596 LEGAL ASPECTS OF THE ENVIRONMENT
5) So much of the functions of the Council on
Environmental Quality under section 204(5) of the
National Environmental Policy Act of 1969...as
pertains to ecological systems.
6) The functions of the Atomic Energy Commission
under the Atomic Energy Act of 1954, as amended,
administered through its Division of Radiation
Protection Standards, to the extent that such func-
tions of the Commission consist of establishing
generally applicable environmental standards for
the protection of the general environment from
radioactive exposures or levels, or concentrations
of quantities of radioactive material, in the gen-
eral environment outside the boundaries of loca-
tions under the control of persons possessing or
using radioactive material.
7) All functions of the Federal Radiation Council
(42 USC 2021 (h)).
8) (i) The functions of the Secretary of Agriculture
and the Department of Agriculture under the
Federal Insecticide, Fungicide, and Rodenticide
Act, as amended (7 USC 135–135k), (ii) the
functions of the Secretary of Agriculture and
the Department of Agriculture under sec-
tion 408(1) of the Federal Food, Drug and
Cosmetic Act, as amended (21 USC 346a(1)),
and (iii) the functions vested by law in the
Secretary of Agriculture and the Department
of Agriculture which are administered through
the Environmental Quality Branch of the
Plant Protection Division of the Agricultural
Research Service.
9) So much of the functions of the transfer of officers
and agencies referred to in or affected by the fore-
going provisions of this section as in incidental to
for necessary of the performance by or under the
Administrator of the functions transferred by those
provisions or relates primarily to those functions.
The transfers to the Administrator made by this
section shall be deemed to include the transfer of
(1) authority, provided by law, to prescribe regula-
tions relating primarily to the transferred functions,
and (2) the functions vested in the Secretary of the
Interior and the Secretary of Health, Education,
and Welfare by section 169(d)(1)(B) and (3) of
the Internal Revenue Code of 1954 (as enacted by
section 704 of the Tax Reform Act of 1969,...);
but shall be deemed to exclude the transfer of
the functions of the Bureau of Reclamation under
section 3(b)(1) of the Water Pollution Control Act
(33 USC 446a(b)(1)).b) There are hereby transferred to the Agency:1) From the Department of the Interior, (i) the Water
Pollution Control Advisory Board (33 USC466t), together with its functions, and (ii) the
hearing boards provided for in sections 10(c)(4)
and 10(f) of the Federal Water Pollution Control
Act, as amended (33 USC 446g(c)(4); 446g(f)).
The functions of the Secretary of the Interior with
respect to being or designating the Chairman of
the Water Pollution Control Advisory Board are
hereby transferred to the Administrator.
2) From the Department of Health, Education, and
Welfare, the Air Quality Advisory Board (42 USC
1857c), together with its functions. The func-
tions of the Secretary of Health, Education and
Welfare with respect to being a member of the
Chairman of that Board are hereby transferred to
the Administrator.Sec 6. Abolitions (a) Subject to the provisions of this reorga-
nization plan, the following, exclusive of any functions, are
hereby abolished:1) The Federal Water Quality Administration in the
Department of the Interior (33 USC 446–1).
2) The Federal Radiation Council (.. ., 42 USC
2021(h)).Among the procedural landmark established in the Project
Rulison litigation was the right of the plaintiff COSCC to
take the depositions of experts prior to the determination
of the defendants motion for summary judgment to dismiss
the complaint. COSCC argued that the motion for summary
judgment could not be decided without considering the rel-
evant testimony of certain experts under the control of the
defendants and the Court directed the defendants to produce
those experts for pre-trial oral examination. The information
obtained in those pre-trial examinations established the need
for a full hearing on the merits as a condition precedent to
determination of any AEC motion for summary judgment
dismissing the complaint.Sovereign Immunity and Popular SovereigntyThroughout the relatively short history of environmental liti-
gation involving agencies of government, sovereign immu-
nity has been raised as a defense by the government agency
asserting that the action is a suit against the sovereign United
States of America brought without the consent of congress
and that the relief sought would invade the powers of officers
of the executive branch of the Federal Government to whom
the actions complained of had been delegated. This defense
is usually buttressed by an appeal for judicial restraint under
the doctrine of Separation of Powers.
The general doctrine of the immunity of the United States
from suit without consent of Congress is a rule propounded in
a diction by United States Supreme Court Chief Justice John
Marshall in the case of Cohens v. Virginia [19 US (6 Wheat)C012_001_r03.indd 596C012_001_r03.indd 596 11/18/2005 10:33:19 AM11/18/2005 10:33:19 AM