To Clean Up Landfills, the Leader Should Be Municipalities Using Economic Incentives to Settle

January 1989
ELR 10012
Norman W. Bernstein

Editors' Summary: The Environmental Protection Agency's Superfund program is under increasing attack as slow, inflexible, and inclined toward inconsistent administration in various regions around the country. While EPA defends itself vigorously, asserting that these criticisms are exaggerated and that outsiders often do not acknowledge the complexities of hazardous waste cleanup, the fact remains that in its ninth year of implementation the Superfund program has still not lived up to public expectations.

In this Dialogue and the one that follows, two authors from very different backgrounds conclude that EPA is the wrong tool for at least some of the hazardous waste cleanup needed. Institutionally, they conclude, EPA as a national agency is too blunt and unwieldly to make the difficult, localized decisions required. In the first Dialogue, Adam Babich, a former state assistant attorney general who now represents primarily environmental plaintiffs, points out that state and local leadership is already permissible under the Superfund statute, and urges community leaders to turn first to local and state governments for action to clean up hazardous waste.

In the Dialogue that follows, Norman Bernstein, a former associate counsel for a Detroit automaker whose private practice now consists principally of environmental defendants, focuses on the cleanup of municipal landfills and reaches very similar conclusions. He points out that the key to settlement is the wise use of covenants not to sue and similar economic incentives, and that cites and states can use these tools unencumbered by overly cautious EPA policies.

Mr. Bernstein is a partner with Jenner & Block, which has offices in Washington, D.C., and in Chicago. He led the industry effort that resulted in the New York City landfills settlement described in the text.

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To Clean Up Landfills, the Leader Should Be Municipalities Using Economic Incentives to Settle

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