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Volume 10, Issue 1 — January 1980
Recent scientific evidence has made it clear that air pollution emissions may have environmental effects in regions much more distant from the source than previously believed possible. Oxides of sulfur and nitrogen produced in the burning of fossil fuels and in smelting operations may be carried hundreds or even thousands of miles through the atmosphere, chemically transformed in the process, and eventually returned to earth as sulfuric and nitric acids, often in rain or snow. As a result, many areas of the United States and eastern Canada are now experiencing precipitation 25 to 40 times more acidic than "natural" rainfall.1 Though the problem has been developing for decades, monitoring has been sporadic, and only in the past two or three years have scientists begun to focus study on the phenomenon and its associated environmental effects. It is now clear that in receiving areas, which are especially vulnerable because of soil naturally low in the capacity to neutralize acids, acid rain and snow can have devastating consequences.
The acid precipitation problem is particularly difficult to deal with through traditional approaches to air pollution control. Acid-forming compounds are emitted as conventional air pollutants, but they return to earth either in precipitation, where arguably they are not an air quality problem, or as chemically altered compounds (sulfates and nitrates) which are not yet the target of direct regulation. The pollution routinely crosses internal political boundaries (state and provincial borders) and international boundaries, making existing locally oriented approaches to control inappropriate. The difficulties are exacerbated by the fact that low levels of acid pollution deposited over many years can accumulate to cause serious environmental damage.
The Council on Environmental Quality's Regulations To Implement the National Environmental Policy Act-Will They Further NEPA's Substantive Mandate?
Section 101 of the National Environmental Policy Act of 1969 (NEPA)1 sets forth a clear statement of national goals and policies to protect and enhance the quality of our environment. Section 101(a) requires that the federal government attempt "to create and maintain conditions under which man and nature can exist in productive harmony."2 Section 101(b) directs the government "to use all practicable means, consistent with other essential considerations of national policy," to achieve six overlapping and comprehensive objectives of environmental preservation and enhancement to the end that the Nation may —
From an environmental perspective, the midterm record of the 96th Congress was notable less for its achievements than as convincing evidence that the climate of concern and commitment to protection that led to a surge in environmental legislation in the early part of the 1970s has drastically changed. There is a certain irony in this shift because it comes at a time when continuing and newly recognized threats to environmental integrity beset the country as never before. Yet as the new decade begins, there is a greater understanding that the problems are more complex than was once thought and that the answers are correspondingly less obvious. In all quarters, there is a heightened sensitivity to the economic costs of environmental protection, and it is often accompanied by a somewhat jaundiced look at the tangible and intangible benefits that such costs produce. Despite the solid evidence of continuing public support for environmental protection,1 political opposition to environmental laws has broadened and become more powerful if the most recent session of Congress serves as a guide. In 1979, there was little final legislative action on environmental issues, and even rear-guard efforts to preserve earlier gains had difficulty competing with other major national concerns regarding the economy and foreign affairs.
Energy was the dominant issue in 1979, as environmental considerations were de-emphasized to facilitate a number of schemes to increase the nation's energy supplies. While 1980 may see a retreat from the President's proposed massive federal subsidization of synthetic fuel production, an action that could have major environmental consequences, a plan to overcome the delays in licensing energy facilities by waiving the deliberate review procedures set forth in environmental statutes is expected to pass. Protection of the vast undeveloped Alaskan lands was the major non-event as Congress failed to follow up on President Carter's administrative initiatives at the end of 1978.2 Congress did, however, make progress in grappling with the issues of hazardous wastes and spills of oil and toxic substances, but their final resolution in a Congress sensitive to the upcoming elections is difficult to forecast.
Economic Efficiency in Pollution Control: EPA Issues "Bubble" Policy for Exisiting Sources Under Clean Air Act
The Environmental Protection Agency (EPA) has been the target in recent years of growing criticism that its pollution control requirements are in many instances unnecessarily rigid and excessively expensive. These pressures, in combination with EPA's developing interest in economically based alternatives to traditional regulatory approaches to pollution abatement,1 have led the Agency to take several steps toward a regime that will, in its view, reconcile improved environmental quality with economic growth at the lowest possible cost. In this vein, the Agency is now making a major effort to encourage the development and use of alternative emission reduction strategies which are less costly and more flexible than current regulatory approaches. The basic aim of all these measures is to allow sources in certain circumstances the freedom to adopt more economically efficient pollution controls.
