Constitutional Bounds on Congress' Ability to Protect the Environment

Report for Congress
Constitutional Bounds
on Congress’ Ability to
Protect the Environment
Updated December 18, 2002
Robert Meltz
Legislative Attorney
American Law Division

Congressional Research Service ˜ The Library of Congress

Constitutional Bounds on Congress’ Ability to Protect
the Environment
Federal protection of the environment must hew to the same constitutional
bounds as any other federal activity. In the past decade, the Supreme Court has
invigorated several of these bounds in ways that present new challenges to
congressional drafters of environmental statutes. This report reviews five of these
newly emergent constitutional areas. For each area, the focus is its significance for
current and future federal environmental legislation.
First, the Commerce Clause, requiring that activities regulated by federal laws
enacted under the Clause have a sufficient nexus with interstate commerce. In 1995,
the Supreme Court sustained a Commerce Clause challenge to a federal law for the
first time in 60 years, and did so again in 2000. Thus far, lower courts have rejected
such challenges to federal environmental laws, but in 2001 the Supreme Court opted
for a narrow reading of federal Clean Water Act jurisdiction over “isolated waters,”
in part to avoid Commerce Clause issues.
Second, standing to sue in the federal courts. Article III restricts standing (who
is a proper party to bring suit) to those who can demonstrate injury in fact, causation,
and redressability. In a series of decisions during the 1990s, the Supreme Court
interpreted these requirements with increasing stringency, making standing more
difficult to establish and lessening the viability of many potential environmental
citizen suits. In a sharp turnabout, however, the Court in 2000 eased the injury-in-
fact and redressability components.
Third, the Takings Clause of the Fifth Amendment, declaring that when the
federal government “takes” property, just compensation is owed. The federal
environmental program most commonly attacked in takings suits is the Clean Water
Act section 404 wetlands program. Other federal programs occasionally challenged
as effecting takings include the Endangered Species Act, Surface Mining Control and
Reclamation Act, Rails to Trails Act, and Superfund Act.
Fourth, the Tenth Amendment, stating that powers not granted to the Federal
Government are reserved to the states. Invoking this Amendment, Supreme Court
decisions during the 1990s held that Congress cannot compel the participation of
state legislatures or state executive-branch officials in federal programs. But
conditions on the grant of federal funds to the states and other noncoercive
approaches to enlisting state cooperation with federal environmental initiatives have
been judicially approved.
Fifth, the Eleventh Amendment, which together with general principles of state
sovereign immunity bars Congress from authorizing private lawsuits against
unconsenting states. Because the Amendment applies only to private suits against
states and does not prohibit suits against state officials for injunctive relief, it has thus
far not been a major constraint on congressional environmental efforts. Noncoercive
approaches (preceding paragraph) are also available.

recently active, have not received Supreme Court resuscitation. One, the Article I
nondelegation doctrine, was used by a lower court to void Clean Air Act regulations
before being returned to its former quiescent status by the Supreme Court in 2001.
The other, Article II’s vesting of enforcement authority in the executive branch, is
today argued by some citizen-suit defendants as being inconsistent with citizen
enforcement of federal environmental laws. The Supreme Court has yet to resolve
the issue.

Article I: Commerce Clause..........................................3
Background ..................................................3
Are Federal Environmental Statutes Vulnerable?.....................4
Post-Lopez Decisions Involving Federal Environmental Statutes.........7
A Special Case: “Isolated Waters”.................................9
Article III: Standing to Sue in Federal Court...........................11
Background .................................................11
Environmental Standing Before Laidlaw...........................11
Friends of the Earth v. Laidlaw..................................13
Implications of Laidlaw for Environmental Citizen Suits..............15
Fifth Amendment: The Takings Issue.................................17
Background .................................................17
Cases Involving Federal Environmental Statutes....................22
Tenth Amendment:
Federal Intrusions on State Sovereignty............................24
Background .................................................24
Environmental Cases in the Wake of New York and Printz.............26
When the State Itself Engages in the Regulated Activity..............27
Eleventh Amendment and State Sovereign Immunity: Federal
Authorization of Private Suits Against States.......................28
Background .................................................28
Observations as to Federal Environmental Statutes...................33
Case Law Involving Federal Environmental Statutes.................35
Addendum 1: Article I’s Nondelegation Doctrine........................38
Addendum 2: Article II’s Vesting of Law-Enforcement Authority in the
Executive Branch.............................................41
Summary and Comments...........................................43

