Reinventing Environmental Regulation: The Only Path to a Sustainable Future

Karl Hausker

Editors' Summary: In response to the debate on ways in which our environmental protection system should be improved, Enterprise for the Environment, Yale University, and the National Academy of Public Administration each issued "next generation" reports calling for evolutionary change of the current system. In the July 1998 issue of ELR's News & Analysis, Rena I. Steinzor presented a critique of those reports in a Dialogue entitled Reinventing Environmental Regulation: Back to the Past by Way of the Future and concluded that implementing the ideas set forth therein would likely degrade the quality of the environment. In this Dialogue, Karl Hausker responds to Steinzor's critique. It addresses the issues raised in that critique and finds that while it raised legitimate concerns regarding next generation policies, the critique more often mischaracterized the reports' contents in order to support its conclusions. First, the author discusses the reports' recommendations for a goal and milestone approach to environmental regulation. Contrary to the findings set forth in Steinzor's critique, the author argues that the CAA NAAQS and the FWPCA total maximum daily load programs reinforce rather than undermine this approach. The author further argues that the reports' call for better information and data systems is feasible, and he describes some of these systems that are already being built. The author also examines the reports' recommendations for a more integrated, multimedia system and for an expanded set of policy tools. The author concludes that adhering to the next generation of environmental policy advocated in the reports is the only sustainable path to the future.

Karl Hausker is a Senior Visiting Fellow at the Tata Energy Research Institute in New Delhi, India. From 1995-1998, he was Project Director of the Enterprise for the Environment at the Center for Strategic and International Studies. He is grateful for comments on a draft of this Dialogue from Daniel C. Esty, Michael C. Farrar, Rich Innes, DeWitt John, Debra S. Knopman, Andrew D. Otis, William D. Ruckelshaus, and Robert M. Sussman. Any remaining errors are the author's alone.

[29 ELR 10148]

In recent years, there has been a remarkable convergence of ideas on how the nation should improve its environmental protection system. The ideas have emerged from reports by presidential and congressional commissions, consensus-building forums, expert panels, and individual authors.¹ All of these reports call for evolutionary change in the nation's environmental protection system. Without such change, the reports argue, the United States will be unable to meet the environmental challenges of today as well as those looming in the next century.²

Various authors have described this evolutionary change as regulatory "reinvention" or "innovation" or "reform." Other authors have described it as the "next generation" or "second generation" of environmental policy. This Dialogue will adopt "next generation" as an umbrella term for these efforts. Unlike reports or policy dialogues that focus on a particular environmental statute or problem,³ next generation [29 ELR 10149] reports address systemic issues concerning how the nation protects the environment. Systemic issues include strategic planning and management, improvement of the overall regulatory structure, the use of nonregulatory approaches, proper roles for different levels of government, etc. Though each next generation report has its own boundary and scope, most focus on the pollution control programs administered by the U.S. Environmental Protection Agency (EPA) and the states. At the same time, the reports recognize that many other governmental agencies as well as businesses and individuals also have environmental protection responsibilities.

An earlier Dialogue by Rena I. Steinzor commenting on three recent next generation reports concludes that implementing the ideas therein "is likely to result in severe degradation of environmental quality."⁴ Indeed, it would be supremely ironic if the participants in these three next generation policy forums had come up with a recipe for environmental disaster, given their commitment to, and credentials in, environmental protection.

This Dialogue addresses the issues raised by Steinzor and finds that disaster is not looming, but rather that environmental progress requires more of the evolutionary change that is already underway as the next generation of environmental protection takes shape. The current system, consisting mainly of end-of-pipe, technology-based regulations, is inadequate for the challenges ahead, despite its many accomplishments over the past three decades. The challenge for the United States and for all nations is to protect and restore the natural environment while providing for the economic needs of a population that will grow by at least several billion more people in the 21st century. This will require, among other things, that pollution be limited not by the "best available technology" or some variant thereof, but by limits determined by human and ecological health; that industry undergo a "green revolution" resulting in products and processes that generate dramatically less waste and that channel remaining wastes back into production rather than into the environment; and that society find far more effective means of reducing the environmental impact of the day-to-day decisions of billions of people in their roles as consumers, workers, drivers, farmers, etc. We will fail in these tasks unless the environmental protection system evolves in the directions outlined by next generation reports: toward a more performance-based, information-rich, technology-spurring, flexible, accountable regulatory system; toward a broader array of policy tools that promote continuous environmental improvement, including environmental taxes, subsidy reform, emissions trading, and information disclosure; and toward stronger private-sector management systems that internalize the same stewardship ethics embodied in environmental statutes.

Steinzor contends that adhering to the recommendations set forth in the next generation reports would take us "back to the past by way of the future."⁵ This Dialogue argues, to the contrary, that the next generation of environmental policy is the only sustainable path to the future.

The Steinzor Critique of Next Generation Reports

Steinzor presents a critique of three of the most recent next generation reports issued by the Enterprise for the Environment (E4E), the National Academy of Public Administration (NAPA), and the Next Generation Project at the Yale Center for Environmental Law and Policy (Thinking Ecologically).⁶ Steinzor attacks the key recommendations presented in these reports and concludes that their implementation is likely to degrade severely the quality of the environment.⁷ Her Dialogue raises some legitimate issues surrounding next generation policies. More often, however, she mischaracterizes next generation recommendations and then knocks down a strawman of her own creation. The discussion below presents and analyzes her critique.

The Environmental Protection System: Past and Future

Steinzor is a staunch defender of the current system. She observes that the technology-based system was constructed to ensure steady progress toward the lofty goals of the early federal environmental statutes, and that, over time, the statutes became far more detailed and prescriptive.⁸ Steinzor acknowledges that problems in the current system exist, but her diagnosis is very different from next generation reports. Problems she emphasizes include efforts by industry and agriculture to block government initiatives to control pollution, insufficient attention to noncancer health effects in for-mulating regulations, a lack of governmental resources to carry out existing statutory mandates, and lax enforcement of regulations. However, she does not see any need for systemic change in the environmental protection system. Her prescription is to beef up the current system by increasing budgets for federal and state regulators, applying more technology-based regulations, and strengthening the enforcement of existing regulations. She argues that next generation approaches will fail to protect the environment as well as the existing system, and, worse yet, that they will have the pernicious effect of diverting resources from implementing the existing system.

Goals

Steinzor applies some of her strongest criticism to recommendations on environmental goal-setting, and combines this with a general attack on performance-based regulation.⁹ She argues that next generation approaches would shift critical decisionmaking powers from government to industry, would delay urgently needed action and undermine the "precautionary principle," and would merely repeat attempts at goal-based approaches to environmental protection that have already been shown to fail. As demonstrated below, however, these criticisms do not withstand scrutiny.

