Justice Rehnquist and the Dismantling of Environmental Law

32 Pages Posted: 29 Apr 2008

See all articles by James R. May

James R. May

Widener University Delaware Law School; SJ Quinney College of Law, University of Utah

Robert L. Glicksman

George Washington University - Law School

Date Written: August 1, 2006


Chief Justice William H. Rehnquist was uniquely situated to have a profound impact on the development of federal environmental law - both because of the overlap of his tenure with the development of the field of environmental law and because of his four-decade tenure on the U.S. Supreme Court, more than one-half of which was as Chief Justice. Before his death on September 3, 2005, Rehnquist heard the vast majority of the Court`s environmental cases during the modern environmental era, penning opinions in 25% of them, and affording him an opportunity to shape environmental law, especially during its formative years, that no Justice is likely to match. This Article discusses how Justice (and then Chief Justice) Rehnquist interpreted federal constitutional and public law in the opinions he wrote in environmental cases. It concludes that Rehnquist`s environmental opinions reflect a three tiered agenda. First, if a case involved a constitutional or statutory property rights question, Justice Rehnquist almost always chose to protect property rights over competing environmental concerns. Second, in the absence of a property rights issue, Rehnquist almost always decided cases so as to protect state sovereignty, sometimes but not invariably with pro-environmental results. Third, in cases lacking a property rights or state sovereignty component, he almost always decided them in a way that curtailed federal power, and with it, the effectiveness of environmental law. The Article, which is part of a larger ongoing study of Justice Rehnquist`s environmental law jurisprudence, explores the extent to which Justice Rehnquist's three-tiered approach has already weakened environmental law and whether that approach is likely to contribute to further diminishment of effective environmental protection under the pollution control and natural resource management legislation in the future.

Suggested Citation

May, James and Glicksman, Robert L., Justice Rehnquist and the Dismantling of Environmental Law (August 1, 2006). Environmental Law Reporter, Vol. 36, 2006, Widener Law School Legal Studies Research Paper No. 08-25, Available at SSRN: https://ssrn.com/abstract=1101790

James May (Contact Author)

Widener University Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States

SJ Quinney College of Law, University of Utah ( email )

332 South 1400 East
Salt Lake City, UT 84112
United States

Robert L. Glicksman

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-4641 (Phone)

HOME PAGE: http://www.law.gwu.edu/Faculty/profile.aspx?id=16085

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics