Subsidiarity and Solidarity: Lenses for Assessing the Appropriate Locus for Environmental Regulation and Enforcement
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Subsidiarity and Solidarity: Lenses for Assessing the Appropriate Locus for Environmental Regulation and Enforcement
Jerome M. Organ 0
0 University of St. Th omas School of Law
L o c u s FOR
JEROME M. ORGAN*
This article will use the principles of subsidiarity, solidarity and the
common good to analyze the extent to which some specific aspects of the
environmental statutory and regulatory regimes in the United States are
"rightly ordered." Specifically, this article will look at aspects of two
differ. ent environmental regulatory systems-the Resource Conservation and Re
covery Ad (RCRA) and the Comprehensive Environmental Response
Compensation and Liability Act2 (CERCLA)-to evaluate whether princi
ples of subsidiarity, solidarity and the common good suggest that the locus
of regulation and enforcement makes sense as presently structured.
Section II begins with an outline of subsidiarity, solidarity and the
common good and evaluates these principles in contrast to considerations of
economics and political science, which are more frequently used within sec
ular discussions of the need for, and appropriate locus of, environmental
regulation. 3 Section III then analyzes how these principles apply to RCRA
and CERCLA: first, the section suggests that RCRA is largely "rightly or
dered" in terms of being a regulatory system in which regulation is de
signed and promulgated at the federal level, implemented and enforced at
the state level, and considered by individual businesses when deciding upon
manufacturing processes that may (or may not) generate hazardous wastes
subject to regulation;4 second, the section suggests that in contrast to
RCRA, CERCLA is a regulatory system inappropriately ordered toward
federal control (at least in part) when state or local control might be more
appropriate.s In conclusion, Section IV contains a brief discussion of how
the principles of subsidiarity; solidarity and the common good might pro
vide a useful methodology for evaluating other environmental regulatory
UNDERSTANDING SUBSIDIARITY, SOLIDARITY AND THE
In Quadragesimo Anno, Pope Pius XI set forth the principle of sub
sidiarity by stating:
1. 42 U.S.C.A. §§ 6901-6922k (West 2008).
2. 42 U.S.C.A. §§ 9601-9675 (West 2008).
3. See infra notes 7-19 and accompanying text.
4. See infra notes 20-65 and accompanying text.
5. See infra notes 66-98 and accompanying text.
6. See infra note 98 and accompanying text.
Just as it is gravely wrong to take from individuals what they can
accomplish by their own initiative and industry and give it to the
community, so also it is an injustice and at the same time a grave
evil and disturbance of right order to assign to a greater and
higher association what lesser and subordinate organizations can
do. For every social activity ought of its very nature to furnish
help to the members of the body social, and never destroy and
Because subsidiarity suggests that social activity should help the "members
of the body social," the principle of subsidiarity is not so much a founda
tional principle of Catholic Social Thought on its own as it is an instrumen
tal principle designed to promote one of the foundational principles of
Catholic Social Thought: the common good. 8 The principle of subsidiarity
posits that the common good is best served when decision-making regard
ing actions and activities is delegated to the local entity-to the smallest
organization-best able to make the decision.9
The range of entities contemplated by Catholic Social Thought is in
structive because Catholic Social Thought encompasses both private actors
as well as public actors-from individuals and associations (businesses or
communal associations) to local governments, state governments and the
federal government. The United States Conference of Catholic Bishops in
Economic Justice for All perhaps best described the relationship between
The primary norm for determining the scope and limits of govern
mental intervention is the "principle of subsidiarity" . . . . This
principle states that, in order to protect basic justice, government
should undertake only those initiatives which exceed the capaci
ties of individuals or private groups acting independently. Gov
ernment should not replace or destroy smaller communities and
individual initiative. Rather it should help them contribute more
effectively to social well-being and supplement their activity
when the demands of justice exceed their capacities. This does
not mean, however, that the government that governs least, gov
erns best. Rather it defines good government intervention as that
which truly "helps" other social groups contribute to the common
7. Pius XI, Quadragesimo Anno, 'J[ 79 (May 15, 1931), available at http://www.vatican.vaJ
8. Pontifical Council for Justice and Peace, Compendium oj the Social Doctrine oj the
Church, 'J[ 188 (Apr. 2, 2004), available at http://www.vatican.vaJroman_curiaJpontificaCcoun
DUCTION [hereinafter Compendium] ("In any case, the common good correctly understood, the
demands of which w~ll never in any way be contrary to the defence and promotion of the primacy
of the person and the way this is expressed in society, must remain the criteria for making deci
sions concerning the application of the principle of subsidiarity.").
9. [d. 'J[ 186.
good by directing, urging, restraining, and regulating economic
activity as "the occasion requires and necessity demands."l0
Because the principle of subsidiarity is ordered toward promoting the
common good, questions of solidarity also must be considered when deter
mining the best level of decision-making,u Solidarity is defined as:
[N]ot a feeling of vague compassion or shallow distress at the
misfortunes of so many people, both near and far. On the con
trary, it is a firm and persevering determination to commit oneself
to the common good; that is to say, to the good of all and of each
individual, because we are all really responsible for all. 12
Taken together, the principles of subsidiarity and solidarity direct that
the best level of decision-making depends on each level's ability to serve
the common good. Thus, if the decisions of individuals or private groups
are ordered toward the common good or the "good of all" rather than
merely toward self-interest, then the principles of solidarity and subsidiarity
suggest that it is appropriate to leave decision-making regarding economic
activity in the hands of individuals and private groups (without interference
from government regulation). If, on the other hand, the decisions of individ
uals or private groups are not ordered toward the common good but are
ordered toward self-interest, then some governmental regulation may be
necessary to restrain economic activity that may be harmful to the common
The introduction of government regulation invites the question of the
level at which government regulation should take place: local, state or fed
eral? An analysis similar to the test to determine the need for government
regulation should direct the determination of the appropriate locus of deci
sion-making and regulation. If the local governmental unit is capable of
engaging in efficient, cost-effective regulatory activities-and is likely to
order its decision-making toward the common good (not just the good of all
members of the local community, but to the "good of all")-then it should
be entrusted with regulatory authority. If the local government either is not
equipped to engage in the regulatory activity or is not likely to order its
decision-making toward the common good, then the state government may
be better situated to be the locus of regulatory authority. Finally, if the state
government either is not equipped to engage in the regulatory activity or is
not likely to order its decision-making toward the good of all (including
those outside the state), then the federal government may be better situated
to be the locus of regulatory authority.
Notably, this set of principles aligns well with some of the economic
literature relating to the system of environmental regulation that has devel
oped in the United States. One of the primary economic justifications for
environmental regulation is that the economic self-interest of individuals or
groups of people acting in concert (through a business, for example) will
generally result in inadequate attention to environmental concerns because
these individuals and businesses fail to act on the principle of solidarity
they fail to make decisions based on the "good of all," focusing instead on
their own goOd. 14
While economic concerns justify some types of environmental regula
tion to promote the common good, the economic analysis does not help
much in determining the appropriate locus for such regulation, whether it is
the local, state or federal level. Within the United States constitutional
structure, the concept of federalism frequently provides the touchstone for
discussing at what governmental level environmental regulation should re
side-some authority is provided to the federal government, while some
authority is reserved to the states-but this does not inherently suggest a
preference for regulation at the "lowest, appropriate" level of government in
a manner truly consistent with the concept of subsidiarity. IS Further, the
political and legal analysis of the appropriate locus of regulation may be
very nuanced in accounting for a variety of concepts such as human and
14. Individuals and businesses enjoy the' economic benefits of their decisions regarding their
actions or activities, but frequently distribute the economic costs over other actors and entities
imposing external costs on others that are not internalized in the individual's or business's deci
sion-making. The most famous description of this in an environmental context is The Tragedy of
the Commons, in which Garrett Hardin describes how decision-makers in a "commons" will make
individually rational but collectively irrational decisions because of the lack of pricing with re
spect to collectively owned resources. Garrett Hardin, The Tragedy of the Commons, 162 SCIENCE
1243 (1968); see also Henry N. Butler and Jonathan R. Macey, Externalities and the Matching
Principle: The Case for Reallocating Environmental Regulatory Authority, 14 YALE J. ON REG.
23, 29 (1996).
