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Michael A. Ventresca, The Politics of Pollution
Control, 5 Suffolk U. L. Rev. 1027 (1971)
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THE POLITICS OF POLLUTION CONTROL
I. INTRODUCTION
As has been observed by one commentator: "We've already run out

of earth, and nothing we can do will keep human kind in existence for as
long as another two centuries."1 (Emphasis supplied.) In many ways the
above quote is reflected by the impact of our life style upon the natural
balance of our environment. Firmly embodied in the "American Dream"
has been a traditional desire to prossess the most, to produce the fastest, to
conquer, and to allow little to go unquestioned. Yet, from this heritage
there has evolved a great but tragic paradox: in contrast to our efforts
toward a higher standard of living we have succeeded in not only obtaining
luxury and leisure but also in effecting, perhaps irrevocably, the basic
character of nature. Thus, the goals we have set for ourselves may be
denied us because of our very efforts to obtain them. Certainly we have
achieved a superior standard of living; however, in our wake we have left
huge scars on our forests, a dark cloud in our sky, millions of fish and other
sea life dead, and all water sources degraded, perhaps irrevocably, all
touched by the contaminating fingers of progress.
The American public has been aroused in recent years and has ques-
tioned many of the principles of our industrial society which have long
been the basis of our economy, of our governmental system and of our very
way of life. From this recent public concern has evolved billion dollar
programs and the social demand for the introspection of priorities. Murray
Stein, the former director of the Federal Water Quality Administration
has summed up the renaissance as follows:
[t]his new awareness stems from the realization of many important points,
not the least of which is the knowledge that the effects of pollution can far
outweigh the advantages to industries and municipalities and thus to the
public of intemperate disposal of unsatisfactorily treated wastes. We need
to emphasize a reversal of the 19th century2 approach and to give people
a higher priority than property and profits.
Clearly, the financial and technological obstacles can be overcome, but,

as one commentator has intimated "[t]he question remains . . . whether
this welter of proposals squarely attacks the real problem-the fact that
all of our institutions are rooted in the notions of inexhaustable supply
and limitless ability to repair."'3 This Note is an effort to isolate and
dissect one segment of the national pollution problems, the industrial
1 Tnmi, Feb. 2, 1970, at 62 (quote by Mr. Martin Litten, Director of the Sierra
Club).
2 Stien, Regulatory Aspects of Federal Water Pollution Control, 45 DENVER L.J.
267, 269 (1968).
S Ottinger, Legislation and the Environment: Individual Rights and Government
Accountability, 55 CoRTN= L. REv. 666 (1970).
SUFFOLK UNIVERSITY LAW REVIEW [Vol V: 102 7
segment and one facet of pollution, that of water pollution. The Note
will further attempt to analyse not only why industry polluted our water
and the physical effects produced therefrom, but also why they were
allowed to pollute. Finally this Note will address itself to the question of
what is being done and what remains to be done to abate this menace.
II. INDUSTRY
Brick, steel, mortar, and glass are commonly thought of as the basic
essentials of any industry, with humans acting merely as a catalyst to
create the finished product. The element consistently overlooked, however,
is that of nature.
4
Water has been called our second most important natural resource,
however, with regard to industry, there is nothing more important than
water. It is used in both the manufacturing process and in the final
product of most industries. 5 Consequently, with the expansion of existing
industries and the rapid development of new industry, 6 the need for
water will become even greater.
Industry is thus dependent upon the availability and useability of water
in order to survive, yet while using more water than any single source in
our country 7 industry has also allowed more water to be polluted.8 The
corporate president apparently holds the making of a profit to be of a
higher goal than even life itself, for without water man would be unable
to survive. 9 Even though the demand for water may eventually outweigh
the useable supply, 10 the more immediate effects of industrial pollution
12
are readily ascertainable. Massive fish kills" and high bacterial counts
4 See generally Aulenbach, Water-Our Second Most Important Natural Resource,
9 B.C. IND. & Com. L. REv. 535 (1968) (The author dissects the chemical properties
of water and explains the difficulties relating to possible substitutions.) See note 19
infra.
5 Id.
6 It is estimated that close to 1000 new industries will come into existence each
year in addition to the 40,000 that already exist, ENVIRONMENTAL REPORTER: FEDERAL
LAws 21:0292 (1971).
7 U.S. DEP'T OF THE INTERIOR, PROGRAM OF THE FEDERAL WATER POLLuTiON CON-
TROL ADMINISTRATION, 2-4 (July 1967) (This report indicates that industry uses over
200 billion gallons of water per day, and that figure is expected to rise.)
8 U.S. DEP'T OF THE INTERIOR, FEDERAL WATER QUALITY ADMINISTRATION, CLEAN
WATER FOR THE 1970's, A STATUS REPORT (1970) [hereinafter referred to as 1970
STATUs REPORT]. "Industries discharge the largest volume and most toxic pollu-
tants." Id. at S.
9 Aulenbach, supra note 4, at 535.
10 Aulenbach, supra note 4, at 547-48.
11 Jordan, Recent Developments in International Environmental Pollution Control,
15 McGILL L.J. 279, 284 (1969) (massive fish kills attributed to pollution from a
potato processing plant in Maine). See also 2 CCH WATER CONTROL NEWS, No. 24 at
6-7 (Oct. 30, 1967) (estimates that over 50% of all fish killed by pollution was caused
by industrial pollution).
12 See 1970 STATUS REPORT 3.
19711 NOTES
alone are enough to demonstrate the encroaching disease related to in-

dustrially polluted water.
Four industries stand apart from the rest in both use and contamination
of water. They are, the metal industry (predominately steel), the leather
tanning industry, the pulp and paper industry, and the petroleum in-
dustry."i These industries and the effluents which they discharge account
for approximately eighty-five percent of all waste water discharged by
4
the entire industrial complex.1
A. The Paper and Pulp Industry
The paper and pulp industry employs methods of production which
consume large amounts of water and create proportionately large quan-
tities of pollution or "pulping liquor."'11 This waste, once discharged,
forms a heavy sludge which may not only block streams, but may also
deplete the oxygen which is necessary to sustain most aquatic life.' 6 While
some pulp manufacturers have made attempts at controlling resulting
pollution, at least one-fifth of the paper industry has made no such
attempt.' 7 Thus, pollution continues unabated, even though it has been
estimated that the plants could obtain an eighty to ninety percent reduc-
tion in waste loads and a seventy percent reduction in waste water quan-
tities by employing techniques which have already been developed.' 8
B. The Leather Tanning Industry

The leather tanning industry will discharge approximately sixteen
million gallons of waste water this year. 19 Yet, through much the same
process as suggested for the pulp industry, the tanners could substantially
reduce this volume,20 and while a fraction of the industry has at least
attempted to reduce effluent discharges, the majority remains in the
nineteenth century with little or no implementation of pollution control
21
techniques.
13 Hines, Controlling Industrial Water Pollution: Color the Problem Green, 9 B.C.
InD. & Com. L. REv. 553, 557-68 (1968) (a comprehensive break down and exhaustive
survey). See also 1970 STATUS REPORT 5-15.
14 1 NAT. RES. LAW. 39, 43 (1968).
15 See generally Carmichael, Forty Years of Water Pollution Control in Wisconsin:
A Case Study, 1967 Wis. L. REv. 350, 405.
18 U.S. DEP'T OP THE INTERIOR, FED. WATER POLLUTION CONTOr ADMIN.,
THE COST OF CLEAN WATER, VOL. III, INDUSTRIAL WASTE PROFI. No. 3, PAPER
MILLS, EXCEPT BUILDnos 28 (1968) [hereinafter referred to as WASTE PROFIxE No.
3].
17 ENVRONMENTAL REPORTEa: CURRENT DEVELoP MNTS at 28-29 (1971).
18 WASTE PROFILE No. 3 at 27.
19 U.S. DEP'T OF THE INTEIOa, FED. WATER PoLUurIoN ConTor ADmIN., THE
COST OF CLEAN WATER, VOL. III, INDUSTRIAL WASTE PROFLE No. 7, LEATHER TANNnO
AND FINIsHINO, 28 (1968) [hereinafter referred to as WASTE PaOFILE No. 7].
20 WASTE PROFILE No. 7 at 29.
21 WASTE PROF=. No. 7 at 30-31.
SUFFOLK UNIVERSITY LAW REVIEW [VolV:102 7
C. The Petroleum Industry

The petroleum industry, aside from numerous spills, produces a sub-
stantial quantity of waste through the refining process. 22 In 1971 it is
estimated that petroleum producers will be responsible for approximately
one billion gallons per day of waste water.2 8 Though this industry im-
plemented major pollution control devices, 24 long before many others, they
would be able to remove close to ninety-nine percent of all separable oils
and up to eighty-five percent of all suspended solids by employing the
25
latest refining techniques along with efficient waste treatment.
D. The Metal Industry

