Environmental Regulation and the Constitution

• Author: James E. Krier
• Pages: 900-903

Page 900

Indirectly, at least, the Constitution provides the federal government with power to regulate on behalf of environmental quality, but it also sets limits on the power. It sets limits, likewise, on the regulatory power of the states. What it does not do, at present, is grant the "constitutional right to a clean environment" so avidly sought in the heyday of environmental concern, the decade of the 1970s. Thus, the one unique aspect of the general topic considered here has no doctrinal standing; the remaining aspects are matters of doctrine, but they are not unique to environmental regulation. It is quite sufficient, then, merely to illustrate the wide range of constitutional issues that arise in the context of environmental regulation, and to suggest the nature of the debate on the question of a constitutional right to an environment of good quality.

Environmental lawmaking at the national level of government?whether by Congress, the executive, or indeed the federal courts?became important only in the 1970s, but the beginnings reach back well into the nineteenth century, if not farther. This history, especially the strong federal presence of recent years, makes apparent the significant constitutional authority of the central government in regard to the environment. Granting that it is a government of LIMITED POWERS, and mindful of occasional suggestions "that these powers fall short of encompassing the breadth of concerns potentially subject to environmental regulation," one can still conclude, with Philip Soper, "that no conceivable measure reasonably intended to protect the environment is beyond the reach" of federal authority.

The most important source of federal power to regulate in the environmental field is found in the COMMERCE CLAUSE. The clause, especially as it pertains to congressional authority to regulate activities affecting commerce, has been so expansively applied by the federal courts as to justify federal control of virtually any problem of environmental pollution. Some pollution sources, such as automobiles and ships, move in INTERSTATE COMMERCE; other sources manufacture products that do so; pollution affects such mainstays of interstate commerce as agricultural commodities, livestock, and many raw materials; pollutants themselves can be seen as products, or at least byproducts, moving "in commerce" across state lines. An imaginative federal district court relied upon this last theory to sustain the Clean Air Act in United States v. Bishop Processing Company (D.Md. 1968).

These views lend support not only to the federal air pollution control program but also to programs concerning noise, pesticides, solid waste, toxic substances, and water pollution. Regarding the last especially, Congress can draw on its unquestioned authority over navigable waters, and on the willingness of the federal courts to regard as navigable any waters of a depth sufficient, as someone once said, to float a Supreme Court opinion.

The federal government can draw on other sources of power, at least on a selective basis, to support programs of environmental regulation. The property clause of Article IV, section 3, for example, gives Congress the power to "make all needful Rules and Regulations respecting" the property of the United States. In Kleppe v. New Mexico (1976) the clause was relied upon to sustain the Wild Free-Roaming Horses and Burros Act of 1971 as a "needful regulation" "respecting" public lands, against New Mexico's claim that the federal government lacked authority to control the animals unless they were moving in interstate commerce or damaging public lands. It seems clear that under the property clause Congress may regulate the use of its own lands, and perhaps adjacent lands as well, to protect environmental conditions and promote ecological balance on government property.

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