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Volume 25, Issue 2 — February 1995


A Trial Lawyer's Perspective on the Pollution Exclusion

by Stanley M. Spracker, Terry W. Bird, and Adam P. Strochak

Editors' Summary: State and federal appellate courts are almost evenly split on the meaning of the pollution exclusion clause in standard comprehensive general liability insurance policies. The authors of this Article argue that — even in jurisdictions where appellate decisions favor insurers — policyholders can win environmental insurance coverage cases at trial. The Article begins by reviewing general legal principles of insurance coverage, the evolution of policy language applicable to environmental coverage claims, and the recent case law. Next, the Article discusses trial strategy, offering practical advice about establishing a case theme, using expert witnesses, jury selection, jury instructions, and special verdict forms. The authors conclude that creative trial lawyers can persuade juries to find coverage despite adverse legal precedent.


High Hopes and Failed Expectations: The Environmental Record of the 103d Congress

by James E. Satterfield

When the 103d Congress convened on January 5, 1993, many observers believed that it would make up for the dismal environmental record of its predecessor. The 102d Congress had tried and failed to reauthorize the Federal Water Pollution Control Act (FWPCA), the Endangered Species Act (ESA), and the Resource Conservation and Recovery Act (RCRA). Its attempt to elevate the U.S. Environmental Protection Agency (EPA) to a cabinet-level department had been blocked in the House of Representatives, and its attempt to reform the General Mining Law of 1872 had been blocked in both houses.

The new Congress would be different, many pundits predicted. A Democrat was president for the first time in 12 years, and Democrats held majorities in both houses of Congress. Environmentalists predicted that the union of these forces would facilitate the passage of significant environmental legislation. And the new Congress had an ambitious environmental agenda: Not only did the FWPCA, the ESA, and RCRA need reauthorizing, but Superfund authorization was set to expire, state and local governments called for revisions to the Safe Drinking Water Act (SDWA), and many legislators still supported mining law reform.


The Reauthorization of Superfund: The Public Works Alternative

by Rena I. Steinzor

The demise of efforts by a broadly based coalition of stakeholders to reauthorize Superfund in the 103rd Congress leaves the legislative field open for reconsidering all the key assumptions underlying the "consensus" bill that dominated last year's debate. Unless the coalition remains unified, and the Administration supports it aggressively, the substance will begin to unravel, the process will become chaotic, and Congress could easily miss the December 1995 deadline to reauthorize the statute.

It is clearly the fond hope of some that from the ashes of this dissension, a phoenix will rise, taking the form of a repeal of retroactive liability in exchange for an expansion of the federal trust fund. Although the so-called public works alternative was rejected by key committees during the 1993-1994 reauthorization debate, the Republican-led Congress is sufficiently volatile, the Administration sufficiently weak, and opposition to the consensus legislation sufficiently mobilized that its resurrection is a distinct possibility. Because the public works alternative has never achieved enough political momentum to be seen as a real alternative to more moderate reforms, few have analyzed its implications critically. As the reauthorization debate continues, such an analysis is long overdue.