Copr. © West 2002 No Claim to Orig. U.S. Govt. Works
115 HVLR 553
(Cite as: 115 Harv. L. Rev. 553)
Harvard Law Review
*553 FEDERALISM AND ENVIRONMENTAL REGULATION: A PUBLIC CHOICE ANALYSIS
Richard L. Revesz [FNa1]
Copyright © 2001 Harvard Law Review Association; Richard L. Revesz
TABLE OF CONTENTS
I. Interest Groups and the Demand for Environmental Regulation
A. Assessing the Conventional Theory
Articulation of the Public Choice Claim
Mancur Olson and the Logic of Collective Action
Beyond Olson's Theory
Effects of Centralization on the Relative Effectiveness of
Industry and Environmental Groups
A Path-Dependent Explanation for the Relative Strength of Environmental Groups at the Federal and State Levels
B. Toward More Plausible Public Choice Accounts of Environmental
Rents and Barriers to Entry
Industries with Strong Economies of Scale
Differential Costs on Regulated Firms
Benefits to Producers of Pollution Control Equipment and
Inputs to Production Processes
Interregional Comparative Advantage
Implications for the Public Choice Argument in Favor of
Federal Environmental Regulation
II. State Environmental Regulation Before 1970
III. Current State Environmental Regulatory Efforts
A. Automobile Emissions Standards
Federal and California Programs
Actions by Other States and the Emergence of a National LEV
B. Hazardous Waste Regulation
State Superfund Provisions
Introduction: The Federal Program
Voluntary Cleanup and Brownfield Redevelopment Programs
Voluntary Cleanups and CERCLA's Lost Opportunities
States' Initiatives in Voluntary Cleanups
Land Transfer Statutes
New Jersey's Approach
Actions by Other States
C. Municipal Solid Waste
D. State Environmental Protection Acts
The Federal Program
E. Duty-To-Warn Measures
California's Proposition 65
Comparison with the Federal Regime
Impact on Other Jurisdictions
F. Improvements in the Competence of State Governments
IV. Evaluating the Pattern of State Environmental Measures
A. Federal Pollution Control Measures in the 1990s
B. Explaining the Differences in the Stringency of State Programs
*555 This Article challenges the influential claim that primary responsibility for environmental regulation should be assigned to the federal government because public choice pathologies cause systematic underrepresentation of environmental interests at the state level. The Article first disputes the theoretical argument by advocates of federal regulation who claim that environmental groups are less disadvantaged at the federal level because of economies of scale in organization. The relevant question, instead, concerns the relative effectiveness of environmental and industry groups at the federal and state levels. The Article casts doubt on the plausibility of the conditions under which federal regulation systematically benefits environmental groups. More generally, the public choice account on which supporters of federal intervention rely views environmental regulation as the product of a clash between environmental interests seeking more stringent standards and industrial interests seeking less stringent standards. This account, however, has little explanatory power. More compelling public choice theories do not point in the direction of federal intervention.
Professor Revesz then musters empirical data to challenge the view that states are ineffective environmental regulators. He shows that before the era of extensive federal involvement, which began in 1970, states had in fact made great strides with respect to those air pollution problems that were reasonably well understood. Moreover, at present, states are undertaking significant environmental protection measures that go well beyond what the federal government requires. The Article attempts to explain why some states have taken the lead with respect to protective environmental measures, while the efforts of other states have lagged. By comparing the regulatory actions of the states with the voting records of their members in the U.S. House of Representatives, it suggests that the differences stem from different levels of preference for environmental protection rather than from public choice pathologies.
The dominant view in the legal academy on the allocation of responsibility
for environmental regulation favors federal regulation on the ground that public choice pathologies cause environmental interests to be systematically underrepresented at the state level relative to *556 business interests. [FN1] In the past, other arguments for federal regulation also were prominent in the public policy debate: that states would
"race to the bottom" by offering industrial sources excessively lax standards [FN2] and that states would underregulate as a result of interstate externalities. *557 [FN3] In recent years, however, these arguments have somewhat receded from prominence, and proponents of federal environmental regulation have focused on the public choice justification. [FN4]
This Article refutes the orthodox view concerning the merits of centralized environmental regulation. It shows that the normative analysis underpinning this view is inadequate and presents extensive empirical evidence undercutting the orthodoxy's claims.
The analysis in this Article should interest the principal actors in the regulatory process. For example, to the extent that environmental groups come to understand that federal regulation is not a panacea, they will more effectively focus their energies at the state level. In addition, they will be able to mitigate two increasingly negative features of federal regulation: the threat of federal preemption of more stringent state standards
[FN5] and the unsympathetic reception that their arguments tend to get in the D.C. Circuit, which has primary responsibility for the review of federal environmental policy. [FN6]
The current administration seems committed to pushing for significant decentralization of environmental regulation. [FN7] In addition, the *558 Supreme Court's recent federalism jurisprudence is likely to constrain the federal government's regulatory authority. [FN8] This Article provides a metric by which to assess these emerging developments.
Part I addresses the arguments that environmental groups are relatively more disadvantaged at the state level. It contends that these arguments are not grounded in plausible accounts of public choice and lack empirical support. Most importantly, such accounts fail to explain why there is any environmental regulation at all, either at the state or the federal level. Moreover, even the more plausible public choice explanations do not establish that federal intervention is necessary to compensate for systematic underregulation at the state level.
Part II takes issue with the claim, used as evidence of public choice problems at the state level, that states were inadequate environmental regulators before the era of extensive federal intervention that began in 1970. Instead, during this period, states and municipalities took significant steps to combat those environmental problems that were reasonably well understood at the time.
Part III illustrates how the states have taken the lead, particularly in the 1990s, in attacking by various means a number of important environmental problems. Such state initiatives include automobile emissions standards, hazardous waste regulations, municipal solid waste regulations, requirements for the preparation of environmental impact statements contained in state environmental policy acts, and duty-to-warn measures.
Part IV evaluates this pattern of state environmental action. It shows that the federal government has implemented relatively few environmental initiatives. Instead, innovative approaches have come primarily from the state level, with a number of states taking actions that go well beyond federal requirements. The resulting pattern belies the claim that federal intervention is necessary to correct public choice pathologies at the state level. It suggests that differences in preferences for environmental improvements across the states more plausibly explain why certain states adopt more stringent regulations than do others.
This Article does not make a general claim against allocating responsibility for environmental regulation at the federal level. Quite to the contrary, as I explain elsewhere, there are compelling reasons for federal environmental regulation in certain contexts.
[FN9] Instead, my aim *559 here is limited to questioning the dominant role of the public choice justification.
I. Interest Groups and the Demand for Environmental Regulation
This Part deals with the argument that underregulation at the state level results from the discrepancies in resources and organizational structures between the environmental groups seeking more stringent regulation and the industry groups seeking less stringent regulation. The discussion is thus demand-based. It considers the pressures that groups interested in the stringency of environmental regulation place on the suppliers of such regulation: legislatures and administrative agencies. [FN10]
Section A addresses the central argument of advocates of federal environmental regulation on public choice grounds: that, as a result of economies of scale in organization, environmental groups are less disadvantaged at the federal than at the state level. In turn, section B explains that these public choice arguments--under which regulation is the product of a clash between environmental and business interests--rely on implausible accounts of public choice. It then shows that even more plausible accounts do not support the claim of underregulation at the state level.
A. Assessing the Conventional Theory
1. Articulation of the Public Choice Claim.--The dominant claim among supporters of federal regulation on public choice grounds is that states adopt suboptimally lax environmental standards because industry groups that favor
less stringent regulation are small and cohesive, whereas individuals who support more stringent regulation are a larger and more diffuse group. [FN11] Underregulation thus follows from a central tenet of public choice theory, generally traced to Mancur Olson's influential work. [FN12]
Some commentators do not explain, however, why these public choice problems would be any less
seious at the federal level. [FN13] Others*560 acknowledge that advocates of federal regulation on public choice grounds cannot simply say that state political processes undervalue the benefits of environmental regulation or overvalue the corresponding costs. [FN14] Instead, for the outcome at the federal level to be more socially desirable, either there must be less underregulation at the federal level, or any overregulation that occurs at the federal level must lead to smaller social welfare losses than underregulation at the state level.
A number of commentators assert that there would be less underregulation at the federal level. Daniel Esty states that "[a]t the centralized level, environmental groups find it easier to reach critical mass and thereby to compete on more equal footing with industrial interests." [FN15] He adds that "[t]he difficulty of mobilizing the public in many separate jurisdictions is well established." [FN16] Along similar lines, Richard Stewart states:
In order to have effective influence with respect to state and local decisions, environmental interests would be required to organize on a multiple basis, incurring overwhelming transaction costs. Given such barriers, environmental interests can exert far more leverage by organizing into one or a few units at the national level. [FN17]
Stewart acknowledges that "[c]entralized decisionmaking may imply similar scale economies for industrial firms," although he says that
"these are likely to be of lesser magnitude--particularly if such firms are already national in scope." [FN18] He adds that
"effective representation may be less a function of comparative resources than of attainment of a critical mass of skills, resources, and experience. . . . [A] national forum for decision may greatly lessen the barriers to environmental interests' achievement of organizational critical mass, sharply reducing the disparity in effective representation." [FN19] Likewise, according to Joshua Sarnoff, "'diffuse' environmental interests may be more successful than 'concentrated' compliance interests in affecting legislative and bureaucratic policy at the federal level than at the state level. The relative degree of political success results from economies of scale and reduced transaction costs for organizing and lobbying." [FN20]
2. Mancur Olson and the Logic of Collective Action.--There are several reasons to be skeptical about the soundness of these general claims. Indeed, the starting point for Mancur Olson's analysis [FN21]--on which some advocates of the public choice justification for federal *561 regulation rely without much evaluation [FN22]--implies that acting at the federal level magnifies the free-rider problems that environmental groups face.
In fact, as an initial matter, Olson is skeptical of the feasibility of organizing any groups, regardless of size. He notes that
"any group or organization, large or small, works for some collective benefit that by its very nature will benefit all of the members of the group in question." [FN23] An individual understands, however, that if the other members pay for the collective benefit, this benefit will be provided regardless whether he pays for it as well. But if the other members do not pay, the benefit will not be provided regardless whether the individual pays for it. Under either scenario, then, the individual is better off not paying for the collective benefit. [FN24] Thus, the logic of collective action establishes that a rational individual will not contribute to the formation of groups that provide collective benefits, at least not under a wide range of circumstances.
Olson underscores that this problem is common to both large and small groups:
If this is a fundamental characteristic of all groups or organizations with an economic purpose, it would seem unlikely that large organizations would be much different from small ones, and unlikely that there is any more reason that a collective service would be provided for a small group than a large one. [FN25]
Although these problems are common to both small and large groups, Olson is more hopeful that a small group can provide a collective benefit. In small groups, Olson observes, it is more likely that one member can gain sufficient utility to justify the cost of paying for the benefit by himself. [FN26] Such an outcome is more likely when the potential members are unequally interested in the collective good. [FN27]
Olson also explains why other members of a small group might contribute to the provision of collective goods. He observes that collective goods are likely to have high initial or fixed costs:
"Sometimes a group must set up a formal organization before it can obtain a collective good, and the cost of establishing an organization entails that the *562 first unit of a collective good obtained will be relatively expensive." [FN28] If a member with a large stake in the outcome is willing to pay for the fixed costs (in addition to some variable costs), members with smaller stakes might decide, given their interest in the collective benefit, to contribute to the additional variable costs.
Nonetheless, it is unlikely that even small groups would provide the optimal amount. At the point at which the optimal amount of the collective good is provided, the marginal cost of providing the good is equal to the marginal benefit obtained by the group's members. That is, the cost of an additional unit of a good must be equal to the benefit derived from that unit. For a group to provide the optimal amount of the good, however, the marginal cost and benefit must be equal not only for the group as a whole, but also for each of its members. Any member facing a marginal cost higher than his marginal benefit would not find it in his interest to contribute to the provision of the good. As Olson explains,
"there is no conceivable cost- sharing arrangement in which some member does not have a marginal cost greater than his share of the marginal benefit, except the one in which every member of the group shares marginal costs in exactly the same proportion in which he shares incremental benefits." [FN29] Thus, Olson concludes that
"groups with larger numbers of members will generally perform less efficiently than groups with smaller numbers of members," [FN30] and
"the larger the group, the farther it will fall short of providing an optimal amount of a collective good." [FN31]
Olson devotes some effort to explaining the existence of some large groups given the implication of his theory that
"individuals in a large group have no incentive to organize a lobby to obtain a collective benefit." [FN32] He argues that large groups will be able to provide collective benefits only under two conditions: if they have the ability to coerce their members into paying dues, as do unions or certain professional associations; or if they provide noncollective benefits, such as magazine subscriptions or recreational activities, exclusively to group members. [FN33] But in providing these explanations, which themselves have been the subject of criticism, [FN34] Olson does not undercut his central claim that small groups are likely to perform better in the political process.
*563 Therefore, contrary to the assertions of those who espouse the public choice rationale in support of federal environmental regulation, the theory of collective action does not predict greater success for environmental groups at the federal level. Much the opposite: it suggests that, given the necessarily larger size of groups acting at the federal level, groups will in fact be less effective there than at the state level.
Moreover, the national aggregation of environmental interests results in the loss of homogeneity of interests, thereby further complicating organizational problems. [FN35] For example, environmentalists in Massachusetts may care primarily about air quality, whereas environmentalists in Colorado may care more about limitations on logging on public lands. Other things being equal, state-based environmental groups seeking, respectively, better air quality in Massachusetts and more protection of public lands in Colorado are likely to be more effective than a national environmental group seeking both improvements at the federal level.
Olson sheds light on this question as well. He discusses the case of a "'federal' group," which he describes as
"a group divided into a number of small groups, each of which has a reason to join with the others to form a federation representing the large group as a whole." [FN36] But such a federation would be effective only to the extent that the state groups had common interests. Olson explains that
"socially heterogeneous groups . . . are less likely to agree on the exact nature of whatever collective good is at issue or on how much of it is worth buying." [FN37] As a result, when such heterogeneity is present,
"collective action can become still less likely." [FN38] For this reason, the geographic heterogeneity of environmental interests adversely affects the national aggregation of those interests.
3. Beyond Olson's Theory.--Although academics advocating federal regulation on public choice grounds rely heavily on Olson's theory, [FN39] his work does not explain convincingly why large environmental groups exist at all. Unlike professional associations, environmental groups cannot coerce their members to pay dues. [FN40] They can, however, provide such noncollective benefits as magazine subscriptions *564 and recreational activities. But this explanation has been the subject of strong criticism: for the noncollective benefit to fund the collective benefit, the price charged for the former must be excessively high. A firm that did not also attempt to provide the collective benefit could provide the noncollective benefit more cheaply:
"To put the question in concrete terms, if members of Common Cause contribute to that group's lobbying activities simply because it buys them Common Cause Magazine, why would not some other, comparable magazine, not tied to any lobbying activities, be supplied to that group's membership at a lower price?" [FN41]
More recent works have focused on two other explanations for the existence of large groups. [FN42] One explanation takes issue with Olson's conclusion that members of large groups have a smaller incentive to contribute to the provision of the collective good because they get a smaller share of the benefit. [FN43] Olson's critics argue that this conclusion does not hold in the case of pure public goods--that is, goods that can be enjoyed by one member without reducing another member's enjoyment. [FN44] The technical literature shows that for pure public goods the amount of the good supplied may increase as the number of members in the group rises. [FN45] To achieve this result, however, there must be at least one member in the group willing to contribute to the collective good even if nobody else does. Because of that person's large stake in the outcome, it would not be in his interest to free- ride. [FN46] Russell Hardin, who has extended Olson's analysis, concludes that this condition is not met in the case of
"virtually every large-scale political group that seeks a costly good whose value to each member of the group is a small fraction of its cost." [FN47]
*565 A number of important environmental organizations, however, began with significant support from foundations. [FN48] These foundations may therefore have played the role of the group member willing to contribute to the provision of the collective benefit regardless of the actions of individual members.
A second explanation for the existence of large groups focuses on the moral motivations of group members. [FN49] Hardin maintains, for example, that
"the bulk of the Sierra Club's political activity is supported by public- spirited donations that are not tied to reciprocal exclusive rewards to the donors," and that one cannot
"sensibly construct rational arguments for individual contributions to Sierra Club political activities, at least not rational in the sense of narrowly self-interested." [FN50]
These extensions of Olson's work may explain the existence of environmental groups. They do not, however, suggest (much less establish) a public choice explanation for why environmental groups would do better at the federal level. Once one explains how environmental groups come into being at all, one needs to compare the effects of centralization on the relative strengths of environmental and industry groups--a question taken up in the following section.
4. Effects of Centralization on the Relative Effectiveness of Industry and Environmental Groups.--Advocates of federal environmental regulation who advance the public choice rationale must deal not only with the question whether environmental groups would be effective at the state or federal level, but also, and more importantly, with the question of how the effectiveness of environmental groups in these two fora compares to the effectiveness of the regulated community in resisting *566 their efforts. Public choice advocates largely ignore this question. [FN51]
For many environmental problems, firms with nationwide operations comprise an important portion of the regulated community. [FN52] For such firms, participation in the policymaking process at the federal level does not give rise to any additional free-rider problems or to any reduction in the homogeneity of the relevant interests. Moreover, many industries are sufficiently concentrated that either one or a small number of firms is able to dominate a national trade association, thereby solving the free-rider problem that normally exists when trade associations represent the interests of member firms. [FN53] As Olson himself notes, the national trade associations representing industrial interests are often dominated by a few large firms. [FN54] For example, Olson reports that in the lumber, furniture, and paper industries, 37.3% of the trade associations had a membership of fewer than twenty firms, and that the median membership ranged from twenty-five to fifty. [FN55]
Moreover, the decisionmaking authority in trade associations is not evenly distributed among its members. Typically, the extent to which a member controls an association's actions is linked to the member's contribution level. [FN56] Olson reports a study showing that in almost half the trade associations,
"nearly 50 per cent of the cost is borne by a handful of members." [FN57] In the National Association of Manufacturers, for example, "[a]bout 5 per cent of the membership contribute about half the money." [FN58] As a result, "[a]bout eight tenths of one per cent of [its] members . . . have held 63 per cent of all directorships." [FN59]
In contrast, environmental groups face additional collective action problems at the federal level. [FN60] The relevant inquiry is whether these additional problems are outweighed by the benefits of unity and uniformity in the federal forum. Indeed, at the federal level the clash between interest groups takes place before a single legislature, before a single administrative agency, and, in part as a result of the exclusive venue of the D.C. Circuit over important environmental statutes, before a single court. [FN61]
*567 If one assumes that, beyond a certain threshold, additional resources do not increase a group's probability of success in the political process, and that, at the federal level, this threshold is sufficiently lower than the sum of the corresponding thresholds at the state levels, environmental groups may not be disadvantaged at the federal level even if they would be disadvantaged at the state level. In this case, the economies of scale of operating at the federal level would outweigh the increased collective action problems.
The assumptions behind such a model, however, are not particularly plausible. The threshold concept might hold for certain costs associated with effective participation in the regulatory process. For example, with respect to the regulation of a particular carcinogen, each group might need to hire a scientist to review the regulator's risk assessment. A certain minimum expenditure may secure the services of a competent scientist, and devoting additional resources to the problem may be of little, if any, use. Thus, for costs of this type, the marginal benefit of additional expenditures is zero, or close to zero, regardless of the expenditures of the group seeking the opposite policy outcome.
However, additional resources also make it possible for concentrated industry interests to participate in more proceedings than do dispersed consumer and environmental interests. A number of studies, collected by Steven Croley, all point in this direction. [FN62] An extensive report published in 1977 by the Senate Committee on Governmental Affairs found that organizations purporting to represent the public interest participated in a far smaller number of regulatory proceedings than did the regulated industries. [FN63] In the specific context of environmental regulation, a recent study conducted by Cary Coglianese found, in rulemakings under the Resource Conservation and Recovery Act, [FN64] that regulated businesses participated in 96% of the proceedings and trade associations representing such firms participated in 80%. In sharp contrast, environmental and citizen groups participated in only 12% of the proceedings. [FN65]
But even if the costs of effective participation in the regulatory process were consistent with the threshold model, the structure of other costs is likely to be quite different. For example, with respect to success in the legislative process, a standard public choice account is *568 that the highest bidder prevails. [FN66] Thus, the benefit a party receives from its expenditures is a function of the other party's expenditures. Unless the costs of this type are quite small, the economies of scale of operating at the federal level are unlikely to outweigh the additional collective action problems that exist in the larger forum.
Even under more sophisticated models of the political process, the quantity of resources expended in securing favorable legislation matters. For example, Arthur Denzau and Michael Munger developed a model in which the price at which legislators will supply a policy depends in part on the distaste of voters for that policy. [FN67] Thus, the more distasteful the policy, the more resources legislators demand. But under this model, as under the simpler auction model, an interest group can increase its probability of success by expending additional resources. Thus, this account is inconsistent with the threshold model that underpins the public choice rationale for federal environmental regulation.
5. A Path-Dependent Explanation for the Relative Strength of Environmental Groups at the Federal and State Levels. --Warren Ratliff makes the path- dependent argument that, currently, national groups are strong and state groups are weak. He posits that, as a result, devolution of regulatory authority to the states would have the effect of weakening the environmental movement. [FN68] Ratliff recognizes that the start-up costs are smaller for local groups [FN69] and asks
"if it is easier to found environmental groups at the local level, wouldn't devolution actually help environmental organizers?" [FN70] He then indicates that "[t]he answer to this question might have been 'yes' thirty years ago, when national environmental groups were virtually non-existent" [FN71] but suggests that the answer today should be
"no" because of "the relative weakness of current state environmental groups compared to their national counterparts." [FN72] As a result, devolution would give rise to the need for state-level groups to expend large start-up costs. [FN73]
Ratliff's account that environmental organizations are primarily organized at the national level and that state-based organizations are *569 either nonexistent or largely ineffective bears little relationship to reality. Three observations are particularly relevant.
First, a survey of the ten major environmental organizations revealed that they tend to be federations of state chapters, as Olson's analysis suggests, [FN74] or have significant regional presences. For example, the Sierra Club is divided into sixty-eight chapters in the United States and Canada. [FN75] The Wilderness Society has eight regional offices. [FN76] Environmental Defense has six offices and two additional project offices. [FN77] The National Wildlife Federation has eleven regional field offices and forty-six state and territorial affiliates; [FN78] it describes itself as the
"most 'local' national conservation group." [FN79] The National Audubon Society is made up of eighteen regional and state offices and 508 chapters in the United States, Canada, and Latin America. [FN80] The group plans to have offices in all fifty states; its annual report states that "[c] ommunity-based conservation has always been at the heart of the Audubon movement and . . . will be the prime mover of the conservation movement of the 21st Century." [FN81] Friends of the Earth has a field office in Seattle in addition to its national headquarters; it undertakes projects in conjunction with local environmental organizations. [FN82] The National Resources Defense Council has its headquarters in New York and field offices in Washington, D.C., San Francisco, and Los Angeles. [FN83] The National Parks and Conservation Association has eight regional offices. [FN84] The Nature Conservancy has nine regional offices and fifty-five field offices; it engages in land acquisition projects in each of the fifty states. [FN85] Ducks Unlimited has representatives in every state. [FN86]
Moreover, the local and regional offices of these national environmental groups enjoy increasing decisionmaking authority. For example, a recent study finds that "[t]he National Wildlife Federation, for*570 one, candidly acknowledges that with habitat conservation programs now dominant in endangered species policy, decision-making authority has already shifted from the center to localities." [FN87] The study concludes that "[n]o longer able to influence the substantive rules directly, the national organizations must instead work to ensure a deeply participatory local process." [FN88]
Second, in addition to the national environmental organizations, active state and local organizations are taking the lead on a number of important environmental issues. In particular, the environmental justice movement is made up of a large number of advocacy groups concerned with issues such as the location and cleanup of hazardous waste sites. [FN89] A study by Robert Lowry found that these local groups have different outlooks than their national counterparts. For example, they are not comfortable with technocratic solutions and tend to view environmental problems in moral terms. [FN90] More importantly, these groups strongly favor community-level action. As Luke Cole, a prominent environmental justice advocate puts it:
"The question of where--at what level of government--environmental decisions should be made is one which has been answered clearly and decisively by the Environmental Justice Movement: at the community level." [FN91] That such groups, which first emerged in the early 1980s, [FN92] now have considerable impact on public policy is strong evidence against Ratliff's thesis.
Third, over the last decade, the center of gravity of environmental organizations has shifted away from the national level. Trends in the allocation of foundation grants to environmental organizations reflect this shift. I compared foundation grants made for environmental purposes in 1996 with those made in 1989, the earliest year for which adequate data were available. [FN93] Table 1 shows how the 100 largest *571 grants given in each of these years were allocated between national organizations on the one hand and regional, state, and local organizations on the other.
Table 1. Allocation of the 100 Largest Environmental Grants Made by
Foundations (in Millions of Dollars)
TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE
This table shows that whereas funds allocated to national organizations comprised 57.1% of total national, regional, state, and local grants in 1989, their share fell to 24.4% in 1996. The confidence shown in regional, state, and local organizations by the grant officers of major foundations suggests, contrary to Ratliff's claim, that such groups not only exist but also succeed.
B. Toward More Plausible Public Choice Accounts of Environmental Regulation
The public choice arguments advocating federal environmental regulation have a serious problem.
[FN94] Indeed, the logic of collective action suggests that the small number of concentrated industrial interests, each having a large stake in the outcome of a particular standard-setting proceeding, will overwhelm the large number of environmentally conscious citizens, each having a relatively small stake in the outcome. [FN95] This disadvantage would exist at the federal as well as at the state level. In fact, the logic of collective action makes it difficult to explain why there is any environmental regulation at all. [FN96]
The more plausible public choice explanations for the existence of environmental regulation proceed along altogether different lines. The following five sections discuss the most compelling of these theories. *572 The final section argues that these theories do not support vesting responsibility for environmental regulation at the federal level.
1. Rents and Barriers to Entry. --The impetus for environmental regulation sometimes comes, implicitly or explicitly, from the regulated firms themselves, which can obtain rents and barriers to entry that give them an advantage over their competitors. [FN97] For example, a command-and-control standard that limits a firm's aggregate emissions might cause firms to reduce their output to meet the environmental requirement. This output restriction can push the price of a firm's product above its average cost. As a result, the firm earns a rent--the positive profit defined by the difference between the product's price and its average cost. [FN98]
If new firms can easily enter the market, this rent will dissipate through competition. Environmental regulation, however, also can result in the erection of barriers to entry. For example, new pollution sources are generally subject to far more stringent command-and-control standards than are existing sources. [FN99] Michael Maloney and Robert McCormick show that environmental regulation can generate rents even if firms do not respond to environmental regulation solely by restricting their output. [FN100] Environmental regulation can produce rents even if firms purchase new technology or change the mix of their inputs. [FN101] Maloney and McCormick also muster empirical support for the proposition that environmental regulation can raise an industry's profits. [FN102]
The Montreal Protocol on Substances that Deplete the Ozone Layer [FN103] provides a powerful example of environmental regulation creating rents and barriers to entry. Manufacturers of chlorofluorocarbon (CFC) products, which the international agreement would eventually ban, [FN104] came to support the regulatory program because in the interim they would capture large rents, estimated at between $1.8 and $7.2 billion. [FN105]
*573 2. Industries with Strong Economies of Scale. --Some industries enjoy strong economies of scale. Firms in such industries tend to prefer uniform federal regulation to a patchwork of different state standards. Indeed, having to manufacture different products for sale in different states can destroy these economies of scale. If the economies of scale are sufficiently strong, regulated firms will prefer uniform federal standards even if the nonuniform state standards are less stringent, or if some states choose not to regulate at all.
An early public choice study of environmental regulation found that in the mid-1960s the automobile industry began to advocate federal emissions standards for automobiles. [FN106] At the time, California had adopted state standards, and a number of other states were considering similar legislation. [FN107] The automobile industry then decided to end its opposition to federal standards and became a supporter, provided that such standards preempted any more stringent state standards. [FN108]
3. Differential Costs on Regulated Firms.--Even if environmental regulation does not raise the profits of an entire industry, it can benefit certain firms within thatindustry. [FN109] Regulating an industry has the effect of raising the price of the industry's product. Such a price increase affects all polluters in a similar manner: each benefits in proportion to the number of goods sold. Firms within an industry, however, likely will incur different costs in meeting the regulatory requirements. [FN110] Some firms may be able to adjust their production processes more easily than others. These relative beneficiaries of government regulation are likely to oppose relaxing regulatory requirements and may even favor extending them. [FN111] For example, firms able to reduce the lead content of their gasoline at relatively low cost tended to support regulations that drastically reduced that content. In contrast, *574 firms with less efficient refineries
"vehemently opposed" the regulatory program. [FN112]
4. Benefits to Producers of Pollution Control Equipment and Inputs to Production Processes.--The impetus for regulation sometimes comes from manufacturers of pollution control equipment, environmentally friendly technologies, or inputs to production processes favored by the regulatory regime. [FN113] For example, firms specializing in the cleanup of hazardous waste sites emerged in response to the federal Superfund statute. [FN114] The hazardous-waste cleanup industry has become a powerful advocate of stringent Superfund cleanup standards. [FN115] Similarly, the ethanol industry has strongly supported stricter regulation of gasoline. [FN116] As a result of its efforts, the Clean Air Act's [FN117] clean fuels program provides strong incentives for the use of ethanol, [FN118] and the federal government has provided large subsidies to ethanol producers. [FN119]
Bruce Ackerman and William Hassler provide a well-documented example of this phenomenon in Clean Coal/Dirty Air. [FN120] The book discusses the influence of the high-sulfur coal industry in the passage of the 1977 amendments to section 111 of the Clean Air Act [FN121] dealing with New Source Performance Standards (NSPS) for electric utilities. [FN122] The original NSPS provision requiring the Environmental Protection Agency (EPA) to set emission limitations for categories of new sources dated back to 1970. In 1971, EPA set a standard for electric utilities of 1.2 pounds of sulfur dioxide per million BTU of heat input. [FN123] Utilities could meet this standard by using low-sulfur coal, without employing any treatment technology, or by scrubbing high-*575 sulfur coal. [FN124] As a result, the standard discouraged the use of high-sulfur coal. [FN125]
The producers of high-sulfur coal, located primarily in West Virginia, lobbied vigorously for a statutory provision preventing the use of untreated low-sulfur coal. They prevailed in 1977. Congress required electric utilities to reduce emissions from the burning of untreated fuel by a given percentage, regardless of the fuel's characteristics. In this manner, the high-sulfur coal producers succeeded in imposing costs on the use of low-sulfur coal. Users of high-sulfur coal,however, did not bear any additional costs because they already were required to scrub their coal under the prior regulatory regime. The result was an expansion of the market for high-sulfur coal. [FN126]
5. Interregional Comparative Advantage.--Another explanation for environmental regulation relies on our government's federal structure. Environmental regulation often imposes disproportionate costs on some regions of the country. Regions that incur lower than average costs from regulation become comparatively more attractive to mobile capital, which brings economic benefits such as jobs and tax revenues. Such regions sometimes push for federal regulation that will impose disproportionate costs on other regions.
