Category: Environmental Law Review Syndicate

[ELRS] An Ecology of Liberation: The Shifting Landscape of Environmental Law in an Era of Changing Environmental Values

By Michael Zielinski, Staff Member, William & Mary Environmental Law & Policy Review 

This post is part of the Environmental Law Review Syndicate


In 1971, the Peruvian theologian and Dominican priest Gustavo Gutiérrez published his seminal work, A Theology of Liberation, in which he advocated an activist approach to Christianity based on the belief that it is only through living in solidarity with exploited and impoverished populations that all people can ultimately become free from all forms of injustice, oppression, and suffering.[1] Recognizing that “the signs of the times,” demanded a theology that synthesized spiritual contemplation and direct action,[2] Gutiérrez identified Christ’s description of the Last Judgment as the foundation of this call to solidarity with the poor[3]:

“I was hungry and you gave me food. I was thirsty and you gave me drink. I was a stranger and you took me in. I was naked and you clothed me. I was sick and you visited me. I was in prison and you came unto me…insofar as you did this to one of the least of my brethren, you did it to me.”[4]

More than three decades later, Pope Francis used similar language of liberation when he declared climate change to be the imperative moral issue of our time, asserting “the earth herself, burdened and laid waste, is among the most abandoned and maltreated of our poor.”[5] Moreover, both Gutiérrez and Pope Francis identified rampant consumerism and a self-centered notion of economic progress as the greatest contributors to deplorable conditions in the developing world. Just as Gutiérrez descried social and economic poverty as “the fruit of injustice and coercion” sown by wealthy nations and force-fed to poorer ones,[6] so too Pope Francis lamented that human beings frequently seem “to see no other meaning in their natural environment than what serves for immediate use and consumption.”[7]

Liberation theology, although most strongly associated with the Catholic Church in Latin America,[8] is not uniquely Catholic, or even uniquely Christian. Rather, the concept of liberation is a facet of all religions that challenge the injustice and poverty that are the byproducts of neoliberal economics.[9] Moreover, though the term “liberation” often carries a religious connotation,[10] liberationist principles can exist even within secular ethical theories, notably environmental justice,[11] that do not expressly use the term “liberation.” Similar to how liberation extends beyond the bounds of religion, steadily growing concerns over climate change and other environmental problems are also not confined to religion,[12] let alone any particular religion.[13] The twenty-first century is witnessing the emergence of a new ecological conscience, and as the world’s largest economic power, the United States has the opportunity to place itself in the vanguard of a global environmental movement toward greener and more sustainable practices.[14]

Rising sea levels, unpredictable weather, and dwindling natural resources make it increasingly difficult to maintain the notion that nature is beyond our ability to hurt and its bounty beyond our ability to deplete.[15] Americans’ changing attitudes and behaviors regarding sustainability in this Anthropocene era[16] indicate a sobering realization that unchecked greenhouse gas emissions have created a tragedy of the atmospheric commons.[17] Increasing awareness of the magnitude of climate change and other pressing environmental concerns has begun shifting our collective environmental values toward an ethical posture that acknowledges the continuity and interdependence of all life,[18] thus laying bare the logical conclusion that our mistreatment of the natural world translates into mistreatment of the poor, who are especially vulnerable to environmental harms.[19] The mutability of environmental ethics, however, strains against the intractability of environmental law, whose overreliance on economic principles and stilted doctrine has locked it into a narrow and anthropocentric outlook that perceives environmentally responsible practices solely as instrumental, rather than intrinsic, goods.[20]

Changes in climate, both literal and metaphorical, have created a world where environmental rights and human rights are no longer distinct concepts.[21] Yet current environmental law fails to adequately serve the public good because an outdated approach to valuing the environment and situating humans in relation to it prevents the law from evolving to conform to contemporary values.[22] Though remedying this problem is a gargantuan task with no simple solution,[23] this paper argues that the market-based principles and inflexible legal doctrines that have historically governed environmental law should yield to a liberationist ideal already taking root in environmental ethics, an ideal that recognizes “[t]here is no separating human beings from ecological nature,”[24] and therefore seeks to protect human interests by protecting the interests of the natural world.

Part II of this paper provides an overview of several strands of environmental ethics that rose to prominence over the last forty years, most notably value theory, which strongly influenced the policies underlying many of the major pieces of environmental legislation passed in the late 1960s and early 1970s. That section also explores the concepts of ecojustice and environmental justice, two approaches to humanity’s ethical duties toward the environment rooted in social justice. It further argues that environmental ethics has taken a backseat to utilitarian, economics-centered policies because of its perennial struggle to find purchase in the realm of environmental law. Part III argues that although lawmakers on the federal and state levels are finally formulating legislative and regulatory plans to address major environmental problems like climate change, efforts to put these plans into action are hindered by two systemic shortcomings of current environmental law: cost-benefit analysis and standing doctrine. Part IV returns to the concept of liberation, first analyzing how it overcomes or avoids many of the problems other theories of environmental ethics have faced. Next, it explains that emergent twenty-first century environmental values indicate a movement toward a liberationist approach to environmental ethics, and concludes by exploring how the truest expressions of this movement—the notions of uncanniness and planetarian identity—can correct the shortcomings of existing environmental law.

[Note: This piece has been modified from its original content for the ELRS submission. A subsequent publication will include this article in its entirety. For those who would like to read further, please see the citation in the following footnote.[25]

Environmental Ethics and Their Divorce from Environmental Law

Given the vast history of environmental ethics, even just in the United States,[26] this paper will limit its focus to several major developments in environmental ethics from the latter-half of the twentieth century and their interaction with environmental law. Of particular interest is the influence of value theory—“what matters and why”—on environmental ethics and law.[27] Value theory was at the forefront of environmental ethics from the late 1960s through the 1970s, the “golden age of environmental law” that saw Congress enact the most significant of the country’s environmental legislation,[28] including the National Environmental Policy Act (NEPA),[29] Clean Air Act,[30] Clean Water Act,[31] and Endangered Species Act (ESA).[32]

This section is divided into three parts. The first offers a quick overview of value theory as applied to environmental ethics, focusing on the distinction between nature as an intrinsic good and an instrumental good. The second part considers the concepts of “ecojustice,” a Christian strategy of environmental ethics that views nature as an intrinsic good, and “environmental justice,” a (mostly) secular approach to environmental ethics that regards nature as more of an instrumental good. The third part explains the limits of value theory, and why these limits ostensibly make it unworkable from the perspective of environmental law.

Value Theory and the Strategy of Nature’s Standing

Willis Jenkins, a professor of environmental theology and ethics at the University of Virginia, has noted that, compared to other fields of “practical ethics,” environmental ethics struggles to reach a consensus on what it is actually trying to achieve and how it should go about achieving it.[33] This is because environmental ethics has trouble agreeing on why people should find that nature has value, and thus regard environmental issues as morally important.[34] Several different strategies have arisen that attempt to answer this question, and arguably the best known of these is something Jenkins identifies as “the strategy of nature’s standing,” a name that carries obvious legal overtones.[35] This strategy attempts to situate moral value within nature itself, but when it emerged during the golden age of environmental law, ethicists quickly realized “that the inherited vocabularies of ethics could not capture the value of nature, focused as they were on human interests (consequentialism) and rights (in deontological and contract theories).”[36] Accordingly, a new theory of nature’s value was needed, and the question became whether nature held “intrinsic value” for humanity in addition to mere “instrumental value.”[37] In other words, is the natural world just “a means to some other end” (instrumental value), or is it “an end in itself” (intrinsic value)?[38]


