Environmental Law Commons^™

Green Law-Making: A Primer On The European Community's Environmental Legislative Process, Michael S. Feeley, Peter M. Gilhuly

Vanderbilt Journal of Transnational Law

The birth of the European Common Market marks a new era of multistate environmental regulation that will radically affect commercial activity. This Article examines the European Community's (EC) background, institutions, and legislative process to elucidate how this environmental regime is developing. Following a brief introduction, Part II sets forth the EC's background, presenting its history and the general framework in which its law applies. Part III describes the EC's major institutions. Part IV discusses forms of EC legislation, with an emphasis on the use of directives. Part V considers legislative processes by which the EC enacts laws, including the new …

Transnational Alignment Of Nongovernmental Organizations For Global Environmental Action, Maria Garner

Vanderbilt Journal of Transnational Law

This Note proposes an alternative to the current international legal system for addressing the worldwide environmental crisis. The author describes the conditions of the environment and argues that the current legal system is incapable of responding to the already severe global environmental crisis. The author suggests that a network of environmental nongovernmental organizations (NGOs) can obtain results that are currently beyond the capabilities of either individual states or traditional international organizations. The main function of this type of network would be to collect and disseminate information to facilitate environmental action. The author also proposes a specific construction for an environmental …

The Plight Of The Passive Past Owner: Defining The Limits Of Superfund Liability, J.B. Ruhl

Vanderbilt Law School Faculty Publications

These days, if you want to stir up high emotions in Congress, statehouses, corporate boardrooms or citizen group meetings, mention the word Superfund. That alias for the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) evokes strong reactions from industry, environmentalists, bankers, politicians, and just about everyone else. CERCLA, a relative latecomer to the present-day body of federal environmental law, was enacted in 1980 to fill a gap in then existing law by creating the authority and liability for cleanup of abandoned facilities contaminated with hazardous substances. In the short time it has been with us, CERCLA has …

Effectiveness Of The Epa's Regulatory Enforcement: The Case Of Industrial Effluent Standards, W. Kip Viscusi, Wesley A. Magat

Vanderbilt Law School Faculty Publications

The EPA water pollution regulations-the focus of this study- represent an interesting departure from past patterns of regulatory failure. First, the nature of the regulations-discharge limits-relates directly to the policy objective of controlling pollution, and there is no potential for offsetting behavioral responses. If the pollution standards are binding and enforced, they should improve water quality. Second, the enforcement effort is so extensive that enforcement should affect firms' compliance. In the pulp and paper industry, which we will analyze, the EPA averages roughly one inspection annually per major pollution source. In addition, firms are required to file monthly discharge monitoring …

Sources Of Inconsistency In Societal Responses To Health Risks, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Society has until recently devoted insufficient attention to the long-run environmental problems that we face, including acid rain and the greenhouse effect. Our inaction with respect to these risks can hardly be characterized as a rational response or an overreaction to risk. There are three possible explanations of such diverse phenomena. First, one could simply dismiss this behavior as being the result of inconsistent and irrational behavior. Second, one could devise ad hoc explanations of why individuals underreact in some instances and overreact in others. A third possibility is to reconcile this seemingly inconsistent behavior with a consistent theoretical framework. …

Exploring The Last Frontiers For Mineral Resources: A Comparison Of International Law Regarding The Deep Seabed, Outer Space, And Antarctica, Barbara E. Heim

Vanderbilt Journal of Transnational Law

The nations of the world have begun to tap three resource areas--the deep seabed, outer space, and Antarctica. These areas are unique insofar as no nation can claim them exclusively as its own. As a result, these three areas raise unique international questions. Not only are they largely undisturbed, but these areas are also the testing ground for recently developed international treaties that attempt to usher in a new era of international cooperation. This Note examines both the exploration and exploitation of mineral resources in the deep seabed, outer space, and Antarctica. The physical nature of each area, the resources …

