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Volume 31, Issue 11 — November 2001


Deflecting the Assault: How EPA Survived a "Disorganized Revolution" by "Reinventing" Itself a Bit

by Thomas O. McGarity

The most significant accomplishment for the U.S. Environmental Protection Agency (EPA) during the decade of the 1990s may have been the critical role that it played in the Clinton Administration's successful campaign to deflect the efforts of regulatory reform advocates in the 104th Congress to replace the existing statutory foundation of environmental law with a much less protective regulatory regime. In addition to rebutting the arguments for radical reform directly on their merits (in a way that was confrontational to an unprecedented degree), EPA also effectively outflanked the reformers by resurrecting a moribund "reinvention" program and presenting it as a moderate alternative to radical reform. In classical Clintonian fashion, EPA seized the middle ground by reinventing itself, and the existing statutory framework remained largely intact. The Agency's desperate maneuvering, however, planted the seeds for several experiments in so-called second generation regulation that began to flower during the latter half of the Clinton Administration.

Toward Integrated Approaches to Compliance Assurance

by Mark Stoughton, Jeanne Herb, Jennifer Sullivan, and Michael Crow

Introduction and Overview

The U.S. Environmental Protection Agency (EPA) states that its mission is to "protect human health and safeguard the natural environment — air, water, and land — upon which life depends."1 Most state environmental agencies formulate their missions in similar terms. Because the national environmental statutes remain the primary tools available to achieve these missions, assuring compliance with those laws and the regulations issued under their authority is a key operational goal of EPA and state environmental agencies. The Office of Enforcement and Compliance Assurance (OECA) is the EPA office with primary responsibility for compliance assurance.

There is broad agreement at the federal and state levels that the traditional, exclusive reliance on penalty-based enforcement approaches to compliance assurance is inadequate. The emphasis in the 1990s on a more partnership-focused, less adversarial approach to environmental policy has led to an increased focus on using multiple tools to advance compliance assurance. When EPA consolidated compliance assurance activities into the OECA in late 1994, one stated purpose was to facilitate coordinated and integrated approaches to compliance assurance, both across and within media.2

Let 50 Flowers Bloom: Transforming the States Into Laboratories of Environmental Policy

by Jonathan H. Adler

The State of Environmental Protection

There is a general consensus that the current federal regulatory system is broken and needs repair. Whether or not federal regulations deserve credit for the successes of the past three decades, they are no longer capable of delivering environmental progress at an acceptable cost. "The current system, consisting mainly of end-of-pipe, technology-based regulations, is inadequate for the challenges ahead," observed Karl Hausker, director of the Enterprise for the Environment project, in these pages.1 The most recent report on environmental policy from the National Academy of Public Administration (NAPA), Environment.Gov, concurred: "The regulatory programs in place in this country simply cannot address [current environmental] problems at a price America can afford."2 A recent top-to-bottom review of environmental regulation by Resources for the Future also reached the same conclusions, finding the existing system of pollution control fragmented and inefficient, overly rigid and unnecessarily complex.3 This report found that many existing regulations impose excessive costs to generate meager returns, and that such problems are often due to inadequate information and poor prioritization.

These are hardly exceptional views. The U.S. Advisory Commission on Intergovernmental Relations reports that "federal rules and procedures governing decision-making for protecting the environment often are complex, conflicting, difficult to apply, adversarial, costly, inflexible and uncertain."4 The U.S. Environmental Protection Agency (EPA) alone accounts for nearly 10% of all of the federal government's regulatory activity; approximately one in five new EPA regulations are expected to cost over $ 100 million a piece to implement.5 All told, federal environmental rules cost an estimated $ 148 billion.6 Yet EPA regulations are substantially less cost effective, in terms of dollars expended per life saved, than those of other agencies, in some cases by orders of magnitude.7 Moreover, EPA does a poor job of establishing priorities in accordance with independent evaluations of public health risks and environmental needs.8 When it comes to environmental regulations, Americans pay too much and get too little.

