ENVIRONMENTAL REGULATION AND THE CONSTITUTION (Update 2)

While disputes over statutory interpretation and other subconstitutional issues continue to dominate environmental law, in recent years the field of environmental law has been significantly influenced by the Supreme Court's constitutional jurisprudence on federalism, the takings clause of the Fifth Amendment, and Article III standing. Taken together, these constitutional developments may signal a period of retrenchment and decentralization in environmental regulation. The Court's renewed concern for state sovereignty and property rights, and its resistance to liberal standing principles for "private attorneys general" are noticeable departures from past trends. At a minimum, it is clear that constitutional issues now loom larger than ever in environmental law.

In a series of split decisions, the rehnquist court has tightened the constraints on Congress's authority to direct state institutions or impose upon state resources. In new york v. united states (1992), the Court invalidated the "take title" provision of the Low-Level Radioactive Waste Act Amendments of 1985 as violative of the tenth amendment prohibition on "commandeering" state legislatures. The offending section specified that a state or regional compact that fails to provide for the disposal of all internally generated waste by a particular date must, upon the request of the waste's generator or owner, take title to, and possession of, the waste. In New York, the Court clarified the relationship between the commerce clause and the Tenth Amendment, holding that even where Congress exercises its legitimate commerce clause authority, the method it chooses must not run afoul of the Tenth Amendment. Relying on New York, the Court in Printz v. United States (1997) held unconstitutional provisions that imposed on state law enforcement officers a duty to investigate the eligibility of would-be gun purchasers. The Court held that the Tenth Amendment forbids the commandeering of state executive officers just as it does the conscription of state legislatures in the service of federal regulatory objectives.

In united states v. lÓpez (1995), the Court invalidated as insufficiently related to interstate commerce a federal statute criminalizing handgun possession near schools. For the first time in over fifty years, the Court explicitly limited Congress's commerce clause authority, raising potential questions about the extent of federal environmental power. In still another important case for state sovereignty, Seminole Tribe v. Florida (1996), the Court held that Congress cannot abrogate states' eleventh amendment immunity from suit in federal court pursuant to its Article I powers.

After Seminole, claims for damages against states or state agencies for liability pursuant to federal environmental statutes were to be adjudicated in state courts unless a state waived its immunity from suit in federal court. However, in the 1998–1999 term, the Supreme Court further curbed federal authority over states in three controversial 5–4 rulings. Most significantly for environmental law, the Court held in Alden v. Maine (1999) that Congress lacks the power under Article I to subject non-consenting states to private suits for damages in state courts for violations of federal law. Still available post-Alden are private suits in both state and federal court seeking injunctive relief against state officers for ongoing violations of law under the ex parte young (1908) exception to sovereign immunity. The effect of Alden on environmental law remains an open question. Injunctive relief rather than penalties tends to be the most important feature of private actions against states for violations of federal environmental law, making the continued availability of injunctive relief in such private actions important. Alden may significantly impair private cost–recovery suits against states for remediation of hazardous waste sites under the federal superfund law, however. Of course, the federal government itself may still seek damages in both state and federal courts for state violations of federal law.

The revival of a states' rights vision of federalism and the imposition of constraints on federal power has significant implications for environmental law. Most federal environmental statutes passed since 1970 extend Congress's reach into historically local matters and rely heavily on the states for implementation and administration, an approach to regulation known as "cooperative federalism." These statutes contain a range of measures designed to induce state cooperation—measures that invite closer constitutional scrutiny in the wake of the Court's federalism jurisprudence. Following López, several federal courts have entertained commerce clause challenges to major environmental statutes such as the Endangered Species Act, the Clean Water Act, and the Comprehensive Environmental Response, Compensation and Recovery Act. To date, however, these challenges have been mostly unsuccessful. Following New York, federal courts have struck down a number of statutory provisions for conscripting state governments to administer federal programs in violation of the Tenth Amendment.

