Law Commons^™

Editors' Note, Rachel Keylon, Meghen Sullivan

Sustainable Development Law & Policy

For more than two decades, the Sustainable Development Law and Policy Brief (SDLP) has published works analyzing emerging legal and policy issues within the fields of environmental, energy, sustainable development, and natural resources law. SDLP has also prioritized making space for law students in the conversation. We are honored to continue this tradition in Volume XXIII.

Resolving "Resolved": Covenants Not To Sue And The Availability Of Cercla Contribution Actions, Jacob Podell

Michigan Law Review

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)—as part of its dual goals of cleaning up hazardous-waste sites and ensuring that the polluter pays for that cleanup—gives private parties two mutually exclusive causes of action: cost recovery and contribution. Contribution is available in limited circumstances, including if the party has “resolved” its liability with the government. But CERCLA does not define this operative term. Federal courts are split over how the structure of a settlement resolves liability. Several courts follow Bernstein v. Bankert, which held that any conditions precedent and nonadmissions of liability strongly suggest that a party …

Fmc Corp. V. Shoshone-Bannock Tribes, Seth T. Bonilla

Public Land & Resources Law Review

In 1998, FMC Corporation agreed to submit to the Shoshone-Bannock Tribes’ permitting processes, including the payment of fees, for clean-up work required as part of consent decree negotiations with the Environmental Protection Agency. Then, in 2002, FMC refused to pay the Tribes under a permitting agreement entered into by both parties, even though the company continued to store hazardous waste on land within the Shoshone-Bannock Fort Hall Reservation in Idaho. FMC challenged the Tribes’ authority to enforce the $1.5 million permitting fees first in tribal court and later challenged the Tribes’ authority to exercise civil regulatory and adjudicatory jurisdiction over …

Opening The Gates Of Cow Palace: Regulating Runoff Manure As A Hazardous Waste Under Rcra, Reed J. Mccalib

Michigan Law Review

In 2015, a federal court held for the first time that the Environmental Protection Agency (“EPA”) may regulate runoff manure as a “solid waste” under the Resource Conservation and Recovery Act (“RCRA”). The holding of Community Ass’n for Restoration of the Environment, Inc. v. Cow Palace, LLC opened the gates to regulation of farms under the nation’s primary toxic waste statute. This Comment argues that, once classified as a “solid waste,” runoff manure fits RCRA’s definition of “hazardous waste” as well. This reclassification would expand EPA’s authority to monitor and respond to the nation’s tragically common groundwater-contamination emergencies.

Superfund Chaos Theory: What Happens When The Lower Federal Courts Don't Follow The Supreme Court, Steven Ferrey

Michigan Journal of Environmental & Administrative Law

There is legal chaos in the national Superfund. The Supreme Court reversed decisions of eleven federal circuit courts in United States v. Atlantic Research Corp. There is no instance in modern Supreme Court history where the Court reversed every federal circuit court in the country, as it did in Atlantic Research. The Supreme Court’s reversal was through a unanimous decision. This was extraordinary: It not only reversed the entire legal interpretation of one of America’s most critical statutes, but also re-allocated billions of dollars among private parties.

The Supreme Court, when it rendered its decision, seemed to be rectifying a …

Interpreting The Pollution Exclusion Clause In The Comprehensive General Liability Policy - Ohio's Next Step, W. Roger Fry, Jonathan P. Saxton

Akron Law Review

Our purpose here is to analyze the courts' treatment of the pollution exclusion clause. From the context of insurance policy interpretation, decisions regarding the exclusion will be reviewed and placed in a national perspective. The Ohio decisions will be examined against the backdrop of current trends and the national consensus.

We conclude, for the reasons which follow, that the Ohio Supreme Court, when presented with the issue, should not adopt the findings of the Ohio appellate courts in interpreting the pollution exclusion clause, but should recognize that those decisions were wrong and follow the law which finds sudden and accidental …

Nimby: Not In Mexico's Back Yard? A Case For Recognition Of A Human Right To Healthy Enviroment In The American States, Scott D. Cahalan

Georgia Journal of International & Comparative Law

No abstract provided.

European Economic Communities - Environmental Policy - Legal Basis And International Implications Of Council Regulation On The Supervision And Control Of Shipments Of Hazardous Waste, Kurt M. Rozelsky

Georgia Journal of International & Comparative Law

No abstract provided.

The Basel Convention And The Need For United States Implementation, Rebecca A. Kirby

Georgia Journal of International & Comparative Law

No abstract provided.

