Kindling the Environmental ADR Flame: Use of Mediation and Arbitration in Federal Planning, Permitting, and Enforcement

Sandra M. Rennie

Ms. Rennie manages the Toxic and Hazardous Waste Mediation practice at ICF, Inc. She was formerly Administrator for Settlement Development and Mediator at Clean Sites, Inc.

[19 ELR 10479]

It is time to demystify alternative dispute resolution (ADR). The confusion surrounding ADR stems from focusing on its theoretical potential and limitations rather than on its successful application to real-life programs and statutes. Now that there is a growing body of experience with mediation, and to a lesser degree with other forms of ADR,¹ the dialogue should be expanded to include the record and experience of people who are participating in building that record.²

ADR is a catch-all phrase for a variety of techniques and procedures³ used by third-party neutrals to help stakeholders in a dispute find a basis for agreement. As is the case with many good ideas, ADR's premise is simplicity itself: When traditional mechanisms used to resolve conflict fail or are otherwise unsatisfactory, a third party without a stake in the outcome may be involved to provide the needed guidance, communication, and problem solving often necessary to deal with differing interests and values. Environmental mediators are apt to be trained or experienced in the substance of the dispute (unlike judges and juries), which eliminates the need for educating the trier (or finder) of fact.

Like many good ideas, ADR sometimes seems too simple to be worthwhile, but the record reveals that it works.

What is the Record?

No one systematically collects statistics on the use of environmental ADR. Gail Bingham undertook to tally environmental ADR cases through the early 1980s.⁴ She found federal environmental planning and permitting cases, but no enforcement cases. Rarely are these cases publicized, and the essentially private nature of ADR complicates the task of counting cases. In 1989, Bingham told me it would take a month of hard work to identify all that is going on all over the country. Such a tally would be noticeably out of date within three months.

To date, use of mediation and arbitration in environmentalenforcement, planning, and permitting has been modest. Richard Mays has discussed some of the impediments to greater use of these techniques.⁵ However, there have been notable individual successes and one program-wide success. As government, private decisionmakers, and their lawyers are exposed to ADR and learn that ADR may allow greater control of their destiny, it will be used more frequently.

Environmental Enforcement

In 1987, Environmental Protection Agency (EPA) Administrator Lee Thomas issued final guidance on the use of ADR techniques.⁶ In doing so, he stated, "ADR holds the promise of lowering the transaction costs to both the Agency and the regulated community of resolving applicable enforcement disputes…. I view ADR as a new, innovative and potentially more effective way to accomplish [19 ELR 10480] the results we have sought for years using conventional enforcement techniques. We retain our strict adherence to the principle that the regulated community must comply with the environmental laws."⁷

Even prior to the issuance of the ADR guidance, EPA regional enforcement staff had benefited from using ADR. Creative government attorneys in several EPA regional offices found ways to benefit from the use of third-party neutrals in Superfund⁸ cases where the parties subject to enforcement had been using mediation to settle disputes among themselves. For example, I was involved as a mediator in nearly a dozen such cases, and other mediators had similar experiences. Since mid-1987, EPA has initiated formal mediation in one case involving the Safe Drinking Water Act,⁹ and three cases under Superfund.¹⁰ Three of the four cases have settled and Suzanne Ornstein of the Conservation Foundation and I began to mediate the fourth, and largest, in July 1989. EPA has also agreed on at least two occasions to incorporate a mediation clause in a consent decree in a Superfund case that speaks to future disputes.¹¹ A similar ADR clause recently has been negotiated between EPA and a party in a Resource Conservation and Recovery Act case.¹² EPA contemplates more agency-initiated ADR proceedings and has put in place a contract to facilitate paying its share of the cost.

The Superfund Example: Why Alternative Dispute Resolution Works

Unlike most other environmental areas, the use of ADR in Superfund cases has become almost commonplace, instigated by the potentially responsible parties (PRPs) rather than by EPA. Since 1984, parties at approximately 70 sites have voluntarily used the assistance of mediators. Most mediations have been performed by practitioners at ICF Incorporated or Clean Sites. In at least one instance,¹³ a federal district court actively pushed the parties to use mediation to allocate liability among themselves.

Arbitration has been employed at least four times¹⁴ and the mini-trial at least once.¹⁵ Arbitration and mini-trials have been handled primarily by active members of the private bar, each of whom has served once or twice.

The use of ADR has directly or indirectly resulted in administrative orders on consent, or actual consent decrees, in approximately 30 cases. Most of the remaining cases are currently in progress.

