8 ELR 10221 | Environmental Law Reporter | copyright © 1978 | All rights reserved
95th Congress, 2d Session: Emphasis on Resource Protection
[8 ELR 10221]
In contrast to the environmental record of the 95th Congress in its first session, which displays an emphasis on pollution prevention, the focus of attention in the second session clearly shifted toward natural resources conservation. Though some significant accomplishments in this area were recorded in 1978, the luster of these gains was dimmed by lack of action on several important issues and the failure to fully protect environmental values in some instances. In its first session in 1977, the 95th Congress amended the principal air1 and water2 pollution control laws, incorporating changes that represented a partial retreat from the strict statutory standards they replaced. The new strip mining law,3 toward which environmentalists had been working for years, was not as strong as the bill that had been vetoed in 1976 by President Ford. In 1978, Congress extended special environmental protection to large areas of the public lands, but it failed at the last minute to settle the fate of the great tracts of untouched public lands in Alaska. The House of Representatives sustained President Carter's veto of the expensive public works bill authorizing vast sums for several environmentally detrimental water projects. On the other hand, Congress continued funding for a number of questionable water resources projects and failed to impose a substantial fee on commercial users of inland waterways to pay for facility maintenance. Although funding for Endangered Species Act programs was reauthorized, the Act was weakened through amendment, drawing strong criticism from many quarters that there was no need for Congress' dilution of its strict prohibition against federal activities which threaten protected species.
The most significant and visible non-event of the second session was Congress' failure to complete action on what many environmentalists term "the conservation issue of the century," protective designation of about 100 million acres of undeveloped federal land in Alaska. The attention drawn to this one issue, however, tended to obscure the passage of a number of other measures that took major steps in ensuring that large areas of environmentally significant public lands in the lower 48 states will be protected. Moreover, much of the effort spent on the Alaska lands bill can be seen as an investment in similar legislation to be introduced early next year, and with the momentum that has been generated, the 96th Congress may finally resolve this crucial issue in a manner which preserves vast areas of unmatched natural beauty on the nation's last frontier.
The Alaska lands issue had its genesis in the Alaska Native Claims Settlement Act of 1971 (ANCSA) which gave the Secretary of the Interior authority to withdraw from potential development or resource extraction up to 80 million acres of federal lands.4 December 18, 1978 was set as a deadline by which time Congress was obligated to identify, based on the Secretary's proposal, specific areas of Alaska as units of the national park, national forest, national wildlife refuge, and national wild and scenic rivers systems, after which time the remaining federal lands would become eligible for selection by the state (104 million acres) or native regional and village corporations (44 million acres) pursuant to the Alaska statehood legislation and ANCSA. The issue shaped up as a classic battle between those who did not want to see vast federal holdings locked away from development for timber and mineral resources and those who saw Alaska as the last chance to preserve large areas of the country in their natural state. The pressure imposed on Congress by the approaching deadline was heightened by a massive lobbying campaign on a nationwide scale by both sides of the controversy.
In late 1973, the Nixon Administration submitted a proposal to Congress calling for a federal withdrawal of 83 million acres.5 In June this year, the House passed a bill that would have placed 124 million acres in the four systems, 63 million of which would be added to the more restrictive wilderness system.6 The bill proposed to more than double the total acreage of the national park and national wildlife refuge systems and triple the size of the national wilderness preservation system. Early in October, the Senate Energy and Natural Resources Committee amended the House bill to place a total of 99 million acres in the four land conservation categories with only 34 million acres earmarked as wilderness. The whittling down of the House version reflected to a large degree the intense opposition of the Alaskan congressional delegation and representatives from the governor's office, particularly the active intervention of Senator Stevens. Before bringing the bill to the Senate floor, Senate and House sponsors, and ultimately Interior Secretary Andrus, attempted to negotiate a compromise which would have put 100 million acres in [8 ELR 10222] the four systems with 51 million acres going to wilderness. The negotiations collapsed on the next to last day of the session because of the intrasigence of Senator Gravel (D.-Alas.) who demanded seven specific transportation corridors through the protected lands for pipelines, railroads, and highways.
Senator Jackson (D.-Wash.), chairman of the Energy Committee, has promised to make this question an early and high priority next year, but in the meantime the Secretary of the Interior announced on November 16 and emergency withdrawal of 110 million acres pursuant to § 204(e) of the Federal Land Policy and Management Act (FLPMA).7 This withdrawal is intended to block selection of federal lands by the state and the native corporations and to prevent private development of mineral and timber resources when the withdrawal authority expires on December 18. The FLPMA provision, which is only one of several sources of statutory authority available to the Secretary for protecting the Alaska lands after Congress failed to take action,8 provides for only a temporary withdrawal of up to three years while Congress makes final allocation decisions. Another alternative, use of the Antiquities Act of 1906 to designate national monuments,9 would provide permanent protection for certain areas, but since it would bypass congressional participation in the process, the Administration may choose not to use it. The State of Alaska had previously filed suit to prevent any administrative withdrawal of Alaska lands,10 and it thus seems likely that Secretary Andrus's action will quickly be tested in court.
There was far less controversy over other legislation to protect federal lands. The National Parks and Recreation Act of 1978,11 the largest parks bill in history and sometimes referred to as the "park barrel" measure, authorized $1.2 billion for the acquisition, development, and expansion of more than 100 parks and preservation projects in 44 states. Included were the addition of California's Mineral King Valley, which had been sought as a ski resort site, to the Sequoia National Park, designation of 37 miles of the Middle Delaware River as a wild and scenic river, thereby putting a halt to the controversial Tocks Island Dam, and protection of one million acres of the New Jersey Pine Barrens. In addition, the bill provides $70 million annually for the next four years to fund up to 70 percent of the costs of rehabilitating urban recreation areas.
