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Volume 26, Issue 2 — February 1996


EPA's Project XL: A Paradigm for Promising Regulatory Reform

by Beth S. Ginsberg and Cynthia Cummis

Much has been said and written about the impediments to environmental and economic progress that the current regulatory system presents.1 The overly prescriptive "technology enforcing" schemes that prior Congresses created are quickly becoming anachronistic. Technological innovation has been greatly inhibited by the constraints imposed by the "one size fits all" command-and-control approach that the U.S. Environmental Protection Agency (EPA) has pursued for the past 25 years. And the increasing complexity of today's environmental problems has outpaced conventional regulation.2 Even the White House has acknowledged the technological constraints of traditional "end-of-pipe" controls—limited as they are by the technology and scientific knowledge available at the time requirements are promulgated.3

Indeed, the persistent pollution problems of today are not nearly as amenable to traditional control schemes as were the major sources of air and water emissions 20 years ago.4 Attaining the last increments of pollution reduction is exorbitantly expensive compared to the initial reductions achieved in the first wave of regulatory and enforcement initiatives. Those interested in reform often criticize command-and-control regulations as inefficient and irrational.5 They argue that the existing system fails to consider costs adequately and more often than not has failed to realize the lofty goals articulated in the underlying statutory mandates. Moreover, because these environmental statutes are artificially centered around a single medium rather than the environment as a whole, they result in unnecessary complexity and regulatory redundancies.6

Nuisance and the Recovery of "Stigma" Damages: Eliminating the Confusion

by Anthony Z. Roisman and Gary E. Mason

Owners of residential property located near, and at risk from, a source of contamination, like owners of property that has actually been contaminated, often find it difficult, if not impossible, to sell their property and usually cannot sell it at a fair market price. From the point of view of prospective buyers, both kinds of property, whether actually contaminated or at risk of contamination, are undesirable. Owners of both types of property witness a decline in their property value and suffer the stress and anxiety that naturally accompanies injury to one's most significant economic asset.

Owners of both kinds of property share three concerns: Will their property or families be exposed to the contamination; will the industrial facility from which the contamination migrated be the source of additional contamination; and will the presence of the contamination change the character of the neighborhood? If any of these questions can be answered in the affirmative or cannot yet be answered, the value of all property in the neighborhood, contaminated and uncontaminated alike, is likely to decline.

The Salvage Timber Sales Law: A Serious Threat to Public Lands Management

by Tara L. Mueller

Despite the recent furor over the environmental damage threatened by the Republican-dominated 104th Congress, the so-called salvage logging bill—a rider on a budget-rescissions bill—so far is one of the few changes to environmental protection programs actually signed into law. One should not assume, however, that the logging rider's ability to survive a presidential veto means that it is an innocuous compromise. To the contrary, if this law (coined the "logging without laws" bill by many environmentalists) is any indication of things to come, it should alarm all but the most hardcore antienvironmental advocates. As National Audubon Society Vice President Brock Evans has put it: "The rule of law is gone in all the Nation's public forests." In addition to the substantial environmental damage being wrought, the law will cost U.S. taxpayers an estimated $500 million to 1 billion, including millions for new road construction.

Just a few months old, the new law already has forced the federal government to release salvage timber sales contracts affecting hundreds of acres of public lands nationwide. The bill may seriously undermine implementation of President Clinton's hard-won "Option 9" Pacific Northwest Forest Plan, recently upheld by a federal district court. Moreover, congressional proponents of the logging bill are keeping the pressure on the federal government to continue to release timber sales at a rapid pace. Members of Congress have formed a Congressional Task Force on Salvage Timber and Forest Health that is closely monitoring federal agencies' compliance with Pub. L. No. 104-19. The Task Force already has held one hearing in Washington, D.C., and several field hearings.

Federal Wetland Mitigation Banking Guidance: Missed Opportunities

by Royal C. Gardner

 In November 1995, five federal agencies—the U.S. Army Corps of Engineers (the Corps), the U.S. Environmental Protection Agency (EPA), the Natural Resources Conservation Service, the U.S. Fish and Wildlife Service (FWS), and the National Oceanic and Atmospheric Administration—issued joint guidance concerning wetland mitigation banking. The guidance's chief virtue is its detailed explanation of the approval process for the establishment and operation of mitigation banks. Its chief flaw, however, flows from the complexity of this approval process. By calling for consensus decisionmaking among myriad agencies, the guidance creates a bureaucratic labyrinth that will discourage the use of mitigation banks. Moreover, the guidance's restrictions on the use of preservation, while not surprising, will limit the environmental and economic utility of mitigation banking. Unfortunately, the agencies have missed an opportunity to defuse public criticism about the unfairness and ineffectiveness of the current wetland regulatory program.