An analysis of the use of ADR in Superfund cases provides insight into ADR use in other types of environmental cases. Six circumstances help explain why mediation has proven so useful in the Superfund situation:

Superfund Provides Disincentives to Litigate

CERCLA's strict and joint and several standards leave little opportunity to escape from liability and increase the anxiety associated with losing since EPA typically sues only a portion of the PRPs at a site.

Complex Cases Benefit From a Third-Party Helper

Joint and several liability of the parties inherently inhibits open sharing of the information often necessary to agreement. Negotiation without a third party works much better between two or a small number of parties than between scores of parties. Environmental mediators practicing in Superfund cases tend to be very experienced with environmental issues.

The Superfund Program Meets the Settlement "Ripeness" Test

Litigating Superfund cases is increasingly less appealing because most of the "big" legal questions have been answered or clarified. Escape from liability for reimbursement costs incurred by the government is rare. Winning on the "smaller" legal questions (e.g., can the JusticeDepartment simultaneously represent a federal agency PRP defendant and sue as plaintiff¹⁶) may be costly without effect on liability.

EPA's Recent Use of Its Unilateral Order Authority is Driving Parties to Settlement

Superfund §§ 106 and 107(c)(3) provide for penalties of up to $ 25,000 per day and treble damages. The discrepancy between EPA's use of the revolving fund that finances cleanup and its actions to recover costs from PRPs have raised congressional concerns and resulted in EPA's increased use of its unilateral order authority.

Circumstantial Aspects of Hazardous Waste Sites Benefit From Mediation as a Case Management Tool

Complexity is inherent in Superfund cases due to the many issues and parties involved. This type of complexity is managed by the usual techniques for information management and negotiation. The complex circumstantial nature of the factual basis used for allocating costs among PRPs, threshold liability determinations, and technical and scientific issues concerning remediation, is the most powerful reason for using a mediator in Superfund cases. Because [19 ELR 10481] these sites operated many years ago, frequently the best that one can do to recreate the facts is to establish what probably happened, rather than what did happen. Beyond a reasonable doubt gives way to "this makes most sense." Cause and effect relationships between waste streams going to the site, their fate, and consequences with respect to environmental remediation reflect substantial scientific uncertainty.

Mediation's Flexibility is Appropriate to Superfund

Mediation is a flexible process and mediators generally approach their assignments prepared to do whatever is necessary to help break an impasse. This flexibility fits well in Superfund cases, whose complexity provides a number of potential stumbling blocks that may affect negotiations among the parties¹⁷ long before they are ready to entertain settlement negotiations with the government. The specific techniques used are custom designed to the case, and the Art of the Possible is the focus.

Types of ADR Services in Superfund Cases

Organizations of Large Groups of PRPs

The controversies in which PRPs seek the assistance of mediators have changed over time. In 1984-85, the cooperating groups sought help merely in organizing themselves. Mediator Lauren Rikleen organized and led a series of large and small meetings over a six month period to help parties at the Lowry Landfill site near Denver understand Superfund, and identify and elect representatives who would participate in a series of committees to conduct the business of approximately 300 PRPs at the site. She helped set agendas, maintained a mailing list, prepared and communicated status reports, provided process advice, and shuttled between representatives of industry, local government, and small business PRPs identifying issues and forging consensus on how to proceed.

Today disputes rarely arise over representation and organization, and mediators infrequently provide the type of service so critical at the Lowry site.¹⁸ However, administrative assistance in cases with a very large number of parties continues to be of help.

Now, two aspects of Superfund cases have become almost standard components of appropriate and useful mediator assistance, and a third is a frequent focus. Standard assistance includes allocating costs and completely identifying PRPs not noticed by EPA. Facilitating discussions between EPA and PRPs on the technical aspects of remediation is often sought.

PRP Identification and Cost Allocation

Identifying all of the PRPs and allocating costs among them frequently go hand in hand, because finding and organizing evidence on one is also material to the other. EPA typically helps the PRPs get started in the process by providing a preliminary list of waste transactions involving the site and a preliminary list of PRPs. Faced with a need to complete identification of PRPs and allocate costs, PRP groups frequently turn to a mediator to function as a neutral gatherer and analyst of pertinent factual information. When a company has been fingered by other parties seeking to spread their own liability the fingered party's acceptance of a share of Superfund site liability is a painful and aggravating process. Knowing that the investigation and document analysis has been conducted under the direction of a third-party neutral with no stake in the outcome makes the outcome a little more acceptable, often making the difference between an individual PRP's voluntary participation and its refusal to participate. Similarly, it makes the difference to a PRP group's ability to muster a critical mass of participation to enable it to make a settlement offer to the government.

