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Commerce in the Commons: A Unified Theory of Natural Capital Regulation Under the Commerce Clause


Blake Hudson


LSU Law Center; LSU School of the Coast and Environment

May 31, 2011

Harvard Environmental Law Review, Vol. 35, No. 2, 2011
Stetson University College of Law Research Paper No. 2010-07

Abstract:     
Scholars continue to debate the scope of Congress’s Commerce Clause authority and whether fluctuations in the U.S. Supreme Court’s Commerce Clause jurisprudence place federal environmental regulatory authority at risk. Yet when one analyzes major Commerce Clause cases involving resource regulation since the beginning of the modern regulatory state, a consistent theme emerges: both the Supreme Court and Circuit Courts of Appeal have consistently upheld federal authority to regulate depletable natural resources, the appropriation of which is non-excludable - key characteristics of a commons. Commerce Clause jurisprudence can be interpreted as treating appropriation of this natural capital, here described as “privatized commons resources,” as fundamentally meeting the third test for determining the validity of federal legislation under the Commerce Clause - the “substantial effects” test. Using commons analysis to meet the substantial effects test has the potential to provide a unified justification for federal environmental regulatory authority under the Commerce Clause, a clearer statement of the jurisprudential approach in environmental cases, and more certainty and effectiveness in environmental and natural resources legislation. Commons analysis also assists in answering persistent questions arising in Commerce Clause cases, including when the “aggregation” principle may be invoked to find substantial effects on interstate commerce, what the “object of regulation” is in environmental Commerce Clause cases, and what is the proper scope of federal Commerce Clause authority given constitutional federalism limitations..

Number of Pages in PDF File: 57

Keywords: Tragedy of the Commons, Commerce Clause, Substantial Effects, Interstate Commerce, Federalism

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Date posted: August 24, 2010 ; Last revised: November 1, 2011

Suggested Citation

Hudson, Blake, Commerce in the Commons: A Unified Theory of Natural Capital Regulation Under the Commerce Clause (May 31, 2011). Harvard Environmental Law Review, Vol. 35, No. 2, 2011; Stetson University College of Law Research Paper No. 2010-07. Available at SSRN: http://ssrn.com/abstract=1663838

Contact Information

Blake Hudson (Contact Author)
LSU Law Center ( email )
440 Law Center Building
Baton Rouge, LA 70803
United States
LSU School of the Coast and Environment ( email )
Baton Rouge, LA
United States
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