Read together these provisions of section 6 do not authorize the Administrator to promulgate regulations adopting disincentives, such as charges on the decibel rating of each product. To "meet the requirements of subsection (c)" the regulations need only set a performance standard for noise emissions from a product. In addition subsection (c) specifies two other kinds of requirements which may be imposed -- testing procedures and instructions concerning maintenance and use. By ending the list here, Congress implicitly excluded authority for the Administrator to issue regulations which would go further. Sections 17(a) and 18(a) respectively authorize the Administrator of the Environmental Protection Agency to promulgate noise emission regulations for "surface carriers engaged in interstate commerce by railroad" and for "motor carriers engaged in interstate commerce." These regulations "shall include noise emission standards setting such limits on noise emissions...which reflect the degree of noise reduction achievable through the application of the best available technology, taking into account the cost of compliance." The Secretary of Transportation has the authority to promulgate regulations to insure compliance with the Administrator's standards. The Administrator's authority is not limited to setting the standards. The language in section s 17 (a) and 18(a) differs from that in section 6. In these sections the Administrator is required to "include" noise emission standards in his regulations but nothing is provided concerning what he may include in addition. And both sections 17(a) (1) and 18 (a) (1) provide that these regulations "shall be in addition to any regulations that may be proposed under section 6." These provisions, read together, might authorize the Administrator to adopt regulations imposing disincentives to discourage noise emissions from interstate rail and motor carriers. Sections 17 and 18 require the Administrator to confer with the Secretary of Transportation before promulgating any regulations "to assure appropriate consideration for safety and technological availability."106 Extent of pre-emption Sections 17 and 18 provide for complete federal pre-emption of regulatory control of noise emissions from surface carriers engaged in interstate commerce by railroad and from motor carriers engaged in interstate commerce, after the effective date of adequate federal standards. A narrow exception is carved for state and local regulations which the Administrator determines to be necessitated by special local conditions and not in conflict with relevant federal regulations. Likewise, the authority of the state and local governments to establish noise emission performance standards enforceable against the manufacturer for the manufacture of any product governed by federal standards after the effective date of an applicable federal standard is precluded. Thereafter, Section 6(e) (2) provides that state limitations may only reach to the mode and manner of using these products: "Subject to sections 17 and 18, nothing in this section precludes or denies the right of any State or political subdivision thereof to establish and enforce controls on environmental noise (or one or more sources thereof) through the licensing, regulation, or restriction of the use, operation, or movement of any product or combination of products." The language subordinating section 6 (e) (2) to sections 17 and 18 serves to limit the states' power to regulate noise associated with use to products other than surface carriers engaged in interstate commerce by railroad and motor carriers engaged in interstate commerce. As indicated above, there is total pre-emption as to those two modes of interstate commerce, and the states generally may not even regulate use without the Administrator's approval. In addition, the Supreme Court has recently held in City of Burbank v. Lockheed Air Terminal, Inc. 107 that a locality is pre-empted from exercising its police powers to impose curfews on flights into an airport not owned by it. Most airports at which federally-regulated aircraft land are owned by states or their subdivisions, however, and as owners they may regulate the use of their airports on the basis of noise considerations.108 States Conclusion -- The Administrator does not have authority under section 6 of the Noise Control Act of 1972 to adopt regulations imposing disincentives on products which are major sources of noise but may adopt regulations under sections 17 and 18 imposing disincentives to control noise from interstate rail and motor carriers. are not pre-empted from adopting disincentives applicable to use of new products covered by federal noise emission limits, but as to rail or motor carriers or their components, states may adopt use limitations and disincentives only if the Administrator determines 'special local circumstances' warrant their approval. States or their subdivisions may impose disincentives on the noise from flights into airports they own. 107 411 U.S. 624 (1973). 