important threads to the doctrine's web. In the eight years since it was first articulated, the federal common law of nuisance may well have evolved beyond the Court's original blueprint. If so, the Court may choose to embark on a major reappraisal, particularly given the Court's changed composition since 1972.

Public Lands

Public lands disputes again often involved issues of energy resources development, and in a few instances the Court left the environment with some protection against the pressures of exploitation. In northern Michigan, attempts to exploit suspected major oil and gas reserves underlying wildlife habitats and a national forest received another setback when the Court refused to review two state court decisions that relied on state law to prevent such development.³⁵ The Supreme Court also left standing a decision of the Ninth Circuit Court of Appeals which allowed the Interior Department to restrict unnecessary and unreasonably destructive mining practices in the national forests.³⁶ In Andrus v. Shell Oil Co.,³⁷ however, at issue was who would reap the benefit from the large oil shale deposits on federal lands that have long been privately controlled but became profitable to mine only recently. The Court upheld the validity of oil shale claims located prior to the passage of the Mineral Leasing Act of 1920 and turned aside the Interior Department's attempts since 1964 to impose a "present profitability" requirement on such claims.³⁸ The Court summarily affirmed a Ninth Circuit decision which upheld the preemptive effect of federal leases: a county zoning ordinance could not interfere with the rights of a holder of federal oil drilling permits in a national forest, and the holder was not required to obtain a local permit.³⁹

The Court declined to review two cases involving outer continental shelf (OCS) resources. In one, the Fifth Circuit held that the Secretary of the Interior may reject the high bid for an oil or gas development lease even though the officer authorized to evaluate the bid recommended that it be accepted.⁴⁰ In the other, tract lessees were denied recovery for injuries incurred as a result of restrictions placed on OCS oil and gas development following the Santa Barbara oil spill in 1979.⁴¹ Next Term, the Court will hear a dispute over the distribution of revenues from oil and gas leases on federal wildlife refuges in Alaska.⁴²

In another public lands case decided last Term, the State of Idaho's attempts to obtain public domain lands for development were frustrated when the Court held, in Andrus v. Idaho,⁴³ that the Carey Act of 1894, which authorizes the Interior Secretary to grant to a state a maximum specified acreage if the state demonstrates its ability to irrigate and reclaim it, does not require the Secretary to hold specified acreages in reserve for state grants nor obliges the Secretary to enter into such contracts. Finally, the Court declined to review a Ninth Circuit opinion which held that the National Park Service's decision to freeze recreational use of the Colorado River at 1972 levels and to allocate only eight percent of such use to noncommercial users was not arbitrary and did not violate any substantive requirments regarding the management of the national parks.⁴⁴

Wildlife

Decided early in the 1979 Term, Andrus v. Allard⁴⁵ affirmed statutory protections for the nation's populations of bald and golden eagles, whose feathers are used in Indian artifacts, by upholding Interior Department regulations that prohibit sales of parts of protected birds regardless of when the birds were originally taken. The Court ruled that the regulatory prohibition does not violate the Fifth Amendment rights of sellers of Indian artifacts that contain bird parts in existence prior to enactment of the statutory protections because, although they reduce the expectation of future profit, the rules do not impose any physical restraint on the artifacts, and plaintiffs retain the right to possess, transport, donate, or exhibit them.

Future Prospects

In addition to the issues discussed above, the Court is faced in its 1980 Term with important questions concerning the constitutionality of the Surface Mining Control and Reclamation Act, a major environmental statute enacted in 1977 after years of controversy. Coal miners have argued that the Act substantially increases the cost and difficulty of obtaining the nation's most plentiful [10 ELR 10177] source of energy, a particularly grievous hardship given the country's expensive dependance on increasingly uncertain supplies of foreign oil. The Supreme Court has already stayed two district court decisions⁴⁶ that enjoined enforcement of some of the Act's provisions on Fifth and Tenth Amendment grounds. A third district court decision that generally upheld the constitutionality of the Act has been docketed.⁴⁷

