Pillar #1: National Laws that Establish Minimum Standards to Address Nationwide Environmental Problems
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.
Types of legal claims that can threaten environmental protection under this pillar:
Commerce Clause Challenges to Congressional Authority
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 again in vogue as a ground for attacks on federal environmental law. For more on the Commerce Clause and environmental protection, watch this excerpt from "Intent: Searching for Meaning in the Constitution," an ETS Pictures documentary featuring an interview with former ELI President Leslie Carothers.
Fifth Amendment Claims that Regulations Cause a "Taking" of Private Property
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 environmental regulations prohibitively expensive to implement.
Fifth Amendment Claims that Government Orders Violate Procedural Due Process
The Fifth Amendment of the Constitution contains a Due Process Clause providing that no person may be "deprived of life, liberty, or property, without due process of law." In its simplest terms, the "process" that is "due" consists of adequate notice to the person facing the potential deprivation, together with a meaningful opportunity to be heard and defend one's interests. Pursuant to a nineteenth-century Supreme Court decision, corporations enjoy constitutional due process rights just like "natural persons" (i.e., human beings) do. Courts have held this short clause to apply to a wide variety of government actions in a great many circumstances—including situations where regulatory agencies like EPA are administering and enforcing environmental laws. The ultimate question is how much, and what kind, of process is needed in any given instance. Ensuring that people are treated fairly by the government is of course critical, but overly lengthy and complex procedures can impose such high costs that government agencies are hindered in their ability to protect the environment.
Claims that the Tenth Amendment Limits Federal Power
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. 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.
Arguments that States Enjoy Eleventh Amendment Sovereign Immunity
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, 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.
Claims that National Standards Fail Cost-Benefit Analysis
Cost-benefit analysis (CBA) is a formal method of decision-making based on measuring and comparing the costs and benefits of various options. Agencies like EPA sometimes rely on CBA in determining the "best" level of environmental protection. Although CBA is simply one tool among many that may be available to regulators, it can be ill-suited to environmental and public health matters. It requires a common "currency," so both costs and benefits are usually expressed in monetary terms. But what is the dollar value of a rare or endangered species? How much should one be compensated to forego an experience in a remote wilderness area slated for clear-cut? Even beyond these objections, critics of CBA point to its tendency to undervalue less tangible or long-term benefits, such as cleaner air or statistically lower death rates. With its emphasis on economic efficiency, CBA tends to favor regulatory options that are easiest for the private sector to bear in the short term, rather than what is best for the environment, or even required by the law. In particular, CBA can pose a structural threat to democratically enacted environmental laws when courts defer to agencies' reliance on CBA despite evidence that Congress never intended its use.
Pillar #2: Cooperative Sharing of Power between the Federal and State Governments
Federalism refers to the proper allocation of authority between the national, or "federal," government, on one hand, and its state, local, and regional counterparts, on the other. Congress often opts to share responsibility for environmental protection with the states—for instance, states may assume the power to implement and enforce permit programs, or they may choose to administer concurrent programs under state law, still subject to federal oversight. The resulting balance of power under this "cooperative federalism" model is complex, but federal-state partnerships have proven durable and effective in combating environmental degradation. However, anti-regulatory proponents and even some states themselves—often invoking the rhetoric of "states' rights"—continue to attempt to narrow the federal oversight role and to lower standards and enforcement beneath the floor established by federal law.
Pillar #3: Ample Latitude for State and Local Governments to Experiment and Innovate
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 durable 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.
Types of legal claims that can threaten environmental protection under this pillar:
Claims that State Law is Broadly Preempted by Federal Law
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. 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.
Arguments that State Action Is Preempted by Federal Foreign Policy Prerogatives
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. 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.
Claims that the Compact Clause or Treaty Power Bars State Action
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 climate change, 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.
Claims that State Law Fails under the "Dormant" Commerce Clause
The dormant Commerce Clause doctrine, which prohibits a state from "discriminating" against interstate commerce, can be used to strike down state and local environmental initiatives, such as programs for the management and disposal of solid waste. Originally, this doctrine was 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.