Peter Pashigian documented an example of this phenomenon in a 1985 article. [FN127] The piece explores Congress's adoption of the Prevention of Significant Deterioration (PSD) program in the 1977 amendments to the Clean Air Act. [FN128] Section 109 of the Clean Air Act required EPA to adopt uniform National Ambient Air Quality Standards (NAAQS) specifying the maximum permissible concentration of various pollutants nationwide. [FN129] Some regions had air quality better than the NAAQS. The statute did not explicitly address whether these regions could degrade their air quality to the level of the NAAQS or whether instead they would be subject to more stringent ambient standards. [FN130]
Congress answered this question in 1977 by adopting the PSD program, which allows only limited degradation in areas that have better air quality than the NAAQS require. [FN131] In contrast, the PSD program *576 does not impose any regulatory requirements on states that violate the NAAQS. As a result, the PSD program negatively affects the ability of states that exceed the NAAQS to attract new firms.
Pashigian set out to determine whether support for the PSD program in the House of Representatives came from representatives of states with strong environmental records or from representatives of relatively dirty states, seeking to impose disproportionate costs on cleaner states. His results support the latter hypothesis. [FN132] Other empirical studies of congressional votes similarly found that legislators from industrialized regions supported environmental regulations that would limit growth in other regions. [FN133]
Conversely, states that have adopted strong environmental standards have an incentive to push for the federalization of those standards. Such federalization imposes no additional costs on those clean states, which must already meet the requirements, but does impose additional costs on other states. Federalization would therefore disadvantage the dirtier states in their competition for mobile capital. [FN134]
6. Implications for the Public Choice Argument in Favor of Federal Environmental Regulation. --The preceding discussion does not seek to establish that public choice explanations for environmental regulation are persuasive across the board. In fact, the diverse nature of the explanations underscores the extent to which they work better as post hoc interest group rationalizations than as ex ante predictions for future regulations. [FN135]
Each of the theories discussed above would justify the implementation of a different form of regulation. For example, if one were trying to predict the nature of some future regulatory program, should one postulate that states with stringent standards will prevail at getting these standards federalized? Will the winner be an industry trade association attempting to capture rents and protect them by using barriers to entry? Or will the form of the regulation be determined by the interests of a small group of firms able to meet the regulation's requirements more cheaply than their competitors? The public choice discipline is not sufficiently well developed to answer these questions.
The claim advanced here is more limited than a call for across-the-board adherence to public choice explanations for environmental regulation. *577 Instead, the argument is that the public choice explanations that have some currency are not those in which the relevant interest groups are environmentalists on one side and industry groups on the other. Olson's work has difficulty explaining even the existence of environmental groups. Even more sophisticated public choice theories cannot convincingly explain how the costs of political participation would make environmental groups more effective at the federal level. [FN136]
This discussion is not meant to suggest that environmental groups are irrelevant to the regulatory process. In fact, the literature contains examples of
"Baptist-bootlegger" coalitions, in which the environmental groups, the "Baptists," have cooperated with polluters, the
"bootleggers," to obtain environmental regulation through the political process. [FN137] Under Prohibition, those with
"good" motives, who sought to ban drinking, allied themselves with those with
"bad" motives, who sought higher prices for their liquor. Similarly, groups interested in environmental protection sometimes have interests coextensive with firms seeking to increase their profits. Ackerman and Hassler provide a classic example of this phenomenon: West Virginia coal producers interested in expanding the market for their products joined forces with Western environmental interests seeking, among other goals, protection of visibility across the Grand Canyon. [FN138]
But under this Baptist-bootlegger dynamic, as opposed to the Olsonian David- Goliath one, it is not clear whether environmental interests will systematically fare better at the federal or at the state level. In fact, the explanations discussed in the preceding sections point in opposing directions. When states invoke the federal regulatory apparatus to impose differential costs on other states, the result is more stringent environmental regulation than in the absence of federal legislation. In contrast, when industry seeks preemption of state standards, less stringent regulatory standards in the affected states generally result. [FN139] Finally, it is not clear from the current academic literature whether regulated firms or industries can obtain more stringent environmental regulations at the state or at the federal level.
To conclude, the claim advanced here does not depend on accepting public choice explanations for environmental regulation. Some *578 commentators are skeptical of the explanatory power of such theories. [FN140] But a public choice call for federal environmental regulation must have as its premise some public choice theory; otherwise, one would simply assume that the states, like the federal government, seek to promote the public interest. The limited claim advanced here is that the more plausible public choice theories, as opposed to those relied upon by advocates of federal environmental regulation, establish neither that states would underregulate in the absence of interstate externalities nor that federal regulation would decrease the resulting social welfare losses. [FN141]
II. State Environmental Regulation Before 1970
Public choice arguments for federal environmental regulation rest in part on the empirical claim that states largely disregarded environmental problems before 1970, the year Congress enacted the first major federal statutes. [FN142] Before evaluating the situation in 1970, it is important to stress that at that time the deck was stacked against state regulation. As noted below, the federal government is better suited than states to provide scientific information about the adverse health and environmental effects of various pollutants, because of the economies of scale in developing such information. [FN143] Before 1970, the federal government did comparatively little in this area, [FN144] and it probably continues to underinvest in such scientific information even today. [FN145] The states may not have regulated significantly because they lacked this information. Regardless, the view widely held in the legal literature that the states ignored environmental problems before 1970 *579 is simply not correct. The most extensive research, which focuses on air pollution, shows clearly that states and municipalities were making considerable strides before the federal regulatory era. In particular, the number of states, counties, and municipalities with regulatory programs to control air pollution was increasing rapidly, and the concentrations of important air pollutants were falling at significant rates.
Chicago and Cincinnati adopted the first municipal regulations of air pollution in 1881. [FN146] A comprehensive survey of state and local air pollution control found that the number of municipalities with effective controls on air pollution rose to 40 in 1920, 52 in 1940, 84 in 1960, and 107 in 1970, and that the number of counties with such controls rose from 2 in 1950 to 17 in 1960 and 81 in 1970. [FN147] Jurisdictions that had passed laws and ordinances but had failed to implement or enforce them are not included in these figures. [FN148] For instance, in 1940 there were about 200 municipalities with air pollution ordinances, but the survey included only the 52 with operating smoke abatement agencies. [FN149]
Pittsburgh provides an instructive example. At the turn of the century, probably no city in the United States was more closely associated with heavy smoke, poor visibility, and dark days. [FN150] The city passed a number of smoke control ordinances in the 1890s and early 1900s, but they were weakly enforced and generally unsuccessful. [FN151] In 1941, however, Pittsburgh passed an effective smoke control ordinance that triggered an important shift from bituminous coal to the use of smokeless fuels. [FN152] The effect was a dramatic increase in visibility. [FN153]
Like municipalities, states engaged in considerable pre-1970 regulation. In the 1910s, state efforts at regulation sought to control black smoke in metropolitan areas. [FN154] By the 1950s and 1960s, the smoke problem had been greatly ameliorated as a result of changes in fuel use, spurred in some cases by municipal programs such as Pittsburgh's. In 1951, Oregon became the first state to create a state air *580 pollution control agency with broad jurisdiction. California followed in 1957 with a regulatory program for automobile emissions. [FN155]
By 1960, eight states had general air pollution control laws; another nine had undertaken measures to control air pollution under their general public health laws; and eight others had authorized local air pollution control agencies to transcend municipal boundaries in their regulatory efforts. [FN156] By 1966, ten states had adopted at least some ambient air quality standards, which covered fourteen substances as well as deposited matter. [FN157] In addition, six states had emissions standards covering some stationary sources. [FN158]
State efforts to reduce air pollution received a boost from the passage of the Clean Air Act of 1963, [FN159] one of the predecessors of the modern federal regulatory regime. Though the Act did not impose regulatory requirements, it made grants-in-aid available to states that adopted air pollution control measures. Perhaps as a result of these incentives, the number of states with regulatory measures increased from eleven in 1963 to fifty by 1969. [FN160] One commentator has deemed these incentives, rather than the extensive federal regulatory involvement pursuant to the Clean Air Act of 1970,
"the most significant result of federal air pollution control legislation." [FN161]
Three studies have attempted to quantify improvements in the ambient air quality levels for sulfur dioxide and particulates before 1970. The studies focused on these two contaminants because scientists understood their adverse health consequences before the 1970s. [FN162] Robert Crandall of the Brookings Institution conducted the first of the studies, using data compiled by the Conservation Foundation. [FN163] Crandall found that sulfur dioxide concentrations fell by 11.3% per year between 1964 and 1971 (before an active federal role in air pollution control), but fell by only 4.6% per year in the 1970s (in the era of federal regulation). Similarly, the average concentrations of total suspended particulates fell by 2.3% per year between 1960 and 1971, but fell by only 0.6% per year from 1972 to 1980. [FN164] Crandall concluded that
"pollution reduction was more effective in the 1960s, before there *581 was a serious federal policy dealing with stationary sources, than since the 1970 Clean Air Act Amendments." [FN165] This conclusion is controversial because the first reduction in pollutant levels may have been easier to achieve than subsequent reductions, but Crandall's study nonetheless underscores the degree of improvement before the era of federal environmental regulation.
Paul Portney conducted the second study for Resources for the Future, based on data compiled by EPA. [FN166] Portney found that ambient levels of sulfur dioxide fell by an aggregate of 50% between 1966 and 1971 (8.5% per year) and that ambient levels of total suspended particulates fell by an aggregate of 22% between 1960 and 1970 (2.0% per year). [FN167] Portney concluded that "[t]hese data . . . call into question one of the fundamental premises behind the [Clean Air Act]--that states and local governments would never impose the controls necessary to achieve healthful air." [FN168]
The final study appears in a book by Indur Goklany, [FN169] based on some of Goklany's prior work in this area. [FN170] Using data compiled by the Council on Environmental Quality (CEQ), Goklany found that ambient air quality levels for sulfur dioxide fell 38.8% between 1962 and 1969 (5.5% per year). [FN171] In contrast, using statistics compiled by EPA, Goklany found that these ambient concentrations declined at a slower rate after the beginning of extensive federal regulation. The total decline between 1974 and 1980 was 25.6% (4.3% per year). Subsequently, the rate of improvement went down substantially. [FN172] Goklany also reviewed different sources of CEQ data concerning suspended particles. He found that their concentration in urban areas decreased 15.7% between 1957 and 1970 (about 1% per year). [FN173]
It is not surprising that the pre-1970 improvements were particularly pronounced for sulfur dioxide and total suspended particulates. *582 Goklany has studied the timeline for the reduction of pollutants currently regulated by NAAQS under the Clean Air Act. For each pollutant, he determined a
"period of perception," which he defined as "the period during which a substance in the air gains sufficient notoriety to be perceived as an air pollutant by the public and, perhaps more importantly, by policymakers." [FN174] Goklany also determined a
"time of federalization" for each pollutant--the date when the federal government assumed principal regulatory authority over the pollutant. [FN175] Whether the states were dragging their feet on pollution control should be judged primarily by their efforts to control those pollutants for which there was sufficient time, between the period of perception and the time of federalization, to implement a state regulation. Of the pollutants Goklany studied, only particulate matter and sulfur dioxide were perceived as outdoor air pollutants before 1950. [FN176] For the other pollutants the period of perception was later, perhaps too close to federalization to give meaningful insight on a state's performance. [FN177] Perhaps the states should have tried to understand the adverse health effects of other pollutants earlier. But, as I have indicated elsewhere, there are strong economies of scale in developing and compiling scientific evidence on the adverse health effects of pollutants. [FN178] Moreover, free rider problems stand in the way of states' developing this evidence themselves. The federal government thus has a comparative advantage in determining the adverse consequences of pollutants.
These three studies, which suggest that states responded vigorously to those air pollution problems that were understood at the time, are consistent with the leading analysis of the genesis of federal environmental regulation. [FN179] That study maintains that the 1965 and 1967 predecessors to the Clean Air Act of 1970 were responses to industry pressure for federal intervention that would discourage states from setting more stringent (and nonuniform) standards. [FN180] As already indicated, the automobile industry became a supporter of federal standards as a way to avoid disparate and potentially more stringent state standards. [FN181] Similarly, the high-sulfur coal industry
"acquiesce[d] in federal legislation in the hope that it might dampen local legislative initiatives" [FN182]--the very initiatives responsible for sulfur dioxide reductions *583 in the 1960s, as identified in the Crandall, Portney, and Goklany studies. [FN183]
III. Current State Environmental Regulatory Efforts
If state political processes exhibit public choice pathologies that undermine the effectiveness of environmental groups, state governments should exhibit less concern about environmental problems than does the federal government. This Part, however, shows that many states are implementing innovative protective measures that go well beyond what the federal government requires. Sections A through E deal, respectively, with state involvement in automobile emissions standards, hazardous waste regulation, municipal solid waste, state environmental protection acts, and duty-to-warn measures. Section F briefly assesses the improvements in state governments' competence over the last few decades.
Not every state is active in environmental regulation. The citizens of some states may prefer more lax environmental regulation than the federal government requires and may therefore have no reason to adopt additional environmental programs. But many states are adopting innovative forms of regulation and imposing costs on in-state firms. The discussion in these sections should be regarded as illustrative rather than encyclopedic; states are also innovating and undertaking measures that are not federally compelled in other areas, such as groundwater quality [FN184] and wetlands protection. [FN185]
*584 Before turning to the substantive programs, however, a few notes of caution are in order. First, the mere existence of state environmental statutes is not necessarily evidence of state environmental concern because the statutes may be merely symbolic and not enforced. But in the case studies presented below, the state programs in fact caused actual environmental improvements or, at the very least, imposed costs on in-state firms.
Second, state interventions that are federally compelled, such as the preparation of state implementation plans (SIPs) under the Clean Air Act, [FN186] are not good evidence of state environmental concern. Therefore, the state programs discussed below have all been implemented on a discretionary basis.
Third, state regulation that imposes costs on out-of-state actors to confer a competitive advantage on in-state industry--for instance, product regulation whose burden falls primarily on remote producers--is not inconsistent with the public choice arguments favoring federal regulation. Industry groups would welcome such state regulation as a way of obtaining a competitive advantage. The primary burden of the state programs discussed below, however, is borne by actors in the states enacting the regulatory controls. [FN187] Of course, even process regulation of in-state sources externalizes some costs to out-of- state consumers who buy products manufactured by these sources. But evidence of effective state regulation of in-state firms undercuts the argument*585 that states underregulate such firms because of public choice problems.
Fourth, the review of state environmental programs that follows does not purport to establish that all states--or even necessarily most states--have taken aggressive and innovative measures to address environmental problems. Only some states have taken the lead. Part IV explains that environmental leadership appears to have come from states with stronger preferences for environmental protection.
In summary, the fact that states are adopting environmental programs that are not federally compelled--particularly ones that impose costs on in-state actors--is evidence against the simplistic public choice argument for federal intervention. The robustness of the state programs analyzed in the following sections shows that at least some states are not at a disadvantage with respect to environmental regulation.
A. Automobile Emissions Standards
1. Federal and California Programs.--California pioneered the regulation of automobile emissions. Its regulatory regime dates back to 1960, when the state enacted its motor vehicle pollution control program. [FN188] The first emission control requirements on automobiles registered in California took effect in 1965. [FN189] The federal government, however, did not regulate automobile emissions until the passage of the federal Motor Vehicle Air Pollution Control Act of 1965. [FN190] The first set of federal controls became effective in the 1968 model year. [FN191]
The automobile industry feared that inconsistent state regulation would compromise the economies of scale in automobile manufacture. [FN192] Congress, prompted at least in part by automobile industry lobbying, [FN193] provided in the 1967 Air Quality Act that federal automobile emissions limitations would preempt not only any less stringent state standards, but also any more stringent state standards. There *586 was one exception, however: California was authorized to have more stringent standards. [FN194]
This basic structure of the federal regulatory program survived the enactment of the first comprehensive federal Clean Air Act in 1970 and the enactments of the Act's comprehensive amendments in 1977 and 1990. The federal automobile emissions standards continue to require uniformity, [FN195] a departure from the standard approach under the Clean Air Act and most federal environmental regulatory provisions, which is to preempt less stringent state standards but to allow states to impose more stringent standards. [FN196] Again, California is the only state allowed to have more stringent standards. [FN197]
Continuing an approach initially adopted in 1977, [FN198] the 1990 amendments authorize other states to choose between the federal standards and the more stringent California standards if they have nonattainment areas--areas that do not meet the NAAQS. [FN199] No state, however, may adopt any automobile emissions standards other than the California or federal ones. The resulting two-standard strategy reflects a compromise between two interests: the desire to protect the economies of scale in automobile production [FN200] and the desire to accelerate the process for attainment of the NAAQS. [FN201]
*587 The 1990 amendments prescribe the emissions standards for four pollutants beginning with the 1994 model year [FN202] and specify that in each subsequent year a progressively increasing percentage of each manufacturer's sales must meet these standards. [FN203] The emission reductions resulting from this regulatory program are considerable. The permissible emissions of nitrogen oxides, for example, in some cases are 69% lower than under the prior regulatory requirements and 90% lower than the uncontrolled levels. [FN204]
But in 1988, before Congress even began to consider these limitations seriously, [FN205] California substantially strengthened its automobile emissions standards. [FN206] To implement these new standards, in September 1990 the California Air Resources Board (CARB) adopted a Low Emission Vehicle (LEV) program for automobiles sold in California. [FN207] Under the LEV program, automobile manufacturers must meet a fleet average requirement for emissions that becomes stricter each year. [FN208]
*588 California's standards are considerably more stringent than the federal standards established in the Clean Air Act's 1990 amendments. EPA estimated that under the national LEV program discussed in the following section, which is not as stringent as California's, emissions would be approximately 70% lower than under statutory standards prescribed in the Clean Air Act. [FN209]
2. Actions by Other States and the Emergence of a National LEV Program.-- After Congress enacted the 1990 Clean Air Act amendments and California adopted its LEV program, other states began to consider the choice between the California standards and the less stringent federal requirements. [FN210] These states included Texas, Michigan, Illinois, and Wisconsin, as well as the twelve northeastern states and the District of Columbia, which comprised the Ozone Transport Commission (OTC), [FN211] an organization established under the 1990 amendments to combat interstate ozone pollution. [FN212]
In October 1991, the OTC states signed a memorandum of understanding providing that each would take steps to adopt the California LEV standards. [FN213] Over the next two years, several states made efforts in this regard, but only Massachusetts and New York adopted the standards. [FN214] Some OTC states delayed action pending challenges to the legality of the Massachusetts and New York programs, [FN215] while *589 others made their adoption of the California LEV standards contingent on the adoption of those standards by other states in the region. [FN216]
By a majority vote of the member states' governors, the OTC can recommend to EPA additional measures to control ozone pollution. [FN217] The Clean Air Act provides that if the EPA Administrator approves such a recommendation, she must require each OTC member (even members that opposed the recommendation) to adopt these additional controls. [FN218] In August 1993, three OTC members--Maine, Maryland, and Massachusetts--petitioned the OTC to recommend the application of California LEV standards to all states within the OTC. [FN219] The OTC approved this petition by a 9-4 vote. [FN220] In January 1995, EPA approved the OTC's recommendation, thereby requiring all OTC members to adopt California's LEV standards beginning in model year 1999. [FN221]
At the same time, however, EPA indicated that it would attempt to broker an agreement between the OTC states and automobile manufacturers to enable the adoption of a national LEV program. [FN222] The agency hoped to facilitate the creation of a mutually acceptable set of national automobile emissions standards. [FN223] EPA acknowledged that the Clean Air Act precluded it from requiring manufacturers to meet more stringent standards before model year 2004; [FN224] it therefore sought the voluntary agreement of automobile manufacturers. [FN225] Throughout *590 the regulatory proceedings, however, EPA stressed that once a manufacturer opted in to the program, the agency could enforce the national standard against that manufacturer like any other binding automobile emissions standard. [FN226] In its approval of the OTC recommendation, EPA indicated that its order requiring the OTC states to adopt the California standards would become effective only if the national LEV program failed. [FN227]
This dual strategy suffered a significant setback in March 1997, when the D.C. Circuit held that EPA lacked authority to require OTC states to adopt California's LEV standards. [FN228] Despite losing this trump card, EPA succeeded in fashioning a national LEV program that shared important features with California's LEV program. [FN229] In two major respects, however, the national LEV program is less restrictive than its California counterpart. First, the fleet average emissions standard for one of the pollutants-- nonmethane organic matter--is 19% higher in the national program: 0.075 grams per mile instead of 0.063 grams per mile. [FN230] Second, the national LEV program does not require Zero Emission Vehicles (ZEVs). [FN231]
In March 1998, EPA declared the national LEV program binding and effective, and announced that manufacturers must meet the program's emissions standards in the northeastern states in model year 1999 and nationally in model year 2001. [FN232] All twenty-three automobile manufacturers that sell cars in the United States entered into the agreement, as did nine OTC states. [FN233] The four remaining OTC states--Maine and Vermont in addition to Massachusetts and New York [FN234] *591 -- adopted the California standards instead. [FN235] EPA has estimated that for 2001 and subsequent model years, emission of volatile organic compounds and nitrogen oxides will be up to 66% and 73% lower, respectively, under the national LEV program than the federal standards would otherwise have required. [FN236]
More recently, thirteen states announced a joint plan in November 2000 to adopt emission limits for truck and bus engines that are far stricter than the current federal standards. [FN237] This group includes not only California and some northeastern states [FN238]--the leaders in automobile emissions standards--but also Georgia, Nevada, North Carolina, and Texas. [FN239] Because these states represent approximately 40% of the market for new trucks, [FN240] manufacturers may respond by adopting the more restrictive standard nationwide, as they eventually did in the case of automobiles. In this regard, the executive directors of both the State and Territorial Air Pollution Program Administrators and the Association of Local Air Pollution Control Officials stated:
"Our hope is [that] with these states joining California, we will create the critical mass that will result in the engine manufacturers deciding to manufacture just one truck model, and it would be a much cleaner truck." [FN241]
3. Interpreting the Motivations of the States.--It can be difficult to determine whether states enact environmental regulations in response to actual environmental concerns or out of the desire to externalize costs or to comply with federal mandates. [FN242] The case of automobile emissions standards poses particular difficulties because of the prominent role of EPA in approving the OTC recommendation and brokering the national LEV program. [FN243] Nonetheless, a careful analysis of these regulatory developments indicates that several states were the primary catalysts for the establishment of stringent national LEV standards. Moreover, these states' actions do not fit the paradigm of jurisdictions' externalizing pollution costs outside their borders, and for the most part their actions did not result from federal requirements.
*592 First, several states took the lead at critical points in the regulatory process. Most importantly, California started the process in the 1960s by adopting its own controls and by providing a strong impetus for the first federal regulatory scheme. [FN244] It took the lead again in 1990 by adopting its LEV program, moving ahead of the federal government in terms of both the timing and the stringency of its standards. [FN245] This pattern continues today; for example, while California implemented more stringent controls through its LEV II program in October 1999, [FN246] the federal government missed a December 31, 1999, deadline for determining whether to strengthen the federal emissions standards.
Following California's lead, Massachusetts and New York were the primary catalysts for the OTC petition that ultimately led to the national LEV program. [FN247] Moreover, the threat that other states would also choose the California LEV standards, as Maine and Vermont ultimately did, [FN248] must have pressured the automobile industry to agree to the national LEV standards.
Second, federal nonattainment provisions did not compel these states to take the lead in automobile emissions standards. Indeed, California's interest in automobile emissions regulation predates not only the nonattainment provisions but also the federal Clean Air Act itself. [FN249] Similarly, it was the member states of the OTC, which owed its existence to the nonattainment status of its member states with respect to ozone, [FN250] that asked EPA to determine that more stringent emissions standards were necessary for the OTC region to move toward compliance. [FN251] Theoretically, these states might have adopted stringent limits on auto emissions to ease the regulatory pressure on stationary pollution sources, and thereby attract industrial firms. But as long as a region remains in nonattainment, any major new pollution source must obtain offsetting emission reductions from existing sources, so that once it begins operation the total emissions in the region decrease rather than increase. [FN252] New pollution sources must also meet strict emissions standards set by reference to the lowest achievable *593 emission rate (LAER). [FN253] These requirements apply to new stationary sources regardless of the stringency of the state automobile emissions standards.
Third, automobile emissions standards are not the type of regulations that are imposed on out-of-state manufacturers to benefit in-state industry. As discussed above, [FN254] such environmental regulations, however stringent, may result from protectionism rather than environmental concern. [FN255] Here, the states that took the lead in automobile emissions standards did not benefit by protecting in-state manufacturers--as would be the case, for example, if a state that manufactured paperboard cartons attempted to ban plastic containers. [FN256] Rather, emissions regulations imposed costs on in-state purchasers of more expensive automobiles. [FN257] Consumers in other states bore part of the costs only to the extent that more stringent regulations reduced the economies of scale in automobile production. Out-of- state consumers also sustained costs when auto manufacturers adopted more stringent emissions standards nationwide, but neither California nor the OTC states initially sought such uniformity. [FN258]
Moreover, California's standards covered not only automobiles, but also trucks. [FN259] Thus, the regulations likely increased production costs for in-state manufacturers of products requiring ground transportation and placed them at a competitive disadvantage relative to firms in states with less stringent regulations. The recent effort by several states to adopt restrictive emissions standards for trucks is expected to increase truck prices by $700 to $800 per vehicle. [FN260]
*594 B. Hazardous Waste Regulation
This section reviews the actions of states with respect to three important programs: state Superfund provisions, voluntary cleanup and brownfield redevelopment programs, and land transfer statutes. It shows how many states have developed hazardous waste cleanup provisions that are stricter and more comprehensive than the federal Superfund statute.
1. State Superfund Provisions.--(a) Introduction: The Federal Program.--The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) [FN261]--commonly known as the federal Superfund statute--is the most visible provision dealing with the cleanup of sites contaminated with hazardous substances. CERCLA imposes liability on an extensive set of so-called potentially responsible parties (PRPs): the current owner or operator of a site where hazardous substances are released into the environment, prior owners or operators who are connected to the release, certain transporters of hazardous substances to the site, and the generators of the hazardous substances. [FN262] CERCLA's liability regime weighs heavily against PRPs: the statute imposes strict liability; liability extends to actions that predate the statute; joint and several liability attaches if the harm at the site is indivisible; the causation requirements are highly attenuated; and the defenses are extremely limited. [FN263]
PRPs are responsible primarily for cleanup costs at the site. [FN264] Federal, state, and tribal governments may sue to recover such costs. [FN265] Private parties--generally PRPs that have paid some cleanup costs at the site and seek to recover a portion of these costs *595 from other PRPs--can also bring suit. [FN266] In addition to these cleanup provisions, CERCLA authorizes federal, state, and tribal governments--but not private parties--to recover damages for harm to natural resources
"belonging to, managed by, controlled by, or appertaining to" such governments. [FN267]
CERCLA also contains provisions to tax chemicals, petroleum products, and general corporate profits. [FN268] These taxes raise money for the Hazardous Substances Superfund, the source of the statute's popular name. The fund has two primary purposes: to pay for cleanups when the PRPs associated with a given site are either insolvent or unknown (or when some of them are insolvent or unknown and joint and several liability does not attach) and to advance money for EPA's activities at other sites pending recovery of cleanup costs from the PRPs. [FN269]
Under CERCLA, EPA is responsible for maintaining a National Priorities List (NPL) of the most hazardous sites in the country. Only NPL sites qualify for the expenditure by EPA of Superfund money for remedial actions--the long-term cleanups designed to remedy the contamination permanently. [FN270] At non- NPL sites--locations with contamination that is significant but insufficiently serious to warrant federal listing--the federal role is generally limited to removal actions, which are typically quicker and less extensive cleanups than remedial actions. Removal actions often are undertaken to address specific emergencies. [FN271]
Currently, approximately 1200 sites on the NPL await federally supervised cleanups. [FN272] In the twenty-year history of the Superfund program, only 197 cleanups have been completed at NPL sites. [FN273] In addition, *596 EPA has completed 595 removal actions at NPL sites and 2591 removal actions at other sites. [FN274]
(b) State Programs.--Despite the relatively small number of sites awaiting or benefiting from federal cleanup actions, a recent study reports that state environmental officials believe that approximately 24,000 sites require some type of cleanup and that the number of known and suspected contaminated sites-- a category that includes sites that require investigation to determine whether cleanup is necessary--is approximately 69,000. [FN275] These numbers suggest that the federal Superfund program has not even chipped away at the tip of the iceberg.
State involvement in cleanups predates the enactment of CERCLA. New Jersey led the way with the enactment of the Spill Compensation and Control Act [FN276] in 1976, four years before the passage of CERCLA. In recent years, state attention has intensified to the point that every jurisdiction now has liability provisions for the cleanup of hazardous waste sites. [FN277]
These state provisions are modeled closely on CERCLA (which itself borrowed heavily from the New Jersey Spill Act). [FN278] The majority of state statutes define the same categories of PRPs as does CERCLA. [FN279] As with CERCLA, forty-three states have retroactive liability, and several of the states without such provisions have invoked CERCLA when retroactivity has been necessary to recover cleanup costs. [FN280] Similarly, as under CERCLA, forty-one states hold responsible parties strictly liable, and thirty-six states permit the imposition of joint and several liability. [FN281] Moreover, twenty-five states have more stringent provisions than CERCLA, providing punitive damages--treble damages in twenty-two states, double damages in one, and one-and-a-half damages in another--for noncompliance with enforcement orders. [FN282]
The vast majority of states have also established funds to pay for cleanups if PRPs cannot be found to do so. [FN283] By 1989, all but two *597 states had such funds. [FN284] At the end of fiscal year 1997, the aggregate balance in these state funds totaled $1.41 billion. [FN285] The balance in the federal Superfund at the end of fiscal year 1999 was virtually identical: $1.4 billion. [FN286]
Another way to measure the size of state programs relative to the federal Superfund involves examining how much each spends on cleanup activities. Forty-four states reported spending a combined $565.1 million on cleanups in fiscal year 1997. [FN287] In contrast, expenditures from the federal Superfund during this period totaled $1.45 billion. [FN288] These figures indicate that the states play a significant role in financing cleanup activities. The magnitude of expenditures from these funds is not a perfect proxy for overall expenditures on cleanups, however, because PRPs are the primary source of cleanup financing as a result of their statutory liability. [FN289] Aggregate data on their expenditures are unfortunately not available.
