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


Municipal and Private-Party Claims Under Superfund

by Frank M. Thomas jr.

Editors' Summary: Actions by municipalities and nongovernmental entities to recover the costs of responding to hazardous waste releases are authorized by the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), but the authority has not been utilized heavily.The author, who brought such a suit on behalf of the City of Philadelphia, reviews the relevant provisions of CERCLA, outlining the types of response costs that may be recoverable. He analyzes the two avenues of recovery made available: actions directly against persons responsible for releases under §107 or claims against the "Superfund" under §112. The author presents a step-by-step guide to developing a §107 action or §112 claim and highlights key problems, such as the time limitations of §§111(d)(1) and 112(d) and the restrictive regulations governing claims promulgated by EPA.

A Primer on Wilderness Law and Policy

by Jeffrey Desautels and Michael McCloskey

Editors' Summary: In its 20-year history, the congressionally established wilderness system has seldom seen as much controversy as it has of late. Development pressures are increasing, the controlling agencies are reconsidering their wilderness policies, and Congress is being pressed to make ultimate decisions about the status of undeveloped lands.

The following discussion of wilderness law is adapted from the transcript of a panel discussion held at the February 1983 Conference on Environmental Law in San Francisco, cosponsored by ALI-ABA, the Environmental Law Institute, and the Smithsonian Institution. The remarks presented here are from panelists Michael McCloskey, Executive Director of the Sierra Club, and Jeffrey Desautels, Manager of Government Issues Analysis for Anaconda Minerals Co. The panelists succinctly present the underpinnings of wilderness law, trace the highlights of wilderness litigation, and discuss the major controversies remaining.


CZMA Consistency and OCS Leasing: Supreme Court to Review California v. Watt

by Frances L. McChesney and Michael Chernau

Editors' Summary: In recent years, a number of coastal states have resisted the Department of the Interior's stepped-up efforts to issue oil and gas leases in the outer continental shelf (OCS) because of the potential adverse environmental and other impacts on their coastal zones. Legal challenges based on the Outer Continental Shelf Lands Act, the Endangered Species Act, and NEPA have been largely unsuccessful, but the Coastal Zone Management Act (CZMA) has proved a more effective weapon. The Ninth Circuit and several federal district courts have ruled that OCS lease sales "directly affect" the coastal zone and therefore are subject to the consistency requirement in §307(c)(1) of the CZMA. The Interior Department has, in response, recently completed consistency determinations for several OCS lease sales. But the question is far from resolved as the Supreme Court has agreed to review the Ninth Circuit's decision in the 1983-84 Term. The Court's ruling could go far in settling the controversy over the balance between federal and state control over the development of OCS resources.


Bankruptcy and Environmental Regulation: A Response

by Dennis Jay Drebsky and Salvatore A. Santoro

In a comment appearing in 13 ELR 10099 (April 1983), Kenneth L. Rosenbaum criticized a recent decision by the United States District Court for the District of New Hampshire, United States v. Johns-Manville Sales Corp.1 In its decision in Manville, the court held that neither the federal nor state government could continue to prosecute a suit seeking a mandatory injunction requiring Manville to clean up hazardous waste sites where it had disposed of asbestos waste for several years prior to its filing for reorganization pursuant to Chapter 11 of the Bankruptcy Reform Act of 1978 (the Bankruptcy Code or the Code).2 The court based its decision on the automatic stay of suits against a debtor contained in §362 of the Bankruptcy Code. This provision is intended to give the debtor "a breathing spell from his creditors" in order to permit the debtor to attempt to fashion an orderly repayment or reorganization plan or "simply to be relieved of the financial pressures that drove him into bankruptcy."3 In addition, the Code seeks to prevent creditors from making a race to the courthouse to collect the debts owed to them before a fair and equitable plan for the repayment of debts is approved by the bankruptcy court.4 The Manville court held that because the effect of the relief sought would require "the expenditure of substantial funds from the assets of Manville" the governmental suit against Manville was subject to the automatic stay and could not proceed.5

Mr. Rosenbaum strongly disagrees with the result reached by the Manville court, and argues that a debtor undergoing reorganization in the bankruptcy court should be subject to suit for a mandatory injunction requiring the abatement of an environmental hazard if the government can demonstrate that the hardship to the public outweighs the hardship to the debtor's estate and its creditors. We believe that the Bankruptcy Code permits no balancing whatsoever under the facts in the Manville case. If a change in the Bankruptcy Code should be made granting environmental suits a privileged status this change should be made by the legislature and not by the courts.