Congress Considers New Environmental Protection Act

The Environmental Protection Act of 1973, introduced by Senator Philip Hart and now being considered by Congress, proposes procedural and substantive changes in federal law to aid environmentalists. The full text is set out at the end of this Comment. The broad purpose of the Act, which is modeled to some extent on Michigan's Environmental Protection Act of 1970, is to give each citizen a right to "the protection and enhancement of environmental quality" and an adequate equitable remedy "to protect environmental quality from impairment and degradation."

Under the Act, standing to sue is accorded those who "speak knowingly for the environmental values asserted." In addition, the opportunity for judicial review of the substance of federal agency decisions concerning the environment is expanded in two ways. First, the courts need not defer to agency findings when they are contradicted by the "preponderance of the evidence." Second, even when an agency's action is within the range of legitimate discretionary choices the court may (a) independently review the substantive balancing of environmental and economic costs and the expected benefits, or (b) require that an alternative course of action be taken which is less damaging to the environment.

Finally, a new right, derived from a version of the public trust theory, is established vis-a-vis non-federal entities involved in major activities which damage the environment. Where there are no applicable legislative or administrative standards, a right of action in the courts — independent of administrative processes — would allow judicial consideration of the balance struck or of less damaging yet reasonable alternatives.

The second session of the 93d Congress will be the battleground as Senator Hart contends with the opposition, not only of the Nixon Administration, but also of some influential supporters of environmental legislation who would like to see NEPA and EPA given the opportunity of proving themselves before being supplemented in any major way.

Standing

Suits may be brought under the proposed 1973 Act by any person or persons who "are adversely affected or aggrieved" or who "speak knowingly for the environmental values asserted." (§ 104 (a)) This provision strikes a middle ground that expands the concept of standing to remedy the problems faced by environmental groups seeking access to the courts where they are either not directly affected by the action or the harm is one suffered by the community at large.¹ Yet it does not extend standing to "all persons" as is done in the Michigan Act.

Other explicit and implicit limitations on access to the courts include a requirement that any suit brought under [3 ELR 10075] the Act must be supported by affidavits from at least two "technically qualified persons" stating that the action complained of "will or reasonably may impair or degrade environmental quality." (§ 104 (a)) The apportionment of costs and attorney's fees, an obvious consideration in a "citizen suit," is left to the discretion of the court.

Notice and Right to Joinder

An environmental registry will be kept with the names and addresses of all interested persons who request inclusion. (§ 105 (a)) When a complaint is filed under the Act in any court, notice is sent to all in the registry and is published in the Federal Register. Any person entitled to bring suit under the Act may intervene as of right where there are common questions of law or fact under the original complaint.

The registry plan to provide notice, while probably costly and difficult to administer, was added specifically by the Commerce Committee to the 1973 Act. Fearing multiple suits against the same defendant regarding the same activity, the provision attempts to make the decision in any suit brought under the Act binding on all others outside the litigation who have actual notice and yet fail to join.

Review of Federal Agency Action

Persons may seek judicial review of an action taken by a federal agency, including the promulgation or the failure to promulgate a rule, where three conditions are met: (1) the action is a "major action significantly affecting the quality of the … environment" within the meaning of NEPA, (2) the suit seeks enhancement of environmental quality, and (3) the action impairs or degrades environmental quality. (§ 201 (a)) Under the last, courts are allowed to consider whether the decision was done in the proper manner and is consistent with explicit substantive requirements established by statute. Notwithstanding compliance with any procedural or substantive statutory requirements, the court may further review the substantive nature of the decision to determine if (a) environmental and economic costs exceed expected benefits, or (b) there is an adequate and reasonable alternative that is less damaging to the environment. (§ 201(b)) Findings and conclusions of fact made by the agency are presumed to be correct unless the presumption is rebutted by a preponderance of the evidence. (§ 202(e))

The Commerce Committee noted that judicial review of the substance of agency decisions under NEPA was limited and inconsistent, and therefore provided for expanded review procedures within the Act. The effect of these changes is threefold. First, agencies are explicitly required by statutory language to balance the environmental and economic interests involved in all major actions, and that balance is subject to judicial review. Second, agencies are required to choose the least damaging alternative within the range of possible actions. Thus, even where an agency has struck an acceptable balance between the interests involved, the court may still require it to undertake an alternative course of action which the court feels is equally acceptable while causing less harm to the environment. Finally, review of agency actions where important environmental interests are involved is to be less restricted than under the "substantial weight of the evidence" test provided for under the Administrative Procedure Act.

