In their article, "Bankruptcy and the Cleanup of Hazardous Waste: Caveat Creditor,"¹ Messrs. Drabkin, Moorman and Kirsch discuss a problem of critical concern: the proper balance between requirements contained in environmental statutes and protections afforded by the Federal Bankruptcy Code.² While the article focuses on the applicability of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)³ to situations involving the disposal of toxic wastes, numerous other federal and state environmental statutes governing different forms and sources of pollution are also subject to this balancing process.

The conflict between bankruptcy and environmental law boils down to a decision on who is responsible for cleaning up pollution hazards: debtors, creditors, or the government. If a debtor is permitted to invoke the provisions of the Bankruptcy Code, the list can be narrowed to two possibilities. Choosing between them raises a fundamental issue of fairness to the creditor, who may have had no knowledge of a debtor's unlawful actions. In that respect, the article provides valuable advice by suggesting that closer scrutiny of investments in enterprises that have potential environmental liabilities may be advisable. However, the article is disturbing to the extent that it presents bankruptcy law as an appropriate mechanism for dealing with environmental cleanup decisions. This approach disregards the legislative history of the Bankruptcy Reform Act of 1978,⁴ in that Congress clearly indicated that the Bankruptcy Code was not to be used to evade responsibilities mandated by environmental protection statutes. Unfortunately, the recent Supreme Court decision in Ohio v. Kovacs⁵ lends some support to the article's approach.