Territoriality, Risk Perception, and Counterproductive Legal Structures: The Case of Waste Facility Siting

The siting of hazardous and nuclear waste facilities has proven to be a task of enormous difficulty in our federal system. In this Article, the Author argues that one of the major causal factors for this difficulty is that the legal regime surrounding waste facility siting decisions is not structured in a manner sensitive to the human factors involved. The siting of a hazardous waste facility is likely to generate a negative community response where the imposition of externally made decisions and externally generated wastes fails to take into account the innate human trait of territoriality. Territoriality is a powerful and instinctive trait embedded in the dynamics of all human communities. When laws attempt to run counter to such a basic aspect of the human psyche, they are likely to be unable to accomplish their purpose. This has been the outcome of the current waste facility siting legal regime. The Author addresses these concerns and ends this Article with a model of comprehensive waste facility siting legislation which takes into account the territorial instinct of states and local communities and would therefore be much more effective in achieving the national goal of providing safe long-term disposal of waste material in a fair and equitable manner