The Scope of Congressional Authority to Protect the Environment

Date01 October 2010
10-2010 NEWS & ANALYSIS 40 ELR 10977
The Scope of Congressional Authority
to Protect the Environment
Bruce Myers, (Moderator) Senior Attorney, Environmental
Law Institute
William W. Buzbee, Emory Law School
Wm. Robert Ir vin, Senior Vice President for Conservation
Programs, Defenders of Wildlife
Michael W. Evans, K&L Gates LLP
Bruce Myers: I’m fortunate to be moderating a panel with
three very distinguished experts. Bob Irvin is Senior Vice
President for Conservation Programs with Defenders of
Wildlife here in Washington, D.C. Bob leads Defenders’
Conservation Programs, including eld conservation, con-
servation policy, international conservation, a nd litigation.
Prior to joining Defenders, Bob held a range of posts at
major environmental nongovernmental organizations and in
the federal government, including ser vice a s senior counsel
for sh and wildlife on the Majority Sta of the U.S. Sen-
ate Committee on Environment and Public Works. Bob has
written and lectured extensively on biodiversity conserva-
tion issues. He also teaches at Vermont Law School and has
taught at the University of Maryland Law School.
Prof. Bill Buzbee is with the Emory University School of
Law in Atlanta. Professor Buzbee directs the Emory Environ-
mental and Natural Resources Law Program a nd the Emory
Center on Federalism and Intersystemic Governance. Profes-
sor Buzbee’s scholarship covers environmental law, adminis-
trative law, and other public law topics, with his most recent
publications focusing on regulatory federalism and design
issues. He has served as a visiting professor at Columbia
University and at Cornell University, a mong other institu-
tions. He launched Emory’s Environmental Law Clinic, and
he also is a founding member of the Center for Progressive
Reform. Professor Buzbee has been recognized for both his
legal scholarship and his teaching, and he has testied before
the U.S. C ongress and its committees about environmental
and federalism issues.
Mike Evans is a partner at K&L Gates and is based in
Washington, D.C. Mike’s practice concentrates on legisla-
tion, including environmental and tax legislation, and he’s
published articles over the past several years regarding vari-
ous aspects of legislative process. Mike previously worked
for 18 years in the U.S. Senate. During this t ime, he served
as chief counsel to two Senate committees, including eight
years as chief counsel or Democratic chief counsel to the
Senate Environment and Public Works Committee (EPW).
At the EPW, Mike worked extensively on a wide range of
environmental laws, including the Clean Water Act (CWA),1
the Endangered Species Act (ESA),2 the Comprehensive
Environmental Response, Compensation, and Liability Act
(CERCLA),3 and the Clean Air Act (CAA).4
As you wi ll remember from college, high school, School-
house Rock cartoons, or whatever the case may be, our gov-
ernment is one of limited power, so Congress has to have
some constitutional hook, some kind of basis to act. ere is
nothing that jumps out as a clear environmental hook in the
U.S. Constitution. But, of course, there are enumerated pow-
ers that Congress has found and used for this purpose—and
perhaps others it may be able to use.
Interstate commerce regulation is based on the Commerce
Clause, which is the Article I, §8 power of Congress to regu-
late commerce among the several states. is is the founda-
tion of the pantheon of modern environmental laws. It is also
where there has been recent action in the courts. We may well
see more action in the near future. But I also want to take a
moment to mention another provision, Congress’ Article I, §8
authority to make all laws that shall be necessary and proper
for carrying into execution Congress’ other powers, including
the Commerce Clause. is is a critical constitutional provi-
sion, as it creates exibility for Congress to deploy the means it
sees t to get the job done. And there are other constitutional
hooks we’ll touch on during today’s discussion.
I want to mention briey the two other signicant catego-
ries of players we should be thinking about as we have this
congressional power conversation. e rst, of course, is the
states. e Tenth A mendment to the Constitution tells us
that “[t]he powers not delegated to the United States by the
Constitution, nor prohibited by it to the states, are reserved to
the states respectively, or to the people.” We’ve got a Supreme
Court decision in 1941 that says that this is a truism, that it
doesn’t really tell us anything.5 And there is a comment in a
footnote in a 1988 case that in fact uses the Tenth Amend-
ment as shorthand for “any implied constitutional limitation
on Congress’ authority to regu late state ac tivities, whether
grounded in the Tenth Amendment itself or in principles of
federalism derived general ly from the Constitution.6 is
tension between state and federal regulatory authority per-
meates the conversation about our environmental laws, and
this is true both in the legal arena—as federa l courts review
1. 33 U.S.C. §§1251-1387, ELR S. FWPCA §§101-607.
2. 16 U.S.C. §§1531-1544, ELR S. ESA §§2-18.
3. 42 U.S.C. §§9601-9675, ELR S. CERCLA §§101-405.
4. 42 U.S.C. §§7401-7671q, ELR S. CAA §§101-618.
5. United States v. Darby, 312 U.S. 100, 124 (1941).
6. South Carolina v. Baker, 485 U.S. 505, 511 n.5 (1988).
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®,, 1-800-433-5120.

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