past November, the Supreme Court declined to hear the case Friends of the Everglades v. South Florida Water Management District. That case was the first in which a federal
appeals court accepted the "unitary waters" theory, an interpretation of the
Clean Water Act that treats all bodies of water in the United States as a
single body. This Field Report discusses
the background and aftermath of the Bush administration's adoption of the
unitary waters theory. Although Friends of the Everglades was a
troubling development, subsequent decisions have limited the damage.
regulation of toxic substances through the Toxic Substances Control Act
(“TSCA”) should be reformed to require greater testing and disclosure of information about chemicals, and to allow EPA
to more easily regulate these substances.
The apportionment formula originally used by the district court and upheld by the Supreme Court in Burlington Northern cannot be justified mathematically and, in fact, drastically distorts a defendant's true share of liability.