Environmental Law in the Supreme Court: The 1981-82 Term and Looking Ahead

F. L. McChesney

The 1981-82 Term of the United States Supreme Court was marked by a paucity of substantive environmental rulings as the Court repeatedly declined to review lower court decisions. The Court denied review in more than 35 environmental cases including products liability suits against asbestos manufacturers, challenges to the dredge and fill permit provisions of the Federal Water Pollution Control Act (FWPCA) and a variety of Clean Air Act disputes. In some instances, the Court's denial of certiorari in several cases, perpetuated uncertainty over recurring legal issues, as when it let stand divergent courts of appeals' decisions involving the third party oil spill liability provisions of the FWPCA. Another noteworthy denial of certiorari was mooted by Congress, however. The Court declined to review the First Circuit's decision in Defenders of Wildlife, Inc. v. Endangered Species Scientific Authority,¹ which held that the Endangered Species Scientific Authority's 1978 guidelines governing bobcat exports violated the Convention on International Trade in Endangered Species of Wild Fauna and Flora, but Congress recently amended the Endangered Species Act to, among other changes, reverse the holding in that case.²

Of the four³ cases in which decisions were handed down, two have important implications for the current debate over the "new federalism." The decisions affirmed that federal regulatory authority, whose preeminence and broad scope are well-established in strictly environmental matters, could also dominate lower government authority in the traditionally state-managed areas of groundwater resource protection and public utility regulation. The water law case created an uproar in the West, as the Court opened the door to federal intervention in water resource management, and in a sharply divided decision, the Court rejected a claim that provisions of the Public Utility Regulatory Policies Act⁴ (PURPA) interfered with state sovereignty protected by the Tenth Amendment. In the two other cases, the Court trimmed the reach of environmental statutes where literal application of their requirements threatened to interfere with other important federal interests. The Court overturned an injunction against the Navy's weapons training activities in Puerto Rico, reaffirming the district courts' equitable discretion, and protected nuclear weapons storage activities in Hawaii from public disclosure within an environmental impact statement (EIS.)

The four decisions provide limited material for speculation about trends in the law. They strongly suggest that the basic constitutional foundation of federal environmental law is secure, but also indicate that the Court is responsive to interpretations of those laws which provide flexibility to reconcile them with other basic federal programs.

Supreme Court watchers waited with great interest to see how Justice Sandra Day O'Connor, President Reagan's first appointee — and the Court's first woman member — would vote in environmental cases. She sided with Justice Rehnquist in each of the four cases and was joined with Chief Justice Burger in three. Her views on the proper balance between state and federal authority were displayed in the challenge to PURPA, where she authored a dissent vigorously defending state sovereignty and in the water law case she joined Justice Rehnquist's dissent urging the Court to protect Nebraska's right to control groundwater exports to other states.

Commerce Clause Limits on Groundwater Exports

The Supreme Court heard a number of cases last Term involving the Commerce Clause, but the most significant for environmental regulation was clearly Sporhase v. Nebraska⁵ in which it spelled out the constitutional limits on the authority of states to control exports of their natural resources. A number of early Supreme Court decisions upheld state efforts to reserve natural resources for their citizens, but this decision continues the modern trend to reject discriminatory state measures limiting exports of natural resources as violations of the CommerceClause.⁶

Sporhase involved two farmers who jointly own adjacent tracts of land on both sides of the Nebraska-Colorado border. When denied a permit to withdraw water in Colorado they began irrigating their Colorado tract with groundwater from Nebraska.But Nebraska law prohibited the export of groundwater to an adjacent state without a permit. To obtain a permit the water withdrawal must be reasonable, not contrary to the conservation of groundwater, and not otherwise detrimental to the public interest. However, it also prohibited transfers to states that prohibited transfers of groundwater into Nebraska, a test failed by Colorado, which bans all groundwater exports. In state court, Nebraska successfully sought to enjoin the transfer. The nebraska Supreme Court upheld the constitutionality of the statute's "reciprocity" provision, [12 ELR 10098] ruling that since under Nebraska law, water is owned by the state and not an article of commerce, the Commerce Clause does not apply.

