Public Lands, Toxic Chemicals Dominate 96th Congress, 2d Session

After leaving a number of environmental issues unresolved after its first session,¹ the 96th Congress took significant strides in its second session to complete that work or to establish first-generation legislation in other areas. Congress deserves credit for finally enacting Alaska lands legislation to settle the issue of how much of these "crown jewels" should remain wild and low much can be opened for development of mineral and timber resources. The second major accomplishment was establishment of a mechanism to deal with releases of hazardous chemicals, whether from spills or hazardous waste dumps. Although the new "Superfund" will not cure all problems, such as paying for oil spill cleanup costs and compensating victims for their losses, it is an important first step. In the energy field, Congress passed a bill to fund development of a synthetic fuels industry, but maintaining environmental protection while enhancing domestic energy production will continue to be a matter for congressional attention. In other areas, Congress took noteworthy action, although it did not always result in final legislation.

Public Lands

Clearly one of the most ambitious pieces of public land legislation ever to be considered by Congress was the highly controversial Alaska lands bill. At stake was the future of millions of undeveloped and visually awe-inspiring wilderness acres that are additionally abundant in timber and may well contain a wealth of oil, gas, and other mineral resources. In December 1978 when Congress, under pressure from a self-imposed deadline,² was unable to agree on how much of the federal land in Alaska should be preserved in its wild state and how much opened for development, President Carter issued orders to protect more than 100 million acres from potential exploitation.³ This administrative withdrawal was designed as an interim step in order to preserve the freedom of Congress to resolve the matter itself. When the 96th Congress convened in January 1979, it renewed its efforts to find a legislative solution.

In the first session of the 96th Congress, the House passed a strongly protective bill that would have set aside more than 125 million acres as national parks, wildlife refuges, forests, and wild and scenic rivers, including 67 million acres designated as wilderness.⁴ As in the past, the Senate was more sensitive to the interests of the state government and industry, and the Energy Committee's bill would have set aside 102 million acres, with only 38 million acres designated as wilderness. On the floor, however, effective lobbying by environmental groups led to a compromise that the Senate found acceptable.⁵ Although Representative Udall (D-Ariz.), among others, was highly critical of the Senate bill, when Congress reconvened following the November 1980 election environmental interests in the House agreed to the Senate bill, realizing that it was probably the best that they could hope for given the new political climate. Despite talk of further adjustment of the Alaska lands legislation in 1981, it is unlikely that Congress will have much stomach for another round, although bills will certainly be introduced and considered in hearings.

The Alaska National Interest Lands Conservation Act⁶ sets aside 104.3 million federal acres for protection by adding 43.6 million acres to the national park system, including ten new parks, and 53.8 million acres to national wildlife refuges, including nine new refuges, thereby doubling the present combined acreage in the two systems. In addition, the Act overlays full wilderness protection on 56.7 million acres of the total. The Misty Fjords area of southeastern Alaska is set aside as a 2.3 million-acre national monument, all of it designated as wilderness except a 149,000-acre area surrounding a molybdenum mine. Furthermore, seismic exploration for oil and gas will be allowed on 900,000 acres in the western coastal plain of the North Slope's William O. Douglas Arctic Wildlife Refuge.⁷

Another battle in the second session over land resources concerned the Forest Service's second roadless area review and evaluation (RARE II).As a result of RARE II, the Forest Service proposed to Congress that 15.4 million acres of national forest land be strictly protected as wilderness, 10.8 million acres not be designated pending further study, and 36.2 million acres be left open for development according to multiple-use principles.⁸ During the last year, Congress began to consider these recommendations on a state-by-state basis. Complicating the whole process was an early 1980 decision by a federal district court in California⁹ which concluded that the Forest Service's final environmental impact statement [10 ELR 10232] (EIS) for RARE II failed to comply with the National Environmental Policy Act.¹⁰ Moreover, a controversy developed over whether further study areas not formally established as wilderness by Congress within a specific number of years may be "released" from no-development strictures and managed under the multiple-use, sustained-yield concept.¹¹

Despite the controversy, Congress was able to designate 4.2 million acres as national forest wilderness by the end of the session. In Idaho, 2.2 million acres were set aside as the River of No Return Wilderness, the largest wilderness in the United States outside of Alaska.¹² In addition, the Colorado wilderness bill set aside 1.4 million acres in Colorado, Louisiana, Missouri, South Carolina, and South Dakota,¹³ and other legislation set aside 610,000 acres as national forest wilderness in New Mexico.¹⁴ To avoid the problems created by the California court decision, the bills bar any future court actions challenging the sufficiency of the RARE II EIS.The "release" controversy was resolved by an agreement that areas not designated as wilderness or for further study need not be managed to protect wilderness values. Thus, the Forest Service may manage such areas under its usual multiple-use, sustained-yield authority, but this may include continued preservation of wilderness amenities.

Finally, the second session of the 96th Congress created new or provided additional funds for existing national parks, national wildlife refuges, and wilderness areas in California (Channel Islands¹⁵ and San Francisco Bay¹⁶), Alabama (Bon Secour Barrier Islands¹⁷), New Mexico (Sandia Mountain¹⁸), Louisiana and Mississippi (Tensas River¹⁹ and Bogue Chitto²⁰), Virginia and North Carolina (Great Dismal Swamp²¹), and Montana (Rattlesnake Wilderness²²).