When I mediated the Pollution Abatement Services (PAS) case,¹⁹ the first task was to create an environment and forum conducive to an open exploration of the facts and positions of the parties. The PAS case was characterized by a large volume of documents that described in vivid detail how the owner-operator had handled and disposed of a variety of wastes. Among these documents were some describing transactions of the owner-operator and various generators, haulers, and middlemen. EPA agreed to let the parties look at the documents in its regional office, a difficult task because they were unorganized and stored in 27 cardboard boxes. Upon gaining the confidence of the EPA site manager and developing a procedure to maintain chain of control over the documents while at our disposal, we copied, organized, and prepared a summary of their contents. For the first time since the case began two years earlier, the parties could comprehensively review the evidence against them.

The mediation team subsequently analyzed the documents to determine who might have sent what waste to the site. This task was complicated because PAS had, unknown to its customers, transshipped waste to eight other sites and had operated an incinerator that was known to have burned much of the waste. Many parties claimed their waste was incinerated and no one was willing to pay at nine sites for cleaning up each drum of waste. I helped the PRP Steering Committee to formulate, analyze, and test options for allocating costs. Some components of the favored approach required EPA's participation, so I shuttled back and forth between EPA and the parties to facilitate agreement. The work of cost allocation had identified about 20 new parties, raising the total PRP group to over 100. My job then turned to explaining the cost allocation and status of negotiations to these new parties as well as to the dozens of parties not actively participating. EPA and the Steering Committee reached agreement and all but one party signed the consent decree on the $ 12 million cost recovery action.

Often the mediator does not work alone to accomplish the objective, but rather is the "generalist" who defines the needs, assembles the team, manages the analysis, and then facilitates negotiation that makes the best use of [19 ELR 10482] available information. A successful environmental mediator is supported by computer experts, scientific or technical experts, and data entry and clerical personnel. Former Clean Sites mediators have written expansively on cost allocation techniques,²⁰ including sophisticated computer applications to analyze vast quantities of disparate information and technical expertise to interpret scientific detail. The skilled mediator adds to these a healthy dose of plain old fashioned "moxie" to solve problems creatively. Determining what is possible includes what is practical within EPA's enforcement responsibilities, but not what is legally possible. That task is handled by counsel for the PRPs and the government.

Technical Aspects of Remediation

As parties to Superfund actions negotiate to perform technical studies and cleanups, disputes sometimes arise that call for the help of a mediator. I have assisted in successful negotiations between EPA and parties on the use of innovative technology and end-of-treatment criteria. Other mediators have addressed remedy selection. A group of large corporations²¹ who are PRPs at many Superfund sites recently suggested to EPA that a national technical panel be established to review industrial disputes, and that EPA technical representatives should serve as mediators to resolve site specific disputes.

Other EPA Enforcement

EPA's attitude toward ADR is innovative but its implementation has been cautious. During fiscal year 1988, EPA referred a record 372 civil cases to the U.S. Department of Justice, while state environmental agencies referred 904 civil cases to state attorneys general for prosecution.²² Over the four-year period ending in 1988, EPA referred 1,545 civil cases to the Justice Department.

But despite this massive number of cases entering the enforcement pipeline, relatively few are coming out the other end. In the same four-year period ending in 1988, only 250 judicial consent decrees were signed. Settlement of every formally mediated case is an encouraging sign, but other cases that meet the criteria for mediation and have been proposed for mediation by the regulated community have been rejected out of hand by EPA.

Environmental Planning

A second active area of ADR in a federal environmental context arises out of the government's planning obligations. One of the more consistently contentious planning activities of the federal government is the adoption of forest management plans²³ by the U.S. Forest Service. Centered on the 156 national forests throughout the country, the plans seek to balance timber and range management with recreational use and environmental conservation goals. Conservation and off-road vehicle organizations have appealed 89 of 92 final plans issued.

In early 1988, the Forest Service first used mediation to resolve a dispute with environmentalists and lumber companies over plans to harvest fire-damaged timber on one ranger district in the Klamath National Forest in California. Agreement was reached, an appeal by the Sierra Club and a local conservation group was withdrawn, and the dead trees are being logged. Even though participants voiced uncertainties in implementing the agreement and neither side got everything it wanted, the Forest Service representative observed that without mediation the plan to log the timber would be stuck in the administrative appeals process or in litigation. Adjacent ranger districts with similar tracts did not join the mediation, and their proposed logging plans have been appealed, there has been discussion of litigation, and the dead trees still stand in the forest.

