V.  Not Snake Oil, But Also Not the Cure for Cancer

Overall, the MRRA is a good piece of legislation.  It attempts to provide a uniform federal response to what is no longer a regional problem.  It consolidates information, seeks additional information, and it proposes to transform that information into useful products and approaches in the fight against methamphetamine.  The MRRA does not solve the problem, but it does provide a promising starting point.

Despite the relative strengths of the MRRA, there are three weaknesses underlying the mandate it creates.  First, the bill, as it is currently drafted, does not actually do anything except authorize research and require the EPA to set standards.  As such, it is entirely speculative and exploratory, relying on future developments for its success.  It is not an action plan, but an authorization to further investigate the problem.  Second, the detection kits it seeks to develop only address methamphetamine.  Thus, the constituent and precursor chemicals commonly found at methfield sites will remain unaddressed.  Third, and most importantly, voluntary adoption of the guidelines ultimately developed by the EPA is a serious deficiency, and significantly mitigates the MRRA's potency.

A.  Ultimately, It Is Just Another Study of the Problem

On one hand, the research program is perhaps the strongest contribution in the MRRA, as it addresses the lack of information states have had to face as they attempted to develop responses to meth detection and cleanup.  Information is critical when facing a new problem.  If the federal government was to do one thing to address the methamphetamine epidemic, providing funds for a comprehensive research program would undeniably be a step in the right direction.

However, the fact that information is necessary to address the methamphetamine problem by no means suggests that it is sufficient by itself to solve that problem.  Unfortunately, the MRRA does not offer much more.  It consolidates existing information and gives direction to future research, but does not provide any concrete guidance or assistance.  The success or failure of the Act is linked to what the research finds, as well as what those findings help to facilitate.  The MRRA does nothing on its face to directly address the problems caused by methamphetamine production.  In this sense, it has the appearance of being a proactive, definitive response to a nationwide crisis, but does not actually do anything beyond implementing another layer of bureaucracy.  In other words, it is, fundamentally, just another study.

On the other hand, the MRRA provides a foundation, currently lacking at the federal level, from which additional progress can be made.  One of the biggest hurdles faced by states as they tackle the meth problem is lack of information.  The information that has been assembled is fragmented because different states and research organizations have been functioning almost entirely independent of each other.  In this sense, the MRRA serves a valuable function by consolidating and disseminating the information that is currently available.  It is likely that a unified research program will reduce data holes and create a more coherent body of knowledge from which to formulate effective guidelines.265

B. Detection Technologies-Meth Is Only One of Many Dangers

Another potential deficiency in the MRRA involves the language used in the section on development of detection technologies.266  The Act specifies a research program to develop “(1) new methamphetamine detection technologies, with emphasis on field test kits and site detection; and (2) appropriate standard reference materials and validation for methamphetamine detection testing.”267 Effective methods of detecting methamphetamine in the field are particularly important for law enforcement officers, firefighters, and paramedics, because they must be put on notice in order to protect themselves at the scene.  It makes sense to develop an inexpensive, quick response field kit to test for methamphetamine.268

However, the final product is not the only source of concern at a methamphetamine lab site.  The MRRA only addresses detection of the methamphetamine drug, without addressing the precursor and byproduct chemicals that are also found at methfield sites.  While there are established methods for detecting at least some of the chemicals used to produce methamphetamine, many others currently remain undetectable.269  One of the major challenges faced by states, particularly in the context of remediation, is identifying the chemicals involved in producing the drug at a given site.  The constituent chemicals, not the final product, cause the environmental degradation at a methfield.  The “Findings” section of the MRRA indicates that detection of constituent and byproduct chemicals was taken into consideration when the legislation was drafted.270  However, no provision in the MRRA provides for detection of chemicals other than methamphetamine.  Expanding § 7 of the MRRA to include detection technologies for the full range of dangerous chemicals that may be present at a methfield site would strengthen its potential impact on the problem.

C. Voluntary Guidelines Do Not Equal A Mandatory Solution

Another ambiguity in the MRRA involves the nature of the guidelines themselves.  It is not entirely clear from the text of the legislation and the surrounding publicity materials whether the standards developed by the EPA and NIST will be health-based or technology-based.  From a public health perspective, health-based standards would be preferable because the goal is to create safe environments for individuals.  However, from an economic perspective, health-based standards could prove to be too expensive to implement with available technology.  In this sense, technology- and cost-based considerations are relevant to the development of guidelines, particularly for the potentially responsible parties and insurance companies who end up funding the cleanup.  

The press releases issued by the Democratic Caucus of the Committee on Science indicate that the guidelines will be health-based,271 as do press releases from several independent members of the House of Representatives.272  However, nothing in the text of the MRRA requires the EPA to base their guidelines on health standards.  On the contrary, the text implies a technological- or cost-based approach, stating that they should be “based on the best currently available scientific knowledge,”273 and that the Administrator must consider, among other things, “the expected cost of carrying out any proposed guidelines.”274  Once the legislation is passed, the EPA will have discretion to implement its mandate within the language of the MRRA.  Without an express requirement to develop health-based standards, there is no guarantee that the EPA will choose to do so, especially since the text of the MRRA implies a contrary approach.

