"Greening" the Constitution - harmonizing environmental and constitutional values.

• Author: Percival, Robert V.

1. THE CONSTITUTION AND THE ENVIRONMENT: AN EARLY HISTORY A. The Frames and the Environment B. The Constitutional Convention, the Bill of Rights, and the Eleventh Amendment C. Environmental Concerns in Nineteenth-Century America D. Supreme Court Adjudication of Interstate Pollution Disputes II. EARLY CONSTITUTIONAL CHALLENGES TO REGULATION A. Land Use Regulation and Regulatory Takings B. Federalism and the Commerce Clause C. Standing to Sue for the Beneficiaries of Regulation III. CONSTITUTIONAL ISSUES RAISED BY CONTEMPORARY ENVIRONMENTAL REGULATION A. Environmental Regulation and the Rehnquist Court's "New Federalism " 1. A History of the New Federalism a. Planting the Seeds of the New Federalism b. A Short-Lived Victory--National League of Cities v. Usery c. Garcia Overrules National League of Cities d. Efforts to Reconsider Eleventh Amendment Immunity e. New York v. United States and the Tenth Amendment's Anti-Commandeering Doctrine f. Lopez and Restrictions on Congressional Power g. Seminole Tribe, the Eleventh Amendment, and State Sovereign Immunity 2. The Consequences of the New Federalism for Environmental Regulation a. The Effect of the Tenth Amendment Prohibition on "Commandeering" b. The Environmental Consequences of Lopez's Limits on Congressional Commerce Power c. The Environmental Implications of the Court's Eleventh Amendment Jurisprudence B. The Dormant Commerce Clause and State Regulation of Waste Disposal C. Justice Scalia's Campaign to Restrict Environmental Standing D. Regulatory Fairness: Takings, Due Process, Equal Protection, and Environmental Justice 1. The Revival of Regulatory Takings Jurisprudence 2. Equal Protection and the Environmental Justice Movement 3. The Due Process Clause and Regulatory Fairness E. Efforts to Revive the Non-Delegation Doctrine IV. HARMONIZING ENVIRONMENTAL AND CONSTITUTIONAL VALUES A. Patterns in Constitutional Interpretation B. Doctrinal Disharmonies 1. The Expansion of State Sovereign Immunity and Regulatory Takings Doctrines 2. Limits on Federal Commerce Power, Preemption, and the Dormant Commerce Clause 3. Regulatory Fairness: Takings versus Environmental Justice C. Harmonizing Environmental and Constitutional Values 1. The Environment Commerce, and Federal and State Regulatory Authority 2. Returning the Eleventh Amendment to its Textual and Historical Roots 3. Appreciating the Consequences of the Shift from Private to Public Law V. CONCLUSION [T]he Commerce Clause empowers Congress "to regulate commerce" not "ecosystems." The Framers of the Constitution extended that power to Congress, concededly without knowing the word "ecosystems," but certainly knowing as much about the dependence of humans on other species and each of them on the land as any ecologist today. An ecosystem is an ecosystem, and commerce is commerce. (1) Judge David Sentelle, dissenting in NAHB v. Babbitt Ours is the oldest written constitution in the world, but its longevity has everything to do with its flexibility over time. Even on fundamental matters, the meaning of the Constitution's broad guarantees is often quite different, in any given year, from what it was as little as thirty years before. Sometimes the revision occurs through the judiciary,' usually it happens elsewhere. (2) Professor Cass R. Sunstein, University of Chicago The United States Constitution is the oldest written constitution in the world today, having recently celebrated its 215th birthday. While its framers could not have envisioned the enormous changes that have occurred in our economy, society, legal, and political systems, the system of government they created has proven remarkably durable. Our Constitution's durability stems in large part from its ability to adapt to vast social and economic changes that reshape the way "We the people" (3) live, work, and recreate. Environmental concerns are among the forces that have spawned significant changes in our legal system, including the growth of administrative agencies, the creation of comprehensive, national regulatory programs, and the use of citizen suits to ensure implementation and enforcement of the law.

