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Volume 25, Issue 8 — August 1995


International Corporate Environmental Compliance and Auditing Programs

by Ridgway M. Hall Jr. and Kristine A. Tockman

Editors' Summary: As environmental laws throughout the world impose stricter requirements on corporations, international organizations are increasingly emphasizing the importance of corporate environmental auditing programs. This Article examines the principal environmental auditing programs applicable to corporations doing business in Europe. First, it discusses the European Union's Eco-Management and Audit Scheme. Next, it discusses environmental management standards issued by the International Organization for Standardization and the British Standards Institute. Finally, it examines the trade implications of environmental provisions in U.N. programs and international agreements such as the General Agreement on Tariffs and Trade and the North American Free Trade Agreement.

The Commerce Clause and the Limits of Congressional Authority to Regulate the Environment

by John P. Dwyer

Editors' Summary: In United States v. Lopez, the U.S. Supreme Court for the first time in 62 years struck down a federal statute on grounds that it violated the Commerce Clause of the U.S. Constitution. The Gun-Free School Zones Act of 1990 was unconstitutional because it intruded into an area of traditional state concern and did not regulate a commercial activity, either directly or as part of a pervasive regulatory scheme. Although United States v. Lopez involved only a discreet, isolated federal statute, the case may well have significant reverberations throughout all areas of federal law, including environmental law. The author examines in detail the majority, concurring, and dissenting opinions in the case, and then analyzes how the case is likely to affect federal environmental legislation. He concludes that while United States v. Lopez may signal judicial readiness to apply stricter scrutiny to federal legislation, most federal environmental laws — with their close ties to commerce — should still survive constitutional challenges.

Implied Private Causes of Action and the Recoverability of Damages Under the RCRA Citizen Suit Provision

by John E. Sullivan

Editors' Summary: Property owners often respond to solid and hazardous waste contamination of their properties by cleaning up the contamination and then seeking reimbursement of cleanup costs from responsible parties under federal and state hazardous waste laws. RCRA is one such law; however, RCRA §7002 does not explicitly provide for recovery of damages. A court faced with a RCRA §7002 citizen suit to recover cleanup costs must imply a private cause of action for damages. This Article addresses the availability of a private cause of action for damages under RCRA §7002. The Article first reviews U.S. Supreme Court doctrine on implying private causes of action. It analyzes RCRA's citizen suit provision and its legislative history and reviews case law refusing to imply a private cause of action for damages under §7002. Next, the Article critiques a Ninth Circuit opinion, KFC Western, Inc. v. Meghrig, that does so imply a cause of action. The Article concludes that Congress did not intend to authorize a private cause of action for damages under RCRA, and that good environmental litigation planning can keep a property owner out of the difficult position of seeking cost recovery under a statute that does not provide such relief.