While the case involved unusual local circumstances and only a small amount of land and water, its potential impact on western water law was sweeping. Some experts were predicting that a Supreme Court invalidation of the Nebraska law would set off a "water rush" by rapidly growing western cities and energy developers needing large volumes of water for power plants and coal slurry pipelines at the expense of agriculture. This demand is largely frustrated by laws in most western states, 13 of which, like Nebraska, have enacted legislation that prohibits or significantly limits groundwater exports.

No surprisingly, the Supreme Court's decision to hear the challenge to Nebraska's statute triggered an uproar in the western states where control over water is a life-or-death issue. Seventeen amicus briefs were filed against the farmers, and only one for, from El Paso, Texas, which wants to import large amounts of groundwater from New Mexico, but faces a New Mexico law that prohibits exports.⁷

In a seven-to-two decision written by Justice Stevens, the Court upheld inpart and overturned in part the Nebraska law. Initially, the Court dismissed the "state ownership" theory, concluding that groundwater is an article of commerce and subject to the federal government's ability to regulate the interstate problems of groundwater withdrawals. Then, applying a Pike v. Bruce Church⁸ analysis, the Court upheld Nebraska's conditions on groundwater exports to the extent they were designed to conserve diminishing groundwater supplies. Clearly cognizant of the growing seriousness of the water shortage facing the West, Justice Stevens was unable to condemn any conservation measures which could be fairly characterized as "reasonable," and noted that states' efforts to conserve groundwater are due special deference in the absence of contrary federal legislation. But the Court labelled the reciprocity provision "an explicit barrier to commerce," and therefore unconstitutional because it was not narrowly tailored to water conservation.

Justices O'Connor and Rehnquist, both of whom practiced law in arid Arizona, dissented from the majority ruling to the extent that it invalidated the state's reciprocity provision. In their view, groundwater can be regulated out of interstate commerce by a state in its sovereign capacity. Such state actions are therefore subject to more limited constitutional restrictions.

Although Sporhase v. Nebraska reversed the lower court decision upholding the Nebraska statute, the opinion supports the powers of the states to enact conservation-oriented controls over exports of water. Indeed, it suggested that a "demonstrably arid" state might constitutionally prohibit all exports of groundwater if there was strong evidence that the restrictions were "narrowly tailored to the conservation and preservation rationale."

However, the decision casts a shadow over the many state laws that ban exports to other satates. The difficulty is that these bans are not closely linked to water conservation. If these states rewrite their laws, they may be able to defend fairly stringent limitations on groundwater exports, but may also have to more carefully restrict domestic uses of groundwater to avoid the discriminatory label.

Federal Regulation of Public Utilities

In the 1980-81 Term the Supreme Court unanimously upheld the constitutionality of the Surface Mining Control and Reclamation Act (SMCRA), a statute that requires each state to establish its own coal mining regulatory program or face imposition of federal controls. The court easily and unanimously rejected claims that the Act impaired the states' sovereignty by "coercing" them to adopt a regulatory program.⁹ in the 1981-82 Term, in Federal Energy Regulatory Commission v. Mississippi,¹⁰ a divided Court narrowly upheld the constitutionality of the Public Utility Regulatory Policies Act, which requires state public utility commissions to consider, and if appropriate to adopt, specified regulatory rate design standards intended to encourage energy conservation, enhance the efficiency of electric power generation, and lead to more equitable rates. It also directed the Federal Energy Regulatory Commission to develop rules to encourage cogeneration and small power production.