The Endangered American Wilderness Act12 added 1.3 million acres in nine western states to the National Wilderness Preservation System, thereby exempting those lands from commercial timber harvesting. The controversial expansion of the Redwoods National Park in California was accomplished13 by adding 48,000 acres to prevent nearby logging that was causing serious spillover problems within the original park boundaries, and funding was provided to ameliorate the effects of the action on the local economy. In addition, the bitter dispute over motorboat use in the Boundary Waters Canoe Area, the largest expanse of wilderness east of the Rocky Mountains and the most heavily used one in the nation, was settled. In creating the Boundary Waters Canoe Area Wilderness,14 Congress agreed to a compromise that reduces motorboat usage to 50 percent of current levels. Timber harvesting will be phased out, strong restrictions were placed on mining, and snow-mobile use was prohibited except on several long-established trails where use will be permitted only for the next five years.
Deterioration of public grazing lands, which constitute most of the 170 million acres of western rangelands under the jurisdiction of the Bureau of Land Management, has been a serious problem for many years, and the Public Rangelands Improvement Act of 197815 has committed the federal government to a major range rehabilitation program by authorizing expenditure of $360 million for improvements over the next 20 years, at least 80 percent of which must be spent on maintenance and rehabilitation measures. The Act also resolves a longstanding controversy regarding the proper fees to be charged range users. Over the years, and with the recent support of the Carter Administration,16 conservationists have complained that any grazing fee set at less than the full market value constituted an unwarranted subsidy of the ranching industry and resulted in overgrazing of the federal lands. During the summer, Congress imposed a one-year moratorium on any grazing fee increase to allow itself time to evaluate different proposals.17 In the Rangelands Improvement Act, Congress declined to set grazing fees at fair market value, and instead it established a formula tied to the ranchers' cost of production and the beef price index, a far more attractive approach for the industry. The bill also provides for more extensive management and control of over-populations of wild horses and burros on the public rangelands.
One of the major environmental successes of 1978, although it was not one on which Congress may be credited with taking the initiative, was restraint of the economically and environmentally wasteful proliferation of water resources development projects throughout the country. Following an all-out battle last year over 18 [8 ELR 10223] projects, in which he ultimately agreed to approve nine of the projects originally included on his "hit list," President Carter announced in June this year a major reform policy18 to tighten control over pork barrel spending for water resources development.Skirmishes continued through September as Congress passed a major public works appropriations bill19 in September which the President vetoed20 on October 5 on grounds that it was inflationary and inconsistent with the new reform proposals. The bill would have restored funding for six projects that had been presumed killed in 1977, mandated the hiring of 2,300 new employees by the federal construction agencies, eliminated funding for the Water Resources Council, and provided funds to initiate construction of 27 projects that the President estimated would actually cost taxpayers $1.8 billion over the next few years. Ignoring pleas by the leadership of both parties and in apparent response to heavy lobbying efforts by the White House, the House sustained the veto by a large margin the same day. Subsequently, Congress enacted a continuing appropriations resolution21 which did not include the six projects, funds for the 2,300 new employees, or 10 of the other 27 projects. The compromise also included an appropriation to continue in existence the Water Resources Council, to which President Carter will entrust the responsibility of implementing his water policy reforms.
Another water resources measure was blocked at the end of the session, but it was defeated only through parliamentary maneuvering. The Water Resources Development Act,22 an omnibus bill authorizing $1.4 billion for construction, repair, and preservation of 158 water projects in 46 states, was the product of a staff-negotiated compromise between different bills passed by the House and the Senate and in which most of the major projects from each bill were retained. To assuage Administration opposition to some projects that had not been cleared by the Corps of Engineers, the agreement required such approval before the projects could proceed. On the last day of the session, the bill was attached as an amendment to a highway pothole repair measure23 and passed by voice vote in the Senate. When the bill arrived on the House floor, environmentalists urged congressmen to stay away from the chamber, with the result that a quorum call failed by a substantial margin.
Although 1978 was not a successful year for water resources projects, the results are due not to an acceptance of reform proposals but to the give and take of the political process. Thus, water resources will undoubtedly be a major issue in the 96th Congress as well, and Congress as a whole does not yet appear to be ready to part with its highly valued power to scatter federally funded water projects around congressional districts.
Another initiative which was dear to the hearts of environmentalists but was lost through compromise was a proposal to recover federal expenditures on navigational improvements and facilities from commercial shippers. A year and a half ago, several Senate committees reported a bill24 requiring the government to recover 100 percent of the cost of all inland waterway maintenance programs and 50 percent of new waterway construction costs through a user fee. The House rejected this approach and adopted instead a six-cents-per-gallon tax on waterway barge fuel,25 which would have provided a much lower rate of recovery than the Senate formulation. Despite opposition from the Carter Administration, which wanted a "substantial" user fee, the Senate reversed itself and proposed a 12-cents-per-gallon tax along with a long list of water projects. When the water projects provision drew heavy fire toward the end of the session, the waterway user fee measure was attached to an unrelated bill and then passed,26 but the waterway user fee enacted was a mere shadow of what reformers had hoped for. In two years, a barge fuel tax will be phased in, reaching 10 cents per gallon by 1985. Revenues will be placed in a special trust fund for construction and rehabilitation projects but can only be used if specifically appropriated by Congress. As things now stand, the inland waterway system will continue to be financed substantially out of general tax revenues.
