relevant authorities it could find were decisions upholding the Bureau of Land Management's levying of grazing fees under its broad authority to manage the public lands with concern for the public welfare. Because EPA was uncertain of its authority to require and approve surcharges in state transportation control plans it initially deferred their adoption. It preferred to rely on other regulatory means which were more readily defensible, on the grounds that if too much reliance were placed on parking surcharges which were then judicially overruled, compliance timetables would be upset.39 EPA later took a more positive view of the legality of parking surcharges as a means of controlling private vehicle use in light of a long line of judicial decisions upholding the right of municipalities to use parking meters (and their required fees) to regulate traffic. The general legal reasoning was essentially the following:40 Municipalities may exercise their police powers by establishing regulations to promote public health, safety, welfare and morals. The police power supports outright prohibition of an activity, so, a fortiori, the police power authorizes licensing as one means of regulation. Fees may be imposed to cover the cost of regulation and these must bear a reasonable relationship to the cost of administra provided him with the needed authority to substitute appro Additional insight into EPA's views was provided by John Bonine, Office of Enforcement and General Counsel, in a June 6, 1974 telephone interview. 39. In instances where EPA approved surcharges, it approved alternative measures as well which would be implemented in the event parking surcharges failed to survive judicial tests. 40 The discussion that follows of the regulatory power and parking meter cases is derived from the following sources: memoranda and court decisions furnished by the Natural Resources Defense Council, Inc., and S. Lyman, "The Constitutionality of Effluent Charges," Technical Report #OWRRA-022-Wis., University of Wisconsin Water Resources Center (May 1969). tion.41 In some cases, however, where the regulated activity has the potential of becoming dangerous or a nuisance, the license fees may exceed the cost engendered and may even be high enough to discourage the activity. These general principles were applied specifically to parking meter statutes in several cases. In State v. Douglas 43 the court held that Vermont can regulate the use of streets and highways by restricting parking. This power may be delegated to municipalities. Municipalities can charge parking meter fees, and though revenue from these may exceed regulatory costs, this imbalance does not invalidate the practice. A similar conclusion was reached in City of Buffalo v. Stevenson44 A Florida court recognized the regulatory function of parking meters noting that they "regulate traffic and keep such traffic as liquid as is reasonably possible."45 A similar conclusion was reached in New Hampshire: An act designed to regulate the use of highways by enabling ness.. By extension, EPA concluded, parking surcharges could be used by municipalities to regulate and discourage parking and thus were a promising element of transportation control plan strategy. Earmarking of proceeds for transportation-related expenditures (i.e. 41 See generally 33 Am. Jur., "Licenses $19, at 340; 16 C.J.S., Const. Law, $174, at 890-891; Johnson v. County of Goochland, 1206 Va. 235, 142 S.E.2d 501. 42See U.S. v. Sanchez, 340 U.S. #42, 71 S.Ct. 108, 95 L. Ed. 47; $26.31 Mc Quillan, Mun. Corp; 4 T.N. Cooley, Taxation, $1809 at 3555 (4th ed., 1924). 4394 A.2d 403 (1958). 44207 N.Y. 258, 263, 100 N.E. 797, 800. 45 State ex rel. Harkow v. McCarthy, 126 Fla. 433, 171 So. 314, 316 (1936). 46Opinion of the Justices of the Supreme Court of N.H., 51 A.2d 836 (1947). mass transit) would be considered part of a comprehensive regulatory scheme in which individual behavior of a particular kind was discouraged while the receipts from the sanctions imposed on that behavior would be used to encourage an alternative mode of behavior. Congressional Response Those opposing the surcharges questioned EPA's authority to impose them, regarded them as regressive, and : feared their deleterious impact on downtown businesses. Among the opponents in the District of Columbia was Congressman Wayne L. Hays, who said he would call the Capitol police to eject any official trying to collect a surcharge from congressmen and their employees. The EPA proposals were promulgated in the midst of the so-called 47 The prohibition was retained by the conference committee considering the conflicting House and Senate versions of the energy emergency legislation. Sitting on the conference committee were three members of the Subcommittee on Air and Water Pollution of the Senate Committee on Public Works, in which the transportation control provisions of the Clean Air Act had originated. These three members were part of a conference subcommittee that gave special consideration to all the language in the Energy Emergency Act pertaining to the Clean Air Act. The Energy Emergency