Environmental Legislation Passed by the 93rd Congress: A Reivew

The 93rd Congress produced a number of eleventh hour surprises to brighten what otherwise would have amounted to a discouraging environmental legislation scorecard. In particular two major acts, the Deepwater Port Act and the Safe Drinking Water Act, combine stringent environmental protection provisions with strong citizen suit and award-of-fee sections, making both fields fertile for public interest and environmental litigation. Federal jurisdiction is accorded under both laws for actions to compel the responsible federal officials to perform duties required under the act and to keep to the statutory timetables, as well as for actions against alleged polluters of drinking water or the seas around deepwater port facilities.

In other areas, including energy, air pollution, and land use, the results were mixed. After former President Nixon's resignation ended the congressional preoccupation with impeachment, a number of environmental bills saw action, and by the time the session terminated in December, more than a dozen [5 ELR 10021] significant pieces of environmental legislation had been passed. On balance, the gains seem substantial, and do not deserve to be entirely overshadowed by the two broadly publicized defeats, the failure of the House to vote on national land use legislation, and the President's veto of the strip mining control bill. This Comment analyzes the environmental gains and defeats of the 93rd Congress and looks briefly at the results of the November elections and the consequent prospects for environmental legislation in the 94th Congress.

The Deepwater Port Act of 1974¹

Passed during the final days of the 93rd Congress and signed into law on January 3, 1975, the Deepwater Port Act establishes a federal program for licensing the ownership, construction and maintenance of terminals on the high seas outside the territorial 3-mile limit for unloading oil and gas via ocean-bottom pipelines to receiving facilities on shore. The Act assigns primary responsibility to the Secretary of Transportation, and within the Department of Transportation to the U.S. Coast Guard. However, it also accords a veto power to affected states. Strict environmental and liability provisions are written into the law.

Deepwater ports are necessary if the East and Gulf Coast states are to accommodate large tankers, including supertankers to which the world's oil and gas shippers are now turning.² While these tankers number only 10 percent of the current world fleet, they carry 40 percent of the crude oil shipped. Congressional estimates that the U.S. will need to import substantial amounts of oil at least until 1985 are in accord with the energy supply forecasts in the President's State of the Union Message. Alternative methods of shipping this oil and transferring it to the shore present environmental risks viewed by some, including the Council on Environmental Quality,³ as greater than those of the supertanker/deepwater port alternative.

Recognizing that authorizing the supertanker/deepwater port alternative creates the potential for a superspill, Congress included a number of provisions to minimize this hazard and to mitigate the consequences of spills which do occur.⁴ The Act expressly classifies deepwater ports as "new sources," as defined under the Federal Water Pollution Control Act of 1972, for the purpose of requiring that ports make use of the best available technology. Adjacent states, defined essentially as those states subjected to any environmental risk by a proposed facility, are granted an explicit veto power, or alternatively may require the Secretary to add terms to proposed licensing provisions to make them consistent with state programs relating to environmental protection, land and water use, and coastal zone management. Environmental impact statements, which would probably be required in any event, are explicitly mandated. Moreover, this statement and the application from a prospective licensee are to be subjected to a further environmental review according to comprehensive criteria to be established by the Secretary under § 6 of the Act. The Secretary is also charged with issuing and enforcing regulations governing vessel movement, markings, loading and unloading, training of personnel, etc., to reduce the potential for pollution of the marine environment and to facilitate the clean-up of any pollutants which may be discharged.The states are not pre-empted under the Act from issuing and enforcing regulations more stringent than those established by the federal government. The oil spill reporting and clean-up requirements in the Act are patterned on those in the Federal Water Pollution Control Act, and a liability fund, patterned after the Trans-Alaska Liability Fund, is established for damages to any person resulting from a spill from any part of the facility or from a vessel in a designated safety zone around the facility.

The Act's citizen suit provision empowers any person to bring an action for equitable relief in his own behalf in federal court, regardless of citizenship or amount in question, and authorizes the court to allocate reasonable attorney and expert witness fees as it deems appropriate. Citizen suits may not be filed prior to sixty days after the plaintiff has given notice of a violation to the Secretary and to any alleged violator, or if the Secretary or Attorney General is diligently prosecuting a civil or criminal action on the same question (in which case any person may intervene as a matter of right). The criminal penalties provided in the Act are stiff: willful violators of any provision of the statute or of any rule, order or regulation issued under it may, on conviction, be fined up to $25,000 for each day of violation or imprisoned for up to a year, or both.

Under § 14 of the Act, the public, including potential litigants, is accorded broad rights of access (with very narrowly drawn exceptions) to all information in the hands of federal agencies concerning deepwater ports and applications to construct them.

