ENVIRONMENTAL LAW ISSUES IN THE

ENVIRONMENTAL LAW ISSUES IN THE

DEVELOPMENT OF ENERGY RESOURCES

FRANK F. SKILLERN*

The National Energy Planl developed by President Carter presents serious challenges for the development of new energy alternatives. Not only are individual Americans urged to convert from traditional energy sources to new sources such as solar,2 but also industries and other large users are urged to convert from use of high-sulphur coal and oil to use of low-sulphur coaJ.3 The Administration's Energy Plan will not be examined here either for its merits or for an understanding of the particular elements of the Plan. Rather, its significance for development

. of alternative energy resources stems from its emphasis on those resources as a means to alleviate reliance on rapidly depleting supplies of domestic and foreign crude oil and natural gas. The mere suggestion of developing different energy resources raises serious concern that environmental quality will be sacrificed, rather than preserved and protected, in the exchange. For example, the development of nuclear power and strip-mining of western coal fields present a real threat of environmental harm. This in tum raises serious environmental law issues that have generated legislative, administrative, and judicial responses. This

Article will examine both those issues and the responses in greater detail.

Economic problems are generally beyond the scope of this paper. In particular, regulatory matters relating to the allocation and pricing of oil and gas products, although relevant, will not be considered. Similarly, the paper will not be concerned with the development of all energy resources. Particular emphasis will be given to the production of oil and gas, coal and lignite, and nuclear energy. Solar and geothermal resources will be discussed briefly. Other resources such as oil shale or hydroelectric power will be considered only insofar as they relate to the main topics. These topics will be discussed by first identifying the environmental considerations relating to the development of the alternative energy resource and then by examining the legal framework applicable to it or its environmental effects.

I. ENVIRONMENTAL ISSUES IN THE DEVELOPMENT

OF ENERGY RESOURCES

Development of any energy resource has its environmental conse-

*Professor of Law, Texas Tech University. B.A., 1964, University of Chicago;

J.D .• 1966, University of Denver; LL.M., 1969, University of Michigan. lENERGY POLICY AND PLANNING, EXECUTIVE OFFICE OF THE PRESIDENT, THE

NATIONAL ENERGY PLAN

(1977).

2Id. at 75-77.

31 d. at 63-66.

HeinOnline -- 29 Baylor L. Rev. 739 1977

740 BAYLOR LAW REVIEW [Vol. 29 quences. Conservation of natural resources by reducing the demand for energy may be the only alternative that has no adverse environmental impact. For this reason, any proposal to develop an alternative resource is not suggested simply because the alternative will be without environmental impact. Rather in each instance the adverse environmental impact of developing one resource over another must be evaluated and fairly balanced. Thus, urging industrial users and utilities to convert from the use of fuel oil to low-sulphur coal is in effect an exchange of different environmental problems. That exchange is between the transportation and air pollution problems associated with oil and gas for water pollution and land use problems involved in mining coal. These trade-offs can best be illustrated by examining the ramifications of developing energy alternatives on particular areas of the environment, specifically air quality, water quality, and land use.

A. Air Quality

The production of oil and gas presents a number of serious air pollution problems. A blowout during exploration or on a producing well, for example, may result in nondegradable organic waste on adjacent land.

4 If the crude oil in the blowout ignites, then hydrocarbons, nitrogen oxides, sulphur dioxide, carbon monoxide, as well as particulate matter, are released into the air.s Similarly, air pollutants released in the refining process include nitrogen oxides, sulphur oxides, and hydrocarbons.

6

Mining coal or lignite also creates air pollution problems. These arise largely from the use in the mining process of heavy equipment which produces serious noise pollution problems and causes fugitive dust and particulate emissions in the air.7 The trucks and machinery used in mining as well as the vehicles used by workers traveling to and from the mine release hydrocarbons, carbon monoxide, and nitrogen oxides into the air.s If coal is converted to oil or gas, the conversion process results in emission of sulphur dioxide and nitrogen oxides, as well as of particulate matter)'

4THE SCIENCE AND PUBLIC POLICY PROGRAM (UNIVERSITY OF OKLAHOMA),

ENERGY ALTERNATIVES: A CoMPARATIVE ANALYSIS 3-11 (CEQ Contract no.

EQ4ACO 34, 1975) [hereinafter cited as ENERGY ALTERNATIVES1.

AL PETROLEUM CoUNCIL, ENVIRONMENTAL CONSERVATION

See also, NATION-

101-109

(1972) [hereinafter cited as ENVIRONMENTAL CONSERVATION].

5ENERGY ALTERNATIVES, note 4,

6ENERGY ALTERNATIVES, supra. id. ENVIRONMENTAl, CONSERVATION, note 4, supra at

149-99.


SId. at 1-59 - 1-63.

9lcl. at 1-68-1-129. supra at 1-23 - 1-27.


1977] ENVIRONMENTAL LAW ISSUES 741

Air pollution problems are also present at the point of use of the oil.

If the oil is refined into petroleum products for automobiles and other vehicles, the so-called "automotive pollutants," hydrocarbons, carbon monoxide, and nitrogen oxides, are emitted when such products are used in vehicles. Similarly, when the oil is refined for use by power plants or industrial users, sulphur dioxide is emitted.

10 Sulphur dioxide emissions are also a problem for coal burning plants.

l l

B. Water Quality

The production of oil and gas can produce water pollution in several ways. Water residuals include nondegradable organics, dissolved solids, and suspended solids.

12 Surface or ground waters may be polluted by discharge, seepage, or runoff flow of these wastes. Other water pollution problems arise from the transportation of the oil and gas. If transportation is provided by tankers, water quality may be affected by the waste discharges of the tankers.

13 Water quality is also threatened by spills from tankers through a collision or other accident.

14 Even more serious hazards and safety problems are created with the transportation of liquefied natural gas by tanker.

IS

Major water pollution problems in mining are acid mine drainage and runoff of acid water from the exposed coal pile.

16 This runoff of acid water into a stream or groundwater is toxic to aquatic life and must be treated or controlled before reaching surface waters. Similar problems of disposal or treatment exist from runoff over a waste pile at the mining site or for the mine water.

C. Land Use Problems

Serious land use problems are raised by the production of oil and gas, coal, and nuclear energy. Because the land area involved for an oil well is less than that needed for mining purposes, land use problems involved in drilling for the oil and gas are not as severe as those associated with mining coal or uranium. The problems could be very serious, however, if the oil reservoir is located in an area of critical environmental concern.

10ENVIRONMENTAL CONSERVATION, note 4,

llE.g., ENERGY ALTERNATIVES, note 4, supra at 325-360. supra at 1-3 - 1-7; DIVISION OF STATION-

ARY SOURCE ENFORCEMENT, U.S. ENVIRONMENTAL PROTECTION AGENCY, FLUE GAS

DESULFURIZATION IN POWER PLANTS, 1-12 (1977).

12ENERGY ALTERNATIVES, note 4, supra at 3-37 - 3-42.

13E.g., ENVIRONMENTAL CONSERVATION, note 4, supra at 215-23.

141d. at 241-66. lSOmang, LNG Ship: Boon or Bombf, The Washington Post, Aug. 16, 1977, at p. AI, col. 1. See ENERGY ALTERNATIVES, note 4, supra at 4-40.

16Water pollution problems related to mining activities are discussed in depth in H. MARTIN AND W. MILLS, WATER POLLUTION CAUSED BY INACTIVE ORE AND

MINERAL MINES-A NATIONAL ASSESSMENT, 29-58 (Environmental Protection

Technology Series EPA-600/2-76-298, 1976).

Coal, 16 ENVIRONMENT 18 (1974).

See Dials and Moore, The Cost of


742 BAYLOR LAW REVIEW [Vol. 29

This problem perhaps is best illustrated by the oil resources in Alaska.

There, old and new problems in the production and the movement of the oil from Prudhoe Bay to Valdez were presented because of unique and environmentally sensitive land conditions.

Land use problems are always present in mining for coal or uranium.

Whether a deep mine or surface mine process is used to extract the mineral, the results are removal of the mineral and sometimes part of the land, the subsequent possibility of subsidence, and aesthetically unpleasing areas. Still more serious problems are created by stripmining, which is the least expensive and most popular method of extracting the minerals. Stripmining in its worst form would leave the area barren and uglyP Whether the land could or should be returned to its natural condition is a controversial issue.

18 The problem cannot be avoided in extracting the mineral, however, because mining is "site specific" and can only be done where the mineral is located. The problems are only intensified with respect to any mineral that is located in an environmentally sensitive region. Land reclamation and how it is to be accomplished remain unsolved issues.

Serious land use problems are associated with the refining of oil and natural gas and the use of the refined products. Locating a refinery in an industrial area may only compound an already existing air pollution problem

;19 however, this location may be desirable because of its proximity to the user. Refineries are often located in coastal regions because they are near the ports where imported oil is unloaded. Another land use problem in the development of oil and gas resources is the locating of pipelines to carry the natural gas from the point of processing to the point of use.

20 Similar issues may be presented to local zoning authorities by large users such as industry or utilities that may want to locate near the source, the refinery. Although the effect of one refinery or user may not exceed existing standards, the cumulative effect of several may be quite severe in many metropolitan areas.

Siting problems also exist in locating nuclear power plants. Utilities are the principal users of uranium. The demand for nuclear power typically is going to arise in metropolitan areas. Issues immediately raised in siting such plants include thermal pollution of the water 21

17See e.g., ENERGY ALTERNATIVES, note

16, supra.

18See

19See

20ENERGY ALTERNATIVES, note supra

4, at supra at

4-22 - 4-29.

1-41; Dials and Moore, note

35 CONGo Q. WEEKLY REP. 606-08 (April 2, 1977).

41 Fed. Reg. 55,524 (1976) (to be codified in 40 C.F.R. § 50.19).

4,

21Id. at 6-32 - 33; SPECIAL COMMITTEE ON ELECTRIC POWER AND THE ENVIRON-

MENT, ELECTRICITY AND THE ENVIRONMENT of the City of New York

38-40 (The Association of the Bar

1972) [hereinafter cited as ELECTRICITY AND THE ENVIRON-

MENT].


1977] ENVIRONMENTAL LAW ISSUES 743 and safety of nuclear power plants located near metropolitan areas.22

The land use problem is not avoided by placing the plant far from the city it serves. That decision only exchanges one land use problem for another. The high tension transmission lines then needed to carry electricity from the plant to the users present their own land use and aesthetic problems.

Thus, both the production and use of oil and gas or of coal and uranium to provide energy create serious issues regarding the quality of air and water and the use of land. These problems do not limit themselves to anyone resource or area; and the severity of the problem depends in large part on the location and the point of use of the resource.

Many of these issues of enhancement and preservation of environmental quality have spawned legislative and judicial responses which will be examined next.

II.

LEGAL ISSUES IN DEVELOPING ALTERNATIVE ENERGY RESOURCES

A. Air Quality

(1) The Statutory Framework-The 1970 Amendments

The basic legal framework to control or regulate air pollution consists of the federal Clean Air Act (CAA) Amendments of

1970 (1970 Amendments).23 The 1970 Amendments are an effort at cooperative federalism by combining uniform federal standards with state implementation. The federal government retains the upper hand, however. If a state does not adopt or enforce an implementation plan, the Environmental Protection Agency (EPA) is authorized to issue and enforce one for the uncooperative state.24 In addition the research and technological work under the Act may be undertaken as a joint effort of the state and federal governments. 2S

Under the 1970 Amendments the EPA sets national standards for ambient air quality26 and emission standards for new or modified stationary sources.27 The EPA promulgated national ambient air quality

22ELECTRICITY AND THE ENVIRONMENT,

id. at 33-38.

2342 U.S.C.A. §§ 1857 et seq. (Supp. 1977). [The Qean Air Act Amendments of

1970 were significantly amended and reclassified by the Cleean Air Act Amendments of 1977, Pub. L. No. 95-95, 91 Stat. 685. Because the reclassification of the text of both Acts is not yet available, citations to the 1970 Amendments will be to the appropriate section in 42 U.S.C.A. §§ 1857 et seq. (Supp. 1977). Citations for the

Clean Air Act Amendments of 1977 will be to Pub. L. No. 95-95 (to be codified in

42 U.S.c.A. §§ 7401 et seq.)].

2442 U.S.C.A. § 1857c-5 (Supp. 1977).

2SId. § 1857b.

26Id. § 1857c-4.

27Id. § 1857c-6.


744 BAYLOR LAW REVIEW [Vol. 29 standards for six pollutants on April 30, 1971.

28 These standards are to be implemented and enforced through state implementation plans.

The states had twelve months in which to adopt an implementation plan that would assure the attainment and maintenance of the national primary standards within three years after the approval of the plan.

29

The approval of the state implementation plan comes from the EPA after certain specific requirements are met

;30 once those requirements have been met, however, it is mandatory that the EPA approve the state plan.

31 If the state did not adopt an implementation plan, or adopted an inadequate one, the EPA must issue one for it. 32

(2) Problem Areas

An early issue under the 1970 Amendments was consideration of economic and technological factors relating to compliance with the standards. Industries and utilities wanted those factors considered at each stage of the process. Accordingly they would be considered by the

EPA in setting national standards, by the state in adopting an implementation plan, by the EPA in approving an implementation plan, and by the agency enforcing violations of the plan. Under such an approach establishing and enforcing standards would be greatly delayed by duplicative work at the state and federal levels.

33

The 1970 Amendments also raise land use problems. An early issue under the Act was whether clean air could be polluted up to the minimum level of the national standards. The question basically centered around whether the Act's policy of preserving and protecting existing clean air prohibited polluting already clean air. The District of Columbia

Circuit in Sierra Club v. Ruckelshaus 34 held that it did. That decision forced the EPA to issue so-called "no significant deterioration" regulations which established a land classification system that would protect existing air quality without stifling economic development.

3S

These "no

§§

28National Primary and Secondary Ambient Air Quality Standards, 40 C.F.R.

50.4-50.11 (1976).

2942 U.S.C.A. § 1857c-5(a) (2) (A) (i) (SuPP. 1977). Secondary standards had to be attained within a reasonable time. Id.

30Id. § 1857c-5(a) (2) (A)-(H); Train v. Natural Resources Defense Council,

421 U.S. 60, 95 S. Ct. 1470, 43 L. Ed. 2d 731, 7 ERC 1735 (1975).

31 42 U.S.c.A. § 1857c-5 (Supp. 1977).

32Id. § 1857c-5(c).

33See Kramer, Economics, Technology and the Clean Air Amendments of 1970:

The First Six Years,6 ECOLOGY L.Q. 161 (1976).

34

344 F. Supp. 253, 4 ERC 1205 (D.D.C. 1972), aff'd per curiam, 4 ERC 1815

(D.C. Cir. 1972), aff'd by an equally divided Court, sub nom. Fri v. Sierra Club,

412 U.S. 541, 93 S. Ct. 2770, 37 L. Ed. 2d 140, 5 ERC 1417 (1973).

3SSignificant Deterioration of Air Quality, 40 C.F.R. § 52.21 (1976).


1977] ENVIRONMENTAL LAW ISSUES 745 significant deterioration" regulations spawned intense litigation.

36

Another land use issue was raised in non-attainment areas, those places in which the concentration of pollutants in the air exceeds levels set by the national standards. To avoid total stagnation of economic development in non-attainment areas the EPA adopted a "trade-off" policy. Under this policy a new source could be built or an existing one expanded if a corresponding reduction in pollutant emissions could be achieved from an existing polluter.

37 The trade-off policy is highly controversial, and EPA's implementation of it has been threatened by recalcitrant states.

38

State implementation plans also presented problems. One has been the extent to which a state may grant variances from the national standards, either before or after the attainment date. The issue was raised because many state plans included variance provisions that authorized granting variances for economic, social, or hardship reasons.

39 These factors could not be considered by the Administrator in setting the national standards.

4o Moreover, the Act itself did not expressly authorize variances or individual exceptions to the application of the standard.

41

The Act did require the timely attainment and maintenance of the national standards through the state implementation plan.42

The EPA initially took the position that variances pursuant to a state plan were in effect a revision of that plan, and if the revision met the requirements of the Act, it would be granted.

43 The revision process is fairly simple and straightforward. It requires that a revision be approved if it has been adopted by the state after a public hearing before the state agency and if it does not affect attainment and maintenance of the national standards.44 Environmentalists, on the other hand, took the

36Sierra Club v. EPA, 540 F.2d 1114,9 ERC 1129 (D.C. Cir. 1976), ccrt. denied,

U.S. - , 97 S. Ct. 1610, 9 ERC 1992 (1977).

3741 Fed. Reg. 55,524 (1976) (Interpretative Rule 40 C.F.R. § 51.18 (1976».

38[1977] 8 ENVTL. REP. (BNA) (Curr. Dev.) 119 discusses a proposal before the

Texas Air Control Board to discontinue issuing permits in nonattainment areas.

Apparently that action was proposed in part to evidence disagreement with the

EPA emission offset policy generally and specifically to show (and hopefully influence) Congress with the seriousness of the nonattainment problem. ld.

39E.g., Train v. NRDC, note 30, supra (Georgia implementation plan).

40Under the 1970 Amendments primary ambient air quality standards are based on protecting the public health and national secondary ones on protecting the public welfare. 42 U.S.c.A. § 1857c-4(b) (1) and (2) (Supp. 1977).

41Train v. NRDC, note 30, supra. See 42 U.S.C.A. § 1857c-5(e) (Supp. 1977)

(time extension authorized for meeting national ambient air quality standards).

4242 U.S.C.A. § 1857c-5(a) (2) (A) (i) (Supp. 1977).

4336 Fed. Reg. 22,398 (1971). For case interpretation see e.g., NRDC v. EPA

478 F.2d 875,5 ERC 1891 (1st Cir. 1973). '

4442 U.S.C.A. § 1857c-5(a) (3) (A) (SuPP. 1977).


746 BAYLOR LAW REVIEW [Vol. 29 position that the revision provisions could not be used to grant a variance. They maintained that the only provision for individual exceptions to the national standards was section 110(f) of the Clean Air Act, which authorized postponement of the national standards under very strict conditions.4s Those conditions included a request by the governor, a hearing before the EPA, and a finding that continuation of the polluter's operation is essential to the national security, health or welfare.46

In addition, the postponement would only be for one year.

47 Because the variance issue, like many others, was basically a problem of statutory interpretation, it ultimately was presented to the courts for resolution.

(3) Cases Under the 1970 Amendments

The technological and economic feasibility argument was presented to the United States Supreme Court in Union Electric Co.

'lI.

EPA.48

The EPA's position was that under the 1970 Amendments it could not consider either economic or technological feasibility in approving or disapproving a state implementation plan (SIP). Nor could those factors be considered in setting national primary or secondary ambient air quality standards. Hence those factors could not provide a basis to review the Administrator's approval or disapproval of a SIP under section 307.

Union Electric, a Missouri utility, first disagreed with the EPA that economic and technological factors could not be considered by the EPA in reviewing SIP's. Then it argued that the information of economic and technological infeasibility arose more than thirty days after the EPA approval of the Missouri SIP. Finally, it was contended that under section 307 (b) review of the Administrator's approval was authorized.

The petitioner, Union Electric, had operated under the Missouri plan which set stricter standards than the national ones. The Missouri plan had a variance that the petitioner had used, but eventually the state denied a request for an additional variance. The petitioner then sought review under section 307 on the grounds that the petition was based on new facts arising after the approval of the plan. According to the petitioner, review on these grounds was proper even though the EPA could not have considered those facts in its original approval action.

The Court rejected the argument that the claim of economic or technological infeasibility provided new information authorizing review after the thirty day period provided for in section 307. The Court concluded that the factors contained in section 110 for the Administrator's con-

4STrain v. NRDC, note 30,

4642 supra at 71, 7 ERC at 1738.

U.S.C.A. § 1857c-5(f) (1) (A)-(D) (Supp.197'1).

47Id. § 1857c-5(f) (1). .

48_U.S.-,96 S. Ct. 2518, 49 L. Ed. 2d 474, 8 ERC 2143 (19'16).


19771 ENVIRONMENTAL LAW ISSUES 747 sideration in approving a state implementation plan did not include matters of economic and technological feasibility.49 It also upheld a state's authority to set stricter standards than the national ones under the

1970 Amendments.

so Relying on its earlier decision in Train v. Natural

Resources Defense Council,sl the Court determined that the stricter standards are consistent with the "technology forcing" objectives of the

1970 Amendments.52 Under the Act a state may, to protect public health, set strict standards which would force a business either to develop new technology or close down. Because the Administrator could not consider economic and technological feasibility in his initial approval of a SIP, those factors cannot constitute new information providing grounds for review either during or after the thirty day review period.

Economic and technological arguments have been raised in other contexts. In Friends of the Earth v. Potomac Electric Power Co.

(PEPCO),S3 a citizen suit was brought to enforce violations of the

Disfrict of Columbia implementation plan. In PEPCO the defendant argued that it was technologically and economically infeasible to comply with an absolute prohibition on visible emissions. Relying on Union

Electric, the court rejected the economic and technological arguments as a defense to an enforcement action. Rather those issues would be appropriately considered in fashioning a remedy for the violation. In the words of the court:

This does not mean that each source that is genuinely unable to comply with every requirement of an SIP must inevitably be closed; in formulating equitable relief the Court must always exercise discretion and balanced judgment. While this judgment must give dominant weight to the public health interests protected by the Act, the Court might for example, upon a finding of prior good faith efforts at compliance by the source. place it on a tight compliance schedule with shut-down specifically ordered if compliance had not been effected by a date certain. Whether such an extension of the original SIP requirements may be permitted will depend on the circumstances of each case, again with the public health criteria of the Act as primary guidelines. It may also of course be relevant to consider what relief plaintiffs actually seek: in the present case. they seek not shut-down but the maximum compliance possible given the current state of pollution control technology. 54

In Lloyd A. Fry Roofing Co. v. Environmental Protection AgencyS5

491d.

SOld.,

51 at -. 96 S. Ct. at 2529, 8 ERC at 2150.

8 ERC at 2149:

421 U.S. 60,95 S. Ct. 1470.43 L. Ed. 2d 731, 7 ERC 1735 (1975).

52Note 48, supra at 2529. 8 ERC at 2146-47.

53419 F. Supp. 528.9 ERC 1122 (D.D.C. 1976).

54Jd. at 535. 9 ERC at 1127.

55554 F.2d 885, 10 ERC 1082 (8th Cir. 1977).


748 BAYLOR LAW REVIEW [Vol. 29 a similar result was reached. In that case the plaintiff sought declaratory and injunctive relief against enforcement of the Missouri SIP through compliance or abatement orders. The Regional Administrator of the

EPA had sent a notice of violation to the plaintiff and informed it that a compliance order could be sought or a civil action could be brought under the Clean Air Act. Plaintiff sought a declaration that the actions of the EPA were impermissible and the orders unconstitutional. The

Fry court concluded that pre-enforcement review of standards under an implementation plan was precluded by the 1970 Amendments. According to the court, review of the standard issued pursuant to a SIP was limited to federal courts of appeals under section 307. Hence it lacked jurisdiction to hear the case. The court also concluded that it was not unconstitutional for Congress to limit time for review and restrict it to the appropriate court of appeals.

56

In addition to economic and technical feasibility issues, prevention of significant deterioration (PSD) of air quality has been a serious problem for the EPA after the Sierra Club

'V.

Ruckelshaus 57 nondeterioration ruling. Following that decision the EPA began formulating regulations on significant deterioration that would protect clean air areas and yet not stifle economic development. The regulations included areas of potential growth and development where the air quality is below the national standards.

As finally promulgated,58 the regulations established three categories for clean air areas in a state. Class I areas are those in which air quality must remain in its pristine or existing condition. It would allow virtually no development, because any change in air quality would be considered significant. Class II areas would allow moderate, controlled growth. Changes in air quality compatible with controlled growth would be considered insignificant. The third category is Class III. Under it, any change in air quality up to the national standards would be considered insignificant, and development limited only to the national standards would be allowed. Under the regulations the states were to classify their lands and thus determine areas of growth or preservation.

