THE UNITED ST VTES ENVIRONMENTAL PROTECTION AGENCY
HUH
mfficoM
Statutes and Legislative History
Executive Orders
Regulations
Guidelines and Reports
I
55
o
UJ
O
Supplement II
Volume III
General
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THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Statutes and Legislative History
Executive Orders
Regulations
Guidelines and Reports
I
5
\
UJ
Supplement II
Volume III
General
".! 'Protection Agency
Tvngic-n V0 •."
230 SoutJri 1 '
-..-3 Street
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For sale by the Superintendent of Documents, U.S. Government Printing Office
Washington, D.C. 20402
Price: $10.25 per set of 3 parts. Sold in sets only.
Stock Number 5500-00127
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FOREWORD
America's journey to environmental awareness has been a
relatively recent one. Not so many years ago Americans were
still living under the illusion that a land as vast as ours was
blessed with indestructible natural resources and beatuy.
We continued the exploitation of those resources and scattered
unplanned communities across huge areas of open space. Large
amounts of fuel were needed for the autos that took us to work
from distant suburbs, and the air became laden with their dense
emissions. Pesticides were used indiscriminantly by persons un-
aware of their effects on the food chain of plants and animals.
Our rivers became contaminated with waste from home and
industries. Our landscape was marred by litter.
As an environmentalist movement gained impetus, attention
was focused on these matters. Rachael Carson's book, Silent
Spring, in 1962 awakened Americans to the hazards of pesticides.
The oil spills of the Torrey Canyon in 1967 and at Santa Barbara,
California in 1969 dramatized another environmental hazard.
The first Earth Day on April 20, 1970, a coordinated program of
teach-ins across the nation, helped to focus Congressional atten-
tion on the strength of the environmental movement.
Congress responded by approving the President's Reorganiza-
tion Plan No. 3 which expanded the federal commitment to en-
vironmental concerns and consolidated 15 Federal organizations
under the Environmental Protection Agency.
At the same time, Congress began enacting far-reaching legisla-
tion to provide EPA with specific authority for controlling pollu-
tion. These measures included the Clean Air Amendments in 1970,
and the Federal Water Pollution Control Act Amendments, Federal
Environmental Pesticide Control Act, the Noise Control Act, and
the Marine Protection, Research and Sanctuaries Act, all in 1972.
Congress also passed the Resource Recovery Act in 1970 and
extended the Solid Waste Disposal Act in 1973.
As the Agency began taking action under these laws, Americans
gradually realized that very real changes were required in our
accustomed ways of doing business. We realized that our effort
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frequently conflicted with powerful and legitimate interests in
both the public and private sectors. Our administrative, judicial
and political processes now have the task of resolving these
conflicts. They must do so by weighing all the interests which
are affected in a sensitive and informed manner. Quick access
to the legal dimensions of these problems is essential if conflicts
are to be efficiently and fairly resolved.
The work of the present day environmentalist is less glamorous
than that of four or five years ago, but it is essential if we are
to face the continuing challenge of protecting our fragile and
perishable natural resources—and ultimately ourselves—from de-
struction. I hope you will find this manual helpful as we strive
to create a society where we can live and work in harmony with
the natural world surrounding us.
Russell E. Train
A dministrator
U.S. Environmental Protection Agency
IV
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PREFACE
Reorganization Plan No. 3 of 1970 transferred 15 govern-
mental units with their functions and legal authority to create
the U.S. Environmental Protection Agency. Since only the major
laws were cited in the Plan, it was decided that a compilation
of EPA legal authority be researched and published.
The publication has the primary function of providing a work-
ing document for the Agency itself. Secondarily, it will serve as
a research tool for the public.
It is the hope of EPA that this set will assist in the awesome
task of developing a better environment.
LANE R. WARD, J.D.
Office of Executive Secretariat
Office of Administrator
U.S. Environmental Protection Agency
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INSTRUCTIONS
The goal of this text is to create a useful compilation of the
legal authority under which the U.S. Environmental Protection
Agency operates. These documents are for the general use of per-
sonnel of the EPA in assisting them in attaining the purposes set
out by the President in creating the Agency. This work is not
intended and should not be used for legal citations or any use
other than as reference of a general nature. The author disclaims
all responsibility for liabilities growing out of the use of these
materials contrary to their intended purpose. Moreover, it should
be noted that portions of the Congressional Record from the 93rd
Congress were extracted from the "unofficial" daily version and
are subject to subsequent modification.
EPA Legal Compilation consists of the Statutes with their
legislative history, Executive Orders, Regulations, Guidelines and
Reports. To facilitate the usefulness of this composite, the Legal
Compilation is divided into the seven following chapters:
A. General E. Pesticides
B. Air F. Radiation
C. Water G. Noise
D. Solid Waste
SUPPLEMENT II
This edition, labelled "Supplement II," contains the additions
to and alterations of EPA legal authority not included in the
original set or Supplement I of the EPA Legal Compilation.
Therefore, this edition updates the Compilation through the 93rd
Conress, First Session.
SUBCHAPTERS
Statutes and Legislative History
For convenience, the Statutes are listed throughout the Compi-
lation by a one-point system, i.e., I.I, 1.2, 1.3, etc., and Legislative
History begins wherever a letter follows the one-point system.
Thus, any l.la, l.lb, 1.2a, etc., denotes the public laws compris-
ing the 1.1, 1.2 statute. Each public law is followed by its legisla-
vii
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viii INSTRUCTIONS
tive history. The legislative history in each case consists of the
House Report, Senate Report, Conference Report (where applica-
ble), the Congressional Record beginning with the time the bill
was reported from committee.
Example:
1.4 Amortization of Pollution Control Facilities, as amended,
26 U.S.C. §169 (1969).
1.4a Amortization of Pollution Control Facilities, De-
cember 30, 1969, P.L. 91-172, §704, 83 Stat. 667.
(1) House Committee on Ways and Means, H.R.
REP. No. 91-413 (Part I), 91st Cong., 1st
Sess. (1969).
(2) House Committee on Ways and Means, H.R.
REP. No. 91-413 (Part II), 91st Cong., 1st
Sess. (1969).
(3) Senate Committee on Finance, S. REP. No.
91-552, 91st Cong., Sess. (1969).
(4) Committee of Conference, H.R. REP. No.
91-782, 91st Cong., 1st Sess. (1969).
(5) Congressional Record, Vol. 115 (1969) :
(a) Aug. 7: Debated and passed House, pp.
22746, 22774-22775;
(b) Nov. 24, Dec. 5, 8, 9: Debated and
passed Senate, pp. 35486, 37321-37322,
37631-37633, 37884-37888;
(c) Dec. 22: Senate agrees to conference re-
port, p. 40718;*
(d) Dec. 22: House debates and agrees to
conference report, pp. 40820, 40900.
This example not only demonstrates the pattern followed for
legislative history, but indicates the procedure where only one
section of a public law appears. You will note that the Congres-
sional Record cited pages are only those pages dealing with the
discussion and/or action taken pertinent to the section of law
applicable to EPA. In the event there is no discussion of the
pertinent section, only action or passage, then the asterisk (*)
is used to so indicate, and no text is reprinted in the Compilation.
In regard to the situation where only one section of a public law
is applicable, then only the parts of the report dealing with that
section are printed in the Compilation.
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INSTRUCTIONS ix
Secondary Statutes
Many statutes make reference to other laws and rather than
have this manual serve only for major statutes, these secondary
statutes have been included where practical. These secondary
statutes are indicated in the table of contents to each chapter by
a bracketed cite to the particular section of the major Act which
made the reference.
Citations
The United States Code, being the official citation, is used
throughout the Statute section of the Compilation. In four Stat-
utes, a parallel table to the Statutes at Large is provided for your
convenience.
EXECUTIVE ORDERS
The Executive Orders are listed by a two-point system (2.1,
2.2, etc.).
REGULATIONS
The Regulations are noted by a three-point system (3.1, 3.2,
etc.). Included in the Regulations are those not only promulgated
by the Environmental Protection Agency, but those under which
the Agency has direct contact.
GUIDELINES AND REPORTS
This subchapter is noted by a four-point system (4.1, 4.2, etc.).
In this subchapter is found the statutorily required reports of
EPA, published guidelines of EPA, selected reports other than
EPA's and inter-departmental agreements of note.
UPDATING
Periodically, a supplement will be sent to the interagency dis-
tribution and made available through the U.S. Government
Printing Office in order to provide a current and accurate work-
ing set of EPA Legal Compilation.
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CONTENTS
Volume I
GENERAL
Page
1. Statutes and Legislative History
1.6 Federal Aid Highway Act of 1970, as amended, 23 U.S.C. 3
§109(h), (i), (j), (1973).
1.6b Federal-Aid Highway Act of 1973, August 13, 1973,
P.L. 93-87, § 114, 165, 87 Stat. 257, 282. 5
(1) Senate Committee on Public Works, S. REP.
No. 93-61, 93rd Cong., 1st Sess. (1973). 7
(2) House Committee on Public Works, H.R.
REP. No. 93-118, 93rd Cong., 1st Sess.(1973). 20
(3) Committee of Conference, H.R. REP. No.
39-410, 93rd Cong., 1st Sess. (1973). 28
(4) Congressional Record, Vol. 119 (1973): 34
(a) March 14, 15: Considered and passed
Senate, pp. S4724-S4730, S4734-S4738,
S4741, S4745-S4749, S4752-S4782; 34
(b) April 17-19: Considered and passed
House, amended, pp. H2916-H2917,
H2923, H2930-H2933, H2941, H2947,
H2985-82989, H2990-H2992, H3033-
H3034; 122
(c) August 1: Senate agreed to conference
report, pp. S15331, S15355, S15345,
S15357; 134
(d) August 3: House agreed to conference
report, pp. H7392-H7398*. 137
1.7 Airport and Airway Development Act, 49 U.S.C. §§
1712(f), 1716(c) (4)] (e) (1973). 138
1.7b Airport Development Acceleration Act of 1973, June 18,
1973, P.L. 93-44, § 4, 87 Stat. 89. 138
(1) Senate Committee on Commerce, S. REP. No. 93-12,
93rd Cong., 1st Sess. (1973). 139
(2) House Committee on Interstate and Foreign Com-
merce, H.R. REP. No. 93-157, 93rd Cong., 1st Sess.
(1973). 140
(3) Committee of Conference, H.R. REP. No. 93-225, 93rd
Cong., 1st Sess. (1973). 142
(4) Congressional Record, Vol. 119 (1973): 143
(a) Feb. 5: Considered and passed Senate, pp.
S2088-S2101;* 143
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xii CONTENTS
Page
(b) May 2: Considered and passed House, amended,
pp. H3258-H3273;* 143
(c) May 30: House agreed to conference report,
pp. H4088-H4089;* 143
(d) June 5: Senate agreed to conference report,
pp. S10378-S10380.* 143
1.12 Public Health Service Act, as amended, 42 U.S.C. §§ 203,
215, 241, 242, 242b,c,d,f,i,j, 243, 244, 244a, 245, 246, 247,
264, (1973). 143
1.12af Health Programs Extension Act of 1973, June 18, 1973,
P.L. 93-45, §§ 102, 103, 104, 106, 87 Stat. 91. 148
(1) Senate Committee on Labor and Public Welfare, S.
EEP. No. 93-87, 93rd Cong., 1st Sess. (1973). 150
(2) House Committee on Interstate and Foreign Com-
(1973). 155
merce, H.R. REP. No. 93-227, 93rd Cong., 1st Sess.
(3) Congressional Record, Vol. 119 (1973): 163
(a) March 13, 27: Considered and passed Senate, pp.
S4510-S4513, S5704-S5741;* 163
(b) May 31: Considered and passed House, amended,
H4140-H4164;* 163
(c) June 5: Senate concurred in House amendments,
pp. S10400-S10405.* 163
1.17 Appropriation Bills
1.17c Second Supplemental Appropriation Act, July 1, 1973,
P.L. 93-50, Title I, 87 Stat. 100. 164
(1) House Committee on Appropriations, H.R. REP. No.
93-350, 93rd Cong., 1st Sess. (1973). 164
(2) Congressional Record, Vol. 119 (1973) :
(a) June 29: Considered and passed House and Sen-
ate, pp. S12582, H5659-H5687.* 168
1.17d Agriculture-Environmental and Consumer Protection Ap-
propriation Act, October 24, 1973, P.L. 93-135, Title III,
87 Stat. 481. 168
(1) House Committee on Appropriations, H.R. REP. No.
93-275, 93rd Cong., 1st Sess. (1973). 171
(2) Senate Committee on Appropriations, S. REP. No.
93-253, 93rd Cong., 1st Sess. (1973). 217
(3) Committee of Conference, H.R. REP. No. 93-520,
93rd Cong., 1st Sess. (1973). 232
(4) Congressional Record, Vol. 119 (1973): 245
(a) June 15: Considered and passed House, pp.
H4767-H4768, H4770-H4771, H4778, H4782-
H4785, H4802, H4805-H4808, H4813-H4814; 245
(b) June 28: Considered and passed Senate,
amended, pp. S12374-S12376, S12378-S12383,
S12390-S12394; 2fi8
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CONTENTS xm
Paet
(c) Sept. 25: House agreed to conference report,
concurred in Senate amendments with amend- 287
ments, pp. HS23S-H2S48;*
(d) Oct. 10: Senate agreed to conference report and
agreed to House amendments, pp. S18973-
S18979, S18984. 288
1.17e Supplemental Appropriations Act, January 3, 1974, P.L.
93-245, 87 Stat. 1071. 295
(1) House Committee on Appropriations, H.R. REP No.
93-663, 93rd Cong., 1st Sess. (1973). 295
(2) Senate Committee on Appropriations, S. REP. No.
93-614, 93rd Cong., 1st Sess. (1973). 299
(3) Committee of Conference, H.R. REP. No. 93-736,
93rd Cong., 1st Sess. (1973). 303
(4) Committee of Conference. H.R. REP. No. 93-745,
93rd Cong., 1st Sess. (1973). 304
(5) Congressional Record, Vol. 119 (1973):
(a) Nov. 30: Considered and passed House, pp.
H10424, H10426-H10429; 305
(b) Dec. 12: Considered and passed Senate, pp.
S22682-S22685, S22700; 313
(c) Dec. 19: House recommended conference report,
pp. H11698, H11702-H11703; 320
(d) Dec. 20: House agreed to further conference
report and concurred in certain Senate amend-
ments;* 322
(e) Dec. 21: Senate agreed to conference report and
House amendments, pp. S23809-S23810, S23816. 322
2. Executive Orders
2.5 E.O. 11749, Consolidation of Functions assigned the Sec-
retary of Housing and Urban Development, December 10,
1973, 38 Fed. Reg. 34177 (1973) superceeding E.O. 11575,
Administration of the Disaster Relief Act of 1970 as
amended by E.O. 11662. 327
2.10 E.O. 11647, Federal Regional Councils, February 10, 1972,
37 Fed. Reg. 3167 as amended by E.O. 11731, July 23,
1973, 38 Fed. Reg. 19903 (1973). 329
2.11 E.O. 11742, Delegating to the Secretary of State Certain
Functions with Respect to the Negotiation of International
Agreements Relating to the Enhancement of the Environ-
ment, October 25, 1973, 38 Fed. Reg. 29457 (1973). 331
2.12 E.O. 11743, Modifying Proclamation No. 3279, as amended,
with Respect to the Oil Policy Committee, October 25, 1973,
38 Fed. Reg. 29459 (1973). 332
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xiv CONTENTS
Page
2.13 E.O. 11752, Prevention, Control, and Abatement of Environ-
mental Pollution at Federal Facilities, December 19, 1973,
38 Fed. Reg. 34793 (1973). 333
3. Regulations
3.1 Reorganization and Republication, Environmental Protec-
tion Agency, 36 Fed. Reg. 22369 (1971). 341
3.2 Statement of Reorganization and General Information,
Environmental Protection Agency, 40 C.F.R. §§ 1.1—1.43
(1972). 341
3.3 Public Information, Environmental Protection Agency, 40
C.F.R. §§ 2.100-2.111 (1973). 341
3.4 Employees Responsibilities and Conduct, Environmental
Protection Agency, 40 C.F.R. §§ 3.100-3.607 (1973). 342
3.5 Interim Regulations and Procedures for Implementing the
Uniform Allocation Assistance and Real Property Acquisi-
tion Policies Act of 1970, Environmental Protection Agency,
40 C.F.R. §§4.1-4.263 (1971). 343
3.6 Tuition Fees for Direct Training, Environmental Protec-
tion Agency, 40 C.F.R. §§ 5.1-5.7 (1973). 346
3.7 Preparation of Environmental Impact Statements, En-
vironmental Protection Agency, 40 C.F.R. §§ 6.10-6.95
(1973). 346
3.8 Administrative Claims Under Federal Court Claim Acts,
Environmental Protection Agency, 40 C.F.R. §§ 10.1-10.11
(1973). 348
3.9 Security Classification Regulations Pursuant to Executive
Order 11652, Environmental Protection Agency, 40 C.F.R.
§§ 11.1-11.6 (1972). 348
3.10 Certification of Facilities, Environmental Protection Ag-
ency, 40 C.F.R. §§ 20.1-20.10 (1971). 349
3.11 General Grant Regulations and Procedures, Environmental
Protection Agency, 40 C.F.R. §§ 30.100-30.1001—3 (1972). IJ49
3.12 State and Local Assistance, Environmental Protection
Agency, 40 C.F.R. §§ 35.001—35.955 (1973). 352
3.13 Research and Demonstration Grants, Environmental Pro-
tection Agency, 40 C.F.R. §§ 40.100-40.165 (1973). 357
3.14 Training Grants and Manpower Forecasting, Environ-
mental Protection Agency, 40 C.F.R. §§ 45.100-45.155
(1973). 358
3.15 Fellowships, Environmental Protection Agency, 40 C.F.R.
§§ 46.100—46.165 (1973). 359
3.16 General, Environmental Protection Agency, 41 C.F.R. §§
15-1—15-1.53 (1973). 359
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xv CONTENTS
Page
3,17 Procurement by Formal Advertising, Environmental Pro-
tection Agency, 41 C.F.R. §§ 15-2.406—15-2.407—8 (1972). 361
3.18 Procurement by Negotiations, Environmental Protection
Agency, 41 C.F.R. §§ 15-3.103—15-3.5100 (1972). 361
3.19 Special Types and Methods of Procurement, Environ-
mental Protection Agency, 41 C.F.R. §§ 15-4.5300—
15-4.5303 (1972). 362
3.20 Procurement Forms, Environmental Protection Agency,
40 C.F.R. §§ 15-16.553-1—15-16.701-50 (1973). 362
3.21 Transportation, Environmental Protection Agency, 41
C.F.R. §§ 15-19.302—15-19.305 (1972). 362
3.22 Contract Financing, Environmental Protection Agency,
41 C.F.R. §§ 15-30.1—15-30.104-1 (1973). 363
3.23 Contract Financing, Environmental Protection Agency,
41 C.F.R. §§ 15-30.403 15-30.412-2 (1973). 363
3.24 Amortization of Pollution Control Facilities, Internal Rev-
enue Service, Department of Treasury, 26 C.F.R. §§ 1.169
(1972). 363
3.25 Statutory Provisions; Additional First-Year Depreciation
Allowance, Internal Revenue Service, Department of Treas-
ury, 26 C.F.R. §§ 1.179-1.179—4 (1972). 363
3.26 Amortization Deductions, Internal Revenue Service, De-
partment of Treasury, 26 C.F.R. §§ 1.642 (f)-1.642(f)-l
(1971). 363
3.27 Preparation of Environmental Impact Statements: Guide-
lines, Council on Environmental Quality, 40 C.F.R. § 1500
etseq. (1973). 363
Volume II
4. Guidelines and Reports
4.1 The President's Environmental Program.
4.1c
The President's 1973 Environmental Program, compiled by
the Council on Environmental Quality, April 1973, pp.
1-585. 367
Volume III
4.2 Council on Environmental Quality, Annual Reports, as
required by National Environmental Policy Act of 1969,
42 U.S.C. § 4341. 953
4.2d
The Fourth Annual Report of the Council on Environmen-
tal Quality, April 1973, pp. 1-404. 9.53
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CONTENTS xvi
4.3 Citizens' Advisory Committee on Environmental Quality
Reports to the President and the President's Council on
Environmental Quality, as required by E.G. 11472, § 102(c). 1357
4,3c
Report to the President and the President's Council on
Environmental Quality, Citizens' Advisory Committee on
Environmental Quality, October 1973. 1357
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GUIDELINES AND REPORTS 953
4.2 Council on Environmental Quality, Annual Reports, as Re-
quired by National Environmental Policy Act of 1969, 42
U.S.C. §4341.
4.2d The Fourth Annual Report of the Council on Environmen-
tal Quality, April 1973, pp. 1-404.
CHAPTER 1
The Urban Environment—
Toward Livable Cities
This is a chapter about America's cities and the kind of environ-
ment they can offer to those who visit or work or live in them. It
attempts to identify those factors which make a city seem to come
alive, to attract people—simply to work as a city. Increasingly, there
are signs that real and workable alternatives to the continued decay
and decomposition of our cities exist. There are places in some of our
cities where people and things are coming together, where vitality
persists or has reappeared, and where citizens have successfully
checked attempts to repeat the mistakes of the past. Without promis-
ing any formulas for a renaissance of American cities, this chapter
seeks to identify and bring together in one place some of the ap-
proaches, projects, and techniques which have brought a measure
of visible improvement to the environment of our cities. Through
this effort, we hope to render a useful service and to serve as a source
of information for citizens seeking new ways to approach the problems
of their cities.
Two years ago, the Council published as part of its Second Annual
Report a chapter on the inner city environment. It was one of the
earliest analyses of how traditional issues of environmental quality
relate to the problems of the urban poor. The chapter discussed those
aspects of air pollution, water pollution, solid waste, neighborhood
deterioration, open space needs, and transportation policies that im-
pact especially on the disadvantaged. Much of what was said in that
chapter remains true, despite the continued efforts of public authori-
ties and private citizen groups to give special attention to the environ-
ment of the inner city.
1
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954 LEGAL COMPILATION—SUPPLEMENT n
This year the Annual Report looks beyond the inner city to the
whole urban environment. Our purpose is to try to define the quality
of life that a city can offer its residents—to look at what makes a city
come alive as a dynamic place to be. This calls for close analysis of
the basic elements of design, space, and vitality that make a downtown
a place where people want to go or a neighborhood a place people
want to go home to.
Such a focus on our cities requires that we bypass other approaches
which may add to a fuller understanding of where our cities are
heading. Thus, although the discussion which follows identifies some
of the important economic and social ills facing our cities, it does not
attempt to analyze them in depth and articulate the policies to resolve
them. Nor does this chapter directly discuss the more traditional en-
vironmental issues of air and water pollution or solid waste manage-
ment in our cities, although many data in other chapters derive from
urban areas. Finally, we focus on the central cities—the downtown
areas and urban neighborhoods which have not shared in the growth
of suburbia but which are beginning in some areas to attract again the
interest and involvement of a broad spectrum of urban residents.
We recognize that this approach will not satisfy some readers. Those
who believe that the suburbs can supply all urban living needs will dis-
agree with us. Those seeking broad and detailed public policy solu-
tions to the problems of our cities will be disappointed. There are
some who believe that only the wholesale demolition and recon-
struction of existing urban areas will save the cities. There are others
who have already written the cities off as leftovers from another era
and who believe that whole new communities need to be built else-
where to meet the demands of urban life today. We do not address
ourselves to either of these massive-scale solutions to the problems of
our cities because neither seems very realistic.
The fact is that most of our cities will not be torn down or com-
pletely rebuilt in our lifetime. Even in a city as active in renewal as
Pittsburgh, less than 2,000 acres has been renewed out of 14,000 in
officially designated renewal areas—after 25 years. Although public
and private redevelopment is occurring throughout the city, not a
single renewal project has been completed. At this rate, it will take
150 more years and substantial amounts of money and other resources
to remake Pittsburgh within these renewal areas alone. By then, of
course, the process would have to begin again, renewing what would
then be structures 150 or more years old.1
So even as the suburbs continue to build outward and more indus-
tries locate on the outskirts, Americans are beginning to accept the
fact that the basic design and layout of our cities is going to be with
us much as it is for the foreseeable future. Once we realize this, the
question then becomes how to make our cities better places to live,
work, and spend leisure time.
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GUIDELINES AND REPORTS
955
5
1
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rfPHfPPPPWI
riiiiir
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New and old, large and small, the buildings of Richmond show how diversity
can make a city an attractive place to be.
3
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956
LEGAL COMPILATION—SUPPLEMENT n
In short, despite the arguments of those who call for drastic solu-
tions to the problems of American cities—from total renewal to total
abandonment—we say that there is a better way to look at them
without predicting utter despair or complete utopia. That way is to
recognize and build upon the tremendous physical resources already
in our cities, to blend the old and the new in a way that preserves the
character and personality of our cities and uses the elements unique
to each of them as guides for progress and change.
Downtown—the City as the Center of Things
The most obvious characteristic of downtown in American cities
is its increasingly uniform appearance from coast to coast. Imagine
being placed blindfolded in the commercial center of many of our
cities—Newark, Kansas City, Dallas, Denver, and San Diego, for
example—having the blindfold removed, and trying to identify where
you are. A look at the buildings, the spaces, and the life around you
would lend few clues. The best way to identify where you are would
be to look at the strips of the outside world filtering through the
cracks between the buildings. The mountains, the rivers, the bays,
the distant open spaces would tell you. Otherwise you would not know.
Downtown Dallas shows little to distinguish it from Denver or Kansas City
or any number of other cities across the country.
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GUIDELINES AND REPORTS 957
There are exceptions which come to mind, of course—cities like
New York, Boston, San Francisco, or New Orleans, which still have
their unique urban character. But too often downtown is a dull uni-
formity of large office buildings, extensive parking lots and garages,
and deserted streets after 6:00 p.m. Design seems to have been left
to each property owner to maximize his profit, and the city's main
concern appears to be its property tax bite. Space has been gobbled
up by the demands of the automobile, and older buildings have come
tumbling down when their owners conclude that they are worth less
than the daily parking charges for the ground beneath them. And
vitality has been drained by suburban life styles and by the reloca-
tion or disappearance of the things that once brought people down-
town after dark and on weekends.
Some cities have fought these forces with varying amounts of suc-
cess. Others have given in to them and have long since abandoned any
hope or desire to restore downtown as the center of things in the city.
But there is evidence in more and more cities that this is not inevitable
and that things can be done to assure a viable downtown. Some cities
have found ways of holding onto the activity centered there; others
have actually brought back vitality that had been lost. It is worth-
while to look at how some have done it.
Design—the Structures Downtown
Many American downtowns suffer from problems of bulk and
scale. New multistory structures lacking in amenities on a human scale
have thrown the downtown area out of balance for the pedestrian
or the shopper or the businessman out on an errand. The economics
and risks of downtown construction are such that large multistory
structures or complexes have become the order of the day. Sometimes
these work, as with Philadelphia's Finn Center and the Government
Center in Boston. In other places, they blend unobtrusively into the
already massive scale of downtown, as in New York or Chicago. But
in some cases, downtown areas have suffered from too much high-
rise construction which has sapped their vitality and resiliency over
time.
Some of the downtowns of American cities are dominated by one
species—the high-rise commercial structure. Some high-rise buildings
may be important to help make the overall downtown area thrive,
but they need to be kept in balance. High-rise commercial structures,
for example, increase the value of nearby land for parking lots and
other auto-related uses. This often means the loss of the smaller, older
structures which previously set off the taller buildings and made them
visually acceptable as part of the continuous urban pattern. It results
in the "bombed out" look that characterizes many downtowns. In
some Western cities, up to two-thirds of the center city land area is
now devoted to automobile-related uses.2 In other cities, e.g., Atlanta
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958 LEGAL COMPILATION—SUPPLEMENT 11
and Minneapolis, the downtown commercial core has developed into
a strip little more than a block wide surround by acres of parking
lots, creating an environment hostile to pedestrians a few steps off
Peachtree Street or Nicollet Mall. Barring a system of mass transit,
this could be relieved at least in part by encouraging parking struc-
tures with shops rather than parking lots at street level.
In a number of cases, the pattern of alternating high rise and park-
ing lots has been exacerbated by urban renewal programs which
cleared large areas of land without any economically solid plans to
reuse it—and could find no takers. In other cases, the renewal au-
thorities have recognized the need to keep and rehabilitate smaller
buildings and shops. Without them as part of the renewal effort, it
is hard to assure continuity and variety in the urban scene after the
larger buildings are built.
Large-scale high-rise commercial buildings have come under recent
criticism on other counts. The extensive open areas around them and
their tendency to be deserted after 6 p.m. provide optimum conditions
for criminal activity and encourage people to depart the downtown
area quickly after the end of the working day.
Another interesting problem is wind velocities. Recent studies in
San Francisco have shown that high-rise structures interrupt high
velocity wind currents at their rooflines and set up eddies which
substantially increase wind speeds at ground level.3 This makes it
difficult to have outdoor restaurants, cafes, art exhibits, and other
activities that add to a sense of vitality in the city.
The key that many cities have found to making a better urban
environment downtown lies in the diversity and mix of activities
and surroundings found there. As one commentator put it,
The cherished miscellany of a town that has just grown celebrates
the reality of life. It includes overcrowding, clutter and variety;
it includes nonsense and extravagance; it includes commercial ex-
crescence and real artifacts; it includes the genuine works of the
country and trash made for tourists; it includes things people need
and things they do not need but want. It is, like real life, like bread
and like circuses.*
There is an analogy here to the natural science of ecology, in which
it is said that a mature community is one that is stable but that has
within it ongoing changes and adjustments. Cities, like other com-
munities, must have this dynamic activity to remain stable. Thus, we
cannot freeze our downtowns as they are now and hope that over
time they will become quaint and historic places to return to with
nostalgia. Change and growth are needed to keep cities alive. But
the change need not be at the expense of diversity.
There are many fine examples of new buildings which blend into
our cities in a way that enhances their vitality and attraction. Some
are giant structures in the midst of other giants, such as the new office
building at 77 Water Street in Manhattan, which finds its place
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GUIDELINES AND REPORTS
959
The land use pattern of downtown in American cities—high rise sur-
rounded by parking lots—is depicted in this view of Atlanta.
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960
LEGAL COMPILATION—SUPPLEMENT n
Old City Hall in Boston was purchased by private investors and converted
into prestige office space.
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GUIDELINES AND REPORTS 961
unobtrusively among other towers and gives over its ground space to a
mix of human activity centering around benches, cafes, and trees.
Others have begun with older structures sitting in the shadows of
new high rises and made them over into prime, modern office space
of a different scale within surroundings of a different era. A good
example is the Old City Hall in Boston, which is now fully modernized
in a way that enhances its Second Empire elegance and makes it a
prestige address for businesses. Still others have accommodated old
and new side by side, as in the case of the New York Bar Center in
Albany and the restoration, with a major new addition, of the 1810
Park-Danforth Home for the Elderly in Portland, Maine.
The downtown areas of American cities that work as places to
attract people are those that have kept and enhanced with new con-
struction the mix of uses and mix of scales that have long marked the
character of the city and given it its unique flavor. Sometimes, as in
Boston, the buildings themselves generate the excitement. Or it might
be the terrain that does it, as in San Francisco, although even there
new high-rise construction has visually leveled the hills. Other cities
have found the key by tying downtown development to the historic
base of the city, as in Cincinnati with its waterfront renewal and
in Philadelphia with its restoration of the old merchants' residences
on Society Hill.
Sometimes this is difficult because the new buildings are designed
as showpieces to stand alone. The Northwestern National Life Insur-
ance Company building in Minneapolis is a beautiful architectural
achievement often captured by the photographers' lens, but its en-
vironment is a sea of parking lots leading off to an abandoned river-
front.
New construction is often encouraged by local governments because
large high-rise buildings bring in tax revenues, although there is
evidence that the demand for services and public facilities generated
by such buildings can often offset the benefits with increased costs
to the city.5 Other incentives are provided by federal tax laws, which
encourage demolition and new construction over rehabilitation of
existing structures. In his 1972 and 1973 Environmental Messages,
the President has proposed amendments to remove this bias in the
Internal Revenue Code against older buildings.0
Other difficulties relate to adaptive use—fitting modern needs
into older structures. But these too can be overcome by thoughtful
design. The Actors Theatre of Louisville uses a restored Greek Revival
bank building registered as a National Landmark and dating from
1837 as its theatre lobby. Because the bank was not large enough for
the theatre itself, ATL purchased an adjoining office building, then
built the theatre behind both. To acquire the bank, the group built
a new building for the owners a few blocks away, then traded it.
There are many other fine examples, too many to mention here,
of older buildings which have been saved, not as museums or artifacts
of another era but as active and economically viable structures lend-
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962
LEGAL COMPILATION—SUPPLEMENT n
The Northwestern National Life Insurance Company building in Minneapolis
shows that even prize-winning architecture does not make a city attractive
if buildings do not relate to each other.
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GUIDELINES AND REPORTS 963
ing a variety of architectural style to their downtown areas.7 An obvi-
ous example in the Nation's capital is the Old Executive Office Build-
ing on the corner of 17th Street and Pennsylvania Avenue; once
slated for demolition, the refurbished building is now praised by tour-
ists and occupants alike. The Cumberland Hill School in Dallas, the
oldest school building in the city, was restored to its original Victorian
style and serves as the downtown office of an oil drilling firm, whose
president had long admired the structure and was seeking something
unusual for a headquarters. The Auditorium Theatre in Chicago has
been restored to its original elegance as an Adler and Sullivan archi-
tectural masterpiece, after many years of neglect and abuse. Denver's
Larimer Square, the only block of older buildings in the area saved
from urban renewal clearance, has become the center of night life
downtown, with its cafes and shops that capture the early days of the
city. In Pittsburgh, an old movie palace has become Heinz Hall for
the Performing Arts. Private developers in Indianapolis have pur-
chased the old Union Station and plan to convert it into a "Gay '90V
arcade of shops and cafes.
Similar plans are well advanced for converting the Old Post Office
in St. Louis into a multipurpose facility with hotel, shops, offices, and
an arcade. This effort has required a high le^el of cooperation among
local authorities, private redevelopers, and the Federal Government.
As part of his 1971 Environmental Message, the President proposed,
and the Congress later enacted, legislation amending the Surplus
Property Act so that the Old Post Office and buildings like it could be
turned over to cities for active commercial use.8 The Small Business
Administration has also assisted by floating loans for smaller shop-
owners to pay the cost of preparing space in the rejuvenated building.
Markets have provided another focus for reinvigorating downtown.
In many cities, the old open markets with stalls of fruits and vegetables
have all but disappeared. Now many cities are trying to bring them
back and turn them into places people are attracted to from all over
town. The Pike Place Market in Seattle is a good example. Once
again, an overambitious urban renewal program spurred local citizens
to action. The original plan was to keep only a 1.7-acre portion of the
market area and surround it with a 4,000-car garage, a 600-room
convention hotel, and other construction on a massive scale. Begin-
ning in 1963, a group called Friends of the Market sought to persuade
the city to adopt an alternative to wholesale demolition. As a result,
voters in 1971 rejected the renewal plans and established a 7-acre
historic district. Popular support was based in part on the success
of private preservation efforts in the Pioneer Square area of the city.
Seattle is now replanning the market area to maintain the continuity
of activity there and upgrade the structures to meet minimum re-
quirements. The remaining 22 acres of the renewal area, although
not in the historic district, is now seen as a necessary transition zone
between the market and the nearby high rises. People are attracted
to the market to shop or just to stroll and "people watch."
11
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964
LEGAL COMPILATION—SUPPLEMENT n
Fit
Many fine older buildings have been saved as active and viable parts of down-
town. Shown here are (1) the Old Executive Office Building in Washington,
D.C., (2) the interior of the restored Auditorium Theatre in Chicago, and
(3) a before-after view of the renovated Heinz Hall in Pittsburgh.
12
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GUIDELINES AND REPORTS 965
Space—the Setting of Downtown
It is obvious that the viability of downtown in American cities
cannot rely simply on saving a few old buildings or designing the
new buildings to fit in well. It is not enough, either, to look only at
the variety and diversity in style of the buildings as they relate to one
another. There are other things than buildings that make a city what
it is.
One important ingredient is space—the parks, plazas, vacant lots,
sidewalks, streets, and greenery that are used at the same time to
separate and to connect the structures. Open space can be a crooked
cobblestone alley in an old New England commercial center or a
broad expanse of palms along a boulevard in a southern or south-
western city. It can be as intricate as a Victorian fountain or as ex-
pansive as Central Park. And it can be filled with human activity or
devoid of it.
Too many city planners have confused concentration with con-
gestion. In their efforts to rid our downtowns of traffic and noise and
pollution, they have also rid them of life. Whole sections of cities have
been torn out and replaced with open areas that remain little used
because they are no longer near activity.
The key to space in the city is use, not size. Some of our center
cities are blessed with large parks which attract people and activity;
the Boston Common and Grant Park in Chicago are examples. But
most have only smaller places. Recent studies in Manhattan indicate
that small spaces can bestow the same benefits as larger parks in the
city, if they are designed for people.9 Too often, however, such spaces
do not provide places to sit, places to congregate, or places to be
alone. Many office building plazas, in fact, are designed by architects
as "Jow maintenance" to please building managers. This means that
there is no comfortable place for people to sit and talk, thus no
management problems with litter, noise, or vandalism. The Man-
hattan studies show that small design details (walls at sitting height
and facing the street where people walk by, for example) can make a
major difference in how we perceive and use space downtown.
The Auditorium Forecourt Fountain in Lovejoy Plaza in Portland,
Oreg., is an open space that works. Designed as part of a HUD-
supported urban renewal program, it takes up an entire city block
with a multilevel fountain that attracts waders and strollers. It also
serves as an amphitheatre and is dramatically lighted at night. It
attracts a steady stream of activity, and the 11:00 a.m. startup of
the fountains each day has turned into a public event. The public
shares in using and protecting the fountains, and a voluntary patrol
of teenagers has been formed to enforce rules where necessary.
Many cities still have laws on the books that discourage the public
from more active use of the space that is available. "Keep off the
grass" signs, rules against wading in fountains, and antiloitering laws
discourage activity in parks and plazas. Even more important are
13
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966
LEGAL COMPILATION—SUPPLEMENT n
»,"** 1 I # •
--
The auditorium forecourt fountain in Portland, Oregon, is open space that
restrictions on street vendors, sidewalk cafes, and spontaneous enter-
tainment in parks. There is probably a close correlation between the
vitality of our cities and the willingness of law enforcement officers,
courts, and city officials to permit these activities. In many cities citi-
zens have worked to repeal such ordinances. Streets and sidewalks
and parks are as much a part of downtown as the buildings that are
there. They should reflect the same level of activity.
Greenery also makes a difference. One of the environmental factors
that attracts people to the cafe at 77 Water Street in Manhattan is the
close spacing of the trees. Thirty honey locusts were clustered in one
group, and 20 were placed in rows along the street, many more than
the city rule of 1 tree each 30 feet. Minneapolis redesigned its main
shopping street by filling it with trees and flowers, banning auto-
mobiles, and redesigning the sidewalks to curve among the plantings.
The result is a pleasant shopping experience with the feel of the city
and the comfort of a suburban mall.
Another interesting approach to providing greenery for cities comes
from Florida, where citizens have formed the Greater Miami Tree
Conservation Bank, dedicated to growing and protecting valuable
trees. Although the emphasis of the group is on establishing seedlings
and planting smaller trees in the city, they also seek to save bigger,
older trees where possible. Under a program now being set up, if
trees are found in the way of a project or development, the owner
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GUIDELINES AND REPORTS
967
adds to the vitality of city life.
would call the tree bank. The group would prepare the trees for re-
location well in advance, remove them at the proper time of year,
and issue a valuation to the owner for tax donation purposes. The
trees would then be replanted along streets and highways or in parks.10
Many city sidewalks serve only as ways of getting people around
town. Yet the Manhattan studies show that many people use side-
walks as places to congregate and talk with others. Designers are
beginning to experiment with varying widths, shapes, and patterns of
sidewalks to encourage more activity. The black and white terrazzo
sidewalk between 78th and 79th Streets on Madison Avenue, for ex-
ample, adds texture and continuity to the line of shops and galleries
facing onto it. In addition, more and more U.S. cities are learning
what Europeans have known for centuries—that sidewalk cafes down-
town can be attractive additions as well as economic successes.
Street closings are still another opportunity to use space in cities. A
wide range of experiments has been tried by about 40 cities of all
sizes.11 Some, like Fresno, Calif, have tried closing the shopping street
to all but pedestrians. Others have followed the lead of Minneapolis's
Nicollet Mall and limited traffic to buses and taxis while granting
priority to pedestrians. Some are as short as the single block closed off
near the old law offices of Abraham Lincoln in downtown Springfield,
111. Others, as in Salisbury, Md., comprise most of the downtown
shopping area.
15
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968 LEGAL COMPILATION—SUPPLEMENT n
One of the most successful efforts to make downtown shopping districts more
attractive is Nicollet Mall in Minneapolis, where traffic is limited to buses and
taxis.
Street closings need not be permanent either. In fact, where they
are done on a periodic basis, they can take on a special festive air,
partly because live entertainment and other attractions often accom-
pany such closings. In part it is the sense of freedom—almost of
victory—that a pedestrian gets from strolling down the center of a
street he saw filled with traffic and fumes a few hours before. And
in part it is the pure joy of the unusual. Philadelphia has closed
off one of its main shopping streets to traffic several nights during
the summer and the crowds have gathered to shop, to take part
in entertainment (both planned and spontaneous), and simply to
stroll in the warm night air. Madison Avenue in New York has
been the scene of similar activity when closed to traffic at lunch hour
on an experimental basis. At such times, carbon monoxide and noise
levels have been reduced 50 percent.
Vitality—the Human Component Downtown
A third element, when added to structure and space, makes a city.
And that is its people. As planners have learned, the most magnifi-
cent architecture and the most majestic parks mean nothing if people
are not attracted to them and held there. A walk along Detroit's
riverfront at 9 p.m. on a weekday night, for example, is a walk
through a city without life—despite tall buildings and bold architec-
ture and grand open spaces. The overall impression is desolation.
Diversity of use has been an important factor in keeping alive the
downtown areas of many cities. After the businesses close, there needs
to be other activity to take up the slack. Those cities where people
live in or near downtown seem to stay alive more, to serve as the cen-
ter of things not just from 9 to 5 but around the clock. New York and
San Francisco are cities like that, and others like Philadelphia and
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GUIDELINES AND REPORTS
969
Temporary street closings, exemplified here by Madison Avenue, can be festive
occasions and offer welcome respite for people who work or live in the city.
Boston have learned the value of holding onto and preserving those
fingers of residential living that reach toward downtown. Other cities
have lost the chance to do the same because of poorly conceived
urban renewal plans or commercial high-rise construction that cleared
old residential neighborhoods in the name of progress.
Private initiative has found a ready market for night life in the
downtown of some cities. San Antonio and Atlanta are stunning
success stories. A narrow river snakes through downtown San Antonio
a few feet below street level. Citizens with foresight converted part
of its length to parkland many years ago. But recent efforts have
made the riverfront into an exciting center of restaurants, cafes, and
entertainment strung out through the park in a flow that draws people
from throughout the metropolitan area. New hotels have sprung up
along the river and old ones have been refurbished. The result is a
town center that serves around the clock as a place for San Antonians
to come and take part in the life of their city.
The Atlanta experience is similar but unique in its way. Around
the turn of the century, the city rebuilt its downtown streets at a
higher elevation, 20 or so feet over the old. Over the years, the old
rights-of-way became filled with trash and debris. Beginning a few
years ago, a group of investors cleared out the trash, built some pubs
and restaurants in the old warehouses, gaslit the streets, and Under-
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970
LEGAL COMPILATION—SUPPLEMENT n
(i
The cities that are liveliest are that way in part because they have valued and
preserved older residential areas in and near downtown.
ground Atlanta was born. Today it flourishes under several city blocks,
alive with people, music, good food, entertainment, penny arcades,
and street vendors. There is something for everyone from the old
streetcar at one end to the steam calliope at the other.
Some efforts to rekindle urban vitality, particularly by the private
sector, have taken advantage of facilities left behind in the move
of industries to suburban locations. Warehouses have become centers
of shops and restaurants, as at Canal Square in Washington, D.C.
An abandoned chocolate factory and an old cannery in San Francisco
have become focal points of activity in that city, reincarnated as
Ghirardelli Square and The Cannery. St. Paul is planning to do the
same with its old warehouse district, and similar projects are planned
for other cities.
Retailing in the downtown commercial areas of our cities has
been declining for years, as activity has moved to suburban shop-
ping centers. A recent study by Real Estate Research Corporation,12
however, throws new light on a number of issues related to down-
town retailing. The study, focusing on Denver, Seattle, and Pitts-
burgh, concludes that downtown retailing is relying less on "metro-
politan shoppers" and more on center city residents and shoppers
attracted downtown for other reasons—employment, business, tour-
ism, entertainment, and the need for specialized services. At the same
time, the decline in the ratio of downtown store sales to suburban
shopping center sales seems to be leveling off, and some center cities
are on the rebound. The interest of downtown shoppers and con-
sumers in general is shifting toward high-quality clothing and home
furnishings. As a result, retail outlets dealing with standard brand
items may be forced to consolidate into larger units. But the report
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GUIDELINES AND REPORTS
971
Restaurants, shops, and hotels appear among the greenery in San Antonio's
River Walk, which serves the city as a park as well as the center of night life.
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LEGAL COMPILATION—SUPPLEMENT 11
Ghirardelli Square in San Francisco was once an abandoned factory on the
waterfront; today it is alive with activity.
predicts that there will be spiraling demand for specialty stores, small
shops, and boutiques with wide assortments within limited lines of
goods.
The changes occurring in the structure of retailing, melded with
new efforts to bring night life and round-the-clock activity to down-
town, reinforce what was said earlier about how we use structures
and spaces in the city. The trend is toward human scale, variety, and
diversity. The design of downtown must accommodate small shops,
night spots, and special services not available elsewhere.
In summary, the three elements discussed here—design, space, and
vitality—are closely interrelated, and all are required to make our
downtown areas exciting and interesting places to be. There are
examples of successes with each element, and there have been mis-
erable failures with each. What can be said is that we are entering
an era of innovation downtown, a time when issues of scale and mix
and diversity will become part of the necessary vocabulary of inter-
ested citizens. In each case the judgments will differ over what is
"good" for downtown and what is not. In the long term, the answers
will be found in the form that our downtown areas take and by
whether or not they can serve as the center of things without losing
the human elements that also make them attractive places to be.
Four Neighborhoods—
the City as a Place to Live
The 1970 census showed that, for the first time, suburbanites out-
numbered city dwellers in the United States.13 Great significance has
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GUIDELINES AND REPORTS
973
C
An old neighborhood in Boston wends its way down to the Charles River.
21
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974 LEGAL COMPILATION—SUPPLEMENT n
been attributed to this phenomenon, with commentators now calling
us a nation of suburbs.
But from another perspective the same data lead to a different
conclusion, that despite the massive movement to suburbia since
the end of World War II, there are still almost as many people living
within our central cities as in the surrounding suburbs.
Some have said that they remain there simply because they cannot
get out for reasons of economics or racial prejudice or prefer not to
leave because of age. Even subtracting these groups, however, there
remain many people who evidently want to live in the city. They
are people of all kinds, although city life seems to appeal particularly
to the young, the wealthy, childless couples, single people, and the
elderly.
Many are attracted to city neighborhoods because they are gen-
erally convenient to activities, stores, cultural events, public trans-
portation, and the office complexes of the central business district.
Compared to most suburban neighborhoods, they present a pattern
of diversity in architecture, landscaping, neighbors, and shops that
is intensified by the ease with which things can be reached on foot.
They are places with a human scale, places that make use of space
in creative ways that catch the eye. There are sidewalks. The trees
are mature, the parks are well established. And large-scale shifts in
land use are less likely to occur nearby than in the suburbs. In short,
there is a pleasantness in movement through an older neighborhood
that is seldom captured in a nev.- subdivision on the urban fringe.
Of course, living in the city has its drawbacks. First of all, while
rapid physical change occurring in many suburban areas—woods,
fields, and streams giving way to bulldozers—is acceptable to many,
the subtler shifts in the economic and racial structure of some older
neighborhoods in the cities are not. The deepseated fear remains that
social change threatens property values. The housing stock is gen-
erally older in the city, and repairs can be costly and unsatisfactory.
Public services in the cities have not always kept up with those in
wealthier suburban areas, in part because many city services benefit
commuters as well as residents and thus cost more to provide. Free-
way construction and the "upgrading" of arterials and feeder streets
are constant threats to established neighborhoods, often increasing
noise and congestion. And finally, fears of crime, drugs, and poor
schools drive out many, especially families with children.
Everyone who lives in a metropolitan area has at one time or
another weighed these factors. Some decide that the cities are hope-
less; others conclude that a city neighborhood is the only place to
live. Still others, because of racial discrimination or economic status,
do not have a real choice.
After many years of continued movement to the suburbs, there is
beginning to arise in many American cities a sense that perhaps the
city is a good place to live. This is due in part to disillusionment with
suburban living patterns, which some are beginning to feel opt for
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GUIDELINES AND REPORTS 975
homogeneity at the expense of diversity. In part it is the burden of
commuting and a sense that as more and more commercial and
residential development follows them, the only way to find the values
that originally made the suburbs attractive is to move still farther
from the city. And in part it is a growing attraction to older neighbor-
hoods of the city itself as a place to live.
Added to these factors is evidence that at least some of the dis-
advantages of city life are no longer worsening and that there is a
reduced differential between cities and suburbs. Rates of serious
crime, for example, are on the increase in the suburbs and are falling
off in a number of cities.14 The teenage drug problem has now
reached even the most remote suburbs. Citizen efforts to stop con-
struction of disruptive and nonessential urban freeways are trying to
save older neighborhoods in some cities like Memphis and Baltimore,
and in others like Boston public officials have adopted new policies to
reduce the construction of more expressways. Further, as a result of
past controversies, many urban highways are being designed better
or eliminated from plans. At the same time, the new subway systems
being built in Atlanta and Washington and being planned for other
metropolitan areas will in many cases serve city neighborhoods years
before they reach remote suburbs, making the commuting advan-
tage of city living even greater.
To illustrate some of the things that are happening throughout the
country to make cities better places to live, we have focused on four
kinds of neighborhoods. Each offers its own set of problems and op-
portunities. First are the historic neighborhoods, important because
they are often the first step toward making older parts of our cities
places where people want to live. Second are the older neighborhoods
with some special charm, the kinds of places that lure the young and
affluent, who move in and often restore the houses. Third are the
older neighborhoods which are relatively stable in composition; in
the past they have received little attention, but they often retain a
strong sense of community from long-term residents. And finally are
the neighborhoods that grow out of urban renewal and private re-
development. Each of these has its contribution to make to life in our
cities. As in the discussion of downtown, our interest here is to show
how some places and some people have been able to hold onto or to
bring back to our cities some of the excitement and the vitality they
once had.
The Historic Neighborhood
The earliest private efforts to preserve neighborhoods in many of
our cities were tied to historic districts. In some cases these old
neighborhoods had survived the decay around them, but in others
they had to be brought back from years of neglect.
Each city's story is a little different. In Boston, Beacon Hill never
lost its elegance as much of the surrounding area became blighted.
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976 LEGAL COMPILATION—SUPPLEMENT n
Similarly, in Philadelphia a block-long section of Elfreth's Alley
held on and helped inspire the Society Hill restoration that now
covers many blocks of the city. Charleston was one of the first cities
to recognize the architectural and tourist value of its historic district.
Savannah held onto its unique set of colonial urban squares while
much wealth moved elsewhere in the city. Georgetown, an elegant
restored residential area in Washington, D.C., was until recent de-
cades a rundown neighborhood suffering from the loss of canal and
river trade.
Today the historic preservation effort is underway throughout the
country, as citizens work to save some of the past that made their cities
distinctive and gave them their personality. Louisville citizens, for
example, have the restoration of Old Louisville well underway. The
rejuvenation of this historic sector has inspired other neighborhood
improvement efforts throughout the city.
The French Quarter waterfront in New Orleans was saved from
an expressway that would have sealed it off. A plan to preserve this
valuable historic and architectural district has been drawn up to en-
sure that new development enhances rather than destroys the atmos-
phere of colonial France, dixieland, and the blues. As part of the
plan, an index has been devised to classify the existing structures as
invaluable, desirable, marginal, or detrimental, according to how they
contribute to the character of the neighborhood.
In all these efforts there is a danger of too narrow a focus after long
years of neglect. Sometimes preservation efforts are organized only to
save a single old building or one small area. But citizens have learned
that an all-out effort to save specific structures that are threatened
is often too little too late. Groups in some cities are working instead
on a broader front to redirect demolition ordinances, building codes,
and urban renewal to a more thoughtful consideration of preserving
historic values. Don't Tear It Down, a Washington, D.C., organiza-
tion, is an example of this type of group. Although it has often
succeeded in saving a single landmark from destruction, it sees its
more important task as working closely with neighborhood groups and
the local government to fuse the historic preservation movement into
what is going on to improve the urban environment in all neighbor-
hoods of the city.15
Many restored historic neighborhoods have become today the most
prestigious addresses in the metropolitan area. The man who was the
first to renovate an old home in Georgetown not so many years ago
was considered a fool; today the neighborhood is Washington's most
renowned. If anything, the problem today in many historic neighbor-
hoods is that they are too chic, too elitist, and need more diversity of
residents. Often this is possible by judicious use of local ordinances
to permit some old structures to be converted into apartments. This
attracts singles, young couples, students, and others into the neighbor-
hood without disrupting its value as an historic district.
24
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GUIDELINES AND REPORTS
977
Throughout the country, efforts are underway to bring back historic districts
as active residential neighborhoods. AboVe are examples in Philadelphia and
Savannah.
25
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978
LEGAL COMPILATION—SUPPLEMENT 11
Cl} INVALUABLE
DESIRABLE
MARGINAL
DETRIMENTAL
As part of the plan for preserving the old French Quarter of New Orleans, a
"treatment index" was developed to identify the contribution of each building
to its neighborhood.
The Neighborhood with Special Charm—
Renovation with Dislocation
Many urban dwellers, particularly young couples and singles, have
discovered the exciting and pleasant environment that is possible in
older neighborhoods—ease of movement as a pedestrian, shops and
stores where customers are greeted by name, and compactness with-
out congestion. They are moving into these neighborhoods, buying the
old houses, and working evenings and weekends to fix them up.
They are a small and special part of the urban community, usually
young, relatively affluent, and unencumbered by debts or large fam-
ilies, but they are a growing factor in the life of our cities.
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GUIDELINES AND REPORTS 979
Nearly every city has such areas—The Fort Greene-Clinton Hill
section of Brooklyn, the German Village in Columbus, Inman Park
in Atlanta, and Capitol Hill in Washington, D.C., are but a few
examples. Others are in New Orleans, Louisville, Philadelphia, and
many other cities. They are pleasant, well-kept, increasingly safe
neighborhoods which capture a vitality and charm not possible in
the suburbs. They serve as magnets, attracting people back to the city.
Like all urban neighborhoods, they have their problems, but the hous-
ing costs and rentals reflect the growing demand for this style of
urban living and convenience. Sometimes these neighborhoods at-
tract in part because of the historic role they have played in the life of
the city, but usually the houses are more comfortable than elegant,
the neighborhood more "put together" than restored.
Those who are attracted to these neighborhoods and undertake to
rehabiltate one of the old homes are often faced with major obstacles.
Financial institutions may be reluctant to help with loans and mort-
gages until the neighborhood has undergone substantial upgrading.
City ordinances can set up an array of confusing and detailed re-
quirements which seem overwhelming to the individual homeowner
at work in his spare time. Building codes are often insensitive to design
innovation and new technology in building materials. Even over-
zealous historic preservation groups can do harm in some neighbor-
hoods by showing greater concern for authentic details and fixtures,
the cost of which must be borne by the homeowners, than for the
need to encourage renovation activity and neighborhood vitality in
general.
It is ironic that so many of these obstacles have emanated from the
very people and institutions that should be most interested in the
revitalization of the city. Through reforms of public bodies and
enlightened new policies in the private sector, some of the obstacles
are being overcome. In fact, the increasing popularity and expan-
sion of these neighborhoods represent the victory of individual deter-
mination and institutional reform over the ill-conceived practices of
the past.
The chief drawback of these neighborhoods is that they foster re-
habilitation by dislocation. Although in some areas, such as Capitol
Hill in Washington, new residents have joined with old to find ways
to keep the neighborhood racially and economically mixed, it is a dif-
ficult challenge to meet. Over time, affluent neighbors, rising property
taxes, a sense of not belonging, and an inability to afford the substan-
tial rehabilitation often required for the housing lead older, poorer
residents to move out. Unlike urban renewal, there is no public effort
to help them find housing they can afford. Many have lived in the
neighborhood most of their lives and may not want to move to an-
other area. For these older residents, the chief consolation is that
the popularity of the neighborhood has increased the value of their
home, and it brings a good price.
27
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980
LEGAL COMPILATION — SUPPLEMENT n
More and more cities are experiencing the phenomenon of private renovation
of one or more old neighborhoods by predominantly young and affluent
residents who move in and fix up the existing homes. Above is Capitol Hill
in Washington, D.C.
28
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GUIDELINES AND REPORTS 981
In spite of the dislocation they cause, the appearance and growth
of these neighborhoods are an important trend in many cities They
are physically far less disruptive than urban renewal. On balance,
most see them favorably as opportunities to draw people back to live
in the city, and fast-rising residential property values are a welcome
and unusual experience for many city governments. Unlike urban re-
newal, these neighborhoods are coming back because there is a de-
mand on the open market for the way of life they offer. The concern,
then, is to make these neighborhoods work as magnets to bring people
back to the city, while at the same time assuring that they grow with
minimum disruption to those now living there who want to stay.
The Stable Neighborhood—
Preservation without Dislocation
With historic neighborhoods being restored and with some older
neighborhoods with special charm being converted into residential
areas which attract the young and the affluent, the challenge for
many cities has shifted to programs to upgrade and preserve viable,
older neighborhoods without disclocating the resident populations.
This is not an easy task. Housing often needs extensive repair and
rehabilitation; neighborhood amenities such as streets, parks, and
community facilities are often poorly maintained; and problems of
crime, drugs, and inadequate schools discourage owners from con-
tinuing to invest in the old neighborhoods.
Preservation of these older yet still viable neighborhoods has at-
tracted relatively little attention in the past. Federal programs have
traditionally been directed toward the worst housing areas where
often little or no neighborhood fiber remains upon which to rebuild
a sense of community. Emphasis has been on demolition, clearance,
and construction of new publicly supported housing. It is ironic that
in many cities today private restoration efforts spread through older
neighborhoods up to the door of public housing projects, then stop.
Even if one could be obtained with private capital, no one wants to
restore a 10-year-old abandoned public housing unit as much as a
60-year-old row house that has withstood 30 years of neglect.
In some cities, the example of older neighborhoods coming back
to life has led to a general resurgence of confidence in surrounding
neighborhoods and has reversed their decline. In these areas, the
long-term residents are upgrading their homes and working on neigh-
borhood preservation programs that put priority on keeping the same
residents. In some cities, such as Milwaukee and San Jose, there
are programs to provide tools and repair assistance to residents.16
After focusing for years on historic Old Louisville, where hun-
dreds of houses have been rehabilitated, attention has now moved on
to many other parts of the city. Public and private activity has turned
to saving not just the structures but also the character of the neigh-
borhoods, with streets and parks that attract people. Long-time resi-
29
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982
LEGAL COMPILATION—SUPPLEMENT n
Preservation efforts need not be limited
to historic structures or elegant neighbor-
hoods; much can also be done in older,
stable neighborhoods where residents take
an interest. Shown here are Mount
Auburn, in Cincinnati, and Butchertown,
in Louisville.
dents of Butchertown, an old German district near downtown, or-
ganized first to fight industrial zoning, then turned to the rehabilita-
tion and restoration of older homes in the area. While outsiders have
begun to move in to buy and restore homes, the people who have
long lived there remain the prime force behind the neighborhood
improvement efforts.
Other groups have found that neighborhood organization and
voluntary work can rekindle an atmosphere of hope and can trigger
improvements. The Low Cost Housing Corporation in South Boston
is a good example. For a while it experimented with Federal Govern-
30
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GUIDELINES AND "REPORTS 983
ment assistance through HUD. But the neighborhood group con-
cluded finally that the added cost of such Federal requirements as
union labor, approved architects and planners, and ceramic baths
might make the job so expensive that the poor could not afford the
rents. So the group went its own way and instituted a volunteer
program. One official of the Corporation claims that this lowered
the rehabilitation costs per housing unit from about $17,000 under
the HUD program to about $8,000. Since 1968, the group has re-
habilitated 19 buildings with 66 apartment units.
Other cities and states are shifting their urban renewal efforts to
more rehabilitation and less demolition and are otherwise sponsor-
ing neighborhood preservation and renewal in a way that encourages
the same residents to stay. Thirty states now have housing finance
agencies, up from a few just 5 years ago; more and more are following
the lead of the Michigan and Massachusetts agencies and emphasiz-
ing rehabilitation programs. Pittsburgh, where the History and
Landmarks Foundation assists and counsels neighborhood groups,
and Cincinnati, where the Mount Auburn area rehabilitation has
stressed keeping its residents, are two examples of city programs that
work.17 In other cities, such as Detroit and Minneapolis, the business
community has organized to help with seed money and other sup-
port.18 There are signs in these and other areas that upgrading older
neighborhoods in our cities could be a general trend and a viable
alternative to demolition and clearance for the poor.
Many neighborhood groups have found surveys useful first steps
toward a program of neighborhood improvement and preservation.
An excellent example of such a neighborhood environmental survey
is one done by residents of the Old West Side neighborhood of
Ann Arbor, Mich.19
Citizens in an. older neighborhood in Ann Arbor have worked out their own
neighborhood improvement and preservation plan.
31
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984 LEGAL COMPILATION—SUPPLEMENT n
They first identified the neighborhood boundaries. Then they
agreed upon a set of principles to identify what makes the neighbor-
hood a special place, what attractive features need to be protected
and enhanced, what the scale of new structures and the use of space
should be, and what kinds of changes and dynamics the community
could best adjust to. The results, developed with the aid of a grant
from the National Trust for Historic Preservation, call for thought-
ful policies to maintain the character of the neighborhood and still
to accommodate the changes in residence patterns and housing
demands sure to come in future years. Small grants for similar
efforts are also available from the National Endowment for the
Arts.
Once a neighborhood completes a survey, it should work with
local authorities to protect and enhance existing valuable elements
of the neighborhood and to properly design and integrate new
development. This is crucial because the best program of neighbor-
hood improvement can be rendered valueless by city hall decisions
to permit new construction which is out of scale or which otherwise
overtaxes the "carrying capacity" of the neighborhood.
As in our downtown areas, the use of space is important in older
city neighborhoods. It comes in many forms—yards, alleys, sidewalks,
parks, vacant lots, and even the streets themselves. Although some
neighborhoods need more public places like parks, others have parks
which are underused and often in disrepair. In some areas, ill-
advised urban renewal programs, abandonment, and debris-filled
vacant lots have left neighborhoods with too much space between
groups of buildings. This has effectively destroyed the sense of com-
munity and security that earlier derived from solid blocks of struc-
tures with an occasional park or playground. Some cities give priority
to filling in these spaces or at least converting the vacant and
abandoned lots to vest pocket parks.
Recent studies in Baltimore show that residents must perceive
a neighborhood as safe before they will let their children use its
parks.20 The studies were made of three contiguous urban residential
neighborhoods, one middle-income and two low-income, to trace
patterns of outdoor space use in the summer months. They concluded
that the physical design of play areas is less important than the
location, who else uses it, and whether it is supervised. To the extent
possible, people prefer recreation adjacent to their residences. This
is for convenience, security, and the ability to maintain visual links
with home. The studies also showed that in low-income neighbor-
hoods, adults tend to socialize in public areas, using sidewalks and
streets especially. Because the young do the same, secluded parks are
very little used. In such neighborhoods, open space facilities need to
be designed as congregating places where there is action—rather than
as retreats. Even in middle-class neighborhoods, where socializing
is generally indoors or in enclosed yards, parks are used most if they
are small and convenient to housing.
32
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GUIDELINES AND REPORTS
985
Children in a South Boston neighborhood play in a vest pocket park built
around the cellar floor of a dilapidated house cleared from the site.
Much of this simply reaffirms what Jane Jacobs said 12 years ago
about the need to recognize streets, sidewalks, and the smaller
public spaces around houses in a neighborhood as the centers of
recreation.21
This is not to say, however, that the nonuse of neighborhood parks
cannot be remedied by recognizing their value. Parks can be made
livelier places where people gather to take part in neighborhood activi-
ties. Many cities, including Boston and Washington, B.C., schedule
extensive programs of live entertainment in neighborhood parks
during summer months.22 But this is no substitute for spontaneous
activity there by the residents themselves. As with parks downtown,
the vitality can rise or fall on such simple things as whether or
not people can picnic, walk on the grass, or wade in the fountains
and whether street vendors are allowed.
Two interesting examples of the use of parklands bear mention.
Along the Fenway in Boston, residents are permitted to till small
plots of flowers and vegetables of their own. This not only provides
recreation for many but fills the edges of the park with a panorama
of color and texture. In Washington, B.C., children from inner city
neighborhoods have worked together on plots of land set aside in
the parks to grow a profusion of flowers and vegetables, which they
then sell or take home. Many a suburban commuter htis done a double
33
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986 LEGAL COMPILATION—SUPPLEMENT n
take as he turned his head from the freeway traffic jam to see a
field of corn and cucumbers surrounded by big red zinnias.
Empty lots can also become places for community open space.
Philadelphia has a program to turn over tax-delinquent properties to
neighborhood groups who then clear them and convert them into
vest pocket parks.23 On a larger scale, New York City converted
the site of the old Ruppert Brewery, slated for future high-rise
development, into a low-budget multiblock community park until
it was needed for construction. Headed by a group of concerned
citizens, the rubble-strewn acreage was regraded into a rolling meadow
and seeded. Neighbors grew gardens, and several festivals and park
events were held there until construction of the new housing began.
In summary, space in neighborhoods is a commodity sometimes
in short supply but always in need of good design, proper mainte-
nance, and innovative techniques to integrate it into the community
lifestyle. Where people have come up with the ideas, open spaces
have become vital parts of the life of the neighborhood, places that
attract activity while still providing the relaxation and respite that
people seek in neighborhood parks.
The way the city designs and uses thoroughfares also influences
the way a neighborhood holds together and keeps its vitality. Ex-
pressways are too often designed with greater concern for the natural
boundaries of rock strata than for the traditional boundaries of
neighborhoods. Commuters have been sped to downtown destina-
tions by converting numerous older residential streets to 1-way arteries
with lights timed for speeds approaching 40 miles per hour. Phila-
delphia, Baltimore, and Madison, Wis., are unfortunate examples
of cities that have fragmented whole neighborhoods with such poli-
cies. Studies that have compared numbers of visits between neigh-
bors on such streets and on other nearby streets show how deeply
these projects have cut into neighborhood continuity.24
A final factor in maintaining the vitality of neighborhoods is the
need for city officials to understand, predict, and accommodate the
needs of neighborhoods as they undergo change. If more families
with children are moving in, there is greater need for playgrounds,
schools, and swimming pools. These are less important than pleasant
parks, police protection, and health facilities if the residents are
elderly and stable. Cities need to recognize and plan for these dif-
ferences so that as neighborhoods change, the degree and kind of
public services available will change with them.
The Renewal Neighborhood—
Creating the Community
Another type of neighborhood that has brought special oppor-
tunities and special problems to many cities is the renewal neighbor-
hood. It is usually built on a site convenient to downtown and
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GUIDELINES AND REPORTS 987
replaces an older neighborhood that has come on hard times. Often
it includes high-rise apartment buildings, though it is popular to
surround them with smaller-scale development such as townhouses
and garden apartments.
Some of these neighborhoods—the Southwest in Washington, D.C.,
and the West End in Boston are two examples—are born of federally
supported urban renewal efforts. Others are private redevelopment
efforts advertising low-maintenance modern apartments and resi-
dences with central location. Still others fall into the category of
"new towns in town," projects funded under cooperative agreements
between the Federal Government and private developers to build
whole new communities for thousands within the city. Already under-
way is Cedar-Riverside in Minneapolis, and projects are planned
for San Antonio, Chicago, and New York City. For the sake of
convenience, we call all these developments renewal neighborhoods.
Although their sponsorship and financing vary, we are interested
here in examining some of their common characteristics.
Renewal neighborhoods have helped to keep middle-income people
from moving out of cities, to improve housing conditions for the poor,
and, in at least some cases, to attract back the relatively affluent.
They offer well-designed residences with modern conveniences. They
require little maintenance from residents, provide for personal secu-
rity, and are usually convenient to downtown activities. They often
offer a full range of community facilities such as pools, tennis courts,
and health clubs, and nearly all offer a range of shops and services.
They may even have a schedule of weekly social activities arranged
by the management. In short, renewal neighborhoods offer a life-
style stressing activity and convenience in a single locale combining
places to live, shop, socialize, and exercise. It is a life style that attracts
many Americans.
Renewal neighborhoods, however, are not without their problems.
High on any list is the issue of dislocation. Many renewal neighbor-
hoods, especially those that date back to the early years of the Federal
Government's urban renewal program, generated severe relocation
problems for low-income residents. Long-time residents suddenly
found their neighborhoods defined as "blighted" under the confus-
ing and often selfrserving definitions used by renewal authorities. The
mass demolition and clearance that attended urban renewal left
thousands with no option but to find new homes in other parts of
the city, thus worsening the already adverse conditions in those
neighborhoods. Even the recent substantial improvement in relocation
laws and benefits has had only limited success in ameliorating these
impacts. And the best efforts to provide more housing within renewal
areas for those forced out of their homes by construction projects
have run up against serious problems of social and economic integra-
tion.
An equally important problem in renewal neighborhoods, occurring
regardless of the mix of housing types and economic levels, is the lack
of existing fiber upon which to build a sense of community among the
35
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988 LEGAL COMPILATION—SUPPLEMENT n
new residents. To some extent this is due to the newness itself, the
lack of continuity between old and new neighborhoods. But it also
relates to the absence of any active participation by residents in the
design and construction of the renewal neighborhood. Although there
is sometimes a citizens advisory committee, the physical structures
are built for the residents and are there as givens when the first resi-
dents arrive. This contrasts sharply with circumstances in other neigh-
borhoods we have discussed, where even the newest residents become
quickly immersed in decisions about how their house and their neigh-
borhood will take shape.
Nevertheless, there are examples of renewal neighborhoods where
a sense of community has developed. St. Francis Square in San Fran-
cisco is one. The 229-unit garden apartment complex was completed
almost 10 years ago as a HUD-supported low- and moderate-income
project. Because of its unique design, it has remained a well-main-
tained, high-occupancy project with strong community spirit in a
high crime area of the city. The buildings are turned inward with
open space opposite the living rooms. The low-rise structures are
arranged in rectangles with a center area that attracts activity and
still assures security and visual contact between residences and play
areas. There is extensive use of trees and grass throughout the public
areas, and the architecture is reminiscent of single-family row houses.
Wooster Square in New Haven, Conn., is another innovative effort
by urban renewal authorities. The problem faced was how to upgrade
the neighborhood without destroying its architectural and historic
character or forcing the residents to relocate. The renewal program
was designed to emphasize rehabilitation of existing structures and
to put most public money into public facilities such as schools and
parks. The result is a neighborhood that keeps its charm while pro-
viding variety, vitality, and security for residents.
There are other elements of design in a renewal neighborhood that
can help engender this sense of community. First, attention to balance
among a variety of land uses in proper scale is necessary. Even resi-
dential use can be allowed to excess, resulting in no local commercial
establishments to serve people in the immediate area. But city zoning
laws often simply ban categories of uses and ignore the need for a
mix. There needs to be more respect for different kinds of uses coexist-
ing, for assuring each neighborhood its share of shops and con-
venience stores without overburdening it with strip commercial
development.
Another priority should be to preserve or create community
"watering holes"—taverns, stores, restaurants, and public areas where
people can gather and see their friends. In the past, renewal erased
blighted areas but provided few places in the redesigned neighbor-
hood for people to gather. Renewal programs have encouraged high
densities and have generally favored large-scale developers, thus de-
signing in problems of neighborhood scale. In some large renewal
areas, a shopping center is the sole commercial center, serving an
36
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GUIDELINES AND REPORTS
989
St. Francis Square is a San Francisco renewal project that combines many of
the design elements essential to vital, stable, and secure neighborhoods.
37
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990 LEGAL COMPILATION—SUPPLEMENT n
Southwest Washington is a large-scale urban renewal area that embodies all
of the limitations and opportunities of renewal neighborhoods described in the
text.
area too large to allow neighborhood watering holes but at the same
time rendering their existence at dispersed points throughout the
project economically difficult.
Design can also affect crime rates. A recent book entitled Defen-
sible Space theorizes that crime thrives in open, unguarded, inactive
areas where criminals can lie in wait.25 Such areas have been designed
into some renewal neighhorhoods in the form of interior plazas, play
areas blocked off from houses and streets, and extensive networks of
halls in high-rise structures. The message of Defensible Space is that
open areas should be placed adjacent to areas of activity or even
face out onto streets and that apartments should be designed to mini-
mize common areas within buildings.
Defensible Space studies also link the size of buildings to crime
rates. Crime tends to rise with building height, and this phenomenon
seems to be true even where moderate-income families live. More
than anything else, the data in the study argue for smaller-scale resi-
dential structures and for open spaces adjacent to areas that already
attract people and activity.
In summary, renewal neighborhoods require special care in design
and execution to assure that they work as communities. By their
nature, they produce problems of dislocation and a set environment
of structures and grounds that makes it difficult to foster a sense of
resident participation. In some cases, design can help to overcome
these problems. In others, only time will erase some of the uniformity
and starkness. It takes time for greenery to spread. And it takes time
before people have an opportunity to express their own individuality
and the neighborhood's diversity in decorating dieir homes. In the
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GUIDELINES AND REPORTS 991
long term, it is the continued growth of this diversity that will make
and keep renewal neighborhoods attractive places to live.
Conclusions
The focus of this chapter has been those elements which lend a
city its character and make it an attractive place to live, to work, and
to be. Some downtown areas have found ways to renew and change
to accommodate the older and more special things about the city.
In general, this has come from careful integration of the scale and
design of new structures with old. It has required special efforts to
forestall the demolition of older buildings for parking lots and to
encourage a mix of activities and a use of space that attract people.
Although the general pattern of urban American downtown con-
tinues down a road to uniformity and dehumanization, the growing
number of exceptions show that this is not inevitable.
The prognosis for urban neighborhoods is more complex. Large
areas of our cities continue to need upgrading, and it is not clear that
public assistance in the past has helped. Total reconstruction and
total abandonment of our cities are equally unrealistic and unaccept-
able alternatives. The effort must be toward making them better
places to live.
Some residential neighborhoods in cities have been saved as a part
of historic preservation efforts. More widespread is the phenomenon—
spearheaded usually by the young and affluent—of upgrading one or
more neighborhoods in a city by individually restoring the old homes.
Although this often dislocates older residents, a few cities have found
neighborhood preservation and enhancement possible with a mini-
mum of resident displacement. In summary, although hard results
are difficult to verify, there is a growing movement toward holding
onto and improving older neighborhoods in our cities. And even
renewal efforts are beginning to apply the lessons of the past by
emphasizing rehabilitation and the role of good design in building
security, a sense of community, and a neighborhood scale into new
projects.
The major unanswered question is the impact that these first small
signs of change will have on two large masses of Americans—the
relatively underprivileged in the city and the relatively affluent in
the suburbs. Will the benefits of livelier downtowns and the first
stirrings of healthier urban neighborhoods spread to the poor in our
cities? Or is it merely a new outlet for the wealthy few? Will sub-
urbanites begin at least in small numbers to return to the cities in
search of the amenities they offer? Or will the crime, drugs, and
schools in cities present a continuing unacceptable set of circum-
stances?
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992 LEGAL COMPILATION—SUPPLEMENT n
It is impossible to predict. What we do know, however, is that
there are things that people can do on their own, working together
and with their government, to make cities better places. It is, after
all, the increment of the decisions of thousands of people that made
our cities the complex and exciting places they once were. It will be
the decisions of many thousands more, on their own and with others,
that will bring them back.
Footnotes
1. Arthur P.- Ziegler, Jr., Historic Preservation in Inner City Areas—A
Manual of Practice (Pittsburgh: The Allegheny Press, 1971), p. 10.
2. Los Angeles City Planning Department, based on a 1970 study by Wilbur
Smith and Associates.
3. San Francisco Planning and Urban Renewal Association (SPUR), Im-
pact of Intensive, High-Rise Development in San Francisco, Vol. IV,
April 1973, pp. 18-25.
4. Mitzi Cunliffe, "The Eye and the Mind's Heart—The Aesthetics of Town-
scape," Journal of the Town Planning Institute, Vol. 55, No. 4, April
1969, p. 163.
5. See SPUR Study, supra note 3.
6. H.R. 5584, The Environmental Protection Tax Act of 1973.
7. For further information, see John J. Costonis, Space Adrift: Landmark
Preservation and the Marketplace (Urbana: The University of Illinois
Press, publication date: November 1973).
8. P.L. 92-362, 92nd Congress, 2nd Session (1972).
9. Presentation of William H. Whyte to the National Endowment for the
Arts, Office of Architecture and Environmental Arts, in Washington, D.C.,
Jan. 4, 1973 (study report scheduled for publication in early 1974).
10. For further information, contact The Greater Miami Tree Conserva-
tion Bank, 5768 Sunset Drive, Miami, Fla. 33143.
11. District of Columbia Redevelopment Land Agency.
12. Al Smith, "The Future of Downtown Retailing," Urban Land, Vol. 33,
No. 11, December 1972, pp. 3-10.
13. U.S. Department of Commerce, Bureau of Census, U.S. Census of Popula-
tion: 1970, Vol. I (Washington, D.C.: U.S. Government Printing Office,
1970).
14. U.S. Federal Bureau of Investigation, Uniform Crime Reports for the
United States, annual (Washington, D.C.: U.S. Government Printing
Office).
15. For further information, contact Don't Tear It Down, Box 14043, Wash-
ington, D.C. 20044.
16. For further information, contact the Milwaukee Model CitJes Home Tool
Loan Center, City Hall, Milwaukee, Wis.
17. See Ziegler, supra note 1.
18. For further information, contact Metropolitan Detroit Citizens Develop-
ment Authority, 2065 First National Building, Detroit, Mich. 48226;
Greater Minneapolis Metropolitan Housing Corporation, 1030 Midland
Bank Building, Minneapolis, Minn. 56401.
19. The Old West Side Association, Inc., Old West Side, Ann Arbor, Michi-
gan (Ann Arbor: The John Henry Company, 1972).
20. Department of Planning of Baltimore, "Neighborhood Design Study
Progress Report 2" (Baltimore, April 1972) (mimeograph).
21. Jane Jacobs, The Life and Death of the Great American Cities (New
York: Random House, 1961), pp. 113-40.
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GUIDELINES AND REPORTS 993
22. For further information, contact Summerthing, City Hall, Boston, Massa-
chusetts 02201; Summer in the Parks, National Capital Parks, 1100 Ohio
Drive, S.W., Washington, D.C. 20242.
23. For further information, contact The Neighorhood Parks Program, De-
partment of Recreation, Room 1470 Municipal Services Building, Phila-
delphia, Pennsylvania 19107.
24. See Donald Appleyard and Mark Lintell, "Environmental Quality of
City Streets: The Residents' Viewpoint," Journal of the American In-
stitute of Planners, Vol. 38, No. 2, March 1972, pp. 84-101.
25. Oscar Newman, Defensible Space (New York: The MacMillan Com-
pany, 1972).
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CHAPTER 2
Cleaning up the Willamette
Although the Willamette is our twelfth largest river, Lewis and
Clark nearly missed it on their journey to the Pacific. They didn't
notice it on their way down the Columbia River in 1805, nor did they
see it on the return trip in the spring of 1806. It wasn't until they
were more than 25 miles east that Indians told them of the river that
flowed north into the Columbia. Clark returned, entered and ex-
plored its lower reaches. Over time, the river's Indian name "Wal-
lamt" became the Willamette.
Much has changed in the century and a half since these explorers
first came to the Oregon Territory. The Willamette River Basin,
which stretches for 150 miles from its southern headwaters to the
point near Portland where it meets the Columbia River, is now the
home of 1.5 million people. The rich lands along the river have been
cleared for fruit and vegetable farms. The wooded slopes of the Coast
Range to the west and the Cascades to the east have been heavily
logged. Along the river banks in the major cities—Portland, Salem,
Eugene, and Springfield—lie factories, freeways, and other manifesta-
tions of our urban environment.
But in one important respect the Willamette River is now more
like the river which Lewis and Clark saw than it was 10, 30, or even
50 years ago. What was then one of the Nation's most polluted water-
ways has been transformed once again into a clean river. Fifty years
ago men refused to work at riverside construction because of the
water's intolerable stench. Now thousands regularly swim, fish, water
ski, and boat on summer weekends, and for the first time Chinook
salmon ascend the Willamette to spawn in the fall.
The transformation of the Willamette has been written about from
several points of view.1 We are presenting this analysis for two rea-
sons. First, Oregon's experience demonstrates how a major river can
43
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996 LEGAL COMPILATION—SUPPLEMENT n
be restored if the people are determined, the government committed,
and the legal tools available. Thus the Willamette experience is in-
structive as a model for the cleanup task ahead for other rivers of the
Nation.
Second, the land along the restored Willamette is now a focus
of public and private concern. Now that the waters are clean, the
goal is to put the land to the most beneficial use. There are two
different stories to tell about the land. One is the pursuit of the Green-
way, in concept a parkway running the length of the river's shores.
The Greenway is intended to protect the greenery and open space in
a natural setting and to give the residents of the valley—and others—
access to the water and wildlife. The other is Portland's effort to
change the orientation of the city's waterfront so that people have
the opportunity daily to take pleasure from the restored Willamette.
Both stories illustrate the attention to land use that must accompany
the Nation's water quality improvement program. They also raise a
major environmental quality issue: having committed ourselves to
the spending necessary to clean up polluted waters, how do we
guarantee that citizens—who pay for pollution control as consumers
and taxpayers—will have the opportunity to enjoy the benefits of
their investment?
Before examining these issues in more detail, however, we need to
understand the setting of the river and man's activities in the basin.
The Setting
Figure 1 pictures the Willamette. The valley is approximately 150
miles long and 25 miles wide. It is bordered by mountains on both
sides. On the west, peaks of the Coast Range are 2,000 to 3,000 feet
high. On the east, the Cascade Mountains generally reach elevations
of 5,000 feet, with five snowcapped volcanic cones that rise above
10,000 feet. At lower elevations the mountains are heavily forested,
primarily with Douglas fir. Lakes, rock outcroppings, and meadows
appear at the higher elevations in the Cascades. Most of the Willa-
mette's water originates in the mountains and flows down into the
river by way of its major tributaries.
The valley itself is relatively flat. The main river begins at the
confluence of several tributaries at the southern part of the valley
and meanders northward for 185 miles. At Oregon City, 26 miles
from the Columbia, the river plunges dramatically over the 41-foot
Willamette Falls. From there to the Columbia the Willamette is sub-
ject to ocean tides.
Figure 2 gives an oblique view of man's settlement along the river.
Near the mouth of the Willamette and stretching along both banks
as far as the Falls is the metropolitan area of Portland, with a popu-
lation of 900,000. It is a major port and a center of industry and
finance. Portland's suburbs stretch southward along both banks of
the river as far as Willamette Falls. Salem, the State capital, with
44
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GUIDELINES AND REPORTS
997
Figure 1
The Willamette Basin
Mt. Hood
Source Pacific Northwest River Basins Commission
45
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998
LEGAL COMPILATION—SUPPLEMENT n
o
z
46
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GUIDELINES AND REPORTS
999
a population of 75,000, lies 47 miles south of Portland. The other
major communities of the Willamette Valley are Albany, Corvallis,
Eugene, and Springfield.
Above the Falls, agriculture begins. The land on both sides of the
river is cultivated; major crops are snapbeans, ryegrass seed, mint,
hops, and strawberries. Lumbering and food processing are primary
economic activities. Lumbering accounts for some 40 percent of
manufacturing employment, and the food processing industry under-
takes extensive canning, freezing, freezedrying and pre-preparation
of foods.2
The residents of the basin constitute 70 percent of Oregon's popu-
lation. During the 30 years from 1940 to 1970 the population of the
basin more than doubled.
The river has always played a major role in the history of the val-
ley. In the 19th century, steamboats were the primary means of
transportation and commerce. Fish, particularly salmon and steel-
head, were a source of food. By the turn of the century, Willamette
Falls was harnessed to generate electric power. Sawmills used the
river to transport logs and finished products. With the advent of
pulp and paper mills, the river was also used to dispose of wastes.
The hydrology of the Willamette is also important in understand-
ing its history. Variability in flow is extreme. Figure 3 shows heavy
Figure 3
Precipitation and Flow at Salem
Monthly Precipitation
Monthly Hydrograph
0 -
0 —
JFMAMJJASOND JFMAMJJASOND
Source: Pacific Northwest River Basins Commission
47
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1000 LEGAL COMPILATION—SUPPLEMENT n
precipitation in the winter months and very little in the summer.
This pattern led to extremely high water in the winter and early
spring and extremely low water from July through October. Before
the construction of storage reservoirs, the natural flow of the river
ranged from an estimated maximum of 500,000 cubic feet per second
during the flood of December 1861 to summer minimums of less
than 2,500 cubic feet per second.3 As we will see, these variations
in flow were important to both pollution control and land use along
the Willamette.
Water Quality Restored
Pollution—the Early Days
We often think of environmental degradation as a recent problem.
But pollution of the Willamette was a concern as early as the 1920's.
In 1926, the Oregon State Board of Health organized an "Anti-
Pollution League," and in 1927 the Portland City Club was studying
the pollution of the Willamette. The Club's report that year described
the river as "ugly and filthy" and concluded that conditions were
"intolerable." The Club also conducted a public opinion survey in
which 49 percent favored legislation to control pollution, 18 percent
were opposed, and 27 percent had no opinion.4
Several water quality surveys were undertaken in these early years.
The studies concentrated on measuring the amount of dissolved
oxygen (DO) in the water. Concentrations of dissolved oxygen are
needed to support not only fish and plant life but also the natural
biological processes by which organic wastes are converted to stable
inorganic materials by bacteria and other organisms. As a general
rule, DO concentrations of 5 parts per million are required if a
river is to stay healthy.
The first comprehensive water quality survey, undertaken by
Oregon Agricultural College in 1929, was highly sophisticated for
its time. The dissolved oxygen level was measured during the low
summer flow from the headwaters to the Portland Harbor. DO was
above 8 parts per million for the first 130 miles. At Salem, DO
dropped to 7 parts per million and remained at that level as far as
Newberg, 35 miles farther downstream. Below Newberg, water qual-
ity deteriorated seriously. DO fell below 5 parts per million 15 miles
above the Willamette Falls and reached 4 parts per million at the
upper end of Portland Harbor. Considering the volume of wastes
entering the river at Portland, the study concluded that DO was
less than 0.5 parts per million where the waters of the Willamette
reached the Columbia River (see Figure 4) .5
48
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GUIDELINES AND REPORTS
1001
The 1929 study also measured total bacterial count for the length
of the river. Figure 4 shows that the waters downstream of each
major settlement had high bacterial counts stemming from dis-
charges of raw sewage.
The water was polluted, first of all, because all municipalities
dumped their wastes into the river without treatment. Although the
Willamette was able to absorb and stabilize the discharges of smaller
communities, it could not handle the municipal loads from the larger
communities such as Eugene-Springfield and Salem. Of even greater
consequence were the five pulp and paper mills in operation by the
late 1920's. Two mills—one at Lebanon on the south Santiam tribu-
tary and one at Willamette Falls—had been constructed in the 1890's.
Another plant at the Falls—on the other side of the river—was built
in 1908. Two other mills, at Salem and Newberg, were constructed
in the 1920's. These plants produced pulp using the sulfite process,
which means cooking wood chips under pressure and then separating
the larger cellulous fibers to produce paper. The residue, primarily
wood sugars and smaller wood fibers, was discharged into the river.
In decomposing, the wood sugars exerted an immediate and severe
demand on dissolved oxygen. The wood fibers exerted their demand
Figure 4
Dissolved Oxygen and Bacteria, 1929
'•g 300
o
o
50
100
Miles from Portland
150
200
Source: George W. Gleason, Return of a River (1972), p. 16
49
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1002 LEGAL COMPILATION—SUPPLEMENT n
over a more extended period. Often they formed sludge deposits on
the bottom. During the low-flow summer months, the deposits fre-
quently surfaced as unsightly, foul-smelling floating rafts. As much as
80 percent of the total demand on the dissolved oxygen in the river
stemmed from the pulp and paper mills.
When these waste flows reached Portland Harbor, the water quality
situation became serious. The municipal wastes of the city, which by
1930 had 300,000 inhabitants, flowed untreated into the harbor
through 65 separate discharge sewers. Further, tidal action and back-
flows from the Columbia generally kept the wastes in the deep harbor
for an extended period during the low-flow summer months. The
result during the summer was often a total absence of dissolved
oxygen along stretches of the harbor.
Public concern over the river's condition quickened in the 1930's.
In 1933, the Governor of Oregon called the Mayors of the cities on
the Willamette together for a conference "responsive to a State-wide
demand for abatement of stream pollution." 6 The first technical
study of the pollution generated by the pulp and paper industry fol-
lowed that meeting. In 1935, a subgroup of the Oregon State Plan-
ning Board, the Stream Purification Committee, made a study of
the water pollution laws. After identifying 35 separate State laws, the
Committee determined that the existing statutes fostered administra-
tive duplication and ineffectiveness, made it impossible to undertake
ameliatory regulation, and provided for unacceptably severe, and
therefore unenforceable, penalties. The Committee concluded that
"promiscuous adoption of unrelated and uncoordinated nuisance and
penal statutes . . . cannot form the basis of a concerted and direct
effort to prohibit pollution of streams." 7
The New Law
During 1937, the energies of those concerned about water pollution
were directed at the State Legislature. But a bill passed that year was
vetoed by the Governor on the grounds that it would cause financial
hardship to the cities and towns. Then in November 1938, through
the efforts of the Izaak Walton League and other citizen groups, an
initiative measure proposing the "Water Purification and Prevention
of Pollution Bill" was placed on the ballot. No arguments against the
bill appeared in the official State "Voters Pamphlet," and the meas-
ure passed by a margin of 3 to 1.8
The Act made it public policy to restore and maintain the natural
purity of all public waters. It authorized establishment of water
quality standards and created a 6-member State Sanitary Authority
to develop a statewide control program and to enforce the new re-
quirements. The Sanitary Authority functioned as a division of the
Oregon State Board of Health.
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GUIDELINES AND REPORTS 1003
The First Plan
The Sanitary Authority, organized in February 1939, decided as a
first priority that the cities should be required to clean up their wastes.
Acting on estimates by consultants and State and Federal officials,
the Authority determined that primary treatment and effluent chlori-
nation would be sufficient to restore acceptable water quality. An
important consideration in choosing this strategy, rather than one
requiring higher levels of treatment, was the fact that several large
multipurpose storage reservoirs were to be constructed by the Corps
of Engineers on tributaries of the Willamette. These projects—au-
thorized for flood control, hydroelectric power, irrigation, and naviga-
tion—would provide increased stream flows during the critical
summer and fall months. Instead of natural low flows of 2,500 to
3,000 cubic feet per second at Salem, it was expected that a minimum
flow of 6,000 cubic feet per second would be possible. The higher
flows would provide a greater capacity to absorb wastes. The Au-
thority, therefore, directed the municipalities to construct primary
treatment facilities.
World War II delayed the construction program. However, in
1944 Portland took a major step forward. Under the leadership of
the editor of the evening newspaper, a citizens' campaign won voter
approval of a $12 million bond issue to finance construction of neces-
sary interceptor sewers and a new primary treatment plant. As men-
tioned earlier, Portland's wastes had been discharged directly, without
treatment, into the Willamette through 65 sewers. The plan for Port-
land provided for interceptor sewers to collect and carry the wastes
to a new primary treatment plant. After treatment, the effluent was
to be discharged into the Columbia River because its low summer
flow was generally 40 times greater than the Willamette's.9
Following the war, construction of the municipal plants began in
earnest. The first two—in Newberg and Junction City—were com-
pleted in 1949. Portland's was placed in operation in 1951, Salem's
in 1952, and Eugene's in 1954. By 1957, with completion of the
Harrisburg plant, all cities on the Willamette had at least primary
treatment. All construction costs were borne by the municipalities
themselves because no State or Federal assistance was then available.
In 1950, the Sanitary Authority, through a series of public hear-
ings, turned its attention to the pollution generated by the pulp and
paper mills. The Authority faced a difficult problem. On the one
hand, significant improvement in water quality clearly depended on
some form of abatement by the mills. Citizen groups, citing damage
to fisheries and other recreational uses, insisted that something be
done. On the other hand, there appeared to be no available tech-
nology by which the mills could reasonably reduce the oxygen de-
mand of their wastes. Further, the industry hinted that stringent
regulation might force the mills to relocate in a more hospitable state.
The Sanitary Authority adopted what it saw as a stop-gap solu-
tion. It formally ordered the five mills to halt by July 1952 all dis-
51
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1004
LEGAL COMPILATION—SUPPLEMENT n
if-
r :..jT™ !•?.-,
? '
*•• • <-...,.. _*f ir
•> I
1 __
"
Mt. Hood stands high above Oregon's meandering Willamette River.
52
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GUIDELINES AND REPORTS 1005
charges of concentrated sulfite waste effluents during the summer
months of June through October. All the mills complied with the
order. Three constructed storage lagoons in which their wastes were
impounded during the summer months and released into the river
during high-water periods. One mill at Willamette Falls was unable
to find a site for an impoundment. It was granted permission to barge
its wastes to the Columbia and release them into the larger river.
The fifth mill changed from a calcium-base to an ammonia-base
sulfite process which allowed the wastes to be concentrated by evap-
oration and spray drying for recovery of the solids as a saleable
byproduct.10
In 1953 and 1954, the two largest of the Corps of Engineers dams
began operating. The plan of regulation for the reservoirs behind
the dams was as follows: to maintain low water levels during the
winter so that space was available if floods threatened, gradually to
fill the reservoirs during the spring and early summer as the snow-
pack melted, and gradually to release the stored water during the
later summer and fall to augment the low natural flows in that sea-
son. The dams permitted a flow of between 5,000 and 6,000 cubic
feet per second in the mid-1950's compared to the low flow of
between 3,000 and 4,000 cubic feet per second in the 1940's.
The Plan Reexamined
In 1957, the Sanitary Authority assessed its original plan. Three
forward steps had been taken: all municipalities had adopted pri-
mary treatment, the pulp and paper mills had suspended discharges
of strong wastes in the summer months, and flow regulation had
nearly doubled the low-flow rate. Yet water quality was still poor;
DO in Portland Harbor that summer was 1 part per million.
Because of a tremendous increase in the sources of pollution since
1939—particularly a 73 percent increase in the population served by
public sewer systems and a 93 percent increase in industrial waste
loads—water quality in the Willamette had not improved. It was
clear that higher degrees of treatment were necessary.11 In early
1958, the Sanitary Authority initiated a new set of requirements.
First, the cities of Eugene, Salem, and Newberg were directed to
install secondary treatment facilities. The growth in their popula-
tions was not the only reason. By then a major fruit and vegetable
processing industry had developed whose waste discharges coincided
with the low-flow summer months. For the most part, this industry
depended on municipal facilities for waste treatment services, thereby
significantly increasing facility requirements. At Salem, for example,
84 percent of the capacity of the secondary treatment plant ordered
by the Sanitary Authority was for wastes of the food processing in-
dustry. Other communities on the Willamette faced similar situations.
53
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1006 LEGAL COMPILATION—SUPPLEMENT n
Second, the city of Portland was lagging in its program to intercept
discharges from its 65 outfalls. In 1959, the Sanitary Authority filed
a lawsuit against the City Council—one of the few times that the
Sanitary Authority went to court during the entire course of the
cleanup campaign. In 1960, the voters of the city approved an in-
crease in the monthly sewer charge sufficient to finance the comple-
tion of the interceptor project over a 5-year period.
Third, the pulp and paper mills were directed to reduce their pol-
lution discharges sufficiently to eliminate slime growths and sludge
deposits and to maintain a minimum dissolved oxygen concentration
of 5 parts per million.
Fourth, in 1960, after another public hearing, all municipalities
down river from Salem were directed to adopt secondary treatment.
Further Tightening
On the basis of an updated water quality evaluation, the Sanitary
Authority adopted even more stringent policies in 1964. All pulp and
paper mills were ordered to adopt year-round primary treatment to
remove settleable solids. The sulfite mills were directed to apply
secondary treatment during the low-flow summer months, providing
an 85 percent reduction in oxygen demand. (In 1967, the secondary
treatment requirement was extended to cover the entire year.)
Secondary treatment for all other industries was also required, and
the possibility of demanding still higher degrees of treatment in some
cases was reserved. In short, the Board adopted a policy of universal
secondary treatment, with the possibility of tertiary treatment if
warranted.
This policy is still in effect today. More important, the objectives
underlying it have been achieved. Secondary treatment is now uni-
versal in the Willamette Basin. The total oxygen demand of wastes
has been reduced to one-fourth the 1957 level (see Figure 5). Dis-
solved oxygen in Portland Harbor has remained above the standard
of 5 parts per million every summer since 1969 (see Figure 6).
A living sign of the new health of the Willamette is the suc-
cess of the Chinook salmon entering the river in the fall.
Salmon had been successfully migrating upstream in the spring even
during the 1940's and 1950's, because the pollution was not a hin-
drance given the high water common at that time of the year. No fall
Chinook salmon run had existed on the Willamette due to low sum-
mer flows at Willamette Falls. Attempts to start fall runs failed be-
cause of the extremely low DO levels in the lower river. But the situa-
tion has changed: pollution has been abated, flows are higher, and
a new fish ladder has been built at the Falls. In 1965, 79 Chinooks
were counted; in 1968, 4,040; in 1970, 7,460; and in 1972, 11,614.12
The outlook is for even larger numbers.
"54
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GUIDELINES AND REPORTS
1007
Figure 5
Reduction in Oxygen-Demanding Wastes,
1957-1972
2-1
1-
Municipal
1957
1967
1970
1972
Source:
(1970), p.
