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1 Introduction: The Intersection of Constitutional and Environmental Law James R. May Practice Tip: This chapter introduces the various ways that con- stitutional law shapes environmental law, ways that are exam- ined in detail in the chapters that follow. It is hard to overstate the profound influence constitutional law has on legal and pol- icy responses to the most pressing environmental issues of our day: climate change, species and biodiversity conservation, pol- lution control, use of natural resources, sustainability, rights to a quality environment, individual property rights and liberty in- terests, wind power, interstate movement of waste and energy, carbon allowances, and land use, to name a few. These issues are molded by constitutional features including the Commerce, dormant Commerce, Supremacy, Takings, and Due Process Clauses; the nondelegation, standing, and political question doctrines; the Tenth and Eleventh Amendments; and principles of executive authority and federalism. Constitutions in many U.S. states, as well as in other countries, also explicitly address environmental concerns. This chapter briefly explains how these and other lower profile constitutional issues shape environmen- tal law.

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Page 1: Constitutional Law Constitutional Law

1Introduction: The Intersection ofConstitutional and

Environmental LawJames R. May

Practice Tip: This chapter introduces the various ways that con-stitutional law shapes environmental law, ways that are exam-ined in detail in the chapters that follow. It is hard to overstatethe profound influence constitutional law has on legal and pol-icy responses to the most pressing environmental issues of ourday: climate change, species and biodiversity conservation, pol-lution control, use of natural resources, sustainability, rights toa quality environment, individual property rights and liberty in-terests, wind power, interstate movement of waste and energy,carbon allowances, and land use, to name a few. These issuesare molded by constitutional features including the Commerce,dormant Commerce, Supremacy, Takings, and Due ProcessClauses; the nondelegation, standing, and political questiondoctrines; the Tenth and Eleventh Amendments; and principlesof executive authority and federalism. Constitutions in manyU.S. states, as well as in other countries, also explicitly addressenvironmental concerns. This chapter briefly explains how theseand other lower profile constitutional issues shape environmen-tal law.

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For a document that weighs in at a featherweight 7,369 words, the U.S. Con-stitution has a heavyweight impact on the arc of environmental law. Constitu-tional law doctrines often dictate what Congress, states, and individuals canand cannot do regarding the environment. From the nation’s founding untilabout 1900, nearly all of the U.S. Supreme Court cases involving environmen-tal matters turned on either constitutional issues, such as the reach of theCommerce, Contract, Property, Enclave, Takings, and Due Process Clauses, oron legal theories such as the nondelegation and incorporation doctrines.From around 1900 until the dawn of the modern environmental era in about1970, however, state and federal environmental protection laws seldom col-lided with constitutional principles because these laws were generally viewedas lying within legislative authority.1

Since 1970, the sea has changed again, with constitutional issues often oc-cupying center stage in federal and state efforts to protect land, air, water,species, and habitat,2 perhaps fueled by the U.S. Supreme Court’s ambiva-lence about environmental protection and its renewed uncertainty about leg-islative authority generally.3 Indeed, from 2005 to 2010, more than 50 percentof the nearly four hundred federal cases yielding reported decisions involvingenvironmental, natural resources, or energy law and policy turned on consti-tutional issues—including most often standing, sovereign immunity, takings,due process,4 and, with increasing frequency, political question, preemption,and federalism.

Most issues surrounding the extent to which Congress and the states canprotect the environment arise in the crucible of federalism under our republi-can system that “split the atom of sovereignty.”5 Accordingly, the subject ofwhether environmental protection is better served by federal or state au-thorities has been much debated. Suffice it to say that the Tenth Amendmentprovides states with wide latitude to regulate in spheres not withheld or re-tained. Yet there are substantial constitutional restraints on state authority,including the dormant Commerce, Supremacy, and Takings Clauses.

This chapter provides a bird’s-eye view of the constitutional features ofenvironmental law. The first section examines the various constitutional lawdevelopments affecting the scope of Congress’s power to regulate the envi-ronment. It focuses on the Commerce Clause and the concomitant extrinsiclimits on such authority, including principles of federalism and the TenthAmendment, as well as the diminished nondelegation doctrine. The secondsection does the same for state authority and the dormant Commerce and Su-premacy Clauses. The third section then examines two dynamic constitutionaldoctrines that tend to thwart the implementation of environmental laws—standing and political question. The fourth section canvasses individualrights, including compensable takings, due process, environmental rights, anduse of the common law.


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Constitutional jurisprudence in this area is a surrogate for wider debatesabout government regulation of human activity in the United States.6 At bot-tom are questions that began soon after our nation’s birth about who decideswho can do what, when, and where under the U.S. Constitution.

Most of these questions elude easy answers. After all, as Chief JusticeJohn Marshall observed nearly two hundred years ago, “we must never forgetthat it is a constitution we are expounding.”7 The legacy of jurisprudence fromthe Rehnquist Court and indications from the Roberts Court suggest that con-stitutional law will continue to exert a large amount of force on how environ-mental laws develop, suggesting a shade against environmental protectionthat is likely vestigial to the limited government, property rights, and federal-ism hues that imbue our founding document.

Sources of and Limits to Federal Environmental Law

Most congressional authority to regulate the natural environment, especiallyresources not found on federal lands, stems from the Commerce Clause, withsome contributions from the Treaty, Spending, General Welfare, and PropertyClauses. The Tenth Amendment and, to a lesser extent, the nondelegationdoctrine have the potential to cabin the exercise of congressional authorityover the environment. Moreover, as discussed in chapter 4, Article II providesthe president with “take care” and “unitary executive” authority concerningenvironmental protection.

Congressional AuthorityCommerce ClauseAs chapter 2 explains in greater detail, a majority of the nation’s core environ-mental laws are founded on Congress’s authority under the Commerce Clause.The Commerce Clause provides that “Congress shall have the power . . . [t]oregulate Commerce . . . among the several states.”8 These laws include the Na-tional Environmental Policy Act (NEPA), the Clean Air Act (CAA), the CleanWater Act (CWA), the Endangered Species Act (ESA), the Resource Conserva-tion and Recovery Act (RCRA), the Safe Drinking Water Act (SDWA), and theComprehensive Environmental Response, Compensation, and Liability Act(CERCLA), to name a few.

Commerce Clause jurisprudence has a long lineage. In 1824, the SupremeCourt upheld Congress’s broad Commerce Clause authority to regulate com-peting use of navigable waterways notwithstanding countervailing state laws.The Court found that Congress may regulate “those internal concerns whichaffect the States generally; but not to those which are completely within a par-ticular State, which do not affect other States.”9 Writing for the Court, Chief

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Justice Marshall maintained that in a representative democracy it is the votingpublic’s job, and not the Court’s, to curtail or redirect congressional action.

For about the next century, the Court rarely concluded that Congress ex-ceeded its authority under the Commerce Clause, and when it did so, thecases did not involve the use and disposition of the environment. But thischanged during the throes of the Industrial Revolution, when the Court invali-dated numerous congressional efforts to regulate natural resources under theCommerce Clause. The invalidated congressional acts attempted to controlthe use of natural resources at the point of manufacturing or productionwithin a state. Examples include federal laws restricting monopolies in thesugar industry,10 limiting the extent to which children and sometimes womencould work the fields and factories to convert natural resources into com-mercial products,11 setting prices in the coal and oil industries, or empower-ing coal and oil workers to engage in collective bargaining regarding maximumhours, minimum wages, pensions, and health care.12

This trend reversed in 1937 when the Court, by a bare majority, upheldcongressional authority under the Commerce Clause to regulate unfair laborpractices in manufacturing and production in the steel industry, because ithas a “close and substantial relation to interstate commerce.”13 Four yearslater, the Court held that Congress’s Commerce Clause authority extends tointrastate activities that have a “substantial effect” on interstate commerce.14

And the next year, the Court allowed Congress to regulate noncommercial useof natural resources, such as wheat grown for home consumption, if such in-dividual activities could in the aggregate affect interstate commerce.15

Given this expansive backdrop, for the next four decades natural re-source laws were seldom subject to Commerce Clause challenges. When theywere, the Court found Congress to have acted within its authority. For in-stance, in Hodel v. Virginia Surface Mining & Reclamation Ass’n, the Court heldthat the Commerce Clause provided Congress with authority under the Sur-face Mining Control and Reclamation Act (SMCRA) to require private miningcompanies to restore private lands located entirely within a state.16 The Courtdetermined that the appropriate inquiry is whether Congress has a “rationalbasis” to find that a state activity substantially affects interstate commerce,not whether it actually does. Concurring, Justice Rehnquist nonetheless omi-nously noted that Congress cannot regulate commerce “to the nth degree.”17

Recent Commerce Clause jurisprudence supports Rehnquist’s limitingview of Congress’s Commerce Clause authority. In United States v. Lopez, theSupreme Court held that the Commerce Clause permits Congress to regulatein three areas: channels of interstate commerce (such as navigable waters),instrumentalities of interstate commerce, and activities that “substantially af-fect” interstate commerce.18 Following Lopez, in United States v. Morrison, the


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Court described the substantially affects test as a function of whether (1) theunderlying activity is “inherently economic,” (2) Congress has made specificfindings as to effect, (3) the law contains a jurisdictional element, and (4) theoverall effects of the activity are actually substantial.19

Lopez and Morrison have the potential to limit federal control over the en-vironment, particularly such programs as the ESA—both because the survivalof endangered species is often not inherently economic and because, even inthe aggregate, endangered species do not necessarily have a substantial effecton interstate commerce. The lower courts, however, have not limited federalpower in this way. For example, on the heels of Lopez, the D.C. Circuit decidedthat Congress has Commerce Clause authority under the ESA to protect an endangered fly that exists predominantly within a single state.20 FollowingMorrison, the Fourth Circuit held in Gibbs v. Babbitt that the ESA’s prohibitionon the “taking” of an individual endangered red wolf in North Carolina iswithin Congress’s authority under the Commerce Clause.21 Over a stinging dis-sent, a majority of the court found that protecting endangered red wolves sat-isfies Morrison because tourism and the potential of a pelt market make regu-lation inherently economic in nature.

