New and Emerging Constitutional Theories and the Future of Environmental Protection

• Date: 01 October 2010

10-2010 NEWS & ANALYSIS 40 ELR 10989

I

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®, http://www.eli.org, 1-800-433-5120.