On February 4, 1994, the U.S. Court of Appeals for the D.C. Circuit vacated the U.S. Environmental Protection Agency's (EPA's) April 1992 lender liability rule, which delineated the scope of the Comprehensive Environmental Response, Compensation, and Liability Act's (CERCLA's) secured creditor exemption. The court held in Kelley v. U.S. Environmental Protection Agency that the regulation could not stand as a substantive or legislative rule because Congress, through CERCLA, gave courts and not EPA the authority to interpret questions of liability.

In an 8-to-1 decision authored by Justice Sandra Day O'Connor, the U.S. Supreme Court reversed the U.S. Court of Appeals for the Eleventh Circuit's decision that the South Florida Water Management District's (District's) operation of a pumping station required a national pollutant discharge elimination system (NPDES) permit because pollutants transferred from a canal to a water conservation area would not have occurred but for the operation of the pump.

One of the most fundamental tenets of toxicology is that "the dose determines the poison." This simple phrase provides the basis for the belief that all agents—chemicals and physical phenomena that are capable of producing some effect—have the potential to cause toxicity. Whether toxicity actually occurs is principally a matter of dose: the greater the exposure to a given agent, the more pronounced or severe the response of a cell or organism.

In recent years, the U.S. Environmental Protection Agency (EPA) has expanded its programs to assist governments around the world in building their capacity to protect the environment. This effort serves policies embodied in a variety of treaties, appropriations, and other legislative and executive decisions. A small but important part of this work is the effort to help other countries develop an effective legal framework for environmental protection.

Editors' Summary: The adoption by many corporations of environmental auditing is evidence of the maturity of pollution control law. Increasingly, environmental compliance is seen as good business, not a pesky problem that will go away if ignored. Environmental auditing is a means by which corporate leadership can wisely manage environmental assets and liabilities. However, as a result of the relative novelty of environmental auditing, the legal consequences are uncertain, and the confidentiality of environmental audits has become a major concern.

Editors' Summary: On December 11, 1983, the clock will run out for certain natural resource damage recovery actions under CERCLA. Section 107 of the Act allows state and federal agencies to recover natural resource damages from anyone who is a "responsible party" under the Act. However, much of the attention to date in implementing CERCLA has been on the response, enforcement, and cost recovery provisions of §§104, 106, and 107.

I was pleased to see a copy of your Comment on environmental auditing disclosure issues. As you are aware, we have been actively involved in analyzing and encouraging private-sector environmental auditing for several years. It's nice to see informed analysis on these auditing issues.

Editors' Summary: In the past few years, many states have enacted legislation that closely parallels the fund and liability provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund).States have been spurred to adopt their own superfund legislation by the financial requirements and response action opportunities presented them by CERCLA as well as by gaps in the federal Act.

National Environmental Policy Act (NEPA) litigation is often a tactical exercise. NEPA requires decisionmaking procedures that ensure the full and timely consideration of the environmental impacts of major federal actions. Though NEPA suits are usually waged over procedural points, preserving the integrity of NEPA's procedures is not necessarily the plaintiffs' first goal. Plaintiffs may bring NEPA suits as an indirect means to a more substantive end—to force the agency to abandon what they judge to be a poor proposed action.

Editors' Summary: In 1983, Kesterson National Wildlife Refuge in central California achieved national prominence when Fish and Wildlife Service scientists discovered severely deformed and dead waterfowl at the refuge and concluded that the cause was selenium contamination from irrigation wastewater stored there. The use of Kesterson as a disposal site for such irrigation wastewater will cease in six months, but the problems it has raised will not soon fade. The contamination at the site must be cleaned up and further contamination prevented.