The metal manufacturing plants require large volumes of water for
both the processing of ore and for the cooling systems involved in manu-
facturing procedures. The major portion of waste created from the in-
dustry is in the form of "pickling liquor," an acid employed with water
in the metal cleaning process. 26 While the industry has expended sizable
amounts of money in an attempt to reduce these derivative pollutants, 27
a substantial increase is necessary in order to effectuate even an in-
28
cremental abatement in proportion to the myriad problem.
Industry, generally, has responded to the environmental crisis with only
"token" measures, which serve more as publicity gimmicks, 29 than as
sincere commitments.8 0 While the industrial sector plans to invest larger
sums in the future this lack of commitment remains, as is evidenced by
one federal pollution control agency official's statement: "despite the
seriousness of the problem and critical time factor for its solution-we
can expect delaying tactics based on the free enterprise argument."'31
There have been numerous incentives aimed at increasing the industrial
involvement in the field of pollution control, yet little actual programming
seems to have resulted. This allegation is evidenced by the fact that less
22 U.S. DEP'T OF THE INTERIOR, FED. WATER POLLUTION CONTROL ADMIN., THE
COST OF CLEAN WATER, VOL. III, INDUSTRIAL WASTE PROFILE No. 5, PETROLEUM
REFINING, Table 6 (1968) [hereinafter referred to as WASTE PROFILE No. 5].
23 WASTE PROFILE No. 5, at Table 6.
24 See N. NEM7Row, THEORIES AND PRACTICES OF INDUSTRIAL WASTE TREATMENT
429-40 (1963).
25 WASTE PROFILE No. 5, at 40-42 (1963).
26 See R. HOAK, STEEL PICKLING IN INDUSTRIAL WASTES: THEIR DISPOSAL ANO
TREATMENT 255-56 (1963).
27 See ENvIRoNMENTAL REPORTER: CURRENT DEVELOPMENTS at 29 (1971).
28 See TIME, Feb. 2, 1970 at 60-61.
29 Hines, supra note 13, at 557.
80 "Industrial concerns are in business for one basic reason: to turn a profit ...
Except in rare cases, where the treatment process recovers products with a value in
excess of the cost of the treatment, money invested in waste treatment constitutes an
economic loss." Hines, supra note 13, at 556.
31 5 TRIAL 13 (Aug./Sept. 1969).
19711 NOTES
than ninety companies throughout the nation have established special pol-
lution programs or have even assigned the responsibility of pollution 8 3
32
control to existing corporate offices. The Small Business Association,
along with private banks,3 4 have made available loans at a low rate of
interest to industrial firms seeking to employ pollution control devices;
the Federal Government too has established programs by which certain 35
experimental control devices may at least have partial federal funding,
36
however, many of these offers have gone unaccepted.
The question which remains and which underlies the total pollution
problem is: why are incentives, financial or other, needed to motivate
industry. The corporate president breathes air, drinks water, and usually
raises a family. These individuals are not machines; they must also live
in the world which they create.3 7 Is it possible that they have never
considered the results of their actions or does the answer lie, as it seems
to, in a factor mentioned earlier, i.e., a belief in the "limitless ability to
repair"? 38 Their attitude appears to be that someone, somewhere, will
discover a method of saving the environment, and thus, since the problem
has not yet affected them personally, there remains adequate time left to
pollute and reap profits. This attitude of apathy, which is directly related
to the economics of the pollution problem, 39 seems to be the prevalent
thinking in industry and will remain so because "in the absence of legal
compulsions, only when it is to the clear economic advantage of the
developer-exploiter will water resources' 40be conserved and the public in-
terests in their prudent use recognized. "
While public pressure is mounting with further evidence of the effects
82 ENVIRoNENTAL REPORTER: CURRENT DEVELOPMENTS at 951 (1971).
33 1 CCH WATER CONTROL NEws No. 44, at 5 (March 20, 1969).
84 ENVIRONMENTAL REPORTER: CURRENT DEVELOPMENTS at 953 (1971). The First
National Bank in St. Louis has established a five-million dollar fund which is
designed specifically to interest investment in the area of pollution control.
85 ENVIRONMENTAL REPORTER: FEDERAL LAws 51:4141 (1971). Under the Federal
Water Quality Administration, now the Environment Protection Agency, there exists
a sub-program designed to help motivate industrial concern in the field of pollution
control by making available special demonstration project funds. Such a grant was
made to the American Oil Co. to demonstrate the feasibility of a new incinerator
[fluidized-bed] for refining sludge.
88 See COMPTROLLER GENERAL, EXAMINATION INTO THE ErFnCTIVENEss OF THm
CONSTRUCTION GRANT PROGRAM, FOR ABATING, CONTROLLING AND PREVENTING WATER
PoLLuTioN, No. 3-166506 (Nov. 3, 1969).
87 One possible reason for the lack of concern is that most executives live "up
stream" in the suburbs. See Forward by Sen. E. Muskie, 55 CoRNEL L. Rv. 663
(1970).
88 Ottinger, supra note 3, at 666.
89 "The choice, then, between investing fixed and operating capital in waste treat-
ment or investing it in some other phase of the industrial process that will yield a
return on investment, provides no real challenge to the industrial decision maker."
Hines, supra note 13, at 556.
SUFFOLK UNIVERSITY LAW REVIEW [Vol. V:1027
of pollution on the environment, industry has not yet been persuaded to

re-align its thinking and will not do so until the crisis has reached a state
of emergency in which we will find ourselves unable to mount any
effective offensive to do battle with our environmental Frankenstein. As
one conservationist stated, "[t]hose [polluting] companies are pushing
41
mankind to the brink of environmental doomsday."
It should be noted that the programs and costs thusfar presented relate
to abatement only; as such, they do not reflect the true cost of total water
restoration. Industry as an entity must be prepared to commit initially
between three and seven billion dollars 42 for effective abatement progress
alone, and the amounts necessary for total restoration are staggering.43
III. REGULATIONS AND ENFORCEMENTS
The industrial institutions of today are the product of a nation whose
complete energy has been channeled into the perfecting of technology
for accelerated production and increased efficiency. 44 These industries
flourished during the nineteenth century and even prior because of the
laissez-Jaire philosophy which was developed in and pervaded our demo-
cratic system of government. Every possible resource was sacrificed for
the benefit of industry, including the land 4 5 the water 46 and individual
liberties. 47 While the government, by the end of the nineteenth century,
had intervened in the economic aspect of industry, 48 it was not until the
last half of this century that any quantity of legislation evolved which was
specifically directed toward the salvaging of the deteriorating environment.
As one commentator noted:
[T]he program [of pollution abatement] is probably manageable, though
not cheap. We need not fear that we have painted ourselves into a comer
with pollution blocking all exits. It is a question of the will more than the
way. But the will, too, needs to be found.4 9 (Emphasis supplied.)
Because our officials are elected, there arose a natural extension to our
democratic system of government in the existence of special groups, which
41 5 TRIAL 10 (Aug./Sept. 1969).
42 Timm, Feb. 2, 1970, at 60-61.
48 5 TRIAL 14 (Aug./Sept. 1969). There is not enough money today in the entire
federal budget just to restore our air and water to a basically healthful state. Id. at 15.
44 See generally, H. LEECH, THE PARADOX O PLwTY (1932).
45 Strip mining, excessive logging and arbitrary use of other resources reflect the
rape of nature by industry.
46 Industries bought land near water for a very practical reason-dumping. Thus,
we have lost two resources---the land near the water and the water itself.
47 Tennessee Coal, Iron & R.R. Co. v. Hamilton, 100 Ala. 252, 14 So. 167, 170
(1893) where the court indicated that the rights of the individual are subject to
modification in order to promote the public good derived from industry.
48 See, R. HorsTADTER, THE AGE OF REFORM FROM BRYON TO F.D.R. (1955).
49 NEWSwEEx, Jan. 26, 1970, at 72 (quote by Henry Wallisk in a discussion of the
burden of cost in environmental clean up).
1971] NOTES 1033
through lobbying have been applying pressure to both the legislative and
executive branches of government for the purpose of advancing and pro-
tecting their specific vested interests. Industry has successfully employed
this informal, quasi-political force not only to gain advantages from the
governmental system but also to protect itself form any intrusions which
might have the possible deleterious effect of curtailing their constant
efforts of deriving higher returns from their initial investments. 50 As
such, the lobbying practice has developed into an exacting science and a
million dollar business, 51 with the overall effect of having obtained an
integral position in the successful operation of our government 5 2 Nowhere
has the effect of these inherently corrupting forces been more graphically
demonstrated than in the legislative and executive attempts at pollution
control. Act after act has been announced as a vehicle for immediate
environmental protection; 53 yet, many have resulted in little more than
"political showboating" once the inevitable rhetoric accompanying them
has been dissected. 54 The end products of such actions are that pollution
continues to endanger our lives and the government has failed to meet its
responsibility to its electorate. A brief survey of the major environmental
enactments and their blatant weaknesses should suffice in demonstrating
the lack of total federal commitment which is necessary for effective
pollution abatement. 55
Though most of the present legislative pronouncements dealing with
industrial water pollution evolved during the latter half of this century, the
first significant piece of legislation dealing with this area was the Rivers
and Harbors Act5" passed by Congress in 1899.
This Act was surprisingly comprehensive considering the prevalent
attitude of the country at the time it gained passage.5 7 The Act furnished
a structure by which all navigable waters and their tributaries could be
50 Legislation, for example, that would indirectly force industry to spend money
for anti-pollution devices, is thus being diverted from profit making investment areas.
51 See generally, R. SALiSBURY, INTEmT GROUP Pourics 3x AMm cA (1970).
52 Id.
53 See, e.g., The National Environmental Policy Act, 42 U.S.CA. §§ 4321-47
(Supp. 1971) which states in part:
(b) In order to carry out the policy set forth in this Act, it is the continuing
responsibility of the Federal Government to use all practicable means consistent
with other essential considerations of national policy.... Id. § 4331.
54 "The purposes of this Act are: To declare a national policy which will encourage
productive and enjoyable harmony between man and his environment; to promote
efforts which will prevent or eliminate damage to the environment and biosphere and
stimulate the health and welfare of man .... " Id. § 4321.
55 The commitment referred to here is not only that of Congress, but also the
Chief Executive, industry and the public.
56 The Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 401 et seq.
(1964).
57 The Act was passed during an era of industrial boom when governmental inter-
vention was viewed with suspect.
SUFFOLK UNIVERSITY LAW REVIEW [Vol V: 102 7
protected against pollution. The major sections of the Act relating to

