November 06, 2020

Environmental Liability (see also CERCLA, Lender Liability and Superfund)

Environmental Liability ( see also CERCLA, Lender Liability and Superfund)

The Impact of "Superfund" and Other Environmental Statutes on Commercial Lending and Investment Activities
      Margaret Murphy, 41(4): 1133–63 (Aug. 1986)
Recent developments in environmental law could profoundly affect commercial financing transactions and other investment activities. As the cost of environmental clean up increases, public and private litigants are asserting broad liability theories that expand traditional rules governing recovery against parent and successor corporations and lenders with secured interests in contaminated property. New statutes also affect investment activities either by imposing a so-called superlien when the government has extended funds to clean a contaminated site or by restricting or prohibiting the transfer of contaminated property.

Inappropriate and Unconstitutional Retroactive Application of Superfund Liability
      George Clemon Freeman, Jr., 42(1): 215–48 (Nov. 1986)
This Article argues that the EPA's interpretation of Superfund—retroactive application of a new federal substantive liability (strict, joint, and several liability) without any requirement of proof of causation—is fatally flawed. The EPA and the courts it has persuaded have ignored the strong presumption against retroactive construction and have failed to consider grave constitutional problems, including separation of powers, bill of attainder, ex post facto, and due process concerns.

CERCLA Made Simple: An Analysis of the Cases Under the Comprehensive Environmental Response, Compensation and Liability Act of 1980
      Lewis M. Barr, 45(3): 923–1001 (May 1990)
Over the past ten years, the courts have reached a consensus on most of the issues presented under CERCLA. As the issues have grown more sophisticated, certain splits of authority have emerged, some of which may need congressional clarification. In general, most courts have interpreted CERCLA to accomplish the results Congress apparently intended.

The Interface Between Bankruptcy and Environmental Laws
      Arlene Elgart Mirsky, Richard J. Conway, Jr., and Geralyn G. Humphrey, 46(2): 623–91 (Feb. 1991)
Because of the pervasiveness of environmental concerns and bankruptcy concerns in business today, it is important for businesses and their counsel to understand how the environmental laws and the bankruptcy laws interact. This Article discusses how bankruptcy affects environmental issues and offers practical guidance for the debtor, creditor, and their counsel when facing these issues.

Application of the Abnormally Dangerous Activities Doctrine to Environmental Cleanups
      Jim C. Chen and Kyle E. McSlarrow, 47(3): 1031–52 (May 1992)
The common law tort doctrine of strict liability for abnormally dangerous activities is emerging as a key element of the law of hazardous substance regulation, which has been dominated by CERCLA. Recent applications of the abnormally dangerous activities doctrine have shown the doctrine's formidable potential for expansion. Together with the related torts of nuisance and trespass, strict liability for abnormally dangerous activities have already begun to complement CERCLA's scheme for allocating the costs of cleaning hazardous waste sites. The authors also explore how the revitalized application of the abnormally dangerous activities doctrine to environmental cleanups will affect insurance coverage.

Capital Privatization and the Management of Environmental Liability Issues in Poland
      Ruth Greenspan Bell and Thomas Adam Kolaja, 48(3): 943–61 (May 1993)
This Article describes how environmental liability has been addressed in privatization transactions that have occurred to date in the capital privatization program of the Ministry of Privatization, Republic of Poland. It also explores practical and policy considerations raised by the ways in which these issues have been resolved.

EPA's Final Rule on Lender Liability: Lenders Beware
      Roger D. Staton, 49(1): 163–86 (Nov. 1993)
The Article explores the recent history of court decisions establishing lender liability under CERCLA. Comment is made on proposed EPA rules pending in 1992, congressional legislation proposed to remedy interpretive problems, the final rule as passed by the EPA in April 1992, and recent judicial interpretations of that rule.