Application Of The Remedial Purpose Canon To Cercla Successor Liability Issues After United States V. Bestfoods: Why State Corporate Law Should Be Applied In Circuits Encompassing Substantial Continuity Exception States, Lea J. Heffernan

Northern Illinois University Law Review

Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in 1980 to address the growing problem of improper hazardous waste disposal. Due to the rushed enactment of CERCLA, however, Congress failed to fully and explicitly identify the standards that courts should invoke to determine issues of liability. Despite this ambiguity, the United States' federal courts have unanimously determined that successor corporations should be held liable under CERCLA; however, the level of liability that courts should impose on those successor corporations is still under debate. Several United States federal courts remain split with regard to whether state corporate law …

Does Cercla Preempt New York State Law Claims For Cost Recovery And Contribution?, Kristi Weiner

NYLS Law Review

No abstract provided.

Reassessing The History Of U.S. Hazardous Waste Disposal Policy - Problem Definition, Expert Knowledge And Agenda-Setting, Halina Szejnwald Brown, Brian J. Cook, Robert Krueger, Shatkin

RISK: Health, Safety & Environment (1990-2002)

The authors show that in the 1940's technical consensus began to develop about the effects of land-based waste disposal on groundwater degradation. They go on to explain why this understanding was only slowly reflected in federal legislation.

Review Of: Peter K. Lagoy, Risk Assessment: Principles And Applications For Hazardous Waste And Related Sites (Noyes Publications 1994), Adam K. Sacharoff

RISK: Health, Safety & Environment (1990-2002)

Review of the book: Peter K. LaGoy, Risk Assessment: Principles and Applications for Hazardous Waste and Related Sites (Noyes Publications 1994). Appendices, figures, index, notes, preface, references, tables. LC 94-2510; ISBN 0-8155-1349-6. [260 pp. Cloth $48.00. 120 Mill Road, Park Ridge NJ 07656.]

Promoting And Managing Genome Innovation, Suzanne A. Sprunger, Gianna Julian-Arnold

RISK: Health, Safety & Environment (1990-2002)

An introduction to the symposium, Promoting and Managing Genome Innovation held October 1995. The conference was organized by Professor Thomas G. Field, Jr. and Gianna Julian-Arnold. The conference was funded in part by the Ethical, Legal and Social Issues component of the D.O.E. Human Genome Program; Nixon, Hargrave, Devans & Doyle L.L.P., Rochester, N.Y.; and Human Genome Sciences.

The Maquiladora Industry And Environmental Degradation In The United States-Mexico Borderlands Symposium - The Environment And The United States-Mexico Border., Edward J. Williams

St. Mary's Law Journal

Periods of rapid industrial growth and environmental degradation in the United States-Mexico Borderlands have historically coincided with negative shifts in Mexico’s economy. The Mexican economic crisis of 1982 sparked burgeoning growth in the maquiladora industry, with plants in the Borderlands increasing at a rate of fifteen percent per year. Due to the Mexican economic crisis of the mid-1990s, renewed industrial expansion and environmental degradation is once again expected. The maquiladora program is frequently used to identify cooperative industrial efforts between the United States and Mexico. The term refers to an assembly process in which twin plants operate on opposite sides …

Present Risk, Future Risk Or No Risk - Measuring And Predicting Perceptions Of Health Risks Of A Hazardous Waste Landfill, William K. Hallman, Abraham H. Wandersman

RISK: Health, Safety & Environment (1990-2002)

Given that perceived risk is multidimensional, the authors seek better understanding by focusing on health risks and, more particularly, on their temporality. In this way, they attempt to measure more meaningfully psychological influences on risk perceptions.

The International Effort To Control The Transboundary Movement Of Hazardous Waste: The Basel And Bamako Conventions, Daniel Jaffe

ILSA Journal of International & Comparative Law

In 1986, a ship named the Khian Sea set sail from Philadelphia carrying nearly 14,000 tons of toxic incinerator ash.' The ship was unable to dispose of the ash at her first destination, the Bahamian port of Ocean Cay. The ship then went to Honduras, Panama, and Guinea-Bisseau, only to be rejected.'

Hazardous Waste Exportation: The Global Manifestation Of Environmental Racism, Hugh J. Marbury

Vanderbilt Journal of Transnational Law

During the last decade, the United Nations and other international organizations have been struggling with the issue of hazardous waste exportation to developing countries. At the same time, the United States has been grappling with environmental racism. However, critics of both hazardous waste exportation and environmental racism have overlooked their similarities, namely, that hazardous waste exportation and environmental racism place a disproportionate burden on the same classes of people, the poor and minorities. The exportation of hazardous waste to developing countries is essentially environmental racism on an international scale.

This Note briefly explains the history and economic motivations behind hazardous …

The Commerce Clause Quartet, Martin A. Schwartz

Touro Law Review

No abstract provided.

