The Sad State of the Policy Debate

Since its creation in 1980, the Superfund program has overcome a number of obstacles. It survived embarrassing political scandals in its first few years. It endured a failure to reauthorize the underlying statute in 1985, a lapse that led to widespread disruptions at the U.S. Environmental Protection Agency (EPA) and set the program back significantly. It has persevered in the face of attacks from many sides.

By the beginning of the 106th Congress, comprehensive legislative reform of the Superfund statute had consumed six fruitless years of effort. Adopting a new approach, the Administration decided to seek narrow, targeted legislation. In testimony that would be repeated several times in 1999, the U.S.

Editors' Summary: In this Article, a Senior Attorney at the Environmental Law Institute discusses ways to redevelop brownfields while protecting public health and the environment. His Article explores the various mechanisms for controlling land use to allow for the sustainable development of these contaminated properties. The author begins by examining both government-imposed controls, such as land use planning and zoning, and property law-based controls, such as covenants and easements.

Conventional wisdom says that the Resource Conservation and Recovery Act (RCRA) is an impediment to the reuse of brownfields. Examination of a decade of experience, however, reveals that properties "captured by the net" of RCRA jurisdiction have gone on to new, productive, and economically viable reuse. Contrary to conventional wisdom, there is also a great potential for many more RCRA properties to do so.

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.

On May 4, 2009, the U.S. Supreme Court handed down its decision in Burlington Northern & Santa Fe Railway Co. v. United States. The decision is of major significance with respect to two areas of Superfund jurisprudence--"arranger" liability, and divisibility or apportionment of harm. This Article is concerned only with the latter issue and, moreover, only with one specific element of that issue.

This past May, the U.S. Supreme Court for the first time addressed two issues that the U.S. Congress left open in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). These issues are: (1) the scope of "generator" or "arranger" liability under the language of CERCLA §107(a)(3); and (2) the circumstances under which a liable party under §1073 may be held jointly and severally liable. Rejecting the position of the U.S.

Editors' Summary: EPA recently proposed for public comment a draft guidance document that discusses voluntary federal recommendations for hundreds of thousands of nonhazardous industrial waste sites that currently escape RCRA regulation. In this Dialogue, a member of the chartered advisory group that assisted the Agency in the development of the document discusses its attributes and shortcomings. The Dialogue describes the history of EPA's use of RCRA Subtitle D and the statutory and programmatic obstacles to meaningful federal regulation.

This Article discusses the original goals of Agenda 21¹ related to achieving "environmentally sound" solid waste management and reviews U.S. activities and policies with regard to solid waste over the last decade. Of greatest interest to the public and the media has been municipal solid waste (MSW)—ordinary household, commercial and institutional garbage or trash. Overall, the record of the United States in achieving sustainable solid waste management, including steady state or decreasing levels of waste generation and disposal, is mixed.