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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — November 1996


Fee Simple? The 1996 Equal Access to Justice Act Amendments

by James M. McElfish Jr.

Editors' Summary: For over 15 years, the Equal Access to Justice Act (EAJA) has required the federal government to pay private parties' attorneys fees and other litigation expenses when they prevail against the government in judicial or administrative adjudicatory actions. In 1996, Congress added new provisions to the EAJA, for the first time requiring awards of fees and expenses to certain nonprevailing "small entities" if the demand by the agency is substantially in excess of, and is unreasonable when compared with, the decision of the adjudicative officer or court. The author first examines the development of the EAJA, culminating with the 1996 amendments. He analyzes how the amendments will affect small businesses, organizations, and governmental units, and describes the amendments' unusual legislative history. The author next discusses several issues that the amendments raise, including the definition of "small entity," the standard for an award of fees and expenses, the kinds of administrative adjudications covered, and the amount of recovery available. Finally, the author examines how the amendments are likely to affect private litigants' and agencies' litigation strategies.


Regulatory Reform and the Chevron Doctrine

by Adam Babich

Over the last year or so, Congress has considered several proposals to reform the regulatory system.1 This short Comment suggests an alternative approach to reform, based on the theory that the regulatory system should work in the following manner: (1) Congress should set clear goals; (2) agencies should implement those goals; and (3) courts should provide quality control, ensuring that regulations embody well-thought out policy decisions that are driven by Congress' goals.2 The system does not work this way now, and probably will not until Congress changes the statutory provisions that govern judicial review of agency decisions. The change suggested by this Comment is a relatively minor statutory adjustment to the U.S. Supreme Court's holding in Chevron U.S.A., Inc. v. Natural Resources Defense Council3 —the 1984 case that created the Chevron doctrine.


Advice for Owners of Contaminated Land After Meghrig v. KFC Western, Inc.

by Jerome M. Organ

In the past few years, owners of contaminated land, seeking to supplement possible causes of action under the Comprehensive Environmental, Response, Compensation, and Liability Act (CERCLA) and under state common law and state statutes, increasingly have looked to §7002(a)(1)(B) of the Resource Conservation and Recovery Act (RCRA) to shift responsibility for remediation costs to former owners or operators. Although some owners of contaminated land have used §7002(a)(1)(B) to request injunctive relief, many have asked courts to decide whether §7002(a)(1)(B) authorizes courts to award restitution of past costs to a private party. In March of this year, the U.S. Supreme Court decided, in Meghrig v. KFC Western, Inc., that §7002(a)(1)(B) does not entitle a private party to recover past cleanup costs. As a result of the Court's decision, owners of contaminated land seeking to force former owners or operators to remediate the contamination are limited to pursuing either injunctive relief under §7002(a)(1)(B) or cost recovery under CERCLA, state common law, or a state statute.

This Dialogue explores the practical consequences of the Meghrig decision in three contexts. First, the Dialogue discusses what parties can and should do to avoid purchasing contaminated land. Second, for those unfortunate enough to have purchased contaminated land, the Dialogue evaluates the causes of action that remain available to force a former owner either to perform or to pay for remediation. Third, the Dialogue discusses how owners of contaminated land should decide on an appropriate course of action. To lay the foundation for these discussions, however, this Dialogue begins with a critical analysis of the Court's decision in Meghrig.