All existing clean air areas were classified II under the regulations until reclassified by a state. In its classifications, a state could consider various factors including social, economic, and population data.

The "Prevention of Significant Air Quality Deterioration Regulations" were reviewed and upheld in Sierra Club

'V.

Environmental Protection Agency.59 First the court rejected industry's contention that

56Id. at 892-93; 10 ERe at 1088-89.

57N ote 34, supra.

5839 Fed. Reg. 42,510 (1974).

59540 F.2d 1114,9 ERC 1129 (D.C. Cir. 1976).



Sierra Club v. Ruckelshaus 60 should be reconsidered in light of Train v.

Natural Resources Defense Council 61 and the Energy Supply and Environmental Coordination Act of 1974 (ESECA).62 The court held that neither the case nor ESECA directly affected the non deterioration aspect of the Ruckelshaus holding.

63 Concerning the merits of the regulations, the court held that they were valid even though they did not include all of the ambient air pollutants. The court concluded that the exclusion of four out of six of these pollutants was reasonable in light of the lack of technological data concerning the tie between the four automotive pollutants and air quality. The court also rejected the environmentalists' argument that economic and social considerations could not be used in determining significant deterioration of existing air quality. The EPA justified its use of other criteria by the lack of scientific data demonstrating the adverse effects of the pollutants on public health and welfare. The court agreed, stating,

[I]t was a rational policy decision that the significance of deterioration of air quality should be determined by a qualitative balancing of clean air considerations against the competing demands of economic growth, population expansion, and development of alternatives of sources of energy. The approach provides a workable definition of significant deterioration which neither stifles necessary economic development nor permits unregulated deterioration to the national standards.

64

The court went on to conclude that the regulations were neither arbitrary nor capricious nor unconstitutional.

Currently Sierra Club v. Environmental Protection Agency is on appeal to the Supreme Court.

65

The importance of that appeal may have been blunted somewhat by the recent Clean Air Act Amendments of 1977 (1977 Amendments) which have included provisions on PSD.66

In any event, the case or the 1977 Amendments, separately or together, will have important ramifications on locating new industries in existing

60Note 34,

6lNote 51,

62 supra. supra.

15 U.S.CA. §§ 791 et. seq. (1976).

63Sierra Club v. EPA, note 59, supra at 1124-30, 9 ERC at 1134-40.

MId. at 1132; 9 ERC at 1141 (citations omitted).

6SThe Sierra Club petition for certiorari was denied, -U.S.-, 97 S. Ct. 1610

51 L. Ed. 2d 811 (1977), but utilities were granted review, sub nom. Montana

Power Co. v. EPA, - U.S. - , 97 S. Ct. 1597, 51 L. Ed. 2d 802 (1977). The review was limited to the questions of 1) whether the Clean Air Act authorizes the PSD regulations and 2) can the EPA delegate its power to federal and Indian land managers. I d. Subsequently the Supreme Court remanded the case for reconsideration in light of the 1977 Amendments.

66See text accompanying note 202, infra.


750 BAYLOR LAW REVIEW [Vol. 29 clean air areas of a state. The 1977 Amendments are discussed in more depth later.

The variance issue turned out to be as controversial and confusing as PSD to the courts of appeals. The First Circuit determined that there was built-in flexibility in the 1970 Amendments which authorized states to grant variances before the mandatory attainment date.

67 But it concluded that after the mandatory attainment date no authority existed for the states to grant individual variances from the national standards.

The Ninth Circuit considered the same problem and agreed that the states had flexibility to grant variances.

68 However, it disagreed with the First Circuit's holding that the state's authority was limited by an arbitrary attainment date. The Ninth Circuit concluded that the state's flexibility to authorize variances existed either before or after the mandatory attainment date' so long as those variances did not affect the maintenance or attainment of the national standard. The Fifth Circuit reached yet a third result.

69 It determined that section 110(f), the postponement clause, was the only provision for any individual exceptions to the national standards. Hence the court concluded that unless the requirements of section IIO(f) were met, a state had no authority to grant a variance on any grounds to an individual polluter. It thus rejected both the EPA's "revision approach" and the First and Ninth Circuits'

"flexibility approach."

Because of this conflict among the circuits the United States Supreme

Court decided to review the Fifth Circuit's decision in Train v. Natural

Resources Defense CounciUo Although the case dealt with other issues concerning the contents of the Georgia SIP, the Court granted certiorari only to review the issue concerning variances. The Court concluded that the agency's interpretation of the statute-treating variances as revisions

-was reasonable and should not have been rejected by any of the circuit courts of appeals. In reaching this result the Court gave wide latitude to the agency to interpret its own statutory authority. In words that the

Court has frequently reiterated in subsequent environmental cases, it stated:

We therefore conclude that the Agency's interpretation of §§

110(a) (3) and 110(f) was "correct," to the extent that it can be said with complete assurance that any particular interpretation of a complex statute such as this is the "correct" one. Given this conclusion, as well as the facts that the Agency is charged with ad-.

67NRDC v. EPA, 478 F.2d 875,5 ER-C1891 (lst cfr.1973).

68NRDC v. EPA, 507 F.2d 90S, 7 ERC 1181 (9th Cir. 1974).

69NRDC v. EPA, 489 F.2d 390, 6 ERC 1248 (5th Cir. 1974),

Train v. NRDC, note 51,

70Note 51, supra. supra. mId sub nom.


1977) ENVIRONMENTAL LAW ISSUES 751 ministration of the Act, and that there has undoubtedly been reliance upon its interpretation by the States and other parties affected by the Act, we have no doubt whatever that its construction was sufficiently reasonable to preclude the Court of Appeals from substituting its judgment for that of the Agency.71

Train v. National Resources Defense Council dealt with another issue at the circuit level that was not considered by the Supreme Court. This was whether the Georgia SIP could use dispersion enhancement techniques as control strategies to attain the national standards.

72 In particular the Georgia SIP made the sulphur dioxide and particulate matter emission depend on the height of the smokestack of the source, the higher the smokestack-reaching into otherwise clean air-the larger the quantity of a pollutant that could be released. The Fifth Circuit considered two approaches to the problem. The first, called the "broad approach,"73 emphasized the provisions in the 1970 Amendments requiring emission limitations in an implementation plan and "such other measures as may be necessary to insure attainment and maintenance" of the national standards. Read together these mean that other measures can be used only if they are "necessary." The so-called "narrow approach"74 viewed the principal objective of the 1970 Amendments as attaining the national standards and doing so by any means available.

The court adopted the broad approach and held that dispersion control techniques could be used only if emission limitations were inadequate to attain and maintain the national standards.7

5 Under the Fifth Circuit approach the tall stack dispersion technique can be used in a state implementation plan only if an emission limitation alone is insufficient to attain a national standard or if it is demonstrated that the emission limitation is an unachievable or infeasible technology.

The Fifth Circuit's interpretation regarding dispersion and intermittent control techniques was followed in Kennecott Copper Corporation v. Train.7

6 Kennecott sought review of the EPA's rejection of part of the Nevada implementation plan which would have combined emission limitations with intermittent controls and conversion systems to attain the national standards. The Nevada plan allowed this because of economic considerations relevant to Kennecott's copper smelting plant. The

EPA-promulgated implementation plan required Kennecott to use both

'Illd. at 87, 7 ERe at 1744 (citations omitted).

72Note 69,

'I4Id. supra.

'I3Id. at 406, 6 ERC at 1258.

75489 F.2d at 411, 6 ERC at 1262.

76526 F.2d 1149, 8 ERC 1497 (9th Cir. 1975) mI. denied,

1665,8 ERC 2200 (l976).

-U.S.-, 96 S. Ct.


752 BAYLOR LAW REVIEW [Vol. 29 emission limitations to achieve a sixty percent reduction in the amount of emissions and other controls including reduced production and tall stacks to maintain the national standard. Under the EPA's plan Kennecott was also required to continue emission technology research to attain emission control for the national standard without use of intermittent controls. The Ninth Circuit adhered to the Fifth Circuit's interpretation of the 1970 Amendments and allowed the use of intermittent controls only when necessary because of economic infeasibility.

Another problem area involving the courts was review of new source performance standards (NSPS). Under the 1970 Amendments NSPS are set by the EP A77 and reviewable in the District of Columbia Court of Appeals. 78 An early case, Portland Cement Association v. Ruckelshaus,79 concerned the manner in which NSPS should be set and reviewed by courts. Standards promulgated by the EPA for Portland cement plants were challenged on the grounds that the Administrator had not complied with the National Environmental Policy Act of 1969

(NEP A) before issuing them and that the Administrator had not adequately considered the economic costs of achieving the required emission reduction. It was also argued that the EPA had not established that the emission limitation was achievable by a control system that had been

"adequately demonstrated," as required by the 1970 Amendments. The court in a lengthy opinion rejected the NEPA argument and adopted a functional equivalence approach. The court concluded that the criteria which the EPA must prepare in promulgating NSPS are "the functional equivalent of a NEPA environmental impact statement."so The court also rejected the argument that economic costs were inadequately considered. According to the court, although inter-industry cost compari-" sons urged by the petitioner are not necessary, the economic impact of the standards on the particular industry to which they apply cannot be ignored, but shottld be examined in greater detail. The court identified several areas for further EPA study on remand including potential plant closings, effect on supply of cement, and effect on the quality of cement.

S1

The argument was then considered that achievability was not adequately demonstrated within the meaning of the 1970 Amendments. The court found several procedural defects in the EPA's action in rejecting specific contentions raised by the petitioners. It held that petitioner's questions regarding the EPA's conclusion about adequately demonstrated technology had not been properly treated by the EPA in developing the

7742 U.S.c.A. § 1857c-6 (Supp. 1977).

7sId. § 1857h-5 (b) (1) (Supp. 1977).

79486 F.2d 375, 5 ERC 1593 (D.C. Cir. 1973).

SOld. at 384, 5 ERC at 1598.

SlId. at 382-85,5 ERC at 1599-02.


1977} ENVIRONMENTAL LAW ISSUES 753 standards. The court concluded its opinion noting that the matter was subject to its jurisdiction and properly reviewable under the 1970

Amendments.82 A similar result was reached in Essex Chemical Corporation v. Ruckelshaus8 3 where the court relied heavily on the Portland

Cement opinion.

In another case section 307 review was denied a petitioner who sought judicial review of an EPA letter interpreting application of new source performance standards to one of its plants. In Utah Power and

Light Company v. Environmental Protection Agency84 the court concluded that section 307 review was limited to the Administrator's approving or disapproving implementation plans. It did not extend to advisory or interpretive letters of the EPA concerning an implementation plan.

In National Asphalt Pavement Association v. Train85 section 307 review was sought of the EPA's determination that asphalt concrete plants were "significant contributors" to air pollution within the meaning of section 111 of the 1970 Amendments. The court in National Asphalt first rejected arguments that informal agency rule-making requires a

"hybrid" process, including a hearing and cross-examination of witnesses. The court held that the petitioner did not prove the agency determination was improper without specific issues and witnesses being examined through the additional cross-examination.

86 The petitioner also challenged the EPA's determination that asphalt plants significantly contributed to the pollution of the environment. The petitioner argued that that finding was erroneous because the plants were in compliance with regulations that reduced the amount of air pollution below the level of the national standards. The court rej ected that argument, holding that the Administrator's power extends to regulations that prevent deterioration of clean air areas.

8

? Using the approach of Portland Cement} the court also concluded that the agency was not arbitrary and capricious in promulgating NSPS for new or modified asphalt concrete plants.

88

In another recent case the Second Circuit ordered the Administrator to list lead as a pollutant under section 108 of the 1970 Amendments after it was shown that the section 108 requirements had been met.

89

82/d. at 402, 5 ERC at 1593. The standards and methods in Portland Cement were ultimately upheld in Portland Cement Ass'n v. Train, 513 F.2d 506, 7 ERC

1941 (D.C. Cir. 1975), cerl. denied, -U.S.96 S. Ct. 469, 8 ERC 1400 (1975).

83486 F.2d 427, 5 ERC 1820 (D.C. Cir. 1973), cert. denied, 416 U.S. 969, 6 ERC

1512 (1974).

84553 F.2d 215,9 ERC 1873 (D.C. Cir. 1977).

85539 F.2d 775, 9 ERC 1109 (D.C. Cir. 1976).

86[d. at 782-83, 9 ERC at 1113-14.

87/d. at 783-85, 9 ERe at 1114-16.

88Id. at 785-87, 9 ERC at 1116-18.

89NRDC v. Train, 545 F.2d 320, 9 ERC 1425 (2d Cir. 1976).



The action was brought under section 304 to review the Administrator's decision not to declare lead a section 108 pollutant. Previously air quality standards for lead were not set and did not have to be attained through SIP's. The court, however, concluded that the requirement to list lead as a pollutant under section 108 was mandatory, not discretionary, and therefore the EPA had to list lead as a pollutant and formulate air quality standards for it.

In a recent criminal enforcement action a defendant sought review of an emission standard on infeasibility grounds. In United States

'V.

Adamo Wrecking Company

90 the district court reviewed the standard allegedly violated and declared it invalid. The Sixth Circuit reversed, holding that the section 307 jurisdiction to review standards was exclusively in courts of appeals. According to the court the review sought was expressly barred by section 307(b)(2), which provides: "Action of the Administrator with respect to which review could have been obtained under paragraph (1) shall not be subject to judicial review in civil or criminal proceedings for enforcement."91 The court concluded that section 307 was abundantly clear and that its exclusive right of review in courts of appeals was constitutional.

Another issue under the 1970 Amendments was preemption of private actions for damages. In Baughman

'V.

Bradford Coal C ompany

92 a citizen brought a section 304 action for damages. Dismissal was sought on the ground that section 304 does not allow private actions for damages.

The defendant also questioned the plaintiff's standing to sue and the jurisdiction of the federal courts when a state enforcement action is currently pending. The court rejected each argument. It concluded that the action for damages was expressly reserved under section 304 which provides: "Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any emission standard or limitation or seek any other relief. . . ."93

Determining the scope of EPA discretion in administering the 1970

Amendments has been a difficult problem for the courts. In reviewing action by the EPA under the 1970 Amendments the courts have given deference to the agency's interpretation of both the scope and exercise of its authority. Although the EPA must have and present a responsible basis for its actions, its determinations are not overturned unless they

90545 F.2d 1, 9 ERC 1443 (6th Cir. 1976), cerl. granted, -U.S.-, 97 S. Ct.

1596 (1977).

91Id. at 3, 9 ERC 1445 (emphasis onlitted).

92_F. Supp.-, 10 ERC 1066 (W.D. Pa. ~977).

93Id. at 1067.


1977] ENVIRONMENTAL LAW ISSUES 755 are totally without support in the record.94 Even where the record is incomplete, the remand is to develop a thorough record, not to make new findings. 95 The case of Te%as v. Environmental Protection Agency96 illustrates these points. There the state and local governmental authorities and industries challenged the EPA's disapproval of the Texas SIP and its promulgation of different regulations to attain the national ambient air quality standards for photochemical oxidant pollution. The petitioner challenged the EPA's rejection of the state model for calculating the effect of reducing emission of hydrocarbons on ambient air quality standards. The court upheld the EPA's disapproval of the SIP and rejection of the state reduction mode1. Although it was uncomfortable with the EPA "straight rollback model" based on an unproven assumption, the court allowed the EPA's action.

In the absence of sophisticated information, the EPA has been forced to rely on crude assumptions. We cannot object, for it is not our role to judge whether the EPA's projections are accurate, but only whether they represent arbitrary or capricious exercises of its authority. Necessity, which has mothered the EPA's invention of this model, also protects it from a judicial insistence on greater reliability.9?

The agency was also sustained in its rejection of Texas' figures on the reduction in reactive hydrocarbon emissions under the state plan.

However, the agency was not successful on all points. The case was remanded for the EPA to consider more fully, and answer Texas' objections to the EPA's refinery reactivity factor which was the basis of the EPA promulgated regulations.

98 The court did reject industry's contention that the margin of error in the EPA calculations was so large that action based on them was arbitrary and capricious.

[W]e are well aware of the EPA's use of projections, assumptions, and flimsy data. However, we do not think that the margin of error inherent in the agency's calculations precludes its promulgating the regulations which remain in this case after our disposition of the other issues.

99

( 4) The 1977 Amendments

94E.g., International Harvester Co. v. Ruckelshaus, 478 F.2d 615, 624-27, 4 ERC

2041, 2043-45 (D.C. Cir. 1973); Portland Cement Ass'n v. Ruckelshaus, note 79, supra. See Kramer, note 33, supra at 202-22.

95Id.

96 499 F.2d 289, 6 ERe 1897 (5th Cir. 1974),

(1975) .

97Id. at 301, 6 ERC at 1903. cert. denied, -U.S.-, 96 S. Ct.-

98Id. at 308-310, 6 ERC at 1909-11.

99Id. at 319, 6 ERC at 1717.



The recently enacted Clear Air' Act Amendments of 1977 (1977

Amendments)

100 made several significant changes in the federal Clean

Air Act. In some areas Congress specifically addressed problems that had plagued the EPA in administering the 1970 Amendments. In several instances relevant to development of energy resources Congress ratified the EPA's resolution of controversial problems. Areas of particular interest included the congressional adoption generally of the

EPA's approach to prevention of significant deterioration (PSD) of existing clean air areas, the trade-off policy in nonattainment areas, and the variance issue.

Other modifications in the 1977 Amendments indicate that Congress wants less direct land use control through implementation plans. Specifically, section 1l0(a) (2) (B) was amended to strike "land use controls" as a method to achieve national ambient air quality standards.

101 This congressional attitude was further evidenced in changes concerning indirect source review provisions in SIP's. The 1977 Amendments added a new paragraph to section 1l0(a) prohibiting the Administrator from requiring an indirect source review program as a condition of approval of an implementation plan.

t02 Under the 1977 Amendments the Administrator's authority with respect to indirect sources is limited to federally assisted, owned, or operated highways, airports, and other indirect sources.

t03 The Administrator's authority, though, is further constrained by a detailed definition of indirect sources which excludes on-street parking and direct emission sources or facilities associated with an indirect source.

104 Another indication of congressional dissatisfaction with land use controls is that transportation control plans CTCP) are no longer required as direct control strategies under the 1977 Amendments.

(a) Suspensions, Postponement, Waiver, and Related Provisions.

In the 1977 Amendments Congress clarified how, when, and by whom exceptions or waivers to SIP's or national standards would be allowed.

In resolving these questions, Congress also incorporated new criteria for granting them. In particular, energy shortages or severe economic disruption that would result from strict adherence to the standards or plan were incorporated as criteria for temporary emergency suspensions. lOOClean Air Act Amendments of 1977. Pub. L. No. 95-95. 91 Stat. 685 (to be codified in 42 U.S.C.A. §§ 7401 et seq. (19xx». [Statutory references hereinafter will be to section numbers of the original Clean Air Act, formerly 42 U.S.C.A. §§

1857 et seq. (1969), followed by citations to the appropriate section of the Clean Air

Act Amendments of 1977. Pub. L. No. 95-95. See note 23, supral. lOISection BO(a) (2) (B); Pub. L. No. 95-95, Sec. l08(a) (2).

102Section 1l0(a) (5) (A) (i); Pub. L. No. 95-95, Sec. 108(e). l03Section 1l0(a) (5) (B); Pub. L. No. 95-95, Sec. 108(e).

104Section 1l0(a) (5) (C); Pub. L. No. 95-95, Sec. 108(e).



Suspensions were the first of several new means under the

Amendments for exceptions from a SIP.

1977

Those latter changes occurred in an amendment to section 110(f) of the 1977 Amendments. As amended, a temporary emergency suspensions" (TES) is. authorized for energy reasons under section

11 0 (f)( 1 )105 and for economic reasons under subsection (g)( 1 ) .106

After application' by a fuel burning stationary source and a public hearing, the governor of the state where the source i~ located may petition the President for determination of a national or regional energy emergency. to? The emergency must be so severe that a temporary suspension of part of an applicable implementation plan is required and other means are inadequate to respond to it.tOS The President must personally make the emergency determination. t09 After that determination is made, the governor may issue to. a source a TES for part of the applicable implementation plan. Before issuing an energy TES, the governor must find that the source is located within the vicinity of a

"temporary energy emergency involving high levels of unemployment and loss of necessary energy supplies for residential dwellings,"110 and that the emergency suspension can alleviate totally or partially the unemployment or energy losses. tll A source is limited to one TES based on the same circumstances or emergency.112 The TES from the governor may be effective for a maximum period of four months or a lesser period set in a disapproval order by the Administrator.1l3 The

Administrator may disapprove only if the required gubernatorial findings were not made.114 If the plan in effect is an EPA-promulgated one, then the President may grant the TES subject to the same conditions imposed on the gubernatorial TES.11S A four month TES can also be issued to a source operating under a compliance schedule issued pursuant to the Act.1l6

Section 110 was further amended to add a new section (g) relating to granting a TES order for economic reasons. That order is available in cases where a proposed plan revision has been adopted by a state tOSSection nO(£) (1); Pub. L. No. 95-95, Sec. 107(a). l06Section 1l0(g) (1); Pub. L. No. 95-95, Sec. 107(b).

107Note lOSSection 110(£) (1) (A) and (B); Pub. L. No. 95-95, Sec. 107(a). l09Note

105,

105, supra. supra.

1l0Section 110(£) (2) (A); Pub. L. No. 95-95, Sec. 107(a).

1l1Section 110(£) (2) (B); Pub. L. No. 95-95, Sec. 107 (a). l12Section HO(£) (2); Pub. L. No. 95-95, Sec. 107(a).

113Section nO(£) (3); Pub. L. No. 95-95, Sec. 107(a).

114Id. llSSection nO(£) (4); Pub. L. No. 95-95, Sec. 107(a).

116Section 110(£) (5); Pub. L. No. 95-95, Sec. l07(a).


758 BAYLOR LAW REVIEW [Vol. 29 and submitted to the Administrator.

1l7 Several determinations must be made by the state before the economic TES may be issued. These include findings that the proposed revision otherwise satisfies the Act and is necessary 1) to prevent a closing for one year or longer of any source of air pollution, and 2) to prevent substantial increases in unemployment arising from the closing. us If the Administrator has not approved or disapproved the revision within the required four months, the governor may issue a TES.1l9 The economic TES will apply only to that part of the SIP changed by the revision with respect to a source.120

Section llO(g) expressly excludes from the necessary findings any source that would close without regard to approval of the proposed plan revision.121 The economic TES is subject to the same kind of time limits and Administrator disapproval provisions that apply to the energy TES.122 In addition the TES may apply to delay compliance schedules issued pursuant to the ACt.

123

Postponement of the final date for compliance with the requirements of a SIP is the second means for an exception under the 1977 Amendments. Section 113 of the Act was amended to clarify the use of compliance orders to allow additional time for final compliance. Under the 1977 Amendments a state may issue an order for compliance at a date later than the SIP mandatory attainment date of a national ambient air quality standard.124 The compliance order must be preceded by a hearing. It also must contain a schedule and timetable for compliance, require satisfaction of interim standards, and require final compliance as expeditiously as possible, but no later than July 1, 1979, or three years after the SIP attainment date, whichever is later.

12S If the compliance order is for a major stationary source, the order must require payment of the section 120 noncompliance penalty in addition to the other requirements.126

As amended, section 113 authorizes limited EPA review of state issued compliance orders. The compliance order is not effective for a major stationary source until the EPA determines if the requirements of the

Act have been satisfied.127 For all other sources, however, the com-

117Section 110(g) (1): Pub. L. No. 95-95, Sec. l07(b).

118Section llO(g) (1) (A) and (B); Pub. L. No. 95-95, Sec. 107(b).

119Section llO(g) (1): Pub. L. No. 95-95, Sec. l07(b).

1201d.

1211d.

122Section llO(g) (2): Pub. L. No. 95-95, Sec. l07(b).

123Section llO(g) (3): Pub. L. No. 95-95, Sec. 107(b).

124Section 113(d) (1); Pub. L. No. 95-95, Sec. 112(a).