The recent Supreme Court decision27 affirming a controversial injunction against completion of the final stage of a Tennessee Valley Authority's Tellico Dam in order to preserve the endangered snail darter, a three-inch fish that was officially identified only four years ago, set the stage for a major dispute over reauthorization of funds to enforce the Endangered Species Act,28 funding for which was due to expire on September 30. The controversy involved § 7 of the Act, which prohibits federal agencies from taking any action which would jeopardize the continued existence of an endangered or threatened species or destroy its critical habitat. Despite considerable evidence that the Act was working well and that the number of irresolvable disputes was miniscule, there was some congressional sentiment that § 7 was too strict and should be repealed. The [8 ELR 10224] amendment that finally emerged,29 however, was not as major a revision as some had feared, but it did replace the Act's absolute mandate with a procedure whereby exemptions allowing the extinction of particular species could be obtained. Applications for exemption must first be approved by a review board upon its determination that good-faith efforts were made to avoid adverse effects on endangered species by modifying the project in question and that conflict continues to exist. Thereafter, a seven-member Cabinet-level committee30 may approve an exemption from the § 7 mandate, thereby allowing extinction of the species by federal action, if there are no "reasonable and prudent alternatives," the benefits of the action outweigh the benefits of the alternatives that would conserve the species and "the action is in the public interest," and the action is of "regional or national significance." Thus, the strict original statutory formal action was replaced by a device allowing exemptions on grounds that may well bring a multitude of lawsuits because of the inexact and judgmental nature of the standards. Also included is a citizen suit provision allowing challenges to decisions by the board and the committee. Furthermore, the Tellico Dam and the Grayrocks water project in Wyoming, which is faced with termination because it threatens the whooping and sandhill cranes,31 were mandated for early review by the committee. The final setback was that funding for programs under the Act was authorized for only 18 months, thereby leaving it vulnerable to further erosion in the next Congress.
Measures to protect wildlife had mixed success in other congressional developments. A bill to create a new federal program to assist states in conserving approximately 3,500 species of non-game wildlife was defeated largely because of its $40 million annual pricetag.32 Also, the federal program to require use of nontoxic steel shot instead of lead shot in waterfowl hunting areas suffered a setback.33 On the other hand, Congress authorized $26.5 million annually for conservation of fish and wildlife habitats on military reservations and Forest Service and Bureau of Land Management lands.34 The price of duck hunting stamps was increased from $5 to $7.50, thereby augmenting funding for migratory waterfowl habitat protection, but Congress deleted from the original bill a provision eliminating the current authority of state governors to veto proposed sales of private property to the Interior Department for wildlife refuge purposes.35 The payment-in-lieu-of-taxes program, whereby localities are compensated for land removed from local property tax rolls because of federal ownership, was extended to National Wildlife Refuge System purchases.36 Finally, the migratory bird conservation convention with Russia was ratified by the Senate,37 and implementing legislation for the international treaty for the conservation of Antarctic flora and fauna was enacted.38
Enactment of the very significant Surface Mining Control and Reclamation Act39 in the first session did not dampen the 95th Congress' interest in mining issues in 1978. An unexpected victory for environmentalists as well as the railroad industry came in the defeat in the House in July of a bill40 to promote development of slurry pipelines for transporting pulverized coal from western coalfields to eastern power plants. The key function of the proposed legislation was to give pipeline developers the power of eminent domain, subject to legal, environmental, and financial restrictions, particularly over railroad rights-of-way. The rail industry opposed the bill because of competition in the burgeoning and increasingly lucrative coal-hauling business. Environmentalists who feared a massive loss of scarce western water in order to operate the pipelines joined in this opposition, arguing that the water would be too dirty for subsequent reuse after having served its transporting function. The Senate gave the measure no further consideration after its defeat in the House.
[8 ELR 10225]
The most pressing mining issue, however, continues to be reform of the nation's hard rock minerals policy, as embodied in the General Mining Law of 1872.41 The current claim-patent system allows private occupancy and exploration on vast tracts of western land with virtually no commitment to resource development or environmental conservation. Even where minerals are extracted, the federal government is paid largely symbolic royalties. President Carter has joined the chorus of environmentalists calling for major reforms, including establishment of a royalty-leasing system similar to that used for oil, gas, and coal development and the imposition of environmental controls. The withdrawal of key congressional supporters, however, effectively killed the chances for reform this year.42
In amending a portion of the federal coal leasing law,43 Congress backed away from a sensible proposal giving the Department of the Interior broad authority to exchange coal leases in environmentally sensitive areas, such as those near national parks, for coal leases on lands that could be mined with lesser environmental damage. Near the end of the session, the Senate acceded to aHouse compromise that limited Interior's lease exchange authority to only three specific areas.44
Major revision of the Outer Continental Shelf Lands Act of 1953, prompted in part by the recent expansion of offshore oil and gas development on the Atlantic coast, was finally completed in 1978 after four years of negotiation.45 The principal reforms are designed to stimulate bidding competition for leases, increase state participation in federal leasing decisions, and provide for tighter environmental protection in drilling and production activities. In the past, the biggest roadblock to compromise was the Senate's insistence upon federal exploration of the outer continental shelf (OCS) resources in advance of public offering of leases. The recent compromise leaves intact the original statutory language, authorizing the Secretary of the Interior to conduct "geological and geophysical explorations," but any use of this authority is expected to be challenged in court. Small, independent companies will be encouraged to bid on OCS leases because between 20 and 60 percent of the tracts offered in the next five years must be offered through alternate bidding systems allowing payment of government royalties out of production revenues rather than through the advance payment cash bonus system that has historically favored large and heavily capitalized oil companies. The amendments allow states and localities off of which OCS development will take place to submit recommendations on proposed lease sales or development and production plans. Several provisions particularly please environmentalists. Air pollution from OCS activities is subject to Clean Air Act standards where it threatens the air above the adjacent shoreline, although there is no protection from the harmful effects to the air above the OCS activity or air in other parts of the country. Environmental studies of broad geographic leasing areas are required, as is submission of development and production plans for future leases and for existing leases where oil or gas has yet to be found. Also, leases may be suspended or cancelled if there is a threat of harm or damage to the marine, coastal, or human environment from the OCS development activities. Finally, a citizen suit provision was included to afford a remedy for violations of the Act, of a lease, or for failure by the Secretary to perform a nondiscretionary statutory duty.