Advocates for nature’s intrinsic value asserted that traditional “anthropocentric” conceptions of the natural world should be replaced with a “biocentric” approach “locating value in life itself (and other aspects of self-organizing nature such as species, ecosystems, and even the planet),” or with an even stronger “ecocentric” or “deep ecology”[39] approach “presenting human interests and rights as just one example of the ethical weight of all self-organizing nature.”[40] On the other side of the argument, advocates for an instrumental conception of nature’s value held to an anthropocentric view that “the concept of value makes no sense independent of human beings for whom the value matters.”[41] The debate between intrinsic and instrumental was not (nor does it continue to be) black and white. Some environmental ethicists occupied a middle ground, acknowledging that although nature has intrinsic value, “such value does not . . . entail any obligation on the part of human beings,” because that intrinsic value by itself does not necessarily “contribute[] to the well-being of human agents.”[42]

Ecojustice and Environmental Justice

Just as he identifies three major strategies for making environmental problems intelligible to a secular moral experience, Jenkins also identifies three major strategies for explaining the importance of the environment from a Christian moral perspective.[43] Of greatest interest to this paper is ecojustice, which mirrors the value theory-focused approach of the strategy of nature’s standing[44] and generally reflects the environmental values of Roman Catholicism,[45] the soil from which liberation theology grew. According to Jenkins, ecojustice holds that nature has intrinsic moral value for Christians by virtue of being part of God’s creation: “The strategy of ecojustice makes respect for creation a mode of response to God. Right relations with God require right relations with God’s creation, which by virtue of its own relationship with God, calls for moral response.”[46]

As the name implies, ecojustice takes the concept of justice “as its overarching moral category,”[47] meaning it shares more than just a similar developmental timeline with liberation theology.[48] Like liberation theology, ecojustice is pastoral, which means it operates largely at the interstitial places between base Christian communities and the Church, bringing the two together to foster a more productive dialogue.[49] Moreover, by implicating environmental concerns in questions of economic and social justice, ecojustice expressly links harm to the environment with harm to the poor. For example, in 1989 a Presbyterian committee declared that “nature has become co-victim with the poor, that the vulnerable earth and the vulnerable people are oppressed together.”[50]

Ecojustice’s arguably secular counterpart “for bringing environmental issues within the purview of justice,” is called (unsurprisingly) environmental justice,[51] and is generally defined as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies.”[52] Though often regarded as an offshoot of the civil rights movement,[53] environmental justice did not truly begin developing in earnest until roughly a decade after the emergence of ecojustice in the early 1970s.[54] In a little over ten years, the movement gained enough momentum that the U.S. Environmental Protection Agency (EPA) created its own Office of Environmental Justice in 1992.[55] Two years later, President Clinton issued Executive Order 12,898, instructing every federal agency to “make achieving environmental justice part of its mission by identifying and addressing . . . disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.”[56]

Possibly due to their intertwining histories, the line separating ecojustice from environmental justice is not clear. Some environmental ethicists appear to regard environmental justice merely as a constitutive part of ecojustice, noting that several principles of environmental justice are basically restatements of ecojustice’s “integrative view” that strives for a “synthesis of justice and ecology, a single mission of religious reform responding to both environmental degradation and human oppression.”[57] Others, such as Jenkins, note that although ecojustice and environmental justice both concern themselves with the link between environmental degradations and human dignity, they differ in where they situate the locus of that dignity: “Ecojustice focuses on creation’s integrity; environmental justice on humanity’s ecological integrity.”[58]

Viewed from this perspective, ecojustice appears to intrinsically value nature because it “evaluate[s] right relations directly in reference to creation’s own dignity,”[59] whereas environmental justice seems to instrumentally value nature because it “critique[s] environmental degradations with respect to human dignity.”[60] Richard Bohannon and Kevin O’Brien seem to support this proposition,[61] but also go a step further, arguing that although environmental justice may have religious elements or be religiously motivated, its ties to religion, unlike ecojustice’s, have “not been prominent or explicit.”[62] More specifically, they note that the national survey of every registered toxic waste facility in the U.S. that the United Church of Christ produced in the wake of the Warren County protest included “no discussion of [religious] values, no mention of God or faith, and no emphasis on connecting the fight against injustice to the ministry of the church. This is a practical and political document, seeking to support community organizing and change public policy for the sake of social justice.”[63]

Ultimately, Bohannon and O’Brien conclude, the differences between ecojustice and environmental justice trace back to “the social location of [their] advocates. While environmental justice is a movement that emerged in inner cities and poor rural areas, eco-justice was developed by scholars, ministers, and academic theologians on university campuses.”[64] In other words, ecojustice comes from a place of social and economic privilege that environmental justice does not, and therefore ecojustice, despite all its good intentions, lacks self-awareness when it attempts to synthesize human and nonhuman interests under a single holistic vision.[65] This limitation on ecojustice’s ability to fully connect with those suffering the worst instances of injustice thus seems to eliminate it from the running as truly practical Christian environmental ethic.

Similarly, the strategy of nature’s standing, which also seems unable to generate a fully inclusive theory of the natural world’s value, appears to be unworkable as a secular environmental ethic. Indeed, some commentators suggest that environmental justice holds an advantage over the strategy of nature’s standing because whereas that value theory-laden approach struggles to find agreement on the criteria that give nature its moral worth (and therefore struggles to identify social practices adequate to protect that worth), environmental justice’s “ecological anthropology” lends itself to economic approaches that better jibe with the strictures of environmental law.[66] As we will see in Part III, however, even though environmental justice should in theory be able to curtail the consequentialist excesses of economic theories of environmental value, in practice cost-benefit principles frequently arrive at notions of “public good” that actually do more harm than good.

The Limits of Value Theory

Jedidiah Purdy identifies two limits on value theory’s practical application that, despite the theory’s prominence in both secular and religious environmental ethics in the 1970s, undermined its ability to have a lasting effect on environmental law. The first limit boils down to the fact that because “value” is an ineluctably human construction, any claims about the value of nature necessarily rely on considerations that only humans can regard as values.[67] This is most true of anthropocentric conceptions of value, where “[a]ny claim about the value of nature must call on considerations that humans can regard as values, that is, which they can imagine themselves pursuing and respecting.”[68] But this limit also applies to biocentric and ecocentric theories that value nature intrinsically, because even if we do not confer value on nature, we still respond to value, and such response is contingent on our ability to recognize something as being “of value” in the first place.[69]

This limitation on value theory gives rise to the second: an inability to promote action. In other words, regardless of whether we adopt an intrinsic or instrumental approach to valuing nature, neither one tells us anything about how to protect that value.[70] Purdy uses the Endangered Species Act to illustrate this point, explaining that neither interpreting the Act from an intrinsic perspective (e.g., spotted owls have intrinsic value because the Act prioritizes their survival over nearly any competing human interest), nor from an anthropocentric perspective (e.g., the Act expresses a human preference for species’ survival) does anything to inform the Act’s operation.[71]

Purdy also notes a second pair of ethical theories, individualism and holism, which initially appear to be more promising than intrinsic and instrumental valuations of nature, yet also become unworkable as practical environmental ethics.[72] Individualism, in an environmental context, essentially operates as a narrower version of the biocentric and ecocentric strands of intrinsic value theory,[73] locating value in individual organisms’ “interests, points of view, or, perhaps, the very existence of individual animals and plants,”[74] but drawing the line at attributing moral standing to “holistic entities like species or ecosystems.”[75] This approach is attractive because valuing individuals creates an obligation to prevent, or at least not deliberately cause, the suffering of any living thing.[76] Followed to its logical end, however, this obligation becomes problematic for two reasons. First, because it attributes value to individuals and not larger natural systems, individualism appears to preclude valuing one species more than any other, even if one species is endangered and the other is invasive.[77] Second, this approach’s imperative to value the lives of all individual organisms ostensibly produces an absurd result in which environmental ethics stands in opposition to all natural systems: “consistent commitment to avoiding the suffering of sentient beings would seem to imply exterminating predators, even genetically engineering wild species so that the survival of some no longer requires the suffering of others—creating, that is, a world either without foxes and grizzlies, or with herbivorous versions of them.”[78]

