Last year the Supreme Court in Robertson v. Methow Valley Citizens Council¹ and Marsh v. Oregon Natural Resources Council² extended its perfect record in National Environmental Policy Act (NEPA)³ jurisprudence: in the 20 years since NEPA was enacted, the High court has never written to expand NEPA's application and has consistently narrowed or reversed generous rulings by the courts of appeals. In essence, for two decades the Justices have never gotten it right.⁴

Editors' Summary: Environmental auditing has proliferated in use and matured in complexity as a tool for detecting and preventing potential environmental problems. As a result, environmental auditing has taken many forms and has produced controversy. Key factors in this controversy include the current environmental regulatory climate, the need for certainty in understanding the potential environmental liabilities involved in decisionmaking, and the lack of uniformity in environmental audits.

Buyers of any real property, a facility, or a company that owns real property or facilities should understand their potential exposure to environmental liability as a result of such acquisitions before closing any deal. Buyers, sellers, and lenders can avoid onerous demands and outright refusals to undertake a transaction if sufficient information is available to manage, if not eliminate, uncertainties about environmental liability.

Editors' Summary: In November 1989, the Army Corps Engineers and the Environmental Protection Agency signed a Memorandum of Agreement outlining mitigation requirements for Federal Water Pollution Control Act § 404 permits. The White House delayed the Memorandum's effective date twice, responding to criticism from the Departments of Energy and Transportation, the oil and gas industry, and development interests in Alaska.

In November 1989, the U.S. Army Corps of Engineers and the Environmental Protection Agency (EPA) signed a Memorandum of Agreement¹ on requirements for mitigating losses to wetlands under §404 of the Federal Water Pollution Control Act (FWPCA).² The Memorandum's goal of "no net loss" of wetlands was openly endorsed by the Bush presidential campaign but had not since been made a written policy. The Memorandum set off a firestorm.

Editors' Summary: The Clean Air Act requires the states and EPA to aggressively attack the problem of air pollution in the nation's cities. The Act's 1977 Amendments directed states to adopt and implement plans, including transportation controls and other measures, to ensure attainment of health standards by 1982 (or in some cases 1987). Despite the statutory mandate, many states have failed to adopt adequate plans, and others have failed to implement the plans that have been adopted.

Editors' Summary: The 1986 Superfund Amendments required EPA to make substantial changes in the national contingency plan, EPA's principal rulemaking under the Superfund program. Congress imposed potentially conflicting mandates on EPA, such as requirements to maximize treatment and to ensure cost-effective remedies. EPA's proposed NCP revisions, issued in December 1988, were analyzed in ELR's March 1989 issue by the EPA attorney who played a principal role in drafting the proposed revisions.

When the Superfund Amendments and Reauthorization Act of 1986 (SARA)¹ was enacted in October 1986, the Agency for Toxic Substances and Disease Registry (ATSDR) was still in the early stages of development as a new entity in the Public Health Service.² Staff had to be recruited; an organizational structure had to be developed; working arrangements with the Environmental Protection Agency (EPA), the Centers for Disease Control (CDC), and the states had to be defined and implemented; and a host of policy decisions had to be resolved.

Editors' Summary: RCRA reauthorization bills are currently moving through Congress. While RCRA Subtitle C provisions, addressing hazardous waste, continue to garner the lion's share of legislative attention, the author examines why Subtitle D provisions, dealing with solid waste; must be given greater attention and regulatory oversight. Specifically, the author focuses on industrial waste, which may represent as much as 94 percent of municipal, hazardous, and industrial wastes combined.

Editors' Summary: A principal purpose of CERCLA is to fix liability for cleanups on "responsible parties" through prompt response actions and settlements. Liability of all responsible parties connected with a CERCLA facility is joint and several, and consequently EPA's remedial investigations make little effort to ascertain all responsible parties and their proportional liability. Rather, EPA typically moves against a few large contributors, leaving the allocation of individual responsibility and enlargement of the class of potentially responsible parties (PRPs) to those entities.