Environmental rights and the US system of protection: Why the US Environmental Protection Agency is not a rights-based administrative agency

The US Environmental Protection Agency (EPA) has been the subject of much controversy during the twenty or so years since its establishment—much more controversy than other agencies created at around the same time. Descriptions of the EPA's failures often focus upon the inherent faults in its structure and on the statutes it was asked to administer. One point almost completely ignored is the fact that, unlike other agencies of the ‘rights revolution’, the EPA has been asked to protect an entity not yet truly recognized as a right. Although the EPA was a product of the ‘rights revolution’, it was not a rights-based agency, and was probably never intended to be so. This helps to explain why it has failed to meet its statutory mandates-all three branches of government have been able to minimize the effects of environmental regulation without ever having to consider fully the environmental rights of the citizenry. The National Environmental Policy Act provided the citizenry with the assurance that environmental interests would be considered within the governmental and bureaucratic decisionmaking process, but this was no guarantee of rights. In this paper it is suggested that without any recognition of true environmental rights it will always be possible for pro-development interests to reduce the obligations and effects of environmental protection legislation upon industry.