The Constitution, the Environment, and the Prospect of Enhanced Executive Power

Date01 October 2010
The Constitution, the
Environment, and the Prospect
of Enhanced Executive Power
by Robert L. Glicksman
Robert L. Glicksman is the J.B. & Maurice C. Shapiro Professor of Environmental Law, e George Washington University Law School.
judicial invocation of the “unitary executive” theory to restrict
congressional oversight of agency implementation of environ-
mental laws. Although I focus on the impact of the unitary
executive theory on the constitutionality of independent agen-
cies, I also briey address the theory’s eect on presidential
control of the exercise of agency discretion provided by statu-
tory delegations of authority to agencies with environmental
protection responsibilities. ese two aspects of the separation
of powers to date have been of relatively minor importance
to environmental law. Increased reliance by the courts on the
Take Care Clause to limit standing and on the unitary execu-
tive theory to loosen congressional control over the exercise of
delegated authority to administrative agencies, however, has
the potential to reshape environmental law in some potentially
far-reaching ways.
I. The Take Care Clause as a Restriction on
Standing to Sue
A. Judicial Review, Constraints on Agency Discretion,
and the Separation of Powers
Congress has entrusted the responsibility to implement the
nation’s environmental statutes in agencies such as the U.S.
Environmental Protection Agency (EPA) and the U.S. Depart-
ment of the Interior (DOI). Because members of Congress
typically are unable to develop the expertise needed to master
the intricacies of the technical and policy aspects of environ-
mental law, much of that legislation is necessarily general. e
statutes often aord considerable discretion to the agencies to
determine how best to achieve broadly stated statutory goals
such as achieving air quality standards that are “requisite to
protect the public health”3 or “water quality which provides for
the protection and propagation of sh, shellsh, and wildlife
and provides for recreation in and on the water.4e breadth
of discretion vested in the agencies creates ample opportunities
for agencies to stray both from the broad, overall congressional
Environmental law poses many intriguing questions
of constitutional law, including issues involving sep-
aration of powers. Separation-of-powers questions
stemming from environmental law disputes have aected
signicantly the allocation of authority among the three
branches of the federal government to determine the appro-
priate degree of restrictions to place on government and pri-
vate conduct with the potential to harm the environment.
e implications of judicial resolution of constitutional issues
in environmental disputes are not conned to the environ-
mental law arena, however. In some area s, such as the law
governing standing to sue in federal court, environmental
cases dominate the constitutional landscape, establishing
landmark precedents that then apply to myriad other areas
of law.1 In other cases, separation-of-powers jurisprudence
outside the arena of environmental law has the potential to
alter the ways in which the government adopts and imple-
ments environmental law.
is Article addresses two aspects of the separation of
powers that have the potential to enhance the powers of the
executive branch of the federal government vis-à-vis the U.S.
Congress and the courts in the implementation of environmen-
tal legislation. First, I address the role of the Take Care Clause
of Article II2 in restricting standing to sue in cases involving
environmental law issues. Second, I address the potential for
1. See, e.g., Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 40 ELR
20167 (2010); Summers v. Earth Island Inst., 129 S. Ct. 1142, 39 ELR 20047
(2009); Massachusetts v. EPA, 549 U.S. 497, 37 ELR 20075 (2007); Vt.
Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 30 ELR
20622 (2000); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 30 ELR 20246 (2000); Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 28 ELR 20434 (1998); Bennett v. Spear, 520 U.S. 154, 27 ELR
20824 (1997); Lujan v. Defenders of Wildlife, 504 U.S. 555, 22 ELR 20913
(1992); Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 20 ELR 20962 (1990);
Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 8 ELR
20545 (1978); United States. v. Students Challenging Regulatory Agency Pro-
cedures (SCRAP), 412 U.S. 669 (1973); Sierra Club v. Morton, 405 U.S. 727,
2 ELR 20192 (1972).
2. U.S. C. art. II, §3.
input, and to Andres Gil, J.D., Class of 2010, e George Washington
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®,, 1-800-433-5120.

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