Make the Polluters Pay…Right?
By Grace Chen
What does it take for the EPA to turn to taxpayer money, unilateral administrative orders (UAOs), and even stimulus money to feed its so-called Superfund? Nothing more than a tax left to expire at the end of its lifetime, as it turns out. The “Superfund tax,” passed in 1980 and applied exclusively to chemical and oil companies, was used to fund a reserve for cleaning up contaminations left by parties that could not produce enough money to pay for the clean-up (these sites are termed “orphan sites”). The tax was allowed to expire in 1995, after which the reserve was eventually drained. The Obama administration has considered reinstating the Superfund tax,1 but there are multiple factions with different reactions to the prospect.
Supporters of reinstatement praise the tax for its role in making the chemical and oil industries, two of the largest toxic waste producers, pay for their irresponsible handling of hazardous materials. Others have condemned the tax for penalizing all chemical and oil companies regardless of how they handle toxic waste, and for failing to penalize other industries that also produce toxic waste and/or handle it irresponsibly. However, in order to solve the issue of financing the Superfund, it is necessary not only to penalize certain industries (or individual companies, if such granularity can be achieved), according to their involvement in contaminations, but also to explore proactive methods for preventing spills.
Background: the Superfund
The EPA’s Superfund program was established in 1980 by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). At the end of its original lifetime of five years, the Superfund, upon evaluation, was deemed drastically inadequate in light of the magnitude of the number of contaminated sites (2,000 Superfund sites were identified, with an estimated nationwide total of 10,000); the estimated total cost of nationwide cleanup ($100 billion, compared to the initial budget was $1.6 billion); and the technological constraints and lack of capable professionals.
As a result, the Superfund Amendments and Reauthorization Act (SARA) was passed by Congress in 1986. Wider in scope and farther in reach than CERCLA, SARA allocated funds for training programs and research, and emphasized finding long-term, permanent solutions, as opposed to finding temporary solutions that merely shifted health- and financial burdens to other communities and future generations. SARA also set more ambitious clean-up goals for the EPA, and lengthened contamination evaluation processes to allow for more effective on-site treatment, albeit at the expense of anxious civilians living or working nearby.4 However, SARA did not address the impending expiration of the Superfund tax.
Evidence For and Against Reinstatement
Since the expiration of the tax, the EPA has had to rely on taxpayer money and congressional funding to continue its efforts, which has likely played a part in the decreasing rate of clean-ups (89 sites were cleaned up in 1999, compared to 19 in 2009). In addition to the financial burden placed on American civilians, the majority of whom probably have nothing to do with toxic waste contamination, the decrease in rate of clean-ups implies that civilians living near contaminated sites must reap health consequences for longer periods of time.
The lack of funding has also manifested in efforts by the EPA to obtain funds in unconventional ways—for example, using UAOs, which do not require pre-enforcement judicial review and are so far upheld by courts, to compel potentially-responsible companies to foot clean-up bills. Additionally, the EPA has penalized suppliers of spilled toxins, although this was opposed by the Supreme Court in 2009. And, in 2009, $600 million in stimulus money was contributed toward cleaning up various contaminated sites. Although some of the EPA’s methods are questionable, their reasons for resorting to such methods are not entirely unjustifiable.
On the other hand, chemical companies have alleged that the reinstatement of the Superfund tax would unfairly tax companies that do not contribute to contamination. This argument is to be expected, but is also not without validity—chemical companies are certainly not the only parties responsible for contaminated sites. In New Jersey, a strong contender for the title of “State with Most Superfund Sites,” contaminated sites include:
Industrial sites that use chemicals
Various engineering centers
In California, another contender for the same title, contaminated sites include:
Landfills, private properties, industrial sites
Various types of laboratories 9
Alaska (chosen randomly) boasts some unusual sites—hospitals, schools, hotels, firing ranges. Thus, the argument that the tax would make all polluters pay is a gross oversimplification. Additionally, some argue that reinstating the tax would harm industry growth and the creation of new jobs, and would not guarantee a higher rate of clean-ups, given the in-depth evaluations of contaminated sites that must be conducted, among other bureaucratic delays.4
Reinstatement of the tax depends on the priorities of the current administration. If priorities lean toward immediate economic growth, the best route might be to not reinstate the tax, although the extent to which the tax would affect any company’s ability to grow should be more closely examined.
