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Volume 31, Issue 7 — July 2001


The Law and Economics of Environmental Information as Regulation

by David W. Case

I. Introduction

Since 1970, "command-and-control" has been the predominate form of regulation used to implement environmental protection policy in the United States.1 This regulatory model is credited with significant successes in achieving improved environmental performance by industry during this period.2 Nonetheless, many environmental stakeholders believe that traditional regulatory approaches have reached a point of significantly diminishing returns. For significant additional progress in environmental protection to be obtained, traditional approaches should be reexamined and new approaches considered.3 Thus, substantial public and private sector effort and resources have been invested over the past several years in developing alternative policy tools to supplement or, where appropriate, replace traditional regulation.4 The goal is to seek more flexible and effective methods of obtaining greater environmental protection at lower cost to government and the regulated community alike.5

During this period, information disclosure has emerged as a key component ofstrategies to promote more effective, less costly alternatives to command-and-control regulation. A number of consensus-building forums, expert panels, and policy reports argue that public distribution of information can serve as an effective policy tool for driving improvements in environmental performance.6 Indeed, in recent [31 ELR 10774] years, the U.S. Environmental Protection Agency (EPA) has established expanded public environmental information disclosure as one of 10 strategic, long-term goals in furtherance of the Agency's mission to protect human health and the environment.7

Is There a Precautionary Principle?

by Christopher D. Stone


Progress has always brought, along with rosy prospects, shadowy perils. The risky byproducts of technology, combined with an enhanced appreciation of hazards, is making us edgier than ever. The "precautionary principle" is being widely proposed as a response. The term has come to be routinely included in multilateral environmental agreements and declarations,1 and is also appearing in local laws2 and scattered judicial opinions.3 Notoriously, however, "the" precautionary principle's meaning—or "meanings," for it has been put forth in so many versions, often with cognate phrasing,4 as to belie the pretensions of the definite article—remains obscure.

The United Nations' General Assembly Resolutionon the World Charter for Nature (1982), in addressing "activities which are likely to pose a significant risk to nature," declares that "where potential adverse effects are not fully understood, the activities shall not proceed."5 But of course the adverse effects of activities are never "fully understood"; taken literally, the directive would be: "Don't do anything."

Bioavailability: On the Frontiers of Science and Law in Cleanup Methodologies for Contamination

by Linda Malone

How clean is clean? National policy on human health and ecological risk assessment has proceeded for some time on a precautionary approach to remediation requirements. Conservative assumptions on "safe" levels of exposure have created underlying assumptions of "clean up to background" levels of contamination as anything less would not guarantee safety for future residential use. These generic assumptions rather than more site-specific assessments predominated, in large part, due to scientific uncertainty in risk assessment and concern that site-specific analysis necessarily entailed more time and expense.

Scientific research on "natural attenuation" (recovery through natural processes) and a more generalized expansion of scientific knowledge has prompted site assessors, responsible parties for cleanup, state agencies, and federal agencies to question the validity of the traditional generic approach in a variety of different contexts. There is more disagreement in these groups over the definition of "bioavailability" than there appears to be in the scientific community as to its overall validity as a scientific precept and methodology for risk assessment. Whatever the precise definition, the essential concept of bioavailability is a site-specific assessment of the risk to human health and the environment from contamination, and remediation to the level necessary to return the site to its actual future use. Assuming sufficient information (a critical assumption), incorporation of bioavailability into the risk assessment process holds the promise of more accurate, cost-effective cleanups with no greater actual risk to human health or ecology than under the traditional generic approach.

Regulatory Negotiation and the Legitimacy Benefit

by Jody Freeman and Laura Langbein

Notwithstanding that only a few agencies use regulatory negotiation1 for a tiny minority of rules, the process attracts a remarkable amount of scholarly attention. While proponents claim that negotiation improves rule quality, reduces transaction costs, and increases legitimacy, critics contend that the process fails to deliver its purported benefits and abrogates an agency's responsibility to execute its delegated functions. Some commentators have gone so far as to argue that consensus-based policymaking of this sort is fundamentally undemocratic.2

To date, these debates have remained largely theoretical. What little empirical evidence exists consists mostly of case studies of particular reg negs, with no comparison to conventional rulemaking. The examples tend to focus, moreover, on narrow questions, such as whether reg neg reduces rulemaking time and cuts costs. Only one empirical study has so far compared conventional and negotiated rules,3 but it focuses on just two aspects of the process—time and litigation rates—and its methodology has been controversial.4 Thus, the majority of claims advanced in the debate over negotiated versus conventional rulemaking remain largely untested, and policymakers still lack guidance on whether and when to use one or the other approach.

The Court, the Clean Water Act, and the Constitution: SWANCC and Beyond

by William Funk

Environmentalists are no strangers to disappointment in the U.S. Supreme Court, but the recent case of Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC)1 is particularly disappointing. First, it might be said that the impact of the opinion, in circumstances in which legislative amendment is virtually impossible, may be the most devastating judicial opinion affecting the environment ever. Second, the opinion by Chief Justice Rehnquist interpreting the Clean Water Act (CWA),2 joined by Justices O'Connor, Kennedy, Scalia, and Thomas, the same lineup that rendered the Court's decisions in United States v. Lopez3 and United States v. Morrison,4 may be said to engage in an exercise of statutory interpretation that displays an uncommon hostility to federal environmental regulation, a hostility betrayed by an interpretation that appears more the product of will than judgment. Third, the implications of the decision's statements regarding Congress' power under the Commerce Clause5 could be potentially staggering for environmental law. This Article will consider each of these claims.