125Section 113 (d) (1) (A) - (D): Pub. L. No. 95-95, Sec. 112(a).

126Section 113(d) (1) (E): Pub. L. No. 95-95, Sec. 112(a).

127Section 113 (d) (2): Pub. L. No. 95-95, Sec. 112(a).


19771 ENVIRONMENTAL LAW ISSUES 759 pliance order is effective unless the EPA determines that the requirements of the Act were not met. 128 If the Administrator objects to a compliance order, he must simultaneously issue an enforcement order.129

However, the state's authority is not restricted by the Administrator's orders. Section 113 provides:

Nothing in this section shall be construed as limiting the authority of a State or political subdivision to adopt and enforce a more stringent emission limitation or more expeditious schedule or timetable for compliance than that contained in an order by the

Admini strator. 130

The interim schedule of compliance is not required if the source intends to replace the facility, undergo complete change in production, or terminate operations within the stated time periods.

III

If so, a bond equal to the amount of actual compliance and the economic value that accrues to the source from noncompliance must be obtained. The bond or surety is forfeited if replacement, change, or termination does not occur, and neither the state nor the EPA can compromise the bond or surety after forfeiture.132

Two exceptions to the July 1, 1979, or the three-years-after-approval compliance order deadline were included in section 113. One is for an existing stationary source seeking to apply new means of emission limitations likely to be adequately demonstrated by the final compliance date, but unlikely to be used without a compliance order.133 In that case the Administrator must make two specific determinations. The first is that there is a substantial likelihood that the new means of emission limitations will achieve greater continuous emission reduction than would otherwise be reached without the compliance order, or that the means will achieve equivalent emission reduction but at a lower energy, economic, or nonair quality cost than by other means.134 The second finding is that compliance with the requirements of the applicable

SIP would be impracticable during installation of the new means of emission limitations.13s Under the amended version of section 113 the

Administrator is authorized to determine priorities among users of new emission limitation systems to assure distribution of those systems by suppliers to sources in non-attainment areas first.136

---------------------------.~~~~----------------

128[d.

In that case it automatically ceases to be effective.

1291d.

130[d.

131Section 113 (d) (3); Pub. L. No. 95-95, Sec. 112(a).

132[d.

133Section U3(d) (4) (B); Pub. L. No. 95-95, Sec. 112(a).

134Section 113 (d) (4) (C); Pub. L. No. 95-95, Sec. 112(a).

135Section 113(d) (4) (D); Pub. L. No. 95-95, Sec. 112(a).

136Section U3(d) (5) (C); Pub. L. No. 95-95, Sec. U2(a).



The second exception to the compliance order deadline applies to major sources operating under a section 2(a) order pursuant to the

Energy Supply and Environmental Coordination Act of 1974 (ESE-

CA) 137 or planning conversion to coal because of an FPC curtailment plan or schedule. If a major source burning petroleum products or natural gas is under an ESECA section 2(a) order prohibiting continued use of those resources, a section 113 compliance order may be issued to the source requiring final compliance by December 31, 1980.

138

If an FPC curtailment plan or schedule forces the source to convert to coal because of actual or anticipated reduction in natural gas supplies under the FPC plan or schedule and the conversion results in noncompliance, a compliance order may be issued to the source requiring final compliance by December 31, 1980.

139 The Administrator may issue an additional compliance order under subparagraph (1) to the conversion source for a period not to exceed five years or requiring final compliance by December 31, 1985,140

The compliance order postponement is not available to a source for a pollutant if the national primary ambient air quality standard for that pollutant is being exceeded in the air quality control region (AQCR) in which the source is 10cated.141 That restriction is waived, however, if the

Administrator makes specific determinations after notice and a public hearing. The Administrator must find the source's emissions will only infrequently affect or will only have insignificant effect on the air quality concentrations of the pollutant in each portion of the AQCR where the standard is being exceeded at any time.

14z He also must determine with reasonable statistical assurance that emissions of the pollutant will not cause or contribute to air quality concentration of the pollutant in excess of the standard.143

While the compliance. order is in effect, the source is not relieved from all requirements. The order must "set forth compliance schedules containing increments of progress which require compliance with the requirement postponed as expeditiously as practicable."144 In the interim the source must use the best practicable systems of emissions reduction, must comply with reasonable and practicable interim requirements including those necessary to avoid imminent and substantial danger to human health, and must comply with the applicable SIP during periods

13715 U.S.CA. § 792 (1976).

138Section 113(d) (5) (A); Pub. L. No. 95-95, Sec. 112(a).

1391d. .

1401d.

14'

Section 113(d) (5) (D); Pub. L. No. 95-95, Sec. 112(a).

142Section 113(d) (5) (D) (i) and (ii); Pub. L. No. 95-95, Sec. 112(a).

143Section 113(d) (5) (D) (iii); Pub. L. No. 95-95, Sec. 112(a).

144Section 113(d) (6); Pub. L. No. 95-95, Sec. 112(a).


1977] ENVIRONMENTAL LAW ISSUES 761 when the source is able to do SO.145 The Administrator decides what constitutes the best practicable system, what are reasonable and practicable interim requirements, and during what periods the source is able to comply.146 The compliance order terminates at its expiration date or whenever the Administrator determines, after notice and hearing, that the source is unable to comply with the order.147

Congress partially and indirectly dealt with the problem of technological and economic infeasibility by including a waiver provision in section 111, New Source Performance Standards (NSPS).148 This waiver is the third means in the 1977 Amendments of exception from strict adherence to the requirements and deadlines of SIP's. Section 111 requires a permit for operating a new or modified stationary source.149

The permitting authority shall issue the permit if the source is using technology that will enable it to comply with standards of performance applicable to it and if the construction or the modification in operation will be in compliance with all requirements of the Act.1sO Persons owning or proposing to own a new source may obtain one or more waivers for the source or part thereof from the NSPS applicable under this section.

A person must request a waiver from the Administrator "to encourage the use of an innovative technological system of continuous emission reduction" (TSCER).151 Amended section 111 defines TSCER both as production and operation processes that are "inherently low polluting or nonpolluting" and also as a system designed to reduce "the pollution generated by the source" before it "is emitted into the ambient air, including precombustion cleaning or treatment of fuels."152 The Administrator has discretion to grant the waiver with the consent of the governor of the state in which the source is located.

1s3 Before granting a waiver the Administrator must provide notice and opportunity for public hearing and determine that:

(i) the proposed system or systems have not been adequately demonstrated, .

(ii) the proposed system or systems will operate efficiently and

145Section U3(d) (7) (A) and (B); Pub. L. No. 95-95, Sec. 112(a).

146Id.

147Section 113 (d) (8); Pub. L. No. 95-95, Sec. 112(a), which also provides that prompt termination may be delayed if undue hardship would result to the source from immediate cessation of the order. !d.

148Section 111 (k)(l )(A)-(F); Pub. L. No. 95-95, Sec. 109(e).

149Section llO(a) (2) (D); Pub. L. No. 95-95, Sec. 108(a) (3).

1

SOSection 111 (j); Pub. L. No. 95-95. Sec. 109 ( e) .

151 Section 111 (k) (1 )(A); Pub. L. No. 95-95. Sec. 109(e). lS2Section Il1(a) (7) (A) and (B); Pub. L. No. 95-95, Sec. 109(c) (1) (B).

153Section 111 (k) (1) (A); Pub. L. No. 95-95, Sec. 109(e).


762 BAYLOR LAW REVIEW [Vol. 29 there is a substantial likelihood that such system or systems will achieve greater continuous emission reduction than that required to be achieved under the standards of performance which would otherwise apply, or achieve at least an equivalent reduction at lower cost in terms of energy, economic, or nonair quality environmental impact,

(iii) the owner or operator of the source has demonstrated to the satisfaction of the Administration that the proposed system will not cause or contribute to an unreasonable risk to public health, welfare, or safety in its operation, function, and malfunction, and

(iv) the granting of such waiver is consistent with the requirements of subparagraph (C)

,154

Subparagraph (C) limits the total number of waivers granted with respect to any proposed TSCER to the number the Administrator believes necessary in order to determine either that the system will be adequately demonstrated or that it will operate efficiently while achieving greater or the same continuous emission reduction but at lower energy, economic, or nonair quality costs than under otherwise applicable standards.

1SS The Administrator is authorized to consider several factors in making those determinations. These include previous failures, the operating efficiency of the new system, and its ability to meet

NSPS.156 In making the unreasonable risk determination the Administrator must consider whether and to what extent the proposed system will cause, increase, reduce, or eliminate emissions of unregulated pollutants, the availability of methods for reducing or eliminating risk to health, safety, and welfare, and the availability of other systems that conform to the standards and avoid the risk,157 The Administrator is also authorized to conduct or require the owner to conduct any test and provide any information necessary to make these determinations. Those include prompt reporting of emissions of unregulated pollutants from a system if those pollutants were not previously emitted or were emitted in smaller amounts without the system.

IS8 The section 111 waiver must impose terms and conditions the Administrator determines necessary to assure that the source's emissions will not prevent the attainment or maintenance of national ambient air quality standards and proper functioning of the proposed system.

159 The terms and conditions in a waiver are to be treated as a standard of performance for purposes of section 113(e) and section 111.160

154Section 111 (k)(l) (A) (i) (iv); Pub. L. No. 95-95, Sec. l09(e).

I55Section 111 (k) (l) (C); Pub. L. No. 95-95, Sec. I09(e).

156Section 111 (k) (1) (A); Pub. L 'No. 95-95, Sec. 109(e).

1571d.

158ld.

159Section 111 (k) (1) (B) (i) and (ii); Pub. L. No. 95-95, Sec. l09(e).

160ld.



The section 111 waiver terminates on the earlier of two dates. The

. first is set by the Administrator after consultation with the owner and is to be set considering the design, installation, and capital costs of the system used. 161 The alternative termination date applies when the

Administrator determines the system either fails to achieve the equivalent continuous emission reduction required by otherwise applicable standards of performance or is creating an unreasonable risk to the public health, safety, and welfare, and the failures cannot be corrected. 162

In no event shall a section 111 waiver for a source or part of a source extend beyond seven years after the date the waiver is granted or four years after the date the source or part of the source commences operation, whichever is earlier.163 The waiver is expressly limited to that part of the source on which the innovative TSCER is used.164 If a waiver is terminated before its expiration date, the source is allowed whatever time is reasonable to comply with the applicable NSPS, but not longer than three years after the waiver is terminated. 165 Any extension granted after termination must include emission limits and compliance schedules containing increments of progress which require compliance with the applicable standards of performance as expeditiously as practicable. The extension must also include other measures necessary and practicable in the interim to minimize emissions.166

The fourth method for an exception from the strict application of the requirements of a SIP under the 1977 Amendments is section 119, authorizing the issuance of primary nonferrous smelter orders (PN-

SO).167 Under section 119, after application by a primary nonferrous smelter's owner or operator, the Administrator may issue a PNSO, provided the state has been given thirty days notice of the application.168

Alternatively, the state in which the smelter is located may issue the

PNSO directly.169 A state's PNSO, however, is not effective until the

Administrator determines that it was issued according to the requirements of the Act. That determination must be made within ninety days after the Administrator is notified that the state issued a PNSO under section 119.

170

If that determination is negative, the Administrator

"shall conduct a hearing respecting the reasonably available control

161Section 111 (k) (1) (D) (i); Pub. L. No. 95-95, Sec. l09(e).

162Section 111 (k) (1) (D) (ii); Pub. L. No. 95-95, Sec. I09(e).

163Section 111(k) (1) (E); Pub. L. No. 95-95, Sec. 109(e).

164Section lll(k) (1) (E); Pub. L. No. 95-95, Sec. 109(e).

165Section HI(k) (2) (A); Pub. L. No. 95-95, Sec. l09(e).

166Section 1l1(k)(8) [sic; possibly should read .(B)]; Pub. L. No. 95-95 Sec. l09(e).

167Section 119; Pub. L. No. 95-95, Sec. 117(b) ..

168Section 119(a) (I) (A); Pub. L. No. 95-95, Sec. 117(b).

169Section 119(a) (1) (:6) ; Pub. L. No. 95-95,.Sec .. .ll7(b).

170Section 119(a) (1); P-ub.l .• No; 95-95, 8ec .. 117(bk


764 BAYLOR LAW REVIEW [Vol. 29 technology for primary nonferrous smelters."17l Before any hearing on an application for its second order under section 119, the applicant must furnish the Administrator or state a statement of the grounds for the application, including all supporting documents and information.

l72

The statement must be prepared by the Administrator or the state if either is acting on its own initiative.173 The statement and its supporting documents must be made available to the public for thirty days before the hearing and must be considered as part of the hearing.

174 No PNSO may be granted unless the conditions for issuance of the order have been met.

175

Issuance of the PNSO is discretionary, and any issuance decision must be accompanied by a concise statement of the findings and their basis.176 To qualify for a PNSO, a smelter must be in existence on the date of the Act, and the PNSO must relate to "an emission limitation or standard for sulphur oxides [under an applicable plan] which is necessary and intended to be itself sufficient to enable attainment and maintenance of national primary and secondary ambient air quality standards for sulphur oxide."I?? The smelter must be unable to meet the compliance date because no means of emission limitation technology for compliance by the smelter have been adequately demonstrated to be reasonably available.

l18 The Administrator must determine whether the adequately demonstrated technology is reasonably available, considering

"cost of compliance, non-air quality health and environment impact,

If a second PNSO is issued, it must contain compliance schedules containing increments of progress necessitating compliance with the postponed requirements as expeditiously as practicable.180 Each PNSO must include during the period the order is in effect interim measures that the Administrator deems necessary to assure attainment and maintenance of the national primary and secondary ambient air quality standards, "taking into account the aggregate effect on air quality of

[ the] order, [ and] all variances, extensions, waivers, enforcement orders, delayed compliance orders and primary nonferrous smelter orders previously issued under this Act."181 The interim measures include rel11Id.

172Section 119(a) (2) (B); Pub. L. No. 95-95, Sec. 117(b).

173Id.

174Id.

17SId.

176Section 119(a) (2) (C); Pub. L. No. 95-95, Sec. 117(b).

177Section 119(b) (1) and (2); Pub. L. No. 95-95, Sec. 117(b).

178Section 119(b) (3); Pub. L. No. 95-95, Sec. 117(b).

179Id.

180Section 119(c) (1); Pub. L. No. 95-95. Sec. 117(b).

181Section 119(d) (1) (A); Pub. L. No. 95~95. Sec. 117(b).


1977] ENVIRONMENTAL LAW ISSUES 765 porting and monitoring as well as any means necessary to avoid any imminent danger to public health.182 A second order under this section must require compliance and "procuring, installing, and operating the necessary means of emission limitation as expeditiously as practicable after the Administrator determines . . ." the means are adequately demonstrated to be reasonably available.183 The interim measures must also include continuous emission reduction technology.184 However, that condition may be waived by the state or Administrator after a notice and hearing if the owner of the smelters shows that the "requirement would be so costly as to necessitate permanent or prolonged temporary cessation of operations of the smelter."185 After an application for waiver is filed, the Administrator must be notified and must hold a hearing at which the applicant presents information of the alleged cessation and reasons for the waiver.186 The Administrator must make findings of fact about the effect of the requirement and the alleged cessation and make recommendations accordingly.18? The report, findings, and recommendations must be available to the public and considered in making a decision regarding the waiver.188

Any smelter which uses continuous emission reduction technology and supplemental controls and receives the initial PNSO on the date of the Act cannot be required to use continuous emission reduction technology for continuing the order unless, at any time after notice and a public hearing, the Administrator determines that adequately demonstrated continuous emission reduction technology is reasonably available for the primary nonferrous smelter industry.189 The Administrator may hold public hearings concerning availability of technology at any time.

The PNSO terminates any time the Administrator determines upon the record, after notice and public hearing, that the conditions upon which an order was based no longer exist.

190 If prompt termination would result in undue hardship, the termination shall be effective at the earliest practicable time, but no later than the termination date for all orders.

191

The termination date for the first primary nonferrous smelter order is January 1, 1983, and for the second order is January 1, 1988.192

I82Section 119(d) (1) (B) (i) and (ii); Pub.

183Section 119(c) (1); Pub.

L. No. 95-95, Sec. 117(b).

L. No. 95-95, Sec. 117(b).

184Section 119(d) (1) (C); Pub. L. No. 95-95, Sec. 117(b).

18SSection 119(d) (2); Pub.

186 ld.

L. No. 95-95, Sec. 117(b).

1871d.

1881d.

189Section 119(d) (4); Pub.

1905ection 119(e); Pub.

191

1d.

1935ectiOll1l9(c}(2); Pub.

L. No. 95-95, Sec. 117(b).

L. No. 95-95, Sec.

.

117(b).

L. No. 95~95. Sec. 117(b).



Under the Train decision, state granted variances had to be treated as amendments to a SIP and approved by the EPA as a revision to the

SIP.19,J The 1977 Amendments, however, added a new section (h) to section 110 providing: "no order, suspension, plan revision, or other action modifying any requirement of an applicable implementation plan may be taken with respect to any stationary source by the state or by the Administrator."194 The exceptions to this include PNSO's, compliance orders, and suspensions under the ACt.195 Thus Congress seems to be restricting exceptions to the national standards or requirements of a SIP to those situations specifically stated in the Act. This conclusion is reinforced by the fact that under section 113 a compliance order is made a part of an applicable SIP automatically upon issuance without any further action such as a plan revision.196 Similarly section 110 was amended to remove the requirement that a plan be revised if an exemption, compliance order, or waiver was issued.

19

?

(b) Dispersion Enhancement Techniques. Congress also addressed the problem of using dispersion enhancement techniques and tall stacks to achieve limitations or standards under SIP's. Specifically in the 1977

Amendments, section 123 prohibits lowering an emission limitation because of any stack height that exceeds good engineering practice or the use of any other dispersion techniques.198 Such techniques include intermittent or supplemental controls for varying atmospheric conditions.199 Good engineering practice with regard to stack height is defined as: the height necessary to ensure that emissions from the stack do not result in excessive concentrations of any air pollutant in the immediate vicinity of the source as a result of atmospheric downwash, eddies and wakes which may be created by the source itself, nearby structures or nearby terrain obstacles (as determined by the

Administrator) .200

That height is limited to two and one-half times the height of the source unless it is demonstrated "after notice and opportunity for public hearing, to the satisfaction of the Administrator, that a greater height is necessary as provided under the preceding sentence."201

1935ee text accompanying note 70, supra.

1945ection 1l0(h); Pub. L. No. 95-95, Sec. 108(g).

1951d.

1965ection 113 (d) (11); Pub. L. No. 95-95, Sec. 112(a).

19?5ection 110(a) (3) (C); Pub. L. No.

1995ection 123(b); Pub. L. No.

200Section 123 (c) ; Pub. L. No.

95-95, Sec. 108(c).

1985ection 123(a) (1) and (2); Pub. L. No. 95-95, Sec. 121.

95-95, Sec. 121.

95-95, Sec. 121.

201I,d. :, ... " .".'.,: .".',;, "':. '. ,,:. ',.,J' .,', ••••



(c) Prevention of Significant Deterioration. A major addition to the

Act is Part C, "Prevention of Significant Deterioration of Air Quality"

(PSD).202 In this new part Congress adopts, with some modifications, the EPA's land classification scheme to prevent significant deterioration of already existing clean air.203 Under section 162 some areas are initially classified as mandatory Class I areas, and they may not be redesignated.204 All other areas are initially established as Class II and are subject to redesignation by the appropriate state or federal agency.

The 1977 Amendments preserve existing clean air areas by setting allowable increases in the baseline concentration or maximum allowable concentration of sulphur dioxide and particulate matter for each class.2os

Although the new PSD program initially only provides additional increments for sulphur oxides and particulate matter, the EPA must conduct studies and promulgate regulations for the automotive pollutants within two years. 206 Emissions in excess of the allowable amounts cannot be permitted under any SIP.20?

Section 164 provides for redesignation of those lands originally designated Class II.2os However, national monuments, primitive areas, national preserVes, wild and scenic rivers, lakeshore or seashore, wildlife refuge, park, or wilderness areas in excess of 10,000 acres may only be designated Class I or II, not Class III. For all other lands section

164 contains extensive, detailed provisions providing the procedure for redesignation. A state acting through its governor or its legislative body may redesignate its land.209 The governor must consult with appropriate committees of the legislature if the latter is not in session, and section

164 requires approval of local governmental units affected by the redesignation.210 It also requires public hearings for redesignation of both state or federal lands.21t Although under the new section certain federal1ands must be reviewed and classified, such review and classification of state land is left largely to each state's discretion.212

202Section 160 et seq.; Pub. L. No. 95-95, Sec. 127(a).

203See text accompanying note 57, supra. The PSD regulations remain contro-versial. In Montana Power Co. v. EPA, 429 F. SuPP. 683, 9 ERC 2096 (D. Mont.

1977) the Company argued that the original regulations did not apply to two plants. On appeal the Company is arguing that Congress exempted its plants in the 1977 amendments. [1977] 8 ENvTL REP. (BNA) (Curr. Dev.) 854.

204Section 162(a); Pub. L. No. 95-95, Sec. 127 (a).

20SSection 163 (b) (1) (4); Pub. L. No. 95-95, Sec. 127(a).

206Section 166(a); Pub. L. No. 95-95, Sec. 127(a). . .

207Section llO(a) (2) (I); Pub. L. No. 95-95, Sec. 108(b).

208Section 164; Pub. L. No. 95-95, Sec. 127(a).

209Section 164(a); Pub. L. No. 95-95, Sec. 127(a).

21 Old.

211Section 164(b) (1) (A); Pub. L. No. 95-95, Sec. 127(a).

212Section 164; Pub. L. No. 95-95, Sec. 127(a). This is somewhat misleading, however, because the state's discretion' may. be limited by classification of federal lands .and. the. need to examine . state. lands make . .the' state- and. federal.deterinina-



The PSD provisions are enforced in two ways. First, section 165 prohibits operation of any major emitting facility operating without a permit.213 In order to obtain a permit, the facility must satisfy the requisite standard with respect to the land classification. In addition it must satisfy other requirements of section 165 including, inter alia, detailed provisions for preconstruction review, public hearings, a demonstration by the owner or operator that the facility will not violate PSD standards, national ambient air quality standards, or other standards imposed under the Act, and that the facility is using the best available control technology for the pollutants it emits.

The second enforcement provision is section 167.214 It requires the

Administrator and permits a state to issue an enforcement order or seek injunctive relief to prevent construction of a facility that would not comply with the requirements of the PSD provision of the Act.

SIP's must include emission limitations and any other measures that may be necessary to prevent significant deterioration of air quality in each region identified under this Act.215 Section llO(A)(2) requires that a SIP contain provisions implementing the PSD provision of the

1977 Amendments in order to be an approved plan.216

The 1977 Amendments also contained new standards for visibility protection. Section 169(A) of the Act declares the national goal of preventing future and remedying exising impairment of visibility from man-made pollution in mandatory Class I areas.217 The section goes on to require "the Secretary of Interior, in consultation with other federal land managers, to review all mandatory Class I federal areas and identify those where visibility is an important value of the area,"218

The section further requires the Administrator to develop regulations and guidelines by which states may identify areas where visibility is a significant value and determine how those areas may be preserved and protected. Within two years the Administrator "shall promulgate regulations to assure (A) reasonable progress toward meeting the national goal specified in paragraph (1), and (B) compliance with the requirements of this section."219

Cd) Non-attainment Areas. The 1977 Amendments also added a tions compatible. If a state does nothing, it may be limited later by the classification of federal or Indian lands within its jurisdiction.

213Section 165 (a) ; Pub. L. No. 95-95, Sec. 121(a).


215Section 169A(b) (2); Pub. L. No. 95-95, Sec. 121(a) under which the

Administrator has two years to issue necessary regulations.

216Section llO(a) (2) (n; Pub. L. No. 95-95, Sec. lOS (b).

217Sectl. 'on 169A(a)(1); Pub. L. No. 95-95. Sec. 12S(a).

