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Published online by Cambridge University Press: 09 June 2015
Environmental protection laws are a recent legal development. As soon as these statutes first began to appear, it was evident that the fundamental principles of environmental protection would conflict, at some point, with fundamental principles from other, older, substantive bodies of law. In the American legal system, nowhere has the conflict been more serious than between environmental protection law and the law of bankruptcy. While this problem has attracted significant attention in the law reviews, it has been little noticed outside legal circles. This conflict sheds important light on the nature of normative conflicts generally, and points to the need for a well-developed theory of conflict resolution which courts can use when deciding cases. The root of the problem lies in a conflict between the underlying policy goals of these substantive bodies of law such that satisfying one policy objective necessarily undercuts the other. As such, the conflict between bankruptcy and environmental protection should be classified as a normative collision. This discussion examines this normative collision as it exists in American law in some detail. Such an examination provides interesting insights into the nature and pervasiveness of normative conflicts in our legal system. It also serves to illuminate both the theoretical and practical need for a coherent, well developed mechanism for resolving normative conflicts when conflicts arise.
1. I want to make it quite clear that the problems in American law that are the focus of this paper represent only a partial reality. Canadian Bankruptcy law, for example, deals with this particular conflict much better than does American Bankruptcy law. In this paper I focus on American law primarily because of the way in which it highlights a particular normative conflict.
2. A very brief list of some of the articles in this area includes: John Berkery, “The Dischargeability of CERCLA Cleanup Costs incurred after Bankruptcy” (1992) 9 Bank. Dev. J. 417; Michael Bloom, “Bankruptcy’s Fresh Start vs. Environmental Cleanup: Statutory Schizophrenia” (1995) 6 Vill. Envtl. L.J. 107; Roger Colton, Kathleen Uehling & Michael Sheehan, “Seven-Cum-Eleven: Rolling the Toxic Dice in the U.S. Supreme Court” (1987) 14 B. C. Envtl. Aff. L. Rev. 345; Kathryn Heidt, “Undermining Bankruptcy Law and Policy: Torwico Electronics, Inc. V. New Jersey Department of Environmental Protection” (1995) 56 U. Pitt. L. Rev. 627; Kenneth Klee & Frank Merola, “Ignoring Congressional Intent: Eight Years of Judicial Legislation” (1988) 62 Am. Bank. L.J. 1; Jill T. Losch, “Bankruptcy v. Environmental Obligations: Clash of the Titans” (1991) 52 La. L. Rev. 137; Joseph S. Maniscalo, “Note: at the Crossroads of Environmental Laws and the Bankruptcy Code: Abandonment and Trustee Personal Liability” (1995) 23 Hofstra L. Rev. 879; Robert McNeal, “The Dischargeability of Environmental Liabilities in Bankruptcy” (1992) 6 Tul. Envtl. L.J. 61; Richard Paige, “In Re Quanta Resources Corp.: Bankruptcy Policy v. Environmental Interests; A Polluted Judicial Theory” (1985) 59 Am. Bank. L.J. 357; Deborah Parker, “Environmental Claims in Bankruptcy: It’s a Question of Priorities” (1995) 32 San Diego L. Rev. 221; John Ryland, “When Policies Collide: The Conflict Between the Bankruptcy Code and CERCLA” (1994) 24 Mem. St. U.L. Rev. 739; Denise Schuh, “The Cents of It: Dischargeability and Environmental Claims Under the Bankruptcy Code” (1994) 14 N. 11. U. L. Rev. 191; Stanley Spracker & James Barnette, “The Treatment of Environmental Matters in Bankruptcy Cases” (1994/95) 11 Bank. Dev. J. 85; Buckmaster de Wolf, “Strange Things Are Afoot at the Circle K: Agency Action Against Leased Sites in Environmental Bankruptcy” 21 B. C. Envtl. Aff. L. Rev. 145 (Fall 1993).
3. See H. Hamner Hill, “A Functional Taxonomy of Normative Conflict” (1987) 6 Law & Phil. 227 (classifying conflicts between norms as either contradictions, collisions or competitions). On this analysis, normative collisions involve either one deontic norm and one non-deontic (usually an empowering) norm, or several non-deontic norms. Environmental protection laws are deontic, duty imposing norms while bankruptcy laws are non-deontic, empowering norms. Accordingly, these conflicts are always avoidable. The party empowered to avoid certain obligations need never invoke the power granted. However, once an empowering norm is invoked, the impossibility of jointly satisfying the underlying norms becomes apparent.
