CONSTITUTIONAL ENVIRONMENTAL LAW, OR, THE CONSTITUTIONAL CONSEQUENCES OF INSISTING THAT THE ENVIRONMENT IS EVERYBODY'S BUSINESS.

• Author: Craig, Robin Kundis
• Position: Symposium: Festschrift in Honor of Professor William Funk

1. INTRODUCTION 704 II. THE CONSTITUTIONAL MESSINESS OF COOPERATIVE FEDERALISM 706 A. The Commerce Clause and the Tenth Amendment 708 B. Implied Preemption, Savings Clauses, and the Common Law 713 C. Federal Sovereign Immunity and State Regulation of Federal Facilities 715 D. Dormant Commerce Clause 717 E. The Compact Clause and Interstate Agreements 720 III. CITIZEN SUITS AND THE LIMITS OF FEDERAL COURT JURISDICTION 723 A. Federal Sovereign Immunity in the Context of Citizen Suits 725 B. State Eleventh Amendment Immunity 726 C. Standing 727 IV. CONSTITUTIONAL TAKINGS CLAIMS ARISING BECAUSE THE "ENVIRONMENT" INCLUDES PRIVATE PROPERTY 729 V. CONCLUSION: WILL THERE BE A FEDERAL CONSTITUTIONAL ENVIRONMENTAL RIGHT! 733 I. INTRODUCTION

   Somewhere in the early 2000s, constitutional environmental law became a thing--a recognized sub-specialty of environmental law practice and scholarship. The institutional signals of this fact are strong. The American Bar Association's (ABA) Section on Environment, Energy, and Resources (SEER) has included a committee on Constitutional Law (1) since 2005. (2) The Constitutional Accountability Center considers environmental justice to be a core focal area. (3) For the last thirteen years, the Environmental Law Institute in Washington, D.C., through the support of Beveridge & Diamond, P.C., has sponsored an annual law student writing competition on constitutional environmental law. (4) Law schools advertise specializations in constitutional environmental law, (5) and there are textbooks on constitutional environmental law. (6) And, of course, there is constitutional environmental law scholarship--lots of it, including domestic (7) and comparative (8) legal analyses as well as work in and about other countries. (9)

   Constitutional environmental law in many respects signals that environmental law is a different kind of federal regulatory law. Complexity is probably not the explanation. While environmental law can certainly be complicated, there are a number of other fairly complicated areas of federal statutory and regulatory law where the Constitution plays a fairly minimal role, especially outside the realm of enforcement and occasional preemption issues; drug safety regulation through the United States Food and Drug Administration and securities law under the Securities and Exchange Commission immediately suggest themselves. Notably, no other area of federal regulatory law appears to have an established subspecialty to address the constitutional issues that it raises. So, why has this subspecialty arisen for environmental law?

   This Article argues that one of the key differences between federal environmental law and other areas of federal regulatory law is that federal environmental law effectively makes environmental protection everybody's business. (10) Federal environmental statutes establish a suite of relationships between and among federal agencies, federal courts, state agencies, state courts, regulated entities, property owners, and general citizens, creating new issues of constitutional boundaries while at the same time incorporating all the constitutional issues that arise when citizens and regulated entities interact with federal agencies within classic administrative law procedures--rulemaking, licensing, and adjudication or enforcement.

   While the list of environmental law relationships is somewhat long, constitutional environmental law, as distinct from the routine constitutional aspects of administrative law, tends to emerge from three specific features of the federal statutes, which in turn provide the structuring of this Article. Part II explores the constitutional consequences of cooperative federalism, Congress's deliberate decision to not only allow but actively encourage state involvement in implementing federal environmental requirements. As a result, federal environmental law has raised significant issues regarding the balance between Congress's Commerce Clause authority and states' Tenth Amendment rights, federal preemption, federal sovereign immunity from state regulation, the dormant Commerce Clause, and the Compact Clause. Part III, in turn, examines environmental citizen suits, Congress's expansion of civil rights causes of action to allow individual citizens and private organizations help to enforce environmental law requirements, creating a separate set of constitutional boundary issues. When citizens can bring enforcement actions in federal courts, they raise issues of states' Eleventh Amendment sovereign immunity, federal sovereign immunity, and, above all, constitutional standing. Finally, environmental enforcement by governments against private entities not only raises classic constitutional issues common to all federal administrative enforcement, such as the Fourth Amendment's protection against unreasonable searches and seizures and the Seventh Amendment's right to a jury trial, but also directly influences use of private property, creating recurring issues of constitutional takings. Part IV explores takings jurisprudence as it has played out across environmental statutes.