Likewise, the Fifth Circuit upheld Congress’s Commerce Clause authorityto apply the ESA to land development that would harm federally protectedspiders and insects that neither inhabit nor cross state borders.22 In addition,the D.C. Circuit upheld Congress’s authority to provide ESA protection to in-trastate toads that do not facilitate economic opportunities like tourism.23

The Supreme Court denied petitions for certiorari each time they were soughtin these cases, which might suggest the Court is not yet inclined to extendLopez and Morrison to regulation of the environment.

A broader reading of the Commerce Clause was also suggested in Gonza-les v. Raich.24 There, the Court upheld an aspect of the federal Controlled Sub-stances Act, which prohibits in-state sale and distribution of marijuananotwithstanding state laws that permit in-state sale for medical purposes ifprescribed by a physician. In a decision by Justice Stevens, the Court heldthat it was not necessary to decide “whether respondents’ activities, taken inthe aggregate, substantially affect interstate commerce in fact, but onlywhether a rational basis exists for so concluding.”25

Whether courts adopt the Raich or the Lopez/Morrison standard of re-view could profoundly impact environmental law. It is easier to show that Con-gress has Commerce Clause authority to protect species, habitat, and waterquality under Raich than it is under Lopez and Morrison. For example, in Ala-bama-Tombigbee Rivers Coalition v. Kempthorne, the Eleventh Circuit upheldCongress’s authority under the Commerce Clause to allow federal wildlifeagencies to list as a protected species the last remaining population of the

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Alabama sturgeon, a noncommercial species that exists only within the stateof Alabama.26 Applying Raich, the court maintained that “when a general reg-ulatory statute bears a substantial relation to commerce, the de minimis char-acter of individual instances arising under that statute is of no conse-quence.”27 Notwithstanding the lack of an inherently economic activity andcongressional findings of impact, the court easily held that Congress couldhave had a rational basis for concluding that protecting endangered species,in the aggregate, substantially affects interstate commerce. That the ESAbears a substantial relation to commerce, the court found, is reflected in the$5 to $6 billion spent annually on illegal trade in rare plants and animals; the“incalculable” value of genetic heritage; the unknown value of safeguardingspecies and genetic diversity for medical, agricultural, and aquacultural pur-poses; and the tens of billions of dollars in annual expenditures associatedwith hunting, fishing, birding, tourism, and other economic activities. Thus,the court concluded, “Congress was not constitutionally obligated to carveout an exception” for intrastate species or noncommercial species from theESA’s “comprehensive statutory scheme.”28

Some have also argued, based on Lopez and Morrison, that Congress lacksthe authority to regulate waters that are not historically navigable-in-fact. Butapplying Raich, the Tenth Circuit found otherwise in United States v.Hubenka.29 There, the court held that the Commerce Clause authorizes theU.S. Army Corps of Engineers to regulate the dredging and filling of nonnavi-gable tributaries that flow downstream into navigable waters.

The record thus shows broad support among the federal appellate courtsfor congressional authority to regulate intrastate activities that could sub-stantially affect interstate commerce under the Commerce Clause. Neverthe-less, the validity of congressional authority under the ESA and other federalnatural resource acts is hardly secure. The composition of the Supreme Courthas changed significantly since Raich. Justice O’Connor cast the deciding votein Raich, but her successor, Justice Alito, seems inclined to view federal au-thority more narrowly. Moreover, Chief Justice Roberts, who was not involvedin Raich, rather famously remarked in a circuit court dissent that the Com-merce Clause does not provide Congress with authority to protect a “haplesstoad that, for reasons of its own, lives its entire life in California.”30

In addition, context matters. The majority Justice Stevens mustered inRaich, involving controlled substances like marijuana, may not hold when thesubject of regulation is a noncommercial, intrastate species with no inherenteconomic value, particularly when Congress has not made specific findingsthat loss of individual species has a “substantial effect” on interstate com-merce. Finally, the Court also has employed a constrained view of CommerceClause authority as a tool of statutory construction to limit the jurisdictional


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reach of other natural resources and environmental laws. For example, inSolid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, the Court passed on an opportunity to decide whether the Corps’and EPA’s interpretation of the CWA as requiring a permit for discharge into anisolated, intrastate water not adjacent to a navigable waterway exceeds Con-gress’s authority under the Commerce Clause.31 Instead, the Court invalidatedthe government’s action as a matter of statutory interpretation, finding thatthe Corps’ and EPA’s use of the migratory bird rule to establish jurisdiction ex-ceeded the reach of the act’s definition of “navigable waters.” But the Courtnoted that a contrary interpretation would raise “significant constitutionalquestions” under the Commerce Clause.

The tenuous grip Raich has on Commerce Clause jurisprudence was ondisplay again in Rapanos v. United States.32 Like SWANCC, Rapanos raised aquestion about the scope of the Corps’ authority to regulate dredge and filldischarges. In Rapanos, the key discharges were on wetlands that were adja-cent to nonnavigable tributaries of “navigable waters.” Notably in Rapanos,Justice Kennedy’s concurrence, which provided the key vote for remandingthe case, relied on Raich for the proposition that “when a general regulatorystatute bears a substantial relation to commerce, the de minimis character ofindividual instances arising under that statute is of no consequence.”33 Thatis, in Justice Kennedy’s view, Congress’s commerce power extends to a classof activities that substantially affect interstate commerce, even when the in-dividual activity being regulated itself has only a de minimis relationship to in-terstate commerce.

As recent cases under the Commerce Clause cast doubt about Congress’sability to protect the environment—particularly rare plants and animals, habi-tat, and water—the constitutionality of natural resource laws may hinge morefrequently on other less prominent sources of congressional authority, likethe Treaty, Spending, General Welfare, and Property Clauses, discussed below.

Treaty ClauseThe Treaty Clause is an underutilized source of congressional authority toenact environmental laws. It provides that the executive branch “shall havepower, by the consent and with the advice of the Senate, to make Treaties,provided two thirds of the Senators present concur.”34 After a treaty is ap-proved, Congress has the power under the Necessary and Proper Clause “tomake all laws which shall be necessary and proper for carrying into execution. . . all . . . powers vested by this Constitution in the Government of the UnitedStates.”35 Because of the Supremacy Clause, these laws effectively preemptany conflicting laws enacted by states, although states are inclined to arguethat the Tenth Amendment’s reservation of power “to the states . . . or to the

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people” limits the reach of federal statutes on matters traditionally left to thestates. Some jurisprudence suggests that the Treaty Clause vests Congresswith the authority to force state adherence to federal environmental laws enacted pursuant to validly ratified treaties, irrespective of the limitationsotherwise imposed by the Tenth Amendment. The leading case involves theMigratory Bird Treaty Act (MBTA). Congress enacted the MBTA to facilitateenforcement of a treaty between the United States and Great Britain to protecta number of migratory birds in the United States and Canada. Missouriclaimed the treaty infringed on rights reserved by the Tenth Amendment. TheSupreme Court disagreed. In Missouri v. Holland, Justice Holmes, writing forthe Court, upheld Congress’s authority to enact legislation pursuant to atreaty that governed a traditional state function like hunting.36 The Courtfound that the Treaty Clause, when coupled with the Necessary and ProperClause, provided Congress with authority to infringe on state sovereignty inways it could not under the Commerce Clause alone.

Missouri v. Holland suggests that the Treaty and Necessary and ProperClauses may offer better sources of constitutional authority for environmen-tal laws enacted pursuant to an underlying treaty. The ESA, for example,which is subject to persistent Commerce Clause challenges, may be more con-stitutionally secure as an incident of Congress’s Treaty Power, as it was en-acted in part to implement aspects of the Convention on the InternationalTrade in Endangered Species of Wild Fauna and Flora, and the Western Con-vention on Nature Protection and Wildlife Preservation.37 This also suggests apossible advantage for Senate ratification and congressional implementationof other treaties designed to level the playing field in the use of natural re-sources, such as the United Nations Convention on the Law of the Seas.

Bilateral treaties may also play a more substantial role in the future ofwater use and environmental protection. In 1909, the United States andCanada entered into the International Boundary Waters Treaty, which estab-lished the International Joint Commission to help resolve disputes regardingwaters shared by the two countries, including the Great Lakes. Disagreementbetween the countries about water use could become more significant, par-ticularly with a warming planet and the loss of the polar ice caps. Thus far,however, federal courts in the United States have declined to entertain dis-putes about boundary waters, finding such matters to be constitutionallycommitted to foreign policy and thus not justiciable.

Spending and General Welfare ClausesThe Spending and General Welfare Clauses also provide potential bases forpromoting environmental protection values. In tandem, they permit Congressto tax and spend so as to “provide for the common defense and General Wel-fare of the United States,”38 by attaching conditions to the receipt of federalfunds, provided the conditions are not coercive.39


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The Land and Water Conservation Fund (LWCF) is a good example of a fed-eral spending program that benefits environmental protection.40 Established in1964, the LWCF has provided hundreds of millions of dollars in grants to fed-eral, state, and local governments to acquire land, water, and related resourcesfor recreational, wildlife, and aesthetic purposes that benefit the public.

The General Welfare Clause’s imprint on environmental protection canalso be problematic. This is perhaps best reflected by the work of the Bureauof Reclamation, which has sponsored many large water development projectsthroughout the western United States under the auspices of the General Wel-fare Clause and the Reclamation Act of 1902.41 Without the bureau, much ofthe western United States would still be undeveloped desert. Between 1902and 1981, the federal government invested $7.3 billion in bureau projects toconstruct about 350 diversion dams, more than 15,000 miles of diversioncanals, and about 50 hydroelectric plants, including the Hoover Dam.

The Property ClauseThe Property Clause authorizes Congress to make all “needful” rules con-cerning federal land, which constitutes about 28 percent of the country. In1897, the Court analogized Congress’s power under the Property Clause tostate police power, lest federal property be at the mercy of the states. Sincethen, the Court has interpreted the scope of this authority to be “virtuallywithout limitation.”42

Other provisions of the Constitution allow Congress to exercise relativelyunquestioned authority to protect natural resources on federal lands underthe Enclave Clause.43 And, as described in chapter 4, Congress also has au-thority to “acquiesce” to presidential power to “reserve” natural resources onfederal land.44

Limits on Federal AuthorityFederalism and the Tenth and Eleventh Amendments present the principalconstraints on Congress’s authority to enact environmental laws not exclu-sively designed to address activities on federal lands. The Tenth Amendmentpotentially limits the scope of federal legislation, while the Eleventh Amend-ment limits the federal government’s ability to enforce its laws against thestates in court. The largely defunct nondelegation doctrine and the FirstAmendment also influence federal authority to enact and implement environ-mental laws.

