In 1980 the United States Congress took an important step in grappling with the negative externalities associated with hazardous waste disposal; they passed the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), or Superfund. Whereas before, many hazardous wastes, such as polychlorinated biphenyls, DDT and arsenic, were disposed of with little regard for environmental degradation and endangerment of human health, now, the perpetrators of such toxic releases past and present are liable for their removal and or site remediation (if the pollution meets a minimum standard for toxicity). Arguably, there have been many inequities and inefficiencies in the functioning of the Superfund system thus far, but overall the program is judicious, has deterred continued pollution and has the potential to instigate remediation of many more contaminated sites that pose a risk to human health.
The hammer in CERCLA is the polluter pays provision. Under this provision, once a site has been added to the national priority list because of toxic contamination, the United States Environmental Protection Agency may require those who polluted it to clean it up. To determine the liable parties, CERCLA promulgated a system of joint and several liability, whereby the arrangers of the pollution, the owners or operators of the land where and when the contamination occurred, the transporters of the hazardous waste to the site, and the current owner of the site are all potentially liable, singly or jointly, for the full cleanup costs. When liable parties cannot be found, the EPA itself can remediate the sites, primarily with funding from a special tax that has been levied (albeit on and off) on certain industrial chemical and oil producers.
Within this framework the EPA has by most accounts not managed Superfund very efficiently, and has been accused of wasting money (e.g. by contracting work to firms that overcharge them, and by choosing unnecessarily costly remediation methods), pinning liability on parties that had insignificant roles in site pollution, ordering the remediation of sites that pose little risk to human health over others that pose a significant risk, and preferentially focusing cleanup efforts on sites near wealthier areas. In fact, it is not only industry groups and individual polluters that decry these problems, others, such as former president Bill Clinton and Ted Williams, a contributing writer for Audubon, are just as quick to point out CERCLA’s flaws. However, implementation of CERCLA has led to the remediation of hundreds of sites and has assuredly stemmed the uncontrolled release of toxics into the environment. Without the polluter pays provision, many fewer benefits like these would be realized.
By holding polluters fiscally liable for their actions, they are much less likely to pollute in the future, knowing the costs that it could bring. Were the remediation of toxic sites to be funded largely by taxpayers, polluters would have much less incentive to alter their product use and waste disposal habits. Similarly, strictly imposing a tax on potential polluters would not necessarily deter their polluting behavior unless the tax were somehow tied to the amount that they polluted. Furthermore, it is most equitable in theory to make the polluters internalize all the costs of environmental pollution because those costs would mostly be passed onto the beneficiaries of the goods they produce; whereas, remediation funded by taxpayers would spread the costs across society, even to those who do not benefit from the pollution (e.g. in the form of artificially low product costs).
Of course, CERCLA can also impose liability on current landowners who bought their property with no actual knowledge of the contamination. This part of the polluter pays provision appears to some as even more unjust than holding the actual polluters liable, but it too has significant benefits. Most specifically, property purchasers, especially of industrial sites, are becoming increasingly thorough in inquiring about site contamination. This growing caution helps keep very polluter lands off the commercial market and increases the chances of the EPA discovering additional contaminated properties. In addition, once prospective buyers make a reasonable inquiry into any toxic pollution on the land, they are usually off the hook for liability of any past on-site contamination that is later uncovered but was not revealed before the sale was made.
It is unquestionable that implementation of the polluter pays provision and the rest of CERCLA has not been entirely efficient or equitable, and many changes need to be made, including improving liability determination, decreasing legal costs, developing a better system of cleanup prioritization and increasing sensitivity to equity. While these changes need to be made, they should be done so within the framework of the polluter pays provision to discourage future pollution and ensure equity of cleanup costs.