   While most of the world's more youthful constitutions have provisions that expressly address environmental concerns, ours makes no mention of the environment (or "ecosystems," as Judge Sentelle reminds us). (4) Yet this did not pose any insurmountable obstacles to the rapid rise of environmental law during the 1970s and 1980s. Virtually every Congress that convened during the 1970s and 1980s enacted major environmental legislation, usually with broad bipartisan support. Congress created breathtakingly ambitious programs to protect the environment, and the courthouse doors swung open to citizen groups seeking to shepherd the fledgling programs through the halls of the federal bureaucracy.

   More recently, a sharply divided but highly activist United States Supreme Court has been reshaping the landscape of constitutional law. Under the leadership of Chief Justice William H. Rehnquist and Associate justice Antonin Scalia, a 5-4 majority of the justices has significantly altered constitutional notions of state sovereignty, federal authority, separation of powers, and regulatory fairness. The current Court has been one of the most activist in history, striking down federal and state legislation on constitutional grounds. In its last eight terms, the Court has invalidated federal statutes in thirty-two cases, a rate more than three times that of the Warren Court. (5)

   While Congress used to be the primary arena for those seeking to change the environmental laws, today environmental lawyers increasingly turn to the courts. As a result, efforts to protect the environment now confront constitutional challenges at seemingly every turn. These challenges deserve serious attention because of their constitutional dimensions, even if they have not yet substantially altered the fabric of environmental law.

   Too often today the Constitution is viewed only as a product of the latest decisions of the United States Supreme Court. Our understanding of its meaning has become dependent on the complex architecture of case law developing and applying specific doctrines as each new controversy arises. It is useful to step back from this mindset to examine the overall consequences of the Court's decisions for society's ability to protect the environment.

   This Article assesses the implications for environmental law of this changing constitutional landscape. It begins by reviewing constitutional history through the lens of environmental concerns, highlighting some forgotten episodes that provide valuable insights into current controversies. The Article concludes by discussing how to promote greater harmony between environmental values and the concerns on which our current constitutional architecture is founded.

   Harmonization of environmental and constitutional values need not require abrupt change in existing constitutional understandings. The entire enterprise of constitutional interpretation is itself an effort to harmonize tensions between competing, but constitutionally important, interests.

1. THE CONSTITUTION AND THE ENVIRONMENT: AN EARLY HISTORY

   1. The Framers and the Environment

      While the environment is not mentioned in the Constitution, it seems likely that most of the founding fathers had a more intimate knowledge of nature than current political leaders. At its founding, the United States was an agrarian nation whose leaders appreciated the value of land and its importance to a growing economy. The first federal census in 1790 found that less than four percent of the nation's population lived in urban areas. (6) Wilderness existed in such abundance that the new nation had little concern for the environmental consequences of development. Our Constitution's framers never envisioned today's national regulatory programs to protect the environment.

      The founding fathers included students of world history concerned about the forces that contributed to the rise and fall of great nations. The availability of virgin land to accommodate population growth was viewed as an important factor, as historians of the founding era have explained:

      There was a distinct strand in [enlightened thought], to which the Jeffersonians were highly sensitive, that took for granted a kind of cyclical movement from youth to age, and that all civilizations must eventually reach a stage of decline and decay. The problem for political economy was that of prolonging the stage of youthful vigor and making the onset of decay as remote as possible. A master variable, moreover, was assumed to be the pressure of population growth, well before Thomas Malthus produced his celebrated essay on that subject toward the close of the century. A predominately agricultural society was seen as the kind inherently most virtuous, the freest from corruption, the kind best constituted for resisting decay, and the one most to be desired for the American republic. Its growth and expansion, the Virginians believed, should occur across space rather than through time; its vigor might best be retained, its decline postponed, and time thus be thwarted, as long as its surplus population could keep moving into virgin land and as long as such land remained abundant. (7) Thomas Jefferson envisioned a nation of citizen farmers whose agrarian prosperity would promote civic engagement to help facilitate a well-functioning democracy. (8)

      Environmental concerns surfaced only fleetingly in the early days of the republic. In his State of the Union Address of 1797, President John Adams expressed concern about the potential effects a war with France would have on access to the nation's fisheries. (9) But the fledgling nation faced no realistic possibility of exceeding the carrying capacity of nature's bounty, particularly after the Louisiana Purchase opened up seemingly limitless resources to the west. President Thomas Jefferson was...