An Analysis of the Rights-Based Justification for Federal Intervention in Environmental Regulation

INTRODUCTION Until 1970, federal government's involvement in regulation was extremely limited; primary responsibility for dealing with problems was entrusted not to federal government, but rather to states. (1) To extent that federal government enacted regulations prior to 1970, the primary targets ... were federal agencies rather than private industry. (2) The federalization of law began in earnest when President Nixon's signing of National Environmental Policy Act (3) was nationally televised on January 1, 1970. (4) Between 1970 and 1980, federal government enacted no less than ten major regulatory schemes. (5) However, beginning in early 1990s, major rationales for federal intervention have been reexamined in academic literature. Prominent economic justifications for federal intervention, such as race-to-the-bottom and public choice accounts, have been questioned. (6) Similarly, although existence of interstate externalities provides a compelling case for federal intervention, (7) regulatory regime has been challenged as inconsistent with this justification. (8) In response to these critiques, proponents of a strong federal regulatory role have advocated a number of other reasons for federal intervention in addition to these three traditional justifications. Like three traditional justifications, most of these newer reasons are economic in nature. For example, some scholars have argued that centralized regulation has strong economies of scale advantages. By centralizing research, standard setting, control-measure selection, implementation, or enforcement, federal government absorb these costs so that states do not have to repetitively perform these functions. (9) Another economic is rooted in uniformity concerns: Federal regulation may benefit a manufacturer who relies on economies of scale in production process because some federal standards--such as those for pesticides and mobile sources--serve both as regulatory floors and ceilings, thus allowing for standardization. (10) In addition to these economic justifications, proponents of federal regulation have advanced a non-economic justification, which I shall refer to as justification for federal intervention. The rights-based holds that federal government is obligated to control pollution levels because its citizens possess certain rights. Commentators have advanced at least four distinct reasons for vesting rights in U.S. citizens. (11) The first reason is that individuals possess a right to bodily integrity that is violated by high levels of pollution. The second reason is that all citizens possess right to live in, and to enjoy, a clean environment. A third rationale is distributional in nature. Some commentators, pointing to studies that conclude that poor people and racial minorities are exposed to disproportionate levels of risk, argue that federal government should intervene to combat environmental racism. (12) A final argument underlying rights-based focuses on potentially catastrophic impacts of elevated pollution levels. Some authors argue that great risks that contamination poses to planet and to future generations justifies federal intervention. The rights-based justification's proponents utilize in two ways. First, they use as a reason to oppose devolution of responsibility for protection to states. (13) Second, they proffer as a reason for federal government to implement additional regulations. Various kinds of criticism may be directed at rights-based justification. For example, may be objected that, insofar as rights being advocated can be linked to public health, it is difficult to understand why federal government should have such a preeminent role in regulation when does relatively little with respect to provision of general health care. …