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Volume 24, Issue 3 — March 1994


Environmental Trade Barriers and International Competitiveness

by Lucas Bergkamp and Ray V. Hartwell

Editors' Summary: In their attempts to promote environmental protection domestically, countries are adopting measures that have impacts beyond their borders -- primarily on international trade. The interrelationship of environmental protection and free trade is especially evident from the recent negotiations involving NAFTA and the Uruguay Round of GATT. Harmonizing conflicts between environmentalists and free trade advocates has emerged as a major challenge to governments and other international players.

This Article examines the extraterritorial effects of national environmental laws and the impact of these laws on international economic competitiveness. After introducing a number of pending and recently adopted environmental measures in Europe, the authors discuss the current legal framework governing the impacts of "eco-barriers" -- the authors' term for environmental protection measures that act as impediments to free trade. The authors analyze U.S., European Union, and international law. Finally, the authors briefly address the impacts of eco-barriers on international competitiveness.

The authors conclude that fostering international free trade agreements with adequate measures to address environmental protection concerns is the most effective means of achieving the goals of all concerned.


RCRA Imminent Hazard Authority: A Powerful Tool for Businesses, Governments, and Citizen Enforcers

by Adam Babich

Years ago, environmental law was considered a specialized branch of administrative law. Environmental law-suits generally involved either enforcement (government regulators or environmentalists suing businesses) or regulatory appeals (businesses or environmentalists suing the government). In contrast, environmental litigation today is a free-for-all: Everybody feels free to sue everyone else.1 In this context, sophisticated lawyers advise their clients to go beyond bare-minimum compliance with environmental regulations, and minimize the potential liabilities (and bad publicity) associated with any release of pollutants, no matter how lawful.2

Despite the best of advice, however, even the most careful businesses can face substantial liabilities due to past conduct, human error, bad luck, and the acts and omissions of third parties. In such situations, it is only natural to seek to shift, share, and otherwise minimize those liabilities, ideally before enforcement by the U.S. Environmental Protection Agency (EPA) or a state, and before government investment of removal and remedial action dollars.3 Thus, a company that only yesterday argued that joint, several, and retroactive liability is [24 ELR 10123] immoral, unconstitutional, and un-American, may today find itself asserting such liability against its peers.4 This is not fratricide; it is business by other means.5 For businesses -- and for governments and environmentalists -- such litigation can result in settlements and orders that require investigation and cleanup6 of hazardous waste problems.7 For lawyers, it is a pretty good way to make a living.


Negotiating EPA Consent Orders and Consent Decrees: Steering Your Client Through the Shoals

by Peter E. Hapke and Andrew N. Davis

Under the Superfund program, the U.S. Environmental Protection Agency (EPA or the Agency) faces a dilemma. The Agency wants potentially responsible parties (PRPs) to perform voluntary response actions pursuant to administrative consent orders or judicial consent decrees (collectively referred to as "orders" unless otherwise specified), but does not want to commit extensive attorney resources to negotiating the details of every order. Besides expending limited government attorney and program staff time, case-by-case negotiation of orders undercuts a national policy favoring uniform orders that reflect broad-based Agency goals, such as protection of human health and the environment and preservation of Superfund monies. Often, the result is a checkerboard of language mixed and matched from orders used at various Superfund sites around the country. The Agency fears that such hybrid orders may be overly protective of PRPs' interests and erode national uniformity as more and more EPA Regions issue them. Further, EPA is under increasing congressional and public pressure to speed the pace of Superfund cleanups and contain transaction costs, while ensuring that the PRPs, rather than the government, perform response actions. Agency attorneys, following the dictates of their clients—the Superfund program staff—bring these potentially conflicting goals to the negotiating table. This Dialogue discusses issues that typically arise during negotiation of orders under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The principles of negotiation discussed, however, apply with equal force to the negotiation of orders under other statutes, including the Resource Conservation and Recovery Act (RCRA), the Federal Water Pollution Control Act, the Clean Air Act, and the Toxic Substances Control Act, as well as EPA and state environmental agency enforcement orders.