A Fistful of Denial: The Supreme Court Takes a Pass on Commerce Clause Challenges to Environmental Laws

Abstract

Ever since the Supreme Court's landmark decision in United States v. Lopez invalidating the Gun-Free School Zones Act as beyond the scope of Congress's Commerce Clause power, scholarly commentators from both sides of the ideological spectrum have wondered whether the Court would apply the reasoning of that case in the context of federal environmental laws. Many agreed that, if faithfully applied, Lopez sounded a death knell for a slew of environmental legislation that had at best only a tenuous connection with interstate commerce. For some, that was even more reason to deride the Lopez decision, but for originalists, it was a welcome prospect. Not only would the Court be enforcing the Constitution's limits on Congressional power to regulate Commerce . . . among the . . . States, as it ought, but it would be resurrecting the sound theoretical foundation on which those limits were built, returning decisionmaking authority to a level of government close enough to the people to ensure that both the benefits and costs of environmental policy were fully considered by those who would suffer any adverse consequences of a wrong decision.

A fistful of five environmental cases pressing the Commerce Clause challenge were presented to the Court during the October 2004 term by way of petitions for writs of certiorari. The first four petitions were summarily denied, and the fifth was not considered until after this article was published (the petition for certiorari was ultimately granted, Rapanos v. United States). This article addresses the significance of those cases and places them in the larger context of the general recalcitrance of the lower courts to apply Lopez in the environmental law arena.

Keywords: Commerce Clause, Endangered Species, Clean Water Act, federal power, environmental law, United States v. Lopez, Rapanos v. United States, arroyo toad

JEL Classification: R52,R58,Q38,Q24,Q25,Q28,N40,K10,K11,H70,H77,H11