Rebecca M. Bratspies
environment, regulation, BP Oil Spill, United States, US, legal obligations, participations, fairness, accountability, legitimacy
Because environmental regulators exercise vast discretion against a background of scientific uncertainty, the background assumptions they use to guide their decisionmaking are particularly influential. This article suggests that were federal regulators to view themselves as human rights decisionmakers, we might well see a new kind of regulatory decisionmaking emerge–one not only more responsive and transparent but also more likely to enjoy the trust of the American public. Drawing from the BP Oil Spill and the United States regulatory response to climate change this article shows how human rights norms might enrich domestic regulatory processes and help environmental regulators implement their statutory mission of protecting the public welfare. It demonstrates how interpreting domestic legal obligations through the lens of human rights would enhance a commitment to participation, fairness and accountability, thereby making the domestic regulatory process not only better and fairer, but also more likely to be perceived as legitimate by the general public. The article concludes by pointing out some key obstacles the human rights approach for achieving environmental ends.
(2012) 19 New York University Environmental Law Journal 225.