15. See George A. Bermann, Taking Subsidiarity Seriously: Federalism in the European
Community and the United States, 94 COLUM. L. REv. 331, 403-407 (1994) (noting that the
federalism structure within the U.S. Constitution allocates authority between the federal govern
ment and the states, but also recognizing that this dual sovereignty system between states and the
federal government does not necessarily describe a preference for local decision-making (even
though more recent commentators have begun to assert such a preference)); Daniel C. Esty, Revi
talizing Environmental Federalism, 95 MICH. L. REv. 570, 571 n.5 (1995) (describing different
conceptions of federalism-one of which recognizes shared power among different levels of gov
ernment and one of which exhibits a preference for decentralized decision-making); Erin Ryan,
Federalism and the Tug of War Within: Seeking Checks and Balances in the Interjurisdictional
Gray Area, 66 MD. L. REv. 503, 519-20, 623-24 (2007) (discussing the dual sovereignty re
flected in various provisions of the U.S. Constitution and noting that "new" federalism reflects a
preference for local decision-making, but that subsidiarity adds a gloss relating to the capacity of
the local unit to engage appropriately in addressing whatever the specific situation happens to be).
financial resource capacity, interjurisdictional competition,16 public choice
theory (and other theories of regulation)17 and regulatory capture,18 each of
which may speak to the extent to which a given governmental entity is more
or less equipped than other governmental entities to accomplish the purpose
behind a statutory or regulatory regime. Nonetheless, the political and legal
analysis through the "federalism" lens never quite encompasses the com
mon good in the same way as Catholic Social Thought. 19
ANALYZING RCRA AND CERCLA THROUGH THE LENSES OF
SUBSIDIARITY, SOLIDARITY AND THE COMMON GOOD
The analytical structure of the principles of subsidiarity and solidarity
can be applied to RCRA and CERCLA to determine if these statutory struc
tures are "rightly ordered" in how they address the problems associated
with the management, treatment, disposal and remediation of hazardous
wastes and hazardous substances. Both statutes present interesting analyti
RCRA and CERCLA first need to be understood in context. RCRA
was enacted in 197620 to address prospectively the management of "solid
waste"21 and "hazardous wastes."22 CERCLA was enacted in 1980.23 Both
16. See Richard B. Stewart, Pyramids of Sacrifice?: Problems of Federalism in Mandating
State Implementation of National Environmental Policy, 86 YALE L.J. 1196, 1210-20 (1977)
(identifying a concern about a "race to the bottom" as one of several justifications for the move
ment toward centralized, federal environmental regulation); but see Richard L. Revesz, Rehabili
tating Interstate Competition: Rethinking the "Race-to-the-Bottom" Rationale for Federal
Environmental Regulation, 67 N.Y.U. L. REV. 1210 (1992) (challenging the "race to the bottom"
rationale as a continuing justification for centralized, federal environmental regulation); see also
Esty, supra note 15, at 600-08 (describing both analyses and providing some critique of Revesz's
17. See Todd J. Zywicki, Environmental Externalities and Political Externalities: The Politi
cal Economy of Environmental Regulation and Reform, 73 TUL. L. REV. 845 (1999) (analyzing
how public choice theory has reinforced a centralized, federal approach to environmental regula
tion); Steven P. Croley, Theories of Regulation: Incorporating the Administrative Process, 98
COLUM. L. REV. 1 (1998) (evaluating public choice theory, neopluralist theory, public interest
theory and civic republican theory through the lens of the administrative process).
18. See David B. Spence, The Shadow of the Rational Polluter: Rethinking the Role of Ra
tional Actor Models in Environmental Law, 89 CAL. L. REV. 917, 927 nn.29-30 (2001) (describ
ing two different theories of the concept of regulatory capture and discussing the design of
administrative structures to minimize capture).
19. Although it could be said that the federalism reflected in our constitutional structure was
conceived by our founding fathers to be directed toward "the common good," this probably should
be understood to be a narrower understanding of "the common good" than that reflected in Catho
lic Social Thought-focused more on individual liberty for the sake of individual liberty rather
than focusing on the individual's responsibility to promote the "flourishing of all individuals."
20. Resource Conservation and Recovery Act of 1976 (RCRA), Pub. L. No. 94-580,90 Stat.
2795 (1976) (codified as amended at 42 U.S.C.A. §§ 6901-6992k (West 2008».
21. 42 U.S.c. § 6903(27) (2000). "The term 'solid waste' means any garbage, refuse, sludge
from a waste treatment plant, water supply treatment plant, or air pollution control facility and
other discarded material, including solid, liquid, semisolid or contained gaseous material resulting
from industrial, commercial, mining, and agricultural operations, ... but does not include solid or
dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or
statutory schemes were enacted in response to increasing concern about
widespread contamination of the environment from the wastes resulting
from a wide array of industrial processes.24
RCRA is primarily forward-looking. In enacting RCRA, Congress de
veloped a "cradle-to-grave" regulatory regime for managing wastes pro
spectively that distinguished between "solid waste," which required less
regulation (largely left to the states),25 and "hazardous waste," which re
quired greater regulation (largely initiated by the federal government) due
to the greater risk associated with its mismanagement.26 With respect to
hazardous wastes, RCRA developed management standards for the facilities
that generate hazardous wastes,27 transporters of hazardous waste,28 and fa
cilities that treat, store or otherwise dispose29 of hazardous wastes.
CERCLA is primarily backward-looking.30 CERCLA embraces a
"polluter pays" philosophy designed to make sure that those parties
responindustrial discharges which are point sources subject to permits under section 1342 of Title 33, or
source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954." Id.
The term is further defined in 40 C.F.R. § 261.2 (2008).
22. 42 U.S.C. § 6903(5). "The term 'hazardous waste' means a solid waste, or combination
of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious
characteristics may (A) cause, or significantly contribute to an increase in mortality or an increase
in serious irreversible, or incapacitating reversible, illness, or (B) pose a substantial present or
potential hazard to human health or the environment when improperly treated, stored, transported,
or disposed of, or otherwise managed." Id. The term is further defined in 40 C.F.R. § 261.3.
23. Comprehensive Environmental Response, Compensation and Liability Act of 1980
(CERCLA), Pub. L. No. 96-510, 94 Stat. 9767 (codified as amended at 42 U.S.C.A.
§§ 9601-9675 (West 2008».
24. See 42 U.S.C.A. §§ 6901-6902 (West 2008) (describing Congressional findings in
RCRA along with Congressional objectives in enacting RCRA); see also Jerome M. Organ,
Supelfund and the Settlement Decision: Reflections on the Relationship Between Equity and Effi
ciency, 62 GEO. WASH. L. REv. 1043, 1046 n.17 (1994) (describing CERCLA as a response to
Love Canal and other significant contamination issues around the country).
25. 42 U.S.C. § 6901(a)(4) (stating that "the collection and disposal of solid wastes should
continue to be primarily the function of State, regional, and local agencies"). Part D of RCRA
specifically focuses on state responsibility for solid waste management. 42 U.S.C.A.
§§ 6941-6949 (West 2008). In the Hazardous and Solid Waste Amendments of 1984, however,
Congress responded to concerns about inadequate standards for municipal solid waste disposal
facilities by directing the Environmental Protection Agency (EPA) to develop standards for such
facilities. Hazardous and Solid Waste Amendments of 1984, Pub. L. No. 98-616, §101, 98 Stat.
3221, 3224-25 (amending 42 U.S.C. § 6901); H.R. REp. No. 98-1133, at 80 (Conf. Rep.), re
printed in 1984 U.S.C.C.A.N. 5649, 5651. See also Jonathan P. Meyers, Note, Confronting the
Garbage Crisis: Increased Federal Involvement as a Means ofAddressing Municipal Solid Waste
Disposal, 79 GEO. LJ. 567, 569-73 (1991) (discussing the problems with inadequate state regula
tion of municipal solid waste disposal).
While RCRA is primarily a forward-looking statute, some components of RCRA, the correc
tive action requirements and the underground storage tank provisions, do integrate a retroactive
perspective directed toward cleaning up historical (or current) contamination. See infra note 94.
26. 42 U.S.C.A. §§ 6921-693ge (West 2008); 40 C.F.R. pt. 261 (2008).
27. 42 U.S.C. § 6922 (2000); 40 C.F.R. §§ 262.10-262.108 (2008).
28. 42 U.S.C. § 6923 (2000); 40 C.F.R. §§ 263.10-263.31 (2008).
29. 42 U.S.C. § 6924 (2000); 40 C.F.R. §§ 264.10-264.1202 (2008).