pollution provide for the: (a) prohibition of the obstruction of navigable
waters; 58 (b) prohibition of the deposit of refuse (with some exceptions)
into navigable waters; 59 (c) imposition of fines for discharging wrongfully
into navigable waters; 60 (d) authorization of the Secretary to prescribe
regulations governing dredging in rivers; 61 and (e) obtaining of a permit
62
from the Army Corps of Engineers for dumping into harbors.
There have been successful prosecutions under most of the above sec-
tions;63 however, the true importance of this legislation is evidenced by
the fact that it remains as one of the most important legislative attempts
aimed at pollution, and has been used consistently in the prosecution of
pollutors.64 The reason for this seeming dependence upon an Act passed
over seventy years ago is based not on the reasoning that the 1899 Act
embodies superior quality and comprehensiveness, but rather that much
of the more recent legislation is, in many instances, totally inadequate to
achieve the desired results. 65 The 1899 Act itself, however, is limited in
many areas where pollution control is necessary. The Act does not, for
58 33 U.S.C. § 407, (1964) which provides in part:
[Ilt shall not be lawful ... to deposit... material of any kind on the banks...
of any navigable water... where the same shall be liable to be washed into such
navigable water ... whereby navigation shall ... be . . . obstructed....
59 33 U.S.C. § 407 (1964) which provides in part:
It shall not be lawful to throw, discharge, or deposit . . . any refuse matter ...
into any navigable waters of the United States, or any tributary of any navigable
water....
Every person and every corporatidn that shall violate . . . provisions of sec. 407,
408, and 409 . . . shall be guilty of a misdemeanor; and on conviction thereof
shall be punished by a fine not exceeding $2,500.00....
The Secretary of the Army is authorized ... to prescribe regulations to govern ...
dumping into any navigable water . . . of dredgings, earth, garbage, and other
refuse materials....
That the Secretary of the Army, whenever in the judgment of the Chief of Engi-
neers anchorage and navigation will not be injured thereby, may permit the
deposit of any material above mentioned . . . provided application is made to
him prior to depositing such material....
63 See United States v. Esso Standard Oil Co. of Puerto Rico, 375 F.2d 621 (3d
Cir. 1967) (33 U.S.C. § 407 made applicable to indirect discharges of refuse); United
States v. Standard Oil, 384 U.S. 224 (1966) (commercially valuable gasoline con-
sidered refuse under § 407) ; United States v. Tug Otto, 296 F. Supp. 1130 (S.D. Tex.
1967) (barge liable for five-hundred-dollar fine under § 411); The Scow No. 9, 152
F. 548 (D. Mass. 1907) (where owner of scow dumped in violation of § 407, he was
liable for penalty under § 411).
64 See, e.g., United States v. Republic Steel Corp., 362 U.S. 482 (1960) (prosecution
under § 10 of the Rivers and Harbors Act).

65 See Note, Liability for Oil Pollution Cleanup and the Water Quality Improve-
muent Act of 1970, 55 Coamn= L. Rav. 973 (1970). Agencies unable to prosecute under
oil pollution statute because of severe legislative restrictions relied on the 1899 Act
for prosecutions. Id. at 973-74.
19711 NOTES
example, apply to unnavigable waters,66 rather it is restricted to navigable

water ways,6 7 its major aim being to protect the larger bodies of water.
An additional limitation is that the fines imposed by the Act, while
possibly substantial in 1899, are today only minimal, and even though
ingenious methods have been devised to achieve a more deterring effect
through liberal interpretation of the statutory language,68 the effect on
industry has not been great enough to effectuate any immediate action
aimed at abatement. 69
One of the major strengths traditionally associated with the 1899 Act,
and also one of the principal reasons prosecution under it remains pop-
ular, rested in its number of available remedies,7 0 and the lack of
politically compromising language. 71 However, even a section of the Act
has now fallen prey to political expediency in the recent implementation
of the Permit Program. 72 This program derives its authority from a section
of the 1899 Act which requires obtaining a permit from the Army Corps
of Engineers in order to discharge refuse into navigable waters. 73 The
announced purpose of the program was to introduce a procedure with
74
which industries must comply in order to obtain a permit to dump refuse.
While the concept is sound, the procedure proposed lends itself to con-
siderable delay, stalling, and (through the use of technical loopholes)
the avoidance of immediate compliance. 75 As one observer reported
"Nixon's permit program knocks the teeth out of water pollution en-
forcement .... -176 However, because of factors which will become apparent
infra, the 1899 Act, while it suffers rather substantial shortcomings, re-
66 See United States v. Banister Realty Co., 155 F. 583 (E.D. N.Y. 1907). The
waters which qualify must be capable of sustaining interstate commerce or foreign
commerce.
67 See Leovy v. United States, 177 U.S. 621 (1900) (where mere capacity to pass
in a boat does not automatically make the waterway navigable).
68 Time, Jan. 25, 1971, at 43. Former U.S. Attorney John Burns interpreted the
word "discharge" under the 1899 Act as meaning every time someone opened and
dosed a valve, thus, he was able to compound fines.
69 The court delays alone would prevent companies from acting. However, even
if these delays did not exist, a company may prefer to pay a minimal fine in hopes of
implementing later a more inexpensive pollution device.
70 Under the 1899 Act the remedies seem numerous: refusal to grant permit, im-
position of fines and authority to regulate. See supra pp. 1034-35.
71 The fines are high for 1899 and the Act embodies direct forceful language
authorizing the use of the Act. See supra pp. 1034-35.
72 See EuvmoiNv"NTAL REPoRTER: FzDRAL LAWS 21:0291 (1971).
78 33 U.S.C. § 407 (1964).
74 See Eurmo ENrAL REPoRTER: FzDERAL LAws 21:0292 (1971). The program
will require all industries to apply for a permit from the Army Corps of Engineers,
and provides for a deadline of July 1971.
75 The permit program allows for a review procedure which might conceivably
entail large amounts of time.
76 Tim', Jan. 25, 1971, at 43.
mains, in comparison to its recently enacted equivalents, one of the few

77
available acts which can be employed successfully to combat pollution.
In 1924, Congress enacted the Oil Pollution Act7 8 which had as its
main objective the control and prosecution of oil polluters. The Act,
through later amendments, 79 was rendered totally useless by defining a
"discharge" of oil for which prosecution could ensue only in terms of being
'"grossly negligent or willful." 80 Since such intent or action was nearly
impossible to prove,"' governmental agencies which contemplated prosecu-
tion were forced to use existing pieces of legislation, 2 which, while not as
strong in many areas, 83 at least lent themselves to possible use.
The next relevant legislation came when Congress, in 1948, implemented
the Federal Water Pollution Control Act,8 4 which has since gone through
numerous stages of evolution, culminating with the Water Quality Im-
provement Act of 1970.85 While it is true that the Act was improved with
each subsequent amendment, the Act is still unable to effectively deal with
pollution control.88
The original 1948 Act was severely limited in both scope and available
remedies. For example, no enforcement action could begin unless a com-
plaint had been filed by someone living in another state, who had been
harmed by pollution emanating from the state of origination, thus clearly
demonstrating an effect on interstate waters. The Act also had a built-in
procedural system by which polluters could avoid prosecution. 7 The 1956
Amendment 8s to the Act helped in some respects,8 9 however, the Act still
77 See supra note 71 and accompanying text.

78 Act of June 7, 1924, ch. 316, 43 Stat. 604, repealed Pub. L. No. 91-224, Title I,
§ 108, April 3, 1970.
79 Act of Nov. 3, 1966, Pub. L. No. 89-753, § 211(a), 80 Stat. 1252, 33 U.S.C.A.
§§ 1001-1005 (Supp. 1970).
80 Id.
81 Hearings on S. 1591 and S. 1684 Before the Subcomm. on Air and Water Pollu-
tion of the Senate Comm. of Public Works, 90th Cong., 1st Sess., pt. 1, at 248
(1967). Agencies such as the Army Corps of Engineers stated they were unable to
provide the evidence required to prove gross or willful discharge.
82 Many agencies turned to The Rivers and Harbors Appropriation Act of 1899
for prosecution, 33 U.S.C. §§ 401 et. seq. (1964).
83 See, e.g., United States v. Banister Realty Co., 155 F. 583 (E.D. N.Y. 1907);
Leovy v. United States, 177 U.S. 621 (1900).
84 Act of June 30, 1948, ch. 758, 62 Stat. 1155, as amended, 33 U.S.C. §§ 1151 et seq.
(1964).
85 Pub. L. No. 91-224, 33 U.S.C. §§ 1151 et seq. (Supp. 1970).
88 See Barry, The Evolution Of the Enforcement Provisions of the Federal Water
Pollution Control Act: A Study of the Difficulty in Developing Effective Legislation,
68 MIcH.L. REV. 1103, 1117-25 (1970).
87 Barry, supra n.86 at 1105-06.
88 Water Pollution Control Act Amendments of 1956, ch. 518, 70 Stat. 498, as
amended, 33 U.S.C.A. §§ 1151 et seq. (Supp. 1971).
89 However, the hearings, review and board appearances were retained by further
expanding the Secretary's power in relation to abatement.
19711 NOTES
applied only to interstate waters,90 and still contained an enforcement

