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Volume 28, Issue 2 — February 1998


Applying Cost Causation Principles in Superfund Allocation Cases

by Richard Lane White and John C. Butler III

Editors' Summary: The question of how to fairly apportion cleanup costs at Superfund sites is a highly debated topic in the law of hazardous substances. This Article highlights the deficiencies found in common allocation methods, and offers cost causation as a rational approach to apportioning cleanup costs. After providing a background on the CERCLA liability scheme, the authors address the various equitable factors used to apportion cleanup costs and discuss cost causation's relationship with those factors. The authors then introduce cost causation in an examination of how cleanup costs are created at a site and who is responsible for the specific costs. Next, they use figures and hypothetical scenarios to explain cost causation analysis and to note the deficiencies of volumetric- and toxicity-based allocations of costs. They conclude that although cost causation analysis may not address every equitable issue, it addresses many of them, and is flexible enough to incorporate others.


Turmoil Over "Takings": How H.R. 1534 Turns Local Land Use Disputes Into Federal Cases

by Sharon Buccino

While the Republican's Contract With America has disappeared from the political landscape, many of its ideas continue to percolate in the 105th Congress. Development interests continue to promote federal legislation to expand opportunities for "takings" claims against the government. Through such takings claims developers or private landowners seek to be compensated for not polluting or not building on protected land. Frustrated with the limitations courts have placed on takings claims, developers have sought through legislation at both the federal and state levels to thwart the government's ability to restrict individual property use for the public good.

The fight over takings legislation was one of the most heated of the last Congress. Former Senate Majority Leader Robert Dole (R-Kan.) introduced a bill, S. 605, that was even more extreme than the takings language passed by the House of Representatives as part of the Contract With America. Dole's bill would have required taxpayers to compensate businesses for lost profits, as well as land restrictions, resulting from health and safety regulations. The Senate Judiciary Committee approved the bill, but Senate leaders were never able to gather the support to justify bringing it to the floor for a vote.

Implications of Proposed CERCLA Reforms for Recoveries of Natural Resource Damages

by Suellen Keiner

Debate over reforms to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) consumed substantial energy during the 1997 session of Congress, and those deliberations will continue in 1998 with the hope of finally producing consensus about how the law can be improved. While interested parties may have different, often opposing views of how CERCLA should be reformed, some of their proposals may not represent progress, particularly the procedural changes related to restoring injured natural resources and expediting recoveries of natural resource damages (NRD).

This Dialogue analyzes related issues of the rebuttable presumption for trustees' NRD assessments provided by both CERCLA and the Oil Pollution Act (OPA) and the appropriate standard of judicial review for future challenges to those assessments. It highlights a forgotten opportunity for the U.S. Department of the Interior (DOI) and the National Oceanic and Atmospheric Administration (NOAA) to provide adjudicatory administrative hearings on disputes over NRD assessments and discusses how proposed CERCLA reforms would affect this approach to reducing transaction costs and streamlining trustees' recovery of damages in future NRD cases.