30. Organ, supra note 24, at 1046 n.19 (discussing the retroactive emphasis of CERCLA).
While CERCLA is predominantly a retroactive statute, the spill reporting obligations set forth in
sible for causing historical contamination bear the burden of cleaning up the
contamination.31 To do this, CERCLA imposes strict liability32 on "poten
tially responsible parties" (PRPs)-those who generated hazardous sub
stances disposed of at a facility, or transported hazardous substances33 to a
facility from which there is a release or threatened release of hazardous
substances, along with the current owner and operator of the facility and
anyone who owned or operated the facility during the time when hazardous
substances were placed or released. 34
Application to RCRA
This section begins with a discussion of whether the principles of sub
sidiarity, solidarity and the common good require governmental interven
tion to regulate hazardous waste management. Next, this section focuses on
the extent to which the principles of subsidiarity and solidarity suggest that
local, state or federal regulation seems more appropriate for the manage
ment of hazardous wastes. Finally, the section evaluates the regulatory re
gime of RCRA35 through the lenses of subsidiarity and solidarity.
Justification for Regulation
From the perspective of principles of subsidiarity and solidarity, the
first question to address is whether governmental regulation is necessary for
the subject area in question. Regarding RCRA, the question is whether indi
viduals and businesses dealing with hazardous wastes can be trusted to
manage the waste in a manner consistent with the principles of solidarity
and of promoting the common good such that regulation should not be nec
essary. The track record of many individuals and businesses around the
country suggests that they cannot be. trusted to manage these wastes in a
manner consistent with principles of solidarity and promoting the common
good.36 Thus, applying principles of subsidiarity and solidarity, some type
of regulation makes sense. Having established that government intervention
is necessary, the next question is at which level of government should regu
lation be implemented-the local, state or federal.
Assessing the Appropriate Locus of Regulation
Regulation at the Local Level
With respect to the prospective activities of individuals and businesses
using hazardous materials and generating hazardous wastes, would local
governments be capable of engaging in the regulatory activity in an effi
cient, cost-effective manner while ordering decision-making toward the
The local community faces a couple of problems in regulating hazard
ous wastes. Given the complex nature of industrial processes that use haz
ardous materials and generate hazardous wastes, and the abundance of
wastes that are generated, local communities likely are not well-equipped to
develop workable standards for regulating risks to protect their own re
sidents, let alone those outside their community?7
35. 42 U.S.C.A. §§ 6901-6992k (West 2008).
36. See Esty, supra note 15, at 600-03 (discussing the evolution of the federal environmental
regulatory regime in the 1960s and 1970s in response to the failure of states to manage environ
mental issues adequately); Stewart, supra note 16 (discussing justifications for federal environ
mental regulation in the 1970s); Organ, supra note 24 (discussing Congressional justification for
enacting RCRA and CERCLA).
37. The regulations for "hazardous wastes" in the Code of Federal Regulations take up hun
dreds of pages. It is hard to comprehend individual communities having the resources to comply
with this massive set of regulations. It should be fairly clear that municipalities generally lack the
capacity to develop a complete and thorough regulatory structure for managing solid and hazard
ous wastes, especially given the example of municipal landfills and the environmental problems
associated with them that prompted Congress to direct the EPA to promulgate regulations in the
Moreover, the local community may not reliably look after the inter
ests of those outside the community. Assuming the local government would
like to protect its citizens from risks associated with exposure to hazardous
wastes,38 it might appear that the interests of residents of the local commu
nity would be largely congruent with the interests of those outside the com
munity: any regulatory efforts designed to protect local residents such as
storage requirements, labeling requirements, etc., would also likely protect
those outside the community?9 However, there is one major exception that
presents a problem-regulations may prohibit or discourage treatment, stor
age or disposal of hazardous wastes within the local community.4o Such
regulations would protect local residents but would do so by shifting the
risks associated with transport, treatment, storage and disposal of hazardous
wastes to others outside the community.
Thus, not only are local communities not equipped to develop complex
regulatory regimes given limited resources, but local regulation may be in
consistent with principles of solidarity in some circumstances given that
regulations completely prohibiting the treatment, storage and disposal of
hazardous waste within a given community would serve the self-interest of
that community at the expense of those outside the community. Principles
of subsidiarity and solidarity therefore suggest that the common good re
quires regulation at a higher level of government-either with the state or
Regulation at the State or Federal Level
Would state governments be capable of engaging in regulating hazard
ous waste in an efficient, cost-effective manner-and be likely to order de
cision-making toward the common good (not just the good of all members
Hazardous and Solid Waste Amendments of 1984. See Hazardous and Solid Waste Amendments
of 1984, supra note 25. Nonetheless, some local communities have stepped in with regulatory
efforts. See George F. Gramling, III & William L. Earl, Cleaning Up After Federal and State
Pollution Programs: Local Govel7ll11ent Hazardous Waste Regulation, 17 STETSON L. REv. 639
(1988) (discussing a couple of local regulatory regimes, though the limited number of examples
referenced in the article shows that such programs are exceptional).
38. This assumes, for the moment, that we are not in a situation like that reflected in Henrik
Ibsen's An Enemy of the People, in which the local government and community are more focused
on economic gain than on environmental risks associated with a given industrial activity. HENRIK
IBSEN, AN ENEMY OF THE PEOPLE (Robert Farquharson Sharp trans.) (1882), available at http://
39. For example, if a community were to pass regulations mandating the safe storage of
hazardous wastes, such storage obligations would be beneficial for the local community as well as
the broader community. Similarly, labeling requirements would give notice of risks or hazards not
only to local residents, but also to the residents of surrounding communities through which materi
als might be shipped.
40. See Kirsten Engel, Reconsidering the National Market in Solid Waste: Trade-Offs in
Equity, Efficiency, Environmental Protection, and State Autonomy, 73 N.C. L. REv. 1481,
1495-1500 (1995) (discussing Supreme Court cases dealing with state prohibitions on importation
of solid waste, discriminatory state surcharges and flow control laws).
of the state community)-or would regulation at the federal level ultimately
From the standpoint of resources needed to develop a complex regula
tory regime, most state governments may have the capacity to develop reg
ulations efficiently and cost-effectively that adequately address the risks
associated with hazardous waste management. State governments certainly
would be better situated in terms of resources than local governments.
Would the common good be served, however, by having fifty states invest
ing time and energy in developing their own regulatory regimes to manage
hazardous wastes? Though state governments may have much greater ca
pacity to develop legislative and regulatory regimes for managing hazard
ous wastes than local governments, having state governments develop the
legislative and regulatory regimes presents several potential problems such
that principles of subsidiarity and solidarity suggest the common good
probably would be better served by federal regulation.
First, with fifty states trying to develop legislation and regulations,
there likely would be some redundancy and duplication of effort as fifty
different legislatures and agencies evaluate various industries and promul
gate regulations to address hazardous waste management as it relates to
various industrial processes and types of hazardous wastes.41 This potential
redundancy and duplication of effort in developing standards and regula
tions suggest that federal regulation makes more sense than state regulation.
Second, while each of the fifty states has greater resources than local
governments, the states nonetheless are burdened by limited resources that
will require states to prioritize their efforts to develop regulatory regimes
targeting various industries and types of hazardous wastes. Moreover, states
have existing resource commitments that constrain development of new
regulatory regimes to the extent that such new regimes might require reallo
cation of resources from existing commitments or new resources. This
likely will result in incomplete legislation and regulation in many, if not all,
states as legislatures and regulatory agencies focus on industries and haz
ardous wastes that appear to pose the greatest threats-leaving other indus
tries and wastes possibly unregulated for some time.42 Although the
41. See Stewart, supra note 16, at 1212; Kirsten H. Engel, State Environmental Standard
Setting: Is There a "Race" and is it "to the Bottom"?, 48 HASTINGS LJ. 271, 287-88 (1998).
42. For example, CERCLA excludes petroleum products from the definition of hazardous
substances. See supra note 33. RCRA focuses on solid and hazardous wastes. See supra notes
21-22. Thus, neither CERCLA nor RCRA initially provided a viable means for regulating con
tamination from underground storage tanks containing petroleum products. Nonetheless, the states
failed to take the initiative to develop regulatory programs that encompassed these tanks, leaving
it to Congress to mandate the development of a federal regulatory regime for underground storage
tanks. The Hazardous and Solid Waste Amendments of 1984, Pub. L. No. 98-616, Title VI, 98
Stat. 3221 (1984), amended by Superfund Amendments and Reauthorization Act of 1986, Pub. L.