Toxic Chemicals and Wastes

On December 3 Congress finally enacted a limited version of the long-embattled "Superfund" proposal. Though much more modest in its reach than either the bill adopted by the House last fall²³ or the proposal considered by the Senate for the last two years,²⁴ the law is a crucial component of the government's arsenal for combatting illegal spills and the dumping of hazardous chemicals.

The centerpiece of the new law, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980,²⁵ is a $1.6 billion Hazardous Substances Response Trust Fund.Fees on the manufacture or import of any of 42 specified petrochemical feedstocks and inorganic chemicals, as well as crude and refined oil, will provide $1.38 billion of the fund, the balance to be supplied from general federal revenues.The Fund is to be used, upon order of the President, to abate or clean up hazardous chemical²⁶ releases and to provide associated relief such as the relocation of victims and the establishment of monitoring systems.²⁷ Remedial action other than short-term measures is authorized, however, only when the affected state has agreed to pay 10 percent of the cost of the cleanup and to assume final responsibility for the situation.

Although the Act does not provide for liability for personal injury, those who cause releases covered by the Act are strictly liable for governmental cleanup expenses and damages to natural resources.²⁸ Liability is subject to various ceilings²⁹ and defenses for acts of war, God, and independent third parties.³⁰ Liability does not attach to releases discharged in compliance with permits issued under the federal environmental laws.³¹ Also exempt from liability are owners of hazardous waste disposal facilities who close their sites in compliance with Environmental Protection Agency (EPA) regulations.³²

Like the Alaska lands bill, the Superfund law that was finally adopted fell far short of the original expectations of its sponsors. Its limited scope is attributable to "post-election realities" which necessitated quick and tough judgments by both sides as to what the political winds would bear. Nevertheless, that any form of this legislation could move through a lame-duck Congress clearly antagonistic to large new governmental programs demonstrates the wide recognition of this environmental threat and the need for an effective remedy. The major "short-comings" in the final compromise — its failure to cover oil spills and the unavailability of compensation for victims of hazardous chemical releases — have led several [10 ELR 10233] legislators to promise to introduce "remedial" legislation in the next Congress. Thus begins yet another round in an important but already long and drawn-out battle.

RCRA

The Resource Conservation and Recovery Act³³ was amended³⁴ last session to increase the penalties for violations of the Act and EPA's implementing regulations³⁵ and to make technical adjustments in EPA's regulatory program. First, the amended statute penalizes the "knowing endangerment" of human life in the mishandling of hazardous waste. There are two categories of the "knowing endangerment" offense. Anyone who transports, treats, stores, or disposes of hazardous waste without or in violation of a permit is subject to a fine of up to $250,000 and imprisonment of up to two years if the actor demonstrates an "unjustified and inexcusable disregard for human life."³⁶ If, however, the actor demonstrates an "extreme indifference for human life," imprissonment may be imposed for as many as five years.³⁷ A separate section of the amendments goes to some length to differentiate between these standards of culpability.³⁸

The amendments add new restraints on EPA's regulation of "special wastes." Oil gas drilling wastes are not to be regulated for at least 24 months following the date of enactment. After EPA has completed a study of the effects of these substances on the environment, it will propose regulations which shall be effective "only when authorized by Act of Congress."³⁹ Wastes associated with the combustion of fossil fuels, cement kiln dust, and certain mining wastes, are also subject to a regulatory moratorium until six months after EPA has studied their environmental risks.⁴⁰ Strip-mining wastes are placed under the exclusive jurisdiction of the Department of the Interior,⁴¹ and sewage sludge from older wastewater treatment works is to be evaluated for less exhaustive regulation.⁴² Finally, the Act was amended to authorize EPA to issue compliance orders that are effective immediately rather than after 30 days⁴³ and are backed up by $5000 fines.⁴⁴

Another important way in which the Act was amended concerns the "imminent hazards" provision, § 7003.⁴⁵ That section previously authorized the EPA Administrator to bring suit in federal court to abate any condition involving the handling or storage of hazardous waste if the situation "is presenting an imminent and substantial endangerment to health or the environment." Though this language had been thought to confer very broad enforcement authority, when the EPA-Department of Justice joint task force on hazardous waste began invoking § 7003 in their recent litigation campaign against hazardous waste dumps,⁴⁶ it was discovered that the burden of proving an imminent and substantial endangerment could be onerous.⁴⁷ Consequently, Congress amended § 7003 to require only a showing that a situation may present an imminent and substantial endangerment. The effect of the change may be to demonstrate to the courts that Congress did not intend these cleanup actions to be ensnarled in lengthy disputes over technical and medical matters.⁴⁸

