Many environmental lawyers have recently experienced the emergence of a new type of prelitigation negotiation, involving hundreds of potential corporate defendants arrayed on one side against the combined resources of federal, state, and, perhaps, local governments. The issue in dispute is who shall pay how much to clean up hazardous waste disposal sites. The statutory impetus for the discussions comes from the Comprehensive Environmental Response, Compensation, and Liability Act¹ (CERCLA) commonly referred to as Superfund.

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)¹ provides a detailed system for recovery for damage to natural resources that is caused by the release of hazardous substances.

Almost every federal environmental regulatory program structures by statute a federal/state relationship for implementing the program. These relationships were established over a 10-year period, under both Republican and Democratic Administrations, and by a variety of Senate and House committees. As will be seen, the relationships range from exclusively federal control to essentially a joint venture relationship. The current Administration believes in general that the federal government has too much power and that this power should be diminished.

In this Article, I will share with you my thoughts on the proper roles of the Environmental Protection Agency (EPA) and the states as we in the Reagan Administration perceive them. To be succinct, we are directing EPA's role toward the achievement of needed environmental results, and away from the stipulation of each step of the process by which those results come about. From the standpoint of the law and of management efficiency, we believe states, not EPA, should be the administrators of most environmental programs conducted within their own boundaries.

The design of state/federal relations during the last decade has evolved largely in response to the carrot of substantial federal funding and the stick of federal requirements for the structure of state regulatory programs. The resultant relationship has been controversial and stormy; in the last 10 years, however, many trends in environmental degradation have been slowed and in some cases effectively reversed. It is certain that over the next decade federal funds will be increasingly scarce, and it is probable that regulatory requirements for state-administered programs will be eased.

Can "New Federalism" really work in implementing federal environmental statutes? The guidelines for this paper, in suggesting that it should be "Hamiltonian, articulating the proper boundaries for a strong federal role in environmental control," infer that my answer should be no.

FREDERICK ANDERSON: Addressing my remarks to those who advocate a significant shift of power towards the states, are you not offering to return authority to institutions that we long ago rejected as a place in which to lodge major environmental protection authority?

My recollection of the history of the Clean Water and Air Acts is that over a long and fairly painful period, the statutes were revised and tightened up, based on a record supported indirectly by the state people themselves that the states just could not handle the authority.

The question is environmental protection—can the states cope? How will the states cope, and how well will they do that?

These are difficult questions to answer, but questions are frequently raised in our society because of anticipated change, and in this case, questions are being raised because of a change in Administration, in relationships between different levels of government, and in costs and sources of funding government activities.

Over the last several months, under pressureof court-ordered deadlines, the Environmental Protection Agency (EPA) has been promulgating long overdue Clean Water Act best available technology (BAT) standards for toxic pollutants. In the final BAT effluent limitations guide-lines BAT often is the same as the best practicable technology (BPT). Where the new BAT is more stringent than BPT, the difference is relatively small and potentially more effective technologies were rejected.

Editors' Summary: The Bureau of Land Management is in the process of reviewing 23.8 million acres of its lands for possible wilderness designation. During this review it must manage these wilderness study areas under §603(c), an ambiguous provision which mandates the application of a strict nonimpairment standard to WSAs but "grandfathers" certain poorly-defined pre-FLPMA activities. In 1978, the Solicitor of the Department of the Interior wrote a legal opinion construing the provision to provide stringent limits on oil and gas leasing in WSAs.