Oregon Department of Environmental Quality, Water Quality in Oregon
18
Why Success?
What accounts for the success of the last decade? What are the
elements which made it possible? A series of factors were responsible.
First, the steady progress made between 1939 and the 1960's must
be recognized. The objectives which the Sanitary Authority estab-
lished in 1939 on the basis of the best information available were in
fact achieved by the mid-1950's. Although population and industrial
growth caused water quality to remain unacceptably poor and addi-
tional steps were required, it would be wrong to conclude that the
Oregon water pollution program was a failure until the 1960's. Many
steps taken during that early period laid the necessary foundation on
which later successes were built. The Sanitary Authority (later the
Department of Environmental Quality) has continued its effective
work. Under dedicated citizen and professional leadership, it has
earned a reputation as an agency which "does its homework." That
55
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1008
LEGAL COMPILATION—SUPPLEMENT IT
Figure 6
Dissolved Oxygen Levels, Low-Flow
Months, Lower Willamette River
J
J
rx
ir> A
o> A
S
0
J
J
O4
S A
l-l
S
o
J
J
rx
£A
i-H
5 S
I -
1 -
~ i
Q J
A
-, '-,";. ;•.'!: I
"<..•>. 1
.. .V-.i' £Y£I 1
:-^Ysare: i
5 ppm
DO Standard
.'• •' *«, '.- , .'„.*-', '.„--'•:!'',' , , J
•.:•"•{.:•: m^^ \
' ' ...:. .-.•,::; a i
' ' ." ' * -c; \
- "• ... -.- . •- 1
• ..: ..*• *..'*. iVf., "
' ' "*"",''^!"~";l'-./A''ff,'f,, • 1
, ', . , '*,jffi-'**,'li il.fif""t i-. J
....... 'i I
' ''•,"''!'<:-'f^1&fffj':' \
. •.. • ' :i5i»"ikJ8fei?r"' 1
ID
Q Average DO for Month
Q Minimum DO for Month
.. jrlftS-SSBiil':1^ ! •.,-.., 1
. . ./"..ri-itSi.!??!/":,^!
..:.. • .•-,:.•-
j. :• . " '
1
! . . •,: ...'".'. . i
., "•„ ; .. , . .'-' i;fi '. , • w"'
, ' ..' itS^iK)-;*': •'''.'." I
1
,. .: , •" .. . .•• •. ;.,•. ..;, i
i
-, .. (v.;:2c5\tW?l3S& •'.(. -fi, .''..''', J
^
. i • ...r'.'.'Siniiii^iSlffi*, ' '., •- ,-"' ',,,"1, ', •;>-.% -, ''.- 1
; . ';- ; • '-"-'"-Vv ,.'•.. '• :'',f:v"j >' -, • » i
•„..•.'.•.,-.. . . ... ;,'.:- 1
• . . .. W-^,,1,,,; ,,x '•;'•, :, 1
- ='. •" v.° .'•..' ;, . ; , ", i'iv ' ,;•-,•' .: i
,' ;••-. ':J':>i ' '* "/v, .-/,';,. i'.v^'.H-.--','-. •".,.'.' I
"'."•:•"•""."." ': A""'^'!'V V/..'.-."-X:"'\<":>r+r''"''v T', '."•. 1
1 1 1 I
) 2 4 6 8
Parts per million
Source: Oregon Department of Environmental Quality, Water Quality in Oregon
56
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GUIDELINES AND REPORTS ' 1009
it succeeded with limited resort to the courts is noteworthy. Strong
laws are a necessity if polluted water is to be cleaned up, but fre-
quent lawsuits are not necessarily a good measure of administrative
effectiveness.
No government agency can achieve its goals without popular
support. Without doubt the single major factor behind the cleanup
of the Willamette was the strong commitment and concern of the
people of Oregon. In an environment which is largely unspoiled, the
pollution of the Willamette was a highly visible outrage. As we have
seen, citizen organizations worked hard for a cleaner river at all stages.
In the 1920's, the Portland City Club focused attention on the river's
pollution. In the late 1930's, citizens put new legislation on the ballot
and got it passed. In the 1940's, citizens helped secure the bond issue
in Portland. In the 1950's, sportsmen's clubs in particular insisted
that the pulp and paper industry must abate its pollution. By the
1960's, the interest of specific groups broadened into a general
popular concern. The people of Oregon wanted "their river" cleaned
up.
The political leadership of the State both reflected and fostered
this popular desire. In 1965, a legislative committee appointed to
study public health needs gave considerable attention to the pollu-
tion of the Willamette. In the 1966 campaign for Governor, both
candidates—State Secretary Tom McCall and State Treasurer
Robert Straub—chose cleanup of the Willamette as a major theme.
Four years before, while he was a television commentator, McCall
had made a movie on the river called "Pollution in Paradise." Straub
had a longstanding environmental record and was the first to cham-
pion the idea of the Greenway. After winning the election, McCall
himself served for nearly a year as Chairman of the Sanitary Au-
thority, signaling the determination of the State government to stop
the pollution.
With broad public support, new legislation was enacted in 1967
to strengthen the antipollution effort. The new law created a
mandatory waste discharge permit program. This permit authority
allowed the State to set legally enforceable limitations on the amount
and concentration of wastes and to establish compliance schedules
for each step in the cleanup process. The 1967 legislation also pro-
vided for State aid to local governments for sewage works construc-
tion and established a system of tax credits for industrial expendi-
tures on pollution control.13
The assumption by the Federal Government in 1965 of a stronger
role in controlling water pollution was also very important. Legis-
lation enacted that year required each State to establish approved
water quality standards for its interstate waters and to place indus-
try and municipalities on schedules for building treatment facilities.14
The Willamette as far upstream as the Falls was held to be inter-
state. In meeting the Federal requirement, Oregon in 1967 reviewed
and updated its water quality standards not only for the lower Wil-
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1010
LEGAL COMPILATION—SUPPLEMENT n
lamette but for its other waters as well, and it was one of the first
states to receive Federal approval of its standards. In the same year,
the Federal Water Pollution Control Administration (the predeces-
sor of EPA) issued a report entitled Willamette River Basin: Water
Pollution Control and Management. The report had great influence
upon public understanding of the pollution issues, particularly the
contribution of the pulp and paper mills. The stronger role of the
Federal Government was a spur, particularly for industry: industry
had to recognize that pollution control was inevitable and that the
State of Oregon could deal firmly with industry without fear that jobs
would be lost to another state. The Federal Government also gave
financial assistance to municipalities for their waste treatment plants.
Through 1972, Federal grants to Oregon totaled $33.4 million.
A final factor in the improvement of water quality was the achieve-
ment of a higher minimum flow through releases from upstream
reservoirs during the low-flow months. The original plan was to
maintain a minimum flow of 6,000 cubic feet per second at Salem.
Higher minimum flows proved to be achievable because of better
than average runoff and a recognition of the value of water quality
enhancement. The low flow of 5,300 cubic feet per second in 1968
rose to 6,500 cubic feet per second in 1969, 7,000 in 1971,
and 7,500 in 1972.15 Even more spectacular was the increase
-i ,
For the first time, fishermen catch Chinook salmon near Willamette Falls in1
autumn.
58
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GUIDELINES AND REPORTS 1011
in September minimum flows, when the Chinook salmon arrive for
their fall migration. Additional waters were released to reduce
temperatures, raise DO levels, and aid the fish in their travels up-
stream. September minimum flows increased from 5,400 cubic feet
per second in 1966 to 7,000 cubic feet per second in 1968, 10,000
in 1970, and 12,000 in 1972. Maintaining water quality is not among
the legislated objectives of the Corps of Engineers facilities on the
Willamette. However, waters released to maintain a flow sufficient
for navigation and, to a lesser degree, irrigation can improve water
quality in a river with extreme fluctuations in flow. Without these
additional flows, investments in treatment plants on a river such as
the Willamette would not produce the same improvement in water
quality.
Outlook for the Future
The fact that the Willamette is now a healthy river is no guarantee
that it will remain so. The basin's present population of 1.5 million
is forecast to increase to 1.8 million in 1980, 2.4 million in 2000,
and 3.6 million in 2020. This growth will mean additional wastes
from both industries and municipalities.
Present policy is designed to cope with the problems of growth.
Dischargers have been informed that their current daily pollution
loads represent the maximum capacity of the river and may never
be increased. Hence, if a paper mill expands production or if a
municipality's population grows, the level of treatment will have
to be upgraded to compensate.
Portions of the basin still face special pollution problems. For ex-
ample, the Tualatin Valley near Portland has undergone very
rapid suburban growth. The Tualatin River drains the Valley, and a
portion of its flow is diverted into manmade Lake Oswego before
it discharges into the Willamette. Because of this diversion and heavy
use of the river's water for irrigation, the flow in the Tualatin is
extremely low in the summer. Consequently, the Tualatin is not
capable of carrying the wastes of the population of 175,000 without
extremely high levels of treatment. To deal with the situation, in
1970 the State banned all construction until a county service district
was created. The plan now in effect calls for an extensive system
of interceptor sewers, one major and six minor treatment plants, and
tertiary treatment. The major plant, expected to be in operation in
1975, will replace several existing smaller plants, remove 85 percent
of the phosphorus, and limit the oxygen demand of the effluent to
not more than 5 parts per million.16
Citizens continue to play an important role in maintaining water
quality on the Willamette. The Department of Environmental Qual-
ity often learns of discharge violations from citizens. Equally im-
portant, the public has repeatedly indicated to State officials, in
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1012 LEGAL COMPILATION—SUPPLEMENT n
elections and in other ways, that it wants Oregon's environment
preserved. This is the best guarantee that the Willamette will remain
a healthy river.
Land along the River
We may turn now to the question of land use along the Willamette
River and how the benefits of improved water quality are to be en-
joyed. Will the public, which has paid for the restoration of the
river, enjoy it? Or will public access to the waters be blocked? In
many ways, questions of land use along the water and public access
to it are more difficult than the task of cleaning up pollution. Be-
fore addressing them, however, we need to understand how the
present pattern of land use along the Willamette developed.
Early Development
Land use on the shores of the Willamette has been shaped pri-
marily by the hydrology of the river and by the needs of industry
and commerce.
In the 19th century, the river was the main avenue of communica-
tion in the valley. The early trappers found the river ideal for trans-
porting furs. Steam sternwheelers appeared in the 1850's. By the end
of the Civil War, as many as 54 freight and passenger steamers were
traveling between Eugene and Portland, calling at 191 steamer land-
ings. The steamers carried agricultural produce downriver to distant
markets and returned upriver with manufactured and other goods
needed on the farms.17
Most of the wagon roads of this period, linking farm communities
to the steamer landings and ferry crossings, were built to avoid the
damaging effects of periodic flooding. When railroads were laid
in the late 19th century, they were also located away from the river-
banks in order to avoid the floods. The highways, in turn, were built
near the railroads.18 As a result, long stretches of the river's banks are
accessible only by boat or on foot. Viewed from the water, these sec-
tions of the Willamette shoreline appear as wilderness—little changed
from the days of Lewis and Clark.
In urban areas like Portland, land use along the river was initially
devoted to docks and shipping facilities. As manufacturing developed,
it also located on the river in order to secure water and to facilitate
waste disposal. The major hydroelectric power site—Willamette
Falls—was occupied by a generating plant and two paper mills at
the turn of the century.
Facilities on the water changed as time passed and technology
changed. Wood docks and piers were replaced with steel and con-
crete. Various manufacturing facilities became obsolete; some were
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GUIDELINES AND REPORTS
1013
superseded by new uses; others merely deteriorated. Over the last 15
years, freeways and their geometric access ramps came to dominate
much of the urban shoreline. The highways were located along the
water not because of any need for a riverside location but because
they could be constructed there with less disruption than along alter-
native routes.
With the growth of population, suburban development spread out
from the population centers along and near the banks of the river.
Commercial marinas and other docking facilities for pleasure craft
appeared. Builders of apartments and condominiums sought sites
The Williamette flows through scenic farm lands south of Newburg.
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1014 LEGAL COMPILATION—SUPPLEMENT n
with river views. Given the valley's projected population growth, it
became clear to some that eventually a strip city would run the 120
miles from Portland to Eugene and that the pressures of this develop-
ment would endanger the unspoiled tranquility of the Willamette.
The Greenway Concept
Karl Onthank, Dean of Students at the University of Oregon and
a long-time conservationist, saw these trends and worried about them.
In the summer of 1966, in the midst of the gubernatorial campaign,
he sent a letter to both candidates. In it he proposed the creation of
the Greenway, a parkway stretching continuously down both banks
of the Willamette from the Dexter Dam on the Middle Fork above
Eugene to the Columbia River. It would be one of the longest parks
in the world, a bit of unspoiled wilderness for camping, swimming,
boating, fishing, hiking, and riding—accessible to all.
Both candidates endorsed the idea immediately, and the concept
was featured in both campaigns. Right after the election, Governor
McCall appointed a task force of citizens, conservationists, and State
and local government representatives to define the concept and pro-
pose action. At about the same time, a group of citizens dedicated to
the Greenway concept were forming a Willamette River Greenway
Association to develop further public support.
The task force worked rapidly. Within 3 months legislation was
submitted to the legislature. Within another 3 months, although re-
vised in some important respects, the Greenway concept was law.
The Greenway Plan
The objectives of the Greenway were stated in the task force report
to the Governor:
The basic objective is the preservation and enhancement of the
river's natural environment while at the same time developing the
widest possible recreational opportunities in a manner that injures
no one and benefits all.
Through imaginative yet wise planning and with the coopera-
tion of both citizenry and government, this can be done without
harm to the legitimate needs of industry or agriculture, or to local
and private interests.
We must be astute enough to see that preservation is far easier
than correction, perceptive enough to realize that in the Willamette
River we still have more to preserve than to correct, and bold
enough to act accordingly.19
In the course of its work, the task force and other supporters of
the Greenway realized that they had to live with certain realities.
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GUIDELINES AND REPORTS 1015
They recognized that the original idea of a continuous parkland along
both banks of the river was not possible. For one thing, developed
urban areas were a barrier. More important, strong objections from
farmers, summer homeowners, and local officials could be expected
if all the land along the banks were proposed for inclusion. There-
fore, the concept of a continuous parkway was replaced with a
proposal for a series of intermittent parks—"a string of pearls," in the
words of one conservationist.20
The task force also recognized that the Greenway proposal would
draw opposition from the same groups if it were to be administered
solely at the State level or to include the power of eminent domain.
Landowners were not willing to have extensive powers placed in
State hands. To be approved by the legislature, the program would
have to be controlled by local government and to exclude the power
to condemn land.
The task force emphasized that its goal was largely to preserve
existing types of land use. Most existing land uses along the river, par-
ticularly farming, were compatible with the Greenway concept.
Furthermore, much of the land was subject to flooding and was not
appropriate for other forms of development.
Despite these restrictions, the proposed program was highly imagi-
native and broad in scope. It included: a system of river recreation
camps for boaters at convenient intervals along the length of the
Willamette, most of them accessible only from the river or by trail;
a river access system, composed of recreation areas and boat-launch-
ing sites for picnicking and other recreational activities and for
launching and retrieving boats; a Recreation Trails System for
hiking, cycling, and riding; a Scenic River System to take advantage
of scenic views of the river; a Recreation Tract System of special
Greenway parks in varying sizes, including multipurpose regional
parks—scenic areas with dramatic views of the riverscape and
large tracts of undeveloped lands in the river's flood plain for wild-
life preservation; and a Scenic Conservation Easement System to pro-
tect scenic qualities along the river bank without disturbing present
land use.21
Concluding that the plan would require government control over
22,000 acres of land along the Willamette River, the task force recom-
mended public purchase of 7,500 acres, with an estimated market
value of $12 million. The task force also recommended purchasing
scenic easements on 6,500 acres and recreational use easements on
1,400 acres. Most of the remaining acres were already in public
ownership.
Administration of the program was to combine comprehensive
planning and coordination by the State and property acquisition by
local units of government. The Governor's Greenway Committee was
appointed to oversee and promote the program. The Committee had
three government representatives (State, county, and local) and six
public members. Central administration was provided by the State
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1016 LEGAL COMPILATION—SUPPLEMENT n
Highway Department which in Oregon is responsible for State parks.
The program was to be implemented by the counties and municipali-
ties along the river.
Under the original plan, property acquisition was to be financed
50 percent by the State and 50 percent locally. In March 1968, how-
ever, the State received an initial grant of $600,000—subsequently
increased through other grants to $1.6 million—from the Land and
Water Conservation Fund administered by the Department of the In-
terior. This changed the funding formula to 50 percent Federal, 25
percent State, and 25 percent local.
The first version of the Greenway Plan was pursued for almost 3
years. During that time, 1,310 acres of land with 6.5 miles of river
frontage was purchased by local governments at a cost of $2.8 mil-
lion.22 Thirty-two parcels, averaging 41 acres each, were acquired.
Progress was less than originally hoped, and some of the weaknesses
of the initial program were becoming clear.
The biggest problem was the lack of funding at the local level.
Although local governments enthusiastically supported the Greenway
concept, most found it difficult to raise funds for land acquisition
given the other demands on their budgets. Municipalities were more
successful than counties in acquiring land. Although only 9 percent
of the land lay within city boundaries, 64 percent of the acquisitions
was by city governments. Along the rural reaches of the river, where
county governments were responsible, acquisition was quite limited.
A second problem was the absence of the power of eminent domain.
Depending solely on landowners' willingness to sell made it difficult
to implement the plan.
Third, the expectation of the task force that considerable lands
could be protected by scenic easements, either through purchase or
donation, was not realized. The major problem was the cumbersome
acquisition procedure required under State law. Local district attor-
neys were too busy with other legal problems to hold hearings and
complete the other procedural requirements.23
The Greenway—Recent Developments
The failings of the original version did not dishearten the propo-
nents of the Greenway. Efforts to design a workable program
continued.
In early 1971, the State government initiated a project to establish
five major State parks bordering the Willamette, to be funded 50
percent by the State and 50 percent by the Land and Water Con-
servation Fund. (Acquisition of parklands has been funded from the
State gas tax in Oregon since 1921). Including two existing parks,
this project will give each county along the river a major park by
1975.
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GUIDELINES AND REPORTS 1017
But the problem of preserving the unspoiled banks of the Willa-
mette remained. A new program, announced by the Governor in 1972,
sought to overcome the weaknesses of the original concept by placing
responsibility for property acquisition and financing at the State level.
Under its general legal authority to secure parklands, the State pro-
posed to acquire 156 miles of river frontage totaling 15,700 acres.
The cost, estimated at $10 million, was to be divided equally between
the State and the Land and Water Conservation Fund.24 Imple-
mentation began in 1972. The Highway Department contacted land
owners to ask if they would sell. Many were willing but others were
not. In several instances, appraisers suggested that the State might
resort to use of its powers of eminent domain. There was an intense
reaction from a group of farmers with land holdings along the river.
These farmers did not want to have parts of their farms acquired by
the State. They were concerned about losing access to the Willamette,
particularly to draw irrigation water. They also feared that the public
might litter and vandalize their property. They organized and took
the issue to the legislature.
After hearings and negotiations, the legislature enacted in June
new legislation which seeks to reconcile the concerns of die farmers
with the need to preserve the shoreline. The objective of the new law
is to sustain existing land uses along the river, particularly farming,
and to prevent development damaging to natural and scenic values.
Scenic easements are to be the primary regulatory tool.26
The law directs the Highway Commission, in cooperation with
local governments, to specify within 1 year the boundaries of the
Willamette River Greenway. Initially, the Greenway is to include all
lands within 150 feet of the high water line on both banks of the
river, but the Commission has authority to include additional lands
in its final plan. The State Land Board is to review and approve the
plan.
To protect the Greenway from development, the Highway Com-
mission is authorized to acquire scenic easements within the river
corridor by exercise of eminent domain as well as by purchase from
willing sellers and by gift. Acquisition of a scenic easement constitutes,
in effect, the purchase of certain rights to develop a property. The
specific rights purchased in a particular instance can vary, from
restrictions on the cutting of timber and damage to vegetation to the
prohibition of buildings or other improvements. Any change in the
use of lands subject to scenic easements will require the consent of
the Highway Commission. The scenic easements will not expand
public access. In fact, public access is expressly prohibited if the
scenic easement is acquired by eminent domain. For tax purposes,
lands subject to scenic easements are to be assessed on true cash value
minus any reduction in value stemming from the easement.
The new law prohibits the use of the scenic easement for farm
lands. However, if farm lands are to be converted to any other use,
the Highway Commission is authorized to acquire a scenic easement
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1018 LEGAL COMPILATION—SUPPLEMENT n
at that time. Hence the Highway Commission will have an oppor-
tunity to protect existing farm lands if development is proposed.
Scenic easements are not the only form of control permitted under
the legislation. The State or local government can continue to buy
lands from willing sellers. Further, the Highway Commission is au-
thorized to purchase public use easements, allowing the public to use
lands for specific purposes such as fishing even though ownership
remains in private hands.
The Greenway—Issues
This new law has great promise. How it will work out in practice
is still to be seen. Nonetheless, the history of efforts to create the
Greenway illustrates many of the issues that preservation of unde-
veloped lands and securing public access to them are raising across
the Nation.
First, who should pay for programs like the Greenway, and what
role should various levels of government play? Oregon's experience
shows the difficulty of relying on local financing. Local governments
have not generally had significant, flexible resources with which to
support such a program, although Federal revenue sharing may well
change that. More important, the statewide and national benefits of
such a program are a strong argument for state and Federal partici-
pation in funding. Families from other states as well as other parts
of Oregon may be expected to come to the Willamette to enjoy
the Greenway, probably in as great or greater numbers than those
who live nearby. On the other hand, local residents have some ap-
prehension about a program directed from the state capital. In what
ways can state government guarantee local citizens that their legiti-
mate interests will be fairly protected?
Second, will scenic and public use easements now prove as effective
in Oregon as they have in other parts of the Nation? Will these
easements serve to protect natural values and make present desirable
land uses such as farming compatible with recreational activities of
urban and suburban populations? Will easements give security to
all parties, both farmers—that their vegetables will not be stolen or
their irrigation pumps vandalized—and the general public—that
pleasing farm land will not be developed next week or next year?
Third, is there a larger future role for land use planning and
regulation in preserving lands such as the banks of the Willamette?
Oregon, a State with a high level of environmental consciousness, has
recently passed legislation establishing a state land use planning sys-
tem (see Chapter 5).26 Can regulation become an effective tool for
maintaining the Greenway? The banks of the river are in the flood
plain, subject to periodic inundation despite the Corps of Engineers
facilities. Should our society permit development which, more than
likely, will be damaged or destroyed in a future flood?
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GUIDELINES AND REPORTS 1019
Finally, and most fundamentally, can our society implement ex-
pansive plans for the preservation of natural values? The original
concept of the Greenway was visionary—an entire river bordered by
a natural parkway. That concept has been altered to fit more modest
goals. In the longer view, however, the initial vision may not be mis-
placed. Within 50 years, a strip city is projected to run the length
of the valley. A parkway of the original scale would be an invaluable
asset at that time. Delay in the present makes the future of such a
park system problematic. In short, can we find ways and means to
reconcile the logic of the future with the fiscal and political realities
of today?
Urban Areas
The land use issues posed by cleanup of water pollution are some-
what different in urban areas. Preservation of natural values is less
relevant. Rather, the concern is how to create public access so that
the public can enjoy the water. When the Willamette was virtually
an open sewer, it could be cut off from the rest of the city by fac-
tories, freeways, wharves, and unsightly open lands without much
loss to the public. In fact, the general development pattern in
American cities was to turn away from nearby waters, be it river or
estuary, and to concentrate activity at other points. But when a
river becomes clean, such as the Willamette, the absence of parks,
piers, restaurants, shops, marinas, promenades, and other avenues of
access becomes a cause for concern, and it becomes important to
transform land use on the banks from those of the past to ones more
suitable today.
In the city of Portland, the importance of shifting land use in this
manner is well understood by both the leadership and the citizenry.
This chapter cannot comprehensively describe the plans for land use
in Portland. But it can describe three examples of shifting land use
aimed at improving public access to the water and assuring that the
citizens who paid for the water cleanup—by their sewer bills, by
State and Federal taxes, and through higher prices for goods that
they consume—can now enjoy it.
The first example is the Harbor Drive, a 4-lane expressway which
runs along the west bank of the Willamette for 2 miles parallel to and
approximately 400 yards from the central downtown area. Built in
1941, the highway connects two bridges which cross the river.
In 1968, the future of Harbor Drive came into question, in part
because a new inner loop was being planned which would feed
traffic onto the bridges at either end. The Governor appointed a task
force to review alternatives. Members included the Highway Com-
missioner, Portland's director of urban renewal, and several private
citizens. Various plans to depress the Drive were developed. Then
an origin and destination survey showed that most traffic on the Drive
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1020
LEGAL COMPILATION—SUPPLEMENT n
By closing Harbor Drive (A) and possibly relocating a scrap yard (B), the
people of Portland will gain access to the river.
was on its way to the other bank of the river. The primary need was
for another bridge. With such a bridge, Harbor Drive would no longer
be needed.
The necessary new facilities will be completed this summer. At
that time, Harbor Drive will be closed. The highway itself and other
lands comprising an area 4 blocks back from the river will then be
available for development under State urban renewal legislation.
Plans for the development are going forward. Much more than a park
is intended: the planners want shops, restaurants, housing, and other
facilities which will be a source of life and vitality. When the project
is complete, the downtown area of Portland, rather than being cut
off from the river, will be linked directly to it.
The second example has to do with a salvage yard, located near
the southern end of Harbor Drive, which takes apart old naval ships
for scrap recovery. The Governor has cited the salvage yard as an
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GUIDELINES AND REPORTS 1021
inappropriate land use at its present site, calling it "the cancer in
the breast of the Greenway." 2T Moreover, the State Department
of Environmental Quality has determined that the salvage operation
causes oil spills into the river. Because water pollution regulations
do not allow spillage of oil, the salvage yard may soon be forced to
relocate. If it does, an unsightly complex will be removed from this
site near the center of the city, and an opportunity will be available
to develop this section of the river bank in a way more appropriate
to the site and the times.
The third example is situated another mile or two upstream. A
corporation has purchased a 1-mile stretch along the river presently
occupied by two old furniture factories and ragged open land. Called
John's Landing, it is in the early stages of development as yet another
center of vitality along the riverbank. It will be oriented to people,
with housing, marinas, shops, restaurants, and other attractions. The
developer has been working with local environmentalists and State
Greenway officials as he develops his plan. At their suggestion, he
will retain a handsome grove of willows along the water and will
create a trail so that people can walk along the banks. The trail,
in turn, will be linked to one of the parks acquired under the Green-
way program.
Conclusion
The story of the cleanup of the Willamette is heartening. It shows
chat a major river, even if heavily polluted, can be restored to health.
The Willamette is a practical demonstration that treatment tech-
nology (combined in this instance with flow regulation) can remove
sufficient wastes so that a large population, extensive industry, and a
clean river can coexist in harmony. It indicates that the legal tools
used in Oregon and now embodied in the Federal Water Pollution
Control Act can induce industry and municipalities to make the
necessary investment in such facilities. And it makes clear that the
single most important factor is the determination of the people—
and, in turn, of the government—to have clean water.
The process cannot be accomplished overnight. Cleaning up water
pollution involves long and often frustrating leadtimes to plan and
construct waste treatment facilities. But the country has committed
itself to cleaning up the Nation's water, and the example of the Wil-
lamette demonstrates that it can be done.
Oregon's efforts to protect natural values and assure public access
to the waters are still in process. The unresolved question on the
Willamette—how to match controls over land use with improvements
in water quality—has emerged as a major environmental issue. Over
the next 10 years, the United States is expected to spend $121 billion
on water pollution control. The people—as taxpayers and con-
sumers—will pay the bill. They are entitled to the benefits, and the
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1022 LEGAL COMPILATION—SUPPLEMENT n
benefits in turn depend on decisions about the use of land along the
shores. Difficult questions must be answered, questions which have
been addressed on the Willamette: How much public access is
needed? How much is likely to be provided by the private sector?
How will publicly controlled access be secured? What will be the role
of land use controls? Can current desirable land uses be preserved?
Who is to pay for public access? Oregon has been grappling with all
these questions. Perhaps, as in the case of water quality, the State will
show the way for the rest of the Nation.
Footnotes
1. George W. Gleeson, The Return of a River: The Willamette River,
Oregon (1972), provides a detailed technical review. EPA's pamphlet,
Oregonians Restore the Willamette, by Herbert E. Simison (1972) is a
briefer summary. Articles in the National Geographic (Ethel A. Starbird,
"A River Restored: Oregon's Willamette," June 1972, pp. 816-34) and
in Sunset ("The Willamette . . . Oregon's River Parkway," July 1972,
pp. 54—59) concentrate on the opportunities offered by the restored river.
2. Pacific Northwest River Basins Commission, Willamette Basin Task Force,
The Willamette Basin: Comprehensive Study of Water and Related Land
Resources, Main Report (1969), pp. 46-53.
3. G. Gleeson, supra note 1 at 5-7.
4. Id. pp. 12-13.
5. Id. pp; 15-16.
6 Id. p. 17.
7. Id. pp. 19-21.
8. Id. pp. 21-22.
9. Interview of Steffen W. Plehn, Council on Environmental Quality, with
Kenneth H. Spies, Deputy Director, Oregon Department of Environ-
mental Quality, in Portland, Oreg., May 2, 1973.
10. Id.
11. Kenneth H. Spies, "Water Quality Control in the Willamette River of
Oregon," April 1973, pp. 6—7 (mimeograph).
12. Id. p. 9.
13. G. Gleeson, supra note 1 at 49-58.
14. Federal Water Pollution Control Act §5(a), 33 U.S.C. §466 (1965),
formerly 70 Stat 504 (1948).
15. Memorandum from Corps of Engineers to Council on Environmental
Quality, April 30, 1973.
16. Letter to Steffen W. Plehn from Kenneth Spies, May 18, 1973.
17. George W. Churchill, "The Story of a Great River," Parks and Recrea-
tion, pp. 103-105, January 1972.
18. Id. p. 103.
19. Governor Tom McCall's Willamette River Greenway Proposal, March
1967.
20. G. Churchill, supra note 17 at p. 104.
21. Greenway Proposal, supra note 19.
22. Department of the Interior, Bureau of Outdoor Recreation, April 12,
1973.
23. Telephone conversation of Steffen W. Plehn, Council on Engironmental
Quality, with George W. Churchill, Director of Willamette River Park
System, June 7, 1973.
24. Department of the Interior, supra note 22.
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GUIDELINES AND REPORTS 1023
25. Engrossed House Bill 2497, Oregon Legislative Assembly, 1973 Regular
Session.
26. Philip Fradkin, "Oregon Makes Striking Gains in Protecting Environ-
ment," Los Angeles Times, April 15, 1973.
27. Conversation of Steffen W. Plehn, Council on Environmental Quality,
with Larry Williams, Executive Director of the Oregon Environmental
Council, in Portland, Oreg., May 2, 1973.
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CHAPTER 3
Economics and
Environmental Management
Over the past few years there has grown a general recognition
of the importance of economic analysis to the development and
implementation of sound environmental policies. The essence of the
economists' message is that any good or service, whether a new
automobile or cleaner air, costs something. There are different types
of costs, and they may be borne by different people, but they must
be paid.
The Nation has voted overwhelmingly for a cleaner environment.
We have decided that we are no longer willing to pay the costs of
dirty air, polluted water, defiled wilderness. We have realized that
our environment should not and cannot serve as a dump for all our
noxious wastes.
But this decision does not come free. It requires a willingness to pay
instead—as consumers and taxpayers—the costs of controlling en-
vironmental insults. The decision implies higher prices, higher taxes,
lower incomes, changed consumption patterns, and other adjust-
ments. In many cases the Nation's new attitude requires a willingness
to give up some of our private income for a public good—a cleaner
environment.
Our decision has signaled a fundamental redirecting of our econ-
omy and society. That decision was an important one, but in many
ways it was less complex than those that we now confront. For now,
having decided that environmental quality is a valuable good, we
have to decide more precisely how much we want, how we will pay
for it, and who will pay for it. These questions often require com-
plicated analyses involving difficult tradeoffs.
The Council's Second Annual Report explored many of these
issues. Last year's Annual Report focused on how much it will
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1026 LEGAL COMPILATION—SUPPLEMENT n
cost to implement our environmental programs and what will be the
economic impact on selected industries and the general economy.
This year's chapter probes the relationship between economics and
the shaping and implementing of environmental policy. It concen-
trates on three fundamental questions: First, what are the types of
costs that must be identified and balanced in future environmental
decisionmaking? These fall into four categories: damage costs, avoid-
ance costs, transaction costs, and abatement costs. Second, what
do we know about the magnitude of these costs? Third, who pays
these costs, and how? Damage and avoidance costs affect us all,
and ultimately the transaction and abatement costs are not paid
by governments or businesses but by taxpayers, employees, consumers,
and stockholders. All these costs are paid by people, in terms of either
lower real income or lower quality of life, and they are distributed
differently across different occupational groups, geographical areas,
firm sizes, educational levels, and particularly different income levels.
The final section of the chapter looks at how such a consideration
of costs and their incidence can contribute to the development of
more efficient and effective environmental policies. It also addresses
the importance of economic incentives and explores how factors such
as uncertainty and irreversibility limit the application of quantitative
decisionmaking.
Damage, Avoidance, and Transaction Costs
This and the succeeding section discuss the four categories of costs
that must be examined and balanced in environmental decisionmak-
ing. Damage costs are those costs which directly result from a pol-
luting activity, for example, illness and property damage stemming
from air pollution. Avoidance costs are those that people incur in
order to avoid or reduce damage costs, for example, the cost of
driving farther to find an unpolluted beach. Transaction costs repre-
sent the resources consumed in making and enforcing policies and
regulations, such as the costs of monitoring air pollution. Abatement
costs are those associated with reducing the amount of environmental
degradation, such as the cost of sewage treatment plants. Damage,
avoidance, and transaction costs are discussed in this section, abate-
ment costs in the next.
Damage Costs
Our present high level of environmental concern grew from a rec-
ognition that pollution was damaging man and nature. The damages
occur when a pollutant is not stopped at its source or successfully
avoided after it has been released. Damage costs include damage to
health, to vegetation, and to materials; the costs of repairing such
damages; the destruction of ecosystems; and the loss of aesthetic,
recreational, and other environmental amenities.
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GUIDELINES AND REPORTS
1027
*--•
i: Eft""!!?.
< UNSAFE
* FOR
^ SWIMMIN
"Unsafe for swimming" is
an example of damage costs.
«A&i;|' -V' '-'^f
Many damage costs represent a loss of tangible resources—the
medical care required to treat pollution-caused illness, for example,
and the cost of cleaning clothes or painting houses more often.
These are the costs most often estimated and reported as pollution
damage costs, and they are usually measured in terms of the market-
place value of the resources destroyed or consumed.
In addition to these tangible costs, there are various intangible
damage costs—the anxiety created by congestion, risks to health and
safety, the aesthetic blight of a strip development, the unpleasantness
of foul odors, and the annoyance of excessive noise. Often called
psychic costs, they embrace the range of annoyance and other
psychological costs associated with environmental degradation beyond
the value of any physical resources damaged. Often they are matters
of preference, and their importance is not usually measured accu-
rately by the marketplace. The fact that these psychic costs do not
consume tangible resources does not make them less important.
A human want that does not directly consume a tangible resource is
no less important than one that does.
Many types of environmental damage will create both tangible
and intangible costs. By damaging health, air pollution affects tan-
gible resources by causing lost production and by consuming equip-
ment, supplies, and the time of highly skilled manpower required
to restore good health. The illness, as well as the threatened loss of
income security, may also arouse anxiety and fear in the individual
and his family and friends. These are some of the psychic costs of
air pollution—costs that are rarely included in damage estimates.
Although probably comprising a significant portion of total dam-
age costs, psychic costs, unfortunately, cannot be accurately quanti-
75
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1028 LEGAL COMPILATION—SUPPLEMENT n
fied. Further, they change over time. Opinion surveys indicate that
the degree of concern about such problems as air and water pollu-
tion has increased substantially in less than a decade (see Figure 2).
In the past, people were less aware of the extent and dangers of
environmental degradation and had less interest in the amenities
offered by a clean environment. Even as we improve our environ-
ment, the psychic costs may be higher than before because of this
hightened concern.
Avoidance Costs
Often ignored in environmental analyses, the most common method
of reducing damage costs in the past was simply to avoid the pollu-
tion. One way to do this is to erect a barrier between people and pol-
lution—building a fence to hide an ugly landscape or installing a
window unit which hums to mask street noises. Coating low-voltage
electrical contacts for electronic devices with gold, platinum, and
other precious metals to avoid the effects of air pollution cost over
$20 million in 1968, and the devices are often kept in specially air-
conditioned rooms at an additional estimated annual cost of $25
million.1
A second way of avoiding pollution is to move away from it. If a
nearby lake becomes polluted, forcing people to drive farther to swim,
the extra travel costs are avoidance costs.
The damages caused by aircraft noise can be reduced by moving
residential and other incompatible land uses away from airports, as
is being done in Los Angeles. A study of eight other airports indicates
that this kind of operation would cost between $1.3 billion and $1.6
billion per airport.2
There are many reasons for the rapid movement to the suburbs
over the past 3 decades, for example, a desire to avoid crime or to
obtain better educational opportunities. To a lesser extent, this flight
also demonstrates a desire to escape the pollution, noise, and ugliness
pervading many cities. The migration has cost us dearly—financially,
socially, and environmentally—and these costs are partially environ-
mental avoidance costs.
Avoidance costs are often ignored because tney are generally very
hard to estimate. In most cases an action is taken for several reasons,
only one of which is to avoid pollution. It is difficult to know what
value to assign to each reason. The window hummer and the electric
switch plating examples mentioned earlier are relatively rare exam-
ples of pure avoidance costs. A clothes dryer is more typical. Clothes
dryers are a convenience. The wash does not have to be carried out-
doors, there is no need to wait for sunny days, and so forth. But
another reason for buying a clothes dryer is to avoid the soiling of
clothes dried outside. There is no way to estimate what proportion
76
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GUIDELINES AND REPORTS
1029
Breathing aids to overcome
emphysema aggravated
by air pollution are an example
of damage costs, both
tangible and psychic.
of the $690 million spent on clothes dryers in 1972 was to avoid pollu-
tion and what was to buy increased convenience.3
Some Cost Estimates—Damage and Avoidance Costs
Although substantial difficulties are involved in estimating damage
and avoidance costs, such estimates are required for informed policy-
making. We need to know both how high these costs are and how
much alternative environmental policies can reduce them. Tables 1
and 2 summarize some national estimates of air pollution damage
costs.4
The totals shown in Table 1, although significant in themselves, do
not tell the whole story. They exclude a number of important costs
because onjy a few damage cost studies have been completed. Most
significantly, the table does not reflect damages to health from auto-
mobile pollutants, and it includes only one measure of the psychic
costs of air pollution.5 Table 2 contrasts the 1968 estimates with
EPA estimates of damages in 1977 if air pollution had remained
uncontrolled.
Similar estimates for the costs of water pollution are not available.
However, Table 3 summarizes the results of several local studies,
indicating how damages are distributed among different costs. Typi-
cally these estimations combine damage and avoidance costs. For
instance, the damages reported from domestic and industrial use of
water may be damage costs—corrosion of equipment, extra soap
required, etc., or they may be avoidance costs—the cost of treating
intake water to prevent damage from occurring. Similarly, the recrea-
tion costs typically include both recreation foregone, a damage cost,
77
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1030 LEGAL COMPILATION — SUPPLEMENT n
Table 1 ^ " '
Estimated National Air Pollution Damage Costs for 1968
[In billions of dollars]
Type of cost Annual cost
Damage costs
" Materials damage . • '$4.8
! OaWWet-O crop*- ' , s.l
Cleaning of soiled materials (I)
. Damage to human health < 6.1
Damage to animal heajth (*}
Reduced property values « 5.2
Other (")
Avoidance costs , (')
1 Includes damages to approximately SO materials thought most susceptible to
air pollution deterioration.
> Includes direct visible damages affecting the yield, quality, or marketability of
field crops and forests,
> Not estimated.
* Includes estimated expenditures on treatment and prevention of illnesses
caused by air pollution (in excess of the primary air standards) plus income tost
because of morbidity and early mortality,
I AH housing units within SMSA's.
Source; Larry 9, Barrett and Thomas E, Waddell, The Cast of Air Pollution Dam-
ages: A Status Report (Research Triangle Park, H.C.: Environmental Protection
Agency, 1973J
Table 2
Estimated National Air Pollution Damage Costs
with No Pollution Control 1968 and 1977
[In billions of dollars]
Damage class «1968 * 1977
Health $6.1 $9,3
. , Residential property S.2 8.0
! 4.9, ., , 7.5
Totat $16,2 $24,9
| tn 1968 dollars.
Mn 1970 dollars.
Sources: Larry Barrett and Thomas Waddell, The Cost of Air Pollution Damages:
A Status Report (Research Triangle Park, N,a; Environmental Protection Agency,
1973); Environmental Protection Agency. T6e Economics of Clean Air, Senate
Document No. 92-67 (Washington: Government Printing Office, 1972}
78
-------
Table 3
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-------
1032 LEGAL COMPILATION—SUPPLEMENT n
and the extra cost of participating in recreation at another site, an
avoidance cost.6 All the reported studies of water pollution costs em-
phasize the importance of lost recreational opportunities. A study
of the Delaware River estuary estimated that recreation accounted
for virtually 100 percent of the net benefits of water pollution control
for water quality goals ranging from low to very high.7 However,
the relative importance of any one category varies substantially,
depending upon the economic characteristics of a region, the environ-
mental characteristics of a body of water, and the methodologies em-
ployed in a study.
The Question of Incidence
Given our lack of data about the magnitude of damage and
avoidance costs, no definitive statement can be made about how
pollution affects various income groups. Data from selected cities
indicate that the urban poor are subjected to somewhat higher than
average pollution levels. Figure 1, based on information contained
in our 1971 Annual Report, shows this relationship for three cities.
A similar pattern was found in a more recent study of New York
City.8 In analyzing emissions generated throughout the metropolitan
region, however, it concluded that over this broader area there are
significant differences because the poor tend to be concentrated in
the more highly polluted central city, and the more wealthy tend
to live in the less polluted suburbs.
All these data refer only to ambient air pollution levels at the
place of residence and thus do not take account of two important
factors affecting the real incidence of the pollution. The first factor
is that the more wealthy, living in their air-conditioned homes, cars,
and offices, avoid some of the pollution. The second, which partially
offsets the first, is that medium- and higher-income people commonly
commute from their suburban homes to their jobs in the more
polluted central city and therefore are exposed to more pollution than
these data, which refer only to location of residence, would indicate.9
We must also remember that the more wealthy have to pay for
their efforts to avoid pollution. Window hummers, air conditioning,
and commuting from the suburbs all cost something. The wealthy
may on the average be exposed to less severe pollution but at higher
avoidance costs.
Other forms of environmental degradation also impact upon dif-
ferent income groups. Table 2 indicates that a high proportion of
water pollution damage costs relates to lost recreational opportunities.
Again, the wealthy may spend more to avoid these costs by substitut-
ing other recreational activities or by driving miles to swim at cleaner
beaches. Realistically, the central city poor do not have the latter
option. Their only alternative may be to use partially polluted waters
80
-------
GUIDELINES AND REPORTS
1033
Figure 1
Incidence of Air Pollution in Three Cities
£ 100
T.E
OJ 00
•
50
Suspended Particulates
— SAINT LOUIS
KANSAS CITY """""
"—...._ (....WASHINGTON, D.C.
5,000
10,000 15,000
Income (dollars)
20,000
25,000+
1.0
£8
Sulfation
_SAINT LOUIS
WASHINGTON, D.cT
5,000
10,000 15,000
Income (dollars)
20,000
25,000
Source A. Myrick Freeman III, "Distribution of Environmental Quality," in Allen
Kneese and Blair Bower Environmental Quality Analysis (Baltimore- Johns Hookms
Press, 1972), p. 265
nearby or not to swim at all. Therefore, it is they who may benefit
most from water pollution control.
On the other hand, the poor tend to participate less in environ-
mentally intensive activities such as swimming, boating, and hiking.10
This may reflect differences in preferences (there may be a high
income elasticity for such activities) or differences in opportunity
(because of access problems, equipment requirements, etc.). In either
case, lower-income groups may benefit less from some of the pro-
grams to reduce environmental degradation. The poor have many
other immediate concerns—obtaining a reasonable income, sufficient
food, and adequate housing. They are likely to be relatively less con-
cerned about such considerations as preserving wilderness areas. Nev-
81
-------
1034
LEGAL COMPILATION—SUPPLEMENT n
ertheless, public opinion surveys do indicate that the poor, along with
everyone else, are environmentally concerned, and increasingly so
(see Figure 2).
Clearly, we cannot arrive at any firm conclusions about the in-
cidence of damage costs. The poor are apparently exposed to some-
what more serious environmental degradation but are slightly less
concerned about it. They participate less in environmentally intensive
activities, perhaps only because they have less opportunity.
Figure 2
Environmental Concern by Income Level *
Percentage
100-1
80 -
60 -
40 -
20 -
Water
Pollution
Percentage
100-,
Air
Pollution
1965
1970
1965
1970
1C- $5,ooO
$5,000-$15,000
than
Income Range
1 Responses to the question: "Compared to other parts of the country, how serious,
in your opinion, do you think the problem of (air or water) pollution is in this area —
very serious, somewhat serious, or not serious?" the figure gives the percentage of
those responding "very serious" or "somewhat serious."
Source: Opinion Research Corporation
82
-------
GUIDELINES AND REPORTS 1035
There is even less information about the incidence of avoidance
costs, but even so, it seems safe to observe that they are borne mostly
by the rich, though not necessarily in proportion to income. The rich
can afford to pay these costs. The poor, having so many other basic,
unfulfilled needs, cannot.
Transaction Costs
Transaction costs are often ignored in policy analysis. They are
the costs of research, development, planning, monitoring, and en-
forcement needed to achieve environmental goals and standards.
A large portion of Federal expenditures on environmental pro-
grams is for transaction costs (see Table 4).11 The largest part of
these expenditures is allocated to research and development required
to establish environmental goals and policies.
Significant amounts are also required to monitor the air, streams,
lakes, and other parts of our environment to determine pollution
levels and to measure the effectiveness of our environmental policies.
Emissions and effluents from factories and other point sources must
also be monitored to determine if control requirements are being met.
It is estimated that there are between 70,000 and 100,000 major
air pollution point sources, each emitting over 25 tons of any one
pollutant annually.12 A single measurement and analysis of the emis-
sions from one smoke stack can cost up to $5,000. Clearly, the task
of monitoring these emissions is massive, even if done only intermit-
tently. And this does not include the ambient monitoring for the 247
83
-------
1036
LEGAL COMPILATION—SUPPLEMENT n
air quality control regions, the 269 river basins, and the thousands
of lakes and coastal areas. Although current Federal law requires
self-monitoring by polluters, substantial monitoring still must be
conducted by the Government. These costs, as well as the costs of
planning and administration, will have to be paid by state and
local governments.
A final element of transaction costs, unreported in Table 4, is the
cost of preparing environmental impact statements as required by
NEPA and by several state laws (see Chapter 5, Perspectives). A
proper, well-supported environmental impact statement costs both
time and money to produce. But good, thoroughly analyzed decisions
which intelligently and carefully balance the many conflicting values
of our society are never cheap. These impact statement costs, how-
ever, are likely to be saved many times over in terms of reduced dam-
age, avoidance, and abatement costs and possibly in reduced delays in
development projects requiring public review, public hearings, or
court actions.
Abatement Costs
The costs of abating pollution usually dominate any discussion of
environmental economics. But despite its familiarity, the term "abate-
ment" remains imprecise, and numerical estimates often appear in-
consistent or contradictory. More often than not these vagaries trace
back to differences in cost definition and in underlying assumptions.
Sampling participates for an air pollution study is an example of transaction
costs.
84
-------
GUIDELINES AND REPORTS
1037
Whatever the cause, the resulting confusion hampers simple com-
parison and sophisticated analysis alike.
A complete definition of abatement costs would include noncash
costs as well as cash expenditures required to reduce discharges of
contaminants. It would also cover adjustments for items such as by-
product revenues, productivity changes, financing methods, tax pay-
ments, and the like. In general, the figures cited in this section may
be more accurately termed gross abatement expenditures because they
do not fully or consistently take these factors into account.
Despite these shortcomings, this section assembles historical and
projected abatement cost estimates in the public and private sectors
for air and water pollution control, solid waste management, radia-
tion and noise control, and strip mine reclamation. Estimates are
projected abatement cost estimates in the public and private sectors
and then are projected in terms of existing environmental quality
goals. The final subsection assesses how these costs, ultimately ap-
pearing as higher product prices or increased taxes, are distributed
across different income levels.
To abate thermal water pollution, many utilities are constructing cooling
towers.
85
-------
1038 LEGAL COMPILATION—SUPPLEMENT n
Expenditure Trends—an Historical View
Although widespread public concern over environmental problems
is recent, many sectors of the economy have for some time been spend-
ing considerable amounts on pollution abatement. Trends in these
expenditures are important indicators of progress in environmental
improvement. They also show the relative importance of environ-
mental expenditures vis-a-vis other spending priorities.
Public Sector—Public sector spending for abatement and manage-
ment activities—Federal, state, and local—has generally increased in
all categories, although wide variations may be noted.
State and local spending is primarily for water pollution control
(sewers and sewage treatment plants) and for solid waste collection
and disposal. Expenditures for air pollution control for state and
local facilities are relatively small, less than $100 million in 1971.13
This is because of the limited number of significant emission sources,
chiefly municipal solid waste incinerators but also government office
buildings.
Year-by-year municipal investment for waste water collection and
treatment facilities from fiscal years 1958 to 1971 is summarized in
Figures 3 and 4. As Figure 3 shows, total capital spending rose from
about $600 million in 1958 to over $1.7 billion by 1971. Although
annual capital expenditures jumped by over 150 percent in current
dollars, the increase was less than 50 percent in constant dollars.14
Further, as Figure 4 indicates, per capita constant dollar investment
changed little over the last 14 years. Several factors have caused devi-
ations from the general trend, including changing credit market
conditions and new water pollution legislation. The upturn of the
last few years in part reflects new Federal enforcement actions and
construction grant commitments, which often take several years to
translate into construction outlays.
Environmental expenditures include not only pollution control but
also recreation (maintaining, operating, and developing public
parks, swimming pools, etc.) and resource conservation and develop-
ment (forestry, soil and water conservation, fisheries and wildlife
management). Figure 5 shows that total expenditures (including
capital and operating costs) in current dollars for these categories
more than doubled in 12 years, from just under $3 billion in 1958
to about $7 billion in 1970. Waste water treatment remains the largest
single item, accounting for more than $3 billion or 36 percent of the
annual total. Recreation is second, at slightly over 25 percent, and
solid waste management and conservation and development each
account for about 20 percent.
The 1971 environmental expenditures of about $7.8 billion repre-
sented approximately 5.3 percent of total state and local expenditures,
down from 6.7 percent in 1958. This small drop indicates at the
86
-------
GUIDELINES AND REPORTS
1039
very least that increasing emphasis on environmental management
has not yet been an overwhelming burden for state and local
governments.
On the Federal level, pollution abatement spending has risen at
a rapid rate over the past several years. Figure 6 shows that the out-
lays on pollution control and abatement activities rose at an average
annual rate of 26.4 percent from fiscal year 1969 to fiscal year 1973.
Construction grants to states and municipalities for waste water treat-
ment facilities are the largest single budget item in Federal abate-
ment spending.
Private Sector—The industrial sector has for many years devoted
resources to pollution control, although past spending levels have
been inadequate to meet present environmental standards. Unfortu-
Figure 3
State and Local Investment for Waste
Water Collection and Treatment
Facilities for 1958-1971
Billions of dollars
2.0 -|
1.5 -
1.0 -
Current Dollars
Constant Dollars
(1957-1959 base)
—I—
1964
1958
1960
1962
—1
1966
—I
1968
1970
1
1972
Source: Department of Commerce, Bureau of the Census, Government Finances
(Washington: Government Printing Office, 1958-1970/71); constant dollars calculated
with Environmental Protection Agency, Office of Water Program Operations, "Sewer
Treatment Plant and Sewer Construction Cost Index" (undated and unpublished
index)
87
-------
1040
LEGAL COMPILATION—SUPPLEMENT n
Figure 4
Per Capita State and Local Investment
for Waste Water Collection and
Treatment Facilities for 1958-1971
Dollars
10 -i
8 -
4 -
2 -
Current Dollars
Constant Dollars
(1957-1959 base)
1958
I
I960
1962
1964
I
1966
1968
1970
1972
Source: Department of Commerce, Bureau of the Census, Government Finances
(Washington: Government Printing Office, 1958-1970/71); constant dollars calculated
with Environmental Protection Agency, Office of Water Program Operations, "Sewer
Treatment Plant and Sewer Construction Cost Index " (undated and unpublished
index)
nately there is no consistent and comprehensive estimate of past
investments or operating expenditures which allows us to judge prog-
ress relative to current environmental requirements.
Some information on recent private industry outlays is available
through the McGraw-Hill annual survey on pollution control invest-
ment spending (see Figure 7). According to McGraw-Hill, private
investment in air and water pollution control facilities has been
growing at a 32.2 percent annual rate from 1967 to 1973 in current
dollars, or 26.5 percent in constant dollars. Figure 8 contrasts this
growth rate with the 9.4 percent growth rate for all industrial plant
and equipment expenditures. Despite this upsurge, pollution control
equipment will account for less than 6 percent of total investment in
plant and equipment in 1973.
As Figure 7 shows, the McGraw-Hill survey found slightly higher
spending for air pollution than for water pollution. During the
1970-73 period, industrial air pollution investment averaged around
88
-------
GUIDELINES AND REPORTS
1041
Figure 5
State and Municipal Expenditures for
Environmental Purposes 1958-1971
Billions of dollars
8.0 -T
7.0 -
6.0 -
1.0
Sewage Collection and Treatment
1958 1959 1960 1961 1962 1963 1964 1965 1966 1967 1968 1969 1970 1971
Source: Department of Commerce, Bureau of the Census, Government Finances
(Washington: Government Printing Office, 1958-1970/71)
56 percent of the total. The latest survey shows that for the first time
water pollution investment in 1973 is rising more rapidly than that
for air pollution. This may be attributable in part to passage of the
Federal Water Pollution Control Act Amendments of 1972.
It is likely that McGraw-Hill's reported abatement expenditures
are overestimated through the inclusion of spending that is not di-
rectly related to pollution control. It is particularly difficult to pin-
point expenditures for pollution abatement in a new plant. For
example, when a paper manufacturer builds a new plant using the
sulfate process instead of the more water pollution-intensive sulfite
process, his decision may be based primarily upon the basic economics
of the process and only incidentally upon its pollution characteristics.
Clearly, some part of the investment should be charged to abatement,
but in practice cost allocations tend to be arbitrary. Furthermore,
although decisions to change equipment and processes to curb pollu-
tion may also lead to increased productivity, all those investment
89
-------
1042
LEGAL COMPILATION—SUPPLEMENT n
Figure 6
Federal Pollution Abatement Outlays for
Fiscal Years 1969-1973 and Estimated
Fiscal Year 1974
Billions of dollars
3.0 1
2.0 -
1.0 -
1969
1970
Source: Office of Management and Budget, Budget of the United States Govern-
ment, Special Analysis (.Washington: Government Printing Office, 1971-1974)
costs may be attributed to pollution control. Finally, pollution con-
trol sometimes generates byproduct revenues which may or may not
be credited against the pollution control costs.
Estimates of Future Abatement Expenditures
Total Costs—Past spending patterns provide some basis for eval-
uating future expenditure needs. Many areas of environmental con-
cern, however, are historically uncharted. Table 5, which updates
90
-------
GUIDELINES AND REPORTS
1043
Figure 7
Industrial Pollution Control Investment
for 1967-1972 and Estimated 1973
Billions of dollars
7.0
6.0 -
5.0 -
4.0 -
3.0 -
1.0 -
Total
1967 1968 1969 1970 1971 1972 1973
Source: McGraw-Hill Publications Co., Annual McGraw-Hill Survey of Pollution
Control Expenditures (New York: McGraw-Hill Publications Co., 1973)
a table from the 1972 Annual Report, details a number of areas of
concern. The components of Table 5 are explained below with
reference to past performance whenever possible.
Last year's caveats still hold true. When possible, this year's esti-
mates have been improved, but the data are still based on many dif-
ferent engineering and economic studies using differing assumptions
and methodologies. Byproduct revenues, estimated equipment life,
allocation of process change costs between pollution control and
productivity enhancement, and numerous other factors are not dealt
with uniformly.
Above all, there is much uncertainty about the cost impact of
several environmental regulations that have not yet taken effect.
In particular, the effect of the Federal Water Pollution Control
Act Amendments of 1972 cannot yet be fully evaluated, at least parti-
ally because the Environmental Protection Agency is in the process of
91
-------
1044
LEGAL COMPILATION—SUPPLEMENT n
Figure 8
Total Plant and Equipment Investment
and Total Pollution Control Investment
for 1967-1972 and Estimated 1973'
Index number
600
500 -
400 -
300 -
200 -
100
Total Pollution '
Control Investment /
Total Industrial
Plan and Equipment
Investment
1967
1968
1969
1970
1971
1972
~1
1973
1 Based on an index of 100 for 1967.
Source: McGraw-Hill Publications Co., Annual McGraw-Hill Survey of Pollution
Control Expenditures (New York: McGraw-Hill Publications Co., 1973)
defining "best practicable technology" for treatment facilities that in-
dustry must provide by mid-1977. And although air standards are
more clearly denned, the cost effects of their implementation by 1975-
77 are still uncertain.
The format of Tables 5 and 6 has been altered this year, but they
still convey essentially the same information. Capital investment is
no longer listed for individual years and is replaced by operating and
maintenance costs. This change was made for two reasons: First,
capital investment requirements have been overemphasized in rela-
tion to operating costs in the past. This emphasis is not borne out
by analysis. Figure 9 illustrates this point. For the three major cost
categories, operating and maintenance costs run from 40 percent of
cumulative total costs for water pollution abatement to nearly 70
percent for air pollution and over 90 percent for solid wastes. Indeed,
after the economy passes through the initial period of heavy environ-
92
-------
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-------
1046 LEGAL COMPILATION—SUPPLEMENT n
Figure 9
Operating and Maintenance Costs and
Capital Charges for Pollution Abatement
Facilities as a Percentage of Total Costs
for 1972-1981
Percent
100
80
60
40
20
-
69.3%
30.7%
40.8%
59.2%
93.3%
6.7%
AIR
WATER
SOLID WASTE
J Operating and Maintenance
I I Capital Charges
mental investment requirements, operating costs will probably out-
weigh investment even further.
Investment varies considerably from year to year in the 10-year
period examined here. Single-year estimates at each end of the
range are uncertain and may be very misleading. Cumulative capital
investment is less susceptible to this problem and has been retained.
Most important, the final column of both summary tables—
"cumulative annual costs"—differs significantly in concept from last
year's final cash flow column. Both sets of figures have three elements
in common: operating and maintenance costs, interest, and capital
expenditures. The difference lies in the treatment of capital expendi-
tures. Last year's figures included capital expenditures on a cash
outlay basis; this year capital outlays are counted only as the invest-
ment depreciates over time. Thus the full amount of capital invest-
ment to be made in the coming decade does not show up in the final
columns of Tables 5 and 6. Only the part of the investment that is
depreciated during that period is included. On the other hand, last
94
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GUIDELINES AND REPORTS 1047
year's cumulative estimates did not count capital charges on invest-
ments made prior to 1970. The 1973 summary tables attempt to
capture depreciation on past investments whenever possible. Al-
though the definition differs from last year to this, the figures describe
the same process, are nearly the same magnitude,, and are roughly
comparable. It should be pointed out that the final cumulative annual
cost column is the sum of cumulative operating and maintenance
costs (shown) and cumulative capital charges (not shown). The
capital charges column which is not included is easily derived from
the information presented.
Air Pollution—The bulk of all air pollution control outlays is
private spending to control emissions from mobile and stationary
sources. The relatively small public control outlays are limited to
expenditures for Federal facilities and municipal expenditures for
solid waste incineration. All estimates reflect the costs of meeting
existing standards established under the Clean Air Act as amended
in 1970. Where state standards are more stringent, costs will rise.
Detailed assumptions underlying the data are found in the 1973
edition of The Economics of Clean Air, published by the Environ-
mental Protection Agency. Costs for aircraft emission control have
been included in the mobile source category, but these figures are
small when compared to automobile controls.
The 10-year estimate of cumulative investment for stationary
sources has dropped slightly from last year. The principal reason
for this is a reestimation of control needs for steam electric generating
plants based on state air pollution control implementation plans
submitted to EPA during the past year. Investment for mobile source
control is also slightly lower because of the 1-year postponement of
the 1975 auto emission standards and the promulgation of interim
1975 standards. Further, estimates of control costs for meeting the
1976 nitrogen oxides standard have been revised downward. The
reduction in investment is generally more than offset by higher operat-
ing costs. For mobile sources, the increased operating costs result pri-
marily from an increase in the expected price of gasoline. For sta-
tionary sources, the increased operating costs result primarily from
an increase in the expected reliance on low sulfur fuels for steam gen-
erating plants.
Water Pollution—This year's estimates include abatement ex-
penditures by municipalities and industries to meet the requirements
of the Federal Water Pollution Control Act Amendments of 1972
Under this law, municipalities must provide secondary sewage treat-
ment and industry must install the "best practicable" control tech-
nology by 1977. Federal spending includes funds to upgrade Federal
facilities, including naval vessels. EPA construction grants to munic-
ipalities are included under the state and local category along with
municipal matching funds. These costs cover treatment plants, inter-
ceptor and collecting sewers^ pumping stations, and associated out-
95
-------
1048 LEGAL COMPILATION—SUPPLEMENT n
falls. A small amount of private investment in sewers is included in the
state and local total.
Estimates for municipal expenditures were derived from data
supplied by the Environmental Protection Agency. These figures
clearly indicate the sharp rise in municipal water quality spending
that will be necessary during the remainder of the decade. The
average annual expenditure for the 1972-80 period (in 1971 dollars)
will be around $7.5 billion, compared to an average of about $2.4
billion (1971 dollars) for the past 10 years. The municipal burden,
however, is lessened by the Federal construction grant program
for waste treatment projects.
Estimates for industrial expenditures were taken from a recent
study prepared for EPA, updating and revising previous projections.15
This study employed improved estimation techniques and surveyed a
considerably wider range of plants in each industry than had been
attempted before, although several of the smaller water-using indus-
tries were not considered. These current estimates were based upon
"best guess" assumptions about the technology that will be required
by 1977. Because these requirements have not yet been defined,
the figures presented must be regarded as preliminary.
Despite changes in technique, coverage, and standards, total ex-
penditures for manufacturing firms have changed little from last
year's estimate. The similarity in aggregate figures, however, masks
significant changes in the industrial mix of expenditures. And the
most recent cost estimates for public utility companies show a rather
large rise. Because of the differences in estimation cited above, it
is not possible at this time to isolate the cost effects of the Federal
Water Pollution Control Act Amendments of 1972.
Solid Waste—Estimates include the collection and disposal of resi-
dential, commercial, municipal, and industrial wastes. Public sector
costs include only those facilities which are owned and operated by
municipalities. The private sector includes costs incurred by refuse
companies and by firms disposing of their own wastes. The cost data
through 1981 include adjustments for increased population and waste
collection and for upgrading landfill areas.
These estimates are substantially below those reported for earlier
years but are consistent with data collected by the Bureau of the Cen-
sus for municipal expenditures on solid waste handling.16 The reduc-
tion from last year is primarily attributable to reduced estimates of
per capita waste generation resulting from recent EPA material bal-
ance analyses. Per unit collection and disposal costs have been in-
creased somewhat to reflect 1972 conditions.
It should be noted that any national cost estimates for solid waste
management are very uncertain because of a lack of adequate data
and that aggregate costs are very sensitive to changes in per capita
generation estimates. Thus, the figures presented here should be con-
sidered only tentative. Further, the reduction in these estimates does
96
-------
GUIDELINES AND REPORTS 1049
not imply that the solid waste problem is any less serious than it was
previously thought to be. Many localities and regions face very dif-
ferent economic and environmental problems in attempting to dis-
pose properly of their wastes, and local difficulties are not adequately
reflected in national figures.
Not included in these estimates are the costs of managing agricul-
tural and mining wastes, junk autos, and construction debris.
Noise—There are no comprehensive estimates of the cost of
lowering noise to more acceptable levels, but preliminary estimates
have been made for reducing noise from existing commercial jet air-
craft. A Department of Transportation study estimates that retrofit
noise control equipment could be installed for $0.4^1.6 billion.17 Op-
erational changes involving flight paths and scheduling may also be
effective in reducing noise.
Progress on aircraft noise reduction has been slow, principally be-
cause of safety considerations, but completion of a special EPA study
and proposed new aircraft noise regulations are expected shortly.
At present, noise standards apply only to new aircraft (see Chapter 5,
Perspectives). This cost is not added into the totals of Tables 5 and
6.
Radiation—In December 1970 the Atomic Energy Commission
amended its earlier regulations to require that releases of radioactive
material from power reactors be kept to "as low as practicable"
levels although quantitative guidelines for meeting this criterion were
not specified.18 These guidelines are currently being established and
will change present standards for reactor design and operation.
To meet these revised standards, additional air and water effluent
controls must be installed in each plant. The incremental cost of these
systems is now estimated at $1.2 billion in capital expenditures to
modify both the reactors currently in operation and those to be con-
structed during the coming decade.
Land Reclamation—Half of all coal and almost all nonfuel ma-
terials are mined with surface techniques. Surface mining, if uncon-
trolled, disrupts wildlife, pollutes water through sediment and acid
mine drainage, and leaves large areas despoiled and useless. The
pending Mined Area Protection Act would establish stringent Federal
performance standards for mining and reclamation activities operat-
ing under required state permits.19 These performance standards
would require restoration of mined lands to the original topography
and vegetation and stabilization of soil and water conditions. They
would strictly limit the dumping of spoils down hillsides and require
that reclamation be carried out concurrently with mining.
The costs presented in Table 5 are based upon estimates of $0.20
per ton of surface-mined coal for 1972-73, $0.50 per ton for 1974-81
(as reclamation is expanded), and $2,000 per acre disturbed for non-
97
-------
1050
LEGAL COMPILATION—SUPPLEMENT n
fuel surface mining.20 There is no estimate of the cost to correct past
damage. These are rough estimates at best, but the result lends per-
spective to the probable costs of high-quality land reclamation.
Cumulative Costs—As explained previously, this year's cumula-
tive annual cost figures are roughly comparable to last year's cumu-
lative cash flow. The $274 billion total shown in Table 5 is not sub-
stantially different from the 1972 estimate of $827 billion, especially
when 1 year's inflation is taken into account. Although estimates
for the major components of the total have changed substantially, the
final summation is virtually the same.
Figure 10 breaks down total annual costs by sector and category.
Figure 10
Distribution of Total Environmental
Expenditures 1972-1981 i
O Public
37%—$101.5 billion
O, Private
63%—$172.7 billion
1 Figures do not total due to rounding
98
-------
^
Table 6
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-------
1052
LEGAL COMPILATION—SUPPLEMENT n
The private sector will bear nearly two-thirds of the total costs of
pollution abatement over the next 10 years. Private air pollution
abatement and public (municipal) water pollution abatement are
the two largest single items at 36 and 28 percent, respectively.
Incremental Costs—Total costs are an important indication of the
level of resources that the Nation devotes to preventing environmen-
tal degradation, but they do not focus on those factors of primary
importance to the decisionmaker—the extra costs associated with new
programs to improve environmental quality. The figures in Table 6
estimate the incremental costs of meeting new environmental quality
standards through 1981.
Incremental costs are defined as any costs above those that would
be incurred in the absence of recent Federal environmental initia-
tives. Last year the 1970 level of expenditures was used as the base-
line. This year a more meaningful measure has been developed.
The complexity of the baseline calculation ranges from an extrap-
olation of population growth and per capita waste generation in
the case of solid waste to an estimate for municipal waste water
Figure 11
Estimated Cumulative Baseline and
Incremental Control Expenditures for
1972-1981
Billions of dollars
120 r
100
80
60
40
20
-
$89.8
$15.8
$54.1
$67.2
1
1 Incremental
1 Baseline
$3.7
$38.1
AIR
WATER SOLID WASTE
100
-------
GUIDELINES AND REPORTS 1053
treatment involving trends in per capita water usage and population
served by sewage systems.21 Subtracting these baseline estimates in-
dicates that about 55 percent of total abatement costs expected dur-
ing the coming decade is estimated to be in addition to expenditures
that would have been undertaken in the absence of Federal initiatives.
The baseline change lowers the cumulative incremental invest-
ment reported, despite the effects of the Water Pollution Control Act
Amendments of 1972. Although the total water pollution control
investment is $28 billion higher than last year's estimate, there is no
increase on an incremental basis. This is because the new definition of
baseline expenditures is much higher—reflecting the fact that munic-
ipalities would invest at increasing rates even without new legislation.
The relative contributions of baseline and incremental costs to the
totals are shown by major cost category in Figure 11.
Figure 12 illustrates the breakdown of cumulative annual incre-
mental costs by category. A much larger proportion of incremental
than total costs accrues to the private sector: 81 percent, compared to
63 percent. And private air pollution abatement costs are by far the
largest item—53 percent on an incremental basis.
Financing Methods and Incidence
The various costs associated with environmental improvement in
either the public or private sector are ultimately transferred to the
public in one of five ways—through higher taxes, higher prices, lower
income, changed consumption patterns, or less consumption. These
financing mechanisms may have quite different implications in terms
of their impact on income distribution.22
Public Sector—Most public abatement costs are financed out of
general revenue taxes (either directly or through bond issues repaid
out of general revenues) or through service charges for waste water
and solid waste collection and disposal. How these costs are distrib-
uted among the citizenry depends upon the level of government
making the expenditure and its particular tax system. The Federal
Government receives most of its general revenues from personal
income taxes, corporate profits taxes, and indirect business taxes (ex-
cise taxes, etc.). State governments depend more on sales, corporate
profits and franchise, and income taxes. Some larger municipalities
also levy sales and income taxes, but they generally rely on the prop-
erty tax. Figure 13 indicates the incidence of four of these taxes by
showing how $1 billion in revenues from each type of tax would affect
different income levels.23
Local governments may also finance environmental expenditures
by raising their charges for such municipal services as collecting and
disposing of solid wastes and sewage. To the extent that these charges
are based upon use of the services, they tend to impact lower-income
101
-------
1054 LEGAL COMPILATION—SUPPLEMENT n
Figure 12
Distribution of Cumulative Incremental
Environmental Expenditures 1972-1981 '
Solid Waste .9%
Solid Waste 1.1%
19%—$29.0 billion
O
Private
81%—$152.7 billion
1 Figures do not total due to rounding.
groups proportionally more than higher-income groups because the
amount of such wastes generated does not vary significantly with
income. Figure 14, for instance, shows the incidence of a sewer charge
levied on the basis of water consumption and as a surcharge on the
property tax. The incidence of the charge based on water consump-
tion is virtually equivalent to the incidence of a head tax.
Many local expenditures are also financed by grants received from
higher levels of government. These grants apply in particular to
capital investments for waste water collection and treatment. Some
local and state planning, administration, monitoring, and enforce-
ment costs are subsidized by the Federal Government, and sub-
102
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GUIDELINES AND REPORTS
1055
sidles have been available for solid waste research and demonstra-
tion projects. Such Federal subsidies tend to make the distribution
of the costs more progressive because Federal taxes are more progres-
sive than most state and local taxes. However, as is discussed
later, those subsidies may also tend to bias decisionmaking in such
a way as to lead to inefficient abatement programs.
Finally, governments at all levels may respond to the need for
increased environmental expenditures by cutting other programs or
by postponing programs and expenditures that they would otherwise
have undertaken. The distributional implications depend entirely
upon which expenditures are reduced or postponed and how they
Figure 13
Relative Incidence of a $1 Billion Tax
Increase as a Percentage of Family
Income
Percent
.30r
.20
.10
Federal Income Tax
0 10 20 30 40 50 60 70
Income
in thousands of dollars
Percent
.30r
-20
.10
General Sales Tax
(State and Local)
0 10 20 30 40 50 60 70
Income
in thousands of dollars
Percent
.30r
I
.20
.10
Property Tax
(State and Local)
State and Local
Income Tax
0 10 20 30 40 50 60 70
Income
in thousands of dollars
Source: Public Interest Economics Center, Inc.
10 20 30 40 50 60 70
Income
in thousands of dollars
103
-------
1056
LEGAL COMPILATION—SUPPLEMENT n
Figure 14
Incidence of a $1 Billion Service Charge
as a Percentage of Family Income for Waste Water
.6
-w 2
o
o
Surcharge
on Water Bill
Surcharge
on Property Tax
10
20
30
40
50
Income
in thousands of dollars
Source: Public Interest Economics Center, Inc.
would benefit different income classes. Because this tradeoff is rarely
made explicitly, it is impossible to assess.
Private Sector—Most abatement costs incurred by private firms are
passed on to consumers in the form of higher product prices. Previous
studies by the Council on Environmental Quality, the Environmental
Protection Agency, and the Department of Commerce have estimated
price increases in many of the industries expected to be most heavily
impacted by environmental regulations.24 For the most part, because
individual price changes are very small, it has not been possible to
analyze their impact on income distribution. The two major ex-
ceptions are automobiles and electric power. The distributional effects
of price rises for these commodities are shown in Figure 15. The in-
cidence of price changes for other commodities has been assumed,
in the aggregate, to be proportional to total consumption.
In some instances, private firms may temporarily finance pollu-
tion abatement by reducing their employment or by lowering profits.
But these actions are so overshadowed by the state of the general
economy and overall monetary and fiscal policy that it is not possible
to determine their effects with any degree of accuracy.
Private companies may have some of their abatement costs sub-
sidized by different levels of government. The Federal Government
104
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GUIDELINES AND REPORTS
1057
allows firms to claim accelerated depreciation on pollution control
equipment and facilities, which has the effect of reducing corporate
profit taxes.25 This subsidy is rarely used because it is less attractive
than alternative tax deductions available to firms.26 States and local-
ities often exempt pollution abatement investments from property
and other taxes. Table 7 lists the major state subsidies.
Private firms can reduce pollution control costs by financing abate-
ment facilities with tax-exempt industrial revenue bonds. Issued by
local governments, the bonds are used to finance the construction of
pollution abatement facilities which are leased to private companies.
A company then repays the interest and principal on the bond. The
bonds may be sold at rates lower than normal corporate bonds
because the interest payments are exempt from Federal income
taxation.27
Use of industrial revenue bonds to finance pollution control, begun
in early 1971, has grown rapidly. The total volume issued from 1971
through mid 1973 was nearly $1.5 billion.28 Although the bonds are
not a significant part of overall corporate financing, they are becoming
so for pollution control equipment. During 1972 about 10 percent of
air and water pollution control investment was probably financed
in this manner.
Figure 15
Incidence of Estimated Price increases
as a Percentage of Family Income for
Automobiles and Electricity 1976
E.6-
; .4-
a
B.2-
o
o
Automobiles
Electricity
10
20
30
40
50
Income
In thousands of dollars
Source: Public Interest Economics Center, Inc.
105
-------
Table 7
Government Subsidies for
Private Pollution Control Facilities by State, May 1973
State
Property
tax use tax tax
exemption exemption subsidies
Sales and Corporate Industrial
revenue
financing '
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon '
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
I
I
'The subsidies indicated may only be available for selected types of facilities in
some states.
2 Includes rapid amortization, income tax credits, franchise tax credits, etc.
3 Industrial revenue financing expressly authorized for private industry including
utilities.
' Can take exemption under corporate excise, personal income, or property tax.
Exemptions equal the percentage of cost allocable to current pollution control.
Sources: Tax Foundation, Inc.; Commerce Clearing House, Stale Tax Guide
(Chicago); The First Boston Corporation, Tax Exempt Pollution Control Financing (.New
York, 1973)
-------
GUIDELINES AND REPORTS 1059
Local governments may subsidize industry directly by providing
waste collection and disposal services, particularly for waste water
and solid wastes, at less than their real cost. To the extent that the
financing mechanism for these services is unrelated to the amount of
water generated, large waste-producing industries may be subsidized
by the rest of the population.29 It should be noted, however, that
such subsidies are not permitted under the 1972 amendments to the
Federal Water Pollution Control Act for facilities receiving Federal
construction grants.
The Overall Impact of Pollution Abatement
Beyond the initial cost effect of pollution abatement are the "rip-
ples" or secondary impacts that spread into other sectors of the
economy. These ripples have both negative and positive effects on
total economic activity. If a worker is laid off, for example, his in-
come falls and he consumes fewer goods and services. Thus the
grocer and the appliance dealer make fewer sales, the steel manu-
facturer produces less, the farmer plants less corn, and so on.
On the positive side, the demand for pollution abatement equip-
ment induces new investment and higher employment, creating
higher income and more spending. Then the grocer makes more
sales, the steel manufacturer produces more, and so on.
CEQ, EPA, and the Commerce Department have made several
attempts to quantify the cumulative sectoral impacts of pollution
control throughout the entire economy. The initial study, performed
by Chase Econometric Associates and described in the Third Annual
Report, showed minor overall impacts on the economy. Further
analyses have supported these conclusions.30
We have also estimated the aggregate effect on income distribution
of the anticipated 1976 incremental pollution control expenditures.
The results of these analyses are presented in Figure 16.31 The aggre-
gate impact of government financing is predominately progressive—
i.e., the wealthy pay proportionally more than the poor. The aggre-
gate impact of private financing is somewhat regressive—the poor
pay a higher proportion of their income than the wealthy. Combin-
ing public and private financing shows that in total the net incidence
of all incremental expenditures is slightly regressive.
Looking only at the medium-income family (the 50th income per-
centile), the diagram indicates that in 1976 this family can expect
to pay about 1.8 percent of its income (or somewhere in the range
of $250) for the incremental costs of abating air and water pollution
and for improving solid waste disposal. Approximately one-fourth of
this amount will be financed by increased taxes or service charges,
over one-third will represent the higher costs of owning and operating
automobiles, and the remainder will represent generally higher prices
for all consumption items.
107
-------
1060
LEGAL COMPILATION—SUPPLEMENT n
Figure 16
Incidence of Incremental Pollution
Abatement Costs as a Percentage of
Family Income 1976
2.0 —i
1.8 -
.8 -
.6 -
.4 -
.2 -
Increased Prices
Increased User Charges,
__ —"
Increased Taxes
20
40 60
Income percentile
Source: Public Interest Economics Center, Inc.
80
100
When these aggregate analyses are compared with one another
and with the partial analyses presented earlier, the preliminary data
indicate that the higher the proportion of costs financed by income
taxes at the Federal and state levels, the more progressive will be the
incidence; the higher the proportion of costs financed directly by
local governments or by industry, the more regressive will be the
incidence.
The distributional effects of pollution control expenditures should
not be a primary determinant for selecting a particular financing
scheme for environmental protection. First, these effects are small in
absolute terms. Second, there are better mechanisms available to deal
with income distribution problems. Third and most important, financ-
ing schemes such as user charges which place the abatement costs
directly on the generators of the pollution tend to result in a more
efficient allocation of resources. The total amount of pollution gen-
erated under such a scheme will be reduced because firms and indi-
108
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GUIDELINES AND REPORTS 1061
viduals will have an incentive to find ways of reducing the amount
of wastes that they create, and consumers will have an incentive to
choose products which cause less pollution.
Making and Implementing Policies
The preceding sections have detailed the four types of costs asso-
ciated with environmental quality: damage, avoidance, transaction,
and abatement costs. This section looks first at the use of these con-
cepts in evaluating environmental policies, then at some limitations
on efficient decisionmaking, and finally at the use of economic in-
centives in helping or hindering policy implementation.
Economics and Policy Evaluation
Any new environmental policy can affect all four cost elements.
A decision to reduce pollution will generally lead to lower damage
and avoidance costs but higher transaction and abatement costs. And
alternative policies and programs will generally affect each of the
costs differently. In analyzing these alternatives, we seek continually
to reduce damage and avoidance costs without generating greater
increases in transaction and abatement costs. The goal is to identify
that policy which minimizes the total of the four cost elements.32
Past environmental policy evaluations have tended to focus on the
tradeoff between damage costs and abatement costs, usually ignoring
changes in transaction and, to a lesser extent, avoidance costs.33
As an example, Table 8 summarizes the original estimates of the
damage and abatement costs associated with implementing the Clean
Air Act of 1970.34 Based on the incomplete data available, the total
damage costs of air pollution in 1977 with no controls were expected
to be about $25 billion. With controls, damages were estimated at $11
billion and abatement costs at $12 billion, reducing the total costs
to $23 billion. It should be noted that this estimate significantly under-
states cost savings because the control costs include the substantial
costs for controlling automobiles, but the damage costs exclude many
damages resulting from the primary auto emissions (GO, NOX, HC),
Looking only at stationary fuel combustion sources, total costs without
controls reach nearly $13 billion. With $2.5 billion of control costs,
damage costs were expected to drop to $3.4 billion, reducing total
costs to under $6 billion.
The tradeoff between transaction and abatement costs can also be
important. The costs of delay in such capital-intensive projects as
powerplants can mount rapidly when too little effort has been spent
on planning and analyzing the probable environmental effects of such
projects. Increased expenditures on research, monitoring, and plan-
ning can result in a less costly project which begins operating sooner.
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1062 LEGAL COMPILATION—SUPPLEMENT n
Table 8
Estimated Cost Effects «f the Clean Air Act for Fiscal Year
1977
[In billions of 1970 dollars]
Damages Damages Control
Source class without with costs
controls controls
Mobile 12,2 »1.2 8,4
Solid waste ,6 ,2 .2
Stationary fuel combustion 12,8 3.A 2.5
Industrial processes 7,0 3.7 1.2
Miscellaneous 2.3 2.3 0
Total 24.9 10.8 12,3
«Value of health damage costs from CO, NO,, and He emissions not available due
to lack of data.
Source: Environmental Protection Agency, The Economics at Clean Air, Senate
Document No. 92-67 (Washington: Government Printing Office, 1972} pp. 1-12,
1-14
Another important consideration is that transaction and abatement
costs are often borne by different sectors. For example, the private
sector pays most of the costs of abating air pollution while the
public sector pays most of the monitoring, enforcement, and other
transaction costs. In any region there may be several alternative
abatement strategies which would achieve the desired air quality.
Each alternative would involve some mix of transaction and abate-
ment costs. If the public agency responsible for selecting the alterna-
tive attempts to minimize the costs that it bears, higher private
abatement costs may result and total societal costs may not be
minimized.
Limitations to Quantitative Decisionmaking
In discussing efficient decisionmaking, this chapter has touched only
lightly on several problems which are yet to be solved. Two of these
problems—equity considerations and irreversibilities—are dealt with
briefly below. But the most serious problem is the lack of knowledge
about the magnitude of the various costs, particularly damage costs.
We have some estimates of the magnitude of the more easily meas-
ured damages but only the most limited data on others such as psychic
costs. We have some idea about short-term toxic effects but very little
about long-term chronic impacts.
Yet we must formulate and implement policies while faced by
such uncertainty. Often the abatement costs of alternative policies
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GUIDELINES AND REPORTS 1063
can be estimated but the reduced damages cannot. To delay until
better damage data are available may lead to more accurate decisions
but may also risk increased damage during the period of inaction.
A Comment on Equity—Although the introduction to this chapter
mentioned that the distribution of environmental costs could be
analyzed in terms of many factors— educational level, geographical
location, occupational group, and so on—the rest of the chapter
has considered only the question of how these costs are distributed
across different income levels.
The geographical distribution of these costs is clearly another
important consideration, although as yet unanalyzed in detail. Should
the inhabitants of the Four Corners area be subjected to higher dam-
age costs so that the residents of Los Angeles can have cheaper elec-
tricity and cleaner air? Should East Coast fishermen bear the risk
of increased oil spills so that suburban commuters can have more
and cheaper gasoline? Should metropolitan area residents pay higher
Federal taxes so that rural communities can have cleaner streams?
Neither these questions nor the analyses presented earlier imply
that our environmental policies should be directed toward creating
either income or geographical equity. Quite to the contrary, environ-
mental programs are an unlikely and probably inefficient mechanism
for pursuing such goals. Nevertheless, "equity" considerations do play
an important role in most public policy decisions. There are usually
several alternative ways of achieving a given goal, each of which
requires a particular allocation of resources—that is, achieves the goal
with a given efficiency—and each of which has a particular cost
incidence. The data presented in the discussion of abatement costs,
for example, indicate that the source of financing (private versus
public, local government versus Federal Government) has an impact
on the incidence of a given expenditure for pollution abatement.
Such implications of public policies should be analyzed, for there is
often room for an explicit tradeoff between efficiency and distribu-
tional considerations.35
Irreversibilities—The problem of irreversibilides is more often im-
plicit than explicit in environmental policy analysis. The problem is
how can we accurately assess the real costs created by a proposed
action that will result in an irreversible commitment or destruction
of a resource?
This question is meaningful in an economic context. There are two
dimensions to the problem—time and cost—which can be partially
substituted for one another. Some actions, such as polluting air and
water (though not necessarily the damages resulting from the pollu-
tion) can be reversed relatively quickly but at significant costs. Others,
such as the regeneration of a forest, require substantial time but not
great amounts of money. Still others, such as strip mine reclamation,
require both money and time.
Ill
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1064 LEGAL COMPILATION—SUPPLEMENT n
On the other hand, the death of a person or species cannot be
reversed. Other actions—urban sprawl, the filling of wetlands—often
called irreversible, can be reversed by spending great amounts of
both time and money. Buildings can be razed, the land returned to its
original contours, and an acceptable, if not the original, pattern of
vegetation reestablished.
The flooding of Glen Canyon is perhaps a more irreversible action.
At the very least, substantial sums would be required to remove the
vast amounts of silt being deposited there, and substantial time would
be required for the original ecosystems to reestablish themselves, if
indeed they ever would. Irreversibility has also been raised in regard
to the extinction of wildlife and the development of our Nation's
remaining wilderness areas.36
In a sense, almost every action or activity is at least partially irre-
versible. There is some cost involved in any reversal. And at an
extreme, it is usually impossible to reproduce in exact detail every
condition existing prior to 2»n activity. However, as the term is com-
monly used, an irreversible situation may be defined as one in which
the time or cost of satisfactory reversal is so high that it probably
will not be undertaken.
Knowing where a problem arises does not indicate its importance.
Many irreversible commitments are made because of basically faulty
planning—the benefits to society of preserving the resource are not
estimated accurately. However, under current evaluation procedures,
given the necessarily limited time horizon for assessing benefits and
costs, a decision to dam, to build, to cut, to fill, to pave, to mine can
be justified, even though such a decision may involve an irreversible
commitment which is not in our best interests over the long run.
The problem with damming a river or converting a marshland to a
housing development is that society may someday wish that the re-
source had remained in its natural state. The point is that we do not
know all the ramifications of our actions, nor do we know the value
that future generations would place on a natural resource that no
longer exists. The quantitative problem is almost unresolvable.
An important practical consideration is whether there are readily
available close substitutes for the resources being irreversibly com-
mitted. For instance, the irreversible commitment of a small lake in
Minnesota is likely to be less serious than the commitment of a similar
lake in Nevada. The former has many substitutes, the latter few. Sim-
ilarly, commitment of an acre of open space in the Great Plains is
surely less serious than commitment of an acre of open space in the
middle of a city park.
In making decisions which result in an irreversible commitment
of resources, one must analyze rigorously the availability of substi-
tutes, the cumulative effects of many small irreversible commitments,
and the future value to society of resource preservation. Given our
uncertainty, we should prefer actions that will not unduly restrict
the range of future options.
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GUIDELINES AND REPORTS 1065
Economics and Environmental Policy Implementation
The Problem of Incentives—The analysis of costs is central not
only in evaluating policy alternatives but also in assuring cost-effective
and timely implementation. Very often economic incentives or dis-
incentives work against success of a policy that has been established.
As a result, individuals may be encouraged to act in ways counter
to the proposed policy.
Control of automobile air pollution offers an example. The Clean
Air Amendments of 1970 require auto manufacturers to produce
1975 models that emit 90 percent less hydrocarbons and carbon mon-
oxide than 1970 models and 1976 models that emit 90 percent less
nitrogen oxides. A major objective of the automakers is to keep prices
down so that they can sell more cars. Hence, as with almost any
prohibition or similar regulation, the most attractive strategy for the
auto manufacturers is to persuade the Government to reduce Federal
requirements or to extend the compliance date. If the requirements
stand, there is an incentive for the manufacturer to satisfy them at
the least investment cost per car—even if alternative solutions in-
volving higher investment costs but lower operating costs would result
in lower total costs to the car owner.
Some of the pollution control devices being installed tend to
make cars more costly to operate. The owner has an incentive to
remove or otherwise to interfere with the operation of these devices
if by doing so he can save money or improve the performance of his
vehicle. He certainly has little incentive to see that they are main-
tained in proper working order. The additional air pollution that he
creates will have very little impact on him. In short, he may be faced
by a situation where he can reduce his abatement costs without im-
posing significant damage costs on himself.
Thus, the car owner may have an incentive to act in a manner
inimical to attaining clear air. The manufacturer has little incentive
to attempt to modify the owner's behavior. The only way to ensure
that the owner will keep his emission control system in good operating
condition is to pass further regulations to be enforced by costly inspec-
tion and monitoring systems. If he sees a risk of being discovered and
fined, the owner will have an incentive to keep his emission control
devices operating properly or at least to have them repaired before
each inspection.
The scenario described will result in minimum abatement costs
to manufacturers, high abatement costs for car owners, and high
transaction costs for the regulating agencies. Although this strategy
may reduce damage costs, it may not be the most cost-effective
strategy in terms of total societal costs.
This example, related to the Clean Air Act is typical of the often
perverse incentives created by regulations. The problem of appropri-
ate incentives pervades all environmental policymaking because the
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1066 LEGAL COMPILATION—SUPPLEMENT n
different types of costs are paid by different individuals and entities.
Abatement costs are usually paid by the polluter. Damage costs and
avoidance costs are usually paid by the public. Transaction costs
are often paid by the regulating agency. Each will attempt to mini-
mize his own costs, and the results may not lead to the lowest total
cost to society.
Subsidies—Economic realities generally work against encouraging
a private firm or municipality to abate pollution on its own. Abate-
ment costs are relatively high, and the benefits—reduced damage
costs—are predominately experienced by others. In order to reduce
these perverse incentives, various subsidy programs have been devel-
oped. They include subsidies from the Federal Government to state
and local governments and from all levels of government to private
firms.
Federal grants to state and local governments are primarily for
construction of water pollution control facilities. Figure 17 shows
(in current dollars) trends in local expenditures, Federal grant ob-
ligations, and Federal grant outlays for water pollution abatement
facilities. The local expenditure data include both federally sub-
sidized expenditures (treatment plants and sewers) and nonsub-
sidized expenditures (operating costs, nonsubsidized sewers, etc.).
These data indicate several relationships. First, in absolute terms,
state and local expenditures were rising rapidly prior to a significant
Federal grant program. Enactment of a major Federal water pollu-
tion control grant program in 1965 probably delayed some construc-
tion as municipalities waited for Federal grants. This postponement
in conjunction with a municipal credit crunch resulted in the
1967-68 slump in state and local expenditures. Expenditures have be-
gun to increase since this slump, stimulated by the accelerating Fed-
eral commitment and by stricter Federal regulations. This trend will
become more pronounced as Federal grants, which are already obli-
gated, are translated into expenditures during the mid-1970's.
Although Federal grants may stimulate greater total investment,
they may also bias decisions against selection of systems with the
lowest total cost. Construction grants, as the name implies, are re-
tricted to capital investments and thus encourage the choice of capi-
tal-intensive abatement measures. As a result, a municipality may
find it cheaper to build new treatment capacity than to increase the
level of treatment and thus the cost of operating its current plant by
adding personnel or by using supplemental chemicals.
Subsidies to the private sector—accelerated depreciation, industrial
revenue bonds, and sales and property tax exemptions—also apply
only to capital investments and thus bias decisionmaking away from
process changes and other abatement measures which may have a
relatively higher ratio of operating to capital costs but lower overall
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GUIDELINES AND REPORTS
1067
Figure 17
Federal Grants for Municipal Water
Pollution Control and Total Capital
Expenditures by Municipalities for Fiscal Years
1956-1972 and Estimated Fiscal Years 1972-1974
Billions of dollars
4.0
3.5
3.0
2.5
2.0 -
1.5 _
1.0 -
.5 -
It
l\
Federal
Grant
Obligations
State and Local
Capital
Expenditures
Federal
Grant Outlays
I f I 1 I T
1958 1960 1962 1964
1965
1968
I I ^ I I
1970 1972 1974
Source: Department of Commerce, Bureau of the Census, Government Finances
(Washington: 1958-1970/71); Office of Management and Budget, Special Analyses:
Budget of the United States Government (Washington: 1970-1974)
costs. However, because the subsidies to private firms are less than
those to municipalities, the strength of this bias is less.
One final observation may be made about subsidies such as the
accelerated depreciation option which, if it is at all effective, operates
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1068 LEGAL COMPILATION—SUPPLEMENT n
by reducing the effective tax rate on a company's profits. If there
are no profits, there is no subsidy. Often such a subsidy is rationalized
on the basis of its assisting small firms or old plants with low profit
margins. But these are the entities that will be helped least by a
subsidy tied to taxes on profits.
On the other hand, industrial revenue bonds do decrease the cost
of investment to a firm, and the property tax exemption allows a firm
to avoid an obligation that it would have regardless of its profit situa-
tion. It should be noted that because local property taxes are deduc-
tible from federally taxable income, the net subsidy to a private firm
is about half the total amount of the revenue given up by the com-
munity providing the tax exemption. Similarly, the net incentive to
a private firm from industrial revenue bonds is less than the revenue
loss to the Treasury because of the exemption of the interest on such
bonds from the Federal income tax.
Summary
This chapter has explored the relationships between economics
and environmental quality. There are many types of costs associated
with a degraded environment and with programs undertaken to im-
prove it. The cost of a degraded environment is measured in damages
to health, vegetation, materials, and other values or in the costs that
we incur to avoid these damages. Remedial action also has costs—
costs of abatement and transaction costs for monitoring and for
enforcement.
The magnitude of these costs, their impact, and their distribution
are critical to evaluating environmental policy alternatives and to
developing strategies for their timely implementation.
It is clear that our national commitment to a cleaner environment
will be very costly—about $275 billion during the next decade. It
will total about 2.5 percent of our gross national product during this
period, but any lower level of expenditures would likely result in
even greater economic penalties as reflected in adverse health effects
or lost recreational and aesthetic values. Ultimately, a healthy eco-
system is the basis for a healthy economy.
While the benefits of a cleaner environment justify the costs which
must necessarily be incurred, there are other econom.ic effects which
must also be weighed.
This year's preliminary assessment indicates that, given current
financing mechanisms, the distribution of control costs tends to fall
slightly more heavily on lower-income families. At the same time,
however, it should be noted that damages from unabated pollution
are probably also regressive. Although the incidence of abatement
costs is somewhat regressive, the aggregate effect is small. Further,
the financing mechanisms which contribute to this regressivity—user
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GUIDELINES AND REPORTS 1069
charges and higher product prices—will likely bring about a more
efficient allocation of national resources.
The quantification of all types of environmental costs is critical
to environmental policy development and implementation. As pointed
out in the last section of this chapter, the problem is more difficult
than just minimizing total costs to society. Although this goal is
important, there are several other important factors which are diffi-
cult if not impossible to include quantitatively. First, many actions
may result in the irreversible commitment of resources. What is the
value of a wild river that is dammed? Its value to future generations
is unknown—as are the cost and time required to try to duplicate its
unique characteristics. Also important but difficult to include in any
mathematical equation is the equity of environmental decisions. Al-
though benefits may exceed costs of any given action, very different
people will usually bear each cost. It is not easy to weigh the damages
of pollution from power generation in one area against the benefits
of the energy to another area.
Finally, economic costs can affect the implementation of environ-
mental policies. Because damage, avoidance, transaction, and abate-
ment costs all fall on different sectors, policies must be designed with
reinforcing rather than opposing incentives. Apparently sound en-
vironmental policies often result in incentives which act against
achievement of the environmental objectives. Hence economic anal-
ysis must be used not only for selecting cost-effective policies but also
for ensuring that incentives are appropriate to their achievement.
Footnotes
1. Robert C. Robbins, April 1970, "Inquiry into the Economic Effects of
Air Polution on Electrical Contacts," prepared by Stanford Research
Institute for the Department of Health, Education, and Welfare, National
Air Pollution Control Administration, under contract No. PH—22—68—35
(available fromNTIS, order No. PB 192 478).
2. Black and Sterling, Inc., August 1971, "Cost Estimates for Removal of
Residential and Related Land Uses Near Selected Airports," prepared
for the Aviation Advisory Commission (available from NTIS, order No.
PB 215 612).
3. "1973 Statistical and Marketing Report," Merchandising Week, Feb. 26,
1973, p. 27.
4. Although primarily of damage costs, these estimates do include slight
elements of avoidance costs under various categories. The estimates given
in Table 4 are currently being updated to 1970 by Thomas E. Waddell
of the Environmental Protection Agency. These revised estimates will
reflect both the information which has become available since the earlier
study was completed and the lower pollution levels experienced in 1970.
5. The estimate for reduced property values partially measures psychic costs
but also includes such damage costs as the effect on property values of
having to clean and paint a house more frequently, of being unable to
grow healthy ornamental plants, etc.
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1070 LEGAL COMPILATION—SUPPLEMENT n
6. The costs to navigation are usually damage costs because these estimates
represent ship corrosion and more frequent maintenance. The property
value estimates may involve some double counting of recreational costs
but otherwise represent the psychic costs associated with living next to
a polluted body of water.
7. Department of the Interior, Federal Water Pollution Control Adminis-
tration, "Delaware Estuary Comprehensive Study: Preliminary Report
and Findings," July 1966, Ch. 6.
8. Jeffrey M. Zupan, November 1972, "The Distribution of Air Quality in
the New York Region," unpublished study conducted by the Regional
Plan Association, New York, under a grant from Resources for the Future,
Inc., p. 25.
