Trustees face possible liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) because, as holders of legal title to property, they may be "owners" or "operators" of CERCLA facilities. Although CERCLA does not expressly address trustee liability and the U.S. Environmental Protection Agency, except for a brief mention in the preamble to its lender liability rule, has not formally addressed the subject, common-law trust principles support finding trustees liable for CERCLA damages in certain situations.

Editors' Summary: The extent to which the existing version of CERCLA removes the federal government's sovereign immunity has long been a matter of contention between states and several federal agencies. This Dialogue discusses the statutory framework, and describes the manner in which DOD and DOE have contended that the existing CERCLA "waiver" does not remove the government's immunity shield.

Editors' Summary: Despite adding the §113(f) "contribution" provision to CERCLA in 1986, Congress did not indicate whether the section was meant to supplement private parties' efforts to recover response costs form other potentially responsib parties's efforts to recover response costs form other potentially responsible parties under CERCLA §107 or was meant to preclude such cost recovery actions. More and more courts that address this issue are requiring plaintiffs to file §113(f) actions.

Editors' Summary: Institutional controls are a mechanism for providing a certain degree of safety in the absence of technology that could clean contaminated sites thoroughly. Institutional controls come in a variety of forms, each of which can be designed to meet specific site needs. Flexible but long-lasting mechanisms such as institutional controls can be used to ensure that land uses continue to be compatible with the level of cleanup at a site.

Even if it is wrong, the U.S.

Editors' Summary: The Clinton Administration's proposed Superfund amendments—the Superfund Reform Act of 1994 (SRA)—were introduced in both the House and Senate in early February. Steven M. Jawetz of Beveridge & Diamond, reviews several key provisions of the bill's first five titles, including proposals to increase delegation to states, narrow defenses to EPA administrative orders and cost recovery actions, institute a nonbinding allocation process, and modify the remedy selection process. Mr.

The demise of efforts by a broadly based coalition of stakeholders to reauthorize Superfund in the 103rd Congress leaves the legislative field open for reconsidering all the key assumptions underlying the "consensus" bill that dominated last year's debate. Unless the coalition remains unified, and the Administration supports it aggressively, the substance will begin to unravel, the process will become chaotic, and Congress could easily miss the December 1995 deadline to reauthorize the statute.

November 1, 2010

Dear Mr. Feinberg,

We write today to emphasize the importance of restoration as an appropriate and necessary goal of the Deepwater Horizon compensation fund, and to note the centrality of the concept of ecosystem services to the proper assessment of compensation for environmental harms and strategies for achieving ecosystem restoration. To the extent that the existing Trust authority is not sufficient to take account of these concepts, we encourage you to seek broader authority.

Restoration as Part of Compensation

Editor's Summary: In 2003, the U.S. Supreme Court issued its most recent pronouncement on the executive foreign affairs preemption doctrine in American Insurance Ass'n v. Garamendi. In this Article, Kimberly Breedon argues that lower courts are prone to overbroad applications of Garamendi because the Court assumed the presence of three elements when it developed the standard for executive foreign affairs preemption of state law: (1) formal source law; (2) nexus to a foreign entity; and (3) indication of intent by the executive to preempt the state law under challenge.

Editors' Summary: The U.S. Supreme Court ruled on three takings cases in its 2004 term: Lingle v. Chevron U.S.A., Inc.; Kelo v. City of New London; and San Remo Hotel, Ltd. Partnership v. City & County of San Francisco. In Lingle, the Court struck down the "substantially advance" test set forth in Agins v. City of Tiburon. Kelo, which gained attention from the media and public, upheld the use of eminent domain for economic development purposes. And San Remo involved a relatively straightforward procedural issue.