The 104th Congress waged a largely unsuccessful assault on environmental protection in the United States. That assault was three pronged. Radical Republican
freshmen in Congress first at- 8540*3 tempted to repeal core environmental legislation. When that attack failed, they then attempted to attach unprecedented riders on
appropriations to core environmental programs. Thus, Congress considered - but rejected - tying funding to enforcement direction. Finally, Congress initiated a successful
assault by cutting the EPA's funding.
Where it does exist, popular frustration with environmental laws focuses on a perceived unfairness and cost inefficiency built into the existing system. That frustration is,
however, with regulatory and administrative procedure, not with the general concept of using law to protect the environment.
 we should focus our legislative and regulatory reform efforts on determining how we should best regulate and protect the environment in an era marked by
decreasing government spending and increasing concern over bureaucratic rigidity.
 goals of such programs range from encouraging mere compliance to mandating environmental excellence.
o Techniques have been used as low-budget, market based mechanisms to change environmental behavior. While these techniques rely on the traditional
"regulator" as the ultimate authority, they encourage increased individual, corporate and governmental responsibility for the environment and joint
participation in creative problem-solving.
The EPA is the Federal organization with primary responsibility for protecting this nation's environment. There is no single organic statute that authorizes, governs and
instructs the EPA as to the effectuation of that responsibility. Instead, the EPA derives its powers and responsibilities piecemeal through the following major environmental
statutes:
. Toxic Substances Control Act
. Federal Water Pollution Control Act
. National Environmental Policy Act of 1969
. Resource Conservation and Recovery Act
. Clean Air Act
. Comprehensive Environmental Response, Compensation, and Liability Act
This scattered approach to environmental protection has important policy implications. Perhaps most prominent among them, the lack of a single, unified statute
effectively prohibits the EPA from prioritizing the nation's environmental problems in a broad, strategic fashion. Instead, the EPA is charged with administering the
programs which Congress deems important, while other equally or more important environmental issues are left completely outside the regulatory authority of the EPA.
Moreover, the EPA is only one of many entities - public and private - with environmental responsibilities.
In addition to the federal jurisdictional maze, each state has numerous parallel agencies with jurisdiction over environmental protection matters. Although the EPA is
working to ensure that increasing amounts of information, as well as certain decision-making responsibilities, are shared with the States, tribes, and communities affected by
the EPA's actions, as well as among the disparate programs within the EPA itself, the patchwork matrix of regulation prevents the emergence of a coherent coordinated
response to environmental regulatory issues and challenges.
The sources of air, water, and land pollution are interrelated and often interchangeable. A single source may pollute the air with smoke and chemicals, the land with solid
wastes, and a river or lake with chemicals and other wastes. Control of the air pollution may produce more solid wastes, which then pollute the land or water. Control of
the water-polluting effluent may convert it into solid wastes, which must be disposed of on land.
Similarly, some pollutants - chemicals, radiation, pesticides - appear in all media. Successful control of them at present requires the coordinated efforts of a variety of
separate agencies and departments. The results are not always successful.
 A far more effective approach to pollution control would: identify pollutants; trace them through the entire ecological chain, observing and recording changes in
form as they occur; determine the total exposure of man and his environment; examine interactions among forms of pollution; and identify where in the ecological
chain interdiction would be most appropriate.
 To further complicate matters, federal enforcement of environmental laws is primarily conducted by ten separate EPA regional offices located throughout the
United States. These offices then have the authority to further delegate compliance and enforcement responsibilities under certain major programs (CAA,
CWA, RCRA) to the states
the states are incapable of adequately addressing the core problems with environmental regulation due to their position in relation to the EPA and the supremacy of federal
law.
Several states have considered implementing an integrated permit system rather than continuing with separate permit systems for each media. Such permit systems are
generally designed to ease the burden on the regulated community, thus making compliance easier and more likely, without reducing environmental protection.
Despite measurable successes, state reforms will always be inadequate to address the core problems with our system of environmental regulation. Plainly, the current
federal system discourages state innovations, failing to give the states the flexibility necessary to structure their programs so as to maximize environmental protection.
Because the federal government dominates the field, the states are effectively constrained to reform only at the margins and within the federal, piecemeal framework.
 Although the current environmental protection system has generated a cleaner environment ... over the last 25 years, the system [as it now stands] will not be
sufficient to meet the environmental and economic challenges of the future. The health of the economy, the health of the American people, and the health of the
environment are inextricably intertwined, and the linkages among them are becoming more complex over time .
 The EPA's reform efforts, though laudable, have not and will not achieve the EPA's reform goals because they fail to address the core problems with our
current regulatory framework. Despite its efforts to date, the EPA has not successfully shifted the focus from enforcement to compliance assurance, a step
necessary to maximize actual environmental protection
 Furthermore, the EPA has not addressed the need to more effectively prioritize among our environmental problems within the EPA, so that our limited resources
are used to maximize environmental protection. In order for science to govern how we prioritize our regulatory resources, the decision-making process must be
better shielded from politics, which includes special interests, hysteria and misinformation.