9. Another qualifying consideration is the fact that a lower proportion of
poor than nonpoor live in metropolitan areas. Forty-nine percent of pov-
erty family members 14 years and older live in nonmetropolitan areas in
the United States compared to only 30 percent nonpoverty family mem-
bers. U.S. Bureau of the Census, Census of Population 1970, Subject
Reports, Final Report PC(2)—8A, Sources and Structure of Family In-
come (Washington, D.C.: U.S. Government Printing Office, 1973),
Table 8. Because rural areas generally experience lower levels of air
pollution than urban areas, the "average" poor person would be rel-
atively better off than the above comparisons indicate.
10. A. Myrick Freeman III, "Distribution of Environmental Quality," in
Allen Kneese and Blair Bower, Environmental Quality Analysis (Balti-
more: Johns Hopkins University Press, 1972), pp. 269-73.
11. These data may overstate transaction costs for two reasons. First, some
research funds may be expended for basic scientific research undertaken
solely to increase man's knowledge rather than to assist policy formulation.
Second, "other" may include some R&D and demonstration expenditures
on abatement technology and should be classified as abatement costs.
These data have been adjusted to remove $260 million in this category,
but other expenditures may still be included.
12. Based on information contained in Environmental Protection Agency,
Office of Air Programs, National Emissions Data System.
13. U.S. Bureau of the Census, Environmental Quality Control Expenditure
and Employment for Selected Large Governmental Units: Fiscal 1970-71,
GSS-No. 63 (Washington, D.C.: U.S. Government Printing Office,
1972).
14. One reason for the relatively small increase in constant dollar expenditures
has been the rapid rate of inflation experienced in the cost of construct-
ing sewers and treatment plants. From 1967 to 1972, for instance, the
EPA Sewage Treatment Plant Construction Cost Index increased 44
percent, whereas the aggregate GNP price deflator increased only 24 per-
cent. (EPA index computed by Environmental Protection Agency, Office
of Water Programs Operations; GNP deflator is given in Council of Eco-
nomic Advisers, Economic Report of the President (Washington, D.C.:
U.S. Government Printing Office, 1973), p. 198.
15. Manuel L. Helzner and Rita McBrayer, "Estimating Water Pollution
Control Costs for Selected Manufacturing Industries in the United
States, 1973 to 1977," prepared by the National Planning Association
under contract to the Environmental Protection Agency, 1973.
16. U.S. Bureau of the Census, Government Finances, various years. The
Census estimates, which include costs incurred by governments only, are
higher than the public sector costs reported in Table 4. Two major reasons
for this difference are that the Census estimates include such items as
street sweeping and other minor sanitation expenses which are not in-
cluded in the CEQ estimates and that they include municipal payments
to private contractors (included in the private sector in Table 4).
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GUIDELINES AND REPORTS 1071
17. Leroy Simpson, R. C. Knowles, and J. B. Feir, Airline Industry Financial
Analysis with Respect to Aircraft Noise Retrofit Programs 1972-1978,
prepared by R. Dixon Speas Associates for Department of Transporta-
tion, Office of the Assistant Secretary for Systems Development and
Technology, Office of Noise Abatement, under contract No. DOT-OS-
20088, January 1973.
18. U.S. Atomic Energy Commission, Directorate of Regulatory Standards,
"Draft Environmental Statement Concerning Proposed Rule Making
Action: Numerical Guides for Design Objectives and Limiting Conditions
for Operation to Meet the Criterion as Low as Practicable for Radioac-
tive Material in Light-Water-Cooled Nuclear Power Reactor Effluents/'
January 1973.
19. S. 923 and H.R. 4863, 93d Cong., 1st Sess. (1973).
20. Council on Environmental Quality and Department of the Interior,
Bureau of Mines.
21. For a detailed discussion of the more important baselines (stationary
source air pollution and municipal and industrial waste water treatment),
see Arthur D. Little, Inc., 1972, "Economic Impact Study of the Pollution
Abatement Equipment Industry," prepared under contract to the En-
vironmental Protection Agency. A modified version of the ADL method-
ology has been adopted in Table 6.
22. The analyses of the incidence of pollution abatement costs presented
in this chapter are based primarily on information supplied by the Public
Interest Economics Center, Inc., working with data and analytical tech-
niques made available by the Brookings Institution.
23. There is disagreement among economists about the real incidence of
certain types of taxes. The assumptions used for this analysis are that
income taxes are taken from personal income; that general sales taxes
are paid by the consumer; that property taxes on land are borne by
landowners; that property taxes on improvements are borne by consumers
of housing in the case of the residential property tax and by all con-
sumers in the case of commercial and industrial property; and that
corporate profits taxes are borne by stockholders.
24. See, for example, The Economic Impacts of Pollution Control: A Sum-
mary of Recent Studies, prepared for the Council on Environmental
Quality, the Department of Commerce, and the Environmental Protec-
tion Agency (Washington, D.C.: U.S. Government Printing Office,
March 1972).
25. Int. Rev. Code of 1954 § 169.
26. Firms have to choose between either this special accelerated depreciation
provision or the investment tax credit in combination with normal ac-
celerated depreciation schedules applicable to all business investment.
The tax credit usually provides a significantly larger subsidy than the
special pollution equipment depreciation option.
27. Int. Rev. Code of 1954 § 103.
28. John J. Winders, "Tax-Free Anti-Pollution IRBs Head Toward $1 Billion
in '73," The Weekly Bond Buyer 207:1, March 19, 1973; private com-
munications with the First Boston Corporation, New York, N.Y.
29. Small waste-producing industries, on the other hand, may be subsidizing
the general population.
30. Chase Econometric Associates, Inc., October 1972, "The Economic Im-
pact of Pollution Control upon the General Economy: A Continaution
of Previous Work" (unpublished report prepared for the Environmental
Protection Agency).
31. The computation of the incidence of increased prices assumes that all
private costs, excepting those for utilities and automobiles, will be passed
through to consumers in proportion to their total consumption (except
for housing). This ignores the possibility of differing income-specific
price elasticities of demand.
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1072 LEGAL COMPILATION—SUPPLEMENT n
32. This goal is equivalent to that of maximizing net benefits in traditional
benefit-cost analysis.
33. Because transaction and avoidance costs were usually relatively small
compared to the magnitude of the damage and abatement costs being
considered in past policy decisions, these limitations may not have been
particularly serious.
34. These estimates agree substantially with subsequent cost analyses.
35. For a discussion of formal mechanisms for making such tradeoffs, see
A. Myrick Freeman, III, "Project Design and Evaluation with Multiple
Objectives," in U.S. Congress, Joint Economics Committee, The Analysis
and Evaluation of Public Expenditures: The PPB System, 91/1, 1969.
36. See John V. Krutilla (ed.), Natural Environments: Studies in Theoreti-
cal and Applied Analysis (Baltimore: John Hopkins Press, 1973).
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CHAPTER 4
The Law and
Land Use Regulation
This country is in the midst of a revolution in the way we regulate
the use of our land. It is a peaceful revolution, conducted entirely
within the law. It is a quiet revolution, and its supporters include
both conservatives and liberals. It is a disorganized revolution, with
no central cadre of leaders, but it is a revolution nonetheless.1
This court, like other Federal and state courts throughout the
country, finds itself caught up in the environmental revolution.
Difficult and novel legal and factual questions are posed which
require the resolution of conflicting economic, environmental, and
human values .... Basic value judgments will be made by legis-
latures and voters which courts can review in most instances not
on the basis of the wisdom of these decisions but rather to determine
only whether they are permissible within the relevant statutory and
constitutional framework.2
New Focus on Land Use—the Quiet Revolution
The capacity of the law to respond to basic changes in society is
nowhere more evident than in the field of the environment. Strong
new pollution control laws, as well as the concurrent evolution in such
legal doctrines as citizen "standing" to sue and the scope of judicial
review of agency actions, are good examples.3
The quotations that head this chapter point to what might be called
a final frontier in this evolution of legal techniques to cope with
emerging environmental concerns. The first quotation is from a re-
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1074 LEGAL COMPILATION—SUPPLEMENT 11
cent study prepared for the Council that analyzes innovative land
use laws and programs in a number of states. As the study shows,
expanding state and local efforts to prevent the consequences of un-
planned growth, to preserve environmentally sensitive areas, and to
prevent land-connected problems of pollution have spawned crea-
tive new approaches to controlling the use of land. On the Federal
level too—where land use has been called "the most important en-
vironmental issue remaining substantially unaddressed as a matter
of national policy" *—major new proposals for land use regulation
are emerging.5
These developments are having repercussions in the judicial arena
as well as the legislative. One land use issue that is being raised with
increasing frequency concerns the possible application of the provi-
sion in the fifth amendment to the U.S. Constitution that "private
property" shall not "be taken for public use without just compensa-
tion." 6 Land use controls inevitably restrict to some extent the way
private landowners may use their property. That fact alone, of course,
has never meant that such regulations are invalid or that landown-
ers must be compensated for every reduction in the value of their land.
A wide variety of zoning and subdivision regulations and other land
use restrictions with considerable economic impact have long been
accepted as legitimate constraints on private property rights despite
the absence of provisions for compensation.7 At the same time, how-
ever, it is generally agreed that if regulation goes too far in restricting
private land use opportunities, the regulation will amount to a de
facto "taking" of the property, requiring compensation under the
Constitution. The question of the ultimate limits on legislative power
to restrict the use of property without providing compensation is re-
ceiving renewed attention as a result of increased land use initiatives.
Although the "taking" issue arises from the U.S. Constitution, in
practical application it is a state and local issue. Land use controls
have traditionally been exercised by local governments as subdivisions
of the states. Proposals for national land use policy legislation
recognize this allocation of authority and seek only to stimulate in-
creased statewide and regional—as opposed to purely local—exercise
of such authority, not to involve the Federal Government itself in
private land use decisions. Thus, the taking issue discussed in this
chapter is not a Federal policy issue. But because it is a significant
matter of concern to state and local governments seeking to protect
the environment, we are discussing it in our legal chapter, which we
use each year to explore major issues of environmental law.
This chapter attempts to place the taking issue in perspective by re-
viewing the underlying values and historical antecedents of the tak-
ing clause and the traditional judicial theories for dealing with the
related legal issue. The chapter examines the application of these
traditional theories to illustrative environmental controversies and
concludes by briefly describing recent judicial developments in deal-
ing with the taking issue.
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1075
Pervasiveness of the Problem
The taking issue is being raised in a variety of contexts across the
Nation. In Connecticut, for example, which has shown a special con-
cern for its tidal wetlands and other questions "of the public trust in
air, water and other natural resources of the state," 8 new legislation
to protect these resources quickly generated litigation with landown-
ers protesting alleged losses in economic values. One large industrial
landowner has filed claims for $75 million in compensation because of
restrictions on his plans to fill portions of tidal marshes protected
under the Connecticut law as vital to the support of various forms of
plant and animal life.9
Massachusetts has enforced similar wetlands legislation since the
early 1960's, requiring developers to secure permits or to conform to
strict "protective orders" in order to safeguard the critical ecological
balance of such areas.10 Although crucial portions of the Massachu-
setts statutes have survived constitutional attack,11 the taking issue
has been a source of protracted litigation in the State since the wet-
lands legislation was passed. Similar litigation challenging state at-
tempts to protect wetland and estuarine areas have been filed across
the width and length of the country from Maine 12 to Florida13 and
from New Hampshire 14 to California.15
Nor is the issue limited solely to the context of a state's right to pro-
tect exhaustible or critical natural resources. The proposed destruc-
tion of much of Grand Central Terminal in downtown Manhattan is
now the focal point for a legal challenge to New York City's historic
preservation laws.16 After several years of negotiation and debate
The Great Salt Marsh is one area protected by Connecticut's wetlands
legislation.
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LEGAL COMPILATION—SUPPLEMENT n
before the city's Landmark and Planning Body, denial of develop-
ment permission for a 59-story tower on the Grand Central site cul-
minated in the filing of a suit in the fall 01 1972."
In yet another context, the tiny New Hampshire Town of San-
bornton moved to avoid environmental and growth problems posed
by impending recreational home development. The attempt to regu-
late such development led to the judicial opinion in the Federal Court
of Appeals for the First Circuit from which the second quotation
that heads this chapter is taken. The case involved the validity of a
6-acre minimum lot size restriction imposed by Saribornton which
effectively thwarted the plans of a development corporation to con-
struct 500 units of recreational housing and thus led to its claim that
property had been "taken."
The town of Ramapo, a short freeway drive from New York City,
also found itself the defendant in extensive litigation resulting from
a similar attempt to control development pressures—this time in an
urban setting. Faced with the need to provide essential urban services
as the town was transformed from farmland to suburban home sites,
the town government adopted a phased growth program which
could result in the denial of some residential building permits for as
long as 18 years.18 Similar attempts to moderate growth pressure
Through New York's Historic Preservation Law, attempts have been made to
preserve Grand Central Terminal.
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through moratorium proposals are under serious consideration or
actual legal challenge in a number of cities in Florida 19 and in other
areas of the country particularly sensitive to growth: Boulder, Colo.,20
the San Fracisco Bay region,21 and the Lake Tahoe Basin on the
Nevada-California line.22 The developers of Fleur de Lac, a small
parcel on the western shore of Lake Tahoe, found their application
for a 60-unit condominium blocked because of areawide development
controls. The developers filed a suit claiming $4.5 million in dam-
ages—the first of over $150 million of filed claims in the area to reach
the court.23 In California, the entire coastal zone has recently come
under special State control as a result of voter approval of an initia-
tive measure in November of 1972.24 In all these areas, public sensi-
tivity to problems of growth seems to go hand in hand with private
sensitivity to potential constitutional problems with respect to asso-
ciated land use regulations.
The frequency with which the taking issue is being raised, however,
is not a reliable indicator of the issue's potential as an obstacle to new
or existing land use legislation. Experience suggests that many claims
for compensation are denied by the courts. Moreover, for every legal
challenge raised under the taking clause, there are numerous in-
stances of unchallenged regulation. Thus a more thorough examina-
tion of basic taking theory is necessary before one can evaluate the
implications of current land use litigation.
The Basic Values to Be Balanced—Private Property and Public
Environmental Concerns
It may be helpful to take note of the basic competing interests that
underlie the taking issue. On the one hand, the private property inter-
ests protected by the compensation clause occupy a firm place in
American constitutional values. Private property is protected not
only by the taking clause but, like life and liberty, is also subject to the
constitutional injunction against deprivation by the government with-
out "due process of law."
On the other hand, to focus attention on the importance of the
concept of private property only sets the starting point for analysis
under the taking clause. It has never been the law, of course, that
title to land confers the right to use the land however one pleases.
The common law of nuisance, for example, has long placed limits
on the right to realize economic gain from land in whatever manner
an owner desired. In addition, the Constitution has long been held
to reserve for the states so-called "police powers" to regulate private
activities in order to promote and protect the public health, safety,
and welfare. Property rights, in short, do not exist independently of
the protections and responsibilities linked with such rights by the
law. As those legal protections and responsibilities change to reflect
new perceptions of society's well-being, so also does the concept of
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private property. Thus it is not an exaggeration to state that in de-
termining when a "taking" occurs, a "definition and redefinition of
the institution of private property is always at stake." 25 Like the due
process clause and other constitutional expressions of broad social
policy, the taking clause responds to basic changes in society in a
way that reflects new social values.
The relevance of these observations should be obvious. As the
Chairman of CEQ recently observed: 2
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GUIDELINES AND REPORTS 1079
nomenon dating from around the turn of the century. This at least
is the conclusion of a comprehensive study of the taking issue recently
prepared for the Council.28
According to this study,29 the idea that Government must compen-
sate owners of private property in certain circumstances originated
primarily if not exclusively to deal with the case of actual Gov-
ernment appropriation of the land in question. The study concludes,
after an in-depth analysis of over 700 years of legal history—from
early English treatises and precedents, through the experience of
Colonial America, to the history and immediate aftermath of the
Constitutional Convention—that this distinction between actual
appropriation on the one hand and "mere" regulation on the other
hand was consistently maintained. Disputes were often raised over
whether compensation was required even in the case of physical ap-
propriation by a government, and if so, in what manner, but there was
never a suggestion that regulation of the uses to which land could be
put was in any way related to these disputes.30 Indeed, toward the
end of the 19th century, constitutional treatises were able to restate
the law as it applied to the taking issue as follows:31
It is settled doctrine of the States that under general provision com-
mon to most of the constitutions, and in the absence of a different
statutory role, there must be some actual direct physical interfer-
ence with the property or some part thereof to constitute the "tak-
ing" spoken of in the Constitution. ... As a consequence of the
doctrine, indirect and consequential injuries to property, deprecia-
tions in value, and the like, unaccompanied by any direct physical
interference, do not constitute a taking.
Other commentators have reached similar conclusions. It has been
suggested, for example, that the concept of compensation finds its
historical archetype in the case of the wartime seizure by a state of
private property urgently needed in order to make room for fortifica-
tions or in order to prevent use of the property by the enemy. The
purpose of compensation in such cases was primarily to erect a safe-
guard against arbitrary or tyrannical government conduct32—a ra-
tionale that presumably has less application in the case of general
regulations restricting the use of property in order to protect public
health, safety, or welfare.
The history of the incorporation of the taking clause in the Con-
stitution sheds little additional insight into the intended reach of the
clause. The Federal "Bill of Rights" was drafted by James Madison
after the Constitutional Convention had ended. As presented to the
House in a speech during the first session of Congress on June 8,
1789, Madison's proposals included the provision that no person
should "be obliged to relinquish his property, where it may be nec-
essary for public use, without a just compensation." 33 Here again,
the choice of language, equating "taking" with the actual "relinquish-
ing" of property, appears primarily aimed at the case of outright
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government appropriation of land. The subsequent change in
language from Madison's proposal to the present version of the clause
is nowhere explained in either the debates or other available records.
Indeed, one commentator, considering the lack of attention given the
compensation clause, frankly wonders "how it got into our constitu-
tion at all." 34
These historical considerations, of course, are by no means conclu-
sive on the question of the proper reach of the taking clause. The
( idea that regulation which "goes too far" 35 can amount to a "taking"
may be of relatively recent origin, but that fact may itself reflect an
historical progression toward the increasing use of regulatory devices
with a substantial "consequential" impact on property values. Thus,
although regulatory schemes have long existed that impacted to
some extent on property values without raising taking issues, there
are virtually no court cases before 1890 testing the question of
whether such regulation, if it results in particularly severe impact on
property values, could amount to a taking. For an answer to this
question, one must turn to the judicial opinions of the late 19th and
early 20th centuries and to the legal formulae developed by those
opinions for resolving the taking issue. This brief historical perspec-
tive, however, serves as a valuable reminder that the protection of
property rights traditionally has not been thought inconsistent with
quite extensive state regulation of the uses to which property can be
put.
The Standard Judicial Approach—No Set Formula
The rising debate over the taking issue does not stem solely from
the fact that new land use regulations are being developed on a wide
scale. In part the debate also reflects the fact that no ready judicial
formula is available for explaining when "regulation"—-which only
restricts property uses in the exercise of the state's power to protect
public health, safety, or welfare—must be equated with an outright
"taking" of property for purposes of compensation. Moreover, the
judicial theories that have developed for deciding when such regula-
tions require compensation are not always consistently applied.
Among the earliest Supreme Court decisions construing the taking
clause is the Court's decision in the latter part of the 19th century
in Mugler v. Kansas.36 In that case the Court upheld a Kansas ordi-
nance that forbade the manufacture and sale of intoxicating liquors
without compensating the existing brewery owners for the resulting
ruin of their business. Nearly 100 years later, in Goldblatt v. Hemp-
stead,^ the extent of the Court's progress in developing a consistent
taking theory was expressed in the Court's statement that "[tjhere is
no set formula to determine where regulation ends and taking
begins."3S Like Mugler, Goldblatt also upheld the challenged
government regulation, which prohibited certain mining practices
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and required owners to fill mined areas without providing compen-
sation for the resulting economic loss.
On the other hand, the plaintiffs in Pennsylvania Coal Co. v.
Mahon SB—perhaps the best known Supreme Court taking decision—
were more fortunate. In that case, the Court held invalid state legis-
lation forbidding the mining of coal in a manner that would under-
cut the surface land on which homes, public buildings, and streets
had been built. Because the mining companies had previously en-
joyed the right to mine in such manner (and homeowners and the
public had presumably purchased only surface rights), subsequent
legislation, the Court held, could not undo the economic relationship
to the disadvantage of one side without providing compensation for
the resulting loss.
The absence of a set formula to explain these differences in result
does not mean that no attempts at rational distinctions can be made.
Indeed, the greater danger is that too many and apparently con-
flicting formulae will be found to fill the resulting void.
Such, in fact, appears to be the current status of taking theory in
the courts. Instead of a single formula, at least four theories for decid-
ing when a taking occurs emerge from the court opinions, with no
single theory providing either a consistent or acceptable explanation
for the results in all cases. These four theories may be described as the
physical invasion theory, the nuisance abatement theory, the balanc-
ing theory, and the diminution of value theory.40
The Physical Invasion Theory—The physical invasion theory cor-
responds most closely to the paradigm case of government confisca-
tion discussed earlier. Where public agents assume actual legal con-
trol over private property, for instance, by compelling transfer of title
from the former owner to the government, a classic case of the use of
the eminent domain power seems to be presented, requiring com-
pensation. Once one attempts to transform the classic case, however,
from a sufficient "test for taking" into a necessary test, it becomes
hard to ignore the fact that actual transfer of title is not always re-
quired in order effectively to appropriate all use of a person's prop-
erty. In an early Supreme Court decision, for example, in Pumpelly
v. Green Bay Company,*1 the Court agreed that a taking had occurred
where the complainant's land had been flooded pursuant to state law
providing for the construction of dams for the purpose of flood con-
trol. "It would be a very curious and unsatisfactory result," explained
the Court: 42
if . . .it shall be held that if the government refrains from the ab-
solute conversion of real property to the uses of the public it can
destroy its value entirely; can inflict irreparable and permanent in-
jury to any extent; can, in effect, subject it to total destruction
without making any compensatipn, because in the narrow sense
of the word, it is not taken for public use.
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At the very least, it seems, the essence of the classic case must lie, not
in the actual transfer of title, but in the physical appropriation or in-
vasion by whatever means, of the right otherwise held by the owner
to use and enjoy his property. Once started down this path of rea-
soning, however, it is not easy to stop. It is not easy, for example,
to explain why the appropriation of an owner's right to control the
use of his property must be the result of a physical intrusion.
The typical case of government impairment of a property owner's
use opportunities, certainly in the modern context, arises from the
simple but effective technique of enacting legislation limiting the uses
to which such land can be put. Accordingly, three additional judicial
theories have emerged for determining whether compensation is re-
quired in the case of regulations that fall short of physical invasion or
outright confiscation.
The Nuisance Abatement Theory—The first theory, which might
be called the nuisance abatement theory, is illustrated by the case
of Mugler v. Kansas mentioned above. In explaining why compen-
sation was not required in Mugler, in contrast to Pumpelty, Justice
Harlan observed that in the former case the state was only acting
to prohibit a publicly offending use of the property in question: 43
The power which the states have of prohibiting such use by in-
dividuals of their property . . . cannot be burdened with the con-
dition that the state must compensate such individual owner for
pecuniary losses they may sustain, by reason of their not being per-
mitted, by a noxious use of their property, to inflict injury upon the
community. The exercise of the police power by the destruction
of property which is itself a public nuisance, or the prohibition of its
use in a particular way, whereby its value becomes depreciated, is
very different from taking property for public use. ... In the one
case a nuisance only is abated; in the other, unoffending property
is taken away from an innocent owner.
This theory expresses the idea that where private property is used in
a manner that harms the general public, compensation is not required
when the public reacts to protect itself from the nuisance-like use.
The nuisance abatement theory has been used by courts to sustain
a wide variety of regulations. Particularly where health or safety is
involved, regulations requiring individuals to bear the expense of con-
forming to public standards in the area have been treated almost as if
they enjoyed "a special presumption of constitutionality." 44 Cases
supporting the uncompensated destruction of diseased trees 45 or ani-
mals 46 or upholding food and drug laws, occupational safety stand-
ards, fire regulations, and the like without compensating owners for
the resulting expense 4T are typical of the theory in operation.
The nuisance theory is, however, subject to criticism to the extent
that its application presupposes that the individual subject to the
regulation is somehow to blame for the harm caused by his activities
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and hence is for that reason in no position to complain of the economic
loss that mandatory abatement entails. The problem with this line
of reasoning is illustrated by Justice Sutherland's widely quoted state-
ment that "a nuisance may be merely a right thing in the wrong
place." 4S
In many cases, the use that is being made of private property may
have been lawful and inoffensive when begun, only to be turned into a
"nuisance" because of changed conditions resulting from new growth
or new land use patterns in the surrounding area.
A classic illustration is provided by the case of Hadacheck v.
Sebastian.*9 That case involved a brick manufacturing operation that
was drastically reduced in value as the result of a city ordinance for-
bidding the use of brick kilns in a residential neighborhood. The
Supreme Court sustained the ordinance without requiring compensa-
tion even though the nuisance resulting from the smoke and fumes
of the operation would not have existed without subsequent resi-
dential development significantly postdating the manufacturer's
operation. To decide which party in such a case is in the wrong
place—the brickmaker or the residential property owners—is to an-
nounce a result rather than to explain it. The point is not that cases
upholding land use controls on a nuisance theory are wrongly de-
cided. The point is only that one cannot adequately justify such de-
cisions on the grounds that a landowner is necessarily blameworthy
for an activity that has come into conflict with the interest of neigh-
boring owners or the public.50
The Balancing Theory—A third taking theory—and a second for-
mula for determining when regulation requires compensation—em-
ploys what may be called a general balancing test. Under this test
competing interests, as determined by the facts of a particular case, are
weighed against each other. On one side of the balance, presumably,
is the extent of the government's intrusion as measured physically or
by the loss to the individual; on the other side is the public benefit
derived from the government action, including, for example, the
alleviation of a nuisance-like activity. A number of courts 51 and
commentators 52 have explicitly embraced some such balancing test.
This approach at least has the merit of being able to accommodate
almost any example of alleged government taking. But the doctrinal
basis for the theory is somewhat questionable. Presumably the theory
would make the need for compensation inversely proportional to the
degree of public gain: the greater the gain, the less likely that a taking
will be found and vice versa. But the public benefit from the action,
although it may be relevant in deciding that government action is
proper at all, does not seem particularly relevant to whether compen-
sation is required.53 It is precisely because private property is being
taken "for a public purpose" that the fifth amendment requires
compensation. Indeed, one might suggest that the more evident the
public purpose, the more willing the public ought to be to bear the
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expense of realizing its interest, rather than shifting the burden
entirely to a single individual. Furthermore, the fact that the balanc-
ing theory is seldom applied in the converse case—to justify actual
physical taking of property where the public gain far outweighs the
economic loss to the individual—also casts doubt on the validity of
the theory's basic rationale.
The Diminution of Value Theory—The most prevalent theory
in judicial opinions on the taking issue in the case of land use regula-
tions is what commentators have called the diminution of value
theory.54 This theory seems to center the analysis exclusively on how
much economic loss the government action has caused the complain-
ing landowner. The attractiveness of the theory is explained by at
least two factors. First, as noted above, discomfort with the logic of
the physical invasion theory is most notable when cases otherwise
identical in terms of impairment of the owner's use of his property
are treated differently solely on the basis of whether a physical inva-
sion occurred. Thus the natural step is to abandon physical invasion
as a necessary test for taking and to focus instead solely on what ap-
pears as the remaining crucial element: destruction of the economic
value of the landowner's property, however it occurs. Second, the
Supreme Court decision in Pennsylvania Coal Co. v. Mahon 5S seems
to support the view that a drastic reduction in the economic value of
property necessarily triggers the need for compensation. As noted
above, the case involved a statute prohibiting the mining of coal
in such a way as to cause the subsidence of surface structures. Justice
Holmes explained the Court's decision that the coal companies were
entitled to compensation for the resulting loss of mining rights as
follows: 56
One fact for consideration in determining [the limits on the
police power] is the extent of the diminution. When it reaches a
certain magnitude, in most if not all cases there must be an exer-
cise of eminent domain and compensation to sustain the act. . . .
The general rule, at least, is that while property may be regu-
lated to a certain extent, if regulation goes too far it will be recog-
nized as a taking.
It should be noted that the diminution of value theory, like the
balancing theory, seems to serve at best only as a sufficient, not a
necessary, test for taking. Thus, actual physical appropriation of
land almost always remains a taking even though the intrusion is
economically slight.57 Furthermore, even as a sufficient test for taking,
the diminution of value theory is not easily reconciled with the
nuisance abatement theory discussed above. Under that theory courts
have not hestitated to uphold legislation prohibiting a "noxious" use,
even though the result is virtual destruction of economic value.
Indeed, Justice Brandeis's dissenting opinion in Pennsylvania Coal
indicates that resolution of the issue in a particular case will often
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depend on which theory a court decides should take precedence. By
relying, apparently, on the nuisance abatement theory, Justice Bran-
deis would have sustained the Pennsylvania statute: 58
Every restriction upon the use of property, imposed in the exer-
cise of the police power, deprives the owner of some right thereto-
fore enjoyed, and is, in that sense, an abridgement by the state of
rights and properties without making compensation. But restric-
tion imposed to protect the public health, safety, or morals from
dangers threatened is not a taking. The restriction here in question
is merely the prohibition of a noxious use .... whenever the use
prohibited ceases to be noxious—as it may because of further
change in local or social conditions—the restriction will have to be
removed, and the owner will again be free to enjoy his property
as heretofore.
The diminution of value theory has been criticized both on historical
grounds and in terms of its basic rationale.59 But the most troublesome
aspect of the theory is its failure to provide a clear guide to how much
economic harm is necessary for the theory to be applicable. Justice
Holmes's explanation that a taking occurs when the diminution in
value reaches "a certain magnitude" or when regulation goes "too
far" leaves unresolved the critical issue of how much is too much.
In consequence, a number of subsidiary formulae have been devised
by lower courts. Thus, cases fairly consistently agree that a taking
does not occur merely because a landowner is not allowed to make
the most profitable use of his land 60 or is not allowed to realize specu-
lative investment potential.61 In other words, a major reduction in
speculative value alone does not amount to a taking. At the other end
of the scale, regulations depriving property of all potential value or
use are often condemned solely on the diminution of value theory.62
Most cases, however, lie somewhere in between these extremes. The
result is that courts typically resort to a formula that awards and
denies compensation depending on whether a "reasonable use" of
the property remains in the face of the restricting legislation. Further-
more, a reasonable use is often apparently defined to mean some
economically profitable use, rather than any possible use.63
Aside from the practical problems of deciding whether an owner
has been left with a "reasonable" remaining use, the diminution in
value theory suffers from certain inherent definitional problems. As
Justice Brandeis pointed out, dissenting in Pennsylvania Coal, the
degree of loss differs depending on whether one simply calculates
the value of the coal rendered inaccessible or compares that value
with the total value of property that the mining company owns.
In the first case, one might conclude that the mining rights have been
totally destroyed; in the second case, one might argue that the relative
economic harm, and hence the owner's ability to bear the loss, is not
so significant and requires no compensation. These ambiguities in
deciding what the particular "thing" is that has been adversely af-
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fected and in deciding what consequent proportion of its value is
thus destroyed have led commentators to question the adequacy of
the theory.64
The Traditional Approach in the Environmental
Context—Illustrative Controversies
As might be expected, the absence of a single theory to determine
whether regulation amounts to a taking has led to a certain lack of
uniformity among states in resolving the issue in essentially similar
fact situations. A survey of judicial solutions to the taking issue in
some of the major categories of current land use regulations should
provide a basis for anticipating the direction in which these cases
appear to be moving.
Prohibiting Land Fill—the Wetlands Cases
A good example of recent judicial activity in the taking context
is provided by the wetlands cases, testing the validity of regulations
restricting an owner's right to fill or otherwise develop low-lying
marsh or coastal lands. Such restrictions, prompted both by flood
control concerns and by a desire to preserve resources critical to the
conservation and development of wildlife, often result in depriving
the private owner of such land of all potential development value.
Some courts, in such cases, have required compensation solely on
the diminution of value theory. The Supreme Court of Maine, for
example, in Maine v. Johnson,65 held the State Wetlands Act invalid
as applied to the particular land at issue on the basis of lower court
findings that "appellants' land absent the addition of fill 'has no
commercial value whatever.' " 66 Although the Johnson opinion also
elaborates in some detail on the public interest in preserving the
valuable marshland resource, such elaboration appears to be little
more than window dressing in light of the court's reliance on a
formula that automatically equates the extreme loss of commercial
value with a constitutional "taking." 67
To similar effect is the New Jersey decision in Morris County Land
Improvement Co. v. Parsippany-Troy Hills.6S That case held invalid
a meadow development zone as applied to certain swamplands. Al-
though the zoning legislation in that case allowed a wide variety of
explicitly stated uses, the court noted that many of these uses were
"public or quasi public in nature, rather than of the type available
to the ordinary private landowner as a reasonable means of obtaining
a return from his property. . . ." 69 In the court's view, "about the
only practical use which can be made of property within the zone is a
hunting or fishing preserve or a wildlife sanctuary, none of which
can be considered productive." The court accordingly concluded
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that a taking had occurred under a theory requiring compensation
where: 70
[t]he ordinance so restricts the use that the land cannot practically
be utilized for any reasonable purpose or when the only permitted
uses are those to which the property is not adapted or which are
economically infeasible.
Two recent Connecticut cases'follow a similar pattern. In Dooley
v. Town Plan and Zoning Comm'n,71 legislation placing land in a
flood plain zone where no improvements were permitted was held in-
valid. The case admittedly involved an additional complicating fac-
tor: the land at issue had only recently been assessed with an $11,000
special levy for a sewage district, thus adding to the apparent harsh-
ness of the subsequent land use restriction. In Bartlett v. Zoning
Commission,™ however, the court left little doubt that it was follow-
lowing a straightforward diminution of value theory. Tidal wetlands
restrictions in that case were held invalid on the basis of a finding
that as a result of the restrictions "the plaintiff's use of his property
is practically nonexistent." 73
In contrast to these cases, decisions in Massachusetts and Cali-
fornia, apparently employing a more flexible balancing test, have
upheld similar wetlands regulations despite their destruction of com-
mercial value. The Massachusetts court, in Turnpike Realty v. Town
of Dedham,7* explained its decision as follows:
Although it is clear that the petitioner is substantially restricted
in the use of the land, such restrictions must be balanced against
the potential harm to the community from overdevelopment of a
flood plain area.
In Candlestick Properties, Inc. v. San Francisco Bay,75 the Cali-
fornia Court of Appeals reached a similar result. It upheld the denial
of a permit to fill bay lands, but the rationale for the result was less
explicit. Complainant's evidence showed that the land in issue, which
was submerged at high tide by the waters of San Francisco Bay, had
been acquired in 1964 at a cost of $40,000 specifically "as a place to
deposit fill from construction projects." 76 Thus the land had no
value "except as a place to deposit fill and as filled land." Without
disputing this evidence, the court nevertheless upheld the fill restric-
tion, apparently relying on two considerations. First, the court noted
the strong public interest in the restriction: ™
The Legislature has determined that the bay is the most valuable
single natural resource of the entire region and changes in one
part of the bay may also affect all other parts; that the present
uncoordinated, haphazard manner in which the bay is being filled
threatens the bay itself and is therefore inimical to the welfare of
both present and future residents of the bay area; and that a re-
gional approach is necessary to protect the public interest in the
bay.
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GUIDELINES AND REPORTS 1089
Second, the court agreed that "an undue restriction" could amount
to a taking—citing Pennsylvania Coal Co. v, Mahon—but concluded
that "it cannot be said that refusing to allow appellant to fill its bay
amounts to an undue restriction on its use." 78
It is this latter conclusion that provides the contrast with the
Connecticut and New Jersey decisions, noted above, and it is inter-
esting to note the manner in which the California court attempted
to distinguish both the decision in Dooley and in Parsippany-Troy
Hills. In Dooley, the court explained: 79
[T]he restrictions placed upon the use of the plaintiffs land were
so extensive that the land could be used for no other purpose than
for a flood control district, with the result that the land was depre-
ciated in value by 75%.
In view of the undisputed evidence of the effect of the fill restriction
on the value of the plaintiff's land in Candlestick, this attempt at
distinction seems questionable. More to the point, perhaps, is the
court's explanation of how the case differed from Parsippany-Troy
Hills: 80
The purpose of the regulations and restrictions imposed in the
instant case is not merely to provide open spaces. Rather, they are
designed to preserve the existing character of the bay while it is
determined how the bay should be developed in the future (em-
phasis added).
The Candlestick opinion thus seems to suggest three possible theories
for upholding legislation despite extensive or complete destruction
of economic value. The court may be saying: 1) that "reasonable
remaining uses" are not to be measured solely in economic terms;
2) that however severe the restriction, it is not "undue" where the
public interest is sufficiently great; 3) that a taking does not occur
where a mere moratorium is placed on development, pending the
completion of a comprehensive plan for rational and controlled
future development of the area. In the latter case, of course, resolu-
tion of the taking issue may simply have been postponed until the
formulation of a more complete conservation and development plan.
But under any of these theories, the diminution of value test of
Pennsylvania Coal appears to have been modified significantly to
allow the general interest in preserving existing features of the bay
to outweigh the conflicting interest of the private owner in making
an economically profitable use of his property.
Regulating Growth and Development
The control of population growth and density in order to preserve
agricultural or rural land or to prevent urban congestion has long
been an objective of widespread zoning provisions that prescribe
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large lot sizes and deep building setbacks. Numerous cases in the
urban context hold such restrictions valid, making only brief refer-
ence to the potential taking problem.81 Even where large minimum
lot restrictions are involved, the courts have approved such regula-
tions, quite commonly under some form of a balancing theory that
measures such things as the drainage, physical, and cultural charac-
teristics of the area against the economic impact of the restriction
as well as against minority exclusionary motives that may underlie
such zoning techniques in some cases.82
In this context, too, the diminution of value theory often seems
to deter judicial approval of population density restrictions that pre-
vent substantially all economic use of the property. In a recent New
York case, for example, a developer who had purchased 70 acres
of land for subdivision into 44 lots challenged a subsequent require-
ment increasing the minimum lot size. The trial court found that
the resultant increase in cost per lot was "significant economic injury"
requiring invalidation of the ordinance.83 It reached this result de-
spite the fact that the area proposed for subdivision was in a part of
the town where sewer and water facilities were not planned due to
difficulties with the terrain and that the rezoning was initiated as
part of a well-coordinated and comprehensive land use scheme for
the town. A court of appeals later overturned the trial court decision,
finding that the plaintiff's own testimony established that the sub-
division was uneconomical under either the old or the new zoning
scheme. Thus the impact of the restriction was more relevant "to
plaintiff's qualifications as an entrepreneur than to the question of
confiscation." 8*
The court did, however, reaffirm the general principle that the
landowner would succeed in his challenge if he could show that he
was deprived of "any use of the property to which it was reasonably
adapted" or if the regulation destroyed "the greater part of the value
of the property." 85
A fairly recent practice in this area of land use regulation is to
place a temporary moratorium on growth in order to phase, to time,
or otherwise to control residential development. Initial judicial con-
frontations with this type of regulation often resulted in opinions sug-
gesting that a municipality may not escape the burdens of growth
in the guise of regulation to maintain a status quo of artificially low
density.86 Recently, however, courts have increasingly recognized the
right of a town to restrict development to some extent in accord with
the ability of the municipality to provide essential services. Two cases,
one in New York and one in New Hampshire, are particularly illus-
trative. The New York case, mentioned earlier in this chapter, in-
volved the attempt of the town of Ramapo to phase development in
accordance with the community capital budget plan. The plan was
fairly simple. Points were assigned according to the proximity of the
proposed residential unit to certain required services, such as sewers,
fire protection, schools, and the like. Fifteen points were required
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GUIDELINES AND REPORTS 1091
before a developer could build more than one residential unit on a
preexisting zoned lot. The effect of the plan was to keep some land
from residential development for as long as 18 years. Faced with the
developer's challenge to the plan, the New York Court of Appeals
explored the growth pressures and planning work that had led to
Ramapo's attempt to eliminate premature subdivisions and un-
checked suburban sprawl. The court found that the restrictions were
"substantial in nature and duration." However, it rejected the taking
challenge, relying in part upon the fact that the restrictions were
only "of a certain duration and founded upon estimate determined by
fact." 87 The court stressed the community's need to adjust existing
physical and financial resources to the demand for essential services
and facilities which a growing population requires.
Of equal interest is the decision of the U.S. Court of Appeals for
the First Circuit in Steel Hill Development v. Sdnbornton.ss As men-
tioned previously, the issue in the case involved the validity of a 6-
acre minimum lot requirement enacted by the small New Hampshire
Town of Sanbornton in order to preserve the rural nature of the
Town and to avoid environmental and growth problems threatened
by proposed recreational home development. In upholding the lot
size restriction, the court recognized the legitimacy of the general
purpose of the legislation and acknowledged the distinction between
the problems of controlling suburban as opposed to rural expan-
sion: S9
We recognize, as within the general welfare, concerns relating to
the construction and integration of hundreds of new homes which
would have an irreversible effect on the area's ecological balance,
destroy scenic values, decrease open space, significantly change the
rural character of this small town, pose substantial financial bur-
dens on the town for police, fire, sewer, and road service, and open
the way for the tides of weekend "visitors" who would own second
homes. . . .
The court admitted that it was "disturbed" by the lack of evidence
that the Town had carefully related this general environmental con-
cern to the specific 6-acre limitation. But it nevertheless upheld the
limitation: 90
[A]t this time of uncertainty as to the right balance between eco-
logical and population pressures, we cannot help but feel that the
town's ordinance, which severely restricts development, may prop-
erly stand for the present as a legitimate stop-gap measure.
In effect, the town has bought time for its citizens not unlike
the action taken in referendum by the City of Boulder, Colorado to
restrict growth on an emergency basis until an adequate study can
be made of future needs. . . .
The court's opinion in this case was admittedly aimed primarily
at resolving the issue of whether the Town's ordinance was a legiti-
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mate exercise of government power at all, rather than the question
of whether compensation was required. The latter issue was dealt
with summarily under traditional theories by noting that the value
of the landowner's property had not been so substantially impaired
as to amount to a taking. Both cases, however, reveal an increasingly
receptive judicial attitude toward the needs of government in deal-
ing with the problems attendant on unplanned growth.
Preserving the Quality of the Human Environment
Open Space Preservation—In addition to land use regulations de-
signed to preserve critical natural resources or to prevent the adverse
effects of unplanned growth or unregulated polluting activities, regu-
lations have also been enacted to preserve or enhance aesthetic, cul-
tural, or recreational benefits for the general public. A common
example is the open space or green space requirements imposed on
developers as a condition to the subdividing of the land. Such provi-
sions in effect require developers to dedicate a portion of their subdi-
vision to public uses—for example, by setting aside a specified acreage
for use as parks or recreational areas. Because such requirements in
most cases will not act to deprive the developer of all potential profit,
cases upholding such provisions can easily be reconciled with tradi-
tional taking theories. In addition, courts often rely on the rationale
that because by his subdivision the developer himself has created the
additional need for park or playground area, he can reasonably be
expected to bear the expense of accommodating that need.
Illustrative of this approach is the 1970 decision of the Connecticut
Supreme Court in Aunt Hack Ridge Estate, Inc. v. Planning Commis-
sion of the City of Danbury.91 The plaintiff in the case was the sub-
divider of a 275-acre parcel which he proposed to divide into 11 lots.
At issue was the validity of a local ordinance, established pursuant to
a State statute, that required the developer to set aside an area for
a park or playground. According to the court, the test generally ap-
plied to determine the validity of such requirements "is whether the
burden cast upon the subdivider is specifically and uniquely attribut-
able to its own activity." Finding this test met in the present case,
the court upheld the requirement: 92
Engaging in the activity is left to [the developer's] own choice.
When it undertakes to subdivide, the population of the area is neces-
sarily increased and a need for open space for its people becomes a
public one. . . . [T]he complaint is that the plaintiff should be able
to assert an individual interest in filling the entire area with hous-
ing as superior to the public interest in maintaining a more health-
ful open space environment. For the reasons already discussed, the
public welfare must be paramount.
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GUIDELINES AND REPORTS 1093
A 1961 Illinois decision, however, reached an opposite conclusion
under a similar ordinance on the grounds that there had been no proof
that "the need for recreational and educational facilities ... is one
that is specifically and uniquely attributable to the addition of the
subdivision and which should be cast upon the subdivider as his sole
financial burden." 93 The facts of the case indicated that the school
facilities near the proposed subdivision were already near capacity.
Thus the need for additional facilities could not be attributable to the
developer's proposal, and the requirement that he provide such facil-
ities appeared to operate as a requirement that he assume without
compensation obligations that are more legitimately those of the
community.
Landmark Preservation—Historic preservation has also been the
objective of numerous local ordinances, state laws, and more recently,
the National Historic Preservation Act.94 In the courts, historic
preservation has generally withstood challenges based on the taking
clause—a result that once again seems to square with straightforward
application of traditional taking theory: because property subject to
historic preservation requirements will generally still have some
economically reasonable use, the mere fact that a more profitable use
might have been made by destroying the historic site or structure does
not present a constitutional problem. Typical is the comment of a
lower New York court in 1968: 95
We deem certain of the basic questions raised to be no longer argu-
able. In this category is the right, within proper limitations, of the
state to place restrictions on the use to be made by an owner
of his property for the cultural and aesthetic benefit of the
community. . . .
Although some courts have questioned whether aesthetic preserva-
tion is to be placed on a par with safety and health as a legitimate ob-
jective of the exercise of the police power,96 others have upheld legisla-
tive attempts to prevent activities that deface natural scenery and
places of historic interest.97 The relationship of such ordinances to
both cultural and economic factors should suffice to establish them
within the reach of the police power, leaving the taking question to
depend on whether compliance with provisions which prohibit im-
pairment of style or require remodeling or repairing of existing build-
ings would in effect render them valueless or substantially useless.
An apparently contrary decision was reached, however, by New
York's highest court in the case of a law designed to preserve the old
Metropolitan Opera House in New York City.98 The law, enacted by
the State Legislature in 1967, provided that the superintendent of
buildings of the City of New York could refuse a demolition permit
for a period of 180 days upon the request of the trustees of the Old
Metropolitan Opera House, Inc., and the deposit by the latter of
$200,000. Shortly after the statute was approved, Keystone Associates,
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which held demolition rights, initiated court proceedings to compel
the issuance of a permit. The court found that the deprivation in
value caused by the statute was unreasonable and accordingly held
the provision invalid. By the time the decision had been rendered, the
180-day period had expired, and by the terms of the statute the
superintendent of buildings was required to issue the demolition
permit in any event. The implications of this decision for historic
preservation provisions in New York are currently being tested in the
context of New York's landmarks law as applied to Grand Central
Terminal, one of the great classic railroad stations in the country.
Penn Central, which would prefer to use the space for an office build-
ing that would bring in greater profits, has challenged the requirement
that would preserve this structure in its existing state."
Recent Judicial Trends—the Response to New
Environmental Concerns
The Traditional Approach Revisited
It would be a mistake to conclude from the foregoing examples
that the taking issue is significantly involved in every new piece of
land use legislation. Equally misleading would be the implication that
traditional judicial theories have no applicability to new environ-
mental concerns. The physical invasion theory, for example, has
adjusted to the idea that air, noise, or water pollution can amount
to "physical invasions" and can constitute a taking of property just
as surely as actual entry on land.100 Similarly, the nuisance abatement
theory has long recognized that legitimate public concern over pol-
lution effects and other aspects of the environment justifies regulating
land use practices that cause such effects.101 In like manner, the
balancing theory's concept of the public good encompasses increased
concerns over pollution and the protection of natural resources as
factors weighing in favor of land use regulations.
The single possible exception is presented by the diminution of
value theory. This theory—that extreme reduction in the value of
land results in a taking of property—seems at first glance to leave little
room for consideration of possible countervailing public concerns.
The constraining influence of the diminution of value theory on
legislative attempts to preserve environmental quality by appropriate
land use restrictions is particularly evident in wetlands cases. To
prohibit fill or development in such areas often prevents almost any
commercial use of the land. If full compensation were automatically
required, states would have to balance these costs against the need
to protect declining wetlands resources.
As described earlier, recent state court opinions indicate that the
traditional diminution of value theory is being reexamined. Courts
are no longer interpreting the taking clause to mean that the elimina-
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tion of commercial value by regulation must amount to a constitu-
tional taking in all cases. The following sections describe some of the
theories that courts and legal commentators have relied on to reach
this result.
The Declining Importance of Economic Loss as a Test for Taking
The Undermining of the Diminution of Value Theory—As ex-
pressed in the old Pennsylvania Coal case, this theory has been un-
dermined in recent years by the U.S. Supreme Court itself as well as
by state supreme courts.
In 1962, some 40 years after Pennsylvania Coal, the Supreme
Court, in Goldblatt v. Hempstead,102 decided another mining case,
this time involving the validity of a municipal ordinance that reg-
ulated dredging and pit excavation on property within the town
limits. The ordinance prohibited excavation below the water table
and required an operator to refill any excavation below such level.
At the time the ordinance was enacted in 1962, the plantiff, who had
been dredging and excavating his property since 1927, had excavated
some 25 feet below the water table, leaving a lake of about 20 acres.
Suit was filed claiming that the ordinance prevented the owner from
continuing his business and therefore took his property without due
process of law. The opinion of the Court reemphasized that an other-
wise valid exercise of the police power "is not unconstitutional merely
because it deprives the owner of its most beneficial use." 103 The
Court cited Pennsylvania Coal for the proposition that a sufficiently
onerous regulation could constitute a taking. But it also noted that
the loss in value "is by no means conclusive," citing Hadacheck v.
Sebastian, supra, in which a diminution in value from $800,000 to
$60,000 was upheld. Because it was argued in Goldblatt that the
ordinance wholly destroyed the economic value of the land, the
opinion suggests that the Court has retreated from the strict diminu-
tion in value theory relied on in Pennsylvania Coal.104
A California Supreme Court case decided at about the same time
as Goldblatt reached a similar result. In Consolidated Rock Products
Co. v. City of Los Angeles,105 the court upheld a ban imposed by
the City of Los Angeles on rock and gravel mining operations in
agricultural and residential districts. The court distinguished Penn-
sylvania Coal by noting that the Los Angeles mining regulation left
the owner with some use of his property.106 But it also suggested that
even if this had not been the case, the regulation would have been
upheld as a valid exercise of the police power.107
In addition to these inroads on Pennsylvania Coal, at least one
recent study has gone even further to suggest that regulation, as
opposed to outright appropriation of property, should never amount
to a taking.108 Although this study finds historical evidence to support
its view, the suggestion that regulation can never amount to a taking
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probably goes beyond the present state of the law. Courts do not
completely agree on what is essential to the concept of property. But
the mere fact that one has record title to a particular parcel of land
by itself seems one of the least important ingredients. It is the prac-
tical effect of such ownership, reflected in one's ability to use and
enjoy such land, that gives content to the purely formal fact of owner-
ship. When an owner is deprived of all possibilities for use of his land
in order to preserve or create a benefit for the public, it is difficult to
hold that different legal consequences should attach solely on the
basis of whether the government chooses to act by way of condemna-
tion or by regulation. The rejection of distinctions based on form
rather than substance is a basic element of American jurisprudence.
On the other hand, land use regulation that is employed to curtail
some affirmative harm to the public rather than to permit a public
use does not necessarily lose its character as regulation and become a
taking simply because some significant economic potential is thereby
circumscribed. This distinction, based on "the relation which the
affected property bears to the danger or evil which is to be provided
against," 109 seems to underlie many judicial decisions sustaining land
use regulations in the environmental area.
The Nuisance Abatement Theory—Consistent with the above dis-
tinction, a substantial body of judicial precedent supports the proposi-
tion that in some cases regulation will not amount to a taking despite
a major diminution in value. This precedent is best illustrated by cases
following the nuisance abatement theory. A leading example is the case
of Hadacheck v. Sebastian, discussed earlier, in which the Supreme
Court upheld an ordinance prohibiting the manufacture of bricks
despite evidence that the property owner's land was diminished in
value by over 90 percent, from $800,000 to $60,000. Justice Brandeis
relied on this case in his dissenting opinion in Pennsylvania Coal. Two
other cases also cited by Justice Brandeis in that opinion were Mugler
v. Kansas 110 and Powell v. Pennsylvania.™ In the first case, as noted
earlier, the Supreme Court upheld a prohibition on the manufacture
of alcoholic beverages which substantially destroyed the economic
value of the property. In the latter case, decided just a few years after
Mugler, a Pennsylvania ban on the manufacture or sale of oleomar-
gerine was similarly upheld against a claim that it constituted a taking
of private property. The State of Pennsylvania argued that the pro-
hibition was necessary to protect the public against widespread fraud,
because a substantial number of enterprising merchants had been
selling oleomargarine as butter. Relying explicitly on Mugler, the
Supreme Court concluded that no taking had occurred even though
the plaintiffs' business had been substantially impaired. Although
both of these cases involved what appear to be business rather than
land use regulations, in effect they amount to declarations that the
land involved could not be used for specified purposes. In addition,
these regulations were upheld despite the severity of their economic
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GUIDELINES AND REPORTS 1097
impact and without investigating the reasonableness of other possible
uses.
These precedents, all of which figure heavily in the dissenting opin-
ion in Pennsylvania 'Coal, were by no means overruled by the majority
decision in that case. Six years after Pennsylvania Coal, the Supreme
Court in Miller v. Schoene 112 upheld a Virginia statute that required
the destruction of privately owned red cedar trees that were infected
by cedar rust. The rust infection was not dangerous to the cedar
trees but was fatal to the fruit and foliage of nearby apple orchards
of other landowners. Relying on Hadacheck and without even citing
Pennsylvania Coal, the Court agreed that the paramount public
concern justified the State's decision to protect apple trees despite
impairment of the value of the complaining landowner's property.
"Where the public interest is involved," the Court noted, "preferment
of that interest over the property interest of the individual, to the
extent even of its destruction, is one of the distinguishing characteris-
tics of every exercise of the police power which affects property." 113
The preceding cases indicate that there is substantial judicial
precedent for upholding state nuisance regulations even where the
effect is substantial impairment of economic value. In some of these
cases, however, the underlying rationale for the nuisance abatement
theory is unclear. As noted earlier, the nuisance abatement theory
is sometimes tied to the notion that the landowner is somehow to
blame for activities determined to be harmful (even in cases in which
the harm results from changes in surrounding land uses after the
offending activities were begun). But the designation of fault in
cases involving conflicting land uses is not inherent in the nuisance
theory. In all of these cases, the same result is reached through a rec-
ognition of the paramount public interest in preventing certain kinds
of activities that are particularly likely to harm a significant segment
of the public or surrounding landowners. By focusing on the relative
priorities that society attaches to competing interests, courts avoid
arguments about which of two or more landowners is primarily "at
fault" for a problem.
Even under this approach, however, there are still conceptual
problems in some cases in determining just when the theory is ap-
plicable. Every legitimate exercise of the police power implicitly in-
volves an assertion of paramount public interest in prohibiting cer-
tain private activities. If the nuisance abatement theory is used to
determine when such assertions of public interest do not require
compensation, it must be because the theory reflects objective stand-
ards of society concerning the rights that one can expect to accom-
pany the ownership of property. In Hadacheck v. Sebastian, for
example, the noise, smoke, and fumes emitted by the brick manu-
facturing operation were typical types of effects that have tradi-
tionally been subject to abatement under the common law of nui-
sance. Thus the Court's conclusion that the concept of "property"
does not embrace the right to carry out such activities did not do
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violence to legitimate expectations about the rights that accompany
property ownership. In contrast, application of the theory in Mugler
v. Kansas is somewhat more questionable. In that case, to label the
brewery business a "nuisance" is little more than to announce a re-
ordering of values that the complaining property owners could
scarcely have anticipated when their businesses were established.
This defect is avoided if the nuisance abatement theory is confined
to cases in which some objective standard limits the scope of prop-
erty rights in accordance with expectations of society.
The nuisance abatement theory, then, is a means of determining
those types of cases in which an owner's expectations concerning the
use of his land can be said to be unjustified, requiring him to take
the risk that such uses will be subject to restriction. Under this ap-
proach, the courts avoid redefining "property" in new directions
that could not have been anticipated.
The nuisance abatement theory, thus stated, supports a wide
variety of land use regulations based on environmental concerns.
For example, restriction of land use practices that cause pollution
affecting the general public or adjoining landowners, as in the case
of many mining activities, do not require compensation under the
nuisance theory. The theory's applicability outside the pollution con-
text is indicated by recent court cases discussed in the following
section.
The Critical Natural Features Theory—As understanding of the
interrelatedness of environmental concerns increases, so also does the
identification of what might be called critical natural features of the
land, the alteration of which will drastically affect areas of vital
public concern. The wetlands cases provide a good example. Popu-
lation and urban expansion pressures have presented developers with
opportunities to realize profits through filling or reclaiming wetlands.
But such areas in their undeveloped state serve a number of critical
public functions, including flood control and ecological balance. To
assume that one has an inherent right to alter wetlands ignores
interests of the public that have long existed but that until recently
have been taken for granted. Courts are beginning to declare that
regulations protecting these wetlands functions do not constitute a
taking.
As with the nuisance abatement theory, the critical natural fea-
tures theory does not depend on a subjective view about what is or
is not natural or on elevating the natural features of land to special
protective status. The emphasis on the functions that certain critical
lands serve in their natural state simply explains why a court's de-
termination that a paramount public interest limits the "right" to
alter the land's features does not overturn legitimate prior expecta-
tions of property owners. To require an owner to assume the risk
of changing notions of property in the case of land that exhibits
on its face its publicly critical nature is a significantly lesser imposi-
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tion than the risk assumed, for example, by the brewery owners in
Mugler v. Kansas concerning possible changing public attitudes
toward alcoholic beverages.
The most recent case adopting the critical natural features theory
is the wetlands decision of the Wisconsin Supreme Court in Just v.
Marinette County.114 Faced with a taking challenge to prohibitions
on the filling of land similar to the prohibitions that had led to con-
flicting results in other jurisdictions, the Wisconsin court upheld
the prohibition, expressing dissatisfaction with "the basic rationale
which permeates the decision that an owner has a right to use his
property in any way and for any purpose he sees fit." Especially im-
portant to the court were the public interests served by the land in its
natural state: 115
In the instant case we have a restriction on the use of a citizen's
property, not to secure a benefit for the public, but to prevent a
harm from the change in the natural character of the citizen's
property. . . . What makes this case different from most con-
demnation or police power zoning cases is the interrelationship of
the wetlands, the swamps and the natural environment of shore-
lands to the purity of the water and to such natural resources as
navigation, fishing, and scenic beauty. . . .
. . . An owner of land has no absolute and unlimited right to
change the essential natural character of his land so as to use it for a
purpose for which it was unsuited in its natural state and which
injures the rights of others. The exercise of the police power in
zoning must be reasonable and we think it is not an unreasonable
exercise of that power to prevent harm to public rights by limiting
the use of private property to its natural uses. . . .
. . . The Justs argue their property has been severely depreciated
in value. But this depreciation of value is not based on the use of the
land in its natural state but on what the land would be worth if it
could be filled and used for the location of a dwelling. While loss
of value is to be considered in determining whether a restriction
is a constructive taking, value based upon changing the character
of the land at the expense of harm to public rights is not an essential
factor or controlling.
Just v. Marinette County stands as an explicit judicial recognition
that regulations preserving certain publicly critical features of land
may be upheld without compensation despite great loss in economic
development potential.
The Moratorium Theory—One additional theory deserves mention
as an exception to the idea that severe diminution of value auto-
matically constitutes a taking. The basis for this theory is the new
awareness that natural systems are interrelated in complex ways that
often preclude prediction of the full range of consequences likely to
follow from changes in any single part of the system. The literature of
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the past 10 years is replete with examples of adverse effects caused
by changes in land use that were recognized only after the fact.
Draining of swamps reduced aquatic life. Construction of houses on
steep slopes caused landslides. Flood plains were occupied. Examples
such as these provide pressure in some cases to impose what might be
called a legislative moratorium on alterations in certain critical eco-
logical systems pending a fuller understanding of the potential con-
sequences of such alterations. If such pressure is resisted because of a
potential compensation problem, irreparable harm may be done or
valuable public benefits may be lost for which society would have
been willing to pay if only it had had opportunity to calculate ac-
curately those alterations that could be permitted and those that
should be avoided.
In such cases, courts are beginning to conclude that prohibition
of private development, even if economic value is thus temporarily
impaired, does not sufficiently restrict private expectations about the
rights that accompany ownership of land to require compensation.
Such a prohibition only requires an owner to give up the right to
run the risk that the unforeseen consequences of his activities may
turn out to be disastrous. Cases illustrating application of this theory,
particularly the recent decision of the U.S. Court of Appeals for the
First Circuit in Steel Hill Development Corp. v. Sanbornton,lle have
been discussed earlier in this chapter. Admittedly the theory may
only postpone the question of the need for compensation until an
adequate study has been made of the proper balance between eco-
logical and population pressures. But Sanbornton and related cases
support such "stop-gap" measures pending completion of such a
study even though the result is to restrict development temporarily.
Summary and Conclusions
The Role of the Legislature
The preceding analysis has focused on judicial responses to the
potential tensions between the taking clause and state regulatory
authorities. However, the relative paucity of U.S. Supreme Court
decisions on the issue 117 is an indication that state and local legisla-
tive bodies may have considerable latitude in developing land use
control measures provided that the legislatures reach a considered
judgment of the public interest and the private equities involved in
order to allocate fairly the costs of such measures between the public
and the private landowners.
Several opinions already indicate that courts will be slower to in-
validate controls on constitutional grounds for failure to provide
compensation if the legislation and its history evidence such a con-
sidered judgment. Deemphasizing the constitutional issue sets the
stage for a variety of possible legislative formulae for providing com-
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pensation, many of which have received considerable attention in the
literature.118
A number of legislative approaches to the problem have been dis-
cussed in the study undertaken for the Council on the taking issue.119
These techniques include: creating a system of compensable regula-
tions under which the government strikes a compromise between full
payment and no compensation at all, demonstrating a preexisting
government property interest in the land, and avoiding the taking
issue altogether by buying some or all of the land on which develop-
ment is to be severely restricted.120
A responsible and careful approach to the problem by the legisla-
ture may itself be a critical factor in resolving the constitutional
issue. It could be, tor example, that the Connecticut decisions in
Dooley 121 and Bartlett,122 both of which invalidated fill prohibitions,
might have been decided differently if the legislation had provided for
a procedure through which individual development applications could
be evaluated. The use of such a special permit technique favorably
influenced the Wisconsin court in Just v. Marinette County.™3 By
contrast, much of the concern of the First Circuit in the Sanbornton
decision m resulted from the apparent arbitrary selection, without
supporting explanation, of the 6-acre limitation.
The lesson of such cases is that the constitutional authorization for
land use controls cannot be taken by legislatures as an invitation to
ignore the resulting burden on individual landowners. By providing
procedures to adjust regulations on a case-by-case basis and by care-
fully tailoring restrictions to keep them as closely commensurate as
possible to the problem that justifies the restriction in the first place,
legislators can reduce the burden on property owners and avoid
potential constitutional problems.
Evolving Concepts of Property
This chapter began by noting that judicial interpretations of the
taking clause necessarily involved defining and redefining the concept
of property. The emerging judicial developments and theories out-
lined above indicate that this process of redefinition appears to be
moving in the direction of recognizing that land is a resource as well
as a commodity.125 Basically, the movement is away from the 19th
century idea that land's only function is to permit its owner to make
maximum profit. Whereas the traditional answer to the question,
"Why regulate land use?" was "to maximize land values," the new
answer is becoming "to make the best use of our land resources."
And the purposes encompassed by the latter answer are a far cry
from the simple value maximization concepts of early real estate
interests. Conserving land for agriculture, preserving areas of scenic
beauty, protecting the rural environment, and preserving the critical
functions of wetlands—all of these indicate the extent to which the
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goal of long-range enhancement of land values is replacing a system
aimed solely at increasing the short-run value and salability of land.
The interest of the general public and of future generations is no
longer ignored in defining the concept of private property.
It is in the transition period between the traditional and emerging
concepts of property that the problem of compensation is particularly
acute. This chapter shows that there is no single consistent theory for
dealing with this problem in all cases. Indeed, despite the criticisms
that have been aimed at various judicial formulations, it may well be
that no single formula is either possible or desirable. In the final
analysis, all such formulae seem to be attempts to extrapolate from
what is at base an ethical judgment about the fairness of alternative
means of distributing the costs of protecting certain land-related
values that yield positive net benefits to society. In most cases that
judgment has traditionally suggested that the proper balance between
the interests of private landowners and the public is maintained by
requiring compensation when land use regulations do not leave the
landowner with any "reasonable" use of his property. Increasingly,
as new concepts of property have become more firmly established and
recognition of the value of land as a scarce resource has mounted,
the definition of reasonable use has changed. Automatic application of
the reasonable use formula is being replaced by a more flexible ap-
proach. This approach provides equitable treatment for the interests
involved—those of individual property owners and of society—based
on the legitimate expectations of each. The theories discussed above
explain the emerging judicial framework supporting this development
and bridging the transition between old and new concepts of the
rights that accompany ownership of land.
Footnotes
1. F. Bosselman and D. Callies, The Quiet Revolution in Land Use Con-
trol 1 (1971) [hereinafter cited as The Quiet Revolution],
2. Steel Hill Development, Inc. v. Town of Sanbornton, 4 ERG 1746, 1747
(IstCir. 1972).
3. See Council on Environmental Quality, Environmental Quality—Third
Annual Report 221-59 (1972); Council on Environmental Quality,
Environmental Quality—Second Annual Report 155-77 (1971).
4. Statement by Russell E. Train, Chairman, Council on Environmental
Quality, upon release of the report, The Quiet Revolution in Land Use
Control, Jan. 11, 1972.
5. See Chapters.
6. U.S. Const, amend. V. This provision is also applicable to state govern-
ments through the 14th amendment. See C.B. & O. Ry. v. Chicago, 166
U.S. 26 (1896).
7. See, e.g., Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).
8. Environmental Protection Act of 1971, § 3 (1966 P.A. 96).
9. Rykar Industrial Corp. v. Commissioner of Agricultural Resources,
Superior Court, Hartford County, Conn. No. 170229 (April 2, 1971);
see F. Bosselman, D. Callies, and J. Banta, The Taking Issue, at 3
(1973) [hereinafter cited as The Taking Issue].
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GUIDELINES AND REPORTS 1103
10. See The Quiet Revolution at 205-25; The Taking Issue at 4.
11. See Turnpike Realty v. Town of Dedham, 4 ERG 1344 (Mass. 1972);
The Taking Issue at 5.
12. See The Taking Issue at 8.
13. See St. Petersburg Times, Jan. 30, 1973 at 1-B, col. 3; Feb. 1, 1973 at
1-B, col. 1; The Taking Issue at 20-22.
14. See Chouinard v. New Hampshire Water Resources Board, 110 N.H. 8
(1969), now in Rockingham County Superior Court; The Taking
Issue at 5.
15. See Candlestick Properties v. San Francisco, 2 ERG 1075 (Calif. Ct.
App. 1970) ; The Taking Issue at 41.
16. See The Taking Issue at 11.
17. See Penn Central Transportation Co. v. City of New York, Supreme Ct.
of the State of New York, County of New York, No. 14763169 (1972);
The Taking Issue at 12.
18. See Golden v. Planning Bd. of Town of Ramapo, 334 N.Y.S. 2d 138,
285 N.E. 2d 291 (1972), appeal dismissed, 409 U.S. 1003 (1972).
19. See The Taking Issue at 21; St. Petersburg Times, Dec. 7, 1972 at
10-B, col. 1.
20. See The Taking Issue at 38; 60 Ceo. L.J. 1363 (1972).
21. See The Taking Issue at 41.
22. See id. at 40.
23. James J. Viso v. State of Calif., Placer County, Calif., No. 38938,
Aug. 31, 1972; The Taking Issue at 40.
24. See California Public Resources Code §§ 27000 et seq. (1973 Supp.).
25. C. Haar, Land Use Planning 410 (1959).
26. Statement by Russell E. Train, Chairman, Council on Environmental
Quality upon release of the report, The Quiet Revolution in Land Use
Control, Jan. 11, 1972 at 6.
27. The President's Message to Congress accompanying Environmental
Quality—The First Annual Report of the Council on Environmental
Quality at xiii (1970).
28. The Taking Issue.
29. Id.
30. Id. at 106.
31. T. Sedgwick, A Treatise on the Rules Which Govern the Interpretation
and Construction of Statutory and Constitutional Law 455n (2d ed.
1874).
32. See Sax, "Takings and the Police Power," 74 Yale L.J. 36, 56-57 (1964).
33. 1 Annals of Congress 451-52; 2 Schwartz 1057; Stoebuch, "A General
Theory of Eminent Domain," 47 Wash L. Rev. 553, at 595, as noted in
The Taking Issue at 92 (emphasis added).
34. Stoebuch, supra note 33, at 594-95, as noted in The Taking Issue at 100.
35. Pennsylvania Coal v. Mahon, 260 U.S. 393, 415 (1922).
36. 123 U.S. 623 (1887).
37. 369 U.S. 590 (1962).
38. Id. at 594.
39. 260 U.S. 393 (1922).
40. These four theories are identified and extensively discussed in Sax,
supra note 32, and Michelman, "Property, Utility and Fairness: Com-
ments on the Ethical Foundations of Just Compensation Law," 80
Han. L. Rev. 1165 (1967).
41. 80 U.S. 166 (1871).
42. Id. at 177.
43. 123 U.S. at 668-69.
44. 1 U.S. Water Resources Council, Regulation of Flood Hazard Areas
389 (1971).
45. Miller v. Schoene, 276 U.S. 272 (1928).
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1104 LEGAL COMPILATION—SUPPLEMENT n
46. See, e.g., Jones v. State, 240 Ind. 230, 163 N.E. 2d 605 (1960).
47. See generally, 1 U.S. Water Resources Council, supra note 44, at 389
and cases cited.
48. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926).
49. 239 U.S. 394 (1915).
50. See Sax, supra note 32, at 49-50; Michelman, supra note 40, at 1198.
51. See, e.g., Rochester Business Inst., Inc. v. City of Rochester, 267 N.Y.S.
2d 274 (1966); La Salle Nat'l Bank v. Cook County, 208 N.E. 2d 430
(111. 1965).
52. See, e.g., Kratovil and Harrison, "Eminent Domain Policy and Concept,"
42 Calif. L. Rev. 596, 609 (1954).
53. Michelman, supra note 40, at 1194.
54. Sax, supra note 32, at 50; Michelman, supra note 40, at 1190.
55. 260 U.S. 393 (1922).
56. Id. at 413, 415.
57. Michelman, supra note 40, at 1191.
58. 260 U.S. at 417.
59. See, e.g., Sax, supra note 32, at 57.
60. See, e.g., Goldblatt v. Town of Hempstead, 369 U.S. 590, 592 (1962).
61. See 1 Anderson, The American Law of Zoning § 2.20 at 85 et seq.
62. See, e.g., Arverne Bay Const. Co. v. Thatcher, 278 N.Y. 222, 15 N.E.
2d 587 (1938); Hempstead v. Lyruse, 222 N.Y.S. 2d 526 (Nassau
County Sup. Ct. 1961).
63. See, e.g., Arverne Bay Construction Co. v. Thatcher, 278 N.Y. 222, 15
N.E. 2d587 (1938).
64. Michelman, supra note 40, at 1192.
65. 1 ERG 1353 (Me. 1970).
66. Id. at 1356.
67. The continued validity of the decision in Maine v. Johnson may, how-
ever, be in doubt in light of a more recent decision of the State's Supreme
Court, upholding provisions of Maine's Site Location of Development
Law. See In re Spring Valley Development, 5 ERC 1127 (1973).
68. 193 A. 2d 232 (N.J. 1963).
69. Id. at 241.
70. Id. at 242.
71. 197 A. 2d 770 (Conn. 1964).
72. 2 ERC 1684 (1971).
73. Id. at 1687.
74. 4 ERC 1344 (Mass. 1972).
75. 2 ERC 1075 (Calif. Ct. App. 1970).
76. Id. at 1076.
77. Id. at 1081.
78. Id.
79. Id.
80. Id.
81. See, e.g., Clemens v. Los Angeles, 36 Gal. 2d 95, 222 P. 2d 439 (1950) ;
Garvin v. Baker, 59 So. 2d 360 (Fla. 1952); Dundee Realty Co. v.
Omaha, 13 N.W. 2d 634 (Neb. 1944); First National Bank v. Chicago,
185 N.E. 2d 181 (111. 1962).
82. See, e.g., Zygruout v. Planning and Zoning Comm., 210 A. 2d 172
(Conn. 1965); Steel Hill Development Corp. v. Sanbornton, 4 ERC
1746 (1st Cir. 1972); County Comm. of Queen Anne's Co. v. Miles, 228
A. 2d 450 (Md. 1967); but see National Land and Investment Co. v.
Kohn, 215 A. 2d 597 (Pa. 1965).
83. Salamar Builders Corp. v. Tuttle, 3 ERC 1267, 1268 (N.Y. 1971).
84. Id. at 1269.
85. Id.
86. See, e.g., In re Kit-Mar, 1 ERC 1152, 1154 (Pa. 1970).
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GUIDELINES AND REPORTS 1105
87. Golden v. Planning Board of Town of Ramapo, 334 N.Y.S. 2d 138, 155,
285 N.E. 2d 291, 304 (1972), appeal dismissed, 409 U.S. 1003 (1972).
88. 4ERC1746 (IstCir. 1972).
89. Id. at 1748.
90. Id. at 1749.
91. 2 ERG 1164 (Conn. 1970).
92. Id. at 1167.
93. Pioneer Trust and Savings Bank v. Village of Mount Prospect, 176 N.E.
2d 799, 802 (111. 1961).
94. 16 U.S.C. §§470 et seq. (1970); see generally, J. Morrison, Historic
Preservation Law (2d ed. 1965) (Supplement 1972).
95. Trustees of Sailors Snug Harbor v. Platt, 288 N.Y.S. 2d 314, 315 (1968).
96. See, e.g., Baltimore v. Mano Swartz, Inc., 4 ERG 2035, 2038 and cases
cited (Md. 1973).
97. See, e.g., Naegele Outdoor Adv. Co. v. Village of Minnetonka, 162 N.W.
2d 206, 212 (1968).
98. Keystone Associates v. Moerdler, 278 N.Y.S. 2d 185 (1966).
99. Penn Central Transportation Co., et al. v. City of New York, et al.,
Supreme Court of the State of N.Y., County of N.Y. No. 14763/69; The
Taking Issue at 12.
100. See, e.g., United States v. Causby, 328 U.S. 256 (1946).
101. See Hadacheck v. Sebastian, 239 U.S. 394(1915).
102. 369 U.S. 590 (1962).
103. Id. at 592.
104. Sax, supra note 32, at 42-43.
105. Consolidated Rock Products Co. v. City of Los Angeles, 20 Gal. Rptr.
638, 370 P. 2d 342 (1962), appeal dismissed, 371 U.S. 36 (1962).
106. Id. at 647, 370 P. 2d at 350.
107. Id.
108. See The Taking Issue at 103.
109. E. Freund, The Police Power, Public Policy and Constitutional Rights
546-47 (1904).
110. 123 U.S. 623 (1887).
111. 127 U.S. 678 (1887).
112. 276 U.S. 272 (1928).
113. Id. at 279, 280 (emphasis added).
114. 4 ERG 1841 (Wis. 1972).
115. Id. at 1844, 1846.
116. 4 ERG 1746 (IstCir. 1972).
117. Dunham, "Griggs v. Allegheny County in Perspective: Thirty Years of
Supreme Court Expropriation Law" 1962 Sup. Ct. Rev. 63.
118. See, e.g., Sax, supra note 32, at 172-86, Krasnowiecki and Strong, "Com-
pensable Regulations for Open Space," 24 /. of Am. Inst. of Planners 87
(1963).
119. The Taking Issue.
120. Id. at 236.
121. 197 A. 2d 770 (Conn. 1964).
122. 2 ERG 1684 (1971).
123. 4 ERG 1841 (Wis. 1972).
124. 4 ERG 1746, at 1749 (IstCir. 1972).
125. See The Quiet Revolution at 4.
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CHAPTER 5
Perspectives on
Environmental Quality
This chapter seeks to put into perspective some of the past year's
significant environmental actions and program trends—where we
stand and where we are going at all levels of government in efforts to
protect the environment.
It discusses issues of implementation—strategies, institutions, and
important secondary effects of environmental programs. Legislative
proposals transmitted to the 93d Congress by the President in his
1973 State of the Union Message on Natural Resources and the En-
vironment are also discussed. Nineteen of these proposals were not
acted upon by the 92d Congress.
The chapter contains sections on air pollution, water pollution,
hazardous pollutants, noise, solid waste, land use, natural heritage,
and NEPA. Coverage is necessarily selective, and neither citation nor
failure to cite a particular action or jurisdiction implies a judgment
on its merits or significance.
Air Quality—Emerging Effects of the Clean Air Act
The Clean Air Amendments of 1970 1 set in motion a nationwide,
Federal-state program to achieve acceptable air quality. In essence,
the Clean Air Act requires achievement of national standards of
ambient air quality to protect public health by 1975. These are known
as primary standards. EPA may grant administrative extensions of
up to 3 years if necessary technology or other alternatives are not
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1108 LEGAL COMPILATION—SUPPLEMENT n
available. Any more stringent standards needed to protect aesthetics,
property, and vegetation—secondary standards—must be achieved
within a "reasonable time," as determined by EPA.2
The Act specifies major reductions in new car emissions of hydro-
carbons (HC) and carbon monoxide (CO) by 1975 and nitrogen
oxides (NOX) by 1976—subject to a 1-year extension by EPA if tech-
nology is not available.3 The reductions in emissions are to the level
that the Congress estimated to be necessary to achieve the health-
based ambient standards even in the most heavily polluted areas of
the Nation.4
At the time of the Council's last Annual Report, the groundwork
for action under the Act was being laid. EPA had translated the
Congressional mandate into precise standards for six major air pollut-
ants. States had submitted for EPA approval their implementation
plans for meeting the air quality standards within the statutory
deadlines.5
During the past year, some of the ramifications of achieving clean
air came more sharply into focus as requirements established under
the Act—primarily those in state implementation plans—took effect.6
As the agency ultimately responsible for administering the Act, EPA
was forced to make hard decisions and deal with complex issues, some-
times under compulsion of court orders stemming from citizen
litigation.
Because there is a long lag time involved in preparing analyses of
air quality readings from nationwide monitoring stations, we cannot
yet report on progress as a result of the 1970 Amendments. However,
nationwide data for 1971 primarily reflecting state and local control
efforts predating the (December) 1970 Amendments show a con-
tinuation of the progress reported last year. Moreover, 1972 data for
several major cities support the logical expectation of still further
progress as the effects of the 1970 Amendments begin to be felt. These
data are discussed in Chapter 6, Environmental Status and Trends.
Test results recently released by EPA show that the increasingly
stringent controls required on new vehicles since 1968 by Federal law
have reduced emissions from new cars below the levels produced by
uncontrolled, pre-1968 vehicles. However, on well over half the ve-
hicles tested, emissions were higher than expected under the appli-
cable model-year standards. EPA attributes this result to a
combination of inadequate quality controls by manufacturers, im-
proper maintenance by owners, and the Federal rules that, prior to
1972, allowed manufacturers to average the results of emission certifi-
cation tests conducted on prototype vehicles.7
In addition to its primary effects on air quality, the Clean Air Act
is having a number of important indirect or secondary impacts. They
relate to land use and the distribution of growth, our auto-dominated
urban transportation system and related life styles, energy supplies
and policies, and the single largest industrial segment of our econ-
omy—the automobile industry.
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GUIDELINES AND REPORTS 1109
These impacts of the clean air campaign are not surprising. The
President, Congressional leaders, and others predicted that achieving
clean air would not be a simple process of just reducing emissions,
with life going on as usual. Rather, as many have pointed out, pro-
tecting the public from health damage and the other costs of dirty
air inevitably will cause shifts within the economy toward relatively
higher consumption of nonpolluting products and services. It will
also alter life styles—particularly those related to intensive urban
auto use. Predictably it has taken some examples from real life to call
public attention to these secondary consequences, some of which we
discuss below.
Urban Transportation
One of the most dramatic impacts of the Act is on urban trans-
portation, particularly commuter driving habits. For 37 metropolitan
areas of the United States that are especially hard hit by automotive
pollution, state controls on stationary source emissions and Federal
emission limits on new motor vehicles will not by themselves reduce
total emissions sufficiently to meet the air quality standards for carbon
monoxide, hydrocarbons, and photochemical oxidants—pollutants
largely attributable to motor vehicle emissions—by the statutory 1975
deadline. The affected states were therefore required to include trans-
portation controls in their plans for achieving national air quality
standards.
On June 15, 1973, pursuant to a Federal court order/ EPA an-
nounced its approvals and disapprovals of the 43 plans submitted by
23 states for the 37 metropolitan areas.9 EPA fully approved five
plans, for the New York City, Rochester, and Syracuse., N.Y., and
Mobile and Birmingham, Ala., areas. Three other plans, for Kansas
City (Kansas and Missouri) and Baton Rouge, La., will be approved
when the period for public comment on them has expired. Ten other
plans, for 7 States and die District of Columbia, were generally ap-
proved but had various deficiencies, some only procedural. EPA is
working with those jurisdictions (Phoenix-Tucson, Ariz.; Washing-
ton, D.C.; Chicago, 111.; Portland, Oreg.; Philadelphia and Pitts-
burgh, Pa.; Salt Lake City, Utah; Seattle and Spokane, Wash.; and
the Virginia suburbs of Washington, D.C.) to develop fully approv-
able plans.
To remedy their deficiencies, EPA will promulgate considerable
portions of plans for nine regions in the States of Maryland (Balti-
more and the suburbs of Washington, D.C.) and Texas (El Paso,
Austin-Waco, Corpus Christi, Houston-Galveston, San Antonio,
Beaumont, and Dallas-Fort Worth). Plans for 15 regions in 7 States
were disapproved because the States did not submit transportation
plans (Fairbanks, Alaska; Indianapolis, Ind.; Boston and Springfield,
Mass.; Minneapolis-St. Paul, Minn.; New Jersey suburbs of New
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LEGAL COMPILATION—SUPPLEMENT n
Achievement of clean air will require reduced automobile use in 37 urban
areas.
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GUIDELINES AND REPORTS 1111
York City and Philadelphia; Cincinnati, Dayton, and Toledo, Ohio;
and San Francisco, San Diego, Sacramento, Fresno, and El Centra,
Calif.). In some of these areas, States are still working to develop and
submit plans. The Denver plan was received too late to evaluate be-
fore June 15.
As required by the Clean Air Act, EPA proposed full or partial
plans for 19 areas, including 5 of the 7 States that failed to submit
plans and 7 of the 9 regions where substantial EPA promulgation is
expected.
In addition, EPA proposed a revised plan for the sprawling, smog-
ridden Los Angeles area in California. Responding to a court order,10
EPA initially proposed in January 1973 a plan that would have cur-
tailed gasoline sales—and thus automobile use—by up to 82 percent
from May to October, when the atmospheric inversions that trap
pollutants in the Los Angeles basin are most prevalent.11 The revised
proposal, adopted after extensive public hearings held by EPA, em-
phasizes alternatives such as mass transit and carpooling.
' There are two basic types of transportation control strategies—
those which reduce miles driven, such as expanded mass transit and
carpooling, and those which reduce emissions per mile, such as in-
spection and maintenance programs, retrofit devices for older vehicles,
and changes in traffic patterns. In most cases EPA and the states
have required inspection and maintenance. EPA has also empha-
sized changes in driving habits, particularly expanded use of public
transportation. Retrofits have generally been required only as a last
resort.
Buses, and particularly rapid rail transit, generate fewer emis-
sions per passenger mile than automobiles.12 Thus, air quality
objectives are a major stimulus for reducing automobile use in favor
of mass transit. This shift also reduces urban congestion and con-
serves energy.
Under the law, EPA must promulgate transportation control plans
by Aug. 15, 1973, for areas with unacceptable or inadequate state
plans. In order to meet the 1975 statutory deadline for the Los
Angeles and northern New Jersey areas, the EPA plans will be forced
to require such drastic curtailment of auto use by 1977 as to pose
significant potential economic and social disruptions. Therefore,
the Acting Administrator of EPA has announced his intention to
explore with the Congress the desirability of extending the deadlines
for these areas.13 In general, however, it appears that necessary ad-
justments can be carried out within the existing law.
Land Use and Growth
Land use and the distribution of economic growth will be affected
by the Clean Air Act's provisions for controlling major new sources
of air pollution. EPA is required to establish standards of perform-
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LEGAL COMPILATION—SUPPLEMENT n
States are now required to regulate siting of significant stationary air pollution
sources.
ance for new sources based upon the best available demonstrated
control technology and processes.14 EPA has established standards
for fossil fuel electric generating plants, cement plants, and sulfuric
and nitric acid manufacturing plants and has recently issued pro-
posed standards for seven additional categories of plants.13 The
standards apply even when they are more stringent than the emis-
sion limits necessary to meet the air quality standards. One ration-
ale for the performance standards, three of which are being challenged
in court by affected industries,18 is that advanced technology
should be employed in major new facilities in order to minimize
increases in emissions. Another rationale is that differences in pol-
lution control standards should not be the basis for deciding where
to locate new facilities. This would induce regions to compete for
new plants by minimizing emission control requirements.
The land use and growth distribution impact of the new source
performance standards is neutral—it neither encourages nor dis-
courages siting a plant in any area or type of area. However, the Act
requires that states exercise siting controls when necessary.17 States
must be able to preclude the siting of a new facility in a particular
area if its presence there, despite best available emission controls,
would cause or exacerbate an air quality standard violation.
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As a result of a Federal court order in a suit alleging that EPA
regulations failed to ensure maintenance of air quality,18 EPA has
issued regulations requiring states to approve in advance the siting
and construction of both new polluting facilities and such "complex
facilities" as shopping centers, amusement parks, and highways
which could cause a violation of air quality standards by attracting
concentrations of vehicles.19 These regulations will provide specific
substantive content for the broader land use control programs that
states will be encouraged to adopt by the national land use policy
legislation now pending in the Congress.
Another legal action, recently concluded by the Supreme Court,
involved a significant debate between EPA and some environmental
groups on another issue related to growth. The groups argued that
one of the Act's stated purposes—"to protect and enhance the qual-
ity of the nation's air resources" 20—requires EPA to disapprove any
state implementation plan allowing for significant deterioration in air
quality meeting Federal primary and secondary ambient air quality
standards even if such deteriorated air would still not violate those
standards, The Federal District Court decided against EPA, and
EPA prepared regulations to implement the decision, but the Chief
Justice stayed the lower court's order pending the Supreme Court
decision.21 Because the Supreme Court's decision affirming the Dis-
trict Court's order was by a 4 to 4 vote and without opinion, and be-
cause the District Court's opinion did not elaborate on its holding,
there is very little judicial guidance for EPA in carrying out the
nondegradation policy.
The nondeterioration case is significant primarily for its potential
impact on the distribution of U.S. economic growth. Unlike the new
source performance standards, a nondegradation policy is not neutral
between developed and underdeveloped areas. A literal nondegrada-
tion policy could severely curtail or even prevent growth in areas
with clean air and require instead that growth be accommodated,
if at all, in developed areas that may already have severe air quality
problems. The extent to which the policy causes such an effect will
be determined by EPA's administrative definition of "significant"
deterioration.
Energy
Implementation of the Clean Air Act impinges not only upon land
use and urban transportation but on energy supplies as well. The
primary impact is that of the sulfur oxides standards on the use of
coal, our most abundant and least costly domestic energy resource.
The main source of sulfur oxides emissions is the combustion of
fossil fuels containing sulfur. Coal tends to produce considerably
more SOX than oil for a comparable output of heat.
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In order to comply with state emission limitations designed to
meet EPA's national air quality standards, electric utilities, industries,
and other users of fossil fuels must cut SOX emissions in one of several
ways. The most common alternative is to use low sulfur fuels—
natural gas, low sulfur oil, or low sulfur coal. Another alternative,
stack gas cleaning technology, permits the use of higher sulfur fuels,
particularly high sulfur coal. Although this technology is being devel-
oped rapidly, it will not be available for use in more than a small
fraction of U.S. facilities until after 1975.22
The problem is that domestic low sulfur fuel supplies are in-
adequate to meet the demand resulting from the SO% control ap-
proach of many state implementation plans. That approach requires
achievement of the more stringent secondary standards at the same
time as the primary standards in 1975, even though the Act only
requires that the secondary standards be met within a "reasonable
time." 23 Many states have established their SOX emission limits on a
statewide basis, meaning that undeveloped areas already meeting
both primary and secondary standards are also required to use low
sulfur fuels.
As originally submitted to EPA, state plans could thus prevent the
use of up to 155 million tons of domestic high sulfur coal per year,
requiring instead that up to 584 million barrels of low sulfur oil
be imported. This would adversely affect the U.S. balance of pay-
ments and domestic coal industry employment.24
To ensure that regions needing low sulfur fuel to meet primary
standards receive priority and to minimize the adverse economic
impacts just mentioned, the Administrator of EPA has formally
encouraged the Governors to postpone low sulfur fuel requirements
where they are not now needed to meet primary standards.25 In his
April Energy Message, the President specifically endorsed the EPA
request. However, under the act, states are authorized to set more
stringent clean air requirements than the Act itself requires.26 Thus
the Administrator's request is advisory, not mandatory, and under
the Act the states will make the final decision.
Auto emission controls also impact on energy use. Control systems
installed on new autos sold in the United States in recent years have
contributed to a general decline in fuel economy also caused by
automatic transmissions, air conditioning, and heavier vehicles.27 It
has been alleged that some new control systems contemplated for use
in meeting the 1975 and 1976 emission standards will produce fur-
ther fuel penalties. However, the major U.S. auto manufacturer has
claimed that this possibility can be eliminated in the catalyst-based
systems that his company plans to use to meet the carbon monoxide
and hydrocarbon standards.28 The Acting Administrator of EPA
believes that there is a "good chance" that 1975 cars with catalysts
will use less gas than 1973 models.29 Fuel consumption is not neces-
sarily predetermined by use of a particular emission control system.
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Moreover, such fuel penalties as may be caused could be offset by
such other changes as reducing vehicle weight.
Autos and the Economy
Earlier discussion touched on the Clean Air Act's potential impact
on the distribution of U.S. economic growth, in particular on the
siting of stationary facilities. The Act also heavily impacts on the
U.S. automobile industry—a large segment of our economy.
The Act's requirements for major emission reductions from new
autos in 1975 and 1976 were intended to push the state of control
technology as far as possible in order to achieve the primary air
quality standards as soon as possible in the most heavily automotive-
polluted urban areas.30 The Act mandates specified emission reduc-
tions to be achieved by these dates unless the EPA Administrator
allows a 1-year extension. In order to do so, he must determine that
the extension is essential to the public interest or to the public health
and welfare; that the industry has made all good faith efforts to
meet the standards; that the industry has shown that the requisite
control technology is not available or has not been available long
enough to be put into production; and that other available informa-
tion, including reports by the National Academy of Sciences, also
show that technology is unavailable.31
On April 11, 1973, the Administrator granted the extension re-
quested by U.S. automakers for meeting the statutory 1975 stand-
ards, imposing somewhat less stringent interim standards instead.32
This followed by nearly a year his May 12, 1972, decision that, with
lead time still available before 1975 production commitments, the
manufacturers had not adequately sustained their statutory burden
of proving the unavailability of technology. The manufacturers ap-
pealed, and a U.S. Court of Appeals ordered the Administrator to
reconsider his 1972 decision.33 The court opinion had a major influ-
ence on his 1973 final decision.
The Administrator based his April 11 decision in large measure
on a determination that the economic risks of denying the extension
outweighed the slight air quality gain. The Court of Appeals had
stated that the "public interest" test to be applied by EPA encom-
passes potential adverse impacts on jobs and the economy in general
which could result from a too hasty attempt to introduce a major new
technology into complex production lines. The court foresaw prob-
lems of quality control and production shutdown.34
In summary, the Administrator concluded that the technology
available to U.S. manufacturers to meet the 1975 standards—the
oxidation catalyst—had not been available long enough to guarantee
that possible production difficulties and economic dislocations from
its nationwide introduction in 1975 would be less harmful to the
public interest than the slight air quality sacrifice caused by a 1-year
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delay. The Administrator chose the alternative of phasing in the
new catalyst technology. He approved special standards for Cali-
fornia that will have the effect of requiring the use of catalysts in
most 1975 model cars sold in that State. In addition, the national
interim standards for 1975 will necessitate the use of catalysts in some
models nationwide. This phased approach more nearly approximates
the normal industrial approach to introducing new technologies into
complex mass-production products.
Although several auto manufacturers have requested a 1-year ex-
tension of the statutory 1976 standard for NOX, the debate that once
centered on whether the auto emission standards could be met has
now shifted largely to the issue of which technology for meeting these
standards is most reliable and desirable. (See Figure 1.) U.S. manu-
facturers are relying almost exclusively on catalyst-based systems to
oxidize HC and CO and on a combination of catalysts and exhaust
gas recirculation to reduce NOX emissions. Several foreign manu-
facturers have been developing alternatives.
Honda and Toyo Kogyo, two Japanese manufacturers, have de-
veloped cars that meet the original 1975 standards using less con-
ventional technologies than those being planned by U.S. firms—a
carbureted stratified charge engine and a rotary engine with an after-
burner. A German manufacturer, Daimler-Benz, has produced diesel-
powered Mercedes-Benz autos that also meet the 1975 standards.
However, diesel engines have potential odor, particulate, and noise
emission problems that may be difficult to control.
There is considerable scientific opinion that a system like the Honda
stratified charge system is more desirable than the catalyst approach
because of its reliability and fuel economy. The National Academy
of Science's special panel on automotive emissions control technology,
for example, shares this opinion.35 Although further refinements may
be achieved, current indications are that catalysts are not durable,
requiring replacement at least every 25,000 miles, and that they
may impair overall vehicle performance. Alternatives appear not to
have such drawbacks, but they have not been fully tested for use in
the larger autos made in the United States.
Consistent with the Clean Air Act, EPA has taken the position
that performance specifications—not particular technologies—should
be mandated for emission control. The Administrator has expressed
confidence that the superior technology or technologies will win out
in the marketplace on the basis of cost (including fuel economy) and
performance.36
The verdict is not yet in on auto emission control technologies.
However, it is clear that the Clean Air Amendments of 1970 have
succeeded in stimulating significant technological innovation in De-
troit and elsewhere.
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1117
Figure 1
Three Systems Designed to Meet Stringent
Automotive Emission Standards
Quick-heat intake
manifold
Improved carburetor
and choke
Hydrocarbons and
carbon monoxide
catalyst converter
Nitrogen oxides
catalyst converter
(each side)
Electronic ignition
Conventional internal combustion engine with dual catalysts
Connecting
rod
Conventional internal combustion engine with stratified charge com-
bustion (single cylinder with the added SC combustion chamber shown
here)
Air/Fuel mixture \
Intake
Cooling
air
Thermal
Reactor
Clean exhaust gas
Rotary Engine
Raw exhaust
Fresh air
Rotary internal combustion engine with thermal reactor
Source General Motors Corporation; Honda Motor Company; Mazda Motors of
America
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1118 LEGAL COMPILATION—SUPPLEMENT n
Standards and Monitoring
During the year prior to our last Annual Report, a number of law-
suits were initiated by industries challenging various EPA air pollution
standards. These actions are still pending.37 Such litigation reflects
the complex technological and scientific factors involved in establish-
ing standards under the Act. In 1971, Kennecott Copper Company
requested judicial review of EPA's ambient sulfur oxides standards.
In response, and as part of its continuing review of the criteria for
setting such standards, the agency in May 1973 proposed to rescind
the annual arithmetic mean portion of its secondary standard for
sulfur oxides. This action would leave intact that portion of the •
standard limiting the permissible level of short-term (3-hour) emis-
sions allowed once each year.38 Extensive reevaluation of a study of
how sulfur oxides affect white pine growth led EPA to conclude that
vegetation damage stems from high-level concentrations for short
periods rather than from continuous exposure to lower levels.
The proposed revision is likely to have little effect on urban areas,
where the rescinded annual ceiling (60 micrograms per cubic meter)
is still a useful guideline for ensuring compliance with the 1,300-
microgram, 3-hour limit. Isolated rural area sources, such as mine-
mouth generating plants, may be forced to achieve stricter controls
than previously planned, especially if EPA decides to reduce the
short-term limit to 1 hour. However, under certain conditions the
new short-term standard will permit such facilities to consider variable
or "intermittent" controls in order to minimize costs.
During the past year, EPA faced another issue involving the
scientific basis for both standard setting and monitoring. EPA con-
cluded that nitrogen oxides, a combustion product in both mobile
and stationary sources, is not the widespread problem that it was
thought to be. The methods previously recommended by EPA for
measuring ambient levels of NOX were found to overstate concen-
trations. EPA now believes that only 2 air quality regions—Chicago
and Los Angeles—rather than the 47 originally identified, definitely
exceed the national ambient air quality standard for NOX. EPA
estimates that only Baltimore, Chicago, and Los Angeles will re-
quire reductions in NOX emissions beyond those required by the
current (1973) auto emission standard, 3.1 grams per mile, in order
to meet the ambient NOX standard by 1977. Only Los Angeles would
fail to meet the ambient NOX standard with retention of an extremely
stringent auto emission standard for NOX, such as the 0.4 grams
per mile now required nationwide for 1976. These EPA estimates
do not fully take into account possible NOX emission reductions from
transportation controls and improved stationary source controls.
Thus the estimates represent the maximum number of areas that
could fail to meet the ambient standard. Uncertainty about the
method of monitoring NOK led EPA also to reexamine the validity of
the primary ambient NOX standard, but the agency concluded that
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GUIDELINES AND REPORTS 1119
the standard as presently formulated protects public health, as
required.39
The practical result of EPA's new information is twofold. First,
EPA will exempt most of the 47 regions originally identified as hav-
ing serious NOX problems from the requirement of adopting station-
ary source controls for NOX. Second, EPA has concluded that the
current statutory requirement for a 90 percent reduction from 1970
levels of NOX auto emissions by 1976 (i.e., 0.4 grams per mile) may be
unnecessary. EPA will make recommendations to the Congress next
fall on possible changes in the law's 1976 NOX requirement. The
recommendations will be based in part on the results of June 1973
hearings on the request by auto manufacturers to extend the 1976
standard for 1 year.40
The significance of EPA's new information on NOX is heightened
by the fact that NOX is one of the most difficult pollutants to control
for both mobile and stationary sources. Relaxing the automotive
emission standard for NOX could have a positive effect on the ability
to control other automotive pollutants. Existing controls for HC
and CO raise gasoline combustion temperatures. At higher combus-
tion temperatures, more NOX is generated. Each tightening of HC
and CO controls, therefore, makes it harder to control NOX emis-
sions. Further, the system contemplated by U.S. auto manufacturers
for meeting the statutory 1976 NOX standard would involve a sec-
ond catalyst which, together with additional engine modifications,
could decrease fuel economy an additional 7 to 12 percent, at least
temporarily.41
Through its broad effort to refine and expand scientific data on
the levels, interactions, and health effects of air pollutants, EPA is
building the base for more effective regulation. For example, studies
completed this past year have identified sulfates—a common by-
product of sulfur oxides emissions—as a potential culprit in the dam-
age caused by sulfur oxides. Extensive community epidemiology
studies are helping EPA to refine its knowledge of the health effects
of various pollutants.
