Searching for Constitutional Limits on Environmental & Natural Resources Law

Background

Even in its most flattering light, the modern administrative state coexists uneasily with the core constitutional principle that the federal government possesses only limited enumerated powers, while the States and the people retain the remainder. “The Framers could hardly have envisioned today’s vast and varied federal bureaucracy and the authority administrative agencies now hold over our economic, social, and political activities,” as famously observed by Chief Justice Roberts.

Nowhere is our contemporary regulatory apparatus more pervasive than in the realm of environmental and natural resources policy. Several prominent statutes—including the Clean Water Act and the Endangered Species Act—routinely reach intra-state and non-commercial activity lacking any apparent nexus with interstate commerce. The federal government, moreover, exercises absolute power over 30% of all land, including 46% of the contiguous eleven western States and 61% of Alaska.

At some point, the growing tension between the Framers’ design and modern reality must breach the Constitution’s boundaries.

Possible Topics

We seek papers that explore the limits of Congress’s regulatory authority over environmental and natural resources policy. We welcome papers on this topic from numerous perspectives, including:

1. Does the Commerce Clause limit the application of the Clean Water Act, the Endangered Species Act, or any other environmental statute? As an empirical matter, how many federal environmental regimes reach non-commercial and intra-state activity?
2. Rulings in United States v. Lopez and United States v. Morrison reintroduced some constraints on the federal government’s power to regulate interstate commerce. Does the Court’s retrenchment in Gonzales v. Raich condition Lopez and Morrison with respect to environmental law?
3. How much work, if any, can the Necessary and Proper Clause perform in extending Congress’s regulatory reach under the Commerce Clause in environmental law?
4. What is the potential for the constitutional alternatives to the so-called dormant Commerce Clause, such as the Privileges & Immunities Clause or the Import-Export Clause?
5. How should courts interpret Article IV as it relates to environmental policies? What is the relationship between the Commerce Clause and Article IV? How should constitutional structure factor into any reading of Article IV? Does the nondelegation doctrine apply to Article IV?
6. Does the public trust doctrine apply to federal lands, and to the extent it does how should it guide federal land management practices vis-à-vis conservation vs. natural resource extraction?
7. What role does the Tenth Amendment play in environmental and natural resources law? Does the Ninth Amendment have a role to play?
8. To what extent is the constitutionality of ‘cooperative federalism’ regimes, such as those established by the Clean Water Act and the Clean Air Act, an improper assignment of federal permitting authority to state actors? Consideration of this prompt may address the division of responsibility between federal and state governments in these environmental regulatory frameworks, and how that division may raise questions regarding the Supremacy Clause, the separation of powers, and the potential for inconsistent enforcement of federal standards. How should courts balance the need for state flexibility and local expertise with the constitutional requirement for a uniform application of federal laws?
9. Where an agency’s authority under the Commerce Clause is questionable, to what extent may the government justify—or not—environmental regimes under other constitutional authorities, such as the Taxing and Spending Clause?

Research Proposal Submission Details

Please submit a brief research proposal that describes your thesis and how your research will contribute to the legal issues described above.

Proposals should be submitted by August 1 to Will Yeatman at . Early proposal submission is encouraged, as proposals will be reviewed on a rolling basis, and approvals will allow authors to begin work early.