American Journal of Law & Medicine

Environment and public health in a time of plague.


The environment and public health goals hold a common value of healthy populations. The threat of bioterrorism requires a partnership of both, building upon the long history of the link between public health and the environment. This existing relationship is key to an effective system of biodefense for the nation, because the use of biological weapons through every environmental pathway poses a potential threat. Contaminations of water, growing crops, grazing cattle, air through inhalation, dermal absorption, or consumption of food or water in the human environment are potential delivery methods. For these risks of bioterrorism in the environment, there is an existing federal regulatory and statutory framework upon which the relationship between the environment and public health can be strengthened and shaped. We took a narrower approach to public health priorities in the environment in 1962 with the publication of Silent Spring, (1) which shifted the direct public health effects regulation to a broader environmental protection policy, which took a more comprehensive, holistic approach to human health.

This Article examines two important features of change in the post-9-11 relationship between public health, public health law, and environmental law. The first is an immediate change in the expansion of environmental laws to address biodefense activities of surveillance and response through either executive action or congressional amendment. (2) The second and most pervasive change is the indication of a shift in federalism in public health law, in a way analogous to the development of federal environmental law in the last half of the twentieth century. This Article begins with an examination of the indications of a shift in federalism in public health, and then turns to the changing role of the U.S. Environmental Protection Agency ("EPA") and the application of existing environmental laws to new problems and controversies in bioterrorism.


Because modern federal environmental law has a well-established existing regulatory structure, shaped by more than three decades of experience, this framework can present major contributions to a national homeland defense built around federal environmental law expanding on the original effort to protect public health.


The role today of the federal government in environmental protection is the product of the shift from state power over property law and water law, (3) to federal power because of the substantial effect on interstate commerce from environmental pollution control and remediation, which has preempted these areas for state control. An example of this shift in federalism can be observed in the area of regulation of water pollution.

The first action by Congress involving the effects of dumping trash and materials into rivers was through the regulation of "navigable waters" in the U.S. Rivers and Harbors Act of 18994 and the Refuse Act of 1899. (5) The primary purpose was to protect the rivers for navigation and to avoid impeding navigation traffic with trash or lumber and wood floating in the rivers obstructing shipping. (6) The Water Pollution Control Act of 19487 was the first comprehensive act to address the growing concern for water pollution but did little more than underscore states' responsibilities for water. This Act was replaced by the Water Pollution Control Act Amendments of 1956 (8) which were intended to "extend and strengthen" the 1948 (7) Act, and emphasized the continuing responsibilities of the state in controlling water pollution. (9) The House Report from the Committee on Public Works stated that:

   The bill as reported reemphasizes the policy of the Congress to 
   recognize, preserve, and protect the primary rights and 
   responsibilities of the States in controlling water pollution.... 
   Regulatory authority at the Federal level should be limited to 
   interstate pollution problems and used on a standby basis only for 
   serious situations and which are not resolved through State and 
   interstate collaboration. (10) 

The Act specified that "nothing in this act shall be construed as impairing or affecting any right or jurisdiction of the States with respect to their waters." (11) The Public Health Service was designated as the lead agency with the goal of determining the "impact of new pollutants on public health and other vital water uses, and to find more practical and economically feasible abatement measures." (12) The Surgeon General was given authority to develop comprehensive programs to implement and enforce this Act, but was at the same time prevented from issuing any regulations without the prior agreement of the states. (13) The states were given grants to implement programs developed by the Surgeon General. (14)

In that same year, 1956, President Eisenhower vetoed the Rivers and Harbors Act of 1956 (15) because, among other reasons, it lacked the provision of state participation in the bill. (16) In his veto message he stated that "vital water resources can best be conserved and utilized in the public interest if the Federal Government cooperates with State and local governments." (17)

The inability to control water pollution by the federal government, because of the policy of leaving regulation to the states, was exacerbated by the reorganization of the federal oversight mechanism. Although the 1956 Act designated the Public Health Service as the agency charged with implementation, the Refuse Act of 1965 (18) changed the control to one of joint authority by the Public Health Service and the Commission appointed under the Federal Water Pollution Control Administration. (19) The states were given the charge to develop standards for water quality within their jurisdictions. (20) In 1966, the Federal Water Pollution Control Commission was moved to the Department of Interior, (21) keeping administration of the program in a state of instability.

The public pressure to address the growing problem of environmental pollution, which was not improving under states' control, culminated in the first Earth Day in 1970 with the signing of the National Environmental Policy Act, (22) the first major federal environmental statute, and the creation of the U.S. Environmental Protection Agency. (23) A growing environmental movement exploded in 1970 with this first Earth Day, marked by marches, celebrations, and a nationwide wave of determination to reverse the trend of polluting the environment and return the nation to its previous condition. (24) Although prior to 1970, Congress had passed statutes which directed states to give attention to limiting the pollution in their water and air, such rules could be avoided by the polluting industries by leaving any state with the tough regulations and seeking a more hospitable--and profitable--state. (25) This phenomenon became known as the "race to the bottom" with each state hoping to be the most attractive to businesses and factories which would bring employment and tax revenues to the state, and the way to attract them was to compete with other states, promulgating the least onerous regulations. (26)

Water quality standards were to be promulgated by the states, as required under the 1965 legislation, and the Committee Report described the process for that development: "[t]he States have first responsibility for enforcement of their standards. When approved by the Environmental Protection Agency, however, the standards for interstate navigable waters become Federal-State standards." (27)

A long history of litigation between states for polluting waterways (28) and air (29) further gave rise to the interstate commerce clause basis for federal environmental regulation. (30) Property law and water law, within the sovereign power of states, were areas among the "mass of legislation" (31) which has never been surrendered by the states. However, the federalism relationship between the states and the national government was not intended to be unchanging, but rather flexible enough to accommodate the interests of the people. James Madison wrote in The Federalist Papers No. 46: "If, therefore ... the people should in future become more partial to the federal than to the State government, the people ought not to be precluded from giving most of their confidence where they may discover it to be most due...." (32) The great pressure from the public with the groundswell of concern for the environment shifted the task to the federal government to overcome the interstate problems of air and water pollution as well as hazardous waste. (33) The model has been identified as one of cooperative federalism.

In 1972, Congress enacted the Federal Water Pollution Control Act (34) which established a national permit system to control all discharges of pollutants into surface waters to be implemented by the new federal agency, EPA. (35)


Bioterrorism and emerging infectious diseases threaten the public health in a way we have not seen in almost a century. (36) States have had sovereignty in the area of public health since colonial existence, and preemption exists where food and drugs enter interstate commerce.(37) Federal regulation of food and drugs began with the turn of the twentieth century and was intended to regulate risks to the public health. (38) However, new threats of bioterrorism and emerging infectious diseases are regulated through the sovereign powers of states, not federal powers. (39) But after the anthrax attacks in the Fall of 2001, the public expected the federal government to provide a defense against bioterrorism as a matter of national security. (40) Consistent with the shifting federalism concept of the U.S. Constitution, interpreted through The Federalist's principle that "If . …

Log in to your account to read this article – and millions more.