On the other side of the spectrum is holism, which takes a “big picture” view on the environment, and “locates value in self-organizing systems such as ecosystems, species, or ‘nature’ itself.” [79] This means holism runs into the same wall as ecojustice: it fails to account for the values of and differences among individuals.[80] Just as ecojustice risks erroneously assuming that everybody, regardless of their personal experiences within their communities, will be fine so long as they share its vision of an integrated and harmonious environmental ethic,[81] so too does a holistic approach lead environmentalists to the unpleasant conclusion that the suffering of individual members of a species is morally acceptable so long as a the species as a whole survives.[82] Holism also hits a second snag in that it “dissolves the distinction between human and nonhuman,”[83] resulting in a perverse syllogism that declares any human activity, no matter how destructive, to be “natural”: “If we are part of nature, then everything we do is part of nature, and is natural in that primary sense.[84]

As with intrinsic and instrumental valuations of nature, individualism’s and holism’s uncompromising stances undermine their usefulness as practical environmental ethics. Each of these competing theories stubbornly refuses to acquiesce to any kind of moral pluralism in the belief that “seiz[ing] on one aspect of environmental value and exclud[ing] competing considerations [is] in the service of theoretical consistency.”[85] The irony, however, is that environmental law turned away from value theory precisely because its competing variants could not generate a consistent answer to the question of how we should value nature.[86]

Mechanisms Responsible for the Gulf Between Environmental Ethics and Law


Toward A Liberationist Approach in Environmental Ethics



The persistence of disputes over how we should morally value the environment and the natural world demonstrates the difficulty of crafting practical yet ethical solutions to vast and abstract problems. But in the classic tradition of making lemonade out of lemons, a burgeoning unity of will among Americans to take action against today’s “crucibles of ethical development”[87] can hopefully galvanize ethical development, which in turn can both inform and be made “more palatable” by law.[88] A liberationist approach to environmental law, with its integrative view of social and environmental justice, as well as a vision of collaborative engagement among community members on the local, regional, national, and global levels, could smooth the process of adapting our outdated environmental laws to our evolving environmental values. Even liberation theology has its limits on its practical application, however. Gustavo Gutiérrez admitted that he could not do more than “sketch these considerations [i.e., the Church’s role in process of liberation], or more precisely, outline new questions—without claiming to give conclusive answers.”[89]

Accordingly, liberation theology, as any other religious tradition with an activist social agenda, struggles to have a lasting impact on law and public policy because it must render unto Caesar what is Caesar’s.[90] Liberation theology resides simultaneously in separate realms. On one side is the realm of the spirit, where liberation theology dwells in eternity, infinity, and possibility. On the other side is the material world, where temporality, finitude, and necessity hold sway. Fortunately for environmental law, it only has to worry about the here and now. Unfortunately, we live in a time where the nation’s environmental values are swiftly changing in the face of anthropogenic environmental problems of global significance, thereby demanding significant overhaul of environmental law in order for it to adequately safeguard these values.

[1] Gustavo Gutiérrez, A Theology of Liberation: History, Politics and Salvation 196-203 (Sister Caridad Inda & John Eagleson, eds. and trans., 1973) [hereinafter A Theology of Liberation] (originally published in Spanish as Teología de la liberación, Perspectivas 1971).

[2] Id. at 8.

[3] Id. at 117 (“[P]overty expresses solidarity with the oppressed and a protest against oppression.”).

[4] Matthew 25:31-45.

[5] Pope Francis I, Laudato Si’ ¶ 2 (2015); see also Cristina Maza, One Year Later, How a Pope’s Message on Climate Change Has Resonated, Christian Science Monitor (June 24, 2016), (“In the year since Pope Francis released his encyclical, Laudato Si’, imploring his followers and fellow believers to care for the earth and its creatures, observers say more and more Roman Catholics are beginning to view climate change as a moral issue in which caring for the earth and caring for the poor intersect.”).

[6] A Theology of Liberation, supra note 1, at 22.

[7] Pope Francis I, supra note 5, at § 15 ((quoting Pope John Paul II, Redemptor Hominis ¶ 15 (1979)); see also Pope Francis I, Care for Creation, (Feb. 5, 2016), care-creation.html (“The relationship between poverty and the fragility of the planet requires another way of managing the economy and measuring progress.”).

[8] See Leonardo Boff & Clodovis Boff, Introducing Liberation Theology 9 n.1 (Paul Burns trans., 24th prtg. 2011) (identifying the second Latin American bishops’ conference held at Medellín, Columbia in 1968, which met to discuss strategies for implementing the pronouncements of the Second Vatican Council, as the “official launching” of the theme of liberation in Latin America).

[9] See generally The Hope of Liberation in World Religions (Miguel A. De La Torre ed., 2008) (providing an analysis of the liberationist elements within a number of religious traditions).

[10] This is not always true, however. For example, consider the women’s liberation and animal liberation movements.

[11] See Part II.B., infra.

[12] See, e.g., Sarah Krakoff, Planetarian Identity Formation and the Relocalization of Environmental Law, 64 Fla. L. Rev. 87, 92-93 (2012) (identifying the rapid growth of localism—“placing value on working and buying locally”—as a response to growing awareness about the dangers of climate change).

[13] See, e.g., Malavika Vyawahare, Faith Leaders Call for Climate Change Action, ClimateWire, Nov. 12, 2015, francis (reporting on a symposium where more than fifty delegates representing a range of faiths expressed their hopes that members of all religions would rally around fighting both climate change and poverty).

[14] See Press Release, White House, U.S. Leadership and the Historic Paris Agreement to Combat Climate Change (Dec. 12, 2015), (announcing the U.S.’s commitment to achieving the goals for combating climate change set forth in the Paris Agreement reached at the 21st Conference of the Parties of the United Nations Framework Convention on Climate Change).

[15] See Richard Herrmann, Pew Oceans Commission, America’s Living Oceans: Charting a Course for Sea Change 5, press_release.asp. (2003) (“We have reached a crossroads where the cumulative effect of what we take from, and put into, the ocean substantially reduces the ability of marine ecosystems to produce the economic and ecological goods and services that we desire and need. What we once considered inexhaustible and resilient is, in fact, finite and fragile.”).

[16] See Jedidiah Purdy, After Nature: A Politics for the Anthropocene 1-2 (2015) [hereinafter After Nature] (acknowledging the general consensus in the scientific community that for some time the earth been in a new geological epoch, one in which “humans are a force, maybe the force, shaping the planet.”).

[17] Krakoff, supra note 12, at 98 (“The global atmosphere is a common-pool resource, and since industrialization, agents have acted in their rational self-interest by emitting greenhouse gases in order to benefit from inexpensive energy. Even now that we know about the market’s failure to internalize the cost of greenhouse gas emissions, rational actors will still opt for cheap energy over reductions in greenhouse gas emissions because of the possibility that a defector could undermine the regime of curbing emissions.”).

[18] See After Nature, supra note 16, at 2 (“The Anthropocene finds its most radical expression in our acknowledgment that the familiar divide between people and the natural world is no longer useful or accurate.”).

[19] See id. at 46 (arguing that “natural catastrophe amplifies existing inequality” because the wealthy are better able to absorb and acclimate to the harmful consequences of man-made ecological damage).

[20] See Jedidiah Purdy, Our Place in the World: A New Relationship for Environmental Ethics and Law, 62 Duke L.J. 857, 871-77 (2013) [hereinafter Our Place in the World] (explaining how philosophical accounts of environmental ethics in the 1970’s struggled to produce an agreed-upon basis for valuing nature that could be translated into law, thereby leading policymakers to turn to the economic theories that have defined environmental law for last four decades).

[21] See Linda Malone, Exercising Environmental Human Rights and Remedies in the United Nations System, 27 Wm.& Mary Envtl. L. & Pol’y Rev. 365, 365 (2002) (“Whenever environmental degradation results in a human harm that violates accepted human rights norms, an international, regional or domestic human rights committee, commission, and/or court may provide a remedy that can contribute effectively to rectifying the underlying environmental degradation as well as the human rights violation.”).