United Paperworkers International Union v. International Paper Company: Environmental Disclosure and the "Total Mix" Concept of Materiality
      Stephen Dolan, 49(3): 1225–41 (May 1994)
In United Paperworkers International Union v. International Paper Co., 985 F.2d 1190 (2d Cir. 1993), the U.S. Court of Appeals for the Second Circuit ruled that, under certain circumstances, a company's Form 10-K report filed with the SEC is not part of the "total mix" of information reasonably available to shareholders. In so holding;t4, the court refined the total mix concept of materiality to exclude publicly filed documents from the total mix when their availability is asserted to establish the immateriality of a management proxy statement misrepresentation. More important, this author argues, is the court's willingness to carefully scrutinize management proxy statement disclosures regarding a company's environmental record, signaling that courts may now join the SEC and other government agencies in carefully reviewing corporate environmental disclosure.

Environmental Liability Disclosure and Staff Accounting Bulletin No. 92
      Richard Y. Roberts and Kurt R. Hohl, 50(1): 1–17 (Nov. 1994)
As society strives to maintain and to improve our environment, operating companies incur costs that may need to be disclosed to investors under the federal securities laws. These environmental costs have reached staggering proportions in recent years and are one of the critical issues facing businesses today. The large dollar amounts involved have produced increased pressure on the SEC to monitor the adequacy of disclosures by publicly held companies and to provide guidance to companies regarding offsetting, discounting, and other disclosure matters. This Article provides an evolution of disclosure requirements for contingent liability and analyzes the future of environmental liability disclosure in light of Staff Accounting Bulletin No. 92.

Environmental Liability and the Law of Contracts
      Douglas A. Henderson, 50(1): 183–266 (Nov. 1994)
This Article examines recent judicial interpretations of contractual indemnity, hold harmless and release provisions that attempt to allocate hazardous waste liability. After giving attention to the choice-of-law issues and the wide range of legal theories developed to date in analyzing the enforceability of such provisions, the Article investigates the range of contractual provisions accepted and rejected by the courts. A final section, drawing on these interpretations, develops several guidelines for drafting and litigating contracts involving environmental liabilities.

Further Progress in Defining Constitutional Constraints on Punitive Damages and Other Monetary Punishments
      George Clemon Freeman, Jr. and Makram B. Jaber, 61(2):517—568 (February 2006)
This article updates an earlier article by Freeman that was published in the February 2002 issue of The Business Lawyer on the status of the United States Supreme Court's rapidly evolving jurisprudence on constitutional constraints on punitive damage awards. Since then, the Court in State Farm Mutual Automobile Ins. Co. v. Campbell reinterpreted and revised the three factors set forth earlier in BMW of N. Am. Inc. v. Gore for determining whether a punitive damages award was "grossly excessive" and therefore constitutionally prohibited. This article describes State Farm's new guidance, examines how lower federal and state courts have responded to it, and suggests possible areas where further guidance by the Court may be needed. The 2002 article also discussed the potential applicability of due process constraints, particularly the requirement of fair notice and the prohibition of "grossly excessive" punishment, to other monetary punishments authorized or imposed by state or federal government. In that broader context this article discusses several opinions dealing with due process challenges to statutory or administrative prohibitions or other limitations on timely judicial review of EPA administrative orders under the Clean Air Act and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

Compliance and Ethics Programs: What Lawyers Need to Know to Understand the Development of This Field
     Steven A. Lauer and Joseph E. Murphy, 75(4): 2541-2566 (Fall 2020)
Corporate compliance programs, a relatively new phenomenon in the corporate arena, have evolved over the past few decades. What challenges have compliance professionals encountered during that short history? What issues might they face in the coming years? The authors review that history and render some educated guesses as to the answers to that last question in this article.

Profound Change: The Evolution of ESG 
     A Discussion Among E. Christopher Johnson, Jr., John H. Stout, and Ashley C. Walter, 
75(4): 2567-2608 (Fall 2020)
This article has been abstracted from a series of telephone conference discussions among E. Christopher Johnson, Jr., John H. Stout, and Ashley C. Walter, each of whom has chaired committees of the Business Law Section and served as a member of the Council. The discussion focused on the evolution, meaning, and critical importance of the ideas, meanings, and principles embodied in the terms “sustainability,” “CSR” (corporate social responsibility), and ESG (environment, social, and governance). The discussion began before the novel coronavirus and the killing of George Floyd impacted our lives—our country’s and the world’s social, political, and economic well-being and order. The discussion and preparation of this article was heavily influenced by these events as they forced not only an examination of the history of the above terms but also a reflection on their application to, and relevance for, strategically charting a path forward.