Tenth AmendmentAs discussed in chapter 5, the Tenth Amendment supplies potential limits onCongress’s authority to enact environmental laws, particularly in traditionalareas of state and local authority, such as land use or public health. It pre-serves the “dignity” and sovereignty of the states by providing that “the pow-

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ers not delegated to the United States by the Constitution, nor prohibited byit to the States, are reserved to the States or to the People.”

Thus far, Tenth Amendment jurisprudence has curtailed environmentalprograms that upset political accountability and diminish state dignity. In NewYork v. United States, the Supreme Court held that Congress may not “com-mandeer” state political or personnel resources by requiring a state to “taketitle” of its own low-level radioactive waste even if it fails to arrange for properdisposal under federal law.45 Courts have been reluctant, however, to find thatCongress has commandeered state resources under other circumstances. Forexample, a federal court rejected a state claim that the Magnuson-StevensFishery Conservation and Management Act violates the Tenth Amendment bycompelling participation in a regional management council that set quotas onthe seasonal catch of fish.46 Another court rejected a state’s Tenth Amend-ment claim that the ESA commandeers state resources by requiring the stateto engage in conservation efforts.47 Moreover, the Supreme Court held, by aslim majority, that EPA’s rejection of a state’s determination of what consti-tutes “best available control technology” did not unduly infringe on state pre-rogatives under the Clean Air Act’s system of cooperative federalism.48

Eleventh AmendmentAs chapter 5 explains, under the Eleventh Amendment, “[t]he Judicial powerof the United States shall not be construed to extend to any suit in law or eq-uity, commenced or prosecuted against one of the United States by Citizens ofanother State.” Absent express consent, states are virtually immune fromlegal action in federal court, including lawsuits to force compliance with fed-eral environmental protection programs. The Eleventh Amendment clearlylimits federal jurisdiction in actions based on diversity. A century ago, theCourt extended this prohibition to federal court actions based on federalquestion jurisdiction. Since then, the Court has made clear that Congress maynot subject states to federal question lawsuits without state consent in federalcourt,49 in state court,50 or before federal agencies.51 In 1986, the Court upheldthe constitutionality of CERCLA insofar as it permits suits against the statesfor monetary damages in federal court,52 although the current Supreme Courtmajority has since become less tolerant even of lawsuits for money damagesthat would run against state treasuries.

Eleventh Amendment jurisprudence thwarts implementation of federalprotection laws, for instance by creating a potential obstacle to federal citizensuits seeking to redress violations of federal environmental laws by stateagencies. For example, SMCRA allows citizens to sue state and federal miningagencies to enforce its provisions, including bonding provisions and require-ments to protect water quality. Thus, in Bragg v. West Virginia Coal Ass’n, citi-


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zens brought an action to forestall the practice of filling valleys with excessspoil or waste rock from mountaintop mining.53 The citizens sued state andfederal officials to enjoin them from issuing permits in the absence of the suf-ficient financial assurances SMCRA requires, including funding to protect af-fected streams. The Fourth Circuit dismissed the action. It held that SMCRA’s“exclusive” delegation of permitting to a state transforms SMCRA require-ments into state standards, which cannot be enforced in federal court.54

Notwithstanding the decision in this and subsequent cases, an argument re-mains that states waive their claim to immunity when they voluntarily seekapproval to operate a program pursuant to a federal law like SMCRA.

The Court’s Eleventh Amendment jurisprudence has also hampered im-plementation of federal whistleblower protection laws, designed to protectstate employees who report a state agency’s transgressions from federal en-vironmental laws, including appropriations to states to administer federal nat-ural resource programs.55 For example, in Rhode Island Department of Envi-ronmental Management v. United States, the First Circuit held that a statewhistleblower could not bring an action against the state of Rhode Island be-fore a federal administrative agency, alleging that he had been fired for re-porting misappropriation of federal funds that were supposed to be used toimplement the Solid Waste Disposal Act.56

State officials are still subject to federal causes of action for prospectiveinjunctive relief, a tack left available under Ex parte Young.57 Thus, theEleventh Amendment does not prevent a court from requiring a state officialto comply with federal environmental protection laws. Eleventh Amendmentjurisprudence will likely continue to hamper efforts to enforce environmentallaws against states. This is especially true insofar as it does not seem asthough any of the newer members of the Court—Chief Justice Roberts and Associate Justices Alito, Kagan, and Sotomayor—share Justice Rehnquist’ssolicitude for states’ rights in this regard.

Nondelegation DoctrineThe nondelegation doctrine is rarely used, but it remains available as a limiton Congress’s authority to vest administrative agencies with wide authority toimplement environmental laws. The doctrine, described in greater detail inchapter 3, stems from Article I of the Constitution, which vests “all legislative”authority in Congress and presumably not in agencies charged with imple-menting national policies. Nonetheless, while Congress may not “delegate”legislative authority to agencies that administer federal law, legislation thatprovides an “intelligible principle” to guide the exercise of agency discretionwill be upheld. The relevance to environmental law is acute. Most federal pol-lution control laws contemplate agency implementation, and many federal

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programs governing the administration of public lands provide agencies withconsiderable discretion in managing those lands for the public interest or toachieve multiple, but possibly inconsistent, uses.

Other than in the midst of the New Deal in the 1930s, the Court has sel-dom found that Congress has failed to provide an “intelligible principle.” Mostrecently, in 2001, the Court declined an opportunity to use the doctrine tostrike a provision of the CAA that charges EPA with the duty to set nationalambient air quality standards as “requisite” to protect public health and wel-fare. In Whitman v. American Trucking Ass’n, the Court unanimously rejectedthe nondelegation challenge, holding that “requisite” falls “comfortablywithin” the Court’s nondelegation jurisprudence.58

It is risky, however, to think that the nondelegation doctrine—while indesuetude—is bereft of meaning. For example, Justice Thomas’s concurrencein American Trucking all but invited a test case challenging other statutoryprovisions granting general authority to federal natural resource and envi-ronmental agencies. In addition, American Trucking reversed a contrary opin-ion from the D.C. Circuit Court of Appeals, usually the second most influentialcourt in cases involving agency action and natural resources and environ-mental law.59 Moreover, the Court’s newest appointees, Chief Justice Robertsand Associate Justices Alito, Sotomayor, and Kagan, have yet to weigh in onthe nondelegation issue.

The First AmendmentThe First Amendment protects “freedom of speech” and prohibits Congressfrom passing laws “respecting an establishment of religion, or prohibiting thefree exercise thereof.” In the environmental law context, First Amendmentclaims can arise in the context of public land management. In a leading caseon the Free Exercise Clause, Lyng v. Northwest Indian Cemetery Protective Ass’n,various parties contested the U.S. Forest Service’s plans to permit timber har-vesting and road construction in an area of national forest that was tradition-ally used for religious purposes by members of three Native American tribesin northwestern California.60 The Court held that the Free Exercise Clause pro-tects an individual from certain forms of governmental compulsion, but it doesnot give an individual a right to dictate government conduct, even if that con-duct might significantly interfere with one’s religious practices. Thus, the tim-ber harvesting and road construction were allowed to go forward.61

Unlike free exercise cases, Establishment Clause cases typically arisewhen the government seeks to protect resources of religious significance andsomeone objects to that protection on the ground that the government is pro-moting religion. For example, in Mount Royal Joint Venture v. Kempthorne, theDepartment of the Interior withdrew about 20,000 acres of public mineral es-tate from mineral location and entry, in part to protect areas of traditional


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spiritual importance to Native Americans.62 The court found that the secre-tary had articulated secular purposes for the withdrawal, including the pro-tection of aquifers and the environment. Consequently, the court concludedthat the withdrawal did not primarily affect religious interests and thus didnot foster excessive government entanglement with religion in a manner thatwould violate the Establishment Clause.63

Recent limits on free speech rights of public employees may also have sig-nificant effects on putative whistleblowers. Under Garcetti v. Ceballos, govern-ment employees lose their First Amendment rights to speak out against gov-ernment wrongdoing if they do so in the course of their employment.64 So, forinstance, a government employee may be disciplined for speaking to a super-visor or writing an internal memo about an agency’s wrongdoing. Garcetti, then,deters whistleblowing, even when the agency is violating environmental rules.

Sources of and Limits to State Environmental Law

The Tenth Amendment generally provides the justification for state policepower authority to regulate the use and disposition of the environment onstate or private land. The dormant Commerce Clause doctrine and the doc-trine of federal preemption generally constrain such authority.

Sources of State AuthorityTenth AmendmentAs the Tenth Amendment “reserves” state authority in areas neither reservedfor Congress nor withheld from the states, many states have adopted exten-sive laws governing the environment, especially when federal regulation hasleft gaps. Indeed, as chapter 5 explains, much environmental regulation is theproduct of federal-state cooperation, which is valid unless the federal gov-ernment seems to be commandeering the states—that is, leaving them with-out a choice as to whether to comply—which, as discussed above, violatesthe Tenth Amendment.

The Compact ClauseThe Compact Clause of the U.S. Constitution provides that “no state shall,without the consent of Congress . . . enter into any agreement or compact withanother state.”65 States have entered into more than two hundred compacts,twenty-six of which involve allocating interstate waters.66

Historically, water resource allocation has been the area where regionalissues warranted an appreciation of the Compact Clause. For example, theColorado River Compact of 1922—the first interstate water compact—in-cludes seven states and has had a substantial influence on water resources al-

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location among those states. As our climate changes and demands for freshwater resources grow, disputes among states sharing waters are expected toincrease dramatically. This is true even in areas that historically have hadample water supplies, such as the southeastern United States. Georgia,Florida, and Alabama, for example, have waged a pitched and unresolved bat-tle over water rights to the Apalachicola-Chattahoochee-Flint river system fortwo decades.

The Supreme Court is generally loath to reach the merits of state disputesabout water, pushing instead for interstate compacts.67 To aid in this effort,the Utton Transboundary Resources Center began work in 2004 to develop aModel Interstate Water Compact.68 Moreover, Tenth Amendment limitationsapply to interstate compacts as well. As New York v. United States demon-strates, states cannot agree by interstate compact to allow Congress to com-mandeer their state environmental programs.

