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  American Business Law Journal
  Volume 37, Issue 1, 1999
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  • Articles
  • Special Editor's Introduction
        Lynda J. Oswald
        p.1                                                                                          +cite        
  • Who's on First: CERCLA Cost Recovery, Contribution, and Protection
        Martin A. McCrory
        p.3                                                                                          +cite        
        The Comprehensive Environmental Response Compensation and Liability Act (CERCLA) was enacted in 1980 to promote the expeditious removal and remediation of hazardous substances at sites throughout the United States. In theory, the statute requires those responsible for the release of hazardous substances to clean them up; however, defendants often argue that they pay more than their fair share for site cleanups. In 1986, Congress amended the statute to allow defendants to obtain contribution from other liable parties and to grant settling defendants protection from subsequent liability. Defendants can also sue for cost recovery. This article examines the development of CERCLA and discusses response action and liability, cost recovery actions and contribution actions. It proposes statutory language to alleviate the problems courts have in granting contribution protection to settling defendants.
  • Inching toward Environmental Regulatory Reform—ISO 14000 Much Ado about Nothing or a Reinvention Tool?
        Paula C. Murray
        p.35                                                                                        +cite        
        Changing our local and global environmental regulatory paradigm has received widespread support for the past ten years. Unfortunately, the shift away from command-and-control has been extremely slow. Although the Environmental Protection Agency (EPA) has begun several pilot programs aimed at reinventing regulation, these programs are limited and piecemeal. This article argues that the international environmental standard, ISO 14000, is an appropriate tool to foster environmental policy reform. The standard is voluntary and, therefore, there is no need for Congressional action. With some modifications to the standard, ISO 14000 could be the first step to meaningful environmental policy reform.
  • WTO Scrutiny v. Environmental Objectives: Assessment of the International Dolphin Conservation Program Act
        Carol J. Miller and Jennifer L. Croston
        p.73                                                                                        +cite        
        Because the General Agreement on Tariffs and Trade (GATT) principles emphasize minimization of trade barriers, environmental trade measures have not faired well under the scrutiny of GATT/WTO panels. For example, GATT panels have refused to permit United States embargoes to protect dolphins from purse seine and driftnet fishing methods. The United States is, therefore, relying on dolphin-free labeling instead, hoping that this less restrictive measure may withstand WTO challenges. Environmentalists claim, however, that dolphin lives are unjustifiably sacrificed because of the new watered-down definition of "dolphin-safe" tuna. Furthermore, the GATT/WTO standards and decision-making process need to be altered to permit greater acceptance of a variety of environmental trade measures, especially those implemented as a result of recognized multilateral environmental agreements.
  • A Communitarian Green Space between Market and Political Rhetoric about Environmental Law
        M. Neil Browne and Nancy K. Kubasek
        p.127                                                                                      +cite        
        Environmental policy cannot be effective when market foes and market apologists can prevent each other from enacting legislative proposals. Communitarianism provides a basis for melding the salient arguments of each of these two contingents. The dual themes of personal responsibility and interdependence that form the muscle of communitarianism offer friendly terrain for what are ordinarily warring factions. This article first describes communitarianism as a way of looking at the world. Subsequent sections describe the power of market thought in public discourse, and the gridlock it creates with respect to environmental legislation about Superfund, wetlands, and endangered species. The final section suggests a middle ground offered by communitarians for those wishing to build a sustainable environment.