Another means of comparison involves examining the number of staff working to remediate hazardous waste sites. If PRPs could be located to pay the full costs of cleanups (including the costs of governmental supervision of the cleanups), government entities would not need to spend anything. In such a case, a comparison of federal and state expenditures would obviously be meaningless. Nonetheless, the number of staff working on remediation matters might offer a rough measure of the relative scope of governmental effort. The forty-nine states that provided information on this matter reported a total of 3474 staff working in state cleanup programs. [FN290] Similarly, approximately 3000 federal employees worked on Superfund-related matters. [FN291]
Analyzing the numbers of state cleanups provides another perspective on the magnitude of state programs. During fiscal year 1997, the states completed 5552 cleanups. [FN292] In contrast, only about 200 sites *598 have been delisted from the NPL during the entire history of the Superfund program. [FN293] Although this comparison does not reflect the greater scope and complexity of the federal cleanups, it reveals a significant level of activity at the state level. [FN294]
The preceding comparisons give some sense of the relative magnitudes of the federal and state programs. They suggest that state programs fund over one quarter--and perhaps as much as one half--of efforts to remediate contamination. Unlike other environmental statutes, which compel state participation, CERCLA does not require states to enact their own Superfund programs. [FN295]
2. Voluntary Cleanup and Brownfield Redevelopment Programs.--(a) Voluntary Cleanups and CERCLA's Lost Opportunities.--A cleanup is typically labeled as voluntary if undertaken without enforcement action by a governmental entity. [FN296] As a result, many private party cleanups are not in fact voluntary. For example, under CERCLA, PRPs often perform cleanups pursuant to an administrative order issued by EPA or a judicially approved consent decree between the PRPs and EPA. [FN297]
From an environmental perspective, voluntary cleanups are highly advantageous. Governmental regulators face inevitable budgetary and personnel constraints and can therefore bring only a limited number of enforcement actions. As a result, voluntary cleanups can significantly increase the number of successfully remediated sites. Earlier intervention, made possible by not spending time in the litigation of enforcement actions, also reduces the time individuals are exposed to contamination.
Moreover, cleanup costs tend to rise sharply over time if the contamination is left unattended. [FN298] For example, the leakage of hazardous substances from damaged barrels may initially affect only the surrounding soil, which may be remediable through soil removal and incineration. Over time, however, the groundwater may become affected, significantly raising the costs and lowering the probability that the cleanup will be successful. [FN299]
*599 Cleanups at brownfield sites are a subset of voluntary cleanups. The term
"brownfields" generally refers to an industrial or commercial facility in an urban area that has been abandoned as a result, at least in part, of environmental contamination. [FN300] Redevelopment frequently follows brownfield cleanups, typically as part of a strategy to aid an economically or environmentally distressed area. [FN301] In recent years, the redevelopment of brownfield sites has found strong support among some environmental justice advocates who are concerned about the contamination of areas that are often disproportionately populated by racial minorities and the economically disadvantaged. [FN302] Brownfield redevelopments also have the broader environmental and land use advantages of preventing industrial activity from encroaching on greenfield sites in rural areas. [FN303]
In theory, CERCLA provides important incentives for voluntary cleanups. As discussed above, cleanup costs can rise rapidly if a contaminated site is left unattended. Thus, a PRP could reduce its liability by addressing a problem early, rather than waiting for years until an enforcement action is brought. [FN304] Moreover, CERCLA allows a PRP that has paid more than its apportioned share of the liability to bring a contribution action against other PRPs. [FN305] To the extent that other PRPs might have limited solvency, which they could dissipate over time, a PRP that expects to remain solvent over the long term has an incentive to incur cleanup costs so that it can bring a contribution action while such an action remains valuable. [FN306]
But in practice, CERCLA has not been effective in fostering incentives for voluntary cleanups. First, EPA has been slow in adding sites to the NPL; the number was relatively stable through the 1990s. [FN307] Second, removal actions (typically less extensive cleanups often undertaken in response to an emergency) have affected only a small proportion *600 of sites. [FN308] Thus, in most cases the probability of a federal enforcement action is low. [FN309] As a result, the incentive to take action earlier, in order to avoid greater liability when the government brings an enforcement action, is substantially diluted. [FN310]
The other serious impediment to voluntary cleanups arises from concerns about residual liability following such cleanups. For non-NPL sites, there is no mechanism under CERCLA to determine what type of cleanup EPA would consider appropriate. Moreover, EPA does not have a procedure for certifying that a particular cleanup is sufficiently extensive. [FN311] As a result, a PRP undertaking a voluntary cleanup faces a risk that, at some point in the future, EPA will decide that the cleanup was inadequate and, consequently, bring the very enforcement action the PRP sought to avoid. [FN312]
(b) States' Initiatives in Voluntary Cleanups. --In contrast to the ineffectual role the federal government has played in promoting voluntary cleanups, the states have moved resolutely into this area. [FN313] A recent survey by the Environmental Law Institute found that, in 1997, forty-four states had voluntary cleanup programs, fifteen of which had been adopted between 1995 and 1997. [FN314] Moreover, of the seven remaining jurisdictions, several have taken significant steps toward establishing such programs. [FN315]
*601 The same standards govern state voluntary cleanup programs as govern cleanups triggered by enforcement actions; [FN316] most states, however, provide other incentives to encourage participation in their voluntary cleanup programs. [FN317] Unlike the federal government, [FN318] most states have mechanisms for approving cleanups, and at least forty states limit the potential liability of PRPs that complete cleanups meeting state standards. [FN319]
A significant number of states rely extensively on voluntary cleanups. At least ten states have more than 100 voluntary cleanups underway; New Jersey leads this list with over 2300. [FN320] Similarly, a substantial number of voluntary cleanups have been completed. At least eight states reported completion of over 100 voluntary cleanups. Again, New Jersey leads the list, with over 4400 completed cleanups. [FN321]
Additionally, twenty-eight states had brownfield redevelopment programs in 1997, up from fifteen in 1995. [FN322] Despite the recent vintage of most of these programs, several states have made considerable progress in identifying brownfield sites as a first step toward redeveloping them. Six states have identified over 100 sites; Illinois is the leader with over 1000 sites. Five states have over 40 cleanups underway; Illinois has the most, with 439 cleanups in progress. Four states *602 have more than ten commitments for redevelopment; Michigan leads with 144. [FN323]
State brownfield development programs, like state voluntary cleanup programs, offer liability protection. [FN324] Manystates also offer program participants financial incentives, including low-interest loans, tax credits, and remedial cost reimbursements. [FN325]
In the last few years, EPA has taken limited steps to encourage state voluntary cleanup and brownfield redevelopment programs. The possibility of subsequent liability under the federal Superfund program remained a matter of concern to firms contemplating participation in these programs. [FN326] As a result, states pushed hard to get an agreement that EPA would not, in the future, bring enforcement actions against parties that had conducted voluntary cleanups or brownfield redevelopment projects and obtained protection against subsequent liability from the states. In 1995, EPA began entering into memorandums of agreement with some states, providing a certain degree of protection against subsequent federal enforcement actions; [FN327] sixteen states have now signed such agreements. [FN328]
These agreements provide that EPA will not bring actions to recover cleanup costs unless one of the following four conditions holds: EPA subsequently determines that conditions at the site pose
"an imminent*603 and substantial endangerment to public health or welfare" the state requests that EPA take action; subsequently discovered conditions at the site indicate that the voluntary cleanup does not protect human health or the environment; or the cleanup is no longer protective because of a change or proposed change in the use of the site. [FN329]
In addition, in 1994, EPA adopted a Brownfields Economic Redevelopment Initiative, under which it makes grants of up to $200,000 to cities, counties, towns, states, and tribes to help redevelop brownfields. [FN330] EPA has also established a Brownfields Revolving Loan Fund, which lends up to $500,000 for brownfield redevelopment purposes. Congress did not fund this program until 1999, however, and so far only one such loan has been extended. [FN331]
In summary, the states have provided the bulk of the initiative with respect to voluntary cleanups and brownfield redevelopment. The federal role remains limited and largely reactive. [FN332]
3. Land Transfer Statutes.--This section focuses on the disclosure and cleanup obligations triggered by the sale or other transfer of real property. It first discusses the limited disclosure and lack of transfer-triggered requirements under federal law. Then it turns its attention to the extensive obligations imposed by New Jersey. It concludes with an assessment of how other states have responded to New Jersey's innovative legal regime.
(a) Federal Regime.--A provision of the Superfund statute that applies to federal property imposes the principal federal requirement concerning the transfer of contaminated land. [FN333] The provision, which Congress enacted in 1986, [FN334] covers
"any real property owned by the United States on which any hazardous substance was stored for one year or more, known to have been released, or disposed of." [FN335] It requires that, before the date of any transfer, the government undertake
"all remedial action necessary to protect human health and the environment *604 with respect to any [hazardous] substance remaining on the property" and that, subsequent to the transfer, it undertake
"any additional remedial action found to be necessary." [FN336] In addition, the statute requires that
"to the extent such information is available on the basis of a complete search of agency files," the deed disclose
"the type and quantity" of the hazardous substances, "the time at which such storage, release or disposal took place," and
"a description of the remedial action taken, if any." [FN337] This provision primarily affects military bases and former nuclear weapons facilities managed by the U.S. Department of Energy. [FN338]
The federal Superfund statute does not apply any similarly broad disclosure or cleanup requirement to transfers of private land (or transfers of land owned by state or local governments). With respect to such transfers, the 1986 amendments to the statute impose liability on sellers with
"actual knowledge of the release or threatened release of a hazardous substance" who transfer the property
"without disclosing such knowledge." [FN339] Unlike transfers of federal property, with respect to which agencies have an obligation to search their files, transfers of private property trigger liability only when the transferor fails to disclose its
"actual knowledge." Moreover, disclosure in the case of private transactions is necessary only if the knowledge is
"of the release or threatened release of a hazardous substance." In contrast, for federal transfers, the requirement is triggered also by knowledge of the
"storage" or "disposal" of such substances. [FN340] Finally, in the case of private land, lack of disclosure does not constitute a statutory violation; it exposes the nondisclosing party to adverse legal consequences only in the event of a subsequent cleanup. [FN341]
*605 Similarly, the transfer of private property does not trigger the need for a cleanup. The Superfund statute imposes liability both on the current owner of the property and on those who owned the property
"at the time of disposal of any hazardous substance." [FN342] Moreover, the purchaser can raise a defense only by showing that at the time of the purchase it
"did not know and had no reason to know" of the hazardous substances. [FN343] To satisfy the
"no reason to know" requirement, the purchaser "must have undertaken, at the time of acquisition, all appropriate inquiry into the previous ownership and uses of the property consistent with good commercial or customary practice." [FN344] Although these incentives undoubtedly affect the pattern of property transfers as well as the price of property, [FN345] they neither require cleanups at the time of the transfer of ownership nor create strong incentives for cleanups to take place at that time. In cases in which cleanup costs would rise sharply in the absence of remedial action, private parties have an incentive to undertake a cleanup before the government requires one; [FN346] a transfer of ownership, however, does not influence this incentive.
(b) New Jersey's Approach.--In contrast to the narrow requirements of the federal Superfund statute, a number of states have implemented broad disclosure or cleanup requirements for the transfer of real property. New Jersey has been the pioneer in this area. In 1983, three years before Congress passed the limited disclosure obligations discussed above, [FN347] New Jersey adopted the Environmental Cleanup Responsibility Act (ECRA). [FN348] Ten years later, the state replaced ECRA with the Industrial Site Recovery Act (ISRA). [FN349]
ISRA is triggered by "transfer[al] [of] ownership or operations" at an "industrial establishment." [FN350] The seller must notify the New Jersey *606 Department of Environmental Protection (NJDEP) of the transaction
"within five days after the execution of an agreement to transfer ownership or operations." [FN351] Before the transaction can proceed, the seller must obtain the NJDEP's approval of either a
"negative declaration" that the land is not contaminated, or in the case of contaminated land, a
"remedial action workplan" describing a proposed cleanup. [FN352] In the latter situation, the seller is obligated to remedy the contamination in a manner that meets the
"health risk or environmental standards" set by the NJDEP. [FN353] The seller must also establish a
"remediation funding source," [FN354] such as a trust fund, insurance policy, line of credit, or self- guarantee, to pay for the cleanup. [FN355]
A seller may defer submitting or implementing a "remedial action workplan" under certain circumstances. [FN356] Most importantly, deferral is possible if the industrial establishment
"would be subject to substantially the same use" following the transfer. [FN357] The purchaser (or transferee or mortgagee) must certify that it has the financial ability to pay for any necessary cleanup, but a cleanup does not need to be performed until the use changes or the operations at the site terminate. Deferral requires NJDEP's approval. [FN358]
Courts and administrative agencies have interpreted the scope of ISRA expansively. The New Jersey Supreme Court has upheld administrative regulations under which the sale of stock in a corporation owning or operating an industrial establishment triggers ISRA requirements when the sale effects a merger or consolidation or gives a party a controlling interest in the corporation. [FN359] As a result, the merger of large corporations can be delayed, pending NJDEP approval, if any party to the merger owns an industrial establishment in *607 New Jersey. [FN360] Likewise, the courts have upheld administrative regulations defining the term
"industrial establishment" expansively, so that the sale of an uncontaminated parcel could give rise to an obligation to clean up contaminated adjoining parcels. [FN361]
ISRA subjects its violators to significant penalties. If the transferor does not obtain the necessary approval from the NJDEP, the transferee can void the transaction and recover damages. [FN362] Rescission of the transaction is an important remedy because it may enable the purchaser to avoid liability as a current owner under the federal Superfund statute. [FN363] The transferor also would be strictly liable for all remediation costs. [FN364] In addition, ISRA authorizes substantial fines: continuous noncompliance exposes the transferee to fines of up to $25,000 per day. [FN365]
ISRA has clearly promoted the cleanup of industrial sites in New Jersey. For example, in 1998 the NJDEP oversaw the completion of59 ISRA cleanups; 255 additional ISRA cleanups were underway at the end of the state fiscal year. The NJDEP also issued 434
"no further action" letters based on the results of site investigations or remedial actions performed before a property transfer. [FN366] Expenditures by private parties on cleanups at ISRA sites totaled $16.4 million. [FN367] An additional $40.4 million was spent at voluntary cleanup sites. [FN368] Property owners may have undertaken some of these cleanups, in anticipation of a sale, as a means to obtain a
"no further action" letter.
(c) Actions by Other States.--Many other states have followed New Jersey's lead by imposing requirements that, though more lenient than the provisions of ISRA, are nonetheless significant. A recent survey by the Environmental Law Institute indicates that from 1991 to 1997, the number of states with property transfer provisions applying to contaminated land increased from eighteen to thirty-one. [FN369] The *608 survey found that twenty states required deed recordation of sites with hazardous substances, twenty states required that sellers disclose the presence of hazardous substances to purchasers of property, and three states--Connecticut and Hawaii as well as New Jersey-- required cleanup as a condition of transfer. [FN370]
C. Municipal Solid Waste
The United States generates a staggering amount of municipal solid waste: 217.0 million tons in 1997, up from 88.1 million tons in 1960, 121.1 million tons in 1970, 151.6 million tons in 1980, and 205.2 million tons in 1990.
[FN371] Each American generated an average of 4.44 pounds of solid waste per day in 1997, as compared with 2.68 pounds in 1960, 3.25 pounds in 1970, 3.66 pounds in 1980, and 4.50 pounds in 1990; [FN372] each American currently generates about three-quarters of a ton of municipal solid waste per year. Predictably, references to a solid waste
"crisis" are commonplace. [FN373]
The environmental consequences of municipal solid waste are quite salient. There is great public awareness of municipal landfills that are too full to continue accepting waste; [FN374] of landfills that cause severe air and water pollution in surrounding areas; [FN375] of communities that must *609 transport their waste long distances; [FN376] and of communities that attempt to take steps, often unsuccessfully, to prevent being overrun by out-of-state waste. [FN377]
Over the last decade there have been extensive and at least partially successful regulatory efforts, primarily through recycling and source reduction, aimed at reducing the volume of municipal solid waste. [FN378] Very little of this activity has occurred at the federal level.
1. Federal Inaction.--The federal Resource Conservation and Recovery Act of 1976 (RCRA) [FN379] governs all waste treatment but focuses on hazardous wastes. [FN380] With respect to municipal solid waste, RCRA establishes procedures for federal approval of state solid waste management plans designed to
"conserve resources which contribute to the waste stream or to recover energy and materials from municipal waste." [FN381] The statute does not require states to prepare solid waste management plans, but makes federal financial and technical assistance contingent on the approval of such plans by EPA. [FN382] The statutory authorization for federal financial assistance, however, covered only the period from 1978 to 1988, [FN383] and by 1982, the Reagan Administration had effectively ended federal funding of waste management. [FN384] Moreover, even when such funds were available, only twenty-five states submitted solid waste plans to EPA for approval. [FN385]
*610 RCRA also requires minimum performance standards for solid waste disposal facilities. [FN386] It prohibits disposal of waste at open dumps after a phase-out period [FN387] and requires EPA to promulgate regulations establishing health and environmental standards for sanitary landfills. [FN388] By increasing the costs of disposal, these regulations may encourage municipalities to reduce the volume of solid waste they send to landfills. Such incentives, however, are at best indirect, affecting municipalities rather than individuals. Moreover, the weak market demand for recycled products suggests that market incentives do not explain current recycling levels. [FN389]
Also, many state regulations governing municipal landfills are at least as stringent as their federal counterparts. [FN390] Thus, federal regulation of municipal solid waste landfills does not create added incentives for actors in these states.
One commentator has noted: "RCRA has not . . . been an effective means of achieving significant [municipal solid waste] reduction . . . for one fundamental reason: 'Congress did not grant [the] EPA authority to require state implementation of any Federal Standards relating to [municipal solid waste] management." ' [FN391] Indeed, unlike most federal pollution control statutes, particularly the Clean Air Act, [FN392] the Clean Water Act, [FN393] and the hazardous waste provisions of RCRA, [FN394] the municipal solid waste provisions of RCRA reflect a
"basic philosophy . . . *611 that the federal government should play an advisory, and not a regulatory, role." [FN395]
2. State Programs.--In contrast to this federal passivity, states and municipalities have implemented numerous measures to encourage recycling and source reduction over the last decade. [FN396] These efforts have included residential curbside recycling programs, deposit-refund programs for beverage containers, and volume-based pricing of solid waste disposal services.
(a) Recycling.--In 1998, there were 9349 curbside recycling programs operating throughout the United States, [FN397] up from about 1000 in 1988 and 5000 in 1992. [FN398] These programs served 139.4 million people, about 54% of the population, and varied in availability throughout the country. [FN399] Whereas the Mid-Atlantic states' programs served 82% of their populations, the Rocky Mountain states' programs reached only 23% of theirs. [FN400] Among individual states, Connecticut, New York, and New Jersey served the greatest percentages of their populations--their programs reached 100%, 95%, and 90%, respectively. [FN401]
(b) Bottle Bills.--Nine states (Connecticut, Delaware, Iowa, Maine, Massachusetts, Michigan, New York, Oregon, and Vermont) have implemented traditional deposit-refund systems for beverage containers, *612 primarily those used for beer and soft drinks. [FN402] Under these programs, consumers pay a deposit when they purchase a beverage and receive a refund when they return the empty container. In contrast, California operates a pure refund system: beverage distributors pay the deposit, but consumers receive a refund when they return their empty containers. [FN403] Apparently because of the success of curbside recycling, no state other than California has enacted new deposit-refund laws since the 1980s. [FN404]
EPA estimates that about 35% of recovered beverage containers come from the nine deposit-refund states, and that an additional 20% come from California. [FN405] In part as a result of these programs, the national recovery rate of beverage containers is quite high: 59.5% for aluminum containers and 37.3% for plastic soft drink containers. [FN406]
(c) Source Reduction.--State and municipal regulatory efforts have also extended to source reduction. In particular, a clear trend toward the adoption of volume-based pricing of solid waste disposal has emerged. Under such programs, households pay a fee for each container they discard. Whereas curbside recycling programs lower a household's cost of recycling (by eliminating the time and expense of taking recyclables to a dropoff center), volume-based pricing increases the cost of waste disposal. [FN407] As a result, it reduces the generation of waste.
*613 In the late 1980s, only a few dozen volume-based pricing (popularly known as
"pay-as-you-throw") programs existed. [FN408] A 1999 report by EPA found that 4033 communities had such programs, and that they covered about 13% of the United States population. [FN409] Forty-three states had at least one community with a pay-as-you-throw scheme. Minnesota led the list with 1843 communities participating, about 45% of the total; Wisconsin and Washington followed with 466 and 249, respectively; California, Iowa, New York, Oregon, and Pennsylvania each had at least 100 communities with volume-based pricing. [FN410] A recent study by researchers at Duke University found that in communities with pay-as-you-throw systems, average waste reduction in the first year following adoption ranged between 14% and 27%, and recycling over that period increased between 32% and 59%. [FN411]
3. An Assessment.--The aggregate effects of state and municipal recycling efforts have been significant. [FN412] For example, the percentage of municipal solid waste recycled annually increased from 14.2% in *614 1990 to 22.4% in 1997. [FN413] Moreover, the percentage of materials eliminated from the waste stream rose from 16.2% in 1990 to 28.0% in 1997. [FN414] For certain kinds of materials, the proportion recovered through recycling is considerably higher: 42% for paper and paperboard, 41% for yard trimmings, and 39% for metals. [FN415]
In summary, virtually all innovation in waste volume reduction has come from states and municipalities. In fact, in the late 1980s, while states and local governments were acting aggressively on the recycling and source reduction fronts, the chair and ranking minority member of the Senate Committee on Environment and Public Works introduced a bipartisan bill that would have required greater federal attention to these issues. [FN416] The Bush administration, industry trade associations, and states and municipalities, however, opposed the bill, which ultimately failed. [FN417]
D. State Environmental Protection Acts
1. The Federal Program.--The National Environmental Policy Act of 1969 (NEPA) [FN418] was the first and most far reaching of the major federal environmental statutes. NEPA's ambitious preamble expresses Congress's intention "[t]o declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man." [FN419]
Section 101 of NEPA provides that "it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources" so that, among other related goals,
"the Nation may . . . attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences." [FN420] The statute also provides that
"the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with [NEPA's] policies." [FN421]
*615 In addition to these broad mandates, NEPA contains a specific procedural requirement concerning the preparation of environmental impact statements (EISs). It provides that
"all agencies of the Federal Government" shall prepare EISs with respect to "every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." [FN422]
However, the preparation of EISs relating to "proposals for legislation" has not been, in practice, an important component of NEPA. [FN423] The act's main impact, instead, has been on
"other major federal actions." Such actions include not only activities that the federal government undertakes directly, such as the construction of highways or dams, but also private activities that require federal permits. [FN424]
During the 1970s, the lower courts interpreted NEPA quite expansively. In particular, the courts suggested that NEPA contains a substantive component pursuant to which they could strike down agency decisions that had not accorded sufficient weight to environmental concerns. For example, Calvert Cliffs' Coordinating Committee, Inc. v. U.S. Atomic Energy Commission [FN425] referred to section 101 as setting forth NEPA's
"basic substantive policy" and indicated that Congress "desired a reordering of priorities, so that environmental costs and benefits will assume their proper place along with other considerations." [FN426] In its clearest statement on the nature of the substantive obligations NEPA imposed, theD.C. Circuit indicated:
The reviewing courts probably cannot reverse a substantive decision on its merits, under Section 101, unless it be shown that the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental values. But if the decision was reached procedurally without individualized consideration and balancing of environmental factors-- conducted fully and in good faith--it is the responsibility of the courts to reverse. [FN427]
*616 Other courts of appeals followed similar approaches. [FN428]
The Supreme Court, however, put an end to this substantive account of NEPA in Strycker's Bay Neighborhood Council v. Karlen--a short per curiam opinion filed in 1980. [FN429] Over a strong dissent by Justice Marshall, [FN430] the Court rejected the Second Circuit's decision below that
"an agency, in selecting a course of action, must elevate environmental concerns over other appropriate considerations." [FN431] The Court concluded:
"On the contrary, once an agency has made a decision subject to NEPA's procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences . . . ." [FN432] Thus, under the Supreme Court's interpretation, NEPA requires that an EIS identify a project's adverse environmental consequences, but does not require the mitigation of such consequences. [FN433]
After Strycker's Bay, many commentators described NEPA as little more than a disclosure requirement and lamented the opportunities lost by the Court's narrow interpretation. [FN434] Subsequent judicial activity*617 has been largely confined to the relatively arid inquiries concerning whether the government's involvement required the preparation of an EIS--that is, whether the involvement constituted
"major federal action" [FN435] and whether such action
"significantly" affected the environment [FN436]--and if so, whether the EIS prepared by the agency was adequate. [FN437]
2. State Programs.--A flurry of parallel activity on the part of states followed the passage of NEPA. By 1973, seventeen jurisdictions had adopted NEPA-like policies: ten states and Puerto Rico had adopted general statutes-- referred to generically as State Environmental Protection Acts (SEPAs)--modeled at least in part on NEPA; two states had adopted statutes of limited applicability; and four states had administratively promulgated programs similar to NEPA. [FN438]
The number of states with such provisions has continued to grow over the years: recent surveys reveal that eighteen states, the District of Columbia, and Puerto Rico have SEPAs of general applicability in place, that another ten have statutes of limited applicability, [FN439] and that six have administratively promulgated NEPA-like programs. [FN440] Two of the states with administratively promulgated NEPA-like programs *618 also have limited statutory provisions. [FN441] Thus, a total of thirty-two states, the District of Columbia, and Puerto Rico have at least someform of NEPA-related provision.
These state provisions broaden the protections of NEPA in two principal ways. First, they extend the requirements concerning the preparation of EISs beyond projects involving major federal action. In general, the obligation is triggered under the state provisions whenever there is state involvement. Thus, the state provisions reach large numbers of projects that are not covered by NEPA. In most regulating states, these provisions extend not only to projects directly undertaken by the state governments, but also to private projects for which the state issues permits. [FN442] Moreover, the statutes of a number of states, including California, Hawaii, Massachusetts, Minnesota, New York, and Washington cover local governments as well as state governments. [FN443] In these states, the EIS requirement applies to zoning and other local land use decisions, thereby greatly expanding the universe of decisions that require the preparation of an EIS. [FN444]
The structure of the state counterparts to NEPA thus differs from that of the state Superfund statutes discussed in a preceding section. [FN445] In the Superfund context, the state provisions are similar to their federal counterparts: what they add in terms of additional environmental protection is a state-led enforcement mechanism. In the case of NEPA, by contrast, the state provisions apply to large numbers of projects outside the purview of the federal statute.
A second extension of NEPA arises from the manner in which some states treat substantive claims. In contrast to the approach adopted by *619 Strycker's Bay, the statutes of California, [FN446] Massachusetts, [FN447] Minnesota, [FN448] New York, [FN449] and the District of Columbia [FN450] have a substantive component requiring the mitigation of adverse environmental effects. For example, in Friends of Mammoth v. Board of Supervisors, [FN451] the California Supreme Court stated:
"Obviously if the adverse consequences to the environment can be mitigated, or if feasible alternatives are available, the proposed activity . . . should not be approved." [FN452] Similarly, in Jackson v. New York State Urban Development Corp., [FN453] the New York Court of Appeals noted that
"unlike its Federal counterpart and model . . . [the New York statute] is not merely a disclosure statute; it 'imposes far more
"action-forcing" or "substantive" requirements on state and local decisionmakers than NEPA imposes on their federal counterparts." ' [FN454] An environmental project involving both federal and state action might thus survive a challenge under federal law and yet fail a challenge under state law.
In assessing whether the state schemes have substantive bite (as opposed to being largely symbolic gestures), two observations are relevant. *620 First, under provisions governing judicial review of administrative decisions, any individual--at least any individual with a sufficient injury--may challenge decisions made by state agencies under SEPAs. [FN455] Thus, public nonenforcement cannot render the state programs ineffectual. There is no suggestion in the literature that judicial review under these state programs is more restrictive than judicial review under NEPA; ifanything, the opposite is true in some states. [FN456]
Second, in a number of states, particularly California and New York, but Massachusetts, Minnesota, and Washington as well, there are well-developed bodies of case law relating to EISs. [FN457] At least in those states, private litigants have vigorously challenged the actions of public agencies. [FN458] Thus, the state programs, in some instances, serve to extend NEPA significantly.
E. Duty-To-Warn Measures
This section first examines California's statutory provision creating a duty to warn of exposure to harmful substances. It then compares this provision to the most extensive comparable federal regime, the Emergency Planning and Community Right-To-Know Act (EPCRA). [FN459] Finally, it discusses the extent to which the California program has influenced other jurisdictions.
