The Comprehensive Emergency Response, Compensation, and Liability Act (CERCLA) authorizes designated trustees to recover damages for injury to natural resources caused by a hazardous substance release. Under its delegated authority, the U.S. Department of the Interior (DOI) has promulgated regulations governing the assessment of natural resource damages (NRDs). The regulatory scheme, however, has posed tremendous difficulties for all interested parties.

Debate over reforms to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) consumed substantial energy during the 1997 session of Congress, and those deliberations will continue in 1998 with the hope of finally producing consensus about how the law can be improved. While interested parties may have different, often opposing views of how CERCLA should be reformed, some of their proposals may not represent progress, particularly the procedural changes related to restoring injured natural resources and expediting recoveries of natural resource damages (NRD).

The regulatory takings jurisprudence of the U.S. Supreme Court has become an ungainly body, awkward for citizens and judges to apply and challenging as well, one might guess, for the Court itself, as it continues to reshape the law to better serve its aims. One cause of this predicament: leading decisions have arisen from peculiar facts and messy procedural contexts, yielding rulings that are hard to apply elsewhere. Another cause: the divergent views of Court members on the deference properly due the work of land use regulators.

To the extent the city argues that, as a matter of law, its landuse decisions are immune from judicial scrutiny under all circumstances, its position is contrary to settled regulatory takings principles. We reject this claim of error.

Improperly planned urban development has resulted in catastrophic sprawl. The present land use zeitgeist hails urban and suburban mixed-use zoning as the solution. Mixed-use zoning combines—rather than segregates—residential, commercial, and sometimes industrial land uses, and thereby decreases housing costs, decreases commuting periods, decreases vehicle miles traveled and air emissions, increases the efficient use of land and time, and increases consumer convenience.

Smart Growth admits of no clear definition. It provides a popular label for a growth strategy that addresses current concerns about traffic congestion, disappearing open space, nonpoint source pollution, the high cost of housing, increasing local property taxes, longer commutes, and the diminishing quality of community life. To accomplish smart growth, government must take two related actions. The first is the designation of discrete geographical areas into which private market growth pressures are directed.

In the west Chicago suburb of Sugar Grove—population 4,000, twice what it was 10 years ago—new large-lot developments spread spider-like from the downtown public library, police station, and village hall out into open farmland. The village has no sizeable employers or large shopping centers, and has limited recreational facilities. All those things are available close by in other suburbs and, of course, in the city of Chicago. After elementary school, children travel to neighboring suburbs for high school.

Timothy S. Bishop and Cristina C. Tilley, litigators in the Chicago office of Mayer, Brown, Rowe & Maw, offered up a Dialogue in the July 2002, issue of the Environmental Law Reporter News & Analysis entitled Smart Growth or Dumb Bureaucracy? They didn't cite the Article I wrote with my law partner of 25 years, Gurdon H. (Don) Buck, Smart Growth, Dumb Takings, which was also published in this august periodical. I don't think we own the form of the title beginning with "Smart" and linked to "Dumb," but it would have been nice to have been recognized.

The preservation of open space has captured the public's imagination. Taxpayers are lining up to vote in favor of referenda authorizing their local or state governments to borrow funds to purchase open land or its development rights. Environmental groups are forming coalitions to support public acquisition of open space and the adoption of laws regulating development in and around open lands. Opponents of urban sprawl target the loss of open space as one of the major impacts of runaway development.

Despite the recent furor over the environmental damage threatened by the Republican-dominated 104th Congress, the so-called salvage logging bill—a rider on a budget-rescissions bill—so far is one of the few changes to environmental protection programs actually signed into law. One should not assume, however, that the logging rider's ability to survive a presidential veto means that it is an innocuous compromise.