The President's Environmental Message: Better Regulatory Coordination, More Vigorous Enforcement

On May 23, 1977, President Carter sent Congress his long-awaited Environmental Message,¹ setting forth in a comprehensive and coherent fashion the environmental goals and policies of his Administration. The document, which is the first such message since 1973,² evidences the new Administration's genuine concern for environmental matters and charts a firm course of environmental protection and resource conservation. The message contains several legislative proposals, but its basic thrust is toward more "sensitive administration and energetic enforcement" of existing statutory requirements. The President issued five Executive Orders and more than 20 directives to various agencies to undertake studies, revise regulations and policies, and coordinate federal regulatory efforts and programs. Notably absent from the Message, however, is a request for additional funding to carry out these additional responsibilities.

Legislative Proposals

The President reiterated his support for the Administration's previously publicized proposals for amendments to the Clean Air Act, including strong provisions for the prevention of significant deterioration of existing air quality in clean air areas and tailored economic penalties for noncompliance. The message also supported passage of a strong strip-mining law which protects both alluvial valley floors and prime agricultural lands and supported the proposed Outer Continental Shelf Lands Act amendments with changes previously recommended by the Administration.

On the subject of water pollution, the President had a number of more specific proposals to make. Section 307(a) of the Federal Water Pollution Control Act (FWPCA)³ should, in his view, be amended to streamline the Environmental Protection Agency's (EPA's) regulation of toxic pollutants; a provision for tailored economic penalties for noncompliance should be included in this statute also.⁴ The message addressed the issue of wetlands protection by discounting the need for an amendment to § 404 of the FWPCA⁵ which would narrow the Corps of Engineers' jurisdiction over dredge and fill activities and by proposing a $50 million program for federal acquisition of wetland areas.

In the area of public lands, the message urged replacement of the anachronistic Mining Law of 1872⁶ with legislation which substitutes a leasing system for hardrock minerals for the current claim-staking arrangement and requires approval of mining and reclamation plans before operations can begin. The President also suggested several additions to the nation's wilderness areas, wild and scenic rivers, and historic trails. Improvement of the national park and wildlife refuge systems, most notably expansion of Redwood National Park, were further recommendations. An additional request was that legislative authorization for the Cross-Florida Barge Canal, a project halted by President Nixon in 1971, be withdrawn.

The message also proposed that the Federal Insecticide, Fungicide and Rodenticide Act be amended to allow direct EPA regulation of the 1,400 active chemical ingredients in pesticides rather than requiring the agncy to regulate each of the 40,000 pesticide products individually.

Executive Orders

Two of the five Executive Orders which accompanied the Environmental Message dealt with federally sponsored or permitted developments in the sensitive ecological areas of wetlands and floodplains. E.O. 11988⁷ is aimed at avoiding direct or indirect federal support of floodplain development wherever there is a practicable alternative. An agency proposing to conduct, support, or allow an action to be located in a floodplain must find it to be the only practicable alternative and must also design or modify its action to minimize potential harm to or within the floodplain and circulate an explanation of why the action is proposed to be located there.⁸ The order governing activities in wetlands, E.O. 11990,⁹ is analogous. Agencies are forbidden from "undertaking or providing assistance for new construction located in wetlands unless the head of the agency finds (1) that there is no practicable alternative to such construction and (2) that the proposed action includes all practicable measures to minimize harm to wetlands which may result from [7 ELR 10117] such use." This essentially restates the policy recently adopted by the Corps of Engineers in denying an application for dredge and fill permits under § 404 of the FWPCA in conjunction with residential development at Marco Island, Florida.¹⁰

E.O. 11989¹¹ provides that whenever the respective agency head determines that off-road vehicles will cause or are causing considerable adverse effects on the soil, vegetation, wildlife, or cultural or historic resources of particular areas or trails of the public lands under his jurisdiction, he shall immediately close those areas or trails to the type of off-road vehicle causing such effects. The order also expressly authorizes agencies to adopt the policy that portions of the public lands will be closed to off-road vehicles except for areas and trails specifically designated as open to such traffic. E.O. 11987¹² relates to the problem of the nuisance proliferation of foreign plants and animals in the domestic environment. All agencies are ordered to restrict the introduction of such "exotic species" into the United States or into the natural ecosystem on lands or waters they administer.

The final order, E.O. 11991,¹³ relates to the responsibilities and authority of the Council on Environmental Quality (CEQ). Specifically, the order gives CEQ the power to issue regulations rather than advisory guidelines governing federal agency implementation of the procedural provisions of the National Environmental Policy Act (NEPA). Adopting a goal long advocated by CEQ, the order provides that such regulations are to be designed to "reduce paperwork and the accumulation of extraneous background data" in environmental impact statements and are to require impact statements to be "concise, clear, and to the point, and supported by evidence that the agencies have made the necessary environmental analyses." The Council held public hearings in Washington on June 6-8, 1977, as a first step toward improving the NEPA process.

