The President's Energy Proposals: Dramatic Initiatives Plagued by Environmental, Constitutional Difficulties

Amidst the clamor of political rhetoric and the barrage of proposals and counterproposals, the nation's energy problem emerges rather starkly: a precarious combination of needless inefficiency, lagging domestic energy production, and increasingly expensive and unreliable foreign supplies of oil. President Carter's response¹ has been to impose a ceiling on imports of foreign oil and to propose a massive commitment of public funds to develop on a crash basis a new synthetic fuel industry. Derived from coal, "synfuels" represent an alternative energy source which has yet to be shown commercially or technically feasible and which raises the specter of severe environmental impacts. Another essential element of the Administration's latest energy package is the establishment of a new federal panel, the Energy Mobilization Board, that would have largely unchecked powers to waive the careful balance of environmedntal controls that Congress, the federal agencies, and the states have laboiriously created over the last decade.

Scrutiny of the President's plan reveals that it is dependent upon dubious contingencies and is even more threatening to the environment that was first thought, but Congress may nonetheless adopt many of his proposals if in modified form.In focusing on high visibility strategies that promise to have an immediate political impact, however, both the President and Congress may be overlooking an alternative approach that would make additional energy supplies available without huge government expenditures on programs with only a dubious chance of success and of questionable environmental acceptability. Widespread application of conservation techniques and the use of presently available solar energy technologies could significantly reduce excessive consumption of present energy supplies in the short term with minimum disruption of the nation's economy. Furthermore, such immediate action would obviate the need for the potentially autocratic Energy Mobilization Board and would allow the federal government to take the necessary steps toward solving the energy supply/demand imbalance and reforming the siting and approval process for new energy facilities in a deliberate and sensible way.

New Fuel Sources

In order to lessen the nation's dependence on foreign oil, President Carter issued a clarion call for "the most [9 ELR 10149] massive peacetime commitment of funds and resources in the Nation's history to develop America's alternate sourcs of fuel."² The mainstay of this program is establishment of an Energy Security Corporation that will be authorized to invest up to $88 billion, to be derived from a "windfall profits tax"³ to produce 2.5 million barrels per day of oil substitutes by 1990. The President's plan relies on a mix of fuels, but the one on which he has placed the greatest emphasis is synthetic fuel derived from coal. He also expects nuclear energy to play a continuing and perhaps growing role in supplying the nation's energy needs. Greater use of coal rather than oil by electric generating utilities, a policy enunciated in the President's first energy program in 1977,⁴ will continue to be an important component of his policy. Finally, the President called for greater use of solar and renewable energy sources and urged all Americans to adopt conservation measures.

Synthetic fuels, or "synfuels," can be extracted from coal by gasification and liquefaction technologies.⁵ President Carter spotlighted synfuels as the logical replacement for foreign oil because "[w]e have more coal than any nation on earth."⁶ The other advantage to synfuels is that once it has been produced it is an environmentally cleaner fuel to burn than coal. Several countries are experimenting with synfuels as a productive energy source, and South Africa has progressed to the point of relying on them as a significant source of domestic energy, though at a level far lower than President Carter expects for the United States.⁷ At the present time, first-generation technologies for low and medium production levels of synthetic fuels are fairly well established.

Despite their asserted advantages, however, synfuels present very serious problems that undercut the President's optimism. Not the least of these problems is whether the industry can be made economically viable by its anticipated maturity date of 1990. Synfuels technology has been tested for a number of years, but until recently, the plentiful supply of cheap oil has precluded going beyond limited experimentation. It will take time to work out the numerous technical problems that have already been identified, as well as the inevitable but unforeseeable difficulties that arise from moving a technology from "workbench" experimentation to largescale commercialization. Many observers have concluded that if synfuels are commercially viable by 1990 it will be at nowhere near the level that President Carter has predicted, even with major federal assistance.⁸ The business sector itself has increasilngly come to doubt the economic feasibility of a massilve short-term investment in synfuels.⁹