1. California's Proposition 65.--In 1986, California voters overwhelmingly approved Proposition 65, titled the Safe Drinking Water and Toxic Enforcement Act, [FN460] which creates a broad warning requirement in situations involving the exposure of California residents to carcinogens and reproductive toxins. Proposition 65 provides that "[n]o person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving a clear and reasonable warning to such individual." [FN461]
*621 The warning requirement of Proposition 65 is subject to two exemptions. First, exposures
"for which federal law governs warning in a manner that preempts state authority" are exempted. [FN462] This exemption, however, is narrowly tailored. It does not apply to all instances in which a warning is required by federal law, but only to instances in which the federal law displaces state authority. [FN463]
The second exemption applies if "the person responsible can show" that the risk of exposure is sufficiently low. [FN464] With respect to carcinogens, the warning requirements of Proposition 65 do not apply if
"the exposure poses no significant risk assuming lifetime exposure at the level in question." [FN465] Regulations define the term
"no significant risk" as "one excess case of cancer in an exposed population of 100,000, assuming lifetime exposure at the level in question." [FN466] In the case of reproductive toxins, the exemption requires that
"the exposure will have no observable effect assuming exposure at one thousand . . . times the level in question." [FN467]
Proposition 65's warning requirements can be enforced not only by the California Attorney General and other public officials, [FN468] but also by means of a citizen suit provision, which authorizes any person to bring an action
"in the public interest." [FN469] A
"bounty-hunter's" provision rewards successful plaintiffs with 25% of the penalties. [FN470]
To evaluate the impact of Proposition 65, one must examine the enforcement patterns in some detail. The warning requirements apply both to products (many of which are manufactured outside California) *622 and to the production processes employed by in-state industrial plants. [FN471]
Critics may view the application of Proposition 65 to products manufactured out-of-state as a way for California to externalize the costs of environmental protection. If there are economies of scale in the manufacture of the products to which the Proposition 65 requirements apply, out-of-state actors bear a share of compliance costs. [FN472] Manufacturers could have a uniform nationwide response, reformulating their products, as many have done, [FN473] or providing the warnings regardless where the products are sold. Alternatively, they could comply with the dictates of Proposition 65 only for those products sold in California. Both approaches raise the costs to consumers everywhere: the former by imposing a more cumbersome requirement across the board and the latter by undercutting the economies of scale that otherwise exist. Actions brought against out-of-state manufacturers of products sold in California may be motivated, perhaps in large part, by their cost externalizing character.
The situation is different regarding Proposition 65's application to in-state industrial facilities that expose individuals to harmful substances as a result of their production processes. In this case, the costs are borne by in-state actors; the higher prices for in-state products result in smaller markets and lower profits. [FN474]
Those who advocate federal environmental regulation on public choice grounds fear that the concentrated interests of these in-state manufacturers will succeed against the more dispersed interests of the victims of pollution, and that enforcement related to these production processes will consequently be lax. [FN475] Therefore, vigorous enforcement with respect to the processes used by in-state manufacturers provides stronger evidence against the traditional public choice argument for federal regulation than does enforcement with respect to the products of out-of-state manufacturers.
Table 2 presents an analysis of duty-to-warn enforcement patterns under Proposition 65 that is based on brief descriptions, prepared by the California Attorney General, of Proposition 65 actions brought between *623 1988 and 1996. [FN476] The table divides actions by the type of plaintiff (public versus private) and by the type of defendant (in-state versus out-of-state). For the purpose of this analysis, actions concerning products (as opposed to processes) are assumed to involve out-of-state defendants. Thus, the analysis provides a lower bound on the proportion of overall actions that are brought against in-state firms. Table 2 reveals that nearly half the actions brought are against in-state firms and that this proportion does not vary significantly according to the identity of the plaintiff. Thus, both private suits and public enforcement actions impose substantial costs on in-state manufacturers, calling into question the public-choice arguments for federal environmental regulation.
Table 2. Analysis of Proposition 65 Litigation 1988-1996
TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE
2. Comparison with the Federal Regime.--Proposition 65 is extremely broad with respect to the targets subject to its warnings requirement (any
"person"), those to whom its protections extend ("any individual"), the substances it covers (any
"chemical known to the state to cause cancer or reproductive toxicity"), and the nature of its enforcement provisions (both public and private enforcement). [FN477] In contrast, EPCRA, the principal federal duty-to-warn scheme, [FN478] has a far narrower scope.
EPCRA imposes three principal notification requirements. Under section 312 of EPCRA, certain facilities regulated under the Occupational Safety and Health Act [FN479] must complete an annual
"hazardous chemical inventory form." [FN480] Under section 313, any facilities that have ten or more full-time employees and that fall within Standard Industrial Classification Codes 20 through 39 must complete an annual
"toxic chemical release form" if they "manufactured, processed, or otherwise used a toxic chemical." [FN481] Section 304, an emergency notification *624 provision, requires disclosure, under certain circumstances, of
"a release of an extremely hazardous substance . . . from a facility at which a hazardous chemical is produced, used, or stored." [FN482]
Thus, the requirements of EPCRA apply principally to risks arising from industrial processes. Proposition 65, however, applies also to risks posed by consumer products; in fact, much of the litigation under this provision has involved commonplace products such as china, glassware, and faucets. [FN483] Moreover, EPCRA notification requirements pertain only to a subset of industrial facilities. The notification requirements of EPCRA do not necessarily apply when the release of a hazardous substance is the byproduct of an industrial process involving nonhazardous substances--for example, the burning of fossil fuel. [FN484]
The EPCRA release notification requirement also applies only if the amount of the chemical manufactured, processed, or otherwise used at the facility exceeds a given threshold. [FN485] For example, the thresholds set by the general notification provision of section 313 are not trivial: 10,000 pounds per year for chemicals used at a facility and 25,000 pounds per year for chemicals manufactured or processed at a facility. [FN486] Proposition 65 contains no comparable limitations. [FN487]
Moreover, the emergency notification requirements of EPCRA's section 304 exempt federally permitted releases. [FN488] Releases regulated *625 by federal statute and within the limits prescribed under the applicable statute need not be reported under section 304. Proposition 65 does not contain an analogous exemption for permitted releases. [FN489]
In addition, fewer people receive notices of release under EPCRA than under Proposition 65. Under regulations promulgated pursuant to Proposition 65, notice of environmental exposures (other than workplace or consumer-related exposures) must be (as appropriate) posted in the affected area, mailed once every three months to occupants in the affected area, or communicated once every three months through a public media announcement in the affected area. [FN490] By contrast, the general notification provisions of section 313 only require facilities to submit toxic chemical release forms to the EPA Administrator, who compiles the data into a publicly accessible computer database; and to officials of the states in which the facilities are located. [FN491] Information supplied under section 312 must be submitted to a local emergency planning committee, the state emergency response commission, and the local fire department. [FN492] Under the emergency notification provisions of section 304, facilities must provide notice to the community emergency coordinators and to state emergency committees for any jurisdictions likely to be affected by the release. [FN493] EPCRA prescribes that local emergency planning committees have broad membership, including various government officials as well as representatives of the print media and community groups. [FN494] Although information provided under EPCRA notice requirements may filter to the public through these committees, EPCRA, unlike Proposition 65, fails to provide immediate notice to a broad community audience. [FN495]
3. Impact on Other Jurisdictions.--Proposition 65 has served as a model for legislative proposals in other states as well as for several bills introduced in Congress. Legislative proposals similar to Proposition*626 65 have been introduced in Hawaii, Illinois, Massachusetts, Missouri, Ohio, Oregon, and New York. [FN496]
At the federal level, Representative Frank Pallone introduced a bill in 1996 requiring that facilities report chemical use and authorizing citizen suits against the EPA Administrator for failure to perform the actions the bill required. [FN497] In 1997, Representative Henry A. Waxman introduced a bill that also required chemical reporting and authorized citizen suits against the Consumer Product Safety Commission. [FN498] Most recently, in 1999, Representative Waxman introduced an identical bill, which gathered 121 cosponsors. [FN499]
Although none of these measures has been adopted to date, the recent sustained legislative activity suggests that the issue is very much alive on the public policy agenda. Moreover, as a result of California's adoption of Proposition 65, more than 11% of the U.S. population will remain covered by an extensive duty-to-warn regime even if no other state or the federal government should follow suit in the near future. [FN500]
F. Improvements in the Competence of State Governments
In presenting parts of my prior work on federalism and environmental regulation to the EPA General Counsel's Office a few years ago, I was asked a question along these lines:
"How can you trust the states, which have been responsible for evils such as racial segregation, to take care responsibly of something as important as the environment?" Though most individuals advocating federal intervention on public choice grounds are not so blunt, they too probably doubt that state environmental regulators are up to the task, despite the strong state initiatives discussed in the preceding sections.
A comprehensive survey by the Advisory Commission on Intergovernmental Relations (ACIR) found the following:
States in the middle of the 20th century had failed to modernize their governments and to change with the times. Their legislatures were malapportioned, their constitutions archaic, and their governmental structures and process in need of remodeling. They often neglected to deal with the pressing public problems facing them, especially as these related to urban *627 areas. In many instances, particularly in the south, they were often more concerned with promoting states' rights than with protecting the rights of citizens and assuring them equal access to governmental institutions and services. [FN501]
It is unfair, however, to indict current state governments on the basis of actions taken when significant segments of the population were excluded from the franchise. [FN502] By many accounts, state governmentshave improved substantially since that period. [FN503] The ACIR study found a significant improvement in the competence of state governments:
One by one and little by little, states undertook to reform their institutions and processes, particularly in the . . . 1960s and 1970s. . . . Reformed and revitalized in the past quarter century, [states] undergird American federalism. Their increased capacities and responsibilities enable them to play an even greater role in national and local activities as well as to perform their own functions with increased efficiency, effectiveness, responsiveness, openness and accountability. [FN504]
State governments now serve as important sources of policymaking innovation. [FN505] Indeed, some surveys suggest that state and local governments *628 command more respect from the public than does the federal government. [FN506]
One way to evaluate the claim that state environmental agencies lack EPA's competence is to compare the backgrounds of top officials at the federal and state agencies. Evidence that a significant number of individuals with policymaking responsibilities at EPA had previously held leading positions in state environmental agencies, or vice versa, would at least partly undercut the claim of differential competence.
A review of environmental officials' biographies reveals that a noteworthy proportion of high-level EPA officials--both present and past--previously served in important positions in environmental protection (or related areas) at the state level. [FN507] Carol Browner, who served as Administrator from 1993 to 2001, had previously been the Secretary of the Florida Department of Environmental Regulation. Among the other former Administrators, Douglas Costle (1977-1981) had served as Commissioner of the Connecticut Department of Environmental Protection, [FN508] and Lee Thomas (1985-1989) had served as the Director of the South Carolina Division of Public Safety Programs, responsible for comprehensive emergency management. [FN509] This review reveals that former state environmental officials have led EPA for twelve of its thirty-one years, and former state officials with at least some environmental responsibilities have led it for more than half its history.
Of the EPA Deputy Administrators, Fred Hansen (1994-1998) had served as Director of the Oregon Department of Environmental Quality. [FN510] Richard Farrell, who served as Associate Administrator for Reinvention from 1999 to 2001, a position that has since been renamed Associate Administrator for Policy, Economics, and Innovation, had served as Secretary of the Florida Department of Business and Professional Regulation, the state's largest regulatory and consumer protection agency. J. Charles Fox, the Associate Administrator for Reinvention in 1997, had served as Assistant Secretary and Chief Operating Officer of the Maryland Department of the Environment. [FN511]
The backgrounds of EPA's four Assistant Administrators, who bear responsibility for the various pollution media, follow a similar pattern. *629 In the Office of Air and Radiation, Robert Perciasepe, who held the position from 1998 to 2001, had been Maryland's Secretary of Environment. [FN512] His predecessor, Mary Nichols (1993-1997), had chaired the California Air Resources Board, the agency responsible for the automobile emissions standards discussed above. [FN513] In the Office of Water, J. Charles Fox (1998-2001) and Robert Perciasepe (1993-1998) had held high-level positions in Maryland, as indicated above. Another predecessor, Eckardt Beck (1979-1981), had served as Deputy Commissioner of Connecticut's Department of Environmental Protection. [FN514] In the Office of Prevention, Pesticides, and Toxic Substances, Lynn Goldman (1993-1998) had served as head of the Division of Environmental and Occupational Disease Control at the California Department of Health Services. [FN515] In the Office of Solid Waste and Emergency Response, Lee Thomas (1983-1985), who later became Administrator, had served in a high-level position in South Carolina.
Many heads of state environmental agencies have likewise had prior federal experience. [FN516] Michele Brown, Commissioner of the Alaska Department of Environmental Conservation, served as Senior Environmental Advisor with the U.S. Agency for International Development. [FN517] Jacqueline Schafer, Director of the Arizona Department of Environmental Quality, was Assistant Secretary of the Navy for Installations and the Environment, a member of the President's Council on Environmental Quality, and Regional Director of EPA Region II (headquartered in New York). [FN518] Jane Norton, formerly Executive Director of the Colorado Department of Public Health and the Environment, had been Regional Director for Region VIII of the U.S. Department of Health and Human Services. [FN519] David Struhs, Secretary of the Florida Department of Environmental Protection, served as Chief of Staff to the U.S. Council on Environmental Quality. [FN520] Martha Kirkpatrick, Commissioner of the Maine Department of Environmental Protection, served as Branch Chief in the EPA Office of Water. [FN521] Robert Varney, Commissioner of the New Hampshire Department *630 of Environmental Services, is currently Chairman of the Governmental Advisory Committee on issues relating to the Environmental Side Agreement to the North American Free Trade Agreement. [FN522] James Seif, Secretary of the Pennsylvania Department of Environmental Protection, served as Regional Administrator of EPA Region III. [FN523] Thus, eight of the fifty state agency heads have backgrounds that include significant environmental experience (or in one case, health policy experience) at the federal level.
The establishment in 1993 of the Environmental Council of the States (ECOS), a national, nonprofit, nonpartisan association that represents the state and territorial environmental commissioners, attests to the increasing visibility of state environmental regulators. [FN524] ECOS has played a significant role in the Ozone Transport Assessment Group (OTAG), which seeks to remedy one of the most difficult environmental problems in the eastern United States. OTAG, a partnership between EPA, ECOS, and various industry and environmental groups, worked between 1995 and 1997 to craft a consensus agreement for reducing the transport of ground-level ozone across states. [FN525] ECOS is currently beginning work on a major study of state enforcement actions, which was requested by Congress and the National Academy of Public Administration. [FN526]
One cannot draw broad conclusions from this partial and impressionistic study of career patterns. Nonetheless, the patterns observed suggest that, at least at their top levels, state and federal regulatory agencies draw talent from similar pools.
IV. Evaluating the Pattern of State Environmental Measures
Part III shows that a substantial number of states have adopted innovative environmental policies extending beyond the requirements imposed by federal regulation, even when doing so has imposed nontrivial costs on in-state firms. Yet this pattern is far from universal. Indeed, most states have not adopted such policies. This Part suggests an explanation for why some states have taken environmentally protective measures while others have not.
Section A shows that in the 1990s, when most innovative state measures were adopted, the federal government enacted few significant pieces of environmental legislation. Section B explores why some *631 states have expanded their environmental programs into new areas when the federal government has chosen not to do so. The willingness of some states to extend environmental programs at a time of federal inaction undercuts the claim that state legislative processes have more serious public choice pathologies than the federal legislative process.
A. Federal Pollution Control Measures in the 1990s
The bulk of the state regulatory efforts discussed in Part III took place in the 1990s. The only significant exceptions were state environmental policy acts, for which most of the activity took place in the 1970s. [FN527] By contrast, the federal government has passed little significant legislation since 1990 in the five areas analyzed in Part III or in other areas of environmental protection.
The last flurry of significant federal legislative activity in environmental protection occurred in 1990, [FN528] during the Bush Administration, when Congress enacted comprehensive amendments to the Clean Air Act, [FN529] the Oil Pollution Act, [FN530] and the Pollution Prevention Act. [FN531] In particular, the first of these statutes was significant in establishing a scheme of marketable permits to control acid deposition, [FN532] amending the regulatory regime governing nonattainment areas, [FN533] and creating a permitting program for new plants. [FN534]
Since 1990, Congress has enacted only two significant pieces of federal environmental legislation: the Safe Drinking Water Act (SDWA) Amendments of 1996 [FN535] and the Food Quality Protection Act of 1996 (FQPA), [FN536] which amended provisions of both the Federal Food, Drug, and Cosmetic Act (FFDCA) and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Neither of these enactments clearly extended the preexisting environmental protections. Indeed, provisions of the SDWA amendments have arguably weakened, rather than strengthened, regulatory control. For example, the amendments relax *632 the previous requirement that EPA publish regulations for no fewer than twenty-five contaminants every three years. [FN537] EPA must now publish these regulations for no fewer than five contaminants every five years. [FN538] The amendments also require the Administrator to apply cost-benefit analysis in establishing drinking water regulations. [FN539] Previously, the SDWA required Administrators to promulgate a maximum contaminantlevel goal (MCLG) for a particular pollutant
"at the level at which no known or anticipated adverse effects on the health of persons occur and which allows an adequate margin of safety." [FN540] The Administrator would then set the enforceable limit--the maximum contaminant level
(MCL)--"as close to the maximum contaminant level goal as is feasible." [FN541] The Administrator had no discretion to weaken an MCL whose cost outweighed its benefits. Pursuant to the amendments, however, the Administrator now must determine
"whether the benefits of the maximum contaminant level justify, or do not justify, the costs." [FN542] If the benefits do not justify the costs, the Administrator
"may" set a less stringent standard. [FN543]
Nevertheless, certain provisions of the SDWA amendments strengthen environmental protection. For example, in selecting contaminants to regulate, EPA must consider the interests of groups that are at greater risk of adverse health effects, such as children, the elderly, and individuals with serious illnesses. [FN544] The amendments also require each community water system to inform its customers annually of contaminant levels in the system's drinking water. [FN545]
The FQPA, which modified the regulatory regimes governing the treatment of pesticides, [FN546] also weakened regulatory controls in certain *633 ways. Most important, the FQPA limited the scope of the Delaney Clause, [FN547] which had prohibited the use of potentially carcinogenic additives in processed food, by restricting the categorical meaning of
"food additives." [FN548] For instance, although the FQPA did not amend the Delaney Clause, it excluded chemical pesticide residues from the definition of food additives. [FN549] Consequently, the regulatory regime now permits the presence of pesticide residues even if they pose some risk of cancer. The FQPA also extended the scope of preemption of state regulations. Specifically, the FQPA preempts more stringent state regulation of pesticide residues in food. [FN550] Industry groups thereby succeeded in their decade-long quest for protection from more stringent state regulations. [FN551]
Like the SDWA amendments, however, the FQPA was not a total defeat for environmentalists. Most important, it mandates that EPA pay particular attention to the effects of pesticide residues on infants and children. [FN552] In assessing threshold risks, for instance, EPA must incorporate an additional tenfold margin of safety. [FN553]
Environmentalists also secured a victory in the requirement of special screening for estrogenic and other endocrine effects. [FN554] In setting permissible levels of pesticide residues in food, EPA must consider whether
"the pesticide chemical may have an effect in humans that is similar to an effect produced by a naturally occurring estrogen or other endocrine effects." [FN555]
Since 1990, no other federal legislation has extended the scope of environmental protection in significant ways. I reviewed all the amendments enacted since 1990 (from the 102nd through 106th Congresses) to the major federal environmental statutes: the Clean Air Act, the Clean Water Act, CERCLA, RCRA, NEPA, and the Endangered Species Act. [FN556] Congress did not amend the latter three statutes at all. *634 The amendments to the Clean Air Act, [FN557] the Clean Water Act, [FN558] and CERCLA [FN559] deal almost exclusively with narrow technical issues.
*635 The lack of important federal legislative activity since 1990 is not surprising, given the decade's political dynamics. The 102nd Congress (1991- 1992) followed the ambitious environmental enactments of the 101st Congress in 1990. [FN560] It is understandable that other issues occupied congressional attention. [FN561] Congress considered reauthorizing three important environmental statutes--RCRA, the Clean Water Act, and the Endangered Species Act--but ultimately reauthorized none of them. [FN562] In fact, this Congress accomplished little in the domestic sphere as it focused most of its efforts in the foreign policy arena. [FN563]
The 103rd Congress (1993-1994) sat during the first two years of the Clinton Administration, when the Administration's other domestic priorities, notably its failed attempt at health care reform, took center stage. [FN564] The Administration had a broad environmental agenda, but received criticism for not identifying its top priorities in a timely manner or lobbying sufficiently for the bills that it backed. [FN565]
Both the House and the Senate shifted to Republican control in the 104th Congress (1995-1996), which devoted its energy to consideration of the antiregulatory planks of the
"Contract with America." In particular, the Contract with America contained three elements designed to make the enactment of environmental regulation more cumbersome: a limitation on unfunded environmental mandates imposed upon state and local governments; a regulatory reform initiative requiring the use of cost-benefit analysis, which included a petition process for the retrospective challenge of existing regulations; and a takings provision significantly expanding compensation requirements. [FN566] The Congress enacted *636 only the unfunded mandates provision, though the regulatory reform provision passed in the House. [FN567]
Despite President Clinton's reelection in 1996, Republicans retained control of the House and the Senate for the 105th and 106th Congresses (1997- 1998 and 1999-2000). As a result, the promise of any viable proposals for important pro-environmental legislation rested with the Clinton Administration. Partisanship, however, inhibited the passage of any significant environmental legislative reform. [FN568]
As this section has illustrated, [FN569] the states, not the federal government, produced the most innovation in pollution control legislation in the 1990s. [FN570]
B. Explaining the Differences in the Stringency of State Programs
The discussion in Part III reveals that some states took a clear lead in various environmental areas; of course, other states lagged in their efforts. These different responses might be explained in several ways. For instance, public choice pathologies may preclude at least some states from enacting the types of environmental regulation that reflect *637 the preferences of their citizens. [FN571] Alternatively, it may be that preferences for environmental protection are not distributed homogeneously throughout the country, and that citizens of states with less stringent environmental standards value environmental protection less than they value competing goals. Under this account, the pattern of regulation observed across the states would not be the product of public choice pathologies but instead would mirror differing preferences for environmental protection.
Comparing the environmental efforts of various state legislatures with the voting records of their members of the U.S. House of Representatives may suggest which account is more plausible. If those who support federal regulation on public choice grounds are right about the pathologies of state regulatory processes, one would expect that state regulation would reflect those public choice pathologies. Moreover, if they are right that federal regulation corrects these pathologies, [FN572] the voting records of members of Congress, which determine the scope of federal regulation, should be aligned more closely with citizen preferences for environmental protection.
Table 3 ranks states based on the voting records of their members of Congress. The information compiled in Table 3 is derived from ratings computed by the League of Conservation Voters for 1999 surveying the first session of the past Congress. [FN573] These ratings are based on each representative's votes on sixteen environmental issues selected by the organization: a pro- environmental vote (either an affirmative vote on a pro-environmental matter or a negative vote on an anti-environmental matter) receives a score of one; an anti-environmental vote receives a score of zero. Each representative's rating is calculated by averaging her scores.
For each state's congressional delegation, Table 3 shows the median ratings for Democratic representatives and Republican representatives, *638 as well as the median ratings for the delegation as a whole. [FN574] Table 3 also provides a ranking of states from most environmentally protective to least environmentally protective based on those voting records.
Table 3. Analysis of League of Conservation Voter Records by Congressional
Delegations (Number of Representatives in Parentheses)
TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE
*639 The rankings of the states can now be compared to the lists of states that provided leadership with respect to the programs discussed in Part III (the rankings from Table 3 are provided in parentheses):
Automobile standards: California (17), Maine (8), Massachusetts (2), New York (9), and Vermont (1);
State Superfunds: New Jersey (3);
Voluntary cleanups and brownfields redevelopment: Illinois (15), Michigan (14), New Jersey (3);
Land transfer provisions: Connecticut (6), Hawaii (3), New Jersey (3);
Curbside recycling: Connecticut (6), New Jersey (3), New York (9);
Pay as you throw: Minnesota (11), Washington (16), Wisconsin (11);
Bottle bills: Connecticut (6), Delaware (10), Iowa (27), Maine (8), Massachusetts (2), Michigan (14), New York (9), Oregon (7), Vermont (1);
*640 State environmental protection acts: California (17), Massachusetts (2), Minnesota (11), New York (9), Washington (16);
Duty to warn measures: California (17).
These lists include a total of sixteen states. Of these, fifteen were ranked in the top seventeen, or the top third of all the states. Only Maryland and Rhode Island had rankings in the top third but did not adopt any of the listed measures. Moreover, these lists include only one state not in the top third (Iowa).
This close correspondence between state environmental initiative and congressional voting records does not result from my choice of the programs reviewed in Part III. For example, a study undertaken in the early 1990s ranked states on the basis of their adoption of
"green" policies. [FN575] Of the sixteen states categorized as having undertaken innovative measures on the basis of the review in Part III, fifteen ranked in the top seventeen positions. [FN576]
Table 3 also reveals that the median rating for the House as a whole, 0.40, is below the median ratings of the congressional delegations from fifteen of the sixteen states that adopted innovative state environmental protection measures. Indeed, at 0.57, California had the lowest median rating among these states. The federal median, meanwhile, was equal to that of the state ranked twenty-first, Nevada.
In summary, congressional voting records are closely aligned with state leadership roles in environmental regulation. [FN577] Moreover, the members of Congress from the states that undertook innovative environmental protection measures in the 1990s all have more pro-environmental records than the House as a whole.
The parallel between state-level environmental innovation and pro- environmental voting at the federal level undermines the public choice argument for federal regulation. Either both congressional voting records and state programs reflect preferences for environmental protection *641 within a given state, or they both reflect similar public choice pathologies. But if the federal legislative process had less serious pathologies than state processes had, one would not expect to see the close correspondence between above-median congressional voting records and state environmental regulatory policies beyond federal requirements. To the contrary, one would expect a consistent pattern in which even states with voting records above the median would do no more than satisfy federal requirements.
This Article rejects, on the basis of both theoretical and empirical analyses, the general argument that public choice problems at the state level lead to systematic underregulation absent federal intervention. This negative conclusion, however, should not be read to imply any of three other conclusions: that states enact socially optimal environmental regulation, that state environmental regulation is more likely to be welfare maximizing than federal environmental regulation, or that state governments exhibit less serious public choice pathologies than the federal government. The political processes that produce environmental regulation are sufficiently complex that any general conclusion of this sort is almost certain to be wrong. The Article's major contribution, rather, is to debunk an oft-repeated and influential general argument in favor of federal intervention.
[FNa1]. Lawrence King Professor of Law, New York University School of Law. Eric Albert, Aaron Avila, Brian Cuthbertson, Shahzeb Lari, Jennifer Lyons, Daniele Oullette, Elizabeth Rohlfing, Albert Sturtevant, and Elena Zlatnick performed excellent research assistance. I am very grateful for the comments of Barry Friedman, Clayton Gillette, Lewis Kornhauser, and Richard Stewart. A prior version of this Article was presented at workshops at New York University and Stanford University; the comments were extremely helpful. The Filomen D'Agostino and Max E. Greenberg Research Fund at the New York University School of Law provided financial assistance.
[FN1]. See Kirsten H. Engel & Scott R. Saleska, "Facts Are Stubborn Things": An Empirical Reality Check in the Theoretical Debate Over the Race-to- the-Bottom in State Environmental Standard-Setting, 8 Cornell J.L. & Pub. Pol'y 55, 64 (1998) ("According to the economic theory of regulation, laws tend to respond to the wants of small, cohesive special interest groups, such as industry, at the expense of the wants of the larger, more diffuse public. The public, which is the intended beneficiary of stringent regulation, is often in a weaker political position than industry, which is the primary beneficiary of less regulation." (citation omitted)); Daniel C. Esty, Revitalizing Environmental Federalism, 95 Mich. L. Rev. 570, 597-98 (1996) ("Notably, the costs of environmental regulation are generally more concentrated and tangible than the benefits. Costs are often borne by particular industries or enterprises, and are translated readily into monetary terms. Benefits, however, accrue to the general public in ways that are hard to discern and monetize .... [T]hese asymmetries may be more significant at the state and local levels ...." (footnotes omitted)); Joshua D. Sarnoff, The Continuing Imperative (But Only from a National Perspective) for Federal Environmental Protection, 7 Duke Envtl. L. & Pol'y F. 225, 285-86 (1997) ("As a descriptive matter, 'diffuse' environmental interests may be more successful than 'concentrated' compliance interests in affecting legislative and bureaucratic policy at the federal level than at the state level." (footnote omitted)); Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 Yale L.J. 1196, 1213 (1977) ("Industrial firms, developers, unions and others with incentives to avoid environmental controls are typically well-organized economic units with a large stake in particular decisions. The countervailing interest in environmental quality is shared by individuals whose personal stake is small and who face formidable transaction costs in organizing for concerted action."); Peter P. Swire, The Race to Laxity and the Race to Undesirability: Explaining Failures in Competition Among Jurisdictions in Environmental Law, 14 Yale L. & Pol'y Rev. & Yale J. on Reg. (Symposium Issue), 67, 101 (1996) ("For many important environmental issues, regulations impose costs on cohesive industry groups, often led by a few firms facing large compliance costs if a rule is imposed. These industry groups would ordinarily be expected to succeed very well politically against the diffuse individuals who might benefit from environmental controls.").
[FN2]. I challenge the validity of the race-to-the-bottom rationale as an across-the-board argument for federal intervention. See Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the
"Race to the Bottom" Rationale for Federal Environmental Regulation, 67 N.Y.U. L. Rev. 1210, 1233- 44 (1992) [hereinafter Revesz, Race to the Bottom].
My article spawned a robust critical literature. See Kirsten H. Engel, State Environmental Standard-Setting: Is There a
"Race" and Is It "to the Bottom" ?, 48 Hastings L.J. 271 (1997); Esty, supra note 1; Sarnoff, supra note 1; Swire, supra note 1.
My response appears in Richard L. Revesz, The Race to the Bottom and Federal Environmental Regulation: A Response to Critics, 82 Minn. L. Rev. 535 (1997) [hereinafter Revesz, Response to Critics]. For subsequent criticisms, see Engel & Saleska, supra note 1; Joshua D. Sarnoff, A Reply to Professor Revesz's Response in
"The Race to the Bottom and Federal Environmental Legislation", 8 Duke Envtl. L. & Pol'y F. 295 (1998).
For commentary supporting my position, see, for example, Henry N. Butler & Jonathan R. Macey, Externalities and the Matching Principle: The Case for Reallocating Environmental Regulatory Authority, 14 Yale L. & Pol'y Rev. & Yale J. on Reg. (Symposium Issue) 23, 31 n.19, 42-45 (1996); James E. Krier, On the Topology of Uniform Environmental Standards in a Federal System-- And Why It Matters, 54 Md. L. Rev. 1226, 1236-37 (1995); Richard B. Stewart, Environmental Regulation and International Competitiveness, 102 Yale L.J. 2039, 2058-59 (1993) [hereinafter Stewart, Environmental Regulation]; Richard B. Stewart, International Trade and Environment: Lessons from the Federal Experience, 49 Wash. & Lee L. Rev. 1329, 1343-44 (1992) [hereinafter Stewart, Lessons from the Federal Experience]; Stephen Williams, Panel IV: Culpability, Restitution, and the Environment: The Vitality of Common Law Rules, 21 Ecology L.Q. 559, 560-61 (1994).
