Constitutional Environmental Law, or, The Constitutional Consequences of Insisting that the Environment Is Everybody's Business

Abstract

Constitutional environmental law has become a recognized and institutionalized specialty within environmental law, an acknowledgement of the pervasive interactions between the U.S. Constitution and the federal environmental statutes that go well beyond the normal constitutional underpinnings of federal administrative law. This Article posits that constitutional environmental law is the result of Congress consciously deciding that environmental protection is everybody’s business — specifically, from Congress’s that states should participate in rather than be preempted by federal environmental law, that private citizens and organizations should help to enforce the statutes, and that private land and water rights are necessary components of national environmental protection. Nevertheless, despite almost five decades of constitutional environmental litigation and scholarship, the federal courts had never recognized environmental rights within the U.S. Constitution until 2016, raising the possibility that constitutional environmental law may soon assume another dimension.

Keywords: Environmental Law, Commerce Clause, Standing, Takings, Sovereign Immunity, Preemption, Interstate Compact