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Issue

Volume 25, Issue 1 — January 1995

Articles

Fitting the Environmental Piece Into the Maastricht Puzzle

by Marissa A. Perrone

Editors' Summary: Under the Maastricht Treaty, the nations that are members of the European Union (EU) together must develop common European environmental policies. Toward this end, the European Commission has proposed EU-wide environmental laws that are meant to harmonize the various and diverging environmental laws and policies of EU member states. The laws attempt to overcome the various trade, environmental, and sovereignty concerns of member states that are obstacles to environmental unification. To date, these laws exist in essentially two forms: Mandatory and voluntary. This Article attempts to discern the optimal form for such laws, in light of the expressed concerns of member states and the disciplines the General Agreement on Tariffs and Trade (GATT), including the GATT Agreement on Technical Barriers to Trade, imposes on such international laws. This Article discusses the mandatory EU Packaging and Packaging Waste Directive and the voluntary Eco-Management and Audit Scheme Regulation.

To Relieve Unfunded Mandates and Enhance Local Autonomy: Enact a Municipal Empowerment Act

by Peter Lehner

It is generally the responsibility of cities and other local governments — not states or the federal government — to provide residents with essential services such as sewage treatment, garbage disposal, drainage, and drinking water. Provision of these services generally dates back hundreds of years and is a function of municipalities' role in protecting public health and averting nuisances.1 Today, however, the federal government often regulates delivery of these services, setting uniform baseline standards to protect public health and the interstate environment and avoid excessive interstate competition to attract businesses by relaxing standards.

Federal standards can be costly, and local governments have objected to the imposition of "unfunded federal mandates." They have also objected to federal control and the resulting lack of local autonomy. Too often, however, these cries against unfunded mandates and for local control have become calls for reducing federal standards. Unfortunately, such reductions would likely relax protections against environmental pollution and reduce the quality of life for the very citizens that local governments are charged to protect.

Rebuttal: The Mixture Rule and the Environmental Code

by Van Carson, Philip Schillawski and Mark Shere

The U.S. Environmental Protection Agency's (EPA's) "mixture rule for hazardous waste was vacated by the U.S. Court of Appeals for the D.C. Circuit in Shell Oil Co. v. U.S. Environmental Protection Agency.1 The case took 12 years to litigate. The organizations involved in the litigation included EPA, environmental groups, and a large portion of American industry. Throughout the litigation, these diverse groups agreed on one thing — that the mixture rule has significant consequences for whether waste mixtures are considered legally "hazardous."2

In his recent Comment, EPA's Mixture Rule: Why the Fuss?,3 and in his response to this rebuttal in this issue,4 James Satterfield argues that the Shell Oil decision and the mixture rule mean nothing in practical terms. According to Satterfield, the decision was irrelevant because it vacated only the written rule. The case did not touch the unwritten mixture "principle." Satterfield argues that under this principle, every waste and waste mixture that was considered hazardous before the Shell Oil decision is still considered hazardous today. Satterfield claims that this unwritten principle is a "light" to "guide[] the legal traveller through even the darkest tunnel of regulatory analysis."5

Attorneys Fees Awards Under RCRA §7002(e): The Corporate "Prevailing Party"

by Janet S. Kole

None of the citizen suit provisions of federal environmental laws bars a prevailing, for-profit corporate litigant from obtaining attorneys fees awards under those statutes' fee-shifting mechanisms. This is true even when a corporation brings the action to vindicate its own pecuniary interests rather than to benefit the public. In FallowfieldDevelopment Corp. v. Strunk,1 however, a district court denied attorneys fees to prevailing corporate plaintiffs in a citizen suit under the Resource Conservation and Recovery Act CRCRA).2 The court held that only nonprofit citizen groups suing under RCRA § 7002(a)(1)(B)3 may recover attorneys fees under § 7002(e)4 for acting as "private attorneys general," because in so doing they are seeking to vindicate the general public's interest in preventing "imminent and substantial endangerment to health or the environment."5 The district court reasoned that because the Fallowfield corporations were seeking to vindicate their own pecuniary interests rather than to benefit the public, they were not acting as private attorneys general and therefore could not recover attorneys fees.6 The author of this Dialogue demonstrates that the Fallowfield decision is contrary to RCRA's plain language and the case law construing analogous fee-shifting provisions in other federal environmental statutes, as well as analogous U.S. Supreme Court jurisprudence construing the fee-shifting provision in the Civil Rights Act.7

This Dialogue begins with an analysis of the U.S. Supreme Court's decision in Alyeska Pipeline Service Co. v. Wilderness Society,8 which halted the federal judiciary's equitable practice of awarding attorneys fees to prevailing parties under the private attorneys general doctrine, and the congressional response to that decision. It then turns to an examination of the case law construing federal environmental statutes' citizen suit and fee-shifting provisions, while also reviewing analogous Supreme Court jurisprudence interpreting the Civil Rights Act's fee-shifting provision. Next, it analyzes the Fallowfield court's decision and discusses why the decision contravenes RCRA's plain language. Lastly, it points out the fallacies in the court's rationale and demonstrates that the court wrongly denied the Fallowfield plaintiffs recovery of their attorneys fees. A brief history of the private attorneys general doctrine and shifting of attorneys fees is necessary to place the Fallowfield decision in context.