[FN3]. I have analyzed the interstate externality justification for federal environmental regulation. See Richard L. Revesz, Federalism and Interstate Environmental Externalities, 144 U. Pa. L. Rev. 2341 (1996). The presence of interstate externalities is a compelling argument for federal regulation. For large-scale and complex environmental problems, such as air pollution covering a large area, Coasian bargaining is unlikely because uncertainty about pollution's geographic impact bars transactions. Moreover, depending on the source of pollution, the range of affected states will vary; this shifting composition of affected states makes cooperation even less likely.
The federal environmental statutes, however, have been generally ineffective at constraining interjurisdictional spillovers. They are overinclusive because they require states to reduce pollution that has only in-state consequences. See id. at 2350. They are also underinclusive because a state can meet the applicable ambient and emissions standards and still export a great deal of pollution to other jurisdictions. Id. In fact, the federal statutes have created incentives for states to do so: externalization gives them a competitive advantage by enabling them to attract more sources while ensuring that downwind states can attract fewer sources as a result of the federal regulatory constraint. Id. at 2352. A powerful illustration of the federal standards' perverse effect is that in the fifteen years following the enactment of the Clean Air Act the use of tall stacks--permitting greater externalization of the adverse effects of air pollution--expanded considerably. Id. at 2353. Whereas in 1970 only two stacks in the United States were higher than 500 feet, by 1985 more than 180 stacks were higher than 500 feet, and twenty-three were higher than 1000 feet. Id.
[FN4]. See Revesz, Response to Critics, supra note 2, at 558-61.
[FN5]. For recent literature on preemption, see Stephen A. Gardbaum, The Nature of Preemption, 79 Cornell L. Rev. 767 (1994); Caleb Nelson, Preemption, 86 Va. L. Rev. 225 (2000).
[FN6]. See Richard L. Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 Va. L. Rev. 1717, 1717 n.1 (1997).
[FN7]. See Mike Allen, Bush Pushes Local Control of Conservation Matters, Wash. Post, May 31, 2001, at A2; Mike Allen & Dan Balz, Bush Unveils 'New Federalism', Wash. Post, Feb. 27, 2001, at A10; Douglas Jehl, Whitman Promises Latitude to States on Pollution Rules, N.Y. Times, Jan. 18, 2001, at A18; Robert Pear, Shifting of Power from Washington Is Seen Under Bush, N.Y. Times, Jan. 7, 2001, at 1; Eric Pianin, Free-Market Environmentalists Gaining Stature, Wash. Post, June 4, 2001, at A4; David M. Shribman, Yes, It Matters, Boston Globe, Mar. 18, 2001, at H1.
[FN8]. See, e.g., Solid Waste Agency v. U.S. Army Corps of Eng'rs, 121 S. Ct. 675 (2001).
[FN9]. See Revesz, Response to Critics, supra note 2, at 543-45.
[FN10]. For a categorization of public choice accounts into demand and supply components, see Nathaniel O. Keohane, Richard L. Revesz & Robert N. Stavins, The Choice of Regulatory Instruments in Environmental Policy, 22 Harv. Envtl. L. Rev. 313 (1998).
[FN11]. See sources cited supra note 1.
[FN12]. See Mancur Olson, The Logic of Collective Action: Public Goods and the Theory of Groups 5-65 (1971) [hereinafter Olson, The Logic of Collective Action]; Mancur Olson, The Rise and Decline of Nations: Economic Growth, Stagflation, and Social Rigidities 17-35 (1982) [hereinafter Olson, The Rise and Decline of Nations].
[FN13]. See Engel & Saleska, supra note 1, at 64-65; Swire, supra note 1, at 101.
[FN14]. See Esty, supra note 1, at 649-51; Stewart, supra note 1, at 1213- 14.
[FN15]. Esty, supra note 1, at 650 n.302.
[FN16]. Id. at 650-51.
[FN17]. Stewart, supra note 1, at 1213.
[FN18]. Id. at 1213-14.
[FN19]. Id. at 1214. He adds that there may also be economies of scale in fundraising. Id.
[FN20]. Sarnoff, supra note 1, at 285-86.
[FN21]. See sources cited supra note 12.
[FN22]. See Engel & Saleska, supra note 1, at 64; Sarnoff, supra note 1, at 286; Swire, supra note 1, at 101.
[FN23]. Olson, The Logic of Collective Action, supra note 12, at 21.
[FN24]. See id. As Olson explained in a later book:
"Since any gain goes to everyone in the group, those who contribute nothing to the effort will get just as much as those who made a contribution. It pays to 'let George do it,' but George has little or no incentive to do anything in the group interest either ...." Olson, The Rise and Decline of Nations, supra note 12, at 18.
[FN25]. Olson, The Logic of Collective Action, supra note 12, at 21.
[FN26]. Id. at 22.
[FN29]. Id. at 31.
[FN30]. Id. at 28.
[FN31]. Id. at 35 (emphasis omitted); see id. at 31; Steven P. Croley, Theories of Regulation: Incorporating the Administrative Process, 98 Colum. L. Rev. 1, 13-15 (1998).
[FN32]. Olson, The Logic of Collective Action, supra note 12, at 132.
[FN33]. See id. at 132-34.
[FN34]. See infra section I.A.3, pp. 563-65.
[FN35]. See Jack L. Walker, Jr., Mobilizing Interest Groups in America 66 (1991) ("It is generally more difficult for potential groups with highly decentralized constituents to organize and speak with one voice in Washington, D.C."). A number of important environmental groups, such as the Sierra Club, the Natural Resources Defense Council, and Environmental Defense, work for disparate causes and thus may suffer because of the need to aggregate disparate interests.
[FN36]. Olson, The Logic of Collective Action, supra note 12, at 63.
[FN37]. Olson, The Rise and Decline of Nations, supra note 12, at 24.
[FN39]. See sources cited supra note 22.
[FN40]. See supra p. 562.
[FN41]. Croley, supra note 31, at 18 n.44. A study of major environmental organizations found that selective inducements do not play a large role in influencing the decisions of individuals to join such organizations. See Robert Cameron Mitchell, National Environmental Lobbies and the Apparent Illogic of Collective Action, in Collective Decision Making: Applications from Public Choice Theory 87, 105-12 (Clifford S. Russell ed., 1979).
[FN42]. For this further extension of Olson's approach, see V. Kerry Smith, A Theoretical Analysis of the
"Green Lobby", 79 Am. Pol. Sci. Rev. 132 (1985).
[FN43]. See Olson, The Logic of Collective Action, supra note 12, at 48.
[FN44]. See Gerald Marwell & Pamela Oliver, The Critical Mass in Collective Action: A Micro-Social Theory 41, 45-48 (1993); Croley, supra note 31, at 16.
[FN45]. See John Chamberlin, Provision of Collective Goods as a Function of Group Size, 68 Am. Pol. Sci. Rev. 707, 712 (1974); Martin C. McGuire, Group Size, Group Homogeneity, and the Aggregate Provision of a Pure Public Good Under Cournot Behavior, Pub. Choice, Summer 1974, at 107, 109, 112; Lars Udéhn, Twenty-Five Years with The Logic of Collective Action, 36 Acta Sociologica 239, 241-42 (1993).
[FN46]. See Russell Hardin, Collective Action 127 (1982).
[FN47]. Id. at 130.
[FN48]. See Paul B. Downing & Gordon L. Brady, The Role of Citizen Interest Groups in Environmental Policy Formation, in Nonprofit Firms in a Three Sector Economy 61, 72-73, 76 (Michelle J. White ed., 1981); R. Shep Melnick, Strange Bedfellows Make Normal Politics: An Essay, 9 Duke Envtl. L. & Pol'y F. 75, 81 (1998); Mitchell, supra note 41, at 99. For a discussion of foundations' influence on environmental groups, see generally Robert Charles Lowry, The Political Economy of Environmental Citizen Groups 89-166 (1993) (unpublished Ph.D. dissertation, Harvard University) (on file with the Harvard Law School Library).
A general survey of citizen groups found that 89% of them used aid from nonmembers, including foundations, to start their operations. Walker, supra note 35, at 78. Even after a citizen group's formation, foundations continue to play an important financial role. See id. at 82. For example, in 1996, 71.27% of the revenues of Friends of the Earth came from foundations. See Friends of the Earth, 1996 Annual Report 15 (1997).
[FN49]. See Hardin, supra note 46, at 104-06; Croley, supra note 31, at 20. For an extensive analysis of environmental groups consistent with this view, see Helen M. Ingram & Dean E. Mann, Interest Groups and Environmental Policy, in Environmental Politics and Policy 135 (James P. Lester ed., 1989). For a supportive case study, see Steven M. Davis, Environmental Politics and the Changing Context of Interest Group Organization, 33 Soc. Sci. J. 343, 351-53 (1996).
[FN50]. See Hardin, supra note 46, at 105.
[FN51]. See supra pp. 559-60.
[FN52]. The automobile industry is a prominent example. Large chemical and oil companies also have nationwide operations.
[FN53]. See Keohane, Revesz & Stavins, supra note 10, at 332.
[FN54]. See Olson, The Logic of Collective Action, supra note 12, at 143-46.
[FN55]. See id. at 144.
[FN56]. See id. at 145, 147.
[FN57]. Id. at 145 (quoting V.O. Key, Politics, Parties, and Pressure Groups 96 (1958)) (internal quotation marks omitted).
[FN58]. Id. at 147.
[FN60]. See supra p. 563.
[FN61]. See Revesz, supra note 6, at 1717.
[FN62]. See Croley, supra note 31, at 126-41.
[FN63]. See id. at 126-27.
[FN64]. 42 U.S.C. §§6901-6992k (1994 & Supp. IV 1998). The Act governs hazardous and solid waste disposal.
[FN65]. See Cary Coglianese, Challenging the Rules: Litigation and Bargaining in the Administrative Process 46-47 (1994) (unpublished Ph.D. dissertation, University of Michigan) (on file with the Harvard Law School Library).
[FN66]. See Sam Peltzman, Toward a More General Theory of Regulation, 19 J.L. & Econ. 211, 212 (1976); George J. Stigler, The Theory of Economic Regulation, 2 Bell J. Econ. & Mgmt. Sci. 3, 12-13 (1971). For more discussion of this issue, see Keohane, Revesz & Stavins, supra note 10, at 320.
[FN67]. See Arthur T. Denzau & Michael C. Munger, Legislators and Interest Groups: How Unorganized Interests Get Represented, 80 Am. Pol. Sci. Rev. 89, 99 (1986).
[FN68]. See Warren L. Ratliff, The De-Evolution of Environmental Organization, 17 J. Land Resources & Envtl. L. 45, 45-46 (1997).
[FN69]. See id. at 62.
[FN70]. Id. at 63.
[FN72]. Id. at 64.
[FN73]. See id. at 71.
[FN74]. See Olson, The Logic of Collective Action, supra note 12, at 63.
[FN75]. See Sierra Club, Sierra Club Chapters, at http:// www.sierraclub.org/chapters (last visited Nov. 6, 2001).
[FN76]. See Wilderness Soc'y, 1996 Annual Report 25.
[FN77]. See Envtl. Def. Fund, 2000 Annual Report, at inside front cover (listing office locations), available at http:// www.environmentaldefense.org/pubs/AnnualReport/2000.
[FN78]. National Wildlife Federation, How the National Wildlife Federation Works, at http://www.nwf.org/about/how.html (last visited Nov. 6, 2001).
[FN79]. See Nat'l Wildlife Fed'n, 1997 Annual Report 2.
[FN80]. See Nat'l Audubon Soc'y, 1997 Annual Report 29-32.
[FN81]. Id. at 15.
[FN82]. See Friends of the Earth, Friends of the Earth US--Northwest Office, at http://www.foe.org/foenw (last visited Nov. 6, 2001).
[FN83]. See Nat'l Res. Def. Council, 1996 Annual Report 34.
[FN84]. Nat'l Parks & Conservation Ass'n, 1997 Annual Report 5.
[FN85]. See Nature Conservancy, 1997 Annual Report 20-37, 56.
[FN86]. See Ducks Unlimited, 1997 Annual Report on Operations 39.
[FN87]. Charles Sabel, Archon Fung & Bradley Karkkainen, Beyond Backyard Environmentalism: How Communities Are Quietly Refashioning Environmental Regulation, Boston Rev., Oct./Nov. 1999, at 4, 11; see also id. (referring to the
"largely self-directed chapters of the Nature Conservancy").
[FN89]. See Robert C. Lowry, All Hazardous Waste Politics Is Local: Grass-roots Advocacy and Public Participation in Siting and Cleanup Decisions, 26 Pol'y Stud. J. 748, 751 (1998). For a discussion on the genesis of the environmental justice movement, see Lisa A. Binder, Religion, Race, and Rights: A Rhetorical Overview of Environmental Justice Disputes, 6 Wis. Envtl. L.J. 1, 4-8 (1999).
[FN90]. See Lowry, supra note 89, at 752.
[FN91]. Luke W. Cole, The Theory and Reality of Community-Based Environmental Decisionmaking: The Failure of California's Tanner Act and Its Implications for Environmental Justice, 25 Ecology L.Q. 733, 733-34 (1999).
[FN92]. See Lowry, supra note 89, at 751.
[FN93]. The research was conducted on the Foundation Grants Index, a Dialog database available through Westlaw.
[FN94]. See supra section I.A.1, pp. 559-60 (describing the public choice arguments for federal environmental regulation).
[FN95]. Revesz, Response to Critics, supra note 2, at 542; see also Jerry L. Mashaw, Greed, Chaos and Governance: Using Public Choice to Improve Public Law 32-33 (1997); Daniel A. Farber, Politics and Procedure in Environmental Law, 8 J.L. Econ. & Org. 59, 60 (1992); Melnick, supra note 48, at 75-76; Robert V. Percival, Environmental Legislation and the Problem of Collective Action, 9 Duke Envtl. L. & Pol'y F. 9, 9-10 (1998); Christopher H. Schroeder, Rational Choice Versus Republican Moment--Explanations for Environmental Laws, 1969-73, 9 Duke Envtl. L. & Pol'y F. 29, 29-30 (1998); Peter H. Schuck, Against (and for) Madison: An Essay in Praise of Factions, 15 Yale L. & Pol'y Rev. 553, 566 (1997); Richard B. Stewart, Environmental Quality as a National Good in a Federal State, 1997 U. Chi. Legal F. 199, 199.
[FN96]. Revesz, Response to Critics, supra note 2, at 542.
[FN97]. Keohane, Revesz & Stavins, supra note 10, at 348-51; Todd J. Zywicki, Environmental Externalities and Political Externalities: The Political Economy of Environmental Regulation and Reform, 73 Tul. L. Rev. 845, 860-64 (1999); see also Michael T. Maloney & Robert E. McCormick, A Positive Theory of Environmental Quality Regulation, 25 J.L. & Econ. 99, 100-06 (1982).
[FN98]. Keohane, Revesz & Stavins, supra note 10, at 348-49. Absent the environmental regulation, firms in a competitive market would earn zero profits. Id. at 349.
[FN99]. See id. at 350 & n.112.
[FN100]. See Maloney & McCormick, supra note 97, at 100-06.
[FN101]. See id.
[FN102]. See id. at 108-21.
[FN103]. Montreal Protocol on Substances That Deplete the Ozone Layer, Sept. 16, 1987, S. Treaty Doc. No. 100-10, 1522 U.N.T.S. 3 (entered into force Jan. 1, 1989).
[FN104]. See id. art. 2, 1522 U.N.T.S. at 31-32.
[FN105]. Daniel F. McInnis, Ozone Layers and Oligopoly Profits, in Environmental Politics: Public Costs, Private Rewards 129, 147 (Michael S. Greve & Fred L. Smith Jr. eds., 1992) [hereinafter Environmental Politics]; Melnick, supra note 48, at 78; Zywicki, supra note 97, at 871.
[FN106]. E. Donald Elliott, Bruce A. Ackerman & John C. Millian, Toward a Theory of Statutory Evolution: The Federalization of Environmental Law, 1 J.L. Econ. & Org. 313, 330-31 (1985).
[FN107]. Id. at 330.
[FN108]. Id. at 330-31. For an acknowledgment of similar dynamics in connection with the regulation of pesticides, see Sherry Jo Wise & Todd Sandler, Rent-Seeking and Pesticide Legislation, 78 Pub. Choice 329, 331, 338 (1994).
[FN109]. Keohane, Revesz & Stavins, supra note 10, at 351-53; Zywicki, supra note 97, at 864-66.
[FN110]. Robert A. Leone, Who Profits: Winners, Losers, and Government Regulation 42-44 (1986).
[FN111]. Jerry L. Mashaw & Susan Rose-Ackerman, Federalism and Regulation, in The Reagan Regulatory Strategy 111, 136 (George C. Eads & Michael Fix eds., 1984); Melnick, supra note 48, at 89; Sharon Oster, The Strategic Use of Regulatory Investment by Industry Sub-Groups, 20 Econ. Inquiry 604, 604 (1982).
[FN112]. Keohane, Revesz & Stavins, supra note 10, at 351.
[FN113]. For a discussion of this phenomenon in the press, see Claudia H. Deutsch, Scrubbing the Air, Buffing the Cleaners: Belated E.P.A. War on Pollutants May Infuse Value into Companies, N.Y. Times, Oct. 17, 1997, at D1.
[FN114]. Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§9601-9675 (1994 & Supp. V 1999).
[FN115]. Marc K. Landy & Mary Hague, The Coalition for Waste: Private Interests and Superfund, in Environmental Politics, supra note 105, at 67, 77- 79; Zywicki, supra note 97, at 858-59.
[FN116]. Jonathan H. Adler, Clean Fuels, Dirty Air, in Environmental Politics, supra note 105, at 19, 28-30; Melnick, supra note 48, at 78.
[FN117]. 42 U.S.C. §§7401-7671(q).
[FN118]. Id. §§7581-7589 (1994); see Zywicki, supra note 97, at 857.
[FN119]. Zywicki, supra note 97, at 857-58.
[FN120]. Bruce A. Ackerman & William T. Hassler, Clean Coal/Dirty Air (1981).
[FN121]. Pub. L. No. 95-95, §§109(a)-(d)(1), (e), (f), 401(b), 91 Stat. 697-703, 791 (codified as amended at 42 U.S.C. §7411).
[FN122]. Ackerman & Hassler, supra note 120, at 31-54.
[FN123]. Richard L. Revesz, Foundations of Environmental Law and Policy 216- 17 (1997).
[FN124]. Id. at 217.
[FN125]. See id.
[FN126]. Ackerman & Hassler, supra note 120, at 31-54.
[FN127]. B. Peter Pashigian, Environmental Regulation: Whose Self-Interests Are Being Protected?, 23 Econ. Inquiry 551 (1985).
[FN128]. See 42 U.S.C. §§7470-7479 (1994).
[FN129]. Id. §7409(a)-(b).
[FN130]. See id.
[FN131]. Id. §7473. Previously, a district court had interpreted the 1970 Clean Air Act to include a nondegradation requirement but had not specified the nature of this requirement. Sierra Club v. Ruckelshaus, 344 F. Supp. 253, 256 (D.D.C. 1972), aff'd, No. CIV. 1031-72, 1972 WL 2725 (D.C. Cir. Nov. 1, 1972), aff'd by an equally divided Court sub nom. Fri v. Sierra Club, 412 U.S. 541 (1973).
[FN132]. See Pashigian, supra note 127, at 580-81.
[FN133]. Bruce Yandle, Public Choice at the Intersection of Environmental Law and Economics, 8 Eur. J.L. & Econ. 5, 19-20 (1999).
[FN134]. See Susan Rose-Ackerman, Does Federalism Matter?: Political Choice in a Federal Republic, 89 J. Pol. Econ. 152, 152-53 (1981).
[FN135]. See Melnick, supra note 48, at 79 ("It is doubtful that any simple, abstract model can either predict or explain the politics behind such massive, complex, detailed legislative products.").
[FN136]. See supra pp. 566-68, 571.
[FN137]. Yandle, supra note 133, at 17.
[FN138]. See Ackerman & Hassler, supra note 120, at 29-41.
[FN139]. Richard J. Lazarus, Debunking Environmental Feudalism: Promoting the Individual Through the Collective Pursuit of Environmental Quality, 77 Iowa L. Rev. 1739, 1772 (1992) ("Recently, state and local governments frequently have imposed more stringent environmental protection controls, causing industry to seek the refuge of federal preemption to avoid their application."). In contrast, in states that had not previously entered the regulatory fray, the resulting standards will be more stringent under federal regulation.
[FN140]. See Farber, supra note 95.
[FN141]. One commentator has noted that public choice considerations do not clearly indicate the superiority of either centralization or decentralization because
"the implications of the theory's application are both speculative and impossible to verify empirically." Rena I. Steinzor, Unfunded Environmental Mandates and the
"New (New) Federalism": Devolution, Revolution, or Reform?, 81 Minn. L. Rev. 97, 181 (1996); see also Lazarus, supra note 139, at 1772 ("[T] here is reason to be skeptical of the widely accepted notion that local government authorities are likely to be too favorably disposed to industry to engage in effective environmental protection.").
[FN142]. See Esty, supra note 1, at 600-01.
[FN143]. See infra p. 582.
[FN144]. See infra p. 582.
[FN145]. For example, in a recent comprehensive report, the National Research Council found:
The United States has no national program addressing fundamental ecological research, to provide coordination and focus. One way of meeting that need could be to establish a program of focused fundamental research under the auspices of a federal lead agency. Properly structured, such a program could provide the direction and momentum that are missing in the nation's ecological research.
Nat'l Research Council, Linking Science and Technology to Society's Environmental Goals 43 (1996). For other critical perspectives, see Mark R. Powell, Science at EPA: Information in the Regulatory Process 111-17 (1999), and Stewart, supra note 95, at 216-17.
[FN146]. Arthur C. Stern, History of Air Pollution Legislation in the United States, 32 J. Air Pollution Control Ass'n 44, 44 (1982); see 1 Arnold W. Reitze, Jr., Environmental Law 3-82 (2d ed. 1972).
[FN147]. Stern, supra note 146, at 44.
[FN148]. See id.
[FN149]. See id.
[FN150]. See Cliff I. Davidson, Air Pollution in Pittsburgh: A Historical Perspective, 29 J. Air Pollution Control Ass'n 1035, 1035-37 (1979).
[FN151]. See id. at 1038.
[FN152]. See id. at 1039. Implementation of this new ordinance was delayed for five years as a result of World War II. See id.
[FN153]. See id. at 1040. By 1948, visibility had improved by 67%; by 1954, the city received 89% more sunshine; by 1958, smoke reduced visibility in only one out of sixty-five daylight hours, down from one out of every four daylight hours in 1946. See id.
[FN154]. Stern, supra note 146, at 47.
[FN155]. Id. For a discussion of the California program, see section III.A.1, pp. 585-88, below.
[FN156]. Stern, supra note 146, at 47.
[FN158]. Id. at 48.
[FN159]. Pub. L. No. 88-206, 77 Stat. 392 (1963) (codified as amended at 42 U.S.C. §§7401-7671q (1994 & Supp. V 1999)) .
[FN160]. Stern, supra note 146, at 47-48.
[FN161]. Id. at 48.
[FN162]. See infra p. 582 (discussing the difficulties of state regulation without federal investments in scientific information).
[FN163]. Robert W. Crandall, Controlling Industrial Pollution: The Economics and Politics of Clean Air 16-22 (1983).
[FN164]. Id. at 19.
[FN166]. Paul R. Portney, Air Pollution Policy, in Public Policies for Environmental Protection 27, 28-29, 50-51 (Paul R. Portney ed., 1990).
[FN167]. See id. at 50.
[FN168]. Id. at 51.
[FN169]. Indur M. Goklany, Clearing the Air: The Real Story of the War on Air Pollution (1999).
[FN170]. See Indur M. Goklany, Do We Need the Federal Government To Protect Air Quality? (Ctr. for the Study of Am. Bus. Policy, Policy Study No. 150, 1998), available at http://csab.wustl.edu/csab/CSAB pubs-pdf files/Policy Studies/PS150 Goklany.pdf; Indur M. Goklany, Empirical Evidence Regarding the Role of Nationalization in Improving U.S. Air Quality, in The Common Law and the Environment: Rethinking the Statutory Basis for Modern Environmental Law 27 (Roger E. Meiners & Andrew P. Morriss eds., 2000); Indur M. Goklany, Did Federalization Halt a Race to the Bottom for Air Quality?, EM, June 1998, at 12.
[FN171]. Goklany, supra note 169, at 56.
[FN172]. See id. at 56-57.
[FN173]. See id. at 54-55.
[FN174]. Id. at 3.
[FN176]. See id. at 40 tbl.1-1.
[FN177]. See id.
[FN178]. Revesz, Response to Critics, supra note 2, at 543.
[FN179]. See Elliott, Ackerman & Millian, supra note 106.
[FN180]. See id. at 330-33.
[FN181]. See supra p. 573.
[FN182]. Elliott, Ackerman & Millian, supra note 106, at 331.
[FN183]. See supra pp. 580-81.
[FN184]. There is no comprehensive federal program regulating groundwater quality. See Allyn G. Turner, Federal Groundwater Regulation and Policy: Improvements Under the Horizon?, 10 J. Nat. Resources & Envtl. L. 323, 326-34 (1994-1995) (noting that "[c]omprehensive federal groundwater protection laws have not come to pass" and describing the "[c]urrent [f]ederal [p]atchwork" of groundwater regulation, composed of
"at least six major federal environmental statutes"); Benjamin R. Vance, Comment, Total Aquifer Management: A New Approach to Groundwater Protection, 30 U.S.F. L. Rev. 803, 806 (1996). In particular, federal statutes do not require quality standards for groundwater, as they do for surface water, see 33 U.S.C. §1313 (1994). In contrast, a number of states have implemented groundwater quality programs. See Ground Water Protection Council, Ground Water Report to Congress: Summary of State Groundwater Conditions 20, 34, 36, 62 (1999) (Florida, Kansas, Kentucky, New Jersey).
[FN185]. Although the federal memorandum of understanding between EPA and the Army Corps of Engineers sets
"a goal of no overall net loss of values and functions" for wetlands, it does not require the replacement of wetlands in every case. Memorandums of Agreement (MOA), 55 Fed. Reg. 9210, 9211 (Mar. 12, 1990) ("[I]ndividual permit decisions ... [may] not fully meet this goal because the mitigation measures necessary to meet this goal are not feasible, not practicable, or would accomplish only inconsequential reductions in impacts.").
A number of states, including Maryland, Minnesota, and Oregon, have adopted more stringent rules governing the replacement of wetlands that are drained or filled. See David C. Forsberg, The Minnesota Wetland Conservation Act of 1991: Balancing Public and Private Interests, 18 Wm. Mitchell L. Rev. 1021, 1022-23 (1992); Stephen R. Rubin, Note, An Analysis of Nontidal Wetland Regulation in Maryland, 16 Va. Envtl. L.J. 459, 482 (1997); J. Brian Smith, Comment, Western Wetlands: The Backwater of Wetlands Regulation, 39 Nat. Resources J. 357, 393-94 (1999). In some cases, each acre of lost wetland must be replaced by more than one acre elsewhere. See Rubin, supra, at 482.
For general discussions of federal and state programs governing wetlands replacement, see Ann Redmond, Terrie Bates, Frank Bernadino & Robert M. Rhodes, State Mitigation Banking Programs: The Florida Experience, in Mitigation Banking: Theory and Practice 54, 54-56 (Lindell L. Marsh, Douglas R. Porter & David A. Salvesen eds., 1996), and John Studt & Robert D. Sokolove, Federal Wetland Mitigation Policies, in Mitigation Banking: Theory and Practice, supra, at 37, 44.
For discussions of other significant state wetlands initiatives, see Thomas V. Grasso, Wetlands Permitting Programs in the Chesapeake Bay Area, in Wetlands Law and Regulations 139, 139 (A.L.I.-A.B.A. Course of Study, May 29- 31, 1996), discussing the Chesapeake Bay Wetlands Policy, signed by Maryland, Virginia, Pennsylvania, and the District of Columbia in 1988, which calls for
"a net resource gain in wetlands acreage and function over present conditions" and Cymie Payne, Local Regulation of Natural Resources: Efficiency, Effectiveness, and Fairness of Wetlands Permitting in Massachusetts, 28 Envtl. L. 519, 523, 526-27 (1998), showing that wetlands loss in Massachusetts has slowed considerably since the passage of the state's Wetlands Protection Act in 1991.
[FN186]. 42 U.S.C. §7410 (1994).
[FN187]. See infra pp. 591-94 (air quality), pp. 622-23 (duty to warn). Hazardous waste, municipal solid waste, and the sorts of activities that require environmental impact statements tend to be matters of local concern, so there is little risk that states will use regulation in these areas to impose costs on out-of-state actors.
[FN188]. Robert V. Percival, Alan S. Miller, Christopher H. Schroeder & James P. Leape, Environmental Regulation: Law, Science, and Policy 840 (2d ed. 1996) [hereinafter Environmental Regulation].
[FN189]. Id. at 840-41. For an excellent case study of the genesis of the California and federal automobile standards, see James E. Krier & Edmund Ursin, Pollution and Policy: A Case Essay on California and Federal Experience with Motor Vehicle Air Pollution 1940-1975 (1977).
[FN190]. Motor Vehicle Air Pollution Control Act of 1965, Pub. L. No. 89- 272, §202(a), 79 Stat. 992.
[FN191]. Environmental Regulation, supra note 188, at 841.
[FN192]. See S. Rep. No. 90-403, at 33 (1967) ("The auto industry ...was adamant that the nature of their manufacturing mechanism required a single national standard in order to eliminate undue economic strain on the industry."); see also Motor Vehicle Mfrs. Ass'n v. N.Y. State Dep't of Envtl. Conservation, 17 F.3d 521, 524-25 (2d Cir. 1994) (detailing concerns of the automobile industry).