The Safe Drinking Water Act⁵

After four years of delay at different stages of consideration in the Congress, a federal program to improve [5 ELR 10022] the quality of drinking water is now a reality. The triggering series of events took place in the first week of November 1974, when both the Environmental Defense Fund and EPA released alarming studies confirming the presence of carcinogens in drinking water. The impact and timing of these events were such that even the strong environmental provisions opposed by the Office of Management and Budget (OMB) sailed through Congress and the White House unscathed. Passed over OMB objections were (1) a strong citizen suit provision; (2) grants of federal funds for state programs; (3) a program for controlling pollution of underground water supplies; and (4) a strong federal back-up role in enforcing the program.⁶

The Act requires that EPA propose interim national primary drinking water regulations by the end of March, 1975, and issue them in June 1975, with a December 1976 effective date. The standards are to specify maximum contaminant levels or treatment techniques for all contaminants, including "any physical, chemical, biological or radiological substance or matter," which may have any adverse health effect, and are to apply to all public water supply systems. Based on a further study, to be completed within two years by the National Academy of Sciences or another independent scientific research organization, EPA must issue revised primary standards, also meeting a timetable set forth in the statute. Secondary drinking water standards affecting welfare (governing such qualities as odor and color) are to be issued within a year from the date of enactment (i.e., by December 16, 1975). Once enacted, all standards must be upgraded "whenever changes in technology, treatment techniques, and other means permit greater protection of the health of persons." All regulations must be subjected to a review once every three years, regardless of any interim amendments issued. The Act provides for variations and exemptions from the standards at state initiative to meet problems in particular localities, but only according to a detailed set of substantive and procedural requirements. After a state's program wins EPA approval, the state will assume primary enforcement responsibility, the federal government retaining authority to intervene only if a state abuses its enforcement authority. Public water systems are required to notify the media and their consumers of any violations of the standards. Unlike the Federal Water Pollution Control Act, the Safe Drinking Water Act does not provide the EPA Administrator with authority to issue administrative orders to enforce federal standards and regulations issued under the Act, but EPA is authorized to initiate civil actions where it finds violations of the standards and fines up to $5000 per day may be levied on violators.

All aspects of the program are also subject to enforcement by citizen suits in federal court without regard to citizenship or amount in controversy, limited only by the usual citizen suit restrictions (that suit may not be filed until 60 days after notification of the Administrator and other affected parties, nor may it be filed if the Administrator or the Justice Department is "diligently prosecuting" its own enforcement action) and by a 27-month moratorium on suits against public water systems. The citizen suit section also provides for awards of attorneys fees by the court.⁷

Because of increased instances of contamination of water supplies resulting from disposal of wastes through ground injection, the Act includes a special authority for EPA, empowering it to require particular states to initiate a program of underground injection control, based on a permit system, direct regulation, or other system selected by the state.

The Act also empowers the EPA Administrator to "take such actions as he may deem necessary" in an emergency involving "imminent and substantial endangerment" to a public water supply. In the event of such an emergency, the Administrator is to consult with local officials with regard to the information on which the proposed emergency action is based.

In one particularly innovative section, the Act includes a "whistleblower's" protection provision, making it unlawful for an employer to discharge or otherwise discipline an employee who aids in the enforcement of the Act by bringing suit, reporting information, or testifying in any proceeding relating to violations of the Act. The Secretary of Labor is to establish a mechanism for processing employee complaints under this section of the Act.

Energy Legislation

Energy legislation, while as yet not generating the same kind of federal programs with specific provisions enforceable by citizen suits, is nonetheless of critical importance to the environmental bar, since such a high proportion of environmental pollution is related to energy production, and federal energy programs in one form or another thus will undoubtedly become the subject of future litigation.

A multitude of energy-related measures, 43 in all, passed the 93rd Congress and became law, including several major bills.⁸ While they do not yet add up to a [5 ELR 10023] coherent national energy policy, several significant trends are discernible.

