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Issue

Volume 17, Issue 2 — February 1987

Articles

Public Nuisance and Public Plaintiffs: Ownership, Use, and Causation (Part II)

by Louise A. Halper

Editors' Summary: In the second of a three-part series, Ms. Halper, an assisant attorney general for the state of New York, analyzes the question of land ownership, land use, and causation in the context of the state public nuisance action to remedy environmental damage. The article argues that the use of land, rather than ownership, is the key to liability in the public nuisance context, and compares this to the traditional private nuisance action. The final article in this series will discuss defenses that may be raised.

Citizen Suits and the NPDES Program: A Review of Clean Water Act Decisions

by Frank M. Thomas Jr.

Editors' Summary: The number of citizen suits brought by environmental groups under the Clean Water Act against companies that have allegedly violated the terms of their NPDES permits has increased dramatically in recent years. Spurred in part by district court decisions that have found defendants liable for violations of the Act solely on the basis of the data reported in the permittees' own discharge monitoring reports, environmental groups have scored several stunning victories. The author reviews the large body of case law that has emerged from the flood of Clean Water Act citizen suits, including judicial response to the most commonly asserted defenses raised by the permittees. In light of the general lack of success of these defenses, the author concludes that permittees must diligently perform their monitoring and reporting obligations.

Dialogue

Local Governments: Opportunities to Recover for Natural Resource Damages

by Joseph J. Maraziti Jr.

[R]emember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.

Judge Learned Hand1

In two recent cases,2 key federal district courts have concluded that municipalities may sue for damages to natural resources under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).3 Previously, it was widely assumed that only federal and state authorities could sue for natural resource damages.4 This cause of action is potentially of very great importance to financially hard-pressed cities and towns faced with tight budgets and the need to respond to hazardous waste contamination.

The Lawyer's Role in Decisionmaking—One Environmental Lawyer's Perspective

by Mary L. Walker

"Environmental Lawyer." Twenty years ago this term carried no meaning and one would have been hard pressed to find a member of the bar who would admit to such a legal invention. Historically, it originated in the environmental movement of the 1970s, as the momentum of new environmental requirements was simultaneously propelled by an active environmental constituency and challenged by the competing interests of industry. Conceptually, however, the environmental legal profession evolved, as have all others, from a very fundamental aspect of the law—to represent the interests of society and seek to resolvethose conflicts that arise when these interests are competing ones.

The environmental bar was only beginning as I entered the legal profession, yet I felt a deep affinity with those striving to provide advocacy for environmental protection. While admitting a "closeness to the cause," and a longstanding interest in our God-given natural resources, I did not come to this branch of law as a crusader. It has always seemed to me that man, in the pursuit of his very nature and intellect, creates conflict—or the potential for conflict—with his natural environment. That this conflict will arise is a certainty. It is how man resolves this conflict that will decide what legacy he leaves for future generations. It was the resolution of such conflict, the "balancing of the scales," that attracted me.