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Volume 23, Issue 8 — August 1993

Articles

The Antideficiency Act: A Deficient Excuse for Federal Violation of Environmental Laws?

by David B. Kopel

Editors' Summary: The Antideficiency Act embodies the constitutional mandate that only Congress is empowered to appropriate public funds. The Act prohibits officers and employees of the United States from spending or contracting to spend funds which have not been duly appropriated by Congress. It therefore may serve to excuse the federal government's failure to comply with or enforce environmental statutes when Congress has not made a specific appropriation for that purpose.

In this Article, the author traces the development of the Antideficiency Act and explores the limits and exceptions to its mandate. He proposes several constitutional and administrative theories under which environmental plaintiffs might force federal compliance with environmental statutes despite the Act's prohibitions. The author concludes that application of these theories will ultimately benefit not only the environment, but the U.S. Constitution and the Act itself.

Federal Oil Pollution Law and Regulatory Developments

by Guy E. Wall

Editors' Summary: Whether Congress intended it or not, the Oil Pollution Act of 1990 (OPA) has shaken the entire oil exploration and production industry to its core. Precipitated by the Exxon Valdez oil spill, the Act represents Congress' decision to create a regulatory framework for preventing oil spills and for responding to actual or threatened discharges of oil into U.S. waters, and to change the historical limits on civil and criminal liability to a degree that will almost certainly cause some industry participants to discontinue doing business in the offshore area. The author provides a succinct review of the changes the OPA has brought about that affect the oil exploration and production industry. First the author explores the laws and regulations that control oil spills, including the 1899 Rivers and Harbors Appropriations Act and the Federal Water Pollution Control Act, in light of the changes required by the OPA. The author analyzes the statutory penalty structure that currently exists, which was changed dramatically by the OPA. The author next describes the regulatory structure that controls the prevention of oil spills and the provisions of the OPA that establish contingency planning and federal and private response actions. After addressing the issues of financial responsibility and notification requirements, he discusses the liability and claims procedures for oil spills, including the controversial new liability limits imposed under the OPA.

Dialogue

Recovery of Attorneys Fees in CERCLA Private-Party Cost Recovery Actions: Striking a Balance

by Kenneth A. Freeling

A sharp conflict among the judicial circuits has emerged concerning whether private parties may recover attorneys fees in cost recovery actions under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).1 The issue centers on the meaning of CERCLA § 107(a)(4)(B), which permits private parties to recover "necessary costs of response … consistent with the national contingency plan."2 Specifically, the question is, does the phrase "necessary costs of response" include attorneys fees?

The meaning given § 107(a)(4)(B) and the answer to this question depend, in turn, on the construction of CERCLA's definition of "response." CERCLA § 101(25) defines "response" as "remove, removal, remedy and remedial action; all such terms (including the terms 'removal' and 'remedial action') include enforcement activities related thereto."3 The appropriate construction of § 101(25) hinges on a question more simply stated than answered: Is the phrase "enforcement activities," in § 101(25), sufficiently explicit to authorize the award of attorneys fees to a private party that succeeds in obtaining § 107(a)(4)(B) "response" costs?