Limits to State AuthorityThe dormant (or “negative”) doctrine of the Commerce Clause and the Su-premacy Clause most commonly limit state environmental laws.

Dormant Commerce ClauseAs chapter 6 describes, in the absence of federal laws, many states, counties,and municipalities have enacted legislation either to protect the environmentfrom toxic wastes or to conserve resources for state purposes. Yet, theSupreme Court has invalidated many such efforts under a principle called thedormant or negative Commerce Clause. The idea that the Commerce Clausecontains a dormant or negative aspect arguably originated in a natural re-sources case. Chief Justice John Marshall coined the phrase “dormant Com-merce Clause” in Willson v. Black-Bird Creek Marsh Co., a case that allowedDelaware to issue a license to block navigation of the Black-Bird Creek, absenta countervailing federal law.69

Today, the phrase “dormant Commerce Clause” is most often used to de-scribe limits on a state’s authority to adopt laws or policies that discriminateagainst interstate commerce because they favor one state or impose an ex-cessive economic burden on outsiders. The idea is that the United States con-stitutes a single economic market, and state laws regulating commerce cannotdisadvantage economic activity from other states, just as interstate tariffsused to do. For example, the Court has struck down a ban on the importationof dangerous out-of-state waste,70 higher tipping fees or surcharges for wastesgenerated out of state,71 and waste flow control ordinances prohibiting land-fill operators from accepting out-of-state waste or requiring all county wastebe processed at the county’s facility.72


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State efforts to sequester natural resources for the benefit of in-state res-idents are also vulnerable to dormant Commerce Clause objections. Whileseveral early cases upheld such state laws, the modern view is illustrated bysuch cases as Hughes v. Oklahoma, which overturned an Oklahoma law pro-hibiting the transport of minnows caught in the state for sale outside thestate,73 and Sporhase v. Nebraska, which struck down a Nebraska statute thatrestricted withdrawal of groundwater from any well in the state for use in anadjoining state.74

In similar fashion, the Court has also rejected state efforts to control com-merce in energy and fuels. In 1982, for example, the Court struck down a statelaw that prohibited the export of energy generated within the state.75 TheCourt has also invalidated other state initiatives awarding tax credits for in-state ethanol production76 and requiring that in-state power plants burn in-state-mined coal.77

Hughes establishes the general test for dormant Commerce Clause casesinvolving state regulation of the environment. First, the Court asks “whetherthe challenged statute regulates evenhandedly with only ‘incidental’ effectson interstate commerce, or discriminates against interstate commerce. . . .”78

If the statute regulates evenhandedly, it is generally upheld unless the burdenon commerce is excessive.

But when a statute discriminates, it is usually struck down unless thestate can show that it is seeking to accomplish a legitimate local purpose thatcannot be accomplished by less discriminatory means.79 For example, theCourt upheld Maine’s restrictions on the importation of bait fish when thestate demonstrated that such fish might carry undetectable diseases thatcould adversely affect native fish species.80 By contrast, the Court struckdown an additional fee that Alabama imposed for the disposal of hazardouswaste generated outside the state on the ground that the fee discriminatedagainst interstate commerce.81 The Court found that although the state mayhave had legitimate concerns about the amount of waste disposal in Alabama,less discriminatory means were available to address those concerns.

The Court has also recognized that when a state acts as a market partic-ipant rather than as a market regulator, the dormant Commerce Clause placesno limits on state activities. But this exception does not allow the state to burden commerce beyond the market in which it participates. For example,Alaska was not allowed to invoke the market participant exception for the saleof state timber that was subject to the requirement that the buyer partiallyprocess the timber prior to shipping it out of state.82

Public facilities that regulate the environment for public benefit may enjoywider latitude under the dormant Commerce Clause. In United Haulers Ass’n v.Oneida-Herkimer Solid Waste Management Authority, a plurality of the Court de-

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cided that a county’s flow control ordinance that required that all solid wastegenerated within the county be delivered to the county’s publicly owned solidwaste processing facility does not violate the dormant Commerce Clause.83 Re-lying on Pike v. Bruce Church, Inc., the plurality concluded that facilities oper-ated by public hands for “public good” directed at goals other than mere pro-tectionism have greater leeway to control the flow of wastes.84 Cases applyingUnited Haulers thus far suggest that the constitutional prospects of local flowcontrol regimes involving publicly owned facilities have been enhanced.85

United Haulers may also signal judicial receptivity to local flow control ordi-nances not involving “clearly public facilities.”86 For example, relying on UnitedHaulers’ focus on safety, a federal district court in Georgia recognized broadstate discretion to identify legitimate state ends respecting waste disposal.87

The Supreme Court’s skepticism toward state regulation of the flow ofnatural resources and energy is unlikely to change anytime soon, and may be-come an even more problematic issue as states address climate change andthe development of renewable energy sources. Only the late Chief JusticeRehnquist regularly dissented from the string of cases applying the dormantCommerce Clause to strike down state natural resource laws. He chided hiscolleagues for failing to “acknowledge that a safe and attractive environmentis the commodity really at issue,” reasoning that “[s]tates may take actions le-gitimately directed at the preservation of the State’s natural resources, evenif those actions incidentally work to disadvantage some out-of-state wastegenerators.”88 Rehnquist also argued that federal courts should presume—aswith quarantine laws—that state conservation laws are rational means toachieve legitimate state ends that have but incidental effects on interstatecommerce.89 Moreover, Rehnquist believed that federal courts should defer to both state legislative and judicial findings supportive of a nonprotectionistimpetus behind state waste control laws.90 No current member of the Courtseems to embrace Rehnquist’s view of upholding state environmental laws inthe face of challenges brought under the dormant Commerce Clause.

PreemptionThe Constitution’s Supremacy Clause, which chapter 7 describes in detail, pro-vides that “[t]he Constitution and the Laws of the United States which shall bemade in Pursuance thereof . . . shall be the Supreme Law of the Land.”91 Thus,the Constitution authorizes federal environmental laws to displace inconsis-tent state laws. In 1819, in a case involving use of navigable waterways, theCourt made its earliest pronouncement on the subject and held that federallaw usurps inconsistent state laws that may “retard, impede, or burden” fed-eral operations.92 Absent specific intent to preempt, the modern Court hasheld that Congress may preempt state law implicitly by “field” preemption,when Congress occupies a field of interest so pervasively that preemption is


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assumed, or when state law conflicts with federal law. Although the Court hasheld that a comprehensive regulatory scheme involving environmental pro-tection may occupy the field and thus implicitly preempt federal commonlaw,93 it has generally been receptive to state efforts to supply common lawcauses of action involving the use or protection of the environment.94

Courts have been skeptical of claims that a federal law implicitly pre-empts state environmental laws. In Exxon Shipping Co. v. Baker, the SupremeCourt held that the federal CWA does not preempt punitive damages undermaritime law.95 Other courts have concluded that federal law does not ex-pressly or impliedly preempt state-imposed fleet fuel efficiency require-ments96 or tailpipe restrictions on greenhouse gas (GHG) emissions.97

Moreover, the Court often tends to find that state actions concerning en-ergy production, water allocation, and disposition of natural resources are notpreempted absent an express preemption provision, a clear indication of apervasive federal regime, or some actual federal-state conflict. In 1983, for ex-ample, the Court held that congressional regulation of the field of nuclearsafety did not preempt California’s moratorium on new nuclear power plantsabsent safe and reliable methods for disposal of high-level radioactivewaste.98 And in 1978, the Court held that Congress did not intend to displacethe application of state water law to the distribution of water behind a feder-ally constructed dam.99

On the other hand, state activities that impinge on federally occupiedspheres of activity may be implicitly preempted. For example, the Court hasheld that federal legislation governing the issuance of fishing licenses pre-empts a state’s effort to limit the ability of outsiders to fish in the state’s ter-ritorial waters.100 And although the Court held that the Federal Power Actcomprehensively regulates hydroelectric power and preempts a state’s abilityto set minimum stream flow requirements and protect fish populations,101 itnevertheless refused to restrict a state’s effort to regulate hydroelectric de-velopment and protection of the environment when acting under the CWA.102

Looking ahead, the prospect of preemption continues, given the swath cut by federal environmental laws. Numerous state laws fill in both the wideand the interstitial fissures left by federal environmental law. Most states havemyriad environmental laws that apply to activities that adversely affectecosystems or diminish property values. Also, most states have comprehen-sive statutory programs that regulate water, air, and soil pollution; restrict theuse of state natural resources such as wildlife, minerals, and forests; and usecommon or codified laws, such as nuisance, trespass, and negligence, to pro-vide remedies for those harmed by excess pollution or imprudent land use re-sulting in injury to persons or property. Further, many local governments havelaws governing the use of natural resources. Therefore, preemption issues willcontinue to influence the development of environmental laws at the state level.

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Judicial Review

The two constitutional doctrines that most dramatically influence theprospects for judicial review are standing and political question.

StandingThe doctrine of standing, as described in chapter 8, has had a pervasive anddeeply imbedded influence on environmental law. The standing doctrine con-strains the extent to which litigants can enforce federal environmental laws.Article III extends “judicial authority” to “Cases . . . and Controversies.” In gen-eral, the Supreme Court has construed this provision to require that a plain-tiff show a personal injury that can be traced to the defendant’s conduct andredressed by a judicial remedy.103 In 1972, the Court recognized noneconomic,aesthetic, and environmental interests as legally cognizable “injuries” that canserve as a sufficient basis for constitutional standing under Article III.104 Morerecently, in Friends of the Earth v. Laidlaw Environmental Services, the Courtmade clear that it is injury to a person, and not the environment, that matters,thus obviating any need to show environmental degradation to support con-stitutional injury.105 An association has standing when (1) its members wouldotherwise have standing to sue in their own right, (2) the interests it seeks toprotect are germane to the organization’s purpose, and (3) neither the claimasserted nor the relief requested requires the participation of individual mem-bers in the lawsuit.106

Despite these limits, standing doctrine should not prove an insurmount-able bar to plaintiffs in environmental cases. For example, a federal appealscourt found that a citizen group whose members regularly use YellowstoneNational Park has constitutional standing to challenge construction of a coal-fired electric plant whose emissions reduce visibility.107 Some courts havefound that plaintiffs concerned about the effects of climate change havestanding to enforce compliance with the NEPA.108 And still others have shownreceptivity to standing based on governmental failure to abide by statutorilyrequired procedures in environmental laws.109

However, a recent ruling from the Supreme Court suggests standing is stilla real obstacle. In Summers v. Earth Island Institute, the plaintiffs contended thatcertain regulations established by the U.S. Forest Service are invalid becausethey were not preceded by advance notice and an opportunity for commentand administrative appeals as mandated by the Forest Service Decisionmakingand Appeals Reform Act.110 The Court held that Earth Island lacked standing to challenge the application of these regulations nationwide because it had voluntarily settled the portion of the lawsuit pertaining to its only memberwho suffered an actual injury-in-fact that was “concrete and particularized.”


