Introduction: Environmental Regulation and the Constitution

AuthorRobin Kundis Craig
int rod uct ion
Environmental Regulation and the Constitution
This book is entitled the Clean Water Act and the Constitution, but, as its subtitle
indicates, it is also concerned with a more general inquiry into the place of envi-
ronmental “rights” in the U.S. constitutional system. The United States protects
its environment through a fairly comprehensive array of federal legislation—the
National Environmental Policy A ct (NEPA),1 the Clea n Air Act (CAA),2 the
Clean Water Act (CWA or the Act),3 the Resource Conservation and Recovery
Act (RCRA), which amended the Solid Waste Disposal Act,4 the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA),5 and many
others—and through the state laws that implement, extend, and supplement those
federal statutes. Congress enacted most of these statutes between the late 1960s
through the mid-1970s in a f‌lurry of enthusiasm to protect and improve the nation’s
environmental quality.
As a result of these statutory programs and their state counterparts, the United
States, for all of its remaining problems, enjoys some of the best environmental
quality of the industrialized nations. One need only attempt to breathe in Mexico
City or Beijing, or contemplate the near death of the Black Sea in Europe, to
appreciate environmental regulation in the United States. Decent environmental
quality produces numerous health benef‌its for the nation, including reductions in
asthma attacks, waterborne disease, and slow and acute poisonings and incidences
of cancer from chemical contamination of the water, air, and soil.
In addition, environmental regulation provides signif‌icant economic benef‌its to
the nation. The CAA, for example, is widely acknowledged to have produced health
benef‌its far exceeding the costs associated with air quality regulation.6 In addition,
the federal Off‌ice of Management and Budget (OMB) concluded in 2003 that
environmental regulation, regardless of medium, produces net economic benef‌its
1. 42 U.S.C. §§4321-4370d, ELR Stat. NEPA §§2-209.
2. Id. §§7401-7671q, ELR Stat. CAA §§101-618.
3. 33 U.S.C. §§1251-1387, ELR Stat. FWPCA §§101-607.
4. 42 U.S.C. §§6901-6992k, ELR Stat. RCRA §§1001-11011.
5. Id. §§9601-9675, ELR Stat. CERCLA §§101-405.
6. U.S. EPA, Executive Summary, Final Report to Congress on Benefits and Costs of the
Clean Air Act (1997) (EPA 410-R-97-002), available at
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