A QUICK OVERVIEW OF CONSTITTUTIONAL ENVIRONMENTAL LAW ISSUES IN THE UNITED STATES

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1 A QUICK OVERVIEW OF CONSTITTUTIONAL ENVIRONMENTAL LAW ISSUES IN THE UNITED STATES 2012 Environmental, Energy and Resources Law Summit Canadian Bar Association Conference, Vancouver, April 26-27, 2012 Robin Kundis Craig ** I. FEDERAL CONSTITUTIONAL AUTHORITY TO REGULATE ENVIRONMENTAL ISSUES The federal government in the United States is, constitutionally, a government of limited and enumerated constitutional powers. Moreover, neither the Executive Branch nor Congress has been given explicit authority to regulate environmental issues. Therefore, federal authority to legislate and regulate in the environmental and natural resource arena derives from a variety of Congress s enumerated powers. A. Interstate Commerce Clause Under Article I, 8, cl. 3 of the U.S. Constitution, Congress has the authority [t]o regulate commerce with foreign nations, and among the several states, and with the Indian tribes. This provision underlies most of the federal pollution control statutes (Clean Air Act, Clean Water Act, Resource Conservation and Recovery Act (RCRA), Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and so forth), based on the interstate commerce impacts of unregulated pollution, and some natural resources statutes, such as the Endangered Species Act. The Interstate Commerce Clause also give Congress nearly plenary authority to address issues affecting traditionally navigable waters, fresh or salt, and Native American Tribes and tribal trust lands ( Indian country ). Until 1995, the Interstate Commerce Clause was viewed as imposing few limitations on Congress s regulatory authority. In 1995, however, the U.S. Supreme Court decided United States v. Lopez, 514 U.S. 549 (1995), invalidating federal legislation on Commerce Clause grounds for the first time in decades. Lopez-like federalism challenges have since been leveled at many federal environmental and natural resources statutes, generally unsuccessfully. These challenges have been most important for the Endangered Species Act and the Clean Water Act, especially the latter: the Supreme Court has now twice indicated that extension of the Clean Water Act to most intrastate waterways exceeds Congress s Commerce Clause authority, and the exact scope of the Clean Water Act s coverage is still being ** Through May 31, 2012: Attorneys Title Professor of Law and Associate Dean for Environmental Programs, Florida State University College of Law, Tallahassee, FL. From July 1, 2012: Professor of Law, University of Utah S.J. Quinney College of Law, Salt Lake City, UT. 1

2 worked out in the wake of these decisions. The Interstate Commerce Clause also has a dormant interpretation: The U.S. Supreme Court has declared that the Commerce Clause restricts states in discriminating against interstate commerce. In the environmental law arena, these restrictions have been most forceful in prohibiting states from discriminating against out-of-state waste, because waste is deemed an article of commerce. Less frequently, the dormant Commerce Clause has limited states ability to prevent their water and species resources from leaving the state. With respect to the relevant balancing of state and federal authority, the most important constitutional balance to the Interstate Commerce Clause is the Tenth Amendment. The Tenth Amendment states that [t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. In the U.S. Supreme Court s interpretation, the Tenth Amendment prohibits the federal government from commandeering state law and law enforcement to serve federal purposes or from usurping traditional state functions, such as the regulation of physicians. In the environmental arena, pollution control regulation generally withstands Tenth Amendment scrutiny, while land use regulation has been deemed the province of the states, although these lines can become blurry. In addition, the Supreme Court invalidated provisions of the Low-Level Radioactive Waste Policy Act that would have forced states to take title to this waste if it failed to provide for proper disposal of it. New York v. United States, 505 U.S. 144 (1992). B. Property Clause The Property Clause of the U.S. Constitution provides that "Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." U.S. Const., Art. IV, 3, cl. 2. This clause gives Congress comprehensive authority to protect, regulate, use, and dispose of any lands owned by the federal government, including submerged lands. C. Treaty Power/Clause The federal government of the United States has the exclusive authority to enter treaties on behalf of the United States, and these are considered, with the U.S. Constitution and federal statutes, the supreme law of the land. U.S. Const., Art. II, 2, cl. 2; U.S. Const., Art. VI, cl. 2. Congress can use this authority to implement treaties domestically. In the natural resources arena, the U.S. Supreme Court upheld this treaty authority with respect to the Migratory Bird Treaty Act in Missouri v. Holland, 252 U.S. 416 (1920). The treaty power also undergirds many other treaty-specific federal statutes, such as the Whaling Convention Act and the London Convention 2

