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

摘要

When Congress restructured the FWPCA in 1972 to better ensure that the nation's water quality would be restored and maintained, it also restructured relationships among the United States, the states, the community of regulated entities, and the general public. In particular, by including citizen suit provisions in the 1972 Amendments, Congress created a citizen enforcement mechanism embodying both public rights and private rights. While demonstrably effective in improving the nation's water quality, this statutory structure does not fit neatly within the constitutional principles that the Rehnquist Court has chosen to emphasize—real Commerce Clause and federalism limitations on Congress' regulatory authority, states' rights, private property rights, and limited citizen access to the federal courts to implement federal regulatory schemes. At its most basic, under this Court, the Constitution does two things: structure the relationship between the federal and state governments; and protect citizens from the unwarranted intrusion of either government into a limited number of specified and penum-bral individual constitutional rights. There is no room in this view of the Constitution for private citizens' direct involvement in public law: citizens may sue to redress their own injuries, but they have no business using the federal courts to ensure that federal, state, and private polluters actually comply with federal environmental law. In response to the structural conundrum that private environmental enforcement thus poses, the Court has refused since 1972 to situate citizen suits within the Constitution as a public rights enforcement mechanism, as Professor Percival has pointed out. Instead, the Court has forced citizen suits into a private rights litigation model, requiring direct and individualized injury before citizens can sue anyone, regardless of the severity of the environmental harm being done or its blatant illegality; severely restricting citizens' ability to hold states to national environmental standards; and eliminating citizens' ability to punish federal violators. The statutory public rights that Congress envisioned in the CWA's citizen suit provision are somehow fundamentally at odds, in the Court's constitutional evaluation of that Act, with constitutional structure.