218Section 169A(a) (2); Pub .. L. No. 95~9S. Sec. 128(a).

Zl9Section 169A(a) (4) ; Pub. L. No. 95':'95, 50;, 128(a).


1977] ENVIRONMENTAL LAW ISSUES 769 new section dealing with non-attainment areas.220 In this section Congress expressly adopts the interpretative regulation of the EPA regarding its so-called trade-off policy.221 That regulation shall apply prior to July 1, 1979.222 Requirements of the regulation may be waived by the Administrator for any pollutant. Before granting the waiver, the

Administrator must determine that the state has an inventory of the emissions of the pollutant for each non-attainment area, an enforceable permit program, and a program requiring reduction in the allowable emissions in the area before January 1, 1979, that would attain the same level of emission reduction that would result from application of the regulation.223 The state's permit system must require a new or modified stationary source to meet standards for that source which are as stringent as those required under section 173(2) and (3) and require existing sources to achieve reductions available through adoption of reasonably available control technology.224 The waiver is terminated if the Administrator determines that it does not achieve the reduction levels set or that the state is not complying with the requirements of the waiver section.22S

Section 172 deals with non-attainment plan provisions. It provides that, before a major stationary source can be constructed or modified in any non-attainment area after July 1, 1979, a SIP must provide for attainment of each national ambient air quality standard in the nonattainment area as expeditiously as practicable.226 National primary ambient air quality standards in non-attainment areas must be attained by December 31, 1982.227 The attainment date for national primary ambient air quality standards for photochemical oxidants or carbon monoxide may be December 31, 1987.228 The latter date applies only if the governor, prior to the time for submission of the plan, demonstrates to the Administrator's satisfaction that attainment of the national primary standards for the automotive pollutants is not possible in the area by the 1982 deadline even if all reasonably available measures of implementation are used.229

(e) Unregulated Pollutants. Another new provision in the 1977

220Section 172 note : Pub. L. No. 95-95, Section 129. Texas is the first state to request a waiver of the EPA's emissions offset policy under the 1977 amendments. [1977) 8 ENvr'L REP. (BNA) (Curr. Dev.) 857.

221Section 172 note: Pub. L. No. 95-95, Sec. 129(a) (1).

222Id.

223Section 172 note; Pub. L. No. 95-95, Sec. 129(a) (2) (A) - (C).

224Section 172 note: Pub. L. No. 95-95, Sec. 129(a)(2)(B)(ii) and (iii).

225Section 172 note; Pub. L. No. 95-95, Sec. 129(a) (2).

226Section 172(a) (1); Pub. L. No. 95-95, Sec. 129(b).

227Id.

228Section 172(a)(2); PUb. L. No. 95-95, Sec. 129(b).

2Z9Id. .



Amendments is section 122 230 which relates to listing unregulated pollutants. For the first time under the Clean Air Act the EPA is directed to review all available relevant information and determine whether or not emissions of radioactive pollutants (including source material, special nuclear material, and byproduct material), cadmium, arsenic and polycyclic organic matter into the ambient air will cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health.231

This review and determination must be preceded by notice and an opportunity for a public hearing and must be concluded for radioactive pollutants within two years after enactment of the 1977 Amendments and within one year for all other pollutants.

232 If the Administrator determines that emissions of any of the pollutants do endanger public health, he is required to list them as pollutants under section 108 or take any other necessary actions to regulate them.

233 The EPA is required to consult with the Nuclear Regulatory Commission before listing any source material or special nuclear or byproduct material.

234

Within six months after listing any material the Administrator and the

Nuclear Regulatory Commission must . enter into an interagency agreement with respect to those sources or facilities which are under the jurisdiction of the Commission.

This agreement shall, to the maximum extent practicable consistent with this Act, minimize duplication of effort and conserve administrative resources in the establishment, implementation, and enforcement of emission limitations, standards of performance, and other requirements and authorities (substantive and procedural) under this Act respecting the emission of such material (or component or derivative thereof) from such sources or facilities.235

The NRC is given a veto power over any standard or emission limitation under a SIP that it considers dangerous to public health or safety unless the President determines otherwise within ninety days of the NRC's finding.

236


231Section 122(a); Pub. L. No. 95-95, Sec. 120(a). This change is significant because previously regulation of radioactive materials was within the ex~lusive jurisdiction of the NRC to the extent that any state regulation of .radioactive waste was pre-empted by federal law. Northern States Power Co. v. Minn., 447

F.2d 1143, 3 ERC 1041 (8th Cir. 1971) aff'd mem., 405 U.S. 1035, 92 S. Ct. 1307,

31 L. Ed. 2d 576, 3 ERe 1976 (1972).

232Section 122(a); Pub. L. No. 95-95, Sec. 120(a).

233Id.

234Section 122 (c) (1); Pub. L. No. 95-95, Sec. 120(a).

23SSection 122 (c)(2) ; Pub.·L. No .. 95-95;. Sec. 120(.a).

236Section 122(c) (3); Pub. L. No. 95-95, Sec. 120(a).


1977J ENVIRONMENTAL LAW ISSUES 771

(f) Assurance of Plan Adequacy. The 1977 Amendments also require each state to review the provisions of its implementation plan which apply to major fuel burning sources.237 The states are to determine the extent to which compliance with the plan depends on use of petroleum products or natural gas by fuel burning sources, the extent to which the plan may be inadequate to meet requirements of the Act because of dependence on the use of those fuels, and the extent to which compliance with the plan depends upon coal or coal derivatives not locally or regionally available.238 The review is to be done as expeditiously as practicable, but no later than within one year after enactment of section 124.239 The state must submit the results of its reviews and determinations promptly to the Administrator after their completion. Once the state's study is done, the EPA shall review the submissions and require the state to make necessary revisions in its plan to assure that it is adequate to comply with the Act on a reliable longterm basis. Any revisions to assure adequacy of the plan must specifically take into account "the actual or potential prohibitions on use of petrolettm products or natural gas, or both, under any other authority of law."24o

Under section 125 the governor, the Administrator, or the President is authorized to determine, with respect to a major fuel burning stationary source, that particular fuels may be used to avoid local or regional economic disruption or ttnemployment.241 That determination may be made if the fuel ttsed by the source is coal or coal derivatives not locally available, petroleum products, natural gas, or any combination of those.242 If the governor with the consent of the President so determines, he may prohibit the source from using fuels other than those locally or regionally available to comply with the implementation plan.

243

A major factor to be considered in such a prohibition is the cost of the action to the consumer.244 The governor also is authorized to require long-term contracts and compliance schedules to assure that the requirements of the Act are met.24S This section only applies to major fuel burning stationary sources (defined as those producing 250,000,000

BTU's per hour) which are not complying with the applicable state

SIP or are prohibited from burning oil or natural gas by law.246

237Section 124(a); Pub. L. No. 95-95, Sec. 122.

238Section 124(a) (1) (3); Pub. L. No. 95-95, Sec. 122.

239Section 124(a); Pub. L. No. 95-95, Sec. 122.

240Section 124(b) (1); Pub. L. No. 95-95, Sec. 122.

241Section 125 (a) ; Pub. L. No. 95-95, Sec. 122.

242Td.

243Section 125 (b) ; Pub. L. No. 95-95, Sec. 122.

244[d.

24SSection.125(c) (1) - (3); Pub. L. No. 95-95, Sec . .122.

246Section 125(d); Pub. L. No. 95-95, Sec. 122.



(g) Miscellaneous Provisions. The 1977 Amendments also added a new clause to the enforcement provisions. Section 113 (b) now provides that litigation costs, including reasonable attorney and expert witness fees, may be awarded the defendant in an enforcement action brought by the Administrator if the court finds the action was unreasonable.247

Another significant change came under the 1977 Amendments to section

113. Under this section the Administrator is for the first time authorized to recover a civil penalty from violators.248 He is also authorized to recover noncompliance penalties249 which were added by the 1977

Amendments.25o

B. Water Quality

(1) Statutory Framework

Water quality problems arising from production and use of various energy resources are basically within the scope of the Federal Water

Pollution Control Act Amendments of 1972 (FWPCA).2S1 Principal objectives of the FWPCA included encouraging research and development of new technology252 and establishing a cooperative effort between federal and state governments to abate or reduce water pollution.253

The arrangement was similar to the Clean Air Act, but with slight differences. For all point sources the general approach provided for federal effiuent limitations based on developed or demonstrated technology,254 state-developed water quality standards,255 and implementation through a state, or if necessary, a federal permit program.

256 The standards for discharge limitations are set forth in section 301 of the

FWPCA. Pursuant to that section the EPA is to establish effiuent limitations for industrial point sources applying "the best practicable control technology currently available" (BPT) by 1977

257 and "the best available technology economically achievable" (BAT) by 1983.

258

These effiuent limitations are to be based on guidelines developed pur-

247Section 113(b); Pub. L. No. 95-95, Sec. 111 (b)(3).

248Section 113(b); Pub.

249Section 113(b); Pub.

L.

L.

No. 95-95, Sec.

No. 95-95, Sec.

111

111

(b) (1).

(b) (2).

250Section 120; Pub. L.

25133 U.S.c.A. §§ 1251

No. 95-95, Sec. et seq.

118.

(Supp. 1977).

252Id. § 1251 (a)(6).

253Id. § 1254.

254Id. § 1311.

255Id. § 1313. However, the Administrator must promulgate water quality standards for any state that does not submit standards or submits inadequate ones.

Id. § 1313(b) (1).

256Id. § 1342.

257Id.

258Id.

§ 1311 (b) (l)(A).

§ 1311 (b)(2)(A).


1977] ENVIRONMENTAL LAW ISSUES 773 suant to section 304 of the Act.259 Under that section, for each of the various categories of point sources the EPA is to provide guidelines regarding the achievable and demonstrated technology which can become the basis for the standards under section 301.

260

Under the FWPCA the EPA is also authorized to set even more stringent standards for toxic and hazardous pollutants.261 In addition, the Act authorizes regulation of oil discharges and spills in navigable waters,262 and it establishes liability for spills and cleanup.263

The state is involved in the regulatory process in two ways. Under the Act a state can set water quality standards which are based on the use of the receiving waters.264 In addition, under section 402 the state can participate in the National Pollution Discharge Elimination System

(NPDES).265 If the state adopts a plan that satisfies the requirements of the NPDES, the EPA must approve it and allow the state to operate the permit program.266 Section 311 provides that any discharge of a pollutant into navigable waters is declared illegal unless done pursuant to a section 402 permit.267 It is through the section 402 permit process that the states adapt the national effluent limitation to the individual source ;268 in that manner the national standard is reduced to a numerical figure for each source. The states have an incentive to participate in the

NPDES system because if they do not, the permit system will be conducted by the EPA. 269

Another area in which the development of energy resources may be affected by the FWPCA is under the section 208 planning process.270

Section 208 of the FWPCA provides for the location of treatment plants according to areawide or regional plans.271 These plants will be paid for largely with federal funds if section 208 and other requirements are met.272 Section 208 planning is an effort to reach both point and non-

259Id. §

260Id.

1311 (b)(I)(A) and (2)(A).

§ 1314(b).

261Id. § 1317. See also § 1311 (f) which provides, "Notwithstanding any other provisions of this chapter it shall be unlawful to discharge any radiological, chemical, or biological warfare agent or high-level radioactive waste into the navigable waters."

262Id. § 1321.

2631 d. § 1321 (f) (j). The federal Act does not preempt state legislation imposing strict liability for oil spills. Askew v. Amer. Waterways Operations, Inc.,

411 U.S. 325, 93 S. Ct. 1590, 36 L. Ed. 2d 282, 5 ERe 1209 (1973) (upholding

Florida strict liability statute).

264M. § 1313.

26SId.

266Id.

§ 1342.

§ 1342(b).

267Id. §

268Id.

1311 (a).

§ 1342(b).

269Id. § 1342(a) (2) and (c) (3).

270Id. § 1288.

271Id. § 1288(d).

272Id. § 1281(g) (1) and 1284.


774 BAYLOR LAW REVIEW [Vol. 29 point sources of pollution. Pursuant to this section, the location of the new sources will turn in large part upon availability of treatment facilities in the area or region. Location of those sources must be consistent with the section 208 areawide waste treatment management plan.

273

The plan must also identify and control, if feasible, nonpoint sources of pollution, including agriculture, silviculture, and mining and construction activities.

274

As under the Clean Air Act, judicial review may be obtained under certain circumstances through citizen suit provisions in the FWPCA.

The citizen suit provisions, sections 505 and 509, are almost identical to sections 304 and 307 of the Clean Air Act. Section 505 provides for federal district court review of the Administrator's failure to perform any nondiscretionary function.27S Review of the Administrator's actions granting permits or approving regulations for standards under sections 301 is authorized in the appropriate court of appeals under section 509.

276

(2) Problem Areas

A major area of concern under the FWPCA was the judicial review of regulations creating the effluent limitations standards under the

FWPCA. Questions were raised both about the authority of the EPA to issue standards and about which court had jurisdiction to review them.277 The authority question turns in part on interpretations of sections 301 and 304. One argument is that under the FWPCA the EPA is expressly authorized to create effluent limitations guidelines under section 304 which are to become the basis for state effluent limitations under section 301. Under that interpretation of the FWPCA, the states would be determining effluent limitation standards on an ad hoc basis for each individual source. Those standards would probably not be

2731d. § 1288(b).

274

1d. § 1288 (b) (2) (F) - (H).

2751d. § 1365(a) (2).

2761d. § 1369(b) (1) (E).

277American Petroleum Institute v. EPA, 540 F.2d 1023, 9 ERC 1252 (lOth

Cir. 1976); American Frozen Food Institute

V.

Train, 539 F.2d 107, 8 ERC 1993

(n

C. C>r. 1976) : Hooker Chemicals & Plastics CO.

V.

Train, 537 F.2d 620, 8 ERC

1961 (2d Cir. 1976); E. I. duPont de Nemours & CO.

V.

Train, 541 F.2d 1018,

8 ERe 1718 (4th Cir. 1976); American Meat Institute

V.

EPA, 526 F.2d 442,

8 ERC 1369 (7th Cir. 1975); American Iron & Steel Institute v. EPA, 526 F.2d

1027,8 ERC 1321 (3d Cir. 1975); and CPC International, Inc.

V.

Train, 515 F.2d

1032, 7 ERC 1887 (8th Cir. 1975). For a detailed discussion of the jurisdiction and authority issues, as well as of these cases, see Parenteau and Tauman, The

Effluent Limitations Controversy: Will Careless Draftsmanship Foil the Objectives of the Federal Water Pollution Control Act AmendmCllts of 1972f, 6

ECOLOGY

L.Q. I, 16-57 (1976).


1977] ENVIRONMENTAL LAW ISSUES 775 uniform.

278

The EPA's interpretation, however, is that under the

FWPCA it is authorized to set both the guidelines and the effluent limitation standards. Its argument was that since the standards were to be based on the guidelines and were so intricately tied into the guidelines, the authority for the guidelines authorized creation of standards on a national basis. The state participation is to come in the form of granting permits for individual polluters under section 402.279

This problem concerning the EPA's authority to set national effluent standards created another issue dealing with jurisdiction for review of standards set by the EPA. 1£ the standards are issued under section

304, review may be required in a federal district court pursuant to section 505 because section 304 actions are not among those enumerated as subject to section 509 review.

280 However, if the effluent limitations guidelines are issued pursuant to section 301, these are expressly reviewable under section 509 in the appropriate federal court of appeals.

281

Other problems arose in interpreting the provisions for enforcement of liability for oil discharges and spills imposed under the FWPCA.

In particular, questions have been raised about whether the discharge into or pollution of waters must be made knowingly for liability to attach under the FWPCA or whether the Act creates strict liability for any discharge of a pollutant.

282 The indemnification provision from the government for discharges due to the acts of third parties also required interpretation. Whether that indemnification extended to an insurer who is subrogated to the right of the original claimant required judicial clarification. Section 208 planning has also generated problems. The most troublesome question deals with whether a state must engage in section 208 planning on a state-wide basis if it has not done section 208 planning on an areawide or regional basis.

(3) Cases Under the FWPCA

Challenges other than authority and jurisdictional ones were raised to the EPA industry-wide effluent limitation regulations. The EPA regulations usually did not contain a provision for variances, or if' such a provision existed, it was of very limited application.

283 The

278See, Parenteau and Tauman, id. at 33-57.

279Id.

28033 U.S.c.A. §§ 1365 and 1369 (SuPP. 1977). Only one court of appeals, the first to hear the issues, agreed with this approach. CPC International, Inc. v.

Train, note 277, supra.

28133 U.S.c.A. § 1369 (Supp. 1977). All courts of appeals other than the Eighth

Circuit followed the exclusive right of review in the court of appeals approach.

277, supra. cerl. denied, -U.S.-, 97 S. Ct. 1688, 9 ERC 2071 (1977).

See the cases listed in note

282See U.S. v. Le Beouf Brothers Towing Co., Inc., 537 F.2d 149, 9 ERC 1118

(5th Cir. 1976),



EPA also issued "single number" limitations rather than the "range of numbers" limitations that industry wanted.

284

These challenges were presented to the Fourth Circuit in Appalachian

Power Company v. Train285 in which a utility sought section 509 review of EPA regulations establishing effluent limitations on thermal discharges by steam electric generating plants. Specifically questioned were the regulations requiring particular technology for cooling waters and the variance provisions in the regulations. The jurisdictional and authority issues were also raised again. Initially the court adhered to its prior decision in E. I. duPont de Nemours & Company v. Train,286 in which it had upheld the EPA's authority to issue sections 301 and 304 effluent limitations which could only be reviewed in a court of appeals under section 509. In this earlier case the court had also held that to allow flexibility the industry-wide regulations are only "presumptively applicable" to individual sources. According to the court, variances must be provided for in the regulations.

The Appalachian Power court then reviewed the regulations' variance clauses which appeared to limit factors which could be considered in granting a variance. Technological and engineering facts could be used, but not economic costs.287 Before reviewing the merits of the variance argument, the court had to resolve a procedural issue. The EPA argued that the variance provision in the regulations was not subject to review at this time because it was not being applied to any source. The EPA relied heavily on the earlier duPont decision in which the court refused to consider the variance provision in the regulations until it was applied.

The court, however, distinguished Appalachian Power from duPont because in the former the EPA had indicated that the variance provision would be enforced. Hence, administration of the regulation was not a matter of speculation.

288 The court also adhered to its conclusion in duPont that the regulations are only presumptively applicable. On the merits the court held that the variance provision was unacceptable until the EPA allowed consideration of at least the statutory factors which could be considered in setting effluent limitation standards and guidelines.

289 In particular, these must include the total cost, the non-

283See authorities in note 277, supra.

284E.g., California & Hawaiian Sugar Co. v. EPA, 553 F.2d 280, 9 ERC 2129

(2d Cir. 1977).

285545 F.2d 1351,9 ERC 1033, modified, 9 ERC 1274 (4th Cir. 1976).

.

286Note 277, supra, aff'd in part, rev'd in part, -U.S.-, 97 S. Ct. 965, 9 ERe

1753 (1977) (upholding the Fourth Circuit's interpretation of § 509).

281 Appalachian Power Co. v. Train, note 285, supra at 1358 - 60, 9 ERe at

1038 - 39.

288Id. at 1358 - 59,9 ERe at 1038 - 39.

2891 d. at 1358 - 60, 9 ERe at 1039.


1977] ENVIRONMENTAL LAW ISSUES 777 water quality environmental impacts, and energy requirements resulting from application of an effluent limitation to a particular plant.29o

The court rejected the argument that 1983 standards cannot be set until a section 315 report is prepared. The court concluded that the report had to be prepared but was not a statutory prerequisite to setting standards.291 The court also rejected the cost analysis of the EPA and required greater explication of the benefits to be achieved by the various alternatives that were considered.292 Likewise, with respect to nuclear power plants, the court required the EPA to explain more fully the basis of the analysis used to determine the impact of thermal pollution.293

The court then invalidated the rain water runoff regulations to the extent that they applied to nonpoint sources and the intake regulation to the extent that it required a discharger to control pollutants which it did not discharge into the water.

294

The Tenth Circuit in American Petroleum Institute v. EPA29s was confronted with issues similar to those in Appalachian Power. The court upheld the EPA's authority to issue the regulations and their reviewability exclusively under section 509. However, in reviewing the regulations on their merits, the Tenth Circuit's results differed in some respects from earlier cases. The court concluded that it was appropriate for the EPA to issue single number effluent limitations rather than a range of numbers.296 This was consistent with prior cases from the Second and Fourth Circuits.

297 But the court expressly disagreed with the Fourth Circuit's holding in Appalachian Power on the variance issue. It concluded that that court's invalidation of a regulation that failed to provide a variance to the 1977 standards was erroneous.

298

The court's disagreement extended to the procedural issue. It stated that until the variance is applied, no decision concerning its validity should be made because it would have to be based on speculation, not fact. 299 The court noted that Congress did not provide for variances from the 1977 standards in the FWPCA.30o The case was ultimately remanded for the EPA to reconsider the storm water runoff regulations,301 but all other challenges to the regulations were rejected.

290Id.

291Id.

292Id.

293Id. at 1360 - 61, 9 ERC at 1039 - 40. at 1364 - 65, 9 ERC at 1042 - 43. at 1366 - 67, 9 ERC 1044 - 45.

294Id. at 1372 - 74 and 1377 - 78, 9 ERC at 1050 - 51 and 1053 - 54.

295540 F.2d 1023, 9 ERC 1252 (10th Cir. 1976).

296Id. at 1030 - 32,9 ERC at 1258 - 59.

297Hooker Chemicals & Plastics Co. v. Train, note 277, de Nemours & Co. v. Train, note 277,

298N ote 295, supra supra. at 1032-33, 9 ERC at 1259 - 60. supra; E. I. duPont

299Id.

300Id.

301Id. at 1035, 9 ERC at 1261- 62.


778

BAYLOR LAW REVIEW [Vol. 29

The authority, jurisdictional, and variance issues were decided last term by the United States Supreme Court. The issues arose in a citizen's suit under section 505 to review effluent limitation standards promulgated by the EPA under the FWPCA. In E. I. dftPont de Nemours

& Company

'V.

Train 302 the Court held that the EPA had the authority to issue national standards pursuant to sections 304 and 301 and that those were subject to review only in courts of appeals pursuant to section 509 of the FWPCA. Hence this case which was brought under section 505 was properly dismissed by the lower courts. But, according to the Court, the court of appeals erred in holding that the EPA must provide for variances in its effluent limitation regulations. In addition the Court rejected the Fourth Circuit's conclusion that the regulations were only "presumptively applicable."303 It held that the regulations were intended to be an absolute prohibition and that this construction is consistent with the "no discharge" policy, a stated goal under the Act.

The Court expressly rejected the rationale that variances are appropriate to the regulatory process. According to the Court: "The question, . . . is not what a court thinks is generally appropriate to the regulatory process; it is what Congress intended for these regulations. It is clear that Congress intended these regulations to be absolute prohibitions."304

In duPont the Supreme Court again deferred to the EPA's interpretation of the FWPCA in upholding the regulations. Moreover the Court expressly adopted its language in Train

'V.

Natural Resources Defense

Council, Inc.,305 protecting agency interpretations from judicial scrutiny if they are "sufficiently reasonable."306 Thus, as with the Clean Air Act, the Court apparently is willing to give wide latitude to the EPA in its administration of the FWPCA.

This deference for administrative interpretation was critical in American Iron and Steel Institute

'V.

Environmental Protection Agency.30?

There section 509 review was sought of EPA regulations which would permit adjustments in calculations of discharges in light of pollutants contained in intake waters. The crucial issue was whether those were effluent limitations subject to review under section 509. The EPA's position was that the regulations were not "effluent limitations" but

302_

303Id.

U.S. -, 97 S. Ct. 965, 51 L. Ed. 2d 204, 9 ERC 1753 (1977). at -,97 S. Ct. at 979 - 80, 9 ERC at 1763 - 64.

304Id.

