The Justifications for Nondegradation Programs in U.S. Environmental Law

Book Chapter in LE PRINCIPE DE NON-REGRÉSSION EN DROIT DE L’ENVIRONNEMENT (M. Prieur & G. Sozzo, eds. 2012)

GWU Legal Studies Research Paper No. 2012-46

23 Pages Posted: 12 Apr 2012 Last revised: 7 Jun 2012

Robert L. Glicksman

George Washington University - Law School

Date Written: November 30, 2011

Abstract

The concept of non-regression is not one that is familiar to environmental law in the United States. Nevertheless, Congress and federal agencies have adopted programs to prevent degradation of existing high quality environments and to prevent revisions of individual emissions restrictions by making them more lenient. The first programs are known as nondegradation or anti-degradation programs. The others preclude “backsliding” by prohibiting slippage in performance by regulated entities complying with regulations that are later loosened.

This chapter explores the history and current status of nondegradation and anti-backsliding programs under U.S. water and air pollution control legislation. It describes the justifications for these programs that appear to have prompted Congress and the federal Environmental Protection Agency to adopt them. It also assesses alternative, rights-based justifications for nondegradation programs, that, while not reflected in federal environmental law in the U.S., may be supported by state constitutional and common law theories. While these theories may support rights-based nondegradation constraints in limited contexts, they are not likely to generate a broad-based set of nondegradation obligations that bind governments in the U.S.

Keywords: watwer pollution, air pollution, nondegradation, antidegradation, antibacksliding, nonregression, environmental human rights, protection of high quality environmental resources, state constitutional environmental rights

Suggested Citation

Glicksman, Robert L., The Justifications for Nondegradation Programs in U.S. Environmental Law (November 30, 2011). Book Chapter in LE PRINCIPE DE NON-REGRÉSSION EN DROIT DE L’ENVIRONNEMENT (M. Prieur & G. Sozzo, eds. 2012) ; GWU Legal Studies Research Paper No. 2012-46. Available at SSRN: https://ssrn.com/abstract=2038796

Robert L. Glicksman (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-4641 (Phone)

HOME PAGE: http://www.law.gwu.edu/Faculty/profile.aspx?id=16085

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