procedure under which delays and avoidances were common. 91 These
problems were remdlied slightly by the 1961 Amendments9 2 which ex-
tended jurisdiction to all water flowing into or out of state as well as
coastal waters. 8 The amendments also allowed enforcement in the state
of origin, 94 however, the inherent delay still was available to avoid both
compliance and enforcement.9 5
In 1965, the Federal Water Quality Act 96 amended the 1948 Federal
Water Pollution Control Act in a renewed attempt at pollution control.9 7
It empowered the Secretary of the Interior to set minimum standards and
to abate water pollution in any waters not meeting these standards. 98
However, it is important to note that because of the procedures involved,
the efficacy of the Act was questionable.99 Additionally, it must be noted
that the Act which finally passed in Congress was greatly watered down
from the version originally introduced. 100 These political compromises
were not without their effect, for in part they were ingrafted into the
enacted legislation. As has been noted in relation to the authority given
state agencies under the Act, "[w]hen the state agency is itself so
politicized or so important that it makes a de jure or de facto determina-
tion not to take action, the entire process is thwarted."''1
Commentators seem to agree that the Act was blunted and though some
feel it may remain helpful in fighting pollution on the private level, 10 2 its
90 33 U.S.CA. § 1160 (Supp. 1971).
91 Barry, supra note 86, at 1111-12.
92 33 U.S.C.A. §§ 1151 et seq. (Supp. 1971).
93 Pub. L. No. 87-88, 75 Stat. 204 (1961).
94 Id.§ 8c(1), 75 Stat. 208 (1961).
95 The conference and hearings procedures were retained.
96 33 U.S.CA. §§ 1160 et seq. (Supp. 1971).
97 Hines, supra note 13, at 569-74. "The Water Quality Act of 1965 is the key
measure in the federal effort to accelerate the attack on pollution." Hines, supra note
13, at 570.
98 33 U.S.C.A. § 1160(c)(2) (Supp. 1971).
99 From the time of its inception until 1968, less than fifty hearings were held
under the Act. U.S. DEP'T OF THE INTERIOR, PROGRAM OF TIK FEDERAL WATER PoLLJ-
TiON CONTROL ADma- usTiox 24-29 (1967).
100 The Act was originally introduced in 1963 by Senator E. Muskie, S. 649, 88th
Cong., 1st Sess. (1963), however, the concern over pollution at that time was minimal
and the Bill died in Congress. See Durkselorger, Federal-State Relationships in the
Adoption of Water Quality Standards Under the Federal Pollution Control Act, 2
NAT. RES. LAW. 47 (1969). Sen. Muskie re-introduced the Bill in 1964, and only after
numerous compromises did the Bill become law.
101 See Collister, Hayse & Sampson, Legal Muscle for the Fight Against Pollution,
9 WAAsHaui L.J. 342, 352 (1970).
102 See generally Note, Water Quality Standards In Private Nuisance Actions, 79
YALE L.J. 102 (1970). The author's rationale is basically this: the defendant has
used the water unreasonably to plaintiff's injury. The plaintiff must convince the
court that not only does a nuisance exdst but also that an injunction is an appropriate
SUFFOLK UNIVERSITY LAW REVIEW [Vol. V: 102 7
ineffectuality on the federal level is disheartening. 10 3 It is interesting to

note that the representatives of industry were at least partially responsible
for specific changes in the 1965 Act; 1° 4 however, any additional effect
industry had upon the Act will probably never be known by the public.
This direct pressure exemplifies the attitude of many industries in their
efforts to avoid (from statutory compulsion) the investment of money to
alleviate the pollution problems. 10 5
The 1966 Clean Water Restoration Act, 106 had the major accomplish-
ment of further expanding the Secretary of the Interior's power to deal with
pollution; 10 7 however, this Act, along with its predecessors, also suffered
from delay in enforcement procedures coupled with the inability to work
08
in harmony with other federal pollution control provisions.1
The major problems of delay and over-lap between the state and federal
governments is most graphically demonstrated by the fact that in twenty-
two years, only one action brought under the Federal Water Pollution
Control Act has ever been fully adjudicated. 10 9 This inability to enforce
is brought about to a large extent by the almost total lack of provided
mechanisms through which information can be compiled against pol-
lutors. 110
The 1970 Acts"' accomplish little more than their predecessors, for
while they purport to re-order our national priorities and were hailed by
a President who stated that strong action must be taken because pollution
form of relief, i.e., no adequate remedy exists at law. The author is quick to point
out, however, that the courts have generally ruled in favor of industry.
103 Id.
104 For a criticism of industry see HEARINGS ON S. 4 BEFORE A SPECIAL SUBCoM.
ON AIR AND WATER POLLUTION OF THE SENATE Comm. ON PUBLIC WORKS, 89th
Cong., Ist Sess. 37-58 (1965).
105 Id.
106 Act of Nov. 3, 1966, Pub. L. No. 89-753, 80 Stat. 1246 amending 33 U.S.C.A.
§§ 460 et seq. (1964) (codified in 33 U.S.C.A. §§ 115 et seq. (Supp. 1970)).
107 33 U.S.C.A. § 1160(d)(2) (Supp. 1970). The Secretary has the power to call
a conference between interested parties (state water pollution control agencies, any
interstate water pollution control agency, and representatives of foreign countries) if
he believes that state pollution sufficiently endangers the health or welfare of persons
in a foreign country.
108 See Barry, supra note 86, 1116-17. There existed overlapping procedures and
authority between federal and state agencies.
109 See, HEARINGS ON S. 2947 BEFORE THE SUBCOM'M. ON Am AND WATER PoLLU-
TION OF THE SENATE COMM. ON PUBLIC WORKS, 89th Cong., 2d Sess. 444 (1966)
(United States v. City of St. Joseph, No. 1077 (W.D. Mo. Oct. 31, 1961)).
110 See generally Brown & Duncan, Legal Aspects of a Federal Water Quality
Surveillance System, 68 MIcH. L. REv. 1131 (1970).
111 There were two major acts applied in 1970, the National Environmental
Policy Act of 1969, 42 U.S.C.A. §§ 4321 et seq. (Supp. 1970) (effective Jan. 1, 1970)
and the Water Quality Improvement Act of 1970, 33 U.S.C.A. §§ 1151 et seq. (Supp.
1970).
1971l NOTES
is "no respector of political boundaries;" 11 2 they in fact only succeeded in

compounding existing problems. 1 3 The 1970 Acts suffer from continued
indecisiveness and again offer little mechanism for enforcements, with no
procedural guidelines established for the collection of data for eventual
prosecution. While polluters could perhaps be reached through this legisla-
114
tion the problems encountered are numerous, frustrating the objective.
Consequently, the utility of the 1899 Act remains prominent and it seems
that it will continue to hold a position of importance in pollution enforce-
ment. Environmental legislation may make good news stories, but in
reality, many of these legislative attempts have been abortive and have
not substantially re-ordered our national priorities. 115
IV. THE POLITICS OF POLLUTION
As one commentator has noted: "we have begun to stress the self
purifying power of the nation's surface waters to the point of biological
collapse." 116 The statement well describes the frustration that many con-
servationists (now turned lobbyists) feel in their efforts to obtain a
clean world. While the elected officials seem to recognize the need for more
control over the environment, 117 the interests of big industry seem to
have become so intertwined with the political system that perhaps no
legislation or remedial (or preventive) programs will be able to pierce the
bulwarks behind which the special interest groups hide. However, this
enlightened apathy extends beyond legislatures, and into the very fibre
of the political system. While the environment will remain as a major issue
during coming political campaigns, the politicians will handle the topic
delicately so as not to alienate their powerful block of wealthy industrial
supporters.
One of the most effective means of defusing public outrage traditionally
has been to appoint a committee or establish a commission or council to
"co-ordinate," "analyze" and inevitably "to make recommendations." This
112 TIME, Feb. 23, 1970, at 39 (President Nixon's remarks on what has administra-
tion has already accomplished and what he hopes to accomplish in a 37-point message
to Congress).
"13 Id. at 42.
114 See generally Note, Liability for Oil Pollution Cleanup and the Water Quality
Improvement Act of 1970, 55 CORNLL L. Rv. 973 (1970). The author, in reference
to the Water Quality Improvement Act, stated that the fines are not high enough.
Thus, the effort which must be expended in obtaining judgments and levying fines may
prove too great for the results accomplished.
115 To truly re-order our national priorities in relation to the environmental prob-
lems would mean to wage a full-scale battle, and while we have been deluged with
legislation, it has been generally ineffective. The army we have put forth to fight
pollution must do so with one arm tied behind its backs.
116 Can Law Reclaim Man's Environment?, 5 TRiAL 10, 11 (Aug./Sept. 1969).
117 See, e.g., NEwswEEK, Jan. 26, 1970, at 31 (President Nixon's remarks in reference
to the need for pollution control).
technique accomplishes two objectives with one action. First, it provides

a forum for the legislatures to express their dismay and anger on the
particular subject matter involved; secondly, it produces the appearance
that because experts, congressmen and lay people are involved, something
substantial must necessarily be derived from their efforts. In the field
of water pollution control, no less than eight such entities have sprung
into existence within the last five to seven years.118 While the ultimate
impact of these organizations cannot yet objectively be measured, there
have been some initial actions by which these groups can be judged for
potential effectiveness.
The National Industrial Pollution Control Council was established by
President Nixon' 19 "to allow businessmen to communicate regularly with
the President .. .and other government officials ...which are working
to improve the quality of the environment .. .. 120 Of course, the purpose
of this group is to "submit .. .a series of specific recommendations for
further action."' 24 When the Council was established, many individuals
felt that it was solely a "political move" on the President's part. 125 The
Council, comprised of primarily businessmen, recently delivered its first
annual report 26 to the President. The report tends to demonstrate that the
Council was born the child of political motives. First, the report lists only
160 corporations pledged to self-improvement. Second, the report warns
of the danger of placing control and regulations on industry in the
future. Additionally, (if the report were not itself disheartening enough)
the President took the opportunity to both receive the report in person
and to also issue a major press release concerning its findings and his re-
action to them. 27 The President made it very clear that industry would
not be made a "scape goat" by his Administration. 128 This point, as will
be discussed, had been informally intimated earlier by the President. The
Chief Executive also praised industry129for its collective efforts and con-
tributions toward pollution abatement.
The President had appointed this Council to help discover common
methods of pollution abatement. Industry responded by stating that in
118 See, e.g., National Industrial Pollution Control Council (established Exec.
Order No. 11523, 35 FED. REG. 5993 (1970), 42 U.S.C.A. § 4321 (Supp. 1971)); Water
Pollution Control Advisory Board (established under 33 U.S.CA. § 1159 (Supp.
1970)); Water Resources Council (established under The Water Resources Planning
Act of 1965, Pub. L. No. 89-80, 70 Stat. 244, codified at 42 U.S.C.A. § 1962 (1970)).
119 See ENWvRozwm:ENAL REPORTR: FEDERAL, LAws 21:0209 (1971).
120 Id.
124 Id.
125 N.Y. Times, Feb. 11, 1971, at 1, col. 6.
128 Id.
127 Id.
128 Id.
129 Id.
19711 NOTES
order to accomplish abatement, the government should be cautious in

