Litigation under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)¹ is now a booming business. Most of the lawsuits seek to recover cleanup costs. But attention could soon shift to another class of cases: post-cleanup liability for residual injury to natural resources. These natural resource damage cases may eventually become as prevalent and as costly as cleanup cases.

Congress enacted the Toxic Substances Control Act (TSCA)¹ in 1976 to control risks from chemicals in commerce. TSCA requires the Environmental Protection Agency (EPA) to review most new chemicals while they are still being developed, before they are manufactured.

Editors' Summary: Since its enactment in 1980, lawyers have paid attention mostly to the response authorities and cost recovery sections of the Comprehensive Environmental Response, Compensation, and Liability Act. But there is growing awareness of the power and flexibility of CERCLA's natural resource damage sections, which provide for separate recovery even after cleanup is finished. As with the federal CERCLA, many state "mini-CERCLAs" also have natural resource damage sections, and new awareness of the doctrine's reach could make these a regular enforcement tool.

Editors' Summary: In 1986, the Superfund Amendments and Reauthorization Act (SARA) responded to public pressure to clean up hazardous waste sites and to protect surrounding communities from exposure to hazardous chemicals. In 1989, the Occupational Safety and Health Administration (OSHA) and the United States Environmental Protection Agency complied with SARA statutory directives to write standards to protect private and government workers who perform hazardous waste remedial work.

Advances in technology bring mixed blessings: technology causes pollution at the same time it raises standards of living. Properly directed, technology can also clean up and control some of the environmental problems it caused in the first place. From an environmental perspective, it is important to distinguish between harmful and beneficial technology. For example, beneficial technology includes pollution control devices, cleanup equipment, industrial processes that minimize resources used and waste produced, and consumer products that are environmentally benign.

Last year the Supreme Court in Robertson v. Methow Valley Citizens Council¹ and Marsh v. Oregon Natural Resources Council² extended its perfect record in National Environmental Policy Act (NEPA)³ jurisprudence: in the 20 years since NEPA was enacted, the High court has never written to expand NEPA's application and has consistently narrowed or reversed generous rulings by the courts of appeals. In essence, for two decades the Justices have never gotten it right.⁴

Editors' Summary: Environmental auditing has proliferated in use and matured in complexity as a tool for detecting and preventing potential environmental problems. As a result, environmental auditing has taken many forms and has produced controversy. Key factors in this controversy include the current environmental regulatory climate, the need for certainty in understanding the potential environmental liabilities involved in decisionmaking, and the lack of uniformity in environmental audits.

Buyers of any real property, a facility, or a company that owns real property or facilities should understand their potential exposure to environmental liability as a result of such acquisitions before closing any deal. Buyers, sellers, and lenders can avoid onerous demands and outright refusals to undertake a transaction if sufficient information is available to manage, if not eliminate, uncertainties about environmental liability.

Editors' Summary: In November 1989, the Army Corps Engineers and the Environmental Protection Agency signed a Memorandum of Agreement outlining mitigation requirements for Federal Water Pollution Control Act § 404 permits. The White House delayed the Memorandum's effective date twice, responding to criticism from the Departments of Energy and Transportation, the oil and gas industry, and development interests in Alaska.

In November 1989, the U.S. Army Corps of Engineers and the Environmental Protection Agency (EPA) signed a Memorandum of Agreement¹ on requirements for mitigating losses to wetlands under §404 of the Federal Water Pollution Control Act (FWPCA).² The Memorandum's goal of "no net loss" of wetlands was openly endorsed by the Bush presidential campaign but had not since been made a written policy. The Memorandum set off a firestorm.