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Regardless of how standing doctrine applies to organizations and indi-viduals, states appear to enjoy wider latitude to demonstrate constitutionalstanding in cases involving environmental law. In Massachusetts v. EPA, theCourt held that states are entitled to “special solicitude” in standing analysisin cases involving state efforts to protect natural resources.111 There, theCourt recognized Massachusetts’s potential shoreline loss as a legally cogniz-able injury in allowing it to challenge EPA’s failure to regulate GHG emissions.Individuals, on the other hand, must still show a tight “geographic nexus” be-tween the claimed injury and the federal action.112 While standing jurispru-dence can be both uncertain and fact-intensive, one sure bet is that it will con-tinue to be a significant issue in the enforcement of environmental law.

Political Question DoctrineAs chapter 9 explains, although the political question doctrine has not tradi-tionally impeded implementation of natural resource laws, recent decisionssuggest it deserves to be watched closely in the future, at least concerning cli-mate change. In Marbury v. Madison, Chief Justice Marshall lamented the “irk-some” and “delicate” questions that are inherently political and out of reachto the judiciary.113 And in 1962, the Court observed that matters demonstra-bly committed to a coordinate branch of government, or that lack ascertaina-ble standards, or that could otherwise result in judicial embarrassment are“formulations” of nonjusticiable “political questions.”114 For example, theCourt has recognized that executive powers over foreign affairs, impeach-ment, and treaty abrogation are political questions into which courts “oughtnot . . . enter [the] political thicket.”115

The Court has declined to engage arguments inviting analysis under thepolitical question doctrine in holding that the federal CAA provides EPA withauthority to regulate emissions of GHGs from new motor vehicles.116 Nonethe-less, several federal courts have turned recently to the political question doc-trine in deciding that cases involving climate change are nonjusticiable. Forexample, federal district courts in California, Louisiana, and New York havedismissed state public nuisance actions brought to address the effects of cli-mate change against U.S. auto manufacturers,117 coal-burning power plants,118

and the oil and gas industry,119 electing not to “enter the global warmingthicket.”120

Individual Rights

Individual rights to private property, due process, and, to a lesser extent, aquality environment have profound impacts on environmental law.

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TakingsAs chapter 10 discusses more fully, the Fifth Amendment, which the Four-teenth Amendment incorporates to the states, forbids the government from“taking private property for public use without just compensation.” The con-cept of “regulatory” takings first arose in Pennsylvania Coal Co. v. Mahon,which prohibited coal mining that might cause surface subsidence.121 JusticeHolmes, writing for the Court, held that a state’s regulation that goes “too far”could amount to a taking.122

Determining whether a law constitutes a regulatory taking involves a bal-ancing approach that turns on how closely the impact of the challenged reg-ulation resembles a physical occupation of the regulated property. In PennCentral Transportation Co. v. New York City, the company argued that the NewYork City Landmarks Preservation Law of 1965 constituted a regulatory tak-ing.123 The law allowed the city to designate structures and neighborhoods as“landmarks” or “landmark sites,” thus preventing Penn Central from buildinga multistory office building atop Grand Central Terminal. The Court dis-agreed, finding that the city’s restriction was substantially related to the gen-eral welfare of the city. In Penn Central, the Court weighed three factors to de-termine whether a government regulation triggers the obligation tocompensate the property owners: (1) “the economic impact of the regulationon the claimant,” (2) “the extent to which the regulation has interfered withdistinct investment-backed expectations,” and (3) the “character of the gov-ernmental action,” that is, whether it amounts to a physical invasion ormerely affects property interests through “some public program adjusting thebenefits and burdens of economic life to promote the common good.”124

The Court has applied the Penn Central factors in a series of environmen-tal cases. In Lucas v. South Carolina Coastal Council, Lucas bought two beach-front residential lots on which he intended to build single-family homes.125

Shortly thereafter, the state enacted a law aimed to protect barrier islandsthat barred Lucas from erecting permanent residences. The Court held thatdepriving a landowner of all economically viable use of property goes too farand constitutes a regulatory taking per se, unless such use constitutes a nui-sance under the state’s traditional common law.

Even preexisting state laws can go too far and constitute a compensabletaking. In Palazzolo v. Rhode Island, Anthony Palazzolo owned a waterfrontparcel of land in Rhode Island, most of which was salt marsh subject to tidalflooding.126 State law enacted prior to his acquisition of the property desig-nated state salt marshes as protected “coastal wetlands.” Palazzolo claimedthat the state’s subsequent denial of his multiple requests to develop theproperty constituted a regulatory taking because it had deprived him of “alleconomically beneficial use” of his property. The Court upheld his claims,even though he acquired the property after the state law went into effect. Jus-


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tice Kennedy, writing for the Court, held that a contrary ruling would, “in ef-fect, put an expiration date on the Takings Clause . . . [depriving] [f]uture gen-erations [of] a right to challenge unreasonable limitations on the use andvalue of land.”127

Normal regulatory delays that temporarily deprive an owner of all eco-nomically beneficial use of property do not necessarily constitute a taking. InTahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, the gov-ernment imposed two moratoria on development while it prepared a compre-hensive land use plan.128 The moratoria lasted a total of about thirty-twomonths. The landowners claimed that during that time the moratoria consti-tuted a deprivation of all economically viable use of land. The Court dis-agreed. Applying the Penn Central factors, it concluded that the delay did notconstitute a taking, noting that a categorical rule that any temporary depriva-tion of all economic use constitutes a taking—no matter how brief—would im-pose unreasonable financial burdens due to normal, foreseeable delays in pro-cessing land use applications.

The Court has wrestled with how closely its takings jurisprudence oughtto track substantive due process jurisprudence. In Agins v. City of Tiburon, theCourt declared that government regulation of private property constitutes “ataking if [it] does not substantially advance legitimate state interests.”129 Thisstandard is analogous to substantive due process analysis.

After applying it for two decades, the Court subsequently abandoned thestandard of review endorsed in Agins. In Nollan v. California Coastal Commis-sion, the Court struck down a state requirement that certain beachfront prop-erty owners in California maintain along their property a public pathway thatprovided access to the beach.130 The Court held that while maintaining publicaccess is a legitimate state interest, the means chosen did not substantiallyadvance this end and constituted a compensable regulatory taking. Likewise,in Dolan v. City of Tigard, the Court rejected the City’s effort to require Dolanto set aside part of her land for a greenway along a nearby creek to help alle-viate surface runoff and for a pedestrian/bicycle path to relieve traffic con-gestion, in exchange for allowing her to expand her store and pave her park-ing lot.131 The Court held that the City had failed to show an “essential nexus”between the ends (reducing erosion and traffic) and the means chosen toachieve them.

More recently, in Lingle v. Chevron U.S.A., the Court considered a takingschallenge arising from a cap on the rent oil companies could charge dealersleasing company-owned service stations.132 Chevron and others argued thecap constituted a regulatory taking because the means chosen (limiting rentcharges) did not “substantially advance” a legitimate state aim. Writing for aunanimous Court, Justice O’Connor denied the claim. In an effort to “correctcourse,” the Court held that the “substantially advances” test announced in

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Agins is limited to substantive due process analysis and does not apply in thetakings context. Instead, takings challenges should be assessed based on theseverity of the burden caused by the regulation, not how well the regulationfurthers governmental interests, which seems to make upholding regulationmore likely.

Looking ahead, takings jurisprudence will continue to impact environ-mental law significantly, especially in constraining state actions. Governmentagencies are acutely aware of the potential to pay large compensatory awardsfor denying or delaying permission to develop property or for imposing con-ditions on property use. For example, the U.S. Court of Claims awarded $14million to farmers who alleged that federal limits on water withdrawn from theSacramento–San Joaquin Delta to conserve Chinook salmon and delta smeltand their habitat constituted a compensable regulatory taking.133 The samecourt, however, recently rejected a claim that prohibiting the development ofjurisdictional wetlands constitutes a compensable taking of the most eco-nomically valuable use of the property.134

Many takings cases have been decided by a bare majority. Therefore,changes on the Supreme Court could substantially impact the Court’s takingsjurisprudence. Takings cases thus far from the Roberts Court suggest somehesitation to expand takings jurisprudence. In John R. Sand & Gravel Co. v.United States, the Court rejected claims that EPA’s installation and reposition-ing of fences around a contaminated site constituted a taking of the plaintiff’sleasehold rights for its adjacent mining operation, although it did so on a tech-nicality, finding that the claimant had failed to file the claim within the statuteof limitations provided by federal law under the Tucker Act.135 Likewise, inWilkie v. Robbins, it rejected a claim by a Wyoming ranch owner who assertedthat the Bureau of Land Management’s treatment of him following his refusalto grant the agency an easement across his property constituted a compen-sable taking.136 The Court found that alternate remedies were available andthat it lacked standards for determining when the government’s tactics “de-manded too much and went too far.”137

Due ProcessThe Fifth Amendment, which applies to the federal government, and the Four-teenth Amendment, which applies to the states, provide that no individual“shall be deprived of . . . property without the due process of law.”138 Dueprocess, discussed more fully in chapter 11, generally protects only tradi-tional property rights. Nonetheless, because environmental law frequently in-volves the issuance of permits and enforcement actions for violating permitsor other legal requirements, due process rights abound. How much process isdue varies with the scope of the right, but most federal and state agencies thatregulate natural resources afford parties who are directly affected by agency


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decisions with procedural rights to contest those decisions. Less process isusually due when the regulated activity poses a threat to health or safety.

In Hodel v. Virginia Surface Mining & Reclamation Ass’n, the Court upheldseveral provisions of SMCRA against procedural due process challenges.139

SMCRA permits the secretary of the interior to issue an order for immediatecessation of mining when he or she determines that conditions pose a seriousthreat to public health and safety or the environment. The Court held that thisprocess did not violate the coal producers’ procedural due process rights toan expedient hearing prior to issuance of the order.