If, however, priorities lean toward the long-term wellbeing of Earth’s inhabitants, the solution must go further than simply reinstating the tax—it must include more proactive, preventative measures, in addition to penalizing companies across multiple industries more fairly. It is neither just nor sufficient to simply reinstate a tax that embodies the simplistic, quick-fix attitude toward environmental issues that our nation held during the dawn of environmental policy.
I completely agree with your overarching point about finding preventative measures rather than merely relying on cleaning up Superfund sites. We can go on and on all day about the effects of a Superfund tax, who the tax incidence should be on, if a tax is even the best option to raise money for Superfund, etc. However, if we did deeper and think of the big picture, the real way to clean up our world has to rely on efforts to prevent pollution from occurring in the first place. If we mandate lower levels of pollutants or contaminants, start a cap-and-trade system for pollutants, or even tax inputs that create these pollutants, we can motivate corporations in whatever industry they may work, to come up with innovative new technologies that will decrease pollution output. In that case, there will be less Superfund sites to clean up because industries would be polluting less.
This is not to say Superfund isn’t beneficial. The solutions I have just mentioned, while ideal, are of course met with vehement opposition from some groups, namely the industries that are the ones polluting. Under these circumstances, it is certainly beneficial to have a system such as Superfund. However, what we really need to do is punish corporations and industries at the source, rather than punish them after the fact—this will not inspire any change.
On another note, I found your argument on who should bear the burden of the Superfund tax very interesting. While I do think all polluting organizations should be blamed and punished for their environmentally harmful actions, it is sometimes hard to pinpoint exactly who is the one polluting, which is probably the motivation behind a tax whose burden is on all chemical companies. However, to punish only one industry for the ignorance of many seems to be inefficient, and this is definitely something that needs to be addressed in order to improve the quality of the Superfund tax and system as a whole.
Not only does a tax embody a quick-fix attitude, it doesn’t even seem to be particularly effective. When implemented the tax didn’t even raise enough money to solve the problem. It seems like the fairest way is to have some cutoff and penalize companies that pollute above the cutoff. If the price was high enough, it would make financial sense for a company to clean up after itself. Still, such a policy would only be feasible if an individual company bore the brunt of the cost for the pollution it currently produces. The cost of cleaning up all existing Superfund sites is too high. There definitely needs to be a more effective method for raising revenue to pay for problems that began in the past.
Jessica: As you point out, the issue presented is more than just black and white on whether the superfund should be reinstated. It is about determining who should clean up the messes, how they can best be cleaned up, and who should pay. In my opinion, the superfund tax should apply to all companies using chemicals or processes that could be potentially harmful to the environment. It could function as a sort-of insurance system so that if there is a chemical leak or spill, there is a pool of money to cover the damages. I agree that it should not only pertain to a specific industry when there are so many other industries and companies that are to blame for contaminated sites.
The biggest problem that I see in the superfund issue is the retroactive nature of the legislative system as a whole. There should be more proactive measures for companies to follow, preventing the creation of superfund sites in the first place.
Finally, I think that there is a long way to go in finding the best cleanup procedures for contaminated sites. As you mention, it is important not to bury the mess and make another generation pay the consequences.
I also agree with the overall idea that we should be focusing on preventing spills and hazard sites rather than clean-up, but the CERLCA superfund was a necessary safety net and the act itself created much more than just a tax. The tax that was put onto chemical producing industries was relatively small, and the associated risk of spills very large. Because the cost of cleaning all of the superfund sites is so much higher than the $1.6 billion in the fund, we can assume that EPA’s main interest was not necessarily to protect the environment with the money, but to hold people responsible for their own spills – the $ 1.6 billion could be used for the rare, truly abandoned sites. The money can also be used to initially clean up the site and then sue those liable for the cost of the clean up. This makes the tax money useful in immediate clean up. It is also extremely difficult to prove innocence in the case of a hazardous chemical spill and many times there are multiple people liable. CERCLA does not take contaminated sites likely – and the superfund is not the primary way that hazardous areas are dealt with.