Still, although federal courts have repudiated the most obvious examples of federal commandeering, nonetheless they seem prepared to tolerate the liberal use of Congress's taxing and spending power in "inducing" state cooperation. For example, in Virginia v. Browner (1996), the U.S. Court of Appeals for the Fourth Circuit rejected a challenge to the Clean Air Act's sanction provisions, which allow the Environmental Protection Agency (EPA) to withhold federal highway funds and impose other measures on noncomplying states. The Court upheld the provisions as "inducements," as opposed to "outright coercion." The question remains whether imposing conditions on a state's receipt of federal funds can ever rise to the level of coercion. While the revival of federalism symbolically undermines the strong federal role in environmental regulation, perhaps the federalism cases portend less a judicial brake on federal environmental regulation than a warning to the federal government to be careful in crafting state inducements.

Over the last decade, the Court has also ventured further into land use regulation. Building upon its holding in Nollan v. California Coastal Commission (1987), the Court in dolan v. tigard (1994) invalidated an exaction requiring a landowner to provide a public greenway in exchange for a permit to build a parking lot adjacent to her plumbing and electrical supply store. The Court held that in addition to a "sufficient nexus" between the regulated use and the proposed exaction, there must be a "rough proportionality" between the two. The exaction in Dolan failed to meet the latter criterion, thus violating the takings clause of the fourteenth amendment. Taken together, Nollan and Dolan threaten to chill local land use regulation.

In lucas v. south carolina coastal council (1992), the Court invalidated South Carolina's Beachfront Management Act as an unconstitutional taking of private property, as applied to a particular landowner. The impugned legislation forbade development of beachfront property on the barrier island beach where Lucas had, prior to the act's passage, purchased an empty lot. The trial court had held that the act's prohibition on development reduced the value of Lucas's land to nothing, a finding left undisturbed on appeal. The Court held that state regulatory statutes that reduce land value to nothing are unconstitutional takings unless the proposed restrictions are part of the landowner's title to begin with, consonant with background common law nuisance or property principles. Of particular interest is the Court's decision in Eastern Enterprises v. Apfel (1998), in which a plurality opined that severe, disproportionate, and extremely retroactive liability in the form of economic regulation may amount to an unconstitutional taking. The trend in takings law may constrict the ability of federal and state governments to impose environmentally protective regulation on private property without paying substantial costs.

The Rehnquist Court has also retreated from the liberal standing principles that helped to open the administrative process to citizen participation over the last several decades. In lujan v. defenders of wildlife (1992), the Court denied standing to a national environmental organization suing under the citizen suit provision of the Endangered Species Act. The plaintiffs challenged the exemption of overseas projects from a rule requiring that federal agencies consult with the U.S. Department of the Interior to minimize the effect of their projects on endangered species. The plaintiffs alleged that their own personal and professional interests in endangered species would be harmed by federally funded development projects. In denying standing, the Court held that the plaintiffs' injuries were not sufficiently "imminent" to establish the Article III standing requirement of injury in fact, nor, according to a plurality, would those injuries be redressable by a favorable court decision. While in many cases the more stringent "imminence" requirement will merely require plaintiffs to be more precise in alleging injury, the redressability requirement, which forces plaintiffs to demonstrate that a favorable decision would in fact alleviate the harm, is less easily rectified and may result in the dismissal of some cases if adopted by a majority of the Court in the future. The Court acknowledged in Lujan that its holding made standing "substantially more difficult" to achieve when the plaintiff is not herself the object of government action. At this writing, the Court has granted certiorari on a case—Friends of the Earth, Inc. v. Laidlaw Environmental Services—that will clarify the stringency of the redressability requirement.

In coming years, the due process clause may be a fertile source of constitutional jurisprudence relevant to environmental law. Due process issues to watch include the imposition of caps on punitive damage awards in toxic contamination suits; the definition of knowledge and fault requirements for environmental crimes; environmental justice challenges to federal and state environmental laws that disproportionately burden minorities with environmental risk; and the retrospective imposition of strict liability on defendants in toxic tort suits.

Jody Freeman
(2000)