Citizen Enforcement of Agency Regulations

The proposed 1973 Act allows citizens to enforce federal or state regulations against private parties conducting major activities which significantly impair or degrade the quality of the environment, and which affect interstate commerce. (§ 301(a) & (c) (1)) In such cases the citizen acts as a "private attorney general" to enforce the standards and regulations established by other regulatory bodies. Referral or remand may be made to the proper agency for the exhaustion of alternative remedies where the "expeditious and informed resolution of the action would be advanced," but it is not required.

Suits to Enjoin Harmful Activities

Where there are no applicable legislative or administrative standards, a citizen may still seek equitable relief against a major private activity which impairs or degrades environmental quality and affects interstate commerce, where the environmental costs exceed the expected benefits, or where there is a reasonable and adequate, but less damaging, alternative. (§ 301(a) & (c) (2)) Again, an action based on an acceptable balancing of interests, including environmental factors, may be enjoined where the court finds an alternative exists which is reasonably calculated to achieve the same goals while causing less damage to the environment. Purely local activities approved by a state are exempt from suit. Referral or remand of such cases to the appropriate agency is allowed, though not expressly required.

Recent Hearings

One of the foremost proponents of the proposed legislation is Professor Joseph Sax of the University of Michigan Law School. In the most recent hearings before Senator Hart's Commerce Committee (April 2-5, 1973), Professor Sax stressed the benefits which have resulted in Michigan in the three years since that state's Environmental Protection Act was passed.² Not only were citizens more conscious of their rights and responsibilities, but public officials have been emboldened to let environmental considerations play an ever-increasing role in their decision-making. He stated that officials, far [3 ELR 10076] from being harrassed by a multiplicity of citizen suits, were frequently pleased to obtain a judicial vindication of their policies. Professor Sax argued that it is a mistake to see the Michigan Act as directing courts to usurp the function of the agencies. He suggested that the role of the courts should properly be seen as that of assisting the agencies to defend themselves againstthe tendency to become enmeshed in identification with the industries they are nominally regulating. In addition, the provision for judicial review would allow, according to Sax, a greater measure of insulation from external political pressure than might otherwise be achieved.

William Butler of the Environmental Defense Fund also testified at the April hearings. Addressing the questions of whether the Act is a necessary addition to existing environmental laws such as NEPA, Mr. Butler pointed out that despite the sweeping and laudatory goals contained in § 101 of NEPA, there are currently environmental injuries for which individuals do not have an adequate remedy. He further illustrated how the current standing requirements are being used by agencies as a procedural tactic to stall environmental litigation, often making it too expensive for plaintiffs to continue. Further, the present concept of standing leaves certain environmentally damaging activities immune from challenge. He cited those problems shared by all citizens, such as ocean dumping, atomic tests, noise, and destruction of endangered species, which do not involve any individual injury specific enough to meet the current standing requirements.

Finally, Mr. Butler stated that the proposed standard of review for agency actions is a necessary step in controlling agency discretion where important environmental values are involved. Presently the courts, in deference to agency expertise, uphold agency decisions based upon "substantial evidence" from the record as a whole, or at least not "arbitrary and capricious." Challenges attempting to meet these standards have been largely unsuccessful, especially under NEPA, he stated. "These standards [in the 1973 Act]," he concluded, "will greatly assist the public in requiring agencies to fully justify to courts and to the public actions adversely affecting the environment."

The Sierra Club was represented at the hearings by Brock Evans, who testified that the proposed Act would not result in a flood of citizen suits, nor would it unduly interfere with the executive branch. On the contrary, Mr. Ebans stated that some interference was necessary to counteract the built-in bias of agencies for development at the expense of the environment.

The overall reaction to the proposed Act, however, has been far from favorable. CEQ's General Counsel, Timothy Atkeson, suggested during the April hearings that as a result of the recent favorable developments in federal law regarding citizen suits, the Act was unnecessary. Mr. Atkeson listed several examples of the favorable trend, from the Internal Revenue Service's ruling granting taxexempt status to public interest law firms, to the recent cases reviewing substantive agency decisions under NEPA.

Mr. Atkeson echoed the opinions opponents of a citizen suit bill have been expressing over the past two years when he questioned what he considered to be the serious flaws of the proposed 1973 Act. First he noted the interference suits under the Act would cause agencies, especially EPA. Because courts would only defer to agency criteria "to the extent that such obligations are more protective of environmental quality than those arising under this Act," the legislative and administrative processes could be circumvented.

