The Intersection of Constitutional Law and Environmental Litigation

The Intersection of Constitutional
Law and Environmental Litigation
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.
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
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-

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