Energy

Although President Carter's energy proposals⁴⁹ were castigated in many quarters, several of his more important initiatives were ultimately enacted. The Energy Security Act⁵⁰ created the quasi-independent Synthetic Fuels Corporation to promote development of an industry to convert the nation's vast coal and oil shale deposits into substitutes for oil and natural gas. In the first five years, the Corporation is authorized to offer up to $20 billion in loans and price guarantees to finance promising technologies, but if private industry fails to take advantage of the incentives the Corporation is authorized to build as many as three government-owned, contractor-operated synfuels plants. The ultimate goal is to reach a capacity of at least two million barrels per day of oil equivalent by 1995.⁵¹

The "windfall profits tax" on domestic oil production was also enacted.⁵² This is a complex tax on the increased profits of oil companies derived from their higher revenues as a result of the decontrol of domestic oil prices. Revenues to the federal treasury from the tax are expected to total $227 billion in the next decade and will be applied in part to funding development of the synfuels industry. Conservation measures were included in the windfall profits tax law in the from of tax credits for installation [10 ELR 10234] of alternative energy sources, and in the Energy Security Act as loan subsidies for installing energy-saving equipment. Finally, loans for research and development of alternative energy sources were authorized in new laws covering ocean thermal energy conversion and wind energy systems.⁵³

One of the most innovative and controversial components of the Administration's energy program went down to a somewhat surprising defeat in June when the House voted to recommit the conference bill creating the Energy Mobilization Board (EMB).⁵⁴ Had it come into being, the three-member board would have been empowered to expedite the process of licensing major energy development projects by (1) establishing rapid licensing schedules, (2) cutting back on project review proceedings employed by other agencies, and (3) actually issuing licenses itself when the responsible agency had not reached a decision prior to the appointed deadline. The board also would have been able to initiate an elaborate process, involving Congress and the President, leading to the waiver of federal, state, or local laws deemed to impede particular projects. This feature of the bill, along with a concern that the EMB would actually create "even more bureaucracy," moved conservatives to side with liberals intent on preserving existing regulatory requirements. Thus, even though each house passed a version of the legislation, it expired despite six months of negotiation in the conference committee. There seems little question, however, that interest in short-cutting the often-lengthy licensing process characteristic of energy development projects continues, and the 97th Congress may again try to bring in a different form of this regulatory reform concept.

Though coal continues to be viewed by many as the nation's prime alternative energy source, a measure⁵⁵ to amend the Surface Mining Control and Reclamation Act (SMCRA)⁵⁶ that was actively sought by the industry to ease the federal regulatory burden on strip mining failed to gain passage despite skilled legislative maneuvering by its Senate backers. The bill would have amended the SMCRA to require that state reclamation plans comply only with the Act itself, not with the more comprehensive regulations issued under the Act by the Interior Department's Office of Surface Mining. The bill passed the Senate overwhelmingly in 1979, but Representative Udall bottled it up in the House because of fears that it would negate the years of progress and compromise embodied in the Act and its regulations. In 1980, Senate backers attached the bill to a noncontroversial vessel tonnage bill⁵⁷ that had already passed the House, but most of the House confereees favored Udall's position, and the conference was never convened. Finally, a bill⁵⁸ to facilitate construction of coal slurry pipelines as an alternative to rail transportation of coal out of western fields succumbed to environmental concerns over the enormous amount of scarce western water that would be required and the railroads' opposition to granting rights-of-way over their land for the pipelines.

A regional battle over low-cost federal power supplied by the Bonneville Power Administration (BPA) led to the passage of the Pacific Northwest Electric Power Planning and Conservation Act.⁵⁹ This law (1) requires BPA to provide all the power requested by its coustomers, including industrial customers and publicly-owned and investor-owned utilities, (2) establishes a regional council to prepare a comprehensive regional energy plan emphasizing conservation and renewable energy but permitting the acquisition of additional coal or nuclear power plants, (3) establishes a program for protection and enhancement of fish and wildlife, and (4) permits BPA to buy the electric capacity of new plants, which helps to ensure their financing.

Regulatory Reform

"Regulatory reform," a euphemism for a multi-faceted and broad-based initiative to rein in the federal administrative apparatus, fell far short of the goals of its proponents last session. To many observers this came as a surprise because the issue appeared to have gained momentum since its debut in 1975. The adoption of a Senate resolution⁶⁰ in that year led to the preparation of a massive egulatory study,⁶¹ which in turn led to recommendations for sweeping changes in agency practices and procedures. Many of these proposals were embodied in legislation⁶² that was the subject of many months of hearing, markups, and behind-the-scenes negotiations in 1980. Had they been adopted, these bills would have (1) required all proposed regulations to undergo a "regulatory (including cost-benefit) analysis," (2) called for periodic scrutiny of existing rules, and (3) amended the Administrative Procedure Act⁶³ to cut back dramatically on the use of formal adjudicatory proceedings, among other things.⁶⁴ However, the scope of the bills, their complexity, the furor they generated among interest groups and agencies, and the press of other business led to their demise. Presumably they will be resuscitated in the 97th Congress, and the half-decade of effort that went into them will not have been in vain.

