Until 1970, the federal government's involvement in environmental regulation was extremely limited; the primary responsibility for dealing with environmental problems was entrusted not to the federal government, but rather to the states. (1) To the extent that the federal government enacted environmental regulations prior to 1970, "the primary targets ... were federal agencies rather than private industry." (2) The federalization of environmental law began in earnest when President Nixon's signing of the National Environmental Policy Act (3) was nationally televised on January 1, 1970. (4) Between 1970 and 1980, the federal government enacted no less than ten major environmental regulatory schemes. (5) However, beginning in the early 1990s, the major rationales for federal intervention have been reexamined in the academic literature.
Prominent economic justifications for federal intervention, such as the race-to-the-bottom and public choice accounts, have been questioned. (6) Similarly, although the existence of interstate externalities provides a compelling case for federal intervention, (7) the 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 the 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," the federal government "can absorb these costs so that states do not have to repetitively perform these functions." (9) Another economic justification is rooted in uniformity concerns: Federal regulation may benefit a manufacturer who relies on economies of scale in the production process because some federal environmental 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 the "rights-based justification" for federal intervention.
The rights-based justification holds that the federal government is obligated to control pollution levels because its citizens possess certain environmental rights. Commentators have advanced at least four distinct reasons for vesting environmental 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 environmental pollution. The second reason is that all citizens possess the 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 environmental risk, argue that the federal government should intervene to combat "environmental racism." (12) A final argument underlying the rights-based justification focuses on the potentially catastrophic impacts of elevated pollution levels. Some authors argue that the great risks that environmental contamination poses to the planet and to future generations justifies federal intervention.
The rights-based justification's proponents utilize the justification in two ways. First, they use the justification as a reason to oppose devolution of responsibility for environmental protection to the states. (13) Second, they proffer the justification as a reason for the federal government to implement additional regulations.
Various kinds of criticism may be directed at the rights-based justification. For example, it may be objected that, insofar as the environmental rights being advocated can be linked to the public health, "it is difficult to understand why the federal government should have such a preeminent role in environmental regulation when it does relatively little with respect to the provision of general health care. …