Although the five members of the majority found the Act to be "extraordinarily intrusive" on state prerogatives, they saw nothing unconstitutional about it. Justice Blackmun wrote that the Act does not compel the states to exercise their sovereign powers; it simply places conditions on continued state regulation in an area otherwise subject to complete federal preemption. But this broad reading of Congress' powers under the Tench Amendment drew anguished dissents. Justice O'Connor, joined by Chief Justice Burger and Justice Rehnquist, labelled certain parts of the Act as contrary "to the values of federalism, and inconsistent with our constitutional history." Justice Powell also disagreed with the result reached by the majority. The decision will have little impact on implementation of PURPA, as all but two states have met the statute's deadlines. But it indicates that a strong minority of the Court would use the Tenth Amendment aggressively to check expansion of the use of the unexercised regulatory authority of the Commerce Clause to coerce states into carrying out federal programs.

The two federalism cases demonstrate again the potency of both the positive and negative sides of the Commerce Clause and the weakness of the Tenth Amendment as a defense against the exercise of that power. The standard approach in many environmental statutes is to prescribe national standards and to try to induce states to take on much of the regulatory work of achieving them. Congress's power under the Commerce Clause to regulate directly is virtually limitless, but the Tenth Amendment places limits on the extent to which it can draft state agencies into the federal regulatory army. The federal government may use carrots to enlist state participation [12 ELR 10099] (e.g. program grants), or it may use sticks (e.g. the threat of withholding grants or of stepping in with federal regulators), but it may not use the power of law to force a state to exercise its sovereign powers (e.g. the power to enact laws or regulations) in pursuit of federal goals. FERC v. Mississippi stretched the boundaries of federal power in two ways. It held that Congress could require states to adopt programs following a federal blueprint as a condition of not exercising its Commerce Clause power to preempt the field, even when it does not prescribe an alternative federal regulatory scheme which will take effect absent state action. The Clean Air Act gives the choice of approved state regulation or federal regulation. PURPA gives the choice of approved state regulation or no regulation. In addition, the Court ruled that in specifying matters which state utility commissions must consider and the procedures they must use in considering them PURPA did not invade the sovereign domain of the states. Thus, Congress can set the agenda (or part of it) for state regulatory action and can specify how that agenda will be considered without interfering with state sovereignty, as long as it does not specify the result of those considerations. If there was any doubt after the SMCRA cases, the constitutional foundation of the environmental statutes which rely on state implementation seems completely secure after PURPA.

While FERC v. Mississippi expands the extent to which the federal government can force states to carry out federal programs under the Commerce Clause, Sporhase v. Nebraska further shrinks the scope of state activities affecting interstate commerce which do not run afoul of that Clause's negative implications.¹¹ Sporhase erased the last vestiges of protection against the negative aspect of the Commerce Clause offered by the doctrine of state ownership of natural resources. To be sure, the court recognized that such resources, particularly those like water which are vital to life as well as commerce, have special status and may be regulated more heavily by the states than ordinary articles of trade. But regulations that discriminate against other states must pass extremely close scrutiny if they are to stand.

Equitable Water Act Enforcement

In Weinberger v. Romero-Barcelo,¹² the Court shed new light on the question whether courts, when faced with a clear violation of a statute containing a flat ban on certain activities, must enjoin the illegal activity until compliance is achieved. The Navy's military training operations on and around Vieques, a small island near Puerto Rico, sparked substantial local opposition. The Governor of Puerto Rico brought suit under the FWPCA and other federal statutes to enjoin the Navy from discharging bombs and other ordnance into the water surrounding the island until it obtained a national pollutant discharge elimination system permit.

Both the district court and the court of appeals agreed that the Navy's failure to obtain the permit for its target practice violated the Act. Finding that the bombing caused no environmental harm, the district court had refused to enjoin the Navy's activities, but the First Circuit ordered the district court to impose an injunction. It pointed out that § 301 of the FWPCA contains a flat prohibition on "the discharge of any pollutant by any person" unless the discharge is allowed by a permit, and concluded that the courts had no choice but to halt the illegal activity.