Steinzor describes the key theme of the three next generation reports as calling for the nation to "… replace the detailed mandates of command-and-control regulation with a performance-based system. This next generation of environmental law would establish goals for environmental protection [29 ELR 10150] … but would leave the countless decisions necessary to meet those targets largely to the discretion of regulated industries."¹⁰ However, the E4E Report is very explicit in distinguishing the role of environmental goals and milestones from the role of policy tools: "Goals and milestones, by themselves, would not be action-forcing mechanisms — policy tools should play that role by applying regulations, incentives, or disincentives to specific segments of society."¹¹ The NAPA Report makes a similar distinction between setting goals and choosing policy tools.¹²

Steinzor seems to understand this distinction,¹³ but blurs it in her combined attack on goal-setting and on performance-based regulation. For example, she poses the question of who should be punished when milestones are missed.¹⁴ But she asks the wrong question. Government should punish violators of specific regulations or other legal requirements regardless of whether a milestone is achieved. The right question is: What should government do when a milestone is missed? The answer is that government should evaluate the reasons and consider changing the stringency and/or mixture of policy tools used to achieve the milestone. Similarly, Steinzor's charge that key decisions would be left to the "discretion" of industry reflects her opposition to performance-based regulations (and other policy tools) that offer flexibility to the regulated community.¹⁵ However, Steinzor's opposition to performance-based regulation is irrelevant to the issue of whether the environmental protection system should engage in a planning and management process that sets environmental goals and milestones. Performance-based regulation is simply one of many policy tools from which the government can choose. The message of next generation reports is twofold: (1) set overall agency goals based on environmental outcomes; and then (2) use whatever policy tools work best under specific circumstances. The E4E Report is clear in its expectation that a mixture of technology-based and nontraditional approaches will coexist and complement each other as the system evolves: "Traditional regulatory mechanisms are by far the most common policy tools currently used and will continue to form the bulwark of the environmental protection system even as new approaches become more widespread."¹⁶ Therefore, Steinzor's assertion that next generation reports call for the wholesale replacement of technology-based regulation with a system that leaves critical discretionary decisionmaking to industry is merely a strawman.

Steinzor focuses much of her criticism on the E4E Report's recommendation that EPA, states, and other agencies engage in a process of setting goals and milestones as a planning and management tool, as a road map for the regulated community to aid in its own planning, and as a means of better communicating with the public.¹⁷ To many readers, the E4E goals and milestones approach seems to apply basic "Management 101" concepts to the environmental protection system. Indeed, every organization needs a process for strategic planning, setting priorities, measuring progress, making course corrections, and articulating and communicating what the organization is trying to accomplish for the benefit of both employees and external stakeholders. The E4E Report concluded that EPA and other agencies with environmental responsibilities could benefit from using a better process to perform these functions. E4E recommended that ambitious long-term goals be set in terms of public health and the quality of the environment the nation seeks. Cost would not be a factor in setting goals. E4E participants recognized that actual environmental compliance costs are nearly always less than early projections, and they saw the role that ambitious long-term goals could play in spurring technological innovation and cost reduction when combined with appropriate policy tools. E4E further recommended that milestones be set to guide how far and how fast society should move toward a goal in a given time period. These milestones would reflect costs, benefits, equity, feasibility, and other factors.

These recommendations of the E4E Report are a lightning rod for Steinzor, though the ideas are largely consistent with the requirements of the 1993 Government Performance and Results Act¹⁸ and with internal EPA initiatives that began long before the 104th Congress.¹⁹ She sees EPA and the states as straining to carry out the plethora of statutory mandates with no significant increase in resources on the horizon.²⁰ In her view, overlaying a next generation planning and management process can only be another burden to these agencies, draining time and money away from implementing existing environmental laws. Next generation authors generally share the view that EPA and the states have mandates that greatly exceed their resources, but they suggest better planning and management processes as part of the solution rather than as a compounding of the problem.

Steinzor also fears that the E4E goals and milestones process will undermine the "precautionary principle" (i.e., the principle that regulators should take prudent, precautionary actions to protect the environment and human health in the absence of certain and definitive science and comprehensive data).²¹ However, a planning and management process that sets environmental goals and milestones does not and should not require certainty in underlying science and data before moving forward. The E4E Report explicitly recognizes this and states that the goals and milestones process should not "stand in the way of timely and prudent action on emergency or emerging environmental problems that merit precautionary steps while additional research is conducted."²²

[29 ELR 10151]

Steinzor also argues that EPA's experiences in implementing standards under the Clean Air Act²³ (CAA) and the Federal Water Pollution Control Act²⁴ (FWPCA) prove that goal and milestone processes are neither viable nor effective.²⁵ As noted in the E4E Report, some provisions in existing statutes do require EPA to undertake processes similar to a goals and milestones approach. Ironically, the two historical examples Steinzor cites demonstrate the value of the goals and milestones approach rather than its failure. Furthermore, they illustrate how regulators are capable of setting effective goals and milestones by using the best available data rather than definitive data.

[] The National Ambient Air Quality Standards (NAAQS) Battle. Steinzor describes the bruising battles over revising NAAQS for ozone and particulates, and she notes, "The simple truth is that [EPA Administrator] Browner's decision followed a next generation blueprint: EPA set health-based standards 'with an adequate margin of safety,' as required by the statute, and then considered cost and feasibility in determining the pace and methodology of implementation."²⁶ Steinzor's criticism is not directed at the outcome of this process — the new NAAQS standards — though she seems uncomfortable with the time lines for implementation. She does criticize various industry positions taken during the NAAQS debate.²⁷ However, the only real criticism she can level at next generation reports based on the NAAQS experience is this: the NAAQS process resembled the E4E goals and milestones process; political battles over the NAAQS revisions were as bitter and protracted as others in EPA decisionmaking; therefore, goals and milestones offer no improvements over the current system.

Taking a broader look at the history of pollution control, however, one would expect Steinzor to celebrate the success of the NAAQS program in improving air quality over the past three decades. A major reason for this success is that NAAQS are essentially environmental goals defined in terms of ambient conditions. EPA and the states have joint responsibility to achieve these ambient standards. For the most part, they have chosen policy tools consisting of technology-based regulations on large point sources and mobile sources. Although these technology-based regulations have generally performed as expected, growth in population, economic activity, and vehicle-miles-traveled have often threatened to overwhelm the effect of these regulations. NAAQS have demanded changes in the stringency and mixture of policy tools over time to cope with these changing circumstances. In addition, by allowing some state flexibility in how to achieve NAAQS, compliance costs have been lower than had EPA been required to apply a single set of policy tools at the national level.

