Law Commons^™

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 …

Clearing Up Questions On River Spill, Clifford J. Villa

Faculty Scholarship

What-are the impacts of mine contamination, and who is responsible for cleaning it up?

High Country Conservation Advocates V. United States Forest Service, 52 F. Supp. 3d 1174 (D. Colo. 2014), Kathryn S. Ore

Public Land & Resources Law Review

High Country Conservation Advocates v. United States Forest Service concerns the United States Forest Service’s and the Bureau of Land Management’s authorizations of on-the-ground mining exploration activities in the Sunset Roadless Area of western Colorado. The United States District Court for the District of Colorado’s holding has far-reaching consequences for federal agencies’ analysis and disclosure of impacts on the climate under the National Environmental Policy Act (“NEPA”). In addition to bolstering the Plaintiffs’ recent successes at establishing legal standing to challenge federal agencies’ disclosures and analyses of impacts on the climate under NEPA, High Country is the first case to …

Relationship Of Federal Common Law And Federal Regulatory Statutes, City Of Milwaukee V. Illinois And Michigan, David E. Morris

Akron Law Review

In City of Milwaukee v. Illinois and Michigan, the United States Supreme Court vacated the judgment of the court of appeals and remanded the case, holding that the Federal Water Pollution Control Act Amendments of 1972 had indeed displaced the federal common law action authorized by the Court before the 1972 Amendments were enacted. The environmental law ramifications of this decision are significant. However, of greater significance is the Court's attempt in Milwaukee to efface some of the uncertainty surrounding the federal common law, and to elucidate the relationship between federal regulatory statutes and federal common law.

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 …

Property Rules And Liability Rules: The Cathedral In Another Light, James Krier, Stewart Schwab

Stewart J Schwab

Ronald Coase's essay on "The Problem of Social Cost" introduced the world to transaction costs, and the introduction laid the foundation for an ongoing cottage industry in law and economics. And of all the law-and-economics scholarship built on Coase's insights, perhaps the most widely known and influential contribution has been Calabresi and Melamed's discussion of what they called "property rules" and "liability rules."' Those rules and the methodology behind them are our subjects here. We have a number of objectives, the most basic of which is to provide a much needed primer for those students, scholars, and lawyers who are …

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

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 …

Too Many Cooks In The Climate Change Kitchen: The Case For An Administrative Remedy For Damages Caused By Increased Greenhouse Gas Concentrations, Benjamin Reese

Michigan Journal of Environmental & Administrative Law

Recent federal and state court decisions have made clear that federal common law claims against emitters of greenhouse gases are not sustainable; however, those same courts seem to have given state common law tort claims the green light, at least if the claims are brought in the state where the polluters are located. This Note contends that such suits are not an adequate remedy for those injured by climate change because they will face nearly insurmountable barriers in state court, and because there are major policy-level drawbacks to relying on state tort law rather than a federal solution. This Note …

Economic Implications Of European Transfrontier Pollution: National Prerogative And Attribution Of Responsibility, Fredrick C. Eisenstein

Georgia Journal of International & Comparative Law

No abstract provided.

Transfrontier Pollution – Convention For The Protection And Development Of The Marine Environment Of The Wider Caribbean Region – Agreement Involving Collective Response To Marine Pollution Incidents And Long Range Environmental Planning, Gregg Bundschuh

Georgia Journal of International & Comparative Law

No abstract provided.

Comments: Hydraulic Fracturing: Evaluating Fracking Regulations, Blake Lara

University of Baltimore Journal of Land and Development

The demand for nonrenewable energy resources has increased in nations around the world despite the reality that these remaining resources are both scarce, and increasingly difficult to acquire. In 2010 Earth's reserves held the equivalent of approximately 406 billion tons of natural gas and oi1. However, at yearly consumption rates, this amount would only serve the planet's energy needs for about fifty years. The rapid elimination of conventional sources for oil and gas has led to the utilization of alternative methods to access sources that were previously not worth drilling. In the United States, for example, there are several types …

A Controversy Fueled By Methyl Tertiary Butyl Ether (Mtbe), Anthony Cognetti

University of Baltimore Journal of Land and Development

Over the past few decades, Maryland has been faced with a controversial issue pertaining to methyl tertiary butyl ether (MTBE) groundwater contamination.1 In 1979, MTBE was added to gasoline in an attempt to reduce smog-producing air pollutants.2 While its chemical properties have been scientifically proven to reduce air pollutants, this “environmentally friendly” chemical eventually became a topic of great debate as MTBE was leaking through underground storage tanks and contaminating groundwater sources.3 Many states thereafter filed lawsuits against gasoline refining companies for their role in adding MTBE, and most of them have received remarkably high settlements in return.4 The State …

Stemming The Black Tide: Cooperation On Oil Pollution Preparedness And Response In The South China Sea And East Asian Seas, Robin M. Warner

Faculty of Law, Humanities and the Arts - Papers (Archive)

As global hydrocarbon resources on shore steadily decline, there has been an increase in offshore hydrocarbon exploration and exploitation. Some estimates suggest that there are over 6,000 offshore oil and gas installations worldwide. Notwithstanding simmering disputes over the territorial sovereignty and associated maritime zones of a number of island groups in the South China Sea and adjacent East Asian seas, exploration for offshore oil and gas resources under national and joint development regimes has become a prominent feature of these areas. It is estimated that there are now over 1,390 offshore oil and gas installations in the South China Sea …