New and Emerging Constitutional Theories and the Future of Environmental Protection

Date01 October 2010
10-2010 NEWS & ANALYSIS 40 ELR 10989
am honored to moderate and participate in today’s panel,
“New and Emerging Constitutional eories and the
Future of Environmental Protection.” My charge is to
introduce our esteemed pa nel speakers, a nd then to provide
preliminary remark s outlining the landscape at the intersec-
tion of constitutional and environmental law in general a nd
the political question doctrine in particular. My role is largely
provocateur. In short, I’m to raise questions that challenge
constitutional order as it applies to environmental protection.
Constitutionalism and constitutional law have unavoid-
able, ineluctable impacts on the elds of environmental,
natural resources, and energy law, and these elds in turn
shape constitutional law. e Constitution sets the boundar-
ies for federal and state authority to exploit or protect natu-
ral resources and the environment. At t he federal level, this
includes dening the extent to which Congress may conserve
rare species or regulate pollutant releases from mineral extrac-
tions on private property. Constitutional questions likewise
infuse state actions designed to control the precursors of cli-
mate change or the interstate movement of energy, carbon
allowances, natural resources, and wastes. Many states in the
United States and national constitutions across the globe also
explicitly address environmental concerns.
Accordingly, constitutional issues occupy center stage in
federal and state eorts to protect land, air, water, species,
and habitat,1 perhaps fueled by the U.S. Supreme Court’s
ambivalence about environmental protection.2 Indeed, from
2005–2010, more than 50 percent of the nearly 400 federal
cases yielding a reported decision involving environmental,
natural resources or energy law and policy turned on a con-
stitutional question, including most often standing, sover-
1. See generally Robert V. Percival, “Greening” the Constitution—Harmonizing
Environmental and Constitutional Values,” 32 E. L. 809, 840 (2002).
2. See Richard J. Lazarus, Restoring What’s Environmental About Environmental
Law in the Supreme Court, 47 UCLA L. R. 703, 749-52 (2000).
eign immunity, takings and due process, and with increasing
frequency, political question, preemption and federalism.3
Prior panels addressed many of the current developments
regarding congressional and state constitutional authority to
address environmental matters, including climate change,
and judicial authority and capacity to engage environmen-
tal law, including legislative, executive and judicial authority,
takings and standing. We are here to discuss novel, dormant
and emerging constitutional issues t hat could become more
prevalent. We will proceed along largely structural dimen-
sions of the horizontal (separation of powers), the vertical
(federalism), and the elliptical (individual rights).
Our panelists—Dan Farber, Rob Glicksman, and Doug
Kysar—need no introduction. Each will oer importa nt
insights into trends and transformations at the intersection of
these two very important elds.
To t the occasion, you’ll observe that I’m wearing a U.S.
Constitution necktie, which I purchased in the Constitution
shop at the National Constitution Center in Philadelphia.
Not often does a speaker have occa sion to adorn a tie that is
so, ahem, tting.
An event for disquisition on sartorial splendor this is not,
so on to t he metaphor. e Constitution necktie is to me
what constitutional law is to environmental law. It represents
a tting commentary on how constitutional and environ-
mental law blend, or don’t. It has fancy words, is made from
imported material, and looks impressive, nearly elegant. And
it’s well-tied, if I do say so myself. For the most part, it gets
the job done. But does it really match my earth-green (natu-
rally) shirt? Okay, maybe not, but you try to nd a shirt that
matches a busy, bought-in-a-tourist-trap t ie. Like the Con-
stitution, it can be distracting, can be hard to match, doesn’t
t every occasion, and stays the same. But neckt ies are still
3. Research conducted with “Lexis Focus Search,” searching “Environment and
Natural Resource and Energy,” date restricted to “previous 5 years.” Within
these cases, an additional search was conducted using the search terms “Envi-
ronment and Natural Resource and Energy” along with the particular consti-
tutional issue “and [constitutional issue].” For instance, to search 11th amend-
ment issues, “Environment and Natural Resource and Energy and eleventh
amendment” was used. Of the results, cases were examined individually to
conrm the constitutional issue. Last searched August 1, 2010.
Author’s Note: is essay is adapted from Professor May’s remarks,
as amended to reect current developments. e assistance of Will
Romanowicz, J.D. class of 2012, George Washington University, with
citations is noted with gratitude.
New and Emerging Constitutional
Theories and the Future of
Environmental Protection
by James R. May
James R. May is Professor of Law and H. Albert Young Fellow in Constitutional Law, Widener University.
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®,, 1-800-433-5120.

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