In addition, the Court has agreed to review a decision⁴⁸ that found that a Minnesota statute prohibiting the sale of milk in plastic containers violated the Equal Protection Clause of the Constitution; the state court found that plastic containers are environmentally preferable to paper containers, and there is thus no rational basis for the discriminatory prohibition. Also on the Court's docket are cases which (1) upheld the constitutionality of the Pennsylvania Clean Streams Law, which authorizes state officials to order landowners to abate pollution of waters on their property;⁴⁹ (2) rejected, on the basis of laches, a challenge to congressional authorization of the Tennesse-Tombigbee Waterway;⁵⁰ and (3) upheld the constitutionality of a municipal ordinance banning offsite billboards and requiring removal of existing billboards after an amortization period.⁵¹

1. 48 U.S.L.W. 4700, 10 ELR 20361 (U.S. June 10, 1980). See generally Comment, Supreme Court Validates Open Space Preservation, Postpones Question of Inverse Condemnation, 10 ELR 10125 (June-July 1980).

2. Civ. 16277 (Cal. Ct. App. June 26, 1979), review denied (Cal. Aug. 22, 1979), cert. granted, 48 U.S.L.W. 3820 (June 16, 1980) (No. 79-678). A related issue is involved in a Washington case in which the state supreme court held that zoning authorities have implicit power under the State Environmental Policy Act to deny plant approval on environmental grounds and that such denial is not an unconstitutional taking of private property. Lake Lawrence, Inc. v. Thurston Cty., 601 P.2d 494 (Wash. 1979), petition for cert. filed, 48 U.S.L.W. 3787 (May 28, 1980) (No. 79-1880).

3. 444 U.S. 164, 10 ELR 20042 (Dec. 4, 1979). See generally Comment, Kaiser Aetna: Supreme Court Scuttles Federal Dominion Over Navigable Waters, Unsettles Takings Law, 10 ELR 10028 (Feb. 1980).

4. 444 U.S. 206, 10 ELR 20050 (Dec. 4, 1979). The Court further noted that the state court had erred in enjoining public use of the canals because it was not clear from the record whether the owner had destroyed or diverted naturally navigable waterways in the process of constructing the canals.

5. 48 U.S.L.W. 4726, 10 ELR 20482 (June 16, 1980).

6. 48 U.S.L.W. 5022, 10 ELR 20489 (July 2, 1980).

7. The District of Columbia Circuit Court of Appeals recently issued a massive opinion upholding OSHA's workplace standard for lead that goes to great lengths to show how that agency avoided the mistakes seized upon by the Supreme Court in the benzene decision. United Steelworkers of American, AFL-CIO v. Marshall, __ F.2d __, 10 ELR 20784 (D.C. Cir. Aug. 15, 1980). In addition, on the first day of its 1980 Term the Supreme Court agreed to hear the D.C. Circuit's decision upholding the OSHA standard limiting worker exposure to cotton dust in the textile industry. Petitioners are concerned primarily with the economic feasibility of the standard and whether the Occupational Safety and Health Act requires the agency to show that the standard is reasonably necessary and that its benefits bear a reasonable relationship to its costs. AFLCIO v. Marshall, 617 F.2d 636 (D.C. Cir. 1979), cert. granted sub nom., American Textile Mfrs. Institute, Inc. v. Marshall, 49 U.S.L.W. 3245 (Oct. 6, 1980) (No. 79-1429), National Cotton Council v. Marshall, 49 U.S.L.W. 3245 (Oct. 6, 1980) (No. 79-1583). A third appeal of the same D.C. Circuit decision raised questions similar to the benzene case, see note 6 supra, and the Court directed the D.C. Circuit to reconsider those parts of its decision in light of the benzene decision. AFL-CIO v. Marshall, 617 F.2d 636 (D.C. Cir. 1979), cert. granted, judgment vacated, remanded for further consideration sub nom. Cotton Warehouse Ass'n v. Marshall, 49 U.S.L.W. 3244 (Oct. 5, 1980) (No. 79-1789).

8. American Iron & Steel Inst. v. OSHA, 577 F.2d 825 (3d Cir. 1978), cert. granted, 48 U.S.L.W. 3855 (July 2, 1980) (No. 79-919).