30SId. at -, 97 S. Ct. at 980. 9 ERC at 1764 (emphasis original). at -, 97 S. Ct. at 978, 9 ERC at 1762. See text accompanying note 71, supra. for the Court's complete quotation.

30GId.

307 543 F.2d 521, 9 ERC 1321 (3d Cir. 1976). Review had been denied the petitioners previously, American Iron and Steel Institute v. EPA, note 277, supra, because the regulations now involved were not before the court. 543 F.2d at 524,

9 ERe at 1323.


1977] ENVIRONMENTAL LAW ISSUES 779 rather related to the terms and conditions for individual permits under section 402. The court concluded this was an acceptable interpretation of the regulations, entitled to deference even though it indirectly affected the jurisdictional issue before the court.

30S Hence the case was dismissed.

Exxon Corporation v. Train 309 also involved EPA interpretation of its authority under the FWPCA. In Exxon review was sought of

EPA's assertion of jurisdiction over a natural gas producer who was disposing of waste into deep wells. The discharge was into deep wells that were neither adjacent to nor causing runoff into surface waters.

The issue was whether this constituted the "discharge of a pollutant" within the meaning of the FWPCA, where the phrase is defined as the "addition of any pollutant to navigable waters from any point

The EPA conceded that it did not have jurisdiction under the FWPCA over discharges into ground waters that are not navigable waters. But where the discharge into ground water is in conjunction with a discharge into surface waters, the EPA maintained it had ancillary jurisdiction over both parts of the discharge.

311

The court recognized that the agency's construction of the FWPCA, if reasonable, is entitled to great weight and that deference should be given to the agency's interpretation if possible.

312 However, in light of the legislative history and the purpose of the FWPCA, the court concluded that the exercise of jurisdiction here was impermissible.

313 The court followed the earlier decision of United States v. GAF Corporation.

314 By its result in Exxon, however, the Fifth Circuit reached a conclusion diametrically opposed to a decision in the Seventh Circuit.31S

United States v. Holland 316 was a major case interpreting the extent of federal jurisdiction under the FWPCA. Specifically the issue raised in Holland was whether the federal authority over pollution was limited to pollution of navigable waters. The Holland court concluded that

Congress in the FWPCA clearly did not intend to be limited by older, traditional concepts of navigability in addressing the water pollution problem. Instead, by applying its regulatory power to control pollution of the "waters of the United States," Congress rejected any limitations

30Sld.

3 at 525, 9 ERC at 1323-24.

09544 F.2d 1310, 10 ERC 1289 (5th Cir. 1977).

31033 U.S.C.A. § 1362(12) (Supp.1977).

311Exxon Corp.

V.

Train, note 309, supra at 1319, 10 ERC at 1296.

312

1d. at 1322, 10 ERC at 1298 - 99.

313Id. at 1329-31, 10 ERC at 1305-06.

314389 F. Supp. 1379 (S.D. Tex. 1975).

315United States Steel Corp.

V.

Train, 556 F.2d 822, 851-53, 10 ERC 1001, 1022-

1023 (7th Cir. 1977). The Seventh Circuit rejected the decision in GAP Corp. and adopted the reasoning and interpretation of the EPA's General Counsel.

3 16 373 F. Supp. 665,6 ERC 1388 (M.D. Fla. 1974).

Id.


780 BAYLOR LAW REVIEW [Vol. 29 based on concepts of "navigability."317 In so doing, Congress effectively exercised its power more fully than it had previously. The court then concluded that this exercise of jurisdiction was within the commerce power of Congress and hence a constitutional exercise of the legislative authority.318

Subsequently, in Leslie Salt Co. v. Froehlke 319 the court determined that the Corps of Engineers' permit authority under the FWPCA was not limited to the mean high water mark, but rather to the "mean higher high water mark" on the Pacific Coast. That extension embraced the entire San Francisco Bay. Cases arising on the Atlantic coast have also broadly construed the Corps' jurisdiction under the Rivers and Harbors

Act.320 The effect of these decisions is to extend this jurisdiction to tidal marshes and wetlands further inland than previously had been included under the navigability concept. This issue is currently before

Congress in the form of proposed amendments to the FWPCA which would remove wetlands and marshes from the Corps' jurisdiction.

321

Bethlehem Steel Corporation v. Train 322 dealt with a slightly different jurisdictional question. The issue was whether the EPA could excuse compliance with effiuent limitations beyond the statutory date of July

1, 1977. The EPA had determined it could not grant an NPDES permit allowing compliance beyond that date,323 and the court agreed. It held that the EPA did not have authority to grant point sources a time in excess of the statutory period for compliance. In Bethlehem Steel the

EPA had issued an enforcement compliance schedule letter (ECSL).

Under the ECSL program, if the standards under a permit for a particular source cannot be met by July 1, 1977, notwithstanding good faith and diligent efforts to comply, the EPA in effect waives enforcement.

The EPA issues an ECSL which contains a compliance schedule requiring progressive stages to achieve effiuent limitations at some time subsequent to the statutory compliance date. The EPA justifies the

ECSL program as an exercise of its prosecutorial discretion under the

FWPCA.324 Although the court in Bethlehem Steel discussed the

3171 d.

318Id. at 668 - 676, 6 ERC at 1390 - 1395. at 676, 6 ERC at 1395.

319403 F. SuPp. 1292, 7 ERC 1311 (N.D. Cal. 1974). In a subsequent case the same court held that the Corps of Engineers permit jurisdiction under the Rivers and Harbors Act of 1899 extends to the mean higher high water mark. Sierra

Club v. Leslie Salt Co., 412 F. Supp. 1096, 4 ERC 1663 (N.D. Cal. 1976).

320E.g., United States v. Stoeco Homes, Inc., 498 F.2d 597, 6 ERC 1757 (3d Cir.

1974), ccrt denied, 420 U.S. 927 (1975); United States v. Sexton Cove Estates,

Inc., 526 F.2d 1293,8 ERC 1657 (5th Cir. 1976).

32135 CONG. Q. WEEKLY REP. 1742-43 (August 13, 1977).

322544 F.2d 657, 9 ERC 1420 (3d Cir. 1976), cert. denied, -U.S.-, 97 S. Ct.

1666 (1977). Accord, United States Steel v. Train, note 315, supra.

3231n Re Bethlehem Steel, 9 ERC 1063 (EPA Administrator Decision 1975).

324Bethlehem Steel Corp. v. Train, note 322, supra at 660, 9 ERC at 1422.



ECSL process, it did not resolve the legal questions surrounding it. The permit must contain the statutory deadline, but whether, after the deadline has passed, a discharger holding an ECSL is in violation and may be subject to an enforcement action by a citizen under section 505, or by the EPA, was not answered.

325

A subsequent case also dealt with the discretion of the EPA to deviate from the mandatory compliance date in an NPDES permit. In Republic

Steel Company v. Train 326 the court found that the EPA failed to issue the necessary effluent guidelines which the state permitting authority could use as the basis for its permits. Hence the state was unable to issue an NPDES permit requiring compliance by the mandatory date because of the EPA's inaction. Under these circumstances the court concluded that the EPA could not object that the state issued permit extended time for compliance beyond the July 1, 1977, deadline. Bethlehem Steel was distinguished because it concerned an EPA issued NPDES permit that was issued on or before the final date that would allow compliance by the mandatory deadline. Republic Steel also left the status of the EPA's

ECSL program unresolved.

327

In another case a citizen group did not fare well when bringing a section 505 enforcement action. In Sierra Club v. Train 328 the plaintiff was not permitted to bring a section 505 action to force the Administrator to initiate a section 309 enforcement action against mining companies for violations of the FWPCA. The court concluded that the

FWPCA and its legislative history clearly showed that the section 309 enforcement action is intended to be used judiciously and at the discretion of the Administrator. In fact, according to the court, the legislative history indicated that state rather than federal enforcement actions are to be encouraged. Hence, the court concluded that the section 309 enforcement duties are discretionary and not subject to section 505 litigation.

329 If this reasoning were applied to the ECSL

3251d.

326 557 F.2d 91,10 ERC 1306 (6th Cir. 1977).

327The question of how to proceed under the FWPCA is apparently unanswered within the EPA. A recent decision by the General Counsel for the EPA conflicts with EPA's position. [1977] 8 ENVTL REp. (BNA) (Curr. Dev.) 824 - 25.

On September 9 -the matter was taken to the courts. An environmental group is suing a company that is allegedly violating the FWPCA and its NPDES permit.

The company is discharging pursuant to an EPA enforcement compliance schedule letter which the plaintiffs claim is illegal. [1977] 8 ENVTL REP. (BNA) (Curr.

Dev.) 835.

328 557 F.2d 485,10 ERC 1433 (5th Cir. 1977). if

3291d. at 491, 10 ERC at 1439. The language the court construed provides that there is a violation of particular sections of the Act or conditions or limitations implementing them, the Administrator, "shall issue an order requiring such person to comply with such condition or limitation, or shall bring a civil action in accordance with subsection (b) of this section." 33 U.S.C.A. § 1319(a) (3) (Supp.

1977). It is difficult to do justice to the court's interpretation of "shall" contrary


782 BAYLOR LAW REVIEW [Vol. 29 program, section 505 enforcement suits would probably fail. To date no court has decided that issue.

The United States was successful in an enforcement action pursuant to section 309 of the FWPCA even though section 301 effluent limitations had not been set. In United States v. Cutter Laboratories, Inc.

33o the district court held that a section 309 enforcement action was proper under the circumstances. The defendant had argued that the enforcement action could not be brought unless effluent limitation guidelines had been issued. The EPA, however, was enforcing a violation of an

NPDES permit. The permit contained conditions and limitations on the discharges based on "the best engineering judgment" as determined by the EPA. The court concluded that the action was allowable because the EPA did have the authority under the FWPCA to issue permits prior to promulgation of section 301 limitations or section 304 guidelines.

For that reason enforcement of those permits was allowed.

Oil spills into navigable waters have presented equally difficult problems under the FWPCA. In Quarles Petroleum Company, Inc. v.

United States 331 the court dealt with the issue of whether the cleanup costs of an oil spill could be recovered from the federal government.

Under section 311 of the FWPCA, cleanup costs are recoverable by a party creating the spill if it was caused by a third party without any fault by the claimant.332 Here the spill was caused by a tanker owned by the plaintiff but was due to the negligence of a third party. The plaintiffs would have been entitled to recover the cleanup costs, but the the costs were in fact paid by the insurer of the plaintiff. The issue therefore was whether the insurance company as subrogee of the claim could recover. The court concluded that it could. It held that the subrogation would be permitted if the original party were entitled to recover the costs, and if the subrogee's claim were precisely the same as the original party's.

In United States v. HamiJ333 criminal liability under the FWPCA was enforced. That case involved a defendant who had discharged gasoline into a navigable waterway. The defendant claimed that the criminal liability was improper under the FWPCA and that a civil action should have been brought. Specifically, the question was whether to its plain (and popular) meaning. Arguably Congress intended strict enforcement, and the Administrator's discretion is limited to using a compliance order or civil action. In this case, however, the Fifth Circuit adheres to the EPA's construction of its duties, Sierra Club v. Train, note 328, supra at 488, 10 ERC at

1435, which is contrary to its approach in Exxon Corp. v. Train, note 309, supra.

330413 F. Supp. 1295,9 ERC 1209 (E.n. Tenn. 1976).

321

332

35 CONGo Q.

WEEKLY

REP. 1742-43 (August 13, 1977).

33 U.S.CA. §1321 (i)(l) (Supp.1977).

333551 F.2d 107, 9 ERC 1932 (6th Cir. 1977).


1977] ENVIRONMENTAL LAW ISSUES 783 section 502, defining "pollutant," included the discharge of oil and gas.

This section lists a variety of materials, including chemical waste and biological matter, but not oil and gas expressly.334 The court held that the language of section 502 was broad enough to include petroleum products. The court relied on prior interpretations of the Refuse Act and, in particular, United States v. Standard Oil Company,335 where the

Supreme Court held that petroleum discharges were pollutants under the

Refuse Act. Hence, enforcement pursuant to a criminal indictment was proper even though a civil action might have been brought.

C. Land Use

(1) National Environmental Policy Act of 1969 (NEPA)336

Clearly the most significant federal statute concerning environmental protection is NEP A. By contrast to the Clean Air Act and the

FWPCA, NEP A is a planning, rather than a regulatory, statute. A principal objective of the Act was to bring environmental factors into the agency decision making process. This objective has been viewed as requiring "environmental full disclosure" of all facts relevant to proposed federal activities, their alternatives, and their consequences. This objective is fulfilled through the procedural requirements in section 102.

The best known of these is section 102(2) (C), which requires federal agencies to prepare an environmental impact statement (EIS) on any major federal action which significantly affects the quality of the human environment.

337 There are other provisions less known but equally as important to federal agencies. NEP A requires agencies to use a

"systematic interdisciplinary approach" in planning 338 and to develop procedures to evaluate fairly previously unquantified amenities in the decision making process.

339 It also requires full consideration of alternatives in any situation involving unresolved conflicts over allocation of resources.340 Cooperation and coordination with other federal and state agencies and the public are also required.

341 Although these requirements may be satisfied in an agency's EIS process, they are separate and independent of the EIS.

These procedural requirements combine to change the scope and nature of administrative decision making. Clearly after NEP A no

334

33 U.S.C.A. § 1362(6) (SuPP. 1977).

335

384 U.S. 224, 86 S. Ct. 1427. 16 L. Ed. 2d 492, 1 ERC 1033 (1966).

33642 U.S.c.A. §§ 4321 et seq. (1977).

337Id. § 4332(2) (C).

338Id. § 4332(2) (A).

339/d.

340Id.

§ 4332(2) (B).

§ 4332(2) (E).


784 BAYLOR LAW REVIEW [Vol. 29 agency can assert a lack of authority to consider environmental issues relating to its activities.342 Nor can they assert lack of expertise to appraise environmental factors fairly. The interdisciplinary approach and interagency cooperation require agencies to seek advice and expertise on environmental matters from other agencies having that information or from the private sector. Except in limited circumstances,343 however, agencies are not allowed to rely on others-either federal agencies, state agencies, applicants, or the public-to prepare an EIS. Data and information may come from several sources, but the actual preparation and evaluation of the EIS must be done by the responsible agency. This is to assure, insofar as is possible, that the EIS is thoroughly and impartially prepared. Full disclosure of both federal activities and their environmental effects is achieved by having the EIS sent to the Council on Environmental Quality (CEQ) and available to the public.344

NEP A has special significance in the development of energy resources.

Frequently development of a resource requires federal action. Sometimes the resources are located on federally owned or controlled lands, such as oil and natural gas on the Outer Continental Shelf34s or oil shale in the Colorado-Utah-Wyoming area.346 In other instances development of the resource may require licensing such as is necessary through the

Nuclear Regulatory Commission (NRC) for nuclear power plants. In any event, if by granting the permission, executing a lease, funding a project, or in some other way the federal government is involved, the

NEP A impact statement may be required.

The contents of the impact statement are set forth in the Act. These

341ld. § 4332(2) (C) and (G).

342Prior to NEP A, the AEC, for example, argued that it could only consider radiological hazards of its activities, not environmental impacts. The courts had sustained this position. New Hampshire v. AEC, 406 F.2d 170, 1 ERC 1053 (1st

Cir. 1%9), cert. denied, 395 U.S. 962 (1969).

343The only amendment to NEP A resulted from strict limitations imposed on the Department of Transportation (DOT) requiring it to prepare the EIS on interstate highway projects. The DOT argued that it was merely a conduit through which federal assistance for highway construction flowed to the states.

The states, however, are principally involved in designing, planning, locating, and constructing the highway. The courts differed on the degree of involvement by

DOT in the EIS process. Ct., Conservation Society of Southern Vermont v.

Secretary of Transportation, 508 F.2d 927, 7 ERC 1236 (2d Cir. 1974), vacated and

remanded, 422 U.S. 289 (1975) (for reconsideration in light of Pub. L. 94-83), with

Citizens Environmental Council v. Volpe, 484 F.2d 870, 5 ERC 1989 (lOth Cir.

1973), cert. denied, 416 U.S. 961 (1974). Determining the amount of delegation that is proper has not been an easy question even after the amendment. Conservation Society of Southern Vermont

V.

Secretary of Transportation, 531 F.2d 637,

8 ERC 1762 (2d Cir. 1976) (upholding delegation to state); Swain

V.

Brinegar,

542 F.2d 364, 9 ERC 1087 (7th Cir. 1976) (holding federal input inadequate). eI

34442 U.S.c.A. § 4332(2)(C) (1977). NEPA created the CEQ. ld. §§ 4341 seq.


346ld. at 2-9. supra at 3-3 - 3-5.


1977] ENVIRONMENTAL LAW ISSUES 785 include identification of all adverse environmental effects of the proposed project, discussion of alternatives to the proposed project, consideration of the long-term productivity versus short-range effects of the project, and discussion of any irretrievable or irreversible commitment of resources.

347 Determining what satisfies "detailed" treatment of each of the enumerated topics has not been an easy job for the courts.

NEP A has presented special problems for program agencies, that is, those agencies that are expressly delegated the authority to carry out or implement particular programs of the government. For example, much litigation has involved the Corps of Engineers and its water resource project348 and the former Atomic Energy Commission

(AEC), now the Nuclear Regulatory Commission (NRC),349 in licensing construction and operation of nuclear generating plants.

350 Another question that troubles agencies is determining whether an individual or site specified EIS, as opposed to a program EIS, is required under the

Act. Which is adequate has been left for determination initially by the agency, subject to review by courts, which will evaluate the overall decision making process.

3Sl

A sampling of the NEP A litigation involving various federal agencies dealing with development of energy resources covers the full spectrum of

NEP A issues. The traditional issues include alternatives to be considered, determination of which is the lead agency, and when a program

EIS is required. Newer issues cover disposal of radioactive waste, plant siting for nuclear plants, transportation of radioactive materials, and agency procedures for implementing NEP A and carrying out its program. The cases also illustrate the complexity of the issues, especially the technological, economic, and environmental ones.

(a) NRC Administrative and Implementing Rules. A series of cases has involved the old Atomic Energy Commission (AEC), now the Nuclear Regulatory Commission (NRC), in litigation over its procedural rules to implement NEP A. The AEC early maintained that environmental factors were not within the scope of its statutory responsibilities of licensing the construction and operation of nuclear power plants. The Commission's position was that only health and safety factors relating to development of atomic energy could be considered in

3 47 42 U.s.c.A. § 4332(2) (C) (i) (v) (1977).

348E.g., Sierra Club v. Callaway, 499 F.2d 982, 6 ERC 2080 (1974) (Trinity

River Project); Environmental Defense Fund v. Corps of Engineers, 325 F. Supp.

749,2 ERC 1260 (E.D. Ark. 1971) (Gillham Dam).

349Energy Reorganization Act of 1974, 42 U.S.C.A. §§5801 et seq. (1977).

350E.g., Aeschliman v. NRC, 547 F.2d 622, 9 ERC 1289 (D.C. 1976); Citizens for Safe Power, Inc. v. NRC, 524 F.2d 1291, 8 ERC 1598 (D.C. Cir. 1974).

351See Kleppe v. Sierra Club, -U.S.-, 96 S. Ct. 2718, 49 L. Ed. 2d 576, 8 ERC

2169 (1976).


786 BAYLOR LAW REVIEW [Vol. 29 its actions. The impact of NEP A on the jurisdictional authority of the

AEC led to the landmark case, Calvert Cliffs' Coordinating Committee,

Inc. v. Atomic Energy Commission.3S2

In Calvert Cliffs' the AEC's rules for implementing the NEPA impact statement requirement were challenged. Under those implementing rules, the AEC's staff would prepare and consider an EIS in evaluating an application, but the EIS would not be considered by the Hearing Board or the Commission unless the staff or intervenors affirmatively raised environmental matters. In addition, the rules prohibited raising any non-radiological environmental issues for any application for which notice of a hearing on the application had been issued before March 4, 1971. That, in effect, said that an EIS did not have to be prepared on an application filed more than fourteen months after the effective date of NEP A. The AEC rules also removed from the Hearing

Board's consideration any environmental quality issue, including water quality, if the applicant had a certificate or permit from the appropriate state or federal authorities declaring that applicable environmental standards were satisfied. No further independent action about environmental quality was required by the AEC under the rules. The last question about the rules concerned the provision which delayed consideration of environmental factors concerning any facility for which a construction permit had been issued before NEP A was effective. In those cases, the EIS would be prepared in conjunction with the application for the operating license after the plant was built, but not before.

The nuclear power plant being constructed at Calvert Cliffs, Maryland, was in the latter category.

In a lengthy and very influential opinion the D.C. Circuit found more mandatory directives and less discretion for agencies in NEP A than the AEC had uncovered.

353 The court concluded on all points that the implementing rules of the AEC were improper. According to the court, NEP A expressly requires agencies to consider environmental issues in their decision making process even if prior to NEP A they did not have to do so. The court also concluded that the fourteen month delay before requiring an EIS on an application was unnecessarily long.

The court rejected arguments that this time was needed for administrative convenience, i.e., adaptation to the internal transition toward considering environmental factors, or because of insufficient funding to

352

449 F.2d 1109,2 ERC 1779 (D.C. Cir. 1971).

353The AEC's approach was characterized by the court in its opinion in various ways. The AEC's construction was referred to as a "crabbed interpretation of

NEPA mak[ing] a mockery of the Act," as evidencing a "thoroughgoing reluctance" to satisfy NEP A, and as being in "fundamental conflict" with NEP A.

/d. at 1117, 1119 and 1123, 2 ERC at 1784, 1786, and 1788.


1977] ENVIRONMENTAL LAW ISSUES 787 pay for preparation of EIS's. The AEC's arguments that the nation's energy crisis and urgent need for energy justified the delay were also rejected. The court concluded that Congress was aware of these matters and nonetheless imposed a mandatory duty on agencies to carry out

NEPA's mandates to "the fullest extent possible."3s4 Moreover, the court noted that Congress' failure to set a definite date for compliance meant that the responsibilities were to be carried out "forthwith."3s5

It noted that the AEC under its licensing rules already had extensive procedures established to consider safety and radiological matters.

Adding environmental matters to this process would not be as difficult as the AEC indicated.

The court also invalidated that portion of the AEC's implementing rules which required a party to raise environmental issues before they would be considered by the Commission.3s6 NEPA requires the responsible agency to prepare and consider the EIS on a case-by-case basis. The agency has the duty at least to raise the environmental issues in each case. Moreover, the court noted that in some instances there may not be an intervenor or objecting party. NEPA's requirement, however, is that the environmental factors must be considered in the decision making process in all cases. According to the court, the word

"consider" in NEPA's language implies a delicate balancing process that requires more than just gathering environmental data and physically placing it in a file. That language requires the agency to use and review the data throughout the decision making process.

Similarly, the court rejected the AEC's effort to delegate its NEPA obligations to other agencies by accepting certification from them as conclusive of environmental issues before the AEC. 357 The court noted that even if state and federal water quality standards existed and the appropriate officials certified that they were met, this did not necessarily end the investigation about water quality problems concerning nuclear plants. Thermal pollution is a serious problem which relates specifically to the plans and location of a particular plant. Matters which the

AEC might have considered were not necessarily the same as those that officials responsible for complying with water quality standards might have examined.

The last part of the AEC's rules being challenged in Calvert Cliffs' was the provision disallowing any consideration of environmental factors on plants that had been licensed for construction before January 1,

354Id.

3SS ld.

3561d. at 1119 -1122, 2 ERC at 785-88. at 1120,2 ERC at 1786. at 1122-27, 2 ERe at 1788-91.

3S'lIcl.



1970, the effective date of NEPA.358 Under the AEC rules, the first time an EIS would be prepared for the pre-NEPA licensed plant would be after construction when an application for an operating license was filed. The court concluded that this provision violates NEPA by unreasonably postponing consideration of pertinent environmental matters.

The court noted that changes could be made in existing plans and designs which could mitigate adverse environmental impacts, and that some of those changes might be made during the interim between granting the construction permit and the operating license. According to the court, one of the purposes of NEP A is to modify on-going projects to avoid or minimize environmental degradation. Obviously that cannot be achieved if an EIS is not prepared until after the plant is built.

