New and Emerging Constitutional Theories and the Future of Environmental Protection
Widener University Delaware Law School
September 28, 2010
Environmental Law Reporter, Vol. 40, 2010
Widener Law School Legal Studies Research Paper No. 10-29
This paper is adapted from remarks at the Berkeley/Georgetown/Environmental Law Institute-sponsored symposium on Citizens, Courts and the Constitution, February, 2010. The paper outlines the landscape at the intersection of constitutional and environmental law in general and the political question doctrine in particular. It raises questions that challenge constitutional order as it applies to environmental protection along largely structural dimensions of the horizontal (separation of powers), the vertical (federalism), and the elliptical (individual rights). The paper observes that constitutional issues occupy center stage in federal and state efforts to protect land, air, water, species, and habitat, including most often standing, sovereign immunity, takings and due process, and with increasing frequency, preemption and federalism. It then examines new and emerging issues, such as the use of the General Welfare and Treaty Clauses. It then evaluates recent applications of the political question doctrine to stop judicial review in climate cases involving common law.
Number of Pages in PDF File: 6
Keywords: environmental law, constitutional law, political question doctrine
JEL Classification: K32
Date posted: September 29, 2010
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