Privileged Polluters: The Case Against Exempting Municipalities From Superfund

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Superfund is widely regarded as the greatest failure of all the federal environmental laws. Formally known as the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), Superfund imposes strict cleanup requirements on sites where hazardous substances are found. All “persons,” including corporations and local governments, which have contributed to the presence of hazardous substances at a site are responsible for the cleanup. Cleanup standards at Superfund sites are hyperstringent, and the resulting financial liability is enormous.

Unfortunately, a fundamental obstacle to reform has emerged. Some of the groups harmed by Superfund are attempting to cut special deals. Faced with heavy cleanup liability arising from CERCLA, many municipalities are finding their legal environmental obligations to be more than they want to bear. Rather than advocating comprehensive reform, many municipalities and local governments are pushing for a special exemption from CERCLA.

Municipalities are subject to extensive liability because approximately one fifth of the sites on the Environmental Protection Agency’s primary list of Superfund sites are landfills owned or operated by municipal governments. These sites pose no less – and no more – of a public health risk than the typical Superfund site, and should be treated no differently. How hazardous a substance is has nothing to do with the identity of the party that generated it. Nonetheless, municipalities want the source of the waste, rather than the threat posed by the site in question, to be the basis for inclusion in the Superfund regime.

The most-commonly voiced arguments against imposing liability on municipalities have nothing to do with the fairness or rationality of including local governments, they are objections to Superfund’s basic design. For instance, some municipal exemption advocates complain that municipalities are brought into CERCLA cases because they have a “deep pocket,” and hence can afford to pay for extensive remediation disproportionate to the (arguably minor) degree of harm they have caused. The strategy of targeting “deep pockets” is, however, not a newly-discovered flaw in the Superfund scheme; it is a central element of cost-recovery for Superfund cleanups.

At bottom, the primary arguments for a municipal exemption seem to be based on the premise that local governments should receive special treatment because government is virtuous and private business is not. This view stands as an obstacle to the development of sound, equitable, and efficient environmental policy. Nonetheless, it appears that Congress may grant municipalities their wish, as bills now pending in Congress would exempt municipalities, at least in part, from Superfund’s liability rules.

Proposals to reform Superfund by adding various exemptions and special favors are as flawed as proposals to “fix” the tax code by adding more loopholes and complexity. What is needed is sweeping reform. CERCLA should be simply removed from the federal code and states should take over the job of cleaning up pollution within their own boundaries. In the absence of such true reform, modifications to Superfund should be based on the quantifiable dangers of various types of waste, and not on which politically favored entities happen to be responsible for them.