The Superfund Debate
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Description
During the last decade, the Superfund approach to environmental liability and remediation has become highly controversial. The costs of remedying the environmental problems caused by hazardous substances are great, although Superfund is far from the most costly U.S. environmental program. Its annual costs are in the range of $3 to $5 billion—a fraction of the costs of the federal air or water pollution regulation programs. Much of the controversy generated by Superfund stems from is far-reaching statutory system of liabilities, which goes far beyond that of the common law. Liability is strict; no showing of fault of negligence on the part of a defendant is required. Liability is retroactive, in the sense that deposits of waste that occurred before Superfund’s enactment can form the basis for liability for remedial costs incurred after its enactment. Liability is also joint and several; unless a defendant can show that the risk or harm attributable to it is “divisible,” each of the defendants in some way responsible for the wastes at a site can be potentially singled out to bear all of the cleanup costs. The broad net of Superfund liability included current and past owners and operators of waste sites and waste generators and transporters. Defendants at Superfund sites include not only large industrial firms, but also a broad array of other entities – municipalities, local dry cleaners, hospitals, and a myriad of small businesses. As a result of this expansive liability regime, Superfund also has had significant effects on the real estate, banking, and insurance industries, as well as on the legal profession. Defendants have criticized the cleanup levels demanded by the U.S. Environmental Protection Agency (EPA) as excessively stringent and costly. Superfund is also widely regarded as a wasteful and inefficient program, plagued by high transaction costs, serious administrative deficiencies, and long delays in cleaning up sites. After a contentious debate, the 103rd Congress failed to reauthorize Superfund in 1994. The debate will be renewed in the 104th Congress; in light of the changed political composition of the new Congress, significant amendments may well be adopted. Critics of the current system have urged major changes. The most far-reaching could replace the current system of liability with a tax-funded public works program. Many environmental groups, however, strongly defend the basic features of the Superfund program as essential to fund the cleanup of past hazardous waste problems and to provide strong incentives to prevent them from recurring in the future. Legislative changes to the current program are likely to focus on moderating required cleanup levels, reducing the scope of liability, limiting retroactivity, and creating an expanded cleanup fund financed by insurers. The purpose of this book, based on the papers presented at the Conference on Superfund Reauthorization: Theoretical and Empirical Issues, which took place at the New York University School of Law on December 3-4, 1993, is to provide a serious look at the issues most relevant to the reauthorization debate and the future of the program. To aid the reader to this end, we introduce in this chapter the relevant components of Superfund statute itself, including the liability and taxing regimes, the impact of the liability regime on various sectors of the U.S. economy, the site cleanup process, and the determination of cleanup standards. We then summarize the conference papers (now the chapters in this book) and their links to the ongoing public policy debate. The issues addressed are basic to understanding Superfund and will continue to be relevant long after reauthorization. Although the issues are related, each chapter is self-sufficient. Readers interested in particular issues can accordingly limit their attention to the pertinent chapters.
Source Publication
Analyzing Superfund: Economics, Science, and Law
Source Editors/Authors
Richard L. Revesz, Richard B. Stewart
Publication Date
1995
Recommended Citation
Revesz, Richard L. and Stewart, Richard B., "The Superfund Debate" (1995). Faculty Chapters. 1944.
https://gretchen.law.nyu.edu/fac-chapt/1944