4. A fascinating instance of a genuine normative contradiction can be found in the Case of Sheriff of Middlesex, (1840) 11 Ad. & E. 273, 113 E.R. 419, discussed at length in supra note 3.
5. 231 N.Y. 229, 131 N.E. 898 (1921) [hereinafter Hynes].
6. They were, however, liable to trespassers for gross or wanton negligence, but the facts of this case would not support a finding of gross negligence.
7. Supra note 5 at 231, 900.
8. The conflict between bankruptcy and environmental law fits this model perfectly. Congress knows about the tensions and inconsistencies between these statutes, but it has done nothing to remedy the situation.
9. Lief Carter, Reason in Law, 4th ed. (New York: Harper Collins, 1994).
10. Consider anti-flag burning legislation. Few serious scholars thought that any legislation geared toward criminalizing of flag burning could pass constitutional muster. That criticism of the legislation, well founded though it was, had precious little impact on legislators, however.
11. Thomas Eagleton, “Brennan And Souter: Guardians of Rights” St. Louis Post-Dispatch (18 September 1990) 3B.
12. A good summary of the debate can be found in H. Hamner Hill, “Between Clause-bound Literalism and Value Imposition: A Positivist Noninterpretivist Theory of Judicial Review” in Diana Kipnis & Kenneth Myers, eds. Philosophical Dimensions of the Constitution (Boulder, CO: Westview Press, 1988) 96.
13. Supra note 5 at 231, 900.
14. Some commentators argue there is no conflict between these statutes, because of the clear priority of bankruptcy law. Hon. Joseph Cosetti & Jeffrey Friedman, “Midlantic National Bank, Kovacs, and Perm Terra: The Bankruptcy Code and State Environmental Law—Perceived Conflicts and Options for the Trustee and State Environmental Agencies” (1987) 7 J. Law & Com. 65 at 76 (“There is no conflict between … environmental law and federal bankruptcy law.”).
15. Article I, § 8, clause 4: “Congress shall have the power to … establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States.”
16. It has been suggested that one of the fundamental problems of bankruptcy law is that after the reforms acts of 1978 and 1994 there is no unifying rationale to the law of bankruptcy, that this one substantive body of law is being made to serve too many masters.
17. 11 U.S.C. § 362 (1988) grants, with very few exceptions, an automatic stay of any actions geared toward securing the assets of the debtor. The stay prohibits initiating new actions against the debtor, puts ongoing actions on hold, and bars the collection of judgements already entered against the debtor in other actions. This section of the Code even stays the initiation or continuation of an action by the IRS against the debtor.
18. 11 U.S.C. § 362 (b) (4) and (5) provides that the automatic stay provisions do not apply to actions involving governmental units enforcing police or regulatory powers, nor does it apply to action to collect on judgements obtained in pursuance of police or regulatory powers. Though beyond the scope of this paper, courts have consistently ruled that most state environmental enforcement actions, since they involve collecting money from the debtor, do not fall within section 362 (b) (4) and (5).
19. Certain debts cannot be discharged in bankruptcy, but debts of this sort must be expressly identified in section 523 of the Code. § 523(A) contains 18 distinct types of nondischargeable debt including: tax obligations to state and federal governments, obligations to federal depository institutions, obligations associated with fraud, alimony and child support obligations, obligations arising from judgments in cases of malicious injury of wrongful death, guaranteed student loan obligations, and court fees and fines not for pecuniary compensation. The laundry list nature of these exclusions support that claim that the Code is being made to serve too many masters and that there is no clear underlying rational for bankruptcy rules.
20. See generally, Kevin Delaney, Strategic Bankruptcy: How Corporations and Creditors Use Chapter 11 to Their Advantage (Los Angeles: University of California Press, 1992). Near the end of the introduction, Professor Delaney questions the propriety of having bankruptcy courts, which lack Article III status, and which lack the full judicial power of the United States, resolve major political policy issues. That question was the impetus for the present paper. My thanks to Professor Delaney.
