Right Environmentalism: Repurposing Conservative Constitutionalism

35 Pages Posted: 14 Sep 2018  

Michael Allan Wolf

University of Florida - Fredric G. Levin College of Law

Date Written: August 24, 2018

Abstract

The new normal of environmental law will likely feature reduced enforcement of existing federal environmental statutes, elimination of federal regulations deemed anti-business, slashed funding for climate change response programs, and state preemption of local sustainability initiatives. Attorneys representing environmental interests will be “bringing a knife to a gunfight” should they continue to attack such stalwart principles of conservative jurisprudence as federalism, textualism, and originalism, or to seek the reversal of strong precedents that narrow standing, limit the reach of the Commerce and Necessary and Proper Clauses, and expand the scope of the Takings Clause to include allegedly confiscatory environmental and land use regulations. What is needed is a litigation strategy that goes beyond accommodating, adjusting, or massaging conservative jurisprudence. Counsel should advance arguments that will most effectively result in victories for the side identified with environmental protection and sustainability. This article provides the framework for the adoption and advancement of conservative constitutional principles (a set of doctrines that I call “right environmentalism”), presents six illustrative scenarios, and discusses two examples from the early twentieth century of counsel successfully appealing to conservatives on the Court (Muller v. Oregon and Buchanan v. Warley), examples that can serve as models for today’s very serious challenges.

Keywords: constitutional, environmental, climate change, federalism, textualism, originalism, Brandeis Brief

JEL Classification: K32, K11

Suggested Citation

Wolf, Michael Allan, Right Environmentalism: Repurposing Conservative Constitutionalism (August 24, 2018). Arizona State Law Journal, Vol. 50, No. 2, 2018. Available at SSRN: https://ssrn.com/abstract=3238264

Michael Allan Wolf (Contact Author)

University of Florida - Fredric G. Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States
352-273-0934 (Phone)

HOME PAGE: http://www.law.ufl.edu/faculty/wolf/

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