Environment and Public Health in a Time of Plague

1. INTRODUCTION 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. II. THE SHIFT IN FEDERALISM AS A COURSE TOWARD AN EFFECTIVE BIODEFENSE 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. A. SHIFTING FEDERALISM AND ENVIRONMENTAL LAW 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 1899(4) 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 1948(7) 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 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. …