| OCR Text |
Show 1124 449 FEDERAL REPORTER, 2d SERIES Of course, federal agencies such as the Atomic Energy Commission may have specific duties, under acts other than NEPA, to obey particular environmental standards. Section 104 of NEPA makes clear that such duties are not to be ignored: "Nothing in Section 102 or 103 shall in any way affect the specific statutory obligations of any Federal agency (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." On its face, Section 104 seems quite un-extraordinary, intended only to see that the general procedural reforms achieved in NEPA do not wipe out the more specific environmental controls imposed by other statutes. Ironically, however, the Commission argues that Section 104 in fact allows other statutes to wipe out NEPA. Since the Commission places great reliance on Section 104 to support its abdication to standard setting agencies, we should first note the section's obvious limitation. It deals only with deference to such agencies which is compelled by "specific statutory obligations." The Commission has brought to our attention one "specific statutory obligation": the Water Quality Improvement Act of 1970 (WQIA).33 That Act prohibits federal licensing bodies, such as the Atomic Energy Commission, from issuing licenses for facilities which pollute "the navigable waters of the United States" unless they receive a certification from the appropriate agency that compliance with applicable water quality standards is reasonably assured. Thus Section 104 applies in some fashion to consideration of water quality matters. But it definitely cannot support-indeed, it is not even relevant to -the Commission's wholesale abdication to the standards and certifications of any and all federal, state and local agencies dealing with matters other than water quality. As to water quality, Section 104 and WQIA clearly require obedience to standards set by other agencies. But obedience does not imply total abdication. Certainly, the language of Section 104 does not authorize an abdication. It does not suggest that other "specific statutory obligations" will entirely replace NEPA. Rather, it ensures that three sorts of "obligations" will not be undermined by NEPA: (1) the obligation to "comply" with certain standards. (2) the obligation to "coordinate" or "consult" with certain agencies, and (3) the obligation to "act, or refrain from acting contingent upon" a certification from certain agencies. WQIA imposes the third sort of obligation. It makes the granting of a license by the Commission "contingent upon" a water quality certification. But it does not require the Commission to grant a license once a certification has been issued. It doe-not preclude the Commission from demanding water pollution controls irorn its licensees which are more strict than those demanded by the applicable water quality standards of the certifying agency;** It is very important to understand 33. The relevant portion is 33 U.S.C.A. § 1171. See Note 30 supra. 34. The relevant language in WQIA seems carefully to avoid any such restrictive implication. It provides that "[e]ach Federal agency * * * shall * * * insure compliance with applicable water quality standards * * *." 33 U.S.C.A. § 1171(a). It also provides that "[n]o license or permit shall be granted until the certification required by this section has been obtained or has been waived * * *. No license or permit shall W" granted if certification has been denied * * *." 33 U.S.C.A. § 1171(b) (U-Nowhere does it indicate that certificatuw must be the final and only protection against • unjustified water pollution--a fully sufficient as well as a neecssan condition for issuance of a federal licensor permit. We also take note of § 21(c) of WQIA. which states: "Nothing in this s*n,t»*,n shall be construed to limit the author.!:- of any department or agency pursuant w |
