Yesterday I presented my draft paper, "Reforming Our Wasteful Hazardous Waste Policy," at the NYU/NYLS conference, "Breaking the Logjam: An Environmental Law for the 21st Century." There's a brief comment on the BTL blog about my panel here.

The task I was given for my paper was to evaluate the nation's primary federal laws governing hazardous waste management and cleanup -- the Resource Conservation and Recovery Act (RCRA) and Comprehensive Emergency Response, Cleanup and Liability Act (CERCLA, aka "Superfund") -- and present recommendations for reform based upon four consensus principle about the future direction of environmental policy: 1) Cross-cutting regulatory approaches that address underlying causes; 2) Openness about trade-offs; 3) Scaling regulatory authority to the problem; and 4) Expanding the use of market incentives and information.

One problem with the existing regulatory structure is that it fundamentally misunderstands the nature of the hazardous waste problem. Hazardous waste is not, in itself, "pollution." Producing potentially dangerous residuals is not, in itself, an environmental problem. Rather, hazardous waste only becomes pollution, and an environmental problem, when it is improperly handled and mismanaged. The current regulatory scheme seeks to prevent such problems by detailing an extensive list of requirements for those who generate, transport, store, treat, or dispose of such wastes. This, in turn, requires the government to classify materials as "wastes" or non-wastes, and "hazardous" and non-hazardous wastes. In practice, however, these labels are often quite arbitrary, and their application can impede legitimate source reduction, waste recycling and reuse efforts. Worse, when contamination occurs, cleanup decisions (when made pursuant to federal law) do not take sufficient account of local conditions and preferences. The ultimate consequence is a set of programs that do not do nearly as much as they could to reduce the risks posed by the improper management and disposal of hazardous wastes.

My paper calls for a fairly radical decentralization of many aspects of hazardous waste policy. In particular, it calls for the federal government to focus its resources on efforts on those areas in which the federal government has a comparative advantage or a particular federal interest. Beyond that, I argued, the primary regulatory decisions should be made by state governments so as to ensure greater tailoring of specific management, disposal, and cleanup decisions to local conditions and preferences. I further outlined some transition rules to allow for the gradual assumption of greater authority and flexibility by state governments.

In terms of the federal role, I believe that the federal government should focus in a few areas.

1. The federal government should continue -- indeed increase -- its scientific and technical research about hazardous materials, the threats they pose, their proper management, treatment and disposal, and cleanup techniques. There are substantial economies of scale of research in this sort, and greater federal research could help produce more informed and educated state-level decisions about hazardous waste policy.

2. The federal government should continue to regulate the transportation of hazardous wastes, particularly across state lines. Such regulation includes federal requirements for the containment and transportation of the wastes, in addition to record-keeping and disclosure requirements. A single set of uniform requirements governing the transportation of hazardous wastes would ensure an unobstructed market in waste management services while providing a baseline level of protection for all states.

3. The federal government should create a mechanism to address interstate spillovers. While improper waste management rarely extends beyond a local region, there are exceptions to this general rule. Sometimes activities conducted in one state pollute the land or water of a neighbor. In other cases, improper waste management or insufficient cleanup can contaminate a common pool resource shared by more than one state. In such circumstances, "polluted" states should have recourse against "polluting" states, and only the federal government is capable of playing this mediating rule. As I see it, the primary aim of the federal government here would be to prevent states from harming their neighbors. Absent such conditions, however, states should have a significant degree of latitude in designing and reforming their own programs.

4. The one part of the federal Superfund program that appears to have been a clear success is the emergency removal program. It is not entirely clear why this has been the case, but I suspect it may be because the federal government developed some level of specialized expertise in such actions. In any event, as this part of the program appears to be working, I see no reason to try and "fix" it. If the federal government is doing something well, as it is here, I think it should continue unless there is a compelling reason to believe states could do it better.

Without question, I have recommended a fairly dramatic degree of reform. Yet I am convinced that such reforms would improve the management and cleanup of hazardous wastes. As I write in the paper's conclusion:

Federal hazardous waste policy has become particularly wasteful and inefficient. Although hazardous waste problems are among the most localized of environmental concerns, federal hazardous waste laws are among the most centralized of federal environmental laws. In order to foster greater jurisdictional matching, primary responsibility for the regulation and cleanup of hazardous wastes should be returned to state governments. The federal government has an important role to play in hazardous waste policy, but this role requires more targeted and specialized efforts than the adoption and maintenance of a comprehensive cradle-to-grave regulatory system and a large scale waste site cleanup program that impose federal standards on local communities. Through technical guidance federal agencies can inform local waste management and cleanup decisions without imposing uniform federal standards that fit few jurisdictions well.

With federal efforts confined to those areas in which the federal government possesses a comparative advantage, state governments will be freed to reassume leadership in hazardous waste policy and tailor state policies to local needs and concerns. This, in turn, could foster greater recognition of and accountability for the trade-offs inherent in hazardous waste policy, and a more justifiable regulatory regime for hazardous waste. Insofar as questions of hazardous waste policy turn on subjective preferences about risk and ecological value, they are particularly well suited to local control. It is time for a hazardous waste policy devolution.