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Imagine the following scenario: In 1972, instead of creating the Environmental Protection Agency, 1 Congress passes the Environmental Pollution Act, which states that “no person shall be permitted to emit any pollutant in a manner that unreasonably endangers human health” and provides for civil penalties and injunctive relief against violators. After the statute takes effect, eager plaintiffs begin filing cases against industries that they believe are breaking the law. The courts are then faced with the task of sorting out which suits are meritorious and which are not, a process that naturally involves interpreting what it means for a pollutant to “unreasonably” endanger human health. Immediately, of course, the courts run into significant difficulties. A factory that is emitting significant amounts of mercury directly into a source of drinking water is obviously in violation, but what about a factory that emits smaller amounts of …