[FN193]. See Elliott, Ackerman & Millian, supra note 106, at 326, 331; supra p. 573.
[FN194]. Environmental Regulation, supra note 188, at 841.
[FN195]. See 42 U.S.C. §7543 (1994) ("No State or any political subdivision thereof shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to this part."); cf. id. §7545(c)(4) (fuels); id. §7573 (aircraft emissions). But cf. id. §7416 (preemption rules).
[FN196]. See id. §7416; Revesz, Response to Critics, supra note 2, at 544.
[FN197]. See 42 U.S.C. §7543(b)(1) (waiving preemption for
"any State which has adopted standards...for the control of emissions from new motor vehicles or new motor vehicle engines prior to March 30, 1966"). While the provision is written in general terms, California is the only state that meets this requirement. See Danielle F. Fern, Comment, The Crafting of the National Low-Emission Vehicle Program: A Private Contract Theory of Public Rulemaking, 16 UCLA J. Envtl. L. & Pol'y 227, 232 (1997/98). To be able to have its own standards, California must establish that its standards
"will be, in the aggregate, at least as protective of public health and welfare as applicable Federal standards." 42 U.S.C. §7543(b)(1). The EPA Administrator must also waive the application of the otherwise applicable preemption provision. Id.
[FN198]. Clean Air Act Amendments of 1977, Pub. L. No. 95-95, §129(b), 91 Stat. 685, 745, 750 (codified at 42 U.S.C. §7507); see Motor Vehicle Mfrs. Ass'n v. N.Y. State Dep't of Envtl. Conservation, 79 F.3d 1298, 1301 (2d Cir. 1996).
[FN199]. The authorization is not contained in the portion of the Clean Air Act that deals with emissions from moving sources. See 42 U.S.C. §§7521- 7590. Instead, it is part of the Act's nonattainment provisions. These requirements apply to areas that fail to meet the NAAQS, which set forth maximum permissible concentrations of certain pollutants in the ambient air. Id. §7507
[FN200]. See supra section I.B.2, p. 573.
[FN201]. The Clean Air Act explicitly provides that no state may
"take any action of any kind to create, or have the effect of creating, a motor vehicle or motor vehicle engine different than a motor vehicle or engine certified in California under California standards (a 'third vehicle') or otherwise create such a 'third vehicle." ' 42 U.S.C. §7507.
[FN202]. See id. §7521(g).
[FN203]. See id. (mandating that 40%, 80%, and 100% of manufacturers' sales for model years 1994, 1995, and post-1995, respectively, meet the standards for NHMC, CO, and NOx (in the cases of both light-duty trucks and light-duty vehicles), and that 40%, 80%, and 100% of manufacturers' sales for model years 1995, 1996, and post-1996, respectively, meet the standards for PM (in the case of light-duty vehicles)).
[FN204]. See Henry A. Waxman, Gregory S. Wetstone & Philip S. Barnett, Cars, Fuels, and Clean Air: A Review of Title II of the Clean Air Act Amendments of 1990, 21 Envtl. L. 1947, 1957 (1991). Compare 42 U.S.C. §7521(b)(1)(B) (1.0 grams per vehicle mile (gpm) beginning with the 1981 model year), with id. §7521(g)(1) (0.4 gpm beginning with the 1994 model year for cars with a useful life of at least five years or 50,000 miles).
[FN205]. See Waxman, Wetstone & Barnett, supra note 204, at 1953 (identifying May 1989 as the beginning of the debate over mobile source controls in the 101st Congress).
[FN206]. Cal. Health & Safety Code §43,018(a) (West 1996) (stating an intent
"to achieve the maximum degree of emission reduction possible from vehicular and other mobile sources in order to accomplish the attainment of the state standards at the earliest practicable date").
[FN207]. See Cal. Code Regs. tit. 13, §1960.1 (2000); Cal. Air Res. Bd., Staff Report: Low-Emission Vehicle and Zero-Emission Vehicle Program Review 1- 3 (Nov. 1996) (unpublished manuscript, on file with the Harvard Law School Library) [hereinafter Staff Report]. The program contemplates four different types of vehicles: transitional low-emission vehicles (TLEVs), low-emission vehicles (LEVs), ultra-low-emission vehicles (ULEVs), and zero-emission vehicles (ZEVs). See S. William Becker & Nancy R. Kruger, Wish They All Could Be California Cars, Envtl. F., May/June 1992, at 30; Leslie Harrison Reed, Jr., California Low-Emission Vehicle Program: Forcing Technology and Dealing Effectively with the Uncertainties, 24 B.C. Envtl. Aff. L. Rev. 695, 701 (1997).
[FN208]. See Cal. Code Regs. tit. 13, §1960.1(g)(2); Staff Report, supra note 207, at 3. Beginning with model year 2003, a specified percentage of vehicles sold, however, must be ZEVs. Am. Auto. Mfrs. Ass'n v. Mass. Dep't of Envtl. Prot., 163 F.3d 74, 78 (1st Cir. 1998); Am. Auto. Mfrs. Ass'n v. Cahill, 152 F.3d 196, 198-99 (2d Cir. 1998); Control of Air Pollution from New Motor Vehicle Engines, 62 Fed. Reg. 31,192, 31,198 (June 6, 1997); Staff Report, supra note 207, at 1.
In January 1993, EPA granted the necessary waiver, see supra note 197, thereby enabling the California standards to go into effect. See California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption, 58 Fed. Reg. 4166 (Jan. 13, 1993).
[FN209]. See Final Rule on Ozone Transport Commission, 60 Fed. Reg. 4712, 4714 (Jan. 24, 1995) (codified at 40 C.F.R. pts. 51, 52, 85). In October 1999, CARB approved regulations governing the next, more stringent phase of the California LEV program, commonly referred to as
"LEV II," which will become effective in model year 2004. See Cal. Code Regs. tit. 13, §1961 (2000). See also id. §1962 (establishing a zero-emission vehicle program beginning with model year 2000). As indicated above, EPA has not yet promulgated more stringent federal emissions standards, which are due to become effective in model year 2004. See 42 U.S.C. §7521(b)(1)(C) .
[FN210]. See Fern, supra note 197, at 227.
[FN211]. See id.
[FN212]. See 42 U.S.C. §7511c. The OTC consists of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, and the Consolidated Metropolitan Statistical Area, which includes the District of Columbia and a portion of Virginia. See id. §7511c(a); see also Proposed Rulemaking on Ozone Transport Commission, 59 Fed. Reg. 21,720, 21,722 (Apr. 26, 1994) (describing the creation of the OTC).
[FN213]. Proposed Rulemaking on Ozone Transport Commission, 59 Fed. Reg. at 21,723.
[FN214]. See id.
[FN215]. These challenges, brought by automobile manufacturers, ultimately failed. For details regarding the Massachusetts litigation, see American Automobile Manufacturers Ass'n v. Massachusetts Department of Environmental Protection, 31 F.3d 18, 21-22 (1st Cir. 1994), and John Hiski Ridge, Comment, Deconstructing the Clean Air Act: Examining the Controversy Surrounding Massachusetts's Adoption of the California Low Emission Vehicle Program, 22 B.C. Envtl. Aff. L. Rev. 163, 183-98 (1994). For details regarding the New York litigation, see Motor Vehicle Manufacturers Ass'n v. New York State Department of Environmental Conservation, 79 F.3d 1298, 1301-04 (2d Cir. 1996), and Motor Vehicle Manufacturers Ass'n v. New York State Department of Environmental Conservation, 17 F.3d 521, 523-31 (2d Cir. 1994). The Second Circuit, however, enjoined enforcement of New York's standards in the 1995 model year because manufacturers had not been given sufficient lead time to implement the changes. See Motor Vehicle Mfrs. Ass'n, 17 F.3d at 534-35.
In addition to their LEV programs, Massachusetts and New York both required that ZEVs comprise a certain proportion of manufacturers' sales. The Second Circuit invalidated the New York ZEV requirement, see Am. Auto. Mfrs. Ass'n v. Cahill, 152 F.3d 196, 201 (2d Cir. 1998), and the First Circuit delayed its decision on the Massachusetts ZEV requirement to enable EPA to decide whether the Clean Air Act preempted the Massachusetts regulation, see Am. Auto. Mfrs. Ass'n v. Mass. Dep't of Envtl. Prot., 163 F.3d 74, 86-87 (1st Cir. 1998). For commentary on the ZEV requirement, see David Bennett, Note, Zero Emission Vehicles: The Air Pollution Messiah? Northeastern States Mandate ZEVs Without Considering the Alternatives or Consequences, 20 Wm. & Mary Envtl. L. & Pol'y Rev. 333, 353-64 (1996).
[FN216]. See Proposed Rulemaking on Ozone Transport Commission, 59 Fed. Reg. at 21,723; Fern, supra note 197, at 238 n.63.
[FN217]. See 42 U.S.C. §7511c(c)(1).
[FN218]. See id. §7511c(c)(5).
[FN219]. See Proposed Rulemaking on Ozone Transport Commission, 59 Fed. Reg. at 21,723.
[FN220]. See id. Delaware, New Hampshire, New Jersey, and Virginia opposed the recommendation. Id.
[FN221]. See Final Rule on Ozone Transport Commission, 60 Fed. Reg. 4712, 4731 n.26 (Jan. 24, 1995) (codified at 40 C.F.R. pts. 51, 52, 85).
[FN222]. See id. at 4713-15.
[FN223]. See id. at 4713.
[FN224]. See Control of Air Pollution from New Motor Vehicles and New Motor Vehicle Engines, 63 Fed. Reg. 11,374, 11,374-75 (Mar. 9, 1998); Final Rule on Ozone Transport Commission, 60 Fed. Reg. at 4713-14. See generally 42 U.S.C. §7521(b)(1)(C) (1994).
[FN225]. See Control of Air Pollution from New Motor Vehicles and New Motor Vehicle Engines, 63 Fed. Reg. at 11,374; Control of Air Pollution from New Motor Vehicles and New Motor Vehicle Engines, 62 Fed. Reg. 31,192, 31,192 (June 6, 1997) (codified at 40 C.F.R. pts. 85, 86).
[FN226]. See Control of Air Pollution from New Motor Vehicles and New Motor Vehicle Engines, 63 Fed. Reg. at 11,375; Control of Air Pollution from New Motor Vehicles and New Motor Vehicle Engines, 62 Fed. Reg. at 31,192.
[FN227]. See Final Rule on Ozone Transport Commission, 60 Fed. Reg. at 4712.
[FN228]. See Virginia v. EPA, 108 F.3d 1397, 1415, modified on other grounds, 116 F.3d 499, 501 (D.C. Cir. 1997). The court determined that the Clean Air Act prevents EPA from imposing more stringent automobile emissions standards before model year 2004. See id. at 1411 (citing 42 U.S.C. §7521(b)(1)(C)). States, however, remained free to adopt the California standards. See 42 U.S.C. §7507; see also supra p. 586 (discussing states' freedom to adopt the California standards).
[FN229]. Compare EPA Exhaust Emission Standards for 1999 and Later Light- Utility Vehicles, 40 C.F.R. §86.1708-99 tbl.R99-1 (2000) (national LEV program), with Cal. Code Regs. tit. 13, §1960.1(g)(1) (2000) (California LEV program).
[FN230]. Compare 40 C.F.R. §86.1708-99 tbl.R99-1 (national LEV program), with Staff Report, supra note 207, at 3.
[FN231]. See Control of Air Pollution from New Motor Vehicles and New Motor Vehicle Engines, 63 Fed. Reg. 926, 933 (Jan. 7, 1998) (codified at 40 C.F.R. pts. 9, 85, 86 (2000)).
[FN232]. See Control of Air Pollution from New Motor Vehicles and New Motor Vehicle Engines, 63 Fed. Reg. 11,374, 11,374-75 (Mar. 9, 1998).
[FN233]. See id. at 11,375.
[FN234]. See supra pp. 588-89.
[FN235]. See Taly L. Jolish, Note, Negotiating the Smog Away, 18 Va. Envtl. L.J. 305, 345-48 (1999).
[FN236]. See Final Rule on Ozone Transport Commission, 60 Fed. Reg. 4712, 4714 (Jan. 24, 1995) (codified at 40 C.F.R. pts. 51, 52, 85).
[FN237]. Matthew L. Wald, 13 States To Unite To Cut Truck Emissions, N.Y. Times, Nov. 20, 2000, at A20.
[FN238]. The participating northeastern states were Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, and Vermont. See id.
[FN239]. See id.
[FN242]. See supra p. 584.
[FN243]. See supra section III.A.2, pp. 588-91.
[FN244]. See supra pp. 585-86.
[FN245]. See supra pp. 587-88.
[FN246]. See supra note 209.
[FN247]. See supra pp. 588-89.
[FN248]. See supra p. 591.
[FN249]. See supra p. 585.
[FN250]. See 42 U.S.C. §7511c(c)(1) (1994) (providing that the OTC can make recommendations for additional measures only if
"the commission determines such measures are necessary to bring any area ...into attainment").
[FN251]. See Final Rule on Ozone Transport Commission, 60 Fed. Reg. 4712, 4712 (Jan. 24, 1995) (codified at 40 C.F.R. pts. 51, 52, 85) ("At the request of the [OTC states], EPA is announcing today its final determination that reduction of new motor vehicle emissions ...is necessary [in the OTC region].").
[FN252]. See 42 U.S.C. §7503(a)(1)(A).
[FN253]. See id. §7503(a)(2).
[FN254]. See supra p. 584.
[FN255]. See Stewart, Lessons from the Federal Experience, supra note 2, at 1333.
[FN256]. See Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 471-74 (1981) (upholding a Minnesota recycling statute banning the sale of milk in plastic containers).
[FN257]. In 1996, CARB estimated these increased costs, relative to the federal standards, to be $72 per vehicle for TLEVs, $120 per vehicle for LEVs, and $145 per vehicle for ULEVs. See Staff Report, supra note 207, at 20.
In 1997, EPA estimated that the additional cost per vehicle of the national LEV program would be below the CARB estimates, due in part to economies of scale in production. See Control of Air Pollution from New Motor Vehicles and New Motor Vehicle Engines, 62 Fed. Reg. 31,192, 31,197 (June 6, 1997) (codified at 40 C.F.R. pts. 85, 86). Earlier estimates of the incremental cost per automobile under the California standards, however, were far higher, ranging up to $2,000 per vehicle. See Virginia v. EPA, 108 F.3d 1397, 1403 n.5, modified on other grounds, 116 F.3d 499, 501 (D.C. Cir. 1997). In 1999, 2,041,143 new cars were sold in California. Telephone Interview by Elena Zlatnick with Bill Gengler, Media Relations, California Department of Motor Vehicles (Feb. 14, 2000). Assuming an average additional cost per vehicle of $100, the regulations impose on California consumers an additional annual cost of approximately $200,000,000.
[FN258]. See supra pp. 584-85, pp. 588-89.
[FN259]. See Cal. Code Regs. tit. 13, §1956.8 (1999) (heavy-duty engines and vehicles); id. §1961.1(g) (light-duty trucks).
[FN260]. See Wald, supra note 237.
[FN261]. 42 U.S.C. §§9601-9675 (1994 & Supp. V 1999).
[FN262]. Id. §9607(a) (1994). For a general discussion of the Superfund liability regime, see Richard L. Revesz & Richard B. Stewart, The Superfund Debate, in Analyzing Superfund: Economics, Science, and Law 3 (Richard L. Revesz & Richard B. Stewart eds., 1995).
[FN263]. 42 U.S.C. §9607 (1994 & Supp. II 1996); see also Revesz & Stewart, supra note 262, at 6-7 (detailing CERCLA's liability regime). For discussions of the impact of joint and several liability, see Lewis A. Kornhauser & Richard L. Revesz, Apportioning Damages Among Potentially Insolvent Actors, 19 J. Legal Stud. 617 (1990); Lewis A. Kornhauser & Richard L. Revesz, Evaluating the Effects of Alternative Superfund Liability Rules, in Analyzing Superfund: Economics, Science, and Law, supra note 262, at 115; Lewis A. Kornhauser & Richard L. Revesz, Joint and Several Liability, in 2 The New Palgrave Dictionary of Economics and the Law 371 (Peter Newman ed., 1998) [hereinafter Kornhauser & Revesz, Joint and Several Liability]; Lewis A. Kornhauser & Richard L. Revesz, Multidefendant Settlements: The Impact of Joint and Several Liability, 23 J. Legal Stud. 41 (1994); Lewis A. Kornhauser & Richard L. Revesz, Multidefendant Settlements Under Joint and Several Liability: The Problem of Insolvency, 23 J. Legal Stud. 517 (1994); Lewis A. Kornhauser & Richard L. Revesz, Settlements Under Joint and Several Liability, 68 N.Y.U. L. Rev. 427 (1993); and Lewis A. Kornhauser & Richard L. Revesz, Sharing Damages Among Multiple Tortfeasors, 98 Yale L.J. 831 (1989).
[FN264]. 42 U.S.C. §§9607(a)(4)(A), (B) (1994).
[FN265]. Id. §9607(a)(4)(A).
[FN266]. Id. §9607(a)(4)(B).
[FN267]. Id. §9607(f); see id. §9607(a)(4)(C); see also Revesz & Stewart, supra note 262, at 20-21 (describing liability for damage to natural resources under CERCLA). PRPs are also responsible for health assessment or health effects studies. See 42 U.S.C. §9607(a)(4)(D).
[FN268]. Revesz & Stewart, supra note 262, at 7-8 (describing the CERCLA taxing regime). Although authority for Superfund taxes expired in December 1995, the Superfund is still receiving some taxes due to private sector arrears and adjustments by the Treasury Department. The fund is also still receiving interest revenue. Tax receipts into the fund in fiscal year 1998 were $79 million, down from $1.48 billion in fiscal year 1995. U.S. Gen. Accounting Office, Superfund: Information on the Program's Funding and Status 2-5 (1999).
[FN269]. Revesz & Stewart, supra note 262, at 8.
[FN270]. EPA Cooperative Agreements and Superfund State Contracts for Superfund Response Actions, 40 C.F.R. §35.6015(27) (2000). For the definition of remedial actions, see 42 U.S.C. §9601(24).
[FN271]. See Envtl. Law Inst., An Analysis of State Superfund Programs: 50-State Study, 1998 Update 1 (1998). For the definition of removal actions, see 42 U.S.C. §9601(23).
[FN272]. See 40 C.F.R. pt.300 app. B (2000).
[FN273]. National Priorities List for Uncontrolled Hazardous Waste Sites, 65 Fed. Reg. 5468, 5470 (proposed Jan. 28, 2000) (to be codified at 40 C.F.R. pt. 300). The sites were subsequently delisted. See id.
[FN274]. See U.S. Gen. Accounting Office, Superfund: Progress, Problems and Future Outlook 5 (1999). As discussed below, CERCLA does not effectively encourage private parties to perform cleanups in the absence of governmental compulsion. See infra p. 600.
[FN275]. See Envtl. Law Inst., supra note 271, at 3.
[FN276]. 1976 N.J. Laws 141 (codified as amended in scattered sections of N.J. Stat. Ann. tit.58).
[FN277]. See Envtl. Law Inst., supra note 271, at 50-52 tbl.V-1, 103-04 tbl.V-15.
[FN278]. Id. at 32.
[FN279]. Id. at 31-32.
[FN280]. Id. at 32, 102-04 tbl.V-15.
[FN281]. Id. at 33-34, 102-04 tbl.V-15.
[FN282]. Id. at 34-35, 105-07 tbl.V-16. Most state provisions, like CERCLA, also assess fines for noncompliance. 42 U.S.C. §9606(b)(1) (1994) (CERCLA); Envtl. Law Inst., supra note 271, at 35, 105-07 tbl.V-16.
[FN283]. Envtl. Law Inst., supra note 271, at 7.
[FN284]. Id. at 8, 71-75 tbl.V-7.
[FN285]. Id. at 3, 16. These funds were not uniformly distributed across the states. Whereas ten states had less than $1 million, Pennsylvania and New Jersey had over $100 million each, and New York had over $600 million. Id. at 50-52 tbl.V-1, 71-75 tbl.V-7.
[FN286]. See U.S. Gen. Accounting Office, supra note 268, at 3.
[FN287]. See Envtl. Law Inst., supra note 271, at 3, 19-21, 72-75 tbl.V- 7.
[FN288]. U.S. Gen. Accounting Office, supra note 268, at 20 app. 1.
[FN289]. See supra p. 595.
[FN290]. Envtl. Law Inst., supra note 271, at 12-13, 64, 65-67 tbl.V-5. The report indicates that, in most cases, the number includes only state employees responsible for the remediation of hazardous substance contamination. In some cases, however, the number also includes employees dealing with related matters. Id. at 12-13.
[FN291]. See Rena I. Steinzor, The Reauthorization of Superfund: The Public Works Alternative, 25 Envtl. L. Rep. 10,078, 10,079 (1995) (citing Benjamin F. Chavis, Jr., John W. Johnstone & Joseph W. Brown, Perspective on the Superfund: Bring Fair Play to Toxic Cleanup, L.A. Times, Feb. 9, 1994, at B7).
[FN292]. Envtl. Law Inst., supra note 271, at 9-11, 61, 62-63 tbl.V-4. An additional 13,713 cleanups were underway. Id. at 61, 62-63 tbl.V-4.
[FN293]. See supra p. 596.
[FN294]. EPA estimates that the average cost of the cleanup of an NPL site is over $30 million. See National Priorities List for Uncontrolled Hazardous Waste Sites, 60 Fed. Reg. 20,330, 20,334 (Apr. 25, 1995).
[FN295]. Envtl. Law Inst., supra note 271, at 7.
[FN296]. Id. at 39.
[FN297]. Revesz & Stewart, supra note 262, at 12.
[FN298]. Lewis A. Kornhauser & Richard L. Revesz, Regulation of Hazardous Wastes, in 3 New Palgrave Dictionary of Economics and the Law 238, 239 (Peter Newman ed., 1998).
[FN299]. See Robert F. Copple, The New Economic Efficiency in Natural Resource Damage Assessments, 66 U. Colo. L. Rev. 675, 698 n.79 (1995); Richard L. Revesz, Environmental Regulation, Cost-Benefit Analysis, and the Discounting of Human Lives, 99 Colum. L. Rev. 941, 990-91 (1999); Right Angle Cuts Cleaning Costs, Water Tech. News, June 1, 1998, 1998 WL 9857469.
[FN300]. Envtl. Law Inst., supra note 271, at 43.
[FN301]. Id. at 44.
[FN302]. See John S. Applegate, Risk Assessment, Redevelopment, and Environmental Justice: Evaluating the Brownfields Bargain, 13 J. Nat. Resources & Envtl. L. 243, 284-86 (1997-1998); Kirsten H. Engel, Brownfield Initiatives and Environmental Justice: Second-Class Cleanups or Market-Based Equity?, 13 J. Nat. Resources & Envtl. L. 317, 318 (1997-1998). Other environmental justice advocates, however, are concerned that brownfield cleanups might not be sufficiently extensive. See Applegate, supra, at 284- 86; Engel, supra, at 319.
[FN303]. See William W. Buzbee, Remembering Repose: Voluntary Contamination Cleanup Approvals, Incentives, and the Costs of Interminable Liability, 80 Minn. L. Rev. 35, 39-40 (1995).
[FN304]. Addressing the contamination early also increases the value of the contaminated site, thus offering an added incentive for the current owner to undertake a voluntary cleanup.
[FN305]. 42 U.S.C. §9613(f)(1) (1994).
[FN306]. Cf. In re The Charter Co., 862 F.2d 1500, 1504 (11th Cir. 1989) (discussing CERCLA indemnity claims brought too late, when the PRPs had already filed for bankruptcy and were protected from contingent claims for contribution under the Bankruptcy Code).
[FN307]. See supra pp. 595-596.
[FN308]. See supra p. 596.
[FN309]. Enforcement actions brought by the states, which implicate a broader set of sites, see supra pp. 597-598, therefore provide PRPs with stronger incentives to undertake voluntary cleanups.
[FN310]. Moreover, even if EPA were more aggressive in supervising cleanups at NPL sites, the contamination at many brownfield sites would be unlikely to be sufficiently severe to merit listing. See Robert H. Abrams, Superfund and the Evolution of Brownfields, 21 Wm. & Mary Envtl. L. & Pol'y Rev. 265, 274-75 (1997).
[FN311]. See Buzbee, supra note 303, at 54-100.
[FN312]. See id. at 50-53; Sarah W. Rubinstein, CERCLA's Contribution to the Federal Brownfields Problem: A Proposal for Federal Reform, 4 U. Chi. L. Sch. Roundtable 149, 151-63 (1997); Wendy E. Wagner, Learning from Brownfields, 13 J. Nat. Resources & Envtl. L. 217, 222-25 (1997-1998).
[FN313]. See Anne Slaughter Andrew, Brownfield Redevelopment: A State-Led Reform of Superfund Liability, Nat. Resources & Env't, Winter 1996, at 27, 27- 30; William W. Buzbee, Brownfields, Environmental Federalism, and Institutional Determinism, 21 Wm. & Mary Envtl. L. & Pol'y Rev. 1, 41 (1997).
[FN314]. See Envtl. Law Inst., supra note 271, at 39, 123, 124-25 tbl.V- 22.
[FN315]. Id. at 39. Approximately thirty-seven states limit participation in their voluntary cleanup programs, typically based on the characteristics of the site or the volunteer. Id. at 126, 127-30 tbl.V-23. In approximately twenty-five states, sites that are the subject of any federal or state enforcement action may not participate in such programs. Id. at 40. At least thirteen states impose some limitations on who may volunteer, barring firms responsible for the contamination at the site; firms that are the subject of enforcement actions, even with respect to other operations; or firms that are not in compliance with (or have been convicted of violating) provisions of the environmental laws. Id. Seven states that do not have categorical exclusions nonetheless retain the right to reject applications on a case-by-case basis. Id.
[FN317]. Id. at 41.
[FN318]. See supra p. 600.
[FN319]. See Envtl. Law Inst., supra note 271, at 42, 126, 127-30 tbl.V- 23.
[FN320]. Id. at 41.
[FN322]. Id. at 44, 131, 132-34 tbl.V-24. For other surveys, see Brownfields: A Comprehensive Guide to Redeveloping Contaminated Property (Todd S. Davis & Kevin D. Margolis eds., 1997); Office of Tech. Assessment, U.S. Cong., State of the States on Brownfields: Programs for Cleanup and Reuse of Contaminated Sites (1995); and Joel B. Eisen, "Brownfields of Dreams" ?: Challenges and Limits of Voluntary Cleanup Programs and Incentives, 1996 U. Ill. L. Rev. 883, 914-79.
For discussion of the brownfield programs of particular states, see Phyllis E. Bross, Susan B. Boyle & Terri Smith, The Greening of New Jersey's
"Brownfields"--As; Viewed by the Department of Environmental Protection, 9 Fordham Envtl. L.J. 541 (1998); Jane F. Clokey, Wisconsin's Land Recycling Act: From Brownfield to Greenfield, 2 Wis. Envtl. L.J. 35 (1995); James W. Creenan & John Q. Lewis, Pennsylvania's Land Recycling Program: Solving the Brownfields Problem with Remediation Standards and Limited Liability, 34 Duq. L. Rev. 661 (1996); Michael B. Gerrard, New York State's Brownfields Programs: More and Less than Meets the Eye, 4 Alb. L. Envtl. Outlook 18 (1999); Tara Burns Koch, Betting on Brownfields--Does Florida's Brownfields Redevelopment Act Transform Liability into Opportunity?, 28 Stetson L. Rev. 171 (1998); Eric D. Madden, The Voluntary Cleanup and Property Redevelopment Act--The Limits of the Kansas Brownfields Law, 46 U. Kan. L. Rev. 593 (1998); Terry J. Tondro, Reclaiming Brownfields To Save Greenfields: Shifting the Environmental Risks of Acquiring and Reusing Contaminated Land, 27 Conn. L. Rev. 789 (1995); and Alan D. Wasserman, Michigan's Brownfields Redevelopment, 1997 Detroit C.L. Mich. St. U. L. Rev. 1217.
[FN323]. See Envtl. Law Inst., supra note 271, at 45-46, 135, 136-38 tbl.V-25.
[FN324]. Id. at 46.
[FN325]. Id. at 46-47. For a discussion about why nonenvironmental factors are also crucial for brownfield redevelopment, see Heidi Gorovitz Robertson, One Piece of the Puzzle: Why State Brownfields Programs Can't Lure Businesses to the Urban Cores Without Finding the Missing Pieces, 51 Rutgers L. Rev. 1075, 1091-95, 1108-21 (1999).
[FN326]. In 1989, EPA issued a guidance document concerning agreements not to sue prospective purchasers of contaminated property. This policy could have provided the basis for relief for brownfield redevelopers. EPA, however, has rarely entered into such agreements. See Frona M. Powell, Amending CERCLA To Encourage the Redevelopment of Brownfields, 53 Wash. U. J. Urb. & Contemp. L. 113, 126 (1998). For examples of other, isolated federal measures with respect to brownfields, see Steven B. Radel, How the EPA Can Make Brownfield Redevelopment a Success and Not Just Another Overused Environmental Catch- Phrase, 6 U. Balt. J. Envtl. L. 45, 45-46 (1997). There also have been legislative proposals to encourage brownfield remediation, but none has passed. See Eisen, supra note 322, at 984-88; R. Michael Sweeney, Brownfields Restoration and Voluntary Cleanup Legislation, 2 Envtl. Law. 101, 119-21 (1995).
[FN327]. See Notice of Availability of Final Draft Guidance for Developing Superfund Memoranda of Agreement (MOA) Language Concerning State Voluntary Cleanup Programs, 62 Fed. Reg. 47,495 (Sept. 9, 1997). As of August 1997, EPA had entered into memorandums of agreement with eleven states. Id. at 47,496. Subsequently, EPA withdrew this draft guidance but expressed interest in continuing to enter into memorandums of agreement on voluntary cleanups. See Memorandum from Timothy Fields, Jr., Acting Assistant Administrator, Office of Solid Waste and Emergency Response, and Steve A. Herman, Assistant Administrator, Office of Enforcement and Compliance Assurance, to Regional Administrators, Regions 1-10 (Nov. 26, 1997), http:// www.epa.gov/swerosps/bf/html-doc/withdraw.htm.