No. 99-499, Title n, 100 Stat. 1613 (1986). Similarly, the fact that Congress felt compelled to
direct the EPA to develop criteria for state solid waste landfills that receive household hazardous
waste further manifests the idea that the states have not taken sufficient initiative to protect the
problem of limited resources also impacts the federal government, the fed
eral government's greater resources (and greater comfort functioning with a
budget deficit)43 would make the federal government the more appropriate
location for regulation.
Third, states might develop inconsistent regulatory regimes, creating a
patchwork system of regulations that could significantly impair national
commerce in hazardous waste management.44 For example, if one state re
quires labeling of one kind and another state requires a different kind of
labeling, then generators and transporters of hazardous wastes might face
significant costs to comply with these multiple inconsistent systems when
commerce or waste crosses state lines.
Fourth, an additional risk associated with state regulation is the "race
to the bottom" problem in which states, as entities competing for industrial
investment, may be tempted to "under-regulate" to obtain a competitive ad
vantage or remain competitive with other states.45 Under principles of
subsidiarity and solidarity, a "race to the bottom" incentive would function
such that the "common good" is clearly not well-served.
Fifth, states are not inherently less likely to act out of self-interest than
local governments, individuals or businesses. For example, states may be
inclined to engage in regulation excluding certain activities that impose sig
nificant risk, such as excluding the treatment, storage or disposal of hazard
ous wastes within state boundaries-something that would result in external
costs for other states that may end up hosting a disproportionate number of
hazardous waste disposal sites.46 The incentive toward serving the self-in
terest of the states is likely to be contrary to serving the common good.
All of these reasons suggest that Congress and the federal Environ
mental Protection Agency (EPA) are better situated than local or state gov
ernments as the locus of legislation and regulation of hazardous wastes,47
given the federal government's greater resources and the greater inclination
Congress and the EPA have to legislate and regulate for the "good of all,"
rather than for the good of some parochial interests.48
example of this is the regulation of greenhouse gas emissions. See Jamison Colburn, Solidarity
and Subsidiarity in a Changing Climate: Green Building as Legal and Moral Obligations, 5 U.
ST. THOMAS. LJ. 232 (2008). The fact that some states now operate in a manner contrary to what
would be expected in a "race to the bottom" analysis, however, does not negate the reality that
states were failing to aggressively address environmental regulation in the late 1960s and early
1970s-or even the 1980s, when Congress intervened by enacting a slew of federal environmental
regulatory regimes. There is no dispute that in the 1960s, 1970s and 1980s the states were not
engaged in a "race to regulate" the environment that could be understood to serve the "common
good." See supra note 42 and accompanying text (discussing absence of state regulation of under
ground storage tanks, prompting federal regulation in the 1980s).
46. See Engel, supra note 40.
47. See supra note 42 and accompanying text (highlighting that even with respect to solid
waste landfills and underground storage tanks, Congress and the EPA felt it necessary to take the
initiative to develop federal criteria (for landfills) and a federal regulatory regime (for under
ground storage tanks).
48. Nonetheless, federal regulation is not a panacea. Legislation and regulation at the federal
government level presents some problems that may impair the federal government's ability to
function in a manner truly directed toward serving the common good. For example, the federal
government may be slightly more subject to regulatory capture than state or local governments.
The flip-side of the economic efficiency that comes with centralized federal regulation is the
increased possibility of regulatory capture resulting from the centralized decision-making context.
Conducting negotiations regarding legislation or regulation in fifty different states would make it
difficult and expensive for any industrial group to develop sufficient relationships in each of those
states to have a significant voice in how the legislative scheme or regulatory regime gets promul
gated and implemented. At the federal level, however, an industrial group (particularly industrial
groups with a more national presence) may have a greater voice than local entities, which will
have to work through the challenges of "collective action" in order to have a more meaningful
voice at the national level. For a discussion on regulatory capture, see Steve P. Calandrillo, Re
sponsible Regulation: A Sensible Cost-Benefit, Risk Versus Risk Approach to Federal Health and
Safety Regulation, 81 B.U. L. REv. 957, 975-76 (2001) (citing George J. Stigler, The Theory of
Economic Regulation, 2 BELL J. ECON. & MGMT. SCI. 3, 3 (1971)).
Evaluating the RCRA Regulatory Regime Using Principles of
While implementation of RCRA at the federal level conforms to the
principles of subsidiarity and solidarity, to what extent does the actual im
plementation of RCRA in fact integrate the principles of subsidiarity?
While Congress and the EPA have developed a system of national standards
for regUlating generators of hazardous wastes,49 transporters,50 and treat
ment, storage and disposal facilities,51 there are two significant respects in
which RCRA reflects principles of subsidiarity: the regulation of wastes
rather than manufacturing processes, and allowing state implementations of
Regulation of Businesses as Generators, Not as
Congress enacted a regulatory regime in RCRA that focuses on
"wastes"-by-products of the manufacturing process-rather than on the
manufacturing process that generates the wastes.52 Though RCRA was en
acted when much of the regulatory mindset could be described as a "com
mand and control" philosophy, the regulatory regime Congress and the EPA
adopted does not dictate to industries or individual companies how to man
ufacture their products.53 Rather, the regulatory regime promotes cost inter
nalization by informing companies of the specific obligations with which
they need to comply if they generate hazardous wastes.54 The regulated
entities are left with the decision of which manufacturing processes to em
ploy and the extent to which those processes generate hazardous wastes.55
Thus, companies are able to assess costs and determine for themselves
whether adopting a different manufacturing process (which may generate
less hazardous waste) is, in fact, more cost effective given the consequences
of the alternative manufacturing process.56
Thus, although Congress and the EPA established at the federal level
the standards by which generators of hazardous waste need to manage the
transportation, treatment, storage and disposal of hazardous wastes-a sys
tem for promoting cost-internalization by those generating hazardous
wastes-Congress and the EPA embraced the principle of subsidiarity by
leaving in the hands of those businesses generating the hazardous wastes
the decision-making responsibility for choosing whether to employ manu
facturing processes that result in the generation of hazardous wastes.
State Implementation of the RCRA Regulatory Regime
While Congress and the EPA developed the RCRA regulatory regime,
Congress specifically recognized that there could be value in having the
states implement and manage the RCRA regulatory regime.57 RCRA's stat
utory enactment provides individual states with the ability to claim respon
sibility for implementing and managing the RCRA regulatory regime within
each state's borders if they enact a legislative and regulatory structure that
is consistent with the RCRA federal regulatory regime.58 Whether Congress
was motivated by the desire to minimize federal implementation costs or by
principles of subsidiarity in having states take over responsibility for man
aging the RCRA regulatory regime, the reality is that Congress did enact a
statutory regime that delegates some responsibility to the state level. Thus,
Congress integrated principles of subsidiarity in the implementation regime
it created for RCRA.
Through limitations of the delegation of power to the state level, Con
gress addressed some of the problems of state regulations while allowing
the benefits of state regulation to be realized. The requirement that states
conform to the federal regime negates some of the risks of a "race to the
bottom" problem and counters incentives of exclusionary regulation that
shifts risks of hazardous waste management to those outside of a given
state. The delegation of power gives the states-those closer to the local
risks associated with hazardous waste management-the opportunity to
manage how the RCRA regulatory regime is implemented within their bor
ders. This has resulted over the last few decades in the empowerment of
states to be responsible for environmental regulation; states have increas
ingly developed experienced personnel to address and manage environmen
tal regulation and have become more proactive in developing their own
57. 42 U.S.C. § 6926 (2000) (providing a mechanism for states to administer and enforce
hazardous waste program under RCRA); 42 U.S.C.A. § 6991c (West 2008) (providing a mecha
nism for states to administer and enforce underground storage tank regulations under RCRA).
58. 42 U.S.C. § 6926. As of 2000, over ninety percent of the states had fully or partially
approved programs for administering and enforcing RCRA. The Environmental Council of the
States (ECOS) maintains a list of approved state programs under RCRA (and other environmental
statutes) on its website, ECOS, State Delegation-RCRA, http://www.ecos.org/section/states/en
viro_actlistlrcra (last visited Mar. 20, 2008).