21. One commentator has complained that strategic bankruptcy allows firms to gain a head start rather than a fresh start.
22. In Re Texaco, 84 B.R. 893 (1988) (Texaco effectively escapes liability for tortious interference with a contract. Texaco had been ordered to pay $10.53 billion in damages in Texaco v. Pennzoil, 784 F.2d 1133 (2d Cir. 1986)); Johns-Manville Corp., 68 B.R. 618 (S.D.N.Y. 1986) (absolving Manville from liability for injuries related to its production of asbestos and asbestos-based products).
23. In Re A.H. Robins, 839 F.2d 198 (4th Cir. 1988) (absolving Robins of liability for injuries to consumers associated with its Dalkon Shield birth control device).
24. NLRB v. Bildisco & Bildisco, 465 U.S. 513 (1984) (allowing a company to escape a negotiated labor agreement in bankruptcy); In Re Continental Airlines, Air Line Pilots v. O ‘Neill, 499 U.S. 65 (1991) (granting extended power to escape labor contracts in bankruptcy despite Congressional responses to the Bildisco decision).
25. See, e.g. In Re Texaco, 182 B.R. 937 (S.D.N.Y. 1995) discussed in infra notes 49–54 and accompanying text.
26. National Environmental Protection Act, 42 U.S.C. § 4332 (1970) (as subsequently amended).
27. In re National Gypsum, 139 B.R. 397 (N.D. Tex, 1992) at 404.
28. “CERCLA is a complex and important statute without clarifying legislative history and with little judicial gloss … Neither the language of the statute nor existing interpretive precedents provide answers to substantial questions.” In Re Johns-Manville, 63 B.R. 600 (S.D.N.Y 1986) at 602.
29. I will mention state environmental protection laws and how they conflict with federal bankruptcy laws later. Each state has its own set of environmental laws and they are far too numerous to list here.
30. 42 U.S.C. §9601 et seq.
31. 42 U.S.C. §6901 et seq.
32. Some of the other pieces of federal legislation regulating business conduct toward the environment include: The Clean Water Act, 33 U.S.C. § 1251 etseq. (regulating the discharge of pollutants into surface and groundwater); The Clean Air Act, 42 U.S.C. § 7401 et seq (setting air quality standards and implementing a complex “bubble policy” for seeing to it that those standards have been met); The Toxic Substances Control Act, 15 U.S.C. § 2601 et seq. (establishing federal preemption in the area of defining toxic substances and testing for toxicity, the act also mandates reporting of any PCB spills); The Endangered Species Act, 16U.S.C. § 1531 et seq (requiring the completion of a federal environmental impact statement discussing the potential impact on habitats of endangered species); The Occupational Safety and Health Act, 29 U.S.C. § 651 et seq. (establishing worker safety guidelines including regulations concerning the handling of and exposure to hazardous substances); and The Noise Control Act, 42 U.S.C. § 4901 et seq. (establishing noise pollution limits and setting forth required noise abatement procedures). All of these acts carry with them significant monetary penalties for noncompliance and, as such, all potentially intersect with the BRA.
33. Various commentators have suggested, inter alia, modifying the bankruptcy code to include environmental claims within the list of nondischargeable claims, modifying the bankruptcy code to expressly include all environmental claims within the meaning of a claim; and having the Supreme Court resolve the dilemma.
34. Robert Kagan, “The Routinization of Debt Collection: An Essay On Social Change and Conflict in Courts” (1984) 18 Law and Soc. Rev. 323.
35. In Re Jensen, 995 F.2d 925 at 927 (9th Cir. 1993) [hereinafter Jensen}. The following articles have the Jensen decision as their principle focus: John Bevis, “In Re Jensen: Demonstrating the Need for Supreme Court Resolution of the Conflict Between CERCLA and the Bankruptcy Code” (1994) 93 J. Land Use and Envtl. L. 179; Myron Eng, “Environmental Law: Summary: n Re Jensen: Determining When a Bankruptcy Claim Arises in the Context of Environmental Liability” (1993) 23 Golden Gate U. L. Rev. 259.