The NRC's rules implementing NEPA have been challenged again in more recent cases. In a significant case, Natural Resources Defense

Council

'V.

Nuclear Regulatory Commission, 359 NRC procedures were reviewed and invalidated. NRDC involved the NRC's rules and the licensing of a specific nuclear plant. In particular, the nuclear waste disposal issue was raised. Under the NRC rules in individual licensing proceedings the Licensing Board considers the environmental effects of the transportation of the fuel, waste, and reprocessing, but not "the operations of the reprocessing plants or the disposal of wastes."360 In short, all stages of the uranium fuel cycle were not being considered in the cost benefit analysis of licensing individual reactors. Because plutonium is one of the waste products and also one of the most toxic substances known, the issue has serious environmental effects. The

Appeal Board argued that the waste disposal and reprocessing issues were too speculative at the licensing stage and were more appropriately considered when licensing the reprocessing or waste disposal facilities themselves. The court concluded that these effects were not too speculative and that reasonable forecasting was required by the NRC. The agency already had relevant information and data. Hence the individual license in this case was held in abeyance pending future rulemaking.

The rulemaking procedure that was being questioned authorized oral or written comments on proposed rules, but did not allow discovery or cross-examination. The question raised was whether due process was denied by this omission. After reviewing the record the court concluded that the Commission had ignored available information on nuclear waste issues. In its words, "[t]he Commission's action in cutting off con-

3581d. at 1127 - 29, 2 ERC at 1791 - 1793.

359547 F.2d 633, 9 ERC 1149 (D.C. Cir. 1976).

360Id. at 637, 9 ERC at 1151.


1977] ENVIRONMENTAL LAW ISSUES 789 sideration of waste disposal and reprocessing issues and licensing proceedings based on the cursory development of the facts which occurred in this proceeding was capricious and arbitrary."361

In Gage v. Atomic Energy Commission 362 the petitioner challenged new regulations implementing NEP A which had been issued by the

AEC subsequent to Calvert Cliffs.' The petitioners in Gage argued that the regulations should prohibit an applicant for a construction permit from purchasing land where the applicant desires to have the plant located before the construction permit is issued. They also argued that the regulations should have been accompanied by an EIS.

The court rejected both of these contentions on procedural grounds.

It held that the petitioners who had not participated in the rulemaking process leading up to the promUlgation of the current regulations could not now challenge them. The court noted that they had an opportunity to seek review in the rulemaking process for the regulations. Although the petitioners owned land that the applicant for the license was purchasing, they did not submit comments or seek to participate in the rulemaking proceedings. The court held that they should be denied any right of review that was authorized and available, but not sought, under the Atomic Energy ACt.363 The court concluded that failure to become a party within the meaning of that Act in the rulemaking proceeding of the

NRC caused the petitioners to lose their right to direct appellate review.

The court also held that, even under its general review jurisdiction, it would be inappropriate to hear the case because the petitioners' complaint could be corrected by new agency rules or by the petitioners' seeking promulgation of the rules they requested.364

In other cases AEC compliance with NEP A has been challenged in the AEC's approval of construction and licensing permits for particular plants. In Union of Concerned Scientists v. Atomic Energy Commis- sion J65 review was sought of the Atomic Safety and Licensing Board's decision authorizing issuance of an operating license. The objection was that the Safety Board considered safety and health factors independent of the environmental factors, rather than considering and evaluating them at the same time. The argument was based heavily on the Calvert

Cliffs' holding that the regulation promulgated must give full and fair treatment to environmental factors. Moreover, under the AEC's rules the Board did not have to consider any factors relating to safety that were uncontested or not raised by the staff.

361Id.

362 at 655, 9 ERe at 1167.

479 F.2d 1214,5 ERC 1402 (D.C. Cir. 1973).

3631d. at 1217 - 21, 5 ERC at 1404 - 07.

3641d. at 1221 - 22, 5 ERC at 1407 - 08.

365

499 F.2d 1069, 6 ERC 1705 (D.C. Cir. 1974).



The court elaborated on its prior decision in Calvert Cliffs: It pointed out that in Calvert Cliffs' it had required development of environmental data, but it did not require new, duplicate information. If the information regarding safety was adequately developed in the Board's hearings, this information did not have to be repeated in the EIS.366 The court rejected the challenges and upheld the AEC's procedures.

In Nader v. Nuclear Regulatory Commission 367 the environmentalists raised a similar safety issue. They wanted to shut down or derate all nuclear power plants as a safety measure because of questions concerning the effectiveness of the emergency core cooling systems of the reactor.

Again the court rejected the challenge and upheld the agency procedure.

In York ; Committee for Safe Environment v. Nuclear Regulatory

Commission 368 the NRC's rules about the content of radioactive material discharged into receiving waters were questioned. The limitation required the effluent released in unrestricted areas to be "as low as practicable." The issue presented was whether the NRC must determine a precise number to quantify allowable amounts of radioactive effluents.

The court upheld the NRC's rule and said that a single number limitation was not required.

369 However, the court remanded the case for an individualized cost benefit analysis to determine what the appropriate concentration at each plant under the "as low as practicable" standard would be. The court held that even though a quantity could not be determined with much accuracy for all plants, the "as low as practicable" formula could be reduced to specific limits for each plant. Because that was not done, the case had to be reconsidered by the NRC.

An issue in Citizens for Safe Power, Inc. v. Nuclear Regulatory Com- mission 370 was the issuance of an operating license for a commercial nuclear power reactor. A health and safety issue similar to the one raised in Concerned Scientists was presented in Citizens, specifically, whether the safety and health determination made in granting the operating license must be done in conjunction with the NEPA impact statement. Under its rules the NRC considered health and safety matters separately from environmental matters. The court approved the NRC's approach and also its procedure for considering safety and health factors in light of NEP A cost benefit analysis. Moreover, in light of York and

Concerned Scientists, the court concluded that the NRC reached a

"principled decision."371

366 ld: at 1072 - 80, 6 ERC 1706 - 11.

367513 F.2d 1045, 7 ERe 2059 (D.C. Cir. 1975).

368527 F.2d 812, 8 ERC 1646 (D.C. Cir. 1975).

369Id. at 814-15, 8 ERC at 1647.

37 0 524 F.2d 1291,8 ERC 1598 (D.C. Cir. 1975).

37lId. at 1301, 8 ERC 1605.


1977] ENVIRONMENTAL LAW ISSUES 791

(b) Transportation of Nuclear Materials. Health and safety issues have also been presented under NEP A concerning the transportation of special nuclear materials. In New York v. Nuclear Regulatory Commission 372 the state sought to enjoin air shipments of special nuclear materials which were radioactive into or over the state of N ew York before NRC filed an environmental impact statement. The court reviewing the facts determined that the special nuclear materials had been flown and transported in this manner across N ew York and other states for over twenty years, and agreed with the trial court that the state failed to show any irreparable harm justifying injunctive relief. It rejected the argument that any violation of NEPA, however slight, constitutes irreparable harm justifying the issuance of a preliminary injunction. The court concluded that a NEPA violation is not per se irreparable harm,373 and that determinations of whether the requirements of a preliminary injunction were met are within the sound discretion of the trial court. The court also rejected the state's efforts to show that sabotage, accidents, terrorist attack, and other means presented special threats regarding special nuclear materials. The safety record of the airlines and the record regarding transportation of these materials in the past more than offset this data, according to the court.

(c) Consideration of Alternatives. Another controversial and frequently litigated matter involves alternatives which must be included in an EIS. An early case dealing with that problem was Natural Resources Defense Council v. Morton.

374 Morton involved the Department of Interior's leasing tracts of submerged land on the Outer

Continental Shelf for oil and gas development. The question presented was whether the discussion of alternatives in the EIS was adequate.

Basically the EIS merely identified several alternative energy resources including oil shale, coal liquification and gasification, and desulphurization of coal and stated that it was beyond the scope of the EIS to discuss them further. The court had to decide if that treatment satisfied NEPA, and held it did not.

The court rejected an argument implied from the government's case that the EIS need not discuss the environmental consequences of the alternatives.

37S The court held that a presentfltion of the environmental risk incident to a reasonable alternative to the proposed course of action was required. It also rejected the government's arguments that the only alternatives that needed to be discussed were those that the agency could

372550 F.2d 745, 9 ERC 1825 (2d Cir. 1977).

373This is a close and controversial issue. E.g., Kleppe v. Sierra Club, note 351, supra.

374

458 F.2d 827, 3 ERC 1558 (D.C. Cir. 1972).

37SId. at 832, 3 ERC at 1561.


792 BAYLOR LAW REVIEW [Vol. 29 adopt and put into effect. It required the Interior Department to consider as an alternative the elimination of oil import quotas which would require action by the President or Congress.

376 This reflects one of the purposes of the EIS, which is to provide information to the public and

Congress permitting review of the agency's decision. In addition, the court held that the alternatives considered need not be total solutions to the problem. If they would significantly affect or alleviate the environmental harm, they must be included.

377

A major portion of the court's opinion addressed the question of whether the discussion of alternatives must include development of other energy resources. In particular the alternatives proposed were the development of the oil shale, desulphurization of coal, coalliquification and gasification, tar sands, and geothermal resources. The court set forth general guidelines relating to the inclusion of these materials. It held that those alternatives which could be developed in the same time period as the proposed action must be considered. However, if technology was not developed sufficiently to enable the resource to be available as an alternative at the time of the initial decision, then that alternative need not be included in depth. It may be adequate in that situation to identify the alternative and the lack of studies or technology, which would allow the decision maker to proceed without the data, but with full awareness of the options.

The court applied a test of reasonableness to determine which alternatives must be included. It did not require the agency to engage in speculation or "crystal ball" gazing.

378 To determine what is reasonable the court said that the agency may consider reports from other agencies and include comments from them. It need not worry about effects that cannot be readily ascertained or alternatives that are remote or speCUlative in light of statutes or policies of other agencies. In closing, the court held that the alternatives of oil shale, desulphurization of coal, coal liquification and gasification, tar sands, and geothermal resources were not required to be discussed in depth. However, the alternatives of increasing nuclear energy development, changing the oil import quota, and deregulating off-shore production or natural gas pricing policies of the

FTC must be considered in greater detail.

In a more recent case alternatives in an EIS were again an issue. In

Carolina Environmental Study Group

'V.

United States 379 the court reviewed the adequacy of an impact statement prepared in conjunction

316 ld. at 834-36. 3 ERe at 1563-65.

3771d. at 836, 3 ERe at 1565.

3781d. at 837, 3 ERe at 1564.

379

510 F.2d 796, 7 ERe 1675 (D.C. Cir. 1975).


1977} ENVIRONMENTAL LAW ISSUES 793 with a construction license for two nuclear reactors for the generation of electricity. The issue presented, as in Morton, was which, if any, alternative power sources must be considered as alternatives under

NEP A. Those suggested as requiring treatment were oil shale, geothermal energy, and solar energy. The court relied heavily on Morton in concluding that speculative and remote alternatives need not be discussed. Alternatives must be discussed only if their environmental effects are readily ascertainable and they are not remote or speculative possibilities. The AEC's EIS included discussion of no power, purchased power, hydroelectric generation, and the use of a fossil fuel plant.38o The court concluded that the discussion of these alternatives was adequate.

The case of Aeschliman v. Nuclear Regulatory Commission 381 also involved the adequacy of treatment of alternatives in an EIS. The alternative that was not discussed here was energy conservation to reduce demand and the need for the proposed plant; NRC procedures were also at issue. Although in a prior case the NRC had concluded that conservation issues must be considered in licensing proceedings, under its procedures the Licensing and Appeal Board would consider conservation alternatives only upon an affirmative showing that methods for conservation existed.382 The NRC had adopted a "threshold test" which required that the intervenor "must state clear and reasonably specific energy conservation contentions in a timely fashion.

Beyond that they have a burden of coming forward with some affirmative showing if they wish to have these novel contentions explored further."383

In short, the objectors must show that the effect of their efforts would curtail demand to the level that the proposed facility would not be needed before conservation would be considered an alternative to a proposed plant. By adopting this rule the Commission intended to implement the

Morton "reasonableness" test by providing a method to ascertain reasonable alternatives.

The appellant in Aeschliman challenged both the exclusion of energy conservation as an alternative in the EIS and the AEC's use of the threshold test. The test was challenged on the grounds that it was contrary to the requirement of NEPA that the agency take the initiative in developing the environmental issues. On both points the court agreed with appellants, holding that the "threshold test" and the exclusion of the conservation data were improper.

380

1d. at BOO - 01,7 ERC at 1678 -79.

381Note 350, supra.

3821d. at 625-27, 9 ERC at 1290-92.

383

1d. at 626, 9 ERe at 1292.



The court rejected the Commission's threshold approach because it required the intervenors to establish that the suggested alternatives satisfy the rule of reason, i.e., must be included in the EIS. Placing that burden on persons outside the agency is inconsistent with the

NEPA mandates. It is the agency's responsibility to determine what alternatives must be discussed. The court held that once the alternative is satisfactorily brought to the agency's attention, the agency has the obligation to investigate and consider it further.

384 Use of the threshold test was arbitrary and capricious in this context. The court agreed with the NRC that an agency does not have to consider remote and speculative possibilities and can deal with circumstances as they exist or are likely to exist. Nonetheless, the court believed that energy conservation was an alternative that had been adequately presented.

It noted that the Federal Power Commission considers achieving the proposed objectives through energy conservation as an alternative in its preparatory study;385 presumably the NRC could do likewise.

The court also rejected the NRC's argument that the cost benefit analysis adequately treated the conservation issue.

( d) The Program EI S. In the nuclear area another NEP A issue, the program EIS, has frequently been raised. A particularly significant case was Scientists' Institute for Public Information, Inc. v. Atomic

Energy Commission (SIPI).386 In SIPI one issue was whether the

AEC's Liquid Metal Fast Breeder Reactor program was a "recommendation or report on proposals for legislation or other federal major action" requiring an EIS and, if so, whether the program had progressed far enough to require preparation of the EIS at once or at some future date. The court, after examining the facts, concluded that an EIS was necessary. This result was reached even though the program was one of research and development.

The court also concluded that individual EIS's on prototype plants as they came into existence would be insufficient to comply with NEP A.

Many factors that were related to the total program and to national energy concerns required a broader treatm~nt than would be provided in an individual EIS. These factors included whether the monetary commitment that had been accelerated by presidential order should be

384

/d. at 627 - 30, 9 ERC at 1292 - 95. A case involving the Transportation Department more clearly shows the rejection of speculative alternatives. In Coalition for Responsible Regional Development v. Coleman, 555 F.2d 398, 10 ERC- (4th

Cir. 1977), the court concluded that the only proposals that need be considered were those that were "active, as distinguisheri from a purely speculative, proposal from a responsible public agency." /d. at 402, 10 ERC at -. Otherwise, the court noted that there is no basis upon which to develop the EIS.

385ld. at 629, 9 ERC at 1294.

386481 F.2d 1079, 5 ERC 1419 (D.C. Cir. 1973).


19771 ENVIRONMENTAL LAW ISSUES 795 continued; whether the program was commercially feasible; and whether other resources such as solar energy, oil shale, or Outer Continental

Shelf oil and gas should be developed The court concluded thatcontinued development for this program would significantly preclude development of other resources and eliminate them as alternatives to nuclear power. To assure that other resources received appropriate consideration, the court concluded that an EIS on the Liquid Metal Fast Breeder

Reactor program must be prepared.

The problem of a program EIS and its contents was also raised in

Natural Resources Defense Council

'V.

Nuclear Regulatory Commission.

387 In that case the procedure of the agency in using a generic environmental impact statement on uranium and plutonium mixed oxide fuel was being challenged, as were the procedures of the NRC. In particular the challenge was raised to the bifurcated review that separated environmental matters into two parts and time periods for consideration. First the generic mixed oxide fuel EIS would be prepared, followed by an EIS for individual plants. Likewise the use of legislative, rather than adjudicatory hearings, to satisfy the NEPA requirements was questioned.

The court rejected the objection to the procedures that challenged the NRC's use of hearings in two parts. It said that the use of adjudicatory or legislative hearings is within the authority of the agency.

Moreover, it found no problem in separating the local from the generic issues. NEP A does not require extensive administrative proceedings or adjudicatory hearings, and the agency has wide latitude in deciding how to comply with NEP 388

The court concluded, however, that the draft EIS did not satisfy

NEPA requirements. HIt is apparent that draft [EIS] did not fully address alternatives to the plutonium recycle or the special problems of theft, diversion and sabotage."389 Hence it did not satisfy SIP! requirements concerning discussion of alternatives in a generic EIS. The court also concluded that granting licenses on an interim basis, which the NRC proposed to do, was major action that did require an adequate

NEPA statement. The NRC was prevented from proceeding with interim licensing of plants using mixed oxide fuel based on the draft EIS prior to a final, complete EIS.

The United States Supreme Court rendered a major decision interpreting NEPA in 1976, one of the few times the Court has heard a

387

539 F.2d 824, 8 ERe 2065 (2d Cir. 1976).

3881e/..

389ld.. at 838 - 40,8 ERC at 2074 -75. at 842, 8 ERC at 2077. The language in ERC differs from the Federal

Reporter quoted in the text. It begins, "It is admitted by the Commission • •• • "

(Italics added to indicate difference from text.) 8 ERC at 2077.



NEP A case. This case, Kleppe v. Sierra Club,

390 involved the issue of a program EIS for the proposed coal mining leases the Department of

Interior was ready to issue in the Northern Great Plains region. The petitioner wanted to prepare individual EIS's for separate leases and to undertake a reappraisal of the Department's coal-related activities nationally. The environmentalists argued that the case closely resembled

SIPI, and that action was being done which would foreclose consideration of alternatives later. Moreover, they argued that the area is geographically and physically interrelated and that separate mines would cause cumulative regional effects. The Court concluded that the lower appellate court was wrong in requiring a program EIS. It also rejected its use of the SIPI balancing test to determine when an EIS is required.391 The Court held that no national or regional plan of development was proposed, hence no program EIS was required. Moreover, the balancing test to determine when an EIS is needed was held to be improper because it does not decide if any action has been proposed. Whether there is proposed federal action requiring an EIS is a question of fact which, if answered affirmatively, is the point in time when an EIS, individual or program, should be prepared.

Kleppe is noteworthy for another point. The Court again seems to give wide latitude to the agency in defining its work and declaring when a program is undertaken. For example, the Court's concern over the judicial balancing test to determine if an EIS is needed related to the separate roles of agency and court under NEP A.

The procedural duty imposed upon agencies by this section

[102(2)(C)] is quite precise, and the role of the courts in enforcing that duty similarly precise. A court has no authority to depart from the statutory language and, by a balancing of courtdevised factors, determine a point during the germination process of a potential proposal at which an impact statement should be prepared. Such an assertion of judicial authority would leave the agencies uncertain as to their procedural duties under NEPA, would invite judicial involvement in the day-to-day decisionmaking process of the agencies, and would invite litigation.

392

Moreover, the Court ultimately upheld the agency's determination regarding the nature and scope of the project.

(e) Nuclear Plant Siting. Another issue which has presented

NEP A land use problems has been the siting of nuclear power plants.

390 427 U.S. 390, 96 S. Ct. 2718, 49 L. Ed. 2d 576, 8 ERC 2196 (1976).

391/d. at 398, 8 ERe at 2174.

3921tl.



An element that is being litigated more frequently is whether the plant should be placed near the populated area or the city for which it will provide power. In North Anna Environmental Coalition v. Nuclear

Reg~tlatory Commission 393 the NRC's issuance of a construction and operating license was under review. The particular issue was whether locating the plant over an earthquake fault zone created undue risks that were inimicable to the health and safety of the public. Findings of the Appeal Board concerning fault zones were also challenged. The court concluded that the AEC properly allowed the permit and upheld its regulations regarding location on fault zones. It stated that additional safety factors in plant design were required by the regulations and that those satisfied statutory requirements.

Porter County Chapter of the Isaac Walton League of America, Inc. v. Atomic Energy Commission 394 was another case concerning nuclear plant siting. In an earlier decision involving the same parties the

Seventh Circuit had determined that the AEC had violated its regulations for determining when a plant could be located near a population center of more than 25,000 people and set aside the Commission's action in granting the construction permit.

395 The plant was to be built at a unique location on a lakeshore area near the sand dunes in Indiana.

That sensitive land area would be threatened by the plant. This earlier case was reversed and remanded by the United States Supreme Court.

396

On remand the Seventh Circuit upheld the regulation approving the site.

391

The court rej ected arguments that alternative sites. were inadequately treated in the NEPA statement. It also rejected the cost benefit questions raised by the petitioners. The court stated that the issue of safety and location of nuclear plants near metropolitan areas will always be a controversial one, but determination of this issue remains in the hands of the agencies.

(f) The Lead Agency. A very practical problem for agencies is determining what constitutes the lead agency in preparing an impact statement; a related question deals with when the EIS must be prepared.

Both questions were raised in Mahelona v. Hawaiian Electric Com-

39

3533 F.2d 655, 8 ERC 1770 (D.C. Cir. 1976). The most recent development in the North Anna Nuclear Power Plant is the allegation that the NRC and its licensee kept information of the plant's location on a fault zone secret. Omang,

US. Cover-Up Seen on Fault at VEPCO Site, The Washington Post, September

23, 1977, p. AI, col. 6.

394 533 F.2d lOll, 9 ERC 1282 (7th Cir. 1976).

395515 F.2d 513, 7 ERC 1721 (7th Cir. 1975).

396423 U.S. 12,8 ERC 1752 (1975).

391533 F.2d 1011,9 ERC 1282 (7th Cir. 1976).



pany.398 In that case an electric company operating a power station had a thermal discharge into ocean waters. Under the Federal Water Pollution Control Act a thermal discharge is a pollutant. Thus an NPDES permit was needed from the EPA to continue operating the plant.

Plaintiff contended that in granting the permit the EPA needed to

The lead agency question arose because a Corps of Engineers permit was also required under section 10 of the

Refuse Act.

Thus in M ahelona the issue presented was whether either of the federal defendants, the EPA or the Corps of Engineers, had to prepare an EIS. The EPA contended that it was exempted under the FWPCA from the EIS requirement in granting the NPDES permits. The Corps contended that the project did not require an EIS, but, if it did, the

Corps did not have to prepare it because the EPA was the lead agency.

The court summarily rejected the argument that the project would not have an environmental impact necessitating an EIS. In fact the court looked at the Corps' statement and concluded that it did not reach the conclusion that no impact statement was necessary. Rather it stated that because the project had progressed so far and was urgently needed, delays should be avoided. As the court stated, "[T] his statement hardly amounts to a finding of no significant impact on the human environment; in fact, it almost implies that such an impact can be expected."399 The court also rejected the Corps' argument that the impact was not significant because there was no public reaction or outcry against the project and concluded that the Corps would have to alter its negative assessment. It stated that the Corps could reach a determination that no impact statement was necessary, but must do so on a more objective analysis of the facts.

Next the court rejected the Corps' argument that it was relieved of the obligation to prepare an impact statement because it was not the lead agency. The court held that the FWPCA exemption was a very limited one, strictly confined to the EPA. The court was unwilling to extend it to the Corps' determination whether permits granted by the

Corps would significantly affect the environment.

The court further considered the arguments that the FWPCA exemption applied. It noted that the exemption was limited to "sources," and the issue was whether the discharge facility that was being built was a "new source" within the meaning of the Act. The court concluded that the EPA's interpretation was sufficiently reasonable to preclude it from substituting its judgment for that of the agency within the meaning

398418 F. Supp. 1328,9 ERC 1625 (D. Hawaii 1976).

399Id. at 1333,9 ERC at 1627.


1977] ENVIRONMENTAL LAW ISSUES 799 of Natural Resources Defense Council v. Train. Because the discharge facility was a method of control and not a source, it could not be a

"new source" within the meaning of the Act. Hence the EIS was not required for the permit.