To a large extent these bills were mired in controversy over "legislative veto" provisions, which permit one or both houses of Congress to void new regulations before they become effective. Though such provisions are found in many statutes now on the books, President Carter [10 ELR 10235] vowed to veto any reform bill containing one.⁶⁵ Partly as a result of this pressure, government-wide legislative veto legislation never passed either House.⁶⁶ On the other hand, narrowly aimed measures did find their way into substantive legislation that ultimately became law.⁶⁷ Also faring poorly were bills in both houses⁶⁸ known as "sunset" measures, which terminate government programs at the end of a fixed period of years unless reauthorized by Congress. Although approved overwhelmingly by the Senate in 1978, the sunset idea lost its support in the 96th Congress and was never brought to a vote.

Nuclear Energy

Though the 1979 accident at the Three Mile Island plant precipitated hundreds of hours of hearings, volumes of reports, and a hue and cry heard world-wide, few changes in the regulatory status quo were made by Congress. The 1980 authorization bill for the Nuclear Regulatory Commission (NRC) called for improved operator training, better responses to emergencies, and greater penalties for violations of NRC regulations.⁶⁹ These adjustments, however, were considerably less sweeping than some of the statutory changes that had been proposed soon after the accident, such as a moratorium on the NRC's issuance of new licenses and permits.⁷⁰

One area in which progress was made for the first time in 35 years was that of nuclear waste management. In July, the Senate passed an ambitious and comprehensive proposal⁷¹ which (1) authorized the creation of federal away-from-reactor facilities in which spent reactor fuel from commercial power plants would be stored, (2) directed the Department of Energy to develop plans for long-term, retrievable storage facilities for spent fuel and other high-level wastes, and (3) granted to states a right to concur with, though not to veto, the development of particular sites within their borders. Following the election recess the House approved a bill⁷² setting a schedule for the construction of repositories by the mid-1990s. Yet the continuing split over the issues of federal-state sharing of siting authority, the licensing jurisdiction of the NRC over military wastes, and whether to construct permanent or demonstration storage facilities prevented agreement on either the House or the Senate bill. Eventually, a compromise limited to low-level wastes was reached.⁷³ As passed, the bill makes the disposal of low-level nuclear waste a matter of state responsibility. States may construct and operate disposal sites within their borders or form compacts with other states to operate shared facilities. Federally generated wastes are specifically exempted from regulation under the law. In addition, the law authorizes DOE to conduct studies of regional waste disposal needs, waste transportation, and related issues.

Another precedent-setting enactment concerns the abandoned West Valley spent fuel reprocessing center in western New York. The West Valley Project Demonstration Act⁷⁴ recognizes federal responsibility for cleaning up the wastes stored at the facility, though it requires the State of New York to pay 10 percent of the cleanup costs. DOE will conduct the operation without having to undergo NRC licensing.

Marine Resources

After nine years of debate, Congress finally passed a bill concerning commercial development of mineral resources on the ocean floor. The Deep Seabed Hard Minerals Resources Act of 1980⁷⁵ requires that United States corporations exploring for or commercially mining seabed minerals must obtain licenses, after an evaluation of environmental impacts, from the National Oceanic and Atmospheric Administration (NOAA) and must use only U.S.-built ships. This licensing requirement will remain in effect until January 1, 1988 in order to allow time for the United Nations' nascent Law of the Sea Treaty, to supplant this regulatory system on a world-wide basis.⁷⁶ If, however, there is no international agreement by 1988, the Deep Seabed Act will remain in effect. Both environmental groups and corporations engaged in seabed exploration supported the new law. The new law. The latter have already invested a great deal in preliminary work and sought some security in the event that the United States accedes to an unfavorable international sea law treaty. In addition, exploration by corporations not already so engaged is prohibited under the Act until NOAA has promulgated its seabed protection regulations.⁷⁷

[10 ELR 10236]

In other actions, Congress amended the Marine Protection, Research, and Sanctuaries Act (MPRSA)⁷⁸ to authorize additional funds for the designation of marine sanctuaries. Because designation of an area as a marine sanctuary circumscribes offshore mineral exploration and development, the Act has created controversy. Thus, additional amendments⁷⁹ require NOAA to provide advance notice of restricted activities prior to designating a marine sanctuary and permit a sanctuary designation by NOAA or governing regulations to be vetoed either by two houses of Congress or by the governor of any adjacent state.

After settling a dispute over sludge dumping in Long Island Sound,⁸⁰ Congress reauthorized Title I of the MPRSA, which covers ocean dumping, in the process providing $2 million per year in fiscal years 1981 and 1982 for the Environmental Protection Agency to monitor ocean dumping activities.⁸¹ Congress also reaffirmed the December 31, 1981 deadline for municipalities to halt dumping sludge in the oceans.

In 1980, the Year of the Coast, Congress reauthorized the Coastal Zone Management Act (CZMA).⁸² Though the bill⁸³ was not as strong as coastal protection interests wanted, it does authorize $805 million over the next five years to be used by the states to meet eight national priority objectives. Included in the authorization are funds to overcome the environmental impacts of increased coal shipments and funds for small-scale projects to protect fragile wetlands. In addition, the new law authorizes a two-house congressional veto of CZMA regulations.⁸⁴ Finally, the Secretary of Commerce is directed to review all state coastal zone programs prior to awarding or continuing grants under the CZMA and to review all federal programs for possible conflicts with CZMA goals.