36. Jensen, supra note 35 at 928.
37. In Re Hemingway Transport, 993 F.2d 915 at 924 (1st Cir. 1993).
38. In Re Chateaugay, 944 F.2d 997 at 1002 (2nd Cir. 1991) [hereinafter Chateaugay].
39. Ibid.. Chateaugay is one of the leading cases in the field and has drawn significant attention in the law journals. At least 75 articles have addressed this decision to some degree. The following articles focus principally on it: Arnold Capriotti, “In Re Chateaugay Corp.: an Argument For Legislative Intervention in the War Between CERCLA and the Bankruptcy Code” (1993) 4 Vill. Envtl. L.J. 443; Christina Diaz, “Environmental Law—Bankrupt Polluters Cannot Avoid Environmental Responsibilities—In Re Chateaugay Corp., 944 F.2d 997 (2d Cir. 1991),” (1992) Temple L. Rev. 1053 (1992); Charles Elmer, “In Re Chateaugay: To what Extent are Continent Claims and Injunctive remedies Under CERCLA Dischargeable?” (1992) 16 Am. J. of Tr. Advocacy 254.
40. The Code defines a claim as either:
(A) a right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, unsecured, or
(B) a right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured.
11 U.S.C. § 104(5)(A)-(B) (1988).
41. 11 U.S.C. § 523(A) lists those obligations which are not dischargeable. There are 18 distinct sections of nondischargeable debts including: tax obligations to state and federal governments, obligations to federal depository institutions, obligations associated with fraud, alimony and child support obligations, obligations arising from judgments in cases of malicious injury of wrongful death, guaranteed student loan obligations, court fees and fines note for pecuniary compensation. One obvious avenue to addressing the conflict between bankruptcy and environmental protection would be simply to declare environmental protection the winner and add environmental obligations to the list of non-dischargeable debts.
42. 139 B.R. 397 (N.D. Tex. 1992) [hereinafter National Gypsum]. For a good discussion of this decision see, Gayle Baumgarten, “Environmental Law – Determining What Degree of Deference Is Afforded EPA Decisions to Place Hazardous Waste Sites on the National Priorities List-National Gypsum Co. v. EPA, 968 F.2d 40 (D.C. Cir. 1992)” (1993) 66 Temple L. Rev. 1123.
43. National Gypsum, supra note 42 at 407.
44. In Re CMC Heartland Partners, 966 F.2d 1143 (7th Cir. 1992) [hereinafter CMC I]; In Re CMC Heartland Partners, 974 F.2d 775 (7th Cir. 1992) [hereinafter CMC II]; In Re CMC Heartland Partners, 3 F.3d 200 (7th Cir. 1993) [hereinafter CMC III].
45. CMC I, supra note 44 at 1146. CMC I is discussed thoroughly in Catherine Barth, “EPA Runs “CERCLAS” Around Bankruptcy Law: In Re CMC Heartland Partners” (1994) 5 Vill. Envtl. L.J. 203 (1994).
46. 123 B.R. 831 (D. Minn. 1990).
47. Ibid. at 835.
48. “We recognize that the Union Scrap decision evaluates issues analogous to those in this case. Moreover, we agree that the result reached in Union Scrap is arguably justified on the basis that EPA did not know until years after the close of the Taracorp bankruptcy that Taracorp was a responsible party for CERCLA cleanup costs. Nonetheless, the requirement that a party must incur response costs before it has a CERCLA claim does not seem necessary to this result.” CMC II, supra note 44 at 785.
49. This contrasts sharply with the language of some opinions which are open hostile towards environmental protection. One court, for instance, refers to “the onerous CERCLA remediation process.” Supra note 37 at 924.
50. Supra note 38 at 1002.
51. 841 F.2d 147 (6th Cir. 1988) [hereinafter Whizco]. For a discussion of Whizco, see, Linda Johannsen, “United States v. Whizco, Inc.: a Further Refinement of the Conflict Between Bankruptcy Discharge and Environmental Cleanup Obligations” (1990) 20 Envtl. L. 207.
52. 30 U.S.C. § 1201 et seq.