[22] See Our Place in the World, supra note 20, at 883 (arguing that the divide that has grown between environmental ethics and environmental law over the last forty years demands that the law reshape itself to reflect our creative ethical capacity).

[23] See After Nature, supra note 16, at 262 (“[E]verything is connected to everything else, often in subtle and hidden ways, and any attempt to master the whole from a single standpoint is hubris and likely to turn out badly.”).

[24] Id. at 42.


[26] For an insightful and detailed analysis of the evolution of American views on the value of the environment over the country’s history, see generally Jedidiah Purdy, American Natures: The Shape of Conflict in Environmental Law, 36 Harv. Envtl. L. Rev. 169 (2012).

[27] Our Place in the World, supra note 20, at 871.

[28] Daniel A. Farber, The Story of Boomer: Pollution and the Common Law, 32 Ecology L.Q. 113, 132 (2005).

[29] National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852 (1970)

(codified as amended at 42 U.S.C. §§ 4321–4347).

[30] Clean Air Act, Pub. L. No. 91-604, 84 Stat. 1676 (1970) (codified as amended at 42

U.S.C. §§ 7401–7671).

[31] Clean Water Act, Pub. L. No. 92-500, 86 Stat. 816 (1972) (codified as amended at 33

U.S.C. §§ 1251–1387).

[32] Endangered Species Act of 1973, Pub. L. No. 93-205, 87 Stat. 844 (1973) (codified as amended at 16 U.S.C. §§ 1531-1534).

[33] See Willis Jenkins, Ecologies of Grace: Environmental Ethics and Christian Theology 31-32 (2008) (arguing that unlike biomedical ethics or business ethics, environmental ethics it has no “discernible social practices” upon which to base its inquiries).

[34] See id. at 41.

[35] Id. at 42. Jenkins identifies two other secular strategies besides nature’s standing: the strategy of moral agency, id. at 46-51, and the strategy of ecological subjectivity, id. at 51-57. I have chosen to concentrate on the strategy of nature’s standing because its efforts to correlate “normative obligations with the moral status of the nonhuman world” typically set it in direct opposition to the “blinkered economic rationalism of many public policy justifications.” Id. at 42.

[36] Our Place in the World, supra note 20, at 871.

[37] Id. at 872.

[38] John O’Neill, The Varieties of Intrinsic Virtue, 73 Monist 119, 119 (1992); see also Gary Varner, Biocentric Individualism, in Environmental Ethics 90, 92 (David Schmidtz & Elizabeth Willot eds., 2d ed. 2012) (“Intrinsic value is the value something has independently of its relationships to other things. If a thing has intrinsic value, then its existence (flourishing, etc.) makes the world a better place, independently of its value to anything else or any other entity’s awareness of it.”).

[39] Arne Naess, The Shallow and the Deep, Long-Range Ecology Movements, 16 Inquiry 95 (1973), reprinted in Environmental Ethics, supra note 37, at 129, 129 (contrasting “the Shallow Ecology movement,” which Naess describes as the “[f]ight against pollution and resource depletion” and having as its central objective “the health and affluence of people in the developed countries,” with “the Deep Ecology movement,” which he describes as “rejection of the man-in-environment image in favor of the relational, total-field image.”).

[40] Our Place in the World, supra note 20, at 871; see also Jenkins, supra note 33, at 42-43 (comparing J. Baird Callicott’s view of nature’s intrinsic value, which could generally be described as “biocentric,” with that of Holmes Rolston, which could generally be described as “ecocentric.”).

[41] Our Place in the World, supra note 20, at 872; see also, Jenkins, supra note 33, at 43 (identifying Eric Katz, Tom Regan, and Peter Singer as environmental ethicists who advocate for nature’s moral standing while rejecting intrinsic value theories).

[42] O’Neill, supra note 37, at 119.

[43] See Jenkins, supra note 33, at 19 (identifying these three theological strategies as “ecojustice,” “stewardship,” and “spiritual ecologies”).

[44] Id. at 61.

[45] See id. at 19-20 (explaining that the correspondence of Roman Catholicism, Protestantism, and Eastern Orthodoxy with ecojustice, stewardship, and ecological spirituality, respectively, are only tendencies and not hard rules).

[46] Id. at 64.

[47] Id. at 62.

[48] See Michael Moody, Caring for Creation: Environmental Advocacy by Mainline Protestant Organizations, in The Quiet Hand of God 237, 239 (Robert Wuthnow & John Evans eds., 2002) (reporting that the term “ecojustice” was either coined or “made its public debut” in a 1972 strategic planning group of the American Baptist Churches).

[49] Compare Boff & Boff, supra note 8, at 14-15 (describing “pastoral theology” as a “middle level” of liberation theology that works as a “progressively integrating factor among pastors, theologians, and lay persons, all linked together around the same axis: their liberative mission.”), with Jenkins, supra note 33, at 62 (“In order to make environmental issues part of its churches’ enduring pastoral concerns, [ecojustice] redeployed Christian notions of justice to make appropriate response to nature fit with the rationale for existing humanitarian mission commitments.”).

[50] Moody, supra note 47, at 240.

[51] Jenkins, supra note 33, at 63.

[52] Learn About Environmental Justice, U.S. Environmental Protection Agency, (last updated Mar. 29, 2016). Alternatively, Julia B. Latham Worsham characterizes environmental justice as founded upon “the concept that minorities bear a disproportionate percentage of environmental burdens.” Julia B. Latham Worsham, Disparate Impact Lawsuits under Title VI, Section 602: Can a Legal Tool Build Environmental Justice?, 27 B.C. Envtl. Aff. L. Rev. 631, 633.

[53] See Worsham, supra note 51, at 633-34 (crediting either a 1979 Texas environmental rights suit or a 1982 citizens’ protest “modeled after the civil rights protests of the 1960s” in Warren County, North Carolina against a polychlorinated biphenyl landfill as the root of the modern environmental justice movement). Worsham, though writing from a legal perspective, appears vulnerable to a criticism Jenkins levels against “[s]ociological observers of [environmental justice],” namely that they “tend to skip [environmental justice’s] associations with religion.” Willis Jenkins, The Future of Ethics: Sustainability, Social Justice, and Religious Creativity 206 (2013). Case in point, Jenkins notes that when the North Carolina citizens began their protest, “they marched out from a church,” see id., a fact Worsham omits.

[54] See Moody, supra note 47, at 239 (“[Ecojustice] predates—by more than a decade—the widespread recognition within the secular environmental movement of the importance of highlighting justice connections.”).

[55] See Videotape: What is “Environmental Justice”?, And Justice For All: Current Developments in Environmental Justice (Wm. & Mary Envtl. L. & Pol’y Rev. 2016), environmentaljustice/2/.

[56] Exec. Order No. 12,898, 3 C.F.R. 859 (1995), reprinted in 42 U.S.C. § 4321 (1994).

[57] Richard Bohannon & Kevin O’Brien, Saving the World (and the People in It, Too): Religion in Eco-Justice and Environmental Justice, in Inherited Land: The Changing Grounds of Religion and Ecology (2011) (ebook), [].

[58] Jenkins, supra note 33, at 64.

[59] Id. at 63.

[60] Id.

[61] See Bohannon & O’Brien, supra note 56 (relying on the “Principles of Environmental Justice” developed by the First National People of Color Environmental Leadership Summit in 1991, “which have been used ever since to summarize the moral impulse behind the movement,” to argue that environmental justice does not “explicitly advocate on behalf of the nonhuman world for its own sake—the ‘health’ of the nonhuman world is implicitly for the benefit of ‘present and future generations’ of humans”).

[62] See id.

[63] Id.

[64] Id.

[65] See id. (“Those of us . . . who do not come from oppressed communities must be cautious about claiming that we can fully understand or summarize the interests and ideas of environmental justice activists, and we must allow these activists to speak for themselves.”)