A second problem identified by CEQ's General Counsel was the "politically sensitive major shift in Federal-State relationships" which would occur as a result of federal courts entering environmental regulation in areas where Congress has not yet acted.

A third difficulty arises from the provision of the Act allowing courts to balance independently the environmental and economic costs and the benefits expected. Atkeson suggested the federal courts might not welcome this extra burden. He also criticized the Act's grant of jurisdiction over private activities, allowing judicial review in a "vastly increased range of activities … against a vaguely worded test [that] in effect would bring the courts into every aspect of private sector activity."

Conclusion

Despite the numerous and often severe criticisms of the 1973 Act, there is broad support for the policy which attempts to limit agency discretion in environmental matters. The limits on agency discretion imposed by the independent judicial balancing of interests and the "least damaging alternative" test have not yet been as severely criticized, though this may be due more to what has been perceived as the glaring inadequacies of other parts of the bill than to acceptance.

The 1973 Act will probably be opposed by the sponsors of both NEPA (Senator Jackson) and EPA (Senator Muskie). The Nixon Administration is already on record as opposing the legislation. While environmentalists generally have provided enthusiastic backing for the 1973 bill, a caveat from Luther Carter of Science Magazine is worth remembering.³ Carter suggests that environmentalists will be taking a risk if the 1973 Act becomes law and judges are given the authority to second-guess the legislative and executive branches on the merits of environmental issues. He notes, "As recent opinions show, some judges exude the sentiments of a Thoreau while others think more like the managers of a copper smelter."

[3 ELR 10077]

S. 1104

A bill to promote and protect the free flow-of interstate commerce without unreasonable damage to the environment; to assure that activities which affect interstate commerce will not unreasonably injure environmental rights; to provide a right of action for relief for protection of the environment from unreasonable infringement by activities which affect interstate commerce and to establish the right of all citizens to the protection, preservation, and enhancement of the environment

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

TITLE I — GENERAL PROVISIONS

SHORT TITLE AND TABLE OF CONTENTS

SEC. 101. (a) This Act may be cited as the "Environmental Protection Act of 1973".

(b) Table of contents.

TITLE I — GENERAL PROVISIONS

Sec. 101. Short title and table of contents.

Sec. 102. Findings and purposes.

Sec. 103. Definitions.

Sec. 104. Procedure.

Sec. 105. Actual notice.

Sec. 106. Limitations.

Sec. 107. Other remedies.

Sec. 108. Effective date.

TITLE II — SUITS TO REVIEW ACTIONS OF FEDERAL AGENCIES

Sec. 201. Applicability.

Sec. 202. Remedy.

TITLE III — SUITS TO ENFORCE AGENCY REGULATIONS AND TO ENJOIN ENVIRONMENTALLY HARMFUL ACTIVITY

Sec. 301. Applicability.

Sec. 302. Remedy.

Sec. 303. Notice.

Sec. 304. Coordination with States.

FINDINGS AND PURPOSES

SEC. 102. (a) The Congress finds and declares that each person is entitled by right to the protection and enhancement of environmental quality and that each person has a responsibility to contribute to the protection and enhancement of the environment as a trustee for the benefit of future generations.

(b) The Congress further finds and declares that it is in the public interest to provide each person with an adequate remedy to protect environmental quality from impairment and degradation.

(c) The Congress further finds and declares that hazards to environmental quality are caused largely by persons who are engaged in interstate commerce or in activities which affect interstate commerce.

DEFINITIONS

SEC. 103. As used in this Act —

(1) "Environmental quality" means those aspects of life and those objectives which are delineated in section 101(b) of the National Environmental Policy Act of 1969 (42 U.S.C. 4331(b)) and which it is the purpose of such Act to protect.

(2) "Federal agency" means the executive departments and independent establishments of the United States and corporations primarily acting as instrumentalities of the United States.

(3) "Includes" or "including" should be read as if the phrase "but is not limited to" were also set forth.

(4) "Person" means an individual, partnership, corporation, unincorporated association or organization; or a department, agency, or instrumentality of the United States, a State or political subdivision of a State, the District of Columbia, the Commonwealth of Puerto Rico, or a territorial possession of the United States.

PROCEDURE

SEC. 104. (a) Suits may be brought under this Act by any person or persons who are adversely affected or aggrieved by the action or activity which is the subject of the suit or who speak knowingly for the environmental values asserted in such suit.