I do think that the question of blame is interesting in terms of the tax. The question of if it is fair to impose a superfund tax on all chemical companies raises a good point about the industry. Perhaps they shouldn’t be taxed if there are sufficient spill/leakage prevention methods in place.
This post is very well-written and gave a lot of insight to superfund taxes that I wouldn’t have been able to garner on my own. I agree with your point that the system set up for solving the Superfund problem will not have a simple solution under SARA or otherwise; especially, given the decrease in funding allotted to the EPA throughout the years, the necessity of creating taxes for polluters who contribute to superfunds (which other than harming the environment, creates yet another priority for the EPA to consider) may further justify arguments for superfund taxes. If the cost of cleanup has risen, why shouldn’t producers be made to pay?
Of course, this runs into your counterargument that some polluters will be forced to pay for pollution they didn’t contribute to- but I would ask, does the EPA have a system for assessing and monitoring any proposed pollution and then adjusting a tax to fit the amount they think the polluter would create? It needn’t be particularly set in stone, either- tiers could be set where appropriate, to give polluters incentive to improve their efficiency. I think I’m biased towards taxes because I see them as the best distributional vehicle for responsibility, and are better than fines simply because of their pre-emptive nature. However, I definitely understand there are nuances to even the most basic tax, and I’m going to wait and see what comes of such a reinstatement of the tax, if it in fact happens.
The case of the superfund tax is a very interesting issue in the United States. While yes, preventative measures are more ideal than relying on a tax to deal with spills and pollution after they occur, the tax serves to internalize the externalities that companies introduce to the environment, human health, etc. Unfortunately, like much of the legislation in the United States, money and lobbying efforts dictate what gets passed. It makes sense that a superfund tax will continue to be blocked as long as huge oil companies and big polluters remain the large campaign donors and lobbyists that they are. Those hurt by pollution are often the population at large – a group that is not highly organized nor willing to organize and fight against the power of the oil industry. Groups that are willing are smaller and don’t often have the funds to have a larger voice than the polluters. Changing this would mean changing the way campaign finance works and thus is a part of a much larger issue within the American political system. While I think the superfund tax is an effective way to deal with spills and pollution in the first place, it does not properly disincentivize polluting. When safety nets are available, people will use them. If companies are already paying a tax, what incentive is there for them working on efforts to prevent pollution and spills? So, while safety nets are important when big spills happen, they need to be used in conjunction with policies that keep companies working to reduce their emissions and pollution (like subsidies, cap and trade systems, etc.) as well as strict punishments when spills occur.
 Senate Dems’ bill would bring back Superfund tax (accessed 2/7/16); available at http://thehill.com/policy/energy-environment/213707-senate-dems-bill-would-bring-back-superfund-tax
 Superfund Taxes (accessed 2/7/16); available at https://www.americanchemistry.com/Policy/Environment/Superfund
 What is the “Superfund” Program? (accessed 2/7/16); available at http://toxmap.nlm.nih.gov/toxmap/faq/2009/08/what-is-the-superfund-program.html
 Superfund (accessed 2/7/16); available at http://www.allgov.com/departments/independent-agencies/superfund?agencyid=7448
 General Electric Co. v. Jackson case brief (accessed 2/7/16); available at http://www.lawschoolcasebriefs.net/2013/11/general-electric-co-v-jackson-case-brief.html
 Justices Limit Liability Over Toxic Spill Cases (accessed 2/6/16); available at http://www.nytimes.com/2009/05/05/business/05bizcourt.html?_r=3&partner=rss&emc=rss
 Without Superfund Tax, Stimulus Aids Cleanups (accessed 2/7/16); available at http://www.nytimes.com/2009/04/26/science/earth/26superfund.html
 Search for Superfund Sites Where You Live (accessed 2/21/16); available at http://www.epa.gov/superfund/search-superfund-sites-where-you-live