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Report of the
Legal Advisory Committee

to the
President's Council on Environmental Quality

December, 1971

Just over 100 years ago, in 1869, Leopold Trouvelot, a French artist, astronomer and entomologist, was conducting experiments in Medford, Massachusetts, in an effort to develop a more hardy species of silk worms compatible to the rigors of the New England climate. As part of his experimentation, Trouvelot imported a new moth, which, although it did not cross with the silk worms, did prove to be extremely hardy. While Trouvelot watched in growing alarm, the imported insect multiplied rapidly and soon escaped from the experimental station. Trouvelot issued a warning to the public, then packed his bags and headed back home to Paris. Before long, Medford and nearby towns were subjected to an epidemic of caterpillars, devouring the leaves of trees and shrubs and causing death to those that were de foliated in the process. Thus, out of the best of intentions, the curse of the gypsy moth was introduced to the United States.

Most of the afflictions suffered by the environment began with similar good intentions. Economic expansion, job opportunities, and, above all, "progress," led the way in the unwitting despoliation of the landscape, the air, and the water. The development of industrial processes, the internal combustion engine, the manufacture of pesticides, and the countless similar intended and real benefits have posed repeated threats to our natural resources. Now that we have finally realized the extent of the problem we have created, we are, like those hard-working scientists who are still trying to cope with Trouvelot's gypsy moth, dealing with a problem that has gotten out of hand.

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The challenge today is to find corrective measures which will be effective in solving the problem, while

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at the same time not resulting in steps which are unfair or unreasonable. That is the context in which the Legal Advisory Committee to the President's Council on Environmental Quality has been working to develop legal concepts and techniques which might assist the Council in carrying out its statutory obligations to protect the environment.

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Appointment of the Legal Advisory Committee was nounced by CEQ's Chairman Russell E. Train on April 30, 1970. The Comunittee was made up of private and government lawyers, law professors, representatives of conservation groups, and a law student representative, all serving as unpaid volunteers. The committee members brought imposing credentials in various aspects of environmental law and know-how. Timothy Atkeson, CEQ's General Counsel, was assigned to serve as liaison between it and the Legal Advisory Committee.

The first meeting of the Legal Advisory Committee was held in Washington on May 25, 1970. At that meeting the overall program and objectives of the Comunittee were agreed upon.

A series of subcommittees was established to conduct research and to prepare draft reports and recommendations. These subcommittees were as follows:

1. Subcomun ittee on Administrative Procedures, to study administrative practices followed by Federal agencies whose activities affect the quality of the environment, including agency compliance with the reporting requirements of the National Environmental Policy Act of 1969 concerning actions which significantly affect the environment; possible procedural changes to increase public participation in decision making: and the adequacy of administrative review in environmental matters. Chairman : Professor Louis Jaffe of Harvard Law School.

2. Subcommittee on Land Division Procedures, to review the practices followed by the Department of Justice in handling substantive issues raised in environmental cases brought against public agencies. Chairman: William F. Kennedy, Corporate Counsel to General Electric Company.

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3. Subcommittee on an Environmental Bill of Rights, to consider the pros and cons of an amendment to the Constitution of the United States specifically relating to environmental concerns. Chairman: Malcolm Baldwin, Senior Legal Associate of the Conservation Foundation.

4. Subcommittee on Federal Enforcement, to review the adequacy of enforcement machinery and practices in implementing existing federal statutes designed to protect the environment; the proper relationship of federal, state and local governments, for most effective enforcement; and the adequacy of present procedures in achieving prompt and sound results. Chairman : Professor Frank P. Grad, Director, Legislative Drafting Research Fund, Columbia Law School.

5. Subcommittee on Law School Liaison, to explore methods for achieving participation by law students and law school faculties in environmental matters. Chairman: E. Lewis Reid, member of a San Francisco law firm.

6. Subcommittee on International Environmental Law, to study procedures and programs for international cooperation in environmental protection, Chairman: Professor Ann Strong, Director, Institute for Environmental Studies, University of Pennsylvania.

7. Subcommittee on Private Litigation, to study proposals for strengthening private litigation as a technique for environmental protection. Chairman: David Sive, partner in a New York law firm.

Thereafter the Committee again met on September 14, 1970, in Washington, where it acted on recommendations by the Subcommittee on Lands Division Procedures, the Subcommittee on Private Litigation, and the Subcommittee on Law School Liaison. Interim reports were received from other Subcommittee chairmen. After full consideration, the Committee also accepted and filed a report by the

Subcommittee on an Environmental Bill of Rights concluding that, on balance, no useful function would be served by endorsing any broad proposed constitutional amendment covering environmental issues since such amendment does not appear necessary to accomplish significant environmental reforms. The action taken on the other Subcommittee reports is discussed in full below.

A third meeting of the Legal Advisory Committee was held in Washington on January 11, 1971, at which time various interim reports were received and discussed, particularly those relating to Federal enforcement, administrative procedures and international environmental law.

A fourth meeting of the Legal Advisory Committee was held in Washington on April 19, 1971, at which final action was taken on the reports of the Subconnittee on International Environmental Law and of the Subcommittee on Federal Enforcement, both of which are described below. The Subcommittee on Administrative Procedures submitted its second interim report.

The fifth meeting of the Comunittee was held in Washington on October 18, 1971, at which the Committee received the final report of the Subcommittee on Administrative Procedures and considered problems relating to land use planning.

At the initial meeting of the Legal Advisory Committee on May 25, 1970, one of the matters the members agreed on was that they would try to defy Parkinson's Law and fix a definite date for completion of their labors. That moment has now arrived. This report is a summary of the basic work the Committee set out to complete within 18 months. The Committee has now adjourned sine die, and will continue on a standby basis. Meanwhile, we look with considerable satisfaction on the work that has been accomplished so far.

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6. Legislation should provide specifically
that persons who suffer injuries to their person
or property as a result of violations of State or
Federal environmental regulations by another shall
have a right of action based on the proof of such
violations.

7. The use of so-called market mechanisms to protect environmental concerns such as effluent charges and the like should be considered, and experience with such mechanisms, abroad and in the States that adopt them, should be observed to provide guidance for the future applications.

8. In the light of the foregoing recommendations, the provisions of the Refuse Act of 1899 are approved, insofar as they provide for direct Federal enforcement against persons responsible for pollution; the penalties provided for in the Refuse Act, however, are inadequate, in that they do not stand in an appropriate relationship to the economic advantages resulting from its violations, and in that the maximum penalties provided bear no relationship to the cost of clean-up. The Refuse Act and its enforcement are not inconsistent with Federal regulatory efforts under the Water Quality Act, and a permit system may well be best designed to carry out its purpose, provided that adequate provisions are made to assure continuing monitoring of effluents and continuing surveillance of permit grantees.

IV. INTERNATIONAL ENVIRONMENTAL LAW

One of the ironies in the new national awareness of the environmental damage that can be done by industry and large-scale economic development is that the United States itself is currently engaged in a number of foreign aid programs which involve many of the same factors, and which may be doing equal environmental damage abroad. By way of example, environmentalists point to the adverse ecological

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