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Volume 46, Issue 9 — September 2016


Avoiding the Contribution “Catch-22”: CERCLA Administrative Orders for Cleanup Are Civil Actions

by Alfred R. Light

Under CERCLA, nonsettling parties and EPA take the position that the statute of limitations for a right of contribution can be triggered whenever the agency and a potentially responsible party sign an administrative order on consent (AOC). Although the overall costs of the settlement are not set, this view is that the statute of limitations expires three years from the signing of the order no matter how long it takes to fully comply with the order. This amounts to an AOC recipient’s “Catch-22” and is an incorrect interpretation of the statute. This Article concludes that, to the contrary, contribution under CERCLA does not depart from the approach of most other contribution actions in tort: The statute of limitations does not begin to run until after actions called for in an administrative order (AO) are completed or costs paid. This resolution, however, turns on the conclusion that all AOs for cleanup under CERCLA §106 are “civil actions” within the meaning of CERCLA §113(f)(1).

Creating Legal Pathways to a Zero-Carbon Future

by John C. Dernbach

An essential part of the decarbonization challenge is proposing, analyzing, and comparing various legal pathways to that result in each individual country. Those legal pathways should be capable of reducing greenhouse gas emissions at a speed and scale needed to give the world its best chance of keeping the global average temperature increase below 2°C while also producing as many economic, social, environmental, and security benefits as possible. This Article, adapted from Chapter 2 of Contemporary Issues in Climate Change Law & Policy (ELI Press 2016), provides an overview of the challenge of achieving a zero-carbon future, as well as the way in which sustainable development would frame the decisionmaking process for doing so.

“Waters of the United States” and the Agricultural Production Sector: Sweeping Change or More of the Same?

by Emily Taylor

EPA and the Corps’ promulgation of a new definition of “waters of the United States” under the CWA has prompted a fierce rhetorical and legal debate. EPA maintains that the agencies’ jurisdiction may actually be limited by the new definition, while agricultural organizations maintain that jurisdiction is increased in violation of the agencies’ statutory authority. While heavily engaged in public dialogue, neither side has attempted to offer a systematic legal analysis comparing the scope of jurisdiction under the preexisting rule to its scope under the final rule. This Article engages in such an analysis and ultimately shows that the agencies’ jurisdiction under the new definition is, if at all changed, more limited than under the preexisting rule.


How to Communicate Scientific Uncertainty

by Jay Austin, Sunshine Menezes, Jason Samenow, and Margaret Davidson

Scientific uncertainty is a component of many environmental and public health issues, such as climate change or the use of biotechnology. While some uncertainty is inevitable, the ways in which various professions communicate uncertainty also shape those debates, from the interpretation of scientific data to its dissemination for a mass audience to its use in advocacy and policymaking. Scientists, lawyers, and journalists all play different roles in addressing scientific uncertainty, in part due to differing professional norms and ethical standards. On April 15, 2016, the Environmental Law Institute convened a webinar featuring experts from each of these professions, who provided their perspectives on effectively communicating scientific information, practicing climate and weather journalism in a shifting media environment, and translating uncertainty into policy. Here, we present a transcript of the discussion, which has been edited for style, clarity, and space considerations.