9. 444 U.S. 223, 10 ELR 20079 (Jan. 7, 1980). See generally Comment, Charting the Boundaries of NEPA's Substantive Mandate: Strycker's Bay Neighborhood Council, Inc. v. Karlen, 10 ELR 10039 (Feb. 1980).

10. Committee for Auto Responsibility v. Freeman, 603 F.2d 992, 9 ELR 20575 (D.C. Cir. 1979), cert. denied, 48 U.S.L.W. 3568 (Mar. 3, 1980).

11. Kansas ex rel. Stephan v. Adams, 608 F.2d 861, 9 ELR 20798 (10th Cir. 1979), cert. denied, 48 U.S.L.W. 3662 (Apr. 14, 1980).

12. Como-Falcon Community Coalition, Inc. v. Dep't of Labor, 609 F.2d 342, 9 ELR 20755 (8th Cir. 1979), cert. denied, 48 U.S.L.W. 3733 (May 12, 1980).

13. Kilroy v. Quarles, 614 F.2d 225, 10 ELR 20271 (9th Cir. 1980), petition for cert. filed sub nom. Kilroy v. Costle, 48 U.S.L.W. 3751 (May 3, 1980) (No. 79-1746).

14. South Dakota v. Andrus, 614 F.2d 1190, 10 ELR 20181 (8th Cir. 1980), petition for cert. filed, 48 U.S.L.W. 3700 (Apr. 17, 1980 (No. 79-1635).

15. Bosco v. Beck, 475 F. Supp. 1029 (D.N.J. 1979), aff'd mem. 614 F.2d 769 (3d Cir. 1980), petition for cert. filed, 48 U.S.L.W. 3715 (Apr. 15, 1980) (No. 79-1643).

16. Save the Bay, Inc. v. Corps of Engineers, 610 F.2d 322, 10 ELR 20185 (5th Cir. 1980), petition for cert. filed, 49 U.S.L.W. 3053 (Aug. 5, 1980) (No. 80-171).

17. 48 U.S.L.W. 4585, 10 ELR 20353 (May 27, 1980).

18. See generally Comment, High Court Rules All Final EPA Actions Under Clean Air Act Reviewable Exclusively in the Courts of Appeals, 10 ELR 10121 (June-July 1980).

19. Union Elec. Co. v. EPA, 593 F.2d 299, 9 ELR 20154 (8th Cir. 1979), cert. denied, 48 U.S.L.W. 3219 (Oct. 1, 1979).

20. Motor & Equipment Mfrs. Ass'n v. EPA, __ F.2d __, 9 ELR 20581 (D.C. Cir. Aug. 3, 1979), cert. denied, 48 U.S.L.W. 3750 (May 19, 1980).

21. 605 F.2d 283, 9 ELR 20560 (7th Cir. 1979), cert. denied, 48 U.S.L.W. 3450, 10 ELR 20081 (Jan. 14, 1980).

22. Two other circuits have reached results contrary to that of the Seventh. Sharon Steel Corp. v. EPA, 597 F.2d 377, 9 ELR 20316 (3d Cir. 1979); United States Steel Corp. v. EPA, 595 F.2d 207, 9 ELR 20311 (5th Cir. 1979). See generally Comment, Circuit Split Over APA Notice and Comment Requirements Derails EPA's Clean Air Act Non-Attainment Designations, 9 ELR 10173 (Oct. 1979).

23. Chrysler Corp. v. EPA, __ F.2d __, 10 ELR 20595 (D.C. Cir. 1980), petition for cert. filed, 49 U.S.L.W. 3177 (Sept. 8, 1980) (No. 80-378).

24. 48 U.S.L.W. 4926, 10 ELR 20477 (June 27, 1980). See generally Comment, Supreme Court Settles Circuit Split, Validates Oil Spill Penalties Based on Self-Notification, 10 ELR 10148 (Aug. 1980). The Court denied review in another oil spill case in which the Second Circuit held that the assessment of a civil penalty against a city was proper because a municipality is a "person" within the meaning of § 311. New York City v. United States, __ F.2d __ (2d Cir. Nov. 26, 1979), cert. denied, 48 U.S.L.W. 3570 (Feb. 23, 1980).