Environmental Implications Of Developing The Nonliving Resources Situated In The Exclusive Economic Zone Of The United States, John W. Kindt

Vanderbilt Journal of Transnational Law

This Essay provides an overview of some of the environmental issues arising from mineral mining in the United States exclusive economic zone (EEZ). Professor Kindt points out that the United States establishment of a 200-mile EEZ, and the concomitant interest in mining the minerals found within it, prompted concerns over the environmental consequences of mining activities. Professor Kindt summarizes the guidelines for mining of hard minerals recently promulgated by the Department of the Interior (DOI) and examines the House of Representatives counterproposal, the National Seabed Hard Minerals Act of 1989 (NSHMA 1989). He notes that a prime difference between the …

International Environmental Bankruptcy: An Overview Of Environmental Bankruptcy Law, Including A State's Claims Against The Multinational Polluter, Rick M. Reznicsek

Vanderbilt Journal of Transnational Law

This Note focuses on current environmental bankruptcy law in the United States. It analyzes the claims of a state against a corporate polluter when the corporation discharges a toxic substance in violation of the state's environmental laws, refuses to clean up the waste, and then files bankruptcy in lieu of paying for the cleanup.

This Note analyzes the court decisions subsequent to the United States Supreme Court opinions in Ohio v. Kovacs and Midlantic National Bank v. New Jersey Department of Environmental Protection to evaluate the current status of United States bankruptcy law on the issues of the automatic stay; …

Asbestos In Schools: The Asbestos Hazard Emergency Response Act And School Asbestos Litigation, James C. Stanley

Vanderbilt Law Review

Over a decade has passed since the Environmental Protection Agency (EPA) first identified asbestos as a health threat to the nation's school children in 1978. The concern over asbestos in schools prompted numerous responses to this problem, including legislative solutions, litigation, and the birth of a new industry to inspect, control, and abate the hazard. The results have been mixed at best. School officials, legislators, and legal commentators have criticized much of the legislation as ineffective; the litigation has added cases to a legal docket already overburdened by personal injury suits brought by individuals against asbestos manufacturers and liability insurance …

The Protection Of Groundwater And Public Drinking Supplies: Recent Trends In Litigation And Legislation, Pamela King

Vanderbilt Law Review

Although groundwater is one of our most vital natural resources, it is perhaps the least protected. Over half of the total United States population-nearly 117 million people-depends on groundwater reservoirs, or aquifers, as its source of drinking water. Industry looks to groundwater for twenty-six percent of its water needs, and two-thirds of all groundwater is used in agriculture. In addition, groundwater reenters oceans, lakes, and rivers to supply nearly one-third of the flow of surface water in the United States.

Presently, underground water sources are contaminated in all fifty states. This pollution is the by-product of a vast array of …

Misery Loves Company: Spreading The Costs Of Cercla Cleanup, Anne D. Weber

Vanderbilt Law Review

The typical case arising under the Comprehensive Environmental Response, Compensation, and Liability Act' (CERCLA) involves hazardous waste generation and disposal spanning several decades by companies no longer in existence. Subsequent attempts at cleanup by federal and state governments and private parties, as well as legal battles over the ultimate responsibility, are also at issue in the typical CERCLA case. A single party is rarely responsible for the toxic waste pollution of a site. Usually, a toxic waste site, such as a landfill, will have numerous potentially responsible parties (PRPs): generators;transporters; current owners and their lessees; former owners and operators and …

Book Review: Icons And Aliens, Richard F. Babcock

Vanderbilt Law Review

I believe it was Goethe who observed that "daring ideas are like chessmen moved forward. They may be beaten, but they may start a winning game." This book may beat John Costonis, but I will wager he has started a winning game.I say this because in spite of his wit and the cartoons, he is going to make some Very Important People mad-if they will read this book. I would like to see the faces of, say, Kent Barwick, President of the Municipal Art Society of New York City, and Brendan Gill of The New Yorker when they read the …

