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Issue

Volume 18, Issue 6 — June 1988

Articles

Practical Guidance for Due Diligence Environmental Auditing

by John M. DeMeester

Editors' Summary: Environmental auditing has become one of the most widely used techniques for detecting and preventing environmental problems before they get out of hand. Increasingly, corporations with sophisticated environmental staffs are using the technique to evaluate not only the corporation's own pollution concerns but also those of corporations that are possible partners in a merger or acquisition. Environmental auditing is thus becoming part of the "due diligence" practiced in evaluating major business transactions. In this Article, the author describes the needs for environmental due diligence auditing and the contractual issues underlying it. He explains how corporations should plan and carry out environmental due diligence auditing, and then analyzes typical problems that arise and evaluates responses to them.

Injunctive and Declaratory Relief for States Under CERCLA

by Adam Babich and Kent E. Hanson

Editors' Summary: When Congress originally enacted CERCLA in 1980, it gave the state and federal governments a strong arsenal of tools to respond to actual or threatened releases of hazardous substances. CERCLA authorized state and federal governments to recover response costs and natural resource damages from responsible parties. However, CERCLA authorized only the federal government to obtain injunctive relief to compel responsible parties to perform remedial actions. States that were unwilling to spend their own money to clean up sites and later seek recovery from responsible parties were forced to rely on pendent jurisdiction and declaratory judgment actions to obtain prospective relief at CERCLA sites. The author reviews the methods that states pursued prior to SARA to obtain prospective relief. He then outlines how state-prosecuted actions should proceed after SARA, which gave states their own federal cause of action for injunctive relief.

Comment(s)

Phillips Petroleum Co. v. Mississippi: Is the Public Trust Becoming Synonymous With the Public Interest?

by Laura H. Kosloff

Editors' Summary: The public trust doctrine is an amorphous legal concept that generally provides that states hold certain submerged land and tidelands in trust for their citizens. In Phillips Petroleum Co. v. Mississippi, the Supreme Court held that state ownership of lands subject to the public trust includes nonnavigable lands that are subject to the influence of the tide. This Comment analyzes the Court's decision, which could bring millions of acres of wetlands within the reach of the public trust. The author traces the development of the public trust doctrine and the impact of the Court's decision on the scope of the doctrine. The author observes that the Court, in adopting tidal influence as the test for application of the public trust doctrine, may have recognized the difficulties courts have had interpreting the traditional navigability test. The decision also provides an important policy statement in favor of the state's role in wetlands protection.

Dialogue

Failure of the Environmental Effort

by Barry Commoner

The enactment of the National Environmental Protection Act (NEPA),1 and the creation of the Environmental Protection Agency (EPA) to administer it in 1970 marked a turning point in the recent environmental history of the United States. Beginning in 1950, new forms of environmental pollution appeared and rapidly intensified: smog, acid rain, excess nitrate and phosphate in water supplies, pesticides and toxic chemicals in the food chain and our bodies, and dangerous accumulations of radioactive waste. Then, in 1970, pressed by a newly aroused public, Congress began a massive effort to undo the damage. Now, nearly 20 years later, the time has come to ask an important and perhaps embarassing question: How far have we progressed toward the goal of restoring the quality of the environment?

The answer is in fact embarassing. Apart from a few notable exceptions, environmental quality has improved only slightly, and in some cases has become worse. Since 1975, when most of the consistent environmental measurements began, overall improvement amounts to only about 15 percent. (See accompanying Tables I, II, III.) And at least in the case of air emissions (other than lead), since 1981—the advent of the current Administration—the annual rate of improvement has dropped from 1.52 percent per year to only 1.16 percent per year.