Summary
The Clean Air Amendments of 1970—the pioneer in a new era
of Federal environmental legislation characterized by stringent
standards and deadlines and broad Federal enforcement powers—
are now weaving their requirements and constraints through the fab-
ric of the Nation. The process is being hastened by a combination
of administrative actions dictated by statutory deadlines and fre-
quent elaboration of the statutory directives by Federal courts.
Achievement of clean air is clearly not a simple matter of putting
sophisticated corks in smokestacks and tailpipes. The great diversity
of air pollution sources and their interrelationships with many facets
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1120 LEGAL COMPILATION—SUPPLEMENT n
of our lives have made the quest for clean air a major challenge. The
Clean Air Act provides a vigorous mechanism for meeting that chal-
lenge. With the limited amendments that appear to be needed to
take account of new information and to alleviate problems in areas
such as Los Angeles, it should significantly enhance the progress
toward clean air that we have already made.
Water Quality—Extensive New Authorities
Enactment last October of the comprehensive Federal Water
Pollution Control Act (FWPCA) Amendments of 197242 culmi-
nated nearly 3 years of Executive and Congressional deliberations
aimed at strengthening our clean water program. There were
numerous differences among the Administration, state officials, and
Congressional leaders over various aspects of the legislation, but
there is strong consensus on many basic features of the new law.
Consistent with the President's proposed legislation, it extends
Federal-state regulation to all navigable waters, requires specific
effluent standards for individual facilities to be implemented through
permits, makes mandatory the use of the best available demonstrated
technology in new facilities, authorizes stringent Federal standards
or prohibitions for toxic discharges, strengthens and streamlines
Federal enforcement procedures, authorizes large fines, permits
citizens to bring legal actions to enforce its requirements, and
strengthens the Federal grant program for municipal treatment
plants while working toward self-sufficient financing of treatment
plants once the current backlog of needs has been met.
As early as 1970, there was widespread agreement that the
Federal-state program established under the 1965 Water Quality
Act and earlier laws was substantially inadequate. Notwithstand-
ing cleanup efforts in some states and success stories like the Willa-
mette River, which is discussed in Chapter 2, the overall national
picture was bleak. Scant data available indicated that at best the
Nation had only "held the line" on common organic pollution in
recent decades. The effects of increased treatment had been virtually
cancelled by larger wasteloads.43 Other forms of water pollution,
such as phosphate and nitrate nutrients, were on the rise. Fish kills,
beach closings, algal growths, oily scums, and odors were still
prevalent.44 Sporadic upgradings of municipal treatment plants
were often more than offset by nearby industrial effluents. In other
cases, cleanups of industry were offset by increasing municipal dis-
charges. There was no real national strategy.
This section summarizes the principal features of the 1972 law
that was designed to correct past failures and set the course for a
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GUIDELINES AND REPORTS
1121
Victims of a massive fish kill caused by polluted waters cover a river bank.
sustained water quality improvement program. It also identifies
basic public policy themes underlying the new law and their impli-
cations for both citizens and government.
Summary of P.L. 92-500
The law's basic regulatory requirement is that "point source" dis-
charges—industries, municipal treatment plants, feedlots, and other
discrete sources—must obtain a permit specifying allowable amounts
and constituents of effluent and a schedule for achieving compliance.45
States meeting requirements specified by the Administrator of EPA
are to administer the national permit program, with individual per-
mits subject to EPA review. EPA will issue the permits in states that
fail to submit or carry out an approved permit program and for
Federal facilities.-16
Permits must be consistent with applicable effluent guidelines to be
issued by EPA for major classes and categories of industrial facilities
or with EPA requirements for publicly owned waste treatment
works.47 The technology-based effluent limitations and the water
quality standards that may dictate more stringent effluent limitations
are to be applied in two phases. By 1977, municipal plants must
provide "secondary treatment" 48—a common level of treatment for
organic wastes, usually based on bacterial decomposition and stabili-
zation. Also by 1977, industrial facilities must comply with EPA's
effluent guidelines prescribing "best practicable control technology
currently available." 49 Stricter effluent limitations for both industry
and municipalities will be required in individual cases if best practi-
cable technology or secondary treatment is inadequate to meet
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ambient water quality standards which are set on the basis of water
uses, such as propagation of fish and wildlife and recreation.50
By 1983, municipalities must provide "best practicable waste treat-
ment technology," 51 and industries must comply with effluent guide-
lines prescribing best "available technology economically achievable"
which will result in "reasonable further progress" toward the goal
of eliminating the discharge of pollutants.52 More stringent effluent
limitations may be imposed for individual industries or municipalities
when necessary to "contribute" to water quality needed to "assure
protection of public water supplies, agricultural and industrial uses,
and the protection and propagation of a balanced population of shell-
fish, fish and wildlife, and allow recreational activities in and on
the water." The more stringent limitation will not apply, however,
if the discharger demonstrates that there is "no reasonable relation-
ship" between the economic and social costs and benefits to be
obtained.53
In addition to issuing effluent guidelines for existing point sources,
EPA must set special effluent standards for new industrial point
sources, based on best available demonstrated control technology.
These will apply to at least 27 categories of sources listed in the
Act.54
The Administrator must also publish a list of toxic pollutants and
effluent limitations or prohibitions for them. Toxic pollutants are
defined as those which, when assimilated either directly from the
environment or indirectly by ingestion through food chains, will
cause death, disease, behavioral abnormalities, cancer, genetic muta-
tions, physiological malfunctions, or physical deformities in any or-
ganism or its offspring.55 Spills of toxic or other hazardous materials
are now subject to the same regulatory framework—for prevention
and Federal cleanup costs—that previously existed only for oil
spills.56
The Administrator must also issue pretreatment standards requir-
ing an industrial facility discharging into a municipal sewage treat-
ment plant to pretreat its effluent so that it does not interfere with
the operation of or pass through the plant without adequate treat-
ment.57 Because roughly one-half of all industrial facilities discharge
their wastes into municipal systems, pretreatment standards are es-
sential to achieving control over industrial effluents.
The Act requires states to develop a comprehensive and con-
tinuing planning process for water quality management.58 Plans
must include not only the point source controls described above but
also controls for diffuse land runoff and other nonpoint sources. Be-
ginning in 1975, the states must submit annual reports to EPA that
inventory all point sources of pollution, assess existing and antici-
pated water quality, and propose programs for nonpoint source
control.59
EPA has authority to enforce the law through both administra-
tive and judicial channels. When the Administrator discovers a vio-
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lation of a permit condition or other provision of the law, he must
notify the polluter and then either issue an administrative order
prohibiting further violation or request the Attorney General to
seek appropriate relief in Federal court.60 The discharge of pol-
lutants from point sources except in compliance with a permit is
unlawful.61 However, recognizing the task of processing permit appli-
cations and the need to give applicants a fair opportunity to de-
termine what is expected of them, the law includes an exemption
from prosecution until December 1974 for facilities for which a
satisfactory permit application has been filed but not finally acted
upon.62
Private citizens may seek judicial relief against any polluter for
violating an effluent limitation or an administrative order. Citizens
may also institute proceedings against the Administrator if he fails to
perform a nondiscretionary act required by the law.63
An expanded Federal grant program will help municipalities
construct sewage treatment plants. More than 1,300 communities
have sewer systems that discharge untreated wastes, and a comparable
number provide only primary treatment.64 The Administrator is
authorized to make available to the states up to $18 billion for fiscal
years 1973 to 1975 for municipal waste treatment project grants.
The Federal share of these projects is 75 percent, compared to the
prior maximum of 55 percent. The remainder is borne by the
municipalities, which sometimes also receive state aid. Industrial
users must reimburse the Federal and local governments for the
share of project costs attributable to them.
Factors That Shaped the Law
Forging the new national program for water quality was not
simple or easy. It was under development for nearly 3 years. A diver-
sity of opinions on goals and the complexity of achieving water
quality precluded a full consensus. Myriad factors and views helped
to shape the legislation. This section seeks to highlight some of the
principal ones in order to give some perspective on the law's origins.
Perhaps the predominant influence on the law was the universal
recognition that basing compliance and enforcement efforts on a
case-by-case judgment of a particular facility's impacts on ambient
water quality is both scientifically and administratively difficult.
To minimize the difficulties in relating discharges to ambient water
quality, the law requires minimum effluent limitations for each
category of discharger, based on technological and economic
feasibility, regardless of receiving water requirements. When water
quality standards cannot be achieved by imposition of these controls
alone, receiving water conditions will be used to dictate to individual
dischargers more stringent limitations. The complexities of relating
effluent amounts to ambient quality also led the Congress, as in the
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Glean Air Act, to provide that the effluent limit, not ambient quality,
is the basis for enforcement actions.63
Another major influence on the new law was the Congressional
sentiment that the Nation as a whole ought to establish and work
toward an ultimate clean water goal.66 Prior law rested on a de facto
goal of making individual waters clean enough to support one or
more beneficial uses—such as fishing, swimming, boating, and water
supply for homes, farms, and industries—in each case determined
by the states to be desirable and feasible.67 This approach recognized
that different waters would, as a practical matter, support different
combinations of uses which in turn would require different ambient
water quality conditions.
By contrast, the new law rejects for the purpose of policy objec-
tives both distinctions among water bodies in terms of use and the
concept that contaminants can be rendered harmless and thus tol-
erated below certain concentrations. The law aims "to restore and
maintain the chemical, physical, and biological integrity of the
Nation's water." As national goals to achieve this objective, it calls
for eliminating pollutant discharges altogether by 1985 and; when-
ever attainable in the interim, achieving water quality providing for
protection and propagation of fish, shellfish, and wildlife and for
recreation in and on the water by 1983.68 The law does not, how-
ever, actually mandate attainment of these objectives and goals. The
no-discharge goal is mandated by 1983 only for categories and
classes of nonmunicipal dischargers for which it is "technologically
and economically achievable." 69 During this same period, effluent
standards must be established for all dischargers "which can reason-
ably be expected to contribute to the attainment or maintenance" of
the water quality needed to achieve the 1983 interim goal.70
Public waste treatment facilities are critical to achieving clean
water. This fact, and the need for substantial Federal aid to com-
munities in providing the facilities, had a major influence on the
new legislation. Construction of treatment facilities is now one of
the largest Federal public works programs.
Under prior law, substantial Federal funding to help finance a
large backlog of construction needs became available only in the
past several years. In order to ensure adequate continued funding,
the Congress in the new law authorized future spending by EPA
on a "contract authority" basis, thus bypassing the usual annual
Congressional appropriations process. Now EPA can obligate funds
within authorized limits prior to appropriations.71 The Congress also
increased the Federal* share for treatment plant construction from a
30 percent minimum-55 percent maximum to a uniform 75 percent.
The construction grant authorizations in the new law—a total of
up to $18 billion over fiscal years 1973 to 1975 72—prompted a
Presidential veto, which was overridden. In his veto message, the
President stated that this amount is excessive in relation to needs and
is far out of line with regard to his total Federal budget aimed at
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GUIDELINES AND REPORTS
1125
The Des Moines sewage treatment plant discharges effluent into the Des
Moines River, part of which is covered by ice.
controlling inflation and taxes.73 The President also stated that intense
pressures for spending the full $18 billion might well negate the
effect of provisions in the law giving him "technical" flexibility and
discretion in the allotment of those funds.
Following the Congressional override of his veto, the President
directed EPA to make available ("allot") to the states for fiscal years
1973 and 1974 "sums not to exceed $2 billion and $3 billion respec-
tively." 74 The law authorizes Congressional appropriation of "sums
not to exceed" $5 billion and $6 billion respectively and directs that
"sums authorized to be appropriated" be allotted.711
Claiming that the EPA action exceeded the discretion that the
Congress gave to the Administration, several cities filed lawsuits to
force allotment of the full $11 billion authorized for 1973 and 1974.
In one such action brought by New York and Detroit, a Federal
District Court ordered EPA to make the full allotment. The court
recognized, however, that the law confers flexibility in actually spend-
ing the funds.76
The essence of the legal debate is whether language changes made
in the law during the House-Senate conference enable EPA to make
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available to the states for a particular fiscal year less money than
the maximum amount authorized or whether, as the court held, they
only allow EPA to obligate during the fiscal year less than the maxi-
mum amount authorized (and made available) for the year.
Another major concern was industrial use of municipal facilities
receiving Federal construction grants. Under prior law, industries
using municipal plants received a Federal subsidy for their waste
treatment costs. Because industrial use of municipal plants is some-
times more cost effective and environmentally desirable than separate
treatment, the new law did not foreclose this alternative. Instead, it
insists that industries must pay their way. Industries using municipal
plants are now required to pay their share of construction costs and
also user charges.77 It is too early to know to what degree industry
will continue to utilize municipal plants.
Finally, the law's user charge and industrial payback provisions
reflect Congressional and Executive concern that Federal funding for
treatment plants not become a bottomless pit and that municipalities
move toward self-suffiicency in maintaining and replacing facilities
in existence or under construction.78 The underlying economic princi-
ple is that those whose activities necessitate waste treatment—rather
than the Nation's taxpayers—should pay for it.
A Stronger Federal Role
P.L. 92-500 is long (89 pages) and exhaustively detailed. It places
many explicit and difficult demands on all levels of government, on
industries, and on others in the private sector. A major theme perme-
ating the legislation is a strong role for the Federal Government.
Implementation is to be carried out largely by the states, but most of
their actions are subject to extensive Federal guidelines and backup
enforcement authority.
Permits—The heart of the water quality program—the permit sys-
tem—is a prime example of the new pattern of Federal-state relations
in water quality management. It sprang from the permit program
established by the President in 1970 under the Refuse Act of 1899.79
Frustration with the Federal-state water quality program stimulated
the "discovery" of this 1899 law, administered by the Army Corps of
Engineers primarily to protect navigation. It had been interpreted
by the Supreme Court in the mid-1960's to proscribe pollution of
navigable waters in the absence of a permit, whether navigation was
affected or not.80 But it was not until 1970 that its potential as an
administrative tool was recognized.
The Refuse Act permit program 81 was initiated as a means to
accelerate and strengthen cleanup efforts pending new legislation.
The permit mechanism had the virtue of establishing for the first
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time a comprehensive information-gathering system for industrial
effluents. It provided for each discharging facility a specific treat-
ment and timetable to eliminate haggling and uncertainties between
Government and industries. Numerous legal actions were brought
in 1971 and 1972 against firms discharging without permits and in
violation of standards.82 Unfortunately, the permit program was
aborted and the enforcement program halted by two Federal court
decisions, one recently overturned by the Supreme Court.83 Before
Government appeals were completed, the new law was enacted,
establishing a new permit program that makes virtually all of the
debates involved in the two cases moot.
The new law encourages states to assume administration of the
new permit program, called the National Pollutant Discharge Elimi-
nation System (NPDES). But they can do so only by adopting a
variety of enforcement, public notice, and other authorities and
procedures specified by EPA. After a state program is approved by
EPA, each permit (except in categories that may be waived by
EPA) is subject to EPA review and veto to ensure its consistency
with requirements of the law, including deadlines, and with EPA's
effluent guidelines.84 It may be some time before many states have all
the authorities needed to secure EPA approval for their permit pro-
grams. Eighteen states and territories were given interim EPA au-
thorization for their permit programs which expired on March 19,
1973.
In April, California became the first state to receive a permanent
NPDES approval for its permit program. Another six states are
close to receiving approval. Meanwhile, EPA itself is processing per-
mit applications. As of May, nearly 33,000 permit applications were
pending, many of which were originally filed under the old Refuse
Act program. As of June 25, 1973, over 400 NPDES permits had been
issued by either EPA or the states.85 Public hearings have been held
on more than 200 permits.
Federal Standards and Enforcement—Besides issuing effluent
guidelines which states must follow in issuing permits, EPA will
promulgate effluent standards for toxic pollutant discharges from
major categories of new facilities. In addition, EPA will issue regu-
lations requiring pretreatment of industrial wastes treated by munici-
pal systems. These and other extensive new standard-setting authori-
ties lodged in EPA are supplemented by broad enforcement powers
to abate violations of permits and of the Act itself. Thus, although the
law purports to preserve the "ordinary responsibilities" 86 of states
for controlling water pollution, and does in fact introduce extensive
new state requirements, its dominant thrust is to enlarge the Fed-
eral role in the continuing Federal-state program.
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A Strategy for Implementation
Confronted with the complex task of cleaning up the Nation's
waters under a demanding time schedule, EPA and the states must
establish priorities for action—either by force of circumstances or
by deliberate choice. The "Water Strategy Paper" issued by EPA
last February articulates a strategy designed "to provide maximum
impact on water quality." 87 It focuses primary attention on water
basins and basin segments where water pollution is worst and on
issuing permits to the major dischargers in these areas. The primary
requirement guiding EPA and the states is the law's 1977 and 1983
deadlines. The focus on major dischargers reflects the fact that in
most areas a relatively few major facilities produce most of the
pollution (see Chapter 6, Figure 10).
EPA has set for itself and the states a goal of processing all permit
applications by the Dec. 31, 1974, deadline, after which the statutory
immunity from legal actions against permit applicants without per-
mits expires.88 Initial emphasis is to be placed on "water quality
limited" segments—those in which effluent limitations based on best
practicable technology are judged not sufficient to meet water quality
standards. Next in priority for permits are industries not located in
"water quality limited" segments but for which effluent guidelines
reflecting best practicable control technology have been developed.89
The Act requires permits only for "point sources" of pollution, such
as industrial and municipal plants and animal feedlots. Therefore
EPA control efforts focus on such sources rather than on nonpoint
sources such as farmland runoff of soil and fertilizer.90
EPA's system of priorities for funding public treatment works also
focuses on meeting effluent limits and ambient standards by 1977 and
1983. Although the law defines treatment works to include storm
sewers and sanitary collection sewers, EPA will give priority in fund-
ing to treatment plants that must be constructed or upgraded to
provide "secondary" treatment (or higher levels when required in
"water quality limited" basin segments) .91
The immediate emphasis of enforcement will be to complete pend-
ing actions and to proceed against dischargers failing to apply for a
NPDES permit.92 Permit violations, inadequate applications, oil spills,
and emergency situations may also trigger enforcement proceedings.
The essence of the EPA strategy is to focus on problems whose
solutions will produce the biggest payoff in water quality and for
which implementation is feasible now. Concurrently, plans will be
developed to deal on a phased basis with problems that are less
pressing or for which data are relatively limited.
Citizen Participation
The 1972 Amendments expanded a theme that was most notably
developed in the Clean Air Act—major public participation in the
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aw's execution, in both standard setting and enforcement. The Clean
Air Amendments introduced the citizen suit into Federal environ-
mental law, authorizing citizens not only to act as private attorneys
general by suing polluters for compliance but also to sue the Adminis-
trator of EPA to carry out nondiscretionary duties.93 This chapter's
discussion of actions under the Act shows the significant impact which
the latter category of suits has already had. The Clean Air Act also
stresses public hearings as a precondition to state adoption of imple-
mentation plans.
The 1972 FWPCA Amendments adopted the Clean Air Act's
citizen suit authority and applied the provision for public hearings to
the central regulatory feature of the new law, the issuance of
permits.84 In a further effort to involve citizens, the Amendments
require EPA to issue regulations to encourage and assist citizen par-
ticipation in the development, revision, and enforcement of regula-
tions, standards, effluent limitations, plans, and programs established
by EPA or the states.95 In February 1973, EPA proposed such regula-
tions.96
Lake Eutrophication
Eutrophication, aging and deterioration of lakes, has been an in-
creasing concern. Last year's Annual Report pointed out the sig-
nificant increases in recent years in the aquatic concentrations of
manmade nutrients which sometimes drastically accelerate the natural
process of eutrophication.97 As discussed in Chapter 6, EPA is con-
ducting a nationwide survey in cooperation with states to determine
what lakes are eutrophic and whether phosphorus—the most controll-
able nutrient—is the critical or "limiting" pollutant that needs to be
controlled in order to combat eutrophication. While the survey is in
process, high priority is being given to combatting eutrophication
where it is known to exist.
Effluent from municipal waste treatment plants is the largest
single source of phosphorus in U.S. waters.98 The primary thrust
of Federal eutrophication efforts is to encourage installation of
phosphorus removal facilities at those municipal plants where
control of phosphorus is needed. EPA has both regulatory authority
and construction funds to stimulate municipal action. A major
example of its efforts to date is in the Great Lakes basin, discussed
in Chapter 7. Discharges of nutrients from industry will be con-
trolled under the permit program.
As discussed in our last two Annual Reports, a number of states
and communities have imposed controls on the phosphate content of
detergents, which contribute roughly one-half of the phosphates
typically found in municipal sewage.99 One such restriction, imposed
by Chicago, was overturned in court during the past year. It is im-
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portant to understand the basis for that decision in order to assess
its potential impact on similar laws.
The U.S. District Court ruled in Soap and Detergent Ass'n. v.
Chicago 10° that a Chicago ordinance banning all phosphates from
detergents sold for use in Chicago unreasonably interfered with inter-
state commerce and thus violated the commerce clause of the Consti-
tution.101 That clause protects the freedom of commerce among
the states and authorizes the regulation of such commerce only by
the Federal Government. On the other hand, the Constitution pre-
serves for the states "police power" to protect public health and
welfare by regulations. In view of the frequent overlap of these two
provisions, courts balance the conflicting national and local inter-
ests involved in a case to determine whether a particular police
power restriction affecting interstate commerce is permissible.102
Two of many factors to be considered are the seriousness of the dis-
ruption of interstate commerce and the importance of the local
interest being protected.
In the Chicago case, the court concluded that the evidence demon-
strated a serious disruption of the detergent industry's normal inter-
state manufacturing and distribution process. But more important,
the court found virtually no evidence of actual or potential eutrophi-
cation in the waters affected by Chicago's sewage effluent. Further,
phosphate levels in the Illinois River were so high that elimination
of detergent phosphates would reduce the total insignificantly. Only
in very heavy rainstorms are rivers receiving Chicago sewage effluent
allowed to flow temporarily into Lake Michigan, and even when
these backflows occur, the detergent phosphates account for only
about 3 percent of the Lake's phosphate input. The court also found
that the phosphate ban showed no discernible impact on algal growth
in the receiving waters.
The court found Chicago unable to justify the significant impact
of its ordinance on interstate commerce. The court pointed out, how-
ever, that its decision was not applicable to cases in which adverse
effects of detergent phosphates can be shown. It also indicated that
although there is now no eutrophication problem in the waters af-
fected by Chicago's sewage, a similar ordinance may be justified in
the future if phosphate inputs from other sources were so reduced
that the Chicago ordinance "might . . . have some effect." 103
Protecting the Oceans
The 1972 Marine Protection, Research and Sanctuaries Act is
an outgrowth of the Council's 1970 report, Ocean Dumping—A Na-
tional Policy.10* The "Ocean Dumping" Act and parallel provisions
in the Federal Water Pollution Control Act Amendments of 1972 105
protect both U.S. ocean waters and the high seas from pollutants
dumped by vessels.
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GUIDELINES AND REPORTS 1131
The ocean dumping law prohibits disposal of radiological, chem-
ical, and biological warfare agents and any high-level radioactive
wastes in the ocean; it provides for regulation of all other dumping
through issuance of permits by EPA or, in the case of dredge spoils,
by the Corps of Engineers pursuant to EPA criteria. U.S. jurisdic-
tion applies anywhere on the high seas to dumping by Government
vessels and to dumping of materials that have been transported from
U.S. ports. All vessels in U.S. territorial waters and the contiguous
zone are also subject to U.S. controls. The law also calls for a com-
prehensive research and monitoring program on the effects of ocean
dumping and authorizes the establishment of marine sanctuaries for
recreation, conservation, and ecological purposes.
The new law is in effect. Interim regulations specifying procedures
for permit applications and issuance were published by EPA in
April.106 Interim criteria for evaluating permit applications were
issued in May.107
The criteria prohibit ocean dumping of high-level radioactive
wastes; radiological, chemical, and biological warfare agents; mate-
rials whose effects on marine ecosystems cannot be determined; and
persistent inert materials that will float or remain suspended, unless
they are processed to sink and remain at the bottom. Also prohibited
is dumping of materials containing more than trace amounts of mer-
cury and mercury compounds, cadmium and cadmium compounds,
organohalogen compounds and compounds that may form such sub-
stances in the marine environment, crude oil, fuel oil, heavy diesel
oil, lubricating oils, and hydraulic fluids.
Dumping of certain other materials will be strictly regulated by
special permits: all forms of arsenic, beryllium, chromium, and lead;
low-level radioactive wastes; organosilicon compounds; organic and
inorganic processing wastes (including cyanides, fluorides, and
chlorine); oxygen-demanding wastes; petrochemicals; and organic
chemicals.
EPA has designated 118 dumping sites. Most are for dredge spoils,
mud, sand, and chemical wastes. Three sites are for disposal of toxic
materials—off Delaware Bay and the Massachusetts coast in the
Atlantic and off the Los Angeles coast in the Pacific.
A major objective of the new legislation is to prevent dumping into
the ocean of pollutants that were previously discharged into U.S.
internal waters or into the air but are now restricted by the Clean
Air Act and the Federal Water Pollution Control Act. The new law
will also prevent coastal communities with mounting solid waste dis-
posal problems from turning to the ocean as a city dump.
The effectiveness of the new law will be enhanced by the Inter-
national Convention on the Prevention of Marine Pollution by
Dumping of Wastes and Other Matter, proposed by the President
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1132 LEGAL COMPILATION—SUPPLEMENT n
in 1971 and negotiated in 1972 at a conference attended by 92
nations.108 The Convention will go into effect after formal ratification
by 15 nations. The President submitted the Convention to the Senate
in February. He also transmitted to the Congress amendments to
our new law—in particular to expand U.S. jurisdiction to cover
U.S. flag vessels—to make it conform to the Convention.109
The ocean dumping law prohibits state control over activities
that it regulates. Instead, a state may propose and EPA may adopt
special regulatory criteria applicable to marine waters within a
state's jurisdiction.110
In the related area of controlling marine oil pollution (discussed
further in Chapter 7), a recent Supreme Court decision upheld a
claim by Florida that coastal states may impose some degree of regu-
lation concurrent with the Federal Government. The Court's unani-
mous opinion in Askew v. American Waterways Operators111 held
that the provision in the Federal Water Pollution Control Act per-
mitting states to regulate oil pollution in their coastal waters 112 did
not infringe on the maritime jurisdiction constitutionally vested in
the Federal Government. The Court left open for decision in the
context of specific disputes the question of whether particular pro-
visions of the Florida law 113 may conflict impermissibly with Fed-
eral provisions. The FWPCA subjects shipowners and terminal
facilities to liability without fault (within limits) for cleanup costs
incurred by the Federal Government and authorizes the President
to promulgate oil spill prevention regulations. It also permits state
regulation that is "not in conflict" with this program.11*
Safe Drinking Water
In his 1973 State of the Union Message on Natural Resources
and the Environment, the President recommended the Safe Drink-
ing Water Act of 1973.115 Designed to safeguard' drinking water
to protect health, it mandates national standards for public water
supply systems. Primary responsibility for implementing and enforc-
ing standards would remain at the state and local level. A major em-
phasis is placed on informed citizen action. The bill requires that
water suppliers notify the public of all standards violations and au-
thorizes citizen suits in Federal courts to secure compliance. The
proposed legislation goes even further than existing environmental
protection laws in emphasizing both legal and political action by
informed citizens. The Senate passed safe drinking water legislation
in June. Although similar to the Administration proposal in most
respects, the Senate bill placed its reliance on administrative regula-
tion and enforcement rather than on citizen action.116
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GUIDELINES AND REPORTS
1133
The President has proposed legislation to establish Federal standards for
drinking water.
Summary
Unlike the Clean Air Act, which has moved squarely into the im-
plementation phase in the 2l/z years since the 1970 Amendments,
the new water quality legislation has yet to be translated into con-
crete actions. EPA has issued many of the basic regulations, however,
and the effects of the new law will soon be felt. Like the Clean Air
Act, the new water law establishes a Federal-state program with
explicit requirements for standards and specific deadlines. With
limited exceptions, such as the proposed legislation to safeguard
drinking water, the Nation now has a legal framework for improving
water quality.
In contrast to the national response to the Clean Air Act in early
1971, there has been more debate about some provisions of the
water quality legislation.117 Much of this debate centers on the no-
discharge and universal swimmable waters objectives and the related
strategy for the 1977-83 period, in particular, the call for industry
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to employ "best available technology economically achievable by
1983."
The Congress required the National Study Commission to report
by October 1975 on "all aspects of the total economic, social, and
environmental effects of achieving or not achieving the effluent
limitations and goals . . . for 1983." lls Thus, although the Con-
gress set forth a long-term water quality strategy in P-L- 92-500, it
also provided for an interim review of the law's implications.
The requirements of the new law raise questions concerning the
ability of EPA, state agencies, and dischargers to meet the demands
placed upon them. The desirability of clean water cannot be dis-
puted, but the requirement that some 60,000 industrial, municipal,
and other facilities be given permits and achieve compliance by 1977,
for example, raises severe practical problems. The'EPA Adminis-
trator has indicated that regardless of the amount of funds available,
it is unlikely that all public waste treatment facilities can achieve
secondary treatment as required by 1977. Such candor, coupled with
the maximum efforts of all parties, is essential to making the most
progress possible while not misleading the public to expect miracles.
Hazardous Pollutants
From the diverse spectrum of contaminants to man and the
environment, environmental protection laws designate some as
"hazardous" or "toxic" and set them apart from "ordinary" pollut-
ants for special regulatory treatment. Although precise distinctions
are impossible—for example, ordinary oxygen-demanding organic
matter can kill fish by robbing them of oxygen—a "hazardous" pol-
lutant is generally defined as one which can directly cause death or
serious irreversible or incapacitating disease or behavioral abnor-
malities or carcinogenic, teratogenic, mutagenic, or other long-term
effects in man.119
The Federal pesticide control laws dating back to 1910 12° and the
Atomic Energy Act of 1954 121 show early recognition of the need to
regulate the sale or use of hazardous materials in order to protect
the environment from contamination. But it is ironic that despite
widely reported problems involving environmental exposure to
hazardous substances in recent years—including mercury, lead, and
PCB's—more than 2/a years have passed since the President first pro-
posed comprehensive legislation to regulate the many toxic substances
whose manufacture and use are not covered by law. The 92d Con-
gress came very close to final action last year in the waning days
of its second session, but the Nation still lacks the needed legislative
authorities.
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This section briefly assesses the status of Federal programs and
proposals for controlling hazardous substances whose misuse can
endanger man and other living organisms. Specifically, it covers
pesticides, toxic substances, and radiation.
Pesticides
More than 32,000 pesticide products, containing nearly 1,000
chemicals, are now registered for use in the United States.122 To be
registered by the Federal Government, a pesticide must be determined
not to be hazardous to health or the environment when used as di-
rected. In some cases, however, new data reveal previously unknown
hazards. In 1972, the Administrator of EPA virtually banned DDT.
EPA also limited use of other persistent pesticides.123
With DDT sales now prohibited, new priorities have emerged
for minimizing the adverse environmental effects of pest control.
Further studies are needed on the effects of other persistent pesti-
cides. Controls must be placed on the circumstances and techniques
for application of chemicals remaining in use. Less persistent but
more acutely toxic pesticides being used to replace DDT and similar
compounds must be controlled to minimize poisonings from accidents,
mishandling, and field exposure. The concept of integrated pest
management, which minimizes the use of chemicals, must be fur-
ther stimulated. These are the priorities on which EPA, the Depart-
ments of Agriculture and Labor, and other agencies are fixing their
attention.
A New Pesticide Law—On Oct. 21, 1972, the President signed the
Federal Environmental Pesticide Control Act (FEPCA),124 a law
containing most of the provisions of the original Adminstration pro-
posal. FEPCA substantially amends the Federal Insecticide, Fungi-
cide, and Rodenticide Act of 1947 (FIFRA).125 It strengthens and
expands the authorities provided by FIFRA in several respects. Most
notably, it extends regulatory authorities from labeling to the use
of products, authorizes classification of chemicals for restricted use
only, streamlines administrative procedures, and extends controls
to products sold only in intrastate commerce.
The old FIFRA controlled only the labeling of pesticides and
restricted the registration of any chemical which, when used in con-
formity with label instructions, would be hazardous to man or the
environment. FEPCA, in contrast, makes it unlawful for anyone (in-
cluding the Federal Government) to use a pesticide contrary to label
instructions.
Under the new Act, pesticide products may be classified for
"general" or "restricted" use. A restricted use pesticide may be ap-
plied only by a certified pesticide applicator—an individual trained
in the application and potential effects of pesticides in an EPA-
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Application of some pesticides is now regulated under Federal legislation.!.
approved state program. The Administrator of EPA is empowered
to place whatever other constraints on restricted-use pesticides he
deems necessary. A general use pesticide may be applied by anyone
provided the use conforms with label requirements.
FEPGA simplifies the previous procedure for canceling and sus-
pending pesticides registrations. It also authorizes the registration
and inspection of manufacturers and processors of pesticides and
the regulation of pesticide packaging and disposal.
Implementation Of the Law—The various provisions of FEPCA go
into effect over a 4-year period. Corresponding sections of the old
FIFRA remain in effect until replaced. EPA issued implementation
plans for the new law last January.126
Section 3, which extends Federal registration requirements to
the use of products in intrastate commerce, was not required to be
put into effect until October 1974.12T But the Administrator deter-
mined that large-scale intrastate use of unregistered or canceled
products, particularly those containing DDT, might otherwise occur.
EPA therefore implemented the provisions of section 3 with respect
to DDT products on April 10 of this year.128
Regulatory Actions—As of Dec. 31, 1972, EPA banned all major
uses of DDT, a chlorinated hydrocarbon compound which, because
of its persistence and accumulation in the environment, has seriously
damaged birds, fish, and other organisms in the food chain. The
order, announced on June 14, was based upon the Administrator's
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GUIDELINES AND REPORTS 1137
determination that continued DDT use would pose an unaccept-
able risk to man and the environment.129 With the cancellation
order and implementation of section 3 of FEPCA, nearly all uses
of DDT have been terminated.
The DDT ban is expected, in some cases, to cause the use of sub-
stitutes that are more acutely toxic to man. Their use raises the threat
of more pesticide poisoning, especially in the Southeast, where many
cotton farmers are accustomed to using DDT and are unfamiliar with
the more acutely toxic substitutes. More poisoning reports are also
likely to be filed during this growing season because of an improved
accident reporting system and considerable publicity given the
problem.
EPA and the Cooperative State Extension Service of the Depart-
ment of Agriculture are attempting to reduce the threat of pesticide
poisonings which may result from the use of more toxic chemicals.
"Project Safeguard" is designed to educate farmers, particularly
those with farms of 30 acres or less. It will also alert the medical
profession to procedures for working with the more toxic chemicals
and for detecting early signs of poisoning. The effort is centered in 14
states, primarily in the Southeast, which accounted for over 85 percent
of DDT use.130
On April 20, 1973, the Federal Appeals Court in St. Louis dissolved
a District Court injunction which, because of a dispute over FIFRA
procedures, had temporarily prevented EPA from completing cancel-
lation proceedings on several uses of the herbicide 2,4,5-T.131 When
manufactured without proper quality controls, this herbicide has been
found to contain excessive levels of a class of extremely toxic chemicals
called dioxin. EPA will reopen the cancellation proceedings.
Field Reentry Standards—The Occupational Safety and Health
Act132 provides for both temporary emergency and permanent stand-
ards to protect workers. The Federal Environmental Pesticide Con-
trol Act133 also provides for the protection of human health. On
April 30, 1973, the Secretary of Labor issued temporary emergency
standards to protect farmworkers from exposure to hazardous pesti-
cides. Development of standards for reentry—the time following
application of a pesticide during which laborers may not enter the
fields to work—had been ordered by the President in his 1972 Envi-
ronmental Message. The temporary regulations establish standards
and require recordkeeping and the posting of warning signs after
pesticide application. The reentry standards originally covered 21
organophosphate insecticides used on tobacco, apples, grapes,
peaches, lemons, oranges, and grapefruit. This class of pesticides
contains some of most toxic chemicals used for pest control. The
regulations were subsequently revised to reduce reentry times and to
cover only 12 rather than 21 pesticides. On July 10, the Fifth Circuit
Court suspended implementation of the temporary regulations
"pending further order" of the court.134 The Government has ap-
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1138 LEGAL COMPILATION—SUPPLEMENT n
pealed, and in the meantime the Department of Labor and EPA are
cooperating in the preparation of permanent standards to be estab-
lished under regular rulemaking procedures.
Integrated Pest Management—In order to minimize further the
adverse environmental effects of the use of pesticides, the President in
his Environmental Message of 1972 initiated a program to encourage
the development and use of alternative methods of pest control. In
January 1973 the Council released Integrated Pest Management, a
report describing the rationale and benefits of the new Federal
program.
Integrated pest management maximizes natural controls of pest
populations. It is based upon knowledge of each pest, its environment,
and its natural enemies. Farming practices are modified to control the
potential pest and to aid its natural enemies. "Scouts" monitor the
fields to determine population levels of the pest, its natural enemies,
and important environmental factors. Only when the pest concentra-
tion is likely to reach a level high enough to cause significant crop
damage are suppressive measures taken. Such measures might include
releasing biological control agents or pest-specific diseases or, when
necessary, applying pesticides in limited amounts. Measures are se-
lected to control the pest with minimum disruption to its natural
enemies.
The CEQ study on integrated pest management showed that often
this approach provides better pest control at lower cost and with
significantly fewer environmental problems than reliance on chemical
pesticides alone. In addition, integrated pest management offers a
solution to the growing problem of pest immunity to chemical pesti-
A field scout surveys a boll weevil trap as part of an integrated pest man-
agement program.
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GUIDELINES AND REPORTS 1139
cides. The acute susceptibility to pests of crops grown by monoculture
farming is a further stimulus for using these techniques.
The Federal integrated pest management program includes re-
search, field tests, and development of training programs. During
the first growing season, new control methods were demonstrated
on apples in Michigan and Washington, alfalfa in Indiana, po-
tatoes in Idaho, sweet corn in Maryland, and beans and peppers in
Delaware and New Jersey. For the 1973 growing season, the program
has been extended to cover pears in California; citrus in Florida;
corn in Illinois, Indiana, Idaho, Missouri, Nebraska, and Ohio; grain
sorghum in Kansas, Nebraska, Oklahoma, and Texas; apples in
New York and Pennsylvania; peanuts in Oklahoma and Texas; and
alfalfa in Washington. The private sector also carried out insect
scouting on a number of crops in several regions. Participating farm-
ers contributed to the salaries of scouts who monitored more than
3,366,000 acres of cotton,135 about one-fourth of the total U.S. cotton
acreage.
Exchanges of techniques and cooperative pest management de-
velopment projects are the top priority agricultural programs under
our Environmental Agreement with the USSR. A team of Soviet
specialists will visit the United States to review important pest
management research and field operations. A U.S. delegation will
attend an International Conference on Pest Management in the
Soviet Union this year. Cooperative research on promising tech-
niques is expected to begin after the U.S. visit by Soviet specialists.
The Federal program to stimulate integrated pest management
and the new pesticide law's provision for limiting the use of some
pesticides to licensed applicators will encourage the development of
the pest management service industry. The industry already exists
in California and parts of Arizona and Texas. Nearly 30 small com-
panies sell their services on a per-acre basis. The viability of this
small but expanding industry is a measure of its potential. In Cali-
fornia, cotton, citrus, and grape farmers using these private inte-
grated pest management firms increased net profits before taxes by
22 percent.136 Several Land Grant universities are initiating special
integrated pest management training programs.
Toxic Substances
Pending Legislation—A 1971 CEQ report highlighted the need for
legislation to control environmental contamination for which air and
water pollution regulation was inadequate.137 Based on our report,
the Administration submitted to the Congress in February 1971 a bill
to regulate toxic substances.138 The proposed Toxic Substances Con-
trol Act would empower the Administrator of EPA to restrict or pro-
hibit the use and distribution of any commercially produced chemical
substance if necessary to protect human health and the environment.
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The Administrator would also be empowered to prescribe guidelines
for tests that manufacturers must perform prior to marketing certain
types of new chemicals.
On May 30, 1972, the Senate passed a bill embodying most of the
features of the President's proposal. In October, the House passed a
somewhat modified version, but the Congress adjourned before the
differences could be resolved.139
The President submitted a stronger bill in February.140 It would
empower the EPA Administrator to request testing on existing chem-
icals and would allow the requirements of the Act to be extended to
processors in addition to manufacturers. Committees of both Houses
have held hearings on the legislation.
Anticipating passage, EPA established an Office of Toxic Sub-
stances. It is working on ways to identify those characteristics of
chemical substances that are most likely to imperil human health or
the environment—such as persistence or the ability to cause birth
defects. The office is also working to identify methods for testing the
health and environmental effects of specific substances and to identify
the degree of risk involved in their use.
PCB's—Last year's discoveries of hazardous levels of polychlorinated
biphenyls (PCB's) in fresh poultry were the latest in a series of events
underlining the urgent need for enactment of toxic substances con-
trol legislation. Earlier incidents included the mercury episodes in
1970 and 1971 and the detergent industry's voluntary agreement in
1970 to stop the use of NTA (nitrilotriacetic acid) pending further
tests to determine its potential health effects.
Because of the persistence and adverse biological effects associated
with PCB's, a Federal task force headed by CEQ and the Office of
Science and Technology in May 1972 recommended discontinuing
all uses of PCB's except in electrical capacitators and transformers.
At the same time, EPA announced that it would reject water quality
permit applications from any industry whose discharges raised
ambient PCB levels in rivers and lakes to 0.01 or more parts per
billion.141 The Food and Drug Administration has issued regulations
establishing limits for PCB's in food and food packaging and pre-
venting contamination in food plants.142
The major U.S. producer of PCB's, the Monsanto Company, vol-
untarily limited sales of these chemicals to use in capacitators and
transformers. But there is no legal authority to prevent other manu-
facturers, either domestic or foreign, from supplying PCB's for any
use.
In February 1973, the Organization for Economic Cooperation and
Development, which represents Japan, Australia, and the industrial
nations of Western Europe and North America, adopted a directive
calling upon all member countries to limit the use of PCB's to trans-
formers, capacitators, heat transfer fluids (in other than food, drug,
and feed operations), and hydraulic fluids for mining equipment
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GUIDELINES AND REPORTS 1141
and also to control the manufacture, import, and export of products
containing PCB's. This is the first international agreement limiting
the use of an industrial chemical for environmental reasons.143
Haloethers—Although PCB's have received considerable public
attention, this class of compounds may represent only a fraction of
the toxic substances problem. For example, a less publicized group
of chemicals, the chloroethers, may be a significant water pollutant
and drinking water contaminant.
Recent reports have found &u-chloroethyl ether and bis-chloro-
isopropyl ether in some water samples,, including treated drinking
water.144 Little quantitative information is available, however, and
the source of the chemicals is not firmly established.
Both compounds are closely related chemically to fcw-chloromethyl
ether (BCME), which is known to produce cancer in mice. In the
past year the Department of Labor has issued occupational standards
for BCME to protect workers from the threat of cancer. Bw-chloro-
isopropyl ether has not been tested for chronic toxicity. Bw-chloro-
ethyl ether has been studied only briefly, but initial results indicate
that it too may be carcinogenic.145
New substances are being produced each year whose potential
toxicity is unpredictable. If released into the environment, they may
cause significant health or environmental problems. The proposed
Toxic Substances Control Act is needed to ascertain and control
the distribution and use of chemicals with hazardous properties.
Radiation
The past year has witnessed significant efforts to reevaluate the
adequacy of public protection from the effects of ionizing radiation.
Late in 1972, the National Academy of Sciences (NAS) completed
its review of what we know about the effects of ionizing radiation on
man.146 EPA completed its program strategy for standard setting.147
The Atomic Energy Commission held public rulemaking hearings on
radioactive effluents from light water nuclear powerplants and on the
emergency core cooling systems designed to prevent major radioactive
release in case of failure in a reactor's primary cooling system. In
addition, as part of the environmental impact analysis for individual
powerplants, the AEC initiated hearings on methods for considering
environmental impacts of the entire nuclear power fuel cycle.
It is well known that excessive exposure to ionizing radiation can
cause death or ill health in man and damage to the environment.
However, the effects of such radiation at low environmental levels,
such as those currently experienced or allowed by existing standards,
have not been well understood. Work culminating in the past year
helps to clarify this issue. Two issues that continue to receive con-
siderable public attention are reactor safety in the event of a cooling
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system failure and disposal of high-level radioactive wastes. Thus,
although continuous radioactive discharges from nuclear powerplants
and associated fuel processing facilities represent far less than 1 per-
cent of the population's total exposure to manmade radiation (and
will continue to do so over the next few decades despite projected
increases in such facilities),148 nuclear power remains a significant
potential environmental issue.
Exposure Standards—The NAS study estimated that in 1970 the
U.S. population was exposed to an average of approximately 182
millirems per year from all sources of radiation (see Table 1). The
sources of this exposure were: 102 millirems from the natural back-
ground (cosmic rays from space, natural radiation in rocks and soil,
etc.), 73 millirems from medical exposure (x-rays, etc.), and 4 mil-
lirems from fallout caused by atmospheric tests of nuclear weapons.
Of the remaining 3 millirems, most was from miscellaneous sources
(television, air travel, etc.). Occupational exposures (0.8 millirems)
and exposures from nuclear powerplants (0.003 millirems) amounted
to a very small fraction of the total.149
The current EPA guideline for maximum acceptable whole-body
exposure of average population groups to manmade sources of ion-
izing radiation (excluding medical and occupational exposures) is
170 millirems per year. The guideline for an individual is 500 milli-
rems per year.150 The actual annual whole-body exposure experienced
by average population groups from manmade sources—i.e., from fall-
out, nuclear powerplants, and certain miscellaneous sources—is less
than 6 millirems, or about 3.5 percent of the 170 millirem limit.151
The NAS report estimates that if over a 30-year period the pop-
ulation were to receive annually additional radiation up to the full
170-millirem limit permitted by current guidelines, an estimated
additional 3,000 to 15,000 cancer deaths would occur annually. The
most likely figure is 6,000, an increase of about 2 percent in the spon-
taneous cancer death rate.152
The NAS study recognized that the guideline was based on "an
effort to balance societal needs against genetic risks" but concluded
that "it appears that these needs can be met with far lower average
exposures and lower genetic and somatic risks," and thus "the current
guide is unnecessarily high." 153
EPA, as the successor to the Federal Radiation Council which
established the current guidelines, is reviewing the NAS recommen-
dations and will use them as the basis for an expected revision of
environmental standards.
The philosophy of EPA, AEC, and Food and Drug Administra-
tion programs—that hazards should be estimated on the assump-
tion that there is no threshold level below which human beings will
not be adversely affected by exposure to radiation, thus exposures
should be minimized—is supported by the NAS study. It urged that
the accepted concept of balancing the risks of low-level exposures
190
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GUIDELINES AND REPORTS 1143
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against anticipated benefits (e.g., supplying electric energy, provid-
ing medical treatment) be translated into specific operational guid-
ance through cost-benefit analyses and quantitative risk estimates.
The study indicated that risk estimates are preferable to no quan-
titative analysis, although admittedly they are often uncertain.
Discharges from Nuclear Powerplants—The EPA guidelines
apply only to manmade sources of radiation other than medical ex-
posures. Therefore, the guidelines relate primarily to the nuclear
power generation system—to uranium mines and mills, fuel fabri-
cation and reprocessing plants, nuclear power reactors, and waste
depositories. The AEG, which regulates the fuel plants, reactors, and
depositories, seeks not only to meet the environmental standards
set by EPA but to keep emissions, as far as practicable, well below
the standards.
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1144 LEGAL COMPILATION—SUPPLEMENT n
Radioactive releases from nuclear powerplants generally have
been held to a small percentage of the AEG emission limits based on
existing environmental standards. Nevertheless, these standards have
frequently been challenged by claims that the population may be
subjected to unwarranted risks.
Regulations adopted by the AEC in December 1970 on design
objectives and operating conditions were set to keep releases of
radioactivity from light water power reactors at the "lowest prac-
ticable level." 154 These requirements, however, were not quantita-
tive. In June 1971, the AEG proposed amendments to its regulations
which attempted to quantify the lowest practicable level. The levels
of public exposure under the proposed regulations are only a small
fraction of natural background radiation; they are even within
This nuclear powerplant on Lake Michigan is subject to new radiation pro-
tection guidelines.
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GUIDELINES AND REPORTS 1145
annual variations in the natural background radiation at any loca-
tion in the United States. The proposed AEG regulations establish
reactor design objectives intended to limit exposure of individuals
living near nuclear powerplants generally to less than 5 millirerns
per year, the equivalent of 5 percent of background radiation and
1 percent of current radiation protection guidelines. Exposures of
sizable population groups would generally be less than about 1 per-
cent of background or about 1 millirem.
The proposed regulations were the subject of rulemaking hearings
in 1972. The hearings were recessed after more than 2,800 pages
of testimony, and the AEG prepared an environmental impact state-
ment on the proposed quantitative guidance. The final statement was
issued in May 1973.155 The Commission will soon take final action
on the proposed amendments.
Emergency Core Cooling Systems—Emergency core cooling sys-
tems (EGGS), together with issues such as fuel densification, reactor
containment, and reactor siting, are the major elements in nuclear
reactor safety. In June 1971, the AEG issued interim criteria for
the EGGS in light water nuclear powerplants.156 The criteria, which
contained general performance requirements for the reactors and
requirements for implementation, were amended in December 1971
to include additional evaluation models—computer models and as-
sociated assumptions and procedures—for analyzing the performance
of the systems.
In 1972 and early 1973, the AEG held extended public rulemaking
hearings on its ECCS criteria. Their purpose was to elicit advice
from the public and the nuclear industry on whether the interim
criteria should be retained or modified. Participants in the hearing
included the four light water reactor vendors; the Consolidated Util-
ities; the Consolidated National Intervenors; the Lloyd Harbor
Group; and the States of Maine, Minnesota, Pennsylvania, and
Vermont.
Emergency core cooling systems are installed in nuclear reactors to
ensure that heat can be removed from the reactor core in the unlikely
event that the normal core coolant is lost. The emergency systems
must be capable of safely limiting the consequences of any loss of
coolant. In such an accident, the danger is that the fuel rod covering
may break because of overheating, causing radioactive material from
the reactor fuel to escape into the containment building and leak into
the environment. Without adequate emergency cooling, there would
be substantial additional core damage, possibly leading to melting of
the entire core. That might cause the release of additional radioactive
vapors as airborne particulates.
At the hearing, several citizen groups raised substantial questions
concerning the official AEG position. The Commission made avail-
able for questioning members of the AEG regulatory staff and AEG
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1146 LEGAL COMPILATION—SUPPLEMENT n
contractors, whose views differed from those presented in the official
regulatory staff testimony.
Supplemental testimony filed by the AEG staff in October 1972
proposed increased conservatism on some of the EGGS criteria, par-
ticularly the acceptable temperature limit for the covering of the
hottest single fuel rod in the reactor and for the assumptions used
in calculating the temperature of the rod covering.
On December 7, 1972, the regulatory staff issued for comment a
draft environmental statement on the interim EGGS criteria. A final
statement was filed with the Council on Environmental Quality in
May.157 Requests have been made to question AEG staff on matters
raised in the statement, and the EGGS hearing will be resumed for
this purpose. After the hearings, the AEG will decide on the criteria.
For both the EGGS and radioactive discharge issues, the AEG
adopted a relatively new technique—it held general rulemaking
hearings to resolve in one proceeding a number of complex technical
issues that would otherwise have been raised repeatedly in many
individual adjudicatory proceedings. This new rulemaking approach
appears to have advantages for both the Government and environ-
mental groups, who can thereby concentrate and consolidate their
efforts on basic issues. Individual license hearings can then focus on
problems peculiar to a particular facility.
In May 1973, a lawsuit was filed against the AEG to enjoin the
further operation of 20 nuclear powerplants licensed by the agency.158
It was claimed that the reliability of the EGGS in these plants is in-
sufficient to provide the "adequate protection to the health and safety
of the public" required under the Atomic Energy Act.159 The court
granted summary judgment for the AEG and dismissed the case,
simultaneously denying an associated motion for a preliminary in-
junction. The grounds for the dismissal were that, in view of the
pending ECCS hearings, the petitioners had failed to exhaust their
administrative remedies first and that the court did not have juris-
diction over the case. Plaintiffs appealed in the case, which is now
pending in the District of Columbia Court of Appeals.160
Nuclear Fuel Cycle—The AEG has also used the rulemaking hear-
ing to deal with the environmental effects of the nuclear fuel cycle,
which embraces all the processes except nuclear powerplant opera-
tions, including mining, fabrication, reprocessing, transportation, and
disposal. Because each newly licensed powerplant increases the level
of fuel cycle activity, the question has arisen in several licensing pro-
ceedings whether the environmental effects of the increased fuel cycle
activity should be considered in the cost-benefit analysis that is used
in determining whether to grant construction permits and operating
licenses for particular plants. In November 1972, the AEG addressed
this issue in a survey of the impact of the nuclear fuel cycle on the
environment.161
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GUIDELINES AND REPORTS 1147
The AEG survey proposed two alternative amendments to the AEC
regulations governing licensing of nuclear powerplants.162 Under the
first alternative, each analysis of the environmental effects of proposed
light water nuclear reactors would consider only the environmental
impacts of the nuclear powerplant itself and the effects of transport-
ing nuclear fuel to the reactor and radioactive wastes from the reactor
to depositories. The second alternative would require an analysis of
the total fuel cycle impact in the environmental cost-benefit analysis
of each proposed reactor. If this second alternative were adopted, the
data on total fuel cycle impacts developed in the AEC would be used
in the individual powerplant environmental cost-benefit analyses.
Medical Exposure—As mentioned above, the average exposure of
the U.S. population to radiation from other than natural background
and medical sources is an exceedingly small portion of total exposures.
The primary manmade—i.e., controllable—source is medical radia-
tion. Its use is increasing, but it is not presently subject to regulation.
The NAS report stated that medical radiation "can and should be
reduced considerably by limiting its use to clinically indicated proce-
dures utilizing efficient exposure techniques and optimal operation of
radiation equipment." 16:l
The report indicated that using improved equipment, properly
shielding reproductive organs, and eliminating unnecessary x-rays
could reduce by 50 percent the "genetically significant dose" currently
received by the general population.164 Among sources of exposures
listed as probably unnecessary were mass screening for tuberculosis,
lung cancer, and gastric cancer; routine x-rays of food handlers; and
"possibly" mass screening for breast cancer in women. The commit-
tee suggested that x-ray exposure could best be reduced through vol-
untary action by the medical profession and by regulating the design
of equipment responsible for medical exposures.165 The Food and
Drug Administration's performance criteria for diagnostic x-ray sys-
tems and their major components are having a significant effect on the
manufacture of these systems. FDA's expanded training and educa-
tional efforts in this field are also reducing patient exposures.
Noise
Noise affects all urban residents—in factories, in offices, near con-
struction sites, at places of recreation, and even at home. In the past,
noise was almost exclusively a local problem. Early municipal ordi-
nances prohibited noise considered excessively or unreasonably loud.
They focused on auto horns, steamboat whistles, radio loudspeakers,
and sound trucks. In more recent years, the number and character of
sources of noise have changed. As instruments for quantitative meas-
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1148
LEGAL COMPILATION—SUPPLEMENT n
Recent legislation authorizes EPA to regulate major sources of noise.
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GUIDELINES AND REPORTS 1149
urement of noise have been developed, precise numerical limits have
replaced general restrictions in noise control regulations.
Noise was long accepted as a necessary though sometimes un-
pleasant part of living. Now it is regarded as a controllable pollutant
which should be regulated. This new attitude is reflected in the
Noise Control Act of 1972.16° The Act calls for extensive Federal
regulation of major noise sources, preempting to some extent state
and local controls. The resulting interplay among the levels of govern-
ment will be an important feature in the success of noise control
efforts in future years.
The Noise Control Act of 1972 gives the Federal Government a
major new role in controlling noise problems. Regulation over new
products is made a Federal responsibility. But there is still room—
and need—for vigorous local action. Federal controls, except those
for aircraft, trucks, and railroad operations, apply only to the noise
emissions of products, not to the time, place, or manner of their use.
For example, although Federal regulation will cut the noise generated
by new construction equipment, local regulation and enforcement
will still govern its maintenance and set the hours for its use. Com-
munities may also wish to restrict traffic and other noise-generating
activities at times.
Transportation Noise
The most significant source of noise is transportation—airplanes,
automobiles, trucks, buses, and railroads.167 For several years there
has been Federal authority to regulate aircraft noise. With enact-
ment of the Noise Control Act last year, the Federal Government
received an expanded charter to control not only noise from aircraft
and other modes of transportation but also the other major noise
sources that affect interstate commerce, such as construction
equipment.
The first Federal legislation expressly aimed at controlling noise
was the 1968 amendment to the 1958 Federal Aviation Act. It gave
the Administrator of the Federal Aviation Administration broad
authority to prescribe standards for measuring and controlling
civilian aircraft noise and sonic boom.168 Pursuant to this authority,
the FAA established noise emission standards for all new types of non-
military subsonic jet aircraft. The FAA had indicated its intention to
adopt noise emission limits for supersonic transport and V/STOL
aircraft (designed for vertical or short takeoff and landings) and for
retrofitting aircraft already in use.169
The Noise Control Act of 1972 directs the Environmental Protec-
tion Agency to conduct a thorough study and report to the Congress
by July 27, 1973, on the aircraft and airport noise problem, including
assessment of current FAA flight and operational noise controls, noise
emission controls and possibilities for retrofitting or phasing out exist-
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1150 LEGAL COMPILATION—SUPPLEMENT n
ing aircraft, possibilities for establishing cumulative noise level limits
around airports, and control measures available to airport operators
and local governments. Following completion of the report, EPA is
directed to propose for adoption by the FAA any regulations on air-
craft noise and sonic boom that are necessary to protect public health
and welfare. Then will follow an elaborate bureaucratic ballet.
The FAA is required to publish and hold hearings on the proposed
regulations. Within a reasonable time after concluding its hearings
and consulting with EPA, the FAA must either adopt the EPA regu-
lations, as proposed or modified, or explain in the Federal Reg-
ister why it has failed to do so. If EPA concludes that an FAA
modification of its proposed regulations or a decision not to adopt a
regulation does not protect the public health and welfare, EPA may
ask the FAA to review and report to it on the advisability of prescrib-
ing the EPA-proposed regulation. In response, the FAA is required
to identify the factors leading to its conclusions, including any envi-
ronmental impact analysis. If the FAA indicates that it will not adopt
the EPA recommendations and that it has not done an environmental
impact comparison of the EPA and FAA alternatives, EPA may re-
quest the FAA to publish a supplemental report doing so.170 Finally,
however, the FAA may make the decision to promulgate regulations
with or without EPA's concurrence.
Aircraft noise associated with airport landings and takeoffs is a
major environmental problem for many communities, particularly
where airports are sited near community activities. Because of the
extensive Federal authority to regulate aircraft operations, air traffic,
and the use of airspace, courts have frequently struck down local
attempts to control aviation noise on the basis of preemption of Fed-
eral law.
It is clear that not all local regulation is preempted. Thus, while
local regulations on the permissible noise levels of all overflying air-
craft or on the use of navigable airspace have been held to be inher-
ently inconsistent with the Federal Aviation Act,171 until recently
local governments have been held to have some powers to curb noise
by controlling airport operations nondiscriminatorily and consistent
with rules adopted by the FAA for such operations.172 The Noise
Control Act of 1972 was not intended to alter this preexisting align-
ment of Federal and local authorities.173
In May the Supreme Court, in City of Burbank v. Lockheed Air
Terminal, Inc., held that a locality can control airport noise only as
proprietor of the airport being regulated and not through the exer-
cise of its general constitutional police power to protect public health
and welfare.174 The 5-to-4 decision, based on Congressional language
referring to localities as proprietors, stands in sharp contrast to an-
other recent Supreme Court decision 175 upholding a state's police
power authority to regulate oil pollution in coastal waters, another
subject heavily regulated under Federal law.
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GUIDELINES AND REPORTS 1151
The Lockheed Air Terminal, located in Burbank, Calif., is appar-
ently the only major privately owned airport in the Nation. However,
the Supreme Court decision appears to preclude local control in an-
other category of cases—those in which an airport located in one local
jurisdiction is owned by another. For example, the Cincinnati air-
port is located in Kentucky.176 Unless overturned by the Congress,
the Burbank decision leaves jurisdictions containing airports that they
do not own with very limited ability to protect themselves from air-
port noise. The Court's decision was contrary to a friend-of-the-court
brief filed by the Department of Transportation.
Noise from other modes of transportation—autos, trucks, and
buses—until recently has been regulated, if at all, at the state and
local levels. Most local laws seek to reduce engine exhaust noise by
requiring mufflers. Some localities have tried to restrict the use of
various types of vehicles in certain areas to specific times of the day
by controlling their speed or by excluding them altogether.
In recent years, some state and local governments have specified
permissible noise levels for vehicles operating at different speeds. In
addition, a few local governments have prohibited the sale of new
vehicles that produce noise above specified levels.177
The Noise Control Act of 1972 preempts state and local govern-
ments from establishing noise emission standards applicable to the
sale of new vehicles. It follows the precedent of the Clean Air Act
by requiring EPA to set national standards.178
The Act also contains special provisions requiring EPA to estab-
lish noise emission limits for the operation of railroads and motor
carriers engaged in interstate commerce and directing the Depart-
ment of Transportation to issue regulations ensuring compliance.
The EPA regulations will supplement those which may be adopted
for new trucks, buses, and railroad equipment. The Act prohibits
state and local regulation of noise from these sources unless it is
identical to Federal standards. State and local regulation is permit-
ted, however, if required by special local conditions and if determined
by EPA not to conflict with its regulations.179
Noise from Other Products
The EPA-DOT/FAA authorities for regulating transportation
noise sources are part of a broader mandate under the Noise Control
Act to set emission standards for new products which are major
noise sources and for which standards are feasible—construction
equipment; transportation equipment, including any in which an
engine or motor is an integral part; and electric or electronic equip-
ment. The Administrator of EPA must promulgate initial noise
limits for products in these categories by October 1974. He has dis-
cretionary authority to regulate any other product whose noise may
endanger public health or welfare.180
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1152 LEGAL COMPILATION—SUPPLEMENT n
The Noise Control Act empowers EPA to require that manufactur-
ers label any product that emits noise capable of adversely affecting
public health or welfare. EPA may also require labeling of products
effective in reducing noise.
Since 1971, the Department of Housing and Urban Development
has followed a policy that prohibits HUD financial support for con-
struction on sites that produce unacceptable noise exposures as
defined by standards issued by the Department.181
A successful effort to reduce noise will require Federal, state, and
local action. Noise emissions should be substantially reduced over time
as Federal standards for new equipment take effect. But to be fully
effective Federal standards must be complemented by state and local
restrictions on the time and manner in which equipment is used. Con-
tinuing action at the local level, such as New York City's new noise
control code,182 suggests that the new Federal controls will supple-
ment rather than supplant local programs.
Solid Wastes
The solid waste problem is really a series of problems related to
the staggering volume of products and other objects discarded after
use. Solid wastes range from newspapers and grapefruit rinds to
abandoned automobiles and demolition debris. Solid wastes pose
potential pollution problems, such as ground water leachate from
land dumps and air emissions from incinerators. They create aesthetic
eyesores such as litter on roads and in parks and the blight of open
dumps. They can create resource depletion problems because of the
failure to recover waste materials whose reuse can perpetuate reserves
of such virgin resources as timber and iron ore. And for municipali-
ties that spend about $5 billion each year for collection, processing,
and disposal, solid wastes are a major financial problem.183
Since 1965, the Federal Government has helped communities find
new solutions for their solid waste problems through research,
analysis, demonstration of new technology, and technical as-
sistance.184 Although the solid waste problem remains significant,
the impact of EPA's efforts over the past few years is now being felt
and can be expected to increase as more communities and states
adopt new techniques.
In the past 3 years, EPA grants and activities have stimulated de-
velopment of new technologies for the recovery of wastes; have con-
tributed to research, development, and implementation of improved
methods of collection and disposal; have helped close thousands of
open burning dumps; and have developed and demonstrated manage-
ment tools to maximize the efficiency of operations. This section re-
views some of the major developments in solid waste management
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GUIDELINES AND REPORTS
1153
Open dumps are being closed or converted to sanitary landfills.
over the past year and discusses the state of the art in solid waste
management.
For the most part, urban solid waste is a local or regional problem.
In the past, the Federal role has been to identify and test possible
solutions, but implementation generally rests with state and local
governments. Accordingly, the Administration has proposed to re-
duce Federal spending for solid wastes.185 However, the Federal Gov-
ernment continues to stimulate recycling by purchasing recycled
materials 18G and by seeking to eliminate discriminatory treatment
of recycled materials in such areas as Government-approved inter-
state transportation rates.
Hazardous Wastes
Although there are Federal laws controlling release of hazardous
materials to the air and water, there are no laws directly governing
their disposal on or under the land. The unregulated disposal of
hazardous wastes is a national problem, related primarily to in-
dustries in interstate commerce. This serious regulatory gap sig-
nificantly threatens human health and other living organisms. The
severity of the problem is illustrated by just two examples.187 In Per-
ham, Minn., arsenic buried on agricultural land about 30 years ago
caused the hospitalization of several people who drank water con-
taminated by it. In the San Francisco Bay area, 50 tons of organic
lead produced each year from alkyl lead manufacturing was disposed
of in ponds at an industrial waste disposal site. In attempts to recover
the waste, plant employees became intoxicated with alkyl lead, and
employees in the surrounding area were exposed to airborne alkyl
lead vapor.
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1154 LEGAL COMPILATION—SUPPLEMENT n
Incidents like these led to the President's proposed Hazardous
Waste Management Act.188 Under this bill, hazardous wastes would
be identified by the EPA Administrator and standards for treatment
and disposal issued. Guidelines would be established for state agencies,
which would have primary responsibility for regulation. For the most
hazardous wastes, a permit system would be set up under direct Fed-
eral regulation. Federal authority would also be provided to ensure
compliance with the standards if states failed to carry out the guide-
lines or if an imminent hazard arose. The Congress has yet to hold
hearings on the President's proposal.
Resource Recovery
Recycling activity in the past year has focused on developing mu-
nicipal resource recovery systems and on testing new recovery tech-
nology. It is apparent from this work that a variety of technologies are
available and that a continued Federal role in funding full-scale
demonstration projects would have limited value.
A recent study released by the Council on Environmental Quality,
Resource Recovery: The State of Technology, concludes that tech-
nology is not a barrier to increased resource recovery from municipal
wastes.189 The major categories of resource recovery processes are:
1) energy recovery processes—recovering the energy content of mixed
municipal wastes, in the form of steam, electricity, or fuel; heat recov-
ery from incinerators is the most developed and widely practiced
method for recovery of resources from mixed municipal wastes but is
not the most attractive economically; 2) materials recovery pro-
cesses—separating and recovering paper, metals, and glass from mixed
municipal wastes; 3) pyrolysis processes—thermally decomposing
the mixed municipal wastes in controlled amounts of oxygen to pro-
duce oil, gas, tar, acetone, and char; 4) compost processes—produc-
ing a humus material from the organic portion of mixed wastes;
and 5) chemical conversion processes—chemically converting the
waste into protein and other organic products.
The report's economic analyses indicate that several systems, pri-
marily heat recovery, materials recovery, and pyrolysis, can compete
economically with disposal by incineration and with long distance
hauls to landfills. However, the report states that the economics of
resource recovery systems depend highly on the markets for wastes,
which are not yet fully developed. Hence these systems are not self-
sustaining operations because they dtr-not recover revenue sufficient
to offset total costs.
Despite some economic disincentives, new resource recovery sys-
tems are being planned and instituted across the Nation.
In Baltimore a 1,000-ton-per-day resource recovery system is being
constructed under an EPA demonstration project.190 Solid waste will
be converted into fuel gas by pyrolysis. The steam produced will be
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GUIDELINES AND REPORTS
1155
sold to the Baltimore Gas and Electric Co. Ferrous metal and glass
will be recovered and sold.
In San Diego, a 200-ton-per-day EPA-supported pyrolysis system
should be operational by November 1974. The demonstration project
will produce fuel oil and other byproducts. Over 1 barrel of fuel oil,
140 pounds of ferrous metals, and 120 pounds of glass will be gen-
erated from the average ton of refuse. The oil will be low sulfur,191
consistent with air quality standards.
St. Louis is operating a facility that converts solid waste into fuel
for a Union Electric power generating plant under an EPA grant.
The plant can handle up to 30 percent of the city's trash load, and the
converted solid waste replaces 10 percent of the coal normally burned
by the powerplant.192
In New Orleans, the National Center for Resource Recovery
(NCRR), a nonprofit, industry-supported organization, is helping
to finance, organize, and design a unique resource recovery facility to
be operated in conjunction with a sanitary landfill.193 The system,
which recovers metals and glass for reuse, will be financed entirely by
the NCRR and Waste Management, Inc. The legality of the sole
source procurement for the facility is now being contested in the
courts.194
In Wilmington, Del., ground has been broken for a $13.7 million
plant.195 From 50 tons of refuse and 230 tons of sewage sludge per
day, this privately operated plant, another EPA-supported demon-
stration project, will produce metals, glass, and paper.
One of the earliest and most publicized resource recovery systems
is the Black-Clawson process in Franklin, Ohio. The plant has been
producing paper fiber and ferrous materials from about 50 tons of
solid1 waste per day. A glass recovery system producing color-sorted
The municipal solid waste recycling plant in St. Louis.
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1156 LEGAL COMPILATION—SUPPLEMENT n
glass and aluminum began operating in May. EPA has contracted for
a technical, environmental, and economic evaluation of the system.
Although the technology for resource recovery is available and the
use of postconsumer wastes is increasing in absolute quantities, the
percentage of recycled versus total materials used is still declining.
For example, EPA estimates that waste paper consumption as a per-
cent of total fiber consumption dropped from 23.1 percent in 1960
to 17.8 percent in 1969.196 The basic reason for this decline is the
competitive advantage generally enjoyed by virgin materials. Virgin
materials tend to be cheaper, partly because of depletion allowances
and other tax benefits and partly because most manufacturing facili-
ties are located nearer the sources of virgin materials than the sources
of recycled materials. For example, most paper mills are cited closer
to forests than to major metropolitan areas. In some cases, virgin ma-
terials also have the advantages of higher quality and relative ease of
extraction compared to recovery of recycled materials from mixed
wastes.
Preliminary analyses developed for CEQ and reported by EPA
indicate that use of recycled materials can reduce air emissions, waste
generated, and energy consumed compared to use of virgin materials.
Making 1,000 tons of steel reinforcing bars from scrap instead of
from virgin ore takes 74 percent less energy and 51 percent less water,
creates 86 percent less air pollution emissions, and generates 97
percent less mining wastes.197
Solid Waste Management
A particularly significant development in solid waste management
is the growing involvement of private industry. Approximately
10,000 U.S. firms currently operate 62,000 vehicles and employ over
100,000 people in solid waste management. In residential collection,
they serve about 110 million residents located in about 35 million
housing units (about one-half the U.S. population). Private con-
tractors handle over 90 percent of commercial and industrial wastes
and collect approximately 73 percent of the total solid waste tonnage
in the Nation.198 Often private firms have proved to be more efficient
than units of government in managing solid wastes.
Better solid waste management techniques, often developed with
technical assistance from EPA, have saved considerable sums of
money. The city of Cleveland, by reducing crew size, creating more
efficient operations, and changing from backyard to curbside collec-
tion, has reduced the annual solid waste budget by 43 percent, from
$14.8 million to $8.5 million.199
River Rouge, Mich., changed storage containers, which helped
to cut costs by 58 percent. Huntington Woods, Mich., changed its
collection sequence and cut costs by 28 percent without sacrificing
the quality of service. The Marine Corps Recruit Depot at Parris
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GUIDELINES AND REPORTS 1157
Island, N.C., will reduce its annual expenditure by 25 percent when
it completes changes in its collection and disposal techniques, in-
cluding a shift to acceptable sanitary landfill.200 These examples
indicate the results that can be achieved through proven solid waste
management tools.
A number of states are examining possibilities for economy and
environmental protection by managing solid wastes statewide or
regionally. Connecticut completed a detailed State management plan
and enacted legislation establishing a statewide disposal and resource
recovery program.201 The potential problems posed for New York
City by a new law in New Jersey, authorizing State officials to reg-
ulate where garbage may be dumped,202 illustrate the need for coordi-
nated interstate waste management. New York City now disposes of
about 10,000 tons of garbage weekly in New Jersey.203
Oregon is no longer the only State using the mandatory deposit
approach to the litter problem caused by discarded beverage con-
tainers. A new Vermont law goes into effect in July 1973.204 Similar
bills are pending in a number of other states. The Oregon law,205
which took effect last October, outlaws pull-tab openers on beverage
cans and requires a 5-cent deposit on all beverage containers except
standardized beer bottles, for which the deposit is 2 cents. A pre-
liminary EPA survey shows that beverage container litter in Oregon
has declined by 81 percent since the new law went into effect. The
survey also shows stable beverage sales, a decrease in beverage prices,
and 142 jobs lost in the can industry. Increased employment in
bottling plants is expected. Cans now account for less than 1 per-
cent of beer and soft drink sales.206 EPA is conducting further studies
in Oregon and expects to have more definitive results by the end of
the year.
Energy
Many issues of energy policy require trade-offs among environ-
mental quality, economic factors, and national security. The impor-
tance of these interrelationships became more apparent during the
past year as policies were developed to deal with energy shortages.
Environmental controls are among the significant factors respon-
sible for current energy shortages and those predicted for the near
future. But to single out any one factor is misleading. In fact, some of
the claims concerning environmental impacts are inaccurate. This
section looks at the relationships between recent energy supply prob-
lems and environmental factors as well as efforts to meet energy
demands without sacrificing environmental quality.
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V
High-tension power lines are becoming a dominant landscape feature.
Energy Supply—the Past Year
The winter of 1972-73 witnessed an energy supply problem in sev-
eral parts of the country. Natural gas was in short supply even in the
producing states of the South.207 In the early part of January, fuel oil
and propane shortages forced the closing of 22 of Denver's 121
schools.208 Factories and plants in many parts of the country were
forced to shut down due to energy shortages.209 Jet fuel was tight at
New York's three major airports.210 And demand for low sulfur resid-
ual oils, mainly for use in electric generating plants, exceeded supply.
During the summer of 1972 there were sporadic shortages of elec-
tricity, and reserve generating capacity in some areas remains mar-
ginal.211 This summer there have been shortages of gasoline in many
areas of the country.
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GUIDELINES AND REPORTS 1159
There is no single or simple explanation for these shortages. Many
unrelated factors interacted to shape the situation. With respect to
natural gas, controlled prices have artificially constrained the quanti-
ties supplied. Increased demand for gas was due to many factors,
including its desirability as a clean fuel. But there are other reasons as
well. In the Midwest, a late, wet harvest overlapped an unusually
early cold spell to cause an unprecedented crop-drying requirement.
The volume of natural gas demanded for crop drying exceeded sup-
plies, and gas companies began cutting off their interruptible indus-
trial customers. Based on reports filed with the FPC in February, 13
of the Nation's largest interstate pipelines had, or anticipated, cur-
tailed deliveries this past winter.212 The industries affected were
forced to switch to other energy sources—mostly heating oil and
propane.
A cold winter in the Midwest further intensified demand for home
heating oil, which was already in short supply for a number of reasons.
First, the price controls established in August 1971, when heating oil
prices were at their seasonal low, left refiners with little incentive to
produce extra quantities. Air quality standards also played a role.
Faced with the need for controlling sulfur oxides emissions, electric
utilities needed low sulfur residual oil for their generating plants.
Because low sulfur residual oil was not available in sufficient quanti-
ties, additional volumes were produced by mixing high sulfur residual
oil with low sulfur home heating oil. This reduced the sulfur content
of the fuel but also increased the demand for home heating oil
during what had traditionally been the off-season. As a result, refin-
ers were unable to build normal inventories prior to the onset of the
winter heating season. Heating oil production was increased, but at
the sacrifice of diesel and jet fuel and gasoline.
This year's energy shortages resulted in large measure from insuffi-
cient oil refining capacity. A major reason for the oil industry's un-
willingness to commit large sums to new refinery construction was
uncertainty about Government policies, such as oil import policies and
reducing lead content in gasoline. Now, with the termination of oil
import quotas, oil companies have moved to expand refinery capacity.
No fewer than five major refinery projects were announced within 3
weeks after the President ended import quotas in his April 18 Energy
Message. At least 13 more projects are now indicated to be "on the
drafting boards." 213
Demand for gasoline is increasing. People are driving more while
getting lower gasoline mileage. Miles per gallon have declined in part
because of vehicle emission controls, but gas mileage is influenced
more by the weight of vehicles and also by accessories such as air con-
ditioning and automatic transmissions.
Environmentalists have been blamed for preventing new refinery
construction, particularly along the East Coast, where the capacity
shortage is most acute. However, the importance of new plant con-
struction is sometimes exaggerated. It is interesting to note that
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LEGAL COMPILATION—SUPPLEMENT n
Insufficient oil refinery capacity has contributed to recent energy shortages.
roughly a 50 percent expansion of refinery capacity is possible at
existing sites. More important reasons for the lack of increased capac-
ity in the refining industry include uncertainty in price and volume of
foreign crude oil supplies, the failure of some oil companies to foresee
the rise in domestic demand, and general credit and economic
conditions.
Delays in powerplant construction, particularly nuclear plants,
have also been caused by a wide variety of factors. Contrary to many
public statements, court actions by environmentalists are not the
major contributor. Information available to the Council indicates
that delays are primarily caused by nonenvironmental factors such
as strikes, defective equipment, and late deliveries of equipment.
Data submitted to CEQ by the Atomic Energy Commission in
March 1973 indicate that final environmental impact statements
were available, on the average, 8.2 months prior to fuel loading. A
plant must be ready for fuel loading prior to licensing. Therefore
the AEG data confirm that the NEPA environmental review process
is not the major factor controlling the start of a nuclear plant's
operations.
New Energy Initiatives and Environmental Safeguards
In order to help prevent future energy shortages, the President
in his April Energy Message announced a multifaceted program de-
signed both to develop new domestic energy supplies and to con-
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serve energy use. The message contained measures to protect the
environment while meeting energy needs.214
Increased Supplies of Natural Gas—Natural gas is our cleanest
fossil fuel. It does not cause extensive environmental damage during
extraction, it is not spilled into waterways during transport, and
emissions to the air are minimal. But natural gas has become in-
creasingly scarce because its price has been regulated at a level far
below that dictated by demand.
The President's proposal for deregulation of natural gas, if en-
acted, will provide two major environmental benefits. Deregulation
would encourage more exploration and production. Price increases
would discourage marginal uses in powerplants and industrial
boilers where other fuels could be used in conjunction with environ-
mental controls. Natural gas would be available for space heating
and other uses where no other short-term alternatives exist to meet
air quality requirements.
Although the costs of natural gas to consumers would increase,
these costs would be small compared to the benefits. Much of the cost
of natural gas is in transportation and distribution, and the costs
of new, unregulated gas would be averaged with the current sup-
plies of regulated gas in the prices paid by the consumer. But most
important, without stimulating more exploration and production,
the alternative is future shortages of this clean fuel.
Use of Coal—It will also be necessary, however, to use more coal,
our most pollution-prone fuel. Although the production and con-
sumption of coal can be environmentally harmful, it is by far the
Nation's most abundant energy resource. At present rates of con-
sumption, known reserves could supply the Nation's energy needs for
at least 300 years. But expanding our use of coal means that we
must control strip mining, effects of underground mining such as
acid drainage, and emissions of sulfur oxides from coal combustion.
The President's proposed Mined Area Protection Act, submitted
to the Congress earlier this year, would fix stringent standards for
mining and reclamation and encourage reclamation of previously
mined areas for both surface and underground operations. In the
future, sulfur oxides emissions will be controllable by the use of stack
gas cleaning technology that is emerging. But this technology is still
several years away. Meanwhile, the Administrator of EPA has urged
the states to delay implementation of secondary standards for SOX.
This action will ensure that limited supplies of clean fuels will be
utilized in those areas which need them to meet health-related air
pollution standards. It will also help to avert adverse effects on the
U.S. balance of payments and on domestic coal industry employment
that would be caused by importing enough low sulfur oil to meet all
current air pollution standards.
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OCS Leasing—Another Administration proposal would increase the
acreage leased for oil and gas drilling on the outer continental shelf.
Leasing would begin in new areas beyond the 200-meter isobath and
beyond the Channel Islands in the Pacific if environmental impact
analysis indicates that drilling can be done safely. The President
directed the Council on Environmental Quality, working with EPA
and Interior in consultation with the National Academy of Sciences
and other Federal agencies, to study the environmental impacts of
oil and gas development on the Atlantic outer continental shelf and
in the Gulf of Alaska. The report and recommendations will be sub-
mitted within 1 year. Until this report is completed, no drilling will
be permitted in either area.
Oil Imports—Even with energy conservation and development of
domestic energy supplies, oil imports must increase. Last winter the
Department of the Interior, at the direction of the President, relaxed
restrictions on imports of home heating oil, and in March all limita-
tions were removed on the number of oil import licenses which could
be issued. Finally, in his Energy Message, the President announced
the phaseout of the import quota system in favor of a license-fee
n
Rigs lie abandoned above a depleted oil field on the Texas coast.
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GUIDELINES AND REPORTS 1163
system. All direct quota controls over the quantity of imported crude
oil and refined products are being replaced with a license-fee system.
Under the new system, holders of import licenses may import petro-
leum without charge up to their 1973 quota allocations; for imports
in excess of the 1973 level, a fee must be paid by the importer. Over
the next several years, license-fee exemptions will be phased out, and
all petroleum imports will be subject to the license-fee system.
The resulting rise in oil imports means that more attention must
be paid to ocean transportation. Several accidents have shown that
oil spills are a major environmental problem. The United States has
led in forging international agreements to reduce intentional and
accidental spills from oil transport. But importing more oil will make
the problem of oil spills in the ocean environment more acute over
time.
The Council has conducted a study of the potential environ-
mental impacts of domestic deepwater ports to handle supertankers.
CEQ compared these impacts to those resulting from transshipment
of oil in small vessels from Canadian or Caribbean superports into
congested U.S. coastal ports. Domestic superports, properly designed
and sited offshore, would result in considerably less spilled oil and
less damage to the marine environment. Coupled with effective land
use controls, development of U.S. deepwater ports offshore appears
environmentally preferable to transshipment in small vessels. The
President's proposal for licensing and environmental controls of off-
shore superports should help reduce potential pollution from the
transportation of oil.
Powerplant Siting—The President's energy program also recognizes
the need to create institutional mechanisms to protect the environ-
ment in the siting of electric powerplants. The President has proposed
legislation to require utilities to undertake long-range planning and
states to establish powerplant siting agencies. Utilities would be re-
quired to apply for approval of particular powerplant sites 3 to 5
years before construction. State and Federal approval would allow
for consideration of the broadest range of environmental problems
early enough to assure proper siting and controls.
New Energy Sources—Besides facilitating expansion of conventional
power supplies, the Federal Government has intensified efforts to
develop new energy sources. The Secretary of the Interior will file
an environmental impact statement on a proposed prototype oil shale
leasing program involving six tracts of public land in Colorado, Utah,
and Wyoming. The Secretary will make an annual progress report on
the oil shale development program which will be subject to public
review. If the environmental risks for the prototypes are acceptable,
further leasing will be considered.
In a parallel program, the Interior Department is preparing an
environmental statement on a proposed leasing program under the
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Geothermal Steam Act of 1970. Development of geothermal energy
resources on public lands, under conditions of sound resource
management and with the necessary environmental safeguards, could
be a significant future source of clean energy.
In addition, the Federal Government has increased its research
and development funds for several new energy sources, including"
coal gasification and liquefaction, solar energy, and nuclear fusion.
The liquid metal fast breeder reactor program continues under high
priority toward the goal of commercial demonstration by 1980.
Energy Conservation—Besides initiatives to increase supplies of
clean energy, the President's Energy Message set forth a program of
energy conservation. Adoption of a new national energy conservation
ethic, with Federal leadership, is urged. More efficient use of energy
benefits the environment and the consumer.
The Department of Commerce, CEQ, and EPA are initiating
voluntary programs in which major home appliances, autos, and auto
accessories sold by participating manufacturers will be rated for
energy efficiency and ranked relative to one another. The ranking
will be displayed prominently for the consumer. Without useful in-
formation on energy efficiency, consumers cannot make informed de-
cisions when purchasing items.
In the recent revision of guidelines for preparation of environ-
mental impact statements, CEQ requires that energy consumption
be explicitly considered by Federal agencies. Federal agencies will
adopt conservation guidelines in procurement and other decisions.
An Office of Energy Conservation has been created by Presidential
directive within the Department of the Interior. It will coordinate
Federal energy conservation programs, conduct research on issues
related to energy conservation, and educate the public on energy
efficiency and costs.
Several Federal agencies are deeply involved in the promotion of
energy conservation. The General Services Administration, with re-
sponsibility for design, construction, and operation of Federal build-
ings, is incorporating conservation principles directly into its planning
framework and is constructing a Federal office building in Manches-
ter, N.H., to demonstrate energy conservation. The Department of
Housing and Urban Development has taken steps which will lead to
better energy use in residential construction. Its Federal Housing
Administration has upgraded insulation requirements for single- and
multi-family structures financed under its guarantee. HUD is experi-
menting with new concepts in residential energy systems in its re-
search and demonstration program.
The National Bureau of Standards, Department of Commerce, is
furthering energy efficiency through applied engineering. A full-size
house has been erected within the NBS environmental laboratories in
Gaithersburg, Md., and engineers are measuring energy use under
carefully controlled conditions. When the evaluation is complete,
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GUIDELINES AND REPORTS 1165
analytical techniques will be available to predict energy consumption
in new structures.
In the transportation sector, both EPA and the Department of
Defense are evaluating more efficient automobile engines. EPA has
developed and published the first comprehensive set of auto gasoline
consumption figures for a standard urban driving cycle.
June Energy Statement—In June the President issued an energy
statement, expanding on his formal Energy Message of two months
earlier and responding to national concern over the possibility of
gasoline shortages. The statement announced immediate actions by
the Federal Government to cut its energy use by 7 percent over the
next 12 months and suggested voluntary actions by the private sector,
such as reducing the speed of automobiles and commercial aircraft
and setting air conditioners at higher temperatures, to achieve com-
parable reductions. Longer-term energy conservation opportunities
were identified for study, including incentives to stimulate produc-
tion of more efficient automobiles, energy-efficient recycling of waste
materials, and use of energy conservation techniques in construction
and operation of residential and commercial buildings.
The June statement also announced major reorganizations of Fed-
eral agencies dealing with energy. The President established a new
Energy Policy Office within the Executive Office of the President, to
be responsible for the formulation and coordination of energy policies
at the Presidential level. The President also proposed to the Congress
that a new Department of Energy and Natural Resources (DENR)
be created. The new department would retain all of the present ac-
tivities of the Department of the Interior, except the Office of Coal
Research and certain other energy research and development pro-
grams. DENR would also include the Forest Service and some water
resources activities of the Soil Conservation Service which are now
in the Department of Agriculture; the planning and funding of the
civil functions of the Army Corps of Engineers; the National Oceanic
and Atmospheric Administration of the Department of Commerce;
the uranium and thorium assessment functions of the Atomic Energy
Commission; the functions of the interagency Water Resources
Council; and gas pipeline safety functions of the Department of
Transportation.
The President also proposed a new independent agency which
would bring together and direct research and development programs
on all forms of energy. The proposed Energy Research and Develop-
ment Administration (ERDA) would include research and develop-
ment programs in atomic energy from the Atomic Energy Commis-
sion and in fossil fuels from the Department of the Interior.
A major new energy research and development program was
announced which would devote $10 billion to energy R&D over
the next 5 years beginning in fiscal 1975. High-priority projects, par-
ticularly on coal, would receive an extra $100 million in fiscal 1974.
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Events of the past year have given ample warning that the era of
cheap and plentiful energy is at an end. The years ahead will see
much greater national emphasis on the development of new energy
sources and on more efficient utilization of traditional sources. The
Federal response to the energy challenge has recognized the need to
protect the environment. The new needs for energy will pose new
problems for the environment, but the problems can be resolved. The
long-term program to close the energy gap includes specific provisions
to encourage energy conservation and ensure that energy will be sup-
plied in ways which are environmentally sound.
Land Use
In the year and one-half since the Council published its contract
study, The Quiet Revolution in Land Use Control,215 the Nation has
seen rapid change in public attitudes and government response to the
problems of land use. Some initiatives, particularly those related to
reform of the property tax, were defeated at the polls or in state legis-
latures. But other land use proposals were enacted into law and exist-
ing laws were strengthened. A number of communities adopted or are
considering strict limits on further growth and land development.
The new land use control laws discussed in our past two Annual Re-
ports—in Delaware, Florida, Maine, New York, and Vermont—are
being actively implemented. Despite some legislative failures and con-
tinuing debate, land use reform is moving ahead and a new land use
ethic is emerging.
Proposed Federal Legislation
In its second session, the 92d Congress enacted the Coastal Zone
Management Act of 1972. This Act encourages coastal states to regu-
late coastal land and water uses by authorizing grants to states and
requiring that Federal actions in coastal areas be consistent with
approved state programs.210 Proposed Federal land use legislation,
which would encourage states to protect critical areas and control
large-scale development and growth, is still before the Congress.
Passed by the Senate during the last session of the 92d Congress, the
legislation was resubmitted this year by the President. He reiterated
his strong recommendation for sanctions—loss of Federal highway,
airport, and recreation funds—against states failing to develop ac-
ceptable land use control programs.217
The Administration also resubmitted to the Congress other land
use legislation, including proposals to establish a management policy
and authority for the 450 million acres of Federal "public domain"
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GUIDELINES AND REPORTS 1167
land, to require state regulation of powerplant siting, and to establish
environmental controls on surface and underground mining, includ-
ing stringent performance standards for reclamation. The President
also resubmitted the Environmental Protection Tax Act. By reform-
ing the tax code, it would discourage development of coastal wetlands,
encourage the rehabilitation of historic buildings and eliminate cur-
rent incentives for demolishing old buildings, and encourage chari-
table donation of land for conservation purposes.218
This year's floods have underlined another land use problem re-
quiring strong Federal action—unwise development in flood plains.
Proper controls on such development can save lives and property
and preserve open space. The National Flood Insurance Act of 1968
makes federally subsidized flood insurance available only in com-
munities or areas that restrict future development of flood-prone
lands.219 The Administration recently proposed amendments that
would prohibit Federal Housing Administration and other federally
insured loans for construction in flood-prone areas until the commu-
nity joins the Federal flood insurance program. The bill would also
prohibit federally insured lenders, such as banks and savings and loan
associations, from insuring projects within a flood-prone area not
covered by local zoning and the Federal flood insurance program.220
State and Local Action
As much of the proposed Federal legislation specifies, the primary
responsibility for land use reform lies at the state and local level,
where the basic Constitutional authority exists to regulate land use
and where the major legislative debates are proceeding. These de-
bates underline a growing public concern about the current struc-
ture of laws and institutions to control development. In some sec-
tions of the country there is a mood of antigrowth, an inclination to
shut the door on further community expansion or, at a minimum,
to control the rate and location of new development. In other areas,
public concern has been aroused to protect vital natural areas, such
as wetlands and beaches, scenic mountain areas, and disappearing
farmland. And in still other areas, broader land use laws are being
fashioned to create a more rational process for making conservation
and development decisions that affect the region or state.
Comprehensive State Land Use Laws—Florida has enacted a com-
prehensive land use law to control development and protect critical
areas.221 This law was discussed in last year's Annual Report. The
State has now proposed regulations to implement its Environmental
Land and Water Management Act which, if approved by the legis-
lature, will identify the type and scope of critical areas and develop-
ments subject to State control.
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This past spring, Oregon enacted broad land use legislation em-
powering the State government to control major developments within
the State.222 The act establishes a Department of Land Conservation
and Development. A commission within the Department is to develop
statewide planning goals to govern the preparation of comprehen-
sive plans by all local governments. The commission will review per-
mit applications for developments of "Statewide significance" and
will recommend to the legislature the protection of certain critical
areas of environmental concern. Developments of "Statewide signifi-
cance" are defined as public transportation facilities, sewage, water
supply and solid waste facilities, energy facilities, and public schools.
In establishing statewide planning goals and guidelines, the State
commission is to give priority to the protection of critical areas such
as flood plains and shorelands, the control of development around
highway interchanges, and the protection of prime agricultural land.
Thereafter, all zoning and subdivision ordinances and comprehen-
sive plans of local government and other State agencies must con-
form to the commission's goals and guidelines.
The new law remains to be implemented, but it is evident that
Oregon, which has been most vocal in its concerns about the hazards
of excessive growth, is an important State to watch.
In at least one State—Maryland—a major controversy erupted
over attempts to pass State land use legislation to protect critical
areas. Uniformly opposed by the counties and many other local
governments, the proposal was defeated in the last session of the leg-
islature. However, the Governor plans to introduce similar legislation
again in the next session and in the meantime will make full use of
existing State land use authorities.
Protection of Coastal Zones and Other Critical Areas—Unlike
Florida, whose comprehensive land use legislation covers both inland
and coastal areas, California, New Jersey, and several other states
acted to protect the coastal zone as a particularly critical area.
Efforts to secure legislative action on coastal zone legislation in
California were unsuccessful over a number of years. After a major
public campaign, the issue was finally placed as an initiative on die
1972 ballot; it passed by over 55 percent.223 As a consequence, for
virtually all development now taking place between the 3-mile sea-
ward limit and 1,000 yards inland of mean high tide, a permit must
be obtained from one of the State regional commissions established
by the new law. Members have been named to the commissions,
and efforts are underway to identify the boundaries and establish
the procedures for carrying out the interim permit control program.
The interim procedures will terminate in 1975, when a master plan
for coastal development is to be presented for legislative approval
by the State commission.
A legislative initiative in New Jersey for coastal zone regulation
first failed and then was revived this year. Although the State has
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1169
California recently enacted its Coastal Zone Conservation Act to regulate land
use along the ocean.
authority to regulate development in its coastal wetlands,224 major
development pressures along a wide area of the coast indicated the
need for broader State controls than those applicable to wetlands
alone. Proposed legislation supported by the Governor would have
provided State veto power over any construction or expansion of
"major facilities," residential or industrial, within the State's south-
ern coastal zone, an area covering nearly one-seventh of that small
but heavily urbanized State. Although passed by the New Jersey As-
sembly, the bill was defeated in the Senate after extensive opposition
by the oil industry, labor, and local government interests. The Senate
later reversed itself, approving in a special session a strong compro-
mise bill that was recently approved by the Assembly.225
Across the Bay from New Jersey, local governments in Delaware
began to react to the 1971 Coastal Zone Act,226 which bans all heavy
industry within 2 miles of the shoreline. New Castle County refused
to amend its zoning code to conform to the State Coastal Zone Act.
Whether this betokens wider local resistance to the Act remains to
be seen.
While several other States consider the need for broad coastal
zone legislation, virtually all of the coastal and Great Lakes states
have enacted or are considering specific laws to protect their wet-
lands or shorelines.227 In November 1972, voters in Washington ap-
proved an initiative referendum that provides controls over virtu-
ally all shorelines and adjacent areas 200 yards inland. "Shorelines
of Statewide significance" are subject to special protection, but the
basic strategy of the Shoreline Management Act is local regulation
under State guidelines.228
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LEGAL COMPILATION—SUPPLEMENT n
Mt. Marcy, in the Adirondacks. New York recently adopted a State plan for
this region, which is nearly as large as Vermont.
In New York, the legislature recently passed a coastal wetlands law
which requires a State permit for any alteration of coastal marshes.229
In May 1973, the legislature approved a land use plan, developed
pursuant to a 1971 law,230 to control development of the 3.7 million
acres of private lands within the State's 6-million-acre Adirondack
Park.231 The plan bars major second-home developments, discourages
uniform lot sizes, and promotes cluster development. For 53 percent
of the private lands, development is limited to an average of no more
than one building for every 8.5 acres. In April, the Governor had
vetoed a bill that would have delayed legislative consideration of the
plan, for 1 year, stating that irreversible damage could be done to the
park in the interim because of strong development pressures.
Many states are regulating development of wetlands—areas of critical en-
vironmental concern.
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The massive floods along the Susquehanna last year and in the
Mississippi valley this year point up the costs as well as personal
hazards of uncontrolled development in flood plains. There is in-
creasing recognition that flood damage must be alleviated not just
by construction of dams and levees to lessen the damage but also by
rational control over development in flood plains to prevent hazards.
Last year the New Jersey Legislature took such preventive action by
passing legislation which subjects all "floodways" within the State to
direct State regulation.232 It calls for the State to establish guidelines
for local regulation in the broader "flood hazard" areas. The State
is now in the process of delineating the boundaries of its floodways
and flood hazard areas.
HUD reports that more than 2,200 U.S. communities have agreed
to adopt controls on flood plain development under the Federal
flood insurance program referred to earlier in this section. As of May,
more than 230,000 flood insurance policies are in effect, with a total
value of about $4 billion.
The Recreational Land Sales Boom—Few Americans have been
aware until recently of the massive recreational land sales boom
underway in many parts of the country. From the Poconos of Penn-
sylvania and the Massanutten Mountains of Virginia to the rolling
ranch land of southern Arizona, hundreds of thousands of acres of
hitherto rural, scenic countryside are being cut up into suburban-like
subdivisions. The scale and speed of recreational land sales have over-
whelmed many local governments and, unless adequate controls are
enacted, threaten to destroy the values that attract people in the
first place. Because of the importance of this issue, the Council
recently initiated a major study of recreational land sales and second
homes. The study will include an assessment of the market forces,
economics, environmental impacts, and institutional responses to this
issue.
