Editors' Summary: The rationalization of conflicts between environmental law and bankruptcy law continues. The recent emergence of a substantial body of state and federal law imposing financial liability on businesses for the cleanup of hazardous wastes has brought environmental lawyers into the realm of bankruptcy with increasing frequency. Attempts to mix the two bodies of law often produce conflict, because the laws serve distinct purposes. Two of the disputes have risen to the Supreme Court, but major issues remain.

The recent wave of citizen suits has prompted criticisms that many of the suits are unfounded, will not improve environmental compliance, and may improperly invade the prosecutorial power of the government. There are sound reasons why enforcement often is not pursued or is handled informally by the government; these factors frequently are not considered by citizen groups. The following are some observations from a defense perspective.

Environmental protection, unlike increasing profits, is not a natural goal of American business. Certainly the history of this nation through the 1960s, when virtually all environmental protection was voluntary, confirms that those making the profits had little concern for the environmental impact of profit-making activities.

Editors' Summary: The trend in cases deciding CERCLA landowner liability has been to increase the situations in which liability arises. Lending institutions' liability for cleanup costs and remedial action at hazardous waste sites for which they have made loans to property owners is the most recent area of dispute. The recent decision in United States v. Maryland Bank & Trust Co. has caused the banking industry to sit up and take notice of CERCLA landowner liability. Contrary to another recent district court decision, United States v.

Mr. Chairman, distinguished guests, and fellow students of the law: what a delightful place to be. Thank you for inviting me.

I feel very much at home addressing this group. Our values are common, our interests are common, and we speak a common language. In looking at risk, whether as judge or lawyer, court or court officer, the challenges we face are common as well.

Quantative estimates of human risk are now used for regulation and management of many technological, environmental, and occupational health risks. Ten or more years ago, this was not the case; except for activities for which reliable data were directly available (such as transportation risk) and for a few other areas (such as ionizing radiation), risk management decisions were made without quantitative risk estimates, although analytical methods that stopped well short of estimating risk were used.

DR. ELIZABETH L. ANDERSON: Dr. Whipple has emphasized that risk assessment is on the rise because of policy needs, and I think this is certainly true. Two other points come to mind, and I think they are worth mentioning. First, as the number of our laws increased, scientists searched for their role in the public policy arena. Over time, scientists have become more cautious about making decisions to define a safe level of exposure in the face of scientific uncertainty. Policy makers and lawyers often press science for the answer to what is safe.

Life is a risky business. In this complex technological society, we simply cannot go about our daily activities without exposing ourselves and others to risks to our health and to our shared environment. Risks lurk in our diets, in our jobs, and in our recreational activities. Fortunately, we can reduce risks by amending our conduct and by implementing risk-reduction technologies. These efforts, however, claim resources, in both time and money. Individually and collectively, we face hard choices about how much risk is acceptable and how much risk should be avoided.

DR. JOEL HIRSCHHORN: First, I would like to support the view that there is, in fact, a lack of public trust in the Environmental Protection Agency (EPA). This lack of trust extends to both risk assessment and risk management.

My topic is a large one, and I cannot hope to cover it in detail. Instead, I shall offer a sketch of an idealized environmental risk management system and ask how the courts have contributed or might contribute to its realization. I shall focus on three specific contexts in which courts participate in environmental risk management: review of administrative action, particularly of federal regulatory action (or inaction); actions in the first instance for injunctive relief against claimed environmental hazards; and actions for compensatory damages.