The Supreme Court, with Justice White writing for a majority of eight, disagreed. In interpreting statutes that provide for injunctive relief, the Court held, Congress should not be deemed to have restricted the courts' discretion to grant or deny such relief unless such an intent is clearly stated in the statute. The existence of a broad array of civil and criminal penalties in the FWPCA suggested to the Court that flexible and temperate judicial enforcement of the Act was not meant to be hamstrung by a rigid rule.

The importance of the opinion lies in the analytical approach taken by the Court. Under the broad legal standards it set out, it will be difficult to find an environmental statute providing for injunctive relief that precludes the exercise of equitable discretion by the courts.¹³ The next test may come soon after the end of this year.

The Clean Air Act requires state implementation plans (SIPs) to provide for attainment of the national ambient air quality standards by December 31, 1982. As this deadline approaches, questions have arisen regarding its effect on the Environmental Protection Agency's (EPA's) discretion in enforcement proceedings. The Act provides for general areawide sanctions where the standards are not attained by the deadline. It also provides sanctions, including either injunctive relief, or civil penalties, or both, for sources not in compliance with emission limitations, the source-specific regulations intended to bring about attainment, by the deadline for compliance with those limitations. This latter deadline might come earlier than the statutory attainment date, but not later. However, the Act does not clearly indicate if a noncomplying facility may be allowed to operate after the attainment deadline.

EPA recently issued a memorandum¹⁴ outlining its enforcement policy on industrial sources not in compliance by the attainment deadline in which it concluded that Romero-Barcelo supports its new policy to seek "expeditious compliance schedules" in most cases rather than shutdown injunctions. With the district courts' equitable discretion reinforced by Romero-Barcelo, it does appear [12 ELR 10100] unlikely that the Clean Air Act would be interpreted to require immediate shutdown of every source that violates its emission limitations after the deadline. However, there is an important distinction between the type of FWPCA violation involved in Romero-Barcelo and the Clean Air Act violations covered by the EPA policy,¹⁵ so the outcome of this pending controversy is by no means certain.

Military Secrets and NEPA

In Weinberger v. Catholic Action of Hawaii/Peace Education Project,¹⁶ the Navy found itself in the midst of yet another conflict between the need to revent disclosure of military secrets and the public's legislated right to obtain information about the environmental impacts of government actions. The conflict arose because the National Environmental Policy Act (NEPA) requires all federal agencies, including the military, to assess the environmental impacts of their projects and simultaneously to disclose the results of the process to the public.But under the Freedom of Information Act (FOIA), properly classified military secrets, even those within environmental impact statements, may be withheld from the public.

The Navy's problem was that its weapons storage site on the island of Oahu, Hawaii was modified to make it capable of storing nuclear weapons, but for national security reasons it could not publicly disclose whether such weapons were actually to be stored there. People living near the facility feared that the presence of nuclear weapons created a risk of nuclear accidents, in part because of the proximity of three airports, yet the Navy considered only the environmental impacts of the new construction in its public environmental assessment. It would not release an environmental impact statement addressing the nuclear weapons issue or even admit whether one had been prepared.

Justice Rehnquist wrote that because virtually all information relating to the storage of nuclear weapons is classified, an environmental impact statement concerning the weapon storage site is entirely exempt from the public disclosure requirements of NEPA under the military secrets exemption of the FOIA. Thus, the Navy might be required by NEPA to prepare an EIS for internal purposes, but such a document would not have to be disseminated. Nor, it appears, could such a document be the subject of a lawsuit. In other words, the Court explained, as a practical matter in Navy's compliance with NEPA in this case was "beyond judicial scrutiny," a ruling that drew pointed remonstrations from Justices Brennan and Blackmun.They argued that the majority went too far to protect the Navy's secrets, but concurred in the opinion because respondents had failed to establish the existence of a proposal and thus the need for an EIS.