[FN328]. See EPA, Memorandums of Agreement (MOAs) on State Voluntary Cleanup Programs (VCPs), available at http:// www.epa.gov/swerosps/bf/pdf/statemoa.pdf (last visited Nov. 6, 2001).
[FN329]. Notice of Availability of Final Draft Guidance for Developing Superfund Memoranda of Agreement (MOA) Language Concerning State Voluntary Cleanup Programs, 62 Fed. Reg. at 47,498.
[FN330]. See Announcement of Competition for Final Five Brownfield Economic Redevelopment Initiative Pilots, 59 Fed. Reg. 60,012 (Nov. 21, 1994).
[FN331]. See Reps Ask Why Only One Loan from Brownfields Revolving Loan Fund, Hazardous Waste News, Nov. 8, 1999, 1999 WL 26079730.
[FN332]. In recent years, there have been several legislative proposals to amend CERCLA to encourage the redevelopment of brownfields, but none has yet been enacted. See Powell, supra note 326, at 128-31.
[FN333]. See 42 U.S.C. §9620(h) (1994 & Supp. II 1996). For commentary, see Susan C. Borinsky, The Use of Institutional Controls in Superfund and Similar State Laws, 7 Fordham Envtl. L.J. 1, 20-23 (1995).
[FN334]. Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499, §120(h), 100 Stat. 1613, 1670-71 (codified as amended at 42 U.S.C. §9620(h)).
[FN335]. 42 U.S.C. §9620(h)(3).
[FN336]. Id. §9620(h)(3)(A)(ii). The pretransfer cleanup obligation can be deferred under certain circumstances. See id. §9620(h)(3)(C)(i).
[FN337]. Id. §9620(h)(3)(A)(i). The government also has disclosure obligations in connection with the contract for the sale of the property. See id. §9620(h)(1).
[FN338]. See Hercules Inc. v. EPA, 938 F.2d 276, 279 (D.C. Cir. 1991). See generally John S. Applegate & Stephen Dycus, Institutional Controls or Emperor's Clothes? Long-Term Stewardship of the Nuclear Weapons Complex, 28 Envtl. L. Rep. 10,631 (1998) (discussing cleanup efforts at nuclear facilities); Gregory F. Hurley, Managing Construction Risks at Closing Military Bases, Procurement Law., Winter 1999, at 6 (discussing efforts at military bases). The disclosure requirement also applies when the federal government forecloses on property and subsequently sells it. See Hercules, 938 F.2d at 279.
[FN339]. Superfund Amendments and Reauthorization Act §101(35)(C), 42 U.S.C. §9601(35)(C) (1994).
[FN340]. Regulations promulgated pursuant to the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§6901-6987 (1994 & Supp. IV 1998), impose certain disclosure obligations upon sellers of property with active underground storage tanks. See EPA Technical Standards and Corrective Action Requirements for Owners and Operators of Underground Storage Tanks, 40 C.F.R. §280.22 (2000); Eva M. Fromm, Edward C. Lewis & Heather M. Corken, Allocating Environmental Liabilities in Acquisitions, 22 J. Corp. L. 429, 433-37 (1997).
[FN341]. 42 U.S.C. §§9601(35)(c), 9607(a) (1994).
[FN342]. Id. §9607(a)(2).
[FN343]. Id. §9601(35)(A)(i).
[FN344]. Id. §9601(35)(B).
[FN345]. For discussion of the impact of Superfund on land transactions, see Kornhauser & Revesz, Joint and Several Liability, supra note 263.
[FN346]. See supra pp. 599-600. The probability of subsequent detection by the government has a significant impact on this calculus. See supra pp. 599-600.
[FN347]. See supra pp. 603-604.
[FN348]. 1983 N.J. Laws 330 (codified at N.J. Stat. Ann. §§13:1K-6 to -14 (West 1991)) (amended 1993).
[FN349]. 1993 N.J. Laws 139 (codified at N.J. Stat. Ann. §§13:1K-6 to -11.11, 58:10B-1 to -18, -20, 58:10-23.11g (West Supp. 2001)). For a discussion of the two laws, see Diana R. D'Alonzo, M. Kay Hennessy & Alysa B. Wakin, ECRA to ISRA: Is It More Than Just a Name Change?, 7 Vill. Envtl. L.J. 51 (1996); Mark K. Dowd, New Jersey's Reform of Contaminated Site Remediation, 18 Seton Hall Legis. J. 207, 239-57 (1993); and I. Leo Motiuk, Sean T. Monaghan, Mark Benevenia & F. Michael Zachara, New Jersey's Hazardous Site Remediation Program: The Year of Reform, in Avoiding Environmental Liability 585 (I. Leo Motiuk ed., 1993).
[FN350]. N.J. Stat. Ann. §13:1K-9(a) (West Supp. 2001). It is also triggered by
"clos[ing] operations" at an "industrial establishment." Id.
[FN352]. Id. §13:1K-9(c); see also id. §13:1K-8 (defining
"remedial action" and "negative declaration"). Under a statutory exception, a transaction can go forward before the approval of a negative declaration or a remedial action workplan if NJDEP approves a
"remediation agreement" setting forth how the assessment of the site and any necessary cleanup would be conducted. In addition, the seller must make financial guarantees for the performance of a cleanup, if one is required. Id. §13:1K-9(e). ISRA also provides a de minimis exception, which turns on the quantity of hazardous waste that the seller handled, id. §13:1K-9.7, as well as a streamlined procedure for obtaining NJDEP approval when discharges at the industrial establishment are of
"minimal environmental concern," id. §13:1K-11.7.
[FN353]. Id. §13:1K-9(b)(1) (establishing the remediation requirement); see id. §13:1K-8 (defining
[FN354]. Id. §13:1K-9(c).
[FN355]. Id. §58:10B-3(b).
[FN356]. Id. §13:1K-9(c) (referring to id. §§13:1K-11.2, -11.5, -11.6, - 11.7).
[FN357]. Id. §13:1K-11(a)(1).
[FN358]. Id. §13:1K-11(b).
[FN359]. See In re Adoption of N.J.A.C. 7:26B, 593 A.2d 1193, 1203-11 (N.J. Super. Ct. App. Div. 1991), aff'd in part and rev'd in part on other grounds, 608 A.2d 288 (N.J. 1992). These regulations remain in effect under ISRA as N.J. Admin. Code tit. 7, §26B-1.4 (2000).
[FN360]. For example, the General Electric takeover of RCA was delayed until General Electric posted a $36 million bond for NJDEP to approve the transfer of New Jersey properties. See Alexandra Biesada, A Cautionary Tale: Overzealous Regulations in the Name of Environmental Protection Can Do More Harm than Good, Fin. World, Jan. 23, 1990, WL 1/23/90 FW 46.
[FN361]. See In re Adoption, 608 A.2d at 296-98. These regulations remain in effect under ISRA as N.J. Admin. Code tit. 7, §26B-1.4 (2000).
[FN362]. N.J. Stat. Ann. §13:1K-13(a) (West Supp. 2001).
[FN363]. See 42 U.S.C. §9607(a)(1) (1994). For discussion of the rescission remedy, see Dixon Venture v. Joseph Dixon Crucible Co., 584 A.2d 797, 798-800 (N.J. 1991).
[FN364]. N.J. Stat. Ann. §13:1K-13(a).
[FN365]. See id. §13:1K-13(b).
[FN366]. N.J. Dep't of Envtl. Prot., Site Remediation Program Annual Report 25 (1998), available at http://www.state.nj.us/dep/srp/publications/annual_ reports/1998/98annual.pdf.
[FN367]. Id. at 9. For an earlier assessment of ECRA's impact, see David B. Farer, ECRA Verdict: The Successes and Failures of the Premiere Transaction-Triggered Environmental Law, 5 Pace Envtl. L. Rev. 113, 142-43 (1987).
[FN368]. N.J. Dep't of Envtl. Prot., supra note 366, at 9.
[FN369]. Envtl. Law Inst., supra note 271, at 36, 120-22.
[FN370]. Id. at 36-37. See generally Tondro, supra note 322, at 792-94 (discussing Connecticut's statute).
[FN371]. Office of Solid Waste, EPA, Characterization of Municipal Solid Waste in the United States: 1998 Update 5 tbl.ES-1 (1999) [hereinafter Municipal Solid Waste]. The term
"municipal solid waste" includes "durable goods, nondurable goods, containers and packaging, food wastes and yard trimmings, and miscellaneous inorganic wastes." Id. at 20. Such wastes can come from residential, commercial, institutional, or industrial sources. Id. at 20-21. For industrial sources, the definition excludes process wastes. Id. at 21.
[FN372]. Id. at 5 tbl.ES-1. State recycling and source-reduction programs account for the decrease in per capita generation in the 1990s. See infra sections III.C.2, C.3, pp. 611-14.
[FN373]. See, e.g., Sidney M. Wolf, The Solid Waste Crisis: Flow Control and the Commerce Clause, 39 S.D. L. Rev. 529, 529 (1994); Kristina Kelchner, Note, State Options Are Wasting Away: Oregon Waste Systems v. Department of Environmental Quality and America's Solid Waste Crisis, 74 Or. L. Rev. 1395, 1395 (1995); Jonathan Phillip Meyers, Note, Confronting the Garbage Crisis: Increased Federal Involvement as a Means of Addressing Municipal Solid Waste Disposal, 79 Geo. L.J. 567, 567-68, 590 (1991) [hereinafter Meyers, Confronting the Garbage Crisis]; Catherine M. Myers, Note, Minimum Recycled Content Requirements for Virginia: One Solution to the Solid Waste Crisis, 13 Va. Envtl. L.J. 271, 271-75 (1994) [hereinafter Myers, Minimum Recycled Content Requirements]; David Pomper, Comment, Recycling Philadelphia v. New Jersey: The Dormant Commerce Clause, Postindustrial
"Natural" Resources, and the Solid Waste Crisis, 137 U. Pa. L. Rev. 1309, 1309-10 (1989).
[FN374]. See, e.g., Eric Lipton, Efforts To Close Fresh Kills Are Taking Unforeseen Tolls, N.Y. Times, Feb. 21, 2000, at A1.
[FN375]. See, e.g., Lorenza Munoz, Base Says No Change in Plans for Landfills; Environment: State EPA, County Fear That Military's El Toro Cleanup Won't Block Ground Water Contamination, L.A. Times, Jan. 29, 1998, at B7; Nancy Reckler, New Yorkers Near World's Largest Landfill Say City Dumps on Them, Wash. Post, Aug. 7, 1996, at A3; Jon Schmid, EPA Fears Landslide at Big Dump, Chi. Sun-Times, Mar. 14, 1999, at 18, WL 3/14/99 CHISUN 18.
[FN376]. See, e.g., Lipton, supra note 374.
[FN377]. E.g., Tom Campbell, Judge Throws Out Trash Laws: Va. Will Appeal in Bid To Limit Imports, Richmond Times-Dispatch, Feb. 4, 2000, at A1; Douglas Martin & Dan Barry, Giuliani Stirs up Border Tensions with Trash Plan, N.Y. Times, Dec. 3, 1998, at A1; Patrick McGreevy, L.A. Approves Landfill Expansion, L.A. Times, Oct. 27, 1999, at B1; Andrew C. Revkin, Senate Panel Weighs Curb on Shipment of Garbage, N.Y. Times, June 18, 1999, at B5.
For discussions of these phenomena in the academic literature, see W. Paul Robinson, Waste Reduction, Solid Waste, and Public Policy, 21 N.M. L. Rev. 1, 1-3 (1990); Ann R. Mesnikoff, Note, Disposing of the Dormant Commerce Clause Barrier: Keeping Waste at Home, 76 Minn. L. Rev. 1219, 1220-41 (1992); and Meyers, Confronting the Garbage Crisis, supra note 373, at 571-81.
[FN378]. Municipal Solid Waste, supra note 371, at 91-102. EPA defines
"source reduction" as "any change in the design, manufacturing, purchase, or use of materials or products (including packaging) to reduce the amount or toxicity before they become municipal solid waste." Id. at 91.
[FN379]. 42 U.S.C. §§6901-6992k (1994 & Supp. IV 1998).
[FN380]. See id. §§6921-6939e.
[FN381]. Id. §6943(c)(1)(A); see id. §§6943(c)(1)(B), (C), 6947.
[FN382]. See id. §6948(a)(1) (authorizing
"financial assistance to States and local, regional, and interstate authorities for the development and implementation of plans approved by the Administrator").
[FN383]. Id.; Mesnikoff, supra note 377, at 1224; Meyers, Confronting the Garbage Crisis, supra note 373, at 569.
[FN384]. See Office of Tech. Assessment, U.S. Cong., Facing America's Trash: What's Next for Municipal Solid Waste? 305, 307-08 (1989). See generally Kirsten Engel, Environmental Standards as Regulatory Common Law: Toward Consistency in Solid Waste Regulation, 21 N.M. L. Rev. 13, 17-18 (1990).
[FN385]. Meyers, Confronting the Garbage Crisis, supra note 373, at 569.
[FN386]. See 42 U.S.C. §§6944, 6945 (1994).
[FN387]. Id. §§6944(b), 6945(a).
[FN388]. Id. §6944. EPA promulgated its first set of regulations in 1979. See EPA Criteria for Classification of Solid Waste Disposal Facilities and Practices, 40 C.F.R. §257.4 (2000). Pursuant to 1984 amendments to RCRA, EPA implemented, in 1991, a more stringent set of regulations, see EPA Criteria for Municipal Solid Waste Landfills, 40 C.F.R. pt. 258, that depending on the capacity or location of the facility, went into effect in 1993, 1994, or 1997, see 40 C.F.R. §258.1(e). For discussion of the regulations, see John H. Turner, Off to a Good Start: The RCRA Subtitle D Program for Municipal Solid Waste Landfills, 15 Temp. Envtl. L. & Tech. J. 1 (1996).
[FN389]. For a discussion of the weak demand for recycled plastic, see Anthony R. DePaolo, Plastics Recycling Legislation: Not Just the Same Old Garbage, 22 B.C. Envtl. Aff. L. Rev. 873, 881 (1995). The claim here is not that command-and-control mandates for recycling are desirable, but rather that they are programs environmentalists favor that cannot be attributed primarily to federal intervention. For a general discussion of the use of economic theories to gauge the value of recycling, see Frank Ackerman, Why Do We Recycle?: Markets, Values, and Public Policy (1997).
[FN390]. See Turner, supra note 388, at 1.
[FN391]. Jonathan Schneeweiss, Putting Packaging Waste in Its Place: The Case for Federal Legislation, 15 Va. Envtl. L.J. 443, 466 (1996) (second alteration in original) (quoting Office of Tech. Assessment, supra note 384, at 350); see also id. at 446-47 ("On the federal level ...there has been a lack of legislation regarding source reduction, leaving the majority of such efforts to states and localities." (footnote omitted)).
[FN392]. 42 U.S.C. §§7401-7671 (1994 & Supp. V 1999).
[FN393]. 33 U.S.C. §§1251-1387 (1994 & Supp. V 1999).
[FN394]. 42 U.S.C. §§6921-6939 (1994 & Supp. II 1996).
[FN395]. Roger W. Andersen, The Resource Conservation and Recovery Act of 1976: Closing the Gap, 1978 Wis. L. Rev. 633, 642 (1978) (referring to the federal regulatory regime of the 1970s); see also Office of Tech. Assessment, supra note 384, at 5 (observing that the states are primarily responsible for disposal of municipal waste); Robinson, supra note 377, at 5 ("The EPA's emphasis on developing the regulatory system to implement other waste management areas with RCRA ...ha[s] left solid waste authority in RCRA largely unimplemented."); Meyers, Confronting the Garbage Crisis, supra note 373, at 569 ("Unlike the disposal of hazardous waste, which is regulated extensively by the federal government, municipal solid waste disposal has generally been left to the states." (footnotes omitted)).
[FN396]. See Robinson, supra note 377, at 9 ("Waste reduction is being accomplished largely within local communities."); Alice D. Keane, Recent Development, Federal Regulation of Solid Waste Reduction and Recycling, 29 Harv. J. on Legis. 251, 276 (1992) ("The states have a considerable lead over the federal government in solid waste management.").
[FN397]. Jim Glenn, The State of Garbage in America, BioCycle, Apr. 1999, at 60, 63. In addition, in 1997 there were approximately 12,694 drop-off centers. Municipal Solid Waste, supra note 371, at 96.
[FN398]. Robin R. Jenkins, Salvador A. Martinez, Karen Palmer & Michael J. Podolsky, The Determinants of Household Recycling: A Material Specific Analysis of Unit Pricing and Recycling Program Attributes 1 (Res. for the Future, Discussion Paper 99-41-REV, 2000), available at
[FN399]. Glenn, supra note 397, at 64 tbl.3.
[FN400]. Id. at 64.
[FN401]. Id. In contrast, Delaware, Montana, and Hawaii each serviced 1% or less of their populations. Id. at 64 tbl.3.
[FN402]. Municipal Solid Waste, supra note 371, at 98. See generally DePaolo, supra note 389, at 880-81 (discussing various states' beverage deposit laws).
[FN403]. See Municipal Solid Waste, supra note 371, at 98; DePaolo, supra note 389, at 881. Presumably, however, the price of the product reflects the amount of the refund that the purchaser can obtain.
[FN404]. Municipal Solid Waste, supra note 371, at 98.
[FN406]. See id. at 40, 44. However, market demand for plastic recovered in this manner has been weak. DePaolo, supra note 389, at 873, 878-79, 884- 85. For a more general discussion of the problems in stimulating demand for recycled materials, see Myers, Minimum Recycled Content Requirements, supra note 373.
[FN407]. Several works provide economic analyses of the policy issues involved in efforts to reduce municipal solid waste. See, e.g., Jenkins, Martinez, Palmer & Podolsky, supra note 398, at 1; Karen Palmer, Hilary Sigman & Margaret Walls, The Cost of Reducing Municipal Solid Waste (Res. for the Future, Discussion Paper No. 96-35, 1996), available at
(analyzing waste reduction policies by using supply and demand calculations); Don Fullerton & Thomas C. Kinnaman, Household Responses to Pricing Garbage by the Bag, 86 Am. Econ. Rev. 971, 980-82 (1996) (analyzing policy justifications for volume-based pricing programs); Peter S. Menell, Beyond the Throwaway Society: An Incentive Approach to Regulating Municipal Solid Waste, 17 Ecology L.Q. 655, 679-716 (1990) (discussing and comparing incentive effects of various waste disposal regulations and policies); Marie Lynn Miranda, Jess W. Everett, Daniel Blume & Barbeau A. Roy, Jr., Market-Based Incentives and Residential Municipal Solid Waste, 13 J. Pol'y Analysis & Mgmt. 681 (1994) (exploring market-based incentives of volume-based programs).
[FN408]. See Jenkins, Martinez, Palmer & Podolsky, supra note 398, at 1.
[FN409]. See Marie Lynn Miranda, Sharon LaPalme & David Z. Bynum, Unit-Based Pricing in the United States: A Tally of Communities (1999), available at
(last visited Nov. 6, 2001). For highlights of an earlier study, see Janice Canterbury, How to Succeed with Pay as You Throw, BioCycle, Dec. 1998, at 30, 30.
[FN410]. See Miranda, LaPalme & Bynum, supra note 409.
[FN411]. Canterbury, supra note 409, at 30-32. Marie Lynn Miranda, a principal investigator in that study, has conducted extensive work on the performance of pay-as-you-throw programs under cooperative agreements with EPA. See, e.g., Scott Bauer & Marie Lynn Miranda, The Urban Performance of Unit Pricing: An Analysis of Variable Rates for Residential Garbage Collection in Urban Areas (1996), available at
http://www.epa.gov/epaoswer/non-hw/payt/pdf/upaperf1.pdf; Marie Lynn Miranda, Scott D. Bauer & Joseph E. Aldy, Unit Pricing Programs for Residential Municipal Solid Waste: An Assessment of the Literature 10-25 (1996), available at
; Marie Lynn Miranda & Sharon LaPalme, Unit Pricing of Residential Solid Waste: A Preliminary Analysis of 212 U.S. Communities (1997), available at
http://www.epa.gov/epaoswer/non-hw/payt/top17.htm; Miranda, LaPalme & Bynum, supra note 409; Marie Lynn Miranda & Joseph E. Aldy, Unit Pricing of Residential Municipal Solid Waste: Lessons from Nine Case Study Communities, 52 J. Envtl. Mgmt. 79 (1998). One concern with pay-as-you- throw programs is that they might lead to an increase in illegal dumping. The Duke researchers, however, found no systematic relationship between pay-as-you- throw programs and illegal dumping; 48% of the communities surveyed experienced no change in illegal dumping, 6% experienced a decrease, 19% experienced an increase, and 27% had no information on the subject. See Canterbury, supra note 409, at 32.
[FN412]. In addition to pay-as-you-throw programs, a number of states have created other incentives for recycling, such as tax credits for recycling operations, sales tax exemptions for the purchase of recycling equipment, and advance disposal fees for products that do not exceed specified rates of recycling with the state. DePaolo, supra note 389, at 885-88. Moreover, the majority of states have passed legislation requiring or encouraging state agencies to purchase products made of recycled materials where feasible. Id. at 887. Similarly, RCRA imposes on the federal government procurement requirements concerning recycled products. See 42 U.S.C. §6962 (1994).
[FN413]. Municipal Solid Waste, supra note 371, at 5 tbl.ES-1.
[FN415]. Id. at 80. These are 1997 figures. The corresponding figures in 1980 were 21%, 0%, and 5%, respectively. Id.
[FN416]. See Keane, supra note 396, at 252-56.
[FN417]. See id. at 251, 262-64.
[FN418]. Pub. L. No. 91-190, 83 Stat. 852 (1970) (codified as amended at 42 U.S.C. §§4321-4370f (1994 & Supp. V 1999)).
[FN419]. 42 U.S.C. §4321 (1994).
[FN420]. Id. §4331(b).
[FN421]. Id. §4332(1).
[FN422]. Id. §4332(2).
[FN423]. Environmental Regulation, supra note 188, at 1119-20. A barrier to private enforcement of the EIS requirement for certain kinds of legislative proposals arose in Public Citizen v. U.S. Trade Representative, 5 F.3d 549, 551-53 (D.C. Cir. 1993). In Public Citizen, the court refused to hear a suit brought to force the U.S. Trade Representative to produce an EIS on the North American Free Trade Agreement before its submission to Congress. The court determined that the treaty was not
"final agency action" and therefore was not ripe for judicial review. The concurring opinion questioned whether decisions involving
"proposals for legislation" were judicially reviewable. Id. at 553-54 (Randolph, J., concurring).
[FN424]. See Council on Environmental Quality Terminology and Index, 40 C.F.R. §1508.18 (2000) (defining
"major federal action").
[FN425]. 449 F.2d 1109 (D.C. Cir. 1971).
[FN426]. Id. at 1112.
[FN427]. Id. at 1115 (emphasis added).
[FN428]. See, e.g., Karlen v. Harris, 590 F.2d 39, 43 (2d Cir. 1978) (referring to NEPA as containing
"the substantive standards necessary to review the merits of agency decisions"), rev'd per curiam sub nom. Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223 (1980); Envtl. Def. Fund, Inc. v. Corps of Eng'rs of the U.S. Army, 470 F.2d 289, 298 (8th Cir. 1972) ("Given an agency obligation to carry out the substantive requirements of [NEPA], we believe that courts have an obligation to review substantive agency decisions on the merits.").
[FN429]. 444 U.S. 223 (1980) (per
[FN430]. Id. at 228 (Marshall, J., dissenting).
[FN431]. Strycker's Bay, 444 U.S. at 227.
[FN432]. Id. The Supreme Court subsequently reaffirmed the Strycker's Bay approach:
[I]t is now well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process .... If the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs.... NEPA merely prohibits uninformed--rather than unwise--agency action.
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350-51 (1989); Marsh v. Or. Natural Res. Council, 490 U.S. 360, 371 (1989) ("NEPA does not work by mandating that agencies achieve particular substantive environmental results.").
[FN433]. This limitation on the scope of NEPA is particularly significant because under NEPA, an EIS is prepared by the same agency that is responsible for the project, see Council on Environmental Quality NEPA and Agency Planning, 40 C.F.R. §1501.5 (2000), not by a different agency with an environmental mandate, which would likely be more sympathetic to environmental concerns. See generally Joseph L. Sax, The (Unhappy) Truth About NEPA, 26 Okla. L. Rev. 239 (1973) (discussing limitations of NEPA in its specific application to airport development).
Despite this limitation, NEPA may have contributed to environmental protection by creating a demand within government agencies for environmental professionals. For an excellent study showing how these professionals, though initially marginalized, eventually became influential within an agency with a previously abysmal environmental track record, see Wendy Nelson Espeland, The Struggle for Water 135-81 (1998) (describing the experience of environmental professionals in the Bureau of Reclamation).
[FN434]. See, e.g., Lynton K. Caldwell, Beyond NEPA: Future Significance of the National Environmental Policy Act, 22 Harv. Envtl. L. Rev. 203, 205-06 (1998) (attributing NEPA's failure to
"fulfill its potential" to executive agencies' refusal to follow NEPA's "goals and principles," and to
"judicial misinterpretation"); Philip Michael Ferester, Revitalizing the National Environmental Policy Act: Substantive Law Adaptations from NEPA's Progeny, 16 Harv. Envtl. L. Rev. 207, 207, 255-56 (1992) (describing the Supreme Court as having reduced NEPA's
"substantive policies and goals" to an "'essentially procedural' level"); Nicholas A. Robinson, The "Ascent of Man": Legal Systems and the Discovery of an Environmental Ethic, 15 Pace Envtl. L. Rev. 497, 510 (1998) ("[T]he U.S. Supreme Court over the past thirty years has declined to accept the substantive duty that NEPA was thought to have had ...."); Philip Weinberg, It's Time To Put NEPA Back on Course, 3 N.Y.U. Envtl. L.J. 99, 104-08 (1994) (suggesting that by making NEPA
"procedural only," the Supreme Court undermined "Congress's purpose").
[FN435]. See, e.g., Mayaguezanos por la Salud y el Ambiente v. United States, 198 F.3d 297, 301-02 (1st Cir. 1999) (holding that federal approval of a private activity does not constitute
"major federal action," if approval is not a prerequisite for the activity); Citizens Awareness Network, Inc. v. U.S. Nuclear Regulatory Comm'n, 59 F.3d 284, 292-93 (1st Cir. 1995) (holding that the Commission's approval of financing and allowance of decommission, before the submission of a decommissioning plan, constituted
"major federal action").
[FN436]. The Council on Environmental Quality's regulation implementing NEPA provides a definition of the term
"significantly." 40 C.F.R. §1508.27.
[FN437]. See, e.g., Sierra Club v. Marita, 46 F.3d 606, 624 (7th Cir. 1995) (upholding a lower court finding that a Forest Service EIS was adequate); Sierra Club v. U.S. Army Corps of Eng'rs, 701 F.2d 1011, 1031 (2d Cir. 1983) (upholding a district court finding that an Army Corps EIS was inadequate).
[FN438]. Nicholas C. Yost, NEPA's Progeny: State Environmental Policy Acts, 3 Envtl. L. Rep. 50,090, 50,090 (1973).
[FN439]. Jeffrey L. Carmichael, Note, The Indiana Environmental Policy Act: Casting a New Role for a Forgotten Statute, 70 Ind. L.J. 613, 622 & nn.81, 83 (1995).
[FN440]. 4 Frank Grad, Treatise on Environmental Law §9.08, at 9-294 & n.1 (1998 & Supp. 1999).
[FN441]. See id. at 9-294 n.1 (listing New Jersey and Nebraska as states with administratively promulgated NEPA-like programs); Carmichael, supra note 439, at 622 n.83 (listing those same states as having limited statutory provisions).
For other recent surveys of state provisions, see 5 Zoning and Land Use Controls §§28.01, 28.02 (Patrick J. Rohan ed., Supp. 1997); David Sive & Mark A. Chertok,
"Little NEPA's" and Their Environmental Impact Assessment Processes, in Environmental Litigation 1233 (A.L.I.-A.B.A. Course of Study, June 23, 1997), WL SB91 ALI-ABA 1233.
[FN442]. See Sive & Chertok, supra note 441, at 1242. Indiana is an exception. See Carmichael, supra note 439, at 640-41. In some states in which legislation does not address this issue, courts have required permit-granting agencies to prepare EISs. Id. at 640. Some state statutes also require the preparation of EISs even when the action in question does not have a
"significant" effect on the environment. See Robert C. Ellickson & Vicki L. Been, Land Use Controls: Cases and Materials 432 (2d ed. 2000).
[FN443]. See Ellickson & Been, supra note 442, at 431; Sive & Chertok, supra note 441, at 1240. In addition, some municipalities have their own NEPA-like ordinances. See 5 Zoning and Land Use Controls, supra note 441, §28.03. For commentary on a prominent example, see J. Kevin Healy, The Environmental Review Process in the City of New York: CEQR, 5 Pace Envtl. L. Rev. 93 (1987).
[FN444]. For discussion, see Sive & Chertok, supra note 441, at 1240.
[FN445]. See supra section III.B.2.b, pp. 600-603.
[FN446]. See Cal. Pub. Res. Code §21,002.1(b) (West 1996) ("Each public agency shall mitigate or avoid the significant effects on the environment of projects that it carries out or approves whenever it is feasible to do so.").
[FN447]. See Mass. Gen. Laws ch. 30, §61 (2000) (requiring use of
"all practicable means and measures to minimize damage to the environment").
[FN448]. The Minnesota SEPA provides as follows:
No state action significantly affecting the quality of the environment shall be allowed, nor shall any permit for natural resources management and development be granted, where such action or permit has caused or is likely to cause pollution, impairment, or destruction of the air, water, land or other natural resources located within the state, so long as there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety, and welfare and the state's paramount concern for the protection of its air, water, land and other natural resources from pollution, impairment, or destruction.
Minn. Stat. §116D.04(6) (2000).
[FN449]. See N.Y. Envtl. Conserv. Law §8-0109(1) (McKinney 1997) ("Agencies shall ... act and choose alternatives which, consistent with social, economic and other essential considerations, to the maximum extent practicable, minimize or avoid adverse environmental effects ...."). For commentary, see Philip H. Gitlen, The Substantive Impact of the SEQRA, 46 Alb. L. Rev. 1241 (1982); and Kelly Munkwitz, Note, Does the SEQRA Authorize Mitigation Fees?, 61 Alb. L. Rev. 595, 599-608 (1997).