imposing any regulations upon industry. They are able to say this despite
the fact that, in total, industry has invested less than three percent of
capital expenditure in pollution control devices, 180 and not only do they
continue to market products without having full knowledge of their en-
vironmental impact, but as one writer has stated "industry has continued
to market a product when it is fully aware of the product's detrimental
effect and [this result obtains even when industry is] technologically
1
capable of reducing that effect without incurring extraordinary costs."''
Committees were also established pursuant to the Water Quality Act of
.
196512 which gave the Secretary of the Interior authority to review state
water standards as prescribed in the Act.13 3 In order to assist the Secretary,
five National Technical Advisory Committees were appointed, 3 4 of which
one related specifically to Industrial Water Supplies.13 Each was "to
prepare water quality criteria for water uses in the area of their com-
petence."' 36 These committee posts were filled by "experts." However,
while little is known regarding their accomplishments, it is known that the
idea of individual state water standards has been scrapped and the
tendency is now toward a "national" water quality monitor. 137 President
Nixon, who proposed this new scheme is usually a strong advocate of
state rights, however, it is obvious why he had asked for the national
standards. The existing procedure was simply not working. 138 Does this
mean that the Committees failed? While possibly there is no correlation,
the Committees, at least in theory, were given responsibility for producing
criteria for a state by state water quality standards system.
The Council on Environmental Quality was established under the
National Environmental Policy Act' 39 as part of an administrative effort
to "protect and restore the American environment."' 4 o This Council was
given many diversified responsibilities, including the policy making func-
tion, the coordination of the numerous technical environmental programs,
and the responsibility to insure that all federal activities considered the
environment.14 ' In addition, the Council is charged with assisting the
180 Yannacme, A Lawyer Answers The Technocrats, 5 Ta". 15 (Aug./Sept. 1969).
181 Collister, supra note 101, at 347.
182 See ENVmON NTAL REPORTER: FEDERAL LAws 31:5101 (1971).
188 33 U.S.C.A. § 1160(c)(1) (Supp. 1971).
134 See ENVRONM ENTAL REPORT: FEDR.A LAWS, 31:5101 (1971).
135 Id. The other committees established concern: wildlife, fish and other aquatic
life; municipalities; agriculture; recreation and aesthetics.
138 Id.
187 TIME, Feb. 23, 1970, at 39.
188 Id.
189 42 U.S.C.A. §§ 4321-47 (Supp. 1970).
140 See ENi RmMENTAL REPORTER: FEDERAL LAWS 21:0161 (1971) (Council on
Environmental Quality-President Nixon's Statements).
141 Id.
SUFFOLK UNIVERSITY LAW REVIEW [Vol. V: 1027
President in his preparation of an Annual Environment Quality Report,

i.e., the state of the environment. 142 This Council, by necessity, requires
a chairman who, while not only being an expert in the field of conservation,
should also possess the quality of being totally non-political. This position
requires an individual who possesses a true commitment to a better en-
vironment. The President chose Mr. Russell Train to head the new Council
Post and while Mr. Train may certainly qualify as a conservationist, 143
there exists possible doubts about his political makeup. In a recent inter-
view, 144 Mr. Train expounded upon some of his philosophies in relation
to pollution and its control. Chairman Train was questioned about the
cost of industrial pollution control; his response was that "[t] he cost ...
will generally be passed on to the consumer. . . ,,145 His rationale was
basically that while there may be some initial complaints, the consumer
who wants the product will pay the price. The factor which Mr. Train
overlooked was that for years industry has used "free of charge" all the
water which they desired and that now industry should absorb some of
the cost instead of passing it to the people who have to suffer the con-
sequences of industrial pollution.
Mr. Train also exhibited some seemingly inconsistent thought on en-
vironmental control. When asked if he felt pollution was growing he
answered in the affirmative, stating that despite tighter regulations, pollu-
tion was still on the increase.' 46 Yet, he also implied that perhaps we have
overreacted to the alleged environmental problems and the crisis state has
not yet arrived. 147 Mr. Train's attitude is clearly reflected in a statement
made by Dr. Paul Ehrlich 148 to the effect that "[t] he trouble with almost
all environmental problems is that by the time we have evidence to con-
vince people, you're dead .... 149
However, the predominant idea propounded by Mr. Train is that our
resources include an inexhaustable supply, and that our technology has
a limitless ability to repair.150 He sees technology as the ultimate answer
to the current pollution problem, and hence sees no need for any radical,
social, economic and industrial reform.
Other councils have been established such as the Water Resources
142 Id.
143 Mr. Train previously was the head of a private conservation group called
The Conservation Foundation.
144 See, How to Stop Pollution, U.S. NEws, Nov. 23, 1970, at 54-58.
145 Id. at 55.
146 U.S. NEWS, Nov. 23, 1970, at 55.
147 Id. Mr. Train made the statement that: "Responsible scientists are expressing
concern that there has been too much talk of panic in relation to the environment."
Id. at 56.
148 Dr. Erilich is a professor at Stanford University and has long been involved in
the environmental struggle from a legal aspect.
149 See, Can Law Reclaim Man's Environment?, S TiumL 11 (Aug./Sept. 1969).
150 U.S. NEWS, Nov. 23, 1970, at 56.
NOTES
Council' 51 and the Water Pollution Control Advisory Board 15 2 which also
have been given specific responsibilities; however, the results remain con-
stant. These committees of citizens and politicians have been unable to
produce effective results. The public should come to regard these commit-
tees as suspect, based on their past efforts. If these organizations, or any
new ones are to recapture the public confidence they must produce more
than reports with a foreword by the President. These organizations have
the potential for providing the leadership necessary for what will be a long
struggle; however, they must assert that leadership now without regard
for political or industrial pressure.
V. FEDERAL AGENCIES
A. Programsand Procedures
Newly enacted legislation needs vehicles for the implementation of pro-
cedures and enforcement. Such responsibility is generally placed upon a
newly created (by the act itself) or existing administrative agency. If the
individual who heads the agency is lax in enforcement and in the promul-
gation of rules, then the act becomes meaningless as a viable mechanism
of control or reform. Absolute control may further be hampered if the act
itself contains limitations on what the administrative agency is empowered
to do.
The Federal Water Quality Administrationss was established by the
Federal Water Pollution Control Act 1 54 and was assigned the function of
preparing most if not all programs aimed at the reduction and elimination
of water pollution. Numerous other derivative functions were also placed
under its auspices in furtherance of its responsibility to "enhance and
preserve the quality and value of our water resources."' 155 The administra-
tion was placed initially under the Department of Health, Education and
Welfare, and subsequently was transferred to the Department of the
Interior. 156 As such, the primary responsibility for the effective implemen-
tation of programs was placed upon the Secretary of that Department.
151 Established by the Water Resources Planning Act of 1965, 42 U.S.C.A. §§ 1962
et seq. (Supp. 1970).
152 Established by the Federal Water Pollution Control Act, 33 U.S.C.A. § 1159
(Supp. 1970). § 1159(a)(1) states that the Board shall be made up of representatives
from state, interstate, and local government agencies and also from public and
private organizations in the area of pollution control.
§1159(b) states the Board shall, "advise," "consult" and "make recommendations."
153 33 U.S.C.A. § 1159(a)(1) (Supp. 1970) which states: "There is established in
the Department of the Interior, a Water Pollution Control Advisory Board. ...
154 33 U.S.C.A. §§ 1151 et seq. (Supp. 1970).
155 Id. § 1151(a).
156 The transfer of the Administration was pursuant to Reorganization Plan No. 2,
§ 1(b), 31 FED. REG. 685.7 (1966), and was assented to by Congress on May 10, 1966.
This reorganization plan also transferred to the Department of the Interior the Water
Pollution Control Advisory Board. Id. § 1(c) (1).
SUFFOLK UNIVERSITY LAW REVIEW [Vol. V; 102 7
Although the Act, by amendments, had placed potential power within the
grasp of the Secretary, 157 it still suffered from numerous deficiencies. 158
The procedure established for enforcement was slow and frustrating, first
involving conferences, hearings, and then allowing time for implementation
of the recommendations from the meetings. Compounding this problem was
the overtly political nature of the procedure, which resulted to a great
degree from placing emphasis on state enforcement.
It is necessary that a Secretary possess the qualities of determination,
diplomacy, commitment, and personal contact in order to accomplish even
minimal improvements within this severely restrictive framework. Secretary
of the Interior Stewart Udoll was one such individual, who was able through
imaginative use of existing statutory power to accomplish the desired
results. One of the major triumphs of his department was the establish-
ment of water quality guidelines. 159 The Interior Department was not
authorized to set individual state water quality standards,'6 0 however, the
Department was authorized to rule on the standards produced by each
state, and the Secretary was given the power to accept or reject them. 101
Thus, by establishing the above mentioned guidelines and by declaring
that standards which did not meet these requirements would not be ac-
cepted, the Secretary, in effect, set the standards himself.' 62 Mr. Walter
Hickel also possessed the qualities necessary to produce results. He used
every resource at his disposal to accomplish the task of pollution abate-
ment. He was able to block a proposed jetport scheduled to be constructed
in the Florida Everglades, 163 and his "crack down" on the oil industry,
though it touched off a controversy which partially clouded his time in
office,' 6 4 produced results such as the halting of all ol drilling in the Santa
157 See supra pp. 1036-38.