EPA's Continuing Jurisdiction Regulation: A Response to The Mixture Rule and the Environmental Code

by James E. Satterfield

Can listed hazardous waste escape the requirements of Subtitle C1 of the Resource Conservation and Recovery Act (RCRA),2 without being delisted, simply by being mixed with other material? Under the mixture rule that the U.S. Environmental Protection Agency (EPA) issued in 1980,3 the answer is no. But the U.S. Court of Appeals for the District of Columbia invalidated the mixture rule in Shell Oil Co. v. U.S. Environmental Protection Agency,4 and the U.S. Court of Appeals for the Eighth Circuit held that Shell Oil applies retroactively.5 Although EPA reissued the mixture rule in 1992,6 and the D.C. Circuit upheld the reissued rule,7 the question remains: Were listed hazardous waste mixtures created before 1992 subject to Subtitle C?

In their Dialogue, Rebuttal: The Mixture Rule and the Environmental Code,8 Van Carson, Philip Schillawski, and Mark Shere argue that Subtitle C does not apply to these mixtures. In response to the Comment EPA's Mixture Rule: Why the Fuss?,9 which appeared in the December 1994 issue of ELR — The Environmental Law Reporter, they say that EPA cannot, based on unwritten principles, require that such mixtures be managed as hazardous waste. To subject such mixtures to Subtitle C, they say, would require the management of material that is not dangerous.

Developments in Environmental Law: What to Watch

by Hon. James L. Oakes

Has environmental law come of age? I think the answer, overall, may be yes. In many senses it has done so; we have made a transition from classic judicial review of administrative action in which environmental advocates such as David Sive, in cases such as the Scenic Hudson or Storm King Mountain case,1 more or less successfully sought to expand and deepen that review. The purpose was essentially to have the concept of what was in the "public interest" broadened to include environmental matters.

The litigation thus engendered — following upon similar developments in the civil rights movement — served to help raise the public consciousness, as did a whole lot of publicized events, such as the oil spill at Santa Barbara and the Cuyahoga River's bursting into flames, and, perhaps most important, some powerfully persuasive penmanship, commencing of course with Rachel Carson's Silent Spring — appearing first excerpted in the New Yorker magazine in 1962 and focusing on the poisoning of the Earth by chemical pesticides. Earth Day, April 22, 1970, was perhaps a watershed in terms of citizen response.

Stigma Damages in Environmental Cases: Developing Issues and Implications for Industrial and Commercial Real Estate Transactions

by Andrew N. Davis and Santo Longo

Editors' Summary: Environmental litigation is witnessing an increasing number of claims for "stigma" damages, which arise when the value of real property decreases due to a public perception that the property is contaminated or threatened with contamination. In the past, courts generally eschewed awarding such damages in the absence of other actionable harm. Recent decisions, however, reveal that courts have begun to recognize stigma damages in new contexts. After reviewing court decisions forming the basis of modern stigma damage claims, the authors discuss recent cases in which stigma damages were awarded in the absence of other actionable harm. The authors conclude that in light of these decisions, the number of stigma damage claims is likely to rise, but that federal and state environmental initiatives may relieve some of the stigma concerns associated with historically contaminated "brownfields."

The Environment and the Contract

by John Pendergrass, Paul Locke, and James McElfish

The 104th Congress opened with great attention to the Republican "Contract With America" (the Contract), which the House leadership promised would pass the House of Representatives within the first 100 days. The Contract was first fleshed-out on January 4, 1995, when 10 bills were introduced.1 After a flurry of legislative activity, rushed hearings, and abbreviated floor debate, the House fulfilled its promise to act on all 10 bills, finishing more than one week ahead of schedule.2

This Dialogue focuses on four parts of the Contract that are particularly relevant to environmental law and policy. All four were addressed by the Job Creation and Wage Enhancement Act, introduced as H.R. 9.3 They are: (1) limitations on congressional imposition of "unfunded mandates" on states and local governments;4 (2) statutory requirements for risk assessment and cost-benefit analysis; (3) "regulatory reform"; and (4) federal payments to property owners affected by regulation. For each of these four parts, the Dialogue describes the bill's original provisions, discusses the legislation's development in the House, and summarizes related developments in the Senate and executive branch.5

International Corporate Environmental Compliance and Auditing Programs

by Ridgway M. Hall Jr. and Kristine A. Tockman

Editors' Summary: As environmental laws throughout the world impose stricter requirements on corporations, international organizations are increasingly emphasizing the importance of corporate environmental auditing programs. This Article examines the principal environmental auditing programs applicable to corporations doing business in Europe. First, it discusses the European Union's Eco-Management and Audit Scheme. Next, it discusses environmental management standards issued by the International Organization for Standardization and the British Standards Institute. Finally, it examines the trade implications of environmental provisions in U.N. programs and international agreements such as the General Agreement on Tariffs and Trade and the North American Free Trade Agreement.

The Commerce Clause and the Limits of Congressional Authority to Regulate the Environment

by John P. Dwyer

Editors' Summary: In United States v. Lopez, the U.S. Supreme Court for the first time in 62 years struck down a federal statute on grounds that it violated the Commerce Clause of the U.S. Constitution. The Gun-Free School Zones Act of 1990 was unconstitutional because it intruded into an area of traditional state concern and did not regulate a commercial activity, either directly or as part of a pervasive regulatory scheme. Although United States v. Lopez involved only a discreet, isolated federal statute, the case may well have significant reverberations throughout all areas of federal law, including environmental law. The author examines in detail the majority, concurring, and dissenting opinions in the case, and then analyzes how the case is likely to affect federal environmental legislation. He concludes that while United States v. Lopez may signal judicial readiness to apply stricter scrutiny to federal legislation, most federal environmental laws — with their close ties to commerce — should still survive constitutional challenges.