Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman
From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)
Edited By: Kermit L. Hall
Prior to the late 1960s, state *common law doctrines comprised the primary legal instruments for resolving environmental disputes. The *torts of nuisance, and to a lesser extent trespass, were the most important of these common law remedies. Broad controls on pollution were upheld only to abate public nuisances (Georgia v. Tennessee Copper Co., 1907).
In the late 1960s and early 1970s, increasing public concern about the environment and the inability of traditional common law doctrines to satisfactorily resolve ecological problems led to the congressional enactment of both comprehensive and specific federal environmental statutes focused on the protection of air, water, land, natural resources, and species. The Supreme Court has molded the substantive content of these environmental laws primarily through constitutional and administrative law doctrines dealing with their legitimacy, meaning, and implementation, and the law of remedies.
The Commerce Clause.
Congress had made few attempts to impose national conservation or environmental standards on the states prior to the late 1960s. Federal legislation was permissible only if based on a specific grant of power to Congress; and it was uncertain whether the general power of the federal government over interstate commerce was a sufficient basis for national environmental controls. The Court’s post–*New Deal Commerce Clause decisions, however, generally affirmed the power of Congress to regulate commerce and repudiated the *Tenth Amendment as an independent limit on federal regulatory authority. These decisions helped pave the way for the extensive federal regulatory programs that Congress would pass during the late 1960s and early 1970s.
The Commerce Clause prohibits states from enacting laws that burden interstate commerce. The Court has repeatedly interpreted the Commerce Clause to invalidate state efforts to regulate disposal of waste generated in other states, holding as per se invalid any restriction that facially discriminates against interstate commerce in its regulation of waste from other states—even where the restriction was motivated by genuine environmental concern (Philadelphia v. New Jersey, 1978). Restrictions that are not facially discriminatory are assessed to determine if their legitimate local benefits outweigh the burden imposed on interstate commerce, and whether any less burdensome alternatives exist that would accomplish the state’s goal.
In Pennsylvania v. Union Gas Co. (1989), the Court held Congress was authorized under the Commerce Clause to waive a *state’s sovereign immunity from suit. However, in *Seminole Tribe of Florida v. Florida (1996), the Court overruled the precedent established in Union Gas and held that Congress does not have the authority to abrogate state immunity under the Commerce Clause. As a result of the Court’s reversal, states are now able under the *Eleventh Amendment to avoid liability for response costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund, in contribution actions by private parties—despite the fact that CERCLA imposes strict, joint, and several liability for the costs of cleaning up releases of hazardous substances dumped by companies. *Eleventh Amendment immunity, however, does not extend to counties and municipalities.
The Takings Clause.
According to the *Fifth Amendment’s *Takings Clause, “*private property may [not] be taken for public use without just compensation.” Until the 1980s, the Supreme Court accepted extensive restrictions on the use of property. So long as the owner retained some reasonable use of his or her property, considered within the context of the overall impact of a regulatory scheme, there was no constitutional violation and thus no need for compensation (*Penn Central Transportation Co. v. New York, 1978). In such circumstances, the Court found that property owners were merely being asked to share the burdens, as well as the benefits, of government (Agins v. City of Tibouron, 1980).
More recently, the Court has shown a greater willingness to apply the Takings Clause to regulatory action (see regulatory taking). While restrictions on activities analogous to a nuisance are still considered appropriate exercises of *police power (*Keystone Bituminous Coal Association v. DeBenedictis, 1987), other restrictions for general land use control or aesthetics now receive more careful scrutiny. Under *Lucas v. South Carolina Coastal Council (1992), a regulation that deprives a property owner of “all economically viable use” of private property constitutes a per se regulatory taking under the Fifth and *Fourteenth Amendments unless nuisance or property law principles that existed when the owner acquired the land make the use prohibitable. The Court has further held that a property owner is not barred from pursuing a takings claim merely because he or she acquired title to the property after a regulation’s effective date (Palazzolo v. Rhode Island, 2001).
The Tenth Amendment’s Anti-Commandeering Principle.
Until the early 1990s, the *Tenth Amendment’s reservation to the states of powers not constitutionally delegated to the federal government, existed as a potential, though somewhat unlikely, limitation on Congress’s authority (p. 296) to pass federal environmental laws. However, while past decisions of the Court have repeatedly upheld Congress’s authority to force states to comply with federal regulatory standards, two decisions have halted this trend. In New York v. United States (1991) and *Printz v. United States (1997), the Court held that the Tenth Amendment prohibits Congress from “commandeering” the states in the implementation of federal regulatory programs. Nevertheless, under the authority granted to it by the Spending Clause, Congress can induce states to comply with federal environmental regulations by conditioning the receipt of federal funds on their compliance.
Federal Preemption of State and Local Laws.
Under the Constitution, federal law is supreme and supplants any inconsistent state or local laws. This doctrine of federal preemption has led the Court to declare state and local laws invalid that interfere with comprehensive federal environmental laws and regulations (Burbank v. Lockheed Air Terminal, 1973). Additionally, while many federal environmental statutes contain specific “non-preemption” provisions that authorize states to enact complementary laws, the Court has narrowly interpreted these provisions, and often restricted states from applying state statutes and state common law in areas where there are comprehensive federal laws and regulations (Exxon Corp. v. Hunt, 1986; International Paper Co. v. Ouillette, 1987).
Standing to Sue.