158 See supra pp. 1036-38.
159 Hines, supra note 13, at 570-90.
160 See 33 U.S.CA. § 1160(b) (Supp 1970) which states in part:
Consistent with the policy declaration of this chapter, state and interstate action
to abate pollution of interstate or navigable waters shall be encouraged and shall
not, except as otherwise provided by or pursuant to court order under subsection
(h) of this section, be displaced by Federal enforcement action.
161 33 U.S.C.A. § 1160(c) (1) (Supp. 1970) which provides in part:
if such criteria and plan [from each state] are established in accordance with
the letter of intent, and if the Secretary determines that such State criteria
and plan are consistent with paragraph (3) of this subsection, such State criteria
and plan shall thereafter be the water quality standards applicable to such inter-
state waters or portions thereof.
162Secretary of the Interior Udall was quoted as stating to the Senate:
the end result of the standards provision is that for the first time in water areas
throughout the country, a special set of conditions to adhere to and look for in
enhancing and protecting water quality is provided. . . . The major and most
meaningful activities of the water quality standards program lie ahead.
Hines, supra note 13, at 590.
163 See LrzE, Dec. 4, 1970, at 6.
164 Coanmoiiwzn, Dec. 25, 1970, at 314 which implied that one of the reasons
1971] NOTES
Barbara Channel.1 6 5 The Secretary was also able to induce the Justice
Department to bring suit against Chevron Oil after the outbreak of a major
fire at one of their off-shore oil rigs. 160 In his capacity as Secretary of
the Interior, Mr. Hickel instigated numerous suits against the industrial
sector realizing, however, that because of existing limitations, he might
never be able to fully prosecute. Yet, at least, hearings would be held and
perhaps some fines imposed. 1' 7 Secretary Hickel possessed the "extra
dimension" that President Nixon stated he had searched for in all cabinet
position choices. The monumental efforts engendered by the Secretary,
however, were not enough, for, as will be seen, the system would not permit
such radical change to be attempted without resistance.
Some of the programs developed under the Federal Water Quality
Agency have the potential for achieving at least limited success. A typical
example may be seen in the Research, Development and Demonstration
Program. 168 This program has established as primary objective the develop-
ment of techniques for complete elimination of point-source wastes from
municipal, industrial, agricultural, mining and other sources by late 1970.169
One of the most interesting aspects of this program is the sub-program
dealing with joint municipal and industrial wastes. 170 The program is
designed primarily for communities which must face the task of handling
both sanitary and industrial effluents. In order to result in increased effi-
ciency and to avoid duplication of effort, the program centers on the treat-
ment of both sources together, and has already met with some limited
success. 171 This segment of the agency's work, however, is overshadowed
by the enforcement aspect which unfortunately embodies severe drawbacks.
An indication of the problems encountered was graphically suggested by
the recent Lake Superior Conference. 1 72 This conference was convened to
evaluate the effect that the Reservoir Mining Corporation, a major industry
in the Lake Superior region, had on the environment. Reservoir Mining
discharged over 60,000 tons of taconite tailings daily into the lake, resulting
in serious pollution hazards. Both State and Federal conferees had asked
the company to prepare a study on methods which could be implemented
contributing to the firing of Secretary f-ickel was his hard crackdown on the oil
industry.
165 Timm, Dec. 7, 1970, at 21.
166 Id.
167See generally Bus. WEEK, Sept. 13, 1969, at 54. The former Secretary used the
Water Quality Act of 1965 for the basis of the suits.
168 See ENVIoNmENTAL REPORTER: FEDERAL LAWS 51:414-4155 (1971) for a dis-
cussion of the Federal Water Quality Administration.
169 Id.
170 Id. at 51:4143.
171 Id. (a domestic sewage and semi-chemical pulp wash in Erie, Pennsylvania was
one of the projects undertaken by this Department and while it was able to remove
ninety percent BOD it was not successful in removing much of the coloring).
172 See EN xroirswlTAL
REPORTER: CURRENT DEVELOPMENTS 11 (1971).
to reduce the discharges, and the purpose of the Conference was to propose
an acceptable solution. 173 The Conference concluded that the tailings had
a deleterious effect on the environment, 174 and determined that the industry
and municipality should be given until 1974 to provide adequate secondary
treatment. 175 In light of this, it must be concluded that the resolutions of
the Conference were merely token gestures. The Reservoir Mining Com-
pany is a notorious polluter, 176 and should be treated as such, however, the
company is also extremely powerful, as is evidenced by past attempts to
compel pollution abatement. One such attempt had been made by the Army
Corp of Engineers, which had requested that the Department of the Inte-
rior investigate the company's dumping practices. At that time, Secretary
Udall ordered the investigation, which resulted in the compiling of sub-
stantial data. The Department, however, withheld the report. 17 7 The
reason for such action suggests that the company allegedly exerted such
tremendous pressure through influential people in Washington that the 18
report and its findings were buried in a grave as deep as the lake itself.'
Thus, it seems that even if a department or agency attempts to responsibly
carry out its functions, the results are often nullified by an inherent in-
ability to cope effectively with special interest groups and their effective
"power politics."
The functions and responsibilities of the Federal Water Quality Admin-
9
istration, along with numerous other agencies, either in whole or in part, 1
have subsequently been placed under the Environmental Protection Agency.
The EPA was established in July, 1970, for the purpose of consolidating
all federal programs relating to the environment under one director. 180 The
concept behind such an entity is sound. This soundness is based on the fact
that this type of agency will be more responsive to the numerous problems
posed; moreover, duplication of function is eliminated (as existed under
the former multi-agency approach). However, even with the inception of
the EPA, there were strong indications that the White House planned to
173 Id.
174 Id.
175 Id.
178 Collister, supra note 101, at 353.
177 The report's data was used in connection with other action by the Department.
178 Hill, Lake Superior, Private Dump, 208 NATION 795, 796 (1969).
179 Reorganization Plan No. 3, July 9, 1970 (effective Dec. 2, 1970, 35 F.R. 15632).
ENmRONmENTAL REPORTER: FEERAL LAWS 21:0261 (1971). Other principal agency
function transferred to the EPA include 1) function of pesticide control (from Dept.
of the Interior), 2) National Air Pollution Control Administration (from HEW), 3)
Bureau of Solid Waste Management (from HEW).
180 ENVIRONmENTAL REPORTER: FEDERAL LAws 21:0261 (1971) (the EPA will estab-
lish "environmental baselines." In addition the Agency is to a) establish and enforce
environmental protection standards; b) conduct research on the adverse effects of
pollutants; c) assist environmental programs through grants, and d) assist the Coun-
cil on Environmental Quality which has been established by the Congress).
19711 NOTES
be as instrumental in the policies of the EPA as the agency's director, Mr.

William Ruckelsbaus. The actions of the EPA and its overtly political
nature have already been manifested.' 8' It had been rumored that the
President planned to relax regulations dealing with oil spills; however, the
President held back when Mr. Ruckelshaus complained that he, as agency
director, had not even been consulted.' 8 2 It had been rumored previously
that the oil industry had complained so intensely that the Department of
the Interior had drawn up revised guidelines regarding governmental regu-
lation in the area of oil spills. These new regulations would have necessarily
come under the authority of the EPA, and as such, Mr. Ruckelshaus
would have become directly responsible for them. However, at the time
of their proposed release, Mr. Ruckelshaus' position had not been con-
firmed. Thus, while the White House held back this time, there can be no
guarantee that such an attempt in the future will not succeed. If this
speculation materializes, and the EPA is in fact a hollow shell run from the
White House's Oval Room, the entire ecological movement could be dealt
a serious blow.
B. Funding
An act may embody all the attributes necessary to function effectively
and accomplish its stated objectives; yet without adequate funding, even
with a dedicated staff, the agency responsible for enforcement may accom-
plish little more than attracting headlines when its programs are announced.
The President's budget for the fiscal year 1971 requested Congress to
appropriate only 465 million dollars for water pollution control.' 38 How-
ever, it has been estimated that close to one hundred and ten billion dollars
will be needed over the next three decades for waste treatment facilities
alone, 18 4 and estimates run as high as four hundred billion dollars in
181 See N.Y. Times, Dec. 1, 1970, at 1, col. 7. The event mentioned in the timing
of some proposed oil regulations. The proposed release of the regulations came at a
time when Secretary Hickel was no longer Secretary of the Interior, yet Rogers
Morton had not yet filled his post and Mr. Ruckelshaus had not yet been confirmed
as the Administrator of the EPA. The President reportedly would not have released
the new regulations when Hickel was Secretary because of the tensions between
Hickel and the oil industry. Thus the proposed release date would have, in effect, left
no one visibly responsible for the regulations being released. A further political com-
plication is evidenced by the rumor that Congress would have delayed the confirma-
tion of Ruckelshaus, had the regulations been released. Id. at 34.
182 Id. at 1.
188 See Budget for Fiscal 1971. The three major areas money was requested for
were: a) a five year construction program of sewage treatment facilities; b) reform
of municipal waste treatment and c) increased assistance to state water pollution con-
trol agencies. 1970 U.S. CoDE CoNo. & AD. NEws 14.
184 HEARDNWS oN S. 2947 B zoRE TnE Suacomm. ox AiR AND WATER PoLLuTI0uo op
nra SENATE Commn¢. oN PunrIc WoKs, 89th Cong., 2d Sess. 23 (1966).
SUFFOLK UNIVERSITY LAW REVIEW [Vol. V;:102 7
expenditures by the year 2000 to achieve any realistic hope of saving our
85
environment.
To establish an agency, to pass legislation, to deluge the media with
press releases and then to slash funding after the first year or not to fund
adequately from the beginning1 86 has been the norm in environmental
action on the federal level. While Congress has, on occasion, appropriated
more funding than requested, they also have often failed to make the
financial commitment necessary.
The recent appointment of Congressman Jamie Whitten, a Democrat
from Mississippi, to the Chairmanship of the Appropriation's Committee-
Sub-committee on Agriculture 8 7 reflects the above mentioned lack of con-
cern held by Congress. Representative Whitten, because of the committee
structure in Congress, has been delegated authority to control all of the
funding of the Environmental Protection Agency and the Council on En-
vironmental Quality. Thus all major environmental programs come under
his scrutiny. Described as one of the most powerful individuals in Wash-
ington, Congressman Whitten's past record in the area of environmental
concern is rather poor. A staunch conservative, Representative Whitten
has controlled the spending on agricultural programs for the past two
decades, and in that length of time, conservationists argue, he has "allowed
the Agriculture Department to raise environmental havoc" 1 8 in its soil,
forest and water shed programs. In other related matters, the Congressman
voted for the SST, for expanded logging in our national forests, and
against spending one billion dollars on water pollution control. In addition,
he has remained extremely critical of pesticides control because of the
possible detriment to farmers.' 8 9 If Mr. Whitten's voting record is an
indication of his attitude toward environmental spending, the belts around
related programs will be pulled tight. On a higher level, if Mr. Whitten's
appointment reflects the commitment by Congress, then they have betrayed
the American public.
VI. THE POLITIcs OF POLLUTION REVISITED.

