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Volume 25, Issue 1 — January 1995


NOAA's Latest Attempts at Natural Resource Damages Regulation: Simpler . . . But Better?

by Robert F. Copple

Editors' Summary: The debate about the most appropriate procedures and methodologies to conduct natural resource damage assessments (NRDAs) has continued throughout the last decade among agencies and stakeholders. In August 1995, NOAA proposed the most recent set of regulations to govern NRDAs under the Oil Pollution Act. This Article reviews the history of natural resource damages regulations and the 1995 NOAA proposed rule. It concludes that while NOAA has made a valiant effort to respond to stakeholders' concerns and to simplify the NRDA process, the agency has sidestepped the most controversial issues in the NRDA debate, such as the appropriate scientific methodologies and valuation techniques, and to what extent passive-use values should be compensable.

Babbitt v. Sweet Home Chapter of Communities for a Great Oregon: A Clarion Call for Property Rights Advocates

by Beth S. Ginsberg

Editors' Summary: Property rights advocates implicitly complained in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon that a Fish and Wildlife Service regulation that aimed to protect endangered and threatened species by defining "harm" to include habitat modification impinged on their rights as private landowners by asking them to share with the government responsibility for protecting such species. The U.S. Supreme Court upheld the regulation as reasonable given the relevant language of the Endangered Species Act. The reasoning of the Court's majority, concurring, and dissenting opinions mirrors the property rights debate currently before the 104th Congress. The decision will likely impact the debate, serving as the "poster child" for those seeking to reverse what many argue has been successful, bipartisan implementation of the Act. In this Article, the author reviews the Act and the Supreme Court's opinions in Sweet Home, and analyzes the decision's likely impact on the property rights debate as it relates to the Act. The author concludes that the zeal of the 104th Congress will likely overcome the results of the Supreme Court's decision.

Narrowing the Roads of Private Cost Recovery: Recent Developments Limiting the Recovery of Private Response Costs Under CERCLA §107

by Steven F. Baicker-McKee and James M. Singer

Editors' Summary: Despite adding the § 113(f) "contribution" provision to CERCLA in 1986, Congress did not indicate whether the section was meant to supplement private parties' efforts to recover response costs form other potentially responsib parties's efforts to recover response costs form other potentially responsible parties under CERCLA § 107 or was meant to preclude such cost recovery actions. More and more courts that address this issue are requiring plaintiffs to file § 113(f) actions. The differences between the two types of actions are sufficiently significant to render important under which section a party's claim arises.

This Article addresses the differences between the two types of actions and reviews CERCLA's liability scheme and the case law that sets forth the two primary approaches courts have used to address the relationship between § 107 and § 113(f). the authors suggest a straightforward approach for courts to use that reconciles the various CERCLA provisions that the dichotomy affects.

Implied Private Causes of Action and the Recoverability of Damages Under the RCRA Citizen Suit Provision

by John E. Sullivan

Editors' Summary: Property owners often respond to solid and hazardous waste contamination of their properties by cleaning up the contamination and then seeking reimbursement of cleanup costs from responsible parties under federal and state hazardous waste laws. RCRA is one such law; however, RCRA § 7002 does not explicitly provide for recovery of damages. A court faced with a RCRA § 7002 citizen suit to recover cleanup costs must imply a private cause of action for damages. This Article addresses the availability of a private cause of action for damages under RCRA § 7002. The Article first reviews U.S. Supreme Court doctrine on implying private causes of action. It analyzes RCRA's citizen suit provision and its legislative history and reviews case law refusing to imply a private cause of action for damages under § 7002. Next, the Article critiques a Ninth Circuit opinion, KFC Western, Inc. v. Meghrig, that does so imply a cause of action. The Article concludes that Congress did not intend to authorize a private cause of action for damages under RCRA, and that good environmental litigation planning can keep a property owner out of the difficult position of seeking cost recovery under a statute that does not provide such relief.

Restitution Under RCRA §7002(a)(1)(B): The Courts Finally Grant What Congress Authorized

by J. Martin Robertson

Earlier this year in KFC Western, Inc. v. Meghrig,1 the U.S. Court of Appeals for the Ninth Circuit ruled that private parties may obtain restitution of the costs of cleaning up contaminated property under § 7002(a)(1)(B) of the Resource Conservation and Recovery Act (RCRA). The Ninth Circuit's ruling in KFC Western opened the way for private parties to use the RCRA citizen suit provision to recover their costs of investigating, studying, and cleaning up contaminated property from responsible parties. The decision confirmed that § 7002(a)(1)(B) can be a powerful and remarkably effective remedy for private parties to use in shifting the burden of response to parties responsible for contaminating property.