It should surprise no one that revising NAAQS "goals" and selecting timetables for their implementation, which are essentially milestones, are always the subject of fierce struggles — the health and ecological impacts and the compliance costs at stake are substantial. The E4E Report suggested that a two-stage process of setting goals (without respect to cost) and milestones (with cost factored in) could improve the quality of debate over critical policy decisions and mitigate to some degree the conflict over such decisions.²⁸ This separation is somewhat analogous to the widely recognized need for distinguishing risk assessment from risk management. As Steinzor and others observe, this laudable principle is difficult to practice, the latest NAAQS debate being no exception. However, the conflict over the ozone and particulates standards was probably exacerbated by the fact that the CAA required EPA to adhere to a relatively short series of milestones in implementing the new standards, even though the Agency proposed a longer schedule. Responding to fears that a court challenge could force EPA onto the shorter time lines, Congress and the Administration negotiated a codification of the Agency's implementation plan. Court challenges related to the Agency's proposed designation of "transitional" ozone nonattainment areas still may be possible, and statutory references to the old ozone standard may create the possibility of dual standards in some instances. This legal tangle is emblematic of the consequences of Congress entrusting so little discretion to the EPA.²⁹

[] Total Maximum Daily Loads (TMDLs): Failure or Promise? Steinzor's second example of a "failed" goal and milestone process is the TMDL program established by the FWPCA Amendments of 1972.³⁰ The TMDL program requires states to identify waters that are still polluted after implementation of technology standards, to prioritize these waters by accounting for the severity of the pollution, to set the TMDLs of pollutants for such waters based on applicable water quality standards, and to develop implementation plans for limiting pollution to no more than these maximum levels. The TMDL program resembles the NAAQS program in that it is driven by environmental goals defined by ambient conditions. In contrast to the NAAQS program, which is responsible for major improvements in air quality over the past three decades, the TMDL program has been largely dormant until quite recently, as EPA and the states have focused largely on point sources of water pollution.

The reasons for the dormancy of the TMDL program are fairly straightforward and are discussed in an earlier set of ELR Articles by Oliver A. Houck.³¹ In amending the FWPCA in 1972, Congress fully intended EPA and the states to first focus on implementing technology-based regulations on large, point sources of pollution, namely [29 ELR 10152] large industrial sources and municipal wastewater treatment facilities. Congress saw the TMDL program as a means to achieve water quality goals if controls on point sources alone were insufficient.³² The FWPCA also lacked clear deadlines or other action-forcing mechanisms for TMDL implementation. In addition, TMDL analysis involves complex assessment and mathematical modeling of point and nonpoint sources, thus, constraints on resources have been a barrier to implementation. Finally, the potential of the TMDL program to affect powerful political industries such as agriculture and timber has slowed implementation.

The E4E Report recommended that Congress and EPA strengthen efforts to control nonpoint pollution, in part, by revitalizing the TMDL program.³³ Steinzor argues vigorously against relying on the TMDL program and on water quality standards in general as a means of controlling water pollution. Her concern is that the information requirements of such approaches are too great, and warns that the "sorry plight of the TMDL program underscores that concern and should make us cautious about staking future environmental policy exclusively on such a technically demanding approach."³⁴ She states that regulators face a fundamental choice between "a system that offers incentives to achieve water quality standards" and continued enforcement of technology-based standards. Government "lacks the resources to do both well" and, barring dramatic increases in resources, must choose the latter — or "environmental quality will suffer severely."³⁵

Here, Steinzor has once again set up a strawman. Next generation reports do not advocate that water quality standards and incentive-based policy tools should replace technology-based standards. Rather, these new approaches should begin to supplement the successful efforts to reduce point source water pollution over the last three decades.

Steinzor's opposition to greater use of TMDLs is puzzling on several grounds. As argued earlier, the success of the NAAQS program demonstrates that pollution control efforts driven by ambient-based environmental goals can work. The informational and analytic requirements for taking analogous approaches to water pollution are similar in nature. Furthermore, ambient-based water quality standards have been successful in addressing toxic hotspots. Section 304(1) of the FWPCA Amendments of 1987 created TMDL-like provisions for assessing point sources emitting toxins and reducing effluents.³⁶ Houck reviews the evidence on the implementation of § 304(1) and labels it a "relative success."³⁷ He contrasts this with the failure of both the 1972 and 1987 FWPCA amendments to spur significant progress on reducing nonpoint source pollution, observing that purely voluntary approaches are unlikely to work, and that states are much more likely to act when a credible threat exists such that EPA will step in if states do not. Finally, one must ask, if the TMDL program is doomed to fail and is an environmentally harmful diversion of resources from enforcement of technology-based standards, why have environmental nongovernmental organizations (NGOs) filed lawsuits in 26 states citing TMDL requirements?³⁸ Clearly these NGOs see value in spurring implementation of the program.

The TMDL program is better characterized as one of promise, not failure, given the few attempts at its implementation. The rediscovery of TMDLs is part of the broader evolution in environmental policy. The low-hanging fruit largely has been picked and should stay picked (i.e., a wide spectrum of technology-based controls for conventional pollutants from large point sources is in place and should stay in place). That spectrum of controls can be refined to produce additional pollution reductions and reduce compliance costs. Further environmental progress will tend to require better analysis, more information, a greater variety of policy tools, and more focus on small, dispersed, or nonpoint sources. The modeling and data requirements of the TMDL program are still challenging, but less so than 25 years ago. Technological advances in remote sensing, monitoring, and modeling have been dramatic and substantially change the landscape Congress faced in 1972.

At the same time, structural changes in the economy can create opportunities to apply traditional regulatory approaches where they make sense. For example, the livestock industry has evolved and can no longer be considered monolithically as a nonpoint source. Large animal feeding operations have become common and can be regulated as point sources (as EPA proposes to do).³⁹ This is completely consistent with next generation thinking: choose the best policy tool given the circumstances. Different policy tools will be appropriate for "true" nonpoint sources, such as urban runoff or animal waste and fertilizer runoff from small farms. After criticizing every policy tool except technology-based regulation, one is left wondering whether and how Steinzor would reduce nonpoint water pollution.⁴⁰

Information and Data

Next generation reports acknowledge that the improved environmental protection system they call for will require more information and data than is produced by the current system. Steinzor agrees, but argues that the resource requirements of providing this information and data are so huge, and regulators are so burdened already, that the building of next generation information and data systems can only undermine implementation of existing regulations.⁴¹ There may well be no definitive answer to Steinzor's concern. No one can estimate comprehensively the cost of the information and data systems suggested in next generation reports. No one can predict whether agencies will secure some overall budget increases devoted to information and data, whether they will divert resources from other functions, [29 ELR 10153] or whether, as Steinzor fears, the money inevitably will come out of enforcement budgets. However, there are encouraging signs that far better information systems are not only feasible, but are already being built.

