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Full-Text Articles in Law
The Private Causes Of Action Under Cercla: Navigating The Intersection Of Sections 107(A) And 113(F), Jeffrey M. Gaba
The Private Causes Of Action Under Cercla: Navigating The Intersection Of Sections 107(A) And 113(F), Jeffrey M. Gaba
Michigan Journal of Environmental & Administrative Law
The Comprehensive Environmental, Response, Compensation, and Liability Act (CERCLA) provides three distinct “private” causes of action that allow parties to recover all or part of their cleanup costs from “potentially responsible parties.” Section 107(a)(4)(B) provides a “direct” right of cost recovery. Sections 113(f)(1) and 113(f)(3)(B) provide a right of contribution following a CERCLA civil action or certain judicial or administrative settlements. The relationship among these causes of action has been the source of considerable confusion. Two Supreme Court cases, Cooper Industries, Inc. v. Aviall Services, Inc. and United States v. Atlantic Research Corp. have identified certain situations in which the …
Unpacking Eme Homer: Cost, Proportionality, And Emissions Reductions, Daniel A. Farber
Unpacking Eme Homer: Cost, Proportionality, And Emissions Reductions, Daniel A. Farber
Michigan Journal of Environmental & Administrative Law
Interstate air pollution can prevent even the most diligent downwind state from attaining the air quality levels required by federal law. Allocating responsibility for emissions cuts when multiple upwind states contribute to downwind air quality violations presents a particularly difficult problem. Justice Ginsburg’s opinion for the Court in EPA v. EME Homer City Generator, L.P., gives EPA broad discretion to craft regulatory solutions for this problem. Although the specific statutory provision at issue was deceptively simple, the underlying problem was especially complex because of the large number of states involved. Indeed, neither the majority opinion nor the dissent seems to …
Instrument Choice, Carbon Emissions, And Information, Michael Wara
Instrument Choice, Carbon Emissions, And Information, Michael Wara
Michigan Journal of Environmental & Administrative Law
This Article examines the consequences of a previously unrecognized difference between pollutant cap-and-trade schemes and pollution taxes. Implementation of cap-and-trade relies on a forecast of future emissions, while implementation of a pollution tax does not. Realistic policy designs using either regulatory instrument almost always involve a phase-in over time to avoid economic disruption. Cap-and-trade accomplishes this phase-in via a limit on emissions that falls gradually below the forecast of future pollutant emissions. Emissions taxation accomplishes the same via a gradually increasing levy on pollution. Because of the administrative complexity of establishing an emissions trading market, cap-and-trade programs typically require between …
Prosecutorial Discretion And Environmental Crime, David M. Uhlmann
Prosecutorial Discretion And Environmental Crime, David M. Uhlmann
Articles
In January 1991, just four weeks after joining the Justice Department’sEnvironmental Crimes Section as an entry-level attorney, I traveled to NewOrleans to attend an environmental enforcement conference. The conferencewas attended by hundreds of criminal prosecutors and civil attorneys from theJustice Department, as well as enforcement officials from the EnvironmentalProtection Agency (“EPA”). It was a propitious time for environmental protec-tion efforts in the United States. Less than two months earlier, President GeorgeH. W. Bush had signed the Clean Air Act Amendments of 1990, culminating aremarkable twenty-year period that created the modern environmental law sys-tem in the United States. My new office, …