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
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
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