Arguments for Judge-Made Limitations on Juries' Punitive Damage Awards for Environmental Injury under State Law
Suing polluters for money damages under tort law is among the oldest remedies available to victims of environmental harm, and the availability of punitive damages in appropriate cases serves as both a deterrent to wrongdoing and a means of punishing reprehensible conduct. But the Supreme Court has ruled generally that when a state jury award of punitive damages is "grossly excessive," a defendant's Fourteenth Amendment due process rights are violated. The trend is now toward federal courts capping state punitive damages awards, based on judges' application of a numerical ratio of punitive damages to compensatory damages. The Supreme Court appeared to ratify this trend when it decided, under federal maritime law, to reduce punitive damages in the notorious Exxon Valdez case from $2.5 billion to $0.5 billion. In dissent, Justice Ruth Bader Ginsburg asked whether the Court was "signaling that any ratio higher than 1:1 will be held to exceed 'the constitutional outer limit?'"
The establishment of constitutional caps on state jury awards removes a potentially powerful deterrent to corporate misbehavior—which is a troubling development with respect to classes of business activities, such as natural resource extraction (e.g., oil production), where a high level of care is necessary to avoid environmental damage.
Pillar #4: Citizen Participation in Environmental Decision-Making and Enforcement
Active citizen involvement is the lifeblood of environmental protection. By engaging in government decision-making processes and, when necessary, bringing lawsuits against violators, citizens, environmental organizations, and state agencies serve a critical watchdog role that agencies may lack the resources or the political will to play. This is as Congress intended: many national environmental laws contain "citizen suit" provisions that expressly grant citizens the right to sue not only violators, but also government officials, to ensure compliance with the law. Citizen action, and even the threat of it, by way of citizen suits and under other legal theories can compel federal regulators to perform their legal duties.
Citizens and environmental organizations bringing lawsuits to vindicate environmental rights may encounter the following obstacles under this pillar:
Arguments that Citizens Lack "Standing" to Be in Federal Court
A standard move made by defendants in environmental lawsuits is to challenge the plaintiff's "standing" to sue—that is, the plaintiff's right to be in court. Article III of the Constitution, by its terms, allows federal courts to decide only "cases or controversies." From this simple foundation, the Supreme Court has over the years developed a substantial body of legal doctrine for assessing when plaintiffs may have access to the federal courts. The Court interprets the Constitution to require that a plaintiff demonstrate three "irreducible" elements of standing:
(1) An "Injury in Fact" — meaning that the plaintiff has suffered a harm that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical;
(2) "Causation" — the plaintiff's injury must be fairly traceable to the challenged action of the defendant; and
(3) "Redressability" — meaning that it is likely, and not merely speculative, that the plaintiff's injury will be redressed by a favorable decision from the court.
These requirements have nothing to do with the merits of a plaintiff's case—rather, a plaintiff must satisfy them simply to be heard in a federal court. And if the court determines at any point in the proceedings—from the time a case is filed until all appeals have been exhausted—that a plaintiff fails to satisfy any aspect of standing, the court must dismiss the case for lack of jurisdiction. (In addition to these constitutional standing requirements, courts also apply so-called prudential standing tests to determine, for example, whether an environmental organization may properly represent the interests of its members, or whether a plaintiff's claimed injury falls within the "zone of interests" protected by the particular law at issue.)
A typical standing challenge in an environmental case argues that the plaintiff has failed to meet one or more of the three elements of constitutional standing: injury in fact, causation, or redressability. Currently, there is a great deal of dispute over what is required to demonstrate injury in fact where the plaintiff is claiming that the defendant's action has resulted in an increased likelihood of harm. Another area of contention involves "procedural injuries." Citizens can file suits challenging irregular procedures or demanding access to environmental information or data. The Court has held, however, that a citizen's "procedural injury" does not in itself constitute an "injury in fact."
Courts and commentators typically defend standing requirements as a proper means of ensuring that the judiciary is limited to its intended constitutional role, especially with respect to separation of powers among the three branches of federal government. Regardless, modern standing doctrine goes far beyond ensuring that parties to a case have truly adverse interests and creates very real financial and legal hurdles for every plaintiff seeking to be heard in federal court.
Claims that Political Question Doctrine Prohibits Federal Court from Hearing the Case
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.