As a central component of this effort, EPA recently promulgated2 its final policy on the use of the "bubble" concept by existing sources to abate air pollution emissions. The concept is so named because it treats a source with multiple emission points as if an imaginary bubble with a single vent had been placed over it. The focal point for regulation under this approach is the aggregate of all emissions from the source. Provided that increases and decreases in emissions from plant components offset one another, theoperator would be free to adopt a different set of controls on stacks and other emission points as long as the alternative control strategy does not delay compliance with statutory deadlines or have an adverse impact on air quality. Emission reduction thus may be lessened on those plant components that are most expensive to control and correspondingly maximized on those emission points that are least costly to clean up.
Few areas of federal environmental law show less clarity and consistency than the limits of the federal government's constitutional powers over the nation's navigable waters. In particular, the concept of the "navigational servitude" — the government's virtually unfettered privilege to preserve, enhance, or condemn rights in navigable waters — has evolved erratically from its various constitutional and common law sources to the point where it defies precise definition. The United States Supreme Court has acknowledged this unsteady history, for which it is itself largely responsible:
[T]he shifting back and forth of the Court in this area until the most recent decisions bears the sound of "Old, unhappy, far off things, and battles long ago."1
This statement, however, is contained in a recent opinion demonstrating that the unhappy battles of long ago are far from settled. In Kaiser Aetna v. United States2 the issue before the Court was whether a real estate developer, which had dredged a 500-acre "fishpond" next to a Hawaiian beach to construct a marina and build on its shores a large resort and shopping complex, was entitled to restrict access to the marina to the resort's residents and commercial clientele. The United States had requested a district court to issue an injunction prohibiting the developers from denying use of the waters to the general public. The district court denied the requested relief3 and, despite a reversal in the Ninth Circuit,4 was upheld by the High Court, at least as to its conclusion that the public enjoyed no general right of access to the pond.
Hazardous Waste: EPA, Justice Invoke Emergency Authority, Common Law in Litigation Campaign Against Dump Sites
In Subtitle C of the Resource Conservation and Recovery Act of 1976 (RCRA)1, Congress created what it expected would be a comprehensive regulatory scheme for the management and disposal of hazardous waste. Over the last three years, the truly alarming nature of the threat to public health and the environment presented by the thousands of hazardous disposal sites throughout the nation has become more fully apparent, however. Congress' original underestimation of the scope and seriousness of the hazardous waste problem is reflected in RCRA itself. In the view of the Environmental Protection Agency (EPA), the agency charged with interpreting and implementing the Act in the first instance, the statute embraces only active waste disposal sites within its regulatory mandate.2 According to EPA, the only section of the Act applicable to inactive or abandoned sites, which appear to present the most serious and immediate threat, is the imminent hazard provision in § 7003.3 This measure authorizes the Agency to bring suit to enjoin storage or disposal of any hazardous waste that "is presenting an imminent and substantial endangerment to health or the environment."4
EPA has yet to issue final regulations to implement the Act. In an attempt to address problems at existing waste disposal sites during this regulatory hiatus and to control inactive sites as well, EPA and the Department of Justice, which has established a new Hazardous Waste Section for this purpose, have begun filing a series of lawsuits based upon a number of legal theories, including § 7003.5 The government's innovative claims for relief in these cases raise a number of interesting and important legal issues. Ironically, the success of this litigation effort may hinge to a large degree on application of venerable nuisance law principles rather than the newer statutory imminent hazard provisions.