Water Pollution

New funding of $987.5 million for fiscal years 1981 and 1982 were authorized for portions of the Federal Water Pollution Control Act (now called the Clean Water Act) that provide 75 percent federal matching grants to states for planning, design, and construction of sewage treatment systems.⁸⁵ In addition, the much fought over industrial cost recovery provision was repealed.As a result, dischargers relying on federally funded municipal sewage treatment facilities will no longer be required to pay a portion of the facilities' construction costs. On the other hand, the law provides that after November 1, 1981, no federal funds will be available for construction of sewage treatment plants receiving industrial discharges of more than 50,000 gallons per day.

Congress also extended from January 1, 1981 to January 1, 1984 the deadline for cities to meet the interim standards, established under the Safe Drinking Water Act,⁸⁶ for removing toxic chemicals from drinking water supplies. This extension prevents widespread noncompliance because approximately 13,600 water systems, 20 percent of those regulated, would otherwise be in violation of one or more of EPA's drinking water standards. Congress also gave EPA discretion to approve state underground oil and gas injection programs, without subjecting them to the Act's regulations, if they adequately protect underground water supplies.

Miscellaneous

After years of lobbying by wildlife conservation groups, Congress finally passed a funding bill for the 83 percent of U.S. species that are not hunted as game. The Fish and Wildlife Conservation Act of 1980⁸⁷ authorizes $20 million over a four-year period to provide financial and technical assistance to states to develop and implement nongame fish and wildlife conservation plans. The federal-state cooperative agreement portion under § 6 of the Endangered Species Act was reauthorized for § 6 million in each of fiscal years 1981 and 1982.⁸⁸ Two-for-one federal matching grants will be available to carry out the 33 existing cooperative agreements for managing endangered species. Finally, a bill⁸⁹ to merge the Lacey and Black Bass Acts to strengthen the regulation of interstate transportation of fish and wildlife died at the end of the 96th Congress despite wide support because an attempted compromise in the Senate failed. It will probably be revived early in the 97th Congress.

Historic preservation received a boost when the National Historic Preservation Act was amended.⁹⁰ The role of local preservation commissions has been strengthened so that they will now review nominations to the National Register of Historic Places. Local commissions or private property owners may block a nomination to the National Register, although this can be overridden by the Secretary of the Interior. In addition, 50-50 matching grants for restoration and 70 percent matching funds for survey work are authorized.

In reauthorizing the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)⁹¹ for $77.5 million for fiscal year 1981, Congress added restraints on EPA's activities.⁹² First, EPA regulations under FIFRA are subject to [10 ELR 10237] a two-house congressional veto. Second, the EPA Administrator must submit all data used in emergency suspension decisions to the FIFRA Scientific Advisory Panel. Finally, peer review is required for all data collecting and testing procedures used in regulating pesticides.

Congress also passed the Used Oil Recycling Act of 1980,⁹³ authorizing $5 million each in fiscal year 1982 and 1983 for financial and technical assistance to states participating in used oil recycling programs. The Act directs EPA to develop economically feasible and environmentally sound methods of recycling used oil and to determine if used oil should be subject to the hazardous waste provisions of the Resource Conservation and Recovery Act. Finally, in an effort to clean up the asbestos used in school construction from 1946 to 1972, Congress enacted the Asbestos School Hazard Detection and Control Act of 1980⁹⁴ to determine the extent of the danger from asbestos in school construction and to provide loans for the containment, removal, and replacement of asbestos and restoration of the school buildings to their previous condition.

Next Session: Clean Air Act Debate

In 1981 all eyes will be turned to the debate over the reauthorization of the Clean Air Act.⁹⁵ For many months industry has been planning to obtain repeal or significant modification of those regulatory controls that it deems economically unjustified as well as those aspects of the regulatory machinery that may be needlessly complex and burdensome. The environmental community, in turn, has been attempting to identify those areas in which some retrenchment will be palatable and even planning counterinitiatives.

Shaping up as the most likely candidate for serious rethinking is the prevention of significant deterioration (PSD) program. Industry doubts the philosophical bases for preventing deterioration in Class II and III areas and has equally strong objections to some of the program's procedural details, such as pre-application monitoring and modeling. Many have advocated that new sources seeking to locate in current Class II and III areas be required simply to employ control technology equivalent to the best available technology (BAT). Environmentalists, on the other hand, insist that the concept of PSD remains valid. They see the program as an important means of slowing the degradation of the nation's clean air areas as well as guarding against the currently unknown effects of air pollution in the meantime. Few, however, have asserted that there is no room for improvement in the PSD permitting process.

What may be the only respect in which the Act is strengthened relates to the omnipresent problem of acid precipitation, which in the last year has moved into the public limelight.⁹⁶ Under pressure from Canada and northeastern states, Congress may agree to limit the long-range transport of pollutants that now escape controls within single air quality control regions. Among the options under discussion are amendments to §§ 110(a)(2)(E) or 126 of the Act and more stringent SO₂ emission ceilings for major sources. Industry's most frequently espoused view is that acid rain is a largely unknown phenomenon that should be understood better before improvidently expensive limitations are established.

