Why Everyone Should Care About Constitutional Attacks on Environmental Laws

Environmental law works. Over more than three decades, an impressive body of legislation has been enacted through bipartisan efforts in Congress, signed by both Democratic and Republican presidents, upheld by the courts, and continuously supported by a large majority of the American people. Drafted by Congress but cooperatively implemented by both the federal and state governments, these laws are responsible for improving the quality of the air we breathe, the water we drink, and the land we inhabit.

But the passage of any environmental law marks the beginning of a story, not the end. Every important environmental law or initiative must run a gauntlet of court challenges aimed at weakening or overturning it. These challenges almost always include a claim that the law, or efforts to enforce it, are unconstitutional.

When a court rules that part of an environmental law, or the way that it gets applied, is unconstitutional, that judgment can be difficult—or even impossible—for Congress to overturn. Nor are harmful precedents limited to environmental protection: bad rulings in environmental cases often echo throughout the law, impacting the scope of other federal rights.

Sometimes constitutional attacks on environmental laws are simply opportunistic, the result of a lawyer making the best available arguments on behalf of a client in a particular case. Increasingly, however, these challenges are strategic, pursued by ideologically-motivated anti-regulatory activists or property-rights proponents. And today, following six years of Bush Administration judicial appointments, the federal judiciary is arguably more receptive to constitutional challenges to environmental laws than at any other time in nearly a century.