One such development was a questioning of the standards and timetables set forth in the Clean Air Act Amendments as they affect energy production. The prime example was the Energy Supply and Environmental Coordination Act of 1974 (ESECA),⁹ which amends the Clean Air Act, but does so in rather tentative and limited ways. Two principal objectives of ESECA, to facilitate the conversion of power plants presently burning oil and gas to the use of coal, and to relax air pollution restrictions on power plants burning coal, are thoroughly explored in a November 1974 ELR Article by William Pedersen of EPA's Office of General Counsel.¹⁰

Three additional major energy bills which were enacted address the problem of executive branch organization to deal with the energy crisis. One created the Federal Energy Administration,¹¹ a second abolished the old Atomic Energy Commission and replaced it with an Energy Research and Development Agency (ERDA) and a separate Nuclear Regulatory Commission (NRC),¹² and the third set forth extensive energy research priorities for ERDA and authorized the appropriation of funds for energy research.¹³

Another clearly discernible trend among the numerous energy-related acts is a growing interest in research, development, and demonstration directed at non-nuclear and non-depletable sources of energy. Of particular significance is the Federal Nonnuclear Energy Research and Development Act of 1974, signed into law on December 31, 1974.¹⁴ It calls for a commitment to the development of non-nuclear energy technologies "similar to those undertaken in the Manhattan and Apollo projects," and sets forth the ERDA administrator's duties and authorities. The Administrator is required to follow a set of "governing principles," outlined in the Act, first of which is energy conservation, defined as both improvement in the efficiency of energy production and reduction of waste in energy usage. The Administrator is to transmit to Congress by June 30, 1975, a comprehensive plan and a detailed implementation program for energy research, development and demonstration.The plan is thereafter to be revised annually.

The Nonnuclear Energy Act requires the Council on Environmental Quality to hold annual hearings on the conduct of energy research and development programs and the probable environmental consequences of trends in the development and application of energy technologies, and to report findings to the President and to ERDA. Special attention is accorded in the Act to patent policy, relationship to anti-trust laws and to an evaluation of water resources necessary to the development of non-nuclear energy sources. It should be noted that the development of solar, geothermal and other non-petroleum based energy sources is likely to become more attractive economically, if the increase in tariffs on imported oil ordered by the President results in the expected price rise for all crude-oil based forms of energy.

The trend away from nuclear and fossil fuel energy is also marked by a pair of acts establishing federal Coordination and Management Projects for solar and geothermal energy research and development and demonstration, which became law late in the session.¹⁵ Both are based on congressional findings that commercial application of these energy sources is an urgent need, and that federal assistance in developing the appropriate technologies for such application is in the federal interest. The Nonnuclear Energy Act orders the Administrator of ERDA to incorporate these Coordination and Management Projects into ERDA's overall program. Further evidence of this trend was the creation of a new program to be shared jointly by HUD and NASA to develop and test heating and cooling systems powered by solar energy.¹⁶

Despite these gains in energy legislation, the Congress has yet to face many major energy issues, and the programs proposed by the President in his State of the Union message will require the 94th Congress to consider a number of energy-related questions. Among the major energy-related programs the President has proposed for congressional consideration are amendments to ESECA to increase the number of power plants that can promptly be converted to coal, enactment of a windfall profits tax directed at oil and other energy companies, a program to expedite nuclear plant licensing and rapid selection of sites, thermal efficiency standards for buildings, and a five-year moratorium on [5 ELR 10024] emissions standards for new vehicles beginning with the 1977 models.

Wilderness and Parks

Conservationists scored major gains in new laws creating and enlarging national preserves and wilderness areas. Among these are the 1974 amendments to the Wild and Scenic Rivers Act,¹⁷ which authorizes funds to study 29 rivers for inclusion in the National Wild and Scenic Rivers System and appropriates further funds for acquiring land along the St. Croix River in Wisconsin; the Big Cypress National Preserve Act¹⁸ (570,000 areas in Florida); the Big Thicket National Preserve Act¹⁹ (84,500 acres in Texas); and Cuyahoga Valley National Recreational Area Act²⁰ (upstream from the section of the river whose pollutants used to catch fire); the Eastern Wilderness Areas Act²¹ (16 new wilderness areas and 17 wilderness study areas in the eastern United States); and the Omnibus Wilderness Act²² (adding 17 other wilderness areas to the wilderness system). A number of other measures, which sought to establish similar preserves elsewhere, failed.

Other New Laws

Congress voted in late November to override President Ford's veto of strengthening amendments to the Freedom of Information Act.²³ The amendments require a speedy agency response to public requests for information (10 days to respond to an initial request, 20 days to an appeal of an agency denial). They also eliminate some of the past problems of bringing suit against an agency to force disclosure by: (1) requiring district courts to grant priority on court dockets to Freedom of Information Act actions and to grant them expedited treatment in any other way possible; (2) by requiring agencies to submit disputed material to the court in certain cases for in camera examination; (3) by placing the burden of the agency to justify its denial of the request for information; (4) and by providing that fees, including attorneys' fees, may be assessed against the United States in cases where the plaintiff substantially prevails. This last provision is a major congressional move to eliminate the prohibition, codified at 28 U.S.C. § 2412, against awards of attorneys' fees in suits against the government. The amendments also seek to discourage individual federal officials from withholding information unreasonably, by charging the Civil Service Commission to determine whether disciplinary action should be recommended where arbitrary and capricious withholding of information is alleged, and by granting the court authority to punish federal officials for contempt in the event they fail to comply with orders of the court.

