DUKE LAW JOURNAL
Frederick R. Anderson
The multi-billion dollar federal «Superfund» program for the cleanup of thousands of hazardous waste sites currently emphasizes federally-funded cleanups followed by reimbursement actions filed against any responsible parties who can be found. Litigation to compel direct private cleanups supplements this strategy. Dean Anderson argues, however, that a variety of factors, including statutory constraints, inadequate funding, the shortcomings of litigation, and particularly the selection of a cumbersome quasi-regulatory implementation scheme, has combined to increase the costs and delay already inherent in the federal government’s program. After a careful analysis of the existing program, he suggests that greater reliance on privately-funded cleanups negotiated with the full accord of the Environmental Protection Agency, site users, state and local governments, and affected citizens would significantly improve the pace and efficiency of the program. Applying principles and techniques developed in the field of alternative dispute resolution, Dean Anderson details a negotiation process that includes the selection of skilled convener-mediators, the identification of those waste sites that a balance of factors indicates are ripe for a negotiated private cleanup, and the inclusion of all parties with a stake in the outcome. Such a process, he suggests, would protect against the type of abuses that occurred at the Environmental Protection Agency during the first three years of the Superfund program. Hence, Dean Anderson tests in the crucible of Superfund the conflict-resolving power of four basic domestic policy tools-public works, litigation, regulation, and negotiation. His recommended approach, endorsed by the Administrative Conference of the United States, offers a concrete case study of the difficulties that arise because negotiating a solution where a governmental agency is a party awakens a fundamental political conflict between consensual problem-solving and decision-making imposed by pluralist democratic authority. Thus, the study provides insights about when and how negotiation might supply the preferred problem-solving tool in other domestic policy arenas.
Frederick R. Anderson, Negotiation, and Informal Agency Action: The Case of Superfund, 1985 Duke Law Journal 261-380 (1985)
Available at: http://scholarship.law.duke.edu/dlj/vol34/iss2/1