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Volume 25, Issue 6 — June 1995


CERCLA and the Choice Between Pro Tanto and Proportionate Share Settlement Allocation: Looking to the Supreme Court for Guidance

by J. Wylie Donald

Editors' Summary: The effect of settlements among private parties in CERCLA contribution suits leaves courts with the choice of allocating liability among the nonsettling parties based on either the pro tanto method, which credits nonsettlors with the amount settling parties have paid, or the proportionate share method, which credits nonsettlors with the settlors' equitable share of cleanup costs. District courts have yet to achieve consensus on which method to adopt. The U.S. Supreme Court's recent admiralty case, McDermott, Inc. v. AmClyde, in which the Court chose the proportionate share rule based on fairness considerations, may provide some guidance. After summarizing McDermott and CERCLA case law thus far, this Article analyzes the respective justifications for adopting the pro tanto or proportionate share approach. The Article concludes that although McDermott's reasoning may be instructive, the unique nature of CERCLA litigation may require a different result depending on the circumstances.

Trends in Regulation of Stormwater and Nonpoint Source Pollution

by Brian Weeks

Editors' Summary: Regulation of point source discharges under the Federal Water Pollution Control Act (FWPCA) has resulted in significant improvements in water quality. Further progress, however, will require attention to stormwater and nonpoint source discharges. This Article describes current legal schemes that regulate point source stormwater discharges and encourage control of nonpoint source releases. The author first discusses phases I and II of EPA's program to regulate stormwater under the FWPCA. He then discusses the Agency's watershed protection approach to management of nonpoint sources. Next the author describes incentive-based federal programs for reducing water pollution from agriculture and logging operations. Finally, the author provides a brief review of FWPCA reauthorization proposals considered by the 103d Congress and makes recommendations for future legislative action.


Developments in Environmental Law: What to Watch

by Hon. James L. Oakes

Has environmental law come of age? I think the answer, overall, may be yes. In many senses it has done so; we have made a transition from classic judicial review of administrative action in which environmental advocates such as David Sive, in cases such as the Scenic Hudson or Storm King Mountain case,1 more or less successfully sought to expand and deepen that review. The purpose was essentially to have the concept of what was in the "public interest" broadened to include environmental matters.

The litigation thus engendered — following upon similar developments in the civil rights movement — served to help raise the public consciousness, as did a whole lot of publicized events, such as the oil spill at Santa Barbara and the Cuyahoga River's bursting into flames, and, perhaps most important, some powerfully persuasive penmanship, commencing of course with Rachel Carson's Silent Spring — appearing first excerpted in the New Yorker magazine in 1962 and focusing on the poisoning of the Earth by chemical pesticides. Earth Day, April 22, 1970, was perhaps a watershed in terms of citizen response.