The Rhetoric of Delisting Species Under the Endangered Species Act: How to Declare Victory Without Winning the War

by Federico Cheever

The recovery and delisting of species protected under the Endangered Species Act (ESA) is the coming fashion and no mistake.1 This spring many of us followed with interest the nesting trevails of California condors in Arizona and California as the birds endeavored to lay the foundations for a comeback.2 At the same time, we watched with mixed feelings building pressure to delist gray wolves and the announced delisting of the Aleutian Canada geese.3 The U.S. Fish and Wildlife Service (FWS) has committed itself to "recovery" as the goal for its species protection program.4 Unfortunately, under the provisions of the law and the logic of politics there is great pressure to measure the success of recovery efforts in terms of species delisting. Recovery may have the power to transform the popular image of the ESA from a statute about stopping development into a statute about preserving species.5 However, only delisting can, in theory, decouple protection of biodiversity from the much maligned business of getting government permits and dealings with federal officials.

Like it or not, the common notions of recovery and delisting — bringing species to the point at which they are so numerous and so well distributed in sufficient quantities of perpetually secure habitat that the protections provided by the ESA become unnecessary — will not become a realistic aspiration for any significant number of species any time in the foreseeable future.6 We are still in the middle of a biological crisis; human population, climate change, and wildlife habitat destruction continue to reduce the chances for nonhuman species around the world and on this continent. The numbers of species being pushed to extinction still increases.

Consistent Levels of Protection in International Trade Disputes: Using Risk Perception Research to Justify Different Levels of Acceptable Risk

by Vern R. Walker

Trade treaties have introduced the principle that similar risks should be treated similarly, and that countries must achieve internal consistency in the levels of protection they afford against certain hazards within their territories. The problem is that there is no agreement on when risks are "similar" or when levels of protection are "consistent." The danger is that in resolving these issues, international trade institutions will infringe on the political sovereignty of their Members. This Article proposes a science-based solution. A substantial body of scientific research establishes that a person's judgments about the risk posed by a hazard are influenced by a number of factors, including certain characteristics of the hazard itself, scientific uncertainty in the evidence about the risk, and certain characteristics of the person evaluating the risk. This Article argues that such factors should also be relevant to deciding whether a country is being consistent in setting its levels of protection. International trade institutions that ignore such factors imperil their own success and legitimacy, and do so unnecessarily. General and specific empirical studies can provide a neutral means of deciding whether different levels of protection are risk-based or are merely disguised restrictions on international trade.

Implementing the Precautionary Principle

by Mark Geistfeld

I. Introduction

The precautionary principle has become an increasingly important component of environmental policy, considered by the European Union (EU) to be a "full-fledged and general principle of international law."1 As the precautionary principle has gained prominence, policy analysts have devoted increasing attention to the issue of implementation.2 Nevertheless, the practical implications of the principle remain unclear. The difficulty of formulating environmental policy pursuant to the principle is reflected in the European Commission's recent communication concerning the principle.3 Even European commentators acknowledge it is "doubtful that the communication will go far in clarifying the EU's use of the principle or convincing the [United States] of its validity."4

The vagueness of the principle explains why it so hard to implement. Consider the version of principle invoked in § 15 of the Rio Declaration on Environment and Development:


Centralization and the Commerce Clause

by Adrian Vermeule

There is a crucial, although implicit, empirical assumption in the debate about federal judicial review under the affirmative U.S. Commerce Clause. The assumption, indulged by many different camps in the debate, is that increasing the stringency of Commerce Clause review decreases the centralization of policymaking by shifting policy authority to the states.1 I want to suggest that, on equally plausible empirical assumptions, increasing Commerce Clause review will in fact do just the opposite: it will promote the centralization of public policy at the national level by providing congressional coalitions with ex ante incentives to legislate more broadly, and to create national programs that are more comprehensive, than they would otherwise choose. So those who favor Commerce Clause review because they favor decentralization may have picked a course of action with perverse effects; they may have picked the wrong team. And those who favor Commerce Clause review because they believe the U.S. Constitution commands it should take into account that increased centralization may be a cost of their position.

