Fifty years ago, the U.S. embarked on a radical new path. Under pressure from the environmental movement, Congress passed an array of statutes aimed at regulating carcinogens out of our world. This regulatory experiment sprawled from air and water to food and consumer products. Legal scholars have paid scant attention to this wave of cancer regulation despite its size and importance and the public’s apparent interest in avoiding carcinogens. But there is a growing literature finding flaws with individual regimes within the framework, such as the Clean Air Act, the Toxic Substances Control Act, and the Tobacco Control Act. In this Article, I overlay this literature with a review of statutory architecture and regulatory history to assess the integrity of carcinogen regulation. After reviewing seven regulatory regimes across health, environmental, and tort law, this Article concludes that these cancer regulatory regimes have been significantly deregulated. The result is legions of unnecessary cancer cases and deaths, as well as shouldering individuals with responsibility for avoiding carcinogens. Cancer rates appear to be increasing with each successive generation, most prominently among people under 40. That the #2 cause of death in the U.S. largely goes unregulated—despite a seemingly expansive regulatory structure— should prompt renewed attention from health, administrative, and tort law scholars. More generally, by identifying the sources of deregulation in each regime, this Article departs from the administrative law literature by concluding that Congress—not the judiciary—was the primary source of deregulation. It is possible, then, that administrative agencies could be statutorily repaired. Admittedly, this conclusion is somewhat unsatisfying given broad recognition of the dysfunctions of Congress. At the same time, any solution for empowering agencies must take congressional failures into account. And while it is true that the other branches have helped deregulate carcinogens, Congress remains the strongest check against these branches, with its power to shape the structure, funding, and jurisdiction of the federal courts and the executive branch. Therefore, the future of public health regulation, and regulation more broadly, depends on Congress—and public pressure on this branch of government to legislate.
Daniel G. Aaron (Wed,) studied this question.