Editors' Summary: This Comment surveys the environmental activity of the first session of the 99th Congress. While Congress could have passed reauthorizations of most major environmental programs including hazardous waste management, clean water, and clean air, it focused instead on money—the budget, departmental appropriations, and tax reform. Numerous bills progressed during the session, but few actually passed—the farm bill and the Gramm-Rudman-Hollings Deficit Reduction Act being the notable exceptions.

Editors' Summary: The 1977 Clean Air Act Amendments single out for harsh air pollution control measures those parts of the country whose air quality does not measure up to federal standards. Virtually every major city in the country was a nonattainment area for ozone, the regulatory surrogate for smog. The final deadline for cleaning up these areas expires next year and many cities still have too much smog.

The mind rolls back to the words of the Bard in The Merchant of Venice:

Though justice be thy plea, consider this,

That in the course of justice, none of us

Should see salvation: we do pray for mercy,

And that same prayer doth teach us all to render

The needs of mercy.¹

Editors' Summary: The Environmental Protection Agency (EPA) has long been embroiled in controversy over its regulation of hazardous air pollutants under §112 of the Clean Air Act. The Act requires rapid, stringent regulation of pollutants EPA lists as hazardous, but leaves it to EPA to decide what to list. In the 16 years since §112's enactment, EPA has listed only a handful of pollutants and been slow to regulate those it has listed.

Editors' Summary: This Comment describes EPA's process for handling hazardous waste sites governed by CERCLA: which authorities will the agency use, how will it analyze the nature of the problem at each site, and what remedies will it use or require others to implement. The author observes that the generality of statutory and regulatory guidance gives the agency great flexibility, upon which EPA has imposed some constraints through policy memoranda and guidance documents.

Congress is the primary authority guiding the risk-management decisions of the courts and regulatory agencies, whose chief role in risk management is implementation of the policies established by Congress. Federal regulatory agencies are creatures of Congress and exercise only such authority as Congress bestows upon them; they assess and manage risk according to criteria and standards enacted by Congress. The courts are subject to similar constraints, except, of course, when constitutional issues are involved.

Editors' Summary: The 99th Congress closed out its second session with a flourish, passing several key environmental bills and coming close to agreement on several others. The new Democratic majority in the Senate gives every indication that the 100th Congress will be even more active. This comment reviews the major environmental activities of the 99th Congress' second session, and discusses the likely topics of environmental debate on tap for the first session of the 100th.

"Environmental Lawyer." Twenty years ago this term carried no meaning and one would have been hard pressed to find a member of the bar who would admit to such a legal invention. Historically, it originated in the environmental movement of the 1970s, as the momentum of new environmental requirements was simultaneously propelled by an active environmental constituency and challenged by the competing interests of industry.

In his Comment¹ on United States v. Maryland Bank & Trust Co.,² Phillip Reed suggests, "[L]ike other landowners and hazardous waste generators who have learned too late just how broad CERCLA's liability scheme can be, they [banks and other creditors] may simply have to pay the piper."³ Without intending to be contentious, I believe the contrary is true. Banks and other creditors will only have to dance to a new tune. The public will end up paying the piper.

Four or five years ago, I tried to fit the time into my schedule to write an article on the possibility of negotiating regulations. I figured that no one would ever take it seriously, and that I would then move on to the practice of law. Today, I am still trying to escape and move on to the practice of law: People did take the idea seriously; many seminars have been held to discuss the concept, and several agencies have used the process. I think it has been established as a viable alternative to traditional notice-and-comment or hybrid rulemaking.