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Issue

Volume 21, Issue 12 — December 1991

Articles

Defining the Scope of Alternatives in an EIS After Citizens Against Burlington

by Peter J. Kirsch and Conrad M. Rippy

Editors' Summary: NEPA requires federal agencies to prepare EISs for major federal actions that significantly affect the quality of the human environment. EISs must discuss all reasonable alternatives to the proposed action. The discussion of alternatives is the heart of an EIS. In Citizens Against Burlington, Inc. v. Busey, the D.C. Circuit appears to have narrowed the scope of alternatives that a federal agency must consider when it issues a permit or other federal approval. This Article analyzes the case and proposes an interpretation that would reconcile Citizens Against Burlington with CEQ regulations and NEPA case law on the scope of alternatives.

The Double Jeopardy Problem Inherent in RCRA Enforcement: An Overview and Possible Solutions

by Dennis Leon Arfmann

Editors' Summary: In May 1984, EPA's Office of Solid Waste issued the first Civil Penalty Policy under RCRA. Since then, EPA has been criticized for assessing penalties that are not large enough to offset the economic benefits of noncompliance. On the heels of this criticism, EPA issued its revised RCRA Civil Penalty Policy in October 1990. EPA issued the document to ensure that civil penalties in both judicial and administrative cases are assessed in a fair and consistent manner, reflect the gravity of RCRA violations, deter noncompliance, and eliminate economic incentives to violate the law. The Policy's penalty assessment framework uses complex mathematical and computer models, which incorporate a gravity component, a benefit component to remove any economic benefit of noncompliance, a multiday component, and various adjustment factors.

This Article describes the evolution of the
RCRA Civil Penalty Policy and examines the effect of the double jeopardy doctrine, as articulated by the U.S. Supreme Court in United States v. Halper, on assessing penalties under the Policy. The 1990 Halper ruling established a two-prong test for double jeopardy cases: whether Congress indicated in the relevant statutory scheme a preference for either civil or criminal penalties, and whether the statutory scheme is so extreme and divorced from the government's damages to constitute punishment. The Article concludes that Halper encourages a single proceeding with criminal and civil penalties included, and that Halper's second prong is limited to the rare case in which a sanction against a small-gauge offender is overwhelmingly disproportionate to the environmental damage caused. Finally, the Article urges EPA to revisit the RCRA Civil Penalty Policy in light of Halper.

The Revised European Community Civil Liability for Damage From Waste Proposal

by Roszell D. Hunter and Turner T. Smith Jr.

Editors' Summary: With its long history of industrialization and high population density, Europe faces serious environmental problems. Initiatives developed by the European Community (EC) are serving as catalysts and frameworks for addressing these problems. One initiative that the EC is currently considering is the proposed Directive on Civil Liability for Damage From Waste. This proposed directive would create a far-reaching toxic tort and cleanup liability regime. It would hold waste producers strictly and jointly and severally liable for injuries caused by their waste until the waste is turned over to a licensed waste disposal or recycling facility. If the producer cannot be identified, the owner of the land where the waste is located would be deemed the producer and be held strictly liable. The scope of the proposed directive's liability would differ, in some ways, from that of American counterparts such as CERCLA. Nevertheless, like CERCLA, it would in practice impose liability on past conduct.

The authors first present an overview of the proposal's current version and examine in detail some of its most significant aspects. They then make recommendations on coping with the civil liability risks that the directive would create. Finally, noting that the proposed directive is only part of a greater trend toward more rigorous environmental liability provisions, they warn that businesses operating in Europe need to carefully consider the environmental consequences of their actions and must be sensitive to the increasing effect of environmental law on their transactions and operations.