59. Between 1986 and 1994, state environmental expenditures increased by fifty percent
from $8.7 billion to $13.19 billion, ECOS, Spending, http://www.ecos.org/section/states/spending
(last visited Mar. 20, 2008), much of it focused on increased staff. States thus have much greater
capacity now to manage regulation of hazardous waste than was the case in the 1970s or early
Along with the locus of regulation of hazardous wastes, it is equally
important to consider the locus of enforcement of hazardous waste regula
tions. While Congress provided for delegation to the states of the responsi
bility for implementing RCRA within their borders, it did not hand over
complete responsibility for the enforcement of RCRA.60 Under RCRA, the
EPA can take back the delegation of authority to any given state. RCRA has
also been interpreted to allow the EPA to "overfile"-to take enforcement
action in addition to that taken by a state with delegated authority.61
These powers seem inconsistent with the principles of subsidiarity re
flected in the state delegation doctrine. To be consistent, there would have
to be justifiable reasons why Congress might want to preserve federal en
forcement authority to assure that RCRA serves the common good in a way
that might not happen if the states had full implementation and enforcement
responsibilities. The primary justification for the EPA to retain the opportu
nity to overfile is the concern about "sweetheart" deals that result in incon
sistent enforcement across different states.62 However, is this really a
legitimate concern? If a state has pursued an enforcement approach viewed
as unnecessarily lenient-more of a compliance orientation than a punish
ment orientation-does this really result in a problem in terms of harming
the common good?
Except in relatively rare cases (for example, a facility very near a state
line), the environmental risks posed by a regulated entity's inappropriate
conduct on its property are not likely to extend beyond the state boundary.63
Thus, the state accounts for all relevant interests-the environmental harms
or risks to the citizens of the state and the economic benefits associated with
the regulated entities-and is therefore best situated to make a determina
tion regarding whether and how to pursue enforcement action. While the
federal government might be concerned about an enforcement-oriented
"race to the bottom" in which states compete to be increasingly lenient in
enforcement, this concern seems to be a very tenuous assertion (and can be
ameliorated by withdrawing delegation of authority to a state program that
the EPA feels is truly deficient). 64
While RCRA imposes some limitations on state enforcement, it also
embraces a truly local enforcement option by providing for citizen suits
actions by private individuals when the state or federal government has
failed to bring an enforcement action against an alleged violator following
notice of the potential citizen suit.65 Thus, RCRA appears somewhat incon
sistent with respect to subsidiarity in terms of enforcement; it recognizes
some local control (in the form of citizen suits and state enforcement in
states with delegated authority) while retaining enforcement authority for
the EPA when the EPA thinks the state has not adequately addressed a
Application to CERCLA
This section begins with a discussion of whether the principles of sub
sidiarity, solidarity and the common good require governmental interven
tion to address remediation of historical contamination from hazardous
substances. Next, this section focuses on the extent to which the principles
of subsidiarity and solidarity suggest that local, state or federal regulation
seems more appropriate for addressing remediation of historical contamina
tion of hazardous substances. Finally, the section evaluates the regulatory
regime of CERCLA66 through the lenses of subsidiarity and solidarity.
Justification for Regulation
In determining whether government intervention is necessary from the
perspective of principles of subsidiarity and solidarity, the first question is
whether individuals and businesses who have been responsible for contami
nation resulting from the disposal of hazardous substances can be trusted to
remediate the contamination in a manner consistent with the principles of
solidarity and of promoting the common good. As the RCRA section con
cluded, the track record of many individuals and businesses around the
country suggests that they cannot be trusted to manage wastes in a manner
consistent with principles of solidarity and promoting the common good.67
Thus, the principles of subsidiarity and solidarity direct some type of
regu65. 42 U.S.C. § 6972 (2000).
66. 42 U.S.CA §§ 9601-9675 (West 2008).
67. See supra note 24 (discussing Congressional justification for enacting RCRA and CER
CLA). Businesses and individuals that disposed of hazardous substances on the property of others
certainly have not shown an inclination to invest in remediation of the property of others. Even
businesses and individuals that disposed of hazardous substances on their own property, however,
frequently have not shown great initiative in remediating their contaminated property (as evi
denced by the significant inventory of contaminated sites developed through the state responses to
the inventory requirements set forth in 42 U.S.C. § 9603 (2000)). Over 46,000 sites were identi
fied as part of the CERCLIS database as of 1995, although roughly 34,000 of them were
"archived" (indicating no need for further federal governmental action) as of 1996. See EPA,
Round 2-4c: Refining CERCLIS,
http://www.epa.gov/superfund/programs/reforms/reforms/24c.htm (last visited Mar. 20, 2008).
lation. As some government intervention is necessary for this area, the next
question is at which level of government should regulation be imple
mented-the local, state or federal government?
2. Assessing the Appropriate Locus of Regulation
a. Regulation at the Local Level
With respect to the responsibility to respond retroactively to contami
nation problems caused by individuals and businesses that disposed of haz
ardous substances, would local governments be capable of engaging in the
regulatory activity in an efficient, cost-effective manner-and be likely to
order decision-making toward the common good? Like the conclusion
reached with RCRA, the complex nature of some of the contamination
problems resulting from disposal of hazardous substances-and the reality
that these problems have largely gone undetected or unaddressed for many
years-makes it appear that local governments are not (or certainly were
not) well-equipped to address these problems.68
h. Regulation at the State or Federal Level
Would state governments be capable of addressing historical contami
nation problems resulting from the disposal of hazardous substances in a
manner that orders decision-making toward the common good, or is the
federal level preferable?
From the standpoint of resources needed to develop a complex regula
tory regime, most state governments may have the capacity to develop reg
ulations efficiently and cost-effectively that adequately address the
remediation associated with contamination from disposal of hazardous sub
stances. State governments certainly would be better situated for remedia
tion than local governments given the risk of redundancy involved if each
city or county had to develop its own system. Further, state governments'
orientation toward remediation is likely to be consistent with principles of
subsidiarity and solidarity such that the common good might be equally as
well served by state efforts as it would be by federal efforts. Would the
common good be served, however, by having fifty states investing time and
energy in developing their own regulatory regimes to deal with contamina
tion resulting from disposal of hazardous substances, rather than having the
federal government develop a regulatory regime?
First, in contrast with RCRA's prospective regulation of hazardous
wastes being generated from a wide variety of manufacturing processes,
which requires an equally wide array of regulatory strategies, the develop
ment of remediation protocols under CERCLA for contamination from haz
ardous substances only involves the development of one general set of
68. See id.
processes for investigating sites, identifying remediation options, selecting
an appropriate remediation plan and implementing the selected remediation
option. 69 This regulatory regime is less likely to result in unnecessary re
dundancy and duplication of effort. There might be some efficiencies from
having the federal government define one general process applicable to all
states, but the "process" described above involves far less complexity than
appears with RCRA's regulation of the wide array of hazardous wastes gen
erated from myriad manufacturing processes. The fifty states will also have
far fewer redundancy inefficiencies than would be the case with thousands
of cities or counties developing their own regimes.
Second, while each of the fifty states has greater resources than local
governments, the states nonetheless are burdened by limited resources,7°
which will require states to prioritize their efforts to focus on some contam
ination sites before others. The federal government, however, would also
have to prioritize to best use limited resources, and, given the risk to citi
zens of the states, arguably the states are better situated than the federal
government to figure out which sites within their state boundaries present
the highest priority for remediation.
Third, while states might decide to impose different remediation stan
dards for similar types of contamination problems, it is not at all clear that
having uniform national standards for remediation is truly necessary. While
businesses with mUltiple manufacturing facilities in multiple states might be
very interested in having one set of uniform regulations applicable to all of
their manufacturing facilities, with respect to cleaning up historical contam
ination there is not necessarily any efficiency associated with uniform
remediation standards across differing states.
Fourth, as with RCRA, the "race to the bottom" problem could impact
state regulation of contaminated sites as states may be tempted to "under
regulate" to obtain a competitive advantage or to remain competitive with
other states.71 Under principles of subsidiarity and solidarity, even with
some capacity and efficiency factors favoring state regulation, the "race to
the bottom" dilemma will function such that the common good may not be
well-served in the absence of some federal regulatory intervention.72 The
69. Unlike the RCRA situation, in which states would need to develop standards for a wide
variety of entities subject to regulation as generators, the regulatory regime for dealing with con
taminated sites is largely uniform in nature and embraces basic principles of problem-solving
investigate the scope of the problem, evaluate options for addressing the problem and then select
and implement a remediation plan from among the identified options. See infra notes 80-89 and
accompanying text (describing the investigation and remediation process set forth in CERCLA
and the National Contingency Plan).