The environmental problems associated with synfuels development¹⁰ argue strongly against a hasty and unplanned approach, although using a fuel cleaner than coal could be beneficial in areas currently experiencing serious air pollution problems. In the first place, mining of the enormous amounts of coal needed would have a major adverse impact on large land areas. It is expected that most of the coal for synfuels will come from the western states and will be strip mined. Second, coal mining, transportation, and processing into synfuels will consume and contaminate large quantities of water. This presents a particular problem in the west where scarce water resources in many areas are already full appropriated. Third, synfuels production will create quantities of solid waste almost as large as the volume of fuel produced. It is also becoming apparent that the production process of synthetic fuels will create waste containing a number of known and suspected carcinogenic contaminants. Present technology can alleviate this problem to some extent, but because the degree of this hazard is presently unknown, considerably more research will be needed. The final cloud on the horizon is that production of synfuels will require almost as much energy as would be obtained from the final product, a factor that is closely tied to the economic viability of the technology.

Other fuel sources naturally have other problems. Even if coal production could be dramatically increased in the near future, an inadequate transportation system would restrict its distribution,¹¹ and increased coal burning will create even greater pressure for relaxation of the relevant Clean Air Act standards. The most significant hazard, though one not fully understood at this point, is the [9 ELR 10150] atmospheric buildup of carbon dioxide resulting from increased burning of fossil fuels. This would, scientists believe, result in a "greenhouse" effect, warming the earth's atmosphere and thereby causing severe shifts in climatic zones and a melting of the polar ice caps.¹² In the case of oil, which provides three-quarters of this nation's energy supply, it is generally accepted that domestic production peaked several years ago, and even with increased exploration present levels of production cannot be sustained much longer than the next decade.¹³ President Carter has kept open the option of further development of nuclear energy, but the safety and waste disposal problems have yet to be resolved satisfactorily.

In recent weeks, it has become the view of many observers that primary reliance on synfuels as the panacea for the nation's energy problems is increasingly unattractive for a host of reasons and that the optimal solution within the short time frame that the President is focusing on is expanded use of solar energy and more vigorous conservation measures.¹⁴ Early in the summer, President Carter sent a message to Congress outlining a strategy to supply 20 percent of the nation's energy needs by the year 2000 through the use of solar energy and renewable resources.¹⁵ Present government support for solar energy is weighted toward high-technology research and development projects. It appears, however, that federal support for the use of currently available technologies in residential and commercial buildings is a better approach that promises to have a much greater impact in the immediate future.¹⁶ The President's proposed Solar Bank, whichwould offer low-interest loans, is a step in this direction.¹⁷ Existing tax credits of 20 to 30 percent of the cost of installing solar equipment¹⁸ may, howerer, be only half of that needed to ensure consumer acceptance.¹⁹

In his energy message, President Carter did not forget to encourage the widespread adoption of conservation measures, but be couched it in terms of a national voluntary effort. This call to action is nowhere near as dramatic as his proposal for developing the synfuels industry, and similar pleas for conservation have not been widely heeded in the past. Respected analysts believe that conservation, through positive government action such as mandating more efficient automobile engines and allowing fuel pricing to reflect replacement costs, is in fact both the cheapest and most effective method of cutting down the nation's dependence on foreign oil in the short run without causing significant cutbacks in the American standard of living.²⁰

The House of Representatives has already passed a bill to guarantee a limited market for synfuels by committing the Defense Department to purchase a certain amount annually,²¹ but there is spreading skepticism in Congress about the likelihood of the industry being able to reach the ambitious production goals set by President Carter. Instead, Congress will probably pass legislation that would fund further experimentation at a less expensive level. The other main component of the Administration's strategy, the Energy Mobilization Board, presents difficult problems of a different order.

Energy Mobilization Board

In his televised energy address, President Carter denounced "the red tape, the delays, and the endless roadblocks to completing key energy projects." While promising to "protect our environment," he stated that "when this Nation critically needs a refinery or pipeline, we will build it."²² To accomplish this goal, the President [9 ELR 10151] proposed creation of an Energy Mobilization Board.²³ This three-member panel of presidential appointees would be authorized to designate as "critical" certain non-nuclear energy facilities that it finds necessary to the achievement of oil import reduction goals. The Board could then modify or eliminate "procedural" barriers to development and construction of such critical facilities. This would be done by setting binding schedules for each critical facility in which federal, state, and local permit requirements must be met. If a permitting agency failed to meet the schedule, the Board could either make the decision itself on the basis of the relevant substantive law, or waive compliance with the procedural requirements altogether. Furthermore, the Board could waive application of new substantive and procedural requirements which come into effect after construction has begun.