Furthermore, failure to meet statutory requirements can extinguish aclaim of deprivation of procedural due process. In United States v. Locke, theCourt upheld the constitutionality of statutes providing for the automatic ter-mination of vested property rights on the failure to comply with statutoryconditions.140 The Federal Land Policy and Management Act requires miningclaimants to rerecord claims every year with the Bureau of Land Management“prior to December 31” (emphasis added). When a mining claimant rerecordeda claim on December 31, the owner lost the claim that he had worked for morethan twenty years. The Court held that no further process is required.

Rights to a Quality EnvironmentAs discussed in the foreword, the federal Constitution does not explicitly ad-dress environmental concerns. To the extent it reaches environmental issuesimplicitly or indirectly, it tends to hamper state efforts to operate as labora-tories of innovative environmental policy or causes of action, in the ways de-scribed throughout this book. Yet the U.S. Constitution is not the sole sourceof constitutional influence on the practice of environmental law. State and na-tional constitutions worldwide have been specially crafted to address localenvironmental concerns, be they preservation, redevelopment, sustainabil-ity, pollution abatement, climate change, energy reform, or environmentalrights.141 These have the potential to provide additional avenues for influ-encing environmental law.

State Constitutional LawAs chapter 12 explains, more than one-third of U.S. states explicitly recognizeenvironmental concerns as an overarching state policy or purport to providea basic civil right to a quality environment. These subnational constitutionalattributes have untapped potential to shape environmental law.142 Indeed,about twenty-one states have constitutions that address parochial environ-mental and natural resource issues.143 Some constitutions express a generalpolicy of preserving natural areas and controlling pollution. For instance, Alabama’s constitution says that it is “necessary and desirable” to conserveland for ecological value.144 Other state constitutions declare state authority

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to manage state resources. For example, Idaho’s declares that “[t]he use of allwaters . . . [is] subject to the regulations and control of the state in the man-ner prescribed by law.”145

Some state constitutions are directed at protecting those natural re-sources especially important to that particular state. California’s, for example,provides a right to “reasonable” access to, and use of, the state’s limited waterresources.146 Some state constitutions expressly recognize a right to environ-mental quality as a basic civil right,147 including Hawaii,148 Illinois,149 Massa-chusetts,150 Montana,151 and Pennsylvania.152 Amid the myriad manifestationsof constitutionally embedded environmental provisions,153 one commonalitystands out: They are seldom subject to substantive interpretation,154 leavingsome dormant and awaiting implementation through advocacy. This dearth inapplicable jurisprudence is due to judicial concerns about recognizing and en-forcing emerging constitutional features, to restraining economic develop-ment and property rights, to entering what are often political thickets,155 andto providing causes of action that may displace other legislative prerogativesgranted to affected persons, as may be the case with state citizen suits to en-force state pollution control requirements.156

Global Constitutional LawsConstitutional provisions from roughly five dozen countries embed individu-alized rights to some form of healthy, adequate, or quality environment.157

Foreign domestic courts and international tribunals are enforcing constitu-tionally enshrined environmental rights with growing frequency,158 recogniz-ing basic human rights to clean water, air, and land, and environmental op-portunity.159 As chapter 13 describes, these provisions are inherently complexfor five reasons involving form, scope, parties, remedies, and justiciability.

First, does the constitution embed an environmental right? While the con-stitutions of some countries do so explicitly, other provisions, such as a “rightto life,” have been read to confer similar rights implicitly. Second, there are is-sues of scope. Not only is the scope of the interest ill defined, but the verycontent of the right has no clear boundaries or definition. This leaves openquestions, such as what is environment and what does it mean to have a“right” to a clean environment? Third, who possesses and who is obligated torespect environmental rights? Fourth, courts face significant challenges infashioning and enforcing remedies for environmental harms. Last, particularlyin constitutional democracies, under what conditions should courts enter thefray of vindicating generalized grievances of environmental harm or claimswhose remedies have wide-ranging political consequences?

Domestic constitutions tend to reflect environmental principles in one offour ways:160 (1) as a policy directive, (2) as a procedural right or duty, (3) asan explicit substantive right, or (4) as an implicit substantive right derived


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from another enumerated right, such as a “right to life.”161 Policy directivesare often not directly judicially enforceable, but they are intended to influencegovernmental decision making and can therefore be instrumental in providingenvironmental norms that guide policy makers. Environmental proceduralrights normally involve requirements for environmental assessment, accessto information, or rights to petition or participate.162 While procedural rightscan be enforceable, they do not impart a substantive right to a quality envi-ronment.163 About 130 countries have constitutional provisions that reflectpolicy directives and/or procedural rights.164

About 60 countries have included or added constitutional provisions thatexpressly recognize a substantive right to a quality environment.165 Two recentexamples of these are Kenya, which in 2010 amended its constitution to pro-vide that “[e]very person has the right to a clean and healthy environment,”166

and Ecuador, which in 2007 amended its constitution to impart a basic “[r]ightto live in an environment that is healthy and ecologically balanced.”167

Environmental rights have been read into constitutions even when theyare not explicitly mentioned or when judicial enforcement has been withheld.Courts in southern Asia, for instance, have inferred environmental rights fromother constitutionally entrenched rights, most commonly a “right to life.”168

Most notably, the highest courts in India,169 Pakistan,170 Bangladesh, andNepal have each read a constitutional “right to life” in tandem with directiveprinciples aimed at promoting environmental policy to embody substantiveenvironmental rights.171

Displacement of Federal Common LawThe “displacement doctrine,” as addressed in some detail in chapter 14, isgrounded in separation of powers. It stands for the proposition that federallaw enacted by Congress or implemented by the executive can displace therole that federal courts have to hear federal common law causes of action. InAmerican Electric Power Co. v. Connecticut (AEP), the Court held that the dis-cretionary authority that the Clean Air Act provides to EPA to regulate green-house gases under Massachusetts v. EPA,172 coupled with the correspondingregulatory actions EPA has taken since 2009, displaces the federal commonlaw for public nuisance actions concerning climate change.173

Writing for an eight–zero majority of the Court (Justice Sotomayor re-cused herself), Justice Ginsburg was unwilling to vest federal judges with thetask of performing what the Court viewed to be primarily regulatory roles sub-ject to democratic processes:

The judgments the plaintiffs would commit to federal judges, in suitsthat could be filed in any federal district, cannot be reconciled withthe decisionmaking scheme Congress enacted. The Second Circuit

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erred, we hold, in ruling that federal judges may set limits on green-house gas emissions in face of a law empowering EPA to set the samelimits, subject to judicial review only to ensure against action “arbi-trary, capricious, . . . or otherwise not in accordance with law.”174

Thus, the Court concluded that “[a]ny such claim would be displaced by thefederal legislation authorizing EPA to regulate carbon-dioxide emissions.”175

The Court’s ruling in Massachusetts that the CAA provides EPA with dis-cretionary authority to regulate greenhouse gases as “air pollutants” loomedlarge: “We hold that the Clean Air Act and the EPA actions it authorizes dis-place any federal common law right to seek abatement of carbon-dioxideemissions from fossil-fuel fired power plants. Massachusetts made plain thatemissions of carbon dioxide qualify as air pollution subject to regulationunder the Act. And we think it equally plain that the Act ‘speaks directly’ toemissions of carbon dioxide from the defendants’ plants.”176

The Court was unconvinced that federal courts should play a role in com-peting with EPA’s regulatory authority: “It is altogether fitting that Congressdesignated an expert agency, here, EPA, as best suited to serve as primary reg-ulator of greenhouse gas emissions. The expert agency is surely betterequipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions. Federal judges lack the scientific, economic, and technolog-ical resources an agency can utilize in coping with issues of this order.”177

The Court explained that its ruling does not affect state common lawcauses of action, which would be subject to a more exacting demonstration ofcongressional intent: “In light of our holding that the Clean Air Act displacesfederal common law, the availability vel non of a state lawsuit depends, interalia, on the preemptive effect of the federal Act.”178 It noted that “[n]one of theparties have briefed preemption or otherwise addressed the availability of aclaim under state nuisance law. We therefore leave the matter open for con-sideration on remand.”179

Four justices—including Justice Kennedy—accepted that the states pos-sess constitutional standing under Massachusetts v. EPA. Justice Sotomayor,who recused herself from the AEP case, has never questioned whether stateshave standing to sue concerning climate change.180 This suggests that fivemembers of the Court (including Justice Sotomayor) accept that states pos-sess constitutional standing in this context. None of the eight justices engagedeither the political question or prudential standing arguments, suggestingthat they do not consider these issues salient in the climate context.

Justice Alito (joined by Justice Thomas) issued a brief concurrence, it ap-pears for no other reason than to question the outcome in Massachusetts: “Iagree with the Court’s displacement analysis on the assumption (which I


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make for the sake of argument because no party contends otherwise) that theinterpretation of the Clean Air Act, adopted by the majority in Massachusettsv. EPA, is correct.”181


Constitutional law represents the foundation on which modern environmentallaw is built. It provides the sources of and limits to federal and state environ-mental laws. Under the Commerce, Spending, General Welfare, Treaty, andProperty Clauses and the Eleventh Amendment, it outlines the extent to whichCongress may enact laws, and agencies may promulgate regulations, that gov-ern environmental protection. Under the nondelegation doctrine, the TakeCare Clause, and the unitary executive theory, it specifies the role of the pres-ident and his adjuncts to implement environmental laws. The Tenth Amend-ment and the dormant Commerce Clause help delineate what states can andcannot do. The Due Process Clause and the standing and political questiondoctrines guide courts in matters involving jurisdiction, process, and justicia-bility. The First and Fifth Amendments, and countless constitutional provi-sions at the subnational level in the United States and around the globe, pro-vide explicit environmental rights, many of which have yet to be tested.

As the pages that follow show, constitutional law will continue to be ofprimary importance to environmental law, it appears, for as long as environ-mental law exists.


