Retrospective Liability and Criminalization 19801989

By 1981 environmental regulation had reached an impasse. Congress had announced the good news that the environment would be pollution-free and that the nation would preserve its scenic wonders and biological resources. Regulatory agencies then had to announce the bad news: what it would cost and who would have to pay for it. Many who bore the costs blamed the messenger; EPA and other agencies came under fire for policies that required great outlays to achieve sometimes minor improvements. When President Ronald Reagan announced a program of regulatory rescission and appointed Anne Gorsuch at EPA and James Watt at the Department of the Interior, it seemed that the goals of the 1970s would be abandoned, in view of the ideological commitments and managerial styles of these appointees.

By 1981 however, the constituency of the environmental movement had changed. At first enlisting primarily upper-middle class, well-educated suburbanites, environ-mentalism had become a populism, including lower-middle-class Americans in the heartland who resented the effects of global markets on their communities. Social-science surveys showed overwhelming support among all economic and social groups for the strictest regulation, regardless of cost. Because of the strength of environmentalism among his own supporters, President Reagan found himself obliged to replace the head of the EPA and the secretary of the interior, and to accept a new barrage of environmental statutes that appealed to a populist not to a technocratic constituency.

During the 1980s, Congress intensified top-down command-and-control regulation by enacting, for example, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, which makes the buyer of a contaminated property liable for the entire cleanup even though it did not contribute to the contamination. Other statutes—such as the Resource Conservation and Recovery Act Amendments of 1984, the Superfund Amendments and Reauthorization Act of 1986, and the Oil Pollution Act of 1990—likewise addressed not just present hazards but also the remediation of past ones. Some of these statutes included criminal penalties or made polluters jointly and severally liable for the entire cost of a cleanup, regardless of fault. Thus, any company whose name appeared on a manifest at a poorly operated waste dump might find itself legally liable to pay the entire cost of a gold-plated remediation.

Laws of this kind take a moralistic or retributivist approach, associated with populist crusades, in regulating pollution. In response, industries backed away from investments entirely, for example, where they were most needed in inner city neighborhoods, or they hired lawyers to avoid or spread liability rather than engineers to clean up or prevent pollution. It took about a dozen years for industry to deal with Superfund in some way other than litigation; eventually, public officials and industry lawyers learned to paper transactions needed to get some decontamination. EPA and state agencies began to allow industries to develop polluted properties—so-called brownfields—without incurring open-ended liabilities for perfect cleanups. EPA began to experiment with case-by-case negotiation to turn confrontation into compromise. Half way measures—often enshrined in consent decrees, supplemental environmental provisions, prospective purchaser agreements, habitat conservation plans, negotiated rulemakings, and many other instruments—kept the perfect environment the laws envisioned from becoming an implacable enemy of the good environment that patient case-by-case conflict-resolution could achieve.

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Anxiety and Depression 101

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