Another likely area of legislative activity is the question of new construction in nonattainment areas, with some calling for reworking of the emission offsets program and relaxation of the technology-based controls now required in those areas. In addition, there appears to be growing support for giving the states greater autonomy in administering their state implementation plans. The current disputes over visibility protection and automobile inspection and maintenance are also sure candidates for congressional scrutiny. Informed speculation as to likely outcomes in this myriad of conflicts seems impossible at this time.

Conclusion

At the close of the "first environmental decade," environmental protection has clearly become a permanent item on Congress' agends. The plethora of legislation enacted in the 1970s has often been successful in maintaining environmental quality and even reversing a trend of degradation. However, the legislative goal of environmental improvement has been far more difficult to accomplish. Many of the gaps in pollution control have been filled, as most forms of pollution, from noise to the dispersal of hazardous chemicals, are now subject to some form of regulation.On the other hand, some of the most pressing current problems stem from past activities, such as waste disposal, that have come back to haunt us. These items are now top priorities for Congress and the federal agencies.

The "second environmental decade" commences in a legislative and regulatory climate fundamentally different from that to its predecessor. Energy and economic considerations, which frequently conflict with environmental ones, command unparalleled attention. State governments now balk at what they see as excessive encroachment upon the sovereign power of the states to control their resources. Although environmental protection still retains broad public support en years after the first Earth Day,⁹⁷ the proper balance between the competing objectives is subject to hot dispute.

Such disputes will surface in the 97th Congress in predictable areas. The Clean Air Act will be subjected to a re-analysis far more radical than the "mid-course corrections" made to the Federal Water Pollution Control Act in 1977. Public lands will again occupy center stage, with a great deal of interest focusing on the "sagebrush rebellion" and resource development of the federal lands in the west. Regulatory reform will be a major issue because of almost universal concern over the burden the federal bureaucracy places on private enterprise. It will be surprising if some of the proposals [10 ELR 10238] which died in 1980 have not been enacted by 1982. Furthermore, the control of toxic chemicals is unlikely to become a less visible issue of public policy.

For the first time, Congress will probably be making some of the difficult policy decisions that it has delegated to agencies in the past. Although the goals of environmental protection may not vary, the strategies to achieve the goals are open to revision. The outcomes will be important in their own right as well as useful indicators of the future course of environmental control.

1. See Comment, 96th Congress, 2d Session: Environmental Issues in Limbo, 10 ELR 10009 (Jan. 1980).

2. See Alaska Native Claims Settlement Act, 43 U.S.C. § 1616(d)(2).

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

4. See Comment, 96th Congress, 1st Session: Environmental Issues in Limbo, 10 ELR 10009, 10012 (Jan. 1980).

5. Sen. Tsongas (D-Mass.) engineered the compromise that led to the passage of S.9, 96th Cong., 1st Sess. (1979), by a 78-14 vote on August 14, 1980.

6. Pub. L. No. 96-487, 94 Stat. 2371 (Dec. 2, 1980).

7. No drilling will be permitted, however, and the caribou calving grounds located in the area are insulated from such intrusions. 38 CONG. Q. 2447 (Aug. 23, 1980).

8. Under the Multiple-Use Sustained-Yield Act of 1960, 16 U.S.C. §§ 528-531, ELR STAT. & REG. 41406, the national forests are to be managed by coordinating all potential uses without impairing the productivity of the land. The aim is to maintain a regular periodic output of the various renewable resources, not necessarily combine the uses that will give the greatest dollar return.

9. California v. Bergland, 483 F. Supp. 465, 10 ELR 20098 (E.D. Cal. 1980).

10. See Comment, Wilderness in the National Forests: California Court Finds RARE II NEPA Violations, Congress Ponders 'Release,' 10 ELR 10096 (May 1980).

11. All of the national forest lands in RARE II were eligible for wilderness designation because they were free of development incursion, and a moratorium on development was imposed during the period of the study. Releasing lands for multiple-use management creates a risk that they will lose their wilderness characteristics.

12. Pub. L. No. 96-312, 94 Stat. 948 (July 23, 1980).

13. Pub. L. No. 96-560, 94 Stat. 3265 (Dec. 22, 1980).

14. Pub. L. No. 96-550, 94 Stat. 3221 (Dec. 19, 1980).

15. Pub. L. No. 96-199, 94 Stat. 67 (Mar. 5, 1980).

16. Pub. L. No. 96-290, 94 Stat. 607 (June 28, 1980).

17. Pub. L. No. 96-267, 94 Stat. 483 (June 9, 1980).

18. Pub. L. No. 96-248, 94 Stat. 355 (May 23, 1980).

19. Pub. L. No. 96-285, 94 Stat. 595 (June 28, 1980).

20. Pub. L. No. 96-288, 94 Stat. 603 (June 28, 1980).

21. Pub. L. No. 96-291, 94 Stat. 608 (June 28, 1980).

22. Pub. L. No. 96-476, 94 Stat. 2271 (Oct. 19, 1980).

23. In September the House passed two related bills. H.R. 7020 created a $1.2 billion fund for cleaning up abandoned hazardous waste sites. 126 CONG. REC. H9436 (daily ed. Sept. 23, 1980). H.R. 85 established two separate funds, each to contain $375 million, to be used for cleaning up spills of oil and hazardous substances, respectively. 126 CONG. REC. H9185 (daily ed. Sept. 21, 1980).