Judicial Activism And Restraint In The Supreme Court's Environmental Law Decisions, Richard E. Levy, Robert L. Glicksman

Vanderbilt Law Review

The proper role of the courts in our system of government has long been the source of considerable controversy. Proponents of "judicial activism" argue that because only the courts are insulated from political pressures, courts should exercise the judicial power broadly in the constitutional context to ensure that legislation is consistent with constitutional norms. Likewise, the argument continues, judicial activism is necessary in the regulatory context to ensure that administrative agencies implement statutory objectives. In contrast, proponents of"judicial restraint" argue that the legislative and executive branches alone should make public policy because only these branches are responsive to the electorate. …

Natural Resource Damage Valuation, Frank B. Cross

Vanderbilt Law Review

How much is beauty worth in dollars? Some people may recoil at the very phrasing of this question. Yet placing a monetary value on natural resources is not inherently destructive. Custom places a monetary value on artwork. Capitalism even values beautiful natural vistas in the form of land prices. Placing a monetary value on beauty and other features of nature may be essential if one is to protect natural resources fully.

This Article explores the proper monetary valuation under Superfund and other legislation of natural objects,' including living animals, aesthetic views, and water purity. The path to achieving valuation is …

Dispute Settlement In International Environmental Issues: The Model Provided By The 1982 Convention On The Law Of The Sea, John W. Kindt

Vanderbilt Journal of Transnational Law

This Essay discusses the merits of the dispute settlement provisions found in the 1982 United Nations Convention on the Law of the Sea, and calls for recognition and utilization of the provisions in all manner of disputes arising within the international legal community. Professor Kindt notes that despite the fact that the Convention's dispute settlement provisions represent the first time all major interest blocs of states have agreed upon a standard set of provisions for dispute settlement, the provisions have not received the attention they deserve. After analyzing the reasons for this lack of consideration, he urges that the dispute …

The Marine Mammal Protection Act And International Protection Of Cetaceans: A Unilateral Attempt To Effectuate Transnational Conservation, Laura L. Lones

Vanderbilt Journal of Transnational Law

This Note examines how the United States has used the Marine Mammal Protection Act to further international protection of cetaceans--dolphins, porpoises, and whales. The author first reviews the manifold reasons for protecting cetaceans. The author next describes the international operation of the Act as amended in 1984 by surveying those sections that have an impact on United States relations with other states and the regulations and cases that implement those sections. The author concludes that these restrictions have produced a decline in porpoise mortality, although more can be done. The author next describes the successes of the Act's treaty program. …

Interstate Pollution Control And Resource Development Planning: Outmoded Approaches Or Outmoded Politics?, J.B. Ruhl

Vanderbilt Law School Faculty Publications

Arbitrary political boundaries are no barrier at all to the physical effects of pollution and resource development. Yet, despite the optimism that ushered in the heightened environmental consciousness of the past several decades, political boundaries have posed a substantial barrier to resolving transboundary pollution control and resource development planning issues. This phenomenon has received considerable attention on the international level; however, because of a stubborn adherence to the idea that the states must serve as the primary jurisdictional units for managing pollution and resource development in the United States, transboundary problems are equally as apparent on the interstate level. After …

Chevron And Its Aftermath: Judicial Review Of Agency Interpretations Of Statutory Provisions, Richard J. Pierce, Jr.

Vanderbilt Law Review

In its 1984 opinion in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,' the Supreme Court attempted to resolve the long standing conflict concerning the proper scope of judicial review of agency interpretations of statutory provisions. Chevron concerned the Environmental Protection Agency's (EPA) interpretation of the Clean Air Act, which requires the EPA to limit emissions from all "stationary sources." The EPA interpreted the statutory term "stationary source"to mean an entire plant, rather than an individual piece of combustion equipment. That statutory interpretation was adopted as part of the EPA's "bubble concept," which is based on the EPA's belief …