Another significant accomplishment was passage of the Port and Tanker Safety Act of 197846 which imposes stringent tanker and crew safety standards in an effort to curb oil spills. The new statutory standards, which are similar to the standards agreed to nine months ago by the 62-nation Inter-Governmental Maritime Consultative Organization, require ships using United States ports to carry electronic collision prevention gear, and authorize the federal government to operate harbor vessel control systems similar to those used for airports. Although double hulls are not required, the law does mandate segregated ballast compartments to end the pollution caused by filling oil cargo tanks with water for ballast and then dumping the oily water at sea prior to taking on a new cargo. At-sea washing of oily tanks is directly prohibited by the new law for ships calling at domestic ports. Retrofitting of new washing systems and segregated ballast compartments is required for tankers over 40,000 deadweight tons and also for older tankers. Ships with histories of accidents are barred from United State waters.
Sadly, the issue of the management of international ocean resources remains unsolved, however. Seabed mining legislation passed the House in July,47 but it failed to come to the Senate floor in the waning hours of the session due largely to the efforts of Senator Abourezk (D.-S.D.), who regarded it as special interest legislation and premature until conclusion of a treaty by the United Nations Law of the Sea Conference. For years, this body has proven unable to reach agreement on who may mine the ocean floor and how the revenues are to be shared among the nations; at this point, a treaty does not appear to be imminent, although negotiations will resume in Geneva in March 1979. As passed by the House, the bill did not contain the investment guarantees sought by mining companies to protect against the consequences of an unfavorable treaty, although it did include significant [8 ELR 10226] environmental review procedures.48 Because of Carter Administration interest and the mining companies' concern, the legislation is sure to come up again next year.
Although Congress and the President congratulated themselves on finally producing a national energy plan, the legislative and result should be viewed largely as a symbolic victory because little remains of the ambitious program proposed 18 months ago,49 and the major energy and environmental effects of the five-part plan that was finally enacted are still largely unknown. The most difficult part on which to reach a compromise was the plan to deregulate natural gas prices.50 The conflict was essentially whether and if so how to discontinue gas price controls, with the President favoring continued controls, including extension to the unregulated intrastate market. The compromise which was recently signed by the President mandates that the price of newly discovered gas be allowed to rise 10 percent anually until 1985, when controls on new gas will be lifted entirely. In the interim, the law imposes a thicket of gas price classifications that some critics consider so inordinately complicated as to render the system unworkable.51 In another part of the National Energy Plan, Congress declined to set a rigid requirement that industrial and utility users of oil and gas convert their facilities to coal or other fuels.52 Although new users are required to install such facilities and existing users must convert by 1990, exemptions may be obtained if problems such as an inadequate coal supply or other economic difficulties arise. Furthermore, the proposed tax on industrial use of oil and gaswas deleted.
Also as part of the energy package, Congress required state utility commissions to consider federal rate-making guidelines, such as peak-load pricing, but refused to make conformance with the guidelines mandatory.53 The energy conservation component of the plan54 was relatively uncontroversial and called for dissemination of information by utilities, grants and government-backed loans for installation of solar energy and conservation systems, and mandatory efficiency standards for major home appliances. Finally, the tax provision55 added an even more powerful economic incentive for conservation by providing tax credits for residential installations of energy-saving equipment. The crude oil and gasoline taxes were dropped, and the "gas guzzler" tax on inefficient automobiles will become effective as of model year 1980 and is less ambitious than what was originally envisioned.
The White House publicly predicts that these measures will conserve up to 2.95 million barrels of oil per day by 1985,56 in contrast to the 4.5 million-barrel reduction which had been an earlier target. Using even this optimistic estimate as a guide, the legislation will take only a relatively small step toward cutting back the nation's lavish consumption of energy as well as its dependence on foreign sources of oil.
Even less certain than the energy plan's likely effect on domestic consumption are its environmental implications. Obviously, as conventional energy production is reduced there will be a reduction in air emissions and pollution attendant to fuel transportation and distribution cycles. A key objective of the plan, however, is to convert from the scarce but relatively clean fuels such as oil and gas to more plentiful but environmentally less benign fuels such as coal and uranium. Clear-cut environmental gains are available from the stimulation of energy conservation and solar energy systems. Unfortunately, these technologies are in their infancy, and their successful development remains highly contingent on the continuing determination of Congress and the Executive Branch to make them a reality.
Enactment of the Non-Proliferation Act of 1978,57 strengthening United States nuclear export policy, marked a major accomplishment. The law establishes the first explicit nuclear export licensing criteria, including (1) a requirement that all recipients of United States nuclear exports permit their facilities to be inspected by the International Atomic Energy Agency, (2) a cutoff of United States nuclear trade to any nation testing new nuclear weapons technology, and (3) a call for strengthening nonproliferation controls in all new and renegotiated agreements for nuclear cooperation. The law also mandates United States approval of the reprocessing of spent nuclear fuel derived from United States exports.