53. Whizco, supra note 51 at 150–51.
54. Supra note 38.
55. The language quoted here is from the Bankruptcy Code’s definition of a claim. 11 U.S.C. §101(4)(B)(1988).
56. Swpra note 38 at 1008.
57. 8 F.3d 146 (3rd Cir. 1993) [hereinafter Torwico]. Torwico is discussed fully in Kathryn Heidt, “Undermining Bankruptcy Law and Policy: Torwico Electronics, Inc. v. New Jersey Department of Environmental Protection” (1995) 56 U. Pitt. L. Rev. 627; John Ames, ‘Toxins-Are-Us” Third Circuit Joins Seventh and Puts Yet Another Nail in the Reorganization Coffin Contamination Cleanup Responsibility not only Runs with the Land, it Runs with the Waste” (1994) Am. Bank. Inst. J. Lexus 2592.
58. Torwico, supra note 5 at 150, quoting the State’s own experts.
59. Ibid. at 151.
60. Ames, supra note 57.
61. 11 U.S.C. § 521 plus Bankruptcy Rules 1001–1007 set both the requirement of notice and the permissible methods of giving notice, actual or constructive. In many cases there are possible claimants unknown to the debtor. Notice is given to such parties through publication notice—notices published in newspapers.
62. For a full treatment of this particular question, see Royanne Kashiwahara Doi & H. Hamner Hill, “What Should You Notice When You Get Notice?: Undiscovered But Discoverable Environmental Claims in Bankruptcy” (1997) 22 William & Mary Envtl L. & Pol. Rev. 163.
63. Texaco v. Pennzoil, 729 S.W. 2d 866 (Tex. Ct. App. 1987). It should be noted that one corporate bankruptcy can result in many lawsuits spanning many years. The Texaco bankruptcy is a particularly good example.
64. Pennzoil sued Texaco for inducing Getty Oil to breach an oral contract to sell Getty to Pennzoil. The case was heard in a Texas state court where the measure of damages for breach of a contract to sell is treble the value of the object to be sold. Given fluctuations in the oil market, the value of Getty’s reserves at the time of the breach was $3.5 billion producing a whopping $10.5 billion judgement for Pennzoil. To make matters worse, Texas required an appeals bond equal to 125% of the judgement. Thus, to appeal, Texaco would have to post a bond of almost $13 billion. Bankruptcy, even for a corporation the size of Texaco, was an attractive option.
65. In Re Texaco, 182 B.R. 937 (S.D.N.Y. 1995).
66. Ibid, at 957.
67. 1997 U.S. App. LEX S 2284, decided February 11, 1997.
68. Ibid, at 10.
69. Ibid, at 11.
70. 11 U.S.C. § 554(a) (1988) reads “After notice and hearing, the trustee may abandon any property of the estate that is burdensome to the estate or that is of inconsequential value and benefit to the estate.”
71. 474 U.S. 494 (1986) [hereinafter Midlantic]. Being one of only two Supreme Court decision concerning the conflict between environmental protection and bankruptcy, Midlantic has received considerable attention in the law journals. A few of the articles examining this decision are: Leonard Long, “Burdensome Property, Onerous Laws, and Abandonment: Revisiting Midlantic National Bank v. New Jersey Department of Environmental Protection” (1992) 21 Hofstra L. Rev. 63; Michael O’Shaughnessy, “Case Note: Bankruptcy Trustee’s Abandonment of Burdensome Estate Property and State Environmental Protection Laws: Midlantic National Bank v. New Jersey Department of Environmental Protection, 106 S. Ct. 755 (1986)” (1987) 55 U. Cin. L. Rev. 853; Paige, supra note 2; David Van Epps, “A Fiduciary’s Liability under CERCLA: the Collision of Fundamental Policies-Bey ond Ohio v. Kovacs and Midlantic National Bank v. New Jersey Department of Environmental Protection” (1994) 21 N. Ky. L. Rev. 585; Grace Yeh, “Midlantic National Bank v. New Jersey Department of Environmental Protection: Has the Supreme Court “Abandoned” Section 554 of the Bankruptcy Code?” (1987) 6 UCLA J. Envtl. L. & Pol’y 205.