Based on the success of the ranger district that entered into mediation, the Forest Service undertook to pre-qualify a roster of mediators to be available generally to mediate future forest planning disputes. This promises to be a growing area for ADR.

Environmental Permitting

Few members of the environmental bar know that the permit that was the focus of the Scenic Hudson case,²⁴ one of the watershed environmental disputes of the 1960s and 1970s was resolved in mediation. This fact is due, in large part, to the essentially private and low-key nature of ADR implementation.

In Scenic Hudson, the Federal Power Commission (FPC),²⁵ was petitioned by Consolidated Edison (Con Ed) for a hydroelectric facility permit on the Hudson River in New York. EPA had the duty of evaluating the effect of the proposed Storm King power plant, together with several other plants both up and down stream, on the fish in the river. The dispute focused on differing scientific views of the impact of thermal pollution on the fish. EPA's discharge permits required that cooling towers be built, but the utilities contended they were not necessary. EPA saw the issue as a test of its will to enforce the new law, while the utilities saw the issue as economic and properly left to their discretion. After nearly 14 years of skirmishing, including multiple lawsuits, resolution of the substantive issues was still pending. Finally, Con Ed took the initiative to seek mediation of the dispute. Russell Train, a former EPA administrator, was selected as the mediator. The parties to the mediation included Con Ed, other utilities, New York state agencies including the Attorney General's office, EPA, public interest organizations and sportsmen. The mediation lasted 16 months and was tenuous at times, but ultimately ended in an agreement among all the parties. A [19 ELR 10483] third-party neutral focusing on the substance of the dispute had accomplished in 16 months what the courts could not achieve in over 14 years.²⁶

Lessons Learned

The lawyer who contemplates using ADR must answer three probably unfamiliar questions: how to select appropriate cases; which ADR process to use; and where to find a qualified neutral.

Selecting Appropriate Cases

The vast majority of all disputes are settled by unaided negotiation between the parties. Some observers estimate about 90 percent settle without negotiation. Michael J. Walker, Assistant Enforcement Counsel at EPA, has noted that during fiscal year 1987, EPA referred 304 civil cases to the Justice Department under all pollution statutes administered by EPA, but filed 3,200 administrative complaints or orders.²⁷ With numbers like these, even a few percentage points represent a lot of cases that would benefit from the assistance of a third-party neutral.

A relationship exists between regulatory program maturity and incentive to settle. Immature programs are almost always tested in court by the regulated community or the public. Despite an overwhelming judicial trend to uphold the government's position (except to agree occasionally with citizens who complain that the government has been lax), the regulated community is usually willing to sue if it believes that the government has gone too far. Complex cases, particularly those involving multiple parties, rarely settle quickly. As a program matures and the big legal questions appear to have been answered, the incentive shifts. Companies weighing their chances of prevailing in court against the cost of litigating become more interested in settlement. Any real preference to litigate at this point tends to reflect one of three circumstances: a belief the agency has erred in its substantive analysis or abused its administrative discretion; an unsophisticated understanding of the probable chances of winning decisive victory; or habitual preference to "go for broke." It is the first of these three that provides particularly fertile ground for the use of ADR.

Once the primary decision has been made to negotiate, the issue is whether and when to use a third-party neutral to help. The parties should consider how much time they have to negotiate, the volume and nature of factual information that may bear on decisionmaking, the degree to which reasonable people might disagree on the interpretation of that information, whether additional investigation might be beneficial, the likelihood of reaching unassisted agreement, and whether a binding result is desired.

Mediation Versus Arbitration

ADR overwhelmingly focuses on the factual (not legal) basis of the dispute. The mediator may preside over a formal process focused on neutral fact-finding, information sharing, or negotiation. The mediator may play a less central role, perhaps best likened to that of a parlimentarian who keeps the process moving. Most mediation is nonbinding and the result depends on voluntary agreement, although execution of the agreement may have legally enforceable components built in.

The arbitrator typically receives records and other case documents from the parties together with a brief from each. The arbitrator may seek other information directly or via a third party reporting to the arbitrator. A hearing of the parties may or may not be held. The arbitrator's decision typically does not include a statement of explanation, and may or may not include a provision for appeal. Arbitration may be useful when time is short, facts are subject to wide interpretation, and the parties seriously doubt they will agree voluntarily. Arbitration is usually the preferred process when a binding result is desired.

