Reflecting on the U.S. Environmental Protection Agency's (EPA's) arrival at its 30th birthday, it is difficult not to anthropomorphize. This idealistic love child born of a strange affair between populist zeal and political ambition¹ has developed into a commanding agency whose decisions reverberate through the economy and significantly affect individual lives. Yet it is still difficult for stakeholders who routinely encounter this mature behemoth to grasp its essential "persona." Charged with the unenviable mission of implementing most of the major environmental statutes and administering hundreds of regulatory programs,² it should come as no surprise that its character would be complicated, and conflicted. Although this mega-agency's internecine struggles over policy and implementation remain hidden from the outside observer,³ the contradicting institutional messages subsequently emerging from EPA causes it to appear to have a severe multiple personality disorder. This tendency is particularly acute when the subject of fairness arises, in particular the vexing distributional issues. At that point, an outside observer may see one of the more benevolent alter egos emerging, one insisting that the Agency's priority is to ensure environmental regulation that is protective and equitable.⁴ As sincere as this sentiment is for many individuals within the Agency, however, seemingly contradictory actions may issue from this institutional Janus. In some instances, for example, Agency actions evidence greater attention to protecting the Agency politically than addressing the plight of overburdened communities.⁵ In addition, high level Agency officials at times articulate an overriding commitment to regulatory relief for industry stakeholders and greater autonomy to state regulators, goals that, when examined closely, potentially undermine the goals of distributional and procedural fairness to heavily impacted communities.⁶ In this respect, more is involved than the public relations spin of an agency maneuvering among special interest groups. Rather, these mixed messages reflect deeper institutional conflicts that impede the Agency's ability to provide comparable levels of environmental protection for all communities without depleting institutional resources or causing undue damage to competing interests. At stake in this clash among agency alter egos is the integration of fairness into environmental regulation, in other words, environmental protection for all.

Endeavoring to assess the successes, failures, and limitations of EPA's various attempts to manage fairness claims over the last 30 years would be a formidable task. Fairness and distribution issues in environmental protection are varied. There is an issue of regulatory fairness that arises when some polluting sectors of the economy go virtually unregulated while others are subject to the torturous ratcheting of ever tighter standards. Closely related to this are property rights issues, fairness claims that arise when private property of the few appears to be constructively confiscated, via regulation, for the benefit of the many. There is a fairness issue that arises when environmental laws are enforced by criminal sanctions that effectively negate the types of mens [31 ELR 10529] rea requirements familiar to criminal law and theory.⁷ Then there is environmental justice, which presents some of the most perplexing fairness and distributional issues to confront the Agency thus far.