72. Midlantic, supra note 71 at 499.
73. 188 B.R. 763 (S.D.N.Y. 1995) [hereinafter McCrory]. An excellent discussion of McCrory can be found in: John Ames, Richardo Kilpatrick & Thomas Salerno, “Toxins-R-Us: New Ways to Abandon Contaminated Property, Re-introducing the Conflict Between Bankruptcy and The Environment” 1996 Am. Bank. Inst. J. LEXIS 201.
74. This language comes from a footnote in the majority opinion in Midlantic, supra note 71 at fn. 9, and differs importantly from the body of the opinion which speaks only of protecting the public from “identifiable hazards.” The difference between an identifiable hazard and an immanent and identifiable one is enormous.
75. McCrory, supra note 73 at 769–70. As support for the proposition that a violation of state environmental regulations that poses no threat to public safety does not bar abandonment, the court cited In Re Smith-Douglass, Inc., 856 F.2d 12 (4th Cir. 1988).
76. Richard Aaron, “Bankruptcy Stays of Environmental Regulation: Harvest of Commercial Timber as an Introduction to a Clash of Policies” (1981) 12 Envtl. L. 1 (arguing that Congress never foresaw the conflict).
77. It is important to remember, though, that bankruptcy courts are not Article HI courts, that is, they do not possess the full judicial power of the United States. Rather, bankruptcy courts are Article I courts, created under the Article I, § 8, clause 4 federal bankruptcy powers. Though beyond the scope of the present discussion, there are fascinating questions about the proper role of Article courts in resolving major questions of federal law.
78. Supra note 60 and accompanying text.
79. It is both interesting and instructive to use a specialized legal search engine like LEXIS to identify articles treating these decisions according to the search engine library in which they are housed. LEXIS, for instance, has law reviews categorized according to subject area specialties, two of which are bankruptcy and environmental law. Just the tides of the articles one encounters in the different libraries, when one searches under Chateaugay or CMC, are revealing.
80. Compare, e.g., Catherine Barth, “EPA Runs “CERCLAS” Around Bankruptcy Law: In Re CMC Heartland Partners” (1994) 5 Vill. Envtl. L.J. 203 (praising CMC I for the apparent limitation on dischargeability, but not addressing the significant retrenchment in CMC II & CMC III), Colton, Uehling & Sheehan, supra note 2 (arguing against the ruling in Chateaugay and against the dischargeability of any environmental liabilities), and Philippe Kahn, “Bankruptcy Versus Environmental Protection: Discharging Future CERCLA Liability in Chapter 11” (1993) 14 Cardozo L. Rev. 1999 (arguing in favor of the Court’s refusal in Chateaugay to discharge future costs and arguing that including CERCLA claims in a Chapter 11 reorganization furthers no legitimate bankruptcy purpose and may even undermine bankruptcy goals), with Michael Bloom, “Bankruptcy’s Fresh Start vs. Environmental Cleanup: Statutory Schizophrenia” (1995) 6 Vill. Envtl. LJ. 107 (1995); Kathryn Heidt, “Undermining Bankruptcy Law and Policy: Torwico Electronics, Inc. v. New Jersey Department of Environmental Protection” (1995) 56 U. Pitt. L. Rev. 627 (Spring 1995) (arguing that the court in Torwico went too far in the direction of environmental protection); John Ames, supra note 57 (criticizing Torwico as rampant judicial activism), and Grace Yeh, supra note 71 (answering the question in the affirmative and arguing against the ruling in Midlantic).
81. Compare, e.g., Gary Claar, “The Case For A Bankruptcy Code Priority For Environmental Cleanup Claims” (1992) 18 Wm. Mitchell L. Rev. 29 (arguing for clear statutory modifications in favor of environmental protection), Norman Silber, “Cleaning Up in Bankruptcy: Curbing Abuse of the Federal Bankruptcy Code by Industrial Polluters” (1985) 85 Colum. L. Rev. 870 (arguing that the BRA should be amended to prevent polluters from escaping liability), and Susan Zook, “Superiority Status: The Solution to the Collection of CERCLA Response Costs” (1994) 46 Wash. U. J. Urb. & Contemp. L. 291 (proposing superpriority status for EPA within and without bankruptcy), with Kathryn Heidt, “The Changing Paradigm of Debt” (1994) 2 Wash. U. L.Q. 1055 at 1064 (suggesting amendment of Code is the only legitimate way to address environmental obligations and arguing against such amendment), Daniel Klerman,”Earth First? CERCLA Reimbursement Claims And Bankruptcy” (1991) 58 U. Chi. L. Rev. 795 at 798 (arguing against treatment of CERCLA claims as administrative expenses), and Kenneth Klee & Frank Merola, “Ignoring Congressional Intent: Eight Years of Judicial Legislation” (1988) 62 Am. Bank. L.J. 1 (arguing that the BRA needs to be strengthened in an effort to have judges respect what is clearly the superior law).
