E&EM doctoral student Jerry Sherk recently published two papers in influential archival journals. The first paper, entitled “The Regulated Riparian Model State Water Code: Perspectives on the Relationship Between Water Quantity and Water Quality,” was published in the journal Rivers.
The paper focuses on the fact that, throughout American history, a distinction has existed in water law and policy between water quantity and quality issues related to the management and allocation of water resources. Water quantity issues focus on rights to use water and on the nature and scope of those rights. Water quality issues, on the other hand focus on the physical composition or constituents of the water resource. In terms of a judicial taxonomy, water quantity issues arise in the context of natural resource law and policy while water quality issues arise in the context of environmental law and policy.
Sherk‘s second paper, published in the Federal Facilities Environmental Journal, is entitled “Reauthorization of CERCLA and the Redevelopment of Brownfields: Who Will Pay the Orphan’s Share?“ This paper examines significant and unjustifiable differences arising under the Comprehensive Environmental Response, Compensation and Liability Act in the way in which the Superfund may be used to remediate “orphaned” National Priorities List (NPL) sites and “orphaned” brownfield sites.
Under both the existing law and numerous proposals for the reauthorization of CERCLA, while the Superfund may be used for the remediation of orphaned NPL sites, it may not be used for the remediation of orphaned brownfield sites. In each situation, however, an absent, insolvent, defunct, bankrupt or judgment-proof party has created a situation in which remediation costs must be borne by the public. The study concludes that there is no fundamental policy reason for treating these orphans differently and presents recommendations to facilitate the remediation and redevelopment of both NPL sites and brownfield sites.