Book Review, Christopher C. Joyner

Vanderbilt Journal of Transnational Law

The message sounded in Marine Pollution and the Law of the Sea is that it is not too late. International law can still be fashioned to control marine pollution more prudently, more effectively, and more comprehensively. The critical ingredient, however, for obtaining this self-imposed policy of international legal restraint is generation of the national political will among polluter governments to do so. To work efficaciously, law first must be agreed upon, then subscribed to, and ultimately, either obeyed or enforced. If international policies and programs are to work, governments must want them to work. In this modern era of rising …

Recent Development, Christopher A. Walker

Vanderbilt Journal of Transnational Law

On February 28, 1985, the United States Environmental Protection Agency (EPA or Agency) proposed rules governing the incineration of liquid organic hazardous wastes at sea. By providing specific criteria governing at-sea incineration' the proposed rules would modify the provisions of the Ocean Dumping regulations. After more than a year of discussions among waste handlers, the EPA, and citizen and environmental groups over the merits and risks of at-sea incineration the EPA promulgated the rules. The EPA's rulemaking process drew an immediate and heated response from the public, and attracted the attention of several Congressional committees. Three years after proposing the …

The Third-Party Defense To Hazardous Waste Liability: Narrowing The Contractual Relationship Exception, J.B. Ruhl

Vanderbilt Law School Faculty Publications

This article focuses on one of the defenses to CERCLA liability, specifically, the third-party defense set forth in section 107(b)(3) of the Act [CERCLA § 107(b)(3), 42 U.S.C. § 9607(b)(3) (1982)] ... The particular concern of this article is with the meaning of the contractual relationship exception contained within the third-party defense provision. Although a partial definition of the term "contractual relationship" was added by the 1986 CERCLA amendments, this exception, if misapplied, could make the already narrow third-party defense overly narrow. Potential for such misapplication by the courts is present because the contractual relationship exception remains inadequately defined even …

The Rutabaga That Ate Pittsburgh: Federal Regulation Of Free Release Biotechnology, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

When the Environmental Protection Agency (EPA) first approved a field test of a bioengineered microbe,' one EPA official remarked: "We're not expecting this to be the rutabaga that eats Pittsburgh.' 2 But regulators cannot afford to be wrong. Bioengineered microbes may serve many useful purposes, but they may also cause harm to the environment and to human health.3 Although the risks of an accident stemming from the deliberate release of bioengineered microbes into the environment may be low, the resulting damage could be substantial. This note examines the possible consequences of two recent trends in biotechnology-the development of bioengineered microbes …

Toxic Tort Remedies: The Case Against The "Superduper Fund" And Other Reform Prososals, J.B. Ruhl

Vanderbilt Law School Faculty Publications

This Article joins the enormous and growing body of literature examining the need for reform of toxic tort remedies for cases of exposure to hazardous substances released into the environment. It is different from most other treatments of the issue in one important respect--it does not advocate reform of the present tort law system in any fundamental way. Indeed, it is argued that the central feature of the present system--the requirement that the plaintiff alleging injury resulting from defendant's release of hazardous substances establish proof of causation by a preponderance of the evidence--is essential for maintaining a rational public policy …

Belly Up Down In The Dumps: Bankruptcy And Hazardous Waste Cleanup, Katherine S. Allen

Vanderbilt Law Review

In recent years, the critical risks of improper storage and disposal of hazardous and toxic substances have become frighteningly apparent,' and the regulation of hazardous waste disposal has become increasingly comprehensive and complex, on both the federal and state level. On the federal level, the Resource Conservation and Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or the Super fund Act) together provide a comprehensive statutory and regulatory scheme designed to cleanup existing hazardous waste disposal sites and to prevent the growth of future dangerous sites. Other federal statutes address in a more general way …

Vessel-Source Pollution And The Law Of The Sea, John W. Kindt

Vanderbilt Journal of Transnational Law

On March 16, 1978, history's worst oil spill occurred when the tanker Amoco Cadiz lost her steering and drifted onto rocky shoals off the French coast. Approximately 223,000 tons of oil were spilled, polluting and ruining over 100 miles of the Brittany coast, an area that previously had supplied one-third of France's seafood and had attracted tourists from all over Europe. Despite all this damage, only thirty million dollars was available for cleanup--none to repair the ecological devastation. Although this well-publicized accident shocked the world, it was only one of many oil spills that occurred during 1978.