3 aspects of the Marine Protection, Research, and Sanctuaries Act, as well as many provisions of the Endangered Species Act, which implements several species-related treaties in the United States, especially the Convention on International Trade of Endangered Species of Fauna and Flora. D. Necessary and Proper Clause Article I, Section 8 of the U.S. Constitution gives Congress that authority "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or any Department or Officer thereof. This clause expands Congress s enumerated powers and reinforces its authority to makes laws needed for the rational implementation of the federal government s authorities. For example, Congress s authority to enact statutes to implement treaties domestically rests heavily on the Necessary and Proper Clause. E. Spending Clause Under Article I, 8, cl. 1, Congress has the authority to spend federal money, and it can use this money to bribe states into complying with federal policies even where Congress would lack the authority to impose a requirement unilaterally. The Spending Clause has been invoked in a number of cooperative federalism schemes in federal environmental and natural resources statutes (Clean Water Act, Coastal Zone Management Act, RCRA), often by providing grants and technical support to states that enact legislation or plans that meet federal environmental standards. The Spending Clause can also be used as a threat. For example, under the Clean Air Act, Congress threatened to withdraw federal highway funding from states that remain in significant non-compliance with National Ambient Air Quality Standards. II. ACCESS TO FEDERAL COURTS AND ENVIRONMENTAL CITIZEN SUITS Enforcement of federal environmental and natural resources statutes by the federal government poses no issues regarding access to the federal courts. However, many of these statutes also include citizen suit provisions, through which Congress sought to permit citizens, environmental organizations, and the states to bring their own suits against persons and entities who are violating those statutes. In addition, most citizen suit provisions allow persons and states to sue the responsible federal agency for failure to comply with its nondiscretionary duties under a particular statute. Citizen suits raise a number of constitutional issues regarding the plaintiffs abilities to bring their lawsuits in federal courts. 3

4 A. Standing Standing in federal court is one of the most litigated issues in American environmental and natural resources law. Under Article III, 2, the federal courts are empowered to hear only Cases and Controversies that is, live legal battles between opponents with real stakes in the outcome. As one consequence of this limitation, for example, the U.S. Supreme Court declared early in the United States history that the federal courts could not render advisory opinions. The standing requirement is another interpretive consequence of the Case or Controversy limitation. According to the U.S. Supreme Court s most influential statement of the standing requirement: our cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an injury in fact an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical[]. Second, there must be a causal connection between the injury and the conduct complained of the injury has to be fairly... trace[able] to the challenged action of the defendant, and not... th[e] result [of] the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. The party invoking federal jurisdiction bears the burden of establishing these elements. Since they are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation. Lujan v. Defenders of Wildlife, 504 U.S. 555, (1992) (citations omitted). Most types of litigation do not raise significant standing issues. As a result, because environmental and natural resources citizen suits raise public interest claims, all but a handful of the U.S. Supreme Court s significant standing decisions have arisen in the context of environmental and natural resources litigation. NOTE: The federal standing limitations are particular to the federal courts. While some states have adopted similar standing requirements for their courts, others have eliminated or substantially lessened standing requirements for public interest lawsuits. 4