The National Mass Transportation Assistance Act of 1974,²⁴ passed in November, provides for the first time that federal funds may be applied to reduce the operating deficits of mass transit systems. The Federal-Aid Highway Act of 1973²⁵ had already permitted use of Highway Trust Fund monies to finance the construction and organization of mass transit systems.

Finally, the Forest and Rangelands Renewable Resources Planning Act of 1974²⁶ provides for long-term protection, development, and environmental enhancement of renewable resources in forests, on ranges, and on associated lands, and for periodic congressional review of the status of these resources.

Major Setbacks

Several important pieces of environmental legislation failed to pass the 93rd Congress. On December 30, the President vetoed the Surface Mining and Reclamation Act, despite the possibility, predicted by environmentalists, that the 94th Congress will pass an even stronger measure.²⁷ The Act passed by Congress in early December after several years of debate and compromise would have established federal controls on strip mining. Land unable to be reclaimed would have been declared unsuitable for strip mining; land already stripped would have been subject to reclamation requirements, and rights of land owners on strippable land spelled out. Future strip mining would have been subject to state regulatory programs, drawn up according to federal environmental standards. The Administration has recently let it be known that it favors passage of a strip mining control act in the new Congress, with what it terms minor modifications. But any proposed changes in the legislation coming from the White House are certain to be subjected to close scrutiny both in Congress and from environmental groups.

In early June, the bill to establish a federal role in land use planning fell victim to a sudden withdrawal of White House support, described by some Democrats as an attempt by then President Nixon to retain support from conservatives in the impending impeachment [5 ELR 10025] proceedings. The bill provided for up to $800 million in grants to the states to improve land use planning and control founded on citizen and local government participation, following federal guidelines.²⁸ The bill failed when the house refused by a seven-vote margin to clear the measure for floor debate. Interest in the 94th Congress in reviving the land use bill is considerably less than in enacting some form of strip mining control.

The 93rd Congress also failed to complete action on the Toxic Substances Control bill, a measure which EPA now places in a high priority position for enactment by the 94th Congress. The Senate and House each passed a version of the bill in 1973, but significant differences prevented conferees from reaching agreement. The principal stumbling block was the issue of how much authority EPA should have to require premarketing testing and screening of chemicals, the Senate version being much the stronger of the two.²⁹

Finally, the Congress failed to pass amendments to the Resource Recovery Act of 1970, vigorously sought by a number of environmental groups, establishing further federal policies and programs for solid waste disposal.³⁰ Provisions for federal nonreturnable bottle and can legislation died along with this measure.

November Elections

The thesis that the energy crisis, far from undercutting the environmental movement, has greatly increased public concern for protecting the environment was dramatically confirmed by the outcome of the November elections. Though Rep. Sam Steiger (R-Ariz.), who was instrumental in killing both the strip mining and the land use planning bills, and who found himself the prime target of environmental groups, was re-elected, many candidates holding strong environmental positions fared extremely well. Thirteen of the seventeen candidates supported by the League of Conservation Voters, which keeps a scoreboard on the votes of all members of Congress on environmental issues, were victorious, including several considered unlikely to win. Moreover, Rep. Steiger, whose opponent Pat Bosch was heavily supported by the League, saw his percentage of the vote drop from 62 percent in past elections to a bare 50.5 percent against Bosch. Eight of Environmental Action's Dirty Dozen (a list topped again by Rep. Steiger) were defeated, including Bob Mathias (R-Ca.), Frank Stubblefield (D-Ky.) and William Scherle (R-Ia.). Mathias, for example, was hurt by his vote against the federal land use bill, when his opponent John Krebs made the problem of unplanned and uncontrolled growth in California a major issue in the campaign. Committee assignments in the new Congress were still being worked out at this writing, but will clearly shift in favor of environmentalists as a result of these key defeats and because Democratic freshmen congressmen have organized to force changes in key committee chairmanships. Rep. Jamie Whitten (D-Miss.), who as Chairman of the Subcommittee on Agriculture, Environment and Consumer Protection of the House Appropriations Committee kept a firm antienvironment hand on EPA's budget, gave up his subcommittee's environmental and consumer protection responsibilities voluntarily rather than be stripped of his chairmanship.