(g) FTC Divestiture Proceedings. Use of NEPA has not been limited to environmentalists. In a recent case an exemption from NEP A was urged by the Federal Trade Commission (FTC). In Mobil Oil v.

Federal Trade Commission 40o several oil companies sought to delay the FTC's divestiture proceedings pending completion of an environmental impact statement. The FTC's action was being brought pursuant to the antitrust laws. Under a CEQ advisory opinion and the FTC rules, enforcement of antitrust actions had been exempted from NEPA EIS requirements. The oil companies challenged this. The court concluded first that the oil co~panies had standing to bring the suit and were not precluded from doing so simply because theirs was primarily a financial interest in the litigation.

401 Secondly it concluded that an environmental impact statement must be prepared.

The exemption of FTC enforcement actions has been based in part on the prosecutorial discretion which rests with the FTC; preparation of. an EIS could cause delay and imbalance in enforcement of antitrust laws. The court rejected these arguments and concluded that in situations where the actions would significantly affect the environment an impact statement would be required. The court acknowledged that its decision was contrary to the only other decision concerning the FTC,

Gifford-Hill & Company, Inc. v. Federal Trade Commission.

40Z

The court in M obit Oil concluded that allowing FTC's position to prevail would totally avoid NEP A' s mandate.

Moreover, without being subject to the dictates of § l02(2)(C), there is a danger that the Commission will wrongly assume that enforcement proceedings are exempt as well from the more general directives of NEP A. Under such circumstances, the FTC will have no incentive to heed the respondent's warnings concerning the environment, assuming that its sole mission is to enforce the antitrust laws, and the very purpose of NEP A will have been de£eated.

403

The court concluded its opinion stating,

The Court recognizes that its ruling today may signal an occasional

400

40Ild.

Energy Industry,

402

430 F. Supp. 855, 9 ERC 1849 (S.D. N.Y. 197'7). at 860 64, 9 ERC 1850 - 54. See Comment, Horizontal Integration in the

29

BAYLOR

L. REV. (1977).

389 F. Supp. 167, 7 ERC 1335 (D.D.C. 1975), aff'd. 523 F2d 730, 8 ERC

1526 (D.C. Cir. 1975).

403 430 F. Supp. at 874, 9 ERC at 1862.


800 BAYLOR LAW REVIEW [Vol. 29 decision not to prosecute antitrust violators for the sake of preserving our environment. It must be remembered, however, that the decision whether to go forward notwithstanding adverse environmental impacts rests with the Commission. It is their obligation, not the Court's, to weigh alternatives. In the rare case where the FTC determines that the severity of the offense does not justify the environmental cost of remedying it, no doubt we all will be better off bearing with the non-competitive effects rather than paying for competition with our natural resources. Federal agencies often have to choose from among evils. NEP A was designed to inject environmental consequences into that equation.404

Mobil Oil was recently reversed by the Second Circuit. The court agreed with the FTC's argument on appeal that an EIS, if necessary, is needed at the remedial, not the adjudicatory, phase of the proceedings.405 The court apparently considered that the proceedings were only in preliminary stages and that the FTC was not yet committed to specific proposals; hence any EIS would be speculative at best.

An EIS is needed on federal action that significantly affects the quality of the human environment. According to the court, "Such action does not take place at the commencement of a Section 5 adjudicatory proceeding but occurs, if at all, when the final order is issued by the commission."406

The "if at all" language raises doubts whether divestiture proceedings will require a NEP A EIS. The court also indicated that the lower court may have been wrong in holding that the oil companies had standing.

Although that issue was not reviewed on an interlocutory appeal, the court indicated that the Gifford-Hill ruling that economic interests are outside NEPA's zone of interest may be more compatible with prior

Second Circuit cases than with the lower court's ruling on the standing issue.40

i'

(2) Coastal Zone Management

Production and development of oil and gas resources, both inland and on the Outer Continental Shelf, are directly affected by coastal zone management problems. Land use issues related to coastal zones have received frequent legislative attention. Even if the drilling is to occur on the Outer Continental Shelf, pollution problems exist in the movement of the oil, whether by tanker or pipelines, to the coastal area.

Moreover, as with domestic onshore production of oil, problems exist regarding location of new refineries in already developed areas that may

404Id.,9 ERC at 1863.

405[1977] 8 ENVT'L

REP.

(BNA) (Curr. Dev.) 796-97.

406Id. at 797, quoting from the court's opinion.

40'lId.


1977] ENVIRONMENTAL LAW ISSUES 801 be desirable because of their proximity to tanker transportation of the crude oil. That type of development of coastal regions is affected by air and water pollution and land use problems. These problems have been so severe in some instances that development in coastal zones is prohibited or closely regulated.

408

Under the Federal Coastal Zone Management Act of 1972

(CZMA)

409 a federal program similar in some respects to that under the CAA and FWPCA was initiated. The CZMA is designed primarily to encourage states to develop. and adopt a coastal zone management plan. The federal government in turn provides money both for the development of the plan initially and, after federal approval, for the continuation and administration of the state plan. Federal approval is conditioned on the state programs' containing required provisions relating to adequate protection of the coastal areas through regulation or purchase, means of enforcement, planning provisions, and adequate definition of coastal zones. An additional incentive to induce the state to act is section 307, which provides for "federal consistency." Under that provision, federal agencies must take action that is consistent with approved state coastal zone management plans. Obviously the consistency concept, liberally construed, could provide states with a significant role in coastal development and planning activities that are

!=omplementary or ancillary to federal action, e.g., in granting off-shore leases or approving deepwater ports.

410

Texas has adopted legislation to regulate coastal zone areas. The

Texas Coastal Public Lands Management Act of 1973 411 uses a definition of coastal zone and a program that is almost identical to those in the federal act. Under the state program, the School Land Board under the General Land Office is authorized to administer and carry out the

Act. Pursuant to the plan an inventory of public coastal lands and water resources and a continuous analysis of potential uses are to be prepared.

Priorities among uses are to be established according to guidelines set forth in the Act. Procedural requirements are set forth for hearings on granting rights and permits to develop public coastal lands, and such development without a permit is prohibited. The Texas plan has not yet been approved by the EPA. In fact, only two coastal zone plans have received federal approval, those for Oregon and Washington. The Texas' permit system reflects greater state control over the development of

408E.g.,

CAL. PUB. RES. CODE

§§ 27000 et seq. (Deering) (1976).

40916 U.S.C.A. §§ 1451 et seq. (1974).

410See Blumm and Noble, The Promise of Federal Consistenc:::; Under § the Coastal Zone Management Act, 6 ELR 50047 (1976).

411TEX. REv. ClV. STAT. ANN. art. 5415e-l (SuPP. 1976-77),

307 of


802 BAYLOR LAW REVIEW [Vol. 29 coastal zones and an attempt to protect the coastal region, estuaries, bays, and beaches from premature and environmentally unsound development.

(3) Deepwater Ports

The last federal act dealing with offshore problems is the Deepwater

Ports Act of 1974 (DWPA).412 That Act sets up a licensing and regulatory scheme for deepwater ports located outside the territorial waters of the United States. Under the Act any ownership, construction, or operation of a deepwater port must be licensed by the Department of Transportation (DOT). The objectives of Congress are to regulate and control the location and ownership of the ports beyond territorial waters of the United States, to assure maximum protection of the environment and marine and coastal areas, and to minimize adverse impact from deepwater ports. The Act prohibits any transportation of products from a deepwater port to a port in the United

States unless it is licensed under the Act. The DWPA includes extensive procedures and time frames for filing applications with the

Secretary of Transportation for the necessary approval. It authorizes the Secretary to grant licenses on any conditions necessary to carry out the Act. Under the Act the applicant is required to demonstrate financial responsibility, capability to carry out the project, and ability to maximize protection of the environment. The port may be licensed if it is in an approved area as determined by the Secretary. A further requirement is that the Act must be carried out consistent with the coastal zone management plan of any coastal state to which the oil will be either shipped or piped.

The Texas Legislature in 1977 adopted legislation to expedite construction and operation of a deepwater port designed to accommodate supertankers.

413 The Act recognizes the need for the facility; its objectives are to provide state assistance in constructing a deepwater port for operation under contract by private parties, if private development

412

33 U.S.C.A. §§ 1501 et seq. (Supp. 1977). The two successful applicants for licenses for a deepwater port in the Gulf of Mexico were LOOP, Inc. (off the

Louisiana Coast) and Seadock. Inc. (off the Texas coast). LOOP recently accepted a DOT license to construct a deepwater port subject to stringent conditions for environmental protection. Seadock. however, apparently found the conditions too onerous; its major backers withdrew from the consortium. [1977]

210 ENERGY USERS REP. (BNA) 13-14. The major oil companies' withdrawal from

Seadock precipitated the Texas legislation in July. For an analysis of the Deepwater Port Act, see Comment, The Deepwater Port Act of

Adjacent Coastal States, 29 BAYLOR L. REV. (1977).

413Deepwater Port Authority Act, Tex. Laws codified as TEX. WA'W.!. CoDE §§

1977,

19.001 et seq. (1977». ch.

1974:

S, §§

The Definition of

1 et seq. (to be


1977] ENVIRONMENTAL LAW ISSUES 803 and construction of ,a deepwater port do not occur. Although a stated objective of the Act is to encourage private enterprise to construct and operate a deepwater port, the Act provides the organization, procedures, and funding to sustain state construction of deepwater ports. It also creates the Deepwater Port Authority, which is to conduct studies on the construction of the port.

Noteworthy are the environmental protection provisions of the Act.

The Deepwater Port Authority "shall take all reasonable steps to protect the coastal environment and the high seas from any short-term or longterm damage or harm that might occur from any action the authority may take."414 In addition, it must prepare- and adopt an environmental protection plan as soon as possible, after notice and hearing. "Environmental protection shall be a primary responsibility of the authority," and costs incurred in developing an environmental protection plan must be a cost to the authority to the same extent that economic, engineering, and promotional programs are considered costS.415

( 4) Surface Mining and Reclamation

The newest federal legislation affecting land use is the Federal

Surface Mining Control and Reclamation Act of 1977 (FSMCRA).416

The environmental objectives of the Act are abundantly clear. The Act is designed to regulate surface mining activities and post-mining reclamation operations. It also has provisions concerning reclamation of abandoned mine sites.417 The Act identifies and addresses particular environmental quality problems, including irreparable land degradation, water pollution, destruction of historic or archaeological sites, and other harmful impacts resulting from improper land uses. In addition, the

FSMCRA is expressly declared supplemental to NEPA, the Clean

Air Act, and the Federal Water Pollution Control Act, as well as to other environmental quality statutes.418 Under the Act state environmental quality laws remain in effect, and states are expressly given the authority to set more stringent performance standards on surface mining and reclamation than are established under the federal law. The Act also preserves all remedies, including private rights, that exist under state or common law.419

4141d.

41Sld. at 9 (to be codified as § 19.101 (a».

(to be codified as § 19.101 (e».

§§

416Pub. L. No. 95-87, §§ 101 et seq., 91 Stat. 445 (to be codified in 30 U.S.CA.

1201 et seq.) (Aug. 3, 1977). References will be to the appropriate section and textual discussion will relate to an entire section without additional citation unless otherwise indicated.

4171d. Title IV, Abandoned Mine Reclamation, Sections 401- 413.

4181d., Section 702 (a).

41'Jld., Section 520(e).



The implementation of the FSMCRA is similar to the Clean Air Act and FWPCA. Primary responsibility for regulating surface mining activities is imposed on the states, which are encouraged to adopt regulatory permit programs. If a state fails in this, a federal permit program will be promulgated for it. The federal administration of the

Act will be performed by a new Office of Surface Mining Reclamation and Enforcement within the Department of the Interior.42o

Section 503 421 sets forth the contents of a state program that are required in order for it to become federally approved. If a state wants exclusive jurisdiction over regulation of surface mining and reclamation operations on non-federal lands, it must submit a program within eighteen months of the date of the Act. For approval the state program must include specific provisions. First, it must have a state law authorizing regulation of surface coal mining and reclamation operations according to the requirements of the FSMCRA. Second, the program must include a state law authorizing sanctions for violations of state laws, regulations, or conditions on permits issued under the

Act. These sanctions must satisfy the minimum requirements of the federal Act and must provide for civil and criminal actions, forfeiture of bonds, suspensions, revocations and withholding of permits, and cease-and-desist orders by a state regulatory body. Third, there must be a provision for a state regulatory authority, with sufficient administrative and technical personnel and adequate funding to perform the requirements of the federal Act. The fourth requirement is a state law establishing, maintaining, and enforcing a permit system which would effectively regulate surface coal mining and reclamation operations on state lands. The state program also must contain a process for designating state areas that are unsuitable for surface mining under the federal Act. In addition it must establish a review and issuance process for permits that minimizes duplication of efforts by state and federal authorities. Finally, the state program must contain rules and regulations that are consistent with federal ones issued under the Act.

Before approving a state program, the views of the Environmental

Protection Agency, the Secretary of Agriculture, and other federal agencies concerned with or having special expertise pertinent to the state program must be solicited and disclosed by the Secretary of

Interior (the Secretary).422 The EPA must also concur in writing on the aspects of a state program involving air and water quality problems under the FWPCA or CAA. In addition, approval must be preceded

420Id., Section 201.

421ld., State Programs, Section 503.

422Id., Section 503 (b) (1).


1977] ENVIRONMENTAL LAW ISSUES 805 by at least one public hearing within the state. The Secretary must determine before approval that the state has the legal authority and qualified personnel to enforce the environmental protection standards under the Act. After a program is submitted. the Secretary has six months to approve or disapprove it. 1£ a plan is disapproved, the state will receive written notice of the decision and reasons for it. Two months will then be allowed in which the state may submit a revised program, which must be approved or disapproved by the Secretary within two months after resubmission. The origi}1al eighteen month period for submission of the state program may be extended by up to six months by the Secretary if action is required by the state legislature to meet the eighteen month deadline.

Federal programs423 will be promulgated for states which fail 1) to submit an approved program within the eighteen month period, 2) to have a program approved upon a resubmission, or 3) to implement, enforce, or maintain their approved state program. The federal program must be promulgated by the Secretary no later than thirty-four months after the date of enactment of the Act. Any federally promulgated program must consider the terrain, the climate, and the biological, chemical, and other relevant physical conditions of a state in the program's requirements. A state is not under a federal program permanently ; if its program is not approved, a state may submit a new program at any time after the implementation of a federal program.

Any permits issued under the federal program will remain in effect under a superseding state program. 1£ a state does not enforce its program, the Secretary is authorized to. do so. Any permit issued under a state program that is not enforced or has been disapproved is subject to review under the federal program. 1£ a state permit has been granted contrary to the requirements of the Act, the Secretary may impose new conditions requiring on-going operations to conform to the requirements of the Act.

While a federal program is in effect, any state laws or regulations covering surface mining or reclamation are superseded and expressly preempted by the federal program insofar as they interfere with achievement of the purposes and requirements of the Act and the federal program. Otherwise, the FSMCRA is not intended to preempt any existing state legislation unless the state law is inconsistent with the federal Act.424 What constitutes inconsistency is outlined in the

Act; no state regulation or condition will be considered inconsistent if

423Id.,

424Id.,

Section 504.

Section 505.

.

,"

..


806 BAYLOR LAW REVIEW [Vol. 29 it imposes more stringent standards than are required under the federal Act.

An elaborate permit system is established under the FSMCRA.425

Eight months after a state program has been approved, or a federal one promulgated, no surface mining activities may be conducted without an appropriate permit. The duration of the permit cannot exceed five years. An exception is provided from the five-year limitation if the applicant establishes that because of the time limit, necessary financing cannot be obtained for equipment and for opening the operation. The permit must terminate within three years if the mining operation has not been commenced by that time. If the commencement has been delayed because of litigation or threatened economic hardship to the permitee due to reasons beyond his control, fault, or negligence, reasonable time extensions may be granted. Another exception to the automatic termination is provided for coal mined to be used with a synthetic fuel or major electric generating facility. In this case the mining is deemed to have commenced when the construction of the synthetic fuel or electric generating facility begins.

Permits under the Act are subject to mandatory successive renewal with respect to the lands covered by the existing permit. Renewals must be preceded by the same pUblic notice and opportunity for public hearings that apply to granting a permit initially.426 The regulatory authority may deny the renewal only if certain findings are established and put in writing by the authority. These findings include 1) that the terms of the existing permit are not being satisfactorily met; 2) that the present surface coal mining and reclamation operation is not in compliance with environmental protection standards of the Act, an approved state plan, or the federal program; 3) that the performance bond will not be in effect for the renewal period; or 4) that additional updated or revised information has not been provided. If the renewal permit goes beyond the areas covered under the existing one, it must be subject to the standards then applicable under the Act at the time of renewa1.

The Act has extensive provisions regarding the information which is required in a permit application.

427 That information includes the names and addresses of the permit applicant, all legal owners of the surface and mineral property, record owners of surface and subsurface areas adjacent to the permit area, current and previous permit applications of the applicant and their status, a description of the mining. processes

425 Id., Section 506.

4261d.,

427Id.,

Section 513.

Application Requirements, Section 507.


1977] ENVIRONMENTAL LAW ISSUES 807 and techniques to be used, the starting and termination dates of the operation, and maps of the area drawn to scale showing the land to be affected by the application. The application must also contain the basis of the applicant's legal right to enter or conduct the mining operations in the affected area and whether those rights are pending judicial determination. Each permit application must be made public, and each applicant must submit an insurance certificate showing that adequate public liability insurance is in force covering the mining activity. The insurance must cover personal injury or property damages that might result from the surface mining and reclamation operation.

An additional requirement for a permit is that the applicant file a reclamation plan.

428 Under the Act the reclamation plan must identify all lands covered by the permit and the time sequence of the mining operations on those lands. It also must indicate the condition of the land, specifically including present uses and characteristics of both the permit land and adjacent lands sufficient to indicate their capability prior to mining. The reclamation plan must also indicate the productivity and classification of the land before the mining. In addition the post-mining use of the land and how that use will be achieved must be stated in the plan. The plan must contain a timetable to achieve the post-mining use sequentially, and this use must be compatible not only with existing surface uses and applicable land use plans and programs, but also with applicable air, water, and environmental quality standards.

It must also be consistent with the physical, environmental, and climatic conditions in the area.

These provisions for reclamation are enforced through performance bonds.

429 Prior to issuance of a permit, the regulatory authority must receive from the applicant a performance bond conditioned upon faithful performance of all the requirements of the Act and the permit. The amount of the bond must be sufficient to assure completion of the reclamation plan if that work has to be performed by the regulatory authority. The bond must be in effect throughout the surface mining and reclamation operations and for a sufficient time thereafter to satisfy the revegetation requirements of section 515.

Under the Act a permit must be granted or denied within a reasonable time after its application.

430 The applicant has the burden of showing that all provisions of the Act are satisfied. The permit cannot be approved unless the regulatory authority makes certain findings,' which must be in writing and affirmatively demonstrated by the appli-

428ld., Section 507(d). The reclamation plan requirements are set forth in

Section 50S.




808 BAYLOR LAW REVIEW [Vol. 29 cation. The required findings are 1) that the application is complete and accurate and satisfies all the requirements of the Act; 2) that the applicant can perform the reclamation required by the Act and set forth in the reclamation plan; 3) that the effect of the mining on hydro~ogic balance has been minimized; and 4) that the mined area is not within an area designated as being unsuitable for surface coal mining or, in certain areas in the West, that mining would not interrupt, discontinue, or preclude farming on certain alluvial valley floors.

In cases where the mineral estate has been severed from the surface estate an additional finding is required. Specifically the statute provides that the applicant submit either

(A) the written consent of the surface owner to the extraction of coal by surface mining methods; or

(B) a conveyance that expressly grants or reserves the right to extract the coal by surface mining methods.

As another alternative,

(C) if the conveY2nce does not exrressly grant the right to extract coal by surfllce min:ng methods, the surface-suhsurface legal relaticnship I'ha11 be determined in accordance with State

L"w: Provided. That nothing in this Act shall be construed to

?l'thorize the regula'ory authority to adjudica>e property rights disputes.431

The environmental protection performance standards are set forth in sect:on 515 of the Act.

432 Every permit must require that the s'andards in the Act or those required by the regulatory authority under a state program shall be met. The general performance standards under the

Act are elaborate. They mandate that the surface mining will be conducted in a manner wh:ch will maximize the recovery of the mineral and yet minimize the harm to future use of the land. The standards require efforts at land restoration in compatible or better uses than were existing before the mining. They also provide for restoration to the "approximate original contour" of the land, stabilization and protection of all surface areas, protection and segregation of top soil from waste and overburden, and preservation of prime farm land. Performance standards are eS'ablished for water impoundments, augering operations involving surface mining, hydrologic balance, waste disposal, surface mining near underground mines, coal mine waste piles

431Id., Section 510(b) (6).



1977] ENVIRONMENTAL LAW ISSUES 809 and spoil deposits. In addition, off-site areas must be protected from slides or other damage, fish and wildlife must be preserved where practicable, and slide and erosion barriers must be constructed, when needed. Other additional requirements that are unique to steep-slope surface coal mining are imposed on those operations. Section 516 imposes standards on underground coal mining operations.

433

Section 517 434 gives the Secretary appropriate monitoring and inspection authority necessary to evaluate administration of state programs, to implement a federal program, and to assure compliance with the

FSMCRA. Specifically the Secretary is given the right to enter any surface coal mining and reclamation operation. To assist in administration and enforcement of the Act, regulatory authorities must require that the permitee maintain records, make monthly reports, install and use monitoring equipment, evaluate results of the monitoring systems, and meet special review provisions concerning areas where water quality is threatened. Inspections by the regulatory authority under the Act must occur irregularly, but must average one partial inspection per month and one complete inspection per calendar quarter for each operation covered by a permit. Inspections must be at reasonable times, but without advance notice to the permitee.

The citizen suits provisions 43S of the FSMCRA are similar to those in the CAA or FWCP A. In particular, persons bringing a suit must have an interest that is "adversely affected" in order to have standing to sue. A state may be sued for violations or failure to perform non-discretionary acts to the extent allowable under the Eleventh

Amendment; the United States may be sued on similar grounds. Other persons may be sued for violations of the Act, a state or federal program, or a permit.

The Act also contains provisions relating to areas unsuitable for surface mining.

436 These include areas in which mining would be incompatible with existing state or local land use plans or programs.

Also protected are fragile or historic lands that would suffer significant harm, including damage to important historic, cultural, scientific, and aesthetic values or natural systems. Other unsuitable areas include renewable resource lands that would be lost or whose long-range productivity would be reduced by the mining, such as aquifers or aquifer recharge areas.

Pending approval or implementation of a state or federal program,

433Id.,

434Id.,

43Sld.,

436Id.,

Section 516.

Section 517.

Section 520.

Section 522.


810 BAYLOR LAW REVIEW [Vol. 29 interim regulatory procedures and regulations must be issued.

437 Those regulations must be preceded by notice and thirty days for written comments. They must be issued within three months of the enactment of the Act and must have the written concurrence of the EPA Administrator concerning air and water quality standards. The interim regulations do not require compliance with NEP A. An interesting requirement, though, is that they must be written concisely in plain, understandable language.

The interim regulations must incorporate the requirements of section

502, Initial Regulatory Procedures. Under the interim regulations a state permit is required for mining operations on lands subject to a state regulatory system. All new mining operations must comply with the interim regulations within six months of the Act's enactment; existing operations must comply within nine months of enactment. During the interim period the state may issue the permits. The state permits must require compliance with some, but not all, of the performance standards of section 515 that will apply after a state or federal program is implemented. Those deal with land use restoration, regrading requirements, waste piles, explosives, topsoil separation, post-mining revegetation, and steep-slope mining. A major exception from the interim regulations is provided for mining operations that are under a state permit before May 2, 1977, and produce less than 100,000 tons annually. Except for the steep-slope mining requirements, those operations do not have to comply with the interim regulations until January

1, 1979.

