This Essay addresses the question: "have environmental statutes and regulations gone too far?" There are three ways to think about this question. First, does the current manifestation of environmental regulation exceed the scope and intent of the enacting Congress? Second, does the current environmental regulatory regime extend too far into state sovereignty? That is, has the federal government usurped state authority to regulate in this area? And finally, even if the first two questions are answered in the negative, does federal environmental regulation curb private property rights in ways that are untenable or unlawful?
Let me set the stage for my response to each of these questions. I am the voice of debate here--the liberal in this symposium, the self-professed environmentalist, and the environmental plaintiffs' lawyer--so it will not come as a surprise to you that my answer to each of these questions is "No." Let me explain why.
I began teaching environmental law more than twenty years ago, and it is now the case that my students usually are too young to personally recollect the era that is often referred to as the "Environmental Revolution"--or even know much about the state of the world, legally and physically, at the time of that revolution. The Environmental Revolution in the United States occurred in the late 1960s and early 1970s. (1) During the Nixon administration--that is, with a Republican President and slim Democratic majorities in the House and Senate--we saw the enactment of all the major statutes that today govern federal-state and federal-private relations with respect to the environment. (2)
The National Environmental Policy Act (3) was enacted in 1970, and that same year extensive Clean Air Act amendments (4) revamped the Clean Air Act (5) and set most of its current structure. Of course, it was amended pretty significantly in 1990, (6) but major structural portions of it were set in place in 1970. In 1972, substantial amendments (7) were made to the Federal Water Pollution Control Act, (8) which is what we now think of as the Clean Water Act. And, in 1973, the Endangered Species Act was passed. (9) Those laws marked a dramatic revolution in the role of the federal government with respect to environmental protection.
So, if we want to know whether the current implementation of those statutes goes beyond what those Congresses intended and what the Republican President signed into law, we have to ask ourselves: "What problems motivated this environmental revolution and what powers did Congress think it had in its arsenal to direct toward those problems?"
In the years leading up to the Environmental Revolution, the public bore witness to environmental crises with increasing frequency. In the 1950s, 1960s, and 1970s, major urban rivers would regularly catch fire. (10) They were, in effect, simply channels for industrial waste, untreated sewage, large garbage, and other sorts of commercial waste." All of these things were dumped into rivers, to stagnate there or to flow downstream into a lake or the ocean. (12)
A contemporaneous description of the Cuyahoga River, which runs through Cleveland, states: "[T]he lower Cuyahoga River ... is a waste treatment lagoon. At times, the river is choked with debris, oils, scums, and floating globs of organic sludges. Foul smelling gases can be seen rising from decomposing materials on the river's bottom." (13) An errant spark could easily ignite the surfaces of such a river, causing a spectacular river fire.
The nation's air was similarly polluted. In the 1950s and 1960s, major air pollution episodes sent thousands of people to the hospital, literally gasping for breath. Los Angeles, for example, was plagued by daily smog alerts that killed hundreds of people and sent thousands to the hospital. (14)
The consequences of human development were also threatening the very existence of other species. Some very salient species, mostly birds, were simply dying off because of the unconstrained use of certain pesticides, which was making their eggshells too thin for them to reproduce. (15) So when Rachel Carson wrote about DDT in Silent Spring, (16) it was perceived to be the big environmental issue of the day--the climate change of that era. (17)
That is what the physical world was like in the years leading up to the Environmental Revolution. But what was the legal world in which Congress was operating? This may come as a shock, but in the early 1970s there were perceived to be virtually no--and I mean no--Commerce Clause restrictions on the scope of federal power to address problems of national significance relating, however indirectly, to interstate commerce. For the fifty years preceding Lopez, the conventional wisdom was that the Commerce Clause was not so much a limited, enumerated power but rather a grant of plenary authority to Congress. (18) So Congress thought at the time of the Environmental Revolution that it had expansive authority to adopt any laws necessary and proper for addressing the health and welfare problems resulting from uncontrolled interstate pollution.
The Environmental Revolution also preceded the development of modern standing law. Before the Environmental Revolution and the development of the health-and-welfare administrative state there "was no distinctive body of standing doctrine." (19) Rather, standing depended on whether Congress had created a legal right and a concomitant cause of action. (20) Thus, when it passed legislation during the Environmental Revolution, Congress was not aware that the Court would articulate minimum constitutional requirements for standing and apply those to limit the reach of citizen's suit provisions. (21)
So what did Congress...