In addition, Congress passed legislation58 requiring the federal government to meet most of the costs of cleaning up potentially hazardous uranium mining wastes (mill tailings). Since the commencement of the domestic atomic energy program, almost 25 million tons of such wastes have been generated from the operations of 24 mills under federal contracts. Until recently, they had been thought harmless, and no federal agency had express authority to regulate or dispose of them. The new law requires the federal government to pay 90 percent of the cleanup costs, with the remainder to be paid by the [8 ELR 10227] states where the wastes are located. In addition, the Nuclear Regulatory Commission (NRC), to be assisted by the states, was given authority to regulate the environmental and health aspects of mill tailings from active and inactive uranium mills. In a separate measure,59 the NRC was directed to undertake major studies of the adequacy of safeguards at nuclear power plants.
In other areas, however, Congress failed to make much headway on nuclear issues. The President's nuclear licensing reform proposals,60 which proponents claimed would shorten the current 12-year lead time for planning and building a nuclear power plant, met a desultory response in Congress, but the issue seems likely to continue to serve as little more than a scapegoat for congressional dissatisfaction with the nuclear licensing process and the government's role in providing for nuclear waste storage. The fate of the Clinch River plutonium breeder reactor was left unresolved when Congress appropriated funds for the project but failed to pass an authorization bill. As a consequence, President Carter, who has been trying to kill the project for a year and a half, may simply decline to spend the funds.
National Environmental Policy Act
The National Environmental Policy Act (NEPA)61 was besieged on two fronts in the past year, one concerning the need for a single environmental impact statement for several related federal activities in the Colorado River basin and the other dealing with the international application of the statute.
In 1976, the Supreme Court acknowledged in Kleppe v. Sierra Club62 that a single comprehensive EIS may be required for programmatically related projects within a broad geographic region. In reliance on this precedent, a suit was filed earlier this year to compel the Department of the Interior to prepare a programmatic EIS for several water projects planned for the seven-state Colorado River basin.63 Critics of federal water resourcedevelopment in the region have focused on an alleged lack of comprehensive planning in order to conserve this scarce resource. In response to the suit, western senators attached an amendment to the Interior Department appropriations bill64 that would allow construction of any project in the series to proceed once its individual EIS is completed. The House ultimately acceded to the amendment, apparently viewing the issue as a water resources problem rather than an attack on NEPA. Although this action did not cut to the core of the statutory mandate, legislative exceptions to NEPA stand as unhelpful precedents and diminish the strength of the law's broad commitment to environmental protection.
The other attack on NEPA was in the hotly disputed area of the application of the statute to federal activities with environmental effects outside the United States.65 This year the controversy centered on the government's approval of American exports which have significant environmental effects in the receiving countries. In response to a lawsuit to compel the Export-Import Bank to prepare an EIS when it approves loans to foreign buyers of American products,66 an amendment was attached to the bill to reauthorize the Eximbank which would exempt the agency from any obligation to follow NEPA procedures. The amendment was ultimately dropped when the Eximbank was reauthorized in another bill. Another enactment subjected the imposition of environmental review procedures for nuclear exports to a requirement that efforts be made to establish cooperative agreements with the recipient countries to protect the environment from the hazards of nuclear activities.67 Still, the United States has yet to formulate a unified policy regarding the application of NEPA to federal activities abroad. President Carter is expected to issue an Executive Order on the subject in the next several months which will probably require full NEPA compliance when agency activities have adverse environmental effects in the United States or in the global commons. For activities that have environmental impacts solely in a foreign country, the agency will likely not have to prepare a formal EIS but only a lesser review of the environmental considerations pertaining to the activity.
In addition, the Senate passed a resolution68 urging the United States to conclude a multilateral treaty requiring signatories to prepare some form of environmental impact statements for any actions which would have significant adverse environmental effects in any nation or the global commons.
Passage of the Clean Water Act of 197769 constituted the bulk of the efforts of the 95th Congress to curb water pollution. Separate bills which passed each house would have increased liability for oil spills, but they foundered on the issue of whether spills of hazardous chemicals should be covered, as proposed in the Senate version. The oil industry opposed this as well as another Senate measure explicitly allowing states to impose oil spill requirements in addition to the federal measures, as many of the states already have done. Both the Senate and House bills70 would have established a $200 million "superfund" to pay for oil spill cleanup and damages when the spiller is unknown, to be financed from a tax of three cents per barrel on imported oil. The maximum liability [8 ELR 10228] for cleanup and damages from oil spills would have been set at $300 per gross ton71 or $300,000, whichever is greater, subject to a ceiling of $50 million under the House bill only. Failure to pass this legislation must be viewed as a major disappointment as oil and hazardous substance spills continue to plague the nation's navigable waters.
