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

• Date: 01 October 2010

40 ELR 11002 ENVIRONMENTAL LAW REPORTER 10-2010

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.”4 e breadth

of discretion vested in the agencies creates ample opportunities

for agencies to stray both from the broad, overall congressional

3. 42 U.S.C. §7409(b)(1).

4. 33 U.S.C. §1251(a)(2).

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



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