This month we are sharing a selection of paired pieces from The Federalist Society's Liberty Month in July 2015. We hope you enjoy reading them. Click here to visit the paired piece for this entry.

* * *

Choking on life-threatening pollution, hundreds of millions of Chinese long for effective environmental laws like we enjoy in the United States.  The key to the exceptional success of U.S. environmental protection efforts has been the enforcement of strict, national pollution control standards.

Virtually all the laws mandating these standards, including the Clean Air Act, the Clean Water Act, and the Safe Drinking Water Act, were enacted by Congress in the early 1970s.  They directed the newly-created U.S. Environmental Protection Agency (EPA) to create comprehensive, national regulatory programs to protect the public from exposure to environmental risks.   Pursuant to these laws, EPA sets national pollution control standards, implemented by state and federal authorities, and enforceable through citizen suits.

Four decades later, these programs have been an unqualified success.  Levels of air and water pollution in the U.S. have dropped dramatically, even as the U.S. economy has more than tripled in size.   Regulations mandating reductions in U.S. pollution have saved millions of lives, producing trillions of dollars in net benefits to our society and economy.  

China is a far different story.  Air pollution episodes there can be so severe that schools and businesses are forced to shut down. The World Health Organization estimates that 1.2 million Chinese die prematurely each year due to exposure to air pollution.  While U.S. law guarantees that tap water is safe to drink anywhere in the United States, in China tap water is unsafe to drink even in the most luxurious hotels.

China has national environmental laws, but their implementation and enforcement is left largely to local authorities.  While the U.S. EPA has more than 15,000 employees, China’s federal Ministry of Environmental Protection has only a few hundred.  Most power in China is wielded by local environmental protection boards that are subject to intense pressure to bend the rules.

The U.S. environmental laws successfully follow a model of cooperative federalism.  EPA sets national standards to guarantee a minimum level of protection for the public, while allowing states to adopt more stringent standards if they so desire.  States may choose to implement the federal standards, as nearly all do, or they may leave it to EPA.  In only a few areas has the federal government preempted state regulation.

History demonstrates the importance of enforcing strict, national pollution control standards.  Pollution does not respect state and local political boundaries, so national standards are essential to control transboundary pollution problems. Prior to the advent of national regulatory programs, disputes over interstate air and water pollution were heard by the Supreme Court, using its original jurisdiction over disputes between states.  In a series of cases in the early 20th century, the Court issued injunctions to control air pollution from smelters, to require Chicago to build its first sewage treatment plant, and to force New York City to construct garbage incinerators.   But the Court soon recognized that it did not have the expertise to serve as a national regulatory body.

Federal regulatory programs were adopted only after a long history of state failures to control burgeoning environmental problems.  As pollution problems grew after World War II, the federal government encouraged states and local governments to take measures to combat them.  One of the most successful federal initiatives was federal funding for the construction of municipal sewage treatment plants.  This overcame the understandable reluctance of cities to invest in projects that would benefit only their downstream neighbors.


To be sure, cooperative federalism is not without its frictions.  Political conflicts between federal and state authorities have been a chronic feature of our federal system since the early days of our republic.  Even when these conflicts must be resolved in court, our tradition of respect for law and our independent judiciary ensures the smooth functioning of our environmental laws.

U.S. environmental laws also are successful because they require EPA to revise and update national standards in response to new scientific information.  Virtually every time EPA strengthens its regulations, businesses affected by regulation predict economic calamity.  Despite cries of doom when EPA removed lead additives from gasoline, this initiative has been one of the most successful public health measures in history, now embraced almost universally throughout the world.

America is an exceptional country and the success of our environmental laws is an important part of this record of exceptionalism.  Because they mandate strict and enforceable national standards to protect the health of all Americans, they make the United States the envy of the world.