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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — November 1993


The Role of Public Opinion, Public Interest Groups, and Political Parties in Creating and Implementing Environmental Policy

by Irma S. Russell

Editors' Summary: Modern environmental law in the United States is the product of public opinion. Until relatively recently, the public viewed America as a storehouse of virtually unlimited natural resources, and paid scant attention to the environmental consequences of industrial development. Beginning in the 1960s, however, that attitude changed. With dramatic events in the news focusing attention on dangers to human health and the environment, the public became more sensitive to environmental concerns, resulting in the enactment of all of the principal federal statutes designed to protect the environment.

The author discusses this shift in public opinion and the role that public interest groups and political parties have had in it. She begins with data compiled from public opinion polls and describes the current public attitude. She discusses some of the ways that this attitude has affected the political arena and consumer practices. She then discusses the different types of public interest groups, analyzing the ways in which representative groups have influenced environmental law and environmental protection. Finally, she examines the role of political parties and the interaction of this potent force with public opinion. She concludes that these three forces — public opinion, public interest groups, and political parties — which have done so much to write modern environmental law, will continue to do so in the future.

Classification of CERCLA Response Actions as Removal or Remedial

by Jerry L. Anderson and B. Kip Shelby

Editors' Summary: CERCLA divides response actions into two categories: removal actions and remedial actions. The need for clarity in the classification of CERCLA response actions as removal or remedial actions is crucial for private parties attempting to recover their response costs. These parties must prove that the costs of their response actions are necessary and consistent with the national contingency plan (NCP), however, the NCP requirements differ for the two types of actions. Thus, before determining the consistency of a response action's costs with the NCP, a court must first categorize the response as either a removal or remedial action under CERCLA. Because response costs are recoverable only to the extent they are consistent with the NCP, and because the NCP's requirements for remedial actions are profoundly more burdensome than the NCP's removal action requirements, the classification of the response action may very well determine the success of a cost recovery action.

Congress has provided parties and courts little guidance on how to classify a CERCLA response action. In this apparent void, an array of court-created response-action classification tests has been developed. The authors review these tests, which rely to varying degrees on factors related to the nature and purpose of the response action. The authors suggest that Congress should alleviate the uncertainty that the diversity of tests has created by eliminating, to the extent possible, the distinctions between removal and remedial actions, and, further, by clarifying how the two types of actions can be identified. The authors' review reveals that the court-created distinctions are mostly superfluous. They conclude that in the absence of congressional action, courts should adopt a uniform test that focuses on the level of need for urgent action. Under his approach, a greater need would require classifying the response action at issue as a removal.


The Legislative Environmental Impact Statement: An Analysis of Public Citizen v. Office of the U.S. Trade Representative

by Andrew Kimbrell and Joseph Mendelson

At its heart, the National Environmental Policy Act (NEPA)1 is an informational statute. Designed to make Congress and the public the beneficiaries of environmental impact information for all major federal projects, NEPA § 102(2)(C) requires all federal government agencies to "include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on the environmental impact of the proposed action."2 NEPA's requirement that federal agencies perform environmental impact statements (EISs) before undertaking specific major federal actions has been publicized, analyzed, and enforced relatively thoroughly.3 In contrast, Congress and the executive branch have largely ignored NEPA's mandate that agencies prepare legislative environmental impact statements (LEISs) to help the legislative branch predict, prevent, and analyze environmental impacts of broader, proposed programs. As a result of this indifference, federal agencies usually prepare NEPA documents about legislative programs, if at all, only after initiating them and responding to legal challenges. At that point, Congress may have already committed substantial resources to the programs, limiting the usefulness of environmental impact information.

A recent ruling by the U.S. District Court for the District of Columbia initially transformed the LEIS requirement's moribund status. In Public Citizen v. Office of the U.S. Trade Representative,4 the court issued a declaratory judgment that the Office of the United States Trade Representative (OTR) violated NEPA by failing to prepare a legislative EIS to accompany the completed North American Free Trade Agreement (NAFTA). The decision was promptly overturned by the U.S. Court of Appeals for the District of Columbia Circuit. The decisions have renewed interest in NEPA's role in improving legislation, the use of LEIS deficiency as a cause of action, and the judicial remedies available when agencies fail to perform LEISs. This Dialogue looks at the history of the LEIS requirement, analyzes the Public Citizen decisions, and recommends several steps for revitalizing NEPA's LEIS provisions.