[66] Jenkins, supra note 33, at 55 (“By insisting on fair distribution of environmental risks and benefits, environmental justice directs attention to inescapable ecological components of a decent human life.”).

[67] See Our Place in the World, supra note 20, at 873 (“Conceptually, the issue of intrinsic versus [instrumental] value rapidly produces a dilemma, an irresolvable standoff between anthropocentric and biocentric perspectives.”).

[68] Id.

[69] See id. (“The mind is the theater, so to speak, in which we experience value; but that does not make the mind value’s source, any more than it creates the other people with whom we have relationships.”). Purdy identifies a potential resolution to this problem in the concept of uncanniness, which will be explored in Part IV.

[70] Id. at 874.

[71] Id.

[72] See id. at 875 (“Here the choice between the alternatives does have relevance to action, but each option is deeply unsatisfactory.”).

[73] See supra page 8.

[74] Our Place in the World, supra note 20, at 876.

[75] Varner, supra note 37, at 91.

[76] Our Place in the World, supra note 20, at 876.

[77] See Elliott Sober, Philosophical Problems for Environmentalism, in Environmental Ethics, supra note 37, at 133 (making this same point using different species of whales as an example).

[78] Our Place in the World, supra note 20 at 876.

[79] Id. at 875.

[80] Id.

[81] See Bohannon & O’Brien, supra note 56.

[82] See Sober, supra note 76, at 133 (explaining the dilemma of a holistic environmental ethic).

[83] Our Place in the World, supra note 20, at 875.

[84] Sober, supra note 76, at 137; see also After Nature, supra note 16, at 240 (making a similar point by asserting that human exploitation of domesticated animals should be no more “immune to ethical scrutiny” because humans “co-evolved” with those species than “slavery and gender segregation should be immune because they are widespread in human history.”).

[85] See Our Place in the World, supra note 20, at 877.

[86] See Jenkins, supra note 33, at 49 (quoting Bronislaw Szerszynski, Wallace Heim & Claire Waterton, Nature Performed: Environment, Culture and Performance 1 (2003)) (“[P]ractical rationality . . . . ‘is being driven not just by intellectual curiosity but also by an increasing sense that existing ways of thinking about nature are inadequate to practical needs,’ that in order to describe the dynamic relations among environment and society, one is ‘not well served by the noun-dominated languages used for describing both.’”).

[87] Our Place in the World, supra note 20, at 863 (identifying the crucibles as “agricultural and food systems, the ethical status of animals, and climate change”).

[88] After Nature, supra note 16, at 241.

[89] Gustavo Gutiérrez, Toward A New Method: Theology and Liberation, in Gustavo Gutiérrez: Essential Writings 23, 30 (James B. Nickoloff ed., 1996).

[90] Matthew 22:21.

[ELRS] WWII-Era Government Contractor Indemnification Clauses Come to the Fore in CERCLA Litigation as Other Grounds to Shift Costs to the Government Narrow

By Hume Ross, Executive Editor, Georgetown Environmental Law Review


This post is part of the Environmental Law Review Syndicate



Before World War II, Japanese Admiral Yamamoto wrote: “Because I have seen the motor industry in Detroit and the oilfields of Texas, I know Japan has no chance if she goes to war with America, or if she starts to compete in building warships.”[1] As he anticipated, after hostilities broke out the United States government quickly began to mobilize the nation’s considerable natural resources and manufacturing capacity.

The War Production Board (WPB) was established in 1942 in order to “increase, accelerate, and regulate the production and supply of materials, articles and equipment and the provision of emergency plant facilities . . . required for the national defense.”[2] The WPB and similar entities had the ability to determine how various raw materials would be used, set prices, and enter into novel contractual arrangements with defense contractors. Some contracts provided that contractors would operate temporary facilities owned by the government,[3] or be subject to recapture of excess profits.[4] Profit margins were typically low, but in return contractors sometimes received favorable contract terms to insulate them from unexpected costs.[5]

The Contract Settlement Act of 1944 (CSA) recognized that, because of the extent to which American industry had been integrated into the war effort, any issues with the payment of claims when the war ended could imperil the entire economy. The CSA provided procuring agencies with authority “notwithstanding any provisions of law” to “agree to assume, or indemnify the war contractor against, any claims by any person in connection with such termination claims or settlement.”[6]

As was the intent of these legislative and executive acts, American industry roared to life, flooding the operational theaters with ships, planes, tanks, ordnance and fuel, and propelled the Allies to victory. But this overwhelming effort had ill-effects as well. Due in part to both the extraordinary pace of production, and the less stringent environmental regulations of the time, large amounts of toxic chemicals were released at hundreds of sites around the country.

Three-and-a-half decades later, in the face of mounting public concern about environmental pollution, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).[7] CERCLA authorizes the Environmental Protection Agency, if it determines a site poses “an imminent and substantial endangerment to the public health,” to sue certain responsible parties for the costs of cleanup.[8] Many of the sites identified by the EPA under CERCLA (commonly called “Superfund” sites) are the product of the extraordinary war-time effort, and the extraordinary defense contracts that enabled it. This set the stage for decades of litigation to allocate financial responsibility for the cleanup between the contractors (and often their corporate successors) and the government.


CERCLA liability will attach to any entity that owns or operates a contaminated facility, or owned or operated a facility where hazardous substances were disposed of in the past, as well as a few other categories related to transporting or arranging for the improper release of hazardous materials.[9] CERCLA liability is strict, joint, and several.[10] This means that often one party may be compelled to begin cleanup (or reimburse EPA for beginning cleanup) and then will have to seek contribution from other liable parties.[11] The liability was structured this way to ensure that there would always be a party available to pay for cleanup, and to disincentive companies from engaging in prohibited activities. Even if a corporation sells a polluted facility before the pollution is discovered, they will still be liable as a “past owner” or “operator.” Courts often note that CERCLA should be construed liberally in view of its remedial purpose to achieve its twin goals: “(1) enabling the EPA to respond efficiently and expeditiously to toxic spills, and (2) holding those parties responsible for the releases liable for the costs of the cleanup.”[12]

Under these standards, both defense contractors and the government (which specifically waived sovereign immunity related to CERCLA claims)[13] may be liable for some of the cleanup costs. But the extent of liability for each party is determined by comparing the role that each played in causing the pollution. The characterization of which entity was an “operator” is significant because of the way courts equitably apportion CERCLA contributions among the responsible parties. There is no fixed formula – instead, courts look at various sets of factors. One such set is the “Gore” factors, named after an unsuccessful but nonetheless influential attempt to pass an amendment to CERCLA in 1980 by then-Representative Al Gore.[14] Another similar set of factors are known as the Torres factors.[15] A common theme is that liability will be more heavily apportioned to a party with more “knowledge and/or acquiescence […] in the contaminating activities.”[16] The tests established for the “operator” label tend to track closely with this language, and therefore being designated as an “operator” often leads to a large share of liability.[17] The analysis of which entity was “operating” a facility, or portion thereof, has evolved over time as discussed in the next section.

FMC Corp. Suggested Broad Government Liability Even for Regulatory Oversight

In 1994, the Third Circuit decided FMC Corp. v. United States.[18] The case established a framework by which the US government could be held liable as an “operator” for acts it took in a regulatory capacity. Commentators at the time were concerned that, because the government is the ultimate “deep pocket,” this could lead to a massive amount of CERCLA liability looping back onto the government.[19] While not explicitly overruled, FMC Corp. has been limited by subsequent cases. But the decision is still relevant as its fact pattern, while rare, is not unique in the WWII-era contracting context.

