Conclusion: Should There Be a Constitutional Right to a Clean/Healthy Environment?

• Author: Robin Kundis Craig
• Pages: 281-308

con clu sio n

Should There Be a Constitutional Right to a

Clean/Healthful Environment?

As was noted in the Introduction, as a result of a fairly comprehensive array of

federal environmental legislation, including the Clean Water Act (CWA or the Act),

the United States, for all of its remaining environmental issues, enjoys some of the

best environmental quality of the industrialized nations. That environmental quality,

in turn, has direct implications for the health and welfare of U.S. residents, with

the result that the benef‌its of environmental regulation—in terms both of monetary

benef‌its and quality of life—have repeatedly been shown to outweigh its costs. For

example, water quality regulation has signif‌icantly reduced waterborne diseases by

encouraging construction of sewage treatment plants and has resulted in cleaner

rivers throughout the country.1

Nevertheless, the effectiveness of environmental regulation has depended, and

will continue to depend, on compliance with those statutes’ requirements. As the

history of the Federal Water Pollution Control Act (FWPCA) from 1948 to 1972

demonstrated, lack of enforcement was a major stumbl ing block to improved

environmental quality. Given the costs of environmental compliance,2 effective

enforceme nt remain s a necessary component of achieving desired levels of

environmental quality. It is no accident, for example, that the U.S. Environmental

Protection Agency’s (EPA’s) civil penalty policies stress elimination of violators’

economic advantage, and the decline in federal facilities’ compliance with the CWA

after being deemed immune from civil penalties is very suggestive of the economic

disincentives to full compliance.To emphasize this point, several recent reviews of

the CWA have stressed the need for its improved enforcement.3 Most extensively,

Prof. Victor Flatt has argued that “[f]or all the great language in the CWA, a law is

281

1. William L. Andreen, Water Quality Today—Has the Clean Water Act Been a Success?, 55 Ala.

L. Rev. 537, 591-92 (2004).

2. See generally, e.g., U.S. Census Bureau, U.S. Department of Commerce, Pollution Abate-

ment Costs and Expenditures: 2005 (April 2008) (summarizing pollution compliance costs for

industry categories and by types of medium contaminated).

3. Andreen, supra note 1, at 544; Victor B. Flatt, Spare the Rod and Spoil the Law: Why the Clean

Water Act Has Never Grown Up, 55 Ala. L. Rev. 595, 596, 599-605 (2004); Clifford Rechtschaffen,

Enforcing the Clean Water Act in the Twenty-First Century: Harnassing the Power of the Public Spotlight,

55 Ala. L. Rev. 775, 775-76, 781-87 (2004); Office of Inspector General, U.S. Environmental

Protection Agency (EPA), Water Enforcement: State Enforcement of Clean Water Act Dis-

chargers Can Be More Effective, Audit Report No. 2001-P-00013, at 17-18, 43-44, 46 (2001).

ch12.indd 281 4/30/09 10:16:22 AM

only as good as its enforcement, and there have been across-the-board diff‌iculties

in the enforcement of the CWA.”4 Moreover, “without enforcement, the true goal

of the CWA, that is, clean water, will not occur.”5

In 1972, Congr ess comprehens ively restructured the F WPCA expressly to

improve enforcement of discharge requirements in order to achieve national water

quality goals. As Chapters 1 and 7 described, Congress’ solution to the FWPCA’s

problem of underenforcement had two facets. First, Congress changed the state-

controlled regime of water quality regulation into a regime where the f ederal

government imposes minimum requirements on individual polluters, summarized

in individual CWA permits and enforceable by the federal government itself—

although states are still encouraged to take over such regulation and enforcement

and, if they wish, to impose more stringent water quality requirements. Second,

Congress vastly expanded citizen participation in the CWA’s programs, including

the permitting process and government enforcement of the Act, culminating in a

citizen suit provision that allows private plaintiffs to independently ensure compli-

ance with the Act.

The history of U.S. water quality since 1972 suggests that these two structural

innovations to improve enforcement have in fact signif‌icantly improved both the

enforceability of the restructured Act and actual water quality. In 1998, for example,

EPA Administrator and the Secretary of Agriculture reported to President William

J. Clinton that while in 1972 only 30 to 40% of waters met their water quality

standards, by 1998, 60-70% of them did.6 Annual wetland losses had been reduced

almost 75%, and cropland erosion had been reduced by one-third.7 Sewage treat-

ment plants served 173 million people in 1998, compared to 85 million in 1972, and

by 1998 EPA had established eff‌luent limitations for over 50 categories of industry,

eliminating billions of pounds of pollutants from industrial wastewaters each year.8

By June 2001, national pollutant discharge elimination system (NPDES) permits

regulated 400,000 facilities.9 Thus, while not all waters have yet achieved Con-

gress’ “f‌ishable/swimmable” goal,10 the restructured CWA has made signif‌icantly

more progress in improving water quality than the prior FWPCA did. Moreover,

the most signif‌icant remaining source of water pollution—nonpoint source pol-

282 the cle an water act and the const ituti on

4. Flatt, supra note 3, at 596.

5. Id. at 599.

6. Carol M. Browner & Dan Glickman, The Clean Water Action Plan (1998), available at

http://www.cleanwater.gov/action/c1a.html.

7. Id.

8. Id.; see also Andreen, supra note 1, at 591-92 (noting similar improvements).

9. U.S. EPA, Protecting the Nation’s Waters Through Effective NPDES Permits: A Stra-

tegic Plan FY 2001 and Beyond 1 (2001).

10. U.S. EPA, Purer Water, in Draft Report on the Environment (2003), available at http://

www.epa.gov/indicators/roe/html/roeWaterCon.html (last updated June 30, 2003); Off‌ice of the Chief

Financial Off‌icer, U.S. EPA, Goal 2: Clean and Safe Water, in Draft: 2003 Strategic Plan (2003),

available at http://epa.gov/ocfo/plan/2003goal2.pdf.

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