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Issue

Volume 15, Issue 10 — October 1985

Articles

Federal Supremacy and Sovereign Immunity Waivers in Federal Environmental Law

by Barry Breen

Editors' Summary: Uncle Sam is both environmental policeman and environmental polluter. In 1970, Congress began to create a tough series of pollution control laws that govern the activities of private organizations and individuals. One of the great ironies of the early years of environmental law was that, while these deliberations were taking place, the air outside in the Capitol was often fouled by emissions from the federal government powerplant providing the electricity to light the congressional offices. The District of Columbia, required by Congress to enforce the new Clean Air Act, found itself nearly impotent in trying to clean up Congress' own pollution. The legal shield protecting the federal government as polluter was sovereign immunity, and over the last 15 years, Congress progressively lowered the shield. The author traces the history of waivers of sovereign immunity under environmental law, pointing out that the extent to which federal facilities can be held accountable varies considerably from statute to statute and activity to activity.

Comment(s)

Hazardous Waste and the Common Law: Will New Jersey Clear the Way for Victims to Recover?

by Phillip D. Reed

Editors' Summary: Toxic tort cases pose formidable problems of law and proof for plaintiffs. These problems are compounded in environmental suits, where defendants may be difficult to identify and causation may be especially clouded.The author outlines the obstacles to recovery in toxic tort cases arising from hazardous waste disposal, reviews developments in tort law that have reduced certain of the barriers, and then examines two pending New Jersey cases that may break further ground for plaintiffs. He concludes that the resolution of these cases will signal whether suits are likely to be practical options for victims of pollution from hazardous waste disposal sites.

Dialogue

Bankruptcy Is Not an Answer: A Rebuttal

by Charles A. Openchowski

In their article, "Bankruptcy and the Cleanup of Hazardous Waste: Caveat Creditor,"1 Messrs. Drabkin, Moorman and Kirsch discuss a problem of critical concern: the proper balance between requirements contained in environmental statutes and protections afforded by the Federal Bankruptcy Code.2 While the article focuses on the applicability of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)3 to situations involving the disposal of toxic wastes, numerous other federal and state environmental statutes governing different forms and sources of pollution are also subject to this balancing process.

The conflict between bankruptcy and environmental law boils down to a decision on who is responsible for cleaning up pollution hazards: debtors, creditors, or the government. If a debtor is permitted to invoke the provisions of the Bankruptcy Code, the list can be narrowed to two possibilities. Choosing between them raises a fundamental issue of fairness to the creditor, who may have had no knowledge of a debtor's unlawful actions. In that respect, the article provides valuable advice by suggesting that closer scrutiny of investments in enterprises that have potential environmental liabilities may be advisable. However, the article is disturbing to the extent that it presents bankruptcy law as an appropriate mechanism for dealing with environmental cleanup decisions. This approach disregards the legislative history of the Bankruptcy Reform Act of 1978,4 in that Congress clearly indicated that the Bankruptcy Code was not to be used to evade responsibilities mandated by environmental protection statutes. Unfortunately, the recent Supreme Court decision in Ohio v. Kovacs5 lends some support to the article's approach.