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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — September 1985


Regulating Genetically Engineered Microbial Products Under the Toxic Substances Control Act

by William G. Schiffbauer

Editors' Summary: Biotechnology has moved out of the labs and scientific journals and into the chemical plants of large chemical companies and small innovators and the popular press. Those in the federal government responsible for protecting the public from threats to its health and environment are struggling to find a coherent framework for regulating biotechnology. But like some other environmental problems of recent discovery—groundwater pollution, for example—no single statute clearly controls. Statutes as diverse as FIFRA, the Food, Drug, and Cosmetic Act and the OSH Act have been called up. But potentially the most important statutory authority, because it is not limited to a single category of use like the other statutes, is TSCA. The author takes a critical look at EPA's proposal to use TSCA to regulate biotechnology and, with reference to the legislative history and language of the Act as well as relevant case law, concludes that TSCA can be used effectively to regulate several important aspects of biotechnology development.

Thomas v. Peterson: The Ninth Circuit Breathes New Life Into CEQ's Cumulative and Connected Actions Regulations

by Peter Hapke

Editors' Summary: Federal agencies involved in complex, multi-level planning may have to prepare multiple environmental impact statements and environmental assessments to satisfy the requirements of NEPA. A recent Ninth Circuit case, Thomas v. Peterson, has shed new light on NEPA's requirements for analysis of individual actions that are connected to other activities. The case is the first appellate ruling construing the Council on Environmental Quality's connected-action and cumulative-effect regulations. The author examines Thomas against the background of previous case law on the scope and timing of environmental reviews and analyzes the case's implications, particularly for the federal land management agencies.


A Response to "Arranging for Disposal" Under CERCLA

by Laurence S. Kirsch and James W. Moorman

We read with great interest the comment on "Arranging for Disposal Under CERCLA."1 The comment was generally well done, but may have missed some points of interest.

First, the discussion of United States v. A & F Materials, Inc.,2 focused on that decision's holding concerning the sale of hazardous waste as opposed to disposal. At the end of the section discussing A & F Materials, the comment states that the decision "does not shed light on whether the generator must have chosen the ultimate respository of the substances."3 We disagree. In the context of explaining why the generator in A & F Materials should be held liable, the court stated its view of the test operating in §107(a)(3) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).4 The court said that "the relevant inquiry is who decided to place the waste into the hands of a particular facility that contains hazardous waste . . . ," and that it is precisely this decision that CERCLA was intended to regulate."5 (second emphasis added). Under this test, a generator who did not decide to place the waste into the hands of a "particular facility" should not be liable for releases at that facility.

Amending CEQ's Worst Case Analysis Rule: Towards Better Decisionmaking?

by Kenneth L. Rosenbaum

National Environmental Policy Act (NEPA) litigation is often a tactical exercise. NEPA requires decisionmaking procedures that ensure the full and timely consideration of the environmental impacts of major federal actions. Though NEPA suits are usually waged over procedural points, preserving the integrity of NEPA's procedures is not necessarily the plaintiffs' first goal. Plaintiffs may bring NEPA suits as an indirect means to a more substantive end—to force the agency to abandon what they judge to be a poor proposed action. Such plaintiffs do not expect the court to order the agency to take a better action; they only hope to delay and win reexamination of the bad one.

The worst case analysis regulation,1 which addresses the procedures for dealing with uncertainties about environmental impacts, has become a dramatic focus of a handful of such tactical actions. In particular, in the cases dealing with pesticide use on public lands in the Pacific Northwest, worst case litigation has been a stunningly effective tool for thwarting Forest Service and Bureau of Land Management (BLM) spraying plans.2 Enforcement of the worst case analysis requirement has been an unpleasant surprise to these agencies; they and others fear the same kinds of surprises may lurk in other contexts.