Juris Magazine- Winter 1991

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JURIS THE DUQUESNE LAW SCHOOL NEWSMAGAZINE C 0

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Turning Up the Heat: The Greenhouse Effect

by Ella Kwisnek

Fossil Fuels: An Age Old Energy Source

by Henry Lee Moore

The Role of Love Canal

by Anna M. Backus

Stepping Into the Nineties: Child Support Obligations of the Stepparent

by Daniel T. Reimer

Some "Light" Reading (A Little Corn)

by Carmen A. Martucci

Cruzan Gives a "Right" to Die With State Regulation

by Lisa Allen

Superfund Cleanups: Mixed Decisions on Who Should Pay

by Sherri Lynn Cupplo

Some Powerful Lines on Toxic Tort

by Lea Black

ON Campus The Gulf: What Are The Options?

by Professor Cornelius Murphy

Recent Decisions

Editor-in-Chief Raymond Sekula

Jon R. Perry

Faculty Advisor

Photography Editor

Deanna L. Heasley Executive Managing Editor

Cheryl L. Cindric h Graphics Editor Claire Trunzo

Bob Walter

Layout Editor

Executive Production Editor

Lisa Martino

Copy Editor Jan Daschbach

Administrative Assistant Susanne Kimberland

Senior Editor J eanne D . Gorr

Evening Articles Editor Aileen M. Hickey

Day Articles Editor Michae l J . Silver

Recent Decisions Editor James Kocur

Assistant Managing Editor

Production Staff Elizabeth Catton Valerie A . Gatesman Robert Goldman Eddy Guarascio Lisa Gumbita Paul J . Malak Mary Grace Manion

Staff Editors Anna M . Backus Christopher Ferry Ella A. Kwisnek Colleen Ramage Kelly Scanlon Lisa Sciullo Daniel P. Taylor

Front Line Editors Jan S. Barnett Philomena Demeter Carrie E. Garris Michael A . Labriola Carmen A . Martucci Judith L. Renner Mic hael J. Revness Tammy Rhodes

Michael F . Marmo Dale T . Provins Chuck Rigsby Susann Schneider Sco tt M. Staller Sleven Tabano Mary Wheeler

Writing Staff Lisa M. Allen David A. Amadio Lea Black Jeffrey J . Bresch Richard A. Bozigar Anthony C. Carone Sherri C upplo Matthew S . Delaney Catherine M. Ducke tt Coulsen Duerksen Dru A. Durigon Thomas N. Farrell Joyce Ann Gallagher Joan E . Gibson James H op son M. Robb Hyde J ea n A . K ell Mary Ann Lewis Angela M. M cBride

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4 8 10 13 16 17 20 22 24 27 28 30

by Lisa Gumbita

Environmental Ethics: From Natural Rights to Legal Rights

Steven W. Zoffer

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Susan D. Mcilwain Robert J . Maranto. Jr. Gregg D. Michael Mark Milsop Henry Lee Moore Li.sa Marie Pasqualini Molly E. Puhlman Daniel T. Reimer Sarah 0 . Rollman Mark Rowan L. A . Sm ith, II Mary T . Snyder Martha A. Stewart Kelley T. D . Streib Heather Tomb Ed Vallery Vanessa Viera Eric S . Weiss Peter Matthews W right

JURIS is a student publica tion of the Duquesne University School of L aw . V iews and opinions ex pressed h er ein a re no t n ecessarily those of JURIS or Duquesn e University. All m an uscrip ts and comments may be addressed to: JURIS Duquesne U niver sity School of Law 900 L ocu st Str eet Pittsburgh . Pennsylvania 15282 Telephone (412) 434路6305 Copyright 漏 199 1 Duquesn e University

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The heat is on! A century and a half of industrial air pollution is turning up the global thermostat and we must find relief. For the first time in history. countries of the world are faced with the problem of finding ways (both practically and legally) to control atmospheric carbon dioxide buildup.

The aim is to prevent the devastation that would be caused by the scientifically labelled greenhouse effect. However, many obstacles need to be overcome in order to formulate an effective solution.

THE GREENHOUSE EFFECT AND GLOBAL WARMING: THE THEORY

The greenhouse effect occurs when the sun emits visible light that penetrates the Earth's atmosphere. These beams of light warm the land , water and air. At the same time. the earth cools itself by giving off Invisible infrared radiation which has a longer wavelength and produces heat. Gases present in the earth's atmosphere. such as carbon dioxide (C0 2 ), chlorofluorocarbons (CFCs). m ethane and nitrous oxide (also known as greenhouse gases). trap some of these infrared rays emitted from the earth and reflect them bac k to the planet while some of the radiation escapes into space. Consequently, due to the increased buildup of C0 2 and other gases in the atmosphere (caused primarily by increased emissions from the burning of fossil fuels) more energy is being trapped and sent back to earth. thereby causing the planet to warm . 1 The most widely accepted estimate among scientists is a rise in the planet's average temperature of 1.5 °C to 4.5 °C (3 °F to 8 °F) as early as the year 2050.2 With the help of computer-based models, scientists predict drastic cha nges will occ ur due to the increased temperature of the earth.

For example, the expected warming of the oceans and the subseque nt m elting of glaciers and polar ice caps will cause an increase in sea level that could reach 5-15 inches by the year 2025 and 2-7 feet by the year 2100.

The Great Plains in the United States would becom e a dustbowl in the summer, making it unfit for agriculture.

The frequency of weather extremes will accelerate and hurricanes will become more in tense due to high heat and increased water evaporation.3 Measurement methods developed in 1957 for detecting atmospheric gases have revealed that C02 concentrations have risen rapidly over the past three decades. Today. according to a NASA report. there is 30% more C0 2 in the atmosphere than the estimated pre-industrial age levels of 270 parts per million (ppm) and another 30% increase is expected over the n ext 50 years. 4 The increase is be lieved to be principally caused by the burning of fossil fuels and the clearing of the tropical rain forests.

Other causes include a growing world population which places demands on fuel use. agriculture. livestock raising and other environmental pressures.

Deforestation also contributes to global warming in two ways: (1) the burning of fresh c ut trees releases C0 2 ; and (2) these trees are no longer available to absorb C02 . 5 THE GLOBAL WARMING DEBATE

However. the theory of global warming and the greenhouse effect has recently been under considerable attack by some scientists. They state

the computer-based models on which these dire predictions are grounded are "sketchy and inadequate. " 6 The models, they assert. may not accurately reflect factors such as the heat absorbing capacity of the vast oceans that cover 70% of the plane t's surface and the effects of clouds. A warming trend could cause more water to evaporate and increase the planet's cloud cover. This increase could reduce the amount of th e sun's visible rays reaching the earth's surface, which would have a cooling effec t that would counteract the warming. 7 Also, most of these models incorrectly assume that the atmosphere is pure gas, which it is not. The cooling effect of volcanic aerosols from volcanic a c tivity has been generally overlooked.

Some, including Dr. Reid Allen Bryson of the Center for C limatic Research for the University of Wisconsin. argue the overlap between aerosols and C0 2 must be taken into account in order to realistically calculate the radiative losses from the earth.8 In a brief summary of his personal reservations concerning the greenhouse effect. Dr. Bryson states.

"I do not think the approach of those attempting to model the response of the climate to increased C0 2 is wrong, but I do think that the efforts have been incomplete and that it is pre mature to make far-reac hing prognostications. " 9 The debate over global warming extends to the issue of whether the predicted heating has already begun.

The fact that four of the warmest years ofthelast lOOhavebeeninthe 1980's ( 1980. 1981. 1983. 1986) suggests that the warming trend has in fact begun. 10 In June 1988 there was scientific testimony given before the United States Congress that the heat of the Northern U.S. was due to greenhouse warming. It is interesting to note . however, that as warm as the American int erior was during this time , Siberia was experien cing unusually cold temperatures. 11 It has also been suggested that the largest effect would occur in high latitudes in the winter.

Howe ver during the winter of 1988.

northern Alaska had abnormally cold weather. 12 This information casts doubt as to whether the predicted global warming is actually present.

Nevertheless. despite their differences , scientist generally agree that the unchecked accumulation of greenhouse gases will eventually lead to warming. But no one is able to predict when it will start and how rapidly the process will progress.

FINDING SOLUTIONS TO THE PROBLEM: INTERNATIONAL, NATIONAL AND PRIVATE EFFORTS

Slowing global warming will require action on many fronts because of its unique, worldwide nature. People and governments working together on the national, international and individual levels to decrease the rate of C0 2 release is an insurance policy in preventing possible future increases in the earth's temperature. a. NATIONAL POLICY AND THE PRESIDENT

In Washington . the growing debate over the timing and possible effects of global warming has caused forces inside the White House . especially Chief of Staff John Sununu. to advise President Bush to take a "wait and see" approach . 13 This stance is opposed to the President taking immediate measures to drastically cut our nation's C0 2 (and other greenhouse gas) production. The White House is concerned about the economic consequences of sudden, drastic curbs in fossil fuel use . Therefore, administrative action seems debatable so long as scientific evidence on the greenhouse effect is sketchy.

Because of the difficulty of setting a global warming policy based on uncertain projections of the future , the President took this advice and is emphasizing the need for more scientific research to determine the proper policy response . This cautious approach is frustrating to other countries, especially Western Europe , where belief in the global warming theory is strong.'4 The White House has. in the meanwhile. set out its steps to combat global warming. Plans include the setting aside of one billion dollars for global climate research in 1991. a commitment for the U.S. to phase out production ofCFCs by the year 2000 and a vow to plant a billion trees. which would absorb C0 2 from the air. 15 It is interesting to note that the American Forestry Association uses the value of 13 pounds as the average amount of C0 2 absorbed per year per tree. 16 Environmentalists argue that the government should do more to discourage the burning of fossil fuels, such as imposing a general tax on fos-

sil fuel consumption . However. according to the Environmental protection Agency's calculations, the tax would not have a significant effect on energy to delay a rise in temperature .17 The Agency alternatively suggests instead that future incentives be given for the development of fuel technology with minimal environmental effects.

It is because of the uncertainty in the environmental computer models that the government is unlikely to initiate costly action to inhibit C0 2 output. It is doubtful whether such action could survive political and

within a State or by persons under its jurisdiction. 20 The "good neighborliness" doctrine was applied in 1949 in the Corfu Channel Case (UK v. Albania) where a minefield in Albanian

waters caused an explosion harming British vessels. 21 The International Court of Justice (ICJ) ruled that Albania had an obligation to warn the British of the existence of the minefields.

The Tribunal stated. it is "every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States." 22 The grandfather of international environmental agreements is the Trail Smelter Case (US v. Canada.

The problem of global warming requires an international solution because of its worldwide effects.

legislative review because of the serious effect it would have on the economy.18 However, this does not mean the government cannot take reasonable steps as a kind of insurance policy for the future. Some suggestions include putting a ban on shale oil and synthetic (syn) fuels, promoting reforestation. discouraging fossil fuel use and finding ways to increase energy efficiency. It stands to reason, therefore. that increased funding should be provided for the collection of data to provide better climate models. In addition. the U.S . can plan for an eventual climate change by limiting building and development in zones of potential danger, such as the coastal region. b. AN INTERNATIONAL APPROACH IS ALSO NECESSARY

The problem of global warming requires an international solution because of its worldwide effects.

Embodied in international law are three doctrines that have been used to analyze the rights and duties of nations in environmental disputes.

They are; (1) abuse of rights, (2) duty of non-interference. and (3) good n eighborliness. 19 "Good neighborliness" is the most important principle relating to international environmental law. This doctrine is found in the United Nations Charter and imposes upon States the duty to protect other nations from damages caused by acts

1939.) In this only known international action involving air pollution. the United States demanded compensation from Canada for damages caused by the emission of fumes from a Canadian factory. The joint Tribunal declared , "No State has the right to use or permit the use of territory in such a manner as to cause injury by fumes in or to the territory of another ... when the case is of serious consequence and the injury is established by clear and convincing evidence. ' '23 Up until the early 1970's there were no environmental treaties that encompassed the entire world. After Trail Smelter. treaties were usually between two countries or at best regional. However in 1972. the United Nations Conference on Human Environment met in Stockholm . The meeting resulted in a famous document called the "Stockholm Declaration ." This plan. which generally incorporated all three international doctrines, called for all nations to carefully evaluate any activities that may have adverse effects on the climate .24 As a result of the conference a voluntary environmental fund was established . This fund supports such programs as data collection systems and environmental research projects.

Following the Stockholm convention. the United Nations Environment Programme (UNEP) was formed and its headquarters e stablished in Nairobi. 25 UNEP is an advisory body with no executive functions. It is basically responsible for global monitoring and information systems, education , training and technical assistance.

While UNEP has no law creating powers it has been instrumental in the initiation of various conferences on the environment and has helped to raise the world's level of consciousness.26 Even with the progress in recent years towards various environmental treaties, the world and the legal community face a tough challenge in developing an international agree-

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ment on C0 2 emissions. Obtaining and maintaining control of global C0 2 emissions will be difficult. The reason for this is that there is no single indentifiable source of C0 2 emissions, as compared with synthetic CFC production where it is possible to identify and control where the CFC's are produced and used. Also, the Third World countries blame industrial nations for the "greenhouse effect. " These emerging countries are trying to develop, and feel constraints on that development are unwarranted .27 Therefore. they have been and will be reluctant to sign a treaty that would impose restraints such as the Montreal Protocol whic h limits CFC production. These countries can seek assistance and protection from the ICJ. 28 However, issues of global warming and problems of a ris ing sea level (which is of utmost importance to low lying nations and islands) are beyond the scope of most issues his torically considered by this court. Whether the ICJ can rise to the challenge is a serious question. 29 Deve lopment of a multi-national agreem ent to resolve the greenhouse effect is further hindered by the longstanding internationa l policies of (1) e quita ble u se, (2) territoriality a nd (3) sovere ignty. These conce pts must be revised if pollution is to be controlled. First, the concept of equitable u se has to be discarde d . There can be no equitable use of the atmosphere because nations are users of the atmosphere and it must remain intac t for future generations. Additionally, the concept of territoriality has no place in any consideration of the atmosphere . Countries mus t realize tha t a ir spa ce in te rms of environme n tal pollution, is not within the realm of political control. The a tmosphere is eve ryone's resource a nd each n a tion must act to m a intain its integrity.

Finally, the concept of sovereignty must be upda ted. Each nation has a right to exploit resources within its jurisdiction; howeve r, all na tions ha ve a responsibility to prevent harm to those out of their juris dic tion .30 As a conse que nce. each nation will h a ve to re linquish some of its sovere ignty for the ben efit of the earth. These new princ iples of legal thinking mus t be a dopted if a fu ture world-wide agreem ent on globa l warming is to be effective.

Although the United Sta tes is home to only 5 pe rcent of the world 's popula tion, our nation produces 27 percent of the CFC's and consumes 28 percent of the world's e nergy. As a result, the U.S. has b ecome the world's s ingle largest contributor to global warming.3 1It has a special responsibility to

act to curb C0 2 production in this country. possibly through the introduction of new bills in Congress providing for increased regulation, bans, and cutbacks in emiss ions. In addition, the US should aid Third World countries in developing new technology to eliminate CFC production . However. a c tion on the part of the Unite d States will have only a limited effect if other c ountries do not address this situation.

In April 1990. an 18-nation global warming confe rence was h e ld in Washington . The White House a nticipated a debate on the uncertainties of the greenhouse e ffec t to help increase support for its slow-go position .

Instead, most attendees agreed that the global warming threat is real and potentia lly serious. Nations further agreed that they should slow down the rate at which they are changing the atmosphere .32 West German Environm ent Minis ter Kla us Topfer said a t the Washington conference, "Worldwide a ction against the climatic threat is urgently required , even if the complicated s c ie ntific interrelationships of climatic c hange have not been fully understood. " 33 In the face of such strong sentime nt, the President denied he was ta king the subject of globa l wa rming lightly and agreed to cooperate with the United Nations' effort to forge a n inte rnational agreement on dealing with climate change.

Other action in prog ress inc ludes the United Na tions Env ironme nta l Program which established a special task force on c lima te c ha n ge tha t

has ta rgeted 1995 for the completion of an agre ement on global warming measures. Helping to pave the way for such a trea ty was the "Toronto Conference," which took place in J une 1988. The m eeting consisted of government, corporate and environmental leaders from 48 countries.

Recommendations included a 20% decline in worldwide use of fossil fuel by the year 2005 and an eventual decrease of 50%. Participants also called for a switch to low C02 emitting fuels and place d an empha s is on renewable energy. 34 In a policy reversal, the Bush admin istration recently announce d it would go along and help create

a $100 million fund. This fund would be administered by the World Bank over three years to help developing Third World countries phase out the use of ozone-depleting chemicals (such as CFCs) and switch to safe substitutes. 35 The US plans to contribute $25 million. Previously, the President was against such a fund and believed the money to support such a project should come from existing World Bank funds. However, Bush did admit the Bank did not have adequate funds available to operate the project. 36

c. YOUR EFFORTS COUNT!!

Along with the national and international efforts, participation by

the legal community is vital to the development of adequate environmental protection legislation. Law students, lawyers, and judges can play a significant role in bringing about change in the legal system. For the first time in history it will be necessary to form world-wide international treaties in order to effectively combat global warming. In entering this new phase of law. new legal concepts and doctrines will have to be developed.

