The American standard of law and public authority holds that rights are universal, unalienable, and irreducible, and that power can only be exercised within specific parameters set out in written law. We all know the heart of the Declaration of Independence—that all people are “created equal” and that among our unalienable rights are “life, liberty, and the pursuit of happiness”. 

This standard was enshrined in the Bill of Rights, which not only explicitly prohibits the taking of liberty or life without due process (5th Amendment) but also creates a zone of safety around private personal relationships (1st, 3rd, and 4th Amendments). The 9th Amendment specifies that the Constitution protects all human rights, not only those that are “enumerated” in written law. 

The 1st Amendment also prohibits any government action that would abridge the right to freedom of speech or information or the right to seek legal redress for grievances. Together with the 2nd, 3rd, 4th, and 5th, it gives real power to civil society to function as the center of gravity for self-government. The 10th Amendment recognizes the sovereignty of the States and that power resides with the people. 

The right to ‘pursue happiness’ in one’s own way is embedded throughout the Bill of Rights and the Constitution’s constraints on arbitrary use of power. It is also implicit in the Article I mandate that Congress “establish Post Offices and post Roads” and “promote the Progress of Science and useful Arts”. In this way, the Constitution calls for open sharing of information and envisions a future in which medical and other sciences improve quality of life. 

All of this goes to say that the politics of pollution control in the United States is largely based on a false premise—that government cannot regulate pollution unless a specific kind of pollution is named in written law and specific executive actions authorized. The result of this standard is that toxic and chemical pollutants, including carcinogens, “forever chemicals“, complex synthetic compounds never proven safe for human health, radionuclides, and climate-disrupting compounds are routinely emitted in to air and water.

The Clean Air Act and Clean Water Act require the federal government of the United States to regulate pollutants and limit harm to human health and to environmental integrity. The Department of Agriculture and Food and Drug Administration are required to act to prevent harm through the food system. 

Non-communicable diseases account for most premature deaths in the United States and around the world. An estimated 43 million people per year lose their lives to NCDs linked to toxic pollution and unhealthy diets. Advancing science and “useful arts”, while reducing harmful pollution, could save hundreds of millions of lives in the next decade alone. 

If governments should not take life, reduce human liberty, infringe on human rights generally, or interfere with their people’s ability to pursue happiness in their own lives and relationships, then they have an implicit responsibility to reduce the incidence of premature death and long-term illness from NCDs caused by toxins in food, air, and water.

The argument that polluting practices are inherent in economic development is also based on a false premise. The numbers that support such claims are intentionally narrowed to exclude harm that falls on third parties, both financial and non-financial. Without a proper assessment of the Active Value of industrial and technological ventures, across all relevant dimensions of cost and benefit, including human and planetary health, we cannot properly assess economic or even financial value. 

Subsidies to polluting carbon-based fuels alone add up to more than $7 trillion per year. They have the effect of generating tens of trillions of dollars of hidden cost. The argument that such fuels are drivers of all other economic value creation relies on the absence of alternatives. Alternative energy sources, however, now account for most new energy production around the world and are cleaner, more cost-effective, and more conducive to sustained job creation in local economies.

Meanwhile, the hidden costs of fossil fuels and other pollutants are creating real threats to fiscal stability, not only in vulnerable and low-income countries, but also in the wealthiest.  The Financial Stability Oversight Council (FSOC) and the Commodity Futures Trading Commission (CFTC)—two of the most important financial regulators in the U.S.—have found that unchecked climate change will destabilize the financial system and prevent it from supporting the mainstream economy. 

Last year, the International Court of Justice issued a landmark Advisory Opinion on the duties of governments to reduce harm from climate disruption. The Court found that:

• All national governments have a legal responsibility to act to reduce climate risk.
• Climate protection and a healthy, clean environment are implicit in all other human rights.
• Duty to act includes a duty to cooperate, and is grounded in treaties and in customary international law.
• Failing to act to reduce climate risk can constitute an “international legally wrongful act”.

A critical piece of the Advisory Opinion was the finding that this duty is rooted in foundational international law, and in the ancient origins of laws regarding legitimate use of public authority. In other words: Governments have an implicit duty to protect human health and environmental integrity. The claim of public authority requires recognition of this duty. 

The backwards logic of undoing or blocking pollution control and chemical safety regulation in order to “spur development” leaves everyone facing higher costs and greater risk. Even banned pesticides have been found in clouds, meaning governments should, as the ICJ advised, cooperate to ensure they are able to protect their people. The polluters themselves are effectively invited by that standard to see what they can get away with and dare the public to prove in court that they are causing harm.

Just as interfering with evidence obstructs the proper course of justice, reducing the flow of factual information about pollutants in food, air, and water—including impacts on human health and the environment, and other secondary risks and ripple effects—obstructs the free and informed decision-making of the general public, creating risk, increasing harm, and abridging legal redress. 

The use of high public office to remove protections that reduce pollution, harm to health, and premature death, in order to aid friends or political allies in polluting industries, is inherently counter to the purpose of lawful government. Investment for the benefit of human and environmental health is an implicit responsibility of governments, as such investments create measurable benefits in terms of risk reduction, operational resilience, and the security of rights, health, and future opportunity.

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