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

December 2004

Citation: ELR 11013

Author: Robin Kundis Craig

As was noted in the Introduction to my recently published book The Clean Water Act and the Constitution: Legal Structure and the Public's Right to a Clean and Healthy Environment, as a result of a fairly comprehensive array of federal environmental legislation, including the Clean Water Act (CWA), 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, as the Introduction to this book discussed. 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.

Nevertheless, the effectiveness of that environmental regulation has depended, and will continue to depend, on how well environmental statutes are enforced. As the history of the Federal Water Pollution Control Act (FWPCA) from 1948 to 1972 demonstrated, lack of enforcement is a major stumbling block to improved environmental quality. To emphasize this point, several recent reviews of the CWA have stressed the need for its improved enforcement. Most extensively, Prof. Victor Flatt has argued that "[f]or all the great language in the CWA, a law is only as good as its enforcement, and there have been across-the-board difficulties in the enforcement of the CWA." Moreover, "without enforcement, the true goal of the CWA, that is, clean water, will not occur."

The author is an Associate Professor of Law, Indiana University School of Law at Indianapolis. She is the author of The Clean Water Act and the Constitution: Legal Structure and the Public's Right to a Clean and Healthy Environment (Envtl. L. Inst. 2004). This Article is excerpted from that work. It may be ordered from the Environmental Law Institute at http://www.elistore.org/books_detail.asp?ID=11001 or by calling 1-800-433-5120 (or 202-939-3844 in the Washington, D.C., area). The author received her J.D. in 1996 from the Lewis & Clark School of Law; a Ph.D. in 1993 from the University of California; a M.A. in 1986 from The Johns Hopkins University; and a B.A. in 1985 from Pomona College. She may be reached by e-mail at robcraig@iupui.edu.

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