New rules are emerging to change the way the government makes decisions about cleanup of hazardous waste sites under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). These changes have altered Superfund decisionmaking fundamentally and irrevocably, requiring the government to reach for new levels of accountability, rationality, and consistency. Central to the government's ability to meet this challenge is the way in which it makes and explains decisions about acceptable risks and required levels of cleanup.

When the 103d Congress convened on January 5, 1993, many observers believed that it would make up for the dismal environmental record of its predecessor. The 102d Congress had tried and failed to reauthorize the Federal Water Pollution Control Act (FWPCA), the Endangered Species Act (ESA), and the Resource Conservation and Recovery Act (RCRA). Its attempt to elevate the U.S. Environmental Protection Agency (EPA) to a cabinet-level department had been blocked in the House of Representatives, and its attempt to reform the General Mining Law of 1872 had been blocked in both houses.

Editors' Summary: This Article addresses the effect of the U.S. Constitution's Takings Clause on the government's authority to protect environmental resources. An earlier Article, published in the May 1994 of ELR, analyzed bases for government regulation provided by limitations inherent in the property right itself. In contrast, this Article focuses on an emerging doctrine of sustainable use, rooted in background principles of nuisance law and the government's complementary police power.

Editors' Summary: Environmental regulation has come under increasing attack from those who argue that governmental limitations on property use violate constitutional restrictions on regulatory takings of property. The author addresses this controversy by focusing on the background limitations on owners' rights that are inherent in property law itself, as opposed to the external controls that government may impose under the doctrines of police power and nuisance.

Is an intentional temporary deprivation of the use of land not a "temporary taking"? This proposition was asserted by a panel of the U.S. Court of Appeals for the Ninth Circuit in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency. The Ninth Circuit denied en banc review, despite a strong dissent by Judge Alex Kozinski. Perhaps because it had never explicated the meaning of "temporary taking," and perhaps in part because its interest was kindled by the Kozinski dissent, the U.S. Supreme Court recently granted certiorari. The question is limited to:

In New York v. SCA Services, Inc., the U.S. District Court for the Southern District of New York rejected the notion that a transporter cannot be an arranger under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). This Dialogue reviews the parties' arguments and the court's opinion. It then analyzes the impact this case will have on transporters.

Under the Superfund program, the U.S. Environmental Protection Agency (EPA or the Agency) faces a dilemma. The Agency wants potentially responsible parties (PRPs) to perform voluntary response actions pursuant to administrative consent orders or judicial consent decrees (collectively referred to as "orders" unless otherwise specified), but does not want to commit extensive attorney resources to negotiating the details of every order.