Center for Biological Diversity v U. S. Forest Service: A New Type of Claim or Just Another Step in the Chain of Causation?1

Abstract

This article discusses what it means to “contribute” to waste disposal as that term is used in section 7002 of the Resource Conservation and Recovery Act. More specifically, the article examines whether the US Forest Service can violate section 7002 by not regulating hunting. Among the issues addressed are whether one can contribute to waste disposal passively, whether one can contribute to waste disposal without taking any action that addresses waste disposal and the extent to which the statutory term “contribute” is analogous to the common law concept of causation.     

U.S. Army Corps of Engineers v. Hawkes Co.: Supreme Court Expands Rights of Regulated Parties to Challenge Agency Decisions

This article analyzes the potential impacts of the Supreme Court's recent decision in U.S. Army Corps of Engineers v. Hawkes Co. Prior to this decision, federal agency action that merely provided information could not be challenged because of the Administrative Procedure Act allowed parties to challenge only “final agency action.” The Court recognized that some actions that merely provide information can be final because they have legal consequences. To understand the extent to which the Hawkes decision expands the right to challenge agency action, the article compares the Hawkes decision with the Court's decision in Sackett v. Environmental Protection Agency, where the Court also discussed the issue of “final agency action.” The article concludes that the Court's reasoning regarding what type of consequences make an action “final” is the key to understanding what regulatory action can now be challenged.     

Should Banks Change Their Environmental Due Diligence Policies to Reflect the Revised USEPA Rule on All Appropriate Inquiry?

This article raises questions about the environmental due diligence programs common among lenders and suggests changes. The article describes the statutory, regulatory, and case law changes that have largely eliminated the liability risk that caused lenders to institute due diligence programs, and questions whether lenders have an interest in requiring borrowers to follow the new ASTM standard. The article examines the differences between environmental liabilities and environmental costs and explains why those differences should be taken into account. Finally, the article recommends a case-by-case approach to dealing with environmental issues rather than the simplistic view that looks at environmental due diligence as a yes or no question.     

CERCLA Arranger Liability: Town of Islip v. Datre: What Intent is Required?

In Town of Islip v. Datre, the court dismissed a Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) claim based on failure to allege that the defendant knew that the waste it disposed of was hazardous. The court based its decision on language in the Supreme Court's decision in Burlington Northern that indicated that to be liable under CERCLA as one who arranged for disposal, there is a knowledge or intent element. This article questions the Datre decision and argues that the “knowledge” required by the Burlington Northern Court is knowledge that the transaction is a disposal, not knowledge that the waste disposed of is hazardous.     

Do Plaintiffs in CERCLA § 113 Contribution Actions Need to Prove Consistency with the National Contingency Plan?

This article discusses whether the claimant in a contribution action brought under section 113 of Comprehensive Environmental Response, Compensation, and Liability Act needs to prove that the costs were incurred in a manner that was consistent with the National Contingency Plan (NCP). This article examines the recent case law as well as the Supreme Court decisions that address the relationship between sections 107 and 113 and concludes that although the recent case law suggests that NCP is a requirement, the Supreme Court's analysis of the relationship between sections 107 and 113 in United States v. Atlantic Research Corp. may undermine the basis for that conclusion.     

When Does an Administrative Order Resolve CERCLA Liability Sufficiently to Trigger a § 113 Contribution Action?

This article discusses how parties who are negotiating administrative agreements with regulatory agencies regarding the remediation of inactive hazardous waste sites can best protect their right to bring a contribution action against other responsible parties. The article discusses the relevant statutory provisions and the case law, much of which holds that parties failed to preserve their contribution rights, and provides advice regarding specific language to include in such agreements.     

Common Misconceptions Regarding the Environmental Regulatory System

To deal effectively with environmental regulatory agencies and to better defend environmental claims requires a clear understanding of the regulatory agencies. This article examines some popularly held views about the environmental regulatory agencies that have little or no basis in fact and that can lead to greater costs and greater difficulty in dealing effectively with environmental issues.