The legal community can also have a large impact in this country by supporting environmental groups and by persuading their Congressmen to propose legislation to regulate C0 2 production. Working together, as individuals and with nations around the world, we can unite to combat and overcome this problem.

REFERENCES l. Rose Marie L. Audette, "The Greenhouse Effect,'' Environmental Action (Jan/Feb. 1989): pp. 18

2. Charles P. Alexander. "A Sizzling Scientific Debate: Skeptics Claim that the Evidence for Global Warming is not so Hot, .. Time (April 30, 1990): pp. 84 3. Audette. p. 18 4. Audette. p. 18 5. Audette, p. 19 6. Alexander, p. 84 7. Alexander, p. 84 8. Reid Allen Bryson, "Will There be a Global Greenhouse Warming?"

Environmental Conservation 16, No. 2 (Sum-

mer 1989): pp. 97 9. Bryson, p. 97 10. Audette, p. 17 11. Bryson, p. 98

12. Bryson, p. 98 13. Alexander, p. 84 14. Alexander, p. 84 15. Alexander, p. 84 16. Audette, p. 21 17. David A. Einhorn and R. Alta Charo, "C0 2 and the Greenhouse Effect: Possibilities for Legislative Action" Columbia Journal of Environmental Law 11 (Spring 1986): pp. 511 18. Einhorn and Charo. p. 516 19. Allene Zanger, "Carbon Dioxide's Threat to Global Climate: An International Solution," Stanford Journal of International Studies 17 (Summer 1981): pp. 399 20. Zanger, p. 399 21. Zanger, p. 399 22. Corfu Channel Case (1949) I.C.J. 4 at 22 23. Trail Smelter Case (US v.

Canada). 3 R. International Arb. Awards 1905 (1938) 24. Zanger. p. 401 25. Margot B. Peters, "An International Approach to the Greenhouse Effect: The Problem of Increased Atmosphereic Carbon Dioxide can be Approached by an Innovative International Agreement, .. California Western International Law Journal, 20 (Winter 1989):pp. 78 26. Peters. p. 79 27. Peters. p. 85 28. Peters, p. 86 29. Durwood Zaelke and James Cameron, "Global Warming and Climate Change-An Overview of the International Legal Process (Symposium on International Environmental Law)" American University Journal of International Law and Policy 5 (Winter 1990):pp. 284 30. Peters, p. 87 31. Audette, p. 22 32. Alexander, p. 84 33. Alexander, p. 84 34. Audette, p. 23 35. "Bush Reverses Stand on Ozone," (Datelines) Pittsburgh PostGazette (Saturday June 16, 1990): pp. 2 36. ''A Baffling Ozone Policy.'' Time (April 30, 1990):pp. 20

Lisa Gumbita is a secondyear evening student.

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ENVIRONMENTAL ETHICS:

FROM

NATURAL RIGHTS

TO LEGAL RIGHTS

Why this burgeoning body of law concerning the environment? Are we conce rned with threats to our own existence arising from toxins? Do we feel some obligation towards future generations? 1 Or, are we becoming cognizant of an ethical duty towards other living things, or even towards the planet as a whole?

In considering these questions. one is likely to regard each as playing some role in their conception of why the environment needs the protection of law. This article, however, will confine itself to the final query; specifically. to the examination of "the belief that ethical standing does not begin and end with human beings". 2 The position that nature has intrinsic value is identified by such terms as biocentrism, ecological egalitarianism or deep ecology (ones propounding such views have also been dubbed by the un11attering nomenclature, ecofascists) . Persons who seek to protect nature for its own sake are known as dee p ecologists and they are to be distinguished from shallow ecologists who seek to protect human interests through such things as prevention of pollution, minimization of resource depletion and¡cessation of population growth.

Dee p ecologists propound th e notion that every entity on the planet has a right to exist. To such environmental egalitarians man has no greater right to exist on earth than do nonhuman entities. Such persons emphasize the fact that nature is an interdependent community of which humans are only one part. One who truly ascribes to this theory would, therefore , be willing lo go so far as to say that humans may , through the natural processes of evolution. become extinct. This is so because any individual organism is always subordinate to the biotic community.

In 1948 Aldo Leopold propounded a land ethic which re11ects this theory.

For Leopold "the land" meant our physical environment, the ecosystem .3 Leopold stated that "a thing is right when it tends to preserve the integrity. stability. and beauty of the biotic community. It is wrong when it

tends otherwise" . Leopold delineated three criteria by which he tested the environmental soundness of an action: (1) non-economic reasons for the act; (2) the balancing of ethical or aesthetic reasons when making an environmental decision; and (3) the application of such standards by the citizenry and not merely government entities. 4 One author notes: "[t]he land ethic urges humans to rise from the closet of self interest and to evolve to the plain of ecocentric interests". 5

The implications of this theory are extreme. Indeed. as Roderick Frazier Nash notes in his book The Rights of Nature, they are subversive .6 A deep ecologist totally rejects any homocentric or anthropocentric justification for the environmental movement. The only proper standpoint from which one is to make a decision is one which considers the benefits of the whole; what is best for and respects the integrity of the Gaia? 7 Such a theory is also radical because. if one views nonhumans as having the same lights as persons, one will be willing to do those same acts to protect the integrity

of the whole as one would traditionally do to protect another person. 8 Such acts are currently being performed by deep ecologists who spike trees and roads. In his 1985 book , Ecodefense : A Field Guide to Monkeywrenching, Dave Foreman wrote: "[i]t is time to act heroically and admittedly illegally in defense of the wild, to put a monkeywrench into the gears of the machinery destroying natural diversity". There also exist radical groups which go by such names as The Hardesty Mountain Avengers and The Tucson Ecoraiders.

Obviously, these views are currently considered to be radical. Professor Christopher Stone pointed out. the less anthropocentric a viewpoint, the more radical it is considered. 9 The notion of extending rights to nonhuman entities in order to protect the environment, however, is not so radical. In a 1972 Southern California Law Review article. Professor Stone posed the question. "Should Trees Have Standing?" . 10 Stone's starting point was the same as that of the deep ecologists, the notion that the spectrum of which entities deserve moral consideration is evolving to include things increasingly remote from the self. 11 As Nash states. "[t]he magic circle of rights holders was widening" . 12 Stone's article was lauded by radical environmentalists because he suggested a legal vehicle by which nonhuman entities could indeed have standing to sue (the question of whether these same entities could be sued is another matter entirely since they. unlike humans, cannot do good or bad acts.) Stone pointed out that the establishment of a corporation as a legal "person " was also once thought to be absurd 13 • He then suggests a guardian-like system whereby natural entities, say a liver, would have a legal representative much like a child or an incompetent has a guardian . One author stated. "[a] true theory of environmental ethics involves according moral standing to inanimate objects" 14 . However. "the burden of justifying such an unconventional argument is an especially high one for lawyers because ethical speculation.

no matter how engaging, must be made operational". 15 Yet, one scholar pointed out: "[d]uring a period of transition, especially In law. it is not unusual for fictions to be used to bridge the gulf between law and the progressive will".IS While the Trees article is oft cited by the deep ecologists, Stone's subsequent works are more indicative of an evolutionary proposal for the extension of rights to nonhuman entities.

Stone, as well as other legal scholars, points out that our current environmental laws are being made in an ethical vacuum. 17 Society has seen the problem and reacted in the form of laws and other acts. These acts. however, are not rooted in any articulated ecophilosophy. No common ground from which we are to act exists. Stone stated, "[n]o environmental legislation. not even the law on the books right now. can be administered intelligibly or intelligently without an excursus into a deeper environmental ethic than anyone in public office has been prepared to formulate" . 1s Stone, while apparently sympathizing with some of the ecological egalitarians views, is clearly not of their ilk. In his subsequent works Stone has proposed the notion of moral pluralism to deal with the environmental problems we face.

Stone uses the term moral pluralism as the opposite of moral monism i.e .. the search for "a single coherent and complete set of principles capable of governing all moral quandaries".

Stone, therefore, would establish different rules for different classes of nonpersons; he would partition morals into several planes which would support the analysis of particular moral problems. Stone is of the opinion that environmental ethicists must step back from their assertions of the intrinsic rights of nature and examine more general notions of what it means to consider something ethically. As far as Stone is concerned. the proper framework must be established before the extension of rights to nonhuman entities can have any real meaning.

Stone's proposal is just that-one theory about how humans might establish the moral basis to support the extension of rights to nonhumans or imposition of duties upon humans in an effort to preserve the environment. Stone concedingly leaves many important questions unanswered and he welcomes alternative proposals which would ultimately lead to the extension of rights , or legal considerateness as he calls it, to such entities as rocks, trees, and dolphins . Other authors cite humans' increasing remoteness from the environment; i.e .. we are not so directly tied to the

land, and point out that "[t]he goal of an environmental ethic should be to restore the understanding of humanity's reliance on the land and to recreate in society an understanding of the limits to growth".l9 We humans are most certainly at the fledgling stages of developing an environmental ethic. The notions mentioned above, however, are not so remote as many in the legal community might think. In Marks v. Whitney, 6 Cal3d 251. 259, 491 P2d 374.

380. 98 Cal Rpt 790, 796 (1971), a boundary dispute case involving tidelands, the court, applying the public trust doctrine, noted, "one of the most important public uses ... is the preservation of those lands in their natural state, so that they may serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect the scenery and climate of the area''.

Additionally, one author has penned an optimistic piece about the actualization of Aldo Leopold's Land Ethic being reflected in federal and state laws .20 Vermont has a land development statute which provides that the state will not grant a permit if habitat protection Is more beneficial to the public than the proposed development. 21 The test applied under the statute measures whether the development "will destroy or significantly imperil necessary wildlife habitat" .22 As a final example, cases Indeed exist in which nonhumans, such as a species, have brought suit. In the case of Palila v. Hawaii Department of Land and Natural Resources, 639 F2d 495, 497-498 (9th Cir 1981). an action was brought under the Endangered Species Act 23 on behalf of the Palila, an endangered bird found only in Hawaii.

In the immediate future, however, an attorney is far more likely to encounter a deep ecologist in court as a defendant accused of spiking a tree than as a plaintiff acting as the legal representative of a mountain or stream.

REFERENCES 1. Many scholars have rejected this justification. See, for example, Mark Sagoff, We Have Met The Enemy And He Is Us or Conflict And Contradiction In Environmental Law, 12 Environmental Law, 283, 297, notes 43-50 ( 1982).

2 . Roderick Frazier Nash, The Rights of Nature: A History of Environmental Ethics University of

Wisconsin Press, 1989). xi. The materials in this article which discuss deep ecology are primarily derived

from Mr. Nash's book.

3. James P. Karp. Aldo Leopold 's Land Ethic: Is An Ecological Conscience Evolving In Land Development Law? 19 Environmental Law

737, 740 (1989).

4. Karp. 19 Environmental Law at 737 (cited In note 3).

5 . Karp. 19 Environmental Law at 764 (cited In note 3).

6. Nash, The Rights of Nature at 11 (cited in note 2).

7. Gaia is the Greek goddess of the earth.

8. Dave Foreman and Bill Haywood, Ecodefense: A Field Guide To Monkeywrenching (Tuscon, 1987)

14.

9. Christopher D. Stone. Should Trees Have Standing? Revisited: How Far Will Law and Morals Reach? A Pluralist Perspective, 59 S

CalL Rev 1. 52 (1985).

10. Christopher D. Stone, Should Trees Have Standing? - Toward Legal Rights For Natural Objects, 45

S CalL Rev 450 (1972).

11. Stone. 45 S CalL Rev at 450 (cited in note 9).

12. Nash, TheRightsofNatureat 16 (cited in note 2) .

13. Stone, 59 S CalL Rev at 153-153 (cited in note 8) .

14. Kenneth W. Swenson, Note : A Stitch in Time: The Continental Shelf, Environmental Ethics and Federalism'', 60S CalL Rev 851.872 ( 1987), citing Tom Regan, Nature and Possibility of an Environmental Ethic, 3 Envtl. Ethics 19 (1981); and

Stone, 59 S Cal L Rev 1 ( 1985).

15. Dan Tarlock, Earth and Other Ethics: The Institutional Issues, 56 Tennessee Law Review 43, 50 ( 1988).

16. Karp. 19 Environmental Ethics at 4 75 (cited in note 2).

17. Tarlock, 56 Tennessee Law Review 43, 76 (cited in note 14).

18. Christopher D. Stone, Response and Rejoinder, 56 Tennessee Law Review 231 , 238 (1988) .

19. Swenson. 60 S Cal L Rev at 875 (cited In note 13).

20. Karp, 19 Environmental Law at 737 (cited In note 3).

21. Vermont Statute Annotated, title 10, ยง6086 (1984 & Supp 1987).

22. Joseph R. Perella, Act 250's "Necessary Wildlife Habitat" Definition: How Much Wildlife Does It Embrace? 12 Vermont Law Review,

533-34 (1987).

23. 16 USC ยง1531 et seq (1974).

Ella Kwlsnek Is a 3rd year day student who graduated from Saint Vincent College. This past summer she had an internship at the Pennsylvania Department of Environmental Resources .

The United States is the world's largest producer. consumer and importer of e nergy. The basic conventional sources of domestic energy include oil. natural gas, coal , and hydroelectric, solar, wind and nuclear power. Although these energy sources seem to be abundant. they deliver less energy than our nation needs as we enter the 1990's and the 21st century.

The most valuable energy alternative for the nation is that of the fossil fuel coal which has an annual energy consumption usage of 72 quads (a quad is 1 x 10 15 BTU). The United States has the world 's largest coal deposits making it this country's most abundant natural resource in terms of energy production. It is estimated that the United States has an estimated 1803 billion short tons of coal resources. The amount of energy this represents is approximately 400 years of energy at today 's consumption rates. Although this resource is abundantly available, the amount of coal that is economically feasible to produce is dramatically less than that.

The utilization of coal as a major fue l resource is further complicated by processing the mineral. The sulfur and ash content of the mined coal must be properly cleaned in order to reduce the sulfur content of the coal so that it may be burned under current government regulations. This will add to the price the energy consumer will have to pay. 1 The history of coal as an energy source da tes bac k hundreds of years.

Howe ve r. its effective utilization through government sponsored research began at the turn of the century. The United States Department oflnterior. Bureau of Mines under the leadership of the McKinley Administration. instituted programs to be tter

mine and to also refine the more than 1200 known types of coal prevalent in the United States. As time progressed, technology increased and with two world wars passed, the nation became more aware of its ever growing energy needs.

This increasing demand for energy resources led to the Synthetic Fuels Act of 1944 which established the Office of Synthetic Fuels in the Bureau of

Mines within the Department of the Interior. The office was responsible for conducting research on the production of fuels from coal , shale, agricultural and forestry products. This office was the forerunner of the Bureau of Mines Energy Research and Development Agency (ERDA), created in 1975, which incorporated all of the Bureau of Mines research and development on coal technology. With the onset of the Carter Administration and the National Energy Plan , the De partment of Energy was created on August 4. 1977. and this n e w cabinet-level department took over t he Energy Research and Development Agency. 2 The United States' policy on energy generally was very lax during past deca des. Energy. in a ll forms. was inexpensive. Fossil fuels in particular were cheap and easily accessible. The economy was good. a nd America was in love with th e big car .

We were one. big. happy family. Then with theonsetof t he Vietnam conOict and the ArabIsraeli six-day war. a fore boding view of the future was seen. By the early 1970's the inevitable had happened. Because of the Unite d States' support of Israel in the Yom-Kippur War, the Arab nations who were members of the oil producing exporting countries (OPEC) implem e nte d an oil embargo against the United States .

Ame rica's e n ergy problems were about to hit home. and drastic measures would have to be taken to turn an energy consuming giant into an energy-efficient nation.

This attempt was first made public with President Richard M. Nixon's announcement of Project Independence on November 7. 1973 . He called on the nation to dedicate itself "in this bicentennial era" to the goal of attaining self-sufficiency in e n e rgy supplies by 1980 . But even Nixon's own policystaffers saw this

goal as unrealistic. Some believed 1985 would be a better timetable. and still others be lieved even this was too soon. President Nixon envisioned this project as a national goal. The means to that goal , Nixon said. would be to utilize the nation 's huge coal reserves. vast untapped sources of natural gas. oil in the continental shelf, Devonian oil shale deposits in the West and the most advanced nuclear technology known to man .J Nixon 's statements were paradoxical by nature. He envisioned the United States as becoming energy independent in a ridiculously short period of time, yet failed to establish any means to that end. Had Nixon forgotten about the environmental issues? By the 1970's, Congress had passed many new laws, and in the process had created the Environmental Protection Agency (EPA). Various states had followed suit and enacted their own De partments of Environmental Resources (DER). It would be difficult for the United States to be energy independent if high sulfur. high ash content coal could not be burned in the steel mills of Pittsburgh or the coal fired electric power generating plants in the industrial northeast and midwest portions of the country. Nixon'sown administration had passed into law the acts disallowing such usages of high pollutant fossil fuels . The administration utilized poor policy planning and failed to look into the long term effect of nitrogen and sulfur oxide emissions into the atmosphere and the long range problems that could develop from them.

These included destruction of the ozone layer (the part of the atmosphere that shields the earth from the sun's harmful ultra-violet rays), the greenhouse effect, and the acid-rain controversy of the 1980's.• Alternative forms of mining were also not feasible. The economic advantages of surface (or strip) mining were gone . Tough new environmental laws restricted the mining process.