This view has important consequences for environmental law and policy. Many leading environmental statutes are authorized, if at all, by Congress' power under the Commerce Clause, and many of the most important Commerce Clause cases have involved environmental statutes of one sort or another. Examples are the Supreme Court's recent decision restricting the U.S. Army Corps of Engineers' authority under the Clean Water Act (CWA) on the ground that a broader reading of the statute would have posed serious Commerce Clause questions,2 and the Fourth Circuit's recent heated debate about Congress' Commerce Clause authority to regulate endangered species.3 The view advanced here suggests that proponents of national environmental regulation have less to fear from the revival of Commerce Clause review than is usually thought, while proponents of state authority have less to gain.

The Changing Face of Federal Environmental Criminal Law: Trends and Developments--1999-2001

by David T. Buente and Kathryn B Thomson

According to well-settled legal principles and policies, criminal prosecution under our federal environmental laws traditionally was reserved for the most egregious and flagrant offenses, i.e., for those alleged offenses that constituted willful or knowing violations of the law or demonstrated reckless disregard for the law. Thus, a prosecutor was generally required to prove that the defendant understood that his or her actions ran afoul of the law and that the defendant intended to violate that law before the defendant could be convicted of a federal crime.1 It also meant that the punishment typically seemed appropriate to the crime committed.

This approach to criminal enforcement made sense because, as the federal courts have long observed, not every wrong or perceived violation of moral standards should be treated as a criminal, let alone civil, violation of a legal duty, regardless of whether it is distasteful to a prosecutor or society as a whole.2 Further, it was this measured approach to criminal prosecution under our federal environmental laws that the U.S. Environmental Protection Agency (EPA or the Agency) and the U.S. Department of Justice (DOJ or the Department) generally advocated until the mid-1990s.3

The Business Dilemma: 21st Century Natural Resource Damage Liabilities for 20th Century Industrial Progress

by E. Lynn Grayson, Christine A. Picker, Steven M. Siros, and Stacy Lynn Bettison

Throughout recorded time, many have attempted to rewrite history to soften the harsh realities of the "good old days." Without question, hindsight remains 20/20 in reflecting upon how this country's modern, industrialized enterprises have adversely impacted the environment, including natural resources. The dilemma now facing businesses relates to natural resource damage liabilities resulting from past industrial progress and prosperity. Through the years, these businesses have paid for past wrongs through the remediation of contaminated media. Clearly, U.S. businesses have learned the lesson of environmental protection through the Superfund experience. Despite the environmental protection advances, some federal and state trustees hope that they can rewrite history so that businesses once again pay for their industrial successes of the past.

The term "natural resources" includes "land, fish, wildlife, biota, air, water, groundwater, drinking water supplies and other such resources belonging to, managed by, held in trust by, appertaining to or otherwise controlled by the U.S. . . ., any State or local government, [or] any Indian tribe."1 There is no doubt that over 200 years of development, in all of its various residential, commercial, and industrial forms, has negatively impacted natural resources. As is typically the case, industrial operations of companies continuing to conduct business appear to be the target of federal and state natural resource damage claims. These companies pose easier targets for natural resource damage cases brought by trustees since the long-term, ongoing operations often resulted in more apparent and even documented releases to the environment. While such cases appear straightforward, the regulatory scheme and evidentiary burdens associated with natural resource damage cases are extremely complex. As natural resource damage claims continue multiplying to fill voids left by more mature or stagnant regulatory programs, the legal controversies surrounding the statutory interpretations of the natural resource damage provisions will escalate. In the context of natural resources, all parties do not agree that history easily can be rewritten and natural resources readily restored or replaced.