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Issue

Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — March 1988

Articles

Alternative Dispute Resolution and Environmental Enforcement: A Noble Experiment or a Lost Cause?

by Richard H. Mays

Editors' Summary: Alternative dispute resolution (ADR) is an umbrella phrase that includes a variety of techniques designed to avoid expensive and time-consuming litigation. ADR techniques such as mediation and arbitration have been used successfully for years to resolve disputes among private parties. However, attempts to apply ADR to environmental enforcement cases have met with resistance from the federal government and the private sector. Even a memorandum from EPA Administrator Lee Thomas transmitting EPA's new ADR guidance document and strongly encouraging agency officials to promote the use of ADR in enforcement cases has had little impact. The author, a former EPA senior enforcement attorney who participated in the development of EPA's ADR guidance, examines the need for ADR in environmental enforcement and the obstacles to its use. He concludes that ADR should play a key role in environmental enforcement as EPA's docket of judicial and administrative cases continues to grow, but that support from government and private sector leaders is essential to overcome the obstacles to the use of ADR.

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.: Invitation to the Dance of Litigation

by Jeffrey G. Miller

Editors' Summary: In December 1987 the Supreme Court held, in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., that citizens could not obtain civil penalties under §505 of the Federal Water Pollution Control Act (FWPCA) for violations that occurred wholly in the past. The ruling seemingly resolved a three-way split among the federal circuit courts of appeal on the scope of such citizen suits. But the Court's analysis actually leaves a number of questions unanswered, as the author of this Article observes. His examination of the FWPCA's citizen suit provision and the legislative history leads him to conclude that §505 is not drafted with the precision that the Court ascribes to it. Moreover, the Court's ruling that a citizen suit can be maintained if there are good-faith allegations of continuing or intermittent violations still leaves open many issues with which trial courts will have to wrestle. The author concludes that far from leading to fewer FWPCA §505 actions, the Court's ruling may well result in additional litigation.

Dialogue

Reflections on a Quarter Century of Environmental Activism: On Postponing Deadlines, Second-Guessing the Congress, and Ignoring Problems Until It Is Too Late

by Edmund S. Muskie

Nineteen eighty-eight marks the 25th anniversary of the establishment in 1963 of the Senate Subcommittee on Air and Water Pollution. In the 1960s our effort was to learn as much as we could about environmental problems and the options for dealing with them. We undertook to arouse public awareness of the problems in order to generate political support for the policies and programs we were equipping ourselves to recommend. Our legislative initiatives, from today's perspective, evolved slowly, but they picked up momentum as we developed confidence in our perceptions of what was required.

New Jersey's Improve ECRA Implementation: The State Answers Its Critics

by Lance R. Miller

New Jersey's innovative Environmental Cleanup Responsibility Act (ECRA) has been the subject of much discussion since it became effective on December 31, 1983.1 The majority of this discussion has focused on who is subject to ECRA and why it takes so long for the New Jersey Department of Environmental Protection to review a case. Harriett Jane Olson's recent Dialogue is an example of what is being said about the above two topics.2

After a review of the historical difficulties that the Department has faced in implementing ECRA, Ms. Olson discusses proposed amendments that could significantly reduce ECRA's coverage.3 Ms. Olson concludes that while the amendments are a step in the right direction, "a more thorough-going revision of ECRA and the Regulations could assist companies in their attempts to comply …."4