The comments of Erin Daly to a draft of this chapter are noted with gratitude.1. See generally RICHARD J. LAZARUS, THE MAKING OF ENVIRONMENTAL LAW 51 (2004).2. See generally Robert V. Percival, “Greening” the Constitution—Harmonizing En-

vironmental and Constitutional Values, 32 ENVTL. L. 809, 840 (2002).3. See Richard J. Lazarus, Restoring What’s Environmental about Environmental

Law in the Supreme Court, 47 UCLA L. REV. 703, 749–52 (2000).4. Research conducted with “Lexis Focus Search,” searching “Environment and

Natural Resource and Energy,” date restricted to “previous five years.” Within thesecases, an additional search was conducted using the search terms “Environment andNatural Resource and Energy” along with the particular constitutional issue “and [con-stitutional issue].” For instance, to search Eleventh Amendment issues, “Environmentand Natural Resource and Energy and Eleventh Amendment” was used. Of the results,cases were examined individually to confirm the constitutional issue. Last searchedAugust 1, 2010.

5. U.S. Term Limits v. Thornton, 514 U.S. 779 (1995).

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6. James May & Robert L. Glicksman, Justice Rehnquist and the Dismantling of En-vironmental Law, 36 Envtl. L. Rep. (Envtl. L. Inst.) 10585 (2006) [hereinafter Dismantlingof Environmental Law].

7. McCulloch v. Maryland, 17 U.S. 316 (1819).8. U.S. CONST. art. I, § 8.9. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 195 (1824).10. United States v. E. C. Knight Co., 156 U.S. 1 (1895).11. Hammer v. Dagenhart, 247 U.S. 251 (1918).12. Carter v. Carter Coal Co., 298 U.S. 238 (1936); Panama Ref. Co. v. Ryan, 293 U.S.

388 (1935).13. NLRB v. Jones & Laughlin Steel, 301 U.S. 1, 37 (1937).14. United States v. Darby, 312 U.S. 100, 119 (1941).15. Wickard v. Filburn, 317 U.S. 111 (1942).16. Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264 (1981).17. Id. at 311 (Rehnquist, J., concurring).18. United States v. Lopez, 514 U.S. 549 (1995).19. United States v. Morrison, 529 U.S. 598 (2000).20. Nat’l Ass’n of Homebuilders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997).21. Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000).22. GDF Realty Invs. v. Norton, 326 F.3d 622 (5th Cir. 2003).23. Rancho Viejo, LLC v. Norton, 323 F.3d 1062 (D.C. Cir.), petition for reh’g en banc

denied, 334 F.3d 1158 (D.C. Cir. 2003).24. Gonzales v. Raich, 545 U.S. 1 (2005).25. Id. at 19.26. Alabama-Tombigbee Rivers Coal. v. Kempthorne, 477 F.3d 1250 (11th Cir. 2007).27. Id. at 1272.28. Id. at 1276.29. United States v. Hubenka, 438 F.3d 1026 (10th Cir. 2006).30. Rancho Viejo, LLC v. Norton, 323 F.3d 1062 (D.C. Cir.), petition for reh’g en banc

denied, 334 F.3d 1158, 1160 (D.C. Cir. 2003) (Roberts, C.J., dissenting).31. Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng’rs, 531 U.S.

159 (2001).32. Rapanos v. United States, 547 U.S. 715 (2006).33. Id. at 783 (Kennedy, J., concurring).34. U.S. CONST. art. II, § 2, cl. 2.35. U.S. CONST. art. I, § 8, cl. 18.36. Missouri v. Holland, 252 U.S. 416 (1920).37. See, e.g., Shields v. Babbitt, 229 F. Supp. 2d 638 (W.D. Tex. 2000), vacated sub

nom. Shields v. Norton, 289 F.3d 832 (5th Cir. 2002) (holding ESA valid under Treatyand Necessary and Proper Clauses).

38. U.S. CONST. art. I, § 8; United States v. Butler, 297 U.S. 1 (1936).39. South Dakota v. Dole, 483 U.S. 203 (1987).40. 16 U.S.C. §§ 4601 et seq. (2006).41. See United States v. Gerlach Live Stock Co., 339 U.S. 725, 738 (1950).42. Kleppe v. New Mexico, 426 U.S. 529 (1976).


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43. Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525 (1885).44. Midwest Oil Co. v. United States, 236 U.S. 459 (1915).45. New York v. United States, 505 U.S. 144 (1992).46. Connecticut v. United States, 369 F. Supp. 2d 237, 241–42 (D. Conn. 2005).47. Wyoming v. U.S. Dep’t of the Interior, 360 F. Supp. 2d 1214 (D. Wyo. 2005).48. Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461 (2004).49. Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1995).50. Alden v. Maine, 527 U.S. 706 (1999).51. Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743 (2002).52. Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989).53. Bragg v. W. Va. Coal Ass’n, 248 F.3d 275 (4th Cir. 2001), cert. denied, 534 U.S.

1113 (2002).54. See also Pa. Fed’n of Sportsmen’s Clubs v. Hess, 297 F.3d 310 (3d Cir. 2002).55. See also, e.g., Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529

U.S. 765 (2000) (upholding standing to bring qui tam action under False Claims Act forfalse submissions to EPA, but dismissing the action on statutory grounds); Taylor v.U.S. Dep’t of Labor, 440 F.3d 1 (1st Cir. 2005).

56. R.I. Dep’t of Envtl. Mgmt. v. United States, 304 F.3d 31 (1st Cir. 2002).57. Ex parte Young, 209 U.S. 123 (1908) (ordering a state official to comply with

federal law on ground that he lacked constitutional authority to commit unconstitu-tional act).

58. Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 476 (2001).59. Am. Trucking Ass’n v. EPA, 175 F.3d 1027 (D.C. Cir. 1999).60. Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988).61. See also Wong v. Bush, 542 F.3d 732 (9th Cir. 2008) (concerned Coast Guard’s

“security zone” that prohibited plaintiff from blockading certain waters surroundingKauai, Hawaii; finding that restriction was content-neutral; that time, place, and man-ner restriction left ample alternative channels of expression; and that demonstratorscould not “cordon off” an area and “force” others to listen).

62. Mount Royal Joint Venture v. Kempthorne, 477 F.3d 745 (D.C. Cir. 2007).63. See also Access Fund v. U.S. Dep’t of Agric., 499 F.3d 1036 (9th Cir. 2007) (af-

firming lower court’s upholding of the U.S. Forest Service’s ban on climbing a sacredrock by members of a Native American tribe because the ban had a secular purposeand lacked impermissible religious motivation).

64. Garcetti v. Ceballos, 547 U.S. 410 (2006).65. U.S. CONST. art. I, § 10, cl. 3.66. See Jerome C. Muys et al., Utton Transboundary Resources Center Model Inter-

state Water Compact, 47 NAT. RESOURCES J. 17, 21 (2007).67. See, e.g., Vermont v. New York, 417 U.S. 270, 277 (1974); Muys et al., supra note

66, at 27.68. Muys et al., supra note 66, at 27.69. Willson v. Black-Bird Creek Marsh Co., 27 U.S. 245 (1829).70. Philadelphia v. New Jersey, 347 U.S. 617 (1978).71. Or. Waste Sys. v. Dep’t of Envtl. Quality, 511 U.S. 93 (1994); Ft. Gratiot Sanitary

Landfill v. Mich. Dep’t of Natural Res., 504 U.S. 353 (1992).

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72. C & A Carbone, Inc. v. Clarkstown, 511 U.S. 383 (1994).73. Hughes v. Oklahoma, 441 U.S. 322 (1979).74. Sporhase v. Nebraska, 458 U.S. 941 (1982).75. New Eng. Power Co. v. New Hampshire, 455 U.S. 331 (1982).76. New Energy Co. of Ind. v. Limbach, 486 U.S. 269 (1988).77. Wyoming v. Oklahoma, 502 U.S. 437 (1992).78. Hughes v. Oklahoma, 441 U.S. 332, 336 (1979).79. Id.80. Maine v. Taylor, 477 U.S. 131 (1986).81. Chem. Waste Mgmt. v. Hunt, 504 U.S. 334 (1992).82. S.-Cent. Timber Dev. v. Wunnicke, 467 U.S. 82 (1984).83. United Haulers Ass’n v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S.

330 (2007).84. Pike v. Bruce Church, Inc. 397 U.S. 137 (1970).85. See, e.g., Lebanon Farms Disposal v. County of Lebanon, 538 F.3d 241 (3d Cir.

2008) (county flow control ordinance requiring waste generated within the county becarried to a specific, publicly owned disposal facility does not contravene dormantCommerce Clause).

86. See, e.g., Quality Compliance Servs. v. Dougherty County, Ga., 553 F. Supp. 2d1374 (M.D. Ga. 2008) (ordinance requiring disposal within county limits—excludingthe plaintiff’s out-of-state station—does not violate the dormant Commerce Clause).

87. Id.88. Chem. Waste Mgmt. v. Hunt, 504 U.S. 334, 349–50 (1992) (Rehnquist, C.J., dis-

senting).89. See Dismantling of Environmental Law, supra note 6, at 10597–99.90. Id.91. U.S. CONST. art. VI, cl. 2.92. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824).93. Milwaukee v. Illinois, 451 U.S. 304 (1981).94. See, e.g., Int’l Paper Co. v. Ouellette, 479 U.S. 481 (1987).95. Exxon Shipping Co. v. Baker, 128 S. Ct. 2605, 2617 (2008).96. Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 498 F.3d 1091 (9th Cir.

2007).97. Green Mt. Chrysler Plymouth Dodge Jeep v. Crombie, 508 F. Supp. 2d 295 (D.

Vt. 2007).98. Pac. Gas & Elec. v. State Energy Comm’n, 461 U.S. 190 (1983).99. California v. United States, 438 U.S. 645 (1978).100. Douglas v. Seacoast Prods., 431 U.S. 265 (1977).101. California v. FERC, 495 U.S. 490 (1990).102. PUD No. 1 of Jefferson County v. Wash. Dep’t of Ecology, 511 U.S. 700 (1984).103. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990).104. Sierra Club v. Morton, 405 U.S. 727 (1972).105. Friends of Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000).106. Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977).


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107. Nat’l Parks Conservation Ass’n v. Manson, 414 F.3d 1 (D.C. Cir. 2005).108. Earth Island Inst. v. Ruthenbeck, 459 F.3d 954 (9th Cir. 2006); Friends of

Earth, Inc. v. Watson, No. C02-4106, 2005 WL 40071 (N.D. Cal. Jan. 6, 2005).109. Salmon Spawning & Recovery Alliance v. United States, 523 F.3d 1338 (D.C.