*Standing to sue has assumed great practical importance because many important environmental actions are brought by public interest groups and nongovernmental organizations (NGOs), seeking to vindicate public rights established by environmental statutes. Under *Article III of the Constitution, courts decide *“cases and controversies” and are not expressly authorized to entertain an actio popularis in which the plaintiff seeks to uphold community rights without suffering personal injury. However, in the early 1970s, the Court adopted a very generous view of standing. The Court held that while a mere allegation of an interest in the subject matter of a dispute, as distinct from a showing of injury, did not confer *standing, shared injuries to environmental and aesthetic interests were nonetheless cognizable for purposes of standing (Sierra Club v. Morton, 1972). In United States v. Students Challenging Regulatory Agency Procedures (1973), the Court further expanded standing to include prospective injuries traceable to governmental actions by “an attenuated line of causation.” However, the Court began tightening standing requirements in the 1990s emphasizing the need for “injury in fact.”
The Court’s jurisprudence when dealing with federal statutes providing for citizen standing to implement environmental mandates has not been consistent. In Lujan v. National Wildlife Federation (1990) and *Lujan v. Defenders of Wildlife (1992), the Court denied standing to those who spent recreation time in the vicinity of a natural area, or planned on visiting countries where certain specie were endangered. However, in Friends of the Earth, Inc v. Laidlaw Environmental Services (TOC), Inc. (2000), the Court recognized standing for citizen plaintiffs to pursue civil penalties for ongoing violations of permits issued under the Clean Water Act. The aesthetic and recreational concerns of the plaintiffs gave them standing even where they were unable to demonstrate that a defendant’s permit violations caused actual harm to the environment. The Court has also held that Congress has the power to create “qui tam” actions, by which citizens can sue to obtain damages on behalf of the United States—though in such actions the plaintiff receives the money—in order to recover damages done to the United States (Vermont Agency of Natural Resources v. United States, 2000).
When a statute is breached, the Supreme Court’s decisions on whether or not to grant an injunction to stop the impugned action lack uniformity, and are perhaps best explained by how the Court perceives the objective of the statute. In TVA v. Hill (1978), the Court granted an injunction against the completion of a dam, on which multimillions had already been expended, because the dam threatened extinction of a tiny fish protected under the Endangered Species Act (ESA). The Court reasoned that the protection of endangered species was the overriding objective of the ESA and could not be weakened by concerns of equity or economics. By contrast, in Weinberger v. Romero Barcelo (1982), the Navy failed to obtain a permit under the Clean Water Act (CWA), but the Court declined to grant an injunction, and gave the Navy time to obtain a permit because any delay occasioned in doing so did not compromise the objectives of the CWA. The principle established in Weinberger was followed in Amoco Production Co. v. Village of Gamble (1987), which involved a procedural infraction of the controlling statutes rather than a substantive environmental injury.
Judicial Review of Agency Actions.
The New Deal Congress created a host of new federal regulatory agencies and endowed them with very broad powers through open-ended statutes. While the Court might ensure that agencies acted within the bounds of their statutory powers, those bounds were so wide as to give agencies vast discretionary powers, creating the threat of arbitrary power. The Supreme Court voided the National Industrial Recovery Act as an unconstitutional delegation of legislative power to agencies (*Schechter Poultry (p. 297) Corp. v. United States, 1935). However, federal regulatory invalidations by the Court on non-delegation grounds have not occurred since.
In Whitman v. American Trucking Association, Inc. (2001), the Court of Appeals for the District of Columbia ruled that EPA had promulgated ozone standards pursuant to a standardless delegation of lawmaking authority in violation of the non-delegation doctrine. However, the Supreme Court overturned the circuit court’s decision and held that Congress had in fact provided an “intelligible principle” limiting the EPA’s discretion.
With the enactment of the Administrative Procedure Act in 1946, the Court confronted the question of what standards to employ in the judicial review of the discretionary powers conferred by Congress on federal agencies. Early Supreme Court cases indicated that the Court would take a “hard look” at agency attempts to implement environmental laws (Citizens to Preserve Overton Park v. Volpe, 1971). Later, however, the Court limited its review and has accorded broad discretionary powers to agencies. Under the doctrine announced by the Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984), a court’s independent task in interpreting a regulatory statute extends only so far as deciding whether Congress has directly addressed the precise question at issue. If the court finds an unambiguously expressed congressional intent on the question, that intent controls. However, if the statute is silent or ambiguous with respect to the specific issue further judicial inquiry is limited to whether the agency’s interpretation is based on a permissible construction of the statute.
In Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (2001) the Court addressed the question of whether the Corp had properly interpreted the jurisdictional scope of the Clean Water Act (CWA) to extend to isolated, non-navigable intrastate wetlands used by migratory birds. In rejecting the Corp’s regulatory interpretation, the Court noted that the CWA expressly authorized the Corp to regulate the activity in question only to “navigable waters.” The Court based its denial of the Corp’s request for agency deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984) on the grounds that enforcement of the regulatory interpretation would significantly impinge upon the states’ traditional power over land and water use. In Whitman the Court held that unless explicitly granted authority to do so by the enabling statute the Environmental Protection Agency is not permitted to consider implementation costs in setting new standards.
For approximately ten years (1970–1980), the great surge of environmental legislation and regulation controlling pollution control and protecting natural resources was generally welcomed and even expansively interpreted by the Court. Since the early 1990’s, however, the Court has been more sensitive to constitutional law limitations, and constructed environmental statutes more strictly, while exercising significant restraint in reviewing agency decisions. Nonetheless, these later decisions have been pragmatic rather than doctrinally dogmatic and the extent to which the Court is intentionally charting a new course for environmental law generally remain unclear.
See also property rights.
Bradley C. Karkkainen, “Plain Meaning: Justice Scalia’s Jurisprudence of Strict Statutory Construction,” Harvard Journal of Law and Public Policy 17 (1994): 401–477. William H. Rodgers, Environmental Law, 2d ed. (1994; exp. ed., 1999). Richard B. Stewart, “A New Generation of Environmental Regulation,” Capital University Law Review 29 (2001): 21–182.
Martin H. Belsky; revised by Lakshman D. Guruswamy