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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — January 1997


Are Citizen Suits CERCLA §113(h)'s Unintended Victims?

by Marianne Dugan

Editors' Summary: CERCLA § 113(h), with some exceptions, prohibits legal challenges to response actions until the cleanup at a Superfund site is completed. While the section's sponsors hoped to prevent potentially responsible parties (PRPs) from using such challenges to delay their financial responsibilities, several federal courts have held that § 113(h) also bars citizen suits brought to enforce the FWPCA, RCRA, and other environmental laws at Superfund sites. Such holdings seem counter to Congress' provision in § 302 that CERCLA not affect or modify in any way obligations or liabilities under other environmental laws. This Article argues that the application of § 113(h)'s jurisdictional bar to citizen suits may exempt the nation's worst pollution problems from most environmental enforcement. It presents the paradigmatic application of § 113(h) in a discussion of the McClellan Air Force Base litigation and surveys the divided case law on the section's proper interpretation. The Article next reviews CERCLA's legislative history and argues that while Congress, in enacting § 113(h), sought to prevent PRPs from interfering with cleanup activities, it did not intend to bar or delay enforcement actions against ongoing environmental violations. It argues that this interpretation is supported by EPA's view that RCRA enforcement actions, for example, are not inherently incompatible with CERCLA cleanup actions. Finally, the Article discusses whether § 113(h)'s jurisdictional bar applies after the listing of a Superfund site on the NPL or after the initiation of a remedial investigation and feasibility study. The Article concludes that the listing of a site on the NPL may be a double-edged sword, because plaintiffs contemplating environmental enforcement actions at a polluted site may see their case evaporate if the site is subsequently listed.


A Funny Thing Happened on the Way to the Revolution: The Environmental Record of the 104th Congress

by James E. Satterfield

Although the 104th Congress did not begin officially until January 4, 1995, its significance was apparent as soon as the polls closed on November 8, 1994. When the votes were tallied, Republicans had acquired majorities in both the Senate and the House for the first time in 40 years.1 And they were quick to proclaim the beginning of a revolution in congressional lawmaking.

This Comment analyzes the consequences of this "revolution" and its effects on environmental legislation. The Comment begins with an overview of the new dynamics created when Republicans assumed the role of majority party in Congress and explores the immediate effect this change had on congressional business. It then examines the principal environmental bills that the 104th Congress considered, why certain bills succeeded, and why others failed. Finally, it considers the results of the November 1996 congressional and presidential elections and highlights the developments that bear watching during the 105th Congress.


Global Warming, Climate-Change Mitigation, and the Birth of a Regulatory Regime

by Laura H. Kosloff & Mark C. Trexler

In the July 1996 issue of News and Analysis, Richard Blaustein discussed the concept of joint implementation, a potentially important provision of the United Nations Framework Convention on Climate Change (FCCC).1 In his Dialogue, the author summarized the history of joint implementation, the current debate over its future role as a mechanism for international climate-change mitigation, and some of its potential implications for private-sector companies here in the United States.

Joint implementation is one element of an increasingly complex framework that can legitimately be characterized as a nascent regulatory regime aimed at mitigating the threat of climate change.2 As the scientific basis for more decisive policy action continues to firm, voluntary policy measures that are already in place in many countries may soon be supplemented by a legally binding international emissions-reduction protocol intended to "prevent dangerous anthropogenic interference with the climate system."3 That evolution toward this new regime has been by no means steady and even should be no surprise, given the technical characteristics of climate change as a public policy issue.