25. 445 U.S. 198, 10 ELR 20225 (Mar. 1, 1980). See generally Comment, High Court Validates EPA's Procedures for NPDES Hearings, 10 ELR 10076 (Apr. 1980).

26. 445 U.S. 193, 10 ELR 20230 (Mar. 17, 1980). See generally, Comment, Crown Simpson: Supreme Court Rules EPA Veto of State NPDES Permit Directly Reviewable in Court of Appeals, 10 ELR 10073 (Apr. 1980). This decision was based on the law prior to the 1977 amendments; however, a question remains as to jurisdiction to review a decision by EPA to issue the permit itself, pursuant to authority granted by the amendments, if the state refuses to yield to its objections.

27. United States v. Frezzo Bros., Inc., 602 F.2d 1123, 9 ELR 20556 (3d Cir. 1979), cert. denied, 48 U.S.L.W. 3535 (Feb. 19, 1980).

28. BASF Wyandotte Corp. v. Costle, 598 F.2d 637, 9 ELR 20609 (1st Cir. 1979), cert. denied, 48 U.S.L.W. 3533 (Feb. 19, 1980).

29. National Crushed Stone Ass'n, Inc. v. EPA, 601 F.2d 111, 9 ELR 20535 (4th Cir. 1979), cert. granted, 48 U.S.L.W. 3535 (Feb. 19, 1980) (No. 79-770). Argument in the case has been set for the week of October 6, 1980.

30. Illinois v. City of Milwaukee, 406 U.S. 91, 2 ELR 20201 (1972). See generally Comment, Federal Common Law and the Environment: Illinois v. Milwaukee, 2 ELR 10168 (1972).

31. See Comment, Federal Common Law of Nuisance Reaches New High Water Mark as Supreme Court Considers Illinois v. Milwaukee II, 10 ELR 10101 (May 1980).

32. City of Evansville v. Kentucky Liquid Recycling, Inc., __ F.2d __, 9 ELR 20679 (7th Cir. Aug. 9, 1979), cert. denied, 48 U.S.L.W. 3436 (Jan. 7, 1980).

33. City of Milwaukee v. Illinois, 599 F.2d 151, 9 ELR 20347 (7th Cir. 1979), cert. granted, 48 U.S.L.W. 3602 (Mar. 17, 1980) (No. 79-408).

34. Illinois v. Outboard Marine Corp., 619 F.2d 623, 10 ELR 20323 (7th Cir. 1980), petition for cert. filed, 49 U.S.L.W. 3043 (July 28, 1980) (No. 80-126); National Sea Clammers Ass'n v. City of New York, __ F.2d __, 10 ELR 20155 (3d Cir. Feb. 5, 1980), petition for cert. filed sub nom. Middlesex Cty. Sewerage Auth. v. National Sea Clammers Ass'n., 48 U.S.L.W. 3736 (Apr. 29, 1980) (No. 79-1711).

35. West Mich. Environmental Action Council, Inc. v. Natural Resources Comm'n, 275 N.W.2d 538, 9 ELR 20487 (Mich. 1979), cert. denied, 48 U.S.L.W. 3309 (Nov. 5, 1979); Michigan Oil Co. v. Natural Resources Comm'n, 276 N.W.2d 141, 9 ELR 20625 (Mich. 1979), cert. denied, 48 U.S.L.W. 3372 (Dec. 3, 1979). See generally Comment, New Growth in Michigan's Environmental Protection Act: State Supreme Court Enjoins Oil Development in Wilderness, 9 ELR 10144 (Sept. 1979).

36. United States v. Richardson, 599 F.2d 290, 9 ELR 20448 (9th Cir. 1979), cert. denied, 48 U.S.L.W. 3435 (Jan. 7, 1980).

37. 48 U.S.L.W. 4603, 10 ELR 20457 (June 2, 1980).

38. Under the ruling, patentability could be satisfied if the marketability prospects were in the future. Marketing rules for mining claims validation are up for Supreme Court review also in the 1980 Term. At issue is whether the Interior Department is authorized to limit the size of claims to "current market demand." Baker v. United States, 613 F.2d 224, 10 ELR 20264 (9th Cir. 1980), petition for cert. filed sub nom. Andrus v. Baker, 48 U.S.L.W. 3838 (June 24, 1980) (No. 79-1964).