Charting the Boundaries of NEPA's Substantive Mandate: Strycker's Bay Neighborhood Council, Inc. v. Karlen
According to at least some of the voluminous literature on the subject, the National Environmental Policy Act (NEPA)1 may be an excellent example of effective environmental legislation, but it suffers from one serious limitation: the lack of a "substantive mandate."2 These commentators argue that NEPA falls short of its potential, and perhaps its goals, because it fails explicitly to impose upon federal agencies a legally enforceable directive to enhance and refrain from degrading the environment. The absence of a single plaintiff's victory in a "substantive NEPA case"3 is accentuated by the extraordinary success record of those challenging agency noncompliance with the law's procedural dictates, specifically with respect to the preparation of environmental impact statements (EISs).
Although NEPA could have been drafted to pack more of a substantive punch,4 the contrast between its procedural strength and its substantive weakness is more interesting as an academic issue than important as a practical matter. This is demonstrated by a series of court decisions in which judges have avoided the harsh and often elusive distinction between the Act's substantive and procedural requirements and instead have instituted a thoughtful application of traditional principles of judicial review against a backdrop of the nation's environmental policies. Nevertheless, the notion that a chasm runs through the statute is firmly rooted.
A question that has long eluded definitive judicial resolution is whether a federal agency's failure to prevent an environmental significant state or private activity from occurring can constitute major federal action for which an environmental impact statement (EIS) must be prepared under § 102(2)(C) of the National Environmental Policy Act (NEPA).1 It is well established that the Act requires a federal agency to prepare an EIS analyzing such a non-federal project when it proposes to approve financial assistance or issue a permit without which the activity could not proceed.2 Moreover, an agency's failure to exercise its authority to stop a state or private action from taking place may obviously have much the same practical effect on the environment as issuance of a federal license or permit for the project. Those courts that have addressed the issue, however, have divided over whether such "inaction" can be considered "major Federal action" under NEPA.3
The difficulty of this problem has been illustrated most dramatically by conflicting decisions from courts on both coasts in several cases concerning the Department of the Interior's refusal to prepare environmental impact statements in conjunction with its failure to invoke its power under the Federal Land Policy and Management Act (FLPMA)4 to prevent state-sponsored aerial wolf hunt programs from going forward on certain federally managed lands in Alaska. A recent ruling by the District of Columbia Circuit Court of Appeals appears to reconcile the two previously divergent lines of authority and strongly reinforces the view that such agency inaction is generally not subject to NEPA's EIS requirements. The court's opinion also represents one of the first judicial examinations of federal versus state roles in managing wildlife on federal lands under FLPMA. Some uncertainty nevertheless remains as to precisely how agency inaction and action are to be differentiated for NEPA purposes.
The stiff monetary sanctions, injunctions, and even prison terms that are authorized to be imposed upon violators of the federal pollution control laws1 act as a "big stick" with which timely compliance is encouraged by federal and state enforcement authorities. There are circumstances, however, in which these remedies are simply not effective or realistically available. An example of such a case is where the noncompliant facility is publicly owned, such as a municipal electric utility. In this situation, practical and political considerations militate against the (1) levying of monetary sanctions, (2) issuance of injunctions against further operations, or (3) jailing the responsible public officials. In addition, traditional enforcement sanctions are likely to be less than ideally effective in the not uncommon case where the public or private violator is in poor financial health.
In several recent decisions, state and federal courts have adopted the common law remedy of receivership as a mechanism to coerce intransigent violators into compliance with the requirements of pollution control laws. Where injunctive relief has failed to solve the problem and monetary penalties appear inappropriate, these courts have appointed a single administrator with virtually unrestrained power to ride herd on a corporation or municipally owned facility until compliance is achieved. For example, one recent case concerned a municipal sewage treatment plant that for years had been discharging effluents in violation of federal limitations as well as a judicial enforcement order.2 The court placed the plant under the direct control of a receiver who was given a mandate and full authority to take all measures deemed necessary to bring the plant into compliance. In another case involving a municipally operated electric generating plant that had fallen far behind a court-approved schedule for phasing the plant out of service, the court placed the facility under the control of a reciver rather than continue to cajole and threaten the existing management.3 Even more far-reaching are the implications of decisions by state courts in Ohio and Indiana that appointed receivers to assume control of privately owned corporations.4