The development of low-cost continuous emission monitoring technologies have made emissions trading programs possible at the local, regional, and national levels. Their cost, as well as the cost of ambient monitoring technologies, will continue to decline in the future. Remote sensing capabilities are improving, and cooperation between environmental agencies and the military is resulting in increased access to environmentally relevant data. In addition, the cost burden does not fall exclusively on government — regulated entities have shown a willingness to install more sophisticated information technologies as part of pilot programs that test performance-based regulation.⁴² In a similar leveraging of public and private resources, EPA and the chemical industry have agreed to collaborate on the Chemical Right-to-Know Initiative, which is aimed at filling key information gaps in toxicity information for many high production volume commercial chemicals.⁴³

In truth, there is no alternative to the development of more comprehensive and sophisticated environmental information systems. EPA needs better water monitoring to evaluate the extent to which the sulfur dioxide (SO₂) emissions trading program is reducing acidification in lakes and streams. States need the best possible emissions data to assess the relative contributions of point sources, nonpoint sources, and air deposition to nutrient loadings in order to design effective strategies to improve water quality. EPA needs better monitoring systems for particulates, better data and modeling capabilities to understand ozone formation and transport, and better information on a wide range of potential health effects from exposure to chemicals. However, information is not just for regulators. The public deserves and demands better information on the environmental conditions in their communities (an active and informed public being an essential player now and in next generation policymaking). In general, the nation needs better information systems to address environmental problems that become more complex as the most obvious control measures are taken. A wide variety of activities in this area are underway at the Agency and deserve strong support.

Next generation reports are explicit in stating that the appropriate information systems are a precondition of adopting performance-based regulation or other policy tools.⁴⁴ Thus, Steinzor's concern that "the next generation system will inevitably be undermined by data gaps"⁴⁵ is misplaced. She also is concerned that businesses are not willing to report the information needed for performance-based regulation, citing the E4E Report as stating that "participants did not agree on whether reporting should be mandatory."⁴⁶ This is an egregious mischaracterization of the E4E Report — the language Steinzor cites refers not to the release of pollutants into the environment, but to the reporting of indicators of corporate stewardship (e.g., efficiency in use of energy and water, process yield improvement, etc.).⁴⁷ E4E endorsed provision of such indicators to regulators and the public, but did not reach consensus on whether such reporting should be mandatory. Indeed, many leading firms are developing such stewardship indicators and making the information public. In contrast, E4E participants did agree that the information disclosure requirements for pollutant releases should be expanded.⁴⁸ Furthermore, Chapters 3 and 4 of the E4E Report state clearly that alternatives to technology-based regulation can proceed only if monitoring and other information reporting systems are in place to verify performance.⁴⁹

Next generation authors recognize that the information and data systems that have served the bedrock regulatory system of the last decades are not up to the task of addressing the environmental problems that lie ahead. They acknowledge that better information and data systems will not be built overnight and require a long-term commitment from both public and private sectors.

Evolution of the Regulatory System

Steinzor is an ardent defender of technology-based regulation. Her opposition to performance-based regulation and other policy tools permeates her essay and is addressed elsewhere in this Dialogue. Surprisingly, she devotes only a single paragraph to a subject that receives substantial attention in next generation reports — the fragmented nature of the current regulatory system.⁵⁰ In contrast, her essay repeatedly asserts that next generation policies leave no room for enforcement of regulations, a strawman argument reflecting a complete misreading of the reports.

As discussed earlier, next generation reports see great potential for both environmental improvement and cost savings in moving toward a more integrated, multimedia system. Fragmented, single-media approaches to regulation can miss important opportunities to prevent pollution rather than merely reducing it, and, even worse, can encourage the diversion of pollution from one medium to another. Such approaches can create excessively complex, overlapping, and/or conflicting requirements for regulated entities that needlessly raise compliance costs.⁵¹ These drawbacks have led the European Union to adopt the Integrated Pollution Prevention and Control (IPPC) Directive.⁵² Over the next decade, the IPPC will transform a significant portion of Europe's industrial environmental regulation to a system that issues permits based on a comprehensive evaluation of emissions to all media and establishes an emissions hierarchy to promote pollution prevention as the preferred option.⁵³

[29 ELR 10154]

Pilot programs in integrated, multimedia permitting in the United States have revealed the potential to achieve better environmental protection at lower cost.⁵⁴ For example, a multimedia permitting project in New Jersey allowed facilities to better identify and implement pollution prevention options, to identify and reduce cross-media pollution shifts, and to undertake more comprehensive risk analysis than under the conventional permitting system. The program also delivered economic savings to participating firms by streamlining and consolidating reporting requirements and by establishing emission caps on certain air pollutants while allowing firms operational flexibility within those caps.⁵⁵

While Steinzor is silent on the desirability of an evolution toward an integrated, multimedia regulatory system, she is quite vocal on the subject of enforcement. She states that the problem of enforcement is "carefully avoided by E4E"⁵⁶ and that next generation market-based policy tools purport to eliminate "the need for regulators to police the private sector."⁵⁷ In the last sentence of the essay, she summarizes next generation policies as leading to "controls without enforcement."⁵⁸ These are all inexplicable mischaracterizations of the plain content of next generation reports. The E4E Report clearly states that performance-based regulations must be "enforceable from the regulator's perspective."⁵⁹ The NAPA Report noted the need for "a credible threat of enforcement."⁶⁰ Both Thinking Ecologically and the E4E Report explicitly conclude that alternative compliance agreements, such as Project XL, should be fully enforceable.⁶¹ E4E discussions of nonregulatory policy tools also note the importance of enforcement.⁶²

Steinzor attempts to create a "no enforcement" strawman rather than addressing an interesting and challenging issue raised by next generation reports: how to allocate resources to promote the highest level of compliance with regulations and policies. Resources can be spent on a variety of activities including inspections, enforcement actions, information and education, compliance assistance, etc. Next generations reports acknowledge the importance of traditional inspection and enforcement actions, but recommend that these be part of a broader strategy of promoting compliance. Promoting strong internal environmental management systems and auditing within firms is one approach that can increase compliance as well as create a useful factor to consider in targeting inspections.⁶³ Allocating some resources to compliance assistance activities can increase compliance in some sectors, particularly those made up of smaller businesses that lack information and resources.⁶⁴ An epitomal example is the Massachusetts Department of Environmental Protection's finding that a crucial step in improving regulatory compliance among dry cleaners was to gather the relevant regulations into one user-friendly document and to then translate it into three of the most common native languages of the owners of dry cleaning shops — Korean, Spanish, and Portuguese.⁶⁵

Expanded Set of Policy Tools

Steinzor levels harsh criticism at the three reports' advocacy of the use of an expanded set of policy tools, such as emissions trading, taxes, and subsidy reform, or "market-based remedies" in her lexicon.⁶⁶ After excoriating the three reports for suggesting what she views as politically impossible tax proposals, she concludes by demanding "that proponents of such market-based remedies acknowledge the pragmatic and political realities of actually implementing such alternatives."⁶⁷ This blanket condemnation is inexplicable given the growing use of these next generation policy tools.