Justice Rehnquist's concern with the need to protect the "national security" suggested to some that Catholic Action opened the door to a large, if not boundless, "national security" exemption from NEPA.¹⁷ But the key issue was not whether NEPA applies to military actions, but the extent to which the EIS process may be modified in order to safeguard national security information protected from public disclosure by the FOIA. In fact the majority strongly suggested that if nuclear weapons were stored at the facility the Navy was obligated to prepare an EIS for its own internal use. Moreover, the impact of the decision is limited to the types of matters, like nuclear weapons storage, about which total secrecy is both required and properly provided for through the classification process. The Court carefully resolved the tension between the dual statutory goals of environmental disclosure and military confidentiality, without limiting the effectiveness of the NEPA process significantly.

The 1982-83 Term

The Court's 1982-83 Term, which began this past October, already promises to be richer in terms of environmental cases than was the last Term. Particularly notable is the number of nuclear cases appealed to the High Court. It has agreed to review three such cases, and five more are on the docket, along with a number of other cases covering the range of environmental law.

The first nuclear power case the Court has scheduled to consider this term is an appeal by two parties¹⁸ of the D.C. Circuit's decision in Sholly v. Nuclear Regulatory Commission.¹⁹ The case involves an attempt by individuals living near the damaged Harrisburg, Pennsylvania Three Mile Island nuclear power plant to obtain a hearing before the Nuclear Regulatory Commission (NRC) prior to issuance of a license amendment authorizing the plant's owners to discharge radioactive gas into the air. The NRC denied the request based on its earlier determinations that the proposed action did not involve "significant hazards" to human health or safety. The D.C. Circuit ruled, however, that § 189a of the Atomic Energy Act (AEA)²⁰ required the NRC to hold a public hearing, if requested, prior to issuing any amendment to a construction permit or operating license. The D.C. Circuit's decision has precipitated considerable congressional interest.²¹ The Senate recently approved a controversial two-year authorization bill for the NRC containing a "Sholly amendment" which would moot the pending Supreme [12 ELR 10101] Court case.²² The bill would allow the NRC to issue amendments to existing nuclear plant licenses before holding public hearings if the NRC had found that a change would present "no significant hazard" to the public.

The Court has agreed to review another nuclear case, the Ninth Circuit's decision in Pacific Legal Foundation v. State Energy Resources Conservation and Development Commission.²³ That decision upheld California's statutory prohibition against nuclear plant construction until a federally approved method of nuclear waste disposal has been developed.The court of appeals read the Atomic Energy Act to evince a clear congressional intent to preempt state regulatory powers in the areas of radiation hazards only, and to preserve the powers of the states to regulate nuclear plants for any other purpose. The moratorium on construction, the court ruled, is aimed not at public safety but at the economic problems associated with the lack of federally approved nuclear waste disposal facilities. And the requirement that utilities submit three alternative sites for proposed plants applies to nuclear as well as nonnuclear plants, and is designed to promote rational land use rather than safety from radiation hazards.

The Court also has been asked to overturn, and has noted probable jurisdiction in, an Eighth Circuit decision. In United States v. North Dakota,²⁴ the court ruled that the United States may acquire waterfowl production areas under the Migratory Bird Hunting and Conservation Stamp Act, with funds from the Migratory Bird Conservation Fund, without state consent and free of state statutory limitations. The Migratory Bird Conservation Act requires state consent for federal acquisition of bird sanctuaries, but the Stamp Act authorizes federal acquisition of waterfowl production areas free of the limitations of the Migratory Bird Act. Thus, the Eighth Circuit found that even though the federal government was using funds collected under the Migratory Bird Act, it was free of the state gubernatorial consent requirement because it was acquiring waterfowl production areas and not sanctuaries under the Stamp Act.

While only four cases have been accepted for review, a number of important environmental decisions are already on the docket for the new Term. The only NEPA case is a nuclear power case also involving the Three Mile Island nuclear power plant. In Nuclear Regulatory Commission v. People Against Nuclear Energy,²⁵ the Court is being asked to consider whether the NRC, before authorizing resumption of electric power production at the sister unit to the damaged reactor, is required by NEPA to consider potential harm to the psychological health of local residents. The D.C. Circuit ruled that NEPA clearly applies to federal actions that affect public health, and that "health" encompasses "psychological" health. Therefore, psychological health effects are fully cognizable under NEPA and cannot be excluded from environmental analysis.The Court distinguished the psychological health impacts from socioeconomic impacts, such as the disruption or public concern caused by the construction of housing projects or prisons, which have been held to be outside the scope of NEPA.If the Court agrees to hear the case, its ruling could clarify a recurring question on the extent to which NEPA requires federal agencies to consider the effects of their actions on people rather than on the natural environment only.