Cir. 2008) (ESA); Lemon v. Geren, 514 F.3d 1312 (D.C. Cir. 2008) (under NEPA).110. Summers v. Earth Island Inst., 129 S. Ct. 1142 (2009).111. Massachusetts v. EPA, 549 U.S. 497 (2007).112. Nuclear Info. & Res. Serv. v. Nuclear Regulatory Comm’n, 457 F.3d 941 (9th

Cir. 2006).113. Marbury v. Madison, 5 U.S. 137 (1803).114. Baker v. Carr, 369 U.S. 186, 217 (1962).115. Colegrove v. Green, 328 U.S. 549, 556 (1946).116. Massachusetts v. EPA, 549 U.S. 497 (2007).117. California v. Gen. Motors Corp., No. C06-05755, 2007 WL 2726871 (N.D. Cal.

Sept. 17, 2007).118. Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265 (S.D.N.Y. 2005), va-

cated and remanded, 582 F.3d 309 (2d Cir. 2009), rev’d and remanded, No. 10-174, 2011WL 2437011 (U.S. June 20, 2011).

119. See, e.g., Comer v. Murphy Oil, USA, No. 1:05-cv-436 (S.D. Miss. Aug. 30, 2007)(dismissing under the political question doctrine state law nuisance cause of actionbased on enhanced effects of climate change), rev’d, 585 F.3d 855 (5th Cir. 2009), vacated, Comer v. Murphy Oil USA, 607 F.3d 1049 (5th Cir. 2010) (en banc dismissal of panel decision and reinstitution of district court decision due to lack of quorum),petition for writ of mandamus denied sub nom. In re Ned Comer, No. 10-294 (U.S. Jan. 10,2011). The plaintiffs subsequently refiled the case; see case study in chapter 9.

120. California v. Gen. Motors Corp., No. 3:06-CV-05755 MJJ, 2007 WL 2726871(N.D. Cal. Sept. 17, 2007).

121. Pa. Coal Co. v. Mahon, 260 U.S. 393 (1922).122. Cf. Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470 (1987)

(state statute restricting mining that resulted in surface subsidence was not a taking).123. Penn Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978).124. Id. at 124.125. Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992).126. Palazzolo v. Rhode Island, 533 U.S. 606 (2001).127. Id. at 627.128. Tahoe-Sierra Pres. Council v. Tahoe Reg’l Planning Agency, 535 U.S. 302 (2002).129. Agins v. City of Tiburon, 447 U.S. 255, 260 (1980).130. Nollan v. Cal. Coastal Comm’n, 483 U.S. 825 (1987).131. Dolan v. City of Tigard, 512 U.S. 374 (1994).132. Lingle v. Chevron U.S.A., 544 U.S. 528 (2005).133. Tulare Lake Basin Water Storage Dist. v. United States, 49 Fed. Cl. 313 (2001).134. Brace v. United States, 72 Fed. Cl. 337 (2006), aff’d, No. 2007-5002, 2007 WL

2947319 (Fed. Cir. Oct. 10, 2007).135. John R. Sand & Gravel Co. v. United States, 552 U.S. 130 (2008).

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136. Wilkie v. Robbins, 127 S. Ct. 2588 (2007).137. Id. at 2601.138. U.S. CONST. amends. V & XIV.139. Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264 (1981).140. United States v. Locke, 471 U.S. 84 (1985).141. See Richard O. Brooks, A Constitutional Right to a Healthful Environment, 16

VT. L. REV. 1063, 1103–5 (1991) (supporting “decentralization” of constitutional provi-sions that address the environment, observing “[s]tate judges [would] . . . be moresensitive in weighing the state’s values.”).

142. See Janelle P. Eurick, The Constitutional Right to a Healthy Environment: En-forcing Environmental Protection through State and Federal Constitutions, 11 INT’L LEGAL

PERSP. 185, 185 (2001); Barton H. Thompson Jr., Environmental Policy and State Consti-tutions: The Potential Role of Substantive Guidance, 27 RUTGERS L.J. 863, 871 (1996); Bar-ton H. Thompson Jr., The History and Future of Montana’s Environmental Provisions, 64MONT. L. REV. 157, 174 (2003). However, states may prevail through a unique marketparticipant strategy.

143. Eurick, supra note 142, at 201.144. See ALA. CONST. art. XI, § 219.07.145. IDAHO CONST. art. XV, § 1.146. See CAL. CONST. art. X, § 2.147. See generally Mary Ellen Cusack, Judicial Interpretation of State Constitutional

Rights to a Healthful Environment, 20 B.C. ENVTL. AFF. L. REV. 173 (1993).148. See HAW. CONST. art. XI, § 9.149. See ILL. CONST. art. XI, § 2.150. See MASS. CONST. art. XLIX.151. See MONT. CONST. art. II, § 3. See generally Thompson, The History and Future

of Montana’s Environmental Provisions, supra note 142, at 158 (discussing Montana’sfinding of a fundamental right to a “healthful environment.”); Bryan P. Wilson, StateConstitutional Environmental Rights and Judicial Activism: Is the Big Sky Falling?, 53EMORY L.J. 627 (2004).

152. See PA. CONST. art. I, § 27. See generally Thompson, The History and Future ofMontana’s Environmental Provisions, supra note 142, at 158 (discussing Montana’s find-ing of a fundamental right to a “healthful environment”); Wilson, supra note 151.

153. Constitutional provisions are found in the appendix.154. See, e.g., Sierra Club v. Dep’t of Transp., 167 P.3d 292, 313 n.28 (Haw. 2007)

(explaining that “[a]lthough this court has cited this amendment as support for ourapproach to standing in environmental cases, . . . we have not directly interpreted thetext of the amendment.”).

155. See generally Robert A. McLaren, Environmental Protection Based on StateConstitutional Law: A Call for Reinterpretation, 12 U. HAW. L. REV. 123, 132 (1990); Thomp-son, The History and Future of Montana’s Environmental Provisions, supra note 142, at174. The obstacles to enforcing state constitutional environmental rights are strikinglysimilar to those that afflict enforcement of environmental rights provisions in nationalconstitutions worldwide. See generally James R. May & Erin Daly, Vindicating Funda-mental Environmental Rights Worldwide, 11 OR. REV. INT’L L. 365 (2009).


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156. See generally James R. May, The Availability of State Environmental CitizenSuits, 18 NAT. RESOURCES & ENV’T 53 (2004).

157. See generally James R. May, Constituting Fundamental Environmental RightsWorldwide, 23 PACE ENVTL. L. REV. 113 (2006).

158. See generally May & Daly, supra note 155.159. See generally SVITLANA KRAVCHENKO & JOHN E. BONINE, HUMAN RIGHTS AND THE EN-


May, supra note 157, at 115 (citing Carl Bruch et al., Constitutional Environmental Law:Giving Force to Fundamental Principles in Africa, 26 COLUM. J. ENVTL. L. 131, 132 (2001))(“Constitutional provisions offer broad and powerful tools for protecting the envi-ronment. . . .”).

161. See May & Daly, supra note 155, at 373. Professor Glazewski divides domes-tic constitutional environmental provisions into those that (1) confer a human right,(2) direct policy, and (3) impose a duty. Jan Glazewski, The Environment, HumanRights, and a New South African Constitution, 7 S. AFR. J. HUM. RTS. 167, 173–75 (1991).

162. See Gyula Bandi, The Right to Environment in Theory and Practice: The Hun-garian Experience, 8 CONN. J. INT’L L. 439, 450–65 (discussing the Hungarian Constitu-tion’s public participation provisions); Benjamin W. Cramer, The Human Right to Infor-mation, the Environment, and Information about the Environment: From the UniversalDeclaration to the AARHUS Convention, 14 COMM. L. & POL’Y 73, 74 (2009); WilliamOnzivu, International Environmental Law, The Public’s Health, and Domestic Environ-mental Governance in Developing Countries, 21 AM. U. INT’L L. REV. 597, 672 (2006); seealso HAYWARD, supra note 160, at 200–203.

163. Ernst Brandl & Hartwin Bungert, Constitutional Entrenchment of Environ-mental Protection: A Comparative Analysis of Experiences Abroad, 16 HARV. ENVTL. L. REV.1, 82 tbl. 1 (1992) (discussing constitutional environmental policies of Austria, Brazil,Germany, Greece, the Netherlands, Portugal, Spain, Switzerland, and Turkey).

164. See May, supra note 157, at app. B.165. See id. at 129, app. A; see also Ying Ding et al., Environmental Rights Report

2008, EARTHJUSTICE, available at For another compilation, see Resources, A SUBSTANTIVE

ENVIRONMENTAL RIGHT, (last visited Dec. 1, 2010).166. KENYA CONST. art. 42, available at

Resources/the_proposed_constitution_of_kenya.pdf.167. CONSTITUCIÓN POLÍTICA DE LA REPÚBLICA DEL ECUADOR tit. II, ch. 2, art. 14.168. Carl Bruch et al., Constitutional Environmental Law: Giving Force to Funda-

mental Principles in Africa, 26 COLUM. J. ENVTL. L. 131, 133 (2001).169. See Michael R. Anderson, Individual Rights to Environmental Protection in

India, in HUMAN RIGHTS APPROACHES TO ENVIRONMENTAL PROTECTION 199–225 (Alan E. Boyle& Michael R. Anderson eds., 1996); Barry E. Hill et al., Human Rights and the Environ-ment: A Synopsis and Some Predictions, 16 GEO. INT’L ENVTL. L. REV. 359, 382 (2004).

170. See Martin Lau, Islam and Judicial Activism: Public Interest Litigation and En-vironmental Protection in the Islamic Republic of Pakistan, in HUMAN RIGHTS APPROACHES

TO ENVIRONMENTAL PROTECTION, supra note 169, at 285–302.

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171. See Bruch et al., supra note 168, at 166–67 (discussing constitutional inter-pretation in India, Pakistan, Bangladesh, Nepal, Colombia, Ecuador, Costa Rica, andsome countries in Africa including Tanzania).

172. 549 U.S. 497 (2007).173. Am. Elec. Power Co. v. Connecticut, No. 10-174, 2011 WL 2437011, at *4 (U.S.

June 20, 2011).174. Id. at *12.175. Id. at *8.176. Id. at *9.177. Id. at *11.178. Id. at *12.179. Id.180. Id. at *13 n.2.181. Id. at *13 (Alito, J., concurring).


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