One of the most important developments and biggest success stories of the last 15 years of environmental policy making is the emergence of emissions trading as an effective and efficient policy tool. Emissions trading began with the "bubble" pilots in the early 1980s, followed by successful applications to the phase out of lead in gasoline and the curtailment of ozone-depleting chemical production. The 1990s have seen implementation of the RECLAIM (RE-gional CLean Air Incentives Market) emissions trading system in southern California, and the SO₂ allowancesystem at the national level, a program that exceeded expectations in its emissions reductions and economic savings. With confidence built from these and other experiences, EPA introduced "open market" air trading and water effluent trading as part of its 1995 regulatory reinvention package, and has proposed a nitrogen oxide trading system for various eastern and midwestern states.⁶⁸ At the international level, emissions trading is a key element of the Kyoto Protocol to the [29 ELR 10155] Framework Convention on Climate Change, which is designed to reduce greenhouse gas emissions.⁶⁹ Another promising application is underway in California where the Environmental Defense Fund is helping implement a tradable permit program to reduce agricultural runoff.⁷⁰

The track record of pollution taxes at the national level obviously is less impressive, but if one looks beyond the failure of Clinton's proposed energy tax in 1993 (high-lighted by Steinzor) and the conventional wisdom that "no one ever supports new or higher taxes," there are signs that the tax code does indeed hold promise as a means of protecting the environment. First of all, the use of pollution permit fees is widespread, especially in air and water programs, and there are some examples of pollution charges in the United States. Permit fees are widely used to raise program revenue, but rarely used to change behavior. The most prominent example of pollution charges that can influence behavior are solid waste disposal fees implemented at the local level. Arguably, the federal tax on chlorofluorocarbons was high enough to cause behavioral change as well. Certainly the administrative feasibility of pollution charges has been long established.⁷¹

Second, a recent survey of state tax policies by the Center for a Sustainable Economy found over 400 environmentally motivated tax provisions at the state level.⁷² As is true at the federal level, these taxes generally do not conform to the Pigouvian model of a pollution tax set equal to the marginal cost of the pollution externality.⁷³ Instead, they typically aim to charge those who cause environmental burdens (or those who benefit from the problem-causing behavior) with the costs of regulation and cleanup. Many of these taxes or fees are imposed on those who are particular beneficiaries and users of natural resources such as parks or waterways to pay the cost of investments in improving or maintaining them. The survey concludes: "Innovative efforts to integrate regulatory and tax incentive approaches offer the potential of combining the best features of regulatory and incentive approaches into policies that are fairer, more effective, and less burdensome than either approach taken alone."⁷⁴ States are playing their "laboratory" role in testing environmental tax policies just as they are in testing regulatory reinvention. In addition, several European countries are using a variety of environmental taxes, often at levels high enough to influence behavior.⁷⁵

Finally, it is important to keep in mind the life cycle of policy innovation. A significant role for environmental taxes may seem unlikely now, just as emissions trading seemed unlikely 15 years ago. Major policy changes usually require long incubations. They often begin with academic scribbling, move to think tank and NGO discussions and white papers, then on to blue ribbon panels, and finally to the arenas of political battle in agencies and legislatures. Many ideas die along the way but others eventually become law.

Tax shift proposals — revenue-neutral shifts toward environmental taxes and away from taxes on income and savings — have been the subject of considerable NGO attention for years.⁷⁶ In 1996, the President's Council on Sustainable Development recommended the establishment of a national commission that would review the effect of federal tax and subsidy policies on sustainable development, assess opportunities for increased use of pollution taxes while reducing reliance on traditional income taxes, and make recommendations to Congress and the President on tax and subsidy reform.⁷⁷ In 1998, E4E echoed this recommendation with a larger and broader group of stakeholders.⁷⁸ Tax shift proposals are clearly in the "blue ribbon panel phase" of the policy life cycle. Furthermore, some of the groundwork has already been laid for consideration of an environmental tax shift issue by the ongoing debate over a tax shift toward consumption and away from income and savings.⁷⁹ The United States may still be years away from an environmental protection system in which taxes play a significant role, however, many leaders and serious thinkers inside and outside the environmental community are putting effort into advancing these ideas.

In contrast to environmental taxes, subsidy reforms are making significant contributions to improving environmental protection and more are on the horizon. For example, in 1996, Congress made changes in the Conservation Reserve Program that allow the U.S. Department of Agriculture to use it as a powerful incentive for creating buffering "filter strips" along rivers and streams.⁸⁰ The Taxpayer Relief Act of 1997⁸¹ reformed employee-provided parking subsidies — an idea advocated in next generation reports⁸² — and also eliminated tax liability entirely for the vast majority of capital gains on home sales, which will [29 ELR 10156] have the desirable effect of reducing the rate of urban sprawl and the abandonment of central cities.⁸³ In addition, recent progress has been made in reducing road-building subsidies in the budget of the U.S. Forest Service, and momentum has gathered in Congress for reform of the archaic Mining Law of 1872.⁸⁴ Environmental NGOs recognize the importance of subsidy reform as exemplified by the annual "Green Scissors" report and recent legislative and informational activities.⁸⁵ Some subsidies seem impregnable to reform due to powerful political interests, but others are good candidates for reform, and the political climate can change. Progress may be slow, but the political battles are worth the fight, a point that Steinzor does not acknowledge.