By definition, "vessel-source …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

Law of the Sea: U.S. Policy Dilemma Edited by Bernard H. Oxman, David D. Caron, and Charles L. Buderi San Francisco: ICS Press, 1983. Pp. x, 184. $21.95.

The Fish Feud By David L. Vander Zwaag Lexington, Massachusetts: Lexington Books, 1983. Pp. xiii, 135. $21.95.

Negotiating Foreign Investments: A Manual for the Third World Edited by Robert Hellawell and Don Wallace, Jr. Washington, D.C.: International Law Institute, 1982. $95.00.

Political Rights for European Citizens By Guido Van DenBerghe United Kingdom: Gower Publishing Company, 1982. Pp.xii, 235. $38.00.

The International Law of Pollution By Allen L. Springer Westport, Connecticut: Quorum Books, …

Frameworks For Analyzing The Effects Of Risk And Environmental Regulations On Productivity, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

The existence of a negative relationship between the regulatory burden and capital investments, and consequently productivity,is not controversial. A conventional model of this type is developed in Section I. If, however, these regulations change over time and firms' investment decisions are irreversible, there will be additional distortions, as shown in Section II. In Section III, I show that uncertainty regarding these regulatory changes exacerbates the adverse productivity effects even for risk-neutral firms.

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

CIVIL JUDGMENT RECOGNITION AND THE INTEGRATION OF MULTIPLE STATE ASSOCIATIONS: CENTRAL AMERICA, THE UNITED STATES OF AMERICA, AND THE EUROPEAN ECONOMIC COMMUNITY

By Robert C. Casad

Lawrence: The Regents Press of Kansas, 1981. Pp. 258.$25.00.

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COMPARATIVE LAW YEARBOOK

VOL. 4, 1980

Edited by Dennis Campbell

The Hague/Boston/London: Martinus Nijhoff Publishers, 1981. Pp. 371.

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CONSTITUTION-MAKING: PRINCIPLES, PROCESS, PRACTICE

By Edward McWhinney

Toronto: University of Toronto Press, 1981.Pp. 231. $20.00.

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THE ENVIRONMENTAL LAW OF THE SEA

Edited by Douglas M.Johnston

Gland, Switzerland: International Union for Conservation of Nature and Natural Resources, 1981. Pp. 419.

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INTERNATIONAL BUSINESS: ENVIRONMENTS AND …

Potentially Hazardous Merchandise: Domestic And International Mechanisms For Consumer Protection, Eric Shuman

Vanderbilt Journal of Transnational Law

Health disorders engendered by hazardous, exported foods, pesticides, drugs, and other products recently have attracted worldwide attention. The exportation of products which have been banned or highly restricted in their country of origin or which become hazardous in the environment of the importing nation is a popular issue for opponents of a perceived monolithic transnational industrial complex, as well as for critics of certain United States corporations. A more widely shared opinion is that the United States has a moral obligation to limit foreseeable harm from the export of potentially hazardous merchandise or at least to supply product hazard information. …

Book Reviews, Horace B. Robertson, Jr., W. David Slawson

Vanderbilt Journal of Transnational Law

The New Nationalism and the Use of Common Spaces: Issues in Marine Pollution and the Exploitation of Antarctica Edited by J. Charney Totowa, New Jersey: Allenheld Osmun, 1982.Pp. ix, 343.

Reviewed by Horace B. Robertson, Jr.

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Law and Inflation By Keith S. Rosenn Philadelphia: University of Pennsylvania Press, 1982. Pp. xxxix, 451.

Reviewed by W. David Slawson