The Intersection of Constitutional Law and Environmental Litigation

• Pages: 359-396

CHAPTER 8

359

The Intersection of Constitutional

Law and Environmental Litigation

JAMES R. MAY*

The U.S. Constitution propels the majority of environmental liti-

gation. Thirty years ago, constitutional issues seldom arose in en-

vironmental law. Nowadays, generally two out of three federal

environmental, energy, and land-use cases are litigated on consti-

tutional grounds. Such cases implicate approximately 20 constitu-

tional principles involving federalism, separation of powers, and

individual rights.

Constitutional issues in environmental litigation are torn from

the headlines: Is it constitutional for a cash-poor municipality to

condemn historic homes or environmentally important wetlands for

economic development? Does the Constitution permit Congress to

regulate the destruction of isolated, nonnavigable wetlands? Does it

forbid farmers from fencing their property because it might upset

the mating patterns of a “hapless” endangered toad? Does the Con-

stitution allow states to restrict the importation of waste from an-

other state or to prohibit single-hull oil tankers or coal-burning power

plants? Does it allow states to sue auto and energy makers or the

federal government about climate change? Nearly every federal

environmental case seems to implicate rich and interesting issues

under the U.S. Constitution.

This chapter aims to contextualize constitutional litigation for

environmental lawyers in five ways. Section I provides a brief back-

ground to environmental litigation in the United States. Section II

* The author thanks Robin Craig and Cary Perlman for their comments to a

draft of this chapter, and Patrick Clary for assistance with updating endnotes.

360 CHAPTER 8

addresses how constitutional limits on judicial review influence en-

vironmental litigation, including Article III on constitutional stand-

ing and the political question doctrine. Section III examines

constitutional limits on Congress’s authority to enact environmental

laws, principally under the Commerce and General Welfare Clauses.

Section IV explains how constitutional principles of federalism in-

fluence environmental litigation, including the Tenth Amendment,

Eleventh Amendment, and the Supremacy, Dormant Commerce,

Treaty, and Compact Clauses. And, finally, Section V discusses the

impact that constitutional jurisprudence addressing individual rights

has on environmental litigation, including the Takings, Due Pro-

cess, and Equal Protection Clauses and the First Amendment.

Ultimately, this chapter concludes that constitutional law and

environmental litigation are inextricably intertwined. Environmen-

tal lawyers in the twenty-first century need to expand their expertise

in statutory and regulatory law to include the constitutional features

of judicial review, congressional authority, federalism, and individual

rights.

I. A Brief Background of Constitutional Law

in Modern Environmental Litigation

The U.S. Constitution all but ignores environmental concerns. It was

crafted to address separation of powers, federalism, and civil liber-

ties. The same lack of attention to the environment holds for the

Declaration of Independence and the Federalist Papers. Simply, the

framers had more pressing matters on their agenda. Jefferson? Reli-

gious freedom and natural rights. Madison? States’ rights and indi-

vidual freedoms. Adams? Strong federal authority. Hamilton? Str ong

federal authority and a national bank. Paine? Common sense and

human rights. Also foremost was the desire to protect individuals

against the tyranny of centralized power, and to guarantee religious

and associational freedom, due process, and protection against un-

just criminal proceedings, and to reserve states’ rights not otherwise

withheld or reserved by Congress. Accordingly, outside of

Jeffersonian notions of an independent, democratic, agrarian soci-

ety, there was no Lorax; no one, as it were, spoke for the trees. In

1789, what we would recognize as modern environmentalism and

environmental litigation were nearly 200 years away.

Intersection of Constitutional Law and Environmental Litigation 361

As the country grew, so did the prospects for environmental

litigation. The country has grown to 20 times its original size. Presi-

dent Jefferson purchased the Louisiana Territory from Napoleon.

Other Presidents acquired coastal lands south and far west from Spain.

Texas was annexed following its initial cessation from Mexico. The

Missouri Compromise added to the nation’s interior. Alaska was

purchased from Russia. Hawaii was occupied and acquired, as were

other territories. The Constitution stretched and grew, too, address-

ing social issues from the vestiges of slavery to individual rights.

By and large, however, the Constitution did not stretch to ad-

dress environmental concerns. Because of the lack of a textual predi-

cate, environmental concerns were left off the constitutional

landscape. Litigants had little success spinning environmental dross

from the document’s yarn. For example, courts regularly have re-

jected environmental claims rooted in substantive due process and

the Ninth Amendment.1 As Professor Richard J. Lazarus explains,

by the 1960s, the public demanded governmental environmental

policies, and the modern environmental movement was born.2 Since

1969, Congress has enacted 30 laws to address pollution, conserva-

tion, energy, and federal land management policy. Most of these

laws have produced requirements enforceable by federal and state

regulators and citizens, with most applying to state action. Many

states have followed suit with environmental, energy, and natural

resources laws of their own.

These federal and state laws have engendered a cottage indus-

try of environmental litigation, much of which explores constitu-

tional contours. Constitutional issues affect environmental laws at

the federal, state, and individual level. At the federal level, constitu-

tional jurisprudence is a central feature in most environmental liti-

gation, including issues of standing, the Commerce, Supremacy,

and Treaty Clauses, the political question doctrine, federalism, sepa-

ration of powers, procedural and substantive due process, and tak-

ings. Some of these issues test the federal government’s

environmental regulatory power. Examples include the extent to

which Congress may regulate the use of private property under the

Endangered Species Act (ESA), pollutant discharges into water bod-

ies that are not traditionally navigable, or activities that cause or

contribute to climate change. Others explore the limits of state regu-

latory authority. Examples include whether states may restrict de-