70. See supra note 43.
71. See supra note 45 and accompanying text.
72. This would be a situation in which individually rational decisions by states might be
collectively irrational. If each state opts to require remediation at a less stringent level than it
might otherwise be inclined to impose because it is concerned about the competitive disadvantage
it will face compared with other states that have a less robust remediation structure, then the states
regulatory advantages conferred by states, however, may not be any greater
than corporate income tax benefits or other common forms of corporate
In sum, these reasons suggest that Congress and the EPA are not nec
essarily better situated than state governments as the locus of legislation and
regulations addressing the remediation of contamination caused by the dis
posal of hazardous substances, although the relative lack of state initiative
on these matters prior to the enactment of CERCLA (and even subsequent
to the enactment of CERCLA), as well as "race to the bottom" concerns,
would suggest that some federal-level intervention, such as CERCLA, may
have been appropriate.
Evaluating the CERCLA Regulatory Regime Using Principles of
Subsidiarity and Solidarity
The next question concerns the extent to which CERCLA and the reg
ulatory regime developed by the EPA embrace principles of subsidiarity
and solidarity directed toward promoting the common good.
Evaluation of CERCLA with Respect to NPL Sites
CERCLA's enactment called for the creation of an inventory of sites
where hazardous substances had been disposed73 and a prioritization of
those sites such that those most in need of remediation would be placed on
the National Priorities List (NPL).74 NPL sites came to be known as
"Superfund" sites75 because CERCLA authorized the generation of
revecollectively will opt for a less stringent level of remediation (and less protection "for all") than
would be expected if states were acting in the absence of these competitive pressures. The states
certainly were not aggressively addressing environmental remediation in the late 1970s and early
1980s when Congress intervened with the enactments of RCRA and CERCLA and then with the
amendments to RCRA (Hazardous and Solid Waste Amendments of 1984) which brought in regu
lation of underground storage tanks and required federal criteria for solid waste landfills receiving
household hazardous waste. See supra notes 25, 42 and accompanying text.
73. 42 U.S.C. § 9603 (2000). There were over 25,000 potentially hazardous waste sites de
veloped in the initial response to the CERCLA notification provision according to the EPA. See
Supelfund: Looking Back, Looking Ahead, 13 E.P.A. J. 12, 17 (1987). More recent estimates place
the number of sites in excess of 45,000. See supra note 45.
74. 42 U.S.C.A. § 9605(a)(8)(B) (West 2008) contains the reference to a list of national
priority sites that ultimately became the National Priorities List (NPL) in the Code of Federal
Regulations. See 40 C.F.R. § 300.5 (2008). The NPL presently contains 1,245 sites, with 324
deleted from the list and 61 sites proposed for listing. EPA, National Priorities List (NPL): NPL
Site Totals by Status and Milestone, http://www.epa.gov/superfund/sites/query/queryhtm/
npltotaJ.htm (NPL data last updated Mar. 19, 2008).
75. Congress provided for the creation of the "Hazardous Substance Superfund" (Superfund)
within the EPA's implementation of CERCLA. Comprehensive Environmental Response, Com
pensation, and Liability Act of 1980(CERCLA), Pub. 1. No. 96-510, § 221, 94 Stat. 2767,
2801-802 (codified as amended at 26 U.S.C. § 9507 (2000)).
Congress created the Superfund to pay for a variety of costs associated with implementing
CERCLA. See 42 U.S.C. § 9611 (2000). The Superfund initially was funded by various taxes,
including taxes on chemical feedstocks, Comprehensive Environmental Response, Compensation,
nues from taxes on the chemical and petroleum industries, which were to be
placed into a fund to pay for the costs of cleaning up these "Superfund"
sites, until such time as the government could recover its costs from PRPs
through cost recovery actions.76 Thus, the most notable universe of CER
CLA sites is the set of Superfund sites-those sites placed on the NPL
based on an evaluation of the risk presented by the sites.77 Between one
thousand and two thousand sites have been added to the NPL over the last
three decades, while tens of thousands of other sites remain outside the NPL
process.78 Notably, the EPA is supposed to consult with states in making
listing decisions for placement on the NPL, so to some extent CERCLA
gave states a voice in identifying sites for priority remediation.79
With respect to those sites that make it onto the NPL, CERCLA con
templates a remediation process driven by the federal government, not by
the owner or operator of the site and not by the state government.80 At
and Liability Act § 211(a), 94 Stat. at 2798-99 (codified as amended at 26 U.S.C. § 4661 (2000»,
taxes on crude oil and petroleum products, § 211(a), 94 Stat. at 2797-98 (codified as amended at
26 U.S.C. § 4611 (2000», taxes on imported chemical derivatives, § 515(a), 94 Stat. at 1767
(codified as amended at 26 U.S.C. § 4671 (2000», and a corporate environmental income tax,
Superfund Amendments and Reauthorization Act (SARA) of 1986, Pub. L. No. 99-499, § 516(a),
100 Stat. 1613, 1770 (amended 1988) (codified as amended at 26 U.S.c. § 59A (2000»; see also
26 U.S.C. § 9507(b)(
In addition, the Superfund receives all recoveries from PRPs, all penalties paid by PRPs, all
punitive damages recovered under section 107(c)(
) of CERCLA, and "all moneys recovered or
collected under section 311(b)(6)(B) of the Clean Water Act." See 26 U.S.C. § 9507(b)(
After initially appropriating $1.6 billion dollars to the Superfund when it enacted CERCLA
in 1980, Congress appropriated $8.5 billion in 1986 for the five-year reauthorization period. See
Superfund Amendments and Reauthorization Act (SARA) of 1986, Pub. L. No. 99-499, § 111,
100 Stat. 1613, 1642-46 (codified at 42 U.S.C. § 9611 (2000»; H.R. REp. No. 962, at 318,321
(1986) (Conf. Rep.), as reprinted in 1986 U.S.C.C.A.N. 3276, 3411, 3414 (1986). In 1990, when
Congress reauthorized CERCLA through September 30, 1994, it also extended the Superfund
through December 31, 1995, expecting to raise approximately $5 billion in taxes through 1995.
Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, § 11231, 104 Stat. 1388.
Congress did not reauthorize the Superfund taxes after 1995, and the Superfund Trust Fund
ran out of money in 2004. Since 1995, the Superfund program has increasingly relied on general
fund appropriations as the trust fund balance dwindled. Virginia Natural Resources Leadership
Institute, Superfund and Brownfield Reclamation: Revitalizing and Reusing Contaminated Lands,
http://www.virginia.edu/ienlvnrli/docs/briefs/superfund%202006.pdf (last visited Mar. 21, 2008).
76. See 42 U.S.C.A. § 9607 (West 2008). See Organ, supra note 24, at 1047-53 (describing
CERCLA's liability and cost-recovery regime).
77. The risk at sites was assessed using the Hazard Ranking System. Hazard Ranking Sys
tem, 55 Fed. Reg. 51532 (Dec. 14, 1990) (codified at 40 C.P.R. pt. 300). A description of the
Hazard Ranking System can be found on the EPA's website. EPA, Superfund: Introduction to the
Hazard Ranking System (HRS), http://www.epa.gov/superfund/programs/npl_hrslhrsint.htrn (last
visited Mar. 21, 2008).
78. See supra note 67 and accompanying text.
79. The EPA issued a memorandum in 1996 regarding "Coordination with the States on
National Priority List Decisions." Memorandum from Elliot P. Laws, Assistant Administrator,
EPA Office of Solid Waste and Emergency Response (Nov. 14, 1996), http://www.epa.gov/
80. See 42 U.S.C.A. § 9605 (West 2008). The NCP regulations are set forth at 40 C.F.R. pt.
Congress's direction, the EPA promulgated a "national contingency plan"
(NCP) setting forth a detailed process for assessing the actual risks at a site
(Remedial Investigation and Feasibility Study),81 evaluating potential reme
dial options and selecting from among those options (Record of Deci
sion),82 and· implementing the remedial plan (Remedial Design and
Remedial Action). 83
Following the Superfund Amendments and Reauthorization Act in
1986,84 Congress set forth specific standards for remedy selection prefer
encing compliance with all applicable, relevant and appropriate require
ments 85 and preferencing permanent remedies. 86 While the Superfund
process allowed for states to participate in decision-making and serve as the
lead agency,87 the EPA generally maintained final decision-making author
ity.88 Although the process also called for community relations plans to
81. 40 C.P.R. § 300.430(d) (2008) (describing the Remedial Investigation and Feasibility
Study (RIfFS) stage). During the remedial investigation (RI) stage, information "necessary to ade
quately characterize the site for the purpose of developing and evaluating effective remedial alter
natives" is collected. § 300.430(d)(
), (e). The feasibility study (FS) is designed to "ensure that
appropriate remedial alternatives are developed and evaluated such that relevant information con
cerning the remedial action options can be presented to a decision-maker and an appropriate rem
edy selected." § 300.430(e)(
). When screening the remedial alternatives, the short- and long-term
aspects of the alternatives' effectiveness, implementability, and costs are considered. See
§ 300.430(e)(7). The EPA screens and evaluates the alternatives based on nine criteria: (
tecting human health and the environment; (
) complying with applicable, relevant, and appropri
ate requirements (ARARs); (
) long-term effectiveness and permanence; (4) reduction of toxicity,
mobility, or volume through treatment; (5) short-term effectiveness; (6) implementability; (7)
cost; (8) state acceptance; and (9) local acceptance. § 300.430 (e)(9).
