Environmental Controversies 'Between Two or More States'

122 Pages Posted: 14 Jun 2013 Last revised: 15 Apr 2014

See all articles by Robert Cheren

Robert Cheren

Case Western Reserve University School of Law

Date Written: March 1, 2014


The United States Supreme Court plays a unique and important role in resolving environmental controversies that arise among the several states states and in enforcing environmental compacts formed by the states with the assent of Congress.

The powers of Congress and the states to unilaterally resolve environmental controversies between states are constitutionally limited. But there are two plenary constitutional mechanisms for resolving environmental controversies among the states: (1) litigation under the original jurisdiction of the Supreme Court over controversies between two or more states; and (2) negotiation of compacts between states with Congressional assent that are enforceable against states by Acts of Congress and by states through suits filed in the Supreme Court.

The Supreme Court’s resolution of environmental controversies and enforcement of environmental compacts falls into two categories. First, the Court apportions natural resources among states through federal common law suits and by enforcing resource apportionment compacts. Second, the Court protects state natural resources from inequitable disruption by other states through federal common law suits and by enforcing resource protection compacts. The Court has to date asserted its jurisdiction to apportion territory, water, and fish and to protect navigation, land use, and water. The Court has not yet asserted its jurisdiction to protect air from pollution, but this Article argues that air pollution suits are open to downwind states because the Clean Air Act only displaces actions against emissions from individual sources, not entire states.

Part I outlines the constitutional limitations on resolution of controversies between states through state self-help and unilateral Acts of Congress. Part II outlines the plenary judicial power of the Supreme Court and the plenary legislative power of compacts to resolve environmental controversies between states. Part III recounts the Court’s resolution of environmental controversies between states in resource apportionment and protection suits. Part IV analyzes in detail the Court’s authority under the Constitution to resolve controversies between states by considering the scope of the state controversy jurisdiction, the scope of the Court’s remedial power, and the constitutional determination of the rule of decision in state controversy suits. Part V demonstrates the availability of air pollution protection suits filed in the Supreme Court by downwind states against upwind states for inequitably excessive aggregate state emissions notwithstanding the Clean Air Act’s displacement of suits seeking protection from individual sources of emissions. An Appendix catalogs the ninety-nine state controversy suits properly filed and the thirty-six improper requests for leave to file state controversy suits.

Keywords: environmental law, Supreme Court, federal courts, federalism

Suggested Citation

Cheren, Robert, Environmental Controversies 'Between Two or More States' (March 1, 2014). Pace Environmental Law (PELR) Review, Vol. 31 (2014), Available at SSRN: https://ssrn.com/abstract=2278669

Robert Cheren (Contact Author)

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States

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