The Court's docket also includes a familiar case, the remand of a D.C. Circuit decision that the Court reversed in 1978 with instructions to reevaluate it on the basis of itsevidentiary support in the record. Once again the D.C. Circuit in Natural Resources Defense Council, Inc. v. Nuclear Regulatory Commission²⁶ invalidated the NRC's "S-3 Table," a generic rule dictating how nuclear reactor licensing decisions take into account the environmental impacts associated with all stages of the nuclear fuel cycle, including the long-term handling and storage of nuclear waste. Unfavorable rulings in any of the nuclear cases could have important implications for the already beleaguered nuclear power industry.

The Court has also been asked to review Mobay Chemical Corp. v. Gorsuch,²⁷ involving a challenge to the data disclosure provisions of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The House of Representatives recently approved amendments to those provisions of FIFRA, which provide a compromise between industry and public interest group needs, but both the House and Senate are still considering other amendments.²⁸ A decision by the Court to accept certiorari in Mobay could further complicate the already controversial actions in Congress. Also on the docket is Public Service Co. of Indiana, Inc. v. Environmental Protection Agency,²⁹ concerning EPA's authority to conditionally approve SIPs. In light of the Court's denial of certiorari in Vavra v. Environmental Protection Agency,³⁰ also involving conditional SIP approval, it is unlikely that the Court will agree to review the case.

In addition to Vavra, the Court has so far in the 1982-83 Term declined to review the D.C. Circuit's decision [12 ELR 10102] in Chemical Manufacturers Association v. Environmental Protection Agency,³¹ concerning judicial review of the national pollutant discharge elimination system portion of EPA's consolidated permit regulations, and Connecticut Light and Power Co. v. Nuclear Regulatory Commission,³² in which the D.C. Circuit approved the NRC's fire protection rule for existing nuclear power plants. It also denied certiorari and a request for a stay of sanctions imposed against the Commonwealth of Pennsylvania in Pennsylvania v. Delaware Valley Citizens' Council for Clean Air³³ for failure to implement an automobile inspection and maintenance program. While the court has denied review in several important cases this Term, the decisions it has already agreed to consider could have significant impacts in the field of environmental law.

1. 11 ELR 20306 (D.C. Cir. 1981), cert. denied sub nom. International Ass'n of Fish and Wildlife, Inc. v. Defenders of Wildlife, Inc., 50 U.S.L.W. 3351 (U.S. Nov. 2, 1981) (No. 80-1997).

2. H.R. 6133, 127 CONG. REC. S11822 (daily ed. Sept. 20, 1982), 127 CONG. REC. H8040 (daily ed. Sept. 30, 1982).

3. A fifth Supreme Court case decided last Term, Watt v. Energy Action Educational Foundation, 50 U.S.L.W. 4031 (U.S. Dec. 1, 1981) involving the Secretary of the Interior's discretion in selecting bidding systems for outer continental shelf oil and gas leases has some environmental implications, but it beyond the scope of this comment.

4. 16 U.S.C. § 2611 et seq.

5. 50 U.S.L.W. 5115, 12 ELR 20749 (U.S. July 2, 1982). See Comment, Commerce Clause Limits States' Ability to Stop Groundwater Exports: Supreme Court Overturns Nebraska Reciprocity Rule, 12 ELR 10083 (Sept. 1982).

