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Volume 24, Issue 5 — May 1994

Articles

A Practitioner's Guide to the Toxic Substances Control Act: Part I

by A Practitioner's Guide to the Toxic Substances Control Act: Part I

Editors' Summary: TSCA provides EPA with broad authority to address potential hazards posed by the manufacture, processing, distribution in commerce, use, and disposal of chemical substances and mixtures. In this first of a three-part series, the authors begin a detailed examination of the statute and regulatory program. They review the origins, objectives, and key components of TSCA, and then analyze TSCA's scope -- focusing particularly on definitional issues and exclusions. The authors next describe the TSCA Inventory of chemical substances manufactured or processed in the United States, including provisions for confidentiality, corrections, and updates to the inventory. Next, the authors review EPA's implementation of the premanufacture and significant new use notification provisions of TSCA § 5. In the final section of this initial installment of the three-part Article, they discuss the scope and application of the various exemptions from the premanufacture notice requirement.

Property Rights, Property Roots: Rediscovering the Basis for Legal Protection of the Environment

by James M. McElfish

Editors' Summary: Environmental regulation has come under increasing attack from those who argue that governmental limitations on property use violate constitutional restrictions on regulatory takings of property. The author addresses this controversy by focusing on the background limitations on owners' rights that are inherent in property law itself, as opposed to the external controls that government may impose under the doctrines of police power and nuisance. He argues that regulation in support of evolving expectations developed along with—and was upheld to balance—courts' deviation from historically more rigid limits on property use.

The author begins by tracing the legal philosophy of property from John Locke, through, among others, Thomas Jefferson, Benjamin Franklin, and Justice Holmes. He concludes that under the modern conception of property, owners' rights are not absolute but are limited by the rights of others. The author next turns to the historical development of property law, beginning with its 12th-century, feudal origins. He reviews property's evolution and modification by statutes and common-law decisions.

In the 18th century, the law recognized a form of "absolute" dominion over property whereby each owner had a right to prevent neighbors from using land in a manner that would interfere with that owner's quiet enjoyment. This inherently conservative view of property greatly limited intensive and innovative uses of land and, by the early 19th century, conflicted with the needs of a developing U.S. economy. Courts overturned and modified common-law doctrines to keep pace with evolving expectations about reasonable property use. As they stripped from property law many of the restrictive protections afforded by traditional quiet enjoyment doctrine, courts recognized other, more flexible means for protecting quiet enjoyment and other rights of property owners and the public. These regulatory protections are thus rooted in the inherent limitations on owners' dominion over land.

The author next reviews the elements of the property right. He examines the various attributes in the "bundle of sticks" that constitutes property to show that the law's protection of each property interest is tempered by the nature and historical treatment of that interest. Illustrating limitations inherent in the nature of property itself, the author provides examples of exceptions to owners' rights to exclude others, occupy and use property for enterprise, and convey and devise property.

In this Article's final section, the author explores two critical points to demonstrate that environmental regulation in support of evolving expectations is based on—rather than inconsistent with—the essential character of property law. The first is that such regulation often serves to promote fair allocation of the burdens and benefits associated with property ownership. Environmental laws limit property owners' ability to impose—in the form of pollution, impairment, or destruction of shared resources—the costs of their activities on others. Such laws also force property owners to share some of the costs incurred by society to preserve and enhance property's overall usefulness. The second of the author's critical points is that just compensation doctrine does not protect every existing, potential, or speculative use to which property might be put. The author argues that takings controversies are most likely to arise when proposals for more intensive land uses occur in rural and less developed areas. Although governmental regulation in response to these conflicts may interfere with owners' investment-backed expectations, the regulations generally represent society's exercise of a preexisting right, rather than the destruction of property. The author briefly discusses
Lucas v. South Carolina Coastal Council in this context as the exception that proves the rule.

Environmental regulation in support of evolving expectations, the author argues, has been essential to the development of property law and is now a critical part of the relationship between society and the individual that gives property its meaning. The author concludes that an understanding of the limitations inherent in property itself reveals that most regulatory takings claims are attempts to redefine, not preserve, the rights associated with private property.

Dialogue

Status of Joint and Several Liability Under CERCLA After Bell Petroleum

by Mehron Azarmehr

In the fall of 1993, the U.S. Court of Appeals for the Fifth Circuit, in its opinion in In re Bell Petroleum Services, Inc., articulated its standard for determining joint and several liability under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). In so doing, it joined the ranks of four other circuit courts that have spoken on this issue.

Bell Petroleum was brought as a CERCLA cost recovery action by the U.S. Environmental Protection Agency (EPA). The Fifth Circuit held that the district court had erred in imposing joint and several liability on defendant Sequa Corporation, since Sequa had met its burden of proving a reasonable basis for apportioning liability between itself and other defendants who had owned and operated the site. Therefore, the court remanded the case to the district court for apportionment.