Environmental protection demands strong federal laws that establish enforceable minimum standards to address interstate or nationwide problems. These laws safeguard natural resources (such as clean air, water, and endangered species), and protect people and their environment from potentially harmful substances (such as pesticides, toxics, and hazardous wastes) or the impacts of certain activities (such as mining, waste disposal, and major government projects). Although most national environmental laws date to the 1970s and earlier, anti-regulatory activists continue to attack their reach and validity:
Congress’ constitutional power to “regulate Commerce . . . among the several States” (Art. I § 8) has long been the legal basis for comprehensive environmental legislation. In recent years, however, venerable environmental laws have been challenged as exceeding Congress’ Commerce power. Once viewed as a discredited argument—no Commerce Clause challenge was successful in any area of law from 1937 until 1995—the Commerce Clause is once again a weapon of choice for anti-regulatory activists attacking federal environmental law.
Alabama-Tombigbee Rivers Coalition v. Norton (2007) - Endangered Species Act
Solid Waste Agency of Northern Cook County (SWANCC) v. US Army Corps of Engineers (2001) - Clean Water Act
Property-rights advocates often argue that environmental, public health, and land-use regulations at all levels of government result in “regulatory takings” that require compensation under the Fifth Amendment—an argument that essentially equates government regulation to a physical seizure of their land or other property. Resolving these claims usually requires courts to balance an individual’s private property interests against the broader public interest. At its extreme, regulatory takings doctrine requires the government to pay individuals for following the law and can, as a result, render reasonable, long-standing regulations prohibitively expensive to implement.
Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection (2010) - Protection of Beaches from Storms and Erosion
Rose Acre Farms, Inc. v. United States (2009) - Public Health Regulations (salmonella)
Brace v. United States (2007) - Clean Water Act
Casitas Municipal Water District v. United States (2008) - Endangered Species Act
The Fifth Amendment of the Constitution contains a Due Process Clause providing that no person may be “deprived of life, liberty, or property, without due process of law.” In its simplest terms, the “process” that is “due” consists of adequate notice to the person facing the potential deprivation, together with a meaningful opportunity to be heard and defend one’s interests. Pursuant to a nineteenth-century Supreme Court decision, corporations enjoy constitutional due process rights just like “natural persons” (i.e., human beings) do. Courts have held this short clause to apply to a wide variety of government actions in a great many circumstances—including situations where regulatory agencies, like the EPA, are enforcing environmental laws. The ultimate question is how much, and what kind, of process is needed in any given instance. Ensuring that people are treated fairly by the government is of course critical, but overly lengthy and complex procedures can impose such high costs that government agencies are hindered in their ability to protect the environment.
General Electric Co. v. Jackson – Comprehensive Environmental Response, Compensation, and Liability Act (Superfund)
The Tenth Amendment provides that powers not granted to the federal government by the Constitution are reserved to the States, or to the “people.” Long believed to represent nothing more than a truism, this doctrine has been resuscitated by opponents of federal regulation. Today, the Tenth Amendment argument is used to characterize federal environmental regulation as impinging on “traditional areas of state and local authority,” such as land use or public health. Another line of cases has revived the Tenth Amendment argument to hold that it is unconstitutional for federal agencies to “commandeer” state resources and officials to implement federal law.
New York v. United States (1992) - Low Level Radioactive Waste Policy Amendments Act of 1985
Under the Eleventh Amendment, “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State.” Over time, courts have transformed this language into a sweeping doctrine of state “sovereign immunity,” unmoored from the Constitution’s text, and in recent years, a conservative bloc of the Supreme Court has further expanded states’ immunity from private lawsuits. In the environmental context, this has led to near-total immunity of state agencies from citizen suits under the federal coal-mining statute; to similar challenges (so far unsuccessful) to citizen litigation under the Clean Air Act and the Endangered Species Act; and to dismissal of state employees’ whistleblower complaints under the Solid Waste Disposal Act and other laws.
Bragg v. West Virginia Coal Association (2001) - Surface Mining Control and Reclamation Act
Rhode Island Department of Environmental Management v. United States (2002) - Solid Waste Disposal Act
Allowing Cost-Benefit Analysis to Undermine National Standards
Cost-benefit analysis (CBA) is a formal method of decision-making based on measuring and comparing the costs and benefits of various options. Agencies like the EPA sometimes rely on CBA in determining the “best” level of environmental protection. Although CBA is simply one tool among many that may be available to regulators, it can be ill-suited to environmental and public health matters. It requires a common “currency,” thus both costs and benefits are usually expressed in monetary terms. But what is the dollar value of a rare or endangered species? How much should one be compensated to forego an experience in a remote wilderness area slated for clear-cut? Even beyond these objections, critics of CBA point to its tendency to undervalue less tangible or long-term benefits, such as cleaner air or statistically lower death rates. With its emphasis on economic efficiency, CBA tends to favor regulatory options that are easiest for the private sector to bear in the short-term, rather than what is best for the environment, or even required by the law. In particular, CBA can pose a structural threat to democratically-enacted environmental laws when courts defer to agencies’ reliance on CBA despite evidence that Congress never intended its use.
Entergy v. Riverkeeper (2009) – Clean Water Act’s “Best Technology Available” standard
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