The first major public reaction to the recreational land boom oc-
curred in Vermont. The International Paper Company's proposed
20,000-acre second home development in the southern part of the
State set off a public outcry that ultimately resulted in the compre-
hensive land use law of 1970.233 But few other states have moved so
aggressively in response to recreational land sales pressures. Both
California and New York now have statutes requiring full disclosure
by developers of second home lots.234 Efforts to enact such legislation
in Pennsylvania have been unsuccessful. Implementation of the
Michigan Land Sales Act235 has been somewhat softened as pressures
mount to delay the effective date of the Act.
More than 5,000 filings of developments designed to be sold or
leased in interstate commerce had been registered with HUD's Office
of Interstate Land Sales Registration by May. Under the Interstate
Land Sales Full Disclosures Act, the developer of a registered sub-
division must give the potential buyer an approved property report—
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designed to provide the buyer with important information on the
developer, development, and purchaser rights and obligations—
prior to signing any sales agreement.236 The Federal statute, limited
to disclosure of information rather than enforcement of standards,
seeks to increase consumer awareness and protection. More than 200
developments have been suspended from future sales for violation
of Federal law or regulation, and a number of indictments of devel-
opers and salesmen have been secured.
Limits OP Growth—While most significant land use reform has been
at the state level, local communities are taking the lead in questioning
how much growth is too much. Characterized as the "new mood" by
the Task Force Report on The Use of Land: A Citizens' Policy Guide
to Urban Growth,23'1 public attitudes on development are showing a
remarkable shift away from the historical American boosterism and
toward a skepticism about the costs and benefits of unlimited growth.
Local sewer moratoriums, bans on building permits, and attempts to
limit population are cropping up throughout the country.
From the San Francisco Bay area and Boulder east to Fairfax and
Fauquier Counties in Virginia and Ramapo, N.Y., and south to sev-
eral cities in Florida, citizens and local officials are seriously ponder-
ing the mixed blessings of unlimited population growth and land
development. In several cases, action has been taken to limit such
growth. The primary motivations for controls appear to be a desire
to preserve environmental amenities and avoid unwanted additional
financial burdens on the tax base.
Voters in Boulder in 1971 narrowly defeated a charter amendment
that would have set a maximum limit on the city's population. How-
ever, they did approve a resolution directing the city to take all neces-
sary steps to hold growth in Boulder Valley to a rate substantially
below that experienced in the 1960's. The city council was directed to
conduct a study aimed at recommending an optimum population.
With a grant from the Department of Housing and Urban Develop-
ment, Boulder's study will be complete late this year. Meanwhile, the
council has initiated a number of measures to slow the rate of
growth.238
In Florida, Boca Raton citizens approved a 1972 referendum lim-
iting the number of housing units within the city limits to 40,000. This
would restrict to about 105,000 a population which, unrestricted, had
beer projected to exceed 200,000.239 The population now totals about
35,000 persons in some 14,000 dwelling units.
To the south, along Florida's booming east coast, Hollywood has
enacted an ordinance limiting the number of housing units per
acre.240 Nearby Hallandale, which has imposed a building morato-
rium, is considering an ordinance that would require developers to
perform comprehensive impact analyses on certain types of proposed
developments.241 The Hollywood ordinance is being challenged in
State court by a major land development firm with plans that would
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be severely curtailed by the ordinance. The Boca Raton law has been
challenged in Federal court by a major developer. The legal chal-
lenges include the "taking" issue ot Constitutional law, discussed in
Chapter 4, Law and Land Use Regulation.
In Dade County and Miami, where a boom in population and
development since World War II has been dizzying, selective building
moratoriums have brought some control to growth.242 Palm Beach
and Martin Counties on the Atlantic, Collier County on the Gulf,
and communities in the St. Petersburg-Tampa area have recently
adopted building moratoriums or density limits.243
In suburban Fairfax County, Va., just across the Potomac from
the Nation's capital, the Board of Supervisors has reached tentative
agreement on guidelines prohibiting residential development unless
public facilities—such as schools, sewage systems, and public trans-
portation—are adequate to serve the new residents. The guidelines
would require development to be compatible with environmental
standards and resource limitations.244 The Board is also considering
a land bank fund, which could be the first of its kind in the Nation.
The county would buy up critical land, such as that adjacent to new
rapid transit stations, for eventual resale to developers at such times
and under such conditions as the Board determines.
Just beyond Fairfax County and about 40 miles outside Washing-
ton, D.C., is Fauquier County, a predominantly rural county with
large estates and extensive pasture land. Many of its 26,000 residents,
sparsely scattered over 660 square miles, originally settled there to
avoid crowded hustle and bustle. With rising housing costs in Fairfax
and other nearby counties and with highway improvements, many
Fauquier residents fear that what they settled there to escape will
soon engulf them if they fail to act. At the initiative of a local citizen's
group, the Fauquier supervisors in early 1973 enacted a 6-month
moratorium on subdivision approvals in order to establish a capital
improvement program and amend subdivision and zoning laws. The
supervisors want to review future applications in light of the improve-
ment program, the tax burden, and environmental factors.245
On the other side of the Nation's capital, the supervisors of Mont-
gomery County, Md., have adopted an ordinance similar "to the
guidelines being considered by Fairfax County. It requires adequate
public facilities as a precondition for development. Severe overload-
ing of the regional sewage treatment facility and resultant water
quality problems in the Potomac River have led Montgomery County
to impose a moratorium on sewer hookups to stop new residential
construction. A recent report, however, suggests that some exempted
permits have been granted, causing pollution to increase.246 Over-
taxed sewer and water facilities also prompted Narragansett, R.I., to
declare a moratorium against further multifamily residential develop-
ment.247 Thus, as noted in the section on air quality, pollution control
requirements are beginning to dictate land use controls.
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1174 LEGAL COMPILATION—SUPPLEMENT n
In the San Francisco Bay area, the Association of Bay Area Govern-
ments (ABAC) is conducting a study of the ramifications of pro-
posed guidelines limiting growth in that multicounty region to
5.5 million by 1980.248 Growth control measures adopted by the
cities of Livermore and Pleasanton have been declared unconsti-
tutional by a State trial court.249 A study conducted for Palo Alto
showed that the public service costs of developing the foothills area
comprising half of the city's acreage would far exceed expected tax
revenues from such development. Accordingly, the city has begun
to zone the foothills land for open space—for farming, golf courses,
large lot residences, and research facilities.250
Only a few states have begun to deal with growth control, among
them Oregon and Vermont. More recently, the New York State
Department of Environmental Conservation took a step in this
direction by issuing an "Environmental Plan" to guide future de-
velopment in the State without endangering air, water, or land re-
sources. After hearings and approval by the Governor, the Plan
will serve as a State policy guide for development affecting the
environment.251
Some growth control sentiment undoubtedly reflects a mood of
exclusivity among wealthy residents of areas that are beyond the
reach of those with more modest incomes. Growth controls so
established may unfairly restrict balanced development. But many
citizens are beginning to question sincerely and seriously both the
economic and environmental burdens of unrestrained growth. Recon-
ciling the sometimes conflicting goals of regional development and
environmental protection is a major challenge confronting state
legislatures and local officials. Land use reform is clearly in transition.
The significant state land use actions of the past year must be
viewed in the perspective of the numerous programs established in
prior years—ranging from the Maryland Wetlands Act to the Maine
Site Selection Act and the Massachusetts Zoning Appeals Law. There
is a momentum for reform taking different shapes in different states.
California's new Coastal Zone Conservation Act has stretched the
reform movement beyond the Eastern United States, where it has
been centered. The major remaining need is for strong Federal legis-
lation that will stimulate all states to act, most importantly on land
use controls and on the issues of protecting mined areas and con-
trolling powerplant siting.
Protecting Our Natural Heritage
With vast land resources and an historical settlement pattern that
has left many scenic areas relatively free from development pressures,
the United States has been a world leader in protecting important
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GUIDELINES AND REPORTS 1175
natural values. Our system of national parks, discussed in last year's
Annual Report, is perhaps the best example. The United States
has worked to preserve wildlife as well, particularly species threat-
ened with extinction from man's activities.
Nevertheless, more needs to be done. Existing protection for en-
dangered species is inadequate. Predator controls must be reformed
to avoid harm to nontarget species and to end overkill of predators.
Important potential wilderness areas in the East, where most of our
people live, must be evaluated and preserved. Initiatives for protec-
tion of our natural heritage are reflected in pending legislation and
in new international agreements now awaiting ratification by the
United States and other nations. This section reviews the status of
existing programs and the significance of pending proposals to
protect our natural heritage.
Protection of Wildlife
Many environmental laws help to protect wildlife. Federal and
state laws have established numerous wildlife refuges.252 The National
Environmental Policy Act,253 the Fish and Wildlife Coordination
Act,254 and comparable state laws 255 require advance consideration
of the impact of government or government-sanctioned action on
fish and wildlife. Environmental laws to protect man also benefit
wildlife. For example, the Federal Clean Air Act will protect animals
and wildlife,256 and a major objective of the Federal Water Pollution
Control Act is to protect fish and other wildlife from the effects of
waterborne wastes.257 In recent years, increasing attention has been
devoted to protecting species threatened with extinction because of
man's activities, particularly sport hunting, commercial hunting, and
trading.
Endangered Species—The Endangered Species Preservation Act
of 1966, as amended in 1969,258 authorizes the Secretary of the In-
terior to compile a list of fish and wildlife threatened with extinc-
tion and to prohibit their importation. It also makes it a Federal
crime to buy or sell animals taken in violation of any state or foreign
law. The Secretary is directed to encourage conservation and growth
of native endangered species.
Legislation to remedy serious defects in the current law was pro-
posed by the President in 1972 and resubmitted with strengthening
modifications this year.259 The proposed new law would make a Fed-
eral crime the taking of federally designated endangered species by
any person under U.S. jurisdiction. In addition, Federal land leases
or use permits and Federal hunting and fishing permits could be
suspended for violations. The Act would protect species not immedi-
ately threatened with extinction but which can be expected to be
threatened in the future if protective measures are not taken
promptly. The bill would also allow listing of a species that is not
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LEGAL COMPILATION—SUPPLEMENT n
The American Bald Eagle is an endangered species.
threatened worldwide but is threatened in a significant portion of
its range.
Current law does not protect endangered plant species.260 How-
ever, the Smithsonian Institution is planning a study in cooperation
with other Federal agencies of the need and means for such protec-
tion.261
In March, an important step was taken toward international pro-
tection of endangered species by the development of the Convention
on International Trade in Endangered Wild Flora and Fauna.262
The Convention, now awaiting ratification, is discussed in Chapter 7,
International Action to Protect the Environment. Legislation is now
being prepared to make U.S. laws conform fully with the Conven-
tion. Underscoring the magnitude of the endangered species prob-
lem,'the largest U.S. enforcement action under the existing law oc-
curred while the delegates from approximately 90 nations were in
Washington to complete the Convention.
Marine Mammals—The Marine Mammal Protection Act of 1972 263
gives special domestic protection to marine mammals, including
whales. The Act prohibits the taking or importation of such mam-
mals and their products by U.S. citizens. The Secretary of Com-
merce or Interior, depending on the species, can waive this prohibition
only if he receives scientific evidence that the waiver, and the regu-
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GUIDELINES AND REPORTS 1177
lations on takings that he must develop after a formal hearing, will
not be to the disadvantage of the species or stock to be taken. The
emphasis of the Act is on the interests of the species, reflecting a
new philosophy in wildlife protection which contrasts with the tra-
ditional concern for an optimum harvestable commercial yield.
Predator Control—The control of livestock predators, such as the
coyotes commonly found in the West, is an important concern in
livestock management. However, the large-scale use of poisons to
control predators threatens beneficial animals and entire ecosystems.
A 1971 report to the Council and the Department of the Interior
indicated that necessary predator control can be achieved without
poison.264 On the basis of the report, the President issued an Execu-
tive order banning the use of poisons against predators on Federal
lands.265 EPA subsequently terminated registration for public and
private use of three common poisons to control predators—1080,
cyanide, and strychnine.266 Interior has indicated that experience on
Federal lands since the Executive order demonstrates that predator
control can be effective without the use of poisons.267
Current Federal authority for predator control, based on a 1931
law,268 reflects an outmoded philosophy that the Federal Govern-
ment should participate directly in controlling predators. Federal
law also contains no incentives to encourage states to develop en-
vironmentally acceptable control programs. Accordingly, the Admin-
istration has resubmitted to the Congress a bill to encourage state
administration of predator control efforts.269 In order to encourage
state programs consistent with the Federal policy on poisons, the
bill authorizes financial aid to states meeting Federal standards.
These standards would prohibit the use of chemical toxicants against
predators. The bill would also authorize expanded Federal research
on improved methods for predator control. The Administration's
proposal would further the new approach which seeks to minimize
predator damage while protecting the environment.
Protecting Wilderness and Other Important Lands
Wilderness Areas—By enactment of the Wilderness Act in 1964,270
the Congress established a National Wilderness Preservation System
of federally owned lands to be preserved in their natural condition.
Protected from alteration by man, national wilderness areas exist so
that present and future generations, as temporary visitors, may enjoy
their solitude and natural beauty.
The 1964 Act designated as wilderness 54 areas covering about 9.1
million acres of land, most of which are in the West. The Act also
established a procedure for designating additional areas. It requires
that specific types of potential wilderness areas—primitive areas and
roadless lands within parks and wildlife areas—be evaluated by the
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LEGAL COMPILATION—SUPPLEMENT n
More Eastern wilderness areas, like Linville Gorge in North Carolina, would
be designated under legislation proposed by the President.
Departments of Agriculture and Interior and that recommendations
concerning wilderness designation be made by the President. An addi-
tional 37 areas have been added to the wilderness system since 1964
under this procedure, bringing the total acreage in the system to over
11 million.2"
This year could be the most active since 1964 for wilderness areas.
A backlog of 47 areas proposed or endorsed by the Administration is
pending before the Congress, and roughly an equivalent number have
been proposed by individual Congressmen as a result of constituents'
initiatives.272
In recent years, the President and Congressional leaders have called
for special efforts to identify and designate new wilderness areas in
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GUIDELINES AND REPORTS 1179
the East so that wilderness accessible to the Nation's large eastern
population will be preserved. The Administration has proposed the
Eastern Wilderness Amendments of 1973.273 This bill would permit
designation of many new wilderness areas located in National Forests
east of the 100th meridian. The Forest Service of the Department of
Agriculture has already identified 53 areas in the East which merit
study for preservation as wilderness.
These areas may not qualify under the current definition of wilder-
ness as "land retaining its primeval character and influence without
permanent improvements or human habitation—and which gener-
ally appears to have been affected primarily by nature, with the im-
print of man's work substantially unnoticeable." 274 Hence the pro-
posed legislation would authorize wilderness designations in eastern
national forest lands "where man and his own works have once sig-
nificantly affected the landscape" but where "the imprint of man's
work is substantially erased" and "which has generally reverted to a
natural appearance." 275
The legislation would prohibit mining, mineral leasing, and graz-
ing in the new eastern wilderness areas, restrictions that do not apply
to wilderness areas under current law. Pending Congressional action,
the Forest Service will protect identified potential wilderness areas
from timbering, mining, and other development under other legal
authorities.
Another bill, initiated within the Congress,270 would designate 28
new wilderness areas in National Forests in the East, Midwest, and
South. This bill is based on the premise that areas in the East can be
designated under current law.
Differences in interpretation of the current law should not obscure
the widespread support for establishing Eastern wilderness areas. The
public has an opportunity to play a significant role in wilderness
designation by participating in agency hearings on study areas and by
making its views known to elected officials.
Wild and Scenic Rivers—Four years after the Congress established
the Wilderness Preservation System, it enacted legislation recognizing
the importance of preserving in a natural condition scenic, free-
flowing rivers. The 1968 Wild and Scenic Rivers Act277 designated
all or part of eight rivers and adjacent lands as the nucleus of the
National Wild and Scenic Rivers System. Seven have not yet been
fully acquired. Legislation proposed this year by the President would
increase authorized funding from $17 million to $37.6 million in order
to complete the purchase of these areas. The new legislation would
also extend for another 5 years the current statutory moratorium on
Federal Power Commission licenses and Federal agency assistance for
dams and other water resource projects that might impair rivers being
considered for inclusion in the Wild and Scenic Rivers System.278
In 1970, the President terminated the Cross-Florida Barge Canal
because that project threatened to destroy the unique scenic beauty
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1180 LEGAL COMPILATION—SUPPLEMENT n
and wildlife habitat found along the Oklawaha River. He asked the
Council on Environmental Quality and the Secretary of the Army
to recommend measures to ensure future protection of the affected
area. The Department of Agriculture now plans to purchase, for
inclusion in the Ocala National Forest, the land formerly designated
for the canal project. In addition, the two agencies recommended
to the Congress that the Oklawaha River be designated for study as
a possible wild and scenic river.279
As discussed in our last two Annual Reports, more than 20 states
have some form of wild rivers preservation system.280 In December
1972, California adopted a new law, modeled substantially after the
Federal law, establishing a state system and specifying five northern
California rivers as the first components.281
Increasing numbers of citizens are seeking to enjoy the amenities
of nature in wild areas. More people with more leisure time want to
get away from it all in a variety of ways—an escape to natural sur-
roundings is a major interest. Expansion of protected wild lands and
rivers is an imperative for future generations.
Areas Of Special Concern—Certain unique wild areas, ranging
from the sloughs and tree islands of Florida's Big Cypress Swamp to
the vast tundra of western Alaska, become areas of special concern to
the Nation when man's development threatens harm. Sometimes
development must be prohibited, sometimes strictly controlled. In
any case, the environmental threats must be carefully assessed, com-
peting developmental interests weighed, and protective measures
imposed.
Two examples of Government response—the Trans-Alaska Pipe-
line and the Big Cypress Swamp—are discussed below. One involves
the challenge of reconciling energy needs with environmental protec-
tion through Federal permit issuance, subject to both legislative and
judicial constraints. The other involves a Government decision to
purchase land in order to protect an area from development. A major
example of private intitiative to preserve a special area—the Great
Dismal Swamp—is also discussed.
Alaska Pipeline—Since 1970 a consortium of oil companies has
sought Federal permission to build a pipeline across public lands in
Alaska. It would carry oil discovered in 1968 from Prudhoe Bay on
Alaska's North Slope some 789 miles to the port of Valdez on Alaska's
southern Pacific coast. The oil would be shipped by ocean tanker to
the West Coast.
In 1970, the Wilderness Society, the Environmental Defense Fund,
and other environmental groups obtained a court injunction against
issuance of a Federal permit for construction of the pipeline right-of-
way, including a road.282 The court accepted their contention that an
environmental impact statement on the project was required by
NEPA283 before such preliminary work could be approved. The
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GUIDELINES AND REPORTS
1181
* -'3k-'*- ' • ' ^^SsiasS
Acquisition of Big Cypress Swamp is needed to protect Everglades National
Park.
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1182 LEGAL COMPILATION—SUPPLEMENT n
environmentalists were concerned that the hot pipeline could perma-
nently damage the fragile tundra and would disrupt wildlife migra-
tion. They also recognized the dangers of oil spills—from the pipeline
in case of earthquake and from the tankers in case of accident.
An impact statement was completed in 1972 and the Secretary of
the Interior announced his decision to grant the right-of-way permit.
However, a District Court order dissolving the 1970 injunction was
reversed by a Federal Court of Appeals because of an issue previously
obscured by the environmental question—the 1920 Mineral Leasing
Act prohibition against granting rights-of-way exceeding the width
of the pipe (4 feet in this case) and 25 feet on either side. The pro-
posed permit would have allowed the substantial additional width
requested by the consortium.284
By declining to review the Court of Appeals decision, the Supreme
Court forced the controversial pipeline question on the Congress,285
where legislation reflecting three main points of view was considered.
One proposal was that the necessary right-of-way be authorized but
that any environmental issues be resolved under existing NEPA re-
quirements.286 A second point of view was both to authorize the
right-of-way and to foreclose any further environmental considera-
tion under NEPA.287 A third position favored a delay while the feasi-
bility of an alternative pipeline route across Canada to the U.S. Mid-
west could be more carefully explored.288
In mid-July, a bill authorizing the necessary right-of-way was con-
sidered by the Senate. An amendment requiring exploration of the
Canadian alternative was defeated, but a second amendment deter-
mining that the 1972 impact statement and other Federal actions
satisfied the requirements of NEPA was passed. On July 17, shortly
before this report went to press, the Senate passed the bill.
The Alaska pipeline case not only illustrates the role that courts
play in defining and requiring compliance with environmental laws,
but it illustrates the potential role of the legislative branch in major
public policy controversies that prior laws have not explicitly ad-
dressed. Reliance by the Court of Appeals on the Mineral Leasing
Act of 1920 289 and refusal by the Supreme Court to review that deci-
sion set the stage for what environmental law commentators have
called a "legislative remand." 29° Their decisions avoided settling the
controversy by judicial determination resting, in fact or in appear-
ance, on legal "technicalities"—an approach that might give rise to
claims of "policymaking" by the judiciary. Instead, the decisions of
the courts, although technically amounting to a straightforward in-
terpretation of a law that the Congress enacted long ago, referred the
final decision on the pipeline to the legislative branch.
Big Cypress—In marked contrast to the Alaska pipeline case, the
Big Cypress question 291 does not require resolution of competing na-
tional interests in development and environmental protection. There
is clearly a national interest in protecting Big Cypress, but the Gov-
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GUIDELINES AND REPORTS 1183
ernment must act to prevent local developmental pressures, which
can be satisfied elsewhere, from jeopardizing unique resources im-
portant to the Nation.
Everglades National Park, established in 1947, is the Nation's
third largest park. Its ecosystem—the Nation's only significant sub-
tropical marshland—depends on fresh water, and considerably more
than one-half of the Park's 1,400,533 acres depends upon Big Cypress
for its supply of fresh water.
The land in the Big Cypress-Everglades ecosystem has an almost
imperceptible slope, which results in very slow drainage, extending
the wet months well beyond the period of rainfall. A water level
change of only a few inches can affect thousands of acres and seri-
ously disrupt the food chain on which larger animals depend.
The Big Cypress watershed is a natural water storage area, sup-
plementing the manmade storage areas that are required for south
Florida's water supply. Big Cypress itself is also a valuable resource.
It is a wilderness of sloughs, tree islands, and bay and cypress heads.
Nearly all the wildlife species native to semitropical Florida are
found within the watershed. Big Cypress provides important feeding,
nesting, and wintering areas as well as a resting place for migrating
birds. It contains important habitat for at least nine species of wild-
life determined by the Secretary of the Interior to be threatened with
extinction. To species that have wider ranges, Big Cypress, along
with the adjacent Everglades National Park, serves as a stronghold
or retreat. Large portions of Big Cypress have so far experienced
little manmade disturbances.
To preserve Big Cypress from encroaching development pressures,
the President has proposed the creation of the Big Cypress National
Fresh Water Reserve. It would contain up to 52,000 acres of private
land and approximately 48,000 acres of publicly owned land.292
The proposed legislation authorizes appropriations of up to $156
million for Federal land acquisition. The Governor of Florida has
indicated that he will recommend commitment of $40 million in
State funds to purchase environmentally sensitive areas in the pro-
posed reserve in cooperation with the Federal program.293
Great Dismal Swamp—Straddling the Virginia-North Carolina
border just below Chesapeake Bay is a unique area being preserved
at private initiative. The Great Dismal Swamp,294 rich in wildlife
and historic lore, is the northernmost of the chain of swamps along the
East Coast that ends with the Everglades-Big Cypress area. This
gigantic, 100,000-acre peat bog, whose water is colored brownish-
purple by peat stain and tannic acid from decaying trees, is owned
by 11 private parties.
The major landowner, Union Camp Corporation, recently deeded
50,000 acres of the Swamp to the Nature Conservancy, a private, non-
profit foundation dedicated to preserving environmentally critical
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1184 LEGAL COMPILATION—SUPPLEMENT n
areas.295 The Conservancy, in turn, transferred the land to the Fed-
eral Government for official protection as a wildlife preserve. Legis-
lation recently passed by the House would make it a National Wildlife
Refuge, and the Interior Department is developing recommenda-
tions for the future.296
One of the earliest colonial settlers, apparently reflecting the gen-
eral opinion of his contemporaries, viewed Dismal Swamp as a "vast
body of dirt and nastiness." 297 George Washington, who once owned
roughly the same area that Union Camp donated, considered it a
"glorious paradise." After his plan to drain it for a corn plantation
failed, farmers and loggers canalled and cleared the land for over
100 years, reducing the total original acreage of 250,000 to about
100,000. Environmental groups have worked for over 2 decades to
preserve the area, which in modern times has been threatened with
development proposals ranging from a jetport to a racetrack. Union
Camp's action represented a major victory for conservationists.
Parks—As the chapter on National Parks indicated last year, a major
issue facing both national and state park systems today is the rela-
tive weight to be given to recreational development—accommoda-
tions, roads, and related facilities—as opposed to preservation of rela-
tively unaltered natural tranquility.298 The challenge is to avoid mak-
ing parks into imitations of urban civilization, with pollution, con-
gestion, and other problems. Yet parks should not be so inaccessible
that they become the preserve of a wilderness elite.
One way to alleviate some of the conflicting pressures on parks is
to provide more of them near urban centers, where people can enjoy
nature even on a short outing. Although such new parks will not
eliminate traffic and demand for development in the more remote
parks, they are vital in their own right. Urban parks provide the
only nature-based recreational opportunity for many low-income
citizens. Even affluent urban residents have limited time to travel to
distant parks.
Much of the current Federal program for new parks is directed
at urban areas. The President's proposals for the 23,000-acre Gate-
way National Recreation Area near New York City and for the
24,000-acre Golden Gate National Recreation Area near San Fran-
cisco were enacted into law in 1972.299 Once necessary local approvals
are obtained, these areas will make scenic natural amenities avail-
able to millions of people in two of the Nation's largest urban areas.
The Legacy of Parks program, initiated by the President in 1971,
is continuing to make more open space and recreational land avail-
able to people near their homes. A major thrust of the program is
to transfer underutilized Federal properties to state and local
governments for parks. As of July, over 54,000 acres of Federal lands,
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GUIDELINES AND REPORTS 1185
with an estimated fair market value of more than $147 million, has
been converted to parks in the 50 states, the District of Columbia,
and Puerto Rico.300
Another initiative for more urban parks is the Administration's
proposal to revise the statutory formula for allocating Federal Land
and Water Conservation Fund grants to help states and localities
acquire park and recreational lands.301 The current formula channels
a disproportionately small percentage of these funds to states with
large urban populations. Figure 2 shows that despite a reduction in
new fiscal year 1974 budget authority, there is a trend of increasing
outlays from the Fund, both for grants to states and for direct Federal
acquisition.
Programs to preserve our natural heritage are well established
in our laws and institutions. As we noted in last year's Report, wilder-
ness backpacking and similar activities are increasingly popular.
This growing appreciation of natural amenities, a part of environ-
mental awareness and concern, offers a. base of public support for
new and strengthened programs needed to keep abreast of rising
expectations of the population.
Figure 2
Land and Water Conservation
Fund Outlays for Fiscal Years 1965-1972
and Estimated Fiscal Years 1973 and 1974
Millions of dollars
250
200
150
•» <**
100
1966 1967 1968 1969 1970 1971 1972 1973 1974
Source: Office of Management and Budget, Budget Highlights-Fiscal Year 1974
(Washington: 1973), p. 51
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1186 LEGAL COMPILATION—SUPPLEMENT n
NEPA Developments
The National Environmental Policy Act establishes environmental
protection and restoration as a national policy and goal. It requires
Federal agencies to interpret their traditional mandates in the light
of these environmental objectives, and it establishes an action-forcing
mechanism in section 102(2) (C) under which agencies must prepare
and circulate for comment analyses of the environmental impacts of
their actions.302
NEPA and its requirement that Federal agencies prepare detailed
statements on "major Federal actions significantly affecting the qual-
ity of the human environment" impose broad demands upon the Fed-
eral establishment. Agency impact statements must fully disclose the
impact of proposals and consider reasonable alternatives. And agen-
cies must integrate NEPA's goals and objectives into traditional mis-
sions and patterns of decisionmaking.
Revised CEQ Guidelines for Impact Statements
The most important procedural development under NEPA in the
past year was CEQ's proposed revision of its guidelines to agencies for
implementing section 102(2) (G) of the Act.303 The Council's current
guidelines, published in April 1971,304 translate section 102's broad
language into more concrete terms that afford a degree of certainty
without relieving agencies of the many critical judgments that they
must make. The revised version incorporates much of NEPA's legal
evolution in the courts over the past 2 years and also reflects experi-
ence gained and lessons learned since 1971.
The proposed new guidelines emphasize that environmental con-
siderations should be taken into account from the beginning of the
decisionmaking process. Initial environmental studies, for example,
should be undertaken concurrently with initial technical and eco-
nomic studies. Too often agencies have written statements to justify
decisions long since made. If they had begun their environmental
assessments at the conception of their projects, the environmental
information could have been integrated into, rather than tacked onto,
the decisionmaking process, and in many cases delays could have been
avoided. Under the proposed guidelines, draft impact statements are
to be prepared and circulated at the earliest possible stage in the
decisionmaking process.
This concern for early consideration of environmental factors com-
plements a new emphasis in the proposed guidelines on substantive
compliance with the policies set forth in sections 101 and 102(1) of
NEPA. The new guidelines require agencies to evaluate the results of
their environmental analyses, together with economic, technical, and
other factors, and to use all practical means to minimize or avoid
undesirable environmental consequences.305
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GUIDELINES AND REPORTS 1187
The proposed guidelines encourage the use of program or generic
impact statements to cover a number of related individual actions
when comprehensive analysis is more useful and efficient than separate
analyses of several related projects.306 If sufficiently comprehensive
and informative, such program statements eliminate or reduce the
need for further individual project statements. Program statements
cut redundancy and unnecessary paperwork and make the environ-
mental analysis more meaningful. Of course, a separate statement
would be required for a future action that has significant impacts not
adequately covered in a program statement.
The revised guidelines explicitly require agencies to discuss the
secondary environmental impacts of their actions, particularly on
population concentration and growth.307 Many Federal actions—such
as highway and sewer construction and water resource development—
attract people to previously unpopulated areas and indirectly cause
pollution, congestion, and land development that probably would not
have existed otherwise.
In the past, agencies have generally given only limited attention to
secondary impacts. Agencies often neglected secondary effects analysis
because they felt that they had neither responsibility for nor the power
to control such effects. Moreover, it is often difficult to predict the
extent of development caused by a project and the environmental
effects stemming from this development.
In order to standardize the basic population and growth projections
used by Federal agencies in secondary impacts analysis, the Council's
guidelines suggest using OBERS projections developed for the Water
Resources Council.308 These projections are discussed in Chapter 6,
Status and Trends. In addition, CEQ, in cooperation with HUD and
EPA, has initiated a major study of the secondary effects of highways
and sewers. A primary objective of this study is to develop better
methods for Federal agencies to predict secondary environmental
impacts.
The new guidelines specifically identify energy conservation as a
factor for agencies to consider in determining the potential environ-
mental significance of their actions.309 It is especially important to
evaluate energy use and possibilities for energy conservation in com-
paring alternatives to a proposed action. It is often possible to adopt
an energy-conserving modification of a plan or design without sacri-
ficing the project objective.
The status of public participation in the NEPA process is signifi-
cantly augmented in the new guidelines. Agencies must publish revi-
sions of their NEPA procedures in the Federal Register and invite
public comment.310 They must devise an "early warning" system for
informing the public of decisions to prepare a draft environmental
impact statement and encourage the public to provide information
and views for use in preparing the statement.311 Studies underlying
the preparation of an environmental impact statement should be
clearly identified in the statement, and agencies should indicate how
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1188 LEGAL COMPILATION—SUPPLEMENT n
these studies may be obtained.312 Agencies are encouraged to facilitate
public comment by automatically sending copies of draft statements
to interested organizations and individuals.313 Agencies are expected
to send copies of final statements to all agencies and private organiza-
tions that made substantive comments on the draft statement and
to individuals who requested a copy of the final when commenting
on the draft.
Unfortunately, some agencies are still slow to implement fully the
citizen involvement requirements of the NEPA process. Too often
the burden rests with the public to find out what is going on rather
than with the agency to keep the public informed. CEQ's revised
guidelines seek to shift the burden, suggesting that agencies invite
public involvement at the earliest possible stages of planning and
decisionmaking.
Agencies are also encouraged to experiment with innovative meth-
ods of public participation beyond the standard format of public
hearings. These may range from informal, unstructured contacts
with community and environmental leaders to more formal panels
of advisors on NEPA issues or clearinghouses for citizen inputs into
the impact statement commenting process.
A Council memorandum of May 15, 1973, to Federal agencies sup-
plements the proposed guidelines on public participation.314 It ad-
dresses the tendency of some agencies to rely exclusively on the serv-
ices of the National Technical Information Service of the Depart-
ment of Commerce to meet public requests for copies of environmen-
tal impact statements. NTIS is frequently unable to provide copies
to citizens in time to meet comment-filing deadlines, and NTIS prices
for long statements are often very high. CEQ has suggested that
agencies initially print enough copies of statements to cover antici-
pated demand from the public.
What we have seen so far is citizens and agencies facing off at
opposite ends of the courtroom on controversial projects. In the
future, there must be more citizen involvement—citizens and agencies
working together around the conference table. A number of agency
NEPA procedures encourage this kind of process. The development
of constructive agency-citizen relationships may be the best hope for
keeping Federal decisionmaking processes open and responsive to the
public interest.
CEQ's proposed new guidelines were published in the Federal
Register in May.315 Comments were carefully evaluated. As this re-
port went to press, the final guidelines were promulgated. They ap-
pear in Appendix D.
Developments in the Courts
During the past year, the courts continued to review agency com-
pliance with NEPA and to resolve important questions about the
interpretation of the Act. Last year's Annual Report described the
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GUIDELINES AND REPORTS 1189
legal issues arising under the Act and the major court decisions that
had resulted.316 NEPA litigation in the past year continued at about
the same pace as in the year before, with the total number of NEPA
lawsuits now exceeding 400.
Most of the judicial developments under NEPA since the Council's
last Report have further clarified procedural issues discussed there
rather than unveiling new problems. However, in several major
decisions the courts began to move into the question of agency re-
sponsibility to comply with NEPA's substantive requirements.
Substantive Review under NEPA—A few early court cases under
NEPA suggest that the Act imposed mainly procedural duties—pri-
marily the requirement to prepare an environmental impact state-
ment. Indeed, most early NEPA cases involved only whether an im-
pact statement was required—e.g., for actions initiated prior to enact-
ment of the Act. These basic procedural questions have now largely
been settled. As a result, litigation is turning to the content of state-
ments and to the agency decisions made after statements are com-
pleted. A recent series of cases affirms the role of the courts in review-
ing the substance of both the agency's impact statement and its pro-
posed action.317
Natural Resources Defense Council v. Grant,313 commonly called
the Chicod Creek case, involves a watershed project by the Soil Con-
servation Service in North Carolina. Plaintiffs originally requested
that an environmental impact statement be prepared, and the court
agreed that the Act required it even though the project began prior
to NEPA.319 SCS prepared an environmental impact statement in
response to the court order, but plaintiffs then argued that the court
should continue its injunction against the project because the state-
ment was inadequate. The court again agreed with the plaintiffs,
noting that "NEPA requires more them full disclosure of environmen-
tal consequences and project alternatives. NEPA requires [their] full
consideration in agency decisionmaking." 32°
The court held that the impact statement was inadequate be-
cause it omitted or inadequately described a number of important
environmental effects of the project and failed to disclose fully or
discuss adequately alternatives to the project. The court concluded
that NEPA's full disclosure requirements had not been met. SCS
is now preparing another environmental impact statement.
In February 1973, a Federal District Court in southern Texas
issued a preliminary injunction concerning two interrelated Corps
of Engineers projects on the Trinity River Basin: the Wallisville
Dam and Trinity River projects. The case, Sierra Club v. Froehlke,321
involved the adequacy of the Corps environmental impact state-
ment on the Wallisville Dam project and resulted in one of the
most comprehensive judicial discussions of NEPA to date. After a
thorough evaluation of the statement, the cost-benefit analysis, and
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1190 LEGAL COMPILATION—SUPPLEMENT n
various agency and public comments, the court concluded that the
statement was inadequate primarily because it was limited to the
Wallisville Dam project and did not adequately disclose its relation-
ship to the much larger Trinity River project. The court enjoined
the Corps from proceeding with the Wallisville Dam until the im-
pact statement for the Trinity River project had been filed or until
the Corps proved that the two projects were really separate. With
respect to the Wallisville impact statement, the court found that it
"lacks the requisite detail" to satisfy the Act's full disclosure require-
ments, that alternatives to the project were "inadequately con-
sidered," and that there was no indication "that genuine efforts have
been made to mitigate any of the major impacts on the environ-
ment." 322
The court also criticized Corps "failure to defer to the expert
' judgment of the federal agencies which have expressed opinions
with respect to significant environmental impacts of the Wallisville
Dam project" and found of "particular significance" the reference
in the Corps cost-benefit analysis to "selected environmental related
'benefits' without also considering and evaluating environmentally
related 'costs.' " 323 The court directed that another statement be
prepared and that "maximum efforts be expended by the Corps to
ensure clarity, thoroughness and objectivity of presentation so that all
factors including environmental amenities are fairly portrayed." 324
The case has been appealed. In a related development, the citizens
of 17 affected counties voted down a bond proposal that would have
provided matching funds to continue with the project.
In addition to these cases, which illustrate judicial concern that
environmental impact statements fully and objectively disclose the
impact of the project, several recent cases have confirmed the role of
courts in reviewing the substance of the agency decision. The most
striking affirmation of this judicial role came in the Gillham Dam
case.325 There the Corps of Engineers had prepared an environmental
impact statement which was subjected to judicial review for adequacy.
Having determined that the statement was adequate, the District
Court concluded that the Corps job was done and that NEPA "falls
short of creating the type of 'substantive' rights" that would allow
judicial review of the agency's decision.326
On appeal, the Court of Appeals for the Eighth Circuit emphati-
cally disagreed that NEPA created only procedural duties:
The language of NEPA, as well as its legislative history, make it
clear that the Act is more than an environmental full disclosure
law. NEPA was intended to effect substantive changes in decision-
making. ... To this end § 101 sets out specific environmental goals
to serve as a set of policies to guide agency action affecting the
environment.327
The Court of Appeals concluded that there is a judicial responsi-
bility to make sure that an agency has not acted "arbitrarily and
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GUIDELINES AND REPORTS 1191
capriciously" in making decisions affected by NEPA. On the basis of
the extensive record prepared in the District Court, the court con-
cluded that this test was met in the case of the Gillham Dam project
and affirmed the lower court's judgment dismissing the suit. The
Eighth Circuit subsequently reaffirmed its ruling as to the substan-
tive thrust of NEPA in the Cache River case.328
Decisions in the District of Columbia Circuit, in the Second Circuit,
and more recently in the Fourth Circuit, the New Hope Dam case,329
have accepted the view that "district courts have an obligation to
review substantive agency decisions on the merits to determine if they
are in accord with NEPA." 33° As in the Gillham Dam case, these
decisions indicate that:
[t]he review is a limited one for the purpose of determining whether
the agency reached its decision after full good faith consideration
of environmental factors made under the standards set forth under
sections 101 and 102 of NEPA; and whether the actual balance of
costs and benefits struck by the agency according to these standards
was arbitrary or clearly gave insufficient weight to environmental
factors.331
These cases clearly indicate that NEPA imposes substantive as
well as procedural duties.
The Supreme Court and SCRAP—This past year the Supreme Court
accepted its first NEPA case, SCRAP v. United States,332 which in-
volved a challenge to an action of the Interstate Commerce Commis-
sion. The ICC allowed a temporary railroad freight rate increase to
take effect without first preparing an environmental impact state-
ment. The precise issue was whether the ICC was required to prepare
an environmental impact statement within the statutory 30-day pe-
riod that it has for making a decision whether to suspend a proposed
rate increase pending a full investigation of the reasonableness of the
increase.
The case began when firms responsible for most of the rail trans-
port in the Nation applied to the ICC for across-the-board increases
on nearly all freight rates. The Commission suspended the proposed
rate increase except for a 2.5 percent surcharge, which it allowed to
go into effect on an emergency basis pending completion of a full
investigation. The plaintiffs in the case, including a group of George
Washington University law students describing themselves as Students
Challenging Regulatory Agency Procedures (SCRAP), filed suit
seeking to enjoin the 2.5 percent increase. They claimed that the
increase operated to discourage the movement of recyclable goods in
commerce by exacerbating a preexisting rate bias against scrap metal
and thus was a major, environmentally significant action requiring
the preparation of an environmental impact statement. The ICC
argued that the temporary increase was not an environmentally sig-
nificant action under NEPA but that in any event, if an environ-
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1192 LEGAL COMPILATION—SUPPLEMENT n
mental impact statement were required, it should be prepared and
filed during the course of the Commission's subsequent full investiga-
tion. According to the ICC, the preparation of a detailed and mean-
ingful environmental impact statement could not be accomplished
during the short decision period at the suspension stage. The Federal
District Court, however, concluding that an environmental impact
statement was required prior to the suspension decision, enjoined
the rate increase's application to recyclable materials pending the
preparation of such a statement.333
The Supreme Court decision,334 issued on June 18 of this year,
did not resolve these NEPA questions. Instead, the Court concluded
that Federal courts have no power to issue injunctions with respect
to railroad rates that the ICC had decided not to suspend. This con-
clusion was based on the Court's interpretation of provisions of the
Interstate Commerce Act, which the Court held had not been
amended by NEPA.
Although resolution of the NEPA issues has thus been post-
poned, the Supreme Court's opinion did resolve another issue that
will be of importance to environmental litigation. That issue in-
volved the question of whether environmental plaintiffs have stand-
ing to sue. In the Mineral King case,335 decided the previous term,
the Court held that a person seeking review of an agency action
claimed to harm the environment must be able to demonstrate spe-
cific injury to himself—or members of the group that he represents—
as a result of the challenged action. In the SCRAP case, the ICC
argued that the plaintiffs did not meet this test because the harm
that they alleged was too vague and unsubstantiated. The plaintiffs
claimed that the general rate increase would inhibit use of recycla-
ble goods instead of virgin materials, causing more litter and other
adverse environmental impacts on parks in the Washington metro-
politan area.
The Supreme Court concluded that the plaintiffs' allegations
were sufficient to support standing. First, unlike Mineral King, which
involved alleged harm to a particular geographical area of the
country, the challenged agency action in the SCRAP case involved
potential harm to "all persons who utilize the scenic resources of
the country, and indeed all who breathe its air." 336 Thus, the claimed
injury was necessarily broader in terms of potentially injured parties
than in the case of Mineral King. The Court found that this differ-
ence in the size of the class of potential claimants between the
SCRAP and Mineral King cases is irrelevant.
[Sjtanding is not to be denied simply because many people suffer
the same injury. . . . To deny standing to persons who are in
fact injured simply because many others are also injured would
mean that the most injurious and widespread Government actions
could be questioned by nobody.337
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GUIDELINES AND REPORTS 1193
The Court also concluded that the fact that the alleged injury was
less direct and perceptible than in Mineral King did not affect the
standing issue. The Court admitted that it was being asked to follow
a more attenuated cause and effect relationship than in Mineral
King, but it concluded that although plaintiffs may be required to
furnish additional evidence to support their claims if challenged, on
the basis of the uncontested pleadings, sufficient standing had been
alleged.
The significance of this decision is that it seems to remove most
barriers to citizen standing to sue on environmental grounds that
might have been thought to remain after Mineral King. Last year's
Annual Report, for example, noted that Mineral King left in doubt
the question of who is entitled to sue when Federal action threatens
the public as a whole, rather than any particular user group. The
answer of the SCRAP decision is that where the public as a whole
is affected, any member of the public may sue. Although a plaintiff
must still show that he is injured, that problem appears to be mainly
one of alleging—and demonstrating, if challenged—that the plaintiff
is among the group that enjoys the threatened environmental values.
If the threat is to a specific geographical area, as in Mineral King, the
plaintiff must show that his enjoyment of that area is threatened.
Where the threat is broader in scope and hence less direct, as, for
example, in the case of Federal action that threatens the biological
integrity of the oceans or the atmospheric conditions on which life
depends, the allegation of injury may be correspondingly broad and
less direct.
Technology Assessment and NEPA—On June 12, the Court of
Appeals for the District of Columbia issued one of the most signifi-
cant NEPA decisions of the past year. In Scientists' Institute for Pub-
lic Information, Inc. v. Atomic Energy Commission^ the court
ruled that the AEG must file an environmental impact statement on
its liquid metal fast breeder nuclear reactor program. The issues
before the court were whether an environmental impact statement
must be prepared for the research and development program as a
whole—rather than for individual facilities as they might be devel-
oped—and if so, at what point during the research and development
stage the statement is required.
In answering the first question in the affirmative, the court relied
extensively on recommendations issued by the Council on May 16,
1972:
In many cases, broad program statements will be appropriate,
assessing . . . the overall impact of a large-scale program or chain
of contemplated projects, or the environmental implication of re-
search activities that have reached a stage of investment or com-
mitment to implementation likely to restrict later alternatives?™
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1194 LEGAL COMPILATION—SUPPLEMENT n
Elaborating on the logic of this recommendation, the court noted
that to "wait until a technology attains the stage of complete commer-
cial feasibility before considering the possible adverse environmental
effects attendant upon ultimate application of the technology will
undoubtedly frustrate meaningful consideration and balancing of
environmental costs against economic and other benefits." Further,
the court noted: "Once there has been, in the terms of NEPA, 'an
irretrievable commitment of resources in the technology development
stage, the balance of environmental costs and economic and other
benefits shifts in favor of ultimate application of the technology." 34°
With regard to when an environmental impact statement should
be prepared on a technology development program, the court noted
that agencies should engage in a balancing process and should state
their reasons if a decision is made not to prepare one right away.
"Statements must be written late enough in the development process
to contain meaningful information, but they must be written early
enough so that whatever information is contained can practically
serve as an input into the decisionmaking process."341 In the present
case the court concluded from the record that the AEC could have no
rational basis for deciding that the time was not yet ripe for drafting
a statement on the overall breeder reactor program.
Administrative Developments
Filing Patterns of Impact Statements—Last year's chapter on
NEPA reported that as of May 31, 1972, the Council had received
draft or final environmental impact statements on 2,933 agency ac-
tions. In the following 12 months, CEQ has received statements on
another 1,207 actions, of which 926 were final statements, or actions
for which the section 102(2) (C) administrative process is now com-
plete. There were still 1,662 draft statements in process.
Looking at environmental impact statement filing in the aggregate
provides a useful overall picture of NEPA compliance, but a closer
look at patterns of filing by year, by agency, and by type of action
indicates an overall trend toward preparing fewer environmental im-
pact statements (see Figures 3 and 4). The number of new state-
ments filed declined from a 1971 high of 1,949 to 1,371 in 1972, and
the decline appears to be continuing into 1973. This trend may be
attributed largely to a decrease in statements by the Department of
Transportation, which more than offset increases by some other agen-
cies. There were 578 fewer statements filed in 1972 than in 1971,
with 619 fewer statements from DOT. While the Departments of
Agriculture and Interior, the AEG, FPG, and several other agencies
collectively filed about 200 more statements in 1972 than in 1971,
the Corps of Engineers, GSA, and other agencies filed about 200
fewer.
242
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GUIDELINES AND REPORTS
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GUIDELINES AND REPORTS 1197
In last year's Report we noted that DOT and Corps projects ac-
counted for 75 percent of all actions for which impact statements
had then been filed. As of June 30, this year, the overall proportion
shifted slightly downward to 71 percent. Comparing annual figures
for the last 3 years demonstrates this downward trend more clearly:
1971
1972
1973 (though June 30)
New
statements
filed
1,949
1,371
597
Percentage of Total
DOT
66
49
40
Corps
16
15
17
The decrease in DOT statements is largely attributable to better
screening of insignificant actions by both the Federal Highway
Administration and the Federal Aviation Administration and to
the former's efforts to consolidate small highway segments into
broader statements. The Corps is nearing the end of a concerted
effort to clear the backlog of pre-NEPA projects.
The Council remains concerned about the uneven performance
of agencies in filing impact statements. As shown above, most state-
ments are still filed by two agencies. Few of the total number of
statements, covering thousands of Federal actions taken each year,
involve neither highways, airports, or Corps projects. Uniform stand-
ards for when agencies will or will not prepare statements would be
impossible to devise in view of the tremendous diversity of agencies
and programs. However, the data reviewed above suggest that the
divergencies among agencies' filing patterns are unjustifiably wide.
The Council will focus on this problem when it reviews agency
revisions of NEPA procedures pursuant to its proposed revised im-
pact statement guidelines.
Quality of Impact Statements—The Council is also concerned
about upgrading the quality of information and analysis presented
in impact statements. In November 1972, the General Accounting
Office reported on its review of the quality of a number of impact
statements prepared by several Federal agencies.342 The GAO's con-
clusions, although based on early NEPA statements, suggest that
there is much room for improvement in both content and quality.
The GAO concluded that the usefulness of the statements that it
reviewed was impaired by several common failings—inadequate dis-
cussion of the identified environmental impacts, inadequate treat-
ment of reviewing agencies' comments on environmental impacts,
and inadequate consideration of alternatives and their environ-
mental impacts.
The adequacy of environmental analyses in 102 statements is a
problem for both the agencies that prepare impact statements and the
agencies and citizens that comment on them. Agencies preparing
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1198 LEGAL COMPILATION—SUPPLEMENT n
statements should set and enforce standards of adequacy. They should
provide their employees the necessary guidance and training for
meeting these standards.
Even with such a commitment, however, there are major obstacles
to be faced. First is the lack of readily available data on some aspects
of the environment and on how some types of activities affect the
environment. Second, agencies must develop the analytical tools to
use the considerable data that are available in the weighing and bal-
ancing processes mandated by NEPA. If, for example, a project will
increase air pollution, effects on ambient air quality and the impact
on achievement of air quality standards should be determined.
Answers to such questions will require more scientific research and
better understanding of relationships between natural systems and
man's activities. Yet the problem of insufficient data and methodology
will persist as long as competition for the research dollar continues.
Competition for funds also affects the ability of agencies to hire addi-
tional staff to work on impact statements.
Despite various obstacles, agencies are devoting more of their re-
sources to NEPA implementation, and the quality of environmental
impact statements is steadily improving. In the northwestern part of
the United States, for example, an informal survey recently conducted
by EPA's Region X produced an estimate that more than 300 man-
years were being devoted to preparing and commenting on impact
statements by Federal, state, and local agencies.
NEPA and Decisionmaking
The true test of NEPA's effectiveness is not merely whether agen-
cies file statements or even whether the statements are models of
environmental analysis. Rather, it is whether the results of environ-
mental analysis are reflected in agency decisions that minimize ad-
verse environmental impacts.
The total effect of NEPA on agency decisions cannot be calculated
precisely. Many Federal programs and projects are no doubt sounder
environmentally because agency management knows that an adequate
impact statement must be prepared and environmental factors given
appropriate weight in decisions. Because of this internalization of
NEPA's objectives, many of the most environmentally undesirable
projects and alternatives are screened out of agency consideration
prior to any formal action under section 102 (2) (C).
At CEQ's annual review of NEPA compliance, agencies reported
several examples of NEPA's influence on programs and projects.
The following is a selection of examples. Two AEG proposals to store
radioactive wastes from nuclear powerplants—the Lyons, Kans., salt
mines and the Savannah River bedrock program—have been shelved
indefinitely while additional studies are being made. The AEC has
also required major changes in the design of cooling systems at the
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GUIDELINES AND REPORTS 1199
Indian Point-2, Peach Bottom, and Brunswick nuclear powerplants.
Several other plants have undergone changes or have been com-
mitted to carry out changes should the result of monitoring and sur-
veillance programs indicate the need.
The Air Force is using the NEPA process to determine the most
environmentally acceptable alternative for disposing of its stores of
herbicide Orange. The Bureau of Land Management has rejected oil
and gas lease applications at Steamboat Lake, Colo., because of
environmental considerations raised in the NEPA process. The Corps
of Engineers reports that 24 projects have been dropped because of
adverse environmental impacts identified through NEPA analyses.
Forty-four other Corps projects have been temporarily or indefinitely
delayed, and 197 projects have been significantly modified. During
impact statement preparation, the Soil Conservation Service modified
its Cypress Creek Watershed project in Alabama and Tennessee from
50 miles of channel excavation to 11 miles of intermittent channeliz-
ing, with the remaining work limited to clearing and snagging.
As a result of impact statement comments, the State of North
Carolina has canceled plans to dredge a channel to a marine re-
source facility supported by the Economic Development Adminis-
tration. The new facility will use a nearby marina instead. Review
of an EDA statement on a hotel complex for the Grand Portage
Indian Reservation turned up problems with the waste water treat-
ment facilities. As a result, EDA agreed to fund a new treatment
plant to serve the town and nearby areas as well as the hotel.
Based on information generated by the NEPA review process, the
Rockland County, N.Y., legislature dropped plans to run two EPA-
funded interceptor sewers through a scenic area. The legislators con-
cluded that the development resulting from sewer construction would
destroy the natural character and rural beauty of the area.
HEW's plans for an incinerator to burn wastes from three Federal
hospitals in Montgomery County, Mel., have been shelved after com-
ments on the draft impact statement showed several preferable
alternative means of disposal. NEPA review of HUD's proposed Pike
Plaza renewal development in Seattle highlighted a number of
problems. While the NEPA process was underway, a local referendum
defeated the project and set up instead an historic district and a
program of small-scale rehabilitation around a rejuvenated central
market.
These are a few examples of specific changes that reflect NEPA's
impact on Federal decisionmaking processes. As discussed above,
the total extent of NEPA's impact is difficult to determine. But it
is clear that NEPA requirements are being built into agency
procedures and NEPA's values are being integrated into agency
programs.
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1200 LEGAL COMPILATION—SUPPLEMENT n
State NEPA's 343
There is a growing movement among the states to adopt
legislation or administrative orders patterned after the National En-
vironmental Policy Act of 1969. At least 15 states and the Common-
wealth of Puerto Rico have already done so.344 More than 20 others
have under consideration requirements like those of NEPA.
Although similar in thrust, state requirements vary in several ways.
Most only require state agencies to prepare impact statements. Others
call for statements from local agencies as well, and a few require
statements on private actions requiring state or local permits. Enforce-
ment and funding of state impact statement processes also vary
widely. Although most states have designated an agency to coordinate
the impact statement process, that agency is often without any specific
authority to insure compliance. Furthermore, enforcement by citizen
action, so important to establishing NEPA's viability at the Federal
level, has been made difficult by the lack of adequate mechanisms or
funds for publicizing the existence of impact statements. Puerto Rico
is discontinuing the use of newspaper advertising because of cost. And
no state publishes a periodic centralized list of statements received
and available.
The cost of preparing and reviewing impact statements has also
proven to be a problem to some extent. It was given as one of the
reasons for -a gubernatorial veto of an impact statement procedure in
New York. In part for financial reasons, the New Mexico legislature
suspended impact statement requirements for 1 year pending further
study and a report by a newly established State Council on Environ-
mental Quality.
Interest in requirements similar to those in the National Environ-
mental Policy Act has grown among the states since our last Annual
Report. It is likely that the implementation of these requirements
will generate some problems, but it will also bring the benefits of
open and balanced decisionmaking to the states that embrace the
process. The Council of State Governments is including a draft state
environmental policy act with an impact statement requirement in
its 1974 volume on suggested state legislation. The recent report of
the Task Force on Land Utilization and Urban Growth Policy has
also endorsed the requirement for state environmental impact state-
ment procedures.345
Conclusion
This chapter has discussed a wide range of environmental subjects,
raising many issues and developing numerous themes. The diversity
of the subject matter defies a neat synthesis, but several common
threads, running through much of the chapter, should be noted.
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GUIDELINES AND REPORTS 1201
Secondary Effects
One example is the secondary impacts of environmental protection
programs. Implementation of air quality standards and sewer hookup
moratoriums can significantly influence the distribution of growth
and patterns of land development. State standards for sulfur oxides
emissions affect available choices of fuels in energy markets. Strength-
ened controls over environmentally hazardous pesticides stimulate
integrated pest management, with its emphasis on natural controls.
As our efforts toward environmental quality continue to expand, we
can expect to focus more attention on secondary impacts.
Institutions
Institutional arrangements are heavily influenced by environmental
demands and programs. States are reasserting their basic Constitu-
tional responsibility for land use control, but at the same time a
number of individual communities and counties are beginning to
establish limits on growth. At a time when the general trend of Fed-
eral policy is to decentralize responsibility to state and local govern-
ments, there is a purposeful strengthening of Federal authority for
pollution control. As the Federal NEPA process is refined and more
states adopt comparable programs, analysis of environmental impacts
prior to major decisions is becoming an established routine in many
government agencies.
Technological Developments
Throughout most of man's history, technological innovations have
been regarded as bonuses—as welcome but not essential improve-
ments—to man's welfare. Increasingly today, the reverse is becoming
true. For example, the Nation is now counting on the fast breeder
reactor and other technologies to meet anticipated energy needs and
thus to sustain the quality of life that we now enjoy. We are planning
on substantially improved auto emission control technologies and
stack gas cleaning technologies to achieve the air quality standards
needed to protect public health. In fact, current laws require these
new technologies, explicitly in the case of autos. We now know that
technology is no longer a barrier to recycling municipal solid wastes—
which we hope will lead in the direction of reducing demands for
virgin raw materials and alleviating the solid waste disposal problem.
The technology known as integrated pest management is rapidly
developing, providing an opportunity to control pests without sole
reliance on pesticides. Although technology undoubtedly causes some
environmental problems, we are increasingly realizing that new tech-
nology is one of our most promising means of solving such problems.
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1202 LEGAL COMPILATION—SUPPLEMENT n
The Role of the Courts
A major factor in the current status of environmental programs is
court decisions, many of which have resulted from legal actions by
citizens against government agencies. As with environmental legal
actions against industry,346 the number of actions against Federal
agencies has mushroomed in recent years. Much of this litigation is
under NEPA, but there has also been a large volume of litigation
under the Clean Air Act and under the Amendments to the Federal
Water Pollution Control Act of 1972.
The requirements of NEPA are very broadly worded, virtually
ensuring that application of the law to specific circumstances would
require definitive judicial interpretation. In addition, NEPA forced
a revolution in decisionmaking on many agencies that were unaccus-
tomed and unwilling to consider the environment any further than
was clearly required.
Litigation under pollution control laws arises for somewhat dif-
ferent reasons. Because of disillusionment with the performance of
administrative agencies, many legislators, courts, and citizens no
longer believe that the agencies should be given broad discretion to
do what is best. The unresponsiveness of many administrative agen-
cies, their intimacy and sympathies with interests that they were
established to regulate, and their inaccessibility to the public has
in recent years led legislators to specify agency duties with great pre-
cision and courts to show less deference to agency judgments.
This new attitude toward administrative agencies has affected
pollution control programs. Their past failures were due to weakness
in both legislative authority and administrative performance. In the
new Federal antipollution laws, the Congress not only strengthened
administrative authorities but established deadlines and other re-
quirements for the exercise of these authorities as well. It also es-
tablished mechanisms for citizens to challenge agency action or
inaction and to obtain judicial review of standards.
The citizen action tools created by the Congress were in little
danger of being unused. While public concern for the environment
was supporting vigorous new legislation, it was also spawning the
environmental legal action groups discussed in this and previous
Annual Reports.
Laws that set demanding deadlines for agency actions—such as
the Clean Air Act and the Federal Water Pollution Control Act—
reduce the problem of unreasonably delayed actions. At the same
time, such laws create problems of administrative feasibility when
substantive complexities prevent literal adherence to deadlines. One
example under the Clean Air Act which resulted in litigation to
compel EPA action was transportation control measures for state
implementation plans.
Other factors could be cited to explain the volume of litigation,
but it is important to bear in mind the net effect of litigation. In
250
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GUIDELINES AND REPORTS 1203
environmental cases the courts are serving two of their basic func-
tions—to resolve disputes over the meaning of new and complex
laws and to issue orders when necessary to enforce compliance with
the law. Given the complexity of environmental legislation, the
role of the courts in serving as final arbiter has necessarily expanded.
Citizen Support
The most important factor in the success of environmental pro-
tection programs is the support of the public. The continuing citizen
support for environmental improvement during the past year is
only partially reflected in the body of this chapter. The November
elections produced many examples of broad public concern for the
environment. Voters in New York State approved by a strong ma-
jority a $1.15 billion bond issue to finance pollution control and
solid waste management facilities and the public acquisition of
environmentally sensitive areas. Florida voters approved a $240
million bond issue to purchase environmentally endangered lands.
Massachusetts and Washington voters ratified environmental bills
of rights. Of the 57 Congressional or gubernatorial candidates en-
dorsed by the League of Conservation Voters, 43 were elected. These
and other examples underline the long-term commitment of the
public to a quality environment.
Footnotes
1. 42 U.S.C. § 1857 et seq., 49 U.S.C. §§ 1421, 1430 (originally enacted
asP.L. 91-604, 84 Stat. 1676 (1970)).
2. 42 U.S.C. §§ 1857c-4, 1857c-5 (1970).
3. 42 U.S.C. § 1857M (1970).
4. See S. Rep. No. 91-1196, 91st Cong., 2d Sess. 23-28 (1970).
5. See Council on Environmental Quality, Environmental Quality—The
Third Annual Report of the Council on Environmental Quality 110-116
(1972) [hereinafter cited as CEQ, Third Annual Report].
6. By regulations issued on May 14, the Environmental Protection Agency
(hereinafter cited as EPA) brought to 19 the number of jurisdictions
with fully approved implementation plans. Seven additional states now
have plans with fully approved regulatory provisions. 38 Fed. Reg.
12696 (1973).
7. EPA, Division of Certification and Surveillance, Automobile Exhaust
Emission Survey: A Summary (March 1973).
8. Natural Resources Defense Council v. EPA, 4 ERG 1945, 475 F.2d 968
(D.C. Cir. 1973).
9. Opening statement by Acting Administrator, Transportation Control
Plans, EPA Press Conference (June 15, 1973).
10. Riverside v. Ruckelshaus, 4 ERC 1729, 3 ELR, 20043 (C.D. Gal. 1972).
11. 38 Fed. Reg. 2194 (1973).
251
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1204 LEGAL COMPILATION—SUPPLEMENT n
12. Data derived from: EPA, Office of Air Programs, Compilation of Air
Pollutant Emission Factors (Revised, February 1972) ; Hirst, Energy
Intensiveness of Passenger and Freight Transport Modes 1950-1970
(1973) ; CEQ, Energy and the Environment: Electric Power (1973).
For rapid rail mass transit, emission data were based upon average
emissions from fossil fuel powerplants.
13. Opening Statement, supra note 9.
14. 42 U.S.C. § 1857c-6 (1970).
15. 40C.F.R. § 60 (1973); 38 Fed. Reg. 15406 (1973) [proposed standards
for asphalt concrete plants, secondary brass and bronze ingot production
plants, petroleum refineries, petroleum storage tanks, secondary lead
smelters, iron and steel plants, and sewage incinerators].
16. Essex Chemical Corp. v. Ruckelshaus, No. 72-1073 (D.C. Cir., filed
January 21, 1972); Appalachian Power Co. v. EPA, No. 72-1079 (D.C.
' Cir, filed Jan. 21, 1972).
17. 42 U.S.C. § 1857c-(a) (2) (B) (1970).
18. Natural Resources Defense Council v. EPA, 4 ERG 1945, 475 F. 2d
968 (D.C. Cir. 1973).
19. 38 Fed. Reg. 15194 (1973).
20. 42 U.S.C. § 1857 (1970).
21. Sierra Club v. Ruckelshaus, 344 F. Supp. 253, 4 ERG 1205 (D.D.C.
1972), affirmed, 4 ERG 1815 (D.C. Cir. 1972), cert, granted, 41
U.S.L.W. 3392 (U.S. Jan. 15, 1973), affirmed by tie -jote, 41 U.S.L.W.
4825 (U.S.June 11, 1973).
22. Sulfur Oxide Control Technology Panel (SOCTAP), Final Report on
Projected Utilization of Stack Gas Cleaning Systems by Steam-Electric
Plants 7-9 (1973) [report of an ad hoc panel reporting to the Federal
Interagency Committee on Evaluation of State Air Implementation
Plans, chaired by EPA].
23. 42 U.S.C. § 1857c-5 (1970).
24. President's April 18, 1973 Message to the Congress on Energy, 9
Presidential Documents 389 (April 23, 1973).
25. Letter from Administrator of EPA to State Governors, Dec. 18, 1972.
26. 42 U.S.C. § 1857d-l (1970).
27. See speech by Willam D. Ruckelshaus, Administrator of EPA, to the
Highway Research Board in Washington, D.C, Jan. 24, 1973.
28. EPA Hearings on Applications for Suspension of 1975 Motor Vehicle
Exhaust Emission Standards, Tr. 176-178 (March 1973).
29. Letter to the Editor from Robert W. Fri, Acting Administrator of
EPA, in Wall Street Journal, June 11, 1973 at 14, col. 4.
30. See note 4, supra.
31. 42 U.S.C. § 1857f-l(b) (1970).
32. 38 Fed. Reg. 10317 (1973).
33. International Harvester v. Ruckelshaus, 4 ERG 2041, 3 ELR 20133
(D.C. Cir. 1973).
34. Id. at 2049-2055.
35. National Academy of Sciences, Committee on Motor Vehicle Emissions,
Report to EPA and the Congress under Section 202 (c) of the Clean
Air Amendments of 1970 [42 U-S.C. § 1857f-l(c)] (Feb. 12, 1973).
36. Decision of the Administrator of EPA, In re: Applications for Suspen-
sion of 1975 Motor Vehicle Exhaust Emission Standards 33-35
(April 11, 1973).
37. E.g., Kennecott Copper Corp. v. EPA, 462 F. 2d 846, 2 ELR 20117
(D.C. Cir. 1972) [challenging secondary ambient air quality standard
for sulfur oxides]; see also cases cited in note 16, supra.
38. 38 Fed. Reg. 11355 (1973).
39. Hearings on NO* standards, statement of William D. Ruckelshaus,
Administrator of EPA, before the Subcommittee on Air and Water
252
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GUIDELINES AND REPORTS 1205
Pollution, Committee on Public Works, U.S. Senate, 93rd Cong., 1st
Sess., April 17, 1973.
40. EPA Reevaluates Nitrogen Dioxide Air Pollution Levels in the U.S.,
EPA Press Release (June 5, 1973).
41. See note 27, supra [7-12 percent loss in fuel economy from NO*
catalyst].
42. P.L. 92-500, 86 Stat. 816 (1972).
43. See Council on Environmental Quality, Environmental Quality—the
Second Annual Report of the Council on Environmental Quality 217-
221 (1971) [hereinafter cited as CEQ, Second Annual Report].
44. Id. at 218; CEO, Third Annual Report 11-16 (1972).
45. P.L. 92-500, §§ 301(a),402, see §§502(12), (14), (1972).
46. Id., § 402. EPA has issued final regulations governing the issuance of
permits. See 37 Fed. Reg. 28390 (1972) [state issuance]; 38 Fed. Reg.
13528 (1973) [EPA issuance].
47. Id., §402, see also §301 (b).
48. Id., §301(b)(l)(B).
49. Id., §301(b)(l)(A).
50. Id., §§301(b)(l)(C),302, 303(a)-(d).
51. «., §S201(g)(2)(A),301(b)(2)(B).
52. Id., §301 (b) (2) (A).
53. Id., § 302.
54. Id., § 306.
55. W., §307(a).
56. Id., §311.
57. Id., §307(b).
58. /
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1206 LEGAL COMPILATION—SUPPLEMENT n
82. See EPA, The First Two Years: A Review of EPA's Enforcement Pro-
gram, 162-180 (1973).
83. Kalur v. Resor, 3 ERC, 1458, 1 ELR 20637 (D.D.C. 1971) ; U.S. v.
Pennsylvania Industrial Chemical Corp., 4 ERC 1241, 461 F.2d 468
(3d Cir. 1972), reversed, 5 ERC 1332, 93 S.Ct. 1804 (S.Ct. 1973).
84. P.L. 92-500, §402 (1972).
85. Id., § 402(a)(5). Memo from Acting Deputy Administrator of EPA
to Regional Administrators regarding NPDES permits, June 25, 1973.
Eighteen states and territories issued permits for 184 facilities prior to
March 19, 1973. They are: American Samoa, California, Connecticut,
Georgia, Hawaii, Indiana, Iowa, Massachusetts, Michigan, Minnesota,
Mississippi, Missouri, Ohio, Oregon, South Carolina, Virginia, Wash-
ington, and Wisconsin.
86. P.L. 92-500, § 101 (b) (1972).
87. EPA, Water Strategy Paper 1 (Feb. 27, 1973).
88. P.L.92-500, §402(K) (1972).
89. EPA, Water Strategy Paper 17 (Feb. 27, 1973).
90. Id., 8, 11, 21-23.
91. Id., 18-20; P.L. 92-500, § 212 (1972).
92. EPA, Water Strategy Paper 20-21 (Feb. 27, 1973).
93. 42 U.S.C. § 1857h-2 (1970).
94. P.L. 92-500, §§402, 505 (1972).
95. Id., §101(e).
96. 38 Fed. Reg. 5038 (1973).
97. CEQ, Third Annual Report 13-16 (1972).
98. Council on Environmental Quality, Environmental Quality—The First
Annual Report of the Council on Environmental Quality (1970).
99. CEQ, Third Annual Report 171-172 (1972); CEQ, Second Annual
Report 44 (1971).
100. 5 ERC 1119, 3 ELR 20228 (N.D. 111. 1973).
101. U.S. Const., article I, § 8, cl. 3.
102. See, e.g., Bibb v. Navajo Freight Lines, 359 U.S. 520, (1959); South
Carolina Highway Department v. Barnwell, 303 U.S. 177, 58 S.Ct. 510
(1939).
103. 5 ERC 1119, 1124, 3 ELR 20228, 20231 (N.D. 111. 1973).
104. P.L. 92-532, 86 Stat. 1052, 1972 U.S.C. Congressional and Administra-
tive News 1233 (1972).
105. P.L. 92-500, 86 Stat. 816, § 403 (1972).
106. 38Fed.Reg. 8725 (1973).
107. 38 Fed. Reg. 12872 (1973).
108. 3 ELR 40329 (1973).
109. H.R. 5091, 93rd Cong., IstSess. (1973).
110. P.L. 92-532, § 106(d) (1972).
111. 93 S.Ct. 1590, 5 ERC 1209 (S.Ct. 1973).
112. 33U.S.C. § 1161(o) [now§ 311(o) of P.L. 92-500] (1972).
113. Florida Oil Spill Prevention and Pollution Control Act, L. Fla. 1970,
c. 70-244.
114. P.L. 92-532, §311 (1972).
115. S. 1735.H.R. 5368, 92nd Cong., IstSess. (1973).
116. Safe Drinking Water Act of 1973, S.B. 433, 92nd Cong., 2nd Sess.
(passed June 22, 1973).
117. See, e.g., National Water Commission, Review Draft: Proposed Report
of the National Water Commission 4-81 to 4-83 (Nov. 1972).
118. P.L. 92-500, §315 (1972).
119. See, e.g., Clean Air Act, 42 U.S.C. § 1857c-7(a) (1970); Federal
Water Pollution Control Act, P.L. 92-500, §§ 307 (a), 502(13) (1972).
120. The Insecticides Act, 7 U.S.C. §§ 121-134, 36 Stat. 331 (1910).
121. 42 U.S.C. §2011 etseq. (1954).
254
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GUIDELINES AND REPORTS 1207
122. Council on Environmental Quality, Integrated Pest Management 3
(1972).
123. In re Stevens Industries, Inc., et al. [consolidated DDT hearings],
I.F. and R. No. 63 et seq. (June 14, 1972); see also CEQ, Third An-
nual Report 142-126 (1972).
124. P.L. 92-516, 86 Stat. 973 (1972).
125. Formerly 7 U.S.C. § 315 et seq. (1947). Technically, FEPCA amends
FIFRA, but for practical purposes, FEPCA is a comprehensive new
law.
126. 38 Fed. Reg. 1142, 3002 (1973).
127. FIFRA, controlling only the use of products in interstate commerce,
remains in effect until regulations are promulgated under FEPCA. 86
Stat. 998, § 4(b) (1972). Regulations under FEPCA for registrations
of products used in intrastate as well as interstate commerce are not
required to be promulgated until October 1974. 86 Stat. 998, § 4(c) (1)
(1972).
128. 38 Fed. Reg. 9080 (1973).
129. See Note 123, supra.
130. Dow Chemical Co. v. Ruckelshaus, 5 ERG 1244, 3 ELR 20345 (8th
Cir. 1973).
131. 29 U.S.C. §651 etseq. (1970) ; 38 Fed. Reg. 17214 (1973).
132. The Occupational Health and Safety Act of 1970, P.L. 91-595, 84
Stat. 1590 (1970).
133. See note 124, supra.
134. The Florida Peach Growers Association, Inc. v. U.S. Department of
Labor, Peter Brennan, Secretary, John H. Slender, Assistant Secretary,
No. 73-1934 (Nos. 73-2279, 73-2283) (5th Cir. July 10, 1973).
135. U.S. Department of Agriculture, unpublished data, 1973.
136. R. Strong, cited in R. F. Smith, Solutions to Problems Associated with
Agricultural Chemicals: What Is Being Done by the Universities
(mimeograph 1971).
137. Council on Environmental Quality, Toxic Substances (1971).
138. S. 1478, H.R. 5276, H.R. 5390, 92d Cong., IstSess. (1971).
139. S. 1478, supra note 138.
140. S. 888, H.R. 5087, 93rd Cong., 1st Sess. (1973).
141. Interdepartmental Task Force on PCB's, Poly chlorinated Biphenyls and
the Environment (1972).
142. 31 Fed. Reg. 5105 (1972); 37 Fed. Reg. 10003 (1972).
143. Organization for Economic Cooperation and Development, Decision of
the Council on Protection of the Environment by Control or Polychlori-
nated Biphenyls, adopted Feb. 13, 1973 (1973).
144. Kleopfer and Fairless, "Characterization of Organic Components in a
Municipal Water Supply," 6 Environmental Science and Technology
1026 (1972), and "Are You Drinking Biorefractories Too?" in 7
Environmental Science and Technology 14 (1973).
145. Van Duuren, Kutz, Goldschmidt, Frenkel, and Sivak, "Carcinogenicity
of Halo-Ethers 2 Structure-Activity Relationships of Analogs of BIS
(Chlormethyl ether)," /. Nat'l Cancer Inst. 1431-1439 (1972).
146. National Academy of Sciences-National Research Council, Advisory
Committee on the Biological Effects of Ionizing Radiations, The Effects
on Populations of Exposures to Low Levels of Radiation (1972) [here-
inafter cited as the BEIR Report].
147. EPA, Office of Radiation Programs, National Radiation Protection Pro-
gram Strategy and Plan (1972).
148. BEIR Report, supra note 146, at 29-37.
149. See Klement, Miller, Minx, and Schleien, Estimates of Ionizing Radia-
tion Doses in the U.S. (1966-2000) Office of Radiation Programs/
Criteria and Standards Division Report No. 72-1 (1972); medical
dosage represents preliminary estimates of "abdomen dose" only.
255
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1208 LEGAL COMPILATION—SUPPLEMENT n
150. Federal Radiation Council, Report No. 1 (1960) [in 1970, EPA
assumed the functions of the FRO].
151. BEIR Report, supra note 146, at 18.
152. BEIR Report, supra note 146, at 2.
153. Id., at 7.
154. 10C.F.R. §50.34a (1971).
155. U.S. Atomic Energy Commission Environmental Impact Statement,
Proposed Rulemaking Action: Numerical Guidelines for Design Objec-
tives and Limiting Conditions for Operation to Meet the Criterion
"As Low as Practicable" for Radioactive Material in Light-Water
Cooled Nuclear Power Reactor Effluents (Final, May 9, 1973).
156. 36Fed.Reg. 12247 (1971).
157. U.S. Atomic Energy Commission, Environmental Impact Statement,
Proposed Rulemaking Action: Acceptance Criteria for Emergency Core
Cooling Systems for Light-Water-Cooled Nuclear Power Reactors
(Final, May 9, 1973).
158. Nader, et al. v. Dixie Lee Ray, et al., No. 1058-73 (D.D.C. May 31,
1973).
159. 42 U.S.C. § 2232 (a) (1954).
160. Nader and Friends of the Earth v. Dixie Lee Ray and U.S. Atomic
Energy Commission, No. 73-1733 (D.C. Cir. June 28, 1973).
161. U.S. Atomic Energy Commission, Environmental Survey of the Nuclear
Fuel Cycle (1972).
162. 10 C.F.R. §50 (1971).
163. BEIR Report, supra note 146, at 3.
164. Id., at 13.
165. Id., at 10.
166. P.L. 92-574, 86 Stat. 1234 (1972).
167. See, e.g., EPA, Report to the President and the Congress on Noise 2-79
(1971) [aircraft noise]; Department of Transportation, Transportation
Noise and Its Control 1, 10 [highway vehicle noise].
168. P.L. 90-411,49 U.S.C. § 1431 (1968).
169. 34 Fed. Reg. 18355, 18362 (1969).
170. Noise Control Act of 1972, P.L. 92-574, § 7, 3 ELR 41501 (1972).
171. E.g., American Airlines, Inc. v. Town of Hempstead, 272 F. Supp. 226
(E.D. N.Y. 1967), affirmed on another ground, 398 F.2d 369 (2d Cir.
1968), cert, denied, 393 U.S. 1017 (1969) ; American Airlines, Inc. v.
Audobon Park, 297 F. Supp. 207 (W.D. Ky. 1968), affirmed per curiam,
407 F.2d 1306 (6th Cir. 1969), cert, denied, 396 U.S. 845 (1970).
172. E.g., Port of New York Authority v. Eastern Airlines, Inc., 259 F. Supp.
745 (E.D. N.Y. 1966); see H.R. Rep. No. 601, 91st Cong., 1st Sess.
11-12 (1970).
173. See S. Rep. No. 92-1160, 92d Cong., 2d Sess. 10-11 (1972); H.R. Rep.
No. 92-842, 92d Cong., 2d Sess. 10 (1972).
174. 41 U.S.L.W. 4600 (U.S. May 15, 1973).
175. 93 S.Ct. 1590, 5 ERG 1209 (S.Ct. 1973).
176. Id., at 4603, note 14.
177. CEQ, Third Annual Report 212-213 (1972).
178. P.L. 92-574 § 6(e) (1972).
179. Id., §§ 17, 18.
180. Id., § 6.
181. HUD Circular 1390.2, Noise Abatement and Control: Departmental
Policy, Implementation Responsibilities, and Standards (1971).
182. N.Y. City Admin. Code, ch. 57, part III (Oct. 1972).
183. EPA, Office of Solid Waste Management Programs, unpublished data,
1973.
184. P.L. 89-272, Title II, 79 Stat. 997 (1965).
256
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GUIDELINES AND REPORTS 1209
185. The Budget of the U.S. Government, Fiscal Year 1974—Appendix
774-780 (1973) [detailed figures available from Environmental Pro-
tection Agency].
186. General Services Administration, Fact Sheet on Recycled Paper, issued
and revised periodically [available upon request from GSA, Washing-
ton, D.C.].
187. EPA, Office of Solid Waste Management Programs, supra note 178.
188. S. 1086, H.R. 4873, 93d Cong., 1st Sess. (1973).
189. Midwest Research Institute, Resource Recovery: The State of Tech-
nology (1973) [a report to the Council on Environmental Quality].
190. Business Publishers, Inc., Solid Waste Report 181 (Sept. 18, 1972).
191. Id., at 182.
192. "St. Louis Uses Trash to Make Electricity," Washington Post, Feb. 11,
1973, §E at 11.
193. National Center for Resource Recovery, Press Release (March 7, 1973).
194. "New Orleans Appeals Court Decision," Solid Waste Report 125 (June
25, 1973) ; see also Solid Waste Report 104 (May 28, 1973).
195. "Can Solid Waste Turn a Profit?" New York Times, Oct. 1, 1972,
§ F at 15.
196. EPA, Report to Congress on Resource Recovery 5 (1973).
197. Id., at 8.
198. National Solid Wastes Management Association, 1 The Private Sector in
Solid Waste Management 1.1 (1972).
199. National Commission on Productivity, Opportunities for Improving
Local Government Solid Waste Productivity (1973).
200. Id.
201. Conn. Pub. Act 459 ["Solid Waste Management Act"], June 20, 1973.
202. N.J. P.L. 1973, ch. 39.
203. Communication from William McDowell, Chairman of New Jersey
Meadowlands Commission, Hackensack, N.J., to W. Roger Strelow of
CEQ, May 1973.
204. Vermont, Act 252 of 1972 (April 7, 1972).
205. Ch. 745 (1971) Ore. Laws.
206. EPA, Office of Solid Waste Management Programs, Oregon's Bottle
Bill: The First Six Months (1973).
207. "The Gas Shortage Catches up with Texas," 2259 Business Week 28
(Dec. 16, 1972).
208. Telephone conversion of Marvin I. Singer of CEQ with Evan L.
Sneddon, Administrative Director of Building Services, Denver Public
Schools, June 1, 1973.
209. "The Mounting Cost of the Gas Shortage," 2260 Business Week 19
(Dec. 23, 1972); G. Smith, "Northeast Is Bracing Itself for Possible
Energy Crisis," New York Times, Jan. 15/1973, at 1, col. 2.
210. "Jet Fuel Shortage at New York Airports Disrupts Operations of Sev-
eral Airlines," The Wall Street Journal, Jan. 11, 1973, at 6, col. 2.
211. Office of Emergency Preparedness, Survey of Fuel and Energy Problems
for Spring and Summer 1973 (April 1973).
212. Public hearings on oil, statement of John N. Nassikas, Chairman of
Federal Power Commission, before the Cost of Living Council, Feb. 8,
1973.
213. Loehwing, "More Oil Refineries—Contractors Will Work at Capacity
for the Next Five Years," Barren's, May 28, 1973, at 3.
214. President's April 18, 1973 Message to the Congress on Energy, 9 Presi-
dential Documents 389 (April 23, 1973).
215. F. Bosselman and D. Dallies, The Quiet Revolution in Land Use Control
(1971).
216. P.L. 92-583, 86 Stat. 1280 (1972).
257
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1210 LEGAL COMPILATION—SUPPLEMENT n
217. S. 1041 [public domain land management], S. 935, H.R. 4874 [power-
plant siting], S. 923, H.R. 4863 [mined area protection], 93rd Cong.,
1st Sess. (1973).
218. H.R. 5334, 93rd Cong., 1st Sess. (1973).
219. 42 U.S.C. § 4001 et seq. (1968).
220. S. 1495, H.R. 6524, 93rd Cong., 1st Sess. (1973).
221. Florida Environmental Land and Water Management Act, Fla. Stat.
Ann., § 308 et seq.
222. Ore. Rev. S.Bill No. 100 (1973).
223. Cal. Pub. Res. Code § 27000 et seq. (West, 1973 supp.).
224. N.J. Stat. Ann. 13:9A-1 et seq.
225. N.J. Coastal Facilities Review Act, A. 1429.
226. Ch. 175, Vol. 58, Laws of Del.
227. See U.S. Department of Commerce, National Oceanic and Atmospheric
Administration, Coastal Zone Management Task Force, Report on the
Status of State Coastal Zone Management Programs [compiled and
periodically updated].
228. Rev. Code Wash., ch. 90.58, ratified by electorate in Nov. 1972 as
Initiative 43B.
229. N.Y. Tidal Wetlands Act, Ass. Bill 379-B-
230. N.Y. Exec. L. §§ 800-810 (McKinney 1971).
231. N.Y. Laws of 1973, ch. 348 (May 22, 1973).
232. N.J. Laws of 1972, ch. 185.
233. Vt. Stat. Ann. tit. 10, § 6021 et seq.
234. Cal. Pub. Res. Code § 21000; Cal. Environmental Quality Act of 1970,
amended by chapter 1154 of the Statutes of 1972 (March 7, 1973);
Cal. Gen. Laws Ann. §§11000-11030 (Deering 1972); N.Y. Real
Prop. Law § 3376 (McKinney 1968).
235. Mich. Comp. Laws § 565.801 et seq. (Oct. 30, 1972).
236. 15 U.S.C. § 1701 et seq. (1968).
237. Task Force on Land Use and Urban Growth, The Use of Land: A
Citizens' Policy Guide to Urban Growth 33 (1973) [a prepublication
copy of a report to the Citizens' Advisory Committee on Environmental
Quality].
238. Id., at 57-60.
239. Boca Raton, Fla., City Charter § 12.09, "Limitation of Number of Unit
Dwellings" (Nov. 7, 1972).
240. Hollywood, Fla. Ord. 073-33 (May 16, 1973).
241. Hallandale, Fla. Moratorium, Resolution 1157 (Jan. 23, 1973) ; Resolu-
tion 1161 (Feb. 22, 1973).
242. Dade County, Fla., Ord. 7289 (Dec. 5, 1972).
243. See, e.g., Palm Beach County, Fla. Ord. 72-5 (Feb. 25, 1972) ; Collier
County, Fla., Action of the Board of Supervisors (May 29, 1973).
244. Fairfax County Government, Press Release, April 10, 1973.
245. Fauquier County, Va., Emergency Ord. for 60 days (later extended
for 4 more months) (March 8, 1973).
246. Montgomery County, Md., Resolution 7-1071 (Feb. 13, 1973); Ade-
quate Public Facilities Act, Ordinance 7-41 (June 26, 1973); Office
of Planning and Capital Programming of the Montgomery County Gov-
ernment, A Comprehensive Sewer Service Policy for Montgomery
County (May 1973).
247. Narragansett, R.I. Gen, Ord., ch. 229 (Feb. 7, 1973).
248. Association of Bay Area Governments (Berkeley, Cal.), Resolution
1-73, "Formulation of a Long-Range Regional Growth Policy" (Feb.
22, 1973).
249. Associated Homebuilders v. Livermore and Pleasanton, Case #425754,
Alamenda County Superior Court (Dec. 29, 1972 and Jan. 15, 1973).
250. Palo Alto, Cal. Municipal Code ch. 18.71 (June 5, 1972); Palo Alto
Ord. 2671 (Aug. 14, 1972).
258
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GUIDELINES AND REPORTS 1211
251. The draft Environmental Plan is available from the Department of
Environmental Conservation, Albany, N.Y., 12201.
252. E.g., Upper Mississippi River Wildlife and Fish Refuge Act, 16 U.S.C.
§721 etseq. (1924).
253. P.L. 91-190,42 U.S.C. §4321 etseq. (1970).
,254. 16 U.S.C. §661 etseq. (1946).
255. See discussion in the NEPA section of this chapter.
256. 42 U.S.C. §§ 1857c-4, 1857c-5 (1970).
257. See, e.g., P.L. 92-500, § 101 (a) (1972).
258. 16 U.S.C. § 668aa et seq. (1969).
259. S. 1592, H.R. 4755, 93rd Cong., 1st Sess. (1973).
260. 16 U.S.C. §668aa(d) (1969).
261. White House Fact Sheet accompanying President's State of the Union
Message to the Congress on Natural Resources and Environment
(Feb. 16,1973).
262. Cited in 3 ELR 40336.
263. 16U.S.C. § 1361 etseq. (1972).
264. Advisory Committee on Predator Control, Predator Control—1971
(1972) [a report to the U.S. Department of the Interior and the
Council on Environmental Quality].
265. Executive Order No. 11643, 37 Fed. Reg. 2875 (1972).
266. 37 Fed. Reg. 5718 (1972).
267. Letter from Secretary of the Interior to Speaker of the U.S. House of
Representatives, transmitting proposed predator control legislation,
Feb. 15, 1973.
268. 7 U.S.C. § 426 et seq., 46 Stat. 1468 (1931).
269. S. 887, H.R. 4759, 93rd Cong., 1st Sess. (1973); see H.R. 13152,
92nd Cong., 2d Sess. (1972).
270. 16 U.S.C. § 1131 etseq. (1964).
271. U.S. Department of the Interior and U.S. Department of Agriculture,
unpublished information, 1973.
272. Id.; see "The Wilderness Record," 36 The Living Wilderness 5-9
(1972).
273. S. 938, H.R. 4793, 93rd Cong., 1st Sess. (1973).
274. 16U.S.C. § 1131(c) (1964).
275. S. 938, H.R. 4793, supra note 258, § 3.
276. S. 316, H.R. 1758, 93rd Cong., 1st Sess. (1973).
277. 16 U.S.C. § 1271 etseq. (1968).
278. S. 921, H.R. 4864, 93rd Cong., 1st Sess. (1973).
279. S. 883, H.R. 4469, 93rd Cong., 1st Sess. (1973).
280. CEQ, Third Annual Report 190 (1972); Second Annual Report 70
(1971).
281. Cal. Pub. Res. Code, ch. 1.4, § 5093.50 of Div. 5; ch. 1259 of statutes
of 1972 (March 7, 1973).
282. Wilderness Society v. Hickel, 325 F. Supp. 422, 1 ERC 1335 (D.D.C.
1970).
283. 42 U.S.C. § 4332 (1970).
284. Wilderness Society v. Morton, 4 ERC 1977, 3 ELR 20085 (D.C.
Cir. 1973).
285. 5ERC1208,41U.S.L.W. 3527 (U.S. April 2, 1973).
286. S. 1081, 93rd Cong., 1st Sess. (1973).
287. S. 970, 93rd Cong., 1st Sess. (1973).
288. S. 993, 93rd Cong., 1st Sess. (1973).
289. 30 U.S.C. § 185, 41 Stat. 449 (1920).
290. E.g., J. Sax, Defending the Environment 175 (1971).
291. Data in the following paragraphs are derived from communications
between the Secretary of the Interior to the Speaker of the U.S. House
of Representatives, transmitting legislation to protect Big Cypress,
259
-------
1212 LEGAL COMPILATION—SUPPLEMENT n
Feb. 15, 1973, and from CEQ, Third Annual Report 136-137, 317
(1972).
292. S. 920, H.R. 4866, 93rd Cong., IstSess. (1973).
293. U.S. Secretary of Agriculture, Press Release (March 29, 1973).
294. See H.R. Report No. 93-243, 93rd Cong., 1st Sess. (1973).
295. See CEQ, Second Annual Report 92 (1971).
296. H.R. 3620. 93rd Cong., IstSess. (1973).
297. Byrd, History of the Dividing Line (1728).
298. See CEQ, Third Annual Report 311, 328-331 (1972).
299. Gateway National Recreation Area Act, P.L. 92-589 (1972) ; Golden
Gate National Recreation Area Act, P.L. 92-592 (1972).
300. Federal Property Council, unpublished material, July 1973.
301. S. 922, H.R. 4865, 93rd Cong., IstSess. (1973).
302. 42U.S.C. §4321 et seq. (1970).
303. 38 Fed. Reg. 10856 (1973) [hereinafter cited as Guidelines}.
304. 36 Fed. Reg. 7724(1971).
305. Guidelines, §2.
306. /<*..,§ 6(d).
307. /rf.,§8(a)(ii)(B).
308. Id., §8(a)(i).
309. Id., §§ 6(b),8(a) (ii) (A), Appx. II, § 8(a) (iii).
310. /
-------
GUIDELINES AND REPORTS 1213
335. Sierra Club v. Morton, 3 ERC 2039, 92 S.Ct. 1361 (S.Ct. 1972).
336. 5 ERC 1449 at 1455 (S.Ct. 1973).
337. 5 ERC at 1455.
338. 5 ERC 1418 (D.C. Cir. 1973).
339. Council on Environmental Quality, Memorandum to Federal Agen-
cies on Procedures for Improving Environmental Impact Statements
(May 16, 1972), reprinted in 3 BNA Env. Rep. 82, 87, quoted in
SIPI v. AEC, 5 ERC at 1424 (emphasis added by court) (1973).
340. 5 ERC at 1424.
341. Id., at 1427.
342. Comptroller General of the U.S., Adequacy of Selected Environmental
Statements Prepared under the National Environmental Policy Act of
1969, Report No. B-170186, to the Subcommittee on Fisheries and
Wildlife Conservation of the Committee on Merchant Marine and
Fisheries, U.S. House of Representatives (Nov. 27, 1972).
343. Most of the material in this section is based on a study by Trzyna,
Environmental Impact Requirements in the States (1973) [a report
to EPA, Office of Research and Monitoring].
344. California, Connecticut, Hawaii, Indiana, Maryland, Massachusetts,
Michigan, Minnesota, Montana, New Mexico, North Carolina, Texas,
Virginia, Washington, and Wisconsin.
345. See note 237, supra.
346. See Curruth, "The 'Legal Explosion' Has Left Business Shell-Shocked,"
87(4) Fortune, 65 (1973).
261
-------
-------
CHAPTER 6
Environmental Status
and Trends
A primary aim of the Council is to encourage the development of a
better system to measure the condition of the environment and to tell
whether particular facets of environmental quality are improving or
deteriorating. Such a system would improve the formulation and ex-
ecution of environmental policy. The establishment of priorities, the
provision of information to decisionrnakers and the general public,
and the evaluation of ongoing programs all would be greatly aided if
more relevant data on environmental conditions were available and if
greater use were made of environmental indices to summarize the
diverse data.
Use of Environmental Indices
Last year's Annual Report explained the need for environmental
indices and discussed the Council's efforts to develop them for several
aspects of the environment. While the Council has continued to work
on these problems, several states and localities have begun to use
indices in their own environmental programs.
San Diego County has received a large grant from the Ford
Foundation for an integrated regional environmental management
program. Development of a set of environmental indices is a central
part of the program, and the first environmental quality indices for
San Diego County will be published this summer.
In North Carolina, a Council on State Goals and Policy, composed
of 14 citizens from across the State and chaired by the Governor, was
established in 1971. One of its first tasks was to develop a set of
263
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1216 LEGAL COMPILATION—SUPPLEMENT n
environmental indicators. Some of these indicators will be published
in a brochure intended for use by both the general public and
decisionmakers.
A recent article in The New York Times reported that an increas-
ing number of business firms are using environmental and other
social indicators.1 The article concluded that "The trend toward this
type of social measurement and reporting seems certain to accelerate."
A good example of the use of such measures is the "Social-Environ-
mental Audit" in the 1972 Annual Report of the First National
Bank of Minneapolis. The report states that "In spite of the difficul-
ties encountered in data development, the audit has met with im-
pressive community-wide support and cooperation .... The next
step in the audit is to use it to determine which community problems
are priority needs that the Bank should be addressing."
Obtaining adequate data is difficult for almost all organizations
trying to compute environmental indices. To ease this problem, GEQ
has recently published a Federal Environmental Monitoring Di-
rectory, listing a variety of sources within the Federal Government
from which data about the environment may be obtained.2
The major Federal environmental agencies are addressing the
difficult and time-consuming task of integrating environmental data
systems. The Department of the Interior has done considerable
developmental work on the RALI (Resources and Land Information)
System, which is intended to serve as a reference system for indexing
available data on land and natural resources. The National Oceanic
and Atmospheric Administration in the Department of Commerce
has been designing and building the Environmental Data Index
(ENDEX) system for the last several years. When fully operational
(target date, 1978), ENDEX will provide convenient, rapid referral
to existing national and global data on oceans and the atmosphere.
It will also document the quality, quantity, and character of the
data. The Environmental Protection Agency is working to improve
its STORET (Storage and Retrieval) system for water quality data
and the SAROAD (Storage and Retrieval of Aerometric Data) sys-
tem for air quality data and is also taking steps to integrate its
other data systems.
The Oak Ridge National Laboratory of the Atomic Energy Com-
mission, with the support of the National Science Foundation, oper-
ates the Environmental Information System consisting of a group of
linked information centers. These centers store ecological data on
the movement, cycling, and concentration of elements, isotopes, natu-
ral compounds, and pollutants in different ecosystems; data from
the International Biological Program; mutagenesis caused by pollu-
tants from various sources; and the nature and effect of toxic ma-
terials. The Laboratory is also developing a series of specialized data
bases as part of the system. They will include such diverse areas as
solid waste management data, census data, information on energy
problems, and mathematical models for simulation of regional prob-
264
-------
GUIDELINES AND REPORTS 1217
lems. The system has about 70,000 entries in the individual data
bases and can also draw on 1 million references from other govern-
ment agencies through its computer dial-up capabilities.
Although the Council's work on indices over the past year has
focused mainly on land use, we are continuing to try to improve the
analysis of air and water pollution data. The results of these efforts
are described in the following sections.
Air Pollution*
Air pollution monitoring is beset with many difficulties. But air
quality is still the aspect of the environment which lends itself most
readily to a set of national indicators. The data in this section deal
with three aspects of the air pollution problem: emissions—the
amount of pollutants released from sources such as smokestacks and
tailpipes; ambient air quality—the concentration of pollution in the
air that people breathe; and global trends in air quality. The Council's
further efforts to develop air pollution indices also will be discussed.
The data generally show a continued improvement in the quality
of the Nation's air.
Air Pollution Emissions
Table 1 shows estimated emissions of the five most pervasive air
pollutants by weight for 1971, the latest full year for which informa-
tion is now available. The data are based on a combination of meas-
urements and calculations made by Federal air pollution officials, not
on actual emission measurements. The results of the calculations are
encouraging even though small year-to-year changes cannot defini-
tively be attributed to improved pollution controls. Also, it should
be kept in mind that nationwide emissions are a very poor indicator
of the actual status of air quality because air quality depends as much
on where the emission sources are located as on how much pollution
is being emitted.
Of the five pollutants measured, between 1970 and 1971 there was
an increase in one (particulates), a decline in three, and no change
in one (nitrogen oxides), although the statistical significance of these
changes is not known. The rise in particulates is due entirely to an
increase in the size and number of forest fires, which are reported
under the miscellaneous category. Forest fires also caused an increase
in carbon monoxide, but total CO declined because of decreases in
the transportation (primarily automobiles) and solid waste categories.
Throughout this section, the following abbreviations are used: CO=carbon
monoxide; SOx=sulfur oxides; SO2=sulfur dioxide; HC=hydrocarbons;
NOI=nitrogen oxides; TSP=total suspended particulates.
