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Volume 40, Issue 12 — December 2010


How to Take Climate Change Into Account: A Guidance Document for Judges Adjudicating Water Disputes

by Carolyn Brickey, Kirsten Engel, Katharine Jacobs, Daniel F. Luecke, Julia Matter, Marc L. Miller, Jonathan Overpeck, and Bradley Udall

This report is intended for use by federal, state, and administrative judges who are confronted with a legal dispute involving a water resource that is alleged to be impacted by climate change. It may be useful as well for attorneys litigating or experts working on water adjudications. The purpose of this document is to summarize the manner in which climate change may impact rights and frameworks established under state and federal law concerning water resources and to anticipate the issues that water-related climate claims will pose to legal decisionmakers. This report arose out of the November 11-12, 2009, workshop, "Water Law and Climate Change," held in Reno, Nevada, and sponsored by the National Judicial College and Dividing the Waters, a nonprofit organization of federal and state water adjudicators. No judge who attended the workshop has reviewed or approved of the content of this document. This document does not reflect the personal opinion of any individual judge.

The Political Question Doctrineâ

by Nathan Howe

Editors' Summary

Two recent circuit court decisions, Connecticut v. American Electric Power and Comer v. Murphy Oil USA, have ruled on the political question doctrine as it is applied in climate change nuisance litigation. These decisions focused on the critical third Baker formulation-- requiring an initial policy decision, in determining that these cases were justiciable and within the judiciary's jurisdiction, paving the way for climate change litigation. However, it is still uncertain what role litigation will hold in this period before legislation, and there may be options available to emitters who may now be subject to litigation.

<i>Rapanos v. United States</i>: Searching for a Significant Nexus Using Proximate Causation and Foreseeability Principles

by Lawrence R. Liebesman, Rafe Petersen, and Michael Galano

Editors' Summary


The U.S. Supreme Court issued its decision in Rapanos v. United States more than four years ago. Because no single opinion garnered a majority of the Justices' votes, the controlling test for wetlands jurisdiction remains unclear. Although the "significant nexus" test set forth in Justice Anthony M. Kennedy's concurring opinion seems to have gained acceptance by most circuit courts, the agencies and courts still struggle to find meaning in this test. Looking at the origins of the significant nexus test, relevant case law, and guidance documents, this Article concludes that, absent congressional action clarifying CWA jurisdiction, applying the principles of proximate causation and foreseeability to Justice Kennedy's significant nexus test could help to clarify what areas can and cannot be deemed jurisdictional.


Environmental Risks of Acquiring Property by Foreclosure

by James Brennan and Thomas A. Utzinger

Lenders, bondholders, and other holders of interests in commercial and industrial real estate, beware the decision to foreclose on properties contaminated by hazardous substances. The "long claws" of environmental laws can threaten real estate lenders and securitized bondholders alike. The laws and policies governing the meaning of what constitutes "ownership" or "operation" for the purpose of environmental liability must be carefully understood, as foreclosure may alleviate troubled loan portfolios but, in turn, may lead to a broader set of troubles. This topic is ripe for review during this current economic climate, as the need to address above-average numbers of foreclosures in a timely manner can compromise full compliance with environmental laws.

As if the myriad challenges in real estate today, with credit market troubles, tightened lending standards, and a maturity cliff veering troublingly close, were not enough, the lending and financial community must also be aware of certain environmental laws that can sweep in a broad cast of parties lacking the intention or desire to be responsible for significant cleanup costs. This cast of "responsible parties" includes not only past and present property owners, but also lenders and even securitized bondholders.

Unresolved CERCLA Issues After <i>Atlantic Research</i> and <i>Burlington Northern</i>

by Kevin A. Gaynor, Benjamin S. Lippard, and Sean M. Lonnquist

In two major Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) opinions, United States v. Atlantic Research, Inc. and Burlington Northern & Santa Fe R.R. v. United States, the U.S. Supreme Court provided long-sought guidance for parties litigating hazardous waste cleanup issues under CERCLA. Atlantic Research addressed the right of certain potentially responsible parties (PRPs) under CERCLA--those who had incurred CERCLA response costs without being subject to prior litigation or administrative action--to bring a §107 cost recovery action against other allegedly liable parties. This issue became critical when the Court's 2004 Cooper Industries, Inc. v. Aviall Services, Inc. decision held that such a party could not assert a §113 contribution claim, the usual remedy in such cases. Burlington Northern addressed the standards that would govern "divisibility" of a CERCLA site--one mechanism by which parties can avoid joint and several liability--as well as the standards for "arranger liability" under CERCLA in the context of sales of a useful product. Burlington Northern has widely been recognized as a setback for the aggressive theories of joint and several liability often advanced by the government in CERCLA enforcement actions, although the full implications of the decision are not yet clear. At minimum, Burlington Northern reiterated traditional principles of common-law apportionment and reduced--but definitely did not eliminate--the prospects for joint and several liability to be imposed on parties at a CERCLA site.


This Article addresses some of the major issues that remain open after Atlantic Research and Burlington Northern. First, does Atlantic Research allow all PRPs to assert §107 cost recovery claims against other PRPs, or only some limited category of PRPs? Second, are PRPs asserting §107 claims entitled to obtain joint and several liability against other PRPs? And how does this affect the government at sites where it is also a PRP? Third, does the contribution protection provided to settling parties under CERCLA protect them from §107 claims? Fourth, what are the operative standards for establishing divisibility at a CERCLA site post-Burlington Northern? Fifth, can the government avoid limitations on joint and several liability by showing that a PRP's individual contribution would have required the same remedy if there had been no other PRPs involved? Last, to what extent do limitations on joint and several liability and a reinvigorated divisibility defense impact the government's ability to impose unilateral administrative orders under §106 of CERCLA?



The National Environmental Policy Act 40th Annivesary SymposiumThe National Environmental Policy Act 40thThe National Environmental Policy Act 40th Anniversary Symposium

by Jim McElfish, Sam Kalen, Nick Yost, Mary O

Editors' Summary

On September 15, 2010, the Environmental Law Institute, the Grand Canyon Trust, and the Partnership Project hosted a symposium to commemorate the 40th anniversary of NEPA. At the symposium, participants explored how agency engagement with the public results in better decisionmaking. Panelists explored some of the means by which agency practices have made the NEPA process more effective, ways in which agency practice has been less successful, and current opportunities to make NEPA work even better than it has during the statute's first 40 years. The symposium was followed by a reception, at which Russell Train, John Dingell, and Gary Guzy spoke, and the release of NEPA Success Stories: Celebrating 40 Years of Transparency and Open Government. The remarks made at the reception may be listened to at http://www.eli.org/audio/09.15.10dc/09.15.10dcreception.mp3. The symposium, reception, and publication are all made possible with the generous support of the Henry M. Jackson Foundation, the 444S Foundation, and the Wilburforce Foundation.