FMC Corp. concerned a facility located in Front Royal, VA (then owned by corporate predecessor American Viscose) that produced high tenacity rayon (“HTR”) for plane and vehicle tires. Ordinarily the tires would have used rubber, but 90% of the United States’ rubber supply came from the Pacific, which was cut off after Pearl Harbor.[20] The facility was in fact converted from producing textile rayon to HTR largely at the behest of the government.[21] In 1982, inspections revealed elevated levels of carbon disulfide in the ground water around the plant.[22] Carbon disulfide is a volatile organic compound capable of causing neurological damage with chronic exposure.[23]

After the EPA notified FMC of its potential liability under CERLA, FMC filed suit seeking monetary contribution from the government under section 113(f) of CERCLA.[24] FMC argued that the government was “so pervasively” involved in directing the activities at the facility that it should pay some, if not all, of the cleanup costs.[25] The government admitted that it effectively controlled many aspects of the operation at the American Viscose plant, but argued that it did so only in a regulatory capacity, and that it could not be held to be an “operator” for purposes of CERCLA when it was acting only as a regulator.[26]

The FMC Corp. court looked to cases in the parent-subsidiary liability context, and chose to apply the same “substantial control” and “active involvement” test to governmental actions for purposes of CERCLA liability.[27] The court found it important that, even if the government was primarily “regulating,” it:

“determined what product the facility would manufacture, controlled the supply and price of the facility’s raw materials, in part by building or causing plants to be built near the facility for their production, supplied equipment for use in the manufacturing process, acted to ensure that the facility retained an adequate labor force, participated in the management and supervision of the labor force, had the authority to remove workers who were incompetent or guilty of misconduct, controlled the price of the facility’s product, and controlled who could purchase the product.”[28]

The court ultimately found that the government was an “operator” of the plant.[29] To the extent that this result was not what Congress may have intended when it adopted CERCLA, the court noted that amending the statute was within the power of Congress, not the Courts.[30]

Bestfoods Narrowed the Operator Liability Standard

Four years later, the Supreme Court decided United States vs. Bestfoods.[31] Bestfoods dealt with the question of under what circumstances a corporate parent could be held liable as an operator under CERCLA for the actions of a subsidiary corporation. Because FMC Corp. and other earlier defense contract related decisions had examined governmental vicarious liability under CERCLA as being the same as the inquiry for a “non-governmental entity”,[32] Bestfoods would have a direct impact on government CERCLA liability.

Bestfoods found that a subsidiary “so pervasively controlled” by a parent such that it would warrant veil piercing in the corporate law context could be held derivatively liable for the acts of the subsidiary.[33] This is a high standard – even a parent and a subsidiary that share officers and directors will not necessarily meet it.[34] But even if the conduct of a parent would not warrant veil piercing, the court found that “CERCLA prevents individuals from hiding behind the corporate shield when, as ‘operators,’ they themselves actually participate in the wrongful conduct”.[35] Thus, “[u]nder CERCLA, an operator is simply someone who directs the workings of, manages, or conducts the affairs of a facility… specifically related to pollution, that is, operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations.”[36] This standard has been interpreted to require involvement in environmental decisions on a frequent, often “day-to-day” basis.[37]

It is unclear how FMC Corp. would have been decided under this standard. While it appears that the government did exercise some day-to-day control, it is not clear that this control had the required nexus to the actual pollution. What is clear is that this standard is intensely factual in nature. For all the record developed in FMC Corp., more might have been needed to determine if the government’s day-to-day input over personnel and other issues had the required nexus to the pollution.

Recent Cases Exemplify this Narrower Standard

Two recent cases demonstrate how much more difficult it is to assign “operator” liability to the government after Bestfoods. Exxon Mobil Corp. v. United States involved two sites in Louisiana where the production of avgas[38] for the war effort led to contamination of the Mississippi River.[39] Exxon argued that many activities at the site were performed out of fear that the refineries would be seized by the WPB if production quotas were not met.[40] The court rejected this argument, finding that the government acted more like a “very interested consumer,” and did not direct day-to-day activities.[41] The court also found persuasive that fact that some of Exxon’s contracts contained clauses stating that certain specifications and quantities would be “determined by negotiation,” as opposed to simply dictated by the government.[42]

Exxon further argued that government personnel were at the site every day, performing inspections. The court cited in response other post-Bestfoods cases where daily inspections related to contract compliance and worker safety were insufficient.[43] Ultimately, the government was not determined to be an “operator” of the avgas refineries under CERCLA.[44]

A second case, TDY Holdings, reached a similar result.[45] TDY was the corporate successor of several corporations which had operated a facility near San Diego international airport that performed aeronautical fabrication and testing as a contractor to the government between 1939 and 1999.[46] Even though it was undisputed that the government “owned some of the equipment related to the contamination, and observed and knew of TDY’s production processes and maintenance practices that released contaminates into the environment” the government was found to be merely a “past owner” and not an “operator.”[47] TDY argued that adherence to military specifications (mil specs) led inevitably to pollution, but the court found that the mil specs did not dictate how by-product chemicals should be managed, contained, or disposed of.[48] The court also explicitly distinguished FMC Corp. on the grounds that TDY actively sought out defense work, and was never “ordered, coerced, or forced” to operate as a defense plant.[49] TDY was assigned 100% of the cleanup costs as the “operator,” even though the government had been found to be a “past owner” of some facilities.[50]

Shell and I. DuPont establish the framework for litigation over indemnification clauses

With the window to assign the government “operator” liability in all but extreme cases closed, litigants have explored other ways to shift cleanup costs to the government. One method that has succeeded has been to rely on special indemnification clauses that were included in some WWII-era contracts. Unlike the in-depth factual analysis required to establish “operator” liability, this analysis involves primarily questions of law. Specifically, application of these clauses depends on whether or not the clauses extend to CERCLA liability (which was unforeseen at the time of their execution). If the clauses do cover CERCLA liability, it then must be examined whether or not the Anti-Deficiency Act prohibits payment of indemnification under the clauses and, if so, whether the ADA was effectively waived by the Contract Settlement Act of 1944.[51]

In 1940, the government contracted with E.I. du Pont to build a plant in Morgantown, WV to produce munitions-related chemicals. E.I. du Pont was to construct and operate the plant, but the facilities would be owned by the government. E.I. du Pont was to be paid a fixed fee for the operation of the plant, but the government affectively owned all of the output – there were no products “sold” to the government.[52] The contract contained an indemnification clause that read:

“the Government shall hold [E.I. du Pont] harmless against any loss, expense (including expense of litigation), or damage (including damage to third persons because of death, bodily injury or property injury or destruction or otherwise) of any kind whatsoever arising out of or in connection with the performance of the work”[53]

The court had no difficulty determining that this clause extended to CERCLA liability based on its broad, non-limited language.[54] The court then turned to the question of whether the Anti-Deficiency Act (ADA) barred payment under the indemnification clause. The trial court had determined that the ADA, which bars payments in excess of the amounts appropriated by Congress for a particular contract,[55] did bar payment of CERCLA indemnification. The Federal Circuit did not question this general conclusion, but instead focused on whether payment was otherwise “authorized by law” as an exception to the ADA.[56]

Specifically, the Federal Circuit considered whether the Contract Settlement Act of 1944 (CSA), designed to ensure rapid settlement of war related claims, could overcome the general prohibition of the ADA. The CSA provided that certain agencies;

“shall have authority, notwithstanding any provisions of law other than contained in this chapter, (1) to make any contract necessary and appropriate to carry out the provisions of this chapter; (2) to amend by agreement any existing contract, either before or after notice of its termination, on such terms and to such extent as it deems necessary and appropriate to carry out the provisions of this chapter; and (3) in settling any termination claim, to agree to assume, or indemnify the war contractor against, any claims by any person in connection with such termination claims or settlement.[57]

The Federal Circuit agreed with E.I. du Pont that this language “grant[ed] the President the authority to delegate to departments and agencies contracting power virtually unfettered by contract law, including the ADA”.[58] The case was remanded for entry of judgment in E.I. du Pont’s favor – the government would be liable for any CERCLA costs that might be imposed on E.I. du Pont.[59]