"Water responds to gravity not politics."'190
The above statement was made in reference to the political "man-han-
dling" of the environmental issue. An attempt has been made to illustrate
185 See, The Physical Environment: If We Don't Control It, It May Control Us,
NATIoN's BusmNEss, June, 1968, at 64.
186 See Hines, supra note 13, at 571 (the author makes the point that one of the
problems related to the Water Control Act was lack of adequate funds). See also
Wicker, In the Nation: The Pollution of Promises, N.Y. Times, Jan. 25, 1970, § 4, at
15, col. 4.
187 See N.Y. Times, Feb. 11, 1970, at 1, col. 7.
188 Id.
189 Id.
19711 NOTES
a few examples of the overtly political nature in relation to specific aspects

of the environmental problems. In order to comprehend at least partially
the aspect of political influence, it becomes necessary to dissect the major
sources of regulation, power and enforcement.
A. The Chief Executive

The President of the United States is the most powerful politician in
the country. It is his burden to fulfill the mandate of the electorate.1 9'
However, in the area of environmental control, while President Nixon has
used more rhetoric than possibly any other President in the past, it is
necessary to pierce his executive veil and to ascertain whether the concern
voiced in his speeches is in fact translated into action. The President
mentioned in his State of the Union Address that "[t] he great question of
the seventies, is shall we surrender to our surroundings or shall we make
reparation for the damage we have done to our air, our land, and our
water?"' 9 2 The person to whom President Nixon had delegated the task
of "making reparation" was Secretary of the Interior Walter Hickel. While
many people had voiced concern over this appointment, 193 Secretary Hickel
became one of the most committed individuals in the fight to control
pollution. 19 4 However, less than seven months after the State of the Union
Address, the President demanded Mr. Hickel's resignation. 195 Why had
Mr. Hickel been fired after such tremendous strides had been taken under
his direction? The President's Press Secretary, Ronald Zeigler, stated that:
"[t] he President feels that the required elements for a good and continued
relationship-which must exist between a President and his cabinet simply
does not exist in this case."' 1 Another aide stated more succinctly that
"Wally Hickel just isn't a team player-and that is one thing the President
won't tolerate for very long.' 111 7 Mr. Hickel's firing did not come as a
surprise to many people' 98 for during his time in office, his strong stands
and independence produced repeated controversy. 119 Industry was espe-
cially upset with Mr. Hickel's attempts at performing his task with such
commitment. As ecologist Barry Commoner 2O° stated, Mr. Hickel was
20 1
"too effective.") '
191See generally D. CARTER, POWER IN WASH0NGTON (1923).
192 See State of the Union 1970, President Nixon Addresses Congress, Jan. 22, 1970,
ENVIONMENTAL REPORTERS FEDERAL LAWS 21:0141 (excerpts).
193 Lm, Dec. 4, 1970, at 6 (many people felt that Mr. Hickel did not possess the
qualities it took to be an effective conservationist).
'94 See supra pp. 1044-45.
195 Tan, Dec. 7, 1970, at 21.
196 Id.
197 U.S. NEws, Dec. 7, 1970, at 29.
198 TnME, Nov. 30, 1970, at 6.
199 U.S. NEws, Dec. 7, 1970, at 29.
200 Tim, Feb. 2, 1970, at S8 (called the Paul Revere of Ecology).
201 Tim, Dec. 14, 1970, at 46.
SUFFOLK UNIVERSITY LAW REVIEW (Vol. V:1027
Even though the President kept emitting signals of unhappiness, 20 2 the

Secretary remained committed and would not allow outside pressure to
sway his judgment. The President, unable to curb the Secretary, simply
removed Hickel's power over the environmental agencies by creating the
Environment Protection Agency which in effect assumed the responsibility
for all environmental programs. 20 3 This Agency was established without
prior consultation with Hickel.20 4 Thus, the creation of the EPA had its
political implications which must be seen as an attempt to establish effec-
tive control by the Chief Executive and in the process, resolve an annoy-
ing personal problem. The President's recent appointment of Rogers
Morton to the post vacated by Mr. Hickel simply adds credence to this
theory. Mr. Morton, stated one observer, "knows too well where the G.O.P.
gets its campaign funds.120 5 A former Congressman, Mr. Morton was an
active campaigner for the President and also a major fund raiser. As a
Congressman, Mr. Morton's record is far from being exemplary in the
area of environmental control. He voted for the SST, against highway
beautification, and also missed numerous environmental roll calls. 20 6
In his first Environmental Message to Congress, President Nixon stated
that
[t]he tasks that need doing require money, resolve and ingenuity and they
are too big to be done by government alone. They call for fundamentally
new philosophies of land, air and water use, for stricter regulation, for
expanded government action, for greater citizen involvement and for new
programs to insure that government, industry and individuals all are called
207
on to do their share of the job and to pay their share of the cost.
Unfortunately, this "new philosophy" has not as yet been manifested by

any substantial action emanating from the White House. Both political
and conservation observers agree that much of the legislation proposed or
enacted under President Nixon has been "toothless" and that many of the
federal environment programs are "hollow.1 20 8 Even the President's recent
thirty-seven point message to Congress, 20 9 while strong, is not strong
202 Lim, Dec. 4, 1970, at 6 (One of the reasons allegedly displeasing the President
was the now famous letter sent to the President by Hickel in reference to the country's
youth and how he had alienated them.).
203 Id.
204 Id.
205 Tn&E, Dec. 14, 1970, at 46 (statement by John Esposito, one of Ralph Nader's
Raiders). The comment was made in reference to Mr. Morton's contact with industry
and the GOP traditionally getting large contributions from industry. For these reasons
Mr. Esposito felt Morton would be too soft on the industrial sector.
206 Id.
207 See, Environmental Message, President Nixon to Congress, Feb. 10, 1970. EN-
VIRONMENTAL REPORTER: FEDERAL LAws 21:0201 (1971).
208 Timm, Feb. 23, 1970, at 39.
209 See, A Commitment to a National Cleanup, Bus. WEzK, Feb. 14, 1970, at 58.
Some of the 37 points sent to Congress included: a) an imposition of a local users
fee on industries which use municipal waste treatment plants; b) a revision of new
1971] NOTES
enough. The message also contained partisan political overtones, being

called by some a "political master stroke," because it completely over-
210
shadowed many bills having democratic sponsorship.
At least one commentator felt that all the President's actions so far have
been "[1] ip service paid nature, some minor environmental programs, but
ecology forever secondary to business and the economy.1 211 However, to
criticize only one administration or President would be unfair, for as
stated before, this attitude is shared, perhaps consciously, by a large num-
ber of public officials and has been espoused by many more than one
administration.
B. State Legislatures
William Ruckelshaus of the EPA realized that this attitude pervaded
the thinking of many individuals on the state level and concluded that
since the existing legislation in many instances leaves primary responsibility
to the state, there would continue to be excessive delay in enforcement. The
rationale behind this thinking was very logical; all states are competing
for industry and as such the desire to effectively curb pollution in the
face of this competition is minimal. 212 This thinking was reinforced by
Victor Yannacone of the Environmental Defense Fund, when, in relation
to pesticide control, he stated that "industry sways state legislatures even
in face of death dealing pesticides." 213 An excellent example of this alleged
sway held by industry can be seen in California's recent refusal to ban or
curb effectively the use of DDT. The opinion held by conservationists is
that the California State Legislature capitulated to its 4.4 billion dollar
agricultural industry and allowed the continued use of this environmental
menace. 214 In summary, the states have a major interest in the industry
and until this attitude is reversed, it seems clear that they will continue to
set a higher priority on pollution and industrial prestige than on people.
C. Congress
The prevalence of political influence in our Congress, in relation to the
regulation and enforcement of any environmental program can be readily
ascertained by the following exchange which took place in a Senate sub-
committee hearing between Senator Edmund Muskie 215 and Mr. Stien of
the Federal Water Quality Administration:
water standards to include regional programs; c) a short-cutting of lengthy process
involved in bringing a pollutor to court; and d) the imposition of fines up to ten
thousand dollars per day on polluters.
210 TmE, Feb. 23, 1970, at 39.
211 See CommoNwx~u, Dec. 1970, at 314.
212 N.Y. Times, Dec. 3, 1970, at 24, col. 1.
213 5 TRiAL 10 (Aug./Sept. 1969).
214 Id. at 11.
215 Chairman of the Sub-Comm. on Air and Water Pollution of the Senate Comm.
on Public Works.
SEN. MUSKIE: Now with respect to the decision making what factors must
you submit to justify an enforcement action?
MR. STIEN: Well, I think the factors are: one, the situations of pollution;
and secondly, what we would determine would be the reaction of the state
water pollution control officials ...
SEN. MusxI: So you really supply them with two sets of facts-one on
the merits of the case, and two, on the political climate?
MR. STIEN: Yes-in the broad sense yes sir.216 (Emphasis supplied.)
This testimony should not have come as a surprise to any member of
Congress, considering the number of instances in which industrial lobbying
and political free wheeling has played major roles in environmental politics.
The controversy over the proposed Trans-Alaska pipeline is an example.
This project has been condemned by many conservationists, yet it is
strongly supported by the oil lobby, and it is quite conceivable that this
impending disaster will be constructed with the backing of many Congress-
218
men. 217 Moreover, precedent for this result is not lacking.
It would be extremely difficult to divorce the industrial influence on
Congressmen from their personal philosophies simply because of the politi-
cal composition of Congress. Some representatives come from highly
industrial areas, and as such are elected to preserve the interests of the
constituents; others come from agricultural states and of course they also
have vested interests to protect; still others, while not coming from either
highly industrial or agricultural states desire to boost their home district's
economy by introducing new stimuli, such as industry, into their state. The
unfortunate result is that the vested interests of the industrial and agricul-
tural lobbyists seem to exert more control over the Congressmen's votes
than do the best interests of the people that they were elected to represent.
D. The United States Department of Justice