(b) When two or more actions, at least one of which is brought under this Act and all of which involve the same defendant and a common question of law or fact, are pending in two or more jurisdictions, such pending proceedings, upon application of any party reasonably made to the court of one such jurisdiction, may, if the court so decides, with the concurrence of the courts of the other jurisdictions concerned, after giving due consideration to the convenience of parties and witnesses and the order in which the suits were originally filed, be consolidated for trial by order of such court. The court granting such order of consolidation shall give prompt notification thereof to the other courts having jurisdiction of the cases covered thereby. Nothing in this subsection shall be construed to preclude consolidation in any case not specifically referred to in this subsection.

(c) Upon clear and convincing evidence offered by any defending party in a suit under this Act that a temporary restraining order or preliminary injunction will result in irreparable damage to such party, the court may condition the issuance of such order or injunction upon the plaintiff or plaintiffs giving security to cover the costs and damages that may be incurred and suffered by such party if relief is wrongly granted. Such security shall not be required if, in thejudgment of the court, imposition would unreasonably hinder the plaintiff or plaintiffs in the maintenance of the suit, would tend unreasonably to prevent a full and fair hearing on the action or activity complained of, or would otherwise not be in the public interest. Except as provided in this subsection, no bond shall be required by the court of any plaintiff in a suit under this Act.

(d) In a suit under this Act, the court may appoint a master to take testimony and to make a report. The court or master, as well as the parties to the suit, may subpena expert witnesses and have the assistance of nationwide service of process for the production of records, documents, and other information reasonably necessary for just disposition.

(e) Any suit under this Act shall be supported by the affidavits of not less than two technically qualified persons stating that to the best of their knowledge the action or activity complained of will or reasonably may impair or degrade environmental quality.

(f) The costs of litigation, including reasonable attorney's and expert witness fees, may be apportioned to the parties whenever the court determines that such an award is appropriate.

ACTUAL NOTICE

SEC. 105. (a) The Administrative Office of the United States Courts shall establish an environmental registry under the direction of the Director. The Director shall list the names and addresses of all persons in the United States who request to be listed as persons (1) interested in environmental quality and the protection and preservation of the environment from impairment or degradation; and (2) who wish to receive the notice provided under subsection (b) of this section as to actions pending in one or more geographical regions. The Director shall operate the environmental registry, maintain materials relating to the rights recognized in this Act, and provide for payment of membership fees to cover the cost of the notice provided under subsection (b) of this section.

(b) Upon the filing of the original complaint in a suit under this Act, the clerk of the court in which such suit is filed shall promptly send a copy of the complaint and attached exhibits and affidavits to the Director. Upon receipt, the Director shall promptly send a notice of such pending litigation to each person listed in the environmental registry as of that date. The notice shall state —

(1) the names of the parties to the action;

(2) the date on which the complaint was filed;

(3) the name and address of the court in which the suit is pending;

(4) the allegations in the complaint and the relief requested, in summary form; and

(5) the procedure for obtaining expeditiously a copy of the documents in the suit, including the cost of a reproduction copy. Upon receipt of a copy of an original complaint pursuant to this subsection, the Director shall also cause a copy of such complaint, or a summary thereof, to be published in the Federal Register.

(c) Any person who is entitled to bring a suit under this Act may, in accordance with applicable rules of civil procedure, intervene as of right as a plaintiff in any suit under this Act with respect to any questions of law or fact in common with the original complaint. In deciding the timeliness of applications to intervene, the court shall consider the operation of the notice provisions referred to in subsection (b) of this section and shall ensure that there is adequate opportunity to respond to the notice provided.

(d) The Director shall submit annually to the Congress, together with copies of the annual report required to be submitted under section 604(a)(4) of title 28, United States Code, a statement of the number of actions brought under this Act, the number of such actions dismissed, settled, or brought to trial, and the number of such actions which appear to arise out of the same transaction or occurrence as any previous suit under this Act or any other Federal statute relating to environmental quality.

LIMITATIONS

SEC. 106. (a) No suit may be brought under this Act against the Congress of the United States.

(b) Nothing in this Act shall be construed to affect the specific statutory obligations of any Federal agency or any other person —

(1) to comply with criteria or standards of environmental quality;

(2) to coordinate or consult with any other Federal or State agency; or

(3) to act or refrain from acting contingent upon the recommendations or certification of any other Federal or State agency,

to the extent that such obligations are more protective of environmental quality than those arising under this Act.

