Bold state and local action, either within the framework of “cooperative federalism” or as a result of purely local initiative, is an essential ingredient for environmental protection. When the federal government fails to lead on critical environmental issues, state innovation and ingenuity can help to fill the vacuum. However, opponents of such efforts to advance environmental protection beyond minimum federal standards often argue that a federal law, or sometimes the mere existence of federal authority, leaves no room for state action:
The Supremacy Clause of the Constitution (Art. VI) establishes federal law as “the supreme Law of the Land.” As a result, inconsistent state laws or regulations are “preempted”—or rendered invalid—by federal law under certain circumstances. The claim of federal preemption is a favored tool of those seeking to avoid state environmental regulations or to defend against state-law claims for environmental damage. Ironically, the same vocal proponents of state and local authority when challenging the reach of federal environmental laws often argue for federal preemption of state environmental initiatives.
Green Mountain Chrysler v. Crombie (2007) - State Efforts to Combat Global Warming (Clean Air Act, Energy Policy and Conservation Act)
California v. General Motors Corp. (2006) - State Efforts to Combat Global Warming (Clean Air Act, Energy Policy and Conservation Act)
Engine Manufacturers Association v. South Coast Air Quality Management District (2004) - Efforts of Los Angeles to Fight Air Pollution (Clean Air Act)
Federal courts may decline to hear cases that raise a “political question” if they determine that the Constitution has committed the issue to another branch of government, that deciding the case would improperly involve the court in politics or policy-making, or that the issue is unsuitable for resolution by judicial methods. As a practical matter, however, a federal court’s refusal to hear certain cases can leave a plaintiff with no remedy for environmental harms.
California v. General Motors Corp. (2006) - State Efforts to Combat Global Warming
Connecticut v. American Electric Power Co. (2005) - State Efforts to Combat Global Warming
The Supreme Court has interpreted Articles I and II of the Constitution to vest authority over U.S. foreign policy exclusively in the federal government. Accordingly, state laws that intrude on the field of foreign affairs, or that result in a clear conflict with an express foreign policy, are preempted under the Supremacy Clause (Art. VI). Invoking this doctrine of foreign policy preemption, opponents of state action on environmental issues with an international dimension (most notably, climate change) increasingly seek to characterize state regulation as an unconstitutional intrusion on the foreign affairs prerogatives of the President and Congress.
Green Mountain Chrysler v. Crombie (2007) - State Efforts to Combat Global Warming
The Constitution renders agreements or compacts among the states subject to approval by Congress (Art. I § 10) and vests in the President, with the advice and consent of the Senate, the power to make treaties (Art. II § 2). Opponents of state-level initiatives to combat national and international problems, such as global warming, have threatened to mount Compact Clause challenges to state attempts to combine forces, as well as Treaty Power challenges to state efforts to work with international partners.
The Regional Greenhouse Gas Initiative (2007) - No Lawsuit Yet Filed
The dormant Commerce Clause doctrine, which prohibits a state from “discriminating” against interstate commerce, is used aggressively to strike down state and local environmental initiatives, such as programs for the management and disposal of solid waste. Originally, this doctrine was merely intended to keep states from engaging in economic protectionism at the expense of their sister states; today, in nearly every instance, the doctrine is asserted as an argument by private companies trying to avoid state regulation.
United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority (2007) - Local Disposal of Solid Waste
The Regional Greenhouse Gas Initiative (2007) - No Lawsuit Yet Filed
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.
Rose Acre Farms, Inc. v. United States (2007) - Public Health Regulations (salmonella)
Brace v. United States (2007) - Clean Water Act
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