82. See, e.g., Dolly Hoffman & Jeffrey Seaman, “A Pragmatic Solution to a Complex Dilemma: a Fundamental Approach to Resolving the Conflict Between CERCLA and the Bankruptcy Code” (1996) 4 Am. Bankr. Inst. L. Rev. 243 (suggesting that Congress should reconsider the allocation of environmental response costs in order to maximize recovery and minimize the conflict between the Code and CERCLA to provide consistent treatment of all relevant parties); Joseph Cistulli, “Striking a Balance Between Competing Policies: The Administrative Claim s an Alternative to Enforce State Clean-Up Orders in Bankruptcy Proceedings” (1989) 16 B.C. Envtl. Aff. L. Rev. 581 (concluding that environmental liabilities are justifiably categorized as administrative expenses under Code); and Timothy Hoffman, “Environmental Protection and Bankruptcy Rehabilitation: Toward a Better Compromise” (1984) 11 Ecology L. Q. 671 (arguing for modest changes in the BRA to give more and clearer protection to some environmental concerns).
83. 146 U.S. 513 (1984).
84. 11 U.S.C. § 1113 (Supp. in, 1985).
85. Carter’s perspective is discussed in more detail in section I, above.
86. Recall that Justice Rehnquist opined in his dissent in Midlantic that the language concerning abandonment is absolute. See, supra notes 59–61 and accompanying text.
87. National Gypsum, supra note 42 at 404.
88. Jensen, supra note 35 at 928 [hereinafter Jensen]. Sadly, only a tortured reading of the cases cited by the court in Jensen supports the proposition that the Supreme Court believes these objectives should be reconciled.
89. H. Hamner Hill, “John Dewey’s Legal Pragmatism” (1997) 13 Southwest Phil. Rev. 113.
90. John Dewey, “Logical Method and Law” (1924) 10 The Cornell L. Q. 17 at 26. Interestingly, this piece also appeared in a philosophy journal, (1924) 33 Phil. Rev. 560, and appears in the collected works in MW 15:65. All citations here are to the Cornell Law Quarterly.
91. Gluck v. Baltimore, 81 Md. 315, 32 A. 515 (1895).
92. Ibid, at 319, 520.
93. Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd, 2 W.L.R. 126 (1961).
94. Supra note 90 at 22.
95. Supra note 5.
96. O. W. Holmes, “The Path of the Law” (1897) 10 Harv. L. Rev. 457 at 469.
97. Supra note 90 at 25.
98. Harry. W. Jones, “An Invitation to Jurisprudence” (1974) 74 Colum. L. Rev. 1023 at 1030.
99. Another option, beyond the scope of this discussion, is to treat environmental clean-up costs as administrative expenses of the estate. Administrative expenses have priority over most other costs and obligations of the estate, so this approach has real appeal. Unfortunately, it is sophistry. Administrative expenses are supposed to be expenses related to preserving or increasing the value of the estate so that creditors will have a larger pie to divide. On any plausible reading of this rationale for giving administrative expenses priority status, it is hard to see how emptying the coffers to pay clean-up costs preserves or increases the value of the estate.
100. The most famous case supporting this principle is Raffles v. Wichelhaus, (1864) 2 H. & C. 906, 159 Eng. Rep. 375 (Ex.). The contract was clear on its face. It called for the shipment of a specified amount of cotton from one port to another on the ship Peerless. Clear as a bell. Only there were at least two ships Peerless, a fact known to only one party to the contract, and it was impossible to tell which one the contract referred to. The contract was construed to the detriment of the party with the superior knowledge.
101. Supra note 98 at 1030.
102. Supra note 90 at 25.