Volume 27, Issue 2
Summer 1997
ARTICLES
The Constitutional Rights of Nonsettling Potentially
Responsible Parties in the Allocation of CERCLA Liability
Christopher D. Man
Mr. Man, an associate with the
Washington, D.C. office of Hunton & Williams, examines the Comprehensive
Environmental Response, Compensation, and Liability Act's liability provisions
and settlement process, and argues that denying nonsettling parties their right
to seek further contribution from other Potentially Responsible Parties
violates the Due Process Clause of the Fifth Amendment. In addition to
suggesting alternatives to the current liability and settlement schemes, he
suggests that nonsettling party interests should be reexamined, and posits that
nonsettling parties deserve additional safeguards to protect their
constitutionally guaranteed due process rights.
Keeping Pigs Out of Parlors: Using Nuisance Law to Affect
the Location of Pollution
Andrew Jackson Heimert
Mr. Heimert discusses
environmental regulations through nuisance law and compares this type of
pollution regulation to the modern antipollution statutes, which he argues do
not provide locational incentives. He then argues that nuisance law retains an
advantage over existing statutory regimes in that it addresses harms created by
pollution and can thereby provide incentives to locate so as to mend the harms
polluters create. Because of this advantage, Mr. Heimert concludes that state
nuisance law is not preempted by federal statutes and should be utilized to
supplement current environmental laws.
Reforming Livestock Grazing on the Public Domain:
Ecosystem Management-Based Standards and Guidelines Blaze a New Path for Range
Management
Bruce M. Pendery
In 1995, the Bureau of Land
Management (BLM) amended livestock grazing regulations on public lands based
largely upon a final environmental impact statement entitled Rangeland
Reform '94. These amendments broke from the previous method that had been
traditionally used by the BLM for administering grazing permits by establishing
new administrative standards and guidelines that embrace some of the ecosystem
management-based standards published by the National Research Council. Mr.
Pendery details the rulemaking effort used to develop the new regulations,
including a review of the legal history behind public land grazing and
summarizations of the modern-day arguments between range scientists, ranchers,
and environmentalists.
COMMENTS
Breaking the Trail of Broken Promises:
"Necessary" in Section 810 of ANILCA Carries Substantive Obligations
Dan Cheyette
Mr Cheyette examines the U.S.
Forest Service's subsistence management policies for the Tongass National
Forest in light of section 810 of the Alaska National Interest Lands and
Conservation Act, which requires federal land management agencies to consider
subsistence resources in all land use decisions. He concludes that the Forest
Service has ignored the substantive requirements of the statute by managing the
Tongass for timber harvesting to the detriment of subsistence resources. Mr.
Cheyette argues that until the Forest Service creates a new management plan
that considers equally all resources of the Tongass, the courts must enjoin
timber sales that adversely impact subsistence resources.
Eliminating the National Forest Management Act's
Diversity Requirement as a Substantive Standard
Julie A. Weis
Ms. Weis considers the U.S.
Forest Service's treatment of the biodiversity standards of the National Forest
Management Act (NFMA). After noting that courts have generally been highly
deferential to the Foerst Service's approach to biodiversity, she addresses
recently proposed changes to NFMA rules, and concludes that these changes would
further reduce biodiversity protections under the statute.
A Case for the Extension of the Public Trust Doctrine in
Oregon
Scott B. Yates
Mr. Yates argues that Oregon
should apply the public trust doctrine to state water allocation decisions to
prevent harm caused to navigable waters by the diversion of water from
nonnavigable tributaries. He examines Oregon's public trust case law and water
code within the analytical framework utilized by the California Supreme Court
in National Audobon Society v. Superior Court of Alpine County, and
concludes that Oregon law supports extending the public trust doctrine into the
appropriation context.
REMARKS
Reflections on the Role of Courts in Environmental Law
Lois J. Schiffer & Timothy J. Dowling
These remarks were delivered by
Ms. Schiffer on October 9, 1996 in Portlad, Oregon at the "Federal Judges
Environmental and Natural Resources Law Seminar" sponsored by the Federal
Judicial Center and the Northwestern School of Law at Lewis & Clark
College. Using Lady Justice as a unifying theme, Ms. Schiffer explores the role
of federal courts in the development of environmental law and examines emerging
envorinmental issues that federal courts face today.
ESSAY
The Case of the Speluncean Polluters: Six Themes of
Environmental Law, Policy, and Ethics
J.B. Ruhl
If the fate of the planet were to depend on the approach to environmental law society chooses, which approach would you suggest? In Professor Ruhl's essay, the time when society faces that questions is delayed for over two millenia by the discovery of a remarkable substance. But the day of reckoning comes in 4310 A.D., when the Supreme Court offers its opinion in a case we can only hope never arises in reality.