In a comment appearing in 13 ELR 10099 (April 1983), Kenneth L. Rosenbaum criticized a recent decision by the United States District Court for the District of New Hampshire, United States v. Johns-Manville Sales Corp.¹ In its decision in Manville, the court held that neither the federal nor state government could continue to prosecute a suit seeking a mandatory injunction requiring Manville to clean up hazardous waste sites where it had disposed of asbestos waste for several years prior to its filing for reorganization pursuant to Chapter 11 of the Bankruptcy Reform Act of 1978 (the Bankruptcy Code or the Code).² The court based its decision on the automatic stay of suits against a debtor contained in §362 of the Bankruptcy Code. This provision is intended to give the debtor "a breathing spell from his creditors" in order to permit the debtor to attempt to fashion an orderly repayment or reorganization plan or "simply to be relieved of the financial pressures that drove him into bankruptcy."³ In addition, the Code seeks to prevent creditors from making a race to the courthouse to collect the debts owed to them before a fair and equitable plan for the repayment of debts is approved by the bankruptcy court.⁴ The Manville court held that because the effect of the relief sought would require "the expenditure of substantial funds from the assets of Manville" the governmental suit against Manville was subject to the automatic stay and could not proceed.⁵

Mr. Rosenbaum strongly disagrees with the result reached by the Manville court, and argues that a debtor undergoing reorganization in the bankruptcy court should be subject to suit for a mandatory injunction requiring the abatement of an environmental hazard if the government can demonstrate that the hardship to the public outweighs the hardship to the debtor's estate and its creditors. We believe that the Bankruptcy Code permits no balancing whatsoever under the facts in the Manville case. If a change in the Bankruptcy Code should be made granting environmental suits a privileged status this change should be made by the legislature and not by the courts.