The cost of underground (long wall) mining was also drastically increasing since the Mine Safety Administration began an all-out effort to protect the miner. Up until the 1970's, mining both underground and on the surface had few restrictions placed upon it.

Regulations then severely restricted the percentage of sulfur and ash coal that could be burned so as not to emit pollutants into the atmosphere. What did these n ew e nvironmental regulations mean in the face of the energy crisis? More money would now have to be spent to retrieve low sulfur, low ash coal that could be used under new government regulations. It was now apparent that Nixon's vast coal reserves had a higher price tag on

them than most Americans wanted to pay.

Nixon's own advisors expressed confusion over his energy policies based mostly on the problems outlined above and the possible long tenn results. There was no consensus on what "self-sufficiency" actually meant. A planning official at the Atomic Energy Commission (today known as the Nuclear Regulatory Commission), Richard Pastore. warned: "We could become selfsufficient and not like it very much because of high economical and social costs and drastically worsened environmental conditions." William E. Simon, Nixon's former e ne rgy "czar" explained that the United States could become "reasonably selfsufficient" by ending reliance on any insecure foreign sources. such as OPEC. He noted, however, that the United States would not cease importing oil from countries favorable to the

"It seems America

will need Lo rely more on fossil energy, in particular coal, to satisfy the country's future energy needs.''

United States. Roy L. Ash, former Chief of the Office of Management and Budget (OMB). noted that Project Independence " does not mean we are going to produce in this country all the energy we need ." The OMB was concerned about the frugality of a long term government spending program to become self-sufficient. 5 Some officials in the Nixon energy policy-making process believed that selling war planes and capital goods to Saudi Arabia in return for oil would be cheaper and better for the foreign trade deficit than developing expensive domestic supplies. Later. President Gerald R . Ford rephrased ''self-sufficiency" to mean independence to the degree necessary to avoid disruption to our economy. "Realistically," Ford noted , "this does not mean zero imports. " 6 During the Ford Administration, the Ford Foundation energy policy project headed by S . David Freeman, conducted a two-year study. At the end of

the study, the foundation found that the goal of self-sufficiency carried too big an environmental and economic price tag. The group viewed the policy of forsaking all imports as impractical and a simplistic overreaction to the Arab oil embargo. Even during the embargo, the United States imported over five million barrels of oil per day.

The study recommended greater care and selectivity in planning future oil imports. 7 Looking back at the Nixon-Ford Administrations, one may see how Project Independence erred in its policy regarding coal. One must understand that while the United States has almost one-half of the coal reserves in the world the expense of tapping the unused resource is monumental. One coa l company executive called Project Independence "dead, buried and mortified unless someone at the top in Washington does something" to end uncertainties that curb billions of dollars in capital inv~stment essential to ex panding domestic coal use. 8 After the Nixon-Ford years, the Carter Administration took a new outlook on energy. A major step in consolidating the Government's efforts in energy research occurred when the administration dismantled the Energy Research and Deve lopmen t Agency (ERDA) and created the United States Department of Energy (DOE) under the control of James R. Schlesinger. This new cabinet level department along with other Carter Administration moves signalled a new era in energy self-dependence in the United States. 9 A major move of the Carter Administration regarding the lingering energy problems was the establishment of the National Energy Plan on April 18, 197 7 . Carter had decided to act quickly because the United States was still obtaining75% ofitsoil and natural gas from outside sources.

The National Energy Plan consisted of a number of goals to be reached by 1985 to assist the United States in achieving some self-sufficiency in supplying the nation's energy needs.

Similar to Nixon's Project Independence which had set goals for 1980 and then 1985, the plan looked to reduce the annual growth of United States' energy demand to less than 2% , to reduce oil imports to less than 6 million barrels per day . to reduce United States' gasoline consumption by 10% , to insulate 90% of all United States homes and all new buildings. to increase annual coal production to 400 million tons over the 1976 production leve ls, and to have the use of solar energy in over two and onehalf million homes. 10 These actions by the Carter

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Administration showed a renewed emphasis on energy independence.

Although strides had been made in the proper direction, the Carter Administration itself was not around long enough to properly institute its policy. The new emphasis placed on coal was encouraging and it seemed the United States Government's approach to coal as an energy alternative was beginning to take shape.

However, by January of 1981, a new President had taken over the Oval Office and the government established a new philosophy under its new Chief of Staff.

President Ronald Reagan's policies in general reflected his policies on energy as well. President Reagan's conservative "laissez-faire" attitude regarding business along with Reaganomics and the ''trickle down'' theory had severe effects on corporations, including those in the coal industry. Thus, a new and different outlook on the profit potential was aimed at these corporations which heavily invested in energy research, development, and exploration. Yet the administration attempted to continue to tap the United States' vast resources of coal reserves which were becoming more expensive to mine the deeper into the earth the mining operation progressed.

While the Reagan Administration continually reduced the Department of Energy budget, the cost of energy continually increased. The use of coal to make America self-sufficient in energy is more important today with the price of natural gas being deregulated and the uncertainty of the nuclear power industry. It seems America will need to rely more on fossil energy, in particular coal, to satisfy the country's future energy needs.

As the Reagan Administration passed into the history books, the nation turned its eyes to the Bush Administration to see what mission and goals the new President would set for an energy independent America.

The President appears to be off to an optimistic start in appointing Rear Admiral James D. Watkins (USN Ret.) as Secretary of the Department of Energy. The President and the Secretary have since named Robert H. Gentile as Assistant Secretary for Fossil Energy. These presidential appointments appear to be less political and more scientifically oriented than the appointments made by the Reagan Administration. To note this new philosophy, recent interim reports on national energy strategy and energy security to the President show a renewed interest in fossil energy, especially coal. 11 Many factors still hinder the development of a concrete energy

policy regarding coal, such as the lack of capital investment necessary to open new mines and purchase new equipment. and the need to increase the productivity of the miner. The Clean Air Act and government regulations in general are other factors that enter the picture. Also to be considered are the ever increasing costs of transporting coal from source to point of demand.

REFERENCES 1. Neal Berkowitz, An Introduction to Coal Technology (New York: Academic Press, 1979), p. 6.

2. Department of Energy, Pittsburgh Energy Technology Center

(Washington, D.C.: Department of Energy, Public Affairs, Spring 1990). p. 1.

3. S.S. Penner and L. Icerman, Energy: Demands, Resources, Impact, Technology and Policy

(Reading, Massachusetts: AddisonWesley Publishing Co., 1974). p. 15.

4. Thomas D. Duchesneau, Competition in the U.S. Energy Industry

(Cambridge, Massachusetts: Ballinger Publishing Co., 1975). p. 143.

5. Federal Energy Administration, Nation Energy Outlook (Washington, D.C.: U.S. Government Printing Office, Feb. 1976). p. 171.

6. Id. 7. Id. at 185.

8. Id.at198-199.

9. Gregory A. Daneke and George K. Lagassa eds., Energy Policy and Public Administration (Lexington, Massachusetts: D.C. Health and Company, 1980), p. 18.

10. Id at 10.

11. DepartmentofEnergy,DOEThis Month (Washington, D.C.: Department of Energy, Public Affairs, Vol. 13, No.6, June 1990), p. 1.

BIBLIOGRAPHY Berkowitz, Neal. An Introduction to Coal Technology. Academic Press, 1979.

Daneke, Gregory A. and Lagassa, George K., eds. Energy Policy and Public Administration. Lexington, Massachusetts: D.C. Heath and Company, 1980.

DOE This Month. Department of Energy, Washington, D.C. June 1990.

Duchesneau, Thomas D. Competition in the U.S. Energy Industry. Cambridge, Massachusetts: Ballinger Publishing Co., 1975.

Energy Security, A Report to the President of the United States.

Department of Energy, Washington, D.C.: March 1987.

Griffin, James M. and Steele, Henry B., eds. Energy Economics and Policy. New York: Academic Press, 1980.

Interim Report, Nation Energy Strategy: A Compilation of Public Comments. Department of Energy,

Washington, D.C.: April 1990.

Kendall, Henry W. and Nadis, Steven J., eds. Energy Strategies Toward A Solar Future. Cambridge, Massachusetts: Ballinger Publishing Co., 1980.

National Energy Outlook. Federal Energy Administration, Washington, D.C., February 1976.

Penner, S.S. and Icerman. L. Energy: Demands Resources, Impact, Technology and Policy. Reading,

Massachusetts: Addison-Wesley Publishing Co., 1974.

Pittsburgh Energy Technology Center. Department of Energy,

Washington, D.C.: Spring 1990.

Schurr, Sam H.; Darmstadter, Joel; Perry, Harry; Ramsay, William; and Russell, Milton. Energy in America's Future, The Choices Before Us. Baltimore, Maryland:

Johns Hopkins University Press, 1980.

Stobaugh, Robert and Yergin, Daniel, eds. Energy Future, Report of the Energy Project at the Harvard Business School. New York: Vintage

Books, 1983.

Henry Lee Moore earned his B.S. degree in Chemistry from the University of Pittsburgh College of Arts and Sciences and his M.S. degree in Mining and Energy Resources from the University of Pittsburgh Graduate School of Engineering Department of Chemical and Petroleum Engineering. He is employed by Gilbert/Commonwealth Consulting Engineers at the United States Department of Energy's Pittsburgh Energy Technology Center in Pittsburgh. There, he is a member of the Analytical Chemistry Research Group where he is the Laboratory Coordinator. In addition to his professional position, Moore is a physics lecturer at the Community College of Allegheny County, South Campus and a chemistry lecturer at Westmoreland County Community College. He is currently a second year evening law student.

THE ROLE OF LOVE CANAL It has been over a decade since a small neighborhood in Niagara Falls, New York captured the attention of the Nation . In 1978, Governor Hugh L. Carey and President Jimmy Carter declared a state of emergency at Love Canal, and arranged to evacuate helpless families who had watched industrial sludge invade their back yards. 1 Love Canal was a suburb built on top of 4 3 .6 million pounds of process slurries, waste solvents, and pesticide residues that Hooker Chemical and Plastics Corporation dumped in an abandoned canal from 1942 to 1953.

The waste mate rial was transported from Hooker's nearby Niagara Falls plant in m e tal drums and buried in Love Canal. T he metal drums eventually deteriorated, and melting snow and rain washed the wastes up and outward. The wastes settled on the surface of the canal causing a toxic odor that enveloped the community.

The situation prompted a numbe r of studies to de termine the extent of the health proble ms in the area . The most dramatic study was conducted in 1980 by a private medical contractor for the Environme ntal Protection Agency and the Department of Justice which, together, developed a legal case against the Hooke r Corporation.

It was lea rne d from this study that eight of the thirty-six reside nts participating in the study tested pos itive for a rare aberration called "supe rnumery acentric fragments. " These fragments are essentially extra pieces of genetic m a terial whic h may forewarn of cancer and birth defects. Norm a lly, s u ch fragmen ts s hould appear in only one out of hundred people.2 A follow-up study was conducted by the Department of Health (DOH) in 1984.

The Department reported that 12. 1 'Yo of the infants born whe re contaminated water m ay ha ve draine d from the canal experien ced low birth we ights when compared with 6 .9 % in other parts of ups ta te New York.

A s tudy the followin g year by Beverly Paigen. a biologis t at Roswell Park Memoria l Ins titute in Buffalo, reported tha t 17.9% of those who had lived in drainage areas had childre n born at be low-normal birth we ig hts, and tha t 12.1 'Yo of Love Canal c hildre n

suffered birth defects. Both of these statistics a re twice the rate of those c hildre n observed in a control group.

The same year, Paigen reported in anothe r study that Love Canal children expe rien ced 2.45 times as many s e iz ures. 2 .25 times as m a ny skin rashes, and 2 .95 times as much hyperactivity as children from a control group .3 Th e situation at Love Canal prompted a numbe r of congressional s tudies to dete rmine the kind of legislation needed to control the s ite . The s tudi es led to the discove ry of astounding fac ts. It was discovere d that of the 77 .1 billion pounds of hazardous was tes generated annually in the United States. only 10% had been disposed of in a n e nvironmentally sound m a nner .•

During the tragedy at Love Canal. the only types of legisla tive regulations that e xiste d to deal with h azardous wastes were the Resource Conservation and Recovery Act (RCRA) e nacted In 1976, a nd Section 3 11 of the Clean Wa te r Act e nac ted in 1972 .

The RCRA failed as a comprehensive piece of legislation , only regulating active waste sites, not abandoned sites such as Love Canal. 5 S ection 3 11 of the Clean Water Ac t was adopted in 1972 to expa nd the coverage of the Act from oil spill cleanup to include spills of h azardous waste materia ls .6 Ne ve rtheless. this Ac t was of no assistance to the residents of Love Canal because the toxic water a t the Canal originated from buried m e tal drums a nd was cons idere d ground water. whic h was not

I

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provided for under the Act. 7 Since neither the RCRA nor the Clean Water Act was applicable to the Love Canal site, the residents were left to sit and wait for a remedy while their lives shattered.

The combined efforts of Love Canal residents and the media curtailed the walt for relief. During the state of emergency declared in 1978, 238 households closest to the dump were evacuated . Following the studies of Dante J. Picciano, conducted on behalf of the EPA and the DOH. the remaining residents of Love Canal urged officials to evacuate them as well. In 1980, the EPA was forced to relocate 792 households on the periphery of the original danger zone after a group of activists, led by former Love Canal resident and citizen group leader Lois Gibbs, protested what they saw as government inaction by holding two EPA officials hostage at the activists' headquarters until some relief was provided.

The disaster at Love Canal raised the level of national consciousness on the topic of environmental concern through the efforts of the Love Canal residents. Love Canal still has the most visible hazardous waste site citizen participation program . The Love Canal program has served as an important laboratory for public involvement.

·'Love Canal became so powerful in the national consciousness, Congress was able to pass t he Superfund Bill. ''

Today a Love Canal Public Information Office stands in a house purchased during the Love Canal buyout by state and federal governments. The Office performs two very different and important functions, according to an office spokeswoman. The office channels information between the New York State Department of Environmental Conservation 's technical staff and Love Canal reside nts. and assists visitors from every state and countries as far away as Egypt, Japan , and the Netherlands in understanding the events and significance of Love Canal. 8 Gibbs used the money provided by the state and federal governments to relocate to Virginia, and has since founded a national clearinghouse for citizen protests involving hazardous wastes in Arling-

ton . Virginia. "Love Canal became so powerful in the national consciousness, Congress was able to pass the Superfund bill (CERCLA) even after Carter was defeated, and that's an extraordinary action to do in a 'lame duck' administration, .. Gibbs said. 9 On December 11, 1980, CERCLA, the Comprehensive Environmental Response Compensation and Liability Act of 1980 was enacted . This Act authorizes the EPA to arrange for or compel the cleanup of a hazardous site . and to seek reimbursement for response costs after the cleanup of the site. The Act is a comprehensive administrative, taxation, and liability statute in addition to being an environmental statute .

Under CERCLA, cleanups fall into two categories: removal actions under section 104 and remedial actions under section 106 of the Act. Section 104 authorizes the EPA to respond and remove the life threatening materials, and then sue the potentially responsible parties for reimbursement.10 Removal actions, or site stabilization actions. as they are sometimes called, include a wide range of response actions whi ch typically can be carried out relatively quickly and with rela tively few advance detailed studies. Examples include removal of stored wastes ; installation of fencing around a hazardous site; provisions of alternative drinking water supplies; and evacuation of threatened persons. 11 Removal actions are limited to 2 million dollars and 12 months unless certain criteria are satisfied. The criteria, established in section 104 (c)(1) include the immediacy of risk, the availability of response from other sources, and the consistency of the removal action with any remedial action which will likely be undertaken.

Section 106 of the Act responds to remedial actions , designed to effect a long-term permanent remedy to a hazardous substance release problem .

Remedial actions cover the confinement of hazardous substances to a controlled area; elimination or abatement of a release; and collection and treatment of contaminations. 12 These actions are funded jointly by state and federal governments. For remedial actions to be taken. hazardous sites must be found on the National Priorities Lists (NPL).

The NPL re presents the establishment of cleanup priorities. developed by the EPA , among the thousands of known or suspected hazardous substance disposal sites in the Nation.

CERCLA section 105, 42 U.S.C . §9605, requires that sites be ranked according to the risk presented. To date, the EPA has identified over 29.000 potentially hazardous waste

sites. Ironically one such site added lo the NPL in 1989 was the Forest Glen mobile home park in Niagara Falls, New York. The park is home to a small number of former Love Canal residents, who were relocated by the government some ten years earlier. In fact, there are already five waste sites on the NPL from the Niagara Falls area, which has long been a home to chemical facilities. 13 Once an NPL site has been chosen to under_go remedial action. field investigations are carried out to deterc mine the extent of the hazardous substance release and contamination.