In addition to her general attack on emissions trading, taxes, and subsidy reform, Steinzor claims that the three reports "do not identify promising tax or subsidy candidates."⁸⁶ The reports certainly identify a variety of candidates, so one can assume that they simply do not meet Steinzor's definition of "promising." Among the tax and subsidy policies identified are: emission-based vehicle registration fees; toll roads and other transportation pricing policies; gasoline taxes; carbon taxes; fertilizer taxes; various tax policies to encourage optimal fertilizer application, precision farming, and integrated pest management; and electricity and energy pricing that reflects externalities.⁸⁷

There is one policy tool that Steinzor supports in addition to technology-based standards — liability. She draws attention to this very legitimate policy tool, but, in that context, creates another strawman to attack. She accurately notes that the reports contain little discussion of Superfund or the broader issue of liability as a policy tool.⁸⁸ However, she then states: "It is perhaps fair to conclude that the authors … disapprove of prospective liability as a method for protecting the environment, especially Superfund's admittedly harsh liability scheme."⁸⁹ She goes on to speculate that the authors may believe that pollution tax revenue can fund cleanup and restoration in the absence of liability or that the authors did not wish to alienate corporate participants. This invention of motives is breathtaking.⁹⁰ The truth is much simpler: liability under Superfund and under common law are part of the bedrock of the existing environmental protection system on which next generation policies will build improvements, regardless of whether Superfund is ever reauthorized or whether Congress tinkers with its liability scheme. Liability, like enforcement, is integral to any environmental protection system.

The Steinzor Critique — In Sum

As demonstrated above, many of Steinzor's criticisms of next generation reports rely on the creation of strawmen characterizations of the reports' contents. Thus she claims that next generation reports call for the wholesale replacement of technology-based regulation with a system leaving critical discretionary decisionmaking to industry, that next generation policies ignore enforcement, and that thereports disapprove of liability as a policy tool.

In a more constructive vein, Steinzor takes a clear position on the long-running debate over when and how to set environmental goals and on the degree to which the environmental protection system should be driven by ambient conditions versus best available technology. There is certainly room for debate over the best approach to use in dealing with particular environmental problems and the related question of policy thresholds for requiring action. However, Steinzor's blanket condemnation of ambient-based approaches is puzzling given the success of the NAAQS program. The NAAQS program also illustrates the false dichotomy between ambient-based and technology-based approaches — the NAAQS program uses both.

Steinzor's concerns about limited resources at EPA and at the state level are real and must be addressed. However, she poses another false dichotomy: one must choose between next generation policies and preserving the integrity of the existing system. EPA and the states are already steering an appropriate middle course. Steinzor speculates that next generation authors may either be "theoreticians" who are ignorant of the severe fiscal constraints facing regulators, or, under a "more cynical interpretation … that the authors … anticipate that federal and state regulators will relieve the pressure of such intense and conflicting demands by falling further behind in enforcement of the current regulatory structure."⁹¹ The hundreds of participants in next generation projects — former EPA administrators and other former senior EPA officials; governors, mayors, and other state and local officials of both political parties; and responsible leaders from the environmental, business, legal, and academic communities — would beg to differ.

The current environmental protection system, despite its many accomplishments over the past three decades, is inadequate for the challenges ahead. It must evolve in the directions outlined by next generation reports: toward a more performance-based, information-rich, technology-spurring, flexible, accountable regulatory system; toward a broader array of policy tools that promote continuous environmental improvement, including environmental taxes, [29 ELR 10157] subsidy reform, emissions trading, and information disclosure; and toward stronger private-sector management systems that internalize the same stewardship ethics embodied in environmental statutes.

Evolution is often painful and slow, but survival demands it. Almost two decades ago, EPA issued a progress report on "regulatory reform" that described initiatives such as consolidating permits, promoting emissions trading, encouraging the use of third-party auditors, and "making English our official language."⁹² Some of these innovations have taken root gradually and are blossoming now (e.g., emissions trading). Other innovations require continued nurturing and long-term commitment. Clearly, much work remains to be done, and next generation reports chart the only path to a sustainable future.

1. See ASPEN INST., THE ALTERNATIVE PATH: A CLEANER, CHEAPER WAY TO PROTECT AND ENHANCE THE ENVIRONMENT (1996); ENTERPRISE FOR THE ENVIRONMENT, CENTER FOR STRATEGIC & INTERNATIONAL STUDIES, THE ENVIRONMENTAL PROTECTION SYSTEM IN TRANSITION: TOWARD A MORE DESIRABLE FUTURE (1998) [hereinafter E4E REPORT]; THINKING ECOLOGICALLY, THE NEXT GENERATION OF ENVIRONMENTAL POLICY (Marian R. Chertow & Daniel C. Esty eds., 1997) [hereinafter THINKING ECOLOGICALLY]; NATIONAL ACADEMY OF PUBLIC ADMINISTRATION, SETTING PRIORITIES, GETTING RESULTS: A NEW DIRECTION FOR EPA (1995); NATIONAL ACADEMY OF PUBLIC ADMINISTRATION, RESOLVING THE PARADOX OF ENVIRONMENTAL PROTECTION, AN AGENDA FOR CONGRESS, EPA, & THE STATES (1997) [hereinafter NAPA REPORT]; 1 PRESIDENTIAL/CONGRESSIONAL COMM'N ON RISK ASSESSMENT AND RISK MANAGEMENT, FRAMEWORK FOR ENVIRONMENTAL HEALTH RISK MANAGEMENT (1997); 2 PRESIDENTIAL/CONGRESSIONAL COMM'N ON RISK ASSESSMENT AND RISK MANAGEMENT, RISK ASSESSMENT AND RISK MANAGEMENT IN REGULATORY DECISION-MAKING (1997); PRESIDENT'S COUNCIL ON SUSTAINABLE DEV., SUSTAINABLE AMERICA (1996). See also various reports by the National Environmental Policy Institute (NEPI), for example, NEPI, REINVENTING THE VEHICLE FOR ENVIRONMENTAL MANAGEMENT (1995); NEPI, BUILDING PARTNERSHIPS FOR ACCOUNTABLE DEVOLUTION (1996); NEPI, INTEGRATING ENVIRONMENTAL POLICY (1996); and NEPI, ENVIRONMENTAL GOALS & PRIORITIES: FOUR BUILDING BLOCKS FOR CHANGE (1997). See also various studies by individual authors, for example, J. CLARENCE DAVIES & JAN MAZUREK, POLLUTION CONTROL IN THE UNITED STATES (1998); and Debra S. Knopman, Easier to Be Green: A Second Generation Strategy to Improve the Environment, in PROGRESSIVE POLICY INSTITUTE, BUILDING THE BRIDGE: TEN BIG IDEAS TO TRANSFORM AMERICA (1997).

2. Karl Hausker, The Convergence of Ideas on Improving the Environmental Protection System (forthcoming June 1999) (also available at http://www.csis.org/e4e/).

3. See, e.g., NATIONAL COMM'N ON SUPERFUND, FINAL CONSENSUS REPORT OF THE NATIONAL COMMISSION ON SUPERFUND (1994) or OZONE TRANSPORT ASSESSMENT GROUP, EXECUTIVE REPORT (1997).

4. Rena I. Steinzor, Reinventing Environmental Regulation: Back to the Past by Way of the Future, 28 ELR 10361, 10362 (July 1998).

