Editors' Summary: One of the most significant issues in nonresidential real estate transactions today is determining what level of due diligence by a prospective property owner is sufficient to qualify for the "innocent landowner" defense under CERCLA §101(35). One reason for this is that a large percentage of commercial property, and virtually all industrial property, is impacted by environmental contamination, and few properties can be properly valued without assessing such contamination.

Editors' Summary: The permit program was one of the most significant additions of the 1990 Clean Air Act Amendments. The full potential of the Act will not be realized without an effective permit program. In the April 1991 issue of ELR, one of the principal participants in developing the permit and enforcement titles of the Amendments discussed the key elements of those titles. The author of that article noted that the effectiveness of the permit title will be largely shaped by EPA's implementing regulations, which EPA proposed in early May of 1991.

Editors' Summary: The Clean Water Act is up for reauthorization this year and the regulation of toxic discharges will again be hotly debated. The Act employs a variety of approaches for addressing toxic pollution, including health-based standards, technology standards, receiving water quality standards, regulation of toxic hot spots, whole effluent toxicity testing, and biological criteria. This Article traces the development of each of these approaches and analyzes their shortcomings, which include scientific uncertainty, agency delays, and protracted litigation.

Editors' Summary: To practice environmental law in the 1990s, it is necessary to be familiar with international trade. Trade concerns affect every aspect of environmental law from agricultural subsidies to the disparate impact of pollution abatement regulation on pricing. The following two Dialogues present an overview of the issues and insight on the relationship between international trade and the environment. The first, by a member of the Trade and Environmental Committees of the U.S.

Editors' Summary: The Oil Pollution Act (OPA) is undergoing implementation. Responsibility for carrying out this newest federal environmental statute, which strengthens federal response authorities, increases civil penalty and liability limits, mandates an expanded regulatory program for contingency planning and prevention, and creates a $1 billion damages compensation fund, is divided among several executive branch agencies. As the author points out, the process of implementing the OPA will redefine the scope and power of these agencies.

Editors' Summary: Last year, a decision of the U.S. Court of Appeals for the Eleventh Circuit created grave concern in the financial services industry. In May 1990, the court, in United States v. Fleet Factors Corp. held that a secured lender that had a mere "capacity to influence" a corporation's treatment of hazardous waste could lose the protection of the security interest exemption under CERCLA §101(20)(A), and thus be held liable for cleanup costs under CERCLA.

Editors' Summary: Often, the hardest part of getting Superfund cleanup underway is finding a workable compromise between the government's assertions of joint and several liability and defendants' willingness to pay only "their share." In 1986, seeking to break such impasses, Congress added specific authority for the government to pay for part of the cleanup. Such "mixed funding" settlements have always been conceptually attractive, but not so easy to implement without criticism.

Editors' Summary; Congress created the U.S. Sentencing Commission in 1984 to eliminate the disparity in sentences for federal criminal offenses by reducing judicial discretion to vary from prescribed sentences for each stated offense. In May 1991, the Commission forwarded to Congress proposed sentencing guidelines for organizational offenses. The Commission has expressly stated that the proposed organizational guidelines do not apply to environmental offenses, yet the sentencing guidelines for organizational offenses raise material issues concerning violations of environmental statutes.

Editors'Summary: The passage of CERCLA in 1980 has supported a growing number of environmental professionals. The Act's vague language, expensive cleanup requirements, and strict liability scheme require an army of environmental lawyers, engineers, and scientists. In the next few years, the RCRA corrective action program may begin to rival the CERCLA program. The corrective action program covers many facilities and often requires expensive studies and cleanup.

Editors' Summary: NEPA requires federal agencies to prepare EISs for major federal actions that significantly affect the quality of the human environment. EISs must discuss all reasonable alternatives to the proposed action. The discussion of alternatives is the heart of an EIS. In Citizens Against Burlington, Inc. v. Busey, the D.C. Circuit appears to have narrowed the scope of alternatives that a federal agency must consider when it issues a permit or other federal approval.