Pending approval of a state program, the Secretary must implement a federal enforcement program for every state within six monfhs of the

Act. That enforcement program must include inspections at least once every six months without advance notice to the permitee. The enforcement program must also provide for inspection reports to ascertain violations and to authorize enforcement actions if a finding of a violation is made.

Texas has had an Act regulating surface mining and reclamation operations which has been in effect since 1975. The Texas Surface Mining and Reclamation Act 438 was obviously enacted in tight of then pending federal surface mining legislation; at several points the Texas Act is almost a verbatim copy of the FSMCRA. The objectives, definitions, permit requirements, and permit application provisions, as well as the performance bond and enforcement provisions closely resemble the federal Act. The Texas Act clearly is an effort to have a permit system


438TEX. REV. CIV •.

S~AT.

ANN. art. 592()"10 (Supp. 1976-77).


1977J ENVIRONMENTAL LAW ISSUES 811

.. for regulating surface mining and reclamation operations established when the federal law becomes effective, thus allowing approval of the state program as expeditiously as possible.

The state program, to be administered by the Railroad Commission, appears to satisfy the FSMCRA requirements for federal approval. The

Act creates the required permit system and authorizes enforcement with sanctions similar to those under the FSMCRA. However, because the

FSMCRA is so new, an attempt to predict whether the Texas program will be approved would be premature. Certainly no glaring defects are present, but until the federal regulations for approving state programs are promulgated, no accurate assessment is possible.

439 Significantly, the Texas Act goes beyond the requirements of the federal act by regulating surface mining of uranium and lignite in addition to coal.

D. Recent Activities Affecting the Development of Energy Resources

(1) Hydroelectric Power

NEP A has also been used to raise environmental issues concerning the generation of hydroelectric power. Recently the allocation of hydroelectric power in the Bonneville Power System raised those problems.

In Sierra Club v. Hode1 44o the Bonneville Power Administration (BPA) did not prepare an EIS in conjunction with amending a contract with

Alcoa Aluminum Company. Under the contract additional power was to be sold to Alcoa for use at a new plant that it was proposing to build. The Sierra Club objected because the Administrator had not prepared an EIS and had not re-evaluated the contract in light of the environmental cost. The court analyzed the Sierra Club's argument and concluded that basically the Club opposed the contract. Whether an EIS had been prepared or not, Sierra Club would have brought the litigation and challenged the Administrator's decision to extend additional power to Alcoa. Nonetheless the court concluded that the EIS which the BPA had prepared originally on its entire operation did not adequately address issues presented by the supplemental contract. The

BPA's attempt to cover the supplemental contract by amending the original EIS was rejected by the court. It also refused to permit the

BPA's use of a state environmental assessment even though the one prepared by the state seemed adequate. The federal EIS was also inadequate because it lacked the "systematic, interdisciplinary approach" required under NEP A. The contract to supply power to Alcoa suffi-

439For a recent discussion of the T~xas. Surf;t.ce Mining and Reclamation Act, see Cullen, Surface Mining Act-Development ·and Interpretation,

TEXAS

·EN-

VIRONMENTAL LAW, Chapter F, p.f.i. - F-17 (State

.Bar of :rexas Institute

440544 F.2d 1036, 9 ERC 1449 (9tidZjr';,1976~:'" , ..... ' .. : . .., .

1977).

' .


812 BAYLOR LAW REVIEW [Vol. 29 ciently federalized the action so that it did require a NEP A statement.

In an earlier related case, Port of Astoria

'V.

Hodel,441 the BPA was ordered to prepare an EIS in conjunction with its contracts to deliver power. The court determined that the contract in question would provide Alumax, the user, with power from its only available source.

Alumax in turn was planning major construction of a new plant for which BPA would eventually have to build new, high-voltage transmission facilities and lines. The court held that this effectively made the action "federal" for the purposes of NEP A. The court limited its holding to BP A contracts for supplying power on a wholesale· basis to industrial users, and did not extend it to all BPA contracts. It rejected BP A's argument that the action was not major because it was a reallocation of existing, not generation of new, power. More recently, the BPA has been ordered to prepare a program EIS on

Phase 2, its program to forecast power needs in the Pacific Northwest. In Natural Resources Defense Council

'V.

Hodel442 the court relied on Port of Astoria to determine the presence of federal action in

Phase 2.

Allocation of electric power was also an issue in another recent case,

City of Santa Clara

'V.

Kleppe.443 Under a reallocation plan by the

Department of Interior, the city had lost part of its electric power supplied from the California Central Valley project, and it brought suit alleging that the reallocation had been made without compliance with

NEP A. The court concluded that the reallocation was not an action significantly affecting the environment, notwithstanding the severe impact it had on the city. It concluded that the government was not taking any action to construct, redesign, or build new transmission lines or in any other way taking action that affected the environment. The action merely reallocated already existing electricity along already existing power lines. Hence the decision to provide less power to the city, the court concluded, did not require an EIS under NEPA. "The government decision here did not change the environment any more than it would change without the government action."444 Even though the situation concerned the issue of whether the demand for power exceeded the supply, that fact did not change the reallocation issue. No new facilities were being built or proposed.44s

Pumped storage hydroelectric projects have also presented particular problems for the Federal Power Commission under NEPA. In these

441_F.

442-F.

Supp.-, 8 ERe 1156 (D. Ore. 1975).

Supp.-, 10 ERe 1378 (D. Ore. 1977).

443418 F. Supp. 1243, 9 ERe 1689 (N.D. Cal. 1976).

444ld. at 1264, 9 ERe at 1706.

44SCcmtra, Port of Astoria v.

Hodel, note 44.1, supra.


1977] ENVIRONMENTAL LAW ISSUES 813 projects the challenge to the aesthetics of an area is great; by its nature the reservoir will destroy the natural area where it is located. In a much litigated case, Scenic Hudson Preservation Conference v. Federal

Power Commission,446 the court finally concluded that the environmental impact statement was adequate. This case involved the Consolidated

Edison (Con Ed) power system of New York City. Con Ed sought reserve power to protect against shortages during peak load periods.

In Scenic Hudson the court had previous:y required treatment of the alternative of using gas turbines and the purchased power from other sources to handle peak demand. It also required the company to consider several alternative sites for the pumped storage reservoir. The court concluded that these were adequately treated in the final EIS.

Ultimately, the court stated that "the thrust of petitioners' arguments is that the principle of preservation of scenic beauty permits of no intrusion into this area and that, therefore, no power plant, no matter how innocuous, may be built."447 The court said that this was a policy determination completely within the jurisdiction of the Commission.

O.her environmental problems in Scenic Hudson included the effect of the reservoir upon fisheries and the use of underground cables for the transmission lines to New York City. The court concluded that the action of the Commission based on the final EIS was proper.

(2) Outer Continental Shelf Oil and Gas

Two other recent cases involve the adequacy of EIS's on the development of oil and gas on the Outer Continental Shelf (OCS) off the

Alaskan and Atlantic coasts. In New York v. Kleppe448 the court granted a preliminary injunction to enjoin the sale of the oil and gas leases on the OCS off the New York, New Jersey, Delaware. Maryland, and Virginia coasts. After reviewing the EIS which the Depflrtment of Interior had prepared, the court concluded that it did not sufficiently consider the ro!e of local and state governments nor adequately discuss alternative pipeline routes. The court feared that if the pipelines were barred by local or state regulation, the oil would be transported by tankers, which have a greater incidence of spills than pipelines. This potential for spills that could cause harm to nearby coastal communities makes the need for coordination between the local and federal officials even more imperative. Failure to include this in the EIS rendered it incomplete. Both land use data and consideration of the coastal zone are required under the Federal Coastal Zone Management Act, and failure to consider these matters may result in premature development

446453 F.2d 463, 3 ERe 1232 (2d

447]d. at 475, 3 ERe at 1241.

• ' t • ;

Cir.

.

1971).

,

44&.:-F. Supp . ..:..:9 t}RC lZ69 ($;p. N.Y. 1976) .


814 BAYLOR LAW REVIEW [Vol. 29 that could be ill-advised. In particular, if the cOI;nmunities do not allow pipelines to the coast, or development consistent with the needs of the off-shore drilling, serious unanticipated environmental problems will be certain to occur.

The Second Circuit in County of Suffolk v. Secretary of Interioy449 stated that requiring Interior to project the location of pipelines and possible alternative tanker routes would be too speculative. Where whether pipelines would be compatible with local regulations, and, if not, where tanker routes from the wells to refineries would be drawn were held to be questions that would not produce answers which would be meaningful or useful to a decision maker. Any answer prior to knowing which tract would be leased would be at best a calculated guess, especially in light of the size of the tracts involved. This type of forecasting was not reliable or necessary according to the court; however, the EIS did sufficiently identify each of these as potential areas of adverse environmental impact.

The court noted that the action the Department was taking was not the end of its involvement; the leasing was subject to substantial modification to assure maximum environmental protection as the work progresses. Under these circumstances, the prepared EIS evidenced good faith objectively by the Department in its preparation. Applying the rule of reason to review the adequacy of the EIS, the court held that it contained sufficient treatment of matters which reasonably had to be included. Hence, the injunction was vacated and the complaints dismissed. The ink was hardly dry on the Second Circuit's opinion before the local governmental and environmental groups announced that a writ of certiorari would be sought.

45o A stay of the appellate judgment pending appeal and continuation of the trial court injunction were also requested.

(3) Geothermal Resources

449-F.2d-, 10 ERC 1513 (2d Cir. 1977). The court in a lengthy opinion disagreed with the trial court's conclusions.

The district court appears to have allowed its views regarding the substance of the Secretary's proposal to becloud its understanding of its reviewing function and its analysis of the Sale 40 EIS for adequacy, leading to the court's unfortunate characterization of the Secretary's motives, its substitution of testimony received by it for that considered by the Secretary, and its adoption sua sponte of grounds for inadequacy that were not suggested by the parties.

!d. at 1528.

450[1977] 8 ENvT'L REP. (BNA) (Curr. Dev.) 787. Industry groups immediately filed motions in opposition to those of the governmental and environmental groups. Id. at 841. See also Alaska v. KI~ppe, '-:-

1976),

:F,. Supp;'-, 9 ERC 1503 (D.D.C. where the EIS prepared for the oil and gas leasesaie'on'the',OCS in ,the

Northern Gulf of Alaska waS review~ jn ,.d~pt1.1' al}d, .•.. ' .. __ "._ ....


19771 ENVIRONMENTAL LAW ISSUES 815

Development of geothermal energy has not been without problems.

One major issue has been characterization and ownership of the resource. A recurring question is whether the government relinquished its right to develop geothermal energy on public lands that have been patented to private parties. In United States v. Union Oil Company of

California,4S1 the government brought a quiet title action to determine whether it retained the rights to develop geothermal energy in the land area known as "The Geysers," in Sonoma County, California. The land had been deeded to private parties pursuant to patent under the

Stock-Raising Homestead Act of 1916. All patents pursuant to that

Act retained a reservation to the United States "of all the coal and other minerals in the lands so entered and patented, together with right to prospect for, mine, and remove the same."452 The government sought to develop the area pursuant to the Geothermal Steam Act of 1970.453

That Act expressly provides that existing statutory authority containing mineral reservations shall be intended to embrace geothermal steam and associated geothermal resources.454 In a lengthy opinion the court concluded that, notwithstanding a contrary result in the district court, geothermal energy was included within the mineral reservation. The court examined the history of public land law, and especially the mineral reservation clauses in public land acts of the early 1900's. The court concluded that the legislative history of these acts evidenced an intent on the part of Congress to limit the patents issued to the use intended. In most instances under Homestead Acts, such as the Stock-Raising Homestead Act, the use was for development of a home and farm, i.e., use of the surface only. The court concluded that the mineral reservation thus did include geothermal resources.

( 4) Mineral Resources

An interpretation problem similar to that in Union Oil was raised involving coal rights under a mineral reservation in a general warranty deed. In Sloan v. Peabody Coal Company,455 the reservation was "onehalf of all the oil, gas and minerals in, on or under the surface of said lands."456 The trial court concluded, and the appellate court agreed, that the reservation did not include coal. The court applied the doctrine of ejusdem generis to construe the reservation so that it was limited

451549 F.2d 1271 (9th Cir. 1977).

452/d. at 1273.

45330 U.S.CA. §§ 1001 et seq. (Supp. 1977). See also Nonnuclear Energy Research and Development Act of 1974,42 U.S.C.A. §§5901 et. seq. (1977), concerning development of solar and geothermal resources and. Comment,

Developl1~ent in Texas, 29 BAYI,OR L. REV. (1977).

Geothermal Resource

45 4 30' U.S.CA. § 1045 (Supp. 1977).

455547 F.2d 115 (lOth Cir. 1977).

456ld.. .' .

> ..

'. -.:

','

'.

:

'.'"

-

\.

..

.,', ',. ',.','"


816 BAYLOR LAW REVIEW [Vol. 29 to minerals of the same general character or class as those enumerated, here oil and gas, but not coal. It therefore concluded that the trial court's interpretation of Oklahoma state law was reasonable and should not be disturbed.

A similar interpretation problem arose in the Texas case of Wylie

'V.

Reed.457 Relying on a prior case, the Texas Supreme Court concluded that the mineral reservation did not include coal if it was removed by strip mining processes. The decision turned on whether the coal was removed by strip or pit mining. If the surface estate would be significantly affected by extraction of the coal, it was contained in the conveyance of the surface rights. If, however, the coal was extracted from underground, it did not fall within the conveyance of surface rights, but rather was part of the reserved mineral rights. The earlier

Texas case relied on was Acker

'V.

Guinn.458 There the Texas Supreme

Court held that a conveyance of "other minerals" did not include iron ore, even though it is technically a mineral. This seemingly anomalous result was reached because, "[ t] he parties to a mineral lease or deed usually think of the mineral estate as including valuable substances that are removed from the ground by means of wells or mine shafts."459

Absent a contrary intent affirmatively and fairly expressed, a grant or reservation does not include any mineral that would unduly burden the surface estate by surface strip mining.

460

NEPA problems in addition to the Kleppe program EIS have been raised in developing coal resources. In Krueger

'V.

Morton461 the court was confronted with a claim that the Secretary of Interior was required to prepare an EIS in issuing regulations setting a moratorium on granting coal prospecting permits. The petitioner had applied for a permit which was denied because of the moratorium declared in the regulation. The moratorium was imposed until further studies of the entire coal prospecting permit program under the federal Mineral Leasing Act were completed. The Interior Department had also determined that the suspension order did not require a NEP A statement even though the Secretary did not elaborate on the reasoning behind the decision. According to the court, it was obvious that more comprehen-

457554 S.W.2d 169 (Tex. 1977). See: Comment, Lignite: Surface or Mineral-

The Surface Destruction Test and More, 29 BAYLOR L. REV. (1977); Comment,

Lignite-Surface or Mineralf The Single Test Causes Double Trouble,28

BAYLOR

L.

REV. 287 (1976).

458464 S.W.2d 348 (Tex. 1971).

459Acker v. Guinn,

460For id. at 352. a fuller discussion of the interpretation problem, see Maxwell, The Meaning of "Minerals"-The Relationship of Interpretation and Surface Burden, 8

TEX.

TECH

L

REV.

255 (1976).

'. 461539 F.2d 235, 9 ERC 1347 (D.C. Cir. 1976).· .

.


1977] ENVIRONMENTAL LAW ISSUES 817 sive development and treatment of environmental issues was being undertaken. That work could best be done in a consolidated hearing, as was proposed in the suspension order, rather than on an ad hoc basis.

The Department of Interior has had more serious difficulties getting its national coal leasing program under way. In Natural Resources

Defense Council v. Hughes,462 the Department was enjoined from implementing the new program after a three year moratorium on leasing. The

Hughes court concluded that Interior's EIS prepared for the national program was inadequate, in part because of incomplete treatment of alternatives. The significant alternatives not discussed included "no action," i.e. not undertaking the proposed action, and different systems of leasing.

Mining activities have also raised water pollution problems under the

FWPCA. In Consolidated Coal Company v. Environmental Protection

Agency,463 the coal company sought a hearing prior to EPA approval of a state NPDES permit. The EPA denied the hearing on the ground that a state could set a durational period for the permit shorter than the maximum in the FWPCA. The court held that due process required a hearing when complicated issues affecting substantive rights were involved. Because a hearing at the state level was not available, the

EPA was required to afford one before approving the state NPDES permit.

The EPA was unsuccessful in another FWPCA section 309 enforcement action against a gold leaching company. In United States v. Earth

Sciences 464 the defendant allegedly had discharged toxic chemicals into navigable waters on three occasions. The court concluded that the enforcement action could not be allowed. It interpreted section 304 ( e) as excluding mining activities, and concluded that the gold leaching process was a mining activity within the meaning of the Act. In addition, because the facility was a nonpoint source of pollution, it was held not subject to the NPDES permit system, and thus was not subject to the Administrator's enforcement powers of NPDES permits.

(5) Nuclear Power

Few subjects generate more controversy than nuclear power.

465 The stakes may be so high that it is not possible to evaluate the arguments impartially.466 Some of the pervasive issues concern whether appropriate methods exist to prevent catastrophic accidents, to transport atomic

462-F. Supp.-, 10 ERe 1378 (D. Ore. 1977).

463537 F.2d 1236, 9 ERC 1056 (4th Cir. 1976).

464_F. Supp.-, 9 ERC 2137 (D. Colo. 1977).

465See Shea, New Nuclear Policy Under 'he National Energy Plan, 29

BAYLOR

L. REV. 689 (1977).

466See gelJdally, Mead. Our Litues.May Be a.t Slake,

REPBOOK,

November, 1974.

~~.

. . .

.


818 BAYLOR LAW REVIEW [Vol. 29 materials without accident or theft, and to store or dispose of atomic wastes safely and virtually permanently.467 These issues and others have been raised in courts. One case could have serious ramifications for continued development of nuclear power. Development of nuclear energy has progressed rapidly, in large part because liability for nuclear accidents has been limited by the federal Price-Anderson Act,468 but in

Carolina Environmental Study Group v. Atomic Energy Commission469 the Price-Anderson Act was declared unconstitutional and unenforceable. This Act established the limit on liability from a nuclear accident in the United States for a private party operating or building a nuclear plant. The constitutional arguments involved both due process and equal protection, and the court concluded that the Act did not provide

"the reasonable, certain and adequate provision for obtaining compensation" which due process of law requires. The court further held that equal protection was violated because the benefits sought by the Act would be shared by society and public at large, but the cost would be felt only by those immediately affected by an accident, those in the immediate area of the plant.

In another recent action, the EPA approved a proposed nuclear power plant's "once through" cooling system. The Agency reversed a decision that had delayed construction of the highly controversial Seabrook plant in New Hampshire. In In Re Public Service Company of New Hamp- shire,470 the EPA Administrator approved thermal discharge from the plant. The decision was restricted to a finding that the plant's thermal discharge would assure the protection and propagation of the fish and wildlife in the receiving waters; thus the FWPCA was not violated.

In Friends of the Earth v. Atomic Energy Commission471 the petitioners sought an emergency cutback of authorized power from all nuclear power plants because of newly discovered evidence of serious safety hazards in the operation of the plants. In particular, they argued that the emergency safety procedures of existing plants under current safety regulations might be inadequate. This, they contended, justified the extraordinary action by the AEC and the court. The court concluded that the AEC's review and development of facts relating to the

467It has been suggested that nuclear power plants may have to close in 1979 because of the shortage of waste disposal facilities. The time estimation for the radioactivity of waste ranges from 700 to 24,000 years. Omang, Nuclear Plants

May Close for Lack of Waste Storage, The Washington Post, September 23, 1977, p. AI0, col. 1. The CEQ also has urged delay in any expansion in the U.S. commitment to developing nuclear power until waste disposal problems are resolved.

[1977] 8 ENvT'L REP. (BNA) (Curr. Dev.) 855.

46842 U.S.C.A. §§ ZZOI et seq. (1970).

469-F. Supp.-, 9 ERC 1964 (W.D .. N. Car. 19~7) .

. ' 47.010 ERC 1257-· (EFA.1977). , ' :, ' '- ' , .. , ':'~, - '

471485 F.Zd 1031 (D.C. Cir. 1973).

""-


1977] ENVIRONMENTAL LAW ISSUES 819 safety hazards were sufficient to justify its denial of the cutback. Hence, it denied the motion to review the AEC's action.

Similar issues were raised in Nader v. Nuclear Regulatory C ommission.472 In this case the effectiveness of the emergency core cooling systems as a safety measure in nuclear plants was questioned. The petitioners argued that plants should not be licensed until the adequacy of the systems was demonstrated, but the court disagreed and again sustained the determinations of the AEC.

III.

CONCLUSION

Although a survey of recent cases and statutes does not lend itself to significant conclusions, a few observations may be made. Certainly the sheer volume of cases and the recent legislative attention at both the state and federal level indicate that the environmental movement is far from dead. On the contrary, it is alive and well and will continue to grow. One ramification of complex statutes is an abundance of litigation designed to interpret and apply them. In fact, in some instances the persistence of environmentalists for strict application and the reticence of industry to accept legislative fiat have produced timeconsuming and costly litigation. This, unfortunately, does not result in enhancement of the environment, and may even postpone installation of needed technology. Expenditures of funds on dilatory litigation is a poor allocation of limited monetary resources. A better use for these funds is in developing and applying new methods for improving and protecting the environment.

The cases also indicate continuing citizen interest, involvement, and concern for the environment. It is this awareness and participation that ultimately result in enhancement of the environment. Environmental issues and concerns are no longer radical, but are common to everyone. Public involvement also produces greater accountability and responsibility from an agency or legislature. At the same time, greater deference is being given to agency judgments by the courts. With greater frequency agency decisions that involve not only subjects within the agency's expertise, but also the agency's interpretation of a statute, are being upheld. This approach is justified because the predominance of special interests in agency or legislative actions has been lessened through publicity of those actions and awareness of their environmental effects.

The significance of the public role was probably best illustrated

472513

F.Zd 1045. 7 ERe 205,9 (D.C. Cir. 1975). S~e also ,Citizens for Safe

Po~er, .Inc. v. NRC, 524 F.2d 1291, 8 ERC 1598 (D.C. Cir. 1975).


820 BAYLOR LAW REVIEW [Vol. 29 by Congressional rejection of mandatory transportation control plans

(TCP) under the Clean Air Act. The TCP's had been highly controversial and severely criticized from all quarters-agencies, industry, and the public at large. The result was Congressional retreat.

The joint efforts of the public, courts, agencies, and legislature assure full consideration of all the ramifications of an activity affecting the environment. Economic, technological, social, scientific, and environmental facets are fully considered, collectively rather than in isolation.

This clearly shows that environmental law remains interdisciplinary, as it always has been.

The cooperation and coordination of work among disparate groups also produce moderation. Recent legislation such as the Clean Air Act

Amendments of 1977 reflects compromise and mitigation of requirements that had been too demanding. The 1977 Amendments clearly evidence efforts to achieve practical standards and effective enforcement. Practicality is seen in the redefinition of the standards and the extension of time for compliance. Effective enforcement comes through new provisions on noncompliance and remedies. In the process the environment has not been sacrificed. The technology-forcing aspects of the Act remain intact, as do the objectives of achieving and preserving air quality.

A final observation: Both the cases and legislation demonstrate that environmental protection and economic development are not incompatible goals. Responsible, reasonable development can maintain and improve environmental quality. Concern for the environment is not necessarily anti-development or anti-technology. Rather it counsels full consideration of the ramifications of technological deve!opment before it is undertaken. In a time when technology develops far ahead of information about its potentially destructive capacity or its safe use, responsible planning is imperative. Environmental degradation often is irreversible, and remedial action after the fact is costly. Moreover, the resulting harm usually affects human health. Responsible planning is planning with awareness of these facts. The resulting development can then avoid, or at least minimize, the adverse environmental effects.


ENVIRONMENTAL LAW ISSUES IN THE

Related documents

Products

Support

ENVIRONMENTAL LAW ISSUES IN THE

Related documents

Add this document to collection(s)

Add this document to saved

Suggest us how to improve StudyLib