5. Steinzor, supra note 4, at 10361.

6. E4E REPORT, NAPA Report. Thinking Ecologically, supra note 1.

7. Steinzor, supra note 4, at 10362.

8. Id. at 10362-63.

9. Id. at 10362.

10. Id.

11. E4E REPORT, supra note 1, at 12, 14, 16.

12. NAPA REPORT, supra note 1, at 71-74.

13. Steinzor, supra note 4, at 10364.

14. Id. at 10663.

15. Note that performance-based regulation gives flexibility in the means of complying; it does not allow "discretion" on whether to comply. Steinzor's opposition to performance-based regulation is also expressed in Rena I. Steinzor, Regulatory Reinvention and Project XL: Does the Emperor Have Any Clothes?, 26 ELR 10527 (Oct. 1996).

16. E4E REPORT, supra note 1, at 25.

17. Id. at 17.

18. Pub. L. No. 103-62, 107 Stat. 285.

19. See, e.g., U.S. EPA, OFFICE OF POLICY, PLANNING, AND EVALUATION, ENVIRONMENTAL GOALS FOR AMERICA WITH MILESTONES FOR 2005 (Dec. 1996). This report had its roots in an initiative launched under EPA Administrator William K. Reilly.

20. Steinzor, supra note 4, at 10364.

21. Id. at 10362. For a succinct summary of the precautionary principle, see ROBERT CONSTANZA ET AL., AN INTRODUCTION TO ECOLOGICAL ECONOMICS 209-10 (1997).

22. E4E REPORT, supra note 1, at 13.

23. 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA §§ 101-618.

24. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

25. Steinzor, supra note 4, at 10364-71.

26. Id. at 10365.

27. Id. at 10366-67. Steinzor correctly points out some common pitfalls in benefit-cost analysis and argues that benefit-cost analysis should not be determinative of regulatory decisions. Next generation reports differ in the level of detail with which they address benefit-cost issues, but none of these reports contradict the positions she puts forward.

28. E4E REPORT, supra note 1, at 15-16.

29. Many of the thorny statutory issues related to the NAAQS revision are summarized in JAMES McCARTHY, CRS ISSUE BRIEF: CLEAN AIR ACT ISSUES (Congressional Research Service, July 10, 1998).

30. 33 U.S.C. § 1313(d), ELR STAT. FWPCA § 303(d). Steinzor, supra note 4, at 10369-70.

31. Oliver A. Houck, TMDLs: The Resurrection of Water Quality Standards-Based Regulation Under the Clean Water Act, 27 ELR 10329 (July 1997) [hereinafter Houck I]; Oliver A. Houck, TMDLs, Are We There Yet?: The Long Road Toward Water Quality-Based Regulation Under the Clean Water Act, 27 ELR 10391 (Aug. 1997); Oliver A. Houck, TMDLs III: A New Framework for the Clean Water Act's Ambient Standards Program, 28 ELR 10415 (Aug. 1998). See also WATER QUALITY: IMPLEMENTING THE CLEAN WATER ACT (Congressional Research Service, Aug. 3, 1998) (updated).

32. Houck I, supra note 31, at 10335-38.

33. E4E REPORT, supra note 1, at 61-68.

34. Steinzor, supra note 4, at 10369.

35. Id. at 10369-70.

36. 33 U.S.C. § 1314(1), ELR STAT. FWPCA § 304(1).

37. Houck I, supra note 31, at 10342. Steinzor is silent on FWPCA § 304(1).

38. Spencer S. Hsu, Lawsuits Seek to Enforce More Extensive Pollution Limits, WASH. POST, Aug. 9, 1998, at B8.

39. USDA & U.S. EPA, DRAFT UNIFIED STRATEGY FOR ANIMAL FEEDING OPERATIONS (Sept. 11, 1998) (available from the ELR Document Service, ELR Order No. AD-3950).

40. Ironically, Steinzor counsels against using TMDLs to address nonpoint sources, in part, because agribusiness might launch "distracting" litigation if EPA tries to apply TMDLs to nonpoint sources. If EPA's authority is ambiguous, it highlights a need for legislative change rather than a reason to oppose TMDLs. Steinzor, supra note 4, at 10369.

41. Id. at 10364.

42. NAPA REPORT, supra note 1, at 53.

43. U.S. EPA, Chemical Right-to-Know Initiative (last modified Jan. 6, 1999) http://www.epa.gov/opptintr/chemrtk/.

44. See, e.g., E4E REPORT, supra note 1, at 26, 36, 40; E. Donald Elliott, Toward Ecological Law and Policy, in THINKING ECOLOGICALLY, supra note 1, at 180-81.

45. Steinzor, supra note 4, at 10364.

46. Id.

47. E4E REPORT, supra note 1, at 24.

48. Id. at 23-24.

49. Id. at 19, 26.

50. Steinzor, supra note 4, at 10363.

51. See, e.g., DAVIES & MAZUREK, supra note 1, and N. HAIGH & F. IRWIN, INTEGRATED POLLUTION CONTROL IN EUROPE AND NORTH AMERICA (1990), for good reviews of the drawbacks of fragmented, single-media regulatory approaches.

52. See, e.g., ANDREW GOULDSON & JOSEPH MURPHY, REGULATORY REALITIES: THE IMPLEMENTATION AND IMPACT OF INDUSTRIAL ENVIRONMENTAL REGULATION 39-53 (1998).

53. Id.

54. See, e.g., case studies in ENVIRONMENTAL COUNCIL OF THE STATES, PROCEEDINGS OF THE ENVIRONMENTAL REGULATORY INNOVATIONS SYMPOSTUM (Nov. 5-7, 1997), and in U.S. GAO, AN INTEGRATED APPROACH COULD REDUCE POLLUTION AND INCREASE REGULATORY EFFICIENCY (Jan. 1996).

55. U.S. EPA, PUB. NO. 902-R-97-003, MULTIMEDIA POLLUTION PREVENTION PERMITTING PROJECT (1997); Jeanne Herb, Success and the Single Permit, ENVTL. F., Nov./Dec. 1997, at 17.

56. Steinzor, supra note 4, at 10370.

57. Id. 10371.

58. Id. at 10372.

59. E4E REPORT, supra note 1, at 26.

60. NAPA REPORT, supra note 1, at 32.

61. E4E REPORT, supra note 1, at 30; Elliott, supra note 44, at 183.

62. E4E REPORT, supra note 1, at 36, 39-40.

63. Id. at 27-29; Elliott, supra note 44, at 176-77.

64. E4E REPORT, supra note 1, at 31-33. EPA's Office of Enforcement and Compliance Assurance has expanded activities in this area significantly in recent years. See http://www.epa.gov/oeca/mfcac.html.