5 B. Federal Sovereign Immunity The United States government inherited from England the doctrine of sovereign immunity that is, the sovereign cannot be sued without its permission. This is considered a penumbral constitutional right of the federal government. Thus, if a citizen wants to sue the United States, he or she needs to find a statutory waiver of the federal government s sovereign immunity. Such waivers are construed strictly and in favor of the federal government. Most federal pollution control statutes explicitly subject federal facilities to their requirements ( federal facilities provisions ). In addition, most federal environmental statutes have citizen suit provisions that explicitly allow persons to sue the United States. These two types of provisions generally operation as waivers of the federal government s sovereign immunity although not without limitation. See U.S. Department of Energy v. Ohio, 503 U.S. 607 (1992). C. State Sovereign Immunity The Eleventh Amendment to the U.S. Constitution operates as a jurisdictional limit on the federal courts, stating that [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, or by Citizens or Subjects of any Foreign State. Through U.S. Supreme Court interpretation, the Eleventh Amendment shields states from any citizen s lawsuit in the federal courts although the federal government remains free to sue states. Through some constitutional provisions, notably the post-civil War amendments to the Constitution (Amendments 13 through 15), Congress can forcibly waive states sovereign immunity. However, in 1996, the Supreme Court determined that Congress can not forcibly waive states immunity through the Interstate Commerce Clause. Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). As a result, environmental citizen suit provisions cannot function as viable waivers of the states Eleventh Amendment sovereign immunity. III. CONSTITUTIONAL PROTECTIONS IN THE IMPLEMENTATION OF ENVIRONMENTAL AND NATURAL RESOURCE LAW In most respects, the implementation of environmental and natural resources law does not differ significantly from the normal constitutional principles that apply in criminal and administrative law in the United States. Criminal defendants are entitled to all of the normal protections afforded by the Fourth, Fifth, and Sixth Amendments. In civil actions, the right to a jury trial is governed by 5

6 the Seventh Amendment, which generally allows for a jury when the defendant is subject to fines or civil penalties. The Due Process Clauses of the Fifth and Fourteenth Amendments ensure basic procedural fairness to defendants facing a potential loss of property or liberty interests although, in most cases, the procedures required under administrative law or in the courts afford defendants far greater procedural rights and protections. Finally, the nondelegation doctrine one of the doctrines reconciling the U.S. Constitution with a growing administrative state requires that Congress subject federal agencies to standards for implementing their authority. One particularly interesting aspect of constitutional protections in the United States are the Takings Clauses of the Fifth (for the federal government) and the Fourteenth (for state or municipal governments) Amendments. These clauses prohibit the government from taking private property for public use without just compensation. While these clauses clearly apply when the government exercises its eminent domain authority, they can also apply to laws and regulations that effectively deprive property owners of all or a significant portion of the use or value of their property the regulatory takings doctrine. The U.S. Supreme Court summarized the three flavors of its takings jurisprudence in 2002 as follows: When the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner, regardless of whether the interest that is taken constitutes an entire parcel or merely a part thereof. Thus, compensation is mandated when a leasehold is taken and the government occupies the property for its own purposes, even though that use is temporary. Similarly, when the government appropriates part of a rooftop in order to provide cable TV access for apartment tenants, or when its planes use private airspace to approach a government airport, = it is required to pay for that share no matter how small. But a government regulation that merely prohibits landlords from evicting = tenants unwilling to pay a higher rent; that bans certain private uses of a portion of an owner's property; or that forbids the private use of certain airspace, does not constitute a categorical taking. The first category of cases requires courts to apply a clear rule; the second necessarily entails complex factual assessments of the purposes and economic effects of government actions. * * * The categorical rule that we applied in Lucas states that compensation is required when a regulation deprives an owner of all economically beneficial uses of his land. Under that rule, a statute that wholly eliminated the value of Lucas' fee simple title clearly qualified as a taking. But our holding was limited to the extraordinary 6

7 circumstance when no productive or economically beneficial use of land is permitted. The emphasis on the word no in the text of the opinion was, in effect, reiterated in a footnote explaining that the categorical rule would not apply if the diminution in value were 95% instead of 100%. Anything less than a complete elimination of value, or a total loss, the Court acknowledged, would require the kind of analysis applied in Penn Central. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, , 330 (2002). 7

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