Subsequent cases have confirmed that if the CSA is applicable to the contract at issue, then the ADA restriction is not effective.[60] The only issue that remains is whether the particular indemnification clause is “(1) specific enough to include CERCLA liability or (2) general enough to include any and all environmental liability which would, naturally, include subsequent CERCLA claims.”[61] Shell Oil Co. v. United States concerned a contract where the relevant agency had agreed to pay “”any now existing taxes, fees, or charges . . . imposed upon [the Oil Companies] by reason of the production, manufacture, storage, sale or delivery of [avgas].”[62] The Federal Circuit held that future CERCLA liability was a “charge” within the meaning of the contract, and the government was therefore liable to reimburse Shell for it.[63]

The courts’ findings that certain WWII-era contractor indemnification clauses cover CERCLA liability makes this an attractive litigation tactic now that that it is more difficult to assign the government “operator” liability. Of course, not all contracts contained a version of either of the provisions discussed above. Those that did are more likely to be contracts of the type at issue in E.I. du Pont and FMC Corp., where the government and the contractor were undertaking a mode of operation that would not normally be undertaken outside of wartime. These extraordinary contracts are more likely to involve fact scenarios on which the government might also still be determined to be an “operator,” even under the narrow Bestfoods test. But even where the government might be deemed an “operator,” the indemnification clause strategy has the advantage of providing a complete bar to contractor liability as opposed to requiring apportionment, and also does not require intense factual investigation.

[1] Correlli Barnett, The Lords of War: Supreme Leadership from Lincoln to Churchill 163 (2012).

[2] FMC Corp. v. United States Dep’t of Commerce, 786 F. Supp. 471, 474 (E.D. Pa. 1992).

[3] E.I. du Pont de Nemours & Co. v. United States, 365 F.3d 1367, 1369-70 (Fed. Cir. 2004).

[4] Sixth Supplemental National Defense Appropriation Act, 1942, Pub. L. No. 77-528, ch. 247, § 403, 56 Stat. 226, 245 (1942).

[5] See, e.g., Shell Oil Co. v. United States, 751 F.3d 1282, 1287 (Fed. Cir. 2014).

[6] E.I. du Pont de Nemours, 365 F.3d at 1357 (Fed. Cir. 2004).

[7] Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Pub. L. No. 96-510, 94 Stat. 2767 (codified as amended at 42 U.S.C. §§ 9601-9675 (1988)).

[8] Id at § 9604.

[9] See 42 U.S.C.S. § 9607 (listing the categories of “covered persons”).

[10] Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 1572 (5th Cir. 1988); O’Neil v. Picillo, 883 F.2d 176, 178-79 (1st Cir. 1989).

[11] 42 U.S.C.S. § 9607.

[12] B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir. 1992).

[13] See FMC Corp. v. U.S. Dep’t of Commerce, 29 F.3d 833, 842 (3rd Cir. 1994).

[14] The “Gore” factors include: “(i) the ability of the parties to demonstrate that their contribution to a discharge release or disposal of a hazardous waste can be distinguished; (ii) the amount of the hazardous waste involved;

(iii) the degree of toxicity of the hazardous waste involved; (iv) the degree of involvement by the parties in the generation, transportation, treatment, storage, or disposal of the hazardous waste; (v) the degree of care exercised by the parties with respect to the hazardous waste concerned, taking into account the characteristics of such hazardous waste; and(vi) the degree of cooperation by the parties with Federal, State, or local officials to prevent any harm to the public health or the environment.” United States v. A & F Materials Co., 578 F. Supp. 1249, 1256 (S.D. Ill. 1984).

[15] See Exxon Mobil Corp. v. United States, 108 F. Supp. 3d 486, 534 (S.D. Tex. 2015).

[16] Weyerhaeuser Co. v. Koppers Co., 771 F.Supp. 1420,1426 (D. Md. 1991).

[17] See TDY Holdings, LLC v. United States, 122 F. Supp. 3d 998, 1015 (S.D. Cal. 2015) (“In circumstances where the Government was found to be such an “operator” due to its control or management, in whole or in part, of the disposal practices at a site, courts have found it equitable to burden the Government with a substantial portion of the

remediation expenses.”).

[18] FMC Corp., 29 F.3d at 833.

[19] See Van S. Katzman, The Waste of War: Government CERCLA Liability at World War II Facilities, 79

Va. L. Rev. 1191, 1193, 1232 (1993).

[20] FMC Corp., 29 F.3d at 836.

[21] Id at 835.

[22] Id.

[23] U.S. Department of Health and Human Services, Agency for Toxic Substances and Disease Registry, Toxicological Profile for Carbon Disulfide (Update) (1996).

[24] 42 U.S.C.§ 9613(f).

[25] FMC Corp., 29 F.3d at 835.

[26] The government also argued that it had not waived sovereign immunity for purposes of CERCLA liability for purely regulatory actions, but the court disagreed with this contention. Id at 836.

[27] Id at 843.

[28] Id (emphasis added).

[29] Id at 845.

[30] Id at 846.

[31] United States v. Bestfoods, 524 U.S. 51 (1998).

[32] FMC Corp., 29 F.3d at 840.

[33] Bestfoods, 542 U.S. at 64 n. 10.

[34] Id at n. 12.

[35] Bestfoods, 542 U.S. at 65 (quoting Riverside Market Dev. Corp. v. International Bldg. Prods., Inc., 931 F.2d 327, 330 (5th Cir. 1991)).

[36] Bestfoods, 524 U.S. at 65-66.

[37] Exxon Mobil Corp., 108 F. Supp. 3d at 529-30 (quoting City of Wichita, Kansas v. Trs. Of APCO Oil Corp. Liquidating Trust, 306 F. Supp. 2d 1040, 1055 (D. Kan. 2003)).

[38] Avgas was a revolutionary 100-octane fuel that, when used to replace the 87-octane fuels previously used in combat aircraft, increased their speed without requiring significant modifications to the engine. See Sustainable Technology Forum, Chemists explore WWII ‘miracle’ aviation fuel, available at (last visited June 26th 2016).

[39] Exxon, 108 F. Supp. 3d at 491.

[40] Id at 523-24.

[41] Id at 523.

[42] Id at 498.

[43] Id at 525.

[44] The government was determined to be an operator of several discrete facilities related to the litigation, including an ordinance shop. This finding was based on correspondence showing that the government “made specific decisions about waste disposal and environmental compliance,” was aware of the pollution, and decided to continue polluting. The ordinance works was described as “resembl[ing] a United States Army base more than a chemical plant” in terms of who actively managed it and its operational procedures. Id at 530-32.

[45] TDY Holdings, 122 F. Supp. 3d at 1003.

[46] Id at 1003.

[47] Id at 1004, 1021-22.

[48] Id at 1016-17.

[49] Id.

[50] Id at 1022.

[51] See generally Andrew P. Lawson, Casenote: The End of a War Does not End its Adversarial

Reach: The Federal Government’s Indemnification of World War II Contractors for Toxic Waste Cleanup Resulting from Wartime Manufacturing Efforts in Shell Oil Co. et al. v. United States, 26 Vill. Envtl. L.J. 363 (2015).

[52] E.I. du Pont de Nemours, 365 F.3d at 1369-70.

[53] Id at 1370.

[54] Id at 1373.

[55] Id at 1374.

[56] Id.

[57] Id at 1375 (emphasis as added in decision).

[58] Id at 1376 (quoting Johns-Manville Corp. v. United States, 12 Cl. Ct. 1, 33-34 (1987)).

[59] Id at 1380.

[60] See, e.g., Shell Oil Co., 751 F.3d at 1301.

[61] E.I. du Pont de Nemours, 365 F.3d at 1373 (quoting Elf Atochem N. Am. v. United States, 866 F. Supp. 68, 870 (E.D. Pa. 1994)).

[62] Shell Oil Co., 751 F.3d at 1287.