Qualified Neutrals Are Available to Help

Several professional organizations maintain lists of qualified individuals or organizations of neutrals. These include the American Bar Association Standing Committee on Dispute Resolution, the American Arbitration Association, the National Institute of Dispute Resolution, and others. The Administrative Conference of the United States is designing procedures for compiling a roster for federal agency use. The Center for Public Resources, an organization supported by some corporations, maintains a roster of distinguished lawyers, retired judges, and law school deans. For example, a local roster recently assembled in Washington, D.C., includes former Chief Justice Warren Burger and former Senator Charles C. Mathias. Gail Bingham, of the Conservation Foundation in Washington, D.C., has served as an informal referral source to environmental mediators all over the country. Clean Sites is a non-profit company specializing in Superfund mediation, and ICF includes within the scope of its business interests professional mediation services on Superfund and other cases. One- and two-person mediation practices exist in many major cities. Among the notable university-sponsored mediators are the Harvard-MIT Negotiation Project, and projects at the Universities of Washington and Virginia.

ADR in the Future

One of the changes that has occurred during the past five years is the dramatic increase in effective use of environmental ADR by large corporations. Bingham found that the companies that have taken advantage of environmental dispute resolution alternatives for site-specific disputes have, with few exceptions, been either small companies such as housing and shopping center developers, sand and gravel operations, fishing businesses, and outdoor recreation outfitters, or medium-sized companies such as utilities, hazardous waste facility operations, mining companies, [19 ELR 10484] and timber companies.²⁸ Since 1984, a majority of the Fortune 100 companies have used mediation or arbitration in Superfund enforcement cases.

The American Bar Association's Standing Committee on Alternative Dispute Resolution is now publishing a 20-page quarterly newsletter that informs lawyers of the range of cases in which ADR has been used successfully as well as courses and seminars to help lawyers to use ADR and to function as third-party neutrals.

This year the first mediated toxic tort case²⁹ was settled in Massachusetts. This $ 2.75 million settlement included compensation to 35 residents and to the state for certain clean-up costs at the Billerica Street hazardous waste site. The agreement was mediated to conclusion in less than six months and offers yet another model of successful ADR use.

Experience with ADR is growing, is generally positive, and more private sector lawyers are willing to experiment with it in an increasingly broad range of cases. The mystery believed to surround ADR is giving way to tangible benefits. In addition, the federal government's early experiences have been positive. These circumstances invite a prediction of substantial growth in ADR as a case management tool.

1. Negotiated rulemaking, a very public and successful form of ADR, has been adequately reported and analyzed elsewhere and will not be discussed here.

2. To date, discussion on the use of ADR in environmental enforcement, planning, and permitting has focused primarily on its potential, and includes: Mays, Alternative Dispute Resolution and Environmental Enforcement: A Noble Experiment or a Lost Cause?, 18 ELR 10087 (1988) [hereinafter Mays I]; Brunet, The Costs of Environmental Alternative Dispute Resolution, 18 ELR 10515 (1988); Mays, ADR and Environmental Enforcement: Myths, Misconceptions, and Fallacies, 19 ELR 10099 (1989); Cohen, Allocation of Superfund Cleanup Costs Among Potentially Responsible Parties: The Role of Binding Arbitration, 18 ELR 10159 (1988); Riesel, Negotiation and Mediation of Environmental Disputes, 1 OHIO J. OF DISPUTE RESOLUTION 1 (1985); Wald, Negotiation of Environmental Disputes: A New Role for the Courts?, 10 COLUM. J. ENVTL. L. 1 (1985); Yost, Public Environmental Responsibilities — Trends Toward Private Implementation, NAT'L ENVTL. ENFORCEMENT J., Feb. 1987, at 3.

3. The ADR continuum of techniques includes collaborative problem solving/conciliation, mediation, and arbitration. Mediation and arbitration have produced several progeny, such as the mini-trial, summary jury trial, and facilitation. For simplicity, this Article draws a primary distinction between consensual, nonbinding processes (such as mediation) and binding processes (such as arbitration).

4. G. BINGHAM, RESOLVING ENVIRONMENTAL DISPUTES: A DECADE OF EXPERIENCE (1986).

5. Mays I, supra note 2. Mays identified impediments to greater use of ADR from the government's perspective, including fear of losing control, the lack of understanding/training about ADR, and the mission, macho, inertia, turf, and legal/programmatic factors. Impediments from the private sector's perspective include the hired gun, financial, benign client, and bottom-line factors.

