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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — October 1983

Articles

Private Enforcement of Federal Pollution Control Laws, Part I

by Jeffrey G. Miller

Editors' Summary: Section 304 of the Clean Air Act enacted in 1970 was the first provision expressly empowering citizens to act as private attorneys general to enforce a federal statute. Every federal environmental statute enacted since 1970, except FIFRA, has included a citizen suit provision, and each provision has been modeled on §304. In Part I of this three-part series, Mr. Miller discusses the origin and legislative history of citizen suits and explains the similarities and differences among the various provisions. He describes who may and may not bring suit and who may be sued. Mr. Miller also discusses the types of violations that are subject to citizen suit actions and the penalties authorized under the different statutes. In addition, he explains the significance of the savings clause provisions in relation to citizen suit provisions and discusses, in particular, whether these clauses preserve a federal common law of nuisance, an implied private right of action, or jurisdiction under the general jurisdictional statutes.

Natural Resource Recovery by Federal Agencies—A Roadmap to Avoid Losing Causes of Action

by Barry Breen

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. In the meantime, a three-year limit on actions for recovery of natural resource damages which were discovered prior to enactment of CERCLA on December 11, 1980, approaches. The author outlines the natural resource damage recovery provisions of CERCLA, analyzes the impact of the timeliness provisions of the Act, and describes the steps taken by the Department of the Army to identify and act on potential natural resource damage claims before expiration of the deadline.

Comment(s)

Environmental Audits and Confidentiality: Can What You Know Hurt You as Much as What You Don't Know?

by Phillip D. Reed

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. The author reviews the law and EPA policy governing access to a company's environmental audits. The law clearly allows protection of audits from discovery in civil actions under some circumstances but a question mark hangs over how EPA will deal with audits in administrative enforcement actions. The author suggests that removing that uncertainty with a policy of ignoring audit reports in routine enforcement could significantly encourage auditing without weakening enforcement.

Dialogue

The Supreme Court 1983-1984

by Phillip D. Reed, Frances L. McChesney, and Kenneth L. Rosenbaum

October 3, 1983, began another Supreme Court Term, the third since the retirement of Justice Stewart and the addition of Justice O'Connor. This Court has heard few major environmental cases. It has usually denied certiorari in cases requiring interpretation of the complex pollution control statutes, accepting cases primarily where there is a split among the circuits, as in the currently pending case of United States v. Stauffer Chemical Co.1 When the Court breaks this pattern, as it has with the D.C. Circuit's decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (Chevron, U.S.A.)2 it invites speculation that the "conservative" Court will reverse the arguably more liberal and pro-environment decision below. But the Court cannot be so easily typed, and the issues before it this year may confound prognosticators. For example, Watt v. California3 is attracting intense interest because it pits two objectives of conservative members of the Court, protection of states' powers and narrow construction of environmental statutes, against each other. In addition to hearing these cases, the Court must sift through its docket, which inevitably will include several other major envoronmental cases. A review of the Court's decisions on review and its rulings in cases in the last two Terms sheds some light on how it may handle environmental cases in the new Term.