The EPA's primary goal must be to ensure the maximum amount of environmental protection in a manner that does not unduly burden the regulated community and our economy.
The solid improvements in our environment over the past quarter century and the creation of a regulatory structure which business and industry now largely work within
presents the opportunity for the United States to revisit how the EPA can best achieve its somewhat contradictory goal.
 The greatest obstacle to achieving optimum environmental regulation is that the EPA cannot internally prioritize among our nation's environmental problems. The
EPA's resources are finite. Accepting that obvious reality, the EPA's ability to allocate its limited resources in the most efficient and effective manner is
critical to maximizing protection of the environment. Instead, Congress currently sets the priorities for environmental policy in the United States. Subject to the
direct pressures of re-election, Congress, more often than is good for the nation or our environment, defers to public opinion instead of addressing those areas
which science suggests pose the largest risk. Thus, it is all-too-often that politics, rather than science, controls the determination of how environmental policy -
and Agency priorities - are set
Certain specific areas of fragmentation should be replaced with a more systematic and consistent approach. Such areas included the fragmentation of our environmental laws,
which lacked coordination and consistency even where the same pollutants were being controlled, and the fragmented program structure within the EPA, which was rarely
coordinated even where they were controlling different aspects of the same problem. "setting priorities based on reducing the worst risks will lower total risk in a more
efficient way."
 Environmental decision-making and prioritization is not currently conducted in close enough accord with the dictates of science and reason, such as by carefully
weighing the benefits derived against the costs imposed. Under the current regulatory system, outside influences and internal biases seriously affect and
undermine any such prioritization.
 The basic requirements of a sensible prioritization process - risk assessment and cost/benefit analysis - are known to the EPA. The EPA itself acknowledges
that it is unable to tackle some of the most difficult environmental problems while over-regulating certain minor environmental issues.
Under Project XL, the EPA allows facilities greater flexibility in tailoring the means by which they comply with environmental standards at the specific facility.
"Project XL is a pilot program that allows participating companies to adopt alternatives to typical EPA regulations as long as greater environmental results are achieved."
Thus, the EPA offers the "carrot" of allowing companies to bend or break the letter of the laws' and regulations' dictates in order to achieve greater actual environmental
protection. The problem with such voluntary programs, however, is that they may be illegal. The EPA is charged with enforcing the nation's environmental laws and
regulations, and currently does not have the authority to sanction violations of those laws, even where such violations actually result in greater environmental protection than
would strict compliance.
Importantly, the regulatory reform initiatives passed by Congress in the 1990s apparently did not influence EPA's issuance of NAAQS for ozone and particulate
matter in July 1997. Due to their high potential compliance costs, the revised standards were immediately controversial; both the decision to tighten the standards and the
quality of the research used to support the new standards came under fire. EPA's cost estimates for the ozone standard were singled out for criticism; some analysts found
them to be too low by a considerable margin. On the other hand, the particulate standard exhibited expected benefits that could well exceed costs by a considerable margin.
The regulated community challenged the new NAAQS in court, and the case reached the U.S. Supreme Court in October, 2000. Under the CAA, EPA is required
to set health-based standards for specified pollutants without consideration of costs. In February 2001, the Supreme Court ruled unanimously that the CAA does not allow
EPA to consider costs in setting NAAQS for the criteria air pollutants, and that the statute's mandate that the NAAQS protect the public health with "an adequate
margin of safety" allows an acceptable scope of discretion to EPA.
Given that the ozone standard's estimated costs appear to outweigh its benefits by a significant margin, EPA has been under considerable pressure to revise the
standard, despite the Supreme Court's decision. n80 The situation is very different, of course, for particulate matter, for which estimated benefits appear to outweigh
estimated costs. If the courts continue to uphold the standards and if the statutes preventing cost considerations remain unchanged, the stricter NAAQS for ozone and
particulate matter may be one of the Clinton administration's most enduring environmental legacies, in terms of both potential benefits and potential costs. n81
Many or most environmental laws and regulations are not cost-effective, typically specifying technologies or uniform emissions limits, despite tremendous variation in abatement
costs among sources. While uniform standards may effectively limit emissions of pollutants, they typically exact relatively high costs in the process, by forcing some firms to
resort to unduly expensive means of controlling pollution.
Increased attention to equity concerns during the 1990s was frequently characterized under the rubric of "environmental justice." In 1994, EO 12,898 instructed
federal agencies to identify and address "disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority
populations and low-income populations." In practice, agencies have responded by including a separate distributional impact analysis within RIAs. Subsequent to EO 12,898,
environmental justice was mentioned in RIAs for rules in which agencies were required to address the issue, but only infrequently was quantitative analysis included. In no
case did the Administration's explicit concern for equity clearly alter proposed policies.
Increased attention to the distribution of the costs of environmental and natural resource regulation in the 1990s was exemplified by the rise of the "property rights"
movement, concerned with costs to private landowners, especially in Western states, of laws such as the Endangered Species Act ("ESA") and wetlands regulations under
Section 404 of the CWA. In addition, concern about the distribution of costs may partly underlie continued inefficient subsidization of natural resource extraction during the
1990s.