Designation of an energy facility as "critical" would not be subject to judicial review. Expedited review of scheduling and waiver decisions by the Board and of decisions by federal, state, and local agencies necessary for approval of the facility would be available in the federal courts of appeals, however. Such review could occur only after the Board determined that the permitting process had been completed or that earlier review is necessary to expedite the project approval process or, to assure fairness to the parties involved. As a final check on the Board's power, the President could veto an exercise of its waiver authority.

The President's proposed Energy Mobilization Board grows out of two mechanisms that he had previously established by executive order. A year ago, the President set up the Energy Coordinating Committee composed of the heads of all Cabinet departments and nine other agencies and designed to ensure communication and coordination regarding federal energy policy and the management of energy resources.²⁴ In the spring of this year, the President, in addition, established a Critical Energy Facility Program²⁵ under which he would identify non-nuclear energy facilities of "critical national importance," and the Office of Management and Budget (OMB) would set a timetable for federal decisions on siting, construction, and operating permits. OMB can only encourage state and local agencies to expedite their decision-making machinery, however, and has only limited power to interfere with federal and state statutory requirements, including compliance with the National Environmental Policy Act (NEPA).²⁶

Doubtless perceiving the inefficiency of this machinery and feeling the need to make a dramatic show of strong leadership to meet a national crisis, the President proposed the Energy Mobilization Board with far more sweeping power to rush to completion decision making on energy facilities at all levels of government. The Board's proposed authority to waive procedural requirements would clearly give it power to do away completely with any intra-governmental or public participation in the process. This power to preclude public input is highlighted by the exemption for the Board's decisions from the rule making and adjudicatory provisions of the Administrative Procedure Act.²⁷

Compliance with NEPA

A number of serious questions have been raised about giving such a relatively unaccountable panel carte blanche to cast aside a host of laws that have been painstakingly forged in the political process and thoroughly tested in the courts. One issue of particular concern in the actual and potential short-circuiting of the environmental review procedures of NEPA. President Carter has proposed that the decisions of the Board itself would not constitute "major Federal actions" under § 102(2)(C) of NEPA and would thereby be exempt from the environmental impact statement (EIS) process. Moreover, the lead permitting agency could prepare a single EIS for the entire energy "facility" including all aspects of a project from mining to power transmission. Alternatively, the Board could waive federal, state, and local EIS requirements entirely if it establishes an alternate procedure for assessing environmental impacts.

This end-run of NEPA is apparently founded on the oft-heard belief that the EIS process unnecessarily delays federal projects.²⁸ While this assertion may not be completely without merit, these delays have been a small payment for the concommitant improvement in decision making. Furthermore, such criticism predates the Council on Environmental Quality's new NEPA regulations,²⁹ which promise to speed up the process considerably. While there is some precedent for exempting specific federal actions³⁰ or categories of actions³¹ from the NEPA process, never has an agency been placed wholly beyond the Act's reach. Such powers would be particularly significant in the hands of the Board because scheduling decisions are often the most critical of those [9 ELR 10152] made in the life of a project and they can so foreshorten the time for review as to allow only a cursory study of the commitments of important and sometimes scarce natural resources. In addition, if the "facility" for which the single EIS is prepared encompasses, as the Administration proposes, all physical structures including refineries, pipelines, plants, and transmission lines, the scope of the impact statement would be unworkably broad and allow superficial consideration of discrete elements of the project that independently would have serious environmental impacts.