24. In July the Senate Committee on Environment and Natural Resources reported S. 1480, 96th Cong., 1st Sess. (1979), which would have created a $4.1 billion fund for cleaning up releases of toxic substances. Perhaps more importantly, the bill would have made dischargers strictly liable for injuries resulting from such releases, including compensation for individual victims.

25. Pub. L. No. 96-510, 94 Stat. 2767 (Dec. 11, 1980)

26. The Fund does not apply to oil spills.

27. Pub. L. No. 96-510, § 104.

28. Id. § 107(a).

29. Id. § 107(c).

30. Id. § 107(b).

31. Id. § 107(j).

32. Id. §§ 107(k), 111(j).

33. 42 U.S.C. §§ 6901-6987, ELR STAT. & REG. 41901.

34. Pub. L. No. 96-482, 94 Stat. 2334 (Oct. 21, 1980)

35. 40 C.F.R. pts. 260-265, ELR STAT & REG. 47301, See generally, Comment, EPA Issues RCRA's "Cradle to Grave" Hazardous Waste Rules, 10 ELR 10130 (June/July 1980).

36. 42 U.S.C. § 6928(e)(2)(A), ELR STAT. & REG. 41911.

37. 42 U.S.C. § 6928(e)(2)(B), ELR STAT. & REG. 41911.

38. 42 U.S.C. § 6928(f), ELR STAT. & REG. 41911. The maximum fine is increased to $1 million in the case of corporate defendants. 42 U.S.C. § 6928(e)(2)(B), ELR STAT. & REG. 41911.

39. 42 U.S.C. § 6921(b)(2)(C), ELR STAT. & REG. 41908.

40. 42 U.S.C. § 6921(b)(3)(A), ELR STAT. & REG. 41908.

41. 42 U.S.C. § 6925(f), ELR STAT. & REG. 41910.

42. 42 U.S.C. § 6924, ELR STAT. & REG. 41909.

43. 42 U.S.C. § 6928(a)(1), ELR STAT. & REG. 41910.

44. 42 U.S.C. § 6973(b), ELR STAT. & REG. 41922.

45. 42 U.S.C. § 6973, ELR STAT. & REG. 41922.

46. See Comment, Hazardous Waste: EPA, Justice Invoke Emergency Authority, Common Law in Litigation Campaign Against Dump Sites, 10 ELR 10034 (1980).

47. See generally United States v. Solvents Recovery Service of New England, 10 ELR 20796 (D. Conn. 1980); United States v. Vertac Chemical Corp., 489 F. Supp. 870, 10 ELR 20709 (E.D. Ark. 1980); United States v. Midwest Solvent Recovery, Inc., 484 F. Supp. 138, 10 ELR 20316 (N.D. Ind. 1980).

48. The legislative history also makes clear that in cases under § 7003 courts are to avail themselves of the principles and remedies developed in the common law of nuisance and indeed are to "liberalize" those principles in certain instances. See SEN. REP. NO. 96-172, 96TH CONG., 2D SESS. 5 (1980), reprinted at [1980] U.S. CODE CONG. & AD. NEWS 8669.

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

50. Pub. L. No. 96-294, 94 Stat. 611 (June 30, 1980).

51. Funding of the second phase, full-scale development and production after 1985, will, however, require a new congressional authorization.

52. Pub. L. No. 96-223, 94 Stat. 229 (Apr. 2, 1980).

53. Ocean Thermal Energy Conversion Research, Development, and Demonstration Act, Pub. L. No. 96-310, 94 Stat. 941 (July 17, 1980); Ocean Thermal Energy Conversion Act of 1980, Pub. L. No. 96-318, 94 Stat. 974 (Aug. 3, 1980); Wind Energy Systems Act of 1980, Pub. L. No. 96-345, 94 Stat. 1139 (Sept. 8, 1980).

54. H. REP. NO. 96-1119, 96th Cong., 2d Sess. (1980), was recommitted on June 27, 1980. 126 CONG. REC. H. 5797 (daily ed. June 27, 1980).

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

56. 30 U.S.C. §§ 1201-1328, ELR STAT. & REG. 42401.

57. H.R. 1197, 96th Cong., 1st Sess. (1979).

58. S. 2665, H.R. 7982, 96th Cong., 2d Sess. (1980).

59. Pub. L. No. 96-501, 94 Stat. 2697 (Dec. 5, 1980).

60. Sen. Res. 71, 94th Cong., 1st Sess. (1975).

61. SENATE COMMITTEE ON GOVERNMENTAL OPERATIONS, STUDY ON FEDERAL REGULATION, 95TH CONG., 1ST & 2D SESS. (Comm. Print 1977-1978) (hereinafter Senate Study).

62. See, e.g., S. 262, S. 755, 96th Cong., 1st Sess. (1979).

63. 5 U.S.C. §§ 551-706, ELR STAT. & REG. 41001.

