had been no compliance with the National Environmental Policy Act. Nevertheless, the court found and held that there had been no such compliance.

After reviewing the transcript of the scientific conference at which oceanographers and marine biologists were extensively briefed by Army experts, EDF sued to enjoin the Army from disposing of the nerve gas agents GB and VX in 16,000 feet of ocean water off the coast of Florida. EDF was convinced that the scientists were correct in their contention that the depth of the site created a substantial danger that the nerve agent containers would implode, causing a sudden and massive release of the highly toxic nerve gas agents. EDF conferred extensively with one of the country's best organophosphate experts in determining the toxicity of the nerve gas agents before it decided to bring suit. The validity of EDF's scientific position was sustained by the judge, who agreed that the site was undesirable and urgently requested the Army to select a more shallow site, a request which was not heeded by the Army. We are seeking now to determine what the effects of the nerve agent disposal was on the ecology of the area involved. No public agency, of which we are aware, was about to bring these important scientific findings regarding both the danger of implosion, the extreme high toxicity of the nerve gas agents, and also the abundance of important marine life at great ocean depths, to the attention of the American public. In short, the litigation educated the American public to the hazards of ocean dumping to important marine natural resources and may have been instrumental in obtaining a committal from the Army that no further ocean disposal of such toxic agents would be undertaken.

I wish to allude to other activities presently being contemplated by EDF. With respect to the Pyramid Lake controversy, we have assured the council for the Indian tribe that will be adversely effected by the continued destruction of the lake that we will provide scientific evidence on the questions involved in that litigation. We are examining the legal aspects of a proposed vacation home development along the shore of northern California. According to expert geological opinion, the project will be built on rock which is highly unstable and subject to landslides and the sewage from the project will necessarily cause substantial pollution of the coast waterways and of the beach, itself, in that area. We are investigating the pollution caused by a cement plant for many years, where the regulatory agency has had ample opportunity to take corrective action but has consistently failed or refused to do so. We are attempting to determine whether or not a proposed pump storage plant, which would innundate a beautiful valley in Virginia, could not be just as readily located elsewhere or, in the alternative, whether or not a nuclear plant in another vicinity would not have less environmental impact and still be economically feasible. We have been asked to determine whether or not a change in the regulatory rule regarding the injection of the hormone DES, a known carcinogen, into cattle will present a threat to the public health. We are reviewing the predator control program of the U.S. Department of the Interior to determine how it can be modified or eliminated so as to prevent the widespread destruction it causes in nontarget species, including the cougar, and the golden, and bald eagles. EDF retained a chemist and a physicist for a 3-month study this summer of the water quality problems of Long Island. That study included the contamination of ground

water supplies, the lowering of the ground water level by discharging sewage effluent into the sound, and the pollution of the sound caused by existing practices. We also are attempting to evaluate what would be the best possible use of the water supplies of Long Island. We will submit our findings to the relevant public agencies.

EDF is also concerned with the quality of the Nation's Capital. We are investigation the practice of Montgomery County of dumping its solid waste in the vicinity of Rock Creek Park with resulting contamination of the creek, itself. We are seeking to prevent an expansion of this practice, as presently proposed, and will attempt to suggest alternative methods of solid waste disposal to the county.

EDF has also undertaken a compaign to eliminate serious aviational safety hazard arising from environmental pollution. Presently, no distinction is being made between smoke and haze in the vicinity of airports. Both impede visibility, but smoke is defined as man made, while haze occurs as a result of natural conditions. It is important that the same contribution to the visibility problem be isolated as a first step in determining whether or not it is so serious in a given instance that it ought to be abated.

EDF is able to undertake litigation well supported by expert scientific opinion because it has developed a Scientists Advisory Committee composed of over 250 scientists of various disciplines, including some of the country's most outstanding environmental scientists. The understanding with these scientists is that while EDF will pay their travel and other related expenses, EDF does not pay them fees as witnesses or as consultants. It is only where such scientists are not available that EDF, has, on two occasions, found it necessary to pay any such fees. The rationale for this understanding is that citizen groups that EDF is working with are not financially able by themselves to undertake litigation necessary to prevent environmental degradation. EDF wants such activity to be as effective and widespread as possible, so we attempt to obtain experts without fee.

For essentially the same reason, EDF generally refuses to intervene directly on behalf of citizen groups which have the financial resources with which to conduct environmental litigation challenging projects with which they are particularly concerned. For example, I was recently contacted by a group from an extremely wealthy suburb of Chicago who wish to prevent the construction of a sewage treatment plant which they feel would be deleterious to their neighborhood. While I think that the group has a meritorious case, it is essential that EDF reserve its limited resources for helping those who need it most. Accordingly, I advised that group that EDF would not become involved in their litigation.

As a matter of public policy, decisions having an impact on our environment ought to be based upon the most objective scientific evidence available. Yet, tax-exempt scientific and educational organizations are not generally permitted to submit their opinions to legislative bodies without jeopardizing their tax-exempt status. This means that generally legislative bodies receive primarily the opinions of the agency in charge of a proposed project and of the industry affected thereby. Public relations activities are extremely expensive; industry advertisements clearly outweigh those sponsored by public interest groups. Carefully considered litigation, however, where opinion is tested in

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the crucible of cross-examination presents a confrontation of opposing views which educates the public as well as those who must make the decisions concerning such matters as to the true facts. Under the circumstances, then, to deny tax-exempt scientific and educational organizations the ability to present expert opinion before the courts of law and administrative agencies, where fair rules of evidence are applicable, will be to prevent them from presenting their scientific findings in the forum which affords them their best practical opportunity to promote the public interest. To be sure, such organizations undertake formal educational activities and they are important. For example, both Mr. Cameron and myself lecture law student groups and other groups on environmental law and environmental problems. We submit, however, that such activities have much less educational impact than an environmental lawsuit on the public generally.

