Editors' Summary: CERCLA is one of the most important environmental statutes, and one of the most difficult to follow. The shape of the legal scheme is being wrought, not in agency rulemakings, but in the courts, and each week brings another significant decision. To help our readers stay abreast of these developments, ELR tries to provide both in-depth analyses of specific issues such as bankruptcy and generator liability, and surveys of the broad trends in the law.

Editors' Summary: Congress gave private citizens an important, though secondary, role in enforcing the new pollution control statutes of the 1970s. EPA and the states were given the principal responsibility to act when polluters violated standards, but the public was not expected necessarily to sit back and wait for the governments to solve the problems. Citizens could take enforcement matters into their own hands if the governments failed to act.

Editors' Summary: The principal federal program for protecting wetlands is found in §404 of the Federal Water Pollution Control Act. Section 404 prohibits the discharge of dredged or fill material in the waters of the United States without a Corps of Engineers permit and also empowers EPA to set standards to guide the Corps' issuance of permits.

I have just read the comment in the February 1986 News & Analysis concerning the recent attainment/nonattainment area cases.¹ I found the analysis interesting and thorough. Further, I believe that the analysis is valid based upon what the decisions say. However, I thought I should bring to your attention two aspects of Ohio v. Ruckelshaus² where the court's opinion does not correctly reflect the record before it.

This is the first issue of ELR in the last three years published without the services of Ken Rosenbaum. Ken was hardworking, a meticulous legal editor, and a fine writer. His 1983 comment on bankruptcy and hazardous waste signalled an emerging issue that has since reached Supreme proportions. Ken was responsible for many improvements in the content and presentation of ELR. He wrote ably on public lands, forest management, and insurance issues and made a significant contribution to the literature on NEPA worst case analysis. In addition, Ken played a special role on the ELR staff.

Editors' Summary: The recent wave of citizen suits to enforce federal pollution control laws has touched off waves of controversy, much of it over the fact that citizen enforcers can sue for civil penalties under the Clean Water Act. Two aspects of the civil penalty cases have provoked debate: whether plaintiffs may sue for penalties for past violations where the defendant is now in compliance with the Act, and whether settlements of citizen enforcement suits may direct that payments may be paid to private institutions for environmental quality work in lieu of penalties.

Editors' Summary: It may seem an unlikely place to look for environmental law, but the Food Security Act of 1985 includes several important additions to this field. The "swampbuster" provisions of the Act deprive farmers who fill wetlands to expand their acreage under cultivation of federal price supports for all their crops on all their lands. The author points out that prior to the recent legislation, federal agricultural policies had worked against federal wetland protection policies.

Editors' Summary: The Second Circuit recently held that the Federal Water Pollution Control Act (FWPCA) preserves state tort remedies in interstate water pollution disputes and makes applicable the law of the state in which the alleged injury took place. As a result, Vermont citizens will have their claims concerning pollution of Lake Champlain by a paper mill located across the lake in New York decided under their own law. In so holding, the Second Circuit expressly took exception to a recent decision of the Seventh Circuit, which held that the law of the polluter's state applied.

Editors' Summary: The rationalization of conflicts between environmental law and bankruptcy law continues. The recent emergence of a substantial body of state and federal law imposing financial liability on businesses for the cleanup of hazardous wastes has brought environmental lawyers into the realm of bankruptcy with increasing frequency. Attempts to mix the two bodies of law often produce conflict, because the laws serve distinct purposes. Two of the disputes have risen to the Supreme Court, but major issues remain.

The recent wave of citizen suits has prompted criticisms that many of the suits are unfounded, will not improve environmental compliance, and may improperly invade the prosecutorial power of the government. There are sound reasons why enforcement often is not pursued or is handled informally by the government; these factors frequently are not considered by citizen groups. The following are some observations from a defense perspective.