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


EPA's New Enforcement Policy: At Last, a Reliable Roadmap to Civil Penalty Mitigation for Self-Disclosed Violations

by James T. Banks

Editors' Summary: On December 22, 1995, EPA issued its Final Policy Statement on Incentives for Self-Policing, which sets forth the conditions under which EPA will reduce civil penalties assessed against regulated entities when they manage their own compliance responsibilities and disclose their own violations of environmental laws. This Article analyzes the Policy and evaluates its long-term prospects. The Article begins by describing the history behind the Policy. It discusses EPA's Interim Policy on Voluntary Environmental Self-Policing and Self-Disclosure, the defects that stakeholders identified in that Policy, and the ways in which EPA addressed those concerns in the Final Policy. The Article then analyzes the Final Policy itself. It examines the conditions that regulated entities must meet for civil-penalty mitigation and explores the limits of the guidance the Policy gives such entities. Finally, the Article discusses the prospects for the Policy's long-term success and suggests ways to ensure that success.

Property Rights Legislation: A Survey of Federal and State Assessment and Compensation Measures

by David Coursen

Editors' Summary: In recent years, vindication of private-property rights has been the rallying cry of various citizen groups and politicianswho believe that certain regulatory restrictions—especially environmental protection measures—have "gone too far" and that the Fifth Amendment is an insufficient safeguard of private-property rights. Federal, state, and local lawmakers have begun to respond with measures that require governments to assess a regulation's potential to effect a "taking" of private property, and/or to compensate real property owners who are adversely affected by such regulation. This Article surveys current proposals at the federal level and recently enacted laws at the state level avowedly designed to safeguard private-property rights. After providing an overview of the bases for property rights legislation, the Article discusses in detail specific legislative proposals in the Senate and House of Representatives—S. 605 and H.R. 925. Next, the Article highlights numerous state compensation, assessment, and hybrid laws. It then compares the main features of such laws with the federal bills. The Article concludes that the value of any property rights legislation depends on its ability to ensure a fair and just result for society as a whole, not just for the individual property owner.

So Sue Me: Common Contractual Provisions and Their Role in Allocating Environmental Liability

by James W. Conrad, Jr.

Editors' Summary: Under CERCLA, a liable party cannot transfer its liability, yet it can contractually arrange for a third party to ultimately bear the financial burden of that liability. The applicability of these contractual allocations of environmental liability generally hinges on judicial interpretation of representations, warranties, indemnities, and releases. This Article surveys the case law on contractual allocation of CERCLA liability. Addressing legal issues unique to particular types of contractual provisions, the Article recommends ways to use and draft such provisions.


Confessions of an Environmental Enforcer

by Bruce M. Diamond

It has become manifest that the manner in which the U.S. Environmental Protection Agency (EPA) imposes, implements, and enforces environmental requirements is in serious need of reform. This was recently and eloquently expressed by former EPA Administrator William Ruckelshaus in his speech at the Environmental Law Institute's 1995 Annual Dinner.1 Expressions of the need for change have come from many points on the political spectrum, including the White House and the Congress.2 Unfortunately, practical measures to accomplish reform must overcome formidable obstacles. The purpose of this Dialogue is to explore the possibilities for a comprehensive approach to reforming the federal civil environmental enforcement program.