A Jurisprudence of Ideology

Environmental Forum, Vol. 24, p. 22, 2007

6 Pages Posted: 7 Aug 2009  

James May

Widener University Delaware Law School

Robert L. Glicksman

George Washington University - Law School

Date Written: January 1, 2007

Abstract

Chief Justice Rehnquist figures prominently in recent historic environmental case law addressed by the Supreme Court. Although generally critical of federal environmental laws, the skepticism stemmed from an interest in the protection of state rights and protection of private property rights rather than a general challenge to federal regulation. His jurisprudence reflects three “guideposts” to consider environmental concerns: limiting the scope of federal power, protecting state sovereignty from encroachment by the federal government, and protecting the rights of private property owners against intrusions resulting from regulation by government. In limiting the scope of federal power, Rehnquist specifically supported limitations on congressional authority to legislate under the Commerce Clause and supported the expansion of the non-delegation doctrine which vests all legislative powers in Congress. Looking to the language of environmental statutes, he often interpreted these narrowly which led to a rejection of implied private rights of action. Under the third guidepost, protecting private property rights, he typically interpreted environmental statutes narrowly. This resulted in a conclusion that state efforts to protect land and resources constituted regulatory takings, compensable by the government to private landowners.

Keywords: environmental law, supreme court, rehnquist

JEL Classification: K32

Suggested Citation

May, James and Glicksman, Robert L., A Jurisprudence of Ideology (January 1, 2007). Environmental Forum, Vol. 24, p. 22, 2007. Available at SSRN: https://ssrn.com/abstract=1444048

James May (Contact Author)

Widener University Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
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

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