108 American Airlines v. Town of Hempstead, 272 F. Supp. 226 (E.D. N.Y. 1967); S. Rep. No. 90-1353, 90th Congress, 2d Session (1968) at 6-7 City of Burbank v. Lockheed Air Terminal, 411 U.S. 624, note 14 (1973). Reorganization Plan No. 3 Section 6 of Reorganization Plan No. 3 of 1970 authorizes the Environmental Protection Agency to establish generally applicable environmental standards for the protection of the general environment against radioactive material, i.e., limits on radiation exposures or levels, or on concentrations or quantities of radioactive material in the general environment outside the boundaries of locations under the control of persons possessing or using radioactive material. Responsibility for the implementation of these radiation standards 109 remains with the Atomic Energy Commission, however. The Agency has no authority to adopt disincentives for controlling radiation. This control is vested with the Atomic Energy Commission and state authority to impose standards stricter than the AEC's is pre-empted by the Atomic Energy Act.110 Because EPA has no implementation and enforcement responsibilities in the radiation field, the use of economic disincentives to promote compliance with EPA-established radiation standards will not be discussed here. 109 See EPA's announcement of intention to issue standards for normal operations of activities in the uranium fuel cycle, May 19, 1974, 39 Fed. Reg. 16906. 110 Northern States Power Co. v. Minnesota, 405 U.S. 1035 (1972), affirming 447 F.2d 1143 (8th Cir. 1971). SECTION V STATE AND LOCAL DISINCENTIVE INITIATIVES INTRODUCTION State and local governments have considered several bills providing for disincentives in various environmental fields and have enacted a few. As discussed in section IV above, the legal issues raised by these initiatives usually involve questions whether the police or taxing powers to adopt disincentives (1) have been pre-empted by federal laws or (2) have been exercised constitutionally. These questions have so far been predominantly resolved in support of the disincentives which the courts have been asked to consider. - This section describes several representative measures the "bottle laws" of Oregon and Vermont, the nicotine and tar tax of New York City, the tax on plastic containers of New York City, and Vermont's tax on capital gains from speculation in land and how the courts have analyzed these measures. BOTTLE LAWS Oregon Oregon's bottle lawl took effect October 1, 1972. It governs sales of "beer or other malt beverages and mineral waters, soda water and similar carbonated soft drinks."2 Its aim is to reduce solid waste and promote resource conservation. Under the law the amount of a bottle deposit is added to the beverage price at the time of sale; this increase in price is refunded to the consumer when bottles are returned to the retailer or to a reclamation center. In this way Oregon's 1971 law "makes bottles too valuable to heap on the countryside."3 The bill states that "every beverage container sold or offered for sale in this state shall have a refund value of not less than five cents,"4 except beverage containers certified by the Oregon Liquor Control Commission. Certified bottles carry a mandatory deposit of two cents, 1 Oregon Revised Statutes [hereinafter cited as ORS], $$459.810-459.992. 2ORS $459.810(1). 3. Environmental Action Bulletin, Washington, D.C., March 24, 1973, p. 8. 4ORS $459.820 (1) (emphasis added). the minimum deposit value any marketed beverage container subject to if by reason of its shape or design, or by reason of words or name. Thus, those beverage companies unwilling to relinquish outstanding trademarks and the resultant sales benefits they might confer are forced to post a higher refund -- of at least five cents which adds eighteen cents to the price of a six-pack of beverages, and which may discourage consumers from buying such a comparatively expensive product. All empty bottles and cans are worth money, whether found on a highway or purchased at a store. Dealers must accept any type bottle they sell, regardless of whether or not a consumer purchased a particular container at that store, thus facilitating beverage container return. Not only must a retailer accept empty beverage containers from a consumer if he sells that beverage, but a distributor must accept all containers from a retailer providing they are the kind, size and brand sold by him. Also, the law bans "any metal beverage container so designed and constructed that a part of the container is detachable in opening the container without the aid of a can opener. 118 Legality of the Law In February 1974 the Oregon Supreme Court affirmed the December 17, 1973, opinion of the Oregon Court of Appeals which sustained the Oregon law against challenges that it |