Act was never passed by Congress, dying in a Senate dispute over inclusion of provisions governing oil companies' "windfall" profits. EPA nevertheless responded to the congressional actions described above by withdrawing its surcharge regulations. In doing so, EPA Administrator Russell Train took 47 48 Quoted in the Washington Post, May 14, 1974. The following description of congressional and EPA action is drawn from EPA's announcement of withdrawal of its proposed parking surcharges, 39 Fed. Reg. 1848 (January 16, 1974). The House bill was reported December 10, 1973. note of the conference committee action. Train added that EPA could still approve any surcharge submitted by a state, though adoption of the surcharge would not be made a condition of EPA approval of a state plan. He stated that EPA would make the study called for by the draft Energy Emergency Act, on the necessity for and desirability of parking surcharges. The Congress weighed revisions to the Clean Air Act in the course of its deliberations in Spring 1974 over H.R. 14368, the Energy Supply and Environmental Coordination Act. Section 3 of the bill contained the surcharge prohibition and was approved by the House. When H.R. 14368 was passed by the Senate, this provision was deleted at the request of Senator Muskie. It was, however, restored in conference, passed by both houses, and signed into law on June 22, 1974 as Public Law No. 93-319. ADMINISTRATIVE FEASIBILITY OF DISINCENTIVES UNDER FEDERAL ENVIRON- Feasibility of Applying Disincentives to Water Pollution In section IV we concluded that although the Administrator of the Environmental Protection Agency is not granted authority in the Federal Water Pollution Control Act Amendments of 1972 to impose effluent charges or other disincentives, the states are not precluded from doing so. Having reached this conclusion, it is appropriate now to inquire In a January 1974 speech, EPA Deputy Administrator John Quarles discussed some of the administrative difficulties confronting EPA in administering the FWPCA. With respect to approval of state National Pollutant Discharge Elimination System (NPDES) programs, he noted that although very real progress had been made at the state level, the primary responsibility for operating the permit program had remained with EPA far longer than anyone would have expected one year ago. June 1974 EPA figures prepared for congressional oversight hearings indicate that through FY74, only 15 state permit programs had been approved. Approval of an additional 15 programs was expected by the end of FY75. Thus, only 60 per cent of the states would be administering their own permit programs just two years prior to the July 1, 1977 deadline for existing industrial sources to have implemented "best practicable control technology currently available" [section 301(b) (1) (A)]. As for the effluent guidelines for various categories of industrial dischargers, EPA has fallen behind in their issuance. A total of 121 separate standards are involved, for some 30 different industrial categories. EPA has submitted to court-approved consent order to have the guidelines for the 1977 standards, 1983 standards, new source performance standards and pretreatment standards prepared by November 1974. EPA expects most of these to be challenged in court once they are promulgated, and as of August 15, 1974, over 100 challenges had been filed. EPA has also had considerable difficulty in developing "a sound In We have found it virtually impossible to devise intelligent standards which specify an appropriate degree of control over toxic pollutants irrespective of the sources of those pollutants and factors affecting the feasibility and timing of their abatement. Furthermore, issuance of specific permits has predated in many instances development of both industry-specific effluent guidelines and comprehensive river basin plans. Also, development of areawide waste treatment management plans pursuant to section 208 of the act is just now getting off the ground, nearly two years after the law's passage. When Congress enacted the FWPCA Amendments of 1972, it was upset at the lack of pollution control progress under the existing FWPCA. As a result, it enacted a law imposing very short deadlines for the promulgation of very complex regulations. At this time, it is unclear whether the existing, complex regulatory system is going to succeed or whether the entire structure is going to founder under a deluge of litigation, missed deadlines, and unsatisfied expectations. While EPA has been criticized for its administration of the FWPCA program, if the entire structure of regulation fails, Congress must bear the burden of having established a basic regulatory framework which expected too much, too soon. Be that as it may, we will nevertheless explore the feasibility and desirability of adding pollution disincentives to the existing regulatory structure. Legal Authority for Monitoring Section 308 of the FWP CA Amendments provides authority for recordkeeping, monitoring and inspection requirements. Any monitoring and record-keeping requirements of an |