The scope of the Board's largely unsupervised power has been the target of serious criticism. One House bill³² already cleared by the Interior and Insular Affairs Committee would assign the President a greater role by requiring that he must affirmatively approve any waiver action, subject to veto by either house of Congress. Some form of congressional oversight of a Board action may well be included in any enabling legislation finally enacted. Although judicial review provides some check on the Board's actions, President Carter has proposed prohibiting review until after the Board determined that the permitting process has been completed. The major Senate vehicle for "fast-track licensing"³³ would prohibit the issuance of preliminary injunctions against implementation of the Board's decisions.While this could curtail the delays from legal challenges, waiting for a judicial decision until after all of the permits have been approved might give a project an inertia that would be difficult to reverse.

When the Board was first proposed in mid-July, Carter Administration officials intended that no more than 12 projects per year would be designated as "critical." This was revised to allow no more than 75 critical projects to be processed at any one time, and congressional proposals range from 24 projects³⁴ to an unlimited number.³⁵ It is obvious that the larger the number of projects proposed for fast-track licensing, the more difficult will be the task of the Board in coordinating scheduling and decision making and in evaluating the enormous number of applicable federal, state, and local requirements. The result may well be less regard for the relevant legal requirements and greater delay in constructing truly "critical" energy facilities.

Constitutional Issues

The proposed Energy Mobilization Board may find itself confronted with serious constitutional attacks on several grounds. The most serious of these concerns Congress' power to preempt state and local regulatory requirements under the Constitution. Since the 1973 Arab oil embargo, there can be little doubt that the availability of energy supplies impinges on national security. Given this national interest, Congress may indisputably legislate to increase domestic energy production under the Commerce Clause. In a landmark (and often misunderstood) decision several years ago, the United States Supreme Court in National League of Cities v. Usery³⁶ indicated, however, that the congressional power to preempt under the Commerce and Supremacy Clauses is limited by the Tenth Amendment where it interferes with the exercise of traditional and integral functions of state government. Thus, while Congress may preempt direct nonfederal regulation of energy production, there is a question whether the traditional local functions of land use regulation and health protection may also be overridden.

The Department of Justice has taken the position that the Board as outlined by the President would withstand a constitutional attack on preemption grounds because of the pervasive national import of the energy problem.³⁷ Justice has argued that a Board determination to compress the schedule for a nonfederal decision does not usurp that decision but merely shortens the time in which it must be made. Waiver of the state or local procedures, such as preparation of an environmental impact statement, would thus be constitutional on the grounds of the nation's need to enhance energy production. If the Board were to make a decision in displacement of the state or local agency, this too would be upheld, in the view of the Justice Department, because it would not force the state to adopt the federal procedure; rather, it would be replacing the state or local decision that failed to meet the Board-imposed schedule with a federal decision based on the state or local law.

Quite rightly, the Justice Department memorandum is laced with caution and a recognition that the actions of the Board will create important constitutional questions that will inevitably be resolved in a judicial forum. It is clear that the extent and the nature of the preemptive authority that Congress gives the Board will be one of them. A second question will be whether Congress may delegate to the Board the authority to preempt a wide range of state and local laws rather than explicitly deciding what laws are to be preempted. An extensive explanation in the legislative history of what laws Congress intended to be preempted might influence this determination.

A further problem may arise if the Board is authorized to displace procedural but not the substantive requirements of state and local laws. Short-circuiting procedural steps, such as making as environmental assessment or allowing the public an opportunity to comment, may have the effect of providing little or no basis upon which to make the substantive permitting decision. The common difficulty in drawing the line between procedural and substantive laws will be even more complex in this context. Furthermore, congressional controversy continues to linger on whether the Board's waiver power should extend to substantive as well as procedural requirements of federal, state, and local laws.³⁸ In practical [9 ELR 10153] terms, the resolution of this question will determine whether substantive Clean Air Act standards, among others, can be ignored.

Due Process

A more significant challenge to the actions of the Board may arise in the area of due process.While under the President's proposal shortened scheduling deadlines can be justified if they are "reasonable," a blanket waiver of procedures may rise to the level of a due process violation. The Justice Department asserts that this would not be unconstitutional if such waivers were done reasonably and only in exceptional cases, but such generalities may not hold sway in the courts.

