Challenges to Environmental Protection in the Courts

Although most major environmental laws have been on the books since the 1970s, these laws continue to be subject to constitutional or other legal challenges. Sometimes attacks on environmental laws are opportunistic, the result of a lawyer making the best available arguments on behalf of a client in a particular case. But these challenges are often strategic, pursued by ideologically motivated anti-regulatory activists or property-rights proponents.

Constitutional challenges are very important. When a court determines that part of an environmental law, or how it is being applied, is unconstitutional, that judgment can be difficult—or even impossible—for Congress to overturn. Nor are harmful precedents limited to environmental protection: constitutional rulings in environmental cases often echo throughout the law, impacting the scope of other federal rights.

ELI has monitored an array of constitutional and other structural challenges to environmental safeguards. The legal claims (and constitutional provisions) on which these challenges are based can be thought of as threatening one or more of the four conceptual "pillars" on which environmental protection in the United States stands. Click on the links below to learn more about these four pillars or the types of legal claims and arguments used to challenge environmental protections.


Pillar #1: National Laws that Establish Minimum Standards to Address Nationwide Environmental Problems

Legal challenges under this pillar include claims that an environmental law, regulation, or agency order:

Violates the Commerce Clause (Art. 1 § 8)

Results in a Fifth Amendment "Taking" of Private Property

Violates the Fifth Amendment Right to Procedural Due Process

Exceeds Tenth Amendment Limitations on Federal Power

Impinges on State Sovereign Immunity under the Eleventh Amendment

Fails Cost-Benefit Analysis


Pillar #2: Cooperative Sharing of Power between the Federal and State Governments

Legal challenges under this pillar include claims that an environmental law or regulation:

Violates Principles of Cooperative Federalism


Pillar #3: Ample Latitude for State and Local Governments to Experiment and Innovate

Legal challenges under this pillar include claims that a state environmental law or regulation:

Is Preempted by Federal Law (Supremacy Clause, Art. VI)

Is Preempted by Federal Foreign Policy Prerogatives

Is an Illegal Interstate Agreement in Violation of the Compact Clause (Art. I § 10)

Violates the Treaty Power (Art. II § 2)

Violates the Dormant Commerce Clause (Art. 1 § 8)

... and claims that a jury award of punitive damages under state law:

Is excessive and violates Fourteenth Amendment Due Process


Pillar #4: Citizen Participation in Environmental Decision-Making and Enforcement

Under this pillar, environmental public interest lawsuits are countered by arguments that:

Plaintiffs lack constitutional "standing" to be heard in federal court (Art. III)

Plaintiffs' claims present political questions that cannot be resolved by federal courts