82. 40 C.F.R. § 300.430(f) (2008). The selection of an appropriate remedy requires applica
tion of the criteria set forth in supra note 81. Those alternatives that satisfy the first two "thresh
old" criteria are assessed based on the next five "balancing" criteria, with the final two criteria
used as modifying factors. § 300.430(f)(
)(i). The selection involves a two-step process.
)(ii). "First, the lead agency, in conjunction with the support agency, identifies a
preferred alternative and presents it to the public" for review and comment. § 300.430(f)(I)(ii).
Second, the lead agency reviews the public comments and consults with the state (or support
agency) "to determine if the alternative remains the most appropriate remedial action for the site
or site problem." § 300.430(f)(l)(ii). In support of its selection, the agency records "all facts,
analyses of facts, and site-specific policy determinations considered ...." § 300.430(f)(5).
83. 40 C.F.R. § 300.435 (2008). During the Remedial Design and Remedial Action (RD/RA)
stage the actual design of the selected remedy is developed and then implemented. Id.
84. Superfund Amendments and Reauthorization Act (SARA) of 1986, Pub. L. No. 99-499,
100 Stat. 1613 (codified as amended at 42 U.S.C.A. §§ 9601-9675 (West 2008) and scattered
sections of Titles 10, 16, 29, and 33 U.S.C.).
85. 42 U.S.c. § 9621(d)(
86. 42 U.S.c. § 9621(b)(
) ("Remedial actions in which treatment which permanently and
significantly reduces the volume, toxicity or mobility of the hazardous substances, pollutants, ...
are to be preferred over remedial actions not involving such treatment.").
87. 42 U.S.c. § 9621(f). Section 9621(f)(l) provides that "[tJhe President shall promulgate
regulations providing for substantial and meaningful involvement by each State in initiation, de
velopment, and selection of remedial actions to be undertaken in that State." States are authorized
to serve as lead agency in investigating and remediating sites. 40 C.F.R. § 300.515(a) (2008).
88. The regulations make it clear that the federal government will have the ultimate say in
remedy-selection. See 40 C.F.R. § 300.515(e)(
) (providing that state conCUlTence in a Record of
allow dissemination of relevant information to the local community, the
EPA generally retained final decision-making authority.89
Thus, even if the relevant landowners, the local community and a
state-those most directly, and to some extent exclusively, impacted by a
contamination problem-felt that a reduced scope of remediation was ap
propriate because the investment in additional remediation far exceeded the
value of further reduction in risks, the EPA generally is bound by the provi
sions of the NCP to mandate a more extensive (and more expensive) reme
dial option.90 Given that virtually all of the risks associated with Superfund
sites are local in nature and could be well understood by the landowners and
the local and state governments, it is hard to reconcile the Superfund pro
cess with the principle of subsidiarity and solidarity, i.e., given that these
sites generally do not present an interstate "lack of solidarity" concern be
cause the risk of harm is localized.91
Evaluation of CERCLA with Respect to Non-NPL Sites
With respect to non-Superfund sites, the federal government generally
is not directly involved in the remediation decisions, which generally are
left to the property owners in conjunction with local or state government. 92
Thus, at first blush, CERCLA would appear to function more consistently
Decision is not a prerequisite to EPA's selection of a remedy, and providing that a state may not
proceed with a remedy at a state-lead site that is fund-financed without the concurrence of the
EPA, although acknowledging that in state-lead sites that are not financed under Superfund, the
state may select a remedy without the approval of the EPA).
89. See 40 C.F.R. § 300.155 (2008) (discussing public information and community relations
generally), § 300.415(n) (2008) (discussing community relations plans in relation to removal ac
tions), § 300.430(c) (2008) (discussing community relations in the context of the RIlFS process),
§ 300.435(c) (2008) (discussing community relations in the context of the RDIRA process); but
see supra note 88 and accompanying text (discussing final decision-making authority).
90. A landowner may be interested in a faster and cheaper remediation process and the
neighboring landowners and the community also may want a faster remediation process and may
be willing to accept the marginally greater risks (or look at alternatives to remediation-such as
institutional controls-for addressing such risks). Regardless, the EPA has little flexibility in the
remedy-selection process following the enactment of SARA. EPA has embarked on a variety of
Superfund reforms over the last decade or so that try to address in some ways the need to be more
conscious of cost concerns and the concerns of the local communities. See EPA, Office of Emer
gency and Remedial Support, The Role of Cost in the Superfund Remedy Selection Process (Sept.
1996), http://www.epa.gov/superfund/policy/cosCdir/cosCdir.pdf; EPA, Superfund Reforms: Re
forms By Type - Cleanups, http://www.epa.gov/superfundlprograms/reforms/types/cleanup.htm
(last visited Mar. 21, 2008) (listing of the reforms focused on the remedy-selection process).
91. In a 1995 report entitled "How to Rescue Superfund: Bringing Common Sense to the
Process," the Heritage Foundation highlighted that Superfund involves local problems and that
decision-making regarding such problems should be left with local authorities rather than the
federal government. John Shanahan, Heritage Foundation, How TO RESCUE SUPERFUND: BRING
ING COMMON SENSE TO THE PROCESS (July 31, 1995), http://www.heritage.orgiResearch/Energy
92. 40 C.F.R. § 300.515(e)(
) specifically notes that with respect to non-NPL sites (non
fund-financed sites) at which the state is the lead agency, the state need not get EPA approval of
remedy selection decisions.
with principles of subsidiarity and solidarity with regard to non-NPL sites.
Nonetheless, given the liability framework of CERCLA, in which non-gov
ernmental entities can recover from PRPs only the necessary costs of
remediation that are consistent with the NCP, the NCP casts a long shadow
even over remediation at non-NPL sites.93 If a landowner or other party
engaged in remediation wants to be able to recover remediation costs from
PRPs, the party has to conduct the investigation and remediation in a man
ner consistent with the NCP, which means that even at non-NPL sites the
investigation and remediation must be done as if it were a NPL site at
which the federal remediation standards are determinative. 94
Evaluation of CERCLA with Respect to Brownfields Reform
Over time, Congress, the EPA and the states came to realize that a
significant number of contaminated, largely urban industrial sites that were
not on the NPL were lying fallow and under-utilized because of historical
contamination and the significant potential cost of cleanup.95 In response to
these concerns, the EPA developed a variety of reforms,96 and Congress
ultimately took action in 2002 with the enactment of the Small Business
93. Under 42 U.S.C.A. § 9607(a)(4)(B) (West 2008) PRPs shall be liable for "any other
necessary costs of response incurred by any other person consistent with the national contingency
94. While the federal standards apply, the EPA generally will not have any direct involve
ment in the remedy selection process-rather the landowner together with the state likely will be
standing in the shoes of the EPA and trying to make the remedy selection decision in a manner
consistent with the NCP. Notably, RCRA has two different programs that are somewhat compara
ble to CERCLA in that they address remediation of historical contamination. These two programs
are the Corrective Action program, which focuses on investigating and remediating solid waste
management units at permitted treatment, storage and disposal facilities, 42 U.S.C. § 6924(u), (v)
(2000); 42 U.S.C. § 6928(h) (2000), and the Underground Storage Tank program, which focuses
on investigating and remediating leaking underground storage tanks. 42 U.S.C.A. § 6991d (West
2008),40 C.P.R. §§ 280.60-280.67 (2008). The Corrective Action program is much more consis
tent with principles of subsidiarity than CERCLA in that the EPA offers much more flexibility
with remedy selection under RCRA and is much more deferential to state decisions regarding
remedy selection than is the case under CERCLA. See, e.g., 40 C.P.R. § 258.57 (2008) (states
with delegated authority make remedy selection determinations on corrective action at municipal
solid waste facilities). For a discussion of corrective action in RCRA and CERCLA, see Timothy
O. Schimpf, Unleash RCRA! Letting Loose the Corrective Action Process of RCRA Can Change
the World, 29 WM. & MARY ENVTL. L. & POL'y REV. 481 (2005) and Richard G. Stoll, The New
RCRA Cleanup Regime: Comparisons and Contrasts with CERCLA, 44 Sw. LJ. 1299, 1310-12
(1991). The remedy selection process with respect to remediation at sites with leaking under
ground storage tanks similarly reflects greater consistency with principles of subsidiarity in that
the remediation standards afford much greater flexibility than under CERCLA with much greater
deference to state decisions. See generally 40 C.F.R. §§ 280.60-280.67.
