The Story of Reserve Mining: Managing Scientific Uncertainty in Environmental Regulation

Abstract

This essay, which will be published in Environmental Law Stories (Richard Lazarus & Oliver Houck, eds.) in the Foundation Press "law stories" series, reinterprets the landmark environmental case, U.S. Environmental Protection Agency v. Reserve Mining Co., as an implicit adoption of a feasibility-based approach to environmental regulation. The usual understanding casts Reserve Mining as an early judicial approach to the threat of toxic pollution, which permitted agencies and courts considerable freedom to act preventively and aggressively against potential toxic injury despite fundamental scientific uncertainty regarding the existence of a danger to human health, to say nothing of its extent. It is, indeed, often criticized on these grounds, while others have hailed it as an early example of the Precautionary Principle at work. The present essay traces in detail the lengthy course of the administrative and judicial litigation over Reserve Mining's discharges into Lake Superior. It argues that the administrative and judicial tribunals uniformly resolved the scientific dispute by relying on a feasibility standard for regulation. Each tribunal acknowledged the uncertainty of the potential danger, demanded that Reserve address it, and adopted as its implicit standard that the polluter take all of the steps within its technological and economic capacity to eliminate the pollution.

Keywords: Reserve Mining, asbestos, Clean Water Act, regulation of toxic substances