Directives to Agencies

The two agencies which received the lion's share of the directives contained in the Environmental Message were the Department of the Interior and CEQ. Interior Secretary Andrus was told to revise important aspects of the Outer Continental Shelf (OCS) leasing program, including timetables and acreage offerings, industry disclosure regulations, methods of cooperative planning with state and local governments, and NEPA procedures for development plan approval. Interior was also directed to conduct a nationwide evaluation of the water supply needs and availability for development of various energy resources, such as coal.

The message spelled out a new coal leasing policy for federal lands: no tract will be leased unless the Secretary is satisfied that "the environmental impact of mining would be acceptable and that the federal government will receive a fair market value for the lease." The Department was directed to examine existing leases and take steps ranging from land exchanges to lease cancellation to deal with non-producing and environmentally unsatisfactory leases.

Other duties placed on Interior were development of a plan for preserving coastal barrier islands in conjunction with CEQ and the Secretary of Commerce, encouragement of conservation of non-game wildlife, development of a Bureau of Land Management wilderness program under the Federal Land Management and Policy Act of 1976,¹⁴ and coordination, again in conjunction with the Commerce Department, of a government-wide effort to identify all habitat under federal jurisdiction or control that is critical to the survival and recovery of endangered species.

The Council on Environmental Quality was directed to conduct several studies and oversee efforts to harmonize agency activities relating to environmental protection. CEQ is to develop an interagency program to eliminate redundancies and fill gaps in the collection of data on toxic substances and to coordinate federal research and regulatory activities in this area. The Council must also establish an interagency task force to review present environmental monitoring and data collection programs in all areas and recommend improvements to make them more effective.

The Council was also given a number of more specific responsibilities, such as recommending actions to encourage development and application of pest management techniques which emphasize use of natural biological controls rather than chemical agents, and reporting within six months on steps which can be taken to simplify, coordinate, and codify the body of law affecting wildlife conservation.¹⁵ In conjunction with the Office of Management and Budget and the Water Resources Council, CEQ is to conduct a six-month review of present federal water resource policy and, in concert with the State Department, is to make a one-year study of probable changes in the world environment through the year 2000.

The Council is furthermore assigned the roles of interagency coordinator and mediator. In conjunction with the State Department, it is to ensure the best possible coordination of international environmental programs within the Executive Branch. The Council was given the additional broad assignment of examining present federal environmental review requirements and recommending measures to clarify and integrate them. CEQ is also now formally responsible for resolving interagency disagreements over the environmental impacts of particular major federal actions.

Other agencies were also the targets of presidential [7 ELR 10118] directives. EPA was ordered to set standards for toxic pollutants and especially for potential carcinogens in drinking water, to review its regulations concerning industrial growth in areas which have not attained air quality standards,¹⁶ and to conduct a two-year study of resource recovery incentives to reduce solid waste. Indicating support for the ambitious pollution control objectives of the FWPCA, the President directed EPA to give the highest priority to developing discharge standards for toxic pllutants requiring application of the best technology available by 1983.

The Secretary of Commerce must identify possible marine sanctuaries in areas where development seems imminent and begin collecting data for sanctuary designation, prohibit whaling within the 200-mile fishery zone, and push for a ten-year global whaling moratorium. The Department of Agriculture is to conduct a comprehensive study of the Cooperative Forestry Program and suggest methods of improving the condition and production of small private forest holdings throughout the nation. The Secretary of State and Administrator of the Agency for International Development were directed to ensure full consideration of the environmental soundness of economic development projects for which assistance is sought and to make available to developing countries assistance in environmental and natural resource management.

Notable Omissions

In addition to the absence of major new funding requests, there were several noteworthy omissions from the Environmental Message. The President opted for an accelerated study of resource recovery incentives for all kinds of packaging but was silent on the question of a national "bottle bill" which would use mandatory deposits as a means for encouraging use of returnable beverage containers.¹⁷ This leaves open the possibility of later endorsement of such legislation as a result of the study. The message likewise made no mention of either a national land use law, confirming that the issue is, for the time being at least, a dead letter, or the problems and promise of mass transit, an omission apparently based on the belief that these "transportation" questions should be treated separately rather than in the Environmental Message.

A further topic not treated was current congressional moves to amend the Endangered Species Act¹⁸ in the wake of the recent Sixth Circuit decision enjoining completion of the Tellico Dam.¹⁹ The directive to agencies to inventory the lands they control for identification of habitat critical to such species, taken together with this failure to address the question of amending the statute, seems to indicate Administration support for the Act as it stands.

A final point worth noting is the absence of any extension of CEQ's formal authority from monitoring compliance with NEPA's procedural requirements to overseeing implementation of the Act's substantive goals. Such substantive authority would have given the Council greater leverage vis-a-vis other federal agencies concerning the permissibility of particular environmentally harmful major federal actions that the other agencies propose to carry out.