In short, the prospect is good that the new Congress will reverse the key setbacks sustained at the hands of Congress and the President during the term of the 93rd Congress, and place before the President in renewed form the strip mining, toxic substances, land use policy and solid waste measures which failed to become law last year. The gains of the 93rd Congress in environmental legislation, including deepwater port, safe drinking water and freedom of information laws, were not insubstantial. But the measures which failed were perhaps the most critical to environmentalists, who are now hard at work with the new Congress.

1. P.L. 93-627, 88 Stat. 2126, ELR 41705.

2. Supertankers are defined as tankers with a capacity of 200,000 or more tons. They require 90 to 100 feet depth for clear passage, found in the United States only at the ports of Seattle and Long Beach. For further background, see Comment, Deep Water Ports: Energy Demands Versus Environmental Safeguards, 3 ELR 10165 (Nov. 1973).

3. See Authur D. Little, Inc., Potential Onshore Effects of Deepwater Oil Terminal-Related Industrial Development, prepared for the Council on Environmental Quality (1973).

4. ELR plans to comment further on the provisions of the Deepwater Port Act in a future issue. This Comment summarizes only a few of the Act's major provisions.

5. P.L. 93-523, 88 Stat. 1660, enacted December 16, 1974.

6. The Act contains two provisions expressly limiting OMB's powers to interfere with reports required under the Act. Section 1412(e)(5) prohibits OMB from gaining access to the report of the two-year study on which revised primary standards are to be based. Section 1450(h), which requires an annual report by EPA of activities under the Act, states that OMB may review any annual report, but may not revise it, or order it to be revised, or delay its submission beyond the date specified in the Act.

7. Fees for expert witnesses may also be awarded by the court as the court deems appropriate.

8. Forty-three laws are listed in Environmental Law — V, American Law Institute — American Bar Association Course of Study for Conference, January 16-18, 1975, pp. 269-273.

9. P.L. 93-319, 88 Stat. 246, 4 ELR 41231, signed into law June 22, 1974.

10. Pedersen, Coal Conversion and Air Pollution: What the Energy Supply and Environmental Coordination Act of 1974 Provides. 4 ELR 50101 (Nov. 1974).

11. P.L. 93-275, 88 Stat. 96, signed into law May 7, 1974.

12. Energy Reorganization Act of 1974, P.L. 93-438, 88 Stat. 1233 signed into law October 11, 1974.

13. Federal Nonnuclear Energy Research and Development Act of 1974, Public Law 93-577, 88 Stat. 1878, signed into law December 31, 1974.

14. Id.

15. Solar Energy Research, Development and Demonstration Act of 1974, P.L. 93-473, 88 Stat. 1431, signed into law October 26, 1974; and the Geothermal Energy Research, Development, and Demonstration Act of 1974, P.L. 93-410, 88 Stat. 1079, signed into law September 3, 1974.

16. Solar Heating and Cooling Demonstration Act of 1974, P.L. 93-409, 88 Stat. 1069, enacted September 3, 1974.

17. P.L. 83-621, 88 Stat. 2094, enacted January 3, 1975; ELR 41421.

18. P.L. 93-440, 16 U.S.C. 698f, enacted October 11, 1974.

19. P.L. 93-439, 88 Stat. 254, enacted October 11, 1974.

20. P.L. 93-555, 88 Stat. 1784, enacted December 27, 1974.

21. P.L. 93-622, 88 Stat. 2096, enacted January 3, 1975.

22. P.L. 93-632, 88 Stat. 2153, enacted January 3, 1975.

23. Freedom of Information Act Amendments of 1974, P.L. 93-502, 88 Stat. 1561, enacted over Presidential veto on November 21, 1974, ELR 41015.

24. P.L. 93-503, 88 Stat. 1565, enacted November 26, 1974.

25. P.L. 93-87, 87 Stat. 250, enacted August 13, 1973.

26. P.L. 93-378, 88 Stat. 476, enacted August 17, 1974.

27. S. 425, H.R. 11500, 93rd Cong., 2nd Sess. (1974).See also Comment, Strip Mining Bill Reported Out by House Interior Committee, 4 ELR 10087 (July, 1974).

28. National Land Use Policy Act, H.R. 10294, 93rd Cong., 2nd Sess. (1974). See also, Comment, Rules Committee Reversal Clears Way for Passage of National Land Use Policy Act, 4 ELR 10066 (June, 1974).

29. Toxic Substances Control Act, S. 426, H.R. 5356, 93rd Cong., 2nd Sess. (1974).

30. S.3954, H.R. 13176 (Waste Management and Resource Recovery Bills); S.2062, H.R. 9782 (Beverage Container Bills), 93rd Cong., 2d Sess. (1974).