   As these Parts together make clear, federal environmental law practitioners and scholars must be well-versed in a wide range of constitutional law doctrines. The resulting weaving of statutory and constitutional legal issues created the tapestry now recognized as constitutional environmental law. This sub-discipline, moreover, stands poised to expand once again, as environmental plaintiffs once again are trying to convince the federal courts to recognize a fundamental right to a functional environment within the U.S. Constitution. (11)

2. THE CONSTITUTIONAL MESSINESS OF COOPERATIVE FEDERALISM

   The United States protects its environment through a fairly comprehensive array of federal legislation--the National Environmental Policy Act of 1969 (12) (NEPA), the Clean Air Act (13) (CAA), the Federal Water Pollution Control Act, better known as the Clean Water Act (14) (CWA), the Resource Conservation and Recovery Act of 1976 (15) (RCRA), which amended the Solid Waste Disposal Act, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (16) (CERCLA), and many others. As a constitutional matter, it would have been fairly easy for Congress to expressly preempt state law, completely taking over these areas of environmental regulation.

   As constitutional issues go, express preemption under the Supremacy Clause (17) is a fairly easy analysis. Indeed, on the occasions when Congress has expressly preempted some aspect of state environmental regulation, the federal courts have generally had no problem displacing state law. For example, CERCLA expressly preempts state statutes of limitation--but not statutes of repose (18)--in favor of a federal discovery rule. (19) The CWA expressly preempts state regulation of marine sanitation devices. (20) Many of the federal environmental statutes expressly preempt states from imposing environmental requirements that would be less stringent than federal law. (21) Perhaps most contentious has been the preemption provision in the Federal Insecticide, Fungicide, and Rodenticide Act (22) (FIFRA), which expressly preempts state labeling or packaging requirements for pesticides, (23) because it creates a fairly complex relationship between federal regulatory law and state tort law. (24)

   For the most part, however, Congress has chosen not to expressly preempt state regulation through its environmental statutes. Instead, it created structures of cooperative federalism. (25) These statutory provisions define specific regulatory roles that Congress preferred states to play--setting water quality standards (26) and issuing permits (27) under the CWA, devising implementation plans to meet National Ambient Air Quality Standards under the CAA, (28) management of non-hazardous solid waste under RCRA, (29) coastal zone management under the Coastal Zone Management Act of 1972, (30) and many others. Sharing regulatory authority with the states, it turns out, is a whole lot messier, constitutionally, than express federal preemption. (31) This Part explores five of the constitutional federalism issues that environmental cooperative federalism has raised: the balance between the Commerce Clause and the Tenth Amendment; the tension between implied preemption and savings clauses with respect to the continued operation of state common law; federal sovereign immunity from state permitting and enforcement; the dormant Commerce Clause; and the Compact Clause.

   1. The Commerce Clause and the Tenth Amendment

      As the United States Supreme Court itself has noted, "the task of ascertaining the constitutional line between federal and state power has given rise to many of the Court's most difficult and celebrated cases." (32) The Commerce Clause and the Tenth Amendment undergird much federalism litigation and have interacted frequently with federal environmental statutes. (33)

      The Commerce Clause states that "Congress shall have Power... [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." (34) The Framers intended the Commerce Clause to promote free trade among the states and thus render the United States a single commercial entity, but it also provides most of Congress's authority to enact environmental statutes. Commerce Clause jurisprudence seeks to strike a balance between the states' "reasonable exercise of [their] police powers over local affairs" and "matters of local concern" and the federal government's power to oversee matters of "national interest[]." (35) Thus, federal power over interstate commerce "'may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.'" (36)

      Balancing...