Conclusion

The basic thrust of the Carter Administration'senvironmental program, as set forth in the President's Environmental Message, is twofold. The President sees vigorous enforcement and careful administration of existing laws rather than further statutory innovation as the order of the day. Closely related to this philosophical approach will be a comprehensive attempt to reorganize and coordinate existing regulatory programs and activities in the area of environmental protection in order to achieve both greater managerial efficiency and better substantive results. The shift in enforcement strategy toward more reliance on economic penalties tailored to the particular discharger is also an important innovation in the control of air and water pollution.

The numerous responsibilities assigned the Department of the Interior in the message indicate that this agency will play an important role in resource management and conservation. The other agency most affected is the Council on Environmental Quality, which, as the agency responsible for drafting the message in the first instance, may have given itself more than it can handle without additional staff.

The message is characterized by fiscal restraint. The President requested additional funding only for the continuing municipal sewage treatment plant construction program, wetlands acquisition, improvement of the national wildlife refuge system, and the water quality management planning program under § 208 of the FWPCA. Conspicuously absent was any request for increased agency staffing or funding levels, a fact that may undercut the announced goal of more vigorous enforcement of existing statutory requirements. This failure to relax staff and budgetary constraints may prove especially troublesome to CEQ as its 40 staff members attempt to shoulder the Council's added powers and responsibilities.

1. 7 ELR 20557.

2. President Nixon's last environmental message was issued on February 15, 1973. President Ford did not send a separate environmental message to Congress during his two years in Office.

3. 33 U.S.C. § 1317(a), ELR 41115.

4. These penalties would be computed so as to"eliminate the benefits of delay or noncompliance" with pollution control standards. The Connecticut Department of Environmental Protection was one of the first agencies to develop and use such economic "disincentives" as an enforcement tool. See CONNECTICUT ENFORCEMENT PROJECT, I ECONOMIC LAW ENFORCEMENT (EPA-901/9-76-003a, 1975).

5. 33 U.S.C. § 1344, ELR 41124. See Comment, The Move to Amend § 404 of the FWPCA: House Passes Bill Limiting Federal Authority Over Dredge-and-Fill Activities, 7 ELR 10082 (May 1977).

6. 30 U.S.C. § 22 et seq., ELR 41420.

7. 42 FED. REG. 26951 (May 25, 1977), ELR 45026.

8. The Senate, following a different drummer, recently added an amendment to H.R. 6655, the pending Housing and Community Development Act amendments, increasing the ceiling on flood insurance coverage for residential and small business properties. 123 CONG. REC. S9095 (daily ed. June 7, 1977).

9. 42 FED. REG. 26961 (May 25, 1977), ELR 45029.

10. Report on Application for Department of Army Permits to Dredge and Fill at Marco Island, Florida, 6 ELR 30020 (Chief of Engineers, Apr. 16, 1976). See Comment, Corps Confirms Policy Against "Unnecessary" Development in Wetlands, 6 ELR 10117 (June 1976).

11. 42 FED. REG. 26959 (May 25, 1977), ELR 45016.

12. 42 FED. REG. 26949 (May 25, 1977), ELR 45025.

13. 42 FED. REG. 26967 (May 25, 1977), ELR 45003.

14. 43 U.S.C. §§ 1701-1782, ELR 41458.

15. CEQ recently sponsored completion by the Environmental Law Institute of the first comprehensive treatise on the evolution of federal wildlife law. The book, M. BEAN, THE EVOLUTION OF NATIONAL WILDLIFE LAW (1977), is available from the U.S. Government Printing Office, Washington DC 20402 (GPO Stock No. 041-011-00033-5, $4.20). An adaptation of portions of the book appears in ELR: Bean, Law and Wildlife: An Emerging Body of Environmental Law, 7 ELR 50013 (May 1977).

16. For a description of the policy, see Comment, Emission Offsets: EPA Rules Clean Air Act Allows New Sources in Non-Attainment Areas, 7 ELR 10029 (Feb. 1977).

17. S. 276, H.R. 936, 95th Cong. 1st Sess. (1977). Mandatory deposit legislation has been making some headway among the states. See Comment, Michigan and Maine Pass Bottle Bills, 6 ELR 10273 (Dec. 1976).

18. 16 U.S.C. §§ 1531-1543, ELR 41825.

19. Hill v. Tennessee Valley Authority, 549 F.2d 1964, 7 ELR 20172 (6th Cir. 1977), rev'g 419 F. Supp. 753, 6 ELR 20583 (E.D. Tenn. 1976). See Comment, Wildlife Protection: Section 7 of the Endangered Species Act Comes of Age, 7 ELR 10049 (Mar. 1977).