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Issue

Volume 21, Issue 4 — April 1991

Articles

Permitting and Enforcement Under the Clean Air Act Amendments of 1990

by Stephen E. Roady

Editors' Summary: The Clean Air Act Amendments of 1990 finally became law on November 15, 1990. The Amendments, the first major revision of the Clean Air Act since 1977, include titles on nonattainment areas, mobile sources, hazardous air pollutants, acid rain, and stratospheric ozone protection. Two other titles—the permits and enforcement titles—will be vital to the implementation of the revised Clean Air Act. The full potential of the Act cannot be realized without effective enforcement power and an efficient permit program. The author, a principal participant in developing the permit and enforcement titles in the Senate, discusses the key elements of these titles. He highlights the differences in the House and Senate bills and how they were reconciled in the Conference Committee. The Article also discusses several important permitting and enforcement issues that must be resolved by EPA and others in the process of implementing the Amendments. The author concludes that the success of the permits title will be largely shaped by EPA's permit regulations scheduled for November 1991. The effectiveness of the enforcement title will be established over the next few years as the government uses the new weapons in its enforcement arsenal.

From T&E Industries to General Electric v. Litton: Private Party Recovery of Attorney Fees Under CERCLA

by J. Mark Atlas

Editors' Summary: In an early decision on private-party recovery of attorney fees under CERCLA, T&E Industries v. Safety Light Corp., the court refused to create a right to recovery of attorney fees because Congress had not expressly provided that such a right exists. A distinction then evolved in the case law between enforcement-related and response-related attorney fees, and ultimately the Eighth Circuit held in General Electric Co. v. Litton Industrial Automation Systems that attorney fees are recoverable by private parties because the definition of "response" in CERCLA §101(25) includes related enforcement activities. This recent federal appellate court ruling on the recovery of private-party attorney fees under CERCLA follows more than two years of numerous conflicting district court decisions. In light of the decision's potential repercussions on the goal of cleaning up hazardous waste sites, this Article describes the development and present status of the law on private-party recovery of attorney fees under CERCLA and offers suggestions to increase the likelihood of recouping these transaction costs.

Dialogue

A Green Party? Or Is the Party for Environmental Action Over?

by Ali Webb

I understand that we could fill our oil needs forever if we would only put some oil wells in Alaska," said a woman when discussing the oil crisis caused by the war in the Middle East. The part of Alaska she was referring to is the Arctic National Wildlife Refuge (ANWR).1 Last year, environmentalists thought they had saved this priceless wilderness from oil development, and the public seemed to have joined them in their battle to save it. With the horror of the environmental damage caused by the Exxon Valdez fresh in everyone's mind and the meager estimates about the amount of oil in the Refuge anyway, the preservation of the ANWR had then seemed assured.2 But today, when hearing a remark like the one above, we must ask ourselves whether we have lost the battle to save not only the Refuge, but our worldwide environment as well.

As the country confronts both war and recession, the environmental community also faces two enormous challenges. The first is to hold on to the ground already won for environmental issues, such as the 10-year ban on drilling off the coasts of California and Florida.3 The second is to battle the problems threatening the planet, such as global warming, breathable air, and drinkable water. Today, despite the media hype surrounding "the environmental decade of the 1990s," the prognosis for saving the planet appears dim.