The Superfund program is perhaps environmental law's best Rorschach test, in which those who write about the national effort to clean up contaminated sites disclose as much about their own philosophies of justice, democracy, and economic efficiency as about environmental legislation. The ten books reviewed here show deep conflicts among these values. I argue, based on these disparate judgments, that many of the Superfund debates have an almost religious character. The law has been shaped to fit the view that demonic polluters were, and remain, at work. The law also reflects a sense of higher duty to future generations – the unborn users of the nation's aquifers, who I call the "angels" of Superfund.
Most experts believe that hazardous waste sites typically pose very low risks to the public, that spending billions of dollars to clean them up is a gross misallocation of resources, and that it is unjust to assess the costs against companies that behaved lawfully when disposing of their wastes long ago. In contrast, most members of the electorate believe, often with great passion, that these sites are imminent hazards that should be cleaned up at any cost by the wicked people who dumped there. In considering and attempting to synthesize ten books that cover the full range of these sentiments, this Essay aims to point the way to a reconciliation of their seemingly irreconcilable viewpoints.
In Part II, I discuss the origins and consequences of the demonology underlying Superfund. I show that the statute was premised on the idea of the evil polluter, and that this premise had deeply negative results. In Part II, I also summarize and assess several proposals from these books for exorcising the demonology. In Part III, I turn to the angels of Superfund in order to show how their images dominate the program, causing us to sacrifice both the present and the future for them. In Part IV, I conclude with a set of proposed principles that attempt to harmonize the values of justice, efficiency, and democracy in hazardous waste regulation, as well as a sketch of a legal scheme embodying those principles.
Michael B. Gerrard,
Demons and Angels in Hazardous Waste Regulation: Are Justice, Efficiency, and Democracy Reconcilable?,
Nw. U. L. Rev.
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