Social regulation emerges out of conflict between an industrial drive for profit and public demands for protection from production-related harms to health, safety, and the environment.1 Regulation orders this conflict and channels it through a set of interacting decision-making bodies: legislatures, administrative agencies, and courts. The success or failure of regulation reflects the terms on which conflict is resolved by successive decision makers.
Analyses of Superfund reveal a broad consensus that the program has failed to provide effective and fair social regulation. There is far less consensus on what the program has achieved and should achieve, the cause of its failure, and the relationship between failure and program-engendered conflict. The thesis of this study is that inability to resolve these conflicts in a consistent manner has contributed substantially to Superfund failure. The purpose of this chapter is to identify the conflicts that surround Superfund and set them within a framework that links conflict, conflict resolution, and program failure.
The starting point is an examination of environmentally unsound hazardous waste disposal as an instance of market failure. Contrary to a popular position, I argue that tort law faces severe limits as a mechanism to correct market failure and to promote efficient and equitable cleanup and compensation. The case for centralized, direct government regulation is then based on the failure of private torts. Direct regulation by the state requires explicit decisions on issues of hazardous waste cleanup program design and implementation. I outline the major issues confronting decision makers and emphasize that conflict over the distribution of program costs and benefits pervades all design and implementation decisions. Parties are identified that have a direct interest in program outcomes. Next, political economic perspectives on government decision making are discussed and used to summarize expectations regarding barriers to