This investigation includes selecting a remedial alternative. A remedial design is then developed and implemented. Liability is determined by section 107. (42 U.S .C. §9607). Liability is incurred when a release or

' 'Today, Love Canal still plays an important role in the development of Environmental Law. ''

threatened release of a hazardous substance into the environment causes the plan tiff to incur expenses from the cleanup of the abandoned hazardous waste site. Section 107 was relied upon by New York State and the United States Governments in their suit against Hooker to recover costs incurred in preventing further migration of waste, to relocate families, and for other actions taken in response to the waste . In a decision ordered by John T. Curtin, a federal judge in Buffalo, Hooker (which has changed its name to Occidental Chemical. a subsidiary of Occidental Petroleum Corporation) was found liable for handling wastes in a way that would eventually result in chemical seepage. 14 CERCLA was credited wilh lhe force that led to a milestone in the area of Environmental Law, the prosecution of Hooker for the tragedy at Love Canal. Today, Love Canal still plays an important role in the development of Environmental Law. In May of last year, John Borowski. the ownerofBorjohn Optical Technology . Inc .. in Burlington, Massachusetts. became the first person convicted on charges of knowing endangerment under the Federal Clean Water Act. According to some former employees, Borowski never seemed to worry much about how to dispose of the toxic wastes his plant

produced and therefore adopted a practice of disposing nitric acid and nickel wastes by pouring them down a sink. Over the past ten years, thousands of gallons of wastes went down Mr. Borowski's sink finding their way into the Boston Harbor. 15 Borowski never realized how toxic Borjohn's chemicals were . He once put his daughter's old bicycle in a vat of the Company's acid overnight to clean it up. The next day, the bike was found partly dissolved and fell apart.

Borowski is representative of many other executives who are now under the EPA 's strict scrutiny. Before Love Canal, Mr. Borowski may hav e escaped with just a simple fine, but today, he and other executives accused of environmental crimes may find themselves serving prison sentences. Uncle Sam is no longer playing Mr. Nice Guy with environmental cheaters. 16 Though environmental crime convictions are on the rise and more sites are finding their way to the NPL list. the protest and e motional uproar experie nced at Love Canal have caused state and federal officials to carefully consider declaring a similar state of emergency. A spokesman for New York State's Department of Health stated that his Department has grown wary about placing themselves in another situation such as Love Canal. He explains that DOH offices around the country will find themselves caught be tween residents who accuse them of understating the health effects and scientists who believe the e ffects a re overstated. 17 What the chemical at Love Canal did or did not do is of consequ ence not only for those who lived there, but also for the countless others nationwide who live near any of the potentially hazardous waste sites identified by the EPA. If Love Canal one day proves to be less of a threat than originally thought, other problems might be taken less serious ly in the future, and support for CERCLA could suffer as a result.

Some suggest tha t scie nce is not up to the task of proving toxic cause and effect. The task becomes difficult because residents move in and out, families s uffer multiple e ffects of chemicals when they interact with one another, and because the survey popula tions are quite limited. Attempts to prove a statistica lly significant effect may be doomed to failure. 18 Nevertheless, the residents of Love Canal keep fighting to prove Lo the rest of the world that the ir health a ilments are real. and a direct result of the toxic wastes found in their community. The residents are also deeply suspicious of governm ent reassurances , and worry about ailments that may develop

years from now. As former Love Canal resident Patricia Braun says, "There is not a night you put your head on a pillow and don't wonder. 'Who's next?

Will it be me? My husband? My child?'

I keep seeing repeated cases of cancer among those who lived there. This is the type of fear you' lllive with the rest of your life." 19 REFERENCES l. Brown, " A Toxic Ghost Town ," Atlantic, July 1989 at 23.

2 . Id. at 24.

3. Id. 4. H.R. Rep. No. 1016, 96th Cong., 2dSess, 4 reprinted in 1980 U.S . Code Cong. and Admin News.

5. Goldfarb, " The Hazards of Our Hazardous Waste Policy," 19 National Resources Journal249 ( 1979) at 257 .

6 . 42 u.s.c. 搂搂6921-6934 (1982 and Supp. II 1984).

7 . United States v. Ri vers id e Bayview Homes, Inc., 4 7 4 U.S. 121 (1985).

8 . Kadlecek, "Love Canal-10 years Later.路路 The Conservationist, Nov .Dec. 1988 at 42-43.

9 . 16 Current Developments , Environmental Reporter (BNA) 7 (May 3, 1986) Statement of Douglas M. Costle, former EPA Administrator.

10. "Superfund Sara: Are There Any De fe nses Left?" 12 Harvard Environmental Law Review 385 ( 1988) at 391.

11. Mudgan, "Hazardous Waste and Toxic Torts," U.S. EPA Region II, Law Journal Seminars Press: 5th Annual, Sept. 29, 1987 at 8.

12. Id. 13 . "Superfund: Niagara Mobile Home Park to go on NPL". 20 Curre nt Developm ents.

Environmental Reporter 9999,(August 11. 1989).

14. United States of America : the State of New York, and UDC-Love Canal, Inc., v . Hooker Chemicals and Plastics Corporation. 722 F. Supp.

960 (1989).

15. Stipp, "Environmental Crime Can Land Executives In Prison These Days" , The WalL Street Journal, September 10, 1990.

16. ld.

17. Atlantic, supra. at 26.

18. Id .

19. Id . at 27.

Anna M. Backus is a third-year day student and a Staff Editor. Anna h a ils from Buffalo N.Y., app roximately 50 miles from Niagara Falls .

It is no secret that divorce and its consequences influence many aspects of daily life in our society. The wellestablished ratio of two divorces to every marriage has doubtless remaine d intact, if not increased . lt is difficult to speak with anyone about their family without some aspect of the conversation alluding to a stepparent. single parent or second spouse. This serves as a reflection of the complexity of the family structure. and in particular. evidences a growing breed of parents - stepparents. As more and more states impose stringent child support enforcement policies, courts are being compelled to seek child support from those other than the natural pare nts. It appears, however, that the courts and lawmakers have not come far enough to protect the stepchild.

A stepparent is generally defined as the parent of a child not his or her natural offspring: the spouse of the natural parent. Unless an adoption occurs, there is no real legal relationship created between the stepparent and stepchild . The only link is through the natural parent to whom they are both relate d. Despite this, stepparents and stepchildren often develop very loving and emotional relationships, and legal rights that adequately protect all parties should be afforded. The trend now appears to be favoring the children in stepfamilies. although the transition is overdue and rather slow.

At common law, stepparents have no obligation to support the ir stepchildren. The rationale underlying this basic policy is that no one should be held financ ially responsible for another's child. In addition, courts have historically looked at the stepfamily relationship as temporary ; hence, there was no real need for the

establishment of a long-term stepparent support obligation policy. This reasoning is still vital in many states. as numerous statutes impose no obligation upon stepparents.

An exception to this general rule , and one which still exists in Pennsylvania, is the in loco parentis doctrine - ("in place of a parent"). A stepparent stands in loco parentis when he or she voluntarily assumes the role of parent and exercises custodial obligations. ' Because this is a voluntary status. the stepparent may terminate it at will. Most courts infer the termination upon divorce , although a stepparent may desire to support a stepchild after divorce regardless of in loco parentis. The criticism with this doctrine has been and remains that during the marriage. there is no real need for such a doctrine as the stepchild is presumably being cared for and supported by the stepparent - either directly or indire c tly through the natural custodial parent.

The need for protection arises upon divorce or separation, when the child's financial n eeds become more profound. In loco parentis terminates automatically in most cases. leaving the child with no means of support.

This can be quite burdensome for a child or children who have developed both emotional and financial dependency on the stepparent. The courts have reasoned that to impose support obligations upon stepparents might discourage marriage to custodial natural parents, and promote living arrangements outside of the marriage context. This apprehension, however. appears shallow and unless this consideration becomes the determinative factor to be weighed by a person considering marriage. this reasoning should not form the basis of a doctrine which effectively protects stepparents but abandons the child's interests and needs. Furthermore. a more defined support obligation m ay stimulate discussion between two people considering marriage and could mitigate the often harsh financial surprises which face a new s tepfam ily.

The tn loco parentis doctrine is fol lowed in Pennsylvania. but to attain that status. the stepparent must know a nd inte nd to be bound by its param eters.2 Like the common law , this status does not create postseparation obligations. but m erely stops the stepparent from denying his or her obligation during the marriage. to creditors or third parties seeking payment for the child's necessities. It is clear that the in loco parentis doctrine is in n eed of modification or substitution, in favor of a policy that would more a d equately protect the stepchild's interests .

According to Joanne Ross Wilder of the Pittsburgh law firm of Wilder and Mahood. "The trend is to get away from the rigid 'black letter' law in this area. and focus more on the individual situation as it is presented. Socie ty's interest is two-pronged: first. to insure that someone supports the child so that the taxpayers don't bear the burden, and secondly. to insure adequate support for the child's own sake ...

New Jersey has taken a step in the right direction. with the formulation of the equitable estoppel doctrine. In Miller v. Miller. 97 N.J. 154,478 A.2d 351 (1984). the court imposed a postseparation support obligation upon a stepfather who attempted to escape via in loco parentis. The court found that he had intentionally represented to the children and others his willingness to support them, and held them out as his own. In addition, the court found that the stepfather had " stre nuously opposed" the natural father's attempts to support the children. As a result, he was estopped to deny his support obligations.3 The Miller court set forth guidelines for imposing both temporary (pendente lite) and permanent support obligations upon stepparents. An award of support pendente lite would issue when the moving party demonstrates that he or she is not receiving support for the children by the noncustodial natural parent and establishes by affidavit that the stepparent actively interfered with the natural parent's efforts to provide support. 4 This is a relatively simple test. but it adequately protects the child's interests during the pendency of the litigation.

Attaining permanent support. however, is much more difficult. The moving party has the burden of proving all the elements of equitable estoppel an intentional representation of support to the stepchildren or the natural parent. and their detrimental reliance of a financial nature. 5 The Miller court found that emotional reliance was insufficient to create the obligation. In addition. the court cautioned against the widespread use of estoppel. so as not to discourage stepparents from supporting stepchildren during m arriage .6 Justke Handler. in his partial dissent. argued that such caution is unwarranted. and that the equitable estoppel doctrine should be broadly applied so as to protect the stepchild's interests more adequately. 7 (Handler, J .. concurring in part and dissenting in part). This logic seems more suited to modern stepfamily situations. and yet the equitable estoppel doctrine has not been universally adopted, nor has it been broadened.

Pennsylvania does not appear to have adopted the equitable estoppe l

theory. In DeNomme v. DeNomme, 375 Pa. Superior Ct. 203.544 A.2d 63 (1988). the court considered the Miller analysis. but refused to apply equitable estoppel because the custodial parent (wife) did not pursue all remedies for support from the other natural parent before seeking support from the stepfather. In this case, the natural father lived in another state, and subsequent to the court's denial of support from the stepparent. the foreign state barred t.he mother's support action on a laches theory. As a result. the child lost all avenues for support.

This reflects the need for broader application of equitable estoppel. The stringent test used for awarding permanent support should be relaxed so as to protect the reliance of the child. instead of providing an escape for the stepparent.

According to Judge Cynthia Baldwin of the Allegheny County Court of Common Pleas. Family Division, "The doctrine of in loco paren tis is well established in Pennsylvania and Pennsylvania has adopted a fairly conservative attitude in changing or expanding such well ingrained doctrines. DeNomme is an example. In DeNomme. the Court seems to indicate that a former stepparent would be financially responsible for a child whom he loves and cares for if he were solely or primarily instrumental in foreclosing the natural father's obligations to the child."

In this day. where stepfamilies are more the norm rather than the exception. courts and lawmakers would serve society better by formulating a new or modified theory for the imposition of stepchild support obligations.

Instead of a blind application of a stringent test, a more flexible, individualized test should be implemented, considering the complexities of the stepfamily relationship and the stepchild's needs for adequate financial support. The in loco parentis doctrine is a common law dinosaur which should be forced into extinction. The equitable estoppel doctrine should adapt to its environment. open its eyes to the Nineties, and provide security to the obvious beneficiary of child support laws - the c hild.

REFERENCES l. Spells v. Spells. 250 Pa. Super.

168, 378 A.2d 879 (1977) .

2. D'Auria v. Liposky. Pa. Super.

271, 177 A2d 133 (1962).

3. Miller v. Mille r , 4 78 A.2d at 354.

4. Id. at 358.

6. ld. at 358.

5. I d . at 358.

7 . I d . at 360.

Daniel T. Reimer is a second-year evening student at the Duquesne University School of Law. and is a paralegal a t the law firm of Ecke rt.

Seamans. Cherin and Mellott.

Some ''Light'' Reading (a little corn) And God made two great Lights. great for third use To Man. the greater to have rule by Day . ..

John Milton, Paradise Lost, Book VII. 346-7, (1667) The Sun: Entire cultures worship it. farmers depend on it. beachbums work when it's not out. As gasoline prices rise, you might see more pedestrians, if it's not raining. Considering the rapid atmospheric (ozone) disintegration. it is apparent that we cannot waste the Sun's value as an alternative source of energy. If the fossil fuel gluttony continues, and the destruction of the ozone continues. there's a chance that the Sun's harmful rays will begin to pose a very real danger. So. using the Sun as an alternative energy source is beneficial times two: we use it now. and we save it for later. The problem is, the legal system has not usually protected an individual's right to the Sun as a source of energy.

For example: your neighbor plants a tree on his property close to the line that divides his land from your land.

It's a nice tree, and you路 re happy to see it nourish, which it does. until some of its limbs overhang your property.

That's okay while you continue to like your neighbor and his tree. When you have a disagreement with your neighbor, and you will , keep it civilized; make it an oral argument only. and you can still pull out your hatchet and do a George Washington on some of his limbs: his trees' limbs. After all , parts of the tree overhang your property: that is a trespass. In the a bsence of special circumstances (don 't cut up a Giant Sequoia. or a 600 year old Oak). there is no problem if you simply trim the parts of a tree that ove rhang your property. The real problem occurs when your ne ighbor's tree is entirely on his own prope rty. but that tree causes you great harm .

Adam Lyksluciver: 路'That's hard to imagine; how could that hurt me?"

Joan O'Zevreeting : 路'Do you h ave a garden?"

ADAM: "You know I do."

JOAN : "Had it long?"

ADAM : "Seems like forever."

JOAN: "What do you grow? "

ADAM : (Arms outspread) "All that you see: tomatoes. cucum bers. peppers ... " me if I'm JOA : "Correct wrong ... " ADAM: " .. gre7.n beans, a little corn .. .

JOAN: ADAM : JOA : ADAM : JOAN : ADAM: JOAN :

ADAM : JOAN : ADAM: JOAN :

ADAM :

JOA

ADAM :

" ... but don ' t these things need a great deal of sun?"

"I have a vineyard, an apple tree."

"I said. don 't they need the Sun?!"

"What? - Oh yes, they need the Sun, a good bit of sun ."

"So his tree would be blocking your Sun." "It would be if he had a tree, and if it were my Sun ."

"You've had your garden for as long as you can remember, and maybe there should be something you can do about his tree."

"He doesn 't have a tree!"

"Ok, let's suppose you and your neighbor . . " "Who is my friend , dare I say my brother." " . .. get into a fight , and he's extremely upset. and he decides he 's going to ru in your garden by planting his own apple tree which will grow to be fifty feet high and just as wide. with roots just as big, and it will absolutely, positively destroy your garden . if not your life."

"It would take a tree a hundred y ears to get that big. and w e might all be dea d , though I know not what this thing called death be. by that time. " "Ok. let's suppose you and your neighbor get into a fight, and h e 's e xtremely upset, and h e decides he 's going to ruin your garden by building a la r ge, high. solid wall just on his side of the bounda ry line, a nd that wall will definitely bloc k the Sun." "That would hurt, especially since my wife , Eve. strives to attain the savage tan . What

is Man's law on that? "

•

An owner has the privilege of building upon his own land a structure which obstructs the light. air and view of an adjoining landowner, even though such structure serves no useful purpose and is er ec ted solely to annoy the adjoining owner and interjere with his use and enjoyment of his land. 1

ADAM : "He can do that to me? We should be able to do something about that damned wall. I've had my garden for as long as I can remember.

Have you ever heard of the doctrine of Ancient Lights?"

ANCIENT LIGHTS: Lights or win dows in a house, which have been in their present state. without molestation or interuption.jor twenty years, and upwards . To these the owner of the house has a right by prescription or occupancy, so that they cannot be obstructed or closed by the owner of the adjoining land which they may overlook . .. 2

If a landowner could demonstrate the existence of lights (windows) overlooking his neighbor 's property from 'a time whereof the memory of man runneth not to the contrary.· he acquired a negative prescriptive easement preventing the erection of any structure on the adjoining property that materially diminished the amount of light available to his windows. 3

ADAM: JOAN :

"Can we say that?"

"Well. it's not exactly on point; your garden isn't a window in your house.

Besides. Anc ient Lights has been rejected 4 for reasons dating bac k to the days when it made sense not to apply Ancient Lights."

In Parker v. Foote, 19 Wend . 309,

318 (N. Y.S. 1838), the view was that the doctrine of Ancient Lights would halt progess and greatly hamper a developing country. In 1959 a Florida court stated unequivoc ally ' that Ancient Lights had been unanimously repudiated in this country. 5

ADAM : "Well. limes have c hanged ; and don't you think other matters now take precedence over 'progress and development'; I would suspect 'progress and developm e nt' meant the erection of structures in society."

JOAN : "Iknowwhatyou'resaying.

Shouldn't an easement to light and air be implied because of necessity?"

ADAM: "Huh?" JOAN : "Well, that may be true. but courts have traditionally been very diffic ult to convince in that respect."