265
-------
1218
LEGAL COMPILATION—SUPPLEMENT n
Pollutants,
'in: i'p^wi tarts #*rjf«wt _
Fuel combustion in stationary
Pwreeitt ch«t»0e 13?0 to- IMjt
Partteurttw SO*: HC
1,0
s,t'
,7
f$r''
i4.? 11.2 ;:•-;'>
,3 10.2 " * •*! ~
"5,6 .2''-f'
l.« , .2'- '*-
. 8,0 ,2 ;.!-,;,
•«6,« sa.oX ",,:
—2.6 0 • 1.='. n-,'
last year's"}~
'* Figures for .Iff i are i
report because of changed methods of 4
*as calculated ^%0 -197011 J(r*r«?«wpWe-
previously tisetf Ift2 test pwjeifluis. The r»w method results In mttch
_
'h^ table ckMU.:BOt tocfu*-"«M«f fn photoeheBiiaiV existent* be«w«« they
secorjdary pelhrtants tenriei1, ^,- Mitt action of swntliHt «t «|%-og«» oxides a
hydrocarbons $$d 8)«4« g*e iit«^(T|!^'d from sources on the ground. , ' ' •
lBv5K)ni^«nW
Emissions from combustion of solid waste showed a marked decline
of particulates, CO, and hydrocarbons, in part because many open
dumps were closed under EPA's "Mission 5000" program and related
state and local efforts. Combustion (mostly emissions from power-
plants) showed slight declines in particulates, SO2, and NOX, but CO
and HC emissions remained the same. The industrial process category
showed a decline in SO2 emissions and a very slight increase (0.1
million tons) in hydrocarbons. NOX, particulates, and CO remained
the same.
Transportation pollution, which consists predominantly of auto-
mobile emissions, showed a drop in HC (from 15.2 to 14.7 million
tons) and CO (from 78.1 to 77.5 million tons). NOX emissions
rose slightly (from 11.0 to 11.2 million tons). HC and CO emissions
from automobiles declined, largely because post-1967 model-year
cars, with their more stringent emission controls, replaced earlier-
year models which had no pollution control modifications. However,
if the number of automobiles on the road continues to increase, the
downward trend in total emissions will at some point be reversed.
266
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GUIDELINES AND REPORTS 1219
This pattern, as well as the impact of the more stringent standards
recently mandated by EPA under the Clean Air Act Amendments
(see the discussion in Chapter 5), is shown in Figures 1 and 2. It
should be kept in mind that these two figures are projections, and
like all projections, they are based on certain assumptions which may
or may not materialize.
The data in Table 1 are national figures, but the general trend
toward lower emissions is also seen in those individual cities which
have maintained records of emission sources and amounts. Figures 3
and 4, for instance, show the decline in particulate and sulfur dioxide
emissions in Philadelphia. The absolute drop in emissions from in-
dustrial processes is particularly striking.
By mid-1973, EPA expects to improve the basis for determining
nationwide emissions. Instead of relying on gross national estimates, it
will utilize the National Emissions Data System, which will contain
actual emissions data submitted by the states under the requirements
of the Clean Air Act. This should significantly improve the accuracy
of the data.
Even if accurate emissions data are available, it would be very mis-
leading simply to add the emissions of various pollutants together to
obtain an aggregate assessment of air pollution because of the marked
difference in the effects of various pollutants. As we have pointed out
in previous reports, 1 ton of sulfur dioxide is much more harmful
than 1 ton of carbon monoxide, other things being equal.
The detectable threshold of harm for any pollutant depends on
many factors, the more important of which are exposure, concentra-
tion, and the sensitivity of the receptor. For example, plants do not
seem to be affected by carbon monoxide concentrations that are
toxic to man. Very complex conceptual problems arise when one
attempts to equate the presence of one or more pollutants with a
corresponding quantitative estimate of resulting damage.
Generally accepted, comprehensive estimates of air pollution dam-
age are not available. However, Professor Lyndon Babcock of the
University of Illinois has been developing methods to take account
of the differences in damage caused by various pollutants. The Bab-
cock method is essentially based on weighting pollutant emissions in
proportion to the EPA ambient standards to take account of the
relative toxicity of the various pollutants.3 It is a type of pollution
index, although any general air pollution index should be based on air
quality rather than emissions. (The Babcock method is also applicable
to air quality data.) The Babcock figures are used in this section to
show the importance of considering effects when examining emission
data. A more general discussion of air pollution indices is included
later in this chapter.
Professor Babcock's calculations for 1971 are shown in Figures 5
and 6, along with the unadjusted emission figures. As the graphs
show, the Babcock method more than triples the importance of par-
ticulate emissions and doubles the significance of S(X.
267
-------
1220
LEGAL COMPILATION—SUPPLEMENT n
Figure 1
Emissions of Hydrocarbons
by Automobiles in Urban Areas
Standards maintained at
1973-74 levels indefinitely
1975 HC standards
met on schedule
I960
1970
1975
1980
1990
2000
Figure 2
Emissions of Carbon Monoxide
by Automobiles in Urban Areas
Standards maintained at
1973-74 levels indefinitely
1975 CO standards
met on schedule
'I960 1970 1975 1980
Source: EPA press release, April 11, 1973
1990
2000
268
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GUIDELINES AND REPORTS
1221
Figure 3
Emissions of Particulates in
Philadelphia 1962-19711
ELECTRIC POWER
15%
705 T/D
TRANSPORTATION
22%
1034 T/D
INDUSTRIAL FUEL
AND PROCESS
43%
202,1 T/D
1962
470 tons/day
f REFUSE—5%
^RESIDENTIAL FUEL-
1966
184.2 tons/day
INDUSTRIAL PROCESS—299% 32 T/D
RESIDENTIAL FUEL—21 7% 232 T/D
INDUSTRIAL FUEL—16 7% 17 9 T/D
REFUSE^-10.8% 11 6 T/D
'RANSf>ORTATION—85% 91 T/D
COML & GOVT FUEL—72% 7 7 T/D
ELECTRIC POWER—52%
1971
107.1 tons/day
Figure 4
Emissions of Sulfur Dioxide in
Philadelphia 1962-1971 '
X
rv
X
, "\
COML & GOVT FUEL
7% 58 1 T/D
RESIDENTIAL FUEL
8% 66 4 T/D
ELECTRIC POWER
30%
249 T/D
INDUSTRIAL FUEL
AND PROCESS
52%
431 6 T/D
1962
830 tons/day
,, REFUSE— 1 0%
-TRANSPORTATION—2%
\
X,
rx
K
x
X,
INDUSTR L FUEL
20 %
148 /D
INDU5TR1A PROCESS
21 %
155 /D
ELECTRIC POWER
44%
317 T/D
1966
720 tons/day
REFUSE—03%
TRANSPORTATION—08% .
RESIDENTIAL FUEL—3 8% 417 T/D
COMMERCIAL & GOVERNMENTAL
:UEL—7% 505 T/D
- RESIDENTIAL FUEL—11% 375 T/D
-COMMERCIAL 4 GOVT FUEL—96%
- TRANSPORTATION—2%
-REFUSE—06%
1971
339.1 tons/day
1 Variations in emission inventory methods for the years listed make it inap-
propriate to draw fine-point distinctions.
Source- Philadelphia Department of Public Health, Air Management Services, Air
Pollution Emission Data Summary
269
-------
1222
LEGAL COMPILATION—SUPPLEMENT n
Figure 5
1971 Air Pollution Emissions, Percentage
by Pollutant, Unadjusted and Adjusted
for Effects
100
90'
80
70
•in-
40
30-
20
10
—
—
"^
—
NO,
HC
S02
TSP
CO
HC—
— _— — — ~ '"""
^~-^^
s.
\
\
\
\
\
NO,
SO,
TSP
Unadjusted
Adjusted
Figure 6
1971 Air Pollution Emissions, Percentage
by Source, Unadjusted and Adjusted
for Effects
1UU
90
80
70
60
50
40
30
10
0
Sou
-
-
Miscellaneous
Industrial
Processes
Fuel
Combustion
Transportation
Unadjusted
rce: Appendix A
^ Solid Waste"?
~~--^^
\
\
\
\
\
\
Miscellaneous
Industrial
Processes
Fuel
Combustion
Transportation
Adjusted
270
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GUIDELINES AND REPORTS 1223
The Babcock method leaves a number of problems unsolved in
trying to adjust air pollution measurements for their impact on health
and welfare. For example, it shows that fuel combustion in stationary
sources (such as powerplants and home heating) is the most significant
pollution source; transportation sources become much less significant.
But transportation sources are more likely to be concentrated in popu-
lation centers than many other types of sources and thus will cause
greater damage to human health than their weighted values would
suggest. In addition, most particulates from transportation sources are
very small, can be readily inhaled, and therefore pose a potentially
greater threat to health than larger particulates. Only about one-
third of the particulates from industrial sources are this small. Because
it does not take these factors into account, Babcock's method probably
underestimates the adverse impact of transportation sources. The
method also suffers from most of the problems of other air pollution
indices. These problems are discussed later in this section.
Further research and monitoring efforts are needed to give a more
precise estimate of the significance of different pollution sources. Given
the many uncertainties which now exist, it probably would be inap-
propriate at this time to use the Babcock method as a basis for making
policy.
Ambient Air Quality
The 1971 and 1972 data for most air pollution monitoring sites
show that the trend in air quality improvement, noted last year, has
continued. As Figure 7 shows, the most dramatic improvement in
recent years has been in ambient levels of sulfur dioxide, one of the
most hazardous air pollutants. The decline in SO2 has resulted pri-
marily from state and local regulations restricting the sulfur content
of fuels. Levels of suspended particulates have also decreased sig-
nificantly in urban areas, probably because of the installation of
pollution control devices such as scrubbers and precipitators. In re-
mote, nonurban areas, the particulate levels have remained about the
same for the past 10 years.
The trend toward improved air quality is also evident in data for
the Nation's largest cities. Table 2 shows the ratio of the annual
average air quality to the EPA annual primary standards for selected
cities. The primary standard is the level of the particular pollutant
below which, based on current information, human health is believed
to be adequately protected. Because the numbers in the table are
the ratio to the primary standard, they can also be read as the per-
centage of the standard. Thus a ratio of 1.50 would mean that a city
was 50 percent above the standard for a given year, a ratio of 1
would mean that the standard was just being met, and a ratio of 0.25
would mean that levels were only 25 percent of the primary standard.
271
-------
1224
LEGAL COMPILATION—SUPPLEMENT 11
Figure 7
Trends in Ambient Levels of
TSP and S02
150
a. 100
o
i
£ 50
TSP Urban
I
I
I
I
I
I
I
I
I
I
I
0 I960 1961 1962 1963 1964 1965 1966 1967 1968 1969 1970 1971
Source: Environmental Protection Agency
Of the 10 cities in Table 2, 6 have shown a general trend toward
improved levels of particulates, and 7 have shown a similar improving
trend for sulfur dioxide. As noted above, these improvements are
due to the use of less polluting fuels and the installation of control
devices.
EPA has collected data in five cities on the automobile-related
pollutants—carbon monoxide, nitrogen oxides, and photochemical
oxidants.4 An analysis of the trends in these cities shows that average
CO concentrations decreased between 1962 and 1971. However,
changes in CO instrumentation and operating procedures have prob-
ably exaggerated this pattern. No trend was evident for oxidants.
NOX concentrations increased over the 10-year period, but it should
be pointed out that at present there is no standard method for measur-
ing NOX. The standard method which was being used, the Jacobs-
Hochheiser procedure, has been.found to overestimate the amount of
NOX in the air.5 However, NOX remains a significant pollutant, in
part because of its contribution to the formation of photochemical
oxidants, the substances which are the primary constituent of smog
like that in Los Angeles and which are also the most important pol-
lutants affecting vegetation.
Some caution must be used in interpreting the data shown in
Table 2. They are based on only one monitoring site in each city,
usually a site located in the central business district. Because in-
dustry and automobile traffic may be increasing more rapidly in the
outlying areas of the city than in the downtown area, air pollution
272
-------
Table 2
Air Quality Data for Selected Cities,
Ratio of Annual Mean to EPA Primary Standards
Pollutant 1967 1968 1969 1970 1971 1972
LOS ANGELES
SOa
TSP
SOa
TSP
1.22 . 1.72 1.24
DENVER
.22
1.24 1.42 1.51
10.14
1.67
.17
1.63
0.26
1.77
.10
1.57
0.30
1.57
.09
2.03
WASHINGTON, D.C.
SOa
TSP
S02
TSP
S02
TSP
SO j
TSP
S02
TSP
S02
TSP
SO3
TSP
SOa
TSP
.36
1.13 1.14 .98
CHICAGO
2.18 2.30
1.49 1.80
BOSTON
1.23 .65 1.80
1.23 1.14
ST. LOUIS
1.04 1.14 .91
1.49 2.48
CINCINNATI
.36 .33
1.48 1.32 1.39
PHILADELPHIA
1.13 .87
2.00 1.49 1.69
PITTSBURGH
.89 .94 .95
1.78 2.15 1.92
NEW YORK CITY
4.35 13.03 11.69
2.18 1.41
i .34
i 1.01
1.50
1.49
1.59
i 1.07
1.72
'2.04
.14
1.34
1.06
1.80
.72
1.69
1.91
1.64
1.26
.97
.91
1.53
1.22
i 1.13
.12
1.17
.21
1.29
1.46
1.33
.62
i 1.48
I .87
1 1.41
.50
1.11
.59
1.30
.16
1.07
.24
1.24
.29
1.16
.56
1.03
.79
1.80
.60
1.27
i These readings do not meet EPA criteria for statistical validity, in most cases
because an insufficient number of samples was collected during the year.
Source: Based on EPA data from the National Air Sampling Network
-------
V22fi LEGAL COMPILATION—SUPPLEMENT n
may be growing worse in large parts of the metropolitan area while
getting better downtown. Conversely, because the site is located
in the central business district, which is usually more polluted, these
data probably overstate the levels of some pollutants for the area
as a whole. Further, the data do not separately consider meteorologi-
cal factors such as the number of inversions, average temperature,
or amount of rainfall during the year. Small year-to-year fluctuations
may be due as much to these factors as to control measures. How-
ever, the general trends over the past 3 to 6 years support the
proposition that air quality in the central business districts of large
urban areas (which have had the worst problems) is improving.
Although there have been significant improvements in air quality,
a massive effort is still needed to meet EPA standards. As Table 3
shows, many areas of the country have ambient levels which exceed
the primary standards. The priority rankings in the table were as-
signed in 1971 by EPA to the 247 air quality control regions (en-
compassing all of the United States) to aid in the formulation of
state implementation plans under the Clean Air Act. The priorities
were assigned on the basis of monitoring data when such data were
available. In many cases, population of the area and other factors
were used because there were not sufficient data to assign a priority.
Based on the priority ranking data, 108 of the 247 air quality
control regions did not clearly violate any of the primary EPA
Tables
Number of Air Quality Control Regions
• ,120 ...-•: «0. ' *<4J9 2*. 53
•''„.'.'• ,•'•«• •
,, .••'?<) ,-'•'.-
tt»ti IMrtoaw .,•" .
' ' •-
,'•$»$*• Vvj'f' - ,?•'"'?»"/*•;,;,: •.>.,x-,"V';»
-------
GUIDELINES AND REPORTS 1227
standards; 51 were in violation of the standards for only one pollu-
tant ; 43 were violating standards for two pollutants; 22 were violat-
ing standards for three pollutants; 9 were violating standards for
four pollutants; and 14 had significant problems with all five pollu-
tants. As Table 3 shows, the most frequent problem was the standard
for particulates. However, meeting the standards for the automobile-
related pollutants—NO2, CO, and oxidants—may prove the most
difficult problem.
The priority ranking of air quality control regions indicates that
many more areas violate the standards than may be inferred from
the data on individual cities. The differences between the two sets
of data are due to the limitations of each: the ambient data are
based on only one station in each city, whereas the control region
ranking is based on a variety of factors, including both emission and
ambient data. Further, many of the Priority I regions are listed as
violating the standards only because of one or two major sources
within the region. This is the case with 21 of the 60 regions shown
in Table 3 as Priority I for sulfur dioxide. The data on individual
cities do not accurately indicate the nature of the SOX problem
because they are based on annual average levels of pollution, whereas
the most common problem is violation of the 24-hour SOX standard,
not the annual standard.
Air Quality Indices
Last year's report stressed the utility and importance of developing
environmental indices and used three types of air quality indices:
the Mitre Air Quality Index, the Extreme Value Index (also de-
veloped by Mitre), and the Oak Ridge Air Quality Index. All share
at least four shortcomings: first, they do not adjust for the number
of people exposed to given levels of air pollution. That is, they are
indices of pollutant levels, not of the extent of population exposure.
Second, they do not distinguish between changes in air quality due
to control measures and changes due to natural meteorological fluc-
tuations such as amount of rain or number of inversions during the
year. Third, they do not take account of interaction among different
pollutants. Fourth, all the indices are based on a direct linear ratio
between the ambient levels and a given standard, even though the
relationship between pollutant levels and the damage caused is, in
many cases, nonlinear.
An adjustment of an index for the number of people exposed can
be incorporated simply by multiplying the index value for a given
area by the proportion of the total population living in that area. In-
sofar as the index is based on monitoring data from just one site in a
large city, this population-weighting approach may severely distort
the results because many people in the city will not in fact be exposed
to the air pollution levels found at the monitoring site. However, even
275
-------
1228 LEGAL COMPILATION—SUPPLEMENT n
worse distortions result from giving all monitoring sites equal weight
whether they are located in big cities or small towns. Thus, use of
a population-weighting factor is desirable. As the number of monitor-
ing sites grows, the population-weighting factor allows for them to be
readily added to the overall index.
Regarding the second problem, research is now underway in EPA
and the National Oceanic and Atmospheric Administration to de-
velop techniques to separate the effects of meteorology on air quality
readings from the effects of changed levels of emissions. At present
there are no accepted methods for distinguishing between the two.
There is good evidence to indicate that the damage caused by cer-
tain combinations of pollutants is greater than the sum of the damage
caused by equal amounts of the same pollutants acting independently.
For example, 1 part per million of SO2 probably is more damaging
to health when there is a high level of particulate matter than when
there is a low particulate level. Neither the indices nor the EPA
standards deal with this synergistic effect, primarily because little
is known about the quantitative interrelationships among the pol-
lutants. There are similar problems in dealing with the damage caused
by short exposure to high levels of a pollutant as contrasted with
long-term exposure to low pollutant levels.
The fourth problem is complex, but it is critical to the formulation
of air quality indices. Two steps are necessary to compile an index.
First, the values for each pollutant must be translated into a common
unit of measurement (such as a percentage); that is, they must be
converted to a number which does not relate only to that pollutant.
This is necessary so that the values for different pollutants can be
combined into one index. Second, the values for each pollutant must
be "weighted" so that the differences in damage (i.e., health effects,
plant destruction, corrosion of materials, etc ) caused by an equal
amount of two different pollutants can be reflected in the index.
In other words, the index should reflect the damage caused by the
pollutants and not just the amount of pollutants in the air.
The indices used last year accomplished both of the above steps
by dividing each of the pollutant concentration values by the EPA
standards for that pollutant. This produced a series of values which
had a straight-line relationship to the standard. However, the damage
caused by many pollutants is not directly proportional to the stand-
ard. When plotted on a graph, the relationship is more likely to be
some type of curve than a straight line. Ideally, the weighting of the
values of a pollutant would be based on a damage curve rather than
just on the relationship to the standard. It would be necessary to
use different curves for the different pollutants, and it might also be
necessary to use two different curves for the same pollutant—one for
short-term and one for long-term exposure.
There seems to be general agreement that using damage curves is,
in theory, preferable to using the standard. The standard has been
used because there also seems to be general agreement that there is
276
-------
GUIDELINES AND REPORTS 1229
not enough scientific knowledge from which to develop accurate
damage curves. However, we are inclined to adopt the damage
curve approach on the grounds that even an approximate curve
comes closer to reflecting the damage caused by a pollutant than
does the straight-line approach. Moreover, the use of a curve, unlike
the use of a straight line, allows for continuing improvement in the
accuracy of the damage estimates and, thus, of the indices.
During the coming months, the Council will be working on the
development of acceptable damage curves and on incorporating
other improvements into an air pollution index. We hope by next
year to test this revised index with actual pollution data.
Global Trends
Some of the most important potential air pollution problems are
global in scope and may become apparent only after a long period of
time. The need to measure worldwide trends in environmental quality
over a long time scale was clearly set out in the Earthwatch program
approved by the U.N. Conference on the Human Environment.
The United States has responded to this need to measure global
phenomena in several ways. The Environmental Protection Agency
and the National Oceanic and Atmospheric Administration (NOAA)
have established 10 "regional" stations to measure atmospheric tur-
bidity and to collect and analyze precipitation for trace elements.
These stations are a part of the World Meteorological Organization
global network. In 1972 the United States established two additional
"clean" air observing programs—an observatory at Point Barrow
in Alaska and a preliminary sampling program at Cape Matutula
in American Samoa. These locations greatly extend the scope of
the efforts now underway at Mauna Loa, Hawaii, and at the South
Pole. However, Mauna Loa still remains the key location because
of its longer history.
The most notable example of a potential global air pollution prob-
lem is the concentration of carbon dioxide (CO2) in the atmosphere.
CO2 is not a pollutant in the sense that it does not directly harm
organisms, but a significant increase in the proportion of CO2 in
the atmosphere could create a warmer global climate because CO2
traps radiant heat from the earth within the lower atmosphere, pre-
venting its release to the upper atmosphere. It has been speculated
that sufficient warming might melt the polar ice caps and raise the
ocean levels significantly. Several scientists have speculated that if
carbon dioxide in the atmosphere and oceans continues to increase
rapidly during the next century, the resulting acidification of the
oceans will decrease their ability to absorb fossil fuel carbon dioxide.
This will cause an even faster carbon dioxide accumulation in the
air and potentially greater "greenhouse" warming of the lower
atmosphere.
277
-------
1230
LEGAL COMPILATION—SUPPLEMENT n
Carbon dioxide concentrations at baseline monitoring stations over
the globe have grown faster since about 1968 than in the previous
decade. This is illustrated in Figure 8, which traces CO2 concentra-
tions at the NOAA Baseline Station on Mauna Loa. The seasonal
variation in the figure is due to the biospheric cycle—the uptake of
carbon dioxide through photosynthesis in the summer season and
release of carbon dioxide through decay and respiration at other
times. The numbers along the bottom of the chart indicate the changes
between successive years. Note the larger values after 1968.
The amount of carbon dioxide released to the atmosphere has risen
at about 4% percent per year from 1960 to 1971.6 This growth is
ascribed to global combustion of fossil fuel. The fraction of carbon
dioxide remaining airborne, as measured at Mauna Loa, appears to
have increased from 45-50 percent of CO2 emitted in 1958-68 to
over 60 percent in the more recent period 1968-72. The actual con-
centrations are shown in Figure 8. There is no evident explanation for
this change.
The growth in carbon dioxide may be contrasted to what happened
following the eruption of Mt. Agung in early 1963 (see Figure 9).
A huge dust pall from the eruption sharply reduced the level of solar
radiation, which is basically the amount of sunlight getting through
Figure 8
Increase in Carbon Dioxide
Concentrations at Mauna Loa
Observatory
330
I 325
•C 315
310
£9 A n\ A
"v* 'V' *C? "V *V *£•* ^^ *v' *C^ ^^ 'O' *>^ "^ >^ 'vj'
iQ.eO 0.80 0.62 0.82 0.35 iO.SQiO.a? 0.67 0.77 0.77 1.79 1.20 0.93 1.06
Annual change in parts per million
1 Change based on less than 12 monthly measurements per year.
Source: Department of Commerce, National Oceanic and Atmospheric Administra-
tion, based on data provided by C. D. Keeting, Scripps Institution of Oceanography,
sponsored by the National Science Foundation
278
-------
GUIDELINES AND REPORTS 1231
Figure 9
Transmittal of Normal Incidence Solar
Radiation at Mauna Loa
Percent
94 -
£ 93 -
92 -
,t
1958 1959 1960 1961 1"62 1963 1964 1965 1966 1967 1968 1969 1970 1971
Source- H T Ellis, and R. F Pueschel, "Solar Radiation, Absence of Air Pollution Trends
at Mauna Loa, Science 172 845-46; November 1970 to September 1971, unpublished NOAA
data
the atmosphere to the earth's surface. As the dust gradually settled
and dissipated, the level returned to normal.
The Mauna Loa solar radiation data illustrate not only the tre-
mendous impact that natural events can have on environmental con-
ditions but also the ability of the natural system to recover from tem-
porary stresses. The carbon dioxide problem shows the impact that
man's activities can have on natural systems.
Water Pollution
Many more data have been collected on water pollution than on
air pollution. But most of the water data are collected for specific
state or local needs, such as enforcement of water pollution laws,
not for determining national trends in water quality. The large
number of water pollutants and the multiple uses served by water
(swimming, drinking, fish and wildlife, etc.) also make it difficult
to describe and summarize water quality trends. The levels of a pol-
lutant cannot be compared to a single standard because the standards
vary according to the use for which the water is desired.
This section will first discuss water pollution effluents. (The term
effluents in water pollution, which is equivalent to the term emissions
in air pollution, means the pollutants discharged from a pollution
source, such as a factory or municipal waste treatment plant, into
a water body.) The section then turns to data on water quality.
Following that, trends in pollution of the Great Lakes will be
briefly described. Finally, other activities directed at establishing
trends in water pollution are noted.
279
-------
1232 LEGAL COMPILATION—SUPPLEMENT n
Water Pollution Effluents
The Federal Water Pollution Control Act Amendments of 1972
prohibit all municipal, industrial, and other "point source" water
pollution dischargers from discharging into navigable waters without
a permit. One condition of each permit is that the discharger report
periodically on the nature and amount of pollutants being discharged.
Once the permit system is fully operational, it should provide a com-
prehensive picture of the pollution coming from point sources as well
as a vital tool for reducing such pollution.
Some data on industrial effluents are already available from per-
mits filed under the 1899 Refuse Act, the precursor of the new per-
mit program. Table 4 shows these data for EPA's Region IV, which
covers the States of Kentucky, Tennessee, North and South Caro-
lina, Mississippi, Alabama, Georgia, and Florida. This region was
selected because the permit applications in EPA's possession are be-
lieved to cover approximately 90 percent of the industrial dischargers
in the region. The table shows only those types of industries which
are major polluters. The data are not definitive or exhaustive be-
cause a few sources within these industrial classifications may not
have been included. Further, the accuracy of all the permit applica-
tions has not been checked. There are also problems arising from the
way in which the information is recorded. For instance, when a partic-
ular plant falls under more than one industrial code, its effluents are
counted twice in the industry classification part of the table. This
problem has been eliminated in the total figures.
Table 4 indicates that the paper industry accounts for more than
one-half of the industrial BOD (biochemical oxygen demand) dis-
charged in Region IV. Manufacturers of chemical and allied products
are the largest dischargers of nitrates, heavy metals, and solids. The
extremely large amount of solids reportedly discharged is somewhat
misleading because although the intake water often contains a high
concentration of solids, the computer system reports only effluents. For
example, if the intake water contains 100,000 pounds of solids and the
particular plant adds 5,000 pounds of solids to this water during pro-
cessing, the reported discharge will be 105,000 pounds. With the new
reporting system being implemented by EPA, this kind of exaggeration
will be reduced. The net increase, as well' as the absolute discharge,
will be shown.
An analysis of the individual dischargers in Region IV shows
not only that the major portion of the industrial water pollution
problem is concentrated in a few industries but that it is concen-
trated in a few large plants. Figure 10 shows the distribution of the
number of plants according to the amount of BOD that they dis-
charge. The vast majority of facilities are comparatively small dis-
chargers. Of 1,920 facilities reporting BOD discharges, the 5 largest
account for 35 percent of the total; the next 5 account for another
280
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1234
LEGAL COMPILATION—SUPPLEMENT n
Figure 10
Number of Facilities by Amount of BOD
Discharged, EPA Region IV
120.
100.
-------
GUIDELINES AND REPORTS 1235
12 percent. One percent of all the facilities accounts for more than
50 percent of the total BOD discharged.
The permit program covers only point sources of water pollution.
However, it should be kept in mind that nonpoint sources contribute
significant amounts of pollution, such as pesticide and fertilizer run-
off from cropland and sediment from a variety of sources. The sedi-
ment problem is discussed later in this chapter, and last year's Annual
Report contained some analysis of nonpoint effluents, but there is
little quantitative information on water pollution from nonpoint
sources.
Water Quality
National Stream Quality Accounting Network—The Department
of the Interior's Geological Survey (USGS) has established a Na-
tional Stream Quality Accounting Network for periodic assessment
of stream quality based on continuing measurements. The Net-
work monitoring sites are selected to give a representative picture
of water quality in the United States and are located whenever pos-
sible at the point where a stream drains 1 of the 320 designated "water
accounting units" into which the Nation has been divided.
It would be prohibitively costly and perhaps technically impossible
to have enough sites to measure water quality conditions in every
mile of every major stream. The rationale for the USGS network al-
lows for a limited number of stations to be used to summarize national
water quality conditions. The data collected at each of the sites can
also be considered to represent stream quality conditions in terms
of the measured constituents for the accounting unit where the site
is located. Obviously, however, conditions within the unit may vary
greatly from those at the monitoring site.
Some data are already available at over 70 percent of the 525
sites included in the Network. During fiscal year 1973, supplementary
funding has allowed 50 of the designated sites to become fully opera-
tional, measuring all of the specified constituents at the frequency
prescribed by the initial Network design.
The USGS has examined data collected prior to activation of the
Network for evidence of water quality trends.7 The USGS study
included an analysis of historical data available for 88 existing Net-
work sites. They are unevenly distributed across the Nation because
their selection was governed primarily by the availability-of data
over a number of years. The data were often sparse and highly
variable, limiting the trend evaluation to analysis for specific con-
ductance (or conductivity) and temperature.
The analysis was also limited to long-term trends because, statisti-
cally speaking, it is difficult to obtain valid time trends using data
covering a period of only 2 or 3 years. The data were expressed in
annual terms to take account of seasonal and within-year cyclical
283
-------
1236 LEGAL COMPILATION—SUPPLEMENT n
effects. Thus, only one measurement per year is available for statis-
tical analysis. Given the effect of multiyear cycles (such as long-term
regional temperature changes), the uncertainty of the measurement
methods used, and the possible margins of error in the statistical
techniques applied to the data, two or three measurements are usually
not sufficient to ascertain a trend. It is expected that many of the
data problems encountered in he USGS assessment will be overcome
after the Network has been operational for a few years.
Specific conductance is a summary measure for a wide variety of
major inorganic constituents in streamflow, including hardness, dis-
solved solids, and chloride concentrations. Using a method similar
to that described in last year's Annual Report to adjust for variability
in flow conditions,8 USGS analyzed data from each of the 88 sta-
tions to see whether there was any significant change in conductance
levels. Only 15 stations showed change over and above that caused
by changes in flow conditions. Of these, 5 showed an improvement
in water quality and 10 showed a deterioration.
The analysis of temperature showed 13 sites with significant
changes in stream temperature: 10 showed a decrease in tempera-
ture; 3 showed an increase. In a majority of the cases, the tempera-
ture decreases could be attributed to dam construction and reservoir
operations above the monitoring site. In some of the remaining cases,
the decreases were apparently due to a change in the way that the
measurements were taken, not to a change in actual stream con-
ditions.
EPA Studies of Water Status and Trends—One of the most fre-
quent problems in water monitoring to detect pollutants is that
pollution conditions can be highly localized. Monitoring teams must
often take many samples along a few miles of a river (and across
its width, if it is large) to define the distribution of a pollutant. The
Environmental Protection Agency, in contrast to USGS, is focusing
its efforts on determining the impact of pollution sources.
EPA is now working on a plan to establish permanent monitoring
sites at points upstream and downstream of areas with major sources
of pollutant discharges. In this way, the river waters may be com-
pared before and after they pass through zones receiving substantial
discharges of pollutants.
EPA is also preparing a report, required under the Federal Water
Pollution Control Act Amendments of 1972, on the status of water
quality. It will be sent to the Congress in January 1974. EPA will
try to use data from existing monitoring sites to pinpoint both local
and widespread pollution concentrations in 10 to 20 of the major
rivers of the United States. By noting where each station is and how
far it is from large aggregations of pollution sources, the report will
for the first time place pollution problems in perspective for some
of these rivers.9
EPA has tested this technique on a short stretch of the Detroil
River, where many water samples were taken regularly at 41 sites
284
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GUIDELINES AND REPORTS 1237
between 1967 and 1969. These are more data than are likely to be
available on most rivers, because the Detroit River has been intensely
monitored as part of a cooperative effort with Canada to control
pollution entering Lake Erie. The data are obviously somewhat out
of date, but they were used because the analytical technique could be
readily applied. Although quite crude, the analysis shows that over
the distance of just a few miles there can be large differences in
pollution levels.
The major waste sources in the area studied are clustered along
the banks of the Detroit River. They include steel and chemical
manufacturers, a large municipal sewage discharge on the lower
river, and a large number of combined sewer overflows from Detroit.
Smaller concentrations of industrial and municipal discharges are
spread throughout the seven small drainage areas in southeast Mich-
igan: the Raisin, Huron, Rouge, Clinton, Belle, Pine, and Black
Rivers. The main rivers, St. Clair and Detroit, are divided almost
in half by the international boundary. Only stations in U.S. waters
were analyzed because wastes discharged from the Detroit area tend
to hug the U.S. shoreline of the rivers.
Figure 11 shows three measurements which illustrate the results:
total coliform bacteria organisms per 100 milliliters (a measure of
pollution from urban runoff and domestic wastes), chlorides, and
phenols (components of industrial wastes in the area). The graphs
depict annual mean measurements for stations close to the U.S. shore,
arranged according to their distance upstream from the mouth of
the river (at Lake Erie). They show that during the 1967-69 period:
• The river was relatively clean upstream of Detroit.
• Overflows from combined sewers caused the geometric mean
coliform levels to exceed proposed EPA guidelines (10,000 per
100 milliliters) for about 10 to 15 miles downstream.
• Industrial sources caused elevated chloride and phenol concen-
trations in the lower river area.
• Although the year-to-year trends were somewhat mixed, the
pollutant levels associated with industry were gradually lessening
during the period, while municipal pollutant levels were gen-
erally worsening. Increases in phosphates and organic nitrogen
(not shown) also reflected problems due to municipal wastes
and nonpoint sources. These trends are consistent with EPA's
findings that Detroit's industries were generally meeting abate-
ment schedules while municipalities were lagging.10 But these
trends could be modified after year-to-year variations in tem-
perature, rainfall, stream flow, or other conditions are taken
into account.
This study demonstrates that although pollution problems may be
widespread, local variations in pollutant levels make monitoring and
the interpretation of water quality data a difficult and complex task.
285
-------
1238
LEGAL COMPILATION—SUPPLEMENT n
Figure 11
Detroit River, Annual Means for
Coliforms, Chlorides, and Phenols
100 ml
Geometric Mean of
Station Closest
to West Shore
Coliforms
Average of 3
Stations Closest
to West Shore
Chlorides
Average of 3
Stations Closest
to West Shore
Lake
St.Clair
I
Combined Sewers Industrial Sources
"30 25
Source: Environmental Protection Agency
•20 • 15
Miles above mouth
10
100,000
50.000
10,000
5,000 ,
1.000
500
100
60
20
20 X
10
Lake
Erie
286
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GUIDELINES AND REPORTS
1239
Pollution in the Great Lakes "
The Great Lakes and their connecting waters constitute the largest
body of fresh water in the world. They are a natural resource of
immense value to the United States and Canada. The Great Lakes
Basin encompasses approximately 300,000 square miles of which
nearly one-third, 95,000 square miles, is lake surface. Figure 12 shows
the characteristics of each of the lakes.
Over 29 million Americans and Canadians currently live in the
Great Lakes Basin. The population growth has been dramatic, ris-
ing from 2.3 million in 1860 to 29 million in 1970—a 1,160 percent
increase in 110 years. The greatest growth has been in the basins
of Lakes Erie and Michigan, which, together with Lake Ontario,
have experienced the most severe pollution. At present growth rates,
about 40 million people will live in the basin by the year 2000. By 2020
a megalopolis will stretch from Milwaukee to Montreal.
The waters of the Great Lakes are used for navigation, sport and
commercial fisheries, recreation, wildlife, municipal and industrial
Figure 12
Characteristics of the Great Lakes *
Elevation 600 4
Elevation 578 7 Elevation 573 0 Elevation 570.4
NIAGARA FALLS
Elevation 244 8
1 Scales have been distorted to convey visual impression of differences in elevation Lake levels
shown represent average annual elevation for the period 1860-1970
PHYSICAL CHARACTERISTICS OF GREAT LAKES
Surface Area (square miles)
Maximum Depth (feet)
Average Depth (feet)
Volume (cubic miles)
Population (millions)
Ratio of Population to Lake
Volume
Superior
31,700
1.333
489
2,935
533
.18
Huron
23,000
750
195
849
1 236
1.45
Michigan
22,300
923
279
1,180
13516
11 45
Erie
9,910
210
62
116
11 513
9925
Ontario
7,340
802
283
393
2.531
6.49
Source International Great Lakes Levels Board, Interim Report to the Internationa) Joint Commis-
sion (July 1968), Great Lakes Basin Commission
287
-------
1240
LEGAL COMPILATION—SUPPLEMENT n
water supply, hydroelectric power generation, and wastewater dis-
posal. This latter use has markedly changed the original condition
of the lakes' waters. The increasing concentrations of dissolved solids
found in the lakes, shown in Figure 13, are but one indication that the
lakes' ecosystems are being degraded.
The biological productivity of each of the Great Lakes is depen-
dent on the supply and balance of essential nutrients. Lakes well
supplied with essential nutrients tend to be the most productive
biologically. This relationship is the basis for the "trophic" system
of lake classification. In the first stage of the trophic system—the
oligotrophic—a lake is deep, the water contains few nutrients, and
there is little biological life. Over time, as nutrients and sediments are
added, the lake becomes more biologically productive and shallower.
This stage is called the mesotrophic. As nutrients continue to be
Figure 13
Changes in Total Disolved Solids
in the Great Lakes
Parts per million
225—,
200 —
175 —
125 —
100 —
75 —
50-
25-
Lake Ontario,
Lake Erie
Lake Michigan
' Lake Huron
,Lake Superior
1900
1910
1920
1930
1940
1950
1960
Source: A. M. Beeton, "Changes in the Environment and Biota of the Great
Lakes," in Eutrophication: Causes, Consequences, Correctives (Washington: National
Academy of Sciences, 1969), pp. 150-87
288
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GUIDELINES AND REPORTS 1241
added, algal blooms appear, fish populations change, and the lake
becomes less useful to man. This final stage is called the eutrophic
stage, and the process which leads to it is known as eutrophication.
It is a natural process in all lakes and one that normally takes
thousands of years. But the inputs of man-derived nutrients and
sediments can produce the same effect in a few decades.
Changes have been observed in all the Great Lakes over the past
50 years. The physical characteristics of each have determined its
particular response to man's activities. The shallow water environ-
ments—bays and inshore waters—that receive wastes undergo the
most significant changes. Thus, while a lake as a whole may be clas-
sified as oligotrophic, certain of the shallow coastal areas may be
eutrophic. This eutrophic condition may eventually reach the open
lake, but because of the great depths in the offshore areas, the
changes will be gradual. Unfortunately, the shallow water environ-
ments that are first altered by pollution are the most important for
water supply, fish production, and recreation.
When the population of the drainage basin of each lake is com-
pared to the volume of the lake, one of the major reasons for the
different degrees of pollution among the lakes becomes clear. The
ratio of population to volume varies from only 0.18 for Lake Superior
to 99.25 for Lake Erie (see Figure 12). Lake Superior has a large vol-
ume of water to assimilate the wastes from a small population. In
Lake Erie the situation is the opposite. The extent of pollution in
each of the lakes approximately parallels the ratio of population to
water volume.
Changes in the biology of the lakes have also resulted from water-
way development. Prior to the opening of the Welland Canal be-
tween Lakes Erie and Ontario, Niagara Falls was an effective barrier
to the parasitic sea lamprey. The Canal opened the way for the
lamprey to enter the upper lakes, where it nearly destroyed the
populations of lake trout, whitefish, and burbot—the lakes' only abun-
dant and widely distributed predators (see Figure 14). The Great
Lakes Fishery Commission has developed several methods for con-
trolling the sea lamprey, and the Department of the Interior's Bureau
of Sport Fisheries and Widlife is now successfully applying these
methods in several of the lakes. The Canadian Department of the
Environment is conducting a similar program on its side of the lakes.
Introduction of the lamprey created conditions favorable to mul-
tiplication of the alewife. This small, herring-like marine fish also
entered the Great Lakes through the Welland Canal and now domi-
nates the waters of Lakes Huron and Michigan. It periodically creates
objectionable conditions when massive numbers die.
Because each of the lakes has its unique characteristics and prob-
lems, they are worth discussing separately.
Lake Superior has remained essentially unchanged during the past
century, in part because of its large volume. However, a few areas,
notably the Duluth-Superior region, are suffering from pollution.
289
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LEGAL COMPILATION—SUPPLEMENT n
Figure 14
Commercial Production of Lake Trout
and Whitefish in the Upper Great Lakes
In millions
Whitefish
Huron
2 -
1920 1930 1940 1950 1960 1970 1920 1930 1940 1950 1960 1970
Source: Great Lakes Fishery Commission, Commercial Fish Production in the
Great Lakes 1867-1960, Technical Report No 3, July 1962, with supplement, 1970
The possibility that asbestos fibers may be being dumped in the lake
and are then entering the Duluth drinking water has raised serious
national concern. The biological, chemical, and physical characteris-
tics of Lake Superior are considered oligotrophic. Its waters have
high transparency, they possess a high dissolved oxygen content and
a low total dissolved solids content-, and the existing biota are char-
acteristic of nutrient-poor waters. Man's activities have caused some
changes in the fish populations. These changes include the introduc-
tion of smelt and the decline of lake trout and whitefish.
Because of its large volume, most of Lake Michigan has not yet
suffered major environmental deterioration. However, the wastes
from a rapidly increasing population at the southern end are causing
rapid deterioration of that part of the lake. Although the volume of
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GUIDELINES AND REPORTS 1243
the lake is large, its flow-through time is very long (only about 1
percent of the lake's volume is drained each year), and wastes which
enter it remain for long periods of time. The observed changes in-
clude higher concentrations of dissolved solids, oxygen depletion in
Green Bay, overproduction of algae, increased numbers of fish kills,
and other marked changes in the biota. Such changes in plant and
animal life are often the best indicators of a change in the total en-
vironment. In southern Green Bay and other restricted .areas, most
of the normal, oligotrophic biota have been replaced by pollution-
tolerant species. Commercial fisheries are no longer permitted to
harvest lake trout in Lake Michigan because of the depleted numbers
of fish. Less valuable smelt, carp, chubs, and the ubiquitous alewife
now constitute a major portion of the total catch.
Most of the inflow to Lake Huron is from Lake Superior and the
upper, reasonably clean part of Lake Michigan. Lake Huron is there-
fore considered oligotrophic, with many of the same characteristics
as Lake Superior. The quality of its water has not changed to any
great degree in the last century. The large volume of the lake has
prevented the increase in waste effluents from having a major impact
on the open lake. However, in Saginaw Bay and a few of the more
heavily used harbors, pollution has affected the biota, and many of
the oligotrophic species are diminishing. Fisheries throughout the
lake have also changed: carp have flourished, but lake trout and
walleye have been reduced by the lampreys and by poor fishing
practices. Recently the whitefish and chub populations have under-
gone catastrophic decline, but the whitefish are now beginning to
come back because of sea lamprey control.
The combined biological, chemical, and physical characteristics
of Lake Erie clearly classify it as eutrophic. Its waters have high
phosphorus concentrations and are turbid. During the summer, the
oxygen in the bottom waters in the central and western basins is
depleted. There is nuisance algal growth, pollution-tolerant species
are present, and the composition of the commercial fish catch has
changed significantly. This eutrophic state stems from the interaction
of four factors: the lake basin is extremely shallow and contains a
small volume of water; the lake has always received a rich nutrient
input from its drainage basin; there is a large megalopolis along the
U.S. shore, including such major industrial centers as Cleveland,
Toledo, and Detroit; and the lake receives severely polluted water
from the major tributaries. The most heavily polluted areas in Lake
Erie are the western and central parts of the lake, including the areas
adjacent to Detroit, Toledo, Cleveland, and BufFalo.
Lake Ontario is probably best described as mesotrophic—with
nutrient availability and biological productivity intermediate between
oligotrophic and eutrophic. Its main inflow is the nutrient-rich waters
from Lake Erie, but because of its large volume it has not been over-
taken by algal growths. The biota consist of those organisms that
291
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1244 LEGAL COMPILATION—SUPPLEMENT n
are also present in Lakes Superior and Huron. Major pollution prob-
lem areas are the urban-industrial complex from Hamilton to
Toronto and Rochester.
From April 1972 to June 1973, a major U.S.-Canadian field obser-
vation program, the International Field Year for the Great Lakes,
took place on Lake Ontario and'in the Ontario basin. In addition to
hydrological, meteorological, and physical limnological processes and
properties, observations covered biological and chemical parameters,
including the concentrations of important pollutants. The data, which
are now being analyzed, will be used to establish baselines and trends
in environmental characteristics, material balances within the lake
basin system, and simulation models for evaluating management
alternatives. These studies will provide not only specific assessments
of Lake Ontario but also a broader understanding of lake processes
in general.
The Great Lakes are a good example of how man and nature inter-
act to change ecology. Conditions in Lake Erie would not be so bad
were it not for the shallowness of the lake and its location relative to
the other Great Lakes. Lake Michigan has been spared the problems
of Erie, in part because of its size. However, the magnitude of man's
activities is so great that even the largest lakes can become polluted
if adequate control measures are not taken.
The International Great Lakes Water Quality Agreement, signed
in April 1972, represents a joint commitment by the United States
and Canada to improve the quality of their international waters by
1975. The efforts to implement this agreement through the Interna-
tional Joint Commission and the water pollution control agencies on
both sides of the border hold promise that the quality of the Great
Lakes' environment can be preserved and restored.
Other Efforts to Define Water Pollution Status and Trends
Other efforts to give a better picture of water pollution trends in-
clude projects by the Environmental Protection Agency, the National
Oceanic and Atmospheric Administration, and the National Sani-
tation Foundation.
EPA Eutrophication Study—EPA has initiated a major study on lake
eutrophication—the most important water pollution problem affect-
ing U.S. lakes. The study, which will eventually survey about 1,000
lakes, will assess the extent of eutrophication in each lake, which
nutrients cause eutrophication, and the sources of the nutrients. Data
from the first 200 lakes will be available next year. As one way to sum-
marize the data, the EPA laboratory at Corvallis, Oreg., is trying to
develop a eutrophication index. The EPA study will, for the firsf
time, provide a sound basis for assessing the extent of the eutrophica-
tion problem and the factors that contribute to it.
292
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GUIDELINES AND REPORTS 1245
Water Quality Index—The National Sanitation Foundation has com-
pleted a test of its proposed water quality index on the Kansas River.
Kans. The index has also been successfully tested with data from
seven other states. These pilot applications show the index to be re-
sponsive to changes in water quality. However, several questions,
such as the relationship between index levels and acceptable water
quality for particular uses, will require further testing and applica-
tion of the index before they can be answered. Even if the index
were adopted, lack of data would be a severe problem because the
index requires data on some pollutants which are not measured at
most monitoring sites.
The Sanitation Foundation index incorporates nine parameters:
dissolved oxygen, 5-day biochemical oxygen demand, turbidity, total
solids, nitrates, phosphates, pH, temperature, and fecal coliforms.
Each is assigned a weight, ranging from 0 to 1, depending on its effects
and the level of the pollutant. Both the parameters and the weights
were determined by a panel of 74 water quality experts selected by the
Foundation. The index overcomes the problem of the disparate uses
to which water is put by having one set of weights which takes account
of various uses.
A water quality index has great potential as a management tool. It
can identify progress or lack of progress in pollution abatement, aid
in selecting the location of sampling stations and the frequency of
sample collection, and guide the allocation of fiscal resources among
competing programs. The major asset of such an index, however, is
its capacity to communicate objectively the status of stream quality
and whether it is changing for better or worse.
Refinement of Enviro Control Study—EPA is financing a followup
study to the Enviro Control analysis done for CEQ and discussed in
last year's Annual Report. It will refine the statistical techniques used
to measure water quality trends. It will also try to adjust measure-
ments for the effects of temperature change. It will examine in detail
the location of the monitoring stations used in the CEQ study and
the extent to which location affected the study's results. The study
should be finished this fall.
Ocean Pollution—In recent years there has been growing awareness
of the need to understand the extent and consequences of ocean
pollution. Although pollution of certain estuaries and localized coastal
waters has long been evident, more recently there has been concern
that pollution of the oceans may be occurring on a regional, or even
global, scale.
Several recent studies by NOAA have received widespread public
attention. In January three NOAA cruises reported finding oil resi-
dues in the form of tar balls throughout the Atlantic Ocean. They
also found widespread contamination of the ocean by plastic debris
in the form of sheets, beads, discs, and also bits of styrofoam.12 In
293
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1246 LEGAL COMPILATION—SUPPLEMENT n
addition, thousands of pieces of plastic, ranging from tiny scraps to
lengths of fishnet 100 feet long, were found littering the beaches of
Alaska's remote Amchitka Island. Most of this plastic was believed
to have come from foreign fishing vessels.13
There is a possibility that this plastic debris, lumps of tar, and other
petroleum residues could interfere with some of the basic biological
processes in the ocean, and laboratory investigations are underway to
determine the effects that such pollution will have. Because plastic
does not degrade, once introduced into the environment, it will
remain almost indefinitely. As yet, data indicating the extent and
trends of oceanic pollution are still relatively sparse, compared with
those for inland and localized coastal waters. However, increased
attention is being directed toward this problem at both national and
international levels.
The Marine Protection, Research and Sanctuaries Act of 1972 14
directs NOAA, in cooperation with other Federal agencies, to initiate
comprehensive and continuing programs of research on ocean dump-
ing and ocean pollution. Work is underway within NOAA to estab-
lish environmental baselines, against which possible future trends in
ocean pollution can be determined. Additional work on this problem,
supported by the National Science Foundation as well as other Fed-
eral agencies, should also begin to provide a better understanding of
the extent of ocean contamination.
During 1971-72 the National Science Foundation's Office of the
International Decade of Ocean Exploration (IDOE) carried out
an intensive study of the baseline levels of heavy metals, halogenated
hydrocarbons, and petroleum hydrocarbons in the oceans bordering
the United States.15 Alterations in trace metal concentrations in the
marine environment due to man's activity were found to be re-
stricted to estuarine and coastal areas which are influenced by in-
dustrial, domestic, or polluted river runoff. Only in the case of lead,
which is transported by atmospheric processes, is there an indication
of serious open ocean metal pollution.
The IDOE baseline study found readily identifiable contamina-
tion in the open ocean by synthetic chlorinated hydrocarbons, such
as polychlorinated biphenyls (PCB), pesticides (DDT) and their
metabolites, and petroleum hydrocarbons. PCB, DDT, and their
metabolites were ubiquitous in samples taken from the Atlantic and
Pacific Oceans and the Gulf of Mexico. The highest levels were in
coastal seas, but the open ocean values were high enough to cause
concern. High levels of PCB or DDT were often associated with small
oil or tar droplets which seem to extract the material from the sea
water. These data indicate that petroleum has entered the marine
food chain in both coastal and ocean waters. As in the case of the
metals and chlorinated hydrocarbons, the highest levels of petroleum
were found in coastal seas. Petroleum hydrocarbons were concen-
trated in the surface films where they may constitute a particular
danger for marine organisms.
294
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GUIDELINES AND REPORTS 1247
These observations have stimulated IDOE to initiate two major
research programs, one directed at how these pollutants reach the
ocean and the other at how they affect marine organisms and
communities.
Land Use 16
There is growing consensus that control over land use is probably
the most important single factor in improving the quality of the envi-
ronment in the United States. Land use is a term which encompasses
many dimensions; as we develop indicators for land use problems,
it is essential to be clear about what these problems are.
Land use indicators, like land use regulation, usually focus on
competing uses for the same land. Because each of the competing
uses is likely to serve some socially beneficial purpose, it is often
difficult to interpret indicators in any absolute way. For example, an
increase in agricultural land may or may not be desirable, depending
on the competing demands. There may be a few absolutes—for
example, increases in the amount of unreclaimed surface-mined
land are undesirable—but there are not many. The interpretation
of data on land use changes usually requires a more complex frame-
work.
One concept used in interpreting land use indicators is "carrying
capacity," the intensity of use which, if exceeded, will cause adverse
environmental consequences. When deciding among conflicting land
uses, one must know an area's natural carrying capacity so that the
adverse consequences of exceeding that capacity may be considered.
In many cases, one cannot say that this natural carrying capacity
should not be exceeded because the adverse consequences usually
can be overcome by engineering or other adjustments. Then the
relevant question becomes whether the costs of exceeding the natural
carrying capacity are worthwhile. Or, put another way, is the "con-
version cost" to increase the capacity of land, plus the other costs
involved, less than the anticipated benefits?
A report to the Council by Development Sciences, Inc., illustrates
this view of carrying capacity with the example of Washington, D.C.:
The Potomac River and the land which it drains have a certain
limited natural capacity to deal with human land use patterns.
There are lands of certain soil types and there are water-bearing
areas of specific limited quality and quantity. Before World War
II and the accompanying population growth of the federal
government, the natural cleansing capacity of the river was such
that most human wastes were "treated" by natural forces, and
low density land use pattp-is were sustained without excessive
pollution or threats to the supply of water.
If the land were zoned according to the carrying capacity of
the soil and the river's capacity to handle wastes and supply
295
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1248 LEGAL COMPILATION—SUPPLEMENT n
water, the Potomac could not have sustained the growth in land
use which the demands of the growth in government placed on
the natural environment. Instead, the society paid the "cost of
conversion" from using land in its natural state by applying tech-
nology such as sewage treatment systems and dams and reservoirs
to ensure water quantity and quality for the new population.17
When the natural carrying capacity of an area is exceeded, the
consequent costs can be paid in the form of remedial measures, such as
constructing sewage treatment plants, or in the form of increased
environmental damages, such as water pollution. In the Washington,
D.C., area, some of the costs of conversion clearly have been paid in
the form of reduced environmental quality—more water pollution,
air pollution alerts, and threatened shortages of water, for example.
Given the small number of absolute prohibitions on land uses and
the limitations of the concept of carrying capacity, most land use data
must be put in some type of cost-benefit or supply-demand frame-
work if they are to indicate environmental quality. But in most cases
such a framework and the relevant costs and benefits are likely to
be local or regional. Many land use indicators would have limited, if
any, meaning on a national scale unless they were aggregates of rather
complex local or regional indicators.
For example, there is no national policy against converting agri-
cultural or forest land to residential use, and thus national figures on
such conversions do not indicate whether land use is improving or
deteriorating. To make such an evaluation, one would need to look
at each area where conversion is taking place and evaluate the
demand for housing in the area, the regional need for open space,
the value of the crops or timber produced there, the effect of the con-
version on transportation routes and commercial development, the
methods for disposing of the wastes generated by the residences, and
several other factors. The Federal Government cannot evaluate such
changes on a national basis.
The large number of factors to be considered in making and evalu-
ating land use decisions may mean that computer-based models,
which can simulate the results of alternative decisions, will be a neces-
sary adjunct to a system of indicators. Several projects to develop
such models are underway or have been completed. For example,
the National Science Foundation sponsored development of a na-
tional model linking agricultural policy, land use, and water quality
by Dr. Earl Heady of Iowa State University. NSF is also supporting
work at Oak Ridge National Laboratory to develop regional models
that can be used to determine the environmental impact resulting
from the location of industrial, commercial, residential, and recrea-
tional development. The OBERS model, developed by the Depart-
ments of Commerce and Agriculture for the Water Resources Coun-
cil, projects estimated population, economic activity, and land use
for regions of the United States. It may also be useful for considering
296
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GUIDELINES AND REPORTS 1249
alternative land use policies. The Strategic Environmental Assess-
ment System being developed by EPA is using the OBERS projec-
tions, economic and environmental models, and forecasts of land use
and other changes to estimate the condition of national and regional
environments 10 to 15 years in the future.
Problems of land use in the United States may be arbitrarily classi-
fied into three categories. First, we are concerned about the avail-
ability of certain types of land, such as enough agricultural land to
grow food, adequate open space for recreation in densely populated
areas, and sufficient timberland to meet national pulp and lumber
demands. Second, we need to control development in areas of critical
environmental concern, including areas of particular environmental
value such as wetlands, other rare or valuable ecosystems, and scenic
or historic areas. Such areas also include land which, if developed,
may pose a direct hazard to man: for example, flood plains, steep
slopes, soils unsuitable for development, and earthquake fault zones.
Third, there are types of land use development and practices that
lead to other problems which, in turn, may have adverse environ-
mental consequences. These include unreclaimed surface mining,
practices that lead to soil erosion, urban development patterns which
produce pollution, and the spread of areas impervious to water.
Each of the three categories will be discussed after they are put
in the context of national trends in land use.
National Trends in Land Use
Total acreages for different land uses in the United States are not
very informative. Last year's Annual Report presented such data
for the period 1900-1969. Despite the massive changes that took place
during that period, the aggregate data show little change.18
The U.S. population has become increasingly urbanized, and many
of the most important land use changes and issues occur in metro-
politan areas. Maps of standard metropolitan statistical areas
(SMSA's) published by the Bureau of the Census show an increasing
share of the Nation's land lying within metropolitan areas. By 1970,
13 percent of the land in the contiguous 48 states was within the
SMSA's (see Figure 15).19
It would be a mistake, however, to consider all land in metro-
politan areas as being urbanized. In fact, urban uses accounted for
only about 10 percent of the land within the SMSA's, or about 1.3
percent of all land in the contiguous 48 states (see Figure 16) .20 The
SMSA's are largely statistical artifacts because they are composed of
entire counties and thus include not only cities but also all of the rural
or urbanizing land in the county where the city is located.21 To take
an extreme example, a large portion of the San Bernardino-Riverside
SMSA in California is the Mojave Desert because both the Desert
and the cities are located in San Bernardino and Riverside Counties.
297
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GUIDELINES AND REPORTS
Figure 16
Land Use within SMSA's 1970 for the
48 Contiguous States
1251
Source: Robert C. Otte, "Human Considerations and Land Use," in National Land
Use Policy: Objectives, Components, Implementation (Ankey, Iowa: Soil Conserva-
tion Society of America, 1973), p. 78
The largest category of land within the SMSA's in 1970 was forest
woodland, which accounted for almost one-third of the land area.
One-quarter of the land was devoted to crops. In 1964, the last year
for which data are available, 16 percent of U.S. wheat, 17 percent of
our corn, 60 percent of our vegetables, and 43 percent of our fruits
and nuts were produced within metropolitan areas.22
The various land uses within metropolitan areas do not arrange
themselves into neat geographical patterns. Because of the way
American cities have developed over the past 50 years, urban uses are
widely interspersed with other kinds of uses. This intermixture of dif-
ferent uses has come to be known as urban sprawl. The pattern is not
just a phenomenon of our newer cities. For example, Figures 17 and
18, based on data from aerial photographs, show the scatter of built-
299
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1252
LEGAL COMPILATION—SUPPLEMENT n
Figure 17
Boston, Built-up Land Use 1970
Figure 18
Boston, Forest Land Use 1970
Source' Department of the Interior, U S Geological Survey, Census Cities Experi-
ment, based on research at Dartmouth College as part of the U.S. Geological
Survey-National Aeronautics and Space Administration Geographic Application
Program
300
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GUIDELINES AND REPORTS
1253
up areas and forest lands surrounding Boston, one of our older cities.
The figures do not show the entire SMSA but cover an area of about
1,600 square miles. Figure 19, taken from an earth-orbiting satellite,
shows the same pattern for the Baltimore-Washington megalopolis.
Given the mixture of urban and other uses, population density and
concentration figures may provide a better overall picture of urbaniza-
tion than metropolitan land use data. One way to show the increased
concentration of the U.S. population is depicted in Table 5. It shows
Figure 19
The Baltimore-Washington Megalopolis*
1 Baltimore is at the upper right hand corner of the photograph, Washington, D.C.,
at the lower left. The dark areas are woodland or water; the light areas are urban
or agricultural.
Source: Earth Satellite Corporation
301
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1254 LEGAL COMPILATION—SUPPLEMENT n
that the portion of the total U.S. population living in the most popu-
lated 5 percent of U.S. counties increased from 56.8 percent to 60.8
percent between 1950 and 1970. This increased proportion of popu-
lation, combined with the significant rise in total population, means
that many more Americans are living in dense urban areas than ever
before.
Table 5 also shows that the top 1 percent of U.S. counties declined
in the proportion of population that they contained, revealing a
second major facet of U.S. urbanization—although more and more
people live in large urban areas and although the concentration of the
total U.S. population is intensifying, the population density within
metropolitan areas is declining. The land area occupied by urbanites is
growing faster than the number of urban dwellers.23
While becoming more and more urbanized, we also have been
changing our patterns of urban living. "Urban" is no longer just an
apartment in the downtown area of a city. It is also a ranch-style
home in the suburbs. Most residential development is taking place
outside the central city and is of much lower density than past
development. As people move to the suburbs, industrial and commer-
cial development is shifting to outlying areas, and the downtown is
being renewed at lower densities, with more open space, more park-
ing, and more freeways.
The population of central cities rose only 5.2 percent between
1960 and 1970, while the metropolitan population outside the central
city jumped 28.3 percent.24 By 1970, the population living in the
suburbs exceeded the central city population by approximately 10
percent (54.5 percent to 45.5 percent). This shift in population
growth continues.25
Figure 20 clearly shows this change in the pattern of urbanization
for four cities. Their density curves are flattening, reflecting decreased
population in the downtown area and increased development in the
suburbs. The main cause of this trend has been the growing reliance
on automobile and truck transportation, which has stimulated a low-
density pattern of development.
The central city is far from dead, as the discussion in Chapter 1
indicates, and the highest population densities are still centered there.
(See the population map for metropolitan Washington, Figure 21.)
However, the general trend clearly shows that most people who have
a choice, generally those who are white and who have money, settle
in the suburbs. The result has been a widening disparity between
income levels in the suburbs and the central city. This is dramatically
shown by the geographic distribution of median family income in the
Washington area (Figure 22).
In a study conducted for the Council, the Earth Satellite Corpora-
tion examined changes in land use patterns in five cities: Baltimore,
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GUIDELINES AND REPORTS 1255
TaWtt . • . .- . .
Measures of Concentration of Population
in the United States for 1910-1970
Proportion of population
ftroparton Including Independent cities.
*-'&tg Would mean equal distribution and unity would be maximum concentration
or inequality.
'
Source: Rural Development: President's Annual Report to the Congress on Govern-
ment Services to Rural America Washington, 1972), p. 9.
Denver, Kansas City, Los Angeles, and Riverside, Calif. The major
land use trends for Denver are depicted in Figure 23. They reflect
many of the population changes noted above.
All five cities show the same type of residential land use expansion:
outward radial growth at low density along transportation lines,
followed by filling-in of the space between the highways. In the
older cities, like Baltimore and Kansas City, the outward expansion
has left behind large areas of urban decay, as those who could move
did and public investment was not adequate to compensate for the
lack of private investment to maintain and renew the inner city.
Commercial land use in the five cities exhibits many of the same
tendencies toward spatial expansiveness. Retail firms in the central
business district must often compete with outlying satellite commer-
cial centers. Where they do, the growth of the central business dis-
trict has not kept pace with the population growth of the region.
Nearly every city experienced some growth in the central business
district. But this has been due to an increase in offices serving the
region, thus offsetting the loss of more localized activity. That is,
the downtown area has become more region-serving and less
city-serving.
Industrial growth has been more evenly divided spatially than
303
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1256
LEGAL COMPILATION—SUPPLEMENT n
Figure 20
Composite Population Density Curves
40-
30-
20-
10-
40-
^j
E 30-
10-
40-
30-
o
.c
I-
10-
40-
30-
20-
10-
Baltimore
1950
1960
1970
Boston
Denver
Los Angeles
01 3 57 9 11 13 15 17 19 21 23
Distance from central business district in miles
Source: Earth Satellite Corporation
residential and commercial growth. While industrial land use in the
outlying areas has grown, there also has been either growth or no loss
of industrial activity in the downtown area. Most of the industries
located in the central city apparently are tied there because of heavy
304
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GUIDELINES AND REPORTS
1257
Figure 21
Washington, D.C., Metropolitan Area
Population Density, 1970
Persons per square mile
d less than 1,200
1,200-2,199
2,200-4,699
d 4,700-7,699
7,700-11,999
12,000-17,999
18,000-30,999
31,000 and more
Source © 1972 Jean-Claude Thomas, Catholic University of America, Washington
Center for Metropolitan Studies, in "Beltway Emerges as 'Mam Street' of Metro
Area as Some Suburban Densities Increase to Urban Levels," Metropolitan Bulle-
tin 8-3,"March 1972
capital investment, transportation, and communication needs or
because they rely on central city labor markets.
Land Availability
A few land uses have such obvious social value that a simple indi-
cator of their availability might be useful for evaluating trends in
environmental quality. However, even for these uses, a truly mean-
ingful indicator should include supply-demand considerations. Agri-
cultural land for food production and recreational open space are
two land categories which could be measured in terms of availability.
305
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1258
LEGAL COMPILATION—SUPPLEMENT n
Figure 22
Washington, D.C., Metropolitan Area
Estimated Median Family Income, 1970
D less than $6,000
$6,000-8,999
$9,000-11,999
• $12,000-14,999
• $15,000-17,999
• $18,000 and more
B3 estimated from
limited data
Source g 1971 Jean-Claude Thomas, Catholic University of America, Washington I
Center for Metropolitan Studies in "Highest Income Earned by Families Outside
Beltway, Lowest by D.C. Residents, Estimates Show," Metropolitan Bulletin 7-1
October-November 1971
Agricultural Land—The amount of land in the United States used
for growing crops has decreased for more than 20 years. We now plant
9 percent less land in crops than in 1950, but we have increased farm
output by 40 percent.26 We have been able to produce more on less
land because of new technologies—mechanization, improved varie-
ties of plants and breeds of animals, chemical pesticides, and synthetic
fertilizers.
The Economic Research Service of the Department of Agriculture
has made various projections of the need for and availability of crop-
land in the year 2000 and beyond. Using fairly conservative assump-
tions for productivity and population growth, the OBERS report to
the Water Resources Council predicted that approximately 310 mil-
lion acres of cropland must be harvested by the year 2000 to grow
enough crops to meet U.S. domestic and export needs. This figure
306
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GUIDELINES AND REPORTS
1259
Figure 23
Land Use by Distance from the
City Center: Denver
40-,
20-
/Single Family Residential
i i ii i i 'i r
1 7
' I I
13
Commercial
-T--T
13
80-,
60-
20-
Industrial, Transportation, Communication
i i i i i i i i i
3 5 7 9 11
Distance from central business district in miles
13
Source: Earth Satellite Corporation
compares to 287 million acres of cropland in 1964 and 333 million
in 1954.2T
For some time, projections of need for agricultural land have indi-
cated no foreseeable shortages, but within the past year world demand
for U.S. agricultural products has increased substantially. This is
partly due to unfavorable weather in the Soviet Union, China, India,
and elsewhere. Another factor is a decline in the fish catch off the
307
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1260 LEGAL COMPILATION—SUPPLEMENT n
coast of South America and a sharp decline in the production of fish-
meal for livestock feeding. The result is an increased demand for
soybeans as an alternative source of protein. A third factor has been
the steady upgrading of diets in other countries, particularly in West-
ern Europe and Japan.
All this has had an effect on demand for U.S. farm products and
on use of cropland in the United States. In recent years, increases in
exports have been largely offset by increases in output per acre. Be-
tween 1960 and 1971, farm exports represented the production of
about 68 million acres on the average. This acreage equivalent varied
from 77 million acres in 1963 to a low of 54 million acres in 1968. In
1971, 62 million acres was used for exported products, and the figure
jumped to an all-time high of 85 million acres in 1972.28 Although
some of the conditions that have increased exports may be transient,
others may continue, resulting in the need to use more land to pro-
duce agricultural products.
The OBERS projections assume a continuing increase in produc-
tivity per acre. One can envision circumstances in which such an
assumption would not hold. The use of some pesticides has already
been restricted, and further restrictions, as well as restrictions on
the use of chemical fertilizers, could be imposed. A series of crop
diseases could cause widespread devastation. But the likelihood of
such events severely reducing productivity is probably less than the
likelihood of new breakthroughs in agricultural technology—improved
biological pest control, dramatic advances in seed genetics, and fabri-
cating food from basic raw materials, for example. On balance, there
seems little cause for concern over the availability of cropland, al-
though a sharp rise in food exports could cause some short-term
problems.
Open Space and Parks—There is general agreement that maintain-
ing adequate open space is desirable, particularly in urban areas.
However, the widely differing ideas about how much open space is
desirable and achievable within urban areas and the lack of con-
sistency of definitions used to measure open space make it very dif-
ficult, if not impossible, to establish indicators for open space.
Although urban open space is usually thought of as providing
recreation, it serves many other purposes as well. Open space can
provide beauty, privacy, and variety; moderate temperature; and
create a sense of spaciousness and scale. It can protect a water supply;
provide a noise and safety buffer zone around an airport; or substi-
tute for development on unsuitable soils, in flood plains, or in earth-
quake zones.
An important factor, which is related to but separate from the
availability of open space, is the availability of recreational facilities.
Once again there are no national standards because of the widely
differing circumstances in individual communities concerning the
characteristics of the population, climate, and terrain. Differences
308
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GUIDELINES AND REPORTS
1261
Figure 24
Parks and Recreation Land Use vs. Density:
Denver, Kansas City, and Riverside
24
22
18
14
10
6
2
0
22
18
14
10
6
2
0
10
Denver
Kansas City
Riverside
/A ^---^ Including Golf Courses
/ S \ ""-N.
^ Excluding Golf Courses
1 3 5 7 9 10
Distance from central business district in miles
Population density, 1,000 persons per square mile
Acres of parks and recreational land per 1,000 persons
Source: Earth Satellite Corporation
among communities in the amount and distribution of open space
and recreational facilities depend upon the amount felt desirable
by political and community leaders, availability and cost of land, the
extent to which the private sector provides leisure facilities, the in-
come of the population, the region, the population density, and other
characteristics of a community.
Various agencies have established goals or standards for how much
309
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1262 LEGAL COMPILATION—SUPPLEMENT n
open space is desirable, but there is a wide discrepancy among the
standards. The American Society of Planning Officials has recom-
mended 10 acres per 1,000 people for smaller cities and 4 acres per
1,000 people for larger cities. The State of Missouri recommends 55
acres per 1,000 people; the State of Oklahoma recommends 33.29
Given the factors that determine demand, it is unlikely that any
single national standard can or will be established.
Data on the existing availability of public open space come from
local sources, usually from a multitude of agencies in any single
urban area. The data vary widely in accuracy and are based on dif-
ferent definitions. For example, cemeteries, country clubs, and school
playgrounds are considered public open space in some areas but not
in others.
Despite these problems, studies of open space in particular cities
can tell us something about environmental quality. For example,
Figure 24 shows park acreage compared with population density in
Denver, Kansas City, and Riverside, Calif. In Kansas City, park
acreage per 1,000 persons is lowest where the population density is
highest. Denver parkland is more closely correlated with population
distribution. Both density and park acreage are low in Riverside,
probably because of the greater reliance on private open space around
homes.
Park acreage is comparatively large in the outlying areas of both
Denver and Kansas City, reflecting the low acquisition costs for
park land in the outlying, less densely settled areas of a city. In one re-
spect, acquisition of such outlying land is an example of forethought
and planning, but it may also mean neglect of those areas of the city
most in need of open space. A small park in a very densely populated
area may be much more valuable to the public than a large park in
a sparsely settled area.
The large number of variables that determine supply and demand
of urban open space and the variety of uses which it serves make
the development of open space indicators a complex and perhaps
unachievable undertaking. Insofar as the focus is on recreational use
of open space, the simple measurement of park acreage is an inade-
quate and perhaps deceptive indicator. The most important vari-
ables concerning recreational open space in urban areas are the
availability of recreational facilities and how much they are used.
Thus the many factors that determine demand for public recreation
facilities must be considered along with the supply of open space.
Areas of Critical Environmental Concern
Areas may be of critical environmental concern because they serve
a vital ecological, cultural, biological, or aesthetic function. A good
example of this type of area is the Nation's wetlands. Areas are also
of concern if they pose dangers when developed. Development in
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GUIDELINES AND REPORTS 1263
flood plains and development on unsuitable soils are examples of this
type of problem,
Wetlands—Wetlands are a vital natural resource, characterized by
fragile biological and ecological regimes. Some serve as important
recharge areas for replenishing ground water. Coastal wetlands may
provide a natural barrier that prevents subsurface fresh drinking
water supplies from mixing with undrinkable ocean waters. In many
shore areas, the mud, sand, and vegetation of wetlands create na-
tural buffer zones to dampen the force of storm-driven waves, thus
providing a barrier for areas farther inland. Wetlands are also prime
habitat and breeding grounds for both aquatic and airborne wildlife;
an estimated 60 to 70 percent of fish caught in U.S. coastal waters,
either commercially or for sport, would not be there if at one time
they had been unable to find shelter, safe spawning, or nutrients in
a wetland.30 Further, coastal wetlands are unique in appearance, con-
trasting sharply with both developed and other natural areas; they
offer a high degree of diversity in the natural landscape.
Because of their beauty and their accessibility to water transporta-
tion, wetlands have always been targets for development. In the past,
their development has been abetted by government. The Federal
Swamp Land Acts of 1849, 1850, and 1860 paved the way for the
transfer of nearly 65 million acres of wetlands in 15 states from Fed-
eral to state administration in order to expedite their drainage.31 In
recent years, however, the Federal Government and several coastal
states have proposed or enacted legislation to ensure that future
wetlands development will be consistent with the ecology of the wet-
lands environment. (See the land use section of Chapter 5.)
Figure 25, which shows an area of New Jersey south of Raritan Bay,
demonstrates dramatically five types of development that can impinge
on wetlands: A) a saline wetland extends from the bottom left of the
photograph to the upper right; it has been extensively ditched in an
effort to control mosquitoes; B) the Garden State Parkway is seen
cutting across the wetlands; C) in three areas, as noted, surface min-
ing is evident; such activities have caused erosion problems and have
affected the viability of the wetlands and local water quality; D) in
the center left, a solid waste disposal site imperils both land and
water quality; suspended sediment runoff from cleared areas is ap-
parent on the original photograph; and E) high-density housing de-
velopments are encroaching onto the wetlands in the upper right of
the photograph. New Jersey is one of the States that has enacted
legislation to control wetlands development.
The study conducted by the Earth Satellite Corporation for the
Council examined three areas to trace patterns of urban growth in
coastal wetlands: Ocean County, N.J.; Orange County, Calif.; and
Hillsborough County, Fla. In the Ocean County study area, several
major high-density residential developments on which construction
began in the 1960's consumed 14 percent of the wetlands area and
311
-------
1264
LEGAL COMPILATION—SUPPLEMENT n
Figure 25
Development in New Jersey Wetlands
Source: Earth Satellite Corporation
affected a substantial additional area in the wetlands and shallow
coastal waters before State legislation halted them in 1970. The rate
and character of development in Florida were similar.32
In Southern California, the extent of coastal wetlands is more lim-
ited than in the East. The area studied contained three tidal lagoons.
By 1947, they had been contained by dikes and one had been ditched
and diked for intensive oil production. By 1972, another lagoon had
disappeared, replaced by high-density residential development.
Development on Flood Plains—Urbanization of flood plains has
been a continual process in the United States. In many large cities the
locational advantages of easy transportation, power supply, and waste
disposal have favored development on the flood plains. All too often,
such development has taken place without adequate consideration of
the associated hazards and problems.
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GUIDELINES AND REPORTS 1265
Historically, the flood plains were intensively developed because
of the need of industries to be near water. In more recent years, the
pressure of increased population on land resources has been a major
factor leading to encroachment on flood plains. Land availability
figures prominently in the use or nonuse of flood plains, although
even in some places with declining populations, new development
takes place in the flood plain. When city populations grow to be-
tween 5,000 and 25,000, the pressure to use vacant land begins to
encourage development in the flood plains.33 Industrial and trans-
portation uses have usually accounted for the most significant
development. But with further growth of urban areas, residential de-
velopment in flood plains also becomes significant.
Three areas were picked in the Earth Satellite study to illustrate
the changes in flood plain land use characteristics between 1960 and
1970: Baltimore, Denver, and Kansas City. In each city, residential
development in the flood plains increased substantially over the 10-
year period, even encroaching on tributaries and upstream areas.
Industrial and commercial uses increased only slightly, apparently be-
cause many new businesses preferred more accessible suburban
locations.
Land uses appropriate for flood plains, especially public parks,
increased in Kansas City and Denver. Both cities have encouraged
open space conservation in flood plains and other environmentally
hazardous areas. However, neither city has prevented residential de-
velopment on the flood plain.
In the Denver urbanized area, the estimated portion of flood plain
land in residential use increased from 9.2 percent in 1960 to 29.9
percent in 1970. This 225 percent increase in residential use com-
pares to a 50 percent increase for the region as a whole. Part of this
increase in flood plain development was due to the beginning of
construction of the Chatfield Dam after major floods hit the area
in 1965.
Despite the fact that the Federal Government has funded flood
protection and prevention projects since 1936, national losses from
floods have increased because flood plains have been put to resi-
dential and other intensive land uses. Such losses now amount to a
national average of almost $2 billion annually.34 Although Federal
flood control funding was implemented to protect already existing
properties, it has had the effect of encouraging new development
projects which increased flood plain occupancy.
The Army Corps of Engineers—the primary agency responsible
for building Federal flood control projects—has recognized the prob-
lem of flood plain development. It has established a Flood Plain
Management Services Program, with units in each of the 47 Corps
field offices, to encourage and assist communities that desire to con-
trol land use in flood plains. The Federal Government has taken a
number of other steps to deal with flood plain development. For
example, Executive Order 11296 calls on all agencies to recognize
313
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1266 LEGAL COMPILATION—SUPPLEMENT n
flood hazards in their construction and .grant programs. (See the dis-
cussion of proposed new legislation in the land use section of Chap-
ter 5.)
As we noted earlier, most land use questions must be considered
in a supply-demand or cost-benefit context. In a few cases, the ad-
vantages of locating on a flood plain may outweigh the intermittent
cost of damage. There can be little question, however, that there are
many locations where millions of dollars could be saved by locating
high-value industrial, commercial, and residential developments out-
side the flood plain and developing the land along the rivers for parks
and other low-density uses.
Development on Unsuitable Soils—Some of the problems discussed
above, such as erosion and flooding, are due in part to the type of
soil on which development takes place. Development on unsuitable
soils can also cause a variety of other problems—from water pollu-
tion by septic tanks to destruction of buildings by landslides.
The nature of the soil differs widely across the United States, and
the types of problems that characterize development on unsuitable
soils vary from area to area. Three areas with quite different soils
were examined in the Earth Satellite study: Montgomery County,
Md.; Hillsborough County (Tampa), Fla.; and Ventura County,
Calif. Within each of these counties some soils are well suited for
development and others are not.
In Montgomery County, the most common soil problems are shal-
low bedrock which results in water pollution by septic tanks, poor
internal soil drainage which causes basement flooding, and "shrink-
swell" properties in some of the clays which can cause postconstruc-
tion damage to building foundations, roads, and other installations.
In Hillsborough County, the most common kinds of unsuitable soils
are those with a high water table. In such soils the pollution of ground
water by septic tanks and the likelihood of flooded basements are
distinct hazards. In Ventura County, the main limitations on urban
uses are steep slopes, susceptibility to erosion, internal drainage prob-
lems, and the hardpan or water table depth. Within the Southern
California valley and mountain coastal region, where Ventura County
is located, the serious land-related hazards to urban uses are damage
from floods, erosion, and landslides. Construction on earthquake
faults also poses obvious dangers.
In each of the three study areas, the Earth Satellite study divided
the soil areas into four categories of suitability for development: good,
fair, poor, and very poor. The amount of development taking place
in each category was then determined.
In Montgomery County, as much development took place on un-
suitable soils as on suitable soils (see Table 6). Recent urban expan-
sion appears to have proceeded without much consideration of soil
properties that relate to urban use. It also appears that development
314
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GUIDELINES AND REPORTS 1267
Development by Class of Soil, Montgomery County, Md.
[Mileage zone from city center q < " . ' ;-
8,5 H.O 13.S 16.0 -MMS -n&
• ', Ptroentof soils in urban use— 1957,. " • '
:' -QttBd aact «r soils • " 83 59 27 10 4 ' _'!
l*«r. anrf **ty poor soils • 48 32 24 7 '3 "I
• , fr*K?enl«f artiste urban use— 1971 ,- . '-
Qo«t«
-------
1268 LEGAL COMPILATION—SUPPLEMENT n
that new homes were not built on soils unsuitable for septic tanks.35
The Soil Conservation Service estimates that soil surveys cost only
50 cents to $1 per acre, so the cost-benefit ratio of making and using
such surveys to guide development is very high.
Land Use Effects
The broadest, and probably the most significant, land-related prob-
lems are secondary consequences of land use patterns and practices.
These patterns and practices create problems such as pollution,
which in turn endanger man and his environment.
Patterns of land use are a major determinant of pollution levels in
any area. The greater the distances that must be traveled between
home, workplace, and shops, the more air pollution will be generated
by automobile travel. Significant water pollution problems can be
generated by development on lakeshores or by placement of septic
tanks in unsuitable soil. Many forms of industrial pollution may be
reduced by siting a plant so that its wastes can be productively utilized
by a neighboring plant. For all types of pollution the degree of con-
centration of principal pollution sources is a key factor in the level of
pollution to which the population is exposed.
Land use patterns also play a significant role in the consumption
and availability of natural resources. Pollution often represents mis-
placed resources. Thus, for example, the added air pollution gen-
erated because of longer travel distances also means wasted gasoline.
Land development can lead to reduced water supply (by building
over ground water recharge areas, for example), reduced soil capabil-
ity for growing crops (by erosion and poor farming practices), and
reduced ability to extract mineral resources (by building in areas
where such resources are found).
The Council, in cooperation with EPA and HUD, is conducting
several studies to determine more precisely the secondary impacts of
development on the environment. These studies include the impacts
of highway and sewer construction, second-home developments, and
the costs of alternative residential development patterns.
Three problems are covered in this section—erosion, unreclaimed
surface mining, and the increasing land area covered by impervious
surfaces such as roads, buildings, and parking lots. Erosion is an en-
vironmental problem arising from a variety of land use practices;
surface mining is a particular type of land use which gives rise to a
number of environmental problems; impervious surfaces are a char-
acteristic of all types of urban development. Thus each is a different
type of land use issue, but each represents patterns of development
which can create adverse environmental impacts.
Erosion—Each day huge amounts of soil in the United States are
washed off the land into rivers and streams. The results are a reduc-
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GUIDELINES AND REPORTS 1269
tion in quality of the remaining soil and water pollution in the form
of sediment, nutrients, and other contaminants attached to the
sediment.
The Soil Conservation Service (SCS) estimates that more than 3.5
billion tons of soil is lost each year through erosion from the ap-
proximately two-thirds of U.S. land that is privately owned. About
40 percent of this soil becomes waterborne sediment in streams.36
Although no fully accurate data are available, it appears that total
soil erosion losses have been sharply reduced in recent years. SCS
considers cropland adequately treated against erosion if soil loss from
the land is less than 5 tons per acre per year. It estimates that soil
loss from properly treated pastureland averages less than 2 tons per
acre per year; from rangeland, about 1.5 tons per acre per year; and
from forest land, about 0.5 tons per acre per year. The portion of
privately controlled land which is adequately treated to minimize
erosion has risen from 35 percent in fiscal year 1965 to over 50 per-
cent in fiscal year 1972.37 However, this measure of overall progress
does not take into account such major problems as huge sediment
losses at suburban construction sites which can cause severe local
water quality problems.
The dimensions of the erosion problem may be seen from Geologi-
cal Survey data on sediment discharged to the oceans.38 Each year,
on the average, more than 490 million tons of sediment, 185 tons for
each square mile of the conterminous United States, washes into the
oceans. Fourteen million tons is discharged to the Atlantic Ocean,
378 million tons to the Gulf of Mexico, and 99 million tons to the
Pacific Ocean. If this sediment were transported by train, it would
fill an average of 27,000 boxcars per day. These figures underestimate
the amount of soil that is eroded, because in many areas reservoirs
and diversions may trap up to 75 to 95 percent of the sediment. How-
ever, it should also be kept in mind that there is a significant amount
of sediment that occurs naturally and that is probably uncontrollable.
Despite the staggering size of these figures, it appears that the
amount of sediment discharged to the oceans has lessened over the
past years. No overall figures are available, but it would appear, for
example, that the average annual suspended sediment discharge
carried by the Mississippi River to the Gulf of Mexico has been
reduced by about 30 percent during the past 100 years. The annual
sediment discharge of the Colorado River has fallen from 234 mil-
lion tons during 1911-16 to 152,000 tons during 1966-67. This dra-
matic reduction in the Colorado is due largely to the construction
of reservoirs which trap the sediment and to diversion of more water
for irrigation. Improved land use practices have also helped, but
much of the sediment has simply been retained upstream rather than
carried to the oceans. The reservoirs and irrigation, of course, may
create or aggravate other problems, such as salinity.
It is not known whether it is better to have the sediment trapped
behind dams or to have it flow to the oceans. Both situations are
317
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1270 LEGAL COMPILATION—SUPPLEMENT n
undesirable, and the key goal is to reduce the amount of sediment
which gets into rivers in the first place. It appears that progress has
been made in reaching this goal.
Surface Mining—Surface mining unaccompanied by reclamation
has many serious environmental consequences. It can cause severe
erosion, pollute water with acid drainage, cause aesthetic blight, and
destroy land for other productive uses unless adequate reclamation is
undertaken. In last year's Annual Report, we indicated that the
acreage being surface mined in the United States is increasing rapidly.
Current energy supply shortages and the rising demand for low sul-
fur coal to meet the 1975 deadline for Federal air quality standards
make it likely that surface mining will grow at an even faster rate.
About 75 percent of the country's economically strippable coal re-
serves lies in 13 states west of the Mississippi, and it is likely that large
new western areas will be opened to mining.39 How much will be
reclaimed depends heavily on the effectiveness of regulation at all
levels of government.
New monitoring technology should be a major help in the enforce-
ment of surface mining laws and in keeping track of the problem.
Figure 26 shows the rapid increase in surface mined area which has
occurred in a portion of southern Indiana. It also shows the
potentially great value of earth-orbiting satellites to monitor environ-
mental problems. The map is based on pictures taken from the
ERTS-1 satellite, which photographs the entire United States once
every 18 days. Such satellites can be used for this type of compara-
tively small-area analysis as well as for the type of macroscale picture
reproduced in Figure 19.
Impervious Surfaces—As urban development spreads, buildings,
streets, and pavement cover land where water once percolated into
the soil, rendering the urban surface increasingly impervious to
rainfall. This means much faster and greater water runoff, which
increases the likelihood of erosion and flooding. Impervious surfaces
can reduce urban water supply by decreasing the flow of water to
natural aquifers. They can also impair water quality by increasing
the amount of water discharged directly into a stream without
treatment.
In many urban areas, small creeks or rivers have become major
flood hazards. Because so much of the land around them is covered
with concrete, very little of the rain from a storm is absorbed into the
ground. Instead, it is channeled directly into the river. Rock Creek in
Washington, D.C., is a good example of this phenomenon. A study by
the U.S. Geological Survey estimated that if 80 percent of an area
is sewered and 60 percent is covered by impervious surfaces, the water
runoff occurring in the average once-a-year flood will be more than
four times greater than if none of the area were sewered or im-
pervious.40
318
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GUIDELINES AND REPORTS
1271
Figure 26
Mined Land Inventory Map,
Pike, Warrick, and Gibson Counties, Ind.
Area strip mined prior to 1968. (Data
from the Indiana Geological Survey
Regional Geologic Map No 3.)
Areas mined since 1968. Mapped from
ERTS-1 imagery.
*£»
VANDERBURGHCol
Source: Earth Satellite Corporation and the Indiana Geological Survey, Application
of ERTS-A Imagery to Fracture Related Mine Safety Hazards in the Coal Mining
Industry, prepared for the National Aeronautics and Space Administration under
contract #NAS5-21795
A combination of impervious surfaces and inadequately designed
storm sewers can also cause local, intra-urban flooding. Although a
serious problem, it has received little attention. Especially in older
cities, such as Baltimore, more flood damage incidents occur from
inadequate drainage within the city than from rivers overflowing their
319
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1272 LEGAL COMPILATION—SUPPLEMENT n
banks. Forty percent of the 800 reports to the Office of Civil Defense
and Emergency Preparedness of damage from Hurricane Agnes and
another major Baltimore flood in 1971 involved flooded basements
where drains backed up, raw sewage collected, and property damage
and health hazards resulted. The vast majority of the other 60 per-
cent was connected with wind and rain water damage. There were
few reports of damage caused by running water from streams.
One might think that newer suburban developments, because they
are of lower density, would contain less impervious surface. However,
a study of Riverside, Calif., indicates that this may not be the case.
Almost 60 percent of the built-up land area in Riverside is paved or
covered by buildings, and almost one-third of the built-up area is
more than 90 percent impervious. Wider streets, more parking area,
and lower and broader buildings more than compensate for the lower
density.
Clearly many of the problems that we have discussed are closely
interrelated. More impervious surface, for example, may make flood
plain development more hazardous and may increase erosion. The
three categories of problems—land availability, areas of critical
environmental concern, and land use effects—interact with each other
in numerous and complex ways. Their interactions reflect the com-
plexity of land use problems and the difficulty of developing satis-
factory land use indicators.
Land Use Indicators
The discussion so far illustrates the importance of land use in
determining environmental quality. But it also demonstrates the
difficulty of establishing a set of national environmental land use
indicators.
Land use policies, whether at the local, state, or Federal level,
are designed to accommodate many conflicting and often poorly
defined social goals. These include economic profit, suitable living
conditions at reasonable prices, aesthetic and environmental improve-
ment, and siting of necessary facilities such as roads, industry, and
powerplants. Unlike air and water pollution programs, the goals of
land use programs and policies do not lend themselves to simple de-
scription or to indicators for which the desired direction of change is
obvious.
The context of land use conflicts and decisions is usually local or
regional, not national. Construction of housing on agricultural land
may be desirable in one city but not in another. Steep slopes or earth-
quake faults are problems for some regions of the country but not for
others. Large parks may be a major factor in the environmental
quality of Washington, B.C., but they are not what attracts people to
midtown Manhattan. In addition, the basic regulatory authority over
land use rests with state and local governments.
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GUIDELINES AND REPORTS 1273
Yet it is possible to develop some indicators of land use and envi-
ronmental quality. For uses such as unreclaimed surface-mined land
and wetlands, simple acreage increases or decreases have meaning.
Some land use problems will be reflected in other environmental
indicators. For example, a significant increase in erosion may show
up as increased water pollution from sediment. If automobile-related
air pollutants increase despite emission controls, land use patterns
must clearly be examined.
Some land use decisions, such as the siting of airports, powerplants,
and deepwater ports, are becoming questions of national concern.
The Federal Government owns about one-third of the land in the
United States, and the use of this land will be determined by national
policy. But the majority of land use decisions must be made in a local
or regional context because both the costs and benefits of the decisions
are primarily local or regional. Insofar as national indicators are
developed, they will have to be aggregated from a series of local
indicators.
Land use, for the most part, is simply the culmination of a large
number of individual decisions about how to allocate space. But like
the state of the economy, which is also a cumulation of many un-
coordinated decisions, land use can be guided so that the outcome
is more consistent with the public interest. If such guidance is to be
effective, there must be agreement on what constitutes satisfactory
land use before indicators can be developed to measure whether the
use of land is being better regulated. While we have identified above
certain areas for which national indicators would be appropriate,
most measures or indicators will have to be developed and applied
primarily by local, State, and regional authorities.
Population
Population size is clearly one of the major factors underlying many
environmental problems. Rapid growth in population provides im-
petus for growth in GNP and for the development of new tech-
nologies as well as increasing the demand on natural resources.
In 1972, for the first time in the Nation's history (see Figure 27),
the total fertility rate (the number of births that a woman would
have in her lifetime based on the birth rate occurring in a specified
year) dropped below the replacement level (the level of fertility
required for the population to replace itself exactly under projected
mortality rates and in the absence of immigration). The total fertility
rate was estimated at 2.0 in 1972, compared to the replacement level
of 2.1.
The birth rate began to decline in the late 1950's. After leveling
off in the 1968 to 1970 period, it has continued its sharp decline. This
trend is most encouraging, but it must be kept in mind that the
national birth rate has fluctuated sharply in the past. Thus, it cannot
321
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1274
LEGAL COMPILATION—SUPPLEMENT n
Figure 27
Total Fertility Rate, 5-Year Averages
1920-1959 and Single-Year Data 1960-1972
£
5
>•
'•c
4.0 i—
3.5
3.0
2.5
2.0
O- Estimated
I
I
I
1920 1925 1930 1935 1940 1945 1950 1955 1960 1965 1969 1972
Source: Department of Commerce, Bureau of the Census, Special Studies, Fer-
tility Indicators: 1970, Series P-23, No 36, April 6, 1971, p. 9. Estimates for 1971
and 1972 from unpublished Bureau of the Census data
be predicted how long the current trend will continue.
Responding to the recent decline in fertility and to the sharp
decline in the birth expectations of young wives, in December 1972
the Census Bureau issued revised projections of the U.S. population.
The current U.S. population is estimated at 210 million. Previous
projections had estimated the population level in 2020 at between
307 million and 447 million.41 The new figures revise these estimates
downward to a range of 264 million to 392 million by 2020 (see
Figure 28).
Even with the current low birth rate, the U.S. population is
increasing and is likely to continue to increase for several decades
because of the proportionally large number of women of child-
322
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GUIDELINES AND REPORTS
1275
Figure 28
Projection of Total Population,
1972-2020
Millions of persons
400
350
300
250
200
Fertility Assumptions
(Average number of births per woman)
Series C = 2.8
' Series 0 = 2.5
Series E=2.1
Series F = 1.8
392,030
351,368
297,746
264,564
r
1972
1980
1990
2000
2010
2020
Source: Department of Commerce, Bureau of the Census, Population Estimates
and Projections, Series P-25, No 493, December 1972, p. 1
bearing age in the population. Assuming the lowest Census Bureau
projection, there will be 40 million more people in the United States
in 2000 than there are now.
Other industrialized nations are experiencing declines in the birth
rate. But in many less-developed countries, which account for the
bulk of the world's population, birth rates continue at high levels,
often substantially negating hard-earned economic growth. At the
current rate of growth, world population will double in less than 40
years. This will mean a staggering 4 billion additional people to feed,
clothe, and shelter.
Summary
At some time in the distant future it may be possible to aggregate
all aspects of environmental quality and issue a definitive pronounce-
323
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1276 LEGAL COMPILATION—SUPPLEMENT n
ment that, for example, the quality of the environment improved
3.68 percent during the past year. Such a statement is not possible
now, and, even if it were, it would not be very informative. The
environment encompasses too many diverse aspects to make any
single overall expression of quality meaningful.
Even within the discrete areas discussed in this chapter, generaliza-
tions are not easy. There are wide variations in the type and severity
of problems among different geographical locations. For any one
aspect of the environment, some problems may be lessening and
others worsening. For example, the problem of water pollution from
nitrates may be getting worse while water pollution from sediment
may be showing improvement. There is also the question of relating
environmental trends to baselines. Although there may be steady im-
provement in a particular aspect of the environment, the magnitude
of the problem may still remain substantial. Conversely, there may
be deterioration in some problem area; yet the quality of the environ-
ment may still be good.
In both air and water pollution, major obstacles still stand in the
way of obtaining adequate data on national status and trends. But
perhaps for the first time, there is good reason to expect that a
thorough description of where the Nation stands with respect to pol-
lution will soon be available.
The data presented in this chapter continue to lend support to the
conclusion of the Council's 1972 Annual Report that air quality is
improving. There has been a continuing decline in the levels of
sulfur oxides, due to the use of lower sulfur content fuels. The auto-
mobile-related pollutants are also declining as cars with emission
controls replace the older models.
Neither the Geological Survey data nor the other information in
the water pollution section yet provides a basis for generalizing about
water quality. Chapter 2 shows that dramatic improvements in water
quality can take place, and the Willamette River is not unique. But
the extent to which the Nation's waters have improved or degraded
remains largely a question for speculation.
We have discussed a number of aspects of land use in the United
States. The dominant trend is the "spread city." The pervasive in-
fluence of the automobile has led to urban areas which occupy in-
creasing amounts of land at lower densities than any previous type of
development. This is not to say that we are becoming a nation paved
over with concrete. There is no national shortage of land—only an
increasing shortage of the right kind of land in the right places. There
are so many interrelationships between land use and the environ-
ment that they are almost inseparable concepts. We are beginning
to have a greater appreciation and understanding of these inter-
relationships.
While progress has been made in describing, understanding, and
improving the environment, there remain obvious gaps. There is still
a long way to go before we can be satisfied with our effort. But our
324
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GUIDELINES AND REPORTS 1277
improved ability to describe and understand trends in the quality of
the environment lays the groundwork for even more progress in
achieving better environmental quality.
Footnotes
1. A. B. Toan, Jr., "Social Measurement," The New York Times, Mar. 18,
1973, Sec. 8, p. 14, col. 3.
2. The Directory may be purchased at the Government Printing Office.
3. For a full description, see Lyndon R. Babcock, Jr., "A Combined Pollu-
tion Index for Measurement of Total Air Pollution," Journal of the Air
Pollution Control Association 20:653-59, October 1970, and Lyndon R.
Babcock, Jr., and Niren L. Nagda, "Cost-Effectiveness of Emission Con-
trol," Journal of the Air Pollution Control Association 23:173-79, March
1973.
4. These data will be published as part of the forthcoming EPA document,
"The National Air Monitoring Program: A Status Report on Trends
in Air Quality and Emissions." The document is being compiled by the
EPA Office of Air Programs, Research Triangle Park, N.C.
5. See Thomas R. Hauser and Carl M. Shy, "Position Paper: NOX Meas-
urement," Environmental Science and Technology 6:890-94, Oct. 1972,
and EPA press release of the statement of William D. Ruckelshaus
(EPA Administrator), April 11, 1973.
6. Ralph M. Rotty (Old Dominion University, Norfolk, Va.), "Global
Production of COa from Fossil Fuels and Possible Changes in the World's
Climate," paper to be presented at the American Society of Mechanical
Engineers, New Orleans, La., September 1973 (unpublished).