6. U.S. Environmental Protection Agency, Guidance on the Use of Alternative Dispute Resolution in EPA Enforcement Cases (Aug. 6, 1987), ELR ADMIN. MATERIALS 35123.

7. Memorandum From Lee M. Thomas, Administrator, EPA, To Assistant Administrators and Regional Administrators, Re: Final Guidance on Use of Alternative Dispute Resolution Techniques in Enforcement Actions (Aug. 14, 1987).

8. Superfund is the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA 001-075.

9. 42 U.S.C. §§ 300f-300j-26, ELR STAT. SDWA 001-024. The enforcement action was against the City of Sheridan, Wyoming.

10. The three cases involved: the City of Youngstown, Ohio (referred to the DOJ); Spectrochem; and Greiner's Lagoon, Ohio. The first two settled in early 1989, and the third is currently in mediation.

11. Administrative Consent Order, Hassayampa Landfill, February 19, 1988; Consent Decree, Lowry Landfill (1989).

12. The negotiation involved the Kimberly Clark Corporation.

13. United States v. Price, 577 F. Supp. 1103, 13 ELR 20843 (D.N.J. 1983).

14. Wauconda Sand & Gravel site (Ill.), EPA ROD digested at ELR ADMIN. MATERIALS 30043; Hardage site (Okla.), EPA ROD digested at ELR ADMIN. MATERIALS 30132; Bayou Sorrel site (La.), EPA ROD digested at ELR ADMIN. MATERIALS 30131, and cf. Gaynor, Stipulated Penalties and Dispute Resolution in CERCLA Consent Decrees: Practical Innovations Can Benefit Everyone, 18 ELR 10155 (1988); and the MOTCO site (Tex.), EPA ROD digested at ELR ADMIN. MATERIALS 30020.

15. United States v. Goodyear Tire & Rubber Co., No. CIV 88 1443 PHX EHC (D. Ariz. Sept. 6, 1988).

16. Colorado v. United States Department of the Army, 707 F. Supp. 1562, 19 ELR 20815 (D. Colo. 1989).

17. The overwhelming majority of assisted Superfund cases have involved multiple parties.

18. Except to the extent PRP groups require administrative assistance, e.g., maintenance of address lists, status reports. Although mundane, these tasks enable otherwise busy representatives of PRP entities the communication absolutely essential to eventual agreement among the PRPs.

19. United States v. Pollution Abatement Services of Oswego, Inc., 763 F.2d 133, 15 ELR 20543 (2d Cir. 1985). See also, PAS Oswego site (N.Y.), EPA ROD digested at ELR ADMIN. MATERIALS 30012.

20. Krickenberger & Berman, Allocation of Superfund Site Costs Through Mediation, 2 TOXICS L. REP. (BNA) 543 (1987); Krickenberger & Rekar, Superfund Settlements: Breaking the Logjam, ENV'T REP. (BNA) 2384 (1989).

21. This group of corporations includes Conoco, Monsanto, Union Carbide, and several other large companies.

22. Environmental Protection Agency press release (Dec. 8, 1988). Of EPA referrals, 114 were under Superfund; 29 under the Resource Conservation and Recovery Act; 110 under the Federal Water Pollution Control Act; 13 under the Safe Drinking Water Act; 50 under the Clean Air Act; 12 under the Toxic Substances Control Act; and 2 under the Federal Insecticide, Fungicide, and Rodenticide Act.

23. Forest plans are required by the National Forest Management Act, Pub. L. No. 94-588, 90 Stat. 2949, 16 U.S.C. §§ 1600-1614, ELR STAT. NFMA 001-012.

24. Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F.2d 608, 1 ELR 20292 (2d Cir. 1965).

25. Predecessor to the Federal Energy Regulatory Commission (FERC).

26. The litigative value of the Scenic Hudson case is not questioned here; it established important legal precedents that have clarified subsequent litigation. One might say, however, that the substantive issues, and certainly the proposed development project, were the guinea pigs used to design legal parameters for subsequent case law. When these decisions were rendered, the substantive issues (and the case) still awaited resolution.

27. Walker, High Stakes on a Fast Track: Administrative Enforcement at EPA, FED. B. NEWS & J., Dec. 1988, at 453.

28. BINGHAM, supra note 4.

29. Baehr v. Colonial Gas Co., No. 89-3659, Middlesex County (June 5, 1989).