Constitutional Law: 2007 Year in Review

Abstract

The U.S. Constitution provides both the authority for, and the limitations of, governmental efforts respecting environment, energy, and natural resources. We have entered an interesting constitutional era, one in which a rising sea level will help to buoy a rising tide of climate litigation, the leading edge of which lies constitutional jurisprudence as applied to standing, the Commerce Clause, the political question doctrine, preemption, federalism, due process, and takings. In 2007, environmental litigation involves either state action (e.g., to regulate greenhouse gas emissions from new motor vehicles or require climate-friendly energy production), or state causes of action (e.g., public or private nuisance). Among the battleground issues are: the extent to which Congress may regulate use of private property under the Endangered Species Act (ESA) as a last gasp effort to save rare plants and animals from extinction; pollutant discharges into water bodies that are not traditionally navigable, or activities that cause or contribute to climate change; and whether states may restrict destructive development, emissions of greenhouse gases; or the import and export of wastes that might denude or degrade natural resources; or provide causes of action for those harmed by releases of hazardous chemicals; and otherwise turn to federal courts to enforce federal natural resource and environmental laws.

Keywords: environmental law, constitutional law

JEL Classification: K32