The Board's actions would be exempt from the Administrative Procedure Act's requirements for public participation in federal agency decision making. In the initial designation of "critical" facilities, the Board would nonetheless be required to obtain public comment and establish some procedure for obtaining necessary information. This seems but a vague allowance for limited public input and due process protection, and if, as the Administration proposes, there is no judicial review of "critical" designations, due process requirements may be circumvented.

Conclusion

The siting, construction, and operation of an energy facility is a massive undertaking requiring issuance of an enormous number of federal, state, and local permits.³⁹ These requirements have been carefully put into place over the last decade as governments have moved to protect the environment and public health. Some observers have argued that the problem this creates is not so much an overlay of unnecessary protections as simply a lack of coordination between and within levels of government. The real problem, they suggest, is not an irreconciliable conflict between environmental protection and energy production but the need for reform of the entire regulatory process.⁴⁰

If the federal government is committed to a crash program to develop synfuels as the central answer to the nation's energy problem, the Energy Mobilization Board will chop a broad swath through the tangled thicket of environmental and administrative laws and regulations. But if synfuels are put on a more deliberate and reasonable schedule, this wholesale bypassing of legal requirements may not be necessary. Instead, attention can be focused on the more fundamental problem of revising the entire regulatory process, an undertaking that will be beneficial not only to energy development but also to the entire range of regulated activities.

President Carter's promise in his energy message to protect the nation's environment does not ring true when measured against the substance of his proposals for solving the energy problem. The coupling of a crash synfuels program, which risks unacceptable environmental consequences, with an Energy Mobilization Board that has the potential power to run roughshod over carefully established environmental protection mechanisms, may have won the President a public relations coup. Reasonable people with an understanding of the environmental and economic trade-offs involved, however, have come to the conclusion that it would be foolish to disregard another promising response: increasing efficiency in the use of fuels now available and shifting reliance away from the rapidly vanishing fossil fuels and toward renewable energy sources such as solar power. Synfuels technology, if carefully developed, might provide a useful adjunct. It is to be hoped that when Congress inevitably pares down the President's unnecessarily excessive proposals, it will give full attention to these alternatives.

1. President Carter's energy proposals were made in a televised address to the nation. 15 WEEKLY COMP. OF PRES. DOC. 1235 (July 15, 1979).

2. 15 WEEKLY COMP. OF PRES. Doc. at 1239.

3. This is a complex tax on the increased profits of oil companies derived from their higher revenues as a result of the decontrol of domestic oil prices. Current speculation is that Congress will enact such a measure, but it will be less comprehensive than the President has proposed.

4. See Comment, The National Energy Plan: Hitless After the First Inning, 7 ELR 10119 (1977). The conversion of oil burning utilities to coal is directed by the Powerplant and Industrial Fuel Use Act of 1978, Pub. L. No. 95-620, 92 Stat. 3289 (Nov. 9, 1978).

5. A comprehensive review of synfuels, covering present and future technology, environmental impacts, economic considerations, and options for government involvement, was prepared recently by the Library of Congress. SENATE COMM. ON ENERGY AND NATURAL RESOURCES, 96TH CONG., 1ST SESS., SYNTHETIC FUELS FROM COAL: STATUS AND OUTLOOK OF COAL GASIFICATION AND LIQUEFACTION (Comm. Print 1979) (hereinafter cited as SYNTHETIC FUELS FROM COAL).

6. 15 WEEKLY COMP. OF PRES. Doc. at 1240.

7. South Africa is able to produce "several thousand" barrels of oil per day from its coal liquefaction plants. SYNTHETIC FUELS FROM COAL, supra note 5, at 49. President Carter expects that the new domestic synfuels industry will be able to produce up to 1.5 million barrels per day by 1990.

8. Estimates put the possible production level at 500-700 thousand barrels per day. SYNTHETIC FUELS FROM COAL, supra note 5, at 3-4.

9. In recent weeks, the Wall Street Journal, among others, has mounted a broad attack on the President's heavy reliance on synfuels. See, e.g., Wall St. J., July 12, 1979, at 1, col. 6.

