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


Criminal Enforcement of Environmental Laws--Part I

by John F. Cooney, Judson W. Starr, Joseph G. Block, and Thomas J. Kelly Jr.

Editors' Summary: In this first of a three-part series, the authors examine the history and general operation of the federal environmental crimes program. The authors first describe how an effective enforcement program emerged in the Justice Department and EPA despite various obstacles — including disagreements between and within the agencies about prosecutorial decisions — and how the program's history continues to influence decisions about what conduct EPA will investigate and what violations Justice will prosecute criminally. The authors also identify the major issues the program currently faces. The authors then discuss how the criminal enforcement program operates within a framework of civil rules and reporting obligations. They emphasize that the unique features of the system are that some instances of noncompliance will occur at even the best managed facilities and that virtually every act of noncompliance may be prosecuted criminally. The authors describe the case selection guidelines that EPA uses to decide which violations to investigate and refer to Justice, and that Justice uses to decide which cases to prosecute criminally. They also discuss the structure and enforceability of the permit system under major environmental laws, the crime of knowing endangerment, and the relationship between federal and state criminal enforcement efforts.

Babbitt v. Sweet Home Chapter of Communities for a Great Oregon: A Clarion Call for Property Rights Advocates

by Beth S. Ginsberg

Editors' Summary: Property rights advocates implicitly complained in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon that a Fish and Wildlife Service regulation that aimed to protect endangered and threatened species by defining "harm" to include habitat modification impinged on their rights as private landowners by asking them to share with the government responsibility for protecting such species. The U.S. Supreme Court upheld the regulation as reasonable given the relevant language of the Endangered Species Act. The reasoning of the Court's majority, concurring, and dissenting opinions mirrors the property rights debate currently before the 104th Congress. The decision will likely impact the debate, serving as the "poster child" for those seeking to reverse what many argue has been successful, bipartisan implementation of the Act. In this Article, the author reviews the Act and the Supreme Court's opinions in Sweet Home, and analyzes the decision's likely impact on the property rights debate as it relates to the Act. The author concludes that the zeal of the 104th Congress will likely overcome the results of the Supreme Court's decision.


Can Site-Specific Pollution Control Plans Furnish an Alternative to the Current Regulatory System and a Bridge to a New One?

by William F. Pedersen Jr.

The Republican takeover of Congress has triggered—and promises to continue triggering—a proliferation of suggestions from all political sectors for reforming our environmental regulatory system. So far, media attention has focused almost exclusively on generic proposals to require agencies to support new regulations with cost-benefit analysis and more "realistic" risk evaluation. Meanwhile, a completely different and equally broad-based approach has largely escaped notice.

Our current environmental protection system works largely by imposing detailed regulatory commands on "major sources" of air, water, and waste releases. Quite frequently, 5 to 10 different federal and state laws, and scores of separate, uncoordinated regulatory requirements, will apply to a large factory. A new approach has been proposed to replace this system. Under it, a major pollution source could enter into a legally enforceable contract with its local community promising both to cap its environmental releases and to reduce releases gradually over time. That contract would replace most of the regulatory commands in our current federal laws.1

Restitution Under RCRA §7002(a)(1)(B): The Courts Finally Grant What Congress Authorized

by J. Martin Robertson

Earlier this year in KFC Western, Inc. v. Meghrig, the U.S. Court of Appeals for the Ninth Circuit ruled that private parties may obtain restitution of the costs of cleaning up contaminated property under §7002(a)(1)(B) of the Resource Conservation and Recovery Act (RCRA). The Ninth Circuit's ruling in KFC Western opened the way for private parties to use the RCRA citizen suit provision to recover their costs of investigating, studying, and cleaning up contaminated property from responsible parties. The decision confirmed that §7002(a)(1)(B) can be a powerful and remarkably effective remedy for private parties to use in shifting the burden of response to parties responsible for contaminating property.

Before the Ninth Circuit's decision in KFC Western, many practitioners thought the only relief that private parties could obtain under §7002(a)(1)(B) was injunctive relief. The 1993 decisions in Lincoln Properties, Ltd. v. Higgins allowed private parties to force responsible parties to respond to contamination—by conducting investigation, study, and cleanup—under §7002(a)(1)(B). But Lincoln Properties did not address the availability of restitution to private parties under this provision.