Before the Ninth Circuit's decision in KFC Western, many practitioners thought the only relief that private parties could obtain under § 7002(a)(1)(B) was injunctive relief. The 1993 decisions in Lincoln Properties, Ltd. v. Higgins2 allowed private parties to force responsible parties to respond to contamination — by conducting investigation, study, and cleanup — under § 7002(a)(1)(B). But Lincoln Properties did not address the availability of restitution to private parties under this provision.

Would the Superfund Response Cost Allocation Procedures Considered by the 103d Congress Reduce Transaction Costs?

by George Van Cleve

One of the most prominent issues in the Congressional debate over reauthorization of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund)1 has been how to reduce "transaction costs" while at the same time fairly and expeditiously resolving liability disputes.2 This Dialogue asks: Would the allocation procedures proposed in last year's Superfund reauthorization bills3 meet those sometimes conflicting goals?

The Problem: The Massive Size and Stubborn Causes of Superfund Transaction Costs

CERCLA and the Choice Between Pro Tanto and Proportionate Share Settlement Allocation: Looking to the Supreme Court for Guidance

by J. Wylie Donald

Editors' Summary: The effect of settlements among private parties in CERCLA contribution suits leaves courts with the choice of allocating liability among the nonsettling parties based on either the pro tanto method, which credits nonsettlors with the amount settling parties have paid, or the proportionate share method, which credits nonsettlors with the settlors' equitable share of cleanup costs. District courts have yet to achieve consensus on which method to adopt. The U.S. Supreme Court's recent admiralty case, McDermott, Inc. v. AmClyde, in which the Court chose the proportionate share rule based on fairness considerations, may provide some guidance. After summarizing McDermott and CERCLA case law thus far, this Article analyzes the respective justifications for adopting the pro tanto or proportionate share approach. The Article concludes that although McDermott's reasoning may be instructive, the unique nature of CERCLA litigation may require a different result depending on the circumstances.

Regulation of Radiological and Chemical Carcinogens: Current Steps Toward Risk Harmonization

by David P. Overy and Allan C.B. Richardson

Editors' Summary: Until recently, the regulation of chemical carcinogens and the regulation of radiological carcinogens developed independently. Different governmental agencies operating under different statutory directives were responsible for addressing the dangers from these carcinogens. As a result, different policies and practices were developed. This Article explores these differences and the record on resolving them. It first examines the history of federal regulation of chemical and radiological carcinogens and summarizes EPA's approach to risk assessments for them. It then analyzes the traditional risk management approach for radiation, as exemplified by the recommendations of the International Commission on Radiological Protection (ICRP), and compares this approach to the approaches EPA has taken. Finally, the Article compares the results obtained under these approaches. It concludes that EPA's radiation standards, which in many cases were derived under policies applicable to chemical carcinogens, are, for the most part, consistent with the ICRP's recommendations.

The Right to Trial by Jury in CERCLA Cost-Recovery and Contribution Actions

by Christopher G. Smith

Editors' Summary: Federal district courts are nearly unanimous in holding that the right to trial by jury under the Seventh Amendment to the U.S. Constitution does not apply to CERCLA cost-recovery and contribution actions, because those actions are for equitable restitution rather than legal damages. The author suggests that the district courts have erroneously concluded that these actions seek equitable restitution. The Article begins by discussing the U.S. Supreme Court's Seventh Amendment analysis for determining whether actions brought under federal statutes are legal or equitable. Applying this analysis to CERCLA cost-recovery and contribution actions in concert with long-standing principles of equity, the author concludes that CERCLA litigants have a right to a jury trial, because such actions involve legal rather than equitable issues, and seek legal rather than equitable relief.

A Practical Guide to Writing Environmental Disclosures

by E. Donald Elliott, Matt T. Morley and Harvey L. Pitt

Editors' Summary: An information-sharing arrangement with the U.S. Environmental Protection Agency gives teeth to the Securities and Exchange Commission's warning that companies that do not satisfy environmental disclosure requirements will be subject to enforcement actions. This Article provides companies a framework from which they can develop a strategy to meet those requirements. After briefly reviewing the relevant law, regulations, and guidance in this area, the authors offer insight into crafting and executing an effective environmental disclosure strategy.