May 12, 2003

The New Judicial Activism: Consequences for Environmental Protection and Beyond

"… [A] large number of federal statutes have been thrown into constitutional doubt. Several environmental statutes are in constitutional trouble."
-— Professor Cass R. Sunstein, University of Chicago Law School

The rise in conservative judicial activism evidenced by some recent federal court decisions is contributing to new public awareness of the role and importance of the federal judiciary. Today, activist federal judges are striking down or otherwise narrowing the scope of national laws that protect the environment and civil rights. At the same time, a revolution in federalism jurisprudence is leading courts to rule in a variety of new contexts that states are immune from suit in federal court, even in the face of existing violations of federal law. In the environmental field, recent decisions in the federal courts have dramatically curtailed the reach of the Clean Water Act over many surface waters, including wetlands; given a green light to devastating mountain-top removal mining practices; and heightened standing requirements for environmental plaintiffs.

On May 12, 2003, ELI inaugurated its Environmental Law Legacy Seminar Series, which convenes legal scholars and practitioners to explore recent and pending constitutional law decisions applicable to environmental law, and the consequences of emerging legal trends for environmental protection. Professor Cass R. Sunstein (University of Chicago Law School) and John H. Turner (Vice-President, Environmental Law Institute) discussed the nature of the new conservative judicial activism and its implications for the values protected by federal laws at a seminar at the University of Chicago Law School. The event was co-sponsored by the University of Chicago Law School Chapter of the American Constitution Society and the Environmental Law Society of the University of Chicago Law School.