The Environmental Commerce Clause

79 Pages Posted: 26 Sep 2008 Last revised: 24 Nov 2008

See all articles by Christine A. Klein

Christine A. Klein

University of Florida Levin College of Law

Date Written: 2003


In 1995, the U.S. Supreme Court shocked the legal community when it constrained the scope of the affirmative commerce power of Congress in United States v. Lopez. The Court further narrowed the view of federal commerce authority in two subsequent opinions, which together require that when Congress seeks to regulate a wholly intrastate activity on the basis of its substantial effects upon interstate commerce, the activities themselves must be economic or commercial in nature. In contrast to the contracting scope of the affirmative commerce clause, the Court had begun to expand the dormant commerce clause. This article analyzes the relationship between the affirmative and dormant aspects of the commerce clause, and their effect on the federal regulation of natural resources-an inquiry this article labels the "environmental commerce clause." This study supports two principal conclusions. First, the modern Court has been consistently hostile to environmental regulation. Second, there exists a subtle inconsistency between the Court's affirmative and dormant clause analyses.

Keywords: United States v. Lopez, commerce clause, affirmative commerce clause, dormant commerce clause, environmental commerce clause, environmental regulation

Suggested Citation

Klein, Christine A., The Environmental Commerce Clause (2003). Harvard Environmental Law Review, Vol. 21, No. 1, 2003, Available at SSRN:

Christine A. Klein (Contact Author)

University of Florida Levin College of Law ( email )

SW 2nd Ave at SW 25th Street
Gainesville, FL 32611
United States

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