[63] Id at 1284. Reyna, J. dissented, primarily on the ground that the provision in question was located in a section of the contract related to taxes and, interpreted in that context, CERCLA liability was not a “charge.” Id at 1303-05.

[ELRS] A Primer on Rails-to-Trails Conversions in the Eastern U.S.

By Garrett M. Gee, Staff Member, William & Mary Environmental Law and Policy Review.

This post is part of the Environmental Law Review Syndicate

The Rails-to-Trails Act ("Trails Act") provides localities and nonprofits with a useful tool for transforming dormant rail rights-of-way (“ROWs”) into recreational trails.  16 USC § 1247(d).  The Act streamlines the legal complexity of trail conversion by providing a clear and systemic framework for the railroad to transfer ownership of the corridor to a third party sponsor organization (known as the “interim trail manager”).  Only a ROW in the interstate, common carrier rail network (hereinafter, a “common carrier line”) is eligible for trail conversion under the procedures of the Trails Act.  16 USC § 1247(d).  All railbanked ROWs are subject to reactivation for rail service, so potential trail sponsors should consider this risk when drafting the railbanking agreement and investing in the trail corridor.  Finally, railbanking is a voluntary transaction between the railroad and the trail manager—nothing in the statute obligates the railroad to negotiate or agree to railbanking.  However, because the Act allows railroads to shed property tax liability without foreclosing the possibility of future rail service along the corridor, it is often an attractive proposition for inactive common carrier lines.

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[ELRS] Ethical Convergence and the Endangered Species Act

By Caitlin Troyer Busch, Stanford Environmental Law Journal.

This post is part of the Environmental Law Review Syndicate. Click here to see the original post and leave a comment.


The Endangered Species Act (ESA) is both lauded and criticized as one of the most powerful environmental laws ever enacted. Proponents of the law praise it for protecting thousands of endangered species over the last forty years, while detractors argue it is a bureaucratic mess that no longer benefits humans, but instead overburdens private landowners and development and values species’ needs above human needs. These claims reflect the disparate values underlying the statute itself. At the time of the Act’s passage, some proponents pushed for endangered species reform on the belief that species have intrinsic value—that is, value that “an entity has in itself, for what it is, or as an end.” Others believed that the value of endangered species lay in their instrumental value to humans, as “means to a desired or valued end,” such as agriculture. Despite these distinct values, the Act was passed in 1973 with little to no opposition. A wide range of stakeholders with differing environmental values came together to craft a far-reaching and unprecedented environmental law. This lack of opposition demonstrates that the Endangered Species Act successfully captured both sets of values in a single, comprehensive environmental statute.

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[ELRS] Adapting the Paris Agreement

By Bonnie Smith, Staff Editor, Vermont Journal of Environmental Law.

This post is part of the Environmental Law Review Syndicate. The original post will be available on VJEL's website later today.

For the first time in the history of international climate negotiations, adaptation has its own article in a legal text. Even more striking is that loss and damage, historically treated as a component of adaptation, does too. For many years, negotiations concerning adaptation and loss and damage have been contentious between developed countries, which prioritize mitigation over adaptation and loss and damage, and developing countries uniquely vulnerable to the impacts of climate change. Chronicling the controversial discussions and negotiations leading up to these monumental Paris Agreement articles reveals still-existing tensions between Parties to the Agreement. It also sheds light on negotiable points for future Conferences of the Parties (“COPs”).

Adaptation, mitigation, and loss and damage are three interconnected concepts pertaining to climate change. Defined simply, “adaptation” is the “adjustment of behaviour to limit harm, or exploit beneficial opportunities, arising from actual or expected climate change.” In contrast, “mitigation” seeks to limit climate change, primarily by reducing greenhouse gas emissions. “Loss and damage” encompasses the costs associated with climate impacts that adaptation and mitigation cannot prevent.

This article will begin comparing the historical treatment of adaptation and loss and damage with mitigation in the context of international climate change negotiations. Then, the article will analyze the Paris Agreement’s treatment of adaptation and loss and damage.

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[ELRS] It is Time for Oregon to Define Its Public Trust Duties

By Olivier Jamin, Online Journal Editor, Environmental Law (Lewis & Clark Law School)

This post is part of the Environmental Law Review Syndicate. Click here to see the original post and leave a comment.


The public trust doctrine (PTD) is a concept under which states have the duty to preserve certain natural and cultural resources for the benefit of the public. The PTD is a common law doctrine, and state courts around the country have spent the last three decades applying — and in some cases rejecting — it to a variety of natural resources. For example, the New Jersey Supreme Court applied the PTD to beaches and shores, the California Supreme Court applied it to navigable streams and their tributaries, and the U.S. Supreme Court has held that states own fish and game within their borders on behalf of their citizens, a position followed by many states. However, the most traditional application of the PTD has been to tidal and submerged lands. Oregon has been slow to develop its application of the PTD, as illustrates the lack of case law. Professor Blumm explains that although Oregon courts have repeatedly announced broad public rights in all waters of the state, the courts have not addressed the PTD since 1979. Last year however, the PTD was the topic of a circuit court opinion in Lane County that could mandate the Oregon Supreme Court to define precisely the extent of the doctrine in the state. The decision is highly controversial as it constitutes one of the most restrictive approach to the PTD, as to its scope and duties. The plaintiffs, Kelsey Juliana and Olivia Chernaik, represented by Our Children’s Trust, a non-profit organization advocating for greater reduction of CO2 emissions, appealed the decision last summer, gathering support from local law professors. Because the decision gave an erroneous overview of the PTD in Oregon, the court of appeals, and possibly the Supreme Court should seize on this opportunity to clarify the scope of the doctrine in the state.

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[ELRS] Towards a Middle Path: Loss & Damage in the 2015 Paris Agreement

By Maryam Al-Dabbagh, Graduate Editor of the NYU Environmental Law Journal

This post is part of the Environmental Law Review Syndicate. Click here to see the original post and leave a comment.

In the lead-up to the Paris talks, the issue of loss and damage (L&D) was portrayed to be one of the biggest hurdles in the quest for an agreement. L&D had already suffered multiple drawbacks in previous talks, such as the mass walkout by G-77 countries at COP19 in Warsaw in protest of the response by developed countries to their demands for L&D. Surprisingly, no similar issues occurred in Paris; instead, the agreement articulated a middle path between the seemingly divergent aims of developing and developed countries. This paper will trace that path through an analysis of the L&D articles of the agreement, and set forth the headway as well as the challenges that should be expected in coming years.

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[ELRS] When a Disaster is Not a “Disaster” and Why That Title Matters for Flint

By Helen Marie Berg, General Member, Michigan Journal of Environmental & Administrative Law

This post is part of the Environmental Law Review Syndicate. Click here to see the original post and leave a comment.

In January 2016, Michigan Governor Rick Snyder appealed to the federal government for a $96 million emergency aid grant in response to the tremendous and growing public health crisis in Flint, Michigan. City and state officials caused the crisis. They decided to switch the city’s drinking water source from Lake Huron to the Flint River, but failed to add the proper anti-corrosion treatment to the lead pipes that distribute water to the city’s 100,000 residents. That decision caused the lead to leach from the pipes, ultimately poisoning all who drank the city’s water.

Governor Snyder’s request was not only for funds, but for President Obama to declare that the crisis in Flint was legally a disaster—a prerequisite for such an allocation of money and for eligibility for certain government programs. The headline of an article in the Detroit News shortly after Snyder’s request read: “Obama gives $80 million to Michigan for Flint.” Though it sounds hopeful, this headline is misleading.

President Obama declared a federal emergency in Flint—but not a disaster. The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 was enacted “to support State and local governments and their citizens when disasters overwhelm them.” The Act outlines the process to receive a presidential disaster declaration that would activate “an array of Federal programs to assist in the response and recovery effort.” Governor Snyder’s request for such a presidential disaster declaration was denied. He appealed the decision immediately—only for it to be denied again two days later.

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