6. See Hughes v. Oklahoma, 441 U.S. 322, 9 ELR 20360 (1979) (rejecting ban on interstate transportation of minnows captured in the state); Philadelphia v. New Jersey, 437 U.S. 617, 8 ELR 20540 (1978) (rejecting law that prohibits the importation of solid or liquid waste originating outside the state); Douglas v. Seacoast Products, Inc., 431 U.S. 265, 7 ELR 20442 (1977) (rejecting statute that limits the right of nonresidents and aliens to catch fish commercially in state's waters); City of Altus v. Carr, 255 F. Supp. 828 (W.D. Tex.), aff'd per curiam, 385 U.S. 35 (1966) (rejecting Texas' ban on groundwater exports). But see Baldwin v. Fish and Game Comm'n, 436 U.S. 371, 8 ELR 20425 (1978) (upholding Montana's differential licensing fee structure for nonresidential elk hunters under the Privileges and Immunities Clause not the Commerce Clause).

7. A challenge to New Mexico's law, El Paso v. Reynolds, No. 80-730-HB (D.N.M., filed Sept. 5, 1980, trial on the merits commenced Jan. 11, 1982) is pending in the federal district court in New Mexico.

8. 397 U.S. 137 (1970).

9. Hodel v. Virginia Surface Mining and Reclamation Association, 49 U.S.L.W. 4654, 11 ELR 20569 (1981) and Hodel v. Indiana, 49 U.S.L.W. 4667, 11 ELR 20581 (1981). See Comment, High Court Pens Sweeping Endorsement of Surface Mining Law, 11 ELR 10136 (1981).

10. 50 U.S.L.W. 4566, 12 ELR 20896 (U.S. June 1, 1982).

11. Of the pending environmental issues affected by the negative implications of the Commerce Clause, the most significant are hazardous waste and nuclear waste transport and disposal. See generally Comment, Hazardous Waste at the Crossroads: Federal and State Transit Rules Confront Legal Roadblocks, 12 ELR 10075 (Aug. 1982); Reeves, Inc. v. Stake, 447 U.S. 429 (1980); Philadelphia v. New Jersey, 437 U.S. 617, 8 ELR 20540 (1978); Hughes v. Alexandria Scrap Corp., 426 U.S. 794 (1976).

12. 50 U.S.L.W. 4434, 12 ELR 20538 (U.S. Apr. 27, 1982). See Comment, Supreme Court Declares Injunctions Optional for FWPCA Violations, 12 ELR 10060 (June 1982).

13. But see TVA v. Hill, 437 U.S. 153, 8 ELR 20513 (1978). In that case, the Supreme Court found that the Endangered Species Act (ESA) had foreclosed the exercise of the usual equitable discretion of the federal district courts. The Court in Romero-Barcelo distinguished the FWPCA from the ESA, stating that "the purpose and the language of the [ESA] limited the remedies available to the district court; only an injunection could vindicate the objectives of the Act." 12 ELR at 20540.

14. EPA Memorandum Outlining Enforcement Policy on Industrial Sources Not in Compliance With Clean Air Act by Dec. 31, 1982, Deadline (EPA Administrator Sept. 20, 1982).

15. The Romero-Barcelo violation was essentially a procedural one. The Navy refused to obtain a permit, but its unpermitted "discharge" was found by the district court not to have any detrimental effect on water quality, whose improvement and protection is the fundamental goal of the Act. However, EPA's nonattainment area policy addresses sources emitting more than the law allows in areas with unhealthy air. Such violations contribute, albeit in a trivial or even unnoticeable way in the case of individual small sources, to the failure to achieve the fundamental objectives of the Clean Air Act.

16. 454 U.S. 139, 12 ELR 20098 (U.S. Dec. 1, 1981). See Comment, Nuclear Weapons and "Secret" Impact Statements: High Court Applies FOIA Exemptions to EIS Disclosure Rules, 12 ELR 10007 (Feb. 1982).

17. The decision has already had some impact for a district court in California recently refused to require the Navy to disclose an EIS, if one was prepared, for a nuclear-capable weapons storage facility in that state. See Laine v. Weinberger, 541 F. Supp. 599, 12 ELR 20973 (C.D. Cal. June 18, 1982).