7. T. D. Steele, E. J. Gilroy, and R. O. Hawkinson, "A Nationwide Assess-
ment of Areal and Temporal Variations in Quality, Using Selected Data
from the National Stream Quality Accounting Network," U.S. Geological
Survey Open File Report, 1973.
8. See Council on Environmental Quality, Third Annual Report (Wash-
ington: Government Printing Office, 1972), pp. 44-46.
9. The same kind of analysis has been used successfully in many academic
studies, such as M. G. Wolman, "The Nation's Rivers," Science 174:905-
918, Nov. 26, 1971, and in the detailed technical studies of rivers often
performed prior to establishing standards and abatement plans for
dischargers.
10. Environmental Protection Agency, Division of Water Planning, Office of
Air and Water Programs, "Priority Basin Accomplishment Report,"
Feb. 28, 1973.
11. Most of the data in this section come from Great Lakes Basin Commis-
sion, Great Lakes Basin Framework Study, "Limnology of Lakes and
Embayments," Draft 2, Vol. I, Appendix 4, December 1972. We are
also indebted to the Great Lakes Basin Commission and Professor
Alfred M. Beeton for their help in preparing this section of the report.
12. U.S. Department of Commerce, National Oceanic and Atmospheric Ad-
ministration, "Fish Larvae Found in Environment Contaminated with
Oil and Plastic," MARMAP Red Flag Report No. 1, Jan. 18, 1973 (avail-
able from NO AA).
13. "NMFS Finds Tons of Plastic Debris on Alaskan Island," NOAA Week
4:1, Mar. 30, 1973.
14. P.L. 92-532, 86 Stat. 1052 (1972).
15. "Baseline Studies of Pollutants in the Marine Environment and Research
Recommendations" (unpublished report available from the National
325
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1278 LEGAL COMPILATION—SUPPLEMENT n
Science Foundation, International Decade of Ocean Exploration, May
1972).
16. Much of the material in this section is derived from two 1973 reports
commissioned by the Council: Development Sciences, Inc., "Criteria for
National Land Use Planning Indicators," and Earth Satellite Corpora-
tion, "Land Use Change and Environmental Quality in Urban Areas"
(available from the National Technical Information Service, Springfield,
Virginia 22151, PB-220 650 and PB-220 742).
17. Development Sciences, supra note 15.
18. See CEQ, Third Annual Report, supra note 8, at 24.
19. Robert C. Otte, "Competing Uses for Rural Land Near Cities" (unpub-
lished paper from U.S. Department of Agriculture, Economic Research
Service).
20. "Urban uses" are defined as all "urbanized areas" (as defined by the
Census Bureau) plus "urban places" over 2,500 population not included
in urbanized areas.
21. The Census Bureau's definition of an SMS A is "a county or group of
contiguous counties (except in New England) which contains at least
one central city of 50,000 inhabitants or more or 'twin cities' with a
combined population of at least 50,000. Other contiguous counties are in-
cluded in an SMSA if, according to certain criteria, they are essentially
metropolitan in character and are socially and economically integrated
with the central city. In New England, towns and cities are used in
defining SMSA's." U.S. Department of Commerce, Bureau of the
Census, Statistical Abstract of the United States—1972 (Washington:
Government Printing Office, 1972), p. 2.
22. Otte, supra note 18.
23. Density for all SMSA's in 1960 was 364 persons per square mile; in
1970, 360 persons per square mile. 1960 Census of Population, Vol. 11,
Part A, Table 34; 1970 Census of Population, Vol. 1, Part A, Table 35.
24. U.S. Department of Commerce, Bureau of the Census, Statistical Abstract
of the United States—1972 (Washington: Government Printing Office,
1972), Table 15, p. 16.
25. Id.
26. U.S. Department of Agriculture, Economic Research Service, "1972
Changes in Farm Production and Efficiency," Statistical Bulletin No.
233 (Washington: Government Printing Office, 1972), Table 6, p. 10,
and Table 7, p. 11.
27. 1972 OBERS Projections: Economic Activity in the United States, Vol. I,
Concepts, Methodology, and Summary Data (Washington: U.S. Water
Resources Council, 1972). These figures exclude cropland not used for
raising crops, such as cropland used for grazing.
28. U.S. Department of Agriculture, Economic Research Service, "1972
Changes in Farm Production and Efficiency," Statistical Bulletin No. 233
(Washington: Government Printing Office, 1972); 1972 figure, unpub-
lished Economic Research Service information.
29. Earth Satellite, supra note 15.
30. Communication from U.S. Department of Commerce, National Oceanic
and Atmospheric Administration, National Marine Fisheries Service,
April 23, 1973.
31. S. P. Shaw and C. G. Fredline, "Wetlands of the United States, Their
Extent and Their Value to Waterfowl and Other Wildlife," U.S. Fish and
Wildlife Service Circular No. 39 (Washington: Government Printing
Office, 1956).
32. For an account of some of the effects of wetlands development in Hills-
borough County, see John L. Taylor and Carl H. Saloman, "Some Effects
of Hydraulic Dredging and Coastal Development in Boca Ciega Bay,
Florida," Fishery Bulletin 67: 213, Spring 1969.
326
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GUIDELINES AND REPORTS 1279
33. Gilbert F. White, "Changes in Urban Occupancy of Flood Plains in the
United States" (University of Chicago, Department of Geography, un-
published Research Paper 57,1957).
34. U.S. Water Resources Council, "First National Assessment of the Nation's
Water Resources" (Washington: Water Resources Council, 1968), p.
5-2-6.
35. The examples are from A. A. Klingebiel, "Costs and Returns of Soil
Surveys," Soil Conservation 32:3-6, Aug. 1966.
36. U.S. Department of Agriculture, Soil Conservation Service, unpublished
data based oa "National Inventory of Soil and Water Conservation Needs,"
1967.
37. U.S. Department of Agriculture, Soil Conservation Service, unpublished
data, 1973.
38. W. F. Curtis et al., "Fluvial-Sediment Discharge to the Oceans from the
Conterminous United States," Geological Survey Circular 670 (Washing-
ton: Government Printing Office, 1973).
39. U.S. Department of the Interior, U.S. Geological Survey, "Stripping Coal
Resources of the United States—January 1,1970," U.S. Geological Survey
Bulletin No. 1322 (Washington: Government Printing Office, 1970).
40. L. B. Leopold, "Hydrology for Urban Planning—A Guidebook on the
Hydrologic Effects of Urban Land Use," U.S. Geological Survey Circular
554 (Washington: Government Printing Office, 1968).
41. See U.S. Department of Commerce, Bureau of the Census, "Population
Estimates and Projections," Series P-25, No. 470, November 1971, p. 1.
327
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CHAPTER 7
International Action
to Protect the Environment
The late 1960's and early 1970's marked a major turning point in
the priority of the environment on the international scene. Before
then, environmental protection received little attention in the domes-
tic programs and international relations of most nations. Within
national governments, those environmental programs which existed
were generally insubstantial and unfocused. International coopera-
tion was a rarity, and agreements between nations to address shared
environmental problems were unknown. At the United Nations,
speeches were occasionally delivered on environmental issues, but
little was being done.
As one decade moved into another, however, there was an explo-
sion of environmental interest and activity in a number of nations,
particularly the United States. This spilled over national borders and
cut across ideologies, reaching around the globe and elevating the
environment to a position of worldwide concern. Protection of en-
vironmental quality is now a priority matter in relations among the
nations of the world.
This chapter reviews international environmental accomplishments
of the past year in an historical perspective. The first sections discuss
protection of the ocean, control of transboundary pollution, and pres-
ervation of the world's wildlife and unique natural areas. Pollution
control in 10 industrial nations and the international trade effects
of pollution control are discussed next. The chapter concludes with a
survey of international cooperation in solving common environmental
problems.
329
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1282
LEGAL COMPILATION—SUPPLEMENT n
Protecting the Oceans
When William Cullen Bryant spoke of "old ocean's gray and
melancholy waste," he unwittingly foretold the spectacle that is com-
mon on the oceans today. In the late 1960's, major oil spills from
tanker collisions—such as the Torrey Canyon in 1967 and the Ocean
Eagle in 1968—and the oil leak from offshore drilling at Santa Bar-
bara in 1969 dramatized the threat of oil pollution. Crossing the
Atlantic in his papyrus vessel Ra, Thor Heyerdahl reported pollution
hundreds of miles from land. His report confirmed growing fears that
ocean pollution had spread well beyond coastal areas. This past year,
a research vessel of the National Oceanic and Atmospheric Adminis-
tration (NOAA) encountered extensive oil and plastic pollution in
the Atlantic.1
The oceans, in contrast to the land masses of our globe, are truly
international. No nation exercises sovereignty over them, and no
nation, acting alone, can protect them from pollution and other
environmental insults. This section discusses international efforts
to protect the oceans—from oil pollution, from ocean dumping of
wastes, and from land-based air and water pollution. It also describes
the environmental considerations to be addressed at the 1974 confer-
ence on the Law of the Sea.
Oil Pollution
One might assume that worldwide concern over marine oil pol-
lution is a relatively recent phenomenon. In fact, however, concern
about oil in the marine environment began in the early years of the
20th century although only in recent decades have international
agreements been achieved.
The oil tanker Ocean Eagle breaks up at sea.
330
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GUIDELINES AND REPORTS 1283
Early Oil Pollution Controls—By the mid-1920's, many nations,
including the United States, prohibited oil discharges in their ports.
Public indignation over fouling of our shorelines was so high that
in 1922 the Congress requested the President to bring the maritime
nations together for a conference on preventing oil pollution.2 The
conference met in 1926, but the resulting convention never took
effect.
Early efforts were focused on preventing "intentional" dis-
charges—that is, the discharge of oily water mixtures during such
routine operations as bilge pumping and cleaning and deballasting
cargo and fuel tanks. Recent estimates confirm that such opera-
tions cause more pollution than accidents. Approximately 1.5 mil-
lion metric tons of oil enters the oceans from bilge pumping, tank
cleaning, and ballast discharges each year, compared to 250,000
metric tons from vessel accidents.3
Figure 1
Annual Growth of Oil Transport by Sea
Millions of tons
4,000
3,500
3,000
2,500
2,000
1,500
1,000
500
/
/
Estimated
/
I I I I I I I I I
I960 1962 1964 1966 1968 1970 1972 1974 1976 1978 1980
Source: Exxon, Safer Tankers and Cleaner Seas (New York: Exxon Corporation,
1972), p. 24
331
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1284 LEGAL COMPILATION—SUPPLEMENT n
From the ill-fated 1926 convention through World War II, there
was virtually no international activity to combat vessel pollution.
However, increased sea transport of oil after World War II re-
awakened interest in controlling oil discharges (see Figure 1).
The 1954 Convention—A 32-nation conference in 1954 produced
the International Convention for the Prevention of Pollution of the
Sea by Oil.4 Although the Convention was clearly an environmentally
protective instrument, its basis was hardly "ecological" in today's
terms. Most nations recognized oil as a problem only to the extent
that it visibly dirtied the waters, fouled beaches, and coated birds
and other marine animals. Oil's impact on the biological productiv-
ity of marine ecosystems was largely ignored. Thus the Convention's
definition of oil included only the persistent oils such as crude and
residual fuel oil. It did not cover refined petroleum products. The
tendency to consider only the amenities of oil pollution continues to
some extent today in spite of growing scientific evidence that the
lighter products are more toxic than the persistent oils.
The Convention barred oil discharges exceeding 100 parts per
million within 50 miles of land from tankers and "as far as prac-
ticable from land" from other ships but placed no limits on oil
discharges beyond 50 miles. It required ships to maintain "oil record
books" to help port inspectors keep track of oil cargoes. The Con-
vention prescribed that ships be fitted with devices to separate oil
and water discharged from bilges. It also required contracting nations
to provide port facilities to receive oily ballast and tank cleaning
residues.
Retreating from its 1926 leadership position, the United States
opposed parts of the Convention as impractical and unrealistic. We
did not ratify it until 1961, and then only with a number of
reservations.5
Efforts since 1954—In 1958 the Inter-Governmental Maritime
Consultative Organization (IMCO), a specialized agency of the
United Nations, was established, and, in 1962, a second London con-
ference, this time under IMCO's auspices, strengthened the 1954
Convention by extending the 50-mile prohibited zone to 100 miles
in most cases. The separator and reception facility requirements
were deleted on the basis of their economic and technological
impracticality.6
The 1954 Convention and its 1962 amendments relied on pro-
hibited zones and performance standards for tanker operations to
prevent intentional oil pollution. Neither attempted to prevent pollu-
tion by changing tanker design and construction in order to elimi-
nate the need to pump ballast water into fuel or oil cargo tanks.
Nor did they deal with ways to prevent spills from vessel accidents.
Another London conference was held in 1969. The resulting
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GUIDELINES AND REPORTS 1285
amendments continued to focus on intentional pollution. They
further tightened the discharge limitations, prohibiting all tanker
discharges within 50 miles of land and adding further restrictions
on discharges beyond 50 miles. The definition of oil was still limited
to the persistent oils.7
That same year—just 2 years after the Torrey Canyon disaster—
IMCO first responded to oil pollution caused by casualties. The re-
sponse was indirect, aimed not at preventing the casualties but at
compensating victims of oil pollution and establishing a legal basis
for nations to take action to prevent oil pollution to their shores
from damaged tankers outside territorial waters. The results were
the International Convention on Civil Liability for Oil Pollution
Damage and the International Convention Relating to Intervention
on the High Seas in Cases of Oil Pollution Casualties. Neither is yet
in force. The President has submitted both the conventions to the
Senate for its consent and the implementing legislation to the full
Congress for enactment.8 Thus far, the only Congressional action is
Senate approval of the Intervention Convention.
The Liability Convention was supplemented in 1971 by a new
convention to establish an international fund to compensate for
oil pollution damage.9 Also in 1971, the first steps were taken to
prevent oil pollution by establishing tanker design and construction
standards.10 Amendments to the 1954 Oil Pollution Convention re-
quire that new tankers be designed so that the amount of oil spilled
as the result of a grounding or collision is limited.
The 1973 IMCO Conference—As early as 1962 the international
community set an ultimate goal of eliminating all intentional dis-
charges of oil into the oceans.11 The U.S. Secretary of Transpor-
tation, speaking to NATO's Committee on the Challenges of Modern
Society (CCMS) in 1970, urged that the intentional discharge of oil
be eliminated by 1975, or by the end of the decade at the latest.
IMCO's Conference on Marine Pollution this October will be de-
voted to preparing a convention based on that goal. Increases in
oil pollution and growing evidence of its adverse effects, even in
small concentrations, together with the development of new tanker
technology, have stimulated a renewed commitment to achieving
the no-discharge goal.
IMCO subcommittees have been preparing for the conference
for more than 2 years. In an effort to assure a convention that avoids
past deficiencies, U.S. negotiators have advanced five preliminary
suggestions on major issues. The first is to expand the definition of oil
to include all petroleum products. The second is to place further
restrictions on intentional discharges. The third is to establish man-
datory design and construction requirements for new ships, including
segregated ballast so that oily cargo tanks are not routinely filled with
ballast water.
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1286 LEGAL COMPILATION—SUPPLEMENT n
The 1973 IMCO conference will consider additional design safeguards for
supertankers to help prevent oil pollution.
Fourth, the United States has urged that new tankers be con-
structed with double bottoms to minimize the spillage of oil after
groundings. Fifth, the United States has urged that effective enforce-
ment provisions be developed. In particular, it has recommended
that a visible sheen on the water be considered a presumption that a
vessel has violated the performance standards of the convention unless
the operator can prove that he has met all standards. The United
States has also proposed that any nation into whose ports an offend-
ing tanker sails should be required to bring enforcement proceedings.
Currently, only the nation under whose flag a tanker sails can take
enforcement action.
Although oil attracts the most attention, IMCO has also recognized
other pollution problems caused by vessels. The 1973 conference will
consider performance and construction standards to prevent pollu-
tion from other hazardous substances and from ship-generated sew-
age and garbage. Both of these types of pollution have been subject
to controls in U.S. coastal waters under laws enacted in 1970 and
1972.12 Further, the United States proposes that the draft convention
facilitate amendments by future conferences to cover new pollution
problems in the marine environment.
In a June 5 address before the IMCO Council, the Chairman of
CEQ proposed that IMCO be given new authority to function as the
international agency with standard-setting responsibilities for marine
pollution from vessels, including ocean dumping. Under this pro-
posal, individual nations would continue to enforce international
conventions on vessel pollution, but a new committee within IMCO
would be given authority to adopt and revise the detailed regulations
334
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GUIDELINES AND REPORTS 1287
needed to implement conventions, subject to the disapproval of mem-
ber nations. At present, these detailed regulations can be adopted only
through a cumbersome amendment procedure. The proposed new
committee would also coordinate and administer all of IMCO's
marine pollution activities, including cooperation with other inter-
national organizations and technical advice to member nations.13
Much remains to be done to bring existing conventions into effect
and to realize the ambitious and important goals of the 1973 IMCO
conference. But vessel technology to reduce both intentional and ac-
cidental discharges is largely available. And growing evidence of
widespread ocean pollution—such as the floating "tar balls" and
plastic particles caught in the nets of U.S. Government research ves-
sels last year—underlies the urgency of the measures being
considered.
Ocean Dumping
Using the oceans as a dumping ground is an old practice that has
grown in recent years. Ocean dumping is not a major contributor to
total marine pollution when compared to the pollution caused by
land-based air pollution sources, polluted rivers, and vessel traffic.
But the fact that dumping has been concentrated in a limited number
of coastal sites such as the New York Bight intensifies the potential
for harm.14 Furthermore, as nations develop stronger controls on air
and water pollution, there is concern that wastes formerly discharged
into the air and water might be dumped into the ocean. CEQ
articulated this concern in its 1970 report, Ocean Dumping—A
National Policy.
As a result of that report, the President proposed ocean dumping
legislation in 1971, and it became law in October 1972. The new
Marine Protection, Research and Sanctuaries Act requires a permit
from the Environmental Protection Agency for all dumping in U.S.
waters and the contiguous zone and dumping of material transported
from the United States anywhere in the oceans.15 This law is dis-
cussed further in Chapter 5, Perspectives on Environmental
Programs.
In November 1972, at a conference in London attended by 80
participating and 12 observer nations, an international ocean dump-
ing convention was adopted. Similar to the U.S. legislation, the con-
vention has been submitted to the U.S. Senate and similar bodies in
other nations for consent to ratification. It will take effect when it has
been ratified by 15 nations.16
Under the convention, nations agree to regulate all ocean dumping
through national administrative authorities. No dumping is allowed
without a permit. All dumping of extremely hazardous substances is
prohibited except in an emergency. Dumping of other hazardous
substances is only allowed pursuant to a special permit issued by the
335
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1288 LEGAL COMPILATION—SUPPLEMENT n
national authority. Other materials may be dumped pursuant to a
general permit granted after specified criteria have been met.
The convention requires each contracting nation to regulate the
dumping of all material loaded in its ports for the purposes of being
dumped at sea or loaded on a vessel or aircraft of its flag or registry
in the territory of a nation not a party to the convention. Participat-
ing nations are further required to maintain records concerning the
nature and quantities of materials which they permit to be dumped
and the circumstances of such dumping. They must report this in-
formation periodically to an international organization to be
established for administration of the convention.
In February 1972, 12 European nations 'anticipated the inter-
national agreement by entering into the Oslo Convention, which
controls ocean dumping in the Northeast Atlantic and North Sea.
The Oslo Convention is nearly identical to the ocean dumping
convention.
Domestic Air and Water Pollution
Without doubt, some of the most difficult efforts to preserve the
world's oceans still lie in the future. Although the conventions to con-
trol oil pollution and ocean dumping are important, they do not ad-
dress two major contributors to marine pollution—air and water
pollution from land-based sources.
There is little precedent for cooperative international action to
limit land-based pollution of the oceans. Indeed, the only available
model is the U.S.-Canadian Great Lakes Water Quality Agree-
ment.17 Progress under the Agreement is discussed later in this
chapter. Political, economic, and jurisdictional questions are likely
to make such cooperation to clean up the oceans difficult. Some
nations are reluctant to admit that they cause substantial pollution.
Some fear that controls may put their industries at a competitive
disadvantage. In recent years, the geographical extent of coastal
state jurisdiction in the oceans has been a major issue.
Nevertheless, pursuant to sections 7 and 101 (c) of the Federal
Water Pollution Control Act Amendments of 1972,18 the United
States will seek international agreement on measures to control land-
based sources of marine pollution. From the standpoint of existing
knowledge, the first priority for control should be those pollutants that
do not degrade in the oceans but disperse widely and accumulate
in food chains, such as persistent pesticides and PCB's. These pol-
lutants threaten marine organisms and ultimately man himself.
Recent U.S. actions—by the Government in terminating the use
of DDT and by private industry in voluntarily curtailing the manu-
facture of PCB's—have set good examples.
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GUIDELINES AND REPORTS 1289
Law of the Sea Conference
International law governing national rights and responsibilities
with respect to the oceans and the seabeds rests in large measure
on the 1958 Geneva Conventions on the Territorial Sea and the
Contiguous Zone,19 on the High Seas,20 and on Fishing and Conser-
vation of the Living Resources of the High Seas.21 However, these
Conventions did not resolve the question of the breadth of the terri-
torial sea or the precise outer limit of the continental shelf. At a
subsequent conference in 1960, a U.S. compromise proposal of a
6-mile territorial sea and an additional 6-mile exclusive fishery zone
failed by one vote to obtain the necessary two-thirds majority. The
United States has consequently adhered to the traditional position
of a 3-mile territorial sea. We have also accepted a 12-mile ex-
clusive fisheries zone in accordance with international practice, but
we do not recognize coastal state jurisdiction over fisheries beyond
12 miles.
Because the 1958 Conventions do not precisely limit national
jurisdiction in the oceans, some coastal nations claim broad terri-
torial jurisdiction—up to 200 miles—either generally or for pollution
control, mineral exploitation, or fishing.22
The U.N. General Assembly in 1970 called for a Law of the Sea
Conference to stabilize international rules governing national rights
in the oceans and, particularly, to establish a regime for mineral
exploration and exploitation of the seabeds. The Conference will
begin with an organizational session in New York in October 1973.
Substantive negotiations will begin in Santiago, Chile, in the spring
of 1974. In its preparatory meetings, the Seabeds Committee es-
tablished a subcommittee on marine pollution, to which several
nations have submitted draft treaty articles. The subcommittee has
had preliminary discussions on a wide range of legal issues concern-
ing marine pollution—the basic obligations and powers of states,
jurisdictional and enforcement issues, and liability for pollution
damage.
Transboundary Pollution
It is a truism that pollution does not respect national boundaries.
The geographical situation of the United States may lead us to under-
estimate how significant this fact is in certain parts of the world.
When several nations are located in close proximity, the problem of
pollution crossing national boundaries becomes serious. Europe,
which faces some of the most severe pollution problems, may aptly
be compared with the industrialized Northeastern United States.
Both have rivers that meander by or through three or four jurisdic-
tions, clusters of air pollution sources that straddle several jurisdic-
337
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1290
LEGAL COMPILATION—SUPPLEMENT n
tions or produce emissions that are transported beyond jurisdictional
limits, and solid wastes that sometimes need to be transported from
one jurisdiction to another for disposal. Whereas in the United States
the Federal Government has authority to set common standards and
assist the states in developing complementary policies and programs,
in Europe no comparable coordinating authority exists.
The Declaration on the Human Environment, adopted at the
1972 U.N. Conference in Stockholm, contains two principles which
speak directly to the problem of transboundary pollution. Principle
21 provides that nations have "the responsibility to ensure that
activities within their jurisdiction or control do not cause damage
to the environment of other States or of areas beyond the limits of
national jurisdiction." Principle 22 provides that when such damage
does occur, "States shall cooperate to develop further the inter-
national law regarding liability and compensation for the victims
of pollution and other environmental damage caused by activities
within the jurisdiction or control of such states to areas beyond their
jurisdiction." -3
The United States and Canada
The U.S.-Canadian Great Lakes Water Quality Agreement, signed
by President Nixon and Prime Minister Trudeau on April 15, 1972,
was described in the Council's Third Annual Report. It commits
both countries to achieve general and specific water quality objec-
tives and requires that specified pollution abatement measures and
programs be either completed or initiated by Dec. 31, 1975. Pri-
Canada and the United States are cooperating to clean up Lake Huron and
the other Great Lakes.
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GUIDELINES AND REPORTS 1291
ority is being given to reducing phosphate loadings—from municipal
treatment plants, industries, and land runoff—which contribute to
eutrophication, most noticeably in Lake Erie.
Since the agreement was signed, both Nations have taken actions
to carry out its provisions. On the U.S. side, almost all the sig-
nificant municipal waste water treatment facilities at which phos-
phorus removal is required either are under construction or will
soon receive construction grants from EPA. As of June, 32 projects in
the Great Lakes basin have received about $224 million in Federal
funds, and over 200 additional projects are expected to be funded
within the next year at an estimated cost of nearly $750 million.24
Working together in the International Joint Commission (IJC),
the United States and Canada have established the Great Lakes
Water Quality Board and the Research Advisory Board called for
in the agreement. The Boards have set up working groups to consider
such specific problems as phosphorus loadings, land drainage, and
dredge spoils disposal.
Canada expects that phosphorus removal facilities will soon be in
place at all treatment plants on its side of Lake Erie, and construc-
tion of treatment plants in other parts of the Great Lakes basin is re-
poredly ahead of schedule. There is every reason to believe that the
quality of the Great Lakes will be appreciably improved by the
bilateral programs now underway.
Our two nations have also been cooperating on other transborder
problems. Oil spill contingency plans have been developed for
boundary waters on the Atlantic and Pacific coasts and in the Great
Lakes, and joint studies of ecological conditions in the Puget Sound
area are being planned. Under the auspices of NATO's CCMS, both
countries are working to reduce pollution in the St. John River basin
between Maine and New Brunswick. Air pollution problems in the
Detroit-Windsor and Port Huron-Sarnia areas are being addressed
by U.S. and Canadian officials at the Federal, state and provincial,
and city levels. The two Nations are jointly monitoring water quality
in the Red, Rainy, and St. Croix Rivers under the IJC.
Controlling Salinity in the Colorado River
Following the communique issued in June 1972 with Mexican
President Echeverria,25 President Nixon named a Special Repre-
sentative to investigate the problem of Colorado River salinity, dis-
cussed in last year's report, in order to recommend a definitive solu-
tion to the Government of Mexico. In May 1973, the Secretary of
State presented the Special Representative's proposal to the Mexican
Government, and negotiations between the two governments began
in June 1973.
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1292 LEGAL COMPILATION—SUPPLEMENT n
European Problems
In Western Europe the problems of transboundary pollution are
particularly acute because the countries are densely populated and
heavily industrialized. They share both airsheds and major river
basins, particularly the Rhine and the Danube.
Because of the many difficult legal, economic, and political prob-
lems presented by transboundary pollution in Western Europe,
progress has been slow. Only relatively modest remedial efforts are
yet underway. The Environment Committee of the Organization
for Economic Cooperation and Development (OECD), for exam-
ple, is studying the major issues involved in controlling trans-
boundary pollution, particularly cost-sharing and other economic
aspects.
The U.N. Economic Commission for Europe (ECE) also plans
to address transboundary pollution. At its first meeting in Geneva
last April, a new ECE group, the Senior Advisers to ECE Govern-
ments on Environmental Problems, agreed to consider possibili-
ties for solving transboundary pollution problems in the Black Sea,
shared by the USSR, Turkey, Rumania, Bulgaria, and Greece. Al-
though this is a limited step, it could be the beginning of important
efforts.
In Western Europe, action is underway to deal with pollution of
the Rhine. The first ministerial-level conference of the Interna-
tional Commission for Protection of the Rhine Against Pollution
was held at The Hague in October 1972. Delegates from the Federal
Republic of Germany, France, Luxembourg, The Netherlands, and
Switzerland agreed on a number of measures to combat salinity and
chemical and thermal pollution. A second meeting is scheduled for
fall 1973.
In October 1972 the Government of Finland invited nations
bordering the Baltic Sea to join in a conference on preventing pol-
lution in the Baltic. Because it is relatively shallow—an average depth
of about 165 feet—the Baltic is sensitive to even relatively small
amounts of pollution. Eutrophication, introduction of toxic chem-
icals into food chains, and increasing numbers of oil spills arc serious
water quality problems in the Baltic. They can only worsen unless
the nations most directly involved take action.
It is still not clear how European nations will ultimately con-
trol transboundary pollution. With the analogy to the Northeastern
United States in mind, it is encouraging to note moves currently un-
derway in Europe to establish pollution control mechanisms on a
regional basis.
Preserving the World's Natural Heritage
Private and national efforts to protect the world's wildlife and
natural areas date far back into history, but it is only within the
340
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GUIDELINES AND REPORTS 1293
^resent century that these efforts have become international. The
past year has seen dramatic advances in these international efforts,
and this section describes these steps. A brief review of preceding
action—or inaction—seeks to put these developments in historical
perspective.26
Early Efforts
Man set the stage for the extermination of plant and animal species
when he became able to change his own environment. This point in
man's development was reached far back in time. Even prehistoric
men, who were hunters and used fire extensively, exerted consider-
able influence on plant and animal populations. The rate of exter-
mination has increased dramatically in recent years. From the time
of Christ to 1800, roughly one species of mammal was exterminated
each 55 years. Now the rate is over one per year. Nearly 60 percent of
all recorded exterminations of mammals has occurred in the 20th
century.27 Less complete information implies a similar record for
other forms of animal life and for plants.
Man is responsible for most wildlife exterminations28 either by
outright killing of the animals or plants or by changing their habitats.
The expansion of human population—with attendant changes in
urbanization, agriculture, lumbering, transportation systems, pol-
lution, and modern technology—constantly alters the face of the
earth in subtle and not so subtle ways.
The implication of man's impact on his own environment was
realized hundreds of years ago. In the 4th century B.C., Plato spoke
of the denuded hills of Attica and losses of land, soils, water, timber,
and crops.29 Man's impact on wild animals and plants was appreci-
ated early in history also. As early as the 3d century B.C., India
realized the need for complete protection of some areas and animals.30
History records numerous efforts by rulers and governments to
protect particular areas and forms of wildlife. The motives for these
efforts were generally economic, but scientific, aesthetic, and recre-
ational interests were also involved. Many areas were set aside by
rulers to preserve wildlife for their own viewing or hunting. Men
have also collected unfamiliar plants and animals—especially exotic
species—that they found interesting and attractive. Collections ex-
isted in ancient Babylonia, China, Egypt, and Rome. With the de-
velopment of science, botanical and zoological gardens were es-
tablished, and rare and endangered species were collected for study.
Until national scientific academies and institutions developed, most
collecting was under the patronage of individual princes rather than
governments.
Sometimes plants and animals have survived in special collec-
tions even after their extermination in the wild. Thus we have the
ginkgo tree and the Pere David or Milu deer. Wild populations of
341
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1294
LEGAL COMPILATION—SUPPLEMENT n
these species were totally exterminated and those living today all
come from specimens protected in private collections. The ginkgo
tree, once widely distributed throughout the Northern Hemisphere,
survived under cultivation in China and Japan, from where it was
later reintroduced into Europe and brought to America. The Milu,
an unusual deer, was found in modern times only within the Im-
perial Hunting Park of the Manchu Dynasty near Peking. Through
negotiations with the Chinese imperial government, specimens of
the deer were sent to the London Zoological Society in 1869 and
1883. Later the Duke of Bedford brought a number of them to his
Woburn Abbey estate. His efforts probably saved the species. In
1895 many of those in the Imperial Hunting Park were eaten by
starving peasants whose crops had been destroyed by a flood. The
deer remaining were killed in 1900 by the armies that invaded
Peking to suppress the Boxer Rebellion.
The 20th Century
In spite of early sporadic action to share wildlife species among
nations, there were no significant international agreements to protect
wildlife until this century. Prior to the Convention on International
Trade in Endangered Species of Wild Fauna and Flora concluded
this year,31 most wildlife agreements protected migratory wildlife
only from commercial or sport hunting. Although early measures to
transport and collect unusual species stemmed largely from scientific
interest, the early agreements were basically motivated by eco-
nomics—for example, the Convention Concerning the Conservation
of Birds Useful to Agriculture, signed by 11 nations in Paris in 1902.32
Wild animals are preserved in Africa's Ngorongoro Crater.
342
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GUIDELINES AND REPORTS
1295
Or they were motivated largely by sport hunting interests—for exam-
ple, the 1916 U.S.-Canadian Treaty for the Protection of Migratory
Birds.33
A distinctly environmental concern perhaps first appeared on an
international scale in the 1930's. The 1935 African Convention Rela-
tive to the Preservation of Flora and Fauna in Their Natural State 34
prohibited hunting and harassment of wildlife and provided for pro-
tection of habitat. The Convention on Nature Protection and Wild-
life Preservation in the Western Hemisphere 35 was negotiated among
member nations of the Pan American Union and took effect in 1942.
In 1948, the International Union for the Conservation of Nature
and Natural Resources was established. Now composed of repre-
sentatives of 30 national governments and several hundred govern-
ment and private organizations from 84 nations, the IUCN was the
first international organization devoted solely to environmental pro-
tection, especially wildlife conservation and parks.
During the next 20 years, a number of international conferences
on wildlife took place.
Endangered Species Convention—The IUCN, in its 1963 meeting
in Nairobi, agreed to develop a treaty to protect endangered species
against threats caused by international trade. Drafts were circulated
in 1965 and 1969. In the 1969 Endangered Species Conservation
Act,36 the U.S. Congress called for an international ministerial meet-
ing to conclude a convention on endangered species. In addition, the
1972 Stockholm Conference recommended convening a conference
as soon as possible to adopt such a convention.
The conference was held in Washington, D.C., from Feb. 12
through March 2, 1973, at the invitation of the U.S. Government. It
>fj",'- *¥'.: ,"-.\ "*-*:; .*/''•*'.•' '• '" • •*-> -. (, , t*
The alligator is endangered because of the commercial value of its hide.
343
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1296 LEGAL COMPILATION—SUPPLEMENT n
climaxed efforts begun a decade earlier. Representatives of 80 gov-
ernments participated, and there were observer delegations from 8
other nations and several international organizations.
The primary threat to many species of wild animals and plants is
destruction of their natural habitat. The greatest danger to many
others, however, is extermination caused by demands of international
trade. This trade supplies animals for trophies and for skins—those
of spotted cats and crocodiles, for example—and live animals for
pets, public display, and medical research. Often the price paid is so
high that the nation to which an animal is native is unable to control
its exploitation. In earlier years, as discussed above, the extermination
by trade of many wildlife species caused little international concern.
The situation has changed, and nations are abandoning or modifying
the priority that they once accorded wildlife hunting and trading
interests.
The new Convention on International Trade in Endangered Spe-
cies of Wild Fauna and Flora,37 designed to preserve wildlife, has
several features unprecedented in previous agreements. Membership
is open to all nations, whether producers or consumers of wildlife,
wishing to reduce the impact of international trade on endangered
species. It protects over 500 species of animals and over 20,000 species
of plants—whether from land or sea.
This Convention for the first time provides a means to protect
wildlife against unregulated exploitation through international trade.
Some months will probably pass, however, before the Convention is
ratified by the 10 nations necessary for it to become effective. Many
additional months may elapse before a sufficient number of nations
have ratified it to make it effective. Until then it is possible that the
species lists appended to the Convention could be used as shopping
lists of endangered animals and plants. The knowledge that these
species are soon to be controlled, together with the "grandfather"
clause exempting specimens taken before the Convention comes into
force, could sharply increase demand and accompanying prices. Early
ratification of the Convention can alleviate this problem.
Whales—A major focus of recent marine mammal protection is the
whale. Some species of whales are in danger of extermination. Un-
fortunately, recent international protective efforts and the strong
U.S. actions that preceded these efforts had little historical precedent.
Past international actions had focused largely, and not very success-
fully, on protecting whales as a commercial resource, not as an in-
herently valuable part of the marine ecosystem.
The decimation of whale populations is the product of a century
and a half of overexploitation.38 The first step toward regulation
was taken in 1929 when, after a precipitous decline in the North
Atlantic whale population, the International Bureau of Whaling
Statistics was established in Norway. It encouraged whaling nations
to submit data on their activities. In 1931, the Convention for the
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GUIDELINES AND REPORTS 1297
The United States has proposed a 10-year moratorium on commercial whale
hunting.
Regulation of Whaling39 was signed as a result of League of Nations
efforts. The agreement imposed few restrictions on the signatories,
limiting only destructive and wasteful methods of operation—for
example, the taking of very young whales and females with new off-
spring. Although the agreement was virtually unenforceable, Japan
and Russia—two major whaling nations—did not ratify it.
A supplemental agreement signed in 1937 by nine governments
called for at least one government inspector on each factory ship.
It closed areas of the Atlantic, Pacific, and Indian Oceans to
hunting species, prescribed minimum lengths for certain species,
and established a whaling season.
Near the end of World War II, a majority of the parties to the
1937 agreement established the so-called Blue Whale Unit to regu-
late the maximum take of whales per season. Unfortunately,
because this unit of measurement was scientifically unsound, it legiti-
mized indiscriminate reduction of all species.
Following the war, a new international whaling conference was
held in Washington at U.S. initiative. It established the Interna-
tional Whaling Commission (IWC). The IWC was authorized to
administer regulations for open and closed waters and for the
periods, methods, and intensity of whaling, including the maximum
catch in any one season. But the IWC had no power to restrict the
number or nationality of factory ships and onshore whaling stations
or to allocate specific quotas to any one nation. Moreover, weak as
the agreements were, they were undermined by widespread viola-
tion and ineffective self-enforcement.
Commercial interests long dominated both the hunting of whales
and the decisions of the IWC. But in the last few years, U.S. actions
in response to conservationists have stimulated a change. In 1970,
the United States placed eight species of commercially hunted
345
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1298 LEGAL COMPILATION—SUPPLEMENT n
whales on the endangered species list,40 thus banning the import of
whale products and thereby eliminating: about 20 percent of world
demand. At the end of 1971, the last U.S. whaling license was can-
celled. In 1972, the Marine Mammal Protection Act was passed.41 It
is the first wildlife protection law whose prime objective is the health
and stability of an ecosystem. It establishes strict controls over the
taking of marine mammals for any purpose and over the import of
their parts and products.
Internationally, the U.N. Conference on the Human Environment
in Stockholm in 1972 overwhelmingly passed a recommendation in-
troduced by the United States to strengthen the International
Whaling Commission and to impose a 10-year moratorium on com-
mercial whaling. Following the Stockholm Conference, the U.S.
delegation to IWC, led by the Chairman of CEQ, urged the adoption
of the 10-year moratorium on all whaling. Despite strenuous efforts by
the United States, the Commission refused to agree to the moratorium
or to open the meeting to the press. The IWC did agree to several con-
servation measures, including • reductions of up to 38 percent in
the 1973 quotas for certain species. It extended the ban on hump-
back and blue whales and continued protection for several other
endangered species. The IWC also agreed to expand its research
budget, and Japan and Russia finally promised to permit inter-
national observers to check their compliance with IWC quotas
and regulations.
At this June's IWC meeting, the United States again proposed a
global 10-year moratorium on commercial whaling. Although seven
other IWC member nations supported the moratorium, it once again
failed to be approved. The IWC did agree to a 25 percent reduction
in next year's quota for the Antarctic Fin whale, which is the most
seriously depleted of the whales currently harvested, with a mora-
torium on all harvests of this whale in 3 years. Quotas for other Fin
whales and for Sei, Sperm, and Minke whales were held at or slightly
below last year's levels. The IWC, however, has no enforcement
powers, and Japan and Russia may decide not to comply with its
decisions.
The United States has pressed other international measures to pro-
tect whales. At the 1972 IWC meetings, the United States proposed
that the International Whaling Commission set up a subcommittee
to examine ways to strengthen scientific and statistical aspects of the
IWC with an eye to incorporating conservation values into IWC
decisions. In addition, the United States proposed that the IWC
assume responsibility for all whales and related sea mammals, not just
those that are harvested commercially, on the grounds that acquisi-
tion of data on stocks, distribution, and ecology of dolphins and por-
poises is a legitimate objective of the Whaling Commission. Both U.S.
proposals were accepted. During the past year, a subcommittee pre-
pared specific recommendations which were presented to the June
meeting of the IWC. Japan and Russia rejected any immediate im-
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GUIDELINES AND REPORTS 1299
plementation, and therefore the recommendations were indefinitely
postponed.
Pursuant to the Marine Mammal Protection Act of 1972, the
United States also prepared a redraft of the International Whaling
Convention.42 The thrust of the revision is to broaden the scope of
IWG to embrace all facets of conservation and management and to
recognize that marine mammals have aesthetic, recreational, nutri-
tional, and economic values that contribute to the welfare of man-
kind. Another major aim of the redraft is to change management
from the "maximum sustainable yield" concept to the more flexible
"optimum population level" concept. The redraft has been submitted
to the IWC.
In large part because of the forceful U.S. position during the past
2 years, most nations are coming to regard whales as a marine re-
source of the world rather than as an economic opportunity for those
nations which exploit them. The crucial question is what future
course the two major whaling nations, Japan and Russia, will chose
to follow.
Areas of Unique Value
Many unique areas have natural, historical, or cultural value for
all the peoples of the world. There are the Grand Canyon, Angel
Falls in Venezuela, Stonehenge in the United Kingdom, the pyramids
of Egypt, and the Serengeti Plain of East Africa. Until 1972, preserv-
ing such areas received little formal international recognition.
The United States authorized the world's first national park,
Yellowstone, in 1872.43 In 1933 an International Convention on
Parks adopted the first international guidelines for preserving natural
areas. The first World Conference on National Parks was held in
Seattle in 1962 and the second a decade later.44 In 1965, a commit-
tee of the White House Conference on International Cooperation
proposed an international effort to help nations identify and preserve
scenic areas and historic sites.45
In 1971, the President formally proposed creation of the World
Heritage Trust.46 In response, at its October-November 1972 meet-
ing in Paris, the General Conference of the United Nations Educa-
tional, Scientific, and Cultural Organization (UNESCO) adopted
an international convention for the preservation and restoration of
the outstanding cultural and natural areas of the world.47
Areas of special value will be identified on a World Heritage list.
This list is to be established by the World Heritage Committee assisted
by the UNESCO Secretariat staff, the International Center for the
Study of the Preservation and Restoration of Cultural Property, the
International Council of Monuments and Sites, and the International
Union for the Conservation of Nature and Natural Resources. There
will also be a list of endangered areas for which protection is needed
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LEGAL COMPILATION—SUPPLEMENT n
Old Faithful. Yellowstone National Park, an area of unique national and
historic value, is listed in the World Heritage Trust.
immediately. When necessary, the World Heritage Committee will
provide financial assistance from the World Heritage Fund, to which
we and other nations will contribute.
National Environmental Protection Programs
We have very limited information on the domestic environmental
protection programs of other nations. Table 1 highlights domestic
pollution control programs in 10 industrial nations—Belgium, Can-
ada, P ranee, West Germany, Italy, Japan, The Netherlands, Sweden,
the United Kingdom, and the Union of Soviet Socialist Republics.
Most of this information was derived from a draft EPA bibliography
on environmental laws in other nations and from the report of the
Secretary of Commerce to the President and the Congress,48 which is
required annually under Section 6 of the Federal Water Pollution
Control Act Amendments of 1972, on the potential international
economic impacts of pollution control programs in the United States
and abroad. The information collected by the Commerce Depart-
348
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GUIDELINES AND REPORTS 1301
ment is derived from previously published sources, the accuracy of
which has not been verified by the Department or the Council. In-
formation presented for the USSR stems largely from contacts by the
Council and other Federal agencies with Soviet environmental offi-
cials under the Agreement on Cooperation in the Field of Environ-
mental Protection Between the United States and the USSR.49
Although sketchy, this information gives some idea of pollution con-
trol programs elsewhere.
A number of the world's industrial nations still lack comprehensive
air and water pollution control laws and programs. In some nations,
relatively broad legislative authorities have yet to be implemented.
In several, the national government has very limited legal authority
to deal with pollution problems, and existing pollution control pro-
grams are administered by local governments. Information is gen-
erally not available on whether implementation of legislation is
vigorous.
Several laws go beyond current U.S. authority. Japan authorizes
recovery on a no-fault basis for damages to health from pollution. The
Netherlands' water pollution control program includes effluent fees
that will be gradually increased as an incentive to limit effluent dis-
charges. The United Kingdom enacted a Deposit of Poisonous Wastes
Act in 1972 along the lines of legislation proposed by the President
of the United States. It appears that none of the nations has air
or water pollution control programs as comprehensive or as stringent
as those established here by Federal legislation in 1970 and 1972. In
particular, legislative deadlines for establishing and meeting stand-
ards is almost exclusive to the United States.
Perhaps the most significant conclusion to be drawn from the in-
formation available is that most industrialized nations are moving to
strengthen their pollution control programs. Nearly all the nations
included in Table 1 have enacted major legislation since 1970, and
many are considering additional laws and stronger programs.
International Trade and Environmental Quality
The emerging international concern for environmental quality is
manifested in numerous national actions to set air and water quality
standards and require abatement by industry and government. These
actions are ultimately translated into increased costs of production.
Because environmental protection will result in differing costs in
each country—even within the same industry—current price relation-
ships between countries are likely to change somewhat. This section
looks at the factors which directly affect relative pollution abatement
costs and presents some preliminary data on standards and expendi-
tures in several nations which are major trading partners of the
United States.
349
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1906, 1966) and the approved by one of 32 and aircraft noise. De- trols are still sought more
Clean Air Acts (1956, River Boards which may posit of Poisonous by persuasion than en-
1968) require annual attach conditions based Wastes Act (1972) regu- forcement and are gen-
registration of about on receiving water con- lates land disposal of erally implemented on a
3,000 designated indus- ditions. The Merchant hazardous wastes. The firm-by-firm, technical-
trial processes; firms Shipping and Prevention Department of Environ- economic basis. Water
must demonstrate that of Oil Pollution Acts of rnent has substantial pollution is most preva-
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apply to motor vehicles. authorize regulation ot program has been initi-
pesticides, including pro- ated to upgrade public
tection of farm workers. waste treatment facilities.
Sulfur oxides are the main
air quality problem.
No comprehensive air law. Principles of Water Legis- The 1969 Public Health Environmental problems
There is a Law on Air Pol- lation of the USSR and Law Principles contain being given increasing
lution in Moscow of Jan. the Union Republics provisions calling on attention. Special session
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legislation under the tional Government (Min- organizations to reduce the Decree on Strengthen-
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strategy is the "sanitary Individual republics are sources of Dec. 28, 1972,
clearance" or buffer zone primarily responsible for raising the priority of en-
established between in- implementation. Primary vironmental concerns
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residential areas. facilities and to protect- calling for annual and
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1308
LEGAL COMPILATION—SUPPLEMENT n
Figure 2
Ambient Air Quality Standards for Sulfur Dioxide
in Selected Countriesl
Canada 0.30
Finland 0.25
Israel \o.2t
The Netherlands 0.275
Poland 0.35
Romania 0.25
Sweden 1 0.25
Switzerland2 o,so
Turkey'
United States4 «
i Milligrams per cubic meter, 24-hour averaging period. Standards shown are
present maximum allowable levels. In each country, the SO: measured level must
not exceed the maximum on at least 95 percent of the days each year. Many other
countries have ambient SOa standards but base them on different averaging periods
or allow more flexibility in exceeding the limit.
2 Standard shown applicable in summer. Winter standard is 0.75 mg/m3.
3 Standard shown is for industrial areas. Residential area standard is 0.15 mg/ms.
4 The U.S. primary air quality standard shown is designed to protect public health
with an adequate margin of safety. The U.S. secondary air quality standards (not
shown), designed to protect vegetation and property, are being revised by EPA.
These standards represent ambient concentrations of SO: significantly below the
level represented by the primary standard.
Source: University of North Carolina, Department of Environmental Sciences
and Engineering, "Collection, Tabulation, Codification and Analysis of the World's
Air Quality Management Standards," preliminary data from EPA contract No. 68-
02-0556
356
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GUIDELINES AND REPORTS 1309
Comparative Environmental Standards
To the extent that environmental goals are dissimilar in trading
nations, the costs of abatement will also vary and readjustment of
trade patterns may result. Although there is little doubt that all
nations will ultimately have environmental standards, they are likely
to differ significantly. The citizens of one nation may perceive the
value of environmental quality in a different way than those of an-
other. Developing countries may be willing to sacrifice environmental
quality for more income and productive capacity in the short term.
Some developed nations may be a few years away from the current
level of environmental awareness of the United States, Sweden, or
Japan. As the previous section indicated, institutional structures and
legislative authority vary widely among nations—in part because of
their differing values and degrees of environmental awareness.
Comparing environmental standards across international bound-
aries is susceptible to many errors and misinterpretations. Methods
of measurement often differ, as do the specific circumstances in which
the standards apply. Switzerland, for example, has different sulfur
oxide standards for winter and for summer; Belgium and France des-
ignate special protection zones in which standards are applicable.
Perhaps even more important than differences in standards are
differences in enforcement—the strictest standard is irrelevant if it is
not enforced. We have no means for comparing this factor among
countries.
Figure 2 illustrates the range of standards that exists among sev-
eral nations. The standards shown are for sulfur dioxide concentra-
tions in the air. They are average measurements over a 24-hour
period in milligrams per cubic meter. All of the nations listed require
that their standards be met at least 95 percent of the time.50
Comparative Costs of Environmental Controls
In addition to differing environmental standards, other factors
affect the abatement costs which must be incurred by a nation's indus-
tries. Most important is the relationship between natural environ-
mental conditions and the level of air and water discharges. Even
with the same ambient standards, two nations could require quite
different abatement levels due to differences in meteorological condi-
tions, the total quantity of emissions, the geographic distribution
of the emission sources, and other factors which affect the interrela-
tionships between emissions and ambient levels.
Comprehensive international cost data to determine precisely
the effects of pollution abatement on prices and economic growth
are generally not available. However, the limited data which are
available indicate the level of expenditures for pollution control
relative to total gross domestic product in several countries. Table
2 summarizes these data based on the estimated expenditures neces-
357
-------
1310 LEGAL COMPILATION—SUPPLEMENT n
Table 2
Estimated Incremental Pollution Control Expenditures as 1
Pere«lag«"Of:Ci»s§: .DonMsrtir I^wiiM* lift^-liSt1
{In percent]
• Solid
Air Water Waste Total
United States -0.-7 Q£ .,.,,,,,,,., 1.2
Germany > .1 ,B , 0,1 ,8
Netherlands .3 ,7 .1 I.I
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1312 LEGAL COMPILATION—SUPPLEMENT n
which would be attained if all domestic and international prices
fully reflected the social costs of production and consumption.
A recent survey by the Department of Commerce indicates that
a wide variety of subsidies are now in effect.51 The most common
is a reduction in corporate profit taxes through liberalized depreci-
ation allowances. Table 4 compares depreciation policy on pollution
control equipment for the United States and seven other nations
that engage in substantial international trade.
Reference to the U.S. depreciation subsidy may be misleading
because most U.S. corporations have found it more convenient and
profitable to use the investment tax credit instead of the relatively
modest special depreciation allowance. The investment tax credit
applies to all business investment, however, and thus is not a special
pollution abatement cost subsidy.
After the depreciation allowance, the next most popular method
of subsidization is the low interest or interest-free loan. Japan, for
example, lends private industries up to 80 percent of the cost of
equipment to control air, water, and noise pollution.52 France lends
up to one-half the cost of such equipment.53 Canada and Sweden
also make direct Government loans for pollution abatement pur-
poses.54 Borrowing from private sources is supported by Federal
guarantees in Germany and by interest rate subsidies in Belgium.
There are no comparable programs in the United States, although the
Federal Water Pollution Control Act Amendments of 1972 author-
izes the Small Business Administration to make special loans to small
*W"|£;V '***> •. ••' "-Mf • \ :, fej^^lipdn^iltfl^waii^i for- Poritriiten, Control iqulpniieW
? PgreBfttajje and CotnrrtentB
tittie • ' • •
€»a«a%I rig years ; itntrpmwrt tturettased after 19JO for
rbttllt defsife 1969; 5-year perjNM
s; a.*wi[t!z«d on straiaht-Wn*
• basis; fno hwestniertt tax credit p*r«
of
360
-------
GUIDELINES AND REPORTS 1313
businesses to enable them to comply with the Act without suffering
substantial economic injury.
The most widely used Government subsidy in the United States
is the industrial revenue bond. The prime advantage of industrial
revenue bonds is a lower net borrowing cost due to the tax-exempt
status of the interest payments. A more complete discussion of indus-
trial revenue bonds is included in Chapter 3, Economics and Envi-
ronmental Management.
Impacts of Standards on Trade
The question remains as to what impact environmental standards
will have on the balance of trade. The Council on Environmental
Quality, the Environmental Protection Agency, and the Department
of Commerce have sponsored several efforts to quantify the impacts of
pollution control across the entire economy. The initial study, per-
formed by Chase Econometric Associates, was described in last year's
Annual Report. Further analysis based on the Chase econometric
model, run over a wide range of pollution abatement cost and Govern-
ment policy alternatives, indicates a maximum negative impact on
U.S. net exports of between $2 and $3 billion during the peak years of
1975 and 1976.55 However, these projections are clearly overesti-
mated because the Chase macroeconomic model made no allowances
for foreign pollution abatement regulations.
Another estimate, by d'Arge and Kneese at Resources for the
Future, attempts to quantify the net balance of trade effects on the
United States assuming similar increases in pollution control costs in
other major trading countries. This analysis estimates that U.S. net
exports will rise slightly in spite of increased pollution control costs.56
Another study by The Netherlands stresses the uncertainty regarding
the overall effect of pollution control requirements on the balance of
payments.57
At present, there is not sufficient information to estimate the net
trade effects of international pollution abatement with any degree of
certainty. To the extent that environmental quality standards and
relative investment levels are roughly comparable, as the preliminary
data in Figure 2 and Tables 1 and 2 indicate, changes in trade pat-
terns will probably be minor. On the other hand, to the extent that
the "polluter pays" principle is eroded by Government subsidy pro-
grams, the balance of trade is likely to be distorted. Pressures for
Government intervention in the international marketplace will prob-
ably increase as many nations begin to clean up their environment.
Future developments in the international area need to be carefully
watched to avoid trade distortions that in the long run will benefit
no one.
361
-------
1314 LEGAL COMPILATION—SUPPLEMENT n
International Cooperation
One of the oldest international environmental activities is exchange
and pooling of scientific data information. This section reviews the
history of international environmental cooperation,58 focusing on
progress in the past year under the precedent-setting agreement be-
tween the United States and the Union of Soviet Socialist Republics
and on the new United Nations structure for promoting cooperation.
Early Scientific Cooperation
Systematic international efforts to extend knowledge of the physical
world began in the mid-19th century with periodic international
science congresses attended by scientists and representatives of na-
tional scientific societies. Among them were the International Health
Congress in Brussels in 1853, the International Congress of Chemistry
in Karlsruhe in 1860, and the International Congress of Geodesy in
Berlin in 1862. In 1901, the International Association of Academies
brought together the national academies—which have been impor-
tant to modern science since the 17th and 18th centuries.
The First World War temporarily interrupted development of
an international science structure, but by 1931 the International
Council of Scientific Unions (ICSU) was founded. It created inter-
disciplinary committees on scientific questions, problems, and pro-
grams, including the Scientific Committee on Ocean Research and
the Scientific Committee on Problems of the Environment. Per-
haps the most important of these have been the Comite Special de
1'Annee Geophysique Internationale, which planned and coordinated
the International Geophysical Year of 1956-57, and the Scientific
Committee for the International Biological Programme, established
to study large-scale transnational ecosystems.
By the late 1960's, then, an international scientific community was
functional—and ready to focus on environmental problems. It had
demonstrated, over more than half a century, an ability to coordinate
and advance large-scale scientific enterprises. Many of these efforts,
from the International Polar Years of 1882-83 to the more recent
International Geophysical Year, International Biological Programme,
and the International Hydrological Decade, have added significantly
to the knowledge needed for international environmental progress
in the 1970's.
Regional Efforts
Regional organizations have been involved in cooperative research
and other environmental action programs, especially those related
to economic development.
362
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GUIDELINES AND REPORTS 1315
CCMS—NATO's Committee on the Challenges of Modern Society
was established in 1969 at President Nixon's initiative. The Com-
mittee continues with its multilateral "pilot project" approach to
speed the exchange of technology and experience on environmental
and other problems among industrialized nations.
Last November, six nations—France, Italy, Germany, The Nether-
lands, the United Kingdom, and the United States-—signed a Memo-
randum of Understanding on the development of low-pollution
power systems for automobiles. Japan and Sweden too are inter-
ested in this exchange. A second conference to convene in Ann Arbor
this fall is expected to initiate a program for developing and test-
ing low-pollution automobile power systems.
CCMS has published documents on air quality modeling, assess-
ment guidelines, and criteria for particulates, sulfur oxides, and
carbon monoxide. By the end of 1973, it will publish criteria for
nitrogen oxides, hydrocarbons, and photochemical oxidants. The
Committee will also publish reports on control technology for these
five pollutants this year.
Air quality assessment studies of Ankara, St. Louis, and Oslo are
complete. An assessment study of Frankfurt is nearly complete, and
studies of Rotterdam, Milan, and Turin are in progress. The air
pollution modeling panel continues its active work in advising on
the modeling aspects of the assessment studies as well as in making
technical appraisals of new research modeling techniques. After the
Air Pollution Study is finished, this panel hopes to take on a new
role in bringing together air quality managers and model developers.
In the field of water quality, the CCMS Pilot Study on Inland
Water Pollution led to the establishment of the U.S.-Canadian
Committee on Water Quality Planning in the St. John River Basin
between Maine and New Brunswick. Combining Federal, state, and
provincial, and local participation, it experiments in transboundary
water quality planning. The Committee will report on progress in
the fall.
A British-led project will complete construction of an advanced
physical-chemical waste water treatment plant in 1974. France and
Germany are developing processes using pure oxygen in the project,
and Canada will study removal of phosphorus from sewage sludge.
The Belgian-led Coastal Water Pollution Pilot Study continues to
work with IMCO in implementing the CCMS goal of ending delib-
erate oil discharges into the ocean by the end of the decade.
OECD—The Organization for Economic Cooperation and Develop-
ment-—Japan, Australia, and the industrialized nations of Western
Europe and North America—serves as a forum for the exchange of
environmental technology and, in particular, for developing an un-
derstanding of the economic consequences of environmental controls.
Last year's Annual Report discussed OECD's May 1972 Guiding
Principles for compatibility of national environmental standards and
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LEGAL COMPILATION—SUPPLEMENT n
the "polluter pays" approach to financing. The Guiding Principles
recognize the need for harmonized standards and seek to establish
a uniform and equitable method for financing private pollution con-
trol costs in order to minimize distortions in international trade. The
polluter-pays principle means that costs are borne by the polluter and
are reflected in the price of his goods and services in lieu of subsidies.
Besides working to implement the Guiding Principles, the OECD
Environment Committee continues to promote technical informa-
tion exchanges. Subgroups have completed studies on advanced
methods of reducing pollution—in the pulp and paper industry, from
other stationary sources, and by motor vehicles—and on eutrophica-
tion and mercury. Work has been initiated on the siting of interna-
tional airports.
At the initiative of the United States, a special meeting was held
in October 1972 on problems relating to polychlorinated biphenyls
(PCB's). As a result of this meeting and the substantial work
already underway in the Chemical Sector Group, the OECD Coun-
cil of Ministers has adopted recommendations that member gov-
ernments minimize release of PCB's into the environment until their
use can be stopped.59
Other Regional Groups—Several other European groups have
grappled with environmental issues in various ways. The Council of
Europe sponsored the 1970 European Conservation Year. The
To avoid distortion in world trade, costs of environmental protection must be
paid by the polluter.
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GUIDELINES AND REPORTS 1317
oldest regional body, founded in 1902, the International Council
for Exploration of the Sea, coordinates oceanographic activities of
its members, most of which are in the North Atlantic area. It pro-
motes research in marine science and development of international
conventions to improve fisheries.
The Economic Commission for Europe (ECE) is one of the few
international organizations embracing both Communist and
non-Communist industrialized nations of the Western World. It
thus has a unique potential for promoting environmental coopera-
tion between the Soviet Union and Eastern European countries on
one side and the United States and Western European nations on the
other. Although political considerations involving the status of East
Germany previously hampered progress, these problems are near
solution. As a result, the Senior Advisers to ECE Governments were
able at their first meeting in April 1973 to adopt a wide-ranging work
program dealing with such varied subjects as air pollution, energy,
water pollution, toxic wastes, transportation, tourism, and trans-
border Black Sea pollution. An ad hoc committee will be convened
late in 1973 to develop a long-term work program for the considera-
tion of the Senior Advisers at their next meeting.
Some regional organizations established for other purposes have
entered the environmental arena. One is the Soviet-bloc Council for
Mutual Economic Assistance. Like NATO, it is primarily political in
origin, but it has promoted technical and scientific cooperation and
research and recently has placed the environment among its higher
priorities. Both the Organization for African Unity (OAU) and the
Organization of American States have been drawn into environ-
mental issues. The OAU sponsored the 1968 treaty for the protection
of African wildlife, and its Committee on National Parks meets and
exchanges information on parks.
Bilateral Cooperation
Significant bilateral cooperation to solve common environmental
problems has a relatively short history. Undoubtedly the leading
example of extensive bilateral cooperation in sharing information
and projects of mutual benefit is the Agreement on Cooperation in
the Field of Environmental Protection Between the United States
and the Union of Soviet Socialist Republics.60 Signed in Moscow in
May 1972 by Presidents Nixon and Podgorny, implementation is
now well along. The 1972 Agreement was presaged at least as early
as 1968 when Soviet Academician A. D. Sakharov, in an essay pub-
lished in The New York Times, strongly urged cooperative efforts by
our two nations regarding worldwide environmental problems.61
In September 1972, a Memorandum of Implementation was signed
in Moscow by the Chairman of the Council on Environmental Qual-
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LEGAL COMPILATION—SUPPLEMENT n
Chairman Russell E. Train and Academician E. K. Fedorov talk about en-
vironmental problems in Moscow.
ity, Russell E. Train, and Academician E. K. Fedorov of the Soviet
Hydrometeorological Service. Subsequently, several working groups
have met, both in the United States and in the Soviet Union, to work
out specific projects.
The first meeting, held in January in Moscow, dealt with endan-
gered species of plants and animals and with wildlife management
in general. Members of the working group were the first U.S. citizens
to visit two Soviet scientific reserves, the Oka Terrace Reserve and
the Voronez. As a result of the meeting, 22 projects were agreed
upon. Seven involve joint research and information exchange on
endangered plant species, and six are joint studies of whales and
other marine mammals. The nine wildlife projects range from joint
research on various species to development of a migratory bird
treaty.
A working group on air pollution, meeting in Moscow in March,
agreed on development and testing of methods to control sulfur
oxides and particulates from fossil fuel powerplants, particularly fuel
cleaning and wet stack-gas scrubbing technologies. Projects for mobile
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GUIDELINES AND REPORTS 1319
sources include common emission sampling and measurement meth-
ods, data exchange, and testing of pollution control devices.
The water quality working group, also meeting in Moscow, agreed
to study pollution control strategies for river basins. They will use
the Moskva and Seversky Donets Rivers in the Soviet Union and
the Delaware, Ohio, and other rivers in the United States as models.
They also agreed to undertake joint studies of Lake Baikal, the
Great Lakes, and Lake Tahoe. Both nations agreed to information
exchange on control strategies for various pollution sources. The
Soviets expressed particular interest in the oil and pulp and paper
industries, automated monitoring equipment and procedures, and
mathematical modeling. We expect to gain from their experience
in land treatment of sewage sludge and from their toxicology data.
The first Soviets to come to the United States under the Agree-
ment visited Washington, D.C., Atlanta, San Francisco, and New
York in April. Various joint programs relating to the urban environ-
ment were developed. In May, a group of Soviet legal experts
visited the United States. They were briefed on regulatory and
enforcement programs. The Soviet experts expressed particular
interest in the preparation of environmental impact statements under
NEPA.
Other working groups have met in the United States on earth-
quake prediction, marine oil pollution, pollution and marine orga-
nisms, air pollution modeling and instrumentation, and meteoro-
logical monitoring and instrumentation.
The United States has exchanged information for many years
with Japan, particularly on air and water quality. A joint conference
on new sewage treatment technologies was held in the United States
in December 1972. In Tokyo, conferences were held on solid waste
management and resource recovery in January and on photochemical
smog in June. Discussions on mobile sources of pollution are held
periodically.
A wide range of additional activities in pollution control are under-
way with Germany, the United Kingdom, Spain, Poland, Yugo-
slavia, India, and Tunisia.
Worldwide Cooperation
The United Nations—Several of the specialized agencies of the
U.N.'s Economic and Social Council (ECOSOC)—in particular,
UNESCO, WMO, WHO, and FAO—have long been involved with
environmentally related issues, such as international development
programs, low-cost housing, urban planning, the peaceful use of the
Antarctic, uses of the high seas, and the seabeds. Many of the recom-
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1320 LEGAL COMPILATION—SUPPLEMENT n
mendations of the 1972 U.N. Stockholm Conference make specific
mention of these agencies in connection with environmental projects.
The U.N. Educational, Scientific and Cultural Organization
(UNESCO) has developed and is now implementing its Man and
the Biosphere (MAB) program—an interdisciplinary program of re-
search which emphasizes an ecological approach to the study of
interrelationships between man and the environment. UNESCO also
served as the forum for the negotiation last fall of the World Heritage
Trust, and it will have a continuing active role in this important
area. Building on its World Weather Watch, the World Meteorologi-
cal Organization (WMO) now receives information on pollutants
from a large number of the 100 cooperating regional stations, and it
plans a global network to increase this monitoring. WMO works
closely with UNEP and will play a key role in the priority monitoring
programs. The World Health Organization (WHO) is deeply in-
volved in the development of information on the effects of pollutants
on health. The Food and Agriculture Organization (FAO) is con-
cerned with monitoring of food contamination and with pesticides,
soils, and many other important environmental problems.
Until last year, the rapidly growing efforts undertaken in the spe-
cialized agencies of the U.N. family had only the loosest coordination.
There was no mechanism to draw into U.N. environmental efforts
those countries which are not active in these agencies. Nor was there
a means to draw attention to environmental problems outside the
scope of responsibilities of specialized United Nations organizations.
As a result of the 1972 U.N. Conference on the Human Environment
in Stockholm, a new U.N. Environmental Program (UNEP), under
the leadership of Maurice Strong, who was Secretary-General of the
1972 Conference, was created. UNEP reports to the U.N. General
Assembly through ECOSOC. UNEP will coordinate the activities of
the specialized U.N. agencies, initiate action when it is needed, and
create and implement a cohesive Action Plan for global environmen-
tal protection.
In order to finance projects developed by UNEP and to augment
U.N. environmental programs, the General Assembly approved the
voluntary U.N. Environmental Fund that had been proposed by the
President in February 1972 and agreed to at Stockholm the following
June. The President has proposed that the United States contribute
on a 40-60 matching basis to meet the Fund's initial 5-year goal of
$100 million. He included $10 million in the 1974 budget to carry
out the U.S. pledge. The House of Representatives recently passed
the necessary authorizing legislation.62 Other nations have pledged
$6 million for 1973 and a total of $53 million for the 5-year period.
Coordination between UNEP and the specialized U.N. agencies is
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GUIDELINES AND REPORTS
1321
being carried out through the Environmental Coordination Board
composed of the heads of UNEP and the specialized agencies. A report
on the initial activities of the Board was discussed at the first meeting
of UNEP's 58-member Governing Council, held in Geneva in June.
The Council decided upon procedures for use of the new U.N. En-
vironmental Fund and, after considering proposals regarding the 109
recommendations of the Stockholm Conference, instructed the Exec-
utive Director to develop programs for an information referral sys-
tem and global pollution monitoring. The Executive Director is to
present detailed proposals at the next Council meeting to be held in
Nairobi in March 1974.
Earthwatch Program—One major recipient of assistance from the
Fund will be the new Earthwatch Program, endorsed in Stockholm
and later approved by the General Assembly. Earthwatch is designed
to assess global environmental conditions; one of its first projects will
be to measure pollution levels around the world and study their ef-
fects on climate. A network of 110 monitoring stations will be set up
under the auspices of the U.N. World Meteorological Organization.
Ten baseline stations will be sited in remote areas for comparison of
air quality with that in developed areas. The Earthwatch Program
includes plans to monitor the oceans, radioactive wastes, food con-
tamination, and changes in the numbers of plants and animals which
might indicate hazardous conditions in the environment.
A scientist at the Earthwatch station at Mauna Loa Observatory, Hawaii.
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1322 LEGAL COMPILATION—SUPPLEMENT n
Conclusion
In previous Annual Reports, we pointed out that environmental
improvement in the United States depends upon responsive institu-
tions and adequate legal authorities. The same requirements hold
true in the international arena, although their achievement among
nations is more difficult than within nations. But as international
attention has focused on environmental concerns, there has been
progress in creating institutions and a body of international law and
practice necessary for global cooperation in preserving environmental
quality.
New institutions have been formed and older ones reformed. The
U.N. this year gave special status and funding to its new Environ-
mental Program (UNEP). Through UNEP, the U.N. should provide
more vigorous environmental leadership than was previously pos-
sible by its several agencies with uncoordinated environmental in-
terests. The United States recently proposed that IMGO be desig-
nated as the standard-setting agency for vessel discharges and ocean
dumping. This proposal was well received by the IMCO Council
and will be taken up at IMCO's October 1973 conference.
Regional institutions as varied as NATO and the Organization of
American States are turning attention to common environmental
problems. In Europe, where some of the world's worst transboundary
pollution problems are found, efforts to achieve controls across na-
tional boundaries are still in a preliminary stage. The U.S.-Canadian
Great Lakes Water Quality Agreement, as well as the institutional
arrangements emerging in the heavily polluted, multistate north-
eastern United States, may well serve as useful models for action.
The world community is also moving forward to adopt necessary
legal authorities to control pollution and preserve the world's natural
heritage. Ratification of international agreements requires more time
between proposal and enactment than is usually the case domestically.
Considerable international "legislation" is now pending before na-
tions for their approval. These include the new ocean dumping
convention and several new IMCO conventions and amendments.
A comprehensive new IMCO convention is anticipated this fall, and
the Law of the Sea Conference will take place next year. Two major
conventions to protect the world's natural heritage—the endangered
species and world heritage conventions—are also awaiting ratifica-
tion. Each is the first of its kind internationally.
As with domestic environmental problems, the most important
force for international action is broad public interest and commit-
ment to environmental quality. Rarely in history has a new concern
moved so rapidly from relative obscurity to a center position in deal-
ings among nations. Momentum for positive international action has
been established, and the outlook is promising.
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GUIDELINES AND REPORTS 1323
Footnotes
1. U.S. Department of Commerce Press Release, "Marine Scientists warn
of High-Seas Contaminants" (Feb. 13, 1973).
2. 42 Stat. 821-22 (Pub. Res., No. 65 of July 1, 1922).
3. Charter, D.B., and Porricelli, J.D., "Quantitative Estimates of Petroleum
into the Oceans," a paper presented to the Marine Environment Ocean
Affairs Board, National Academy of Sciences-National Research Council
(May 21-25, 1973).
4. International Convention for the Prevention of Pollution of the Sea by
Oil, May 12, 1954 [1961] 3 U.S.T. 2989, T.I.A.S. No. 4900, 327 U.N.T.S.
3; Sweeney, "Oil Pollution of the Oceans," 37 Ford. L. Rev. 155, 190
(1968).
5. Sweeney, supra note 4 at 192.
6. Prevention of the Pollution of the Sea by Oil Amendments Adopted by
the Conference of Contracting Governments to the Convention of 1954,
April 11, 1962, 17 U.S.T. 1523; T.I.A.S. No. 6109, 600 U.N.T.S. 332.
7. Sen. Exec. Print E, 91st Cong., 2nd Sess. (May 20, 1970).
8. Id.;H.R. 738, S.1067, 93rd Cong., 1st Sess. (1970).
9. Sen. Exec. Print K, 92nd Cong., 2nd Sess. (May 5, 1972).
10. Id.
11. Sweeney, supra note 4 at 193.
12. Water Quality Improvement Act of 1970, P.L. 91-224, 84 Stat. 91,
§§11-13; Marine Protection, Research and Sanctuaries Act, P.L. 92-532,
86 Stat. 1052; Water Pollution Control Act Amendments of 1972, P.L.
92-500, 86 Stat. 816, §§ 311-312.
13. Statement by Russell E. Train, Chairman of the Council on Environ-
mental Quality, to the Council of the Inter-Governmental Maritime Con-
sultative Organization in London, June 5, 1973.
14. Council on Environmental Quality, Ocean Dumping—A National Policy
(1970).
15. P.L. 92-532, 86 Stat. 1052.
16. Marine Protection, Research and Sanctuaries Act of 1972, P.L. 92-532,
86 Stat. 1052, Convention on the Prevention of Marine Pollution by
Dumping of Wastes and Other Matter, London, 3 E.L.R. 40329 (Novem-
ber 1972).
17. Agreement with Canada on Great Lakes Water Quality, T.I.A.S. No. 7312
(April 15, 1972).
18. P.L. 92-500,86 Stat. 816, §§ 2 (101(c)), 7.
19. 15 U.S.T. 1606; T.I.A.S. No. 5639.
20. 13 U.S.T. 2312; T.I.A.S. No. 5200.
21. 17 U.S.T. 138; T.I.A.S. No. 5969.
22. E.g., Arctic Waters Pollution Prevention Act, 18-19 Eliz. 2, c. 47 (Can.
1970) [Canada]; The Declaration of Santiago, 4 Whiteman, Digest of
International Law, § 17, pp. 1089-1090 (1965) [Chile, Ecuador, Peru].
23. 11 International Legal Materials (1972, unbound), 1416, 1420.
24. Environmental Protection Agency, Municipal Waste Water Systems Di-
vision, unpublished data, July 11, 1973.
25. Joint Communique Following Talks Between Richard Nixon, President
of the United States of America, and Luis Echeverria, President of the
United Mexican States, June 15-16, 1972 (June 17, 1972).
26. Unless otherwise indicated, the following discussion of pre-1972 actions
to protect the world's natural heritage is based on Caldwell, In Defense
of Earth, ch. 3 (1972).
27. L. Talbot, "Endangered Species," editorial, 20(6) Bioscience 331 (1970).
28. L. Talbot, "Why Care about the Javan Tiger?" 58 Christian Science
Monitor 13 (1967).
29. Plato, Timaeus and Critias 136 (Taylor, transl., 1929).
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1324 LEGAL COMPILATION—SUPPLEMENT n
30. Emperor Asoka, "Pillar Edicts" (250 B.C.), quoted by Maharajah of
Mysore, in Indian Wild Life Bulletin (December 1952).
31. International Convention on International Trade in Endangered Species
of Wild Fauna and Flora, Washington, March 3, 1973 (transmitted to
Senate for its advice and consent, April 13, 1973).
32. British & Foreign State Papers 102:969(F) Martens (2nd) 30:686(G),
March 19, 1902.
33. 39 Stat. 1702, U.S.T.S. No. 628; II Redmond 2645 (1916).
34. 172 L.N.T.S. No. 3995, 1935 (1936).
35. 56 Stat. 1354, 161 U.N.T.S. 193, T.S. 981 (Oct. 12, 1940).
36. 16 U.S.C. § 668 aa et seq.
37. See note 31, supra.
38. Unless otherwise indicated, information in this section on pre-1972 inter-
national whaling measures is based on Caldwell, supra note 26, at 63—66.
39. 49 Stat. 3079, 3 Bevans 26 (1931).
40. 35 Fed. Reg. 18319 (1970).
41. 16 U.S.C. § 1361 et seq.
42. International Whaling Convention, Dec. 2, 1946, 62 Stat. 1716, 4 Bevans
248, Marine Mammal Protection Act of 1972, P.L. 92-522.
43. 16 U.S.C. §21, R.S. §2474(1872).
44. Caldwell, supra note 26, at 185.
45. Id.
46. Message to the Congress on the Environment, 7 Presidential Documents
187 (Feb. 8, 1971).
47. Convention Concerning Protection of the World Cultural and Natural
Heritage, Paris (Nov. 16, 1972), Sen. Exec. Print F, 93 Cong., 1st Sess.
(1972).
48. P.L. 92-500, 86 Stat. 816, § 6.
49. Agreement Between the United States of America and the Union of Soviet
Socialist Republics, Cooperation in Environmental Protection, May 23,
1972, T.I.A.S. No. 7345.
50. University of North Carolina, Department of Environmental Sciences and
Engineering, "Collection, Tabulation, Codification and Analysis of the
World's Air Quality Management Standards," preliminary data from
Environmental Protection Agency contract No. 68-02-0556 (1973).
51. U.S. Department of Commerce, "The Effects of Pollution Abatement on
International Trade" (1973), a report to the President and the Congress
under § 6 of P.L. 92-500 (1972).
52. Ibid.
53. Ibid.
54. Ibid.
55. Chase Econometric Associates, Inc., "The Economic Impact of Pollution
Control Upon the General Economy. A Continuation of Previous Work,"
prepared for the Environmental Protection Agency (October 1972).
56. d'Arge and Kneese, "Environmental Quality and International Trade,"
26 International Organization 2 (Spring 1972).
57. The Netherlands Central Planning Bureau, "Economic Impact of the
Control of Water Pollution by Biodegradable Material" (Aug. 1972).
58. Unless otherwise indicated, information in this section on pre-1969 activi-
ties is based on Caldwell, supra note 26, at 119-144.
59. Organization for Economic Cooperation and Development, Recommenda-
tionsc(73) l(final) (20 Feb. 1973).
60. Council on Environmental Quality, Environmental Quality—The Third
Annual Report of The Council on Environmental Quality 105-107
(1972); 3 E.L.R. 40327 (1973).
61. See Caldwell, supra note 26, at 133-134.
62. H.R. 6768, 93rd Cong., 1st Sess. (1973). House passage, Cong. Record
3648, May 15, 1973; Senate passage, Cong. Record 10674, June 8, 1973.
372
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CHAPTER 8
The Citizen's Role in
Environmental
Improvement
The quest for environmental quality has been distinguished by the
commitment of concerned citizens, working together in organizations
across the Nation. In 1969-70—the period surrounding the first
Earth Day—citizen activities grew in size and scope. Established envi-
ronmental organizations gained members and took on new activities.
Many new organizations were founded. This chapter looks at the
citizen's role in environmental improvement, in particular at the dif-
ferent types of environmental organizations—their interests and ac-
tivities, their resources, and their problems. It focuses on the evolu-
tion of environmental organizations after the first Earth Day in April
1970.
The chapter is organized in five parts. The first section provides
a brief review of citizen activity prior to the late 1960's. The second
section illustrates the broadened concern characteristic of the new
environmentalism. The third section describes the different types
of environmental organizations. The fourth section reviews their
major activities. The final section discusses the resources and prob-
lems of citizen organizations.
The Development of Environmentalism
Interest in the environment is not a new phenomenon in the United
States. Throughout our history, citizens have been concerned with
natural values. Just as the country has changed, so have the environ-
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mental issues and the approaches employed in pursuit of environ-
mental goals. The history of the origins and growth of the environ-
mental movement is too extensive to summarize here, but a brief
description of several specific issues may give a sense of its evolution.
The Philosophical Foundation
America in the 18th and 19th centuries was dominated by the
frontier. Settlers perceived the continent both as a savage wilderness,
uncaring and frequently inhospitable to man, and as a bountiful
provider with inexhaustible resources of every kind. The destiny of
man was to tame the wilderness and exploit its resources. Little atten-
tion was paid to the consequences of doing so. If all the beaver in one
valley were trapped out of existence, there were more to be found
farther west. If grasslands were overgrazed by cattle, a new rangeland
could be found the next year. In a country with such riches, a need
for restraint was not imagined.
Nevertheless, the conservation movement in America established
its philosophical foundation during this early period. Thomas Jeffer-
son and Ralph Waldo Emerson were important early figures. In the
mid-19th century, several influential individuals appeared. John
James Audubon, best known for his paintings of birds, spoke out in
opposition to the destruction of wildlife. George Perkins Marsh
anticipated many of the concepts of ecology in his epic Man and
Nature, published in 1864. Beyond lamenting past environmental
destruction, he described interrelationships among plants and animals
and man's dependence on the balance of nature. He was the first to
question the notion that our natural resources are inexhaustible.1
His work was complemented by that of Henry David Thoreau. More
a philosopher than an activist, Thoreau quietly and eloquently re-
corded in his journal his conviction that preservation is a worthwhile
goal and that wilderness is justified by the inspiration that men can
draw from it.
These men were out of the mainstream of the commercial and
political life of the Nation. They had little impact on its policies. For
them, preservation was an ethical and moral issue. But their writings
provided the philosophical foundations for the next generation of
conservationists.2
Hetch-Hetchy
A controversy which arose in 1901 showed that these philosophical
concepts had found root but, by themselves, were insufficient to pre-
serve natural values. The issue concerned development of a water
supply for the city of San Francisco, which proposed to create a reser-
voir in the spectacular Hetch-Hetchy Valley in Yosemite National
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GUIDELINES AND REPORTS 1327
Park. The question was whether a manmade impoundment should be
allowed within a national park. Other sites were available, but the
Hetch-Hetchy site was the least costly.
The controversy drove a wedge between two well-known conserva-
tionists of the day, John Muir and Gifford Pinchot. Muir, the founder
of the Sierra Club, was a naturalist in the tradition of Marsh and
Thoreau. Pinchot—appointed Chief Forester and Director of the
Forest Service by President Theodore Roosevelt, a great conservation
leader—was the man most responsible for changing the original
national policy on natural resource utilization. He advocated man-
agement of the national forests so as to achieve sustained yields, rather
than the common practice of cutting large tracts of timber all at once
for immediate gain.3
Pinchot, however, had no sympathy for the preservation of invio-
late wilderness, viewing it as a waste of resources. He favored the
reservoir as a sensible resource development. Muir, a proponent of
wilderness, argued that the reservoir would be inconsistent with the
national park concept, that it would consume a magnificent scenic
area, and would offer no recreational benefits. Muir's philosophical
and ethical arguments proved to be insufficient when pitted against
the economics-based arguments of the proponents. In 1913 the
Hetch-Hetchy Reservoir was approved by the Congress.4
Developing New Arguments
In the early 1950's, a similar controversy showed that wilderness
advocates had learned to develop a broader set of arguments. The
case concerned the proposed Echo Park Dam in western Colorado—
the reservoir would flood a part of Dinosaur National Monument.'
A coalition of citizen environmentalists and conservation organiza-
tions formed to oppose the project. As before, the conservationists
argued for preservation as a philosophical concept. This time, how-
ever, they utilized hydrological studies of their own to support their
view that Echo Park Dam was not needed. As a result of the argu-
ments and of public support, Echo Park was dropped from the
development plans.5
Discovering New Tools
There remained as-yet-undiscovered and unused tools for the
conservationist cause. One of these, the use of an extensive mass
media public education campaign, was vital to conservation efforts
in another national conservation controversy, the proposed dam at
Bridge Canyon on the Colorado River below the Grand Canyon
National Monument. A reservoir behind Bridge Canyon would back
up 18 miles into Grand Canyon National Park. Proponents argued
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1328 LEGAL COMPILATION—SUPPLEMENT n
that the reservoir would generate necessary hydroelectric power and
irrigation water for the Southwest.' Conservation opponents argued
as before—that the dam would violate the National Park System
and jeopardize major scenic and geological resources.
This tune, however, the conservation forces were well organized.
In early 1964, the Izaak Walton League convened a conference of
over 1,000 conservationists to discuss Bridge Canyon Dam. Out of
this conference grew a coalition of national and regional conserva-
tion organizations and a general strategy of action. The Sierra Club
undertook a public education campaign built around Time and the
River Flowing, a photographic study of the scenic wonders of the
Grand Canyon and the Colorado River. A professional advertising
agency was employed for the first time to give a conservation issue
national exposure. At a later stage of the controversy, the Sierra
Club inserted a full page ad in The New York Times urging citizens
to write their Congressmen opposing the Bridge Canyon Dam. As
a result, the Sierra Club lost its tax deductibility, the only time this
has happened to an environmental group.
Meanwhile, the National Parks Association (NPA) (now the
National Parks and Conservation Association) was also taking a new
approach.6 It undertook an economic and engineering study of the
entire plan, devised its own water plan, and circulated the study
to key Government officials. The report argued that the Bridge
Canyon Dam was economically unfeasible and was unnecessary for
water resource development. Public opinion against Bridge Canyon
grew. In early 1965 the dam was dropped.
Thus, over the 60 years between Hetch-Hetchy and the late 1960's,
new techniques were developed to approach traditional conservation
issues. The ethical and philosophical concerns of John Muir were
buttressed with the economic and engineering arguments used in
the Grand Canyon controversy. Conservation leaders had changed
with the times in order to approach new issues more effectively.
The New Environmentalism
Over the last 5 years, traditional conservation has broadened into
the new environmentalism. This important shift has had a number
of consequences: the range of issues of concern to citizens has ex-
panded and new types of citizen organizations have appeared.
Traditional conservation was primarily concerned with the pres-
ervation of wilderness and wildlife, which continues to be an im-
portant theme. In addition, concern about pollution has increased.
Interest in air and water pollution has intensified, but citizens are
also concerned about other pollution issues like radiation, noise, and
pesticides.
The influence that citizen groups can have on national pollution
policy was demonstrated in late 1969 by the Citizen's Crusade for
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1329
The Santa Barbara oil spill in January 1969 spurred national environmental
awareness.
Clean Water, a coalition of 38 environmental groups, including the
AFL-GIO. The League of Women Voters, which had identified
water resources as a major focus of study as early as 1956, played a
key role in the Crusade. The objective of the coalition was to increase
Congressional appropriations for waste treatment construction grants
for fiscal year 1970. The Crusade pressed the Congress for appro-
priation of the full $1 billion authorized, compared to $214 million
in the budget. The House voted $600 million and the Senate $1
billion. A compromise of $800 million was reached in a House-
Senate conference committee.
Citizens have played important roles in dealing with other issues
of the new environmentalism. Land use regulation is an example.
New state initiatives in land use control—from the creation of the
San Francisco Bay Conservation and Development Commission to
the land use control system in Vermont—could not have come into
existence without strong citizen initiative and support. Citizens have
also addressed themselves to energy issues, particularly nuclear power,
as well as to solid waste recycling.
The broadening interests of citizens are also demonstrated by the
growing concern about the workplace environment. In January of
this year, the Oil, Chemical and Atomic Workers struck Shell Oil
Company over an issue of environmental health. The workers were
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LEGAL COMPILATION—SUPPLEMENT n
Public rallies were held frequently in the early days of the new environ-
mentalism.
concerned with air pollution inside several refineries and its effect
on their health. This was the first strike over what is fundamentally
an environmental issue. Several traditional conservation organiza-
tions, as well as a group of newer environmental organizations, sup-
ported the strike.
The concerns of the environmental movement are broadening
to include the urban environment, where 70 percent of our popula-
tion lives. This is evidenced by the recent formation in Washington,
D.C., of the Urban Environment Conference, composed of such
disparate organizations as the National Welfare Rights Organiza-
tion, the Environmental Policy Center, the National Tenants Asso-
ciation, the Sierra Club, the United Auto Workers, and others. The
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GUIDELINES AND REPORTS
1331
conference studies problems of urban transportation and housing
and investigates reports of industries threatening workers with job
losses when forced to install pollution abatement equipment.
On the local level, some environmental groups are working to
break down racial barriers and achieve improvement of the urban
environment. In Pittsburgh, 26 organizations have formed the Home-
stead-Brushton Clean-Up Coalition. In one day they removed 100
tons of debris from vacant lots. With a grant of $190,000 the Coalition
plans to inventory vacant lots and abandoned houses and cars, clean
litter from vacant lots, and build playgrounds and parks throughout
the community. The Coalition views its work as more than a cleanup.
It hopes to rehabilitate the community by bringing citizens together
and encouraging business to move back into the area.
Public opinion polls described in Chapter 3, Economics and En-
vironmental Management, indicate that concern for environmental
deterioration is strongly held by individuals at all income levels. None-
theless, membership in environmental organizations continues to
come primarily from white members of the middle and upper-middle
class. One recent indicator of the socioeconomic status of citizen
environmentalists is provided by a 1972 study conducted by the Na-
tional Center for Voluntary Action (NCVA), which surveyed some
Citizen volunteers are important in campaigns to clean up roadside litter.
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1332 LEGAL COMPILATION—SUPPLEMENT n
1,500 volunteers.7 The study indicated that 98 percent of the mem-
bers of environmental-conservation organizations is white. Most are
well educated, with 59 percent holding a college or graduate degree.
Occupationally, a total of 43 percent is engaged in the professional,
scientific-technical, academic, and managerial fields. One-half of the
NCVA respondents reported a total family income of over $15,000
per year; another 26 percent earned between $10,000 and $15,000;
the remaining 24 percent earned less than $10,000.
Types of Environmental Organizations
There are many ways that the characteristics of environmental or-
ganizations can be presented. We have chosen to begin with com-
munity and youth groups at the local level, then to review coordi-
nating and resource organizations at the state and regional levels, and
to conclude with the national organizations.
Community Organizations
Most citizens become involved in environmental issues in their
own communities. There was a tremendous growth in both the
membership and number of community environmental organizations
around the first Earth Day. Some concerned citizens formed new
community organizations while others chose to take part in the
activities of already established organizations, such as a local affiliate
of the National Wildlife Federation or chapter of the Sierra Club.
By far the most questionnaires returned in a recent survey con-
ducted by the Council came from community organizations.8 Slightly
more than half of these organizations said that they were founded
during or after 1969.
While the environmental movement at the community level is
marked by a myriad of interests, many organizations are concerned
with a single issue. Members coalesce around a single problem or
need—to save a local park from commercial development, perhaps,
or to provide educational materials and speakers for local meetings or
to act as an advisory committee to the city government.
After the Santa Barbara oil spill, for example, local citizens formed
Get Oil Out, Inc., dedicated to stopping oil pollution in Santa
Barbara Channel. GOO distributes information about oil pollution
to other environmental groups.
In Lebanon, Ohio, the 2,000 members of Little Miami, Inc., are
dedicated to the protection of the Little Miami River. The group was
instrumental in drafting Ohio's Scenic Rivers Act and in securing
protection under the Act of 105 miles of the river.
The environmental movement at the local level is fluid. Organiza-
tions often disband when an issue is resolved. In ongoing organiza-
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GUIDELINES AND REPORTS 1333
tions, the number of members, amount of financial resources, and
degree of community support tend to fluctuate in response to the
presence or absence of community issues.
Most community environmental organizations have no office or
full-time staff. Entirely voluntary, they rely heavily on the energy of a
few key people. Sometimes the existence of a group is threatened by
the departure of a leader who moves away or becomes interested in
other activities. A successful environmental group must continually
recruit new members. Many groups surveyed reported that indi-
viduals tend to become interested and active only when they are
directly touched by an environmental problem—such as when their
neighborhoods are threatened by an unwanted development.
Many citizen organizations are learning not only to react to
unwanted projects but to go a step beyond—to help in planning
better alternatives. Rather than oppose one zoning change after
another, for example, some community groups are working for re-
gional land use planning. In some cases, a citizen organization has
become an advisory committee to a local government or planning
agency.
Whatever the particular interest or activity, community orga-
nizations allow a person to participate in environmental decision-
making in his own area, and they provide essential grassroots support
for the envirmental movement.
Youth Groups
The recent surge in environmentalism owes much of its impetus to
the activities of young people. The Environmental Teach-in was
conceived as a student activity, and it was toward campuses that the
initial Earth Day efforts were directed. The staff of the Washington
office set up to support Earth Day activities was recruited from the
campus.
Students responded to the environmental issue with enthusiasm.
On some campuses, responsibilities for planning events were shoul-
dered by existing groups. On others, new organizations were formed.
Most Earth Day activities were designed to expand public awareness
of environmental problems. Student groups sponsored workshops,
held rallys, and marched in protest against environmental degrada-
tion. In retrospect, it was the energy, enthusiasm, and even showman-
ship of students that gave Earth Day its unique flavor.
Now, 3 years later, there are far fewer environmental organizations
on the college campus. Many groups, set up to plan and carry out
activities for Earth Day, disbanded soon after. Some attempted to
continue their activities but could not survive. The college campus
is a difficult place to sustain an organization. The academic year
is broken by examinations and vacations; summer vacations some-
times dampen enthusiasm for the cause popular during spring
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LEGAL COMPILATION—SUPPLEMENT n
semester. There is a constant turnover in the student body, so groups
always need to recruit new members. In many cases, the continuity
of campus organizations depends on key leaders, and when they grad-
uate, no one takes their place. The result has been instability—groups
forming and dissolving, with new interests and activities as new
leaders emerge.
Recently many college groups have turned their attention toward
the local community, working with other conservation and environ-
mental organizations in an area. The students still bring energy and
enthusiasm to environmental issues, but it is now channeled toward
more tangible activities. Where once they paraded, protested, and
picketed, students now research land use patterns, compile environ-
mental voting records, lobby in state legislatures, and seek new ways
to become involved in decisionmaking within established institutions
and procedures.
One example of this new direction of student environmentalism is
the Minnesota Public Interest Research Group (MPIRG) supported
by 90,000 Minnesota college students on 19 campuses. MPIRG es-
tablished a coalition of 14 environmental groups in the spring of 1972.
The membership spent the summer studying statewide environmen-
tal issues, then drafted and submitted 11 environmental bills to the
State legislature.
Student environmental organizations, like community groups, tend
to be small and poorly financed. Of 93 college organizations respond-
ing to the Council's questionnaire, 47 percent indicated that they have
Young people are especially concerned about environmental problems. These
students are learning how to detect water pollution.
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GUIDELINES AND REPORTS 1335
fewer than 25 members, and 59 percent reported an annual budget
of less than .$500. Membership dues are the primary source of funds
for 24 percent of college groups, while 52 percent rely on special fund-
raising projects. About 10 percent is supported primarily by alloca-
tions from the student government treasury.
High school students too have shown a strong environmental con-
cern, and the history of high school groups is similar to that of college
organizations. Many high school groups were organized for the first
Earth Day. Lacking the resources of a university community, most
were not able to go beyond their Earth Day efforts to more lasting
projects. Groups with strong leaders and interested members, how-
ever, were able to carry on. They encounter many of the same ob-
stacles that have hampered college groups—fragmentation of the
school year by exams, loss of leadership, and lack of resources.
Activities at high schools are almost entirely volunteer. Only three
groups reported a budget of more than $1,000, and 60 percent indi-
cated that they spend less than $500 annually. One student leader
probably spoke for the majority of high school groups when he said,
"We have no true treasury as our financial resources are usually spent
before they can be recorded into a book." Income derives primarily
from the operation of small recyling centers or from the sale of educa-
tional materials.
Despite their meager resources, some high school groups are quite
active. In Winston-Salem, N.C., for example, Youth for a Cleaner
Environment recently began to monitor pollution in one of the city's
urban creeks. Students walked the length of the creek, carefully not-
ing the location and nature of each discharge. The group sent a report
to the city government which forwarded it to the State for action.
They visited owners of businesses that were polluting the creek,
showed them their findings, and asked their help in stopping the pol-
lution. The students also conducted a guided tour for newspaper
reporters and public officials. The effort of this high school group has
kept local citizens aware of pollution in their community and, in
several instances, has led industries to stop their discharges. Youth
for a Cleaner Environment has also carried out other projects—in-
cluding a recycling center and an ecology fair—and has given nu-
merous speeches about environmental problems in Winston-Salem.
One incentive for high school students to work for environmental
quality is the President's Environmental Merit Awards Program. The
Program recognizes student projects which lead to environmental
understanding or improvement. Projects may involve education,
preservation, restoration, or planning. Evaluation is by a local com-
mittee, which may determine that the individual, group, or school
should receive either the President's Environmental Award or the
President's Special Award for Environmental Excellence. The for-
mer is given for having taken part in an environmental project; the
latter recognizes special achievement. Since the inception of the
Program in October 1971, about 12,000 awards have been presented.
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Students in Flint construct a nature trail near their school.
State Coordinating Councils
In a growing number of areas, community and student environ-
mental groups have joined to form a coordinating council. The
objective is straightforward: by speaking with a single voice, the sev-
eral groups can increase their effectiveness. Although the primary
interests of the various member groups may differ, they lend their
names and support to positions taken by the governing board of the
council.
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GUIDELINES AND REPORTS 1337
Coordinating councils sometimes maintain close ties with national
environmental organizations and serve as a liaison between local and
national groups. Several support one or more representatives in their
state capitals to present the views of environmental groups; many
publish a regular newsletter to keep their members up to date on
environmental issues. Such councils are supported by membership
dues paid by organizational and individual members.
The Oregon Environmental Council (OEC) typifies the activities
of state coordinating councils. It represents 85 organizations, includ-
ing groups as diverse as Portland Planned Parenthood, Willamette
River Greenway Association, and Oregon Citizens for Clean Air. The
OEC also has 2,000 individual members.
OEC's small full-time staff is involved in a broad range of en-
vironmental activities. It has sponsored or helped develop many
bills in the Oregon Legislature, including legislation related to coastal
planning, open space taxation, and the establishment of bicycle trails.
It has also testified at numerous public hearings on nuclear power,
timber management, wilderness protection, and urban development
proposals; filed suits against the Oregon State Highway Division and
HUD alleging failure to comply with the National Environmental
Policy Act; and published the 64-page To Live with the Earth,
which outlines ways that individuals can minimize their adverse en-
vironmental impact.
Problems are sometimes encountered in achieving concensus among
groups located in different parts of a state or interested in different
issues. Conflicts arise from the natural desire of member organizations
to retain their autonomy. A coordinating council may need several
days to coordinate a position with all constituent groups. The Con-
servation Council of Virgina (CCVa) is one coordinating council that
has dealt successfully with such problems.
CCVa was organized in 1968 after a hearing before the Virginia
General Assembly convinced several environmentalists that if con-
servation groups could cooperate and organize, their united voice
would make them more effective. They convened a group of 70 en-
vironmental leaders later that year and reached agreement to es-
tablish a coordinating structure. A steering committee drafted bylaws
which reflect the groups' desire to work together without sacrificing
their autonomy. The Council may speak for any of its constituent
groups only upon written request from that group. Upon formal re-
quest of a member group, the Council will specify which of its or-
ganizations, if any, dissent from the Council's stated position or
course of action.
CCVa members generally feel that these procedures have worked
well. In practice, some Council actions simply infer the support of
the member organizations, especially if the action regards an issue
on which a member organization has taken no formal position. When
a consensus does not appear to exist on an issue, the Council often
takes no position.
