Re: Environmentalism & the US Constitution

[William V Lipton <liptonw@DTEENERGY.COM>]

Thanx for the dose of reality you injected into a thread that was bordering on

fantasy.  I would guess that while a reputable law firm may find comic relief in

the proposed class action litigation against RCRA, CERCLA, TSCA, SARAH, ...,

they would advise the potential litigants to spend their money on something more

worthwhile, such as pet rocks.  Most of the successful litigants against EPA are

environmentalists who sue to require strict enforcement.



Having said that, it useful to look back on how we arrived at this

"unconstitutional" state of affairs.  When EPA initially tried to force site

cleanups, the polluters tied them up with litigation, so that most of the

cleanup money was being spent on lawyers rather than cleanup.  EPA thus

requested from Congress and was granted, two significant measures.



1.  strict liability for hazardous waste generation - This makes it unnecessary

for EPA to prove fault with a contaminated site.  If you generate hazardous

waste,  you are responsible for any consequences down the road, even if it's

someone else's fault.



2.  joint and several liability for site cleanup - If you are a "potentially

responsible party" (PRP) for a contaminated site, you are potentially liable for

the entire cost of cleanup.  It is not necessary for EPA argue with the PRP's

over how much each is responsible for.  The usual EPA tactic in dealing with a

superfund site is to:  (a) draw in anyone who is even remotely associated with

the site (I've  heard a horror story of someone who was named a PRP because he

was on a site's mailing list, even though he never did business with them.

EPA's response:  Prove it!) (b) reach "deminimis" settlements with  individuals

and small businesses to let them buy themselves out of the mess, and (c) go

after the "deep pockets" no matter how little they actually contributed to the

site's contamination.



Fair? - probably not, but the "deep pockets" brought this on themselves by

listening to their lawyers rather than their consciences.

Effective? - yes, and that's what the public wants.



Lessons learned:  (1) minimize waste - The only truly effective waste management

is to avoid waste generation. (2) Know who handles your waste.  Avoid cut rate

companies.  Even then, "trust but verify."



Please, no more whining about misusing funds for cleanup.  You don't get it.

Think!  RCRA stands for "Resource Conservation and Recovery Act."  It doesn't

include the word, "waste."  It's primary purpose is to minimize waste.   It does

this by requiring the highest standards for waste management.  This shifts the

cost versus benefit line highly in favor of minimization.



The opinions expressed are strictly mine.

It's not about dose, it's about trust.

Curies forever.



Bill Lipton

liptonw@dteenergy.com



"Syd Levine (AnaLog)" wrote:



> Check to your heart's content, but environmental law is here to stay.  It

> all started over 100 years ago with regulation of the railroads.  Thus was

> born "administrative law", which seems more like a kangaroo court if you

> happen to be a victim of it.  Attacks on the constitutionality of

> environmental law are almost impossible to win with a profoundly strong

> argument, it is a hopeless cause to make frivolous arguments, no matter how

> appealing the logic.





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