The recent firing of John Burns, Assistant U.S. Attorney, and one of the
most successful prosecutors of water polluters has raised numerous ques-
219
tions regarding the sincerity of pollution enforcement on the federal level.
Mr. Burns was fired because "a number of serious internal office problems
'2
and questions of priority developed as a result of Mr. Burn's conduct." 20
Translated, this means that Mr. Burns was too enthusiastic. Mr. Burns
had an impressive record of accomplishments as a U.S. Attorney; he had
216 See HEARINGS ON S. 649 BEFORE T= SuBcomm. ON Aia AND WATER PoLuLuroN
op THE SENATE Comm. ON Puaiuc WoRxs, 88th Cong., 1st Sess., at 81 (1963).
217 See NEW REPUBLIC, Jan. 30, 1971, at 9.
218 For example, a planned bridge across the Potomac River was constructed over
the objection of citizen groups and conservationists who opposed it for aesthetic, en-
vironmental and historical reasons. This was accomplished through the efforts of the
highway lobby. See Ottinger, supra note 3, at 671.
219 TimE, Jan. 25, 1971, at 43.
220 Id.
19711. NOTES 1053,
ingeniously used Section 13 of the Rivers and Harbors Act 221 to great
advantage. The Act calls for a twenty-five hundred dollar fine for refuse
discharges into navigable waters. 22 2 Mr. Burns interpreted their statutory
language to mean that a "discharge," subject to prosecution occurred every
time someone opened a valve. Thus he was able to compound the twenty-
five hundred dollar fine many times over. He was able to obtain judgments
as high as one hundred and twenty-five thousand dollars, 22 s and to receive
injunctive relief against some of the most powerful industries in the coun-
try. 224 Realizing the bureaucratic structure inherent in the Justice Depart-,
ment, Mr. Burns attempted to circumvent these procedural handicaps by
handling one aspect of a pollution case at a time. In his prosecution of
Standard Brands, for example, he obtained permission first from the civil
division and then from the criminal division to proceed with the prosecution
without explaining first that he had already obtained the approval from
the former. When the Justice Department realized what was happening, it
began to refuse cooperation or cooperated only hesitantly by placing limi-
225
tations upon his actions.
The firing of an individual based on superior competency rather than
lack of it indicates an unfortunate aspect of the enforcement procedure,
i.e., that enforcement methods are designed to go just so far, superficially
touching the problem but not permitting the core to be exposed. This
attitude is reflected in other Justice Department rulings, such as the new
policy, announced on June 11, 1971, which stated that it would not be in
the governmental interest to prosecute industries which are discharging
wastes while those industries are expending monies to correct the prob-
lem.2 26 As mentioned before, industry is not allocating enough money to,
the fight against pollution, yet the Justice Department, under this policy,
will refuse to apply pressure through prosecution and the levying of fines
to compel such a necessary commitment if the industry is already spending
some money. It has been estimated that industry could begin to alleviate
pollution from its plants for approximately a three billion dollar invest-
ment, 227 but as yet they have not done so. The token gestures made by
industry are not enough; pollution continues and the Justice Department
should play a major role in eliminating this problem by compelling indus-
try to effectively deal with the abatement issue.
221 33 U.S.C. § 407 (1964).
222 33 U.S.C. § 411 (1964).
223 Tm, Jan. 25, 1971, at 43.
224 Id.
225 Id. The Department would allow Mr. Burns to bring only civil actions.
226 See
ENVRONMENTAL REPORTER: CURRENT DEVELOPMENTS at 138 where Mr.
Kashiwa of the Justice Dep't stated:
Prosecutive discretion is always essential and must take into account the possible
effects which the use of the Refuse Act might have upon the programs of other
agencies concerned with the broad problem.
227 See Tim, Feb. 2, 1970, at 60-61.
SUFFOLK UNIVERSITY LAW REVIEW [Vol. V: 1027:
VII. CONCLUSION
To document every instance when the public good has been sacrificed
for the benefit of industry would be virtually impossible. However, through
the efforts of many committed individuals, numerous illustrations have
been exposed. The question which remains is: what can be done to stop
this sacrifice and to effectuate some meaningful change? To answer this
question a short review should be undertaken. It seems, as has been stated,
that neither statutory reform nor billion dollar programs will suffice to
meet this* challenge. The attitude of government must change; there is
not an inexhaustible supply and an unlimited ability to repair.
Unique suggestions have been advanced from all sectors of the American
public, some of which offer at least partial solutions. One such suggestion
is that of the "highest and best use" theory. 228 Basically stated this theory
espouses the doctrine that water use should no longer be considered as a
natural extension' of society. Rather, the "uses" of water by private,
industrial; or public sectors should be rated in order of importance and be
used in accordance therewith. Under this theory all non-productive or
incompatible uses could be eliminated. There exists, however, numerous
problems with this approach, the'major ones being, the control of water.
and the rating of priorities. This could be done by the government, but if
the government's special treatment of industry remained, the result dearly
would work to the detriment of the remainder of society.
2
Another suggestion advanced has been that of "effluent charges" 2
which in effect would put a price tag on the waste discharged by industry
into the water supply. The more effluents discharged, the higher the cost.
This proposal, in effect, eliminates the idea that water used as a receptacle
for waste remains free of charge. However, the same problem exists in
relation to this theory as with the last, i.e., the problem of governmental
control.
Still, a further suggestion and one which has gathered increasing sup-
port, is a proposed constitutional Amendment guaranteeing "each citizen a
wholesome and unimpaired environment .... ),2s0 This Amendment would
in effect elevate the need for a clean environment to the status of an
inalienable individual right. There remain, however, numerous deficiencies
23
in such a proposal, such as the mere enactment of such an Amendment. '
However, too many compromises have been made; too many ideals lost, to
progress and expansion, so that more than a constitutional Amendment is
228 See generally Levi, Highest and Best Use: An Economic Goal for Water Law,
34 Mo. L. REv.. 165 (1969).
229 See generally Delagu, Effluent Charges: A Method of Enforcing Stream Stan-
dards, 17 MAiNE L. REv. 29 (1967).
230 See Ottinger, supra note 3, at 672, n.13.
231 The passage of an amendment requires a two-thirds approval by both Houses
of Congress, and ratification by three-fourths of the States. U.S. CONST. art V.
1971] NOTES
required, for such an amendment would be unable to dislodge industry

from its entrenched position. "Ecology in other words, is a sweet and
2 2
lovely cause, but it better keep the hell out of the way of the economy.1
There already exists some method by which increased pressure may be
brought to bear by the public on both industry and the government. One
such method is the bringing of public or private suits to force abatement
either directly or indirectly. These suits may take the form of an action in
tort for nuisance2 38 or possibly be based on the riparian theory of water
rights. 23 4 These methods have been used with some degree of effective-
ness. 235 Individuals may also receive judicial review of governmental
agency actions if they fulfill certain prerequisites.28 6 While suits may be
effective in increasing pressure, they alone are only one method which must
be employed.
In order to apply collective pressure effectively there must be some
semblance of order and organization among the public to organize and
administer, and to focus the pressure correctly. Such a vehicle for this
task may already exist in the form of a recent experiment by John Gardner
' 237
called "Common Cause.
This organization has set specific goals for itself and hopes to accomplish
these goals through mass lobbying techniques.2 8
If such an organization
could be the spokeman for the environmental issue and attempted lobby-
ing not only on Capitol Hill but also at shareholders meetings and in state
legislatures, it would become a highly visible and effective force. Used to
coordinate not only political forces but also citizen groups and acting as
a clearinghouse for pertinent information this approach would be persua-
sive.
The issue may not have the romantic appeal of other social movements
such as civil rights or the anti-war demonstrations but its importance can-
not be over-estimated. We only have one earth and if we lose that then we
10se more than civil rights, we lose the existence of man-kind.
Michael A. Ventresca
232 COMMONwEAL, Dec., 1970, at 314. The Article cites President Nixon's continued
fight for the SST, the firing of Mr. Hickel and the moving back of deadlines for auto-
mobile exhaust control.
233 See Note, The Environmental Lawsuit: Traditional Doctrines and Evolving
Theories To Control Pollution, 16 WAYN, L. REv. 1085, 1106-14 (1970).
234 See Note, Water Quality Standards In Private Nuisance Actions, 79 YALE L.J.,
102, 103 n.7 (1970).
235 Id.
236 See, Richards, Walton v. St. Clair: The Standing Question, 4 NAT. RES. LAw. 47
(1971).
237 See NEWSWEEK, Dec. 7, 1970, at 23-24. See also Bus.WEEK, Oct. 31, 1970, at 25.
238 TJa, Aug. 10, 1970, at 10. "The purpose should be to revitalize and needle
both of the parties, and also to revitalize politics and Government at every level." Id;

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As has been observed by one commentator: "We've already run out

Clearly, the financial and technological obstacles can be overcome, but,

alone are enough to demonstrate the encroaching disease related to in-

B. The Leather Tanning Industry

C. The Petroleum Industry

D. The Metal Industry

of pollution on the environment, industry has not yet been persuaded to

protected against pollution. The major sections of the Act relating to

under § 10 of the Rivers and Harbors Act).

example, apply to unnavigable waters,66 rather it is restricted to navigable

mains, in comparison to its recently enacted equivalents, one of the few

77 See supra note 71 and accompanying text.

applied only to interstate waters,90 and still contained an enforcement

ineffectuality on the federal level is disheartening. 10 3 It is interesting to

is "no respector of political boundaries;" 11 2 they in fact only succeeded in

IV. THE POLITICS OF POLLUTION

technique accomplishes two objectives with one action. First, it provides

order to accomplish abatement, the government should be cautious in

President in his preparation of an Annual Environment Quality Report,

157 See supra pp. 1036-38.

be as instrumental in the policies of the EPA as the agency's director, Mr.

VI. THE POLITIcs OF POLLUTION REVISITED.

a few examples of the overtly political nature in relation to specific aspects

A. The Chief Executive

Even though the President kept emitting signals of unhappiness, 20 2 the

Unfortunately, this "new philosophy" has not as yet been manifested by

enough. The message also contained partisan political overtones, being

D. The United States Department of Justice

required, for such an amendment would be unable to dislodge industry

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