OTHER REMEDIES

SEC. 107. Nothing the this Act shall be construed to restrict any right or remedy which a person may have under any other provision of law or at common law, to seek relief or redress to protect himself or environmental quality.

EFFECTIVE DATE

SEC. 108. The provisions of this Act shall be applicable to activity prior to the date of enactment only to the extent that the National Environmental Policy Act of 1969 (42 U.S.C. 4331(b)) is held by the courts to be applicable to activity conducted prior to the date of enactment of such Act.

TITLE II — SUITS TO REVIEW ACTIONS OF FEDERAL AGENCIES

APPLICABILITY

SEC. 201. (a) A person, on his own behalf [3 ELR 10078] or on behalf of other persons similarly situated, may maintain a suit in accordance with this Act for review of an action of a Federal agency, including promulgation or failure to promulgate a rule or regulation, if —

(1) such agency action allegedly constitutes an impairment or degradation of environmental quality under subsection (b);

(2) such agency action allegedly constitutes a major action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969 (42 U.S.C. 4331); and

(3) such suit seeks enhancement of environmental quality through agency action more protective of environmental quality.

(b) An action of a Federal agency constitutes an impairment or degradation of environmental quality if —

(1) with respect to action taken pursuant to the Clean Air Act, as amended (42 U.S.C. 1857), or the Federal Water Pollution Control Act, and as amended (33 U.S.C. 1151), the agency action fails to comply with any explicit substantive or procedural requirements for the protection of environmental quality prescribed for agency action in such statute;

(2) with respect to action taken pursuant to any other Federal statute —

(A) such action fails to comply with any explicit substantive or procedural requirements for the protection of environmental quality prescribed for agency action in such statute, or

(B) notwithstanding that such action is consistent with such requirements, to the extent that the agency has discretion in the matter —

(i) the environmental and economic costs of the action exceed the benefits to be derived from such action, or

(ii) the agency fails to select, within the limits of its discretion, and alternative to the action in question which creates less risk of environmental damage, is of comparable social (including environmental) benefit, does not involve unreasonable additional costs, and meets a similar need; or

(3) with respect to any action taken, such action is in violation of a Federal agency standard, order, permit, or other regulation for the protection of environmental quality.

(c) A suit under this title may be brought without regard to the amount in controversy in any district court of the United States in which venue is appropriate under section 1391 of title 28, United States Code: Provided, That if such suit concerns a specific agency action under a Federal statute which includes a provision for review of any such action affecting environmental quality under such statute, the suit shall be brought in conformity with the venue requirements and time limitations of such provisions.

REMEDY

SEC. 202. (a) The court shall grant whatever equitable relief is necessary to prevent impairment or degradation of environmental quality, including declaratory judgments and mandatory or prohibitive injunctive relief, upon an affirmative finding with respect to paragraphs (1), (2), and (3) of section 201 (a).

(b) The court is authorized to grant interim equitable relief in suits under this title. Such relief may include relief against any agency pending the completion of agency procedures leading to an agency action or against any person whose activities may be prohibited, controlled, or authorized by such agency action.

(c) The court may refer the parties or remand the action in any suit maintained under this title to the administrative and regulatory procedures provided by other law or regulation. The court shall order such reference or remand upon a finding that expeditious and informed resolution of the action would be advanced by reference or remand in whole or in part. Nothing in this subsection shall be deemed to prevent the granting of interim equitable relief necessary to protect the rights recognized in this Act.

(d) If an action is remanded under subsection (c), the court may direct the agency in question to take additional evidence subject to such terms and conditions as the court may prescribe. The court may also take additional evidence itself in any suit under this title if it determines that the taking of such evidence will most effectively and efficiently protect the rights recognized in this Act.

(e) In a suit under this title any determination of questions of fact by a Federal agency and agency action, findings, and conclusions based on such determination shall be presumed by the court to be correct unless such presumption is rebutted by a preponderence of the evidence.

(f) In a suit under this title, all questions of law shall be determined by the court. There shall be no presumption as to the correctness of agency determinations of questions of law.

(g) Except as otherwise provided or as otherwise required to effect the provisions and purposes of this Act, the provisions of chapter 7 (Judicial Review) of title 5, United States Code shall apply to all suits under this title.