A last-minute amendment72 to § 311 of the Clean Water Act73 reversed a recent federal district court decision74 which had invalidated EPA's regulations governing hazardous spills. The court had ruled, inter alia, that the regulations failed to comply with the statutory requirement for determination of the precise discharge quantities which will result in actual harm, depending on the receiving water characteristics. The amendment, which embodies a compromise worked out by the parties to the lawsuit, allows EPA to move against spills which "may be harmful" and simplifies the Agency's regulatory burden in other ways as well.75
Amendment of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)76 was an additional highlight of the second session. The resulting new legislation,77 which has been brewing for at least two years, should give a boost to the government's pesticide program by streamlining the registration process and giving the states a larger role in enforcement. On the other hand, the amendments appear to loosen what had been fairly rigorous protective measures. For example, under FIFRA the Environmental Protection Agency (EPA) was required to re-register all pesticides after five years to determine their safety and to classify them for "restricted" or "general" usage. Due to a paucity of data in many cases, inadequacy of funds, and legal challenges, however, the re-registration process was making slow progress. The amendments now allow for streamlined "conditional registration" in three situations: for a pesticide that is identical to a pesticide currently registered under a different name, for a new use of an already registered pesticide, and for a new pesticide which will not cause an "unreasonable adverse effect" on the environment during the conditional period. Congress also expanded state registration authority without requiring a prior EPA determination of state competency to administer its program.78
The states now assume primary enforcement responsibility once they have an approved pesticide control plan in place, and EPA may then act only when the state fails to do so. This unfortunately paves the way for dilatory and inconsistent enforcement efforts throughout the nation. An additional provision narrows the statutory protection against disclosure of trade secrets to prevent the withholding of information on the possible harmful effects of pesticides. Prohibitions against public disclosure of health and safety data submitted by manufacturers relate only to information on manufacturing or quality control processes, methods of measuring ingredients in the pesticide product, and the exact formula of ingredients. Finally, foreign purchases of pesticides whose use is prohibited in the United States must sign a statement acknowledging that they are aware of this prohibition. The pesticide label must provide the same information required for domestic sale and must disclose that the substance is not registered in the United States.
In another noteworthy development, EPA received an appropriation79 of three times the amount originally authorized to carry out its responsibilities under the Toxic Substances Control Act.80 This appropriation made unnecessary a separate bill81 authorizing the same increase but which had become a vehicle to provide compensation for victims of toxic chemical contamination.82 The compensation scheme ultimately failed to win passage because of conflicts over whether there should be a broad compensation program, instance-by-instance assistance, or none at all. Congress may well face this problem again next year, however.
The problem of noise pollution continued to draw a low priority in Congress. The House Public Works and Transportation Committee developed a major piece of legislation, which passed the House several months ago, aimed at controlling aircraft noise,83 but an irreconcilable conflict with the Senate over the financing mechanism resulted in its demise. The House bill had proposed that one quarter of the current eight percent federal excise tax on passenger tickets be left with the airlines to provide about $3 billion in funds with which to replace older noisy aircraft and to retrofit planes with quieter engines. The special ticket tax meant that necessary compliance measures would be funded by users rather than the general public. Critics viewed the measure as a large subsidy to the airlines to meet their noise abatement obligations, an action which would serve as a bad precedent for other industries that are hard-pressed to comply with environmental regulations. The only progress in the noise pollution area for the 95th Congress was a one-year reauthorization84 of the Noise Control Act of 1972.85 In [8 ELR 10229] that bill Congress added a provision allowing EPA to seek civil penalties, in addition to the already-existing authority for criminal penalties for violations of noise abatement regulations. This will ease the Agency's burden of proof in certain enforcement actions.
Overall, the environmental record of the second session of the 95th Congress can be characterized as positive. The record of both sessions, however, shows that the congressional infatuation with the goal of environmental purity evident earlier in this decade has given way to a heightened sensitivity for the economic and social costs of environmental improvement. The current dispute within the Executive Branch over the economic impact of environmental regulation is but another variation of this theme. The lawmakers put off until next year a number of important questions, such as the fate of the Alaska national interest lands and the construction of billions of dollars worth of water resource projects. In the 96th Congress, these crucial environmental issues will likely be resolved in an arena in which economic concerns play an increasingly dominant role.
1. Clean Air Act, as amended, 42 U.S.C. §§ 7401-7642, ELR STAT. & REG. 42201. See generally Comment, The Clean Air Act Amendments of 1977: Expedient Revisions, Noteworthy New Provisions, 7 ELR 10182 (1977).
2. Federal Water Pollution Control Act, as amended by the Clean Water Act of 1977, 33 U.S.C. §§ 1251-1376, ELR STAT. & Reg. 42101. See generally Comment, The Clean Water Act of 1977: Congress Passes "Mid-Course Correction" Amendments to the FWPCA, 8 ELR 10010 (Jan. 1978).
3. Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. §§ 1201-1328, ELR STAT. & REG. 42401. See generally Comment, The Strip Mining Law: Conflicting Goals Underlie Balanced Regulatory Requirements, 7 ELR 10160 (1977).
4. 43 U.S.C. § 1616(d)(2).
5. This amount was actually proposed under authority of § 1616(d)(1); however, 67 million acres of this total were also proposed pursuant to § 1616(d)(2).
6. Alaska National Interest Lands Conservation Act, H.R. 39, 95th Cong., 1st Sess. (1977).
7. 43 U.S.C. § 1714(e), ELR STAT. & REG. 41463.
8. See Department of the Interior, Draft Environmental Supplement, Alternative Administrative Actions: Alaska National Interest Lands (No. 81149DS) (Oct. 20, 1978).
9. 16 U.S.C. §§ 431-433.
10. Alaska v. Carter, No. A78-291, ELR PEND. LIT. 65587 (D. Alas., filed Oct. 30, 1978).
11. Pub. L. No. 95-625, 92 Stat. 3467 (Nov. 10, 1978).
12. Pub. L. No. 95-237, 92 Stat. 40 (Feb. 24, 1978).
13. Pub. L. No. 95-250, 92 Stat. 163 (Mar. 27, 1978).
14. Pub. L. No. 95-495, 92 Stat. 1649 (Oct. 21, 1978).
15. Pub. L. No. 95-514, 92 Stat. 1803 (Oct. 25, 1978).
16. Section 401 of the Federal Land Policy and Management Act of 1976, 43 U.S.C. § 1751, ELR STAT. & REG. 41470, calls for a study by the Secretaries of the Interior and Agriculture to determine a grazing fee which is fair both to the United States and to grazing permittees. An interdepartmental technical group recommended a fee system heavily weighted in favor of costs of production and introducing an "ability to pay" factor. The Carter Administration, however, favored pegging the fee at fair market value, similar to what would be charged for grazing on private lands.
