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Volume 17, Issue 9 — September 1987


Environmental Penalties and Environmental Trusts—Constraints on New Sources of Funding for Environmental Preservation

by Donald W. Stever

Editors' Summary: Both plaintiffs and defendants in environmental enforcement litigation are discovering the benefits of creative remedies as part of a negotiated settlement, as alternatives to such traditional "remedies" as fines and forfeitures. The establishment of an environmental trust fund or the funding of a research project in lieu of civil or criminal penalties is often favored by plaintiffs, particularly citizens' groups, as a remedy that more directly compensates an environmental wrong. Defendants may find such "in lieu" arrangements attractive, particularly in criminal enforcement actions, as a means of avoiding adverse publicity and in mitigating the harshness of a criminal sentence. In this Article, Professor Stever examines such creative remedies and analyzes the legal constraints that may hinder or altogether prevent parties from entering into environmentally beneficial agreements in lieu of statutory fines. Professor Stever suggests how the constraints may be overcome and argues that the in-lieu agreement is and ought to be available in both the civil and criminal context, and criticizes the contrary view as unnecessarily restrictive.

Regulatory "Takings": The Remarkable Resurrection of Economic Substantive Due Process Analysis in Constitutional Law

by Patrick C. McGinley

Editors' Summary: The theory that a land use regulation may "go too far" and deny to the landowner the use of his or her property in derogation of the Takings Clause of the Constitution has long been an inexact, even confused, doctrine. In the term just ended, the Supreme Court was presented with three cases in which a land use regulation was alleged to have exceeded the police power and "gone too far," but in deciding the individual cases the Court did not successfully clarify the underlying theory. In this Article, Professor McGinley traces the development of the regulatory takings doctrine, and argues that the present-day confusion stems from a fundamental misunderstanding of Justice Holmes' teachings in Pennsylvania Coal Co. v. Mahon. The result of this confusion has been a resurrection of the long-discredited "economic substantive due process" analysis in this area. Professor McGinley argues that Justice Holmes was in fact advancing a consistent and cogent constitutional formula to determine whether a land use regulation had indeed "gone too far," and concludes that the freewheeling Lochner-style takings analysis currently employed should be scrapped as a threat to fundamental constitutional values.


EPA's Definition of Solid Waste: Making Distinctions Between Shades of Gray

by Barry Garelick

Editors' Summary: The Environmental Protection Agency's (EPA's) regulatory definition of "solid waste" in the Resource Conservation and Recovery Act (RCRA) has long been a source of controversy. Escape from the definition of "solid waste" and in most cases you have escaped from regulation under RCRA. To a large extent, in defining "solid waste" EPA is faced with often conflicting goals embedded in RCRA itself: RCRA regulates wastes, but "non-wastes" are frequently just as hazardous to humans and the environment. Congress' choice to regulate only wastes under RCRA was a calculated risk: trying to comprehensively regulate all hazardous materials would involve enormous compliance costs for industry and mammoth federal bureaucracy. At the same time, regulating only "wastes" creates strong incentives to label dangerous chemicals "non-wastes" whenever possible. In defining "solid waste," EPA must make the definition comprehensive enough to include all wastes, but not so comprehensive that non-wastes are inadvertently included also. In this Dialogue, the author summarizes the regulatory definition of "solid waste" and explores some of the ambiguities it presents. He observes that a set of questions arises from the attempt to set forth broad categories of wastes and activities, while in practicemany cases will not fit cleanly into any of these categories. Moreover, he focuses on the regulatory distinctions between by-products and co-products, as well as conflicting guidance found within the regulation itself and its accompanying explanatory document.

Environmental Law for the 1990s: Focus Private Initiative, Don't Stifle It

by Pierre S. du Pont

Editors' Summary: One of the most serious tasks Americans face in the near future is electing a President to lead the nation into the 1990s. Environmental law and policy are heavily influenced by the decisions made by elected officials and their senior appointees, and environmental issues should command close attention as voters and opinion leaders approach the 1988 election.

The Environmental Law Reporter has invited several leading presidential candidates to present their views on environmental law and policy. This month, Pete du Pont emphasizes the need to consider whether the environmental laws enacted to deal with early environmental hazards are still the most appropriate instruments as the nature of the threats change. Some governmental programs, he observes, have created perverse incentives which have actually harmed the environment or increased cleanup costs. He suggests increased private stewardship of designated resources, and strict adherence to a "polluter-pays" approach to cleanup. Market incentives and the action of voluntary associations, he concludes, must be more fully integrated into management of the nation's environment.