18. NRC v. Sholly, cert. granted, 49 U.S.L.W. 3882 (U.S. May 26, 1981) (No. 80-1640), and Metropolitan Edison Co. v. People Against Nuclear Energy, cert. granted sub nom., 49 U.S.L.W. 3882 (U.S. May 26, 1981) (No. 80-1656).

19. 651 F.2d 780, 11 ELR 20329 (D.C. Cir. 1980).

20. 42 U.S.C. § 2239, ELR STAT. 41238.

21. See generally, Comment, Regulatory Reform Arrives at the NRC: Agency, Congress Act on Licensing Shortcuts, 11 ELR 10176 (1981).

22. See H.R. 2330, 127 CONG. REC. S13051 (daily ed. Oct. 1, 1982). The Supreme Court granted respondents motion for further deferral of oral argument, 51 U.S.L.W. 3172, citing the pending congressional action.

23. 659 F.2d 903, 11 ELR 21070 (9th Cir. 1981), cert. granted, 50 U.S.L.W. 3998.01 (U.S. June 21, 1982) (No. 81-1966).

24. 650 F.2d 911, 11 ELR 20846 (8th Cir. 1981) prob. jur. noted, 50 U.S.L.W. 3695 (U.S. Mar. 1, 1982) (No. 81-773).

25. 12 ELR 20546 (D.C. Cir. May 14, 1982), petition for cert. filed, 51 U.S.L.W. 3151 (U.S. Aug. 30, 1982) (No. 82-358). See Comment, Weighing Human Impacts Under NEPA: NRC to Study Psychological Fallout of Three Mile Island, 12 ELR 10065 (July 1982).

26. 12 ELR 20465 (D.C. Cir. Apr. 28, 1982), petition for cert. filed sub nom. Baltimore Gas and Elec. Co. v. Natural Resources Defense Council, Inc., 51 U.S.L.W. 3261 (U.S. Sept. 24, 1982) (No. 82-524).

27. 12 ELR 20776 (3d Cir. June 22, 1982), petition for cert. filed, 51 U.S.L.W. 3121 (U.S. Aug. 11, 1982) (No. 82-241).

28. See generally, Safir and Davis, Disclosure of Pesticide Safety Data: A Viable Compromise At Last?, 12 ELR 15017 (Oct. 1982).

29. 682 F.2d 626, 12 ELR 20928 (7th Cir. June 25, 1982), petition for cert. filed, 51 U.S.L.W. 3260 (U.S. Sept. 23, 1982) (No. 82-512). See Comment, Circuit Courts Endorse Conditional SIP Approval; Connecticut's Construction Ban Restored, 12 ELR 10055 (June 1982).

30. City of Seabrook, Texas v. EPA, 659 F.2d 1349, 11 ELR 21058 (5th Cir. 1981), cert. denied sub nom. 51 U.S.L.W. 3254 (U.S. Oct. 4, 1982) (No. 81-1828).

31. 12 ELR 20396 (D.C. Cir. Mar. 16, 1982), cert. denied, 51 U.S.L.W. 3258 (U.S. Oct. 4, 1982) (No. 81-2198).

32. 673 F.2d 525 (D.C. Cir. Mar. 16, 1982), cert. denied, 51 U.S.L.W. 3254 (U.S. Oct. 4, 1982) (No. 81-2293).

33. 678 F.2d 470, 12 ELR 20631 (3d Cir. Mar. 16, 1982), request for stay denied, 51 U.S.L.W. 3173 (U.S. Sept. 20, 1982) (No. 82-274 (A-103)), cert. denied, 51 U.S.L.W. 3287 (U.S. Oct. 12, 1982) (No. 82-2331). See Comment, District Court Dodges Constitutional Barriers, Declares Pennsylvania in Contempt for Stalling on Auto I/M, 12 ELR 10027 (Mar. 1982).