The fact that the guidelines proposed under the MRRA are voluntary rather than mandatory is the greatest weakness of the proposed legislation and, thus, should be reconsidered.275  Just as creating a research program is necessary but insufficient for understanding the problem, effective guidelines are necessary for effective methfield detection and remediation.  However, voluntary implementation is not sufficient to ensure a favorable outcome.  States must actually adopt the guidelines to make any progress.  There is no assurance states will implement the EPA's recommendations.  As Sherry Green, Executive Director of the National Alliance for Model State Drug Laws stated in her testimony on the MRRA, “[g]uidelines do not have the force of law by themselves.”276  The current lack of uniform guidelines undermines parties concerned with limiting their exposure to lawsuits, such as property owners, contractors, and insurance companies.277  The uncertainty produced by the widely divergent standards in the status quo will not be rectified by voluntary guidelines.

There is a consensus that methamphetamine production is a nationwide epidemic,278 and that the contamination left behind creates an environmental and public health crisis.  Further, there is widespread agreement that the lack of quantifiable exposure levels and cleanup procedures has hindered state adoption of effective regulations.279  Evidence also indicates that the federal response has not historically provided much assistance to the states,280 which are overburdened, understaffed, and underfunded in their attempts to address the problem.281  A strong federal response to this problem is important because methamphetamine-and the problems associated with it-has easily crossed state lines and jurisdictions.

The degree to which states have utilized existing standards is instructive.  Washington, for example, has put considerable effort into addressing the problem using currently available information.  The Washington standards are generally recognized as the exemplar in the area of methfield remediation.  Even so, only a handful of states have subsequently “voluntarily” adopted the Washington standards, either in whole or in part.  North Carolina's guidelines, published in April 2005,282 -could have easily incorporated the Washington standards.  However, the guidelines have no provisions for certification of contractors, allows owners to conduct cleanup by themselves, and does not include any minimum levels of contamination.283  Thus, there is no independent reason to believe that states will adopt the recommendations created by the EPA just because they were developed by the federal government.  As such, adoption should be mandatory.

Although nothing in the legislative history or surrounding materials addresses the rationale for voluntary guidelines, there are a few possible explanations.  One possibility involves a desire to preserve federalism.  The federal government may be reluctant to encroach on states' rights in this arena, and it may prefer that the states retain their autonomy so they can be more flexible and responsive to the unique problems posed in their jurisdictions.  

This rationale is unpersuasive on two levels.  First, in the context of drug policy, the federal government has not been historically bashful about subjugating state law to federal law.  For example, in June 2005, the United States Supreme Court decided Gonzales v. Raich,284 which rejected a Commerce Clause challenge to the application of the federal Controlled Substances Act285 to medicinal marijuana grown and distributed legally under California's Compassionate Use Act.286  Even though the marijuana was grown and distributed entirely intrastate, the Court (relying on the aggregation principle established in Wickard v. Filburn287 ) deferred to congressional findings that locally produced and distributed medicinal marijuana could find its way into the interstate marijuana market.288

A similarly attenuated rationale could be used to regulate methamphetamine production and cleanup of production sites.  Like the cultivation of medicinal marijuana, meth production in small clandestine labs is local, and the meth is most likely distributed or consumed locally.  However, the aggregation principle applies even more forcefully in the context of methamphetamine production because the number of “mom and pop” labs in the country is demonstrably high, and methamphetamine has eclipsed marijuana as the number one drug problem in America.  The aggregation principle does not apply to methamphetamine production merely in the abstract, as it does to medicinal marijuana.  It is being produced in forty-nine states.289  If the Commerce Clause allows Congress to regulate medicinal marijuana in California, Congress could regulate methamphetamine production in each of the fifty states.

Second, in the area of environmental regulation, the EPA has proven it can implement results-oriented regulations without unnecessarily undermining state autonomy.  RCRA provides one example of this; the Clean Air Act (“CAA”) and Clean Water Act (“CWA”) provide two others.  As discussed above, RCRA was intended to make waste disposal safer by encouraging recycling and development of alternative technologies, but was implemented so as to allow the states to maintain responsibility for their solid waste problems.290  The CAA and CWA are both results-oriented, setting air and water pollution standards that states are required to meet.  However, states have broad discretion in their approaches to meeting those standards.  As long as a state is satisfying its pollution reduction or maintenance goals, the EPA must defer to that state's judgment.291

Another potential rationale for making the guidelines voluntary is bureaucratic.  The mandate created under the MRRA gives absolute discretion to states.  The amount of funding required to implement the program is much smaller than it would have to be if enforcement and compliance were a federal issue.  The MRRA is a cost-effective piece of legislation, appropriating only $18,000,000 over four fiscal years ($3,000,000 per year for the EPA,292 $1,500,000 per year for NIST293 ).  Based on the relatively low numbers involved in funding the MRRA, it is possible that the MRRA has received such uniform support precisely because its guidelines are voluntary rather than mandatory.  If there were more stringent requirements, there may have been higher costs associated with regulation and enforcement.  Higher expenditures may have encountered stronger opposition.

As a result, the bureaucratic and administrative costs of adopting and implementing the guidelines created under the MRRA still fall largely on the states, as do enforcement costs.  The enforcement requirements that would be present with mandatory guidelines are absent in the MRRA, meaning the EPA does not require additional funding to ensure compliance.  Still, the EPA is not very enthusiastic about its role under the MRRA.  Even in the face of all the evidence to the contrary, the EPA seems to believe that state governments are doing a fine job handling methfield cleanup on their own.  According to Kim Olson, a public affairs specialist with EPA Region Seven in Kansas City, Kansas, “Most of the states have done their own guidance . . . specific to their own state and local needs, so we don't see a need to be prescriptive.”294  Basically, it seems the EPA does not want to do any extra work on this issue unless it absolutely must.