65. Personal Communication with William Panos, Massachusetts Department of Environmental Protection (DEP) (Sept. 15, 1998). A variety of compliance assistance measures targeted at small businesses are embodied in a recent Project XL agreement between EPA and the DEP to streamline permitting and reporting processes for approximately 5,000 dry cleaners, photo processors, and printers. See U.S. EPA, Project XL Final Project Agreement for the Massachusetts Environmental Results Program, 63 Fed. Reg. 43592 (Aug. 13, 1998).

66. Steinzor, supra note 4, at 10363. Steinzor mistakenly puts self-audits in this category when, in fact, self-audits are a mechanism to promote compliance with any set of regulations or policy tools. She also states "the reports do not suggest any specific criteria for designing effective market-based remedies …." Id. Chapter 5 of the E4E Report does set forth criteria for evaluating when taxes or emissions trading are appropriate and gives examples of each, but the discussion apparently falls short of her standards of specificity.

67. Steinzor, supra note 4, at 10363.

68. U.S. EPA, THE CHANGING NATURE OF ENVIRONMENTAL, AND PUBLIC HEALTH PROTECTION, AN ANNUAL REPORT ON REINVENTION (Mar. 1998) at 18-20 (available from the ELR Document Service, ELR Order No. AD-3693); U.S. EPA, EPA Announces Final Rule to Protect Eastern U.S. From Smog (Sept. 24, 1998) (press release).

69. Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 10, 1997, art. 6 http://www.unfccc/de/fccc/docs/cops.htm.

70. Voluntary Trading Plan Will Reduce California Farm Runoff, 29 ENVTL. DEF. FUND LETTER 2 (Sept. 1998).

71. For additional detail, see OFFICE OF TECHNOLOGY ASSESSMENT (OTA), ENVIRONMENTAL POLICY TOOLS: A USER'S GUIDE (Sept. 1995) [hereinafter OTA, A USER'S GUIDE]. The OTA, after 23 years of providing congressional members and committees with objective and authoritative analysis of complex scientific and technical issues, was abolished in the 104th Congress. Fortunately, a fill library of its reports is preserved at http://www.wws.princeton.edu:80/-ota/.

72. J. Andrew Hoerner, Harnessing the Tax Code for Environmental Protection: A Survey of State Initiatives, 14 STATE TAX NOTES 1209 (Apr. 20, 1998).

73. See, e.g., CONSTANZA ET AL., supra note 21, at 198-200.

74. Hoerner, supra note 72, at 1209.

75. See, e.g., WILLIAM VERMEEND & JACOB VAN DER VAART, GREENING TAXES: THE DUTCH MODEL (1998) and OTA, A USER'S GUIDE, supra note 71, at 122.

76. See, e.g., ROBERT C. REPETTO ET AL., GREEN FEES: HOW A TAX SHIFT CAN WORK FOR THE ENVIRONMENT AND THE ECONOMY (1992), and ongoing work at the World Resources Institute http://www.wri.org; Redefining Progress http://www.rprogress.org; Get America Working! http://www.tedtick.com/jobs/; the Center for a Sustainable Economy (202-234-9665); and the work of writers such as PAUL HAWKEN, THE ECOLOGY OF COMMERCE: A DECLARATION OF SUSTAINABILITY (1993).

77. PRESIDENT'S COUNCIL ON SUSTAINABLE DEV., SUSTAINABLE AMERICA, supra note 1, at 47.

78. E4E REPORT, supra note 1, at 38-39. A tax shift is also part of a future scenario offered by Daniel C. Esty & Marian R. Chertow, A Vision for the Future, in THINKING ECOLOGICALLY, supra note 1, at 236.

79. See, e.g., CENTER FOR STRATEGIC & INT'L STUDIES, THE CSIS STRENGTHENING OF AMERICA COMMISSION, FIRST REPORT 96-102 (1992) and BRADLEY D. BELT, REPLACING THE INCOME TAX (1995).

80. Federal Agricultural Improvement and Reform Act of 1996, 16 U.S.C. § 3839.

81. Pub. L. No. 105-34, 111 Stat. 788.

82. E4E REPORT, supra note 1, at 37-38 n.36; Emil Frankel, Coexisting With the Car, in THINKING ECOLOGICALLY, supra note 1, at 194-95.

83. ENVIRONMENTAL LAW INST., LINKING TAX LAW AND SUSTAINABLE URBAN DEVELOPMENT (1998).

84. 30 U.S.C. §§ 22-54; John H. Cushman Jr., U.S. to Suspend Road Building in Many National Forest Areas, N. Y TIMES, Jan. 10, 1998, at A1; John H. Cushman Jr., House G.O.P. Leaders Agree to End Timber Road Subsidy, N.Y. TIMES, June 4, 1998, at A16; Time for Mining Law Reform, N.Y. TIMES, Aug. 25, 1998, at A16.

85. FRIENDS OF THE EARTH ET AL., GREEN SCISSORS 98 (1998) (available at http://www.foe.org). See also WORLDWATCH INST., THE NATURAL WEALTH OF NATIONS (1998).

86. Steinzor, supra note 4, at 10363.

87. E4E REPORT, supra note 1, at 36-38, 66-67; NAPA REPORT, supra note 1, at 37; C. Ford Runge, Environmental Protection From Farm to Market, in THINKING ECOLOGICALLY, supra note 1, at 208-09, 212-15; Todd Strauss & John A. Urquhart, Energy Prices and Environmental Costs, in THINKING ECOLOGICALLY, supra note 1, at 221-23, 230.

88. The exceptions are Jared Cohon & Bruce Guile, Sorting Out a Service Based Economy, in THINKING ECOLOGICALLY, supra note 1, and Strauss & Urquhart, supra note 87, which have brief liability discussions at 83-85 and 220, respectively.

89. Steinzor, supra 4, at 10371.

90. Consider the logical extension of Steinzor's attack: next generation authors must oppose the provisions of other statutes that received little attention (e.g., the Toxic Substances Control Act and the Federal Insecticide, Fungicide, and Rodenticide Act). They also must oppose other policy tools that received little attention (e.g., "challenge" regulations or deposit/refund mechanisms). Endorsers of the E4E Report who also participated in the 1994 Superfund Commission (e.g., William D. Ruckelshaus, Jonathan Lash, and Robert Burt) would be surprised to hear E4E accused of opposing Superfund liability.

91. Steinzor, supra note 4, at 10364.

92. U.S. EPA, OFFICE OF PLANNING AND MANAGEMENT, REGULATORY REFORM INITIATIVES: PROGRESS REPORT (Oct. 1979).