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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — November 1991

Articles

Negotiating Superfund Mixed Funding Settlements

by Barry E. Hill

Editors' Summary: Often, the hardest part of getting Superfund cleanup underway is finding a workable compromise between the government's assertions of joint and several liability and defendants' willingness to pay only "their share." In 1986, seeking to break such impasses, Congress added specific authority for the government to pay for part of the cleanup. Such "mixed funding" settlements have always been conceptually attractive, but not so easy to implement without criticism. In this Article, the author outlines the underlying legal authorities and tracks the cases in which mixed funding has been used. Finally, he suggests ways to use mixed funding most appropriately.

Environmental Enforcement Excesses: Overcriminalization and Too Severe Punishment

by Benjamin S. Sharp

Editors' Summary; Congress created the U.S. Sentencing Commission in 1984 to eliminate the disparity in sentences for federal criminal offenses by reducing judicial discretion to vary from prescribed sentences for each stated offense. In May 1991, the Commission forwarded to Congress proposed sentencing guidelines for organizational offenses. The Commission has expressly stated that the proposed organizational guidelines do not apply to environmental offenses, yet the sentencing guidelines for organizational offenses raise material issues concerning violations of environmental statutes.

This Article examines whether punishing some environmental offenses as criminal is likely to deter socially desirable behavior and to inhibit conduct that is environmentally beneficial. The author argues that imprisonment for environmental offenses places too much emphasis on the utilitarian value of general deterrence while displacing retributivist concepts of moral culpability and proportionality. The author concludes that the sentencing guidelines for environmental offenses should be amended to decrease their severity and to encourage mitigation or restoration instead of imprisonment. Further, the author argues that criminal prohibitions in the environmental statutes are overinclusive and that only the wise exercise of prosecutorial discretion will cure this overinclusiveness. Reducing judicial discretion to impose sentences tailored to the offender's particular circumstances has shifted the choice of penalty to the prosecutor and heightens the necessity for prosecutors to weigh demonstrable environmental harm against the need to punish and deter morally culpable behavior.

Corrective Action in RCRA Permits: An Emerging Rival to Superfund as the Hot Area for Environmental Lawyers and Consultants

by Richard G. Stoll

Editors'Summary: The passage of CERCLA in 1980 has supported a growing number of environmental professionals. The Act's vague language, expensive cleanup requirements, and strict liability scheme require an army of environmental lawyers, engineers, and scientists. In the next few years, the RCRA corrective action program may begin to rival the CERCLA program. The corrective action program covers many facilities and often requires expensive studies and cleanup. EPA recently issued proposed regulations implementing the RCRA corrective action program, which EPA will apply until a final rule is issued. This Article describes the RCRA corrective action program, including EPA's proposed regulations, and compares it with the CERCLA remedial program.