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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.

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GWU Legal Studies Research Paper No. 2012-46

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