Trends in Constitutional Environmental Law

Trends: ABA Section of Environment, Energy and Resources Newsletter, Vol. 37, No. 4, 2006

2 Pages Posted: 10 Oct 2010 Last revised: 23 Jan 2011

See all articles by James May

James May

Widener University Delaware Law School

Date Written: March 1, 2006


This article is about the growing field at the intersection of environmental and constitutional law. Thirty years ago, constitutional issues rarely arose in environmental law. Nowadays, nearly two in three federal environmental, energy and land use cases are decided on constitutional grounds invoking no fewer than 18 issues. These include the extent to which Congress can regulate activities that are either traditionally intrastate or not inherently economic in nature (the Commerce Clause), preempt state causes of action (Supremacy Clause), and prescribe state functions (10th Amendment) or subject them to federal actions (11th Amendment). Other issues include whether states can burden interstate commerce (Dormant Commerce Clause) or must compensate for regulatory "takings" (5th and 14th Amendments); or whether citizens may enforce environmental laws (Take Care and Case and Controversy Clauses). Constitutional environmental law is emerging at the state and international levels. Two dozen states have constitutional provisions that address environmental matters. One hundred and thirty countries have constitutions that address its nation's environment, 70 of which provide individuals with some degree of what might be called "fundamental" rights to a "clean," "healthful" or "favorable" environment. The intersection of constitutional and environmental law also influences real estate, land use, administrative, torts, civil procedure, workplace safety, tax and international law. Transition in the Supreme Court makes it all the more likely the Constitution will continue to play an essential role in environmental law in areas involving congressional authority, federalism, property rights and limits on judicial review.

Keywords: environmental law, constitutional law

JEL Classification: K32

Suggested Citation

May, James, Trends in Constitutional Environmental Law (March 1, 2006). Trends: ABA Section of Environment, Energy and Resources Newsletter, Vol. 37, No. 4, 2006. 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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