The Legal Structure

According to traditional Anglo-American jurisprudence, when one person injures another person, the injured party can sue in court to recover damages. The legal rules governing those proceedings constitute the law of torts. This body of law is largely unhelpful, however, when injuries are due to most forms of environmental pollution because it is difficult to prove that a harm such as a case of cancer resulted from a particular emission of radioactivity or a certain dumping of toxic waste. Also, it would be inefficient for each injured party to sue individually, as was done traditionally, when the activity in question is alleged to affect many people, possibly thousands. Finally, tort actions can take place only after harm is done, and it is preferable to use the law to avoid harms when possible. Thus, the major role of government in the area of environmental health lies in the regulatory process.

In 1970 the National Environmental Policy Act was signed into law to "fulfill the responsibilities of each generation as trustee of the environment for succeeding generations." The EPA, which was established soon afterward, required that most federally funded projects be accompanied by an environmental impact statement so that the deleterious effects of those projects could be recognized and possibly ameliorated. Subsequent legislation has given the EPA the authority, for example, to regulate processes that pollute the air and water (the Clean Air Act and the Clean Water Act); locate, authorize, and fund the cleanup of hazardous wastes (the Resource Conservation and Recovery Act, which established the Superfund); and control the use of pesticides (the Federal Insecticide, Fungicide, and Rodenticide Act). States have their own EPAs that perform similar functions.

The U.S. EPA is not the only agency with the responsibility to oversee activities that can affect environmental health. The U.S. Department of Energy (DOE) oversees the disposal of nuclear waste, the U.S. Department of Agriculture (USDA) helps determine consumer exposure to pesticide residues in food, and the U.S. Department of Labor protects the health of workers through the Occupational Safety and Health Administration (OSHA). In addition, most states have administrative agencies with similar responsibilities for intrastate activities.

Because Congress has authorized those agencies and the many subagencies through which they operate to protect the public, courts are reluctant to intervene, making private lawsuits particularly difficult. If an agency is operating within its congressional mandate and arguably is doing its job in a reasonable fashion, the courts usually will protect both the agency and those in compliance with its standards from private lawsuits seeking compensation for environmentally related illnesses. Thus, the protection of environmental health depends much more directly on the actions of those agencies than on the concerns of private citizens and their elected representatives.

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