LegiStorm

Summary:

Federal protection of the environment must hew to the same constitutional bounds as any other federal activity. In the past decade, the Supreme Court has invigorated several of these bounds in ways that present new challenges to congressional drafters of environmental statutes. This report reviews five of these newly emergent constitutional areas. For each area, the focus is its significance for current and future federal environmental legislation. First, the Commerce Clause , requiring that activities regulated by federal laws enacted under the Clause have a sufficient nexus with interstate commerce. In 1995, the Supreme Court sustained a Commerce Clause challenge to a federal law for the first time in 60 years, and did so again in 2000. Thus far, lower courts have rejected such challenges to federal environmental laws, but in 2001 the Supreme Court opted for a narrow reading of federal Clean Water Act jurisdiction over "isolated waters," in part to avoid Commerce Clause issues. Second, standing to sue in the federal courts . Article III restricts standing (who is a proper party to bring suit) to those who can demonstrate injury in fact, causation, and redressability. In a series of decisions during the 1990s, the Supreme Court interpreted these requirements with increasing stringency, making standing more difficult to establish and lessening the viability of many potential environmental citizen suits. In a sharp turnabout, however, the Court in 2000 eased the injury-in-fact and redressability components. Third, the Takings Clause of the Fifth Amendment , declaring that when the federal government "takes" property, just compensation is owed. The federal environmental program most commonly attacked in takings suits is the Clean Water Act section 404 wetlands program. Other federal programs occasionally challenged as effecting takings include the Endangered Species Act, Surface Mining Control and Reclamation Act, Rails to Trails Act, and Superfund Act. Fourth, the Tenth Amendment , stating that powers not granted to the Federal Government are reserved to the states. Invoking this Amendment, Supreme Court decisions during the 1990s held that Congress cannot compel the participation of state legislatures or state executive-branch officials in federal programs. But conditions on the grant of federal funds to the states and other noncoercive approaches to enlisting state cooperation with federal environmental initiatives have been judicially approved. Fifth, the Eleventh Amendment , which together with general principles of state sovereign immunity bars Congress from authorizing private lawsuits against unconsenting states. Because the Amendment applies only to private suits against states and does not prohibit suits against state officials for injunctive relief, it has thus far not been a major constraint on congressional environmental efforts. Noncoercive approaches (preceding paragraph) are also available. Finally, the report briefly sketches two constitutional doctrines that, while recently active, have not received Supreme Court resuscitation. One, the Article I nondelegation doctrine, was used by a lower court to void Clean Air Act regulations before being returned to its former quiescent status by the Supreme Court in 2001. The other, Article II's vesting of enforcement authority in the executive branch, is today argued by some citizen-suit defendants as being inconsistent with citizen enforcement of federal environmental laws. The Supreme Court has yet to resolve the issue.