[E}ven if an easement of light and air would be implied in circumstances which reveal an absolute necessity, . .. while a small amount of light and air was admitted . .. it was insufficientfor the reasonable comfort, enjoyment and health of the plaintiff. This would constitute but a partial obstruction of light and air.

But it was testified that a skylight can be [installed} . .. which would supply an ample amount of light and air. As it clearly appears that there exists no absolute necessity. no implied easement of light and air can be decreed. 6

JOAN :

ADAM : JOA :

ADAM : JOAN : ADAM : JOA :

"You see, you won 't have much luck arguing an implied easement exists through necessity; you ' re not going to starve if you can't grow your green beans. A court might even tell you to put your garden elsewhere.' ' " Damn it; what can I do?"

"You can't acquire an easement to light, air and view by prescription,7 but 'a n easement to light and air may be acquired. as with any other easement. by express grant.' 8 Do you have an express easement? " "I don 't think so."

"Do you want to know more about one?''

"If I must."

"In drafting a solar easement, one must be aware of certain qualiti e s in the properties: your own and the property affected by the easement. With knowledge of the longitude. latitude, elevation. and geographical slope in conjunction with astrological constants, blal1, blah, blah, blah ... "

Gregory Franta, architect. nego-

tiated a solar easement in order to satisfy a financing institution's requirements during the construction of his own solar home. He proceeded to write an article on the subject which included a description of the appropriate geographical calculations and an adequate model of a simple easementjor solar access rights .9

JOA :

" The point is , it can be done ."

ADAM: (Quietly, under his breath) "What a pain." (Loudly , an outburst) "I hate the nuisance!"

JOAN: "What? You want to argue Privale Nuisance?"

ADAM : "Yes; I want to argue Private Nuisance more than anything else in the whole world! And what's more. I want injunclive reliefl" JOAN : "What? Oh. well-yes; in this case, you would make a request for injunctive relief.

But remember. courls have not responded favorably to men in your silualion . In one case ... " In Novak v. Lopata, 112 P.L.J. 448 ( 1964) the defendants built a shield on top of a fence erected on their own property. The shield was only fourteen inches from the plaintiffs · porch, but the court held that the act did not constitute such an intrusion upon the plaintiffs ' right to light and air as to merit injunctive relief.

JOAN :

"And other jurisdictions have reached similar holdings; why, I remember a case where ... " In Paul v. Cantini, 275 N. Y.S .2d

299 ( 1966), plaint([[s. contending that a neighbor's fence was erected in spite to obstruct their light. air. and view. asked for a permanent injunction against the extension of that wall andfor removal of the wall.

The Courtfound that Ancient Lights had been repudiated in New York except where providedfor by statute.

Additionally: 1) thefence was erected in good faith to protect the defendant's interestsfrom incursions of a large dog, and annoyances caused by customers of the plaintiffs beauty parlor: and 2) there was sufficient space between the wall and the plaintiffs property to allow for light and air.

JOA :

"And the Paul court suggested that each property owner is required to protect his own interests. Who can forget when they said.

It will not do for a man to build to the extreme end of his lot, and then complain because his rear neighbor. in exercising the same privilege, has cutoff the light, air, or prospect heformerly enjoyed. He should not rely upon the generosity of his neighbor. and must depend upon himself, by reserving space enough on his own landfor all his requirements.- light, air, and vision included. 10

JOAN :

"Actually. some legislative support would be nice. "

Paul cites section 803 of 'Real Property Actions and Proceedings Law' providing that 'afence which shall exceed ten feet in height shall be considered a private nuisance.' Unfortunately, the fence in that case was only sixfeet high. 11 ADAM

' 'But that seems like good n ews."

JOAN : "It is good, except the case is a little old, the source it cites is even older and rather obscure, and structures under 10 fee t high certainly do damage. Would a six foot wall harm you?"

ADAM: " I see your point. I guess I might as well forget about my garden."

JOAN : "Don't give up. I think ye have little faith."

ADAM: "You 're not the first."

JOAN : "Why, in Sher v, Leiderman. even though the court held that the bloc kage of the Sun's rays from the planting of trees did not constitute a private nuisance. refere nce was made to. " The Sher court acknowledged the California Solar Shade Control Act. which carved out an excep tion to nuisance law. stating that " a property owner can not plant a tree, or allow one to grow, which will shade more than 1 0% of a n e ighbor's solar co llector between the h o urs of 10 a .m . and 2 p .m. " 12 Unfortunately, the plaintiffs windows were not in compliance with the legisla ti ve d efinition of solar co llectors anyway.

JOAN :

"And he re 's the greatest

case of them all, out of Wisconsin, Prah v. Maretti. It touches on everything we've already discussed. and. " In Prah v. Maretti, 321 N . W.2d 182 ( 1 982) the owner of a solar heated residence sued to enjoin a neighbor from building a structure that would interfere with the plaintiffs access to sunlight. The circuit court granted summary judgment for the defendant; however, the Supreme Court of Wisconsin overruled the circuit court holding that the plaintiff had stated a claim of common law private nuisance upon which relief could be granted.

Prah's interpretation of an actionable private nuisance was based on an adoption of the analysis set forth in the Restatemen t (Second) of Torts. A landowner's "interest" was interpreted in its broad sense to include (a] present use value of the land unimpaired by c hanges in its physical condition .... (It! also comprehends the pleasure. comfort and enjoyment that a person normally derives from the occupancy of land. Freedom from discomfort and annoyance while using land is often as importa nt to a pe rson as freedom from physical interruption with his use or freedom from detrimental change in the physical condition of the land itself. 13 In arriving at that conclusion, Prah cited jurisdictions that protect landowners whose light is obstructed by the erection of spite fences under the common law private nuisance doctrine. Of course, the Wisconsin Supreme Court was not anxious to rule in that manner until the state legislature enacted a law actually defining a spite fense as a private nuisance: that enactment came about in 1903. and spite fences have been considered an actionable private nuisance in Wisconsin ever s ince . 14 Most convinc ing ly , Prah reveals the evolution which has caused to erode the policy considerations in d enying protection for a landowner's access to sunlight: 1) Society has increasingly regulated the use of land by the landowner for the general w elfare.

2) [Ajccess to sunlight has taken on a n e w significance in r ecent y ears . . . as an energy source [and/ is of significance both to the landowner who invests in solar collectors and to a society which has an interest in dev e loping alternative sources of en ergy.

3) {Tjhe policy favoring unhindered private d evelopmen t in an expanding economy is no

longer in harmony with the realities of our society . . . The need for easy and rapid development is not as great today as it once was, while our perception of the value of sunlight as a source of energy has increased significantly.l 5

JOAN : ADAM:

"So, do you believe?"

"I better believe, or else ... ", I had a dream. which was not all a dream .

The bright sun was extinguished. and the stars Did wander darkling in the eternal space.

Rayless. and pathless, and the icy Earth Swung blind and blac kening in the moonless air; Morn came and went- and came, and brought no day.

And men forg ot their passions in the dread Of this their desolation; and all hearts Were chilled into a selfish prayer for light... .

Lord Byron, " Darkness," (1816) REFERENCES 1. Marioriello v. Arlotta. 72 A.2d 374, 364 Pa. 557 (1950).

2 . Black's Law Dictionary 109 (3rd ed. 1983).

3. Pfeiffer, Ancient Lights: Legal Protection of Access to Solar Energy,

68 ABA Journal288-91 (1982).

4. Court in Rennyson 's Appeal , 94 Pa. 147, 39 Am. Rep. 777, (1880); Mariore llo, 73 A.2d 374; Snyder v.

Plankenhorn, 159 A.2d 209, 398 Pa. 504 (1960).

5 . Pfeiffer, 68 ABA Journa l 288-91 (1982) .

6. Mariorie llo, 73 A.2d at 376.

7. Adasiak v. Cyback. 31 D&C 3d 1, 5 (1982) citing Mariore llo, 73 A.2d at 376.

8 . Marioriello, 73 A.2d at 376.

9. See Frant. Gregory. Drafting a Simple Solar Easement, 2 Solar Law Reporter 341-346 ( 1980).

10. Paul V. Cantini, 275 N.Y.S . 2d 299 , 30 1 (1966). ci ting Levy v.

Brothers, 4 Misc. 48, 23 N.Y.S. 825.

11. Paul, 275 N.Y.S. 2d. at 301.

12. Sher v. Leiderman, 226 Cal Rptr.

698, 703 (Cal. App 6 Dist. 1986) 13. Prah v. Maretti, 321 N.W. 2d 182.

187 (1982) citing Restatement (Second) of Torts, ยง821D, Comment b. p.

101 ( 1977).

14. Prah, 321 N.W. 2d at 188.

15. ld at 189.

Carmen A. Martucci is a third-year day student and a Front-Line Editor.

Carmen earned his M.A. in English from Duquesne University .

•

CRUZAN GIVES A ''RIGHT'' TO DIE WITH STATE REGULATION Nancy Cruzatl like approxi mately lO,OOOothers in Lhiscountry. lived in a "persistent vegetative" state. She maintained her heartbeat. pulmonary ventilation. anddigeslion but was oblivious to her environmenl.

With the possible exception of pain, she was void of any cognitive ability.

In the past, a person in such a stale would likely have yielded to the natural forces of death. However, present high-technology has the ability to divert these natural forces. This ability to sustain life causes the ethical and legal dilemma of when lifesustaining treatment can be terminated by an incompetent patient.

Cruzan v. Director, Missouri Department of Health, is the first opinion issued by the United States Supreme court addressing the constitutional right of an incompetent person to terminate life-prolonging treatment. 1 In Cruzan, the court held that treatment will continue , even against a patient's wishes, Wlless that patient meets the state standard of proof for determining the patient's expressed wishes or the forma lities of a state living will. The United States Supreme Court found that the Missouri rule requiring proof of an individual's intent by clear and convincing evidence before treatment could be discontinued did not offend the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Likewise, due process does not require the state to accept the "substituted judgment" of a family member who. absent the expressed direction of the individual. attempts to predict intent based on the individual 's known preference and values.

BACKGROUND OF CRUZAN Nancy Cruzan sustained her injuries from an a uto accident in January 1983. As a result of oxygen deprivation for approximately 12 to 14 minutes she suffered permanent brain damage. He r life was maintained by artificial nutrition and hydration .

After she was transferred to a Missouri s tate hospital, her parents. convinced that Nancy would not desire to live in her present condition. requested that

the hospital discontinue nutritional treatment. Whe n the hospital refused. the Cruzans petitioned the Missouri trial court for the authorization to withdraw treatment. The trial court authorized the withdrawal of life support. concluding that Nancy Cruzan had a fundamental right under the Missouri Constitution to refuse lifeprolonging treatment, and that her wish to do so was supported by the testimony of her housemate that she would not wish to continue her life. "un less she could live at least halfway normally." The Missouri Supreme Court r versed . finding that Nancy's conversation with her housemate was unreliable evidence of h er inte nt. The court decided that in the absence of compliance with Missouri's living will statute or clear and convincing evid ence of Intent, treatme nt could not be terminal d . The U.S. Supreme Court grapled certiorari to determ ine wheth e r the U.S. Constitution prohibited the tate rule.

REASONIN OF CRUZAN In C ruzan. the Supreme Court a nalyzed the right to refuse treatment as an individual libe rty interest under the Due Process Clause of the Fourteenth Amendment. " It can not be dispute d that the Due Process Clause protects an interest in life as well as an interest in refusing life-sustaining m ed ical treatment. " 2 A person's interest in self determination is then balanced against he tate 's interest. including its interest in the preservation of life. In performing the'balanclog test the state may decline from making judgments about the quality of one's life .3 The Co urt drew a distinction between the liberty interest of a competent patient and that of a n incompetent patient. The Court assumed t hat for purposes of this case. that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesav ing hydration and nutrition 4 The Court noted. however, that when one is not cognitive, the right to refu se treatm ent must be exercised by a s u rrogate. In the la tter situation the state may devise "a procedural safegu ard to

assure that the action of the surrogate conforms as best it may to the wishes expressed by the patient while competent. " 5 The state may also guard against potential abuse in a situation where the surrogate does not act to protect the patient. 6 When the choice is between life and death. the state's interests are more substantial than in other civil m a tters and therefore heightened evidentiary requirements are justified . The Missouri standard. i.e .. the standard that requires clear and convincing evidence of a patient's intent that is only ascertainable by specific expressions of a choice of treatment made while the patient is competent , is justifiable as a means of enhancing accuracy regarding the patient's potential refusalofhydration and nutrition treatment.

The court opined that requi ring clear and convincing evidence of an incompetent's wishes may increase the risk of an erroneou s decision not to withdraw life-su taining treatment.

The court found this risk justified because an erroneous decision to maintain life support. "maintains the status quo" and the decision may be chang d by the advancement of medica l science. c ha nges in the law or d eath itse lf. 7 The Co urt also a cknow ledged that "M issouri's requirement of proof in this case may have frustrated the effectuation of the not fully expressed desires of Nancy Cruzan. But the Constitution does not require general rules to work faultlessly; no general rule can. " 8 The Cruzan opinion did not specifi¡ cally state what constituted clear and convincing evidence to discontinue life-s ustaining treatment. The Court upheld Missouri's conclusion that Nancy Cruzan's statements made to h er housemate that she would not want to live s hould she face life as a "vegetable". did not fall within the orbit of the clear and convinc ing evidence required to terminate life support. In rejecting Nancy's state m e nts as evidence of her intent to discontinue life support because they were too general. the Cruzan Court suggests that the state may require the clear and convincing threshold to be

satisfied only by strict compliance with living will legislation. A Living Will is a document that states a person's wish not to be kept alive through the use of medications, artificial devices or by "extraordinary" measures. The result for Nancy, who did not have such contractual evidence, is that she stayed in the hospital maintaining her status quo and waiting for medical science, a change in the law, or, what she may have wanted in the first place. death itself.

While the court's opinion regarding the clear and convincing evidence standard held that Nancy Cruzan's statements failed to sufficiently evince a decision to terminate life support, the court also seems to suggest that specitlc remarks as to the treatment to be terminated may satisfy the clear and convincing standard.

The court also rejected the argument by counsel for the Cruzan family that the family could substitute their judgement for that of the incompetent, Nancy. According to the Court, the Constitution does no require a state to accept the "substituted judgment'' of the family to establish what decision the patient would make if competent. "We do not think the Due Process Clause requires the state to repose judgement on these matters with anyone but the patient herse lL" 9 The Court reasoned that there is no automatic assurance that the view of a close family member will be that of the patient. 10 Although the State is not mandated to rely on "substituted judgment", the Court permits the state to choose.

States generally have taken three approaches in ascertaining a person's wish to terminate treatment when that person is unable to communicate their intent: th e best interest approach , the substituted judgment approach, and the express intent approach (Missouri approach).

The best interest approach permits a s urrogate decisionmaker to s e lect the m edical procedures that would be in the patie nt's best interest. Under this approach, a limited-objective test is utilized to withdraw treatment when there is some trustworthy evidence that the patient would refuse treatment and the burden of pain is outweighed by the benefit of the treatment. In the absence of trustworthy evidence . a pure-o bjective test is applied and treatment will be withdrawn if the burden of life (pa in) ou tweighs the benefit of the treatment. 11 Under the substituted judgment approach, the g u a rdian attempts to predict what decision the patient would m a ke if he/she were able to do so. This approach is used when a patient has not made s pecific expressions concerning the termination of

treatment or has made general statements. Family, friends, or others testify as to the individual's known beliefs and preferences. The court examines the depth, quality, and reasoning of the family and determines whether there is clear and convincing evidence of the individual's intent to discontinue treatment 12 Even the development of standardized approaches to ascertain the intent to withdraw life support has not eased the legal dilemma. Although some states have adopted an approach of expressed intent similar to that of Missouri. the states differ in their interpretation of that standard.

In applying the standard to individual cases. some states have given greater weight to statements made by the individual while competent as evidence of intent. For instance, in Elbaum v. Grace Plaza of Great Neck.

the New York court found clear and convinc ing evide n ce of the patient's expressed intent to terminate treatment in the absence of a living will.

The decis ion was based on the patient's statements m ade while competent. On several occasions the patient asked her husband, son, and sister to promise not to keep her alive by artificial systems.' 3 Cruzan suggests that the state approac h requiring a n individual's expressed intent by clear and convincing evidence is the limit to state regulation of one's right to discontinue treatment. Since the court found some protected "liberty interest" in the withdrawal of life-prolonging treatment, the state could not disregard clear and convincing evidence of one's intent to terminate treatment. Therefore. whatever approach a state adopts, if the "clear and convincing" evidence of intent is satisfied, one can be ass ured that t he ir right to selfdetermination will be recognized if one late r becomes incapable of communication.

To prote.ct yourself from unwanted life in limbo, one should attempt to establish clear and convincing evidence of the intent to terminate lifemainta1ning treatment while competent. The be t way to do this is to execute a living will. Whe re avaHable, one may appoinlsomeone to make health care decisions by use of "Durable Power of Attomey for Health Care" .

The American Nurses Association and the Ame rican Association of Nurse Attorneys suggest tlilat individuals comm unicate their h ealth care directive to physicians a nd nurses and ask that such directives be written in the ir hospital record. They also s uggest that individuals communicate their directive on life-prolonging treatment to their fa mily , friends and spiritual adviser. 14

THE RIGHT TO DIE IN PENNSYLVANIA A Pennsylvania District and County Court has addressed the right of a terminally ill competent patient to withdraw life support treatment but has not decided the issue fo r an incompeten t person. In In re Jane Doe, the court permitted a competent patient to exercize her choice to have a ventilator and other treatment discontinued.15 She suffered from what is commonly referred to as Lou Gehrig's disease, a debilitating disease that results in total paralysis and ultim ately death. The Court based its decision to terminate m edical treatment on both the common law right of self-determination and the United States and Pennsylvania Constitutional right to privacy.