[FN450]. See D.C. Code Ann. §6-981 (2001) (requiring substitution of
"an alternative action or mitigating measures for a proposed action, if the alternative action or mitigating measures will accomplish the same purposes as the proposed action with minimized or no adverse environmental effects").
[FN451]. 502 P.2d 1049 (Cal. 1972).
[FN452]. Id. at 1059 n.8. More recently, however, the California Supreme Court appears to have narrowed somewhat the substantive scope of the state statute. See Citizens v. Bd. of Supervisors, 801 P.2d 1161, 1168-71 (Cal. 1990) (en banc); Laurel Heights Improvement Ass'n v. Regents of the Univ. of Cal., 764 P.2d 278, 283 (Cal. 1988) (en banc). For commentary on the California cases, see Ferester, supra note 434, at 237-39.
[FN453]. 494 N.E.2d 429 (N.Y. 1986).
[FN454]. Id. at 434 (quoting Gitlen, supra note 449, at 1248).
[FN455]. See Jane Magee, Environmental Impact Statements: Applications in Land Use Control, 10 Zoning & Plan. L. Rep. 113, 117 (1987); Sive & Chertok, supra note 441, at 1249-51. For comparisons of some state provisions, see Ferester, supra note 434, at 235-37, 244, 251-54.
[FN456]. See sources cited supra note 455.
[FN457]. See Ellickson & Been, supra note 442, at 424; 5 Zoning and Land Use Controls, supra note 441, §28.04.
[FN458]. The costs imposed on businesses by these court challenges can be considerable. See Council on Cal. Competitiveness, California's Jobs and Future 37-39 (1992).
[FN459]. 42 U.S.C. §§11,001-11,050 (1994).
[FN460]. Initiative Measure, Proposition 65 (approved Nov. 4, 1986) (codified as amended at Cal. Health & Safety Code §§25,249.5-.13 (West 1999 & Supp. 2001)). The vote approving the measure was 63% to 37%. Marina Gatti, Proposition 65:
"Shoot First, Ask Questions Later"--Do; the Bullets Really Work? Have We Shot the Wrong Party? Will They Call Out the Bazookas?, 47 Food & Drug L.J. 739, 740 (1992).
[FN461]. Cal. Health & Safety Code §25,249.6 (West 1999). In addition to imposing a duty to warn of carcinogenic or toxic chemicals, Proposition 65 also prohibits the discharge or release of those chemicals
"into water or onto or into land where such chemical passes or probably will pass into any source of drinking water." Id. §25,249.5. For general commentary on Proposition 65 and its implementation, see Paulette L. Stenzel, Right-to- Know Provisions of California's Proposition 65: The Naivete of the Delaney Clause Revisited, 15 Harv. Envtl. L. Rev. 493 (1991); and Judith A. DeFranco, Note, California's Toxics Initiative: Making It Work, 39 Hastings L.J. 1195 (1988).
[FN462]. Cal. Health & Safety Code §25,249.10(a).
[FN463]. As a result, this exemption does not appear to limit the warning requirement beyond those limits required by the Supremacy Clause of the U.S. Constitution, U.S. Const. art. VI, cl. 2.
[FN464]. Cal. Health & Safety Code §25,249.10(c).
[FN466]. Cal. Code Regs. tit. 22, §12,703(b) (2000). There are three limited exceptions. See id. For criticism of this standard, see W. Kip Viscusi, Product-Risk Labeling: A Federal Responsibility 24-26 (1993); and Michael Barsa, Note, California's Proposition 65 and the Limits of Information Economics, 49 Stan. L. Rev. 1223, 1228-31 (1997).
[FN467]. Cal. Health & Safety Code §25,249.10(c).
[FN468]. See id. §25,249.7(c).
[FN469]. Id. §25,249.7(d) (West 1999 & Supp. 2001). For general commentary on citizen suits, see Julie Anne Ross, Comment, Citizen Suits: California's Proposition 65 and the Lawyer's Ethical Duty to the Public Interest, 29 U.S.F. L. Rev. 809 (1995).
[FN470]. See Cal. Health & Safety Code §25,192(2) (West 1992 & Supp. 2001). For a discussion of the
"bounty-hunter" provision and how it was received, see Kara Christenson, Interpreting the Purposes of Initiatives: Proposition 65, 40 Hastings L.J. 1031, 1059-60 (1989).
[FN471]. Cal. Health & Safety Code §25,249.6 (West 1999).
[FN472]. See supra pp. 584, 593.
[FN473]. See Clifford Rechtschaffen, The Warning Game: Evaluating Warnings Under California's Proposition 65, 23 Ecology L.Q. 303, 341-48 (1996). For example, manufacturers of products as diverse as flatware, food cans, brass faucets, submersible well water pumps, and crystal vases have significantly reduced or eliminated lead in their products. See id. at 341- 43.
[FN474]. To the extent that these manufacturers have out-of-state shareholders, however, even these measures give rise to cost externalization.
[FN475]. See supra section I.A.1, pp. 559-60.
[FN476]. See Cal. Attorney General's Office, Proposition 65 Litigation (May 1, 1996), at
[FN477]. Cal. Health & Safety Code §25,249.6 (West 1999).
[FN478]. See 42 U.S.C. §§11,001-11,050 (1994).
[FN479]. 29 U.S.C. §§651-652 (1994 & Supp. IV 1998).
[FN480]. 42 U.S.C. §11,022(a)(1). For commentary, see Eric M. Falkenberry, The Emergency Planning and Community Right-To-Know Act: A Tool for Toxic Release Reduction in the 90's, 3 Buff. Envtl. L.J. 1, 8-10 (1995).
[FN481]. 42 U.S.C. §11,023(a)-(b)(1). Standard Industrial Classification Codes 20-39 cover manufacturing facilities of a variety of products, including
"food, textiles, apparel, lumber, wood, furniture, paper products, chemicals, petroleum products, rubber and plastics, leather goods, stone, glass, clay, metals, machinery, and other miscellaneous goods." Sidney M. Wolf, Fear and Loathing About the Public Right To Know: The Surprising Success of the Emergency Planning and Community Right-To-Know Act, 11 J. Land Use & Envtl. L. 217, 225 n.49 (1996).
[FN482]. 42 U.S.C. §11,004(a)(1)-(2). For general commentary on EPCRA, see Kevin J. Finto, Regulation by Information Through EPCRA, 4 Nat. Resources & Env't 13 (1990); Rebecca S. Weeks, The Bumpy Road to Community Preparedness: The Emergency Planning and Community Right-to-Know Act, 4 Envtl. Law. 827 (1998); and Wolf, supra note 481.
[FN483]. See Rechtschaffen, supra note 473, at 341-43; Cal. Attorney General's Office, supra note 476, pts. A.18, A.15, A.22.
[FN484]. See John C. Dernbach, The Unfocused Regulation of Toxic and Hazardous Pollutants, 21 Harv. Envtl. L. Rev. 1, 41-42 (1997) (highlighting the absence of combustion byproducts from EPCRA lists).
[FN485]. The threshold levels for the general notification provisions of section 313 are defined at 42 U.S.C. §11,023(f)(1) (1994). The emergency notification provision of section 304 has parallel requirements, depending on whether notification is required under section 103(a) of CERCLA, 42 U.S.C. §9603(a). Compare 42 U.S.C. §11,004(a)(1) (governing releases requiring CERCLA notification), with id. §11,004(a)(2) (governing releases not subject to CERCLA notification requirements). When CERCLA requires notification, its provisions also establish the threshold amount. Id. §9602. Otherwise, the question is governed by EPCRA. Id. §11,004(a)(2).
[FN486]. 42 U.S.C. §11,023(f)(1). Under section 312, the EPA Administrator may establish thresholds as well. Id. §11,022(b).
[FN487]. Cal. Health & Safety Code §§25,249.6, 25,249.10 (West 1999).
[FN488]. See 42 U.S.C. §11,004(a)(1) (referencing CERCLA's exemption of
"federally permitted releases" at 42 U.S.C. §9603(a)); id. §11, 004(a)(2)(A). For the definition of
"federally permitted release," see 42 U.S.C. §9601(10).
[FN489]. See Cal. Health & Safety Code §§25,249.6, 25,249.10.
[FN490]. Cal. Code Regs. tit. 22, §12,601(d)(1) (1999). Workplace exposures require a product warning, posted signs in the workplace, or individual warnings to exposed employees, as appropriate. Id. §12, 601(c)(1). Consumer product exposures require product warning labels, store displays, or a public advertising campaign, as appropriate. Id. §12, 601(b)(1). The regulations impose stricter requirements on alcoholic products. See id. §12,601(b)(1)(D).
[FN491]. See 42 U.S.C. §11,023(a). The database is called the Toxic Release Inventory (TRI). See id. §11,023(j); Peter L. Gray, Environmental Data on the Internet: A Wired Public Setting Environmental Policy, 30 Envtl. L. Rep. 10,122, 10,122 (2000). News media sources have published data from the TRI since the database was created in 1988. Stenzel, supra note 461, at 521.
[FN492]. 42 U.S.C. §11,022(a). Some of this information is available to the public on request. See id. §11,022(e)(3).
[FN493]. Id. §11,004(b).
[FN494]. Id. §11,001(c).
[FN495]. But see Rechtschaffen, supra note 473, at 349-53 (arguing that the Proposition 65 warnings are insufficiently visible and informative to have the kind of positive impact that EPCRA has had).
[FN496]. However, none of these proposals was enacted. See Gatti, supra note 460, at 744 & n.29; James T. O'Reilly, Stop the World, We Want Our Own Labels: Treaties, State Voter Initiative Laws, and Federal Pre-Emption, 18 U. Pa. J. Int'l Econ. L. 617, 630 (1997).
[FN497]. See Public Right-To-Know and Children's Environmental Health Protection Act, H.R. 4234, 104th Cong. §§203, 208 (1996).
[FN498]. See Children's Environmental Protection and Right To Know Act, H.R. 1636, 105th Cong. §§112, 114 (1997).
[FN499]. See Children's Environmental Protection and Right To Know Act of 1999, H.R. 1657, 106th Cong. (1999).
[FN500]. The populations of California and the United States are approximately 33 million and 285 million, respectively.
[FN501]. Advisory Comm'n on Intergovernmental Relations, The Question of State Government Capability 364 (1985); see also Peter H. Schuck, Some Reflections on the Federalism Debate, in The Limits of Law: Essays on Democratic Governance 93, 94 (2000). Schuck argues:
Federalism had nourished some of America's most repellent and repressive political regimes, most notably in the deep South: lynchings tolerated if not abetted by state officials, governors barring black children from entering public schools, Bull Connor's dogs attacking civil rights demonstrators in Alabama, widespread poverty and disease in the Mississippi Delta, corrupt and insular Bourbon courthouse machines.
Id.; see also Barry Friedman, Valuing Federalism, 82 Minn. L. Rev. 317, 367-68 (1997) (discussing widespread lack of faith in states to solve critical social problems).
[FN502]. See Advisory Comm'n on Intergovernmental Relations, supra note 501, at 2.
[FN503]. See, e.g., DeWitt John, Civic Environmentalism: Alternatives to Regulation in States and Communities 274 (1994) ("[T]he institutional capacity of state governments ... is much greater today than ever before."); Schuck, supra note 501, at 94 ("Neither the federal government nor the states are even remotely what they were during the civil rights era, when many of our strongest impressions of the federal system were first formed."). For a general assessment, see Advisory Comm'n on Intergovernmental Relations, supra note 501, at 1-25. For a discussion of the improvement in the capacity of local governments, see Paul S. Weiland, Environmental Regulations and Local Government Institutional Capacity, 22 Pub. Admin. Q. 176, 196-97 (1998).
[FN504]. Advisory Comm'n on Intergovernmental Relations, supra note 501, at 2. For a summary of the study's findings and recommendations, see id. at 363-406.
[FN505]. For detailed studies of state political processes, see Daniel J. Elazar, American Federalism: A View from the States (3d ed. 1984); and Margeret E. Goertz, State Education Policy in the 1990s, in The State of the States 179, 187-203 (Carl E. Van Horn ed., 3d ed. 1996), describing state reform efforts in education.
[FN506]. See Andrew E. Busch, Political Science and the 1994 Elections: An Exploratory Essay, 28 PS: Pol. Sci. & Pol. 708, 709 (1995). For an earlier survey, see Advisory Comm'n on Intergovernmental Relations, supra note 501, at 365-66.
[FN507]. See History Office, EPA, Administrators, at
(last visited Nov. 6, 2001).
[FN508]. See id.
[FN509]. See id.
[FN510]. See id.
[FN511]. See id.
[FN512]. See id.
[FN513]. For a discussion of California's automobile emissions standards, see section III.A.1, pp. 585-88, above.
[FN514]. See History Office, supra note 507. In addition, Andrew Breidenbach (1976-1977) had served as Director of Research for the Solid Waste Management Division of the City of Cincinnati. See id.
[FN515]. See id.
[FN516]. For biographies of state environmental officials, see Envtl. Council of the States, Annual Report and Almanac (2000).
[FN517]. See id. at 22.
[FN518]. See id. at 23.
[FN519]. See id. at 24.
[FN520]. See id. at 26.
[FN521]. See id. at 31.
[FN522]. See id. at 36.
[FN523]. See id. at 41.
[FN524]. See id. at 1.
[FN525]. See EPA, What Is OTAG?, at
(last updated Apr. 17, 2001).
[FN526]. See Envtl. Council of the States, supra note 516, at 3.
[FN527]. See supra section III.D.2, pp. 617-20.
[FN528]. See Michael B. Gerrard, Trends in the Supply and Demand for Environmental Lawyers, 25 Colum. J. Envtl. L. 1, 3 (2000).
[FN529]. Clean Air Act Amendments of 1990, Pub. L. No. 101-549, 104 Stat. 2399 (codified as amended at 42 U.S.C. §§7401-7671q (1994 & Supp. II 1996)).
[FN530]. Pub. L. No. 101-380, 104 Stat. 484 (codified as amended at 33 U.S.C. §§2701-2761 (1994 & Supp. IV 1998)).
[FN531]. Pub. L. No. 101-508, §§6601-6610, 104 Stat. 1388, 1388-321 to 1388-327 (codified at 42 U.S.C. §§13,101-13,109 (1994)).
[FN532]. 42 U.S.C. §§7651-7651o (1994).
[FN533]. Id. §§7511-7515 (1994 & Supp. II 1996).
[FN534]. Id. §§7661-7661f (1994).
[FN535]. Pub. L. No. 104-182, 110 Stat. 1613 (codified as amended at 42 U.S.C. §§300f-300j and in scattered sections of 16 U.S.C., 21 U.S.C., 33 U.S.C., and 40
[FN536]. Pub. L. No. 104-170, 110 Stat. 1489 (codified as amended in scattered sections of 7 U.S.C. and 21
[FN537]. 42 U.S.C. §300g-1(b)(3)(C) (amended 1996).
[FN538]. See id. §300g-1(b)(1)(B) (Supp. II 1996). For a discussion of the 1996 amendments' effects on the regulation of water contaminants, see William E. Cox, Evolution of the Safe Drinking Water Act: A Search for Effective Quality Assurance Strategies and Workable Concepts of Federalism, 21 Wm. & Mary Envtl. L. & Pol'y Rev. 69, 91 (1997) ("[T]he pace of regulation promulgation was substantially slowed ...."); and Wendy P. Feiner, Note, Just When You Thought It Was Safe To Go Back in the Water: A Guide to Complying with the 1996 Amendments to the Safe Drinking Water Act, 4 Envtl. Law. 193, 196-200 (1997).
[FN539]. See 42 U.S.C. §300g-1(b)(3)-(4) (Supp. II 1996).
[FN540]. Id. §300g-1(b)(4) (1994) (amended 1996).
[FN542]. Id. §300g-1(b)(4)(C) (Supp. II 1996).
[FN543]. See id. §300g-1(b)(6)(A).
[FN544]. See id. §300g-1(b)(1)(C).
[FN545]. See id. §300g(c)(4).
[FN546]. James Smart provides a comprehensive analysis of the events leading to the passage of the FQPA. See James Smart, All the Stars in the Heavens Were in the Right Places: The Passage of the Food Quality Protection Act of 1996, 17 Stan. Envtl. L.J. 273 (1998); see also James Handley, The Food Quality Protection Act + EPA's Adverse Effects Reporting Rule = New Data and Better Pesticide Risk Decisions, 28 Envtl. L. Rep. 10, 241 (1998) (discussing enforcement and compliance issues relating to EPA's adverse effects rule); Alison D. Carpenter, Note, Impact of the Food Quality Protection Act of 1996, 3 Envtl. Law. 479 (1997) (describing the FQPA's changes to the existing scheme of pesticide regulation).
[FN547]. See 21 U.S.C. §348(c)(3)(A) (1994).
[FN548]. EPA, which is responsible under the FFDCA for setting permissible levels of pesticide residues, had employed a variety of tactics to avoid invoking the Delaney Clause. See Smart, supra note 546, at 283-86, 293-95. In 1992, however, the Ninth Circuit mandated strict application of the Delaney Clause, finding that
"Congress intended the EPA to prohibit all additives that are carcinogens, regardless of the degree of risk involved." Les v. Reilly, 968 F.2d 985, 986 (9th Cir. 1992), cert. denied sub nom. Nat'l Agric. Chems. Ass'n v. Les, 507 U.S. 950 (1993).
[FN549]. See 21 U.S.C. §321(s) (1994 & Supp. II 1996).
[FN550]. Id. §346a(n)(4).
[FN551]. See Smart, supra note 546, at 275.
[FN552]. See 21 U.S.C. §346a(b)(2)(C)(ii) (Supp. II 1996).
[FN553]. See id.
[FN554]. Smart, supra note 546, at 340.
[FN555]. 21 U.S.C. §346a(b)(2)(D)(viii).
[FN556]. 16 U.S.C. §§1531-1544 (1994).
[FN557]. Chemical Safety Information, Site Security and Fuels Regulatory Relief Act, Pub. L. No. 106-40, §§2, 3, 113 Stat. 207, 208 (1999) (amending 42 U.S.C. §7412(r)(4), (7)); Federal Reports Elimination Act of 1998, Pub. L. No. 105-362, §§402(b), 1501(b), 112 Stat. 3280, 3283, 3294 (repealing 42 U.S.C. §§7408(f)(3)-(4) and 7412(n)(2)(C)); Border Smog Reduction Act of 1998, Pub. L. No. 105-286, §2, 112 Stat. 2773 (amending 42 U.S.C. §7511(b) by adding subsection (h)); Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999, Pub. L. No. 105-277, §764, 112 Stat. 2681, 2681-36 to 2681-37 (1998) (amending 42 U.S.C. §7671c by adding subsections (d)(5), (d)(6), (e)(3), and (h)); General Accounting Office Act of 1996, Pub. L. No. 104-316, §122(r), 110 Stat. 3826, 3838 (repealing section 812(b) of the Clean Air Act Amendments of 1990); Federal Aviation Reauthorization Act of 1996, Pub. L. No. 104-264, §406(b), 110 Stat. 3213, 3257 (amending 42 U.S.C. §7571(a)(2) by adding subsection (B)); Act of Oct. 9, 1996, Pub. L. No. 104-260, §1, 110 Stat. 3175 (adding subsection (D) to the end of 42 U.S.C. 7506(c)(4)); Act of Dec. 23, 1995, Pub. L. No. 104- 70, §1, 109 Stat. 773 (amending 42 U.S.C. §7511a(d)(1)(B)); National Highway System Designation Act of 1995, Pub. L. No. 104-59, §305(b), 109 Stat. 568, 580 (amending 42 U.S.C. §7506(c)); Act of Nov. 2, 1994, Pub. L. No. 103- 437, §15(s), 108 Stat. 4581, 4594 (amending 42 U.S.C. §7625-1(a)(2)); Act of Dec. 4, 1991, Pub. L. No. 102-187, 105 Stat. 1285 (amending 42 U.S.C. §7412(b)(1)).
[FN558]. Coast Guard Authorization Act of 1998, Pub. L. No. 105-383, §411, 112 Stat. 3411, 3432 (amending 33 U.S.C. §1321(a)(8), (c)(4)(A), and adding subsection (a)(25)); Higher Education Amendments of 1998, Pub. L. No. 105-244, §102(a)(11), 112 Stat. 1581, 1620 (amending 33 U.S.C. §1262(a)(1)); Coast Guard Authorization Act of 1996, Pub. L. No. 104-324, §§1143-1144, 110 Stat. 3901, 3992 (amending 33 U.S.C. §1321(c)(3)(B), (j)(2)(A), (j)(4)(C)(v)); Water Resources Development Act of 1996, Pub. L. No. 104-303, §583, 110 Stat. 3658, 3791 (amending 33 U.S.C. §1269(e)); National Defense Authorization Act for Fiscal Year 1996, Pub. L. No. 104-106, §325(b)-(c), 110 Stat. 186, 254, 259 (1996) (amending 33 U.S.C. §1322 by adding subsection (n) and amending 33 U.S.C. §1362); Federal Reports Elimination and Sunset Act of 1995, Pub. L. No. 104-66, §2021(a)-(d), 109 Stat. 707, 726-27 (repealing 33 U.S.C. §§1252(d) and 1375(d), and amending 33 U.S.C. §§1311(n)(8) and 1324(d)(3)); Ocean Pollution Reduction Act, Pub. L. No. 103-431, §2, 108 Stat. 4396 (1994) (amending 33 U.S.C. §1311(j) by adding subsection (5)); Federal Acquisition Streamlining Act of 1994, Pub. L. No. 103-355, §8301(a), 108 Stat. 3243, 3396 (amending 33 U.S.C. §1368 by adding subsection (f)); Water Resources Development Act of 1992, Pub. L. No. 102-580, §364, 106 Stat. 4797, 4862 (amending 33 U.S.C. §1342(p)(1), (6)); Department of Transportation and Related Agencies Appropriations Act, 1993, Pub. L. No. 102-388, §349, 106 Stat. 1520, 1554 (amending 33 U.S.C. §1321(b) by adding subsection (12)).
[FN559]. Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, 1999, Pub. L. No. 105-276, tit. III, 112 Stat. 2461, 2497 (1998) (amending 42 U.S.C. §9619(e)(2)(C), (g)(5)); Act of Oct. 11, 1996, Pub. L. No. 104-287, §6(j), 110 Stat. 3388, 3399 (amending 42 U.S.C. §§9601(26) and 9607(c)(1)(C)); Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, §2502, 110 Stat. 3009, 3009-462 (1996) (amending 42 U.S.C. §9601(20) by adding subsection (E) and amending 42 U.S.C. §9607 by adding subsection (n)); National Defense Authorization Act for Fiscal Year 1997, Pub. L. No. 104-201, §§330-331, 334, 110 Stat. 2422, 2484, 2486 (1996) (amending 42 U.S.C. §9620(d), (h)(3), (h)(4)(A)); National Defense Authorization Act for Fiscal Year 1996, Pub. L. No. 104-106, §2834, 110 Stat. 186, 559 (amending 42 U.S.C. §9620(h)(3)); Act of Oct. 31, 1994, Pub. L. No. 103-429, §7(e), 108 Stat. 4377, 4390 (amending 42 U.S.C. §§9601(26) and 9607(c)(1)(C)); National Defense Authorization Act for Fiscal Year 1993, Pub. L. No. 102-484, §331(a), 106 Stat. 2315, 2373 (1992) (amending 42 U.S.C. §9619); Preventive Health Amendments of 1992, Pub. L. No. 102-531, §312(h), 106 Stat. 3469, 3506 (amending 42 U.S.C. §9604); Community Environmental Response Facilitation Act, Pub. L. No. 102-426, §3, 106 Stat. 2174, 2175-77 (1992) (amending 42 U.S.C. §9620(h) by adding subsection (4)).
[FN560]. See David Wallenberg, Great Expectations: Reviewing the 101st Congress, 21 Envtl. L. Rep. 10,008, 10,008 (1991) ("The 101st Congress in 1989 and 1990 was one of the most environmentally active congresses in two decades."); supra p. 631.
[FN561]. Cf. James E. Satterfield, High Hopes and Failed Expectations: The Environmental Record of the 103d Congress, 25 Envtl. L. Rep. 10,089, 10,090 (1995) ("During the 103d Congress, efforts to reform health care, reduce the deficit, combat crime, and approve trade acts such as [NAFTA] consumed enormous amounts of congressional time.").
[FN562]. See James E. Satterfield, A Tale of Sound and Fury: The Environmental Record of the 102d Congress, 23 Envtl. L. Rep. 10,015, 10,020-25 (1993).
[FN563]. See Adam Clymer, The Gridlock Congress: The 102d Will Be Remembered as Much for Its Embarrassments as Its Legislation, N.Y. Times, Oct. 11, 1992, at A1. This lack of accomplishment is not surprising given that following the election of this Congress, the White House Chief of Staff announced:
"There's not a single piece of legislation that needs to be passed in the two years forthis President. In fact, if Congress wants to come together, adjourn and leave, it's all right with us. We don't need them." Id. (internal quotation marks omitted).
[FN564]. See Satterfield, supra note 561, at 10,090.
[FN565]. Id. at 10,102.
[FN566]. See James E. Satterfield, A Funny Thing Happened on the Way to the Revolution: The Environmental Record of the 104th Congress, 27 Envtl. L. Rep. 10,019, 10,020 (1997). For a journalist's account of the magnitude of the proposals, see Cindy Skrzycki, Hill Republicans Promise a Regulatory Revolution: Lawmakers Target Rules and Rulemakers, Wash. Post, Jan. 4, 1995, at A1.
[FN567]. Satterfield, supra note 566, at 10,026-28. Congress instead enacted a more narrow regulatory proposal: the Small Business Regulatory Enforcement Fairness Act of 1996, Pub. L. No. 104-121, §251, 110 Stat. 868, 868-74 (codified at 5 U.S.C. §§801-808 (Supp. II 1996)). The Act gives Congress sixty days to review
"major" federal rules before they become final.
[FN568]. See Michael J. O'Grady, Going Nowhere Fast: The Environmental Record of the 105th Congress, 29 Envtl. L. Rep. 10,085, 10,087 (1999) (
"Legislators began the 105th Congress with a list of environmental legislation that required reform. Partisan politics and the general legislative malaise doomed most efforts to pass any of the 105th Congress' environmental priorities.").
[FN569]. This summary has not dealt with the Clinton Administration's actions with respect to federal lands.
[FN570]. A number of commentators have reached similar conclusions based on earlier assessments. See John, supra note 503, at 80 ("Virtually all states have taken some steps to go beyond federally imposed requirements, and some have taken the lead in several areas."); Evan J. Ringquist, Environmental Protection at the State Level: Politics and Progress in Controlling Pollution, at xiii (1993) ("[I]n many instances state governments, not 'the feds,' are at the forefront in efforts to protect the environment."); David L. Markell, States as Innovators: It's Time for a New Look to Our
"Laboratories of Democracy" in the Effort To Improve Our Approach to Environmental Regulation, 58 Alb. L. Rev. 347, 355 (1994) ("[I]nnovations at the state level are likely to hold a great deal of promise as potential strategies for addressing concerns about federal approaches to environmental regulation."); Portney, supra note 166, at 283 ("Over the past decade or so some of the most interesting environmental initiatives have arisen at the state level.").
While Congress failed to enact any innovative pollution control measures, federal agencies undertook a number of important regulatory initiatives during the 1990s. For example, in 1997, EPA strengthened the National Ambient Air Quality Standards for Particulate Matter and Ozone. 40 C.F.R . §50.7 (1999). The D.C. Circuit struck down these standards on nondelegation grounds. See Am. Trucking Ass'ns v. EPA, 175 F.3d 1027, 1034, modified, 195 F.3d 4 (D.C. Cir. 1999). The Supreme Court reversed. Whitman v. Am. Trucking Ass'ns, 121 S. Ct. 903 (2001).
[FN571]. A number of recent studies, however, cast doubt on this view. For example, Evan Ringquist notes that with respect to air pollution, "[s]tates with strong polluting industries appear to be able to resist industry pressure and pass tougher air pollution control regulations, though the same fortitude is not displayed when it comes to resisting the demands of electric utilities." Ringquist, supra note 570, at 193. With respect to water pollution, "[s]tates are able to resist pressures for lax regulations from heavily polluting industries, but this political backbone is lacking when it comes to resisting pressures from mining industries." Id.; see also id. at 117-20, 161-65 (discussing and analyzing various causal models of group policy influence); Barton H. Thompson, Jr., Environmental Policy and State Constitutions: The Potential Role of Substantive Guidance, 27 Rutgers L.J. 863, 893 (1996) (suggesting that
"industry groups generally do not enjoy undue influence in resisting stronger environmental laws" at the state level).
[FN572]. See supra section I.A.1, pp. 559-60.
[FN573]. League of Conservation Voters, 1999 National Environmental Scorecard (Feb. 2000), available at
[FN574]. The pattern that emerges from using means rather than medians is quite similar. Using medians, however, limits the influence of outliers on the ratings.
[FN575]. See Bob Hall & Mary Lee Kerr, 1991-92 Green Index 3 (1991). For other environmental rankings, see Ringquist, supra note 570, at 106, 158; David M. Hedge & Michael J. Scicchitano, The States and Environmental Regulation in the 1980s: A Test of the New Federalism, in State Policy Problems 129, 139 (Fred A. Meyer, Jr. & Ralph Baker eds., 1993); and James P. Lester, James L. Franke, Ann O'M. Bowman & Kenneth W. Kramer, Hazardous Wastes, Politics, and Public Policy: A Comparative State Analysis, 36 W. Pol. Q. 257, 268 (1983).
[FN576]. Delaware and Hawaii were the only exceptions. See Hall & Kerr, supra note 575. For a discussion of the rankings of states by environmental policy, see Hedge & Scicchitano, supra note 575, at 134-41.
[FN577]. For more general discussion of differences in public opinion across the states, see Robert S. Erikson, Norman R. Luttbeg & Kent L. Tedin, American Public Opinion: Its Origins, Content, and Impact 195-99 (3d ed. 1988); and Robert S. Erikson, Gerald C. Wright & John P. McIver, Statehouse Democracy: Public Opinion and Policy in the American States 47-72 (1993). For discussion of the relationship between these differences and the adoption of public policies, see id. at 73-95.
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