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

65. His position that legislative veto provisions are unconstitutional was recently given a boost by the Ninth Circuit in Chadha v. Immigration & Naturalization Serv., No. 77-1702 (9th Cir. Dec. 22, 1980) (one-house veto provision in Immigration and Naturalization Act violates separation of powers doctrine). See also Senate Study, supra note 61, a 115-122 (recommending against use of legislative veto provision except in limited situations).

66. See e.g., H.R. 1776, 96th Cong., 1st Sess., which was never reported by the House Rules Committee, and S. 1945, which was reported by the Senate Governmental Affairs Committee but failed to pass the Senate.

67. The "Superfund" bill and recent amendments to the Federal Insecticide, Fungicide and Rodenticide Act, the Marine Protection, Research and Sanctuaries Act, and the Coastal Zone Management Act contain different versions of the legislative veto provision.

68. See S. 2, S. 2578 & H.R. 5858, 96th Cong., 1st Sess. (1979).

69. Pub. L. No. 96-295, 94 Stat. 780 (June 30, 1980).

70. See, e.g., the so-called "Markey amendment" to the 1980 NRC authorization bill, which would have imposed a six-month moratorium on the issuance of NRC licenses and permits. 125 CONG. REC. H. 11340-61 (daily ed. Nov. 29, 1979). In addition, Rep. Udall introduced and held markup sessions on an "omnibus nuclear reform" bill, H.R. 6390, 96th Cong., 1st Sess., 1979, but the measure never came to a vote.

71. S. 2189, 96th Cong., 1st Sess. (1979).

72. H.R. 8378, 96th Cong., 1st Sess. (1979).

73. Pub. L. No. 96-573, 94 Stat. 3347 (Dec. 22, 1980).

74. Pub. L. No. 96-368, 94 Stat. 1347 (Oct. 1, 1980).

75. Pub. L. No. 96-283, 94 Stat. 553 (June 28, 1980).

76. The Law of the Sea Conference was convened in 1973 to reach agreement on the management and use of the world's oceans and their riches. Largely for this reason, Congress decided to postpone action on domestic legislation. The inability of the Conference to reach agreement, however, led Congress to take a unilateral first step. Indications are that the sea law conference may complete its work within a year, or event at the spring 1981 session in New York, because at its August 1980 session in Geneva it completed a third and final revision of the composite negotiating text.

77. Recently NOAA issued interim regulations seeking information to identify which U.S. corporations were engaged in exploration prior to passage of the Deep Seabed Act and thus may continue exploration pending a final determination on their license applications. Other corporations may not commence exploration until they have been issued a license. 45 Fed. Reg. 76661 (Nov. 20, 1980).

78. 16 U.S.C. §§ 1431-1434, ELR STST. & REG. 41824:1.

79. Pub. L. No. 96-332, 94 Stat. 1057 (Aug. 29, 1980).

80. The dispute concerned whether dumping in the sound should be subject to the strict MPRSA guidelines, which require testing of the dumped material for toxicity, rather than the more lenient standards of the Federal Water Pollution Control Act now in effect. The MPRSA guidelines were accepted with an exemption for marine owners who dump less than 25,000 cubic yards of dredged material.

81. Pub. L. No. 96-572, 94 Stat. 3344 (Dec. 22, 1980).

82. 16 U.S.C. §§ 1451-1464, ELR STAT. & REG. 41701.

83. Pub. L. No. 96-464, 94 Stat. 2060 (Oct. 17, 1980).

84. See note 65, supra.

85. Federal Water Pollution Control Act subchapter II, 33 U.S.C. §§ 1281-1297, ELR STAT. & REG. 42113.

86. 42 U.S.C. §§ 300f-300j-10, ELR STAT. & REG. 41101.

87. Pub. L. No. 96-366, 94 Stat. 1322 (Sept. 29, 1980).

88. Pub. L. No. 96-246, 94 Stat. 348 (May 23, 1980).

89. H.R. 5604, 96th Cong., 1st Sess. (1979), passed the House on July 28, 1980 by a voice vote, but S. 1882, 96th Cong., 1st Sess. (1979), although it was favorably reported by the Senate Environment and Public Works Committee on March 24, 1980, failed to reach a floor vote.

90. National Historic Preservation Act Amendments of 1980, Pub. L. No. 96-515, 94 Stat. 2987 (Dec. 12, 1980).

91. 7 U.S.C. §§ 135-135k, ELR STAT. & REG. 42301.

92. Pub. L. No. 96-539, 94 Stat. 3194 (Dec. 17, 1980).

93. Pub. L. No. 96-463, 94 Stat. 2055 (Oct. 15, 1980).

94. Pub. L. No. 96-270, 94 Stat. 487 (June 14, 1980).

95. 42 U.S.C. §§ 7401-7642, ELR STAT. & REG. 42201.

96. See generally, Westone, Air Pollution Control Laws in North America and the Problem of Acid Rain and Snow, 10 ELR 50001 (1980).

97. COUNCIL OF ENVIRONMENTAL QUALITY, DEPARTMENT OF AGRICULTURE, DEPARTMENT OF ENERGY, ENVIRONMENTAL PROTECTION AGENCY, PUBLIC OPINION ON ENVIRONMENTAL ISSUES: RESULTS OF A NATIONAL OPINION SURVEY (1980).