95. See Mark Reisch, ISSUE BRIEF FOR CONGRESS: SUPERFUND AND BROWNFIELDS IN THE
107TH CONGRESS (June 5, 2002),
96. For a summary of EPA initiatives relating to Brownfields and the revitalization of such
properties, see EPA, Brownfields and Land Revitalization: Brownfields Liability, http://
www.epa.govlbrownfields/liab.htm (last visited Mar. 21, 2008).
Liability Relief and Brownfields Revitalization Act (Brownfields Act).97
With the enactment of the Brownfields Act, Congress reallocated to the
states much greater authority (and limited the authority of the EPA) with
respect to remedy-selection decisions and enforcement actions at non-NPL
sites that qualify for Brownfields status. This change allowed greater use of
institutional controls to address risk rather than always requiring
For the reasons noted above, RCRA's structure of having the federal
government develop the regulatory regime for the prospective generation,
transportation, treatment, storage and disposal of hazardous wastes would
appear to be consistent with the principles of subsidiarity and solidarity
ordered toward the common good. There is efficiency in having the federal
government develop the regulatory standards for this area (without the re
source constraints, redundancy and inconsistency of having fifty states de
velop the standards and without the potential "race to the bottom" or
exclusionary regulation problems). RCRA's design is also largely consis
tent with the principles of subsidiarity, solidarity and the common good in
that RCRA does not intrude into the manufacturing decisions of generators
of hazardous wastes by mandating certain manufacturing processes, and
RCRA authorizes the delegation of the regulatory regime to the vast major
ity of states that choose to enact state legislative and regulatory regimes
consistent with RCRA. The one sense in which RCRA is perhaps inconsis
tent with principles of subsidiarity and solidarity relates to the EPA's au
thority to "overfile'l-to take enforcement action even when a state with
delegated authority already has taken enforcement action.
While RCRA regulates an interstate hazardous waste market that truly
is national in scope such that a uniform federal regulatory regime makes
sense, CERCLA regulates a national problem (historical contamination)
that has a largely local impact. Nonetheless, having a federal regulatory
regime in place to facilitate remediation of some of the most seriously con
taminated sites (those on the NPL) may be consistent with the principles of
subsidiarity and solidarity ordered toward the common good given the lack
of initiative the states had shown in trying to address these problems. The
regime implemented under CERCLA, however, while encouraging the
fed97. Small Business Liability Relief and Brownfields Revitalization Act, Pub. L. No.
107-118, 115 Stat. 2356 (2002).
98. 42 U.S.C.A. § 9601(39) (West 2008) (defining "Brownfield site"). For a short summary
of the Brownfields Act, see EPA, Brownfields and Land Revitalization: Summary of the Small
Business Liability Relief and Brownfields Revitalization Act, http://www.epa.govlbrownfields/
html-doc/2869sum.htm (last visited Mar. 22, 2008). Institutional controls include deed restrictions
and other limitations on the use of property that can minimize risk, for example, by precluding the
property from residential use. [d.
1. Justification for Regulation. . . . . . . . . . . . . . . . . . . . . . .
2. Assessing the Appropriate Locus of Regulation . . . .
3. Evaluating the RCRA Regulatory Regime Using Principles of Subsidiarity. . . . . . . . . . . . . . . . . . . . . . . . .
1. Justification for Regulation .. . . . . . . . . . . . . . . . . . . . . .
2. Assessing the Appropriate Locus of Regulation . . . .
3. Evaluating the CERCLA Regulatory Regime Using Principles of Subsidiarity and Solidarity . . . . . . . . . . .
10. Office for Social Justice St. Paul and Minneapolis, Economic Justice jor All: Pastoral . Letter on Catholic Social Teaching and the U .S. Economy, '][ 124 ( 1986 ), http://www.osjspm.org/ economicjustice_focaii.
11. Compendium , supra note 8, '][ 356 .
12. Ioannes Paulus PP. II, Solicitudo Rei Socialis [On Social Concem), '][ 38 (Dec. 30 , 1987 ), available at http://www.vatican.va/holyjather/john_pauUilencyc1icals/ documentslhfjp-ii_enc_ 30121987_sollicitudo-rei-socialis_en .html.
13. See Compendium, supra note 8 , ']['][ 351 , 354 . 42 U.S.C. § 6903 ( 2000 ), in 40 C.F.R. pt. 355 , apps . A, B ( 2008 ) (for extremely hazardous substances), and in 40 C.F.R. § 302.4 tbI. 302.4 ( 2008 ) (for CERCLA hazardous substances) are also prospective in nature.
31. Congress enacted a statute designed to compel those parties responsible for disposal of hazardous substances to internalize the full cost of the disposal, some of which had been shifted to the public through historical disposal practices that contaminated the environment and created a health risk. S. REp . No. 848 , 96th Cong., 2d Sess . 33 ( 1980 ). "By holding the factually responsible person liable, [CERCLA] encourages that person-whether a generator, transporter or disposer of hazardous substances-to eliminate as many risks as possible." [d.
32. Organ , supra note 24, at 1046 n.20 (discussing the strict liability nature of CERCLA) .
34. 42 U.S.C.A. § 9607 (West 2008 ). Although the set of parties subject to liability under CERCLA is generally known as the Potentially Responsible Parties (PRPs), this is a stunning misnomer because "potentially generally" means "almost always." 1.
49. 42 U.S.C. § 6922 ( 2000 ); 40 C.F.R. §§ 262 . 10 - 262 .108 ( 2008 ).
50. 42 U.S.C. § 6923 ( 2000 ); 40 C.F.R. §§ 263 . 10 - 263 .31 ( 2008 ).
51. 42 U.S.C. § 6924 ( 2000 ); 40 C.F.R. §§ 264 . 10 - 264 .1202 ( 2008 ).
52. J. Steven Whisler et aI., Turning Gold into "Solid Waste"; RCRA's Intrusion into the Industrial Process, 23 ARIZ . ST. LJ. 555 , 562 ( 1991 ) (quoting legislative history to highlight Congress's intent to have the EPA refrain from intruding into the manufacturing process ).
53. Id .
54. See Background and Theory of Hazardous Waste Control , 99 HARV. L. REv. 1465 , 1478 ( 1986 ).
55. See supra note 52 and accompanying text .
56. For example, the alternative manufacturing process may be more costly in terms of raw materials, capital equipment or reduced quality of the product .
60. 42 U.S.C. § 6926 ( e) (ZOOO) (discussing withdrawal of state authorization); 42 U .S.C. § 6928(a)(2) ( 2000 ) (discussing federal enforcement in states with authorized programs ).
61. Compare Wyckoff Co. v. E.P.A. , 796 F.2d 1197 ( 9th Cir . 1986 ) (concluding that Congress did not intend to preempt federal regulation entirely in states with authorized programs), with Harmon Indus ., Inc. v. Browner, 191 F.3d 894 ( 8th Cir . 1999 ) (concluding that EPA could not "overfile" in states with authorized programs under RCRA where the state had taken enforcement action).
62. See Jerry Organ , Environmental Federalism Part I: The History of Overfiling Under RCRA, the CWA, and the CAA Prior to Harmon, Smithfield and CLEAN, 30 ENvTL. L. REp. 10615 , 10616 (ZOOO).
63. To the extent that a regulated entity mismanages transportation of hazardous wastes across state lines, it subjects itself to the jurisdiction of each state through which its hazardous waste travels. Thus, the primary context in which enforcement is at issue is a local context .
64. See 42 U.S.C. § 69Z6(e) (ZOOO).