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Do We Still Need The EPA? What Will The Future Bring? How About Social Capital?

We've moved from Love Canal where the government had to force cleanup of environmental contamination to commonly understood requirements for current cleanups, and even to Voluntary Cleanups, which were restored to economic viability by the Supreme Court within just the last month after it (I think mistakenly) decimated them three years ago.  Now we're looking to the future of government regulation of environmental contamination as we stare down an upcoming presidential election.

Conventional wisdom wags predict more regulation and environmental cleanup if we switch to a Democratic administration.  But is that really the relevant question?  Where is the current system of environmental regulation headed?

Sure, the USEPA is responsible for clean air, soil, water and even groundwater.  But so are the several states.  Well, more like all fifty of them.  And virtually each one of them has their own "mini-EPA" acts.

Given 50 versions of the same thing, do we still need one big one?

Now I'm not one to invoke either the Federalist papers or even a nationalistic view that more is better and so is centralized administration, but the US Constitution has this little thing called the Commerce Clause (for fellow lawyers, even the Dormant Commerce Clause).  For those who didn't spend at least four weeks in a law school ConLaw class going over in excruciating detail the multitude of variations in the Commerce Clause, I can reduce it to one relevant point for the purpose of this discussion.  If the federal government has evidenced its intent to "occupy the field" of regulation, then the states can't regulate the same thing, unless the states enact stricter standards and don't interfere with interstate commerce, subject to some balancing of discriminatory effect and varying levels of inquiry, but the two latter tests are beyond the scope of this analysis.

It's a lot more complicated than that, but that short little definition should suffice for the purposes of the headline's question.  It's pretty obvious that Congress intended to regulate the environment through the USEPA, as it has since 1972 when it convulsed in reaction to Love Canal and spit out Superfund, one of the first comprehensive set of environmental statutes adopted in the country.  It's equally obvious, however, that the several states wanted their own say.

So that each state could deal with its own unique environmental issues - say burning everglades in Florida (prohibited) and burning fields in Idaho (permitted) - each state subsequently and separately over the last 30 years or so created its own set of environmental laws, each universally more strict than those regulations adopted by the USEPA.  But Federalism has its merits.  There is for the most part an oddly unique similarity of each state's environmental laws to those adpoted by Congress and the regulations promulgated by the USEPA.

Even so, given those 50 sets of stricter regulations, why do we still need the USEPA

It's a massive monster that moves very slowly and produces enormously difficult to understand and even harder to implement guidelines, which are treated as gospel within the industry.  That level of detail simply can't be independently produced by a single state, so collectively, we have the USEPA to create that kind of pain.

On the other hand, by now the consultants and the regulators have that dance down to a science.  We understand what is required to comply, and the consultants, lawyers and businesses comply.  Heck, even the oil companies just voluntarily clean up leaking underground storage tanks in gas stations around the country.  They hardly have to be told to do it any more.

We have even informally developed a system of relegating contamination cleanups between the USEPA and the states based on the logical criteria of the size and amount of the contamination.  The USEPA takes the big ones, the states take the small ones and the ones in the middle are usually kicked back to the states by the USEPA.  But even without this division of responsibility, the marketplace has become a major driver. 

As MIPTC noted just recently, the Supreme Court restored sanity to voluntary cleanups.  Those who cleanup contamination without being ordered to do so by the federal government can sue others who contributed to the contamination, even if the company conducting the voluntary cleanup also contributed to the contamination.  Good old capitalism comes to the rescue.

Certainly cleanups don't always work voluntarily, and the number of lawsuits brought by both the USEPA and the various state enforcement agencies confirm the need for some level of regulation.  Capitalism can't cure everything, but neither can a socialist approach.

But I think a combination of the two can do a better job than either independently.  Imagine an incentive-based government agency.  Sure, it's been proposed before, and dismissed with the alacrity of someone trying to marry Machiavelli's The Prince with Karl Marx's The Communist Manifesto.

But imagine, for a moment, a successful marriage of the two.  In a way, as I've described above with the cooperation of businesses and the government, we've already got a version of it.  There are many kinks in the current process, but the compatibility of social goals of clean air, soil, and water merge with business goals of profit, especially where both goals have a common understanding established by statute and regulation.

MIPTC predicts that the future of environmental law will involve some version of business and government cooperation to replace both the USEPA, the state regulatory agencies and the independence of business to form a new socially capitalistic venture.

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Friday, July 20, 2007 at 00:19 Comments Closed (0) |
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