The Case Against Intermediate Owner Liability Under Cercla For Passive Migration Of Hazardous Waste, Robert L. Bronston

Michigan Law Review

This Note argues that Congress intended disposal to have an active meaning and therefore that courts should not hold prior intermediate owners liable for the passive migration of hazardous waste under section 107(a)(2). Part I examines CERCLA's definition of disposal. This Part concludes that the language of the definition, though somewhat ambiguous, supports the active defuiition. Part II considers the history of both CERCLA and the Resource Conservation and Recovery Act (RCRA), which CERCLA amended, in order to determine whether Congress intended to require affirmative conduct on the part of intermediate owners as a prerequisite to liability. Part II …

Denying Private Attorney Fee Recovery Under Cercla: Bad Law And Bad Policy, Karen M. Mcgaffey

Seattle University Law Review

This Article argues that the Ninth Circuit decision in Stanton Road was wrong. Section II of this Article describes the majority and dissenting opinions in Stanton Road. Section III argues that the majority misread Supreme Court precedent, leading it to adopt an excessively formalistic approach to statutory construction. It argues that the majority should have used traditional approaches to statutory construction and that those approaches would have produced a different result. Finally, the Article concludes by arguing that the Ninth Circuit's decision distorts the intent of Congress in enacting CERCLA and hinders private efforts to clean up hazardous waste.

Conservation And Natural Resources Waste Management: Creation Of A State Superfund To Help Fund The Cost Of Hazardous Waste Site Cleanup In Georgia, Sarah L. Inderbitzin

Georgia State University Law Review

The Act creates the Hazardous Waste Trust Fund with monies collected from fees on generators and importers of hazardous and solid waste. The fund is to be used for the cleanup of hazardous waste sites. The Act also identifies categories of persons jointly, severally, and strictly liable to the state for costs incurred by the state in the cleanup. Those persons are also liable for civil and punitive damages which will help fund the Trust. The Act also provides certain exceptions to liability. Finally, the Act calls for identification and listing of hazardous waste sites in Georgia.

Remedying Environmental Racism, Rachel D. Godsil

Michigan Law Review

This Note addresses the equity issues that arise in the placement of commercial hazardous waste facilities. Currently, minorities are shouldering an unequal share of the burdens of hazardous waste16 while the benefits of production that results in hazardous waste are dispersed throughout society. Studies demonstrate that poor whites are overburdened as well. While inequitable distribution of wastesites along class lines is troubling and deserving of attention, this Note focuses specifically on the burdens facing racial minorities.

This Note contends that all races should share equitably the burdens and risks of hazardous waste facilities. Part I documents the disproportionate burden of …

Easment Holder Liability Under Cercla: The Right Way To Deal With Rights-Of-Way, Jill D. Neiman

Michigan Law Review

Responding to growing public concern about the accumulation of toxic wastes, Congress in 1980 passed the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). CERCLA authorizes federal action to clean up, or to require others to clean up, leaking hazardous waste sites. Congress placed the financial burden for this cleanup on those responsible for the problem and on those who benefited from improper methods of hazardous waste disposal. Through this liability scheme, Congress also intended CERCLA to encourage responsible or benefited parties to respond voluntarily to the hazardous waste problem.

Part I asserts that CERCLA's legislative history, when read against …

The International Exportation Of Waste: The Battle Against The Path Of Least Resistance, Kenda Jo M. Mccrory

Penn State International Law Review

This Comment will focus on the United States' current regulations governing the exportation of waste, their strengths and weaknesses, and the changes needed to incorporate the Basel Convention into United States domestic law.

U.S. Hazardous Waste Exports: Regulations And Proposals, Jack Isaacs

Maryland Journal of International Law

No abstract provided.

The Controls On The Transfrontier Movement Of Hazardous Waste From Developed To Developing Nations: The Goal Of A "Level Playing Field", Michelle M. Vilcheck

Northwestern Journal of International Law & Business

In the 1970s, the United States Congress began passing national environmental legislation. One reason for such legislation was to "level the playing field" among the fifty states so that economic advantage did not accrue to one state at the expense of environmental quality and public health.' The world now faces a similar need for environmental legislation on an international level. Environmental laws of individual nations have become more and more divergent as developed countries, such as the United States, enact tougher environmental laws, while less developed nations fail to enact any environmental regulations. The variant standards of these environmental laws …

Corporate Life After Death: Cercla Preemption Of State Corporate Dissolution Law, Audrey J. Anderson

Michigan Law Review

This Note discusses CERCLA's preemption of state corporate dissolution law. Although CERCLA contains a preemption clause intended to specify CERCLA's relationship with other laws, this clause addresses only state laws that impose stricter standards than those contained in CERCLA, and does not address state laws that, like dissolution laws, remove liability from a party otherwise liable under CERCLA. Courts, therefore, have also looked to section 107 of CERCLA, which imposes liability against specified parties "[n]notwithstanding any other provision or rule of law," to determine CERCLA's general relationship with state law. Through such an analysis, courts have agreed that CERCLA does …