17. Pub. L. No. 95-321, 92 Stat. 394 (July 21, 1978).
18. 14 WEEKLY COMP. OF PRES. DOC. 1044 (June 12, 1978). See also 124 CONG. REC. S8679 (daily ed. June 7, 1978).
19. Public Works for Water and Power Development and Energy Research Appropriation Act of 1979, H.R. 12928, 95th Cong., 2d Sess. (1978).
20. 14 WEEKLY COMP. OF PRES. DOC. 1707 (Oct 9, 1978).
21. Pub. L. No. 95-482, 92 Stat. 1603 (Oct. 18, 1978).
22. H.R. 13059, 95th Cong., 2d Sess. (1978).
23. Emergency Highway and Transportation Repair Act of 1978, H.R. 10979, 95th Cong., 2d Sess. (1978).
24. Inland Navigation Improvement Act of 1977, S. 790, 95th Cong., 2d Sess. (1977).
25. Navigation Development Act, H.R. 8309 (H. Res. 776), 95th Cong., 1st Sess. (1977).
26. Pub. L. No. 95-502, 92 Stat. 1693 (Oct. 21, 1978). A measure to provide funds to replace Locks and Dam 26 on the Upper Mississippi River accompanied the waterway user fee throughout its consideration The project is presently tied up in litigation over the adequacy of the environmental impact statement. See Atchison, Topeka & Santa Fe Ry. v. Callaway, 431 F. Supp. 722, 7 ELR 20377 (D.D.C. 1977).
27. Tennessee Valley Authority v. Hill, 98 S. Ct. 2279, 8 ELR 20513 (June 15, 1978). See generally Comment, Supreme Court Protects Snail Darter from TVA; Congress Poised to Weaken Endangered Species Act, 8 ELR 10154 (Aug. 1978).
28. 16 U.S.C. §§ 1531-1543, ELR STAT. & REG. 41825.
29. Pub. L. No. 95-632, 92 Stat. 3751 (Nov. 10, 1978).
30. The committee is composed of the Secretaries of Agriculture, the Army, and the Interior, the Chairman of the Council of Economic Advisors, the Administrators of the Environmental Protection Agency and the National Oceanic and Atmospheric Administration, and a representative, appointed by the President, of the state where the project is located. In the final legislative compromise, the Chairman of the Council of Economic Advisors replaced the Chairman of the Council on Environmental Quality, who had been slated to be on the committee during most of the negotiations.
31. In a recent court decision, federal loan guarantees and a dredge and fill permit for the project were invalidated because of violations of the National Environmental Policy Act, the Endangered Species Act, and the Federal Water Pollution Control Act. Nebraska v. Rural Electrification Administration, 8 ELR 20789 (D. Neb. Oct. 2, 1978). For an earlier decision dealing with the Grayrocks project, see Nebraska v. Ray, 8 ELR 20666 (D. Neb. July 21, 1978).
32. The Senate passed its version, Federal Aid in Nongame Fish and Wildlife Conservation Act of 1978, S. 1140, on May 24, 1978, but the House version, Nongame Fish and Wildlife Conservation Act of 1978, H.R. 10255, failed to reach a floor vote.
33. Section 306 of the Interior Department appropriations, bill, Pub. L. No. 95-465, 92 Stat. 1279 (Oct. 17, 1978), stated that no funds may be spent on the implementation or enforcement of the regulations, 43 Fed. Reg. 28205 (June 29, 1978), except where the state agency has approved the regulations. A number of states have so far declined to approve implementation and enforcement of the regulations.
34. Sikes Act Amendments of 1978, Pub. L. No. 95-420, 92 Stat. 921 (Oct. 5, 1978). An earlier version of the amendments, which was vetoed by the President, contained a controversial provision requiring presidential justification of budget requests. See Comment, National Wildlife Federation v. United States: Judicial Review of Environmental Budget Requests, 8 ELR 10202 (Oct. 1978).
35. Pub. L. No. 95-552, 92 Stat. 2071 (Oct. 30, 1978).
36. Refuge Revenue Sharing Act of 1978, Pub. L.No. 95-469, 92 Stat. 1319 (Oct. 17, 1978).
37. Executive K, 95-1 (July 12, 1978). See generally Comment, Migratory Bird Treaty with Russia: Continued International Wildlife Protection, 7 ELR 10026 (1977). The text of the treaty may be found at ELR STAT. & REG. 40318.
38. Pub. L. No. 95-541, 92 Stat. 2048 (Oct. 28, 1978).
39. 30 U.S.C. §§ 1201-1328, ELR STAT. & REG. 42401.
40. H.R. 1609, 95th Cong., 1st Sess. (1977). The House defeated the measure, 161-246. 124 CONG. REC. H6971 (daily ed. July 19, 1978).
41. 30 U.S.C. §§ 21-53. See generally Comment, Minuet Over the Mining Law of 1872: The Reformation of Federal Hard Rock Minerals Policy, 8 ELR 10083 (May 1978).
42. Congressman Udall (D.-Ariz.), Chairman of the House Interior and Insular Affairs Committee, was expected to be a major figure in reform efforts, but he withdrew because of the depressed condition of the copper mining industry in his state. Efforts in the Senate were sidetracked by the death of Senator Metcalf (D.-Mont.).
43. 30 U.S.C. § 201(a). The amendments are contained in Pub. L. No. 95-554, 92 Stat. 2073 (Oct. 30, 1978).