TITLE III — SUITS TO ENFORCE AGENCY REGULATIONS AND TO ENJOIN ENVIRONMENTALLY HARMFUL ACTIVITY

APPLICABILITY

SEC. 301. (a) A person, on his own behalf or on behalf of other persons similarly situated, may maintain a suit in accordance with this Act for declaratory or temporary or permanent equitable relief, including mandatory relief, to protect environmental quality from activity if —

(1) such activity allegedly constitutes an impairment or degradation of environmental quality under subsection (c);

(2) such activity allegedly constitutes a major action significantly affecting the quality of the environment;

(3) such suit seeks enhancement of environmental quality; and

(4) such activity allegedly affects interstate commerce.

(b) A suit under this title may be maintained against any person to the extent permitted by the eleventh amendment to the Constitution of the United States, except that no suit may be brought under this title against any Federal agency.

(1) where standards, orders, permits, or other regulations for the protection of environmental quality issued by a Federal agency are applicable to the activity in question; or where standards, orders, permits, or other regulations issued by a State or political subdivision thereof, pursuant to the Clean Air Act, as amended (42 U.S.C. 1857), or the Federal Water Pollution Control Act, as amended (33 U.S.C. 1151), are applicable to such activities; such activity is in violation of such regulations; or

(2) where no such standards, orders, permits, or regulations are applicable —

(A) the environmental and economic costs of the activity exceed the benefits to be derived from such activity; or

(B) the defendant can accomplish the purpose of such activity in an alternative manner which creates less risk of environmental damage, is of comparable social (including environmental) benefit, and does not involve unreasonable additional costs.

(d) A suit under this title may be brought without regard to the amount in controversy in any direct court of the United States in which venue is appropriate under section 1391 of title 28, United States Code. Such jurisdiction shall be concurrent with that of the courts of the several States.

REMEDY

SEC. 302. (a) The court shall grant such relief as is necessary to prevent impairment or degradation of environmental quality upon an affirmative finding with respect to paragraphs (1), (2), (3), and (4) of section 301(a).

(b) The court may grant interim equitable relief where required and for such period of time as is necessary to protect the rights recognized in this Act.

(c) The court may refer the parties or remand the action in any suit maintained under this title to the administrative and regulatory procedures provided by other law or regulation. The court shall order such reference or remand upon a finding that expeditions and informed resolution of the action would be advanced by reference or remand in whole or in part. Resort to such procedures shall not be required if such suit is maintained to enforce administrative regulations as provided in section 301(c)(1). This subsection shall not be construed to limit the authority of the court under subsection (a) or (b).

NOTICE

SEC. 303. (a) No suit may be commenced under this title —

(1) until the plaintiff has given notice of intention to commence such suit to —

(A) the defendant;

(B) the attorney general of the State or States in which the activity which is the subject of such suit has occurred; and

(C) the Council on Environmental Quality: Provided, That upon a showing by the plaintiff of irreparable harm, this notice requirement may, in the discretion of the court, be waived or modified; or

(2) if a Federal or State agency is diligently pursuing a suit for relief similar to that sought by the plaintiff, under this title or otherwise: Provided, That such plaintiff may intervene as a matter of right in any such suit to protect the rights recognized in this Act.

(b) In any suit brought under this title, any government agency whose jurisdiction extends to the environmental impact of the activity in question may, if not a party, intervene as a matter of right.

COORDINATION WITH STATES

SEC. 304. (a) No suit may be brought under this title with respect to an activity which is specifically authorized or approved by the government of any State or political subdivision of such State. This subsection is inapplicable if such activity (1) results in or reasonably may result in a significant effect on environmental quality outside such State or political subdivision, or (2) is in violation of standards, orders, permits, or regulations referred to in section 301(c)(1).

(b) If a judgment is rendered under this title against a political subdivision of a State, such State shall assume financial responsibility for any expenses which are incurred as a result of such judgment if the laws of such State limit the capacity of the political subdivision to raise the revenues needed to pay such expenses. In any suit which might lead to any such judgment, the State shall be joined as a party.

1. The Commerce Committee noted that one of the express purposes of the Act was to extend standing beyond the holding in Sierra Club v. Morton, 405 U.S. 727 (1972), 119 Cong. Rec. 3906 (daily ed. March 6, 1973).

2. Sax & Conner, Michigan's Environmental Protection Act of 1970: A Progress Report, 70 Mich. L. Rev. 1004 (1972).

3. Carter, Environmental Law (II): A Strategic Weapon Against Degradation, 179 Science 1310 (1973).