By Dave Kopel
National Review Online, June 19, 2002 9:40 a.m. More by Kopel on Superfund.
A Senate bill is being introduced to reinstate the federal business tax that pays for the Superfund program, a highly dubious environmental program to clean up toxic-waste sites. Lead sponsor Lincoln Chafee (R., R.I.) warns, "We are running out of the fund in Superfund." The Bush administration, though, has not supported reauthorization of the tax, which expired in 1995. If President Bush stands firm, he will win an important victory for federalism, the Bill of Rights, the environment, and public safety. Superfund is a failure, perhaps the most ineffective of all federal environmental programs.
The Superfund law (formally known as CERCLA — the Comprehensive Environmental Response, Compensation and Liability Act) was enacted during the Carter administration thanks to an episode of panic and misinformation about the Love Canal incident in New York, a panic intensified by President Carter's declaration of a state of emergency. During the 2000 presidential primaries, Al Gore claimed to have "found a little place in upstate New York called Love Canal," although he did no such thing. Gore did, however, chair the first congressional hearings over Love Canal, and it now turns out that most of what Congress thought it knew about Love Canal was wrong.
In the 1940s and '50s, Hooker Chemical Company and the city government of Niagara Falls disposed of various waste chemicals, many quite toxic, in a dry canal bed which was no longer used for water transportation. Against the wishes of Hooker, the city government took over the disposal site, built a school on it, and began other development that punctured the clay cap Hooker had placed on the waste.
By 1977, a large volume of foul odors had begun to emerge from the Love Canal waste site, to the consternation of neighbors. A local woman named Lois Gibbs made herself into a nationally recognized environmental activist by leading a campaign of terrified citizens. Years later, the New York Times ran an adoring profile of Gibbs and her fight for children's safety; the story was accompanied by a photograph of the pregnant Mrs. Gibbs smoking a cigarette. As it turned out, Mrs. Gibbs wasn't very good at judging health risks.
There was in fact no emergency, and subsequent scientific investigations have found no evidence that anyone has suffered any health problems from the Love Canal — except for problems resulting from the stress created by the panic-mongers. Not that the facts will stop the disinformation, even today; a frantically pro-Superfund article by Margaret Kriz in the June 1 National Journal repeats as fact the urban legend that half of all children born in the Love Canal neighborhood had birth defects. Ms. Kriz neglects to inform readers about the 1983 study by the Centers for Disease Control found no evidence of chromosomal abnormality or damage associated with Love Canal.
As with the misnamed USA Patriot Act, the "do something — do anything" political climate that prompted CERCLA's 1980 enactment led to a little-understood law with very serious civil-liberties problems. Once EPA puts a site on its National Priorities List, all past and present owners of the site, and anyone who has contributed the tiniest amount of waste to the site, are jointly, severally, and strictly liable for the full cost of clean-up — regardless of whether their past actions were in good faith and in full compliance with the highest environmental standards of the time. If nobody can pay for the clean-up at an "orphan site," a special federal tax (the tax that Sens. Chafee, Boxer, and Torricelli are fighting to re-enact) puts money into a "Superfund" to pay for clean-up. In theory, CERCLA sounded great, but in practice it has been a disaster.
First, the clean-up standards bear no particular connection to reality. Clean-up standards are frequently driven by a determination to chase tiny amounts of pollutants (parts per trillion or quadrillion) all the way down to the detection limit. The clean-up standards are frequently set on the basis of implausible land-use scenarios. For example, a tract in an industrial park may have to make its dirt so clean that small children could eat the dirt regularly without even a tiny risk of adverse effects.
Because anyone who disposed any waste in a Superfund site is liable for the full cost of the clean-up, pizza parlors, and other small businesses that generate very low-toxicity waste have been sued for millions of dollars because they sent their garbage to a municipal landfill that began to leak decades later.
Second, Superfund's enforcement mechanisms are contrary to due process. No matter how arbitrary or misguided an EPA clean-up order, recipients of the order are not even allowed to petition a court to review the order before it is enforced.
The "entry" provision of Superfund's section 104 conflicts with the language and traditional understanding of the Fourth Amendment, since the provision allows any EPA employee to enter "any... facility, establishment, or other place or property where any hazardous substance or pollutant or contaminant may be or has been generated, stored, treated, disposed of, or transported from." Even a discarded bottle of nail polish, or an empty can of paint thinner count as a "hazardous substance" under Superfund, thus authorizing the EPA entry into almost every home or business in the United States without a search warrant.
And then there's the Superfund tax, which is itself quite unfair. Contrary to what Kriz asserts in her mostly inaccurate National Journal article, the Superfund tax was not paid by polluters. The tax was a combination of a corporate Environmental Income Tax that applied to every type of corporation (even businesses making pollution control equipment!), a petroleum tax, and a tax on chemical feedstock. Yet Kriz propagates as fact the palpably false Democratic attack line being prepared for the November elections: that the Superfund tax only applied to polluting businesses whose conduct created dangerous waste sites.