39. Ventura County v. Gulf Oil Corp., 601 F.2d 1080, 9 ELR 20653 (9th Cir. 1979), aff'd, 48 U.S.L.W. 3625 (Mar. 31, 1980).

40. Chevron Oil Co. v. Andrus, 588 F.2d 1383, 9 ELR 20078 (5th Cir. 1979), cert. denied, 48 U.S.L.W. 3222 (Oct. 1, 1979).

41. Pauley Petroleum, Inc. v. United States, 591 F.2d 1308 (Ct. Cl. 1979), cert. denied, 48 U.S.L.W. 3241 (Oct. 9, 1979).

42. Kenai Peninsula Borough v. Alaska, 611 F.2d 1260, 10 ELR 20456 (9th Cir. 1980), petition for cert. granted, 49 U.S.L.W. 3245 (Oct. 6, 1980) (No. 79-1904).

43. 445 U.S. 715, 10 ELR 20448 (Apr. 16, 1980).

44. Wilderness Public Rights Fund, Inc. v. Kleppe, 608 F.2d 1250, 9 ELR 20769 (9th Cir. 1979), cert. denied, 48 U.S.L.W. 3785 (June 2, 1980).

45. 444 U.S. 51, 9 ELR 20791 (1979).

46. Indiana v. Andrus, __ F. Supp. __, 10 ELR 20613 (S.D. Ind. June 10, 1980), cert. denied, 49 U.S.L.W. 3245 (Oct. 6, 1980) (No. 80-231); Virginia Surface Mining & Reclamation Ass'n v. Andrus, __ F. Supp. __, 10 ELR 20128 (W.D. Va. Jan. 3 & 21, 1980), application for stay granted, 48 U.S.L.W. 3601 (Mar. 17, 1980), cert. granted, 48 U.S.L.W. 3245 (Oct. 6, 1980) (No. 79-1538).

47. Star Coal Co. v. Andrus, __ F. Supp. __, 10 ELR 20328 (S.D. Iowa Feb. 13, 1980), petition for cert. filed, 49 U.S.L.W. 3018 (July 11, 1980) (No. 80-49).

48. Clover Leaf Creamery v. State, __ N.W.2d __, 9 ELR 20739 (Minn. Nov. 7, 1979), petition for cert. granted, 48 U.S.L.W. 3625 (Mar. 31, 1980) (No. 79-1171). See generally Comment, Plastic Bans, Bottle Bills, and Comprehensive Container Legislation: Packaging Laws Get Mixed Reviews in State Courts, 9 ELR 10193 (Nov. 1979).

49. National Wood Preservers, Inc. v. Dep't of Envt'l Resources, 414 A.2d 37, 10 ELR 20724 (Pa. 1980), petition for cert. filed, 49 U.S.L.W. 3031 (July 23, 1980) (No. 80-90).

50. Environmental Defense Fund, Inc. v. Alexander, 614 F.2d 474, 10 ELR 20302 (5th Cir. 1980), petition for cert. filed, 49 U.S.L.W. 3031 (July 21, 1980) (No. 80-95).

51. Metromedia, Inc. v. City of San Diego, 26 Cal. 3d 848, 610 P.2d 409, 164 Cal. Rptr. 510 (1980), petition for cert. filed, 49 U.S.L.W. 3035 (Aug. 8, 1980) (No. 80-195). The Court denied review of two billboard cases in the 1979-80 Term. Desert Outdoor Advertising, Inc. v. California Dep't of Transp. (Cal. Ct. App. Nov. 26, 1979), cert. denied, 48 U.S.L.W. 3716 (June 16, 1980) (Federal Highway Beautification Act, which requires removal of certain types of billboards, does not require that compensation be paid for billboards that were erected in violation of state law); Lubbock Poster Co. v. City of Lubbock, 569 S.W.2d 935 (Tex. Ct. Civ. App. 1979), cert. denied, 48 U.S.L.W. 3218 (Oct. 1, 1979) (city ordinance regulating billboard advertising and providing for removal of non-conforming billboards after amortization period is reasonably related to public purpose and is valid exercise of city's police power).