10. See generally SYNTHETIC FUELS FROM COAL, supra note 5. The Department of Energy recently issued a report describing the environmental problems associated with synfuels development, but the report is generally sanguine; it predicts that if good management practices are followed and the best control technologies are used, commercialization could meet current environmental constraints. Dep't of Energy, Ass't Secretary for Environment, Office of Technology Impacts, Environmental Analysis of Synthetic Liquid Fuels (July 12, 1979).

11. See generally ENERGY FUTURE: REPORT OF THE ENERGY PROJECT AT THE HARVARD BUSINESS SCHOOL 79-107 (R. Stobaugh & D. Yergin eds. 1979) (hereinafter cited as ENERGY FUTURE); W. ROSENBAUM, COAL AND CRISIS: THE POLITICAL DILEMMAS OF ENERGY MANAGEMENT (1978).

12. The most recent warning came in a report from four prominent scientists. G. Woodwell, G. MacDonald, R. Revelle & C.D. Keeling, The Carbon Dioxide Problem: Implications for Policy in the Management of Energy and Other Resources: A Report to the Council on Environmental Quality, published in Not Man Apart, Sept. 1979, at 11, col. 1.

13. Recently, a large oil field containing reserves possibly larger than Alaska's Prudhoe Bay field was discovered deep under the floor of the Atlantic Ocean about 100 miles off the coast from Florida to Canada. Actually brilnging this oil to market, however, will require at least a decade and involve technology far more sophisticated than presently exists because of the greater depths of the deposits. N.Y. Times, Aug. 31, 1979, at A13, col. 1.

14. See e.g., ENERGY FUTURE, supra note 11; H. LANDSBERG et al., ENERGY: THE NEXT TWENTY YEARS (1979). Recent governmental reports to Congress come to the same conclusion. CONGRESSIONAL BUDGET OFFICE, SYNTHETIC FUEL PRODUCTION IN THE UNITED STATES: A PRELIMINARY OVERVIEW OF THE MAJOR LEGISLATIVE ISSUES; OFFICE OF TECHNOLOGY ASSESSMENT, A BRIEF ASSESSMENT OF THE DEVELOPMENT OF A SYNTHETIC FUELS INDUSTRY (July 27, 1979); General Accounting Office, Opinion B-990515 (July 27, 1979, EMD-79-99).

15. Solar Energy Message to Congress, 15 WEEKLY COMP. OF PRES. DOC. 1097 (June 20, 1979).

16. In a breakthrough that could dramatically accelerate the commercial use of solar energy, the Stanford Research Institute recently announced discovery of a new, low-cost process for producing pure silicon, the main element in solar electric cells. This would meet a goal that the Energy Department had not expected to reach until the mid-1980s. Washington Post, Aug. 30, 1979, at A15, col. 1. A recent report has found that despite numerous programs, a concerted federal and state effort to commercialize solar heating does not exist, and current financial incentives are not likely to have much impact in helping to solve the energy problem. GENERAL ACCOUNTING OFFICE, COMMERCIALIZING SOLAR HEATING: A NATIONAL STRATEGY NEEDED (July 20, 1979, EMD-79-19).

17. S. 1595, H.R. 4974, 96th Cong., 1st Sess. (1979). The President's Solar Bank proposal is an adaptation of the plan originally put forth by Rep. Neal (D-N.C.). H.R. 605, 96th Cong., 1st Sess. (1979).

18. Energy Tax Act of 1978, Pub. L. No. 95-618, 92 Stat. 3174 (Nov. 9, 1978).

19. ENERGY FUTURE, supra note 11, at 197 n.38. Current tax credits for installation of residential conservation equipment are similarly considered too low. Id. at 173, 181-82.

20. See sources cited at note 14, supra. In a recent report, the President's Council on Environmental Quality published an extensive study of the viability of conservation to increase the nation's energy productivity through improved energy efficiency which would still maintain a healthy economy. COUNCIL ON ENVIRONMENTAL QUALITY, THE GOOD NEWS ABOUT ENERGY (1979). Furthermore, the Environmental Defense Fund has pointed out that although the Carter Administration has acknowledged that conservation, through upgrading the energy efficiency of residential and commercial buildings, could save as much oil annually as would be produced by the synfuels industry, this method was not made a significant part of the President's program. Rauch, Con-fuels: Cheap, Quick and Environmentally Safe, Legal Times of Washington, Sept. 10, 1979, at 9, col. 1.

