Can "New Federalism" really work in implementing federal environmental statutes? The guidelines for this paper, in suggesting that it should be "Hamiltonian, articulating the proper boundaries for a strong federal role in environmental control," infer that my answer should be no.

FREDERICK ANDERSON: Addressing my remarks to those who advocate a significant shift of power towards the states, are you not offering to return authority to institutions that we long ago rejected as a place in which to lodge major environmental protection authority?

My recollection of the history of the Clean Water and Air Acts is that over a long and fairly painful period, the statutes were revised and tightened up, based on a record supported indirectly by the state people themselves that the states just could not handle the authority.

The question is environmental protection—can the states cope? How will the states cope, and how well will they do that?

These are difficult questions to answer, but questions are frequently raised in our society because of anticipated change, and in this case, questions are being raised because of a change in Administration, in relationships between different levels of government, and in costs and sources of funding government activities.

Over the last several months, under pressureof court-ordered deadlines, the Environmental Protection Agency (EPA) has been promulgating long overdue Clean Water Act best available technology (BAT) standards for toxic pollutants. In the final BAT effluent limitations guide-lines BAT often is the same as the best practicable technology (BPT). Where the new BAT is more stringent than BPT, the difference is relatively small and potentially more effective technologies were rejected.

Editors' Summary: The Bureau of Land Management is in the process of reviewing 23.8 million acres of its lands for possible wilderness designation. During this review it must manage these wilderness study areas under §603(c), an ambiguous provision which mandates the application of a strict nonimpairment standard to WSAs but "grandfathers" certain poorly-defined pre-FLPMA activities. In 1978, the Solicitor of the Department of the Interior wrote a legal opinion construing the provision to provide stringent limits on oil and gas leasing in WSAs.

Editors' Summary: Regulatory reform must be carried out through the same reasoned decisionmaking processes which the Administrative Procedure Act (APA) requires for the promulgation of new rules. This, Mr. Stohbehn argues, is the Third Circuit's message to the Environmental Protection Agency (EPA) in Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 12 ELR 20833.

Editors' Summary: As the 97th Congress came to a close, the Reagan Administration, natural resource development interests, the Congress, and conservationists had come to a stalemate in a high stakes battle over mineral development on the nation's public lands. Mr. Tundermann examines the reasons for the stalemate and discusses several congressional and administrative actions of the past year that have contributed to it. He explains that as much as 50 percent of the federal lands are currently withdrawn from mineral development.

Samuel Bleicher's recent article on ocean dumping, "The Battle Over Ocean Dumping," 12 ELR 15032, while providing an excellent analysis of many of the key issues in the debate over ocean disposal of contaminated wastes, fails to address a critical point: the national and international precedent that could well be established by a U.S. policy reversal on ocean dumping.

Editors' Summary: The long-range transport of sulfur dioxide emissions, their transformation into sulfates in the atmosphere, and their eventual return to earth through the phenomena popularly lumped together under the name "acid rain" is a serious environmental problem that many argue has been given inadequate attention in the Clean Air Act. In three decisions issued on December 1, 1982, the Second Circuit Court of Appeals analyzed carefully the Clean Air Act's response to the interstate transport of SO₂ and its transformation into sulfates.

Issues:

1. Is compliance with federal and state environmental statutes and regulations a defense to a federal or state common law negligence or nuisance action?

2. Does the existence of a federal regulatory statute governing a particular activity bar a federal or state common law claim with respect to that activity?