Until recently . the Pennsylvania legislature had only addressed the rights of incompetent patients regarding powers of attorneys. 16 In November of last year, the State Senate amended a proposed living will statute and passed Bill 646. 17 The House must now recon sider the amended bill.

The Senate attempt to enact a living will statute was frustrated in the House by radical ame ndments to the Bill. 18 Thereafter, the Senate fa iled to take a concurring/nonconcurring vote before the end of the session .

The Bill. entitled "Advance Directive for Health Care" , 19 (hereinafter " the act" ) wo uld have given legal effect to a competent person 's declaration concerning whether medical treatment should be withheld or withdrawn , should this person la ter be deemed incompetent due to injuries.

This legislation would have also protected the physician and other health care providers from liability for withdrawal in compliance with the act. A declaration to discontinue treatment becomes operative when one is incompetent and is in either a terminal condition [incura ble illness which wjll inevitably result in death), or in a state of permanent unconsciousness (irreve rsible loss of consciousness and capacity for interaction wit h the environment). Such condition would need certification by the atte nding physic ian a nd a s econd physi'Cian .

Failure to execute a declaration of intent will not raise a n inference of intent to receive medical treat ment.

In Pennsylvania and in other stales, decisions to terminate life-support systems are made every day. Usually the decision is made under circumstances where the patient or the family a nd the physician agree. In such instances the courts do not need to decide the matter. This could be the reason the Pe nnsylvania courts have not addressed the issue of withdrawal

•

of treatment when one becomes incapable of communication . What approach Pennsylvania will take where a person does not have a contractual directive for their health care is the important issue to yet be decided . The Pennsylvania "living will statute," even if passed eventually, would do no more to protect one's right for self-determination than the Cruzan decision .

A Missouri Probate Judge on Dec. 14, 1990, in light of the Supreme Court decision and n ew testimony, d ecided that there was enough evidence to justify removing the feeding tube . Nancy died 14 days later of dehydration on December 26, 1990. 20 REFERENCES 1. Cruzan v . Director, Missouri Department of Health, _U .S._, 110 S .CT . 2481, 111 L. Ed. 2d 224. 58 U.S.L.W. 4916 (1990) .

2 . Id. at 243 .

3 . !d. at 244.

4. ld. at 242.

5 . !d. at 243.

6. Id. at 243.

7 . Id .at 245 .

8 . !d. at 245.

9 . !d. at 247.

10. !d.

11. See, Superintendent of Belchertown v. Saikewicz, _ Mass. _ , 370 N.E.2d 417 ( 1977); Matter of Welfare of Colyer. _ Wash _ , 660 P.2d 738 ( 1983): Matter of Conservatorship ofTorres. _ Minn _ , 357 N .W .2d 332 (1984); Matter of Conroy,_ N.J. _ , 486 A.2d 1209 ( 1985).

12. See, Leach v. Akron General Medical Center. _ Ohio Com . PI _ . 426 N.E.2d 809 (1980); Gray by Gray v. Romeo , 580 F . Supp. 580 (D.R.I. 1988); Coutrue v. Coutrue, _ Ohio App. _ , 549 N .E.2d 571 ( 1989); In Re Estate of Longeway. _ I l l _ . 549 N .E .2d 292 (1989) .

13. Elbaum v. Grace Plaza of Great Neck, 544 N .Y. S .2d 840 (A.D . 2 D ept.

1989); but com pare. In re Westchester County Medical Center. 72 N.Y.2d 517, 531 N.E.2d 607 (1988).

14. Joal (Pres. ANA). Antonie (Pres.

TAANA). Washington Post, June 28, 1990.

15. In re Jane Doe, 45 D & C 3d 371 (1987).

16. Pa Stat Ann, Title 20, Section 6503 (h) (Purdon Supp 1989) 17. S . 646. Intra. Marc h 6, 1989, S.Amend. Oct. l. 1990.

18. S. 646, Intra. March 6. 1989, H .

Amend. Nov. 20, 1990 19. See note 17 20. Cruzan u. Morton, No. CU384-9P ((MO. I Cir. ct.. Jasper County, Dec. 14, 1990).

Lisa Allen is a fourth -year evening student. Lisa is a Registered Nurse at West Penn Hospital.

SUPERFUND CLEANUPS: Mixed Decisions on Who Should Pay

on1e Po\Verful Lines on Toxic Tort Every day, millions of Americans awaken to a high-te c h lifes tyle powered by electricity delivered to homes and business via high voltage transmission and distribution lines.

But the electricity that hea ts and lights residences and businesses and operates a myriad of appliances and equipment may be costing Americans more than the dollar figure on the monthly bill from the electric utility .

Electric and magnetic fields . cast by the alternating current that flows through the American electric power delivery system, may be costing users their health . These co-existing but distinct forces , more conveniently referred to as electromagnetic fields. have been linked with childhood and adult leukemia and cancers. and neurological disorders. among other adverse health effects.

Until recently, electromagnetic fields were thought unremarkable from a health standpeint. Fear of power lines was limited to a fear of electrocution. After all. electromagnetic fields are a natural phenomenoA which occur independe n tly of the alternating current which flows thro~h such conductors as transmiss ion and distribution lines and thewiring of household appliances and other l ctrical equipment. Life on earth has long existed against a background presence of electromagnetic fields .

The complacen cy of industry and science toward electromagnetic fields was questioned in a 1979 epidemiologic' study that o bserved an association between childhood cancer and above-average magnetic fields . The far-reachi ng con equ nces of that study in th e realms of science, law, politics, and commerce are chronicled in Paul Brodeu r's Currents ofDeath. 2 Mr. Brodeur portray. beleaguered, financiallY. penali zed scientists and epidemiologists, pure of motive, who, in their sea rch for truth about elec-

tromagnetic fields, battle "the obfuscation of industry, the mendacity of the military, and the corruption of ethics that industrial and military money could purchase from various members of the medical and scientific community. " 3 Mr. Brodeur has been roundly criticized. Many consider his representation of the scientific literature pertaining to the health effects of electric and magnetic fields as biased and sensationalistic. But, his journalism, along with other recent reports in the media, has captured the puollc's attention. Some may wish to write off this public concern about elec tromagnetic fields as merely the cJarion call of yet another ephemeral cancer scare.

Yet, there have been positive results from this growing public concern .

The last year has seen the publication of pamstakingly n eutral literature reviews ofth sc.ie n ttfic research conducted thus far and increased funding for priority research in electromagn Uc field ffects on health, especially targeting childhood leukemia and cancer. Curr nt research is expected to yi ld conclusions regarding the safety of electromagnetic fields over this decade.

Tl1e human health factor in the generation of the nation's electrical power has also prompted responses from both state and federal legislatures and agencies. Under legislative mandate or in response to the electric power industry, itself seeking regulatory g uidelines. anum ber of state pulb11 路 u til ity commissions are studying the problem. The goal is to establish standards to prevent or mitigate human health hazards in the siting of high power transmission lines. In a ddition to state action, the federal government has evidenced its concern through congressional hearings addressing the biological effects of

electromagnetic fields. Literature reviews of the current scientific knowledge commissioned by the Office of Technology Assessment and the Environmental Protection Agency have confi-r med a need for further study.

The electric utility industry will ce rtainly face an avalanche of toxic tort litigation from users alleging injury due to electromagnetic field exposure if future studies conclude electromagnetic fields do cause adverse health effects. Even without a consensus among the scientific community indica ting electromagnetic fields as hazardous, public concern is already manifesting itself through th courts.

A number of cases have fo used to some extent on the i sue of electromagnetic field safety. The majority of those cases arise out of c.onde~nn a颅 tion proceedings at which electric utilities exercls th power of mJn nt dor,nain to take private land necessary to create easements over whi h high ROWer ~ransmission and distribution lines are routed.

However. all ast one pending ase involves a lo i lortcauseofact.ion in whi b the plan tiff all ge that a brain tumor was caused by electromagnetic field exposure. 4 Another uit, in which it was alleged a hild's I ukemia was caused by electromagnelic fields, was withdrawn l;>y t h plainUIT due to the costs of testing requ ired to prove the case .5 The prohibitory costs of performing tests highlights bul on of the many obstacles faced by lhe toxic tort victim who alleges electrom gnetic field related injuries. The vehicle of a traditional tort case will be strained to accommodate electromagnetic field exposure litigation just as it has been strained with other tox ic tort litigation. In the real m of the ideal tort action, the typical hornbook paradigm is that of an automobile coUision case where the injury is Immediate . and causation is direct and Incontrovertible . The future consequences of the injury are easily quantifiable. the plaintiff and defendan t are both determinate and the defendant or his/her insura nce company a]'e solvent. Of course. the classic paradigm is never so easy in the real world. Toxic tort cases further strain the paradigm.

Proponents of the status quo argue that the tort system has successfully adapted the tort system to the complexities of toxic torts. The principal theories ofliability in toxic tort cases. as in traditional tort cases. are negligence. strict liability. nuisance and trespass. But. successful litigation under any of these causes of action depends on th e plaintiffs ability to link the defendant's conduct with an invasion of his/her legally protected interest.

Yet it is just this establishing of a link that the typical toxic tort vic tim finds so difficult. There are those who seek reform through legislation or modification of traditional tort rules. arguing that the traditional tort system fails to provide relief for the toxic tort victim . The plain tiff cannot prove causation to the exacting degree required. so the plaintiff goes without a remedy. On the other hand. if the hurdles for proving, causation are lowered , other problems emerge .

Without dire t proof of causation, there is no certainty that the de~ ndant's conduct caused the plaioti£fs harm, There ln only proof of a probal:iility tha this parli ·ular defendant caus d the harm.

TbJ plain iff lypi ally seeks compe nsation for a disease that remained latentlo }'ears after hi /her exposure to a toxic agent. Intervening causes. sources oi injury wholly aparl from fhe toxic agent exposure, may obscure th e fa t{lal connection between the plaintiffs injury and the exposure. To overcome the c ritical problem of latency in toxic tort cases. one court has abandoned lhe "bul for" rule of causation which requires that the injury would have occurred but for the conduct of the defendant. 6 The court set forth the substantial factor test. which establishes the toxic agent exposure ~a cause if it was a material element in br·nging about the injury. Thus latencx is not fata l to the toxic tort plaintiff, as long as the latency period is consistent with the latency period gener lly accepted by the scientific omrriunity for that disease.7 Other obslacl s exist for the toxic tort plain ·ff. Eve n w en there are no intervening causes, the disease contracted by the plaintiff may be one caused b anyofanumberofcommon toxic agents or by a number of toxic agents in concert. A plaintiff is more likely to be successful when the contracted disease is the signature disease of the (ox ic age nt to whic h the plaintiff can prove ex posure. Leukemia. cancers. and brain tumors. associated with electromagnetic field exposure. a re not (as yet) signature diseases. Furthermore. these diseases occur at background levels even without any apparent cause.s The plaintiff in an e lectromagnetic field case will have to persuade the fac tfinde r that plaintiffs injury was more like ly than not caused by exposure to e lectromagnetic fields or that the e xposure was a mate ria l e lem e nt in contracting the disease. A serious impediment to plaintiffs case is the lack of a cre dible theory of a mechanism unde rlying the observed biological e ffects. E lectromagnetic fields neither heat tissue nor cells, as

does microwave radiation, nor disrupt chemical bonds in the cell. as does ionizing radiation. More generally, the mechanism of ~arcinogenesis itself is not understood. 9 Nor has science identified a threshold level, if any. at which adverse health hazards are triggered by electromagnetic field exposure.

Plaintiff may seek to rei on stalistical evidence in the for m of epidemiologic studies to show a n association between plain tiff's disease and exposure to electromagnetic fields.

Epidemiologic studies i di te that exposure to electromagne tic fldds is associated with a two-fold inc r ase in "childhood cancer rates. 10-15% of a! childhood cancers. which affect oughly on child in 10,000 per year. 0 Statistics do not identify the 10-15% of the population whose cancer is allegedly related to electromagnetic field exposure. Thus the problem of the inde terminate plaintiff arises. A statistical relationship a lone cannot show that any particular plaintiffs disease was caused by electromagnetic field exposure. Even so , due to the difficulties of directly proving causation in toxic lorl cases. courts and commentators increasingly agree on the necessity of admitting ep"demiological evidence.

Others caution against the introduction of such statistical evidence in toxic tort cases. If such statements of probability of the toxic agent's contribution to the plaintiffs injury are admitted . courts must be careful not to confuse the standard of persuasion with the burden of the proof of causation. "Preponderance of the evidence." the standard of persuasion in a tort action. is usually stated in terms of probability. or greater than 50 percent. Of course. statistical evidence also is stated in probabilistic terms.

Some courts "collapse" the standard of persuasion with the burden of proof by applying the greater than 50 percent standard to the probability that the defendant's conduct caused the plaintiffs injury. 11 In an electromagnetic field case, the factfinder must be convinced that a ll of th e plaintiffs evidence of the fact of causation. including the statistical evidence of a twofold increase of cancer. more likely than not establis hes causation in fact.

In bearing the burden of proof with respect to the fact of causation in an electromagnetic fie ld exposure case, the plaintiff will offer epidemiogic studies as evidence that the injury incurred is consistent with the types of injuries a ttributed to field exposure.

The pla intiff will also offer e vide nce as to the duration of exposure and measure ments of intensity of exposure to show that his/her exposure is cons is tent with th a t of th e s tudi es introduced into evidence. Plaintiff will

have to establish the ab nee of any on founding factors. including other agent which might have caused the injury', to defeat the assertion thal the electromagnetic fields are a surrogate for some other causa live fa,ctor. But. offering of studies and evltlen ce are not enough. The reliability of tho e studies and the validity of the conclusions drawn from th studi sis also vitaJ if the plain;tiff is to sustain the requi i e ourde of proof. Beyond the plaintifrs parll ipalion In 1he ad miss! n of evidence. he/sh e will also be required to defeat the defendant's posture that a majority of the scientific community sees no causal association between electromagnetic fields and the disease. The eak staUslical significance of the a: allable egidemiologic studies. the uncerta inty of extrapolating from ellular and animal studies to humans. th lac k of a mechanism to explai n lhe biological effects, a nd the un rtainty as to a threshold dose will probably prevent the factfinder's ·n t rene of causation in the plaintiffs case.

Beyond the proble ms of establishing causation. is the problem of quantifying damages and marshalling resources so that all present and future plaintiffs have a n opportunity for compens ti n. Juries awarding damages to a single plaintiff have no duty to conse rve t h e defendant 's resources. Later plaintiffs may find that jury awards in prior litigation h ave rendered the defendant insol vent. Or the single plaintiff is joined in a class so large that it threatens to e ng ulf and bankrupt the defe ndan t industry. The problems of administration in a class action, in both the aspects of litigation and the disbursement of money damages. are likely to overwhelm the court. Apportioning what resources are available to a large class is likely to result in an inadequate remedy for the individual pla intiffs.

Other theories of liability a re available to the plaintiff. The plaintiff in at least one case has pleaded misrepresentation by the electric utility . alleging that the electric utility knew or should ha ve known of dangers re lated to electromagnetic fields when it distributed a brochure attesting to the safety of transmission lines. 12 Developers and real estate bro kers similarly may be open to liability under theories of misre prese ntation a nd under deceptive trade practices acts. But, the bu lk of current electromagn etic field litigation is anchored in the law of e mine nt domain. wherein t he landowner (defendant in a condemnation action) seeks damages for diminution in value of his/her property or see ks to e njoin the utility from insta lling transmis-

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sion lines on his/her property.

An inverse condemnation case may artse when the landowner alleges that in a formal condemnation proceeding a part of the landowner's property was taken, but that damage to the rema.ining property was not compensated.

Inverse condemnation cases may also arise when the landowner's property has suffered compensable damages but the condemning authority has neither formally nor physically taken the land. The impact of public fear of powerlines on the fair market value of land is compensable in a number of jurisdictions. Three standards have evolved regarding the compensability of fear as an element of damages. 13 For years, in a society dedicated to progress, the prevalent view maintained that fear of transmission lines was based upon ignorance and superstition. No compensation for alleged diminution in the value of a property based on the fears of prospective purchasers could be allowed. The more equitable remedy is for the courts to hold that fear is a compensable element. The landowner suffers a loss in value to the land whether it is based on fact or superstition and the loss of value is directly attributable to a public perception of danger. The loss in value is better borne by the electric utility which passes the cost along to consumers instead of the individual landowner. Some jurisdictions have adopted the view that fear is a compensable element of damage, whether or not that fear is reasonable . In the jurisdictions which do allow compensation, there is a growing trend toward limiting admission of evidence to that of real estate values. Evidence of the available scie nce is excluded is irrelevant and highly prejudicial. Other jurisdictions require that fears of transmission lines be reasonable.