Strategic Lawsuits Against Public Participation and Petition Clause Immunity

by Lori Potter

Anna Weiland was proud of herself. For the first time in her 43 years, she became involved with local government, speaking out for her rights, filing a complaint. . . . Red Canyon Quarry then filed a lawsuit against Weiland. . . . Weiland says she learned a hard lesson. . . .1

Anna Weiland was not thinking of Aristotle, the Magna Carta, or anything remotely close to either of them when she filled out her county's citizen complaint form with her observations about quarry trucks speeding on a private road through her property. She simply availed herself of the local government's procedure for addressing public issues, and it seemed like the right thing to do.

Public participation in government has been encouraged and esteemed by philosophers from Aristotle to Doonesbury, by fundamental political documents from the Magna Carta to the U.S. Constitution, and by procedures and forms at every level of every branch of our government.2 In a representative democracy, public participation is nothing less than the cornerstone of the system—a bedrock principle that connects government to the governed. It legitimizes the system and helps to make government accountable. Public participation ranges from the sublime to the messy, and like Anna Weiland, on a day-to-day basis we rarely think about it in the exalted terms of its intellectual, legal, or policy underpinnings. We simply take for granted what is both obvious and invisible: public participation in government is a creed by which the nation lives.

How to Make Capacity Building Work

by Marcia Gelpe

The Pitfalls of Cross-Cultural Legal Capacity Building

American legal and technical experts regularly travel to other countries to participate in capacity building activities. Supported by governmental and private organizations, these experts invest considerable time and effort trying to assist other countries, many of them emerging democracies, to develop and strengthen their legal systems. In particular, this has become common in environmental law, an area in which American law has a relatively long and successful track record in fostering pollution reduction and resource preservation. American assistance can help another "host" country develop its own regime of environmental law with less effort and greater success than if the host country simply began from scratch.1

Yet, export of American legal expertise is also subject to pitfalls that American experts do not readily recognize. Every legal regime is a product of the political, social, economic, and historical context in which it operates. Each addition to the law also reflects the preexisting legal arrangements. It is difficult for Americans, operating within the American context, to identify the peculiar characteristics of that context or how it has influenced American environmental law. It is also difficult for people who have spent all their professional lives in the United States to see what features of the American political system are peculiarly American, what traits of the American society are not shared by other modern democracies, the ways in which the American economic system is unique to America, the degree to which special features of American history have influenced American law, and how accepted legal doctrines that they view as axiomatic might be peculiar to the United States. American lawyers are so accustomed to the features of the American landscape that they do not easily see how they are absorbed into or reflected in the American laws, nor do they see the unstated assumptions in the American legal system that may be based on these various factors.

The Time Has Come for Reconsidering the Role of Generic Default Assumptions Based on "Conservative Policy Choice" in Scientific Risk Assessments

by Robert C. Barnard, Roger O. McClellan, Donald L. Morgan

The use of default assumptions in risk assessment originated in unusual conditions. In the early 1970s, President Richard M. Nixon had declared a war on cancer. The U.S. Environmental Protection Agency (EPA) was a new agency created to deal with environmental hazards. While cancer was a well-known problem, scientific understanding of its causes were limited, and experimental methods were in an early stage of development. Although cancer was known to represent perhaps as many as 200 diseases involving disturbances in cell growth and death, some scientists proposed to reduce existing knowledge regarding causation to simplified generic statements referred to as "principles" applicable to the entire broad class of cancer.

In its 1976 Interim Procedures and Guidelines, EPA adopted the concept of "General Principles Concerning the Assessment of Carcinogenic Data."1 The interim guidelines created a Cancer Assessment Group to review the data and provide advice on risk assessment. It was in that atmosphere that the default assumptions were developed. Scientific understanding of carcinogenesis has advanced significantly since then, but EPA continues to use the 1970s generic default assumptions. Nevertheless, EPA has sent some mixed signals about continuing their use.

Retroactive Application of a New CERCLA Defense: Superfund Recycling Equity Act

by Carol J. Miller

The 1999 Superfund Recycling Equity Act (SREA) amended the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) by creating an exemption from strict liability under CERCLA § 107(a)(3) & (4) for persons "who arranged for recycling of [certain] recyclable materials."1 This exemption applies to sellers of recyclable material as well as to individuals who arrange for the recycling of qualified materials.2 The SREA is intended "(1) to promote the reuse and recycling of scrap material in furtherance of the goals of waste minimization and natural resource conservation while protecting the human health and the environment; (2) to create greater equity in the statutory treatment of recycled versus virgin materials; and (3) to remove the disincentives and impediments to recycling created as an unintended consequence of the 1980 Superfund liability provisions."3

CERCLA liability historically applies to a broad class of individuals who (1) owned or operated a vessel or facility where hazardous substances were generated, stored, or transported for disposal or treatment (from which there was a release or threatened release of a hazardous substance), or (2) transported or arranged for the transportation of such hazardous substances.4 The essential purpose of CERCLA is to provide "the tools necessary for a prompt and effective response to the problems of national magnitude resulting from hazardous waste disposal [and to require] those responsible for the problems caused by the disposal of chemical poisons [to] bear the cost and responsibility for remedying the harmful conditions they created."5 Joint and several liability, which has been imposed through case law, further enhances the liability potential of parties responsible for the pollution cleanup.6