21. H.R. 4930, 96th Cong., 1st Sess. (1979).

22. 15 WEEKLY COMP. OF PRES. Doc. at 1240.

23. The detailed White House proposal for creation of the Energy Mobilization Board is contained in its outline of specifications for the legislation that was sent to Congress. The outline is published in Legal Times of Washington, July 23, 1979, at 27, col. 1.

24. Exec. Order No. 12083, 43 Fed. Reg. 44813 (Sept. 29, 1978).

25. Exec. Order No. 12129, 44 Fed. Reg. 21001 (Apr. 9, 1979).

26. 42 U.S.C. §§ 4321-4361, ELR STAT. & REG. 41009.

27. 5 U.S.C. §§ 553-559, ELR STAT. & REG. 41002-03.

28. See Caldwell, Is NEPA Inherently Self-Defeating?, 9 ELR 50001 n.1 (1979).

29. 40 C.F.R. §§ 1500-1508, 43 Fed. Reg. 55978 (Nov. 29, 1978), ELR STAT. & REG. 46015; see generally Comment, New Rules for the NEPA Process: CEQ Establishes Uniform Procedures to Improve Implementation, 9 ELR 10005 (Jan. 1979).

30. The Trans-Alaska Pipeline was specifically exempted from NEPA in an amendment to § 28 of the Mineral Leasing Act of 1920, 30 U.S.C. § 185(t). See Pub. L. No. 93-153, 87 Stat. 576. When a massive infestation of blackbirds and starlings interfered with military activities at Ft. Campbell on the Kentucky-Tennessee border, Congress enacted a measure exempting the control program from NEPA. Pub. L. No. 94-207 (Feb. 4, 1976). Last year, Congress voted to allow individual water development projects in the Colorado River Basin to proceed with construction once the site-specific environmental impact statements were issued rather than requiring construction of an individual project to wait until a broad programmatic statement was prepared for the entire system. Pub. L. No. 95-465, 92 Stat. 1279 (Oct. 17, 1978).

31. See, e.g., § 511(c) of the Clean Air Act, 33 U.S.C. § 1371(c), ELR STAT. & REG. 42149 (exempting Environmental Protection Agency actions under the statute, other than sewage treatment grants and the issuance of national pollutant discharge elimination system (NPDES) permits for new sources, from the environmental impact statement requirements).

32. H.R. 4985, 96th Cong., 1st Sess. (1979). The House Commerce Committee version, H.R. 4862, provides the same oversight.

33. S. 1308, 96th Cong., 1st Sess. (1979). This is Senator Jackson's (D-Wash.) bill, currently going through review in the Energy and Natural Resources Committee.

34. H.R. 4985, 96th Cong., 1st Sess. (1979).

35. H.R. 4862, 96th Cong., 1st Sess. (1979).

36. 426 U.S. 833 (1976).

37. The Office of Legal Counsel released a memorandum dealing extensively with the constitutionality of the Board. It has been published in Legal Times of Washington, Aug. 6, 1979, at 23, col. 1.

38. The House Interior and Insular Affairs Committee has reported a bill, H.R. 4985, that would allow the Board to waive only procedural requirements. On the other hand, the House Interstate and Foreign Commerce Committee reported a bill, H.R. 4862, that would also allow waiver of substantive requirements except those in labor and civil rights laws and water rights laws in the western states.

39. See H.R. REP. NO. 410, Pt. I, 96th Cong., 1st Sess. 5-22 (1979).

40. See, e.g., Quarles, A Thicket of Environmental Laws, Wall St. J., Aug. 24, 1979, at 10, col. 4. For a general review of regulatory reform legislation now before Congress, see Comment, Reconditioning the Administrative Process: Congress Weighs "Regulatory Reform" Legislation, 9 ELR 10100 (June 1979).