I would be pleased to testify in person on the subject of EDF's activities and its tax-exempt status. Thank you for the opportunity to submit this statement.

1. The name of the corporation shall be Environmental Defense Fund, Inc., hereafter referred to as EDF.

2. The objectives of EDF shall include the following:

(a) To encourage and support the wise use of natural

resources;

(b) To pursue and to encourage others to pursue research relevant to the wise use of natural resources;

(c) To promote interdisciplinary collaboration among scientists toward the advancement of environmental science;

(d) To effect a joining of the best scientific findings with the most appropriate social action discovered by the social sciences and legal theory in order that practical decisions shall be made which shall best promote a quality environment;

(e) To encourage public education on the problems of maintaining a salubrious environment;

(f) To prevent, or to prevent the continuance of, environmental degradation by taking whatever legal measures are necessary to provide scientists fair and impartial forums in which their scientific findings may be presented objectively to their fellow citizens and tested through cross-examination;

(g) To receive and administer funds for scientific, educational, and charitable purposes;

(h) To conduct and disseminate the results of research by all means not in violation of the laws of the United States or the State of New York or otherwise inconsistent with the provisions of the EDF certificate of incorporation in furtherance of the wise use of natural resources.

SIERRA CLUB, Mills Tower, San Francisco.

Re public interest law firms Internal Revenue Service study.

Hon. GAYLORD NELSON,

Senate Office Building,
Washington, D.C.

DEAR SENATOR NELSON: This letter is written on behalf of the Sierra Club and the Sierra Club Legal Defense Fund, Inc. to express the concern of both organizations over the apparent thrust of the Internal Revenue Service's October 1970 actions concerning "public interest law firms." We understand that hearings are planned in the Senate and wish to notify you by this letter of our desire to testify.

Sierra Club presently has in excess of 100,000 members in all 50 States and has been plaintiff in over 50 environmental cases in the last 2 years. These cases have resulted in preventing destruction of park and forest values and have helped in numerous instances to forestall further deterioration of the environment. Sierra Club is presently an IRC 501 (c) (4) "civic league" (i.e. with tax exemption, but donors gifts are not tax deductible) and is apparently not itself being studied by the Internal Revenue Service in its review of public interest law firms. It is nevertheless vitally interested and concerned with the IRS action. Sierra Club has been, and intends to continue to be, represented by public interest law firms directly under attack by the IRS action. For instance Sierra Club is a party to a suit seeking to ban or limit DDT and other persistent pesticides (Environmental Defense Fund and Sierra Club et al. v. Hardin et al., U.S. Circuit Court of Appeals for the District of Columbia No. 23813) and is represented in that action by James Moorman of the Center for Law and Social Policy. We understand the center to be a 501(c)(3) “public interest law firm" within the meaning of the IRS press release of October 9, 1970.

Sierra Club has also permitted use of its name by the trustees and founders of the Sierra Club Legal Defense Fund, Inc., which is one of the public interest law firms whose applications for 501 (c) (3) exemptions are now pending before the IRS in Washington, D.C. It has a distinguished board of trustees including ex-Senator Thomas Kuchel, Dean Phillip Neal of the University of Chicago Law School, and Donald Carmichael of the University of Colorado Law School. It has obtained tax exemption in California but its application to the IRS for 501(c)(3) status has been pending for over 6 months and its continued existence is seriously in doubt because of the inaction by the IRS to date on its application for 501 (c) (3) status and because of the IRS "study" of October 1970.

Environmental litigation is expensive. The defendants in typical actions are either governmental agencies with counsel provided by the public, or are corporate polluters whose expenses in defending such suits are tax deductible as legal fees and costs of doing business. The plaintiffs, typically volunteer organizations like the Sierra Club,

are underfinanced and have had to depend either upon volunteer counsel or more recently on representation by public interest law firms who are able to attract financial support from 501(c)(3) foundations and public spirited individuals. Without tax exempt status and deductibility provided by 501(c)(3) rulings these public interest law firms will not be able to survive. Environmental plaintiffs will be forced to rely largely on volunteer counsel and the cause of environmental protection will suffer a sad loss.

There should be no doubt under the Internal Revenue Code that litigation to achieve an educational or charitable goal is a perfectly appropriate action for a 501(c)(3) organization and should not be restricted by the IRS. As you are no doubt aware this type of ligitation has been carried on by the ACLU and the NAACP for many years. Litigation as an appropriate activity for a 501(c)(3) organization has never been questioned until the IRS action of October 1970. Nor should the IRS be allowed to discriminate among 501 (c) (3) organizations by setting rules which would allow some to litigate, but others not. For the IRS to do so would probably violate the first amendment and would obviously be unequal enforcement of the law.

It is also important to note that 501(c)(3) organizations can devote only an "insubstantial" portion of their efforts to legislative activity. If the IRS now takes the right to litigate away from 501(c)(3) organizations, these valuable public spirited charities will effectively be prevented from redressing grievances by application to either the legislative or judicial branches of Government. Their only recourse will be to the executive department whose very actions are usually those in question.

America needs the prod of environmental litigation to keep the important environmental momentum developed in the last year. We are pleased Senate hearings are planned and we request the opportunity to elaborate on the views expressed in this letter by testimony on behalf of the Sierra Club and the Sierra Club Legal Defense Fund, Inc.

Very truly yours,

H. DONALD HARRIS, Cochairman, Sierra Club Legal Committee.