New and Emerging Constitutional Theories and the Future of Environmental Protection

6 Pages Posted: 29 Sep 2010

See all articles by James May

James May

Widener University Delaware Law School

Date Written: September 28, 2010


This paper is adapted from remarks at the Berkeley/Georgetown/Environmental Law Institute-sponsored symposium on Citizens, Courts and the Constitution, February, 2010. The paper outlines the landscape at the intersection of constitutional and environmental law in general and the political question doctrine in particular. It raises questions that challenge constitutional order as it applies to environmental protection along largely structural dimensions of the horizontal (separation of powers), the vertical (federalism), and the elliptical (individual rights). The paper observes that constitutional issues occupy center stage in federal and state efforts to protect land, air, water, species, and habitat, including most often standing, sovereign immunity, takings and due process, and with increasing frequency, preemption and federalism. It then examines new and emerging issues, such as the use of the General Welfare and Treaty Clauses. It then evaluates recent applications of the political question doctrine to stop judicial review in climate cases involving common law.

Keywords: environmental law, constitutional law, political question doctrine

JEL Classification: K32

Suggested Citation

May, James, New and Emerging Constitutional Theories and the Future of Environmental Protection (September 28, 2010). Environmental Law Reporter, Vol. 40, 2010; Widener Law School Legal Studies Research Paper No. 10-29. Available at SSRN:

James May (Contact Author)

Widener University Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States

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