Landowners may also defend against condemnation by an electric utility by alleging that the taking is an abuse of discretion. 14 Condemnors enjoy virtually absolute discretion with regard to location of property to be taken. Landowners demanding an alternative routing by the utility cannot allege mere inconvenience. An exception to this broad latitude may exist if the utility did not properly consider safety factors in selecting the site. While the burden of proving abuse of discretion is a heavy burden for a plaintiff to bear, the defense of abuse of discretion was successfully used by a school district in Texas.'s Houston Lighting & Power Co. had properly complied with statutory requirements to condemn land for the installation of a high voltage transmission line which would cross the campuses of two schools. A series of suits followed. Klein Independent School

District contested the condemnation in county court. At the trial level, after hearing evidence on the potential hazards of electromagnetic fields and on the selection process of the land to be taken. the jury found that the utility had erected the transmission line in reckless disregard of the school's use of its property. Punitive damages of $25 million were awarded and the trial court enjoined the utility from use of the transmission line and ordered a writ of possession restoring the property to the school district.

The award for punitive damages was overturned by an appellate court on the grounds that the utility , properly complying with all statutory requirements, had not trespassed .

Because punitive damages are not awarded in condemnation. there was no actionable conduct on the part of the utility on which to base punitive damages. The court held. upon reviewing the evidence . that the jury

"The prohibitory costs of performing tests highlights but one of the many obstacles faced by the toxic tort victim . . . '

could believe that the transmission lines posed a risk to the children on the campuses affected . that the uncertainty of the risk dictated caution, that HL&P had not taken the state of knowledge regarding health effects into consideration at the time it located the transmission lines and thus the utility was not reasonable in its action and abused its discretion in the installing of the lines. 16 The toxic tort litigation has force d the electric power industry to change its stance with regard to the safe ty of electromagnetic fields. if only beca use of the change in public perception.

The "prudent avoidance" doctrine. dictating ever wider easements to avoid proximity of powerlines to homes. schools and businesses. will continue to drastically increase the cost of providing electricity. The litigation doctrine is based on policy rather science. If the studies do conclude that electromagnetic fields from powerlines pose no danger. but are a surrogate for other factors. much time and other resources will have been expended in reaching the conclusion.

Some will contend the expenditure was unjustified. Others will agree that the expenditure is well justified when the potential harm is weighed against the costs of a decade of research and cautious powerline location policies .

End notes 1. Wertheimer and Leeper, Electrical Wiring Configurations and Childhood Cancer.

109 Am. J. Epidemiology 273 (1979) .

2. P. Brodeur. Currents of Death: Power Lines, Computer Terminals, and the Attempt to Cover Up Their Threat to Your Health . Currents of Death was first published in a three part article in The New Yorker, summer of 1989.

3. P. Brodeur, Currents of Dea th at 96.

4 . P . Brodeur, Currents of Death at 198-99.

5. M. Bradford, Business Insurance.

Oct. 1, 1990, at 37.

6 . Allen v. United States, 588 F .

Supp. 247. 405-06 (D . Utah 1984). rev 'd on other grounds , 816 F 2d 1417 {lOth Cir. 1987).

7 . See In Re Sine Flue Immunization Products Liability Lit. 508 F .

Supp. 897. 901-02 (D. Colo. 1981) affd per curiam. 708 F. 2d 502 (1983).

8. Gold, Causation in Toxic Torts: Burdens of Proof. Standards of Persuasion , and Statistical Evidence, 96 Yale L.J. 376, 376-77 (1986).

9 . McElveen & Edd y, Cancer and Toxic Substances: The Problem of Causation a-nd the Use of Epidemiology, 13 Clev. St.L.Rev. 29, 33 (1984).

10. R eport to the California Department of Health Services: Potential Health Effects of Electric and Magnetic Fields from Electric Power Facilities, Executive Summary. at B-2.

11 . Gold, Causation in Toxic Torts: Burdens of Proof. Standards of Persuasion , and Statistical Evidence. 96 Yale L. J. at 378 (1986).

12. M. Freeman, The Courts and Electromagnetic Fields. Publics Utilities Fortnightly, July 19. 1990.

13. Annotation. Fear of Powerline, Gas or Oil Pipeline, or related Structure as Element of Damages in easement Condemnation Proceeding. 23 A.L.R. 4th 631 , 633-634 (1983).

14. 1A. J .L. Sackman, Nichols' The Law of Eminent Domain (Rev. 3d ed.

1990) sec . 4 . 11.

15. Klein Independen t School District v. Houston Lighting & Power.

739 S .W. 2d 508 (Tex. App.-Houston [14th Dist.l 1987. writ denied).

16. Id. at 518.

Lea Black is a third-year day student.

THE GULF: WHAT ARE THE OPTIONS? At the Helsinki summit President Bush left open the possibility of direct military action to remove Iraq from Kuwait while President Gorbachev insisted upon a political settlement of lhe crisis. The differences between them were captured In the ambiguities of the joint statement which indicated that any future action must be consistent with the United Nations Charter. The future here , as elsewhere. is unpredictable; yet events, or frustration. could make some military action seem imperative. It is, therefore, advisable to consider what possible uses of force beyond those authorized by the Security Council to e nforce its embargo might be justified within the parameters of the Charter.

The use of force by land, sea, or air contingents of the United States, or its allies in the gulf. could be triggered by an Iraqi attack. Under such circumstances, a military response would be clearly justified under the individual and collective self defense provisions of Article 51 of the Charter. The United States, however, would give Article 51 a much broade r scope. Its position from the beginning of the crisis has been that if diplomacy and economic sanctions fail, Article 51 would permit the use of military force to oust Iraq from Kuwait. In the discuss ions leading up to Resolution 660 of the Security Council, the American Representative asserted such a view and the resolution makes explicit refe rence to the inherent rights enshrined in Articl e 51.

Article 51 h as bee n invoke d on innumerabl e occasions by various member states to justify military initiatives as defens ive action. During the period of the Cold War. the United States often relied upon a broad inte rpretation of defensive rights to justify offensive ac tion by its armed forces or their s u rroga tes. Beginning with the Cuban Missile Crisis, such arguments were made with respect to operations in South East Asia . Central America, and oth e r arenas whe re w e believed that our vital interests were a t s take.

An expansive reading of Articl e 51 in s upport of unilateral action was understandable so long as the possi-

bility of supervening Security Council action was foreclosed by the threat of a veto. Under such circumstances, states which were victims of an armed attack could defend themse lves indefinitely or. if they felt threatened, could take preemptive action against a potential danger. But the Cold War has ended . and all the permanent

While it is amenable to considerable lati tude of interpretation. the text of Article 51 expressly qualifies the range of military operations which may be taken from a defensive position . After recognizing the defensive right in both its individual and collective forms, the Article provides that the right may only be exercised

E

members of the Security Council have supported its assertion of jurisdiction over the situation c reated by Iraq's aggression . There is a greater n eed than ever for an objective understanding of the limits which the Charter of the United Nations imposes upon unilateral military ac tion by a n y m ember state.

.. until the Security Council has taken m ea s ures necessary to maintain interna tional peace and security."

The text also states that exercises of the right of self defense shall be immediate ly reported to the Security Counc il. and concludes by providing that such uses of defensive force

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"shall not in any way affect the authority and responsibility of the Security Council . .. to take at any time such action as it deems necessary in order to maintain or restore international peace and security." (my emphasis).

Read in its entirety Article 51 does not, on its face, lead to the expansive definition advocated by the United States. Nor can clalms of unlimited self defense based upon custom or law take precedence over the adopted Charter language. However, it may be argued that the subordination of right of self defense to the supe rior authority of the Council presupposes that the Council has military forces at its command and, since that is not the case, it remains the right of every state to determine for itself whether conditions exist which might justify the exercise of this inherent right. Under this reasoning if sanctions fail the United States, acting at the behest of the lawful government of Kuwait. could use whatever force it felt was necessary to restore the sovereignty of that desert kingdom.

Article 42 of the Charter provides that if economic and other non-violent sanctions do not correct an act of aggression, the Security Council may take military action. The provision depends upon special agreements between the Council and member states under Article 43, which would make national armed forces available to the Council. Article 43 was never activated and it is generally agreed that the power of the Council to take military action under Article 42 is dependent upon such agreements.

While Foreign Minister Shevardnadze, acting as President of the Council has suggested that a limited force may be established on a contractual basis, including units of the permanent members. it is unlikely that such agreements will be made.

Nevertheless. even if the Security Council cannot maintain its own military actions. it retains an ultimate authority over any operations which may be undertaken by member states whose forces are already assembled in the Gulf region . This authority is

The Security Council, with the assistance of the Secretary General, is expected not only to end aggression but also to act as an organ of collective conciliation.

based upon express provisions of the Charter as well as the interrelationship of its various objectives.

Chapter VIII of the Charter anticipates the lack of special agreements by providin~ In Article 106 that the powers parties to the Moscow Declaration of 1943, and France- in effec t the permanent members of the Council will take joint action on behalf of the United Nations until Articles 42 and 43 become operative. The unanimous support of the Gulf Resolutions by the permanent members of the Security Council, together with the continuous assertion of Council authority, reinforces that common responsibility.

Although the Council does not have specific military contingents assigned to it by member states. the forces

which have assembled in the Gulf are subject to its overall authority.

Until a member state has concluded a special agreement to provide troops it is not obliged to undertake military action on behalf of the Security Council. But once the Council is seized of jurisdiction. and has assumed the responsibility of ending the invasion of Kuwait, it can insist that any contemplated use of force in the area be subject to its direction. Without such an authority, the collective security objectives of Chapter Seven of the Charter would lack a unified focus.

Moreover, the pacific objectives of the United Nations system would be frustrated by unilateral recourse to remedial action.

Iraq must cease its occupation of Kuwait, and make restitution for its aggression.

The Security Council, with the assistance of the Secretary General. is expected not only to end aggression but also to act as an organ of collective conciliation. The powers conferred upon the Council under Chapter Seven of the Charter have to be read in conjunction with its authority under Chapter Six to promote the pacific settlement . of any dispute which jeopardizes interna tional peace and security. Here the emphasis is not on coercion, but on a peaceful adjustment of conflicting claims. That authority. together with Charter prohibitions on the use of force, was meant to improve upon the League of Nations Covenant which permitted recourse to arms by states after specific dispute-settlement procedures had been complied with .

A claim by the United States that it can apply its own military power to restore the sovereign ty of Kuwait. or determine the conditions under which withdrawal will occur. is not within its legitimate powers as a principal member of the United Nations Security Council. Iraq must cease its occupation of Kuwait, a nd make restitution for its aggression. but it must do so in obedience to the Security Council as a whole and according to the terms and conditions which that body will impose.

Note: On November 29. 1990, the Security Council adopted Res. 678. authorizing member states, acting with the government of Kuwai t, to "use all necessary m eans to uphold and implement the Security Council Resolution 660 . .. and restore International peace and security in the area" unless Iraq complied by January 15. 1991. The military actions commenced by the United States a nd its allies on January 16 go beyond the terms of that authorization because their objective is to destroy the capacity ofiraq to engage in future offensive military action in the region. T he objectives of the bombardment may appear to be reasonable from the perspective of geopolitics. but they cannot be justified under Article 51 or any other provision of the United Nations Charter.

Cornelius Murphy is a Professor of International Law at the Duquesne Law School.

As senior students enter their final year of academic instruction, thirtytwo (32) gained trial advocacy experience in the Shalom Trial Moot Court Competition. Participants researched and wrote trial briefs. and prepared witnesses for trial. After being judged on knowledge of the Rules of Evidence. demeanor. preparation and skill, sixteen students advanced to the second round of competition on November 13 and 14, 1990.

Damien Schorr and Michael Bruzzese will represent Duquesne University in the Gourley Cup competition.

Schorr and Bruzzese will be trained for the competition by the Honorable Jeffrey A. Manning, Judge in the Criminal Division of the Allegheny County Court of Common Pleas, and Robert Marino, Partner with the firm of Dickie, McCamey & Chilcote. Successful completion of the competition requires the student to emulate the skills of the best trial lawyer, which includes demonstrating both an a cademic and working knowledge of the applicable evidentiary, procedural and ethical rules. "A student has to

put in as much time as a trial lawyer in a case," said Judge Manning.

Three participants in the intraschool compe tition also advanced and will represent Duquesne in the American Bar Association competition. Chris Hasson, Timothy Miley and Jerome Kaharick will prepare for the competition under the direction of Duquesne Law School Professor S. Michael Streib. "Duquesne University has always had an excellent reputation at this competition and is once again expected to maintain that high standard," said Kevin Keyho , ABA/LSD Rep. The Tampa Bay area provides the setting for the National Tax Moot Court Competition on January 30, 1990. The Duquesne team this year will include s tude nts Timothy Miley.

Dwayne E . Ross and their coach,

Professor Mark Yochum . "Students address issues which are on the cutting edge of tax law, yet the competition is designed to be accessible to all students- who have not necessarily had special tax training.路' said Professor Yochum. Duquesne has finished third three times in the last five years.

Juris would like to wish all of our moot court teams the best of luck in this year's competitions.

The law school joined the state-wide debate on the death penalty issue.

Approximately 150 students and lawyers observed as Duquesne law

professor Bruce Ledewitz and national death penalty expert Dr. Ernest Van de Haag debated "Death Penalty: Is it just a policy?" Dr. Van de Haag, author of several articles and books on the subject, advocated the penal sanction as a necessity in preserving

human dignity in some instances based on the dogma of philosophers Emmanuel Kant and Steven Hegle.

Dr. Van de Haag cited s tatistics demonstrating the deterrent effect of the death sentence and questioned the policy of opponents which he characterized as permitting the criminal to outline the victim of the crime. Professor Ledewitz also cited statistics advocating his anti-death penalty position. The Professor suggested that the resources used to execute death row would be better utilized to increase law enforcement protection

and construct new prisions.

The student Bar Association sponsored a Thanksgiving Food/Money Drive to benefit Hunger Services Network of Pittsburgh. Duquesne law students and faculty donated $525.00 and twe lve bags of groc eries . "At a time of year when law students are preoccupied with exams and jobsearching, our students showed the ir commitme nt to the community," said S.B.A. President Jane Carlonas.

By Susanne Kimberland. Senior Editor and Steven W. Zoffer.

Editor-in-Chief.

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McHUGH v LITVIN, BLUMBERG & YOUNG The issue of retroactivity of court decisions affects every attorney in virtually every case in which he or she enters an a ppearance . At any time during the litigation process, a related issue in a similar case could be decided and have serious effects upon an attorney 's strategy and eventually the outcome of his or her case. How can an attorney be sure where his or her client's cause of action stands in light of recent case law? The decision in McHugh v. Litvin , Blumberg, & Young_Pa ._, 574A.2d 1040(1990) addresses this problem.

John McHugh was injured on February 12, 1971 while working on a barge for his employer, Interstate Oil Company. An attorney, Joseph Boardman , filed a writ of summons in trespass and assumpsit on behalf of Mr. McHugh against his employer and Mobil Oil Company on February 9, 1973. In addition. on February 13, 197 4, Boardman filed a similar writ on behalf of Mr. and Mrs. McHugh against Interstate Oil, Mobil Oil, and E.W. Saybolt, Inc. Boardman then referred the cases to the appellees in this case. The flrst action was dismissed for inactivity in the Philadelphia Court of Common Pleas on September 23 , 1977 and affirmed by Superior Court.

The second action. for the wife's loss of consortium. was dismissed on May 19,1980 for failure to properly serve the complaint on the defendants. This was affirmed by the Superior Court.

Subsequently . the McHughs brought an action against Litvin , Blumberg. Matusow, and Young for negligent handling of both cases. The Court of Common Pleas of Philadelphia County entered summary judgment in favor of the appellees on the basis that the action for loss of consortium by Mrs. McHugh was not a recognized cause of a c tion on February 12.

1971, when her husband was injured.

After this decision was affirmed by the Superior Court. the Supreme Court of Pennsylvania accepted allocatur and decided the case on May 14, 1990. The Supre m e Court focused its attention on "the retrospective effect of [their] decision in Hopkins v. Blanco, 457 Pa. 90, 320 A.2d 139 (1974), wherein

[they] recognized the continuing right of a husband to maintain a cause of action for loss of consortium and extended that right to the w ife through the passage of the Equal Rights Amendment to our Commonwealth's Constitution."'

The central issue in this case is whether or not to apply the decision in Hopkins retroactively . Th e Superior Court had rejected the applicability of the Hopkins case because the parties did not advance that reasoning in the trial court proceeding and because they found no evidence of the Supreme Court's intention to apply Hopkins retrospectively . The Supreme Court of Pennsylvania rejected this argument because this situation concerned the existence of a cause of action, not the preservation of an issue for appellate review . The McHugh case dealt with "the sufficiency of the complaint under relevant law ." 2 The Court relies upon what the relevant law is at present and therefore must consider the applicability of Hopkins .

As to the applicability of the Hopkins decision to the present ca use of action. the appellants argued that the Court must recognize the claims

----·--

-

"The central issue in this case is whether or not to apply the decision in Hopkins retroactively.'

which had not expired upon the date of that decision . This would allow Mrs .

McHugh to maintain her cause of action . The appellees ' argument was that because the Court in Hopkins did not discuss whether or not the decision was retroactive . there was no way of knowing whether or not the result was to be applied retrospectively.

The Supreme Court conducted a brief analysis of the issue of retroactive application of judicial decisions .