Under the Bush 41 administration, J. Winston Porter, the EPA's Assistant Administrator for Solid Waste and Emergency Response, ran the Superfund program aggressively. In 1995, Porter authored a Reason Foundation study, "Cleaning Up Superfund: The Case for State Environmental Leadership" explaining that, while Superfund has proven very expensive for both the public and the federal government, the program has produced a poor environmental return for the money. Porter proposed amending Superfund to give the lead enforcement role to state governments, and revising the unrealistic clean-up standards.
An even better approach would simply be to repeal the federal law entirely, as the Cato Institute's Jerry Taylor has proposed (and in the meantime, not to throw good money after bad by reenacting the Superfund tax). About 40 states already have state law analogues of CERCLA. All the rest have other hazardous-waste statutes that are already used to enforce clean-ups at sites where EPA does not get involved. Under state control, site clean-up can be less bureaucratic. And, because state and local governments are more subject to democratic control than the EPA, we would see fewer instances of the government "saving" an area with draconian measures to chase away the last molecule of a substance — all the while destroying an area's economy against the wishes of the residents.
Kriz argues that state resources aren't adequate to pay for pristine clean-up programs at some very large orphan sites; she elides the fact that federal and state revenues both come from the same source: the taxpayers. If the people of a given state are unwilling to raise their own taxes (or to cut other government services) in order to pay for the ultra-expensive, over-protective remedies favored by Ms. Kriz, the public's unwillingness suggests that spending hundreds of millions of dollars to make abandoned factories as sanitary as day-care centers isn't a good idea.
The political advantage of the federal Superfund tax is that it extracts money from consumers indirectly — by imposing costs on oil and chemical producers (that's producers, not polluters), and by taxing business generally. Of course, as with all businesses taxes, the American people still bear the ultimate burden, in the form of higher prices on the goods they purchase, lower returns on their pension savings, and so on. But the burden is concealed, thereby allowing advocates of wasteful and extreme clean-up standards to evade democratic accountability.
More fundamentally, clean-up of waste sites is precisely the kind of environmental concern the Constitution leaves to state and local governments. If someone in Minnesota pollutes the Mississippi River, he harms the people of Iowa and other downstream states; thus, pollution of interstate rivers is a legitimate federal concern. In contrast, ground pollution at landfills is thoroughly local; the pollution typically migrates at the rate of feet per year.
Congress's power to enact CERCLA in the first place is supposedly based on congressional authority over interstate commerce, but the assertion of that power is dubious. Unlike pollution of many of the rivers covered by the Clean Water Act, the sites covered by CERCLA do not substantially endanger interstate commerce. In the 1995 Lopez case and the 2001 Morrison case, the Supreme Court affirmed that Congress's power to regulate interstate commerce is not equivalent to a power to regulate everything which has a tenuous, indirect relation to interstate commerce.
Most lower federal courts, though, have shown themselves as hostile to the commands of Lopez/Morrison(and to limits on congressional power) as Mississippi school boards were to the desegregation order of Brown v. Board of Education. Thus, the lower courts continue to insist that CERCLA really does regulate interstate commerce. These lower-court decisions ultimately trace their rationales back to the 1982 Supreme Court case Sporhase v. Nebraska.
There, the majority of the court ruled that the federal interstate commerce power applied to the Ogallala aquifer, an immense groundwater reserve spanning several Midwestern states. Since most CERCLA sites pollute groundwater, Sporhase requires that CERCLA be deemed constitutional, the lower courts claim. But the Supreme Court's recognition of congressional power over vast bodies of interstate water is hardly a solid precedent for congressional control over the vast majority of Superfund sites whose pollution will never travel outside a single county, let alone cross state lines.
Another lower-court rationale for CERCLA's constitutionality is that the pollution was created by an economic activity (typically, as a byproduct of manufacturing), and that pollution, in the aggregate, substantially affects interstate commerce. But this theory is also shaky. Lopez struck down the federal Gun-Free School Zones Act, even though guns are produced by economic activity and even though gun misuse, in the aggregate, substantially affects interstate commerce.
Even though many lower federal courts try to evade the Supreme Court's enforcement of constitutional limits on congressional power, conscientious senators and representatives — and the president — can still respect the Founders' wisdom that local problems ought to be addressed by local governments. As Congress and the president struggle to carry the burdens that the Constitution really does place on the federal government — especially protecting our nation from foreign attack — they should acknowledge that the time has come for the federal government to focus on doing a finite number of jobs very well. They should abandon the failed policy of trying to do everything, the result of which is not doing anything very well. Let our state and local governments take care of health threats from local pollution — the better for the federal government to protect us from the health dangers of nuclear, chemical, and biological warfare launched by our foreign enemies.
— Dave Kopel formerly served as an assistant attorney general for the state of Colorado, specializing in civil enforcement of state and federal hazardous waste laws. He is the coauthor of RCRA Demystified: The Professional's Guide to Hazardous Waste Law.