44. Two of the areas are in Wyoming, while the third is in Utah on the environmentally sensitive Kapairowitz plateau and prompted the proposal in the first place.
45. Pub. L. No. 95-372, 92 Stat. 629 (Sept. 18, 1978).
46. Pub. L. No. 95-474, 92 Stat. 1471 (Oct. 17, 1978).
47. Deep Seabed and Hard Minerals Act, H.R. 3350, 95th Cong., 1st Sess. (1977).
48. These procedures included preparation of programmatic environmental impact statements (EISs) for probable future development by United States citizens in broad areas of the ocean floor and separate EISs for the exploration and commercial recovery phases in specific areas.
49. See Comment, The National Energy Plan: Hitless After the First Inning, 7 ELR 10119 (1977).
50. Natural Gas Policy Act of 1978, Pub. L. No. 95-621, 92 Stat. 3350 (Nov. 9, 1978).
51. Wall St. J., Oct. 27, 1978, at 1, col. 5.
52. Powerplant and Industrial Fuel Use Act of 1978, Pub. L. No. 95-620, 92 Stat. 3289 (Nov. 9, 1978).
53. Public Utility Regulatory Policies Act of 1978, Pub. L. No. 95-617, 92 Stat. 3117 (Nov. 9, 1978).
54. National Energy Conservation Policy Act, Pub. L. No. 95-619, 92 Stat. 3206 (Nov. 9, 1978).
55. Energy Tax Act of 1978, Pub. L. No. 95-618, 92 Stat. 3174 (Nov. 9, 1978).
56. Projections for imports by 1985 range between 11.5 and 16 million barrels per day. Current consumption is about 18.2 million barrels daily, about 45 percent of that coming from abroad.
57. Pub. L. No. 95-242, 92 Stat. 120 (Mar. 10, 1978).
58. Pub. L. No. 95-604, 92 Stat. 3021 (Nov. 8, 1978).
59. Pub. L. No. 95-601, 92 Stat. 2947 (Nov. 6, 1978).
60. S. 2775, H.R. 11704, 95th Cong., 2d Sess. (1978). See generally Comment, Facilitating the Nuclear Alternative: Administration Submits Licensing Reform Proposals, 8 ELR 10087 (May 1978).
61. 42 U.S.C. §§ 4321-4361, ELR STAT. & REG. 41009.
62. 427 U.S. 390, 6 ELR 20532 (1976).
63. Environmental Defense Fund, Inc. v. Higginson, No. 78-1135, ELR PEND. LIT. 65576 (D.D.C., filed June 21, 1978).
64. Pub. L. No. 95-465, 92 Stat. 1279 (Oct. 17, 1978).
65. See generally Comment, Forthcoming CEQ Regulations to Determine Whether NEPA Applies to Environmental Impacts Limited to Foreign Countries, 8 ELR 10111 (June 1978).
66. Natural Resources Defense Council, Inc. v. Export-Import Bank, No. 77-0080, ELR PEND. LIT. 65444, 65541 (D.D.C., filed Jan. 14, 1977).
67. Pub. L. No. 95-630, 92 Stat. 3641 (Nov. 10, 1978).
68. S. Res. 49, agreed to by voice vote. 124 CONG. REC. S11522 (daily ed. July 21, 1978).
69. Pub. L. No. 95-217, 91 Stat. 1566 (Dec. 27, 1977). See note 2, supra.
70. S. 2083, H.R. 6803, 95th Cong., 1st Sess. (1977).
71. Under current law, the liability is $125 per gross ton or $250,000, whichever is greater. 33 U.S.C. § 1321(f), ELR STAT. & REG. 42134.
72. Pub. L. No. 95-576, 92 Stat. 2071 (Oct. 30, 1978).
73. 33 U.S.C. § 1321, ELR STAT. & REG. 42132.
74. Manufacturing Chemists Ass'n v. Costle, 455 F. Supp. 968, 8 ELR 20667 (W.D. La. Aug. 4, 1978).
75. For a discussion of the court decision and the amendment to § 311. see Comment, Eleventh Hour Amendment to FWPCA Resuscitates EPA's Hazardous Substances Discharge Regulations, 8 ELR 10229 (Nov. 1978).
76. 7 U.S.C. §§ 121-136y, ELR STAT. & REG. 41301.
77. Pub. L. No. 95-396, 92 Stat. 819 (Sept. 30, 1978).
78. States are not, however, authorized to approve the use of a substance that EPA has previously disapproved. Furthermore, EPA may intervene and override a state's approval of a certain use within the three months of its registration by the state.
79. Pub. L. No. 95-392, 92 Stat. 791 (Sept. 30, 1978).
80. 15 U.S.C. §§ 2601-2629, ELR STAT. & REG. 41335.
81. H.R. 12441, 95th Cong., 2d Sess. (1978).
82. Compensation of such victims was given a special urgency by a notorious incident in Michigan several years ago in which the toxic substance PBB was accidentally mixed with cattle feed. As a result, farmers and others suffered millions of dollars in cattle losses and health problems.More recent incidents in the same vein include the Kepone incident in Virginia and the Love Canal disaster in western New York.
83. Airport and Aircraft Noise Reduction Act, H.R. 8729, 95th Cong., 1st Sess. (1977).
84. Quiet Communities Act of 1978, Pub. L. No. 95-609, 92 Stat. 3079 (Nov. 8, 1978).
85. 42 U.S.C. §§ 4901-4918, ELR STAT. & REG. 41501.
8 ELR 10221 | Environmental Law Reporter | copyright © 1978 | All rights reserved