Generally, retroactive application is a matter of judicial discretion to be considered on a case-by-case basis, 3 although at common law an overruling decision was held to be retroactive . " A sweeping rule of retroactive appli · cation ca nnot be justified .4 The Court also considered the use of a balancing test to dete rmine whether retroactive application would result in substantial hardship .

The Court in McHugh, however, points out that causes of action are usually recognized in a broad sense.

They are to be applied to the case a t hand and to pe nding actions as of the date of the dec ision . The Court cites Mayle v. Pennsylvania Department of Highways.5 and refers to the subsequent retroactive application of that decision in pending actions as of the date of the judgment of the court and to cases where the cause of action accrued before the decision but was filed after the date .6 The Gibson example, according to the Court, does not institute the practice of creating new causes of action but is an "opening of the courthouse doors which had formerly been closed to such actions . " 7 The Court states that a litigant has the right to rely on the changes which occur and to take advantage of new causes of action until such a time as a court discusses a limitation. The Court reiterates the common law principle which applies a similar approac h. Consequently, the appellants we re correct in relying upon the change in law because there had been no speci fied limitation placed upon the application of the Hopkins decision. The Court also stated that Mrs .

McHugh's pending claim at the time of the Hopkins decision was proper

and that the McHughs acted reasonably.

The consequences of this decision may not seem earth-shattering, but the issue of retrospective application is, as it always has been, troublesome.

The fact that a person may be subject to liability for a previous act or omission for which there was no cause of action at the time of its occurrence or lack thereof can cause unexpected results. Such consequences can be especially harsh where the tortfeasor has failed to insure against this newly created liability . One solution to this problem is to impose a balancing test.

The United States Court of Appeals for the Third Circuit considered such a test in United States v. Jankowsk.i. 8 In that case, the Court listed factors which would help in resolving questions of retroactivity . The first factor the Court looked at was whether the decision established a new principle of law, by overriding clear past precedent which has been relied upon or whether the issue is of first impression. In addition, the Court considered whether retroactive application would result in substantial hardship. If both of the factors are considered and one is not satisfied, the decision should not be applied retroactively . Similarly, in United States v. Dunbar.9 the Third Circuit repeated the two requirements m e ntioned in Jankowski and added that the court must decide whether retrospective operation of the Jaw, will further or retard the operation of the law. in light of the Jaw's prior history, purpose and effect.

This Jist of requirements would ultimately further equitable application of retroactive principles to judicial decisions.

REFERENCES 1. McHugh v. Litvin. Blumberg &

Pa._. 574 A.2d 1040,1041 (1990).

2. Id. at 1042 3 . August v. Stasak, 492 Pa. 550.

424 A.2d 1328 (1981).

4 . !d . at 550.

5. Mayle v. Pennsylvania Department of Highways. 4 79 Pa. 384.

388 A.2d 709 (1978).

6. Gibson v. Commonwealth, 490 Pa. 156, 415 A.2d 80 (1980).

7. McHugh, at 1044.

8. United States v. Jankowski, 77 F.2d 70 (3d Cir. 1985) .

9. United States v. Dunbar, 767 F.2d (3d Cir. 1985).

Young_

Lisa Sciullo is a third-year day student, working as a legal intern with the Law Department of the City of Pittsburgh.

RUTAN v REPUBLICAN PARTY OF ILLINOIS

The End of Patronage Andrew Jackson is c redited for coining the phrase "to the victor belong the spoils,''' but he was not the first to benefit from the spoils system. Patronage. a form of the spoils system . has been around since and possibly before the days of George Washington.

Thomas Jefferson used it rather extensively. Political patronage has been described as "the hiring and firing of non-civil service, public employees without regard to their merit, but in response to a substitution of one political ideology for another in the governing body. " 2 In 1990. Andrew Jackson's phrase has been changed to, "to the victor belong only those spoils which may be constitutionally obtained . " 3 This summer, in a five to four decision, the United States Supreme Court closed the door to most uses of political patronage with its decision in Rutan v Republican Party of Illinois, US 110 S CT 2729. 2732 ( 1990). (hereinafter cited as Rutan). In what may become one of the most sweeping reforms of government ever imposed by the judiciary. the Court held that its prior decisions proscribing dismissals based upon political affiliation arc to be extended to hiring , transfer. promotion, and recall from layoff. It is not clear what effect the ruling in Rutan will have upon the operation of state, local, or fede ral government. It is clear. however. that it will not be business as usual for those public officials and administrators seeking to reward supporters and friends with government jobs.

The Rutan suit resulted from the political acts of the Governor of Illinois. Governor James R. Thompson, a Republican, issued an executive order for e very agency. bureau. board. or commission subject to the Governor's control. The exact language of the order provided :

HIRING FREEZE Effective at the close of business today November 12.1980 no agency , department, bureau, board or commission subject to the control of the governor shall hire any employee, fill any vacancy, create any new position or take any other action which will result in increases , or the maintenance of present levels. in State employment including personal service contracts. All hiring is frozen. There will be no exceptions to this order without my express permission after submission of appropriate requests to my office .

Governor's Executive Order No . 5 (Nov . 12, 1980). The order. which seemed innocuous on its face , became the basis of what many considered to be a political hiring system.

To implement the order, the Governor created the Governor's Office of Personnel (Governor's Office) specifically for the purpose of apportioning public jobs as they became available within the government system. All employment requests were directed to the Governor's Office. It was here that the alleged patronage practices occurred. In reviewing a request that a particular applicant be awarded a specified position. transfer, recall, or promotion, the Governor's Office based its decisions on political criterion. An applicant's desirability for a position was contingent upon such factors as whether the applicant had voted in past Republican primaries, whether the applicant promised to work for the Republican party. whether the applicant supported the Republican party or contributed financially to the party, and whether the applicant had the endorsement of Republican party officials.

The plaintiffs in the suit were four current State employees and a State resident who desired a position with the State of Illinois who were not Republicans and did not support the Republican party. They brought suit in the District Court for the Central District of Illinois on their own behalf and on behalf of various plaintiff classes also alleged to have been injured by the patronage system.

Claiming that the employment practices of the State constituted a patronage system that violated their constitutional rights to free speech and association under the First Amendment, the plaintiffs sought damages resulting from their exclusion from government benefits of employment, transfer. recall and promotion.

The plaintiffs based their suit on the prior Supreme Court holdings of Elrod v Burns, 427 US 347, 96 S Ct 2763 (1976). (hereinafte r cited as Elrod), and Bran ti v Finkel, 445 US 507. 100 S Ct 1287 ( 1980), (hereinafter cited as Branti). These cases had held that a dismissal based on political party affiliation was unconstitutional if the position was not one in which party affiliation was an appropriate requirement. The plaintiffs sought to use the cases for the proposition that all employment decisions based on affiliation with a certain party are unconstitutional unless party affiliation is an appropriate requirement. It was obvious that the plaintiffs did not hold positions that would require party affiliation. The jobs h eld by four of the five plaintiffs consisted of re habilitation counselor, road equipme nt ope rator, garage worker. and dietary manager. A fifth plaintiff was seeking a position as a prison guard.

The defendants w e re Governor Thompson. the State, and the Republican Party. They claimed that the Elrod and Bran ti cases did not apply to their use of political patronage in job placement and only applied to those situations where the government dismissed a public employee on partisan grounds.

The distric t court, hearing the case upon a motion to dismiss, held for the defendants and dismissed the case for failure to state a c laim.

The case then went to the Court of Appeals for the Seventh Circuit. In an opinion written by Judge Manion, th e Court of Appeals a ffirm e d in part and remanded four of the five plaintiffs' claims. The court elected to follow precedent set by the Court of Appeals for Fourth Circuit in D elong v United States, 62 1 F2d 619 (4th Cir. 1980). reasoning that the re may have been a violation of the Constitution under Elrod and Bran ti if the actions take n by the government were the s ubstan-

tial equivalent of a dismissal.

After the Seventh Circuit handed down its decision in Rutan, at least one commentator noted that Judge Manion is no stranger to the usefulness of political ideology in obtaining government employment. " It may be recalled that Judge Manion, sponsored by his old law school chum. then-Senator Dan Quayle, squeaked through the confirmation process by a single tie-breaking vote cast by thenVice President George Bush. During 12 years of practice Judge Manion had never appeared before a federal appeals court. had never served as lead counsel in any federal case and had never argued a constitutional question in any court. Forty law school deans and the Chicago Council of Lawye rs had found Judge Manion 's professional qualifications unacceptable after reviewing sample legal briefs he had provided to the Senate."

Even given the obvious prejudice with which the above statement was made, the facts suggest that something other than Judge Manion's exp erience earned him a position on the Federal bench.4 The Supreme Court granted certiorari to decide whether the Elrod and Branti rulings extended to the use of political considerations in hiring. transfer, promotion. and recall.

Justice Brennan. joined by Justices White, Marshall. Blackmun, and Stevens, wrote the opinion for the majority . The Court h e ld that the rulings of Elrod and Branti did extend to the use of considerations in hiring. transfers. promotions. and recall because the practices unquestionably inhibit protected beliefs and associations. As such, the Court of Appeals' test of unconstitutionality was too restrictive due to its failure to recognize those de privations which fall short of dismissal but nevertheless infringe upon First Amendme nt rights. In light of this holding, the majority turned first to the plaintiffs who had been denied promotion transfer and recall from layoff. Justice Brennan rejected the argumen t that there had been no infringement of First Amendment rights simply because they had no e ntitlement to promotion, tra nsfer, or recall. He found this argument to be "beside the point" in that, while the government is certainly allowed to deny benefits, it may not deny b enefits for unacceptable reasons; one of which is the exercise of free speech .

The majority a lso rejecte d the d e fe ndants' a rgum e nt that the employment decisions did not violate the First Amendment b ecause the actions taken we re not punitive in n a ture. According to the defendants. since none of the plaintiffs w ere

adversely affected (ie. they didn't lose their jobs) there was no real impediment to their exercise of free speech and association. The Court took exception with the argument. reasoning that employees who are stuck in dead-end jobs because of their partisan politics are adversely affected.

"They will feel a significant obligation to support political positions held by their superiors, and to refrain from acting on the political views they actually hold , in order to progress up the career ladder. Employees denied transfers to workplaces reasonably close to their homes until they join and work for the Republican Party will feel a daily pressure from their long commutes to do so. And Employees who have been laid off may well feel compe lled to engage in whatever political activity is necessary to regain regular paychecks and positions corr esponding to their skill and experience. " 5 Given the penalties imposed upon the Appellant 's exercise of First Amendment righ ts. the Court underwent a strict scrutiny analysis, thereby requiring a showing that the patronage practices at issue were narrowly tailored to further vital government interests. The Court then rejected such a finding. holding that the governments interest in securing effective employees could be better met by dischargin g, demoting or transferring staff members whose work is deficient, and that the government's interest in securing employees who will loyally implement its policies can be met by choosing or dismissing certain high level employees on a political basis.6 The majority then turned to the claim of the Illinois reside nt who was denied a position in the government and found that the same reasoning that made it unconstitutional to promote. transfer, or recall on an ideological basis was applicable to hiring.

Justice Steve ns' concurring opinion was prompted by positions taken in Justice Scalia's disse nt. Though he joined Justice Brennan's opinion, Justice Stevens found it necessary to restate an opinion he had first written as a Judge for the Seve nth Circuit Court of Appeals.

First, Justice Stevens claimed that the institution of a proscription of unconstitutional conditions placed upon e mployment e ligibility does not amount to a c ivil service system.

"There is a clear distinction be tween the grant of te nure to an employeea right whic h cannot be conferre d by judicial fia t-and the prohibition of a discharge for a partic ular impermissible reason. " 7 According to Justice Stevens. de nying th e Gove rnor of Illinois the rig h t to require every

employment applicant to pledge allegiance and service is a far cry from a civil service code.

Justice Stevens next took issue with Justice Scalia's assertion that the long history of widespread use of patronage practices immunizes them from judicial scrutiny. Justice Stevens noted that the obvious response to this position is that if longstanding practices were immune from judicial scrutiny, the attack on racial discrimination would have been doomed to failure. In addition, Stevens showed that the theory upon which the tradition of patronage had flourished; that being that public employment which could be denied altogether, could be subjected to any conditions, no matter how unreasonable, had been repudiated by subsequent case law.

Lastly, Justice Stevens took issue with Justice Scalia's assertion that until Elrod and Branti, it was unthinkable that patronage could be unconstitutional. Justice Stevens charged that Justice Scalia was attempting to avoid a long line of authority against patronage by instead weighing general state interests in the practice of and benefits gained from patronage hiring against the aggregated interests of public employees affected by such practices. Justice Stevens correctly points out that this argument obscures the distinction between partisan interests and public interests by assuming that government resources may be allocated in the furtherance of partisan activities even where political affiliation bears no relation to the service that the state is attempting to provide.

At the outset of his dissent, in which Justices Kennedy, O'Connor (in part). and the Chief Justice join, Justice Scalia pointed out, "if there is any category of jobs for whose performance party affiliation is not an appropriate requirement, it is the job of being a judge. where partisanship is not only unneeded but positively undesirable.

It is, however, rare that a party will appoint a judge from another party ... Thus the new principle that the Court today announces will be enforced by a corps of judges (the members of this Court included) who overwhelming! y owe their offices to its violation. Something must be wrong here and I suggest it is the Court. " 8 Justice Scalia found many errors in the majority's opinion. Justice Scalia states, " ... when a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread and unchallenged use that dates back to the beginning of the Republic. we have no proper basis for striking it down." 9 Instead of a strict scrutiny approach

to the patronage issue, Justice Scalia would sanction the use of a balancing test to determine whether the advantages to be gained from patronage outweigh its coercive effect. Justice Scalia also believes that such a determination is a policy question best left to the legislature, subject only to judicial review. In making a determination as to whether the legislature could have reasonably determined that a patronage system provides benefits that outweigh it's coercive effects, Justice Scalia described the benefits of patronage as proponents see them. "Patronage stabilizes political parties and prevents excessive political fragmentation-both of which are results in which states have a strong governmental interest. '' 10 In addition, patronage has among other things: fostered the two party system, delivered practical rewards to workers, and helped minorities who have bettered their situation by participating in a patronage system.

This is where the problem with Justice Scalia's opinion lies. By stating that patronage prevents political fragmentation and fosters the two party system, the dissent acknowledges that patronage does coerce people to subscribe to the beliefs of the party in power. This intrusion on the First Amendment rights of individuals does not bother the dissenters who would see constitutionally protected rights trammeled in order to perpetuate political parties whose interests do not rise to such a level as to be afforded Constitutional protection.

The dissent suggests that not only was the Rutan case incorrect but Elrod and Branti should be overruled because they have proven to be unworkable in application. The dissent claims that the Elrod and Branti decisions have created a line between employment practices which are constitutional and those which are not that is indiscernible to judges. attorneys and the public.

Lastly, Justice Scalia writes that even if he were not convinced that Elrod and Branti were wrongly decided, he would not extend the ruling to promotion, hire, transfer, and recall. "The loss of one's current livelihood is an appreciably greater constraint that such other disappointments as the failure to obtain a promotion or selection for an uncongenial transfer. Even if the 'coercive' of the former has been held always to outweigh the benefits of party-based employment decisions, the coercive effect of the latter should not be." 1o To its proponents, political patronage is somewhere between a necessary evil and a privilege that secures the evolution of our democracy. It is said to foster party loyalty, sustain the

vitality of the tow party system, promote the efficiency of public employees, and help minorities gain social acceptance through political affiliation. Yet even defenders of patronage systems admit that they were the driving force behind the scandalous political machines of old.

The detractors of the political patronage system contend that political patronage systems ignore experience and qualification in favor of ideology, provide no incentive for hard work, and most importantly. inhibits the free expression of political thought and dissension.

In any scenario, the practical result of the political patronage system has been the creation of jobs for the political parly in power at the expense of non-civil service employees thereby resulting in loss of experience and expertise, perhaps at the public's expense. With Rutan, the Supreme Court has taken a step in the right direction by refusing to give governmept the ability to make employees pay homage to the party in power.

What remains to be achieved is the Courts' establishment of an objective standard by which we can determine for which positions party affiliation is an appropriate requirement.

REFERENCES 1. Note, An Objective and Practical Test For Adjudicating Political Patronage Dismissals, 35 Cleve. St. Law Rev. 277, 277 (1986).

2. ld., 35 Cleve. St. Law Rev. at 279.

3. _U.S._ 110 S. Ct. 2729, 2731, (1990) 4. Knee, Who Gets The Spoils?, V. 12, The Nat!. Law Journal, No. 22 (2/5/90).

This article does not take a position on the professional qualifications of Judge Manion. The quotation included herein is merely used as a device to further demonstrate the irony of having an ideologically/politically appointed judiciary rule upon the process which gave them their jobs.

5. _U.S._ , 110 S.Ct. 2729, 2736 (1990).

6. Id., 110 S.Ct. at 2740. (citing Illinois State Employees Union, Council34, Am. Fed. of State, County, and Municipal Emp., AFL-CIO v. Lewis, 473 F.2d 561 (1972) cert. denied, 410 U.S. 928, 93 S.Ct. 1364 (1973).

7. _ U.S. _ . 110 S.Ct. 2729, 2747-2748 (1990).

8. Id .. 110 S.Ct. at 2748.

9. ld., 110 S.CT at 2752-2753.

10. _U.S._, llOS.Ct. 2729,2758 (1990).

M. Robb Hyde is a third-year day

student.

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