Editors' Summary: On April 23, 2007, the Environmental Law Institute launched its Congressional Briefing series, a set of events designed to highlight and explicate critical areas of environmental law to policymakers. The first seminar in the series focused on regulation of mercury emissions from power plants.
Editors' Summary: U.S. courts have consistently ruled that navigable, intrastate waters are not traditional navigable waters unless they form part of a continued highway of interstate commerce. However, for purposes of its permitting duties pursuant to the CWA, the Corps has defined a broader set of traditional navigable waters that includes all navigable, intrastate waters, regardless of whether the waters meet the continued highway requirement. In this Article, David E. Dearing examines the case law supporting the continued highway requirement, including the recent U.S.
Editors' Summary: Under CERCLA, agricultural producers must report releases of volatile organic compounds, particulate matter, ammonia, hydrogen sulfide, methane, and other pollutants from decomposing animal manure. However, the so-called Superfund Exemption, proposed in March 2007 by Senator Lincoln, would amend CERCLA to exempt animal manure from the definition of hazardous substances. In this Article, Sarah Ball traces the legal treatment of the issue of animal waste as a pollutant.
Editors' Summary: Cooper Industries v. Aviall Services, a 2004 U.S. Supreme Court case, challenged the legal community's understanding of rights of cost recovery under CERCLA, ruling that PRPs who voluntarily cleaned up property did not have a cause of action in contribution under §113(f). However, earlier this year, in United States v. Atlantic Research Corp., the Court held that PRPs who voluntarily clean up contaminated properties may have a right of recovery under §§107(a)(4)(B) or 113(f). In this Article, Jeffrey M.
In two major Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) opinions, United States v. Atlantic Research, Inc. and Burlington Northern & Santa Fe R.R. v. United States, the U.S. Supreme Court provided long-sought guidance for parties litigating hazardous waste cleanup issues under CERCLA.
On May 4, 2009, the U.S. Supreme Court handed down its decision in Burlington Northern & Santa Fe Railway Co. v. United States. The decision is of major significance with respect to two areas of Superfund jurisprudence--"arranger" liability, and divisibility or apportionment of harm. This Article is concerned only with the latter issue and, moreover, only with one specific element of that issue.
This past May, the U.S. Supreme Court for the first time addressed two issues that the U.S. Congress left open in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). These issues are: (1) the scope of "generator" or "arranger" liability under the language of CERCLA §107(a)(3); and (2) the circumstances under which a liable party under §1073 may be held jointly and severally liable. Rejecting the position of the U.S.
Editors' Summary: State governments are contracting with private contingency fee attorneys to pursue natural resource damage (NRD) claims as the government's "special counsel." This arrangement is hailed for funding the government's ability to bring NRD claims where such claims had previously stagnated. Others, however, charge that the lucrative special counsel contract is awarded to the Attorney General's political cronies, and that the arrangement illegally diverts millions of dollars away from its earmarked purpose of natural resource restoration to instead pay an attorney fee.
Editors' Summary: Under CERCLA's natural resource damage provision, trustees may recover money damages from polluters. While the money is to be used to restore the damaged resources, trustees have flexible spending guidelines which have led to diverting funds to areas unaffected by the immediate release or overspending on administrative costs. This author queries whether the implementation of the provision could be more effective by restricting trustee spending, creating a Superfund-type trust fund, or increasing the public and judicial scrutiny of trustees.
Editors' Summary: Determining the value of a parcel of real estate that has been contaminated is a challenge addressed by various disciplines. In this Article, Ronald Throupe, John A. Kilpatrick, Bill Mundy, and Will Spiess focus on the appraisal model of valuation and address the three primary approaches to property appraisal: market, cost, and income capitalization. They provide background to the valuation of contaminated property, covering theory and methodology used by appraisers.