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