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Regional Service Centers
There are 11 regional service centers located throughout the
country: from Environment/Alaska in Anchorage to the Environ-
mental Information Center in Winter Park, Fla., and from the New
England National Resources Center in Boston to California To-
morrow in San Francisco. Most were organized in recent years with
the aid of the Conservation Foundation. They are tax-exempt, non-
profit educational organizations. Foundation grants and private do-
nations constitute most of their annual budgets, which range from
$7,500 to $200,000. Most maintain a full-time staff of four or five
professionals and publish a regular newsletter. Their programs vary
somewhat, but their general purpose is to strengthen the effective-
ness of local environmental organizations by carrying out projects and
assuming functions which are beyond the means of the local groups.
One of the first and largest of the regional service centers is the
Rocky Mountain Center on Environment (ROMCOE). Established
in 1968 in Denver, it now serves the eight Rocky Mountain States
of Arizona, Colorado, Idaho, Montana, Nevada, New Mexico, Utah,
and Wyoming. ROMCOE's professional staff of 10 provides en-
vironmental services to government, commerce, and the general
public, in addition to environmental organizations. These services
include forums on environmental topics, ecological research, en-
vironmental planning assistance, and information and clearinghouse
functions.
ROMCOE's record of activities and accomplishments is long and
diverse. Among other actions, it has conducted conferences to bring
business and environmental interests together to discuss such topics
as power development in the Southwest, has provided office services
and conference space to numerous citizen groups, has helped orga-
nize citizen environmental groups in several states, and has analyzed
possible impacts of ski area development in the Vail area.
National Organizations
National environmental organizations are more familiar to the
general public. They too have diverse characteristics. Some, like
Environmental Action, Inc., Friends of the Earth, the Sierra Club,
and the National Audubon Society have wide environmental inter-
ests, others not. The Wilderness Society, for example, concentrates
primarily on the preservation of wilderness, and the Sport Fishing
Institute is dedicated to the protection and propagation of gamefish.
Both organizations, however, sometimes take positions on other issues.
Some national organizations have members across the Nation. Of
these, the National Wildlife Federation is the largest, with 3.5 mil-
lion members. Other large membership organizations—the Sierra
Club, Wilderness Society, Friends of the Earth, National Audubon
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GUIDELINES AND REPORTS
1339
Figure 1
Major Activities of Environmental Groups
65%
51%
46%
23%
19%
17%
7%
2%
Information Dissemination
Public Meetings and Discussions
Participation in Hearings
Recycling
Legislative Research and Drafting
Lobbying
Litigation
Protests and Demonstrations
I I I I
10 20 30 40
Percentage of groups
50
60
Source' Clem L. Zinger, Richard Dalsemer, and Helen Magargle, 1972, Environ-
mental Volunteers in America, prepared by The National Center for Voluntary Action
for the Environmental Protection Agency under Project No. R801243
Society, and Sport Fishing Institute—represent 530,000 citizens. The
League of Women Voters, with 152,000 members, devotes a substan-
tial amount of its effort to environmental issues. Still other national
organizations such as the Environmental Policy Center do not seek
members.
More than other environmental groups, the national organizations
monitor the development of national environmental policy, gather
data and develop information on national environmental problems,
and identify issues. The leaders of the national environmental orga-
nizations communicate with members and groups at the state and
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1340 LEGAL COMPILATION—SUPPLEMENT 11
Workshops are used to train citizen environmental leaders.
local levels. Thus, the national organizations play a leadership role
for citizen environmentalists throughout the Nation.
Activities
Activities of environmental groups today reflect the breadth of
interests of the new environmentalism (see Figure 1). Groups are
involved in activities as diverse as taking handicapped children on
camping trips, building vest pocket parks, monitoring noise pollu-
tion, and lobbying against billboards.
• In New York City, Volunteers in Parks organizes cadres of
volunteers to maintain city parks, including cleanup and land-
scaping projects.
• In Natick, Mass., the Lake Cochituate Watershed Association,
Inc.-, has trained and equipped over 50 volunteers to monitor
water quality. When pollution is discovered, the group makes a
complaint and follows through to see that the problem is
remedied.
• In Chicago, Businessmen for the Public Interest has filed a
number of lawsuits and published long reports on more than
20 industrial polluters of Lake Michigan.
• In Massachusetts, the Nantucket Conservation Foundation,
Inc., purchases and preserves unique tracts of land. It recently
created a system of bicycle paths to make its holdings more
accessible.
Summarizing the range of environmental activities is not simple.
The problem is complicated further because some environmental
groups concentrate on one activity, whereas others pursue many
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GUIDELINES AND REPORTS 1341
interests. Nevertheless, the activities of environmental groups can be
generally described under five headings: information dissemination,
political action, recycling, legal action, and land acquisition.
Information Dissemination
Many environmental organizations see information dissemination
as a major tool for effecting a better environment. Seventeen percent
of the groups responding to the Council's survey indicated that
education and information projects were their primary interest.
At the national level, Environmental Action, the Wilderness
Society, the Sierra Club, and Friends of the Earth, among others, pub-
lish periodicals to keep their readers informed about major environ-
mental issues. The latter three report on proposed legislation and
urge writing letters to Congressmen about specific bills. The National
Wildlife Federation (NWF) publishes three periodicals with a total
circulation of more than 1 million. In addition, NWF supplies a large
amount of educational materials to libraries and schools.
The Sierra Club and Friends of the Earth direct a large part of
their efforts toward conservation and environmental education. Both
organizations publish photographic essays on spectacular natural
areas, often including the writings of such famous wilderness advo-
cates as Muir, Thoreau, and Aldo Leopold. These publications have
received worldwide acclaim.
Publications of national groups also report on environmental issues.
The Sierra Club has produced a number of paperbacks exploring
energy use, oil spills, strip mining, and the like. Groups organized by
Ralph Nader have published books describing the nature and extent
of air and water pollution and critiquing abatement efforts by Gov-
ernment and industry.
The educational efforts of some national organizations are directed
at a more specific audience. The Natural Resources Defense Council
(NRDC), through its Project on Clean Water, distributes interpre-
tive material and notices of pending Federal and state actions in
order to help citizens participate in the campaign for cleaning up the
Nation's waterways. The Conservation Foundation, in addition to
its many other activities, frequently sponsors citizen training work-
shops. Its regional workshops on the Clean Air Act of 1970 were
instrumental in the founding of numerous clean air coalitions in
various cities.
The regional service centers also regularly provide educational
materials to other environmental organizations. An illustration is
the Central Atlantic Environment Center which was established
in 1971 to provide accurate environmental information to citizens
in Maryland, Virginia, Delaware, and the District of Columbia. The
Center's main activity is to keep interested citizens informed of
regional developments that impact on the environment. The Center
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1342 LEGAL COMPILATION—SUPPLEMENT n
has published articles on such topics as public management of wet-
lands and the effects of land use planning on the future of Chesa-
peake Bay. In addition, it supports the educational activities of
statewide citizen conservation councils in Virginia and Maryland.
It produces a monthly package of information materials for the Con-
servation Council of Virginia that enables representatives of more
than 40 organizations to maintain communication and keep up to
date. The Center also organizes field trips in Maryland so that the
citizens can learn about environmental issues and see critical areas
firsthand.
Student groups originally placed great emphasis on educational
projects. Today, however, few list information dissemination activi-
ties as their primary function. This decrease of interest in educational
projects may reflect the increasing incorporation of environmental
studies programs into the curriculum, which to some extent obviates
the need for the student efforts.
Among community organizations, education is still a popular ac-
tivity. Many local groups maintain a speakers' bureau to lecture on
environmental topics at community schools and clubs. CONCERN,
Inc., an organization in Washington, D.C., with multiple activities,
has prepared and distributed a large number of publications on
various environmental issues such as drinking water and solid waste.
Groups formed to address a single local issue often disseminate
information about their particular concern. For example, the Ruther-
ford County Conservation Council in North Carolina recently pre-
pared an extensive analysis of a proposed reservoir, including its
costs and impact on the community. Council leaders believe that
the analysis had a significant impact on the opinion of citizens in
the community.
Political Action
Lobbying and other forms of political action are another mode of
action used by some environmental groups. The first registered en-
vironmental lobbyist in Washington, D.C., began his work in 1954
during the Echo Park Dam controversy. Now there are more than 30
registered environmental lobbyists in the halls of the Congress. Lobby-
ing at the national level is undertaken by the Sierra Club, Friends of
the Earth, and Environmental Action, among others. The Environ-
mental Policy Center was organized in 1972 specifically to press for
strong environmental legislation. Its full-time staff of 11 is involved
in a variety of issues—among them strip mining, water resources
projects, national land use policy, and national energy policy.
The League of Conservation Voters illustrates another form of
political action. It compiles charts and ranks legislators according to
their votes on a number of carefully selected environmental bills.
LCV also raises funds and helps organize local campaign efforts. In
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GUIDELINES AND REPORTS 1343
the 1972 elections, the League distributed over $60,000 in campaign
donations and publicly endorsed 57 candidates, of which 43 were
elected. In several states, organizations modeled on the LCV have
initiated activities.
At the state level, some coordinating councils maintain one or more
lobbyists in the capital to represent their interests before the legisla-
ture and to keep citizens informed. The Oregon Environmental
Council, for example, publishes a weekly calendar of legislative
events. The calendar is telephoned to the main office by the Legisla-
tive Director every Friday and is in the hands of OEC's members by
Monday morning.
Citizens are also politically active at the local level. In western
North Carolina, the Upper French Broad Defense Association
(UFBDA) has opposed the construction of 14 reservoirs in the upper
French Broad Basin for several years. During the 1972 elections,
UFBDA worked actively for Board of County Commissioners candi-
dates who were unsympathetic to the reservoir plans. Members of the
organization served as campaign chairmen and workers for these
candidates. UFBDA sponsored public meetings to provide a forum
for the candidates and mailed information about the candidates to
its members. All its candidates won seats on the Board. Official sup-
port for the project diminished, and shortly thereafter the Tennessee
Valley Authority withdrew the proposal.
In the Northeastern States, conservation commissions have devel-
oped as important avenues of citizen participation at the community
level. These States have enacted legislation enabling a local govern-
ment to appoint citizens to a conservation commission which then
serves as an advisory body to the elected governing board. Since the
first in Massachusetts in 1957, local conservation commissions have
become established in Connecticut, Rhode Island, New Hampshire,
Maine, and, most recently, New York and New Jersey. The number
of commissions has increased rapidly in recent years. In 1969, ap-
proximately 570 were operating. By 1973, the number had grown to
more than 1,300 with a total of 9,000 members. The concept is draw-
ing attention in other parts of the country.
The activities of conservation commissions vary, depending on a
state's enabling legislation and the interests of the community that
they serve. Some commissions evaluate and comment on environ-
mental impact statements for Federal and state projects in their
area. Others acquire and protect open space land. Recently the
Commonwealth of Massachusetts gave conservation commissions
a major role under its Wetlands Protection Act. Local commissions
are responsible for regulating development in coastal lands and
waters by issuing permits and restrictive orders.
Perhaps most important, but impossible to assess, is what environ-
mentally concerned citizens do, as individuals, in determining the
directions of national environmental policy through the electoral
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process. No statistics are available on the number of letters that in-
dividuals write to their Congressmen, bqt environmental issues have
been important in many recent campaigns.
Recycling
Many citizens have participated in operating recycling centers. A
large number were established at the time of Earth Day. Most re-
cycling centers were manned by volunteers'and operated 1 or 2 days
each week. People were asked to bring cans, bottles, and newspapers
to the recycling center and to separate and place them in containers.
After volunteers crushed the glass, flattened the cans, and baled the
Most recycling centers depend upon the cooperation of individual citizens.
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GUIDELINES AND REPORTS 1345
newspapers, someone had to truck the materials to an industrial re-
ceiving point. After a few months, many recycling centers of this
kind ceased to function. It was difficult to recruit volunteers to work
Saturday after Saturday or to convince people to bring their recycla-
ble materials to the center. Further, unless a receiving point were
located nearby, small volunteer recyling centers were economically
marginal.
Nonetheless, recycling continues to be a major activity for 10 per-
cent of the organizations polled by the Council. Students in particu-
lar are very active in recyling efforts. Fifty-seven percent of the high
school groups and 35 percent of the college groups indicated that re-
cycling is their major activity.
Recycling groups are generally small. Forty-two percent has fewer
than 25 members, while the remainder have memberships ranging
up to 500. As may be expected, the primary source of income for
many (54 percent) of these organizations is the sale of recycled ma-
terials (see Figure 2.) Another 37 percent relies primarily on mem-
bership dues.
Some environmental groups have succeeded in making recycling
profitable. The Citizens Environmental Council in Kansas City, Mo.,
recycled 1.2 million pounds of newspapers in 1972 and realized a
gross profit of $13,000. Its success is due largely to the nearby loca-
tion of a packaging company which buys the newspapers. The profits
from this activity have assured its long-term success.
Legal Action
Several environmental groups have been organized especially to
bring legal expertise to solution of environmental problems. At the
state and local levels, a number of public interest law firms under-
take environmental litigation. At the national level, two of the best
known are the Environmental Defense Fund (EDF) and the Natural
Resources Defense Council (NRDC).
EDF was founded in 1967. Though it has a membership, its
work force consists of a team of lawyers and scientists. The legal staff
prepares cases for litigation, and the scientists testify as expert wit-
nesses in court. EDF has taken part in a number of environmental
cases such as suits to block the Cross-Florida Barge Canal 9 and suc-
cessful litigation leading to the 1972 ban of most uses of DDT.10
NRDC is predominantly lawyers. It has been involved in a wide
range of environmental litigation, including suits to delay offshore
oil leases in the Gulf of Mexico until an adequate environmental im-
pact statement was prepared,11 to require the Soil Conservation Serv-
ice to file environmental impact statements on its channelization
projects,12 and to halt the use of the carcinogenic growth stimulant,
DES, in beef cattle feed.13 This last case resulted in a ban on DES by
the Food and Drug Administration.14 NRDC has also monitored
393
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1346
LEGAL COMPILATION—SUPPLEMENT n
Figure 2
Primary Source of Operating Funds of
Recycling Groups
Donations of less than $50 Donations of more than $50
Recyclable
Materials
5*'%
Non-Federal Grants
EPA's implementation of the Clean Air Act and the Federal Water
Pollution Control Act Amendments of 1972.
The Sierra Club has been active in litigation through private at-
torneys and its own Legal Defense Fund. One suit resulted in the
recent Supreme Court decision requiring state implementation plans
to prevent deterioration in air quality.15 The Club is also pursuing
litigation to restrain commercial development of the Mineral King
area of California's Sequoia National Forest.16
Environmental legislation of recent years has increased the oppor-
tunities for citizens to participate in the environmental decision-
making of government through hearings and by appeal to the courts.
Of particular importance is the National Environmental Policy Act.
Section 102(2) (C) of that Act requires that every Federal agency
394
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GUIDELINES AND REPORTS 1347
prepare a written environmental impact statement on every major
Federal action that has a significant impact on the environment.
Under CEQ guidelines, this statement is first issued in draft form,
giving the public and other Federal, state, and local agencies an op-
portunity to comment on and evaluate the agency's analysis. Com-
ments, including those of citizens, are reviewed and incorporated into
the final draft of the impact statement. Citizens have successfully
sought judicial review when an impact statement was not forthcom-
ing or when one did not comply with requirements of the Act. Cou-
pled with the Freedom of Information Act, NEPA has thus afforded
the citizen the right to know about, participate in, and ultimately
challenge a wide variety of informal agency actions. NEPA is dis-
cussed more fully in Chapter 5, Perspectives on the Environment.
Provisions explicitly allowing citizen enforcement have been in-
cluded in recent Federal pollution control legislation. First incorpo-
rated in the 1970 Clean Air Act, the citizen suit provision has sub-
sequently become a part of Federal legislation regarding water pollu-
tion, noise pollution, and ocean dumping. These provisions allow
citizens to initiate civil suits against persons alleged to be in violation
of the law and against the Administrator of EPA for failure to per-
form a nondiscretionary act. A number of citizen suits brought under
the Clean Air Act are currently pending in the courts.
Litigation is sometimes avoided through compromise. An example
is the recent controversy surrounding construction of a $150 million
liquid natural gas (LNG) import facility in Maryland on Chesapeake
Bay. The Columbia LNG Corporation planned to construct terminal
and storage facilities on a 1,100-acre tract adjacent to Calvert Cliffs
State Park. Vessels would have unloaded at a mile-long pier on the
Bay. A coalition of conservation organizations—led by the Sierra
Club and the Maryland Conservation Council and including the
League of Women Voters, National Aububon Society, and Izaak
Walton League—filed suit in the U.S. District Court. They appealed
the Federal Power Commission's approval of the facility on the
grounds that the tract had been designated by the State of Maryland
as a proposed addition to the State park.17
The parties were able to reach a compromise and settle out of
court. Columbia LNG Corporation agreed to use only 323 acres of
its 1,100-acre site for construction of facilities and to dedicate 600
acres to open space, of which 125 acres will be open to the public. In
addition, the Corporation agreed to replace the proposed pier with a
6,000-foot underwater pipeline and to lease a mile-long beach and a
190-acre fresh water marsh to the State for $1 per year.
Law students are also active in environmental law. At several
universities they provide legal assistance to other environmental
groups and, in some cases, participate in legal proceedings. At the
University of Michigan, the 40 members of the Environmental Law
Society have assisted in drafting several new laws. In addition, the
Society has filed friend-of-the-court briefs in a number of environ-
395
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1348 LEGAL COMPILATION—SUPPLEMENT n
mental suits, helped attorneys with legal research, and appeared at
several administrative hearings. A Harvard Law School group has
participated in legal activities, including a citizen suit under the
Clean Air Act to require EPA to promulgate aircraft emissions
standards.18
Land Purchase
Some environmental organizations emphasize preservation of land
in its natural state. Prominent nationally is the Nature Conservancy.
The Nature Conservancy acquires land by purchase or gift and either
retains ownership or transfers title to another group who will be
responsible for its conservation. In addition, the Nature Conservancy
sometimes aids other organizations and agencies in negotiating a
land purchase. Since 1953, it has been involved in nearly 1,000
preservation projects totaling some 380,000 acres of land. Lands held
by the Nature Conservancy are available for educational purposes.
Often nature trails and interpretive materials are developed.
Acquiring land for wildlife habitat is an important activity of some environ-
mental organizations.
The Environmental Movement—Resources
and Problems
Membership
According to the Council's survey, there are now about twice as
many environmental organizations as before Earth Day. One-half
the groups from which the Council heard did not exist before 1969.
396
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GUIDELINES AND REPORTS
1349
The newer groups appear to be as firmly established as the older
ones. Most of the weaker organizations have disappeared, and the
number of organizations is beginning to stabilize.
The number of individual environmentalists., however, appears to
be still growing. Over 50 percent of the groups responding to the
Council's survey reported an increase in membership since Earth Day,
and another 24 percent reported a stable membership. Only 13 per-
cent of the groups has fewer members.
Most environmental organizations are rather small: 63 percent
reported a 1972 membership of less than 500, and 18 percent had
fewer than 25 members (see Figure 3). Groups formed before Earth
Day tend to be larger. Forty-nine percent of the older groups re-
ported current memberships of more than 500 citizens. Only 22
percent of the newer groups reported memberships that large. Con-
versely, 50 percent of the newer groups has fewer than 100 members;
the corresponding figure for older groups is 25 percent. The smaller
Figure 3
Size of Environmental Groups
Formed before
1969
I Formed during or
I after 1969
(Total Included in
CEQ Survey
397
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1350 LEGAL COMPILATION—SUPPLEMENT n
size of the groups founded around Earth Day may reflect the fact
that many (40 percent) were formed to address a specific environ-
mental issue and thus attracted fewer members than if they had
worked on many different projects. Of course, these groups have
been established for a comparatively short period and have had less
opportunity to build a large membership.
As in most volunteer organizations, the majority of the work is
done by a few extremely active members. Their number is in many
ways a better indicator of a group's manpower resources than total
membership. The study by the National Center for Voluntary Action
(NCVA) attempted to distinguish between active and total member-
ship. It indicated that the number of active members has increased
in 59 percent of environmental organizations and has remained stable
in another 36 percent. In only 5 percent of the groups has the num-
ber of active members decreased.
The rapid growth of environmental groups creates the problem
of organizing and coordinating volunteer members. Most environ-
mental leaders are extremely busy, speaking frequently to civic
groups, traveling to conferences and meetings, and planning and
directing projects and activities. Thus pressed for time, they are
often unable or unwilling to take time to train others to share the
workload. The NCVA survey showed, not surprisingly, that most
environmentalists are more interested in pursuing environmental
issues than in performing the housekeeping chores of organizing
membership drives, cataloging and filing material, and supervising
project committees. Leaders of the more viable organizations have
learned to fulfill organizational and management roles in order to
hold their organizations together.
Income
Membership size is also important because many organizations,
especially community groups, rely on membership dues and dona-
tions for their operating funds. Such groups sometimes have a weak
financial base (see Figure 4). One large and very active group
experiences an annual membership turnover rate of 37 percent. So
far, new memberships have balanced losses so that financial support
has been steady. If new memberships should decrease substantially,
the organization would be in serious financial trouble.
Overall, 61 percent of the groups reported dues and small dona-
tions as their primary source of income. Because memberships are
growing, annual budgets of most environmental groups are also
growing. Budget increases were reported by 65 percent of the groups;
only 15 percent reported a decline. Budget trends are similar for old
and new groups.
Although most budgets are increasing, they are still quite small
(see Figure 5), and many groups reported that inadequate funds
398
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GUIDELINES AND REPORTS
Figure 4
Primary Source of Operating Funds of
Environmental Groups
1351
Federal Grants
Non-Federal
Grants
19%
Other (publications,
sale of recyclable
materials, special
projects, etc.)
prevented them from accomplishing as much as they would like. The
Council's survey showed that 69 percent of the respondents, pre-
dominantly community organizations, have annual budgets of less
than $5,000, from which postage, telephone, research, duplication
of materials, and travel to meetings and public hearings must be paid.
Litigation is limited for most environmental groups unless an attorney
will work for little or no fee. Often day-to-day expenses are paid
out of the pockets of a group's more active members.
Some organizations obtain tax-deductible status in an attempt
to attract donations. Donations are the primary financial support
for 21 percent of the organizations responding to the Council's
questionnaire.
399
-------
1352
LEGAL COMPILATION—SUPPLEMENT n
Figure 5
Annual Budgets of Environmental Groups
$30,000
or more
Formed
before 1969
Formed
during or
after 1969
Total groups
included in
CEQ Survey
$10,000-
10 20
Percentage
400
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GUIDELINES AND REPORTS
1353
Grants from the Federal Government and private foundations are
another source of funds. Federal grants are the main form of sup-
port for only 4 percent of environmental organizations. For the most
part, these groups are engaged in educational activities such as pre-
paring curriculum materials or sponsoring demonstration recycling
projects. In fact, environmental groups with a primary interest in
information dissemination, which is a costly activity, are able to
draw larger financial backing than are other groups. Twenty-seven
percent of the groups has a budget of more than $30,000, a reflection
of the availability of Federal and foundation grants for environ-
mental education (see Figure 6). Of all environmental groups, in-
cluding the comparatively large national organizations, only 14 per-
cent has a budget of that size.
Figure 6
Primary Source of Operating Funds of
Educational Groups
Donations of more than $50
Non-Federal
Grants
17%
Other
(special projects)
401
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1354 LEGAL COMPILATION—SUPPLEMENT n
Foundation grants support about 4 percent of the environmental
groups. Most of these are national organizations, such as the Natural
Resources Defense Council, or regional service centers, such as the
Rocky Mountain Center on Environment. The long lead time neces-
sary to plan and apply for foundation grants does not make this
method of funding workable for most environmental groups. Some
environmental education organizations can plan their activities in
this way, but action-oriented groups cannot. Further, many major
foundations have been unwilling to support organizations engaged in
controversial issues.
Lack of funds has made it impossible for most community groups
to rent office space or hire staff. Many organizations do not have a
real office. The base of operations may change frequently as individ-
uals tire of handling organization business from their homes. Such
groups often lack the sense of permanence and community identity
that an identifiable headquarters brings. The NCVA study found that
groups with a full-time staff are likely to be active on a wider variety
of issues, to use a wider variety of techniques, and cooperate more
often with other groups.
Commitment
Statistics on numbers of members and size of budget do not give
an accurate picture of the importance of environmental groups. More
significant is the ability and dedication of active citizens. The old
expression "Where there's a will, there's a way" is relevant here. En-
vironmentalists share values and are willing to work hard to further
them. It is this commitment, above all else, that provides the strength
of the environmental movement.
Summary
Citizens play an important role in identifying dangers to the Na-
tion's environment and in prompting action to prevent them. Early
controversies concerning the protection of wilderness brought the
development of new techniques. More recently environmentalists
have acquired economic and scientific expertise and have used politi-
cal and legal action to further their concerns.
From its genesis in conservation issues, the environmental move-
ment has recently undergone remarkable growth and diversification.
To the traditional concerns of wilderness and wildlife preservation
have been added the issues of the new environmentalism—pollution,
the urban environment, land use, energy policy, and the like. Al-
though environmentalism has developed slowly throughout our his-
tory, the period of 1969-70—culminating around Earth Day—
brought a rapid rise in public awareness and involvement in environ-
402
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GUIDELINES AND REPORTS
1355
Volunteers remove debris from a West Virginia stream.
mental issues. During that period there was an increase in the size
of existing organizations and a proliferation of thousands of new
ones. While some groups grew, others faltered. It now appears that
the movement has stabilized with about twice as many active organi-
zations today as before Earth Day. The great majority are either
remaining stable or growing stronger.
The growth in environmental concern has been accompanied by an
emphasis on new types of activities. Some groups stress legal or politi-
cal activities, while others disseminate educational materials or run
recycling centers. Still others, from the national to the local level, en-
gage in several of these activities. Groups of all types face similar
problems of organization and funding.
Whatever their interests and activities, and despite their problems,
environmental organizations are an important vehicle for citizens
who wish to work actively for a better environment. Their efforts
have influenced the development of environmental policy in recent
years and, in light of the continued growth of most groups, will con-
tinue to do so in the future.
403
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1356 LEGAL COMPILATION—SUPPLEMENT n
Footnotes
1. Stewart L. Udall, The Quiet Crisis (New York: Holt, Rinehart and
Winston, 1963),p. 72.
2. Interview by Ronald Outen with Dale Jones, Northwest Representative,
Friends of the Earth, in Portland, Oreg., Feb. 27, 1973.
3. Harold T. Pinkett, Gifford Pinchot: Private and Public Forester (Urbana:
University of Illinois Press, 1970), pp. 6-14.
4. David W. Ehrenfeld, Biological Conservation (New York: Holt, Rine-
hart and Winston, Inc., 1970),p. 8.
5. Jeffrey D. Stansbury, "The Last Wilderness" (unpublished manuscript,
1964), p. 35.
6. Id. p. 46.
7. Clem L. Zinger, Richard Dalsemer, and Helen Magargle, Environmental
Volunteers in America, prepared by the National Center for Voluntary
Action for the Environmental Protection Agency under grant No. R801243
(Environmental Protection Agency, Office of Research and Monitoring,
1972) (mimeograph). Information from this report is drawn upon in
detail in subsequent sections of the chapter, where it is cited as the NCVA
report.
8. National survey of 5,000 environmental organizations conducted by CEQ
in the winter of 1972. Data are based on 1,300 questionnaires returned.
Unless otherwise cited, data appearing in this chapter are from this survey.
9. Environmental Defense Fund v. Corps of Engineers, 2 ERG 1173 (D.D.C.
1971).
10. Environmental Defense Fund v. Ruckelshaus, 2 ERG 1114 (D.C. Cir.
1971).
11. Natural Resources Defense Council v. Morton, 3 ERG 1558 (D.C. Cir.
1972); Natural Resources Defense Council v. Morton, 3 ERG 1623 (D.C.
Cir. 1972).
12. Natural Resources Defense Council v. Grant, 5 ERG 1001 (E.D.N.C.
1973).
13. Natural Resources Defense Council v. Richardson, Civil No. 2174—71
(D.D.C., filed Nov. 28, 1971).
14. 37 Fed. Reg. 15747 (1972).
15. Sierra Club v. Ruckelshaus, 4 ERG 1815 (D.C. Cir. 1972).
16. Sierra Club v. Morton, 405 U.S. 727, 3 ERG 2039 (1972).
17. El Paso Algeria Corp. v. F.P.C. appeal docketed, No. 72-3122, 5th Cir.,
Oct. 5, 1972.
18. Quinn v. Ruckelshaus, Civil No. 72-3529G (D. Mass., filed Nov. 17,
1972).
404
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GUIDELINES AND REPORTS 1357
4.3 Citizens' Advisory Committee on Environmental Quality
Reports to the President and the President's Council on
Environmental Quality, as Required by E.G. 11472,3102(C).
4.3c Report to the President and the President's Council on
Environmental Quality, Citizens' Advisory Committee on
Environmental Quality, October 1973.
A YEAR OF PROGRESS
How do we stand? Is our environment improving? There is
little doubt that during the last year environmental quality has
been thought about by more individual Americans and the sub-
ject of more public debate than ever before:
• Citizen action in defense of the environment continues
to grow.
• People have become increasingly concerned over the form
and substance of their daily living patterns.
• Community after community has begun to question some of
the most fundamental tenets of the past, including the
near-sacred belief that "growth is good."
• State after State has begun to realize that it must assume
more responsibility for protecting its environment, and
several of them took unprecedented action toward that
end.
• In the 1972 elections voters in many States approved
innovative programs to improve the environment and large
bond issues aimed to carry them out.
• Both the Administration and the Congress have been de-
voting increasing attention to environmental issues.
• The United Nations adopted the recommendations of the
1972 Stockholm Conference on the Human Environment
and established an Environment Programme and an En-
vironment Fund.
Yet there have been danger signals too:
• Measures proposed to reduce severe air pollution by curb-
ing the use of automobiles brought protests that environ-
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1358 LEGAL COMPILATION—SUPPLEMENT n
mental quality is all very well but it should not be allowed
to interfere with the instant mobility of the family car
or business as usual.
• The energy shortage that has plagued the Nation during
most of 1973 has frequently been blamed on environmental
control measures—though they have in fact been a re-
latively small constraint.
• Urgently needed environmental legislation has been bitterly
opposed by those whose short-term interests would be
adversely affected.
• In Washington, in the States, and in local governments,
there has been a shortage of funds to meet urgent environ-
mental needs.
A cross section of the Nation from coast to coast provides
a good perspective on how we stand.
The West Coast is still in the vanguard of environmental pro-
tection, particularly the conservation-conscious San Francisco
Bay Area. Within the past year strong citizen action, supported
by the President's personal visit and endorsement, stimulated
Congress to authorize the 34,000-acre Golden Gate National Re-
creation Area. During the same session, Congress and the Presi-
dent also approved establishment of a citizen-sponsored, 22,000-
acre South San Francisco Bay National Wildlife Refuge. In a
statewide referendum last November, California voters overrode
major developer opposition and overwhelmingly passed Proposi-
tion 20, the Coastal Zone Conservation Act. This Act, patterned
after the successful control of landfill and development by the
San Francisco Bay Conservation and Development Commission,
established a similar control program along the entire California
coast.
Two hundred miles east of the Bay Area, a major land-use
confrontation is shaping up. At Lake Tahoe the interstate Tahoe
Regional Planning Agency approved a land capability plan and
initiated controls based on this plan. Neither developers nor en-
vironmentalists are happy. Developers think the Agency is being
too stringent and have gone to court to challenge the constitution-
ality of these controls. Environmentalists think the Agency is
being too lax and have taken it to court for failing to halt the
construction of new casinos at the south end of the lake. The
sewage pollution of its crystal clear waters is being abated by
the new treatment plants that pump effluent clean enough to
form another lake outside the basin. Sedimentation from con-
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GUIDELINES AND REPORTS 1359
struction sites, however, is increasing algal growth in the Lake;
and smog from ever-increasing numbers of automobiles now ob-
scures nearby alpine vistas on hot summer days.
East of Tahoe the air clears over range after range of Nevada's
high desert country. Here the scattered ranches are few and far
between. But not so the scars of jeep tracks and prospector mine
diggings; they are all over the fragile desert landscape, and
they may take 50 years to heal. In eastern Nevada it will take
much longer to hide the huge copper mine holes and tailings
near Ely.
The environment of Utah's midsection is much the same as
Nevada's, except for the more frequent settlements along the
east side of the Great Basin. The colorful high mesa desert from
there to the Green River was until recently one of the most inac-
cessible remaining in Utah. But no more. Interstate 70 is now
there, cutting the driving time between Salina and Green River
from five to two hours and displaying the latest highway techni-
ques of split lanes and sculptured cuts that help modify its intru-
sion on the environment.
Across Colorado's high country the beauty is still largely un-
spoiled, but it is endangered. Interstate 70 may soon be built
across it. And Aspen, to ease its growing pains, is considering
four-lane highway accesses that could undercut the very reasons
it has been growing. Here too, the gasoline shortage, which crip-
pled Colorado on the Fourth of July weekend, did nothing to
abate the smog that hides the magnificent Front Range from
Denver and Colorado Springs. One understands why the citizens
of this State, believing that the threat to their environment out-
weighed the benefits of civic pride and visitor dollars, voted
in 1972 to prohibit the use of State funds to finance the 1976
Winter Olympic Games that had long been planned for Colorado.
East of there, the wind sweeps across the Great Plains, and
there is no smog. But watching a gas station attendant in
Kansas brace himself against the steady gale while filling a line
of gas-hungry cars, one cannot help but wonder why this nearly
perpetual force is not harnessed to relieve the energy crisis. Could
farmers restore the windmill generators that predated rural elec-
trification? Could not the towns have municipal wind generators
to supplement the coal-burning power plants and lessen the need
for putting ever more power over transmission lines? Such ques-
tions need to be asked; here and throughout the country we are
not devoting enough attention to such non-polluting sources of
energy as the wind and the sun.
East of the Mississippi River the smog returns—and stays—
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1360 LEGAL COMPILATION—SUPPLEMENT n
across southern Illinois, Indiana, and Ohio. Even Pittsburgh,
which is much cleaner than it was 10 years ago, is not yet smog
free. And this is strip mine country, where fresh cuts continue
to wound the green hillsides.
Open dumps and acres of junked cars blight the land, and
raw sewage outfalls foul the streams. The countryside greenery
is being replaced by the continuing spread of suburban housing,
particularly in the vicinity of the Capital. Nowhere is the need
for better land-use planning and regulation more evident.
What action is being taken?
At the Federal level the Environmental Protection Agency is
taking strong positions on standards and controls established by
the National Water Pollution Control Act of 1972 and the Clean
Air Act of 1970. The environmental impact statement process is
still somewhat cumbersome, but it is beginning to bite; and for
the first time sponsors of questionable Federal and federally fi-
nanced construction are having to give real consideration to alter-
natives. One major result: The huge Kaiparowits coal-burning
power plant proposed for southeastern Utah has been cancelled.
The 92nd Congress, in a flurry of environmental activity near
the end of its session, passed the Noise Control Act, the Environ-
mental Pesticide Control Act, and the Marine Protection Act.
The President signed all three acts into law in October 1972.
Important legislation dealing with energy conservation, toxic
substances, land use, and surface mining, to name a few, are
receiving major attention by the 93rd Congress. In passing the
1973 Highway Act, Congress voted substantial provisions for
needed public transportation financing.
In his 1973 Environmental Program the President has pro-
posed a number of legislative initiatives to improve land use. In
addition to the national land-use policy proposals, the Administra-
tion has sent to Congress a number of measures to reform and
restructure Federal Government policies. Some of these—such as
the public land management, mineral leasing, and wilderness
proposals—are measures to improve the management of Federal
lands. Others—like the proposed Power Plant Siting Act, the
Mined Area Protection Act, and the Environmental Protection
Tax Act—seek to improve the way land-use decisions are made
by the private sector. The Committee endorses all of these pro-
posals and urges prompt passage by the Congress.
The States have also been active. In responding to Federal
initiatives on air and water pollution abatement, a number of
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GUIDELINES AND REPORTS 1361
States have gone well beyond the Federal requirements. To im-
prove air quality, some States have initiated restrictions on ag-
ricultural, open burning and incincerator use. State actions to
improve water quality were even more extensive, covering con-
trols of water heating operations, animal waste drainage and run-
off, and oil spillage.
Solid waste disposal also received attention, with a number of
States adopting broad standards. Coal mining refuse disposal
rules, hazardous waste regulations, and a statewide resource re-
covery system are examples of new State initiatives. But the
most comprehensive action to date has been Connecticut's adop-
tion of a statewide solid waste management plan recommended
in a report prepared by General Electric.
In other environmental realms several States have taken the
lead on issues where Federal action is still pending. The Cali-
fornia Coastal Zone Conservation Act has already been men-
tioned. Other States have taken action to control coastal wet-
lands, and several have passed strip mining laws. Flood plain
development controls, litter levy legislation, and noise control
regulations are further encouraging examples of State action.
Many States reorganized to cope more effectively with environ-
mental issues. Several passed acts that require environmental
impact statements for State projects, and California extended
the provision to private construction as well.
Some States were also ready to put up substantial monies to
support their environmental programs. Last November New
Yorkers approved a $1.15 billion bond issue by more than a two-
to-one majority to finance facilities for cleaner air and water,
solid waste treatment, and the purchase of environmentally sen-
sitive areas. Florida citizens, also by a big majority, approved a
$240 million bond issue to purchase environmentally endangered
lands.
In what may prove the major thrust of land-use action, Hawaii,
Vermont, Maine, and Florida have set up machinery to enforce
local land-use planning. In May, Oregon followed suit; its Land-
Use Act created a Department of Land Conservation and Devel-
opment and provided for the Department to take over local
planning and zoning functions in cases of noncompliance with
the State's land-use plan. In such cases the Act also authorized
the State to withhold the local share of State liquor and cigarette
tax revenues.
Three thousand miles to the east, another landmark action
took place. On Mav 22, New York's Governor Nelson Rockefeller
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1362 LEGAL COMPILATION—SUPPLEMENT n
signed enabling legislation to put into effect the Adirondack
Park Agency's land-use and development plan for 3.7 million
privately owned areas. This action, combined with last year's
approval of the master plan for the 2.3 million acres of State-
owned land, establishes a land-use program for the whole Adiron-
dack Park, an expanse of 6 million acres, equal in size to the
State of Vermont. It is undoubtedly the largest unit yet on
which public land-use regulations have been implemented over
privately owned property.
Commissioner Henry L. Diamond of the New York State De-
partment of Environmental Conservation described the action in
this way:
"On May 22, 1973, Governor Rockefeller signed a bill
which for the first time allows the State of New York
to have some say in what happens on private land
within the Adirondack Park, an area of six million
acres in the heart of northern New York. Forty percent
of it is owned by New York, and under its Constitution
there is absolute, complete preservation. No tree may
be cut, and no development may take place.
"The other 60 percent is in private hands, and for the
most part there has been absolutely no restriction on
what can be done—no zoning, no planning.
"The private and the public lands are intermingled in
many areas in a checkerboard pattern; the most tawdry
development could go on amidst the most cathedral-
like natural splendor.
"It has long been clear that to preserve the Park, there
must not only be public stewardship but the reasonable
regulation of what happens on the private land as
well.
"It was a long and hard fight, but with the signing
of the bill on May 22, there will be land-use control
over private land."
Significant land-use action has not been limited to the States.
In Suffolk County on Long Island, voters approved a zoning
change that will give the county more voice over local zoning
decisions affecting wetlands. The voters of Boulder, Colorado,
and Santa Barbara, California, voted height limitations for new
buildings; and last November San Diego citizens passed a similar
measure for coastal structures.
San Diego has in fact done even more than that. It has de-
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GUIDELINES AND REPORTS 1363
cided to slow down its unwieldy growth. First, it passed a city
ordinance to assure the availability of schools, fire stations,
street improvement, and other services as housing is developed
for families in new areas. When the courts ruled that the State
Subdivision Map Act had preempted such local controls,
the City turned to zoning as a means of controlling development
and adopted a "phased growth" policy. Under this policy, land
is analyzed according to an overall plan and timed for develop-
ment according to the ability of the City to provide necessary
services.
Under State leadership considerable progress was made in
setting up and strengthening of county and city environmental
and conservation commissions. The Committee believes that these
commissions are an excellent means of bringing citizens into the
action arena. They provide an extra dimension to local govern-
ment that often lacks and cannot afford the type of expertise
that can be obtained from informed citizens who are willing to
donate their time and energies to these organizations for the
betterment of their communities.
Combined into interstate associations, local commissions can
provide a potent political force for promoting State and Federal
land-use action and support. In this regard, a hopeful sign was a
conference held in June at Lake George, New York. Sponsored
by the Associations of Conservation Commissions in Connecti-
cut, Maine, Massachusetts, New Hampshire, New Jersey, New
York, and Rhode Island and organized by the New York State
Department of Environmental Conservation, it brought together
more than 300 people representing 21 States and Canada. Groups
like this are just beginning to flex their muscle.
Another matter to be encouraged about is the drop in our
national birth rate average. During the past year it decreased to
2.1 children per woman of child-bearing age. Assuming the pres-
ent marriage, fertility, and mortality rates, this is slightly less
than the birth stabilization rate of 2.25 children needed by each
couple to replace themselves. This does not mean that we have
reached a non-growth or "zero population" situation. Even if
the present birth rate should remain at about its present level,
demographers estimate, our population still would increase 35 to
40 percent more before leveling off is reached. In the event this
leveling should happen, the stationary population reached would
be much older than any the United States has ever experienced.
According to a study published by Resources for the Future, our
country would have "more people over 60 than under 15, and half
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1364 LEGAL COMPILATION—SUPPLEMENT n
the population would be over 37 rather than over 27, as is the
case today."
There would be problems, to be sure, but a younger and bigger
population would pose much greater ones. The current trend
toward stabilization will best serve the American people and their
environment.
In sum, it has been a good year for environmental quality.
Slowly but surely, more and more people are becoming aware of
the state of our environment and are insisting that action be
taken to restore, protect, and improve it.
But this is only a start. As the President said last February in
his State of the Union Message on the Environment: "Nowhere
in our national affairs do we have more gratifying progress—nor
more urgent, remaining problems."
Let us turn to the unfinished business.
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GUIDELINES AND REPORTS 1365
LAND USE
What we do with land is the key to environmental quality. Tough
land-use decisions are going to have to be made to resolve the
energy crisis, to deal with transportation problems, to protect
biologically productive land areas—and, ultimately, to assure a
high quality of life for all Americans now and in the future.
The Committee has felt that the concept of environmental
quality should be expanded beyond clearly physical needs—such
as for wilderness, open space, recreation, and pollution abate-
ment. Environmental quality must include essentially human val-
ues, and this requires attention to critical social, cultural,
economic, and political problems. Most especially, it requires
attention to the places where these problems are concentrated—
our urban areas.
This country needs a national urban policy. Federal actions
have been fragmented, overlapping, and often in conflict with
one another. State and local governments, lacking Federal leader-
ship, have also fallen short of meeting urban problems. Private
development, left on its own, has too often been proceeding with
little thought or concern for the long-range consequences.
The Committee felt that it could play a constructive role in
persuading government and private interests to work together to
solve these problems. As a starting point, it last year set up a task
force composed of a dozen citizens having particular knowledge of
urban problems. The assignment to this group was to consider
how to rebuild our cities without recreating slums and how to
expand development to accommodate future population.
Many studies have been made in this field, but for one reason or
another, few of them have attracted significant national atten-
tion; and most of their recommendations have been quietly
shelved. Our task force was instructed to come up with recom-
mendation for action which the Committee could present to the
President and the Nation.
In August 1972 a twelve member Task Force on Land Use and
Urban Growth was set up. Three were from the Committee:
Laurance S. Rockefeller, as Chairman, Henry L. Diamond, and
Pete Wilson. The other members were: Paul N. Ylvisaker, dean
of the graduate school of education, Harvard University, who
served as deputy chairman; John F. Collins, former mayor of
Boston, now consulting professor of urban affairs at the Massa-
chusetts Institute of Technology; John R. Crowley, chairman of
the Colorado Land Use Commission; Walter E. Hoadley, execu-
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1366 LEGAL COMPILATION—SUPPLEMENT n
tive vice president of the Bank of America National Trust and
Savings Association; A. Wesley Hodge, a lawyer with special
expertise in land-use problems; Vernon E. Jordan, executive di-
rector, National Urban League; Mrs. Virginia Nugent, chairman
of the National Land Use Committee of the League of Women
Voters; John R. Price, Jr., vice president, Manufacturers Han-
over Trust Company; and James W. Rouse, chairman of the
Ro.use Company and founder of the new town of Columbia,
Maryland.
Willian K. Reilly, formerly with the President's Council on
Environmental Quality, came on as executive director, and a
small staff was assembled with backgrounds in planning, law,
architecture, journalism, economics, and biology. The entire op-
eration was financed by the Rockefeller Brothers Fund.
In September 1972 the Task Force went to work. Eight months
later, on May 24, 1973, it presented its initial findings and
recommendations during a day-long conference at The Smithson-
ian Institution. This was attended by nearly 300 representatives
of local, State, and Federal government; environmental organiza-
tions; universities and research organizations; the business com-
munity; labor; agriculture; and the press. Their response was
strongly affirmative.
The final report of the Task Force, THE USE OF LAND, was
published in August 1973.* Here are the major points:
• There is a fundamental need in the United States for
a vast amount of new development, just to house those
who are already born or whose birth is clearly fore-
seeable before the year 2000. During the 1975-85
period, the United States will experience a rate of
household formation a third higher than it exper-
ienced during the period of 1965-75. These needs
cannot be denied. The continued freedom of people to
move about where they please depends on a high
rate of construction of houses and the facilities that
must support them. Many Americans have moved so-
cially and economically by changing their place of
residence. Those who still wish to move up cannot
now have the road blocked to them by arbitrary ur-
ban growth controls.
•The Report may be purchased from the publisher: Thomas Y. Crowell Company, 666 Fifth
Avenue, New York, New York 10019. The price of a single copy is $3.95 in paperback and
$10.00 in cloth binding. Discount rates apply to purchases of five or more copies. It is also
available at many bookstores.
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GUIDELINES AND REPORTS 1367
At the same time, however, there exists a "new mood"
among a growing number of Americans that causes
them to be skeptical about proposals for new devel-
opment and to question the advantages to a com-
munity of allowing more growth. This new skepti-
cism is based partly on a new sophistication about
the property tax costs of much new development. But
it is also a response to congestion, destruction of
environmental assets, and dissatisfaction with the
quality of development. Overall, there is an emerging
consensus that new private development projects
should meet public objectives or not be permitted.
A vast scale of environmental protection is needed
for our most critical lands, along the coasts, in the
mountains, and for the scenic farmland around cities.
These are now threatened by all manner of new
development, from conventional tract development
or sprawl to vacation home sites made newly acces-
sible by interstate highways. Local governments are
incapable of stemming the tide of development and
protecting treasured natural areas. States will have
to devise new programs on a regional scale to pro-
tect "areas of critical environmental concern." (The
Report points out that land-use legislation pending in
the Congress is an important step toward achieve-
ment of this objective.)
There is a related need to reform the land-use enab-
ling laws of most States. Unalloyed local control is
inadequate when important regional ecological sys-
tems or areas are involved, or when development
that would pose tax or social problems to a local
community is nevertheless needed by a regional or
metropolitan population, or when proposed develop-
ment is simply so big that it would overwhelm a
local area and its effects be felt elsewhere as well.
In these instances land-use laws must give a voice to
a broader community of people not now heard in
local decision-making. This means the States or their
agencies in most areas, and it means that local home
rule must be limited where growth decisions of
greater-than-local impact are involved.
A need also exists to adapt our laws, and even our
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1368 LEGAL COMPILATION—SUPPLEMENT n
constitutional doctrine, to protect the environmental
character of land. The Fifth Amendment has been
interpreted by some courts to prohibit the uncom-
pensated regulation of privately owned land when
the effect of the regulation is to reduce substantially
the economic value of the land. This makes it difficult
to save those areas (e.g., coastal wetlands, steep
slopes, historic buildings) where any development
at all might be destructive. The British are one free
society that has evolved a legal tradition regarding
property to permit society to allocate development
where it chooses and to prohibit it elsewhere at no
cost to the government. The United States also must
find a way to move in this direction if governments
at the State and local levels are not to be confronted
continually with the "buy it or lose it" dilemma—
which, given other claims on strained budgets, will
usually mean that important open lands will continue
to be lost.
The Report makes some 66 recommendations. Rather than sum-
marize them, we will emphasize the key actions that should be
taken.
FEDERAL MEASURES
Of the 26 Task Force recommendations involving action at the
Federal level, the Committee wishes to draw particular attention
to those relating to proposed national legislation, greenspace
program, the taking issue, and second home development.
National Legislation
Of the specific recommendations for Federal action, the Com-
mittee feels that the most crucial is early passage of the Land
Use Policy and Planning Assistance Act. The proposed Act (S.
268, 93rd Congress) was approved by the Senate in June 1973
by a vote of 64 to 21. While the bill is not perfect, passage of it
would be a very long stride in the right direction. It would
establish a national interest in a more efficient system of land-
use planning and decision-making and provide a financial incen-
tive to the States to undertake statewide planning efforts for their
total land resource base.
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GUIDELINES AND REPORTS 1369
We make no attempt here to comment in detail on this long,
complicated, and generally excellent bill, but we do call attention
to two important issues to be resolved:
First, we restate our previous endorsement of amend-
ments proposed by the President that would impose
sanctions on any State that does not establish an ade-
quate land-use program.
Such sanctions would take the form of withholding Federal
highway, airport, and outdoor recreation funds. In supporting
such sanctions, we are not urging a Federal take-over of land-
use planning. We do believe, however, that the national interest
in effective State action justifies the use of the stick as well as
the carrot.
Second, we recognize the delicate legal question of the extent
to which Federal programs on Federal lands are subject to State
planning and control. The bill contemplates that serious juris-
dictional conflicts could well arise between uses of Federal land
and uses of adjacent non-Federal lands, and it establishes a pro-
cedure to resolve conflicts. Federal and State officials should under-
take coordinated planning for such areas. Without it, Federal
actions could readily abort sound State land-use planning—
particularly so in the Western States, where Federal lands are
so extensive.
The Federal Government plays a substantial role in determin-
ing the future use of non-Federal lands through its air and water
quality control laws. This fact, too, must be considered carefully
in Federal-State land-use planning and negotiations aimed at re-
solving jurisdictional conflicts.
Greenspace Program
The Task Force recommends the establishment of a National
Lands Trust to assist public bodies, particularly State land-use
agencies, in the designation, planning, and conservation of ex-
tensive green spaces in and around major urbanizing areas.
Federal funding of $200 million annually is proposed on a match-
ing basis with a 75 percent Federal share.
The report suggests that the Trust be established either by
Federal charter or within the Department of the Interior, where
it could be administered as a part of the Department's Land
and Water Conservation Fund. In any case, however, legislation
is needed either to grant a charter or to expand the Land and
Water Conservation Fund and direct support for a greenspace
program.
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1370 LEGAL COMPILATION—SUPPLEMENT n
The Committee agrees with the objective of the program and
believes that it should be given high priority in a national effort
to improve land-use patterns. As to the location of the National
Lands Trust, we believe it would be simpler and more feasible to
make it a part of the Land and Water Conservation Fund. The
Fund has now been operating effectively for eight years under
the Secretary of the Interior and is understood and accepted by
the States. Furthermore, offshore oil revenues, the major source
of income to the Fund, have been increasing every year. Estab-
lishing a new Federal funding mechanism could be awkward. It
would make more sense to increase the Land and Water Con-
servation Fund to save critical land resources before they become
developed.
The Taking Issue
An issue discussed extensively in THE USE OF LAND is the
control of development on private land. Recognizing that gov-
ernment should not—and cannot afford to—acquire all lands
needed to protect open space amenities, the report explores the
extent to which the use of private lands can be controlled for
public benefit without purchase.
Basically, this involves interpretation of the language in the
Fifth Amendment to the United States Constitution, which
states "nor shall property be taken for public use without just
compensation."
As the Task Force points out, one of the most difficult issues
of interpretation arises out of judicial rulings that regulations
restricting the use of private land can, if sufficiently restrictive,
amount to a "taking" of the land for which compensation must
be paid by the public. In thousands of cases, courts have had to
determine whether a particular restriction went too far to be
sustainable without compensation. Decisions and rationales have
been widely divergent. The result is uncertainty about how far
restrictive powers can go before expensive compensation must be
paid. The interpretation of the takings clause is therefore a cru-
cial matter for the future of land-use planning and regulatory
programs.
There are two problems to be surmounted. First, many judicial
precedents are anachronistic in light of the growing perception
of land as a basic natural resource to be protected and con-
served. Second, a widespread misunderstanding of the issue has
raised exaggerated fear that restrictive actions will be declared
unconstitutional.
The Task Force urges that the Supreme Court re-examine its
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GUIDELINES AND REPORTS 1371
earlier restricting interpretations and "declare that when the
protection of natural, cultural, or aesthetic resources, or the as-
surance of orderly development is involved, a mere loss in land
value will never be justification for invalidating the regulation of
land use." Fundamental to the Task Force presentation is the ex-
perience of Great Britain, which has had considerably longer
experience in urban land-use problems. Great Britain has aban-
doned the traditional concept that rights arise from the land it-
self and now treats development rights as created and allocated
to the land by society.
The Committee believes that the Report develops a strong case
for revised interpretations. This matter must be pursued in the
courts, of course, and cannot be decided hastily. Nonetheless, the
Committee urges that State courts and lower Federal courts not
await action by the United States Supreme Court. We note, for
example, the recent decision of the Oregon Supreme Court that
overturned a zoning change that did not conform to a county's
comprehensive plan. In essence, the court said that the developer
must prove that his plan is good and that no longer must the
people be required to prove that it is bad.
For an even more comprehensive discussion of this matter, the
Committee refers readers to THE TAKING ISSUE: AN ANAL-
SIS OF THE CONSTITUTIONAL LIMITS OF LAND USE
CONTROL, prepared for the Council on Environmental Quality
and released in August 1973. This report is a followup to the
Council's earlier report THE QUIET REVOLUTION IN LAND
USE CONTROL, and two of the authors, Fred Bosselman and
David Callies, contributed to both.
Second Home Developments
Many "second home" subdivisions are being promoted as op-
portunities for profit in land investment rather than as places to
live. One result: Less than 20 percent of the lots sold are being
built upon, and the scars of the largely unused promotional road
networks will remain for years to come.
The disastrous results of these developments have been vividly
portrayed by Committee member, Robert Cahn, in a series of
articles entitled "Land in Jeopardy" that he recently wrote for
the CHRISTIAN SCIENCE MONITOR:
"Beyond the financial woe it inflicts on individual buy-
ers, this land boom by ballyhoo is having major impact
on the land itself and on the environment.
"Decisions about where millions of Americans should
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1372 LEGAL COMPILATION—SUPPLEMENT n
be encouraged to migrate are left to land speculators
while States and localities give up by default any pub-
lic say in land use or growth policy. Few public authori-
ties are yet asking the vital questions: Should a new
community be placed in a certain place just because
one individual has been able to assemble a large tract
of land cheaply? What alternatives have been consid-
ered and by whom?
"The average nearby resident does not know or ques-
tion until too late just what effects a new development
may have on his life or on his taxes.
"Few question what provisions have been made to see
that the development satisfies the growing environmen-
tal conscience in the Nation. Does the land have suffi-
cient water to supply the development without depriv-
ing neighbors of their supply? Can water pollution be
prevented? What irreversible environmental changes
will be made to the land? And finally, or perhaps
primarily, is this land that should be preserved intact
for future generations ?
"Not that all land sales are bad. Some types of devel-
opment serve useful purposes, especially when a legi-
timate market for homesites exists, where environmen-
tal protections are provided, and where the developer
provides utilities and services at the start, or is ade-
quately financed and bonded to guarantee their com-
pletion."
Much of this problem lies in the lap of local governments. It is
not the developers but local governments that have to pick up the
tab for maintaining the roads and providing security and other
public services for the scattered homes that are constructed.
They should hold developers to reasonable standards. Unfortun-
ately, the governments in question are often the poorest and least
equipped to deal with such problems. The States have an obliga-
tion to help them and to step in themselves where local govern-
ments will not act.
The Federal government has a role too. Certain Federal safe-
guards can be initiated to assist local government in curtailing
the exploitation aspects of the fly-by-night land sale promoters.
One way would be to amend the Interstate Land Sales Full Dis-
closure Act to provide a longer period to reconsider the advis-
ability of hasty decisions to buy a parcel of rural land.
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GUIDELINES AND REPORTS 1373
Another would be for Congress to amend Federal securities
legislation so that the sale of lots in any project containing more
than 50 lots will be subject to regulations of the Securities and
Exchange Commission (SEC). The SEC, in turn, should re-
quire that descriptions of development include guarantees on the
types of community services to be provided and schedules for
these provisions.
Additional safeguards would be achieved by the Task Force's
recommendation that Federal and State legislation should obli-
gate the sellers of lots to guarantee to each buyer that his lot
will for a designated period of time be fit for construction of a
dwelling. Fitness for use should be defined, by statute or regula-
tion, to include suitable water supply, the availability of lawful
sewage disposal facilities, and safety elements (such as, that the
land is not floodable, that it is free from danger of rockslides).
The warranty should be unwaivable, and breach of warranty
should entitle the buyer to return of all his payments, with
interest and damages, up to the date of breach.
State Measures
The Task Force makes 27 recommendations for action by the
States. Some of these parallel proposals for Federal action;
others, for local action.
The Taking Issue
One of the most important steps, the Committee believes,
would be a new look at the taking issue by State legislatures.
It would certainly help improve land use if legislatures set forth
as State policy up-to-date guidelines for the interpretation of
the taking clause. Where there are critical resource areas—wet-
lands, for example, river valleys—the public interest calls for a
more effective regulation by local or regional bodies. The public
itself is beginning to recognize this more clearly, and there will
be growing support for legislative action.
State Development Corporations
Another recommendation of note is that other States follow
New York's successful experience in establishing its Urban De-
velopment Corporation (UDC). We endorse the Task Force's rec-
ommendation that such bodies be set up with the full range
of powers, including the power of eminent domain, the power to
override local land-use regulations, and the power to control
the provision of public utilities, when necessary, to overcome
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1374 LEGAL COMPILATION—SUPPLEMENT n
the barriers that now prevent most developers from operating at
the larger scales that the public interest requires. To promote
quality, environmental impact statements or comparable review
should be required for large projects.
It should be noted that last June the New York Legislature
removed the UDC's authority to establish housing projects in
towns or counties without consent of the local governing body.
This restriction does not apply, however, within cities where
the UDC still has its full range of powers.
Environmental Impact Statements
Another important arena for State action is environmental im-
pact review. At the Federal level this process, as mandated by the
National Environmental Policy Act (NEPA), has proved very
effective in swinging the emphasis from single-focus Federal
construction to broader public objectives. First, the environmental
impact statements bring project proposals out in the open. No
longer can a project proceed behind bureaucratic doors without
the opportunity for challenge from affected citizens or other agen-
cies. Secondly, and perhaps more important, the process brings
about projects of a higher standard, and it raises the level of
agency performance.
Proof of the effectiveness of this process has been the prolifera-
tion of attempts to limit the scope of the statements and even
to repeal the section of NEPA that requires these statements. It
is fortunate that these modification attempts have been aborted,
for this is the most effective tool at hand to control the quality of
development. Critics claim, sometimes with justification, that the
process has become a bureaucratic maze of paper work and red
tape and that the review process is unwieldy to an inordinate
degree. Nevertheless, it has exposed the weaknesses of many
Federal and federally financed projects, halting some that were
unjustified and improving others before they were completed.
Several States have enacted legislation to require environmen-
tal impact statements for all State-sponsored projects. California
has gone a big step further; its law requires statements for en-
vironmental significant private projects as well. This action
was upheld by the highest court in California in "Friends of
Mammoth versus Mono County."
The Committee agrees with the Task Force on the importance
of environmental impact review and urges that all States enact
legislation similar to the Federal law. It also urges that States
follow the California example and require that the same dis-
cipline be applied to key private projects.
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GUIDELINES AND REPORTS 137o
Protection of Agricultural Lands
Extra efforts will be needed to preserve as much farmland on
the outer edge of our urban areas as possible, not merely for the
production of food but for the pleasant environment it provides.
THE USE OF LAND discusses existing and proposed State
actions to protect and retain this important land use. So far, the
main reliance has been on preferential tax assessment, now in
effect in about half the States. The basic idea is to take the
tax pressure off farmers to sell for development by requiring
that local governments assess farm property only at its farm
value rather than at market value.
The Task Force believes preferential assessment is a temporary
measure at best, the practical effect being merely to delay but not
to stop inevitable urbanization, and in some cases actually to
bring on the speculators. The problem is a lack of effective re-
striction. The farmers want to be assessed low; they also want to
sell high, however, and they have bucked measures that would
bind the land to open space use. The result, often, is the illusion
of farm conservation. Because of the tax shelter such assessment
can provide, speculators like to buy up farms for future develop-
ment and then stage a farming operation so taxes will stay low
until they are ready to develop. The Committee agrees that "pro-
visions that grant [tax] reductions in the absence of permanent
restrictions should be regarded as half-way measures, justified
only when political processes will not accept permanent restric-
tions."
To be workable over the long run, farmland conservation re-
quires that a bargain be struck. On one hand, the farmers should
be given fair compensation for the development potential they
give up; on the other, the public should be given assurance that
the farmland will in fact remain farmland. One way is through
the purchase by the public of the development rights to the farm-
land. The farmer continues to farm the land as before, the land
remains on the tax rolls—and it remains open.
This still leaves several big questions to be resolved. Who is to
decide what land is to be kept open, and which is to be devel-
oped? And what about the profits the non-farmland will now
fetch? A farmland reserve, like a park, could greatly increase
the development value of the other land in the area. Should the
owners of the developable land reap all the benefits? For failure
to grapple with these questions, many ambitious regional plans
have foundered.
A promising approach is being advanced in New Jersey. It is
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1376 LEGAL COMPILATION—SUPPLEMENT n
based on the transfer of development rights. A municipality
would designate the open spaces to be conserved, those to be
developed. As development of the latter proceeded, owners of the
open space land would sell their development rights to builders.
With these rights the builders could develop their tracts to a
higher density than otherwise. In effect, this approach would
save farmland by clustering development and giving landowners
a fair share in the rewards. This is the same principle preserva-
tionists are using in the city; by acquiring air rights to historic
structures for later resale to developers of other properties, they
are turning market forces to salvation rather than destruction.
Local Measures
The major role in land-use control has been lodged at the local
level. It should continue to be. We have urged increasing assist-
ance from the Federal and State governments and believe that
this must be forthcoming if order is to replace the current frag-
mented chaos. Nevertheless, the bulk of day-to-day confronta-
tions and decisions will still have to be made by the local officials
most familiar with the specific cases at issue, and the most
affected by them.
The past and current land abuses have been blamed largely on
the inability or unwillingness of local officials to institute and
carry out adequate safeguards. Consequently, in many areas the
public has lost confidence in both the local decision-making
procedures and the individuals that make them.
In all, the Task Force makes 24 separate recommendations for
improving local land-use action. In sum, they set a practical
course for establishing public trust in the local decision making.
Conflict of interest situations would be eliminated by State and
local laws and "cronyism" combatted with citizen suits. The most
effective confidence builder, however, is the open meeting proc-
ess. We endorse the recommendation that "every element of the
regulatory process, including deliberations and advisory recom-
mendations as well as final decisions, should take place at adver-
tised meetings open to the public." Local and State laws should
require that this process be applicable to all governmental agen-
cies responsible for land-use regulations.
Citizen Action
As a citizens' committee, we are particularly interested in what
can be done by people outside of government to stimulate and
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GUIDELINES AND REPORTS 1377
improve the legislative, executive, and judicial functions of our
Nation. The Task Force report tells how. Again, the key is citizen
participation in the land-use regulation process.
We reiterate the Task Force recommendation . . . that
civic organizations can make an important contribution
to the quality of life in their local areas by helping to
decide what should be protected and preserved in their
localities, by helping to determine how and where essen-
tial development needs are to be met, and by helping to
assess systematically the adequacy of their local plans,
laws, regulations, and procedures affecting urban
growth.
The 1976 Bicentennial Year offers an excellent framework for
such efforts. The year would provide civic groups an appropriate
deadline for completing the first phase of their environmental
assessments. We urge that Federal assistance be made available
for these citizen efforts as a part of the bicentennial program.
The Task Force on Land Use and Urban Growth has spelled out
a variety of specific, constructive proposals. The Committee is
undertaking a followup effort to bring these proposals to the at-
tention of as many citizens as possible. In THE USE OF LAND,
for example, there is a partial checklist of questions that citizens
might consider if they want to apply recommendations in the
report to their own towns, counties, regions, or States to influ-
ence the quality and direction of urban growth. In essence, this
is a summary of the points made in the report, and is an impor-
tant contribution. This checklist may be worthy of a separate
reprint, a citizen guide to action.
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1378 LEGAL COMPILATION—SUPPLEMENT n
CENTER-CITY ENVIRONMENT
The Task Force concentrated on the growth problems of the su-
burban and exurban environment. But there are non-growth
problems to face: specifically, the social, cultural, economic, and
political problems that shape the quality of everyday living in
the center city. Important as it is to take long-range actions to
guide the outward growth of cities, equal priority must be given
to doing something for the people who live within them. So far
at least, urban renewal and other housing projects have proved
inadequate. Public housing, in particular, is a clear example—
often lacking the necessary amenities essential to any sense of
community for the residents.
The fundamental issue affecting the older cities still has to do
with the fact that many, many people who live there have a
very limited number of options open to them. To move out or stay
put, change jobs or take an advancement course, develop a skill
or pursue a desirable trade are not real possibilities for all too
many of the center-city poor. Until society provides these op-
tions, physical change alone will not be enough to improve the
quality of urban life or restore the viability of cities as a de-
sirable place to live.
Just as physical solutions have not worked in the past, it is
now claimed that social services do not either. They are consid-
ered costly, wasteful, sometimes paternalistic, and demeaning
to those they are designed to help. The standard welfare pro-
grams of the past, carried out at the State and local levels, are
examples of such costly failures. The massive welfare programs
of California and New York, instead of helping the intended
populace, attracted so many poor from other States that the
programs were overrun. Suburban governments, meanwhile, have
been manning the barriers to keep the poor out—and begrudging
the cities aid to help the poor.
Many approaches to poverty have been tried, and as we have
seen, most have been unsuccessful. Yet one of considerable
promise—a minimum income guarantee/negative income tax—
has received too little attention. The first controlled experiment
of this nature was recently completed in New Jersey with quite
positive results. We believe it deserves further consideration.
Such a system would provide a single, nationwide set of eligi-
bility determinations for efficiency of administration. But, in
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GUIDELINES AND REPORTS 1379
comparison to the usual welfare dole, it would enable poor people
to exercise responsibility and free choice regarding the expendi-
ture of money given them. It would assure that the vast number
of center-city and other Americans for whom the market has
not worked, would not be left without hope for tomorrow. And,
put on a nationwide basis, such a system would remove the
temptation to migrate to States with liberal welfare programs.
The Committee, therefore, recommends a system of Fed-
erally guaranteed minimum income maintenance. Such
a program, separated from "revenue sharing," will en-
able the latter to be used for developing and/or rede-
veloping the job-providing "place needs" of the city
people.
Better Transportation Systems Are Needed
What hurts the center-city most is the automobile and the facili-
ties needed to accommodate it. As long as our society is wedded to
the automobile as the prime means of travel to and from our
homes and places of business or pleasure, we are continuously
forced to accelerate its use. The constant pressures to increase
freeways in and around the cities have wreaked the most visible
havoc; almost as bad, however, have been the unending efforts
to widen and realign roads, patch and replace pavement, install
stop-and-go signs, and paint traffic lines; to construct inter-
changes, bridges, and pedestrian spans; and to provide parking lots
to accommodate cars after they leave the streets.
In spite of these improvements, or, rather, because of them,
downtown centers are now avoided by shoppers because of traffic
congestion and parking problems. It is becoming increasingly clear
that at some point, the proliferation of automobiles and the
facilities to serve them destroy the city to be served. Nearly
always, a transportation system relying entirely on cars and
trucks results in a smoggy, horn-honking standstill.
It is imperative that we actively consider alternatives—and
soon. These alternatives must become an integral part of our
future land-use planning and actions. New possibilities of ef
fective public transportation need to be investigated, including
various rail systems, moving sidewalks, "dial a-bus," personal
rapid transit, and other that may not yet be invented. Considera-
tion should also be given to the concept that provision of free
public transportation for urban communities could be cheaper
than the building of additional highways and parking facilities
to do the same job.
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1380 LEGAL COMPILATION—SUPPLEMENT 11
Another potential to be explored is that most remarkable of
transportation units, the pedestrian. The great bulk of inner-city
trips are made by pedestrians. The great bulk of the space goes
to cars. Doing something to right this balance, through pedes-
trian malls, larger sidewalks, arcades, and such will not only
make the city a pleasanter place but a much more efficient one.
Minneapolis's Nicollet Mall is an example, and there is good rea-
son to believe there are going to be many more of them. The
Federal air standards simply cannot be met if there is not a
reduction in car traffic in the city, and one way to achieve this is
to take away some of the space for the cars and give it to people.
The streets and sidewalks can be great places for walking, and
they have the attraction that people enjoy most—other people.
Outside the city, trails have a great potential. They have played
a vital role in America's tradition, whether as paths cut by In-
dians and pioneers or as bicycle lanes used by urbanites on their
way to work. The passage of the National Trails Act in 1968 has
stimulated the rehabilitation of several historic trails and the
creation of new recreation trails in and around our metropolitan
areas. As paths of all types begin to proliferate, citizens will
have an increased opportunity to enjoy the outdoors as they walk,
hike, ride horseback, or pedal along a trail.
This year bikeways have received increased emphasis, with
highway trust funds—$120 million in the next three years—being
allocated for the first time to the construction of bikeways in
conjunction with highway projects. This is a good step, but we
are convinced that there is a need for more bikeways to accom-
modate the growing number of commuter and recreation cy-
clists. Like the pedestrian, the cyclist is a non-polluting, energy-
efficient transportation unit, and his journeys a fine way of
achieving physical fitness and recreation.
In addition to helping alleviate urban transportation problems,
bicycle paths can form a bridge between past and present. As we
approach the Bicentennial, it is important to note that the bicy-
cle is ideally suited to touring through historic areas and creating
a sense of continuity between one era and the other.
There are no specific legislative mandates on this point, how-
ever. We urge, therefore, that Congress authorize a system of
bike trails to be built in conjunction with the Bicentennial Cele-
bration. The Nation's Capital itself provides a good demonstra-
tion of need. It has been estimated that between 40 and 60 million
visitors will arrive there for the Celebration. Many will have to
park their cars great distances from the city. This situation pre-
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GUIDELINES AND REPORTS 1381
sents a great potential to develop new modes of transportation to
and between the national shrines. Bicycles and other new pedal-
powered vehicles should be made available as a means of touring
through the city.
Effective Open Space
Another unresolved priority land-use problem of the inner city
continues to be the provision of effective open spaces—open space
for children, for teens, and adults, for older people; for active
play, for browsing and sitting. The term effective must be under-
lined. It is not just a matter of physical space. On an overall basis,
many cities have acquired and protected considerable acreage for
parks. But, in most cases, this acreage is not distributed well for
the benefit of all residents. Too often, the pattern is one of a few
large parks that have enhanced adjacent land values and attracted
relatively high cost development. Worse yet, many of the areas
that could serve neighborhoods are not run in a way that does
serve them.
It is widely assumed that the key problem in low income areas
is over-use of recreation space—and that the need for more space
is so great that the provision of it will attract hordes of children.
But this is not the case. A research study which the Committee
helped launch indicates that a big problem in such areas is
tinder-use of recreation space. Time lapse photography of actual
use reveals that while some areas are used to capacity, far too
many are used only sporadically and some are almost empty most
of the time.
There is still a need for more space. But there is just as great a
need for people who can make these places work—people who can
work with teenagers, for example, a group that is virtually dis-
enfranchised as far as many playgrounds are concerned, people
who can enlist neighborhood groups to help plan activities and
run them. There need to be outreach efforts far beyond the boun-
daries of the parks. For lack of them, many a potentially valuable
space lies dormant, and vandalized.
To make a recreation space really work, there has to be a vigor-
ous program and the people and the money for it. Most cities and
local governments spare little enough for this to begin with, and
in any budget crunch it is just the kind of money that gets cut
out. The Federal Government, for its part, has rifled most of its
open space aid funds for capital outlays—money for lands and
for physical structures and equipment. Since this aid money must
be matched, one result has been a further strain on cities' budgets.
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1382 LEGAL COMPILATION—SUPPLEMENT n
It has been increasingly difficult for them to put up additional
capital funds and at the same time provide enough operating
money to make the most of the open spaces they do have. Some
cities have felt the pinch so badly that they have stopped applying
for open space grants.
Open space legislation before Congress (now in the form of
S. 12) provides that grants can apply to operation and mainte-
nance for the first four years of the project. This provision de-
serves support, and strengthening. It should be specifically stated
that money will be available for recreation programming, as well
as regular maintenance and operation; indeed, grant aid for rec-
reation projects must be made contingent on such a program
effort.
Redevelopment and housing programs should contribute also.
If the establishment of city parks is coordinated and combined
with low-cost housing provisions, the usual economic obstacles
may well be overcome. It is clear that redevelopment must con-
tinue if we are to remove the existing blight and revitalize the
center cities. One way to do this without creating other slums is
to require both substantial open space and low-cost housing as
part of all urban renewal projects—both public and private. Over
the long range, such provisions may well serve also to solve many
other city land-use inequities.
An Alternative to Out-migration
A basic inequity is being caused by the migration to the suburbs
of the middle-income residents. This has left the older center city
populated largely with many that are poor and a few that are
rich—the poor because they have no economic choice, the rich
because they can afford the amenities and safeguards that can
make city living attractive. This results in city budgets that have
become strained by fewer tax-paying residents and greater wel-
fare costs. The inequity becomes progressively worse as the out-
migration continues.
Why is it that the middle class people continue to move out?
After all, the city is still where most of them work, and it is still
the center of most cultural opportunities. And no one likes to
commute, particularly when this consumes from two to three
hours of otherwise free time.
Part of the answer, of course, is the traditional desire to have a
house on one's own land. Another is "keeping up with the
Joneses," or following the leaders. But more and more often the
reason given is to escape the crime or threat of crime in
the cities. Thus, something has to be done to improve life on the
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GUIDELINES AND REPORTS 1383
streets, in the schools, and in the city parks. Until this is done for
the people living in the older center cities, as well as for those
the cities hope to attract back, the physical redevelopment will
not be realistic or productive on any significant scale.
Thus far, most urban renewal efforts have been little more
than a costly subsidy to downtown businessmen. And they haven't
worked very well. Disillusionment with these past efforts, how-
ever, should not obscure the very real need to adapt physically the
older cities to new functions. Since World War II, many cities
have entered a "post-industrial" period, with services, rather than
manufacturing, becoming their principal economic activity. As a
result, there are decaying industrial waterfronts, miles of under-
used railroad facilities, and acres of shabby row housing and
vacant, industrially zoned land. Yet these very places offer op-
portunities for the very things the cities alone can offer—a resi-
dential environment of relatively high density and a diversity of
services and shopping facilities near at hand.
By and large, the tastes of many Americans for single-family
homes can better be served in the suburbs than in the cities. But
the proliferation of townhouse and apartment living in the su-
burbs suggests that many prefer city-type living and have chosen
commuting as an alternative to the threat of crime and the poor
quality of center city schools. Already a trend toward large
apartment projects in the cities—well served by built-in garages,
convenient stores, and even insulated by heavy security—can be
observed in parts of some cities. The trend may not be encourag-
ing, but at least it suggests that cities as living locations still have
an appeal.
Another phenomenon worth noting is the spontaneous reha-
bilitation of old row house neighborhoods in a number of cities.
With no help in the way of subsidy or government-supported
mortgages, younger families have been moving into blighted
areas and pouring their savings and their energies into making
the places work.
Can land-use measures reverse the out-migration from the cit-
ies? Surveys of several cities have indicated a need to adapt built-
up areas to pedestrian uses, subdue and segregate the automobile,
reduce the scale of buildings to more human dimensions, and re-
capture some of the softness of planted open spaces for areas long
given over to concrete, asphalt, and glass. Importantly, there also
is a growing dissatisfaction with the theory that cities should
encourage the "highest and best use"—which has meant the use
that is the most profitable to the landowner.
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1384 LEGAL COMPILATION—SUPPLEMENT n
The most promising techniques employed in recent years have
involved means of harnessing private capital already slated to be
spent on development to finance better development. One such
technique is "incentive zoning," whereby developers are offered
"bonuses" of extra floor space in their buildings if they will pro-
vide public amenities, such as arcades and plazas in return.
This approach has had its greatest successes in New York City,
where developers, guided by imaginative public architects and
planners, have been putting up office buildings with all sorts of
amenities—plazas, outdoor cafes, theaters, small galleries, under-
ground concourses, mid-block miniparks. Unfortunately, the ar-
chitects have not paid much attention to the human use of their
designs, and as a consequence many of the new spaces lack such
elemental features as a place to sit. But the potential is great,
and if public groups ride herd on the planners and architects
more vigorously, the level of civic design would improve sharply.
It is far too important to leave to the professionals.
Rehabilitation Makes Good Sense
Redevelopment is more difficult than development. A city may
have the vision for ambitious redevelopment but still not have the
financial resources to bring it off on any scale. Consider first the
problem of land acquisition and relocation of existing residents.
This has been the Achilles heel of urban renewal. Economically, it
has been an enormous burden. In human terms, it has been far
worse; the clearing destroyed the social fabric of neighborhoods
and the relocating uprooted thousands of people for whom life
elsewhere proved bitter.
Starting in 1968, Federal legislation provided significantly
more generous relocation benefits for residents displaced by Fed-
erally supported construction. As a result of the more humane
relocation policies now reflected in Federal law as well as of a
greater citizen resistance to forced removal, most redevelopment
opportunities will probably not involve much displacement. Re-
habilitation of run-down structures acquired at low cost and with-
out eminent domain and utilization of non-residential property
are alternatives to condemnation, relocation, and demolition.
But where is the money to come from? New Federal revenue
sharing, of course, is one source, but it probably will not be suf-
ficient to accomplish the task on the scale that is needed. Perhaps
the most promising source in recent years has been the State
urban development corporation, pioneered in New York. Its suc-
cess is a proven fact.
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GUIDELINES AND REPORTS 1385
We urge that other States set up public corporations, or
confer substantial redevelopment powers on private
corporations, to undertake the redevelopment of sub-
stantial areas of the older cities.
But there are still many reasonable measures that can be
taken by the cities themselves—and by citizens themselves. Sev-
eral older cities have vastly overzoned for industry, and many
now have hundreds of acres of nearly vacant industrial building
space, much of it adjoining water courses or railways, or both.
Within the center city, housing abandoned by the out-migration
has left thousands of forsaken structures. It would seem reason-
able for the cities to exploit these situations through the acquisi-
tion and conversion of these eyesores into attractive neighborhood
areas for public benefit. And in many cases this can be done at a
lower cost than the development of new land, since the ex-
pensive infrastructure of streets, utilities, schools, churches, and
other public buildings is already in place. As we have noted, much
neighborhood rehabilitation has been done by people on their
own. Much more can be done if the city would help.
A good example is Wilmington, Delaware. In August it ini-
tiated an "urban homesteading" program whereby the City gives
abandoned housing to qualified applicants, either free or for a
nominal fee. The recipient agrees to bring the building up to
housing code standards and to live in it for at least three years.
Baltimore and Philadelphia have followed suit, and Boston is ex-
pected to do so soon. This is an imaginative idea whose time has
come, and we urge other cities to follow the example.
Outmoded waterfronts also are fertile fields for renovation. At
the moment, the waters around them are still polluted, but Fed-
eral, State, and local governments and industry are in the midst
of an $80 billion major national program to improve the quality
of the Nation's waters. A series of benefits will be created by this
investment, including better swimming, fishing, and boating as
well as aesthetic improvement. And yet, one cannot fail to be
struck by the oddity of providing money for water cleanup and
making no special provision for enhancing public access to the
newly desirable waters. The public is bearing the costs of im-
proving water quality; the public has a right to enjoy its benefits.
We recommend that Federal funds be provided for
acquisition of waterfront lands by State and local
governments.
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1386 LEGAL COMPILATION—SUPPLEMENT n
Historic Preservation
The 1976 Bicentennial Celebration will usher in our third century
of nationhood, calling for the protection and improvement of the
environment for the years ahead. Throughout this Report we
have made several suggestions addressed to the repair of our
natural heritage—the need for clean air and water, better land
use, more efficient use of our energy resources—but we feel there
is also a need to stimulate interest in America's cultural heritage.
Nowhere is the opportunity greater than in the older cities.
Many have streets or neighborhoods or sections that retain a de-
gree of historic integrity—such as Georgetown in the District of
Columbia, Greenwich Village in New York, the French Quarter
in New Orleans, and Society Hill in Philadelphia. Some may be
already registered historic areas, like those in Charleston or Bos-
ton or Santa Fe, or they may be simple areas, lacking any sig-
nificant single buildings but forming a unit of pleasing propor-
tion, lending to the community or neighborhood a sense of place.
Once these areas were pleasant environments, and so can they
be again—providing space without waste, ease of pedestrian cir-
culation, compactness without congestion, and an identification
of one's self with the environment. Many of these areas have re-
mained relatively unchanged because they became backwaters
of activity a long time ago. Others may recently have been pre-
served and enhanced by a small and somewhat specialized section
of the community.
Originally, the term "preservation" meant keeping isolated
historic and architecturally important buildings and sites in their
original form. Today, more and more emphasis is being placed
upon adaptive use and the renovation of old structures to serve
contemporary needs. A fine example was set by San Francisco's
Ghirardelli Square, where an old chocolate factory was imagina-
tively adapted for use as a shopping plaza. In Louisville, a nine-
teenth century bank was turned into a theater lobby; in Ann
Arbor and Memphis, old factories were converted into office
space. Elsewhere throughout the country old buildings are being
given new lives. Preservation has a dynamic; rather than merely
recreate history in museum form, it is making the past a living
part of the present.
It is all the more distressing, then, to see how frequently our
historic buildings are sent crumbling before the wrecker's ball.
A major cause for such destruction lies in tax laws that favor
demolition and new construction over renovation of existing
structures. In an effort to remove this emphasis on demolition,
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GUIDELINES AND REPORTS 1387
the President submitted the Environmental Protection Tax Act
to Congress. It would allow an owner who decided on renovation
to treat the project as a new structure for tax depreciation pur-
poses, thus giving an economic impetus to restoration rather
than replacement.
This legislation can help save structures of architectural
and historical significance, and we urge prompt Congres-
sional consideration and enactment.
Other important needs in historic preservation are support
for private rehabilitation efforts through strong regulation, fi-
nancial aid and loan guarantees, and careful planning for sup-
porting facilities. The most important opportunities lie with State
and local governments.
We urge States to consider enactment of appropriate
legislation to implement the Model State Guidelines for
Historic Preservation, recommended by the Council of
State Governments in its 1972 issue of suggested legis-
lative proposals. This would establish a State institu-
tional structure for the review and regulation of historic
sites, structures, and districts and would enable local
governments to take special measures to assure that the
integrity of historic areas is protected.
Interestingly, the increased activity of local governments in
historic preservation has made the role of private groups all the
more pivotal. Official commissions move slowly, as is their way;
they rarely have ready funds for purchase of threatened proper-
ties, and when they do step into situations, it is usually at two
minutes to midnight. What is needed are intermediary groups
which can act in advance, much as The Nature Conservancy does
for the saving of natural areas.
What may prove a prototype is the recently formed New York
Landmarks Conservancy, Inc. Under its charter, it can buy up
properties and transfer them to beneficent stewardship by sale
or rental. Perhaps more important, it can anticipate market pres-
sures by scouting beneficent uses for old properties and helping
owners arrange such trade-offs as the sale of air rights. These
are highly complicated transactions requiring substantial real
estate and legal expertise. Two minutes to midnight is too late for
them. Earlier, even the most complicated of schemes can be made
to work; this was the case with New York's South Street Seaport
(the air rights for which are now being "banked" for resale).
Let us hope there will be many more such complications.
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1388 LEGAL COMPILATION—SUPPLEMENT n
More funds must be made available for historic preservation.
Public agencies have few funding programs: banks are skeptical
about accepting mortgages on decrepit properties that, prior to
rehabilitation, look like poor collateral. Among all the Federal
housing provisions that have accumulated over the years, there
has been none to assist the homeowner in fully rehabilitating his
own property, historic or otherwise.
We recommend the establishment of national and State
revolving funds for rehabilitation of historic structures.
The significant amounts that States have put up for his-
toric preservation and which have gone unmatched in
recent years by the Federal Government are evidence of
some readiness on the part of State and local agencies
to support preservation. We urge that a special effort be
made during the Bicentennial decade to support activi-
ties intended to rehabilitate areas of historic signifi-
cance.
Governments can do more than aid private redevelopment.
They can recognize the distinctiveness and vitality of neighbor-
hoods that may make up in uniform age, design, and scale what
they lack in specific historic value. Simply by not destroying
them, cities can take at least one step forward in their own con-
struction and leasing activity. Government projects are often the
worst offenders: all too often fine old structures are razed to make
way for them, and the buildings that go up have a bland monu-
mentality totally out of scale and spirit with remaining old neigh-
borhoods they overshadow. Civic spaces and buildings ought to
set the best of examples, and fortunately there are some that
prove they can.
We also need to look to Great Britain and what it has done
about land use in its older cities. Recognizing a long-unfulfilled
need to protect areas of towns or groups of buildings, the Civic
Amenities Act of 1967 created the concept of Conservation Areas.
This Act obligated local authorities "to determine which parts of
their jurisdiction are of special architectural or historical in-
terest, the character of which it is desirable to preserve or en-
hance." In just over a four-year period, some 1,725 such Conserva-
tion Areas were designated in England, Scotland, and Wales.
Once an area is so designated, a special review is called for.
Further, by new legislation in 1972, the demolition of any build-
ing in a Conservation Area may be prevented.
Such a system could be used in the United States as well.
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GUIDELINES AND REPORTS 1389
Some of the makings already exist. The National Park Service
maintains a National Register of Historic Places, and a listed
property is accorded special review and consideration if a Fed-
eral or federally assisted project threatens to destroy or impair
it. The criteria for listing are that the area possess integrity of
location, design, setting, materials, workmanship, feeling, and
associations and represent a significant and distinguishable entity
(even if the components lack individual distinction). As pointed
out in THE USE OF LAND, these criteria are broad enough to
qualify either an area like Williamsburg or a simple street of
nineteenth century merchant shops in North Adams, Massachu-
setts. The Task Force felt, however, that in some respects the cri-
teria were too binding; ". . . the insistence upon integrity of de-
sign, feeling, and workmanship discriminates against areas where
organic growth has produced a stylistic mixture. Because of the
variety in physical structures, these areas can often support a
varied rent structure and provide a refreshing diversity of uses
and people."
The Committee endorses the Task Force recommenda-
tions that "urban neighborhoods characterized by a mix
of uses, a vitality of street life, and a physical integrity
be given recognition on the National Register as 'con-
servation areas.'"
Finally, the historic preservation movement should be broad-
ened to include the less affluent families. Too often they have been
the victims, not the beneficiaries, of preservation activities in
their neighborhoods. As rents in improved structures rose, they
were left with no option but to move out. A notable exception is
the experience in certain neighborhoods assisted by the Pitts-
burgh History and Landmarks Foundation. This group made
a commitment both to people and to preservation; it has improved
the quality of historic neighborhoods by renovating properties
with minimal community displacement, and it has developed
residences for all income groups within the same neighborhood.
It has also signed an agreement with local housing authorities to
purchase and restore derelict buildings for rental to the housing
authority. The housing authority then rents the units to low-
income families under the federally supported leased housing
program at rates the families could afford.
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1390 LEGAL COMPILATION—SUPPLEMENT 11
This program demonstrates the approach that ought to
be taken. Every opportunity for Federal assistance, in-
cluding the full range of Federal Housing Administra-
tion programs, should be made available to conserve the
existing stock of housing and its existing tenants. As
one authority has pointed out, there is seldom a short-
age of housing in the older cities but frequently a
shortage of decent, well-serviced neighborhoods.
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GUIDELINES AND REPORTS 1391
ENERGY CONSERVATION
Energy is probably the most critical, all-encompassing environ-
mental concern of Americans today. It is critical because our
energy-producing supplies of low-sulphur coal, gasoline, fuel oil,
natural gas, and electricity are beginning to be outpaced by our
growing everyday demands. It is all encompassing because nearly
every American is affected. It is an environmental concern be-
cause the production of energy consumes or modifies the natural
resources that constitute our environment.
In his Energy Statement of June 29, 1973, the President pro-
posed substantially increased Federal expenditures for research
and development on energy production. These additional funds
will significantly accelerate the Nation's crucial search for cleaner
and more efficient ways of producing the energy so essential to our
society and our economy.
In the same Statement, the President launched a conservation
drive to reduce by 5 percent the personal consumption of energy
across the Nation over the next year.
Because of the close relationship between energy and environ-
mental quality, the Committee has had a long-standing interest in
both the ways in which energy is produced and the ways in
which it is used. We believe that much improvement is needed
in both categories.
As a citizen group, the Committee feels that it should encour-
age direct citizen participation in energy conservation. While
the government and industry must obviously exercise leadership
and play major roles, it is the people, finally, who must accept—
and ultimately demand—energy conservation and make it a way
of life.
For this reason the Committee prepared and published in Sep-
tember 1973 a CITIZEN ACTION GUIDE TO ENERGY CON-
SERVATION. It is a .64-page booklet directed toward citizen
leaders, public officials, and others who are in a position to pro-
mote understanding of the need for energy conservation and to
encourage its practice on a broad scale by the American people.
The guide is intended to help Americans reassess their use of
energy—in transportation, in their homes, in offices and factories
—and to show them how to conserve it. It includes useful check-
lists for individual action, suggestions on how citizens can mobil-
ize, and a review of government initiatives toward a national
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1392 LEGAL COMPILATION—SUPPLEMENT n
energy conservation policy. As an additional incentive to spur ac-
tion by everyone concerned, the booklet also points out the amount
of money that can be saved through various conservation meas-
ures.
As the guide points out, enormous amounts of energy are
wasted in the United States today. Present methods of energy
production cause damage to the environment—in the form of air
and water pollution, surface mining, or otherwise. Thus, while a
dependable supply of energy is absolutely essential to our society
and economy, any waste of this vital commodity means unneces-
sary degradation of environmental quality.
The need for energy conservation is not a temporary condition
predicated upon husbanding enough gasoline to get us through
this summer or assuring enough fuel oil for next winter. On the
contrary, the Committee believes the time has come for Ameri-
cans to reassess their use of energy. Until very recently energy
has been so relatively abundant and inexpensive that we have
given little if any thought to its use and misuse on a prodigal
scale. Belatedly, and to our chagrin, we now fmd it to be a defi-
nitely limited commodity.
The Committee believes that its efforts can complement
the government program established by the President to
foster energy conservation. We recommend adequate
funding for the new Office of Energy Conservation in the
Department of the Interior and urge all government
agencies to give it full cooperation and support in its
urgent mission.
Research efforts on nuclear energy production should continue.
The research should be aimed at a technological breakthrough
on the breeder reactor process. Additional research also should
be directed toward better safety measures for both the fission
and breeder reactor processes. But nuclear energy production
should not be stopped while all the risk factors are eliminated.
After all, a certain element of risk is involved in nearly every-
thing we do every day.
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GUIDELINES AND REPORTS 1393
THE GLOBAL ENVIRONMENT
"If Stockholm did not mark the beginning of a new age of en-
vironment, it did witness the establishment of environmental
concern as a major public issue on a global basis."
Few would disagree with this comment on the United Nations
Conference on the Human Environment, held at Stockholm in
June 1972, made by Maurice Strong of Canada, who served as its
Secretary General. Future historians may well consider the Con-
ference one of the most important events of this century.
The Citizens' Advisory Committee on Environmental Quality
was doubly honored in connection with the Conference. Laurance
S. Rockefeller, a member and at that time Chairman of our Com-
mittee, was appointed by the President as one of the six United
States Delegates to the Conference.
Another member, Dr. Rene J. Dubos, was commissioned by
the Secretary General to serve as chairman of a distinguished
group of experts who would serve as advisors in the preparation
of a report which would provide the factual background and
conceptual framework for the Conference. The ultimate product
of this effort was the masterful work, co-authored by Dr. Dubos
and Barbara Ward, entitled ONLY ONE EARTH: THE CARE
AND MAINTENANCE OF A SMALL PLANET. In the opening
chapter, they set the theme for Stockholm in these terms:
"Man inhabits two worlds. One is the natural world of
plants and animals, of soils and airs and waters which
preceded him by billions of years and of which he is a
part. The other is the world of social institutions and
artifacts he builds for himself, using his tools and en-
gines, his science and his dreams to fashion an environ-
ment obedient to human purpose and direction.
". . . His condition is to live aspiringly and uncertainly
where the biosphere of living things and the techno-
sphere of his inventions interact.
"But today, as we enter the last decades of the twentieth
century, there is a growing sense that something funda-
mental and possibly irrevocable is happening to man's
relations with both his worlds. In the last two hundred
years, and with staggering acceleration in the last
twenty-five, the power, extent, and depth of man's inter-
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1394 LEGAL COMPILATION—SUPPLEMENT n
ventions in the natural order seem to presage a revolu-
tionary new epoch in human history, perhaps the most
revolutionary the mind can conceive. Men seem, on a
planetary scale, to be substituting the controlled for the
uncontrolled, the fabricated for the unworked, the
planned for the random. And they are doing so with a
speed and depth of intervention unknown in any previ-
ous age of human history."
Some 1,500 delegates from 113 nations—representing a broad
diversity of political, economic, and religious backgrounds—
devoted two solid weeks to constructive debate of environmental
issues and means of resolving them. They considered some 200
recommendations that had been proposed by the United Nations
Preparatory Committee.
More than 100 recommendations worked their way up through
the organized committee structure and received final approval in
plenary sessions of the Conference. Of these, the following were
of particular significance:
• Creation in the UN of a permanent, high-level unit
to coordinate environmental activities of the UN.
• Establishment of a UN Environment Fund, expected
to be financed at a level of $100 million over the first
five years. (The U.S. has pledged $40 million on a
matching basis.)
• Creation of a global "Earthwatch" program to be
constructed by the UN, which would monitor and as-
sess environmental trends in the atmosphere, oceans,
lands, and human health.
• Placement of greater emphasis on population policy
and accelerated aid by UN agencies in family plan-
ning.
• Provision of higher priority for environmental values
in international development assistance programs.
• Completion in 1972 of a global convention to restrict
ocean dumping.
• Measures to minimize the release of dangerous pollu-
tants, such as heavy metals, into the environment.
• Early completion of conservation conventions to re-
strict international trade of endangered species and
to establish a World Heritage Trust for protecting out-
standing natural and cultural treasures.
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GUIDELINES AND REPORTS 1395
• Creation of an Environmental Referral Service to pro-
mote exchange of environmental knowledge and tech-
niques among countries.
• Programs to collect and safeguard the world's
immense variety of plant and animal genetic resources
—the "genetic pools" on which man can draw in the
future.
• Strengthening of the International Whaling Conven-
tion and a proposed 10-year moratorium on com-
mercial whaling. (At a subsequent meeting of the
International Whaling Commission in London, the
moratorium was not approved, although some reduc-
tions in quotas for harvesting whales were agreed to.)
The Conference also approved a 26-point Declaration on the
Human Environment which contains important new guidelines
for international environmental action.
The Committee considers it particularly fortunate that the
"Planning and Management of Human Settlements" was in-
cluded as one of the subject areas. (Mr. Rockefeller served as the
United States Lead Delegate in this area.) Synonymous with
the term "land use" in the United States, this subject merits top
priority on the international environmental agenda. It is thus
most gratifying to note that the UN General Assembly has de-
cided to hold a Conference-Exposition on Human Settlements in
Vancouver, British Columbia, in the spring of 1976.
At its session in the autumn of 1972, the United Nations Gen-
eral Assembly adopted the basic recommendations of the Stock-
holm Conference. A United Nations Environment Programme has
been established, with headquarters scheduled to be in Nairobi,
Kenya. There is a Governing Council of 58 nations, including the
United States and a broad representation of both developed and
less developed countries. Maurice Strong has been appointed
Executive Director. And there is an Environment Fund to be
administered by the Executive Director under the policy guidance
of the Governing Council.
Now that the UN Environment Programme has been effec-
tively launched, the need for followup support in the United
States is crucial. A great many of the Americans who are active
in the defense of our domestic environment are well aware that
the problems transcend national boundaries, and they are deeply
eager to support the United Nations Environment Programme.
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1396 LEGAL COMPILATION—SUPPLEMENT n
At present, however, they are woefully uninformed on what is
happening or what they can do.
Despite urgings from citizens and Members of Congress, there
has been little governmental followup since Stockholm. A citizen
who was a delegate to the Conference, J. Ross Vincent, Vice
President of the Ecology Center of Louisiana, puts it this way:
"It has been nearly five years since the United Nations
General Assembly adopted the resolution calling the
Stockholm Conference. Yet, still there exists within the
United States Government no clearly defined structure
for dealing with international environmental problems
and no effective mechanism at all for informing the pub-
lic or soliciting public views on these issues. These
problems grow increasingly more significant as public
confidence in government wanes."
Senator Howard Baker of Tennessee, who served as Chairman
of the Secretary of State's Advisory Committee on the Stockholm
Conference, in transmitting that Committee report, wrote:
"There was . . . unanimity of opinion on the significance
of involving the American public in this country's do-
mestic and foreign policy making, especially at a time
when the average citizen feels increasingly removed
from the day-to-day proceedings of Government. ... I
wish to emphasize the significance of establishing some
form of citizens advisory mechanism to bridge the gap
between government and its constituency."
The Committee believes that citizen understanding and
support are essential to effective participation by the
United States in the international environmental area
and recommends the early establishment of a mecha-
nism for continuing consultation between the Govern-
ment and the public on this subject.
U. S. GOVERNMENT PRINTING OFFICK 1974 O - 548-493 (Vol. E
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U.S. Environmental Protection Agency
Region V, Library X
230 South Dearborn Street
Chicago, Illinois 60604
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