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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — April 1995


Fitting the Environmental Piece Into the Maastricht Puzzle

by Marissa A. Perrone

Editors' Summary: Under the Maastricht Treaty, the nations that are members of the European Union (EU) together must develop common European environmental policies. Toward this end, the European Commission has proposed EU-wide environmental laws that are meant to harmonize the various and diverging environmental laws and policies of EU member states. The laws attempt to overcome the various trade, environmental, and sovereignty concerns of member states that are obstacles to environmental unification. To date, these laws exist in essentially two forms: Mandatory and voluntary. This Article attempts to discern the optimal form for such laws, in light of the expressed concerns of member states and the disciplines the General Agreement on Tariffs and Trade (GATT), including the GATT Agreement on Technical Barriers to Trade, imposes on such international laws. This Article discusses the mandatory EU Packaging and Packaging Waste Directive and the voluntary Eco-Management and Audit Scheme Regulation.

The Right to Trial by Jury in CERCLA Cost-Recovery and Contribution Actions

by Christopher G. Smith

Editors' Summary: Federal district courts are nearly unanimous in holding that the right to trial by jury under the Seventh Amendment to the U.S. Constitution does not apply to CERCLA cost-recovery and contribution actions, because those actions are for equitable restitution rather than legal damages. The author suggests that the district courts have erroneously concluded that these actions seek equitable restitution. The Article begins by discussing the U.S. Supreme Court's Seventh Amendment analysis for determining whether actions brought under federal statutes are legal or equitable. Applying this analysis to CERCLA cost-recovery and contribution actions in concert with long-standing principles of equity, the author concludes that CERCLA litigants have a right to a jury trial, because such actions involve legal rather than equitable issues, and seek legal rather than equitable relief.


To Relieve Unfunded Mandates and Enhance Local Autonomy: Enact a "Municipal Empowerment Act"

by Peter Lehner

It is generally the responsibility of cities and other local governments — not states or the federal government — to provide residents with essential services such as sewage treatment, garbage disposal, drainage, and drinking water. Provision of these services generally dates back hundreds of years and is a function of municipalities' role in protecting public health and averting nuisances.1 Today, however, the federal government often regulates delivery of these services, setting uniform baseline standards to protect public health and the interstate environment and avoid excessive interstate competition to attract businesses by relaxing standards.

Federal standards can be costly, and local governments have objected to the imposition of "unfunded federal mandates." They have also objected to federal control and the resulting lack of local autonomy. Too often, however, these cries against unfunded mandates and for local control have become calls for reducing federal standards. Unfortunately, such reductions would likely relax protections against environmental pollution and reduce the quality of life for the very citizens that local governments are charged to protect.