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Volume 17, Issue 1 — January 1987


Historic Preservation: A New Section 106 Process

by Charlotte R. Bell

Section 106 of the National Historic Preservation Act (NHPA)1 requires federal agencies to take into account the effects of their undertakings on properties eligible for or listed in the National Register of Historic Places. Agencies must afford the Advisory Council on Historic Preservation (the Council)2 an opportunity to comment on those undertakings, prior to any licensing or approval of the expenditure of funds.3 In 1979, the Council issued regulations setting out the means by which federal agencies were to comply with § 106.4 The process set forth in the regulations became known as the "Section 106 process."

In 1981, the President instituted a government-wide regulatory reform effort, calling on agencies to review existing regulations and revise them when necessary to reduce regulatory burden, increase agency accountability, and ensure well-reasoned regulations.5 The chairman of the Council initiated a review of the § 106 regulations. In September 1986, after considerable deliberation within the government, the Council published revised § 106 regulations.6

The Congress and the President: From Confrontation to Creative Tension

by James M. Strock

With the 100th Congress taking its place in Washington, now may be an appropriate time for the environmental community, broadly defined, to consider the increasingly contentious relationship which has evolved between the Congress and the executive branch on environmental matters. Indeed, the "relationship" has become more akin to a series of confrontations in which the greatest uncertainty is whether any specific incident might lead the Congress to precipitate legislative action. In many instances, the "creative tension" necessary for effective separation of powers has become dysfunctional, leading to mistrust among branches of government and thwarting much needed environmental reforms.

Both the Superfund Amendments and Reauthorization Act of 19861 and the vetoed Clean Water Act Amendments2 reflect the continuing tendency of the Congress to limit executive discretion in environmental law by means of detailed statutory provisions more like agency regulations than traditional statutes.3 As in the Hazardous and Solid Waste Amendments of 1984,4 Congress simultaneously moved with great specificity on particulars while leaving general ambiguity in its wake as to the manner in which many provisions are expected to work in practice, The new Superfund includes not only mandatory schedules for the achievement of cleanup activities,5 but also detailed procedures for decisionmaking as to cleanup standards at individual sites,6 and even specific numerical requirements of the number of employees to be assigned certain health assessment-related duties.7 Concerned but casual spectators at open meetings of the tortuous Superfund conference were often bewildered by the arcana discussed by members of Congress concerned with issues such as "Settlement Policy" and "Community-Right-To-Know."

The Congress: Past Imperfect, Future Tense

Editors' Summary: The 99th Congress closed out its second session with a flourish, passing several key environmental bills and coming close to agreement on several others. The new Democratic majority in the Senate gives every indication that the 100th Congress will be even more active. This comment reviews the major environmental activities of the 99th Congress' second session, and discusses the likely topics of environmental debate on tap for the first session of the 100th.

Rediscovering the Limits of the Regulatory Review Authority of the Office of Management and Budget

by Robert V. Percival

Editors' Summary: Environmental statutes frequently leave important policy and implementation issues to subsequent rulemaking by the Environmental Protection Agency. In practice, however, the EPA does not have a free hand in promulgating regulations; it has often needed to convince the Office of Management and Budget (OMB) of the wisdom of its proposals. In this article, the author outlines the legal basis of OMB involvement and describes the strengths and weaknesses flowing from OMB's authority. He notes that although vigorous oversight in the political process will continue as a key check on OMB, recent litigation also suggests areas in which courts may be willing to intervene.

Local Governments: Opportunities to Recover for Natural Resource Damages

by Joseph J. Maraziti

[R]emember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.

Judge Learned Hand1

In two recent cases,2 key federal district courts have concluded that municipalities may sue for damages to natural resources under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).3 Previously, it was widely assumed that only federal and state authorities could sue for natural resource damages.4 This cause of action is potentially of very great importance to financially hard-pressed cities and towns faced with tight budgets and the need to respond to hazardous waste contamination.

The Lawyer's Role in Decisionmaking--One Environmental Lawyer's Perspective

by Mary L. Walker

"Environmental Lawyer." Twenty years ago this term carried no meaning and one would have been hard pressed to find a member of the bar who would admit to such a legal invention. Historically, it originated in the environmental movement of the 1970s, as the momentum of new environmental requirements was simultaneously propelled by an active environmental constituency and challenged by the competing interests of industry. Conceptually, however, the environmental legal profession evolved, as have all others, from a very fundamental aspect of the law — to represent the interests of society and seek to resolvethose conflicts that arise when these interests are competing ones.

The environmental bar was only beginning as I entered the legal profession, yet I felt a deep affinity with those striving to provide advocacy for environmental protection. While admitting a "closeness to the cause," and a longstanding interest in our God-given natural resources, I did not come to this branch of law as a crusader. It has always seemed to me that man, in the pursuit of his very nature and intellect, creates conflict — or the potential for conflict — with his natural environment. That this conflict will arise is a certainty. It is how man resolves this conflict that will decide what legacy he leaves for future generations. It was the resolution of such conflict, the "balancing of the scales," that attracted me.

Public Nuisance and Public Plaintiffs: Ownership, Use, and Causation (Part II

by Louise A. Halper

Editors' Summary: In the second of a three-part series, Ms. Halper, an assisant attorney general for the state of New York, analyzes the question of land ownership, land use, and causation in the context of the state public nuisance action to remedy environmental damage. The article argues that the use of land, rather than ownership, is the key to liability in the public nuisance context, and compares this to the traditional private nuisance action. The final article in this series will discuss defenses that may be raised.

Citizen Suits and the NPDES Program: A Review of Clean Water Act Decisions

by Frank M. Thomas

Editors' Summary: The number of citizen suits brought by environmental groups under the Clean Water Act against companies that have allegedly violated the terms of their NPDES permits has increased dramatically in recent years. Spurred in part by district court decisions that have found defendants liable for violations of the Act solely on the basis of the data reported in the permittees' own discharge monitoring reports, environmental groups have scored several stunning victories. The author reviews the large body of case law that has emerged from the flood of Clean Water Act citizen suits, including judicial response to the most commonly asserted defenses raised by the permittees. In light of the general lack of success of these defenses, the author concludes that permittees must diligently perform their monitoring and reporting obligations.

Environmental Policy and Law in the USSR

by Oleg S. Kolbasov

The Soviet Union is the first country in which socialism as a philosophical concept has become a reality. Now the USSR is developing with the hope for a better future not only for its own people, but also for mankind. However, this development is not a smooth one. Going this way, we meet difficulties, we make miscalculations, and sometimes we are simply mistaken. Sometimes we go faster, but sometimes we go slower.

Nowadays, we are at the very beginning of the acceleration of socio-economic development of Soviet society. This direction was pointed out by the 27th Congress of the Communist Party of the Soviet Union (CPSU). But even before the Congress, it was perfectly clear that the country needed to renovate all aspects of its policy. This new course was declared by the new Party and State leadership, headed by the General Secretary of the Central Committee of the CPSU, Mikhail S. Gorbachev. This new course is unanimously supported by the nation.

The Applicability of CERCLA and SARA to Releases of Radioactive Materials

by Steven R. Miller

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),1 as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA),2 covers the cleanup of "releases" of radioactive materials from federal and private facilities into the environment. In addition, certain provisions of SARA that do not amend CERCLA also apply to radioactive materials. This dialogue explores the extent to which these laws apply to radioactive materials and the limited exemptions for such materials in these statutes. In addition, the growing overlap between CERCLA and the other federal and state laws that apply to radioactive materials is discussed.