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http://ssrn.com/abstract=690827
 
 

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Judicial Federalism and The Future of Federal Environmental Regulation


Jonathan H. Adler


Case Western Reserve University School of Law; PERC - Property and Environment Research Center


Iowa Law Review, Vol. 90, No. 2, p. 377, 2005

Abstract:     
This article assesses the current and likely impact of the Supreme Court's federalism cases on federal environmental regulation. As a result of this assessment, the article seeks to make four points: (1) Thus far, the Supreme Court's federalism cases have had a limited impact on federal regulation, as federal courts have not used these cases as a basis for limiting the reach of federal regulatory authority. (2) Notwithstanding this limited impact, the underlying logic of the Supreme Court's cases does pose a challenge for federal regulation, particularly in the Commerce Clause context. (3) The thrust of the federalism cases makes it likely that the Supreme Court will revisit the constitutional limitations on the Spending Clause, and this could have a substantial impact on federal environmental regulation, as some federal environmental provisions exceed even the highly deferential Spending Clause standard outlined in South Dakota v. Dole. (4) Judicially enforced limitations on federal regulatory authority do not necessarily translate into limitations on environmental protection. The federal government will retain substantial - although not unlimited - authority to advance environmental protection. Where federal authority is constrained, state and local governments and non-governmental entities will retrain their ability to address many environmental concerns.

Number of Pages in PDF File: 98

Keywords: federalism, environmental protection

JEL Classification: H1, H77, K32, Q2

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Date posted: April 15, 2005  

Suggested Citation

Adler, Jonathan H., Judicial Federalism and The Future of Federal Environmental Regulation. Iowa Law Review, Vol. 90, No. 2, p. 377, 2005. Available at SSRN: http://ssrn.com/abstract=690827

Contact Information

Jonathan H. Adler (Contact Author)
Case Western Reserve University School of Law ( email )
11075 East Boulevard
Cleveland, OH 44106-7148
United States
216-368-2535 (Phone)
216-368-2086 (Fax)
HOME PAGE: http://www.jhadler.net
PERC - Property and Environment Research Center
2048 Analysis Drive
Suite A
Bozeman, MT 59718
United States

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