Constitutional Bounds on Congress’ Ability
to Protect the Environment
Congress’ efforts to protect the environment have always been required to
respect the same constitutional bounds as any other federal actions. Today, however,
this fact is newly important. In the past decade or so, the Supreme Court has
invigorated five of these constitutional bounds in ways that present fresh challenges
to congressional drafters of environmental statutes.
These five constitutional strictures are (1) the Commerce Clause,1 demanding
that congressional enactments based on the Clause address activities having a
sufficient link to interstate commerce, (2) Article III standing doctrine, limiting who
is a proper party to invoke the jurisdiction of Article III federal courts, (3) the Fifth
Amendment Takings Clause, requiring that certain government interferences with
private property be accompanied by compensation of the owner, (4) the Tenth
Amendment, barring direct federal regulation of state legislatures and state executive-
branch officials, and (5) the Eleventh Amendment, limiting federal authorization of
private suits against unconsenting states.
What these five constitutional areas share is that in each instance the Court –
often, though not always, through the five conservative justices2 – has redrawn or at
least underscored a fundamental limit on federal power. In the Court’s Commerce
Clause, Tenth Amendment, and Eleventh Amendment decisions, that line is the one
between the proper domains of federal and state power. These are known as the
“federalism” cases.3 In the Court’s standing-to-sue decisions, it is the line between
the judiciary and the political branches of the federal government. And in its Takings
Clause decisions, it is the line between the rights of the community, as effectuated
by government, and those of individual property owners. A goodly number of these
Supreme Court decisions arise out of suits directly involving federal environmental
statutes, but even where they do not, their relevance to such statutes is clear.
Until the 1990s, Congress legislated in the environmental area with relatively
few constitutional concerns. Thus, the Supreme Court’s renewed attention to the
five areas mentioned has hardly escaped notice, particularly because the new focus
comes chiefly from one side of the political spectrum: the conservative majority on
the Court. Some commentators have seen in the Court’s new direction a severe
threat to the future of federal environmental law --

1U.S. CONST. art. I, § 8, cl. 3.
2Chief Justice William Rehnquist, and Justices Antonin Scalia, Clarence Thomas, Sandra
Day O’Connor, and Anthony Kennedy.
3See also Kenneth R. Thomas, Federalism and the Constitution: Limits on Congressional
Power, CRS Rept. No. RL30315 (updated March 21, 2001).

In the last decade, judges have imposed a gauntlet of new
hurdles in the path of environmental regulators, slammed the
courthouse doors in the face of citizens seeking to protect the
environment, and sketched the outline of a jurisprudence of
“economic liberties” under the Takings Clause and the U.S.
Commerce Clause of the U.S. Constitution that would frustrate
or repeal most federal environmental statutes.4
Others find the threat overstated, at least in regard to the federalism cases --
Collectively, these rulings proscribe federal power, but this does
not mean that environmental protection is threatened. Thus far,
the Court’s federalist decisions have been exceedingly modest,
trimming federal power only on the margins. Congress retains
substantial authority to adopt environmental measures,
especially in those areas of particular federal concern. [In any
event,] Federal regulation is not the only means to advance
environmental values ....5
Herein we offer a survey of these newly rehabilitated constitutional bounds.6
For each, the report presents a hornbook review of the jurisprudence, then moves on
to its key focus: how the jurisprudence has been, or may be, applied to federal
environmental programs. The reader should have little difficulty seeing the
significance of the discussion for many non-environmental federal programs as well.
Following discussion of the five constitutional areas above, the report gives a
cursory nod to two constitutional doctrines that, while recently active, have not been
the beneficiaries of Supreme Court promotion. One, the Article I nondelegation
doctrine, was briefly resurrected by a lower court in a challenge to Clean Air Act
regulations before being reigned in by the Supreme Court in 2001. The other, Article
II’s vesting of enforcement authority in the executive branch, is today argued by
some citizen-suit defendants as inconsistent with citizen enforcement of federal
environmental laws. The Supreme Court has yet to resolve this issue.

4Douglas T. Kendall et al., Conservative Judicial Activism and the Environment: An
Assessment of the Threat, 32 ENVTL. L. RPTR. 10835 (July 2002) (citations omitted).
5Jonathan H. Adler, Judicial Federalism Not Anti-Environment, in Who’s in Charge?,
ENVTL. FORUM, July/Aug. 2002, p. 50.
6Constitutional areas that are not “newly” important for federal environmental lawmaking,
and accordingly are not discussed in this report, include the Property Power in Article IV
(authorizing congressional regulation of the public lands), preemption doctrine under the
Article VI Supremacy Clause (defining when a federal statute will be held to have displaced
state regulation), and the Fourth Amendment (limiting the use of administrative searches).

Article I: Commerce Clause
The Commerce Clause of Article I bestows upon Congress the power "[t]o
regulate Commerce ... among the several States ...."7 As the basis for much of the
environmental, social, and economic legislation enacted by Congress, the scope of
this power is of more than passing interest. The Supreme Court has often been
treated to cases where the validity of a federal statute hinged on whether the activity
sought to be regulated, alone or aggregated with similar activity of others, had a
sufficient effect on interstate commerce to fall within the Commerce Power.
Fortunately from Congress’ point of view, the Supreme Court beginning in the 1930s
adopted an expansive interpretation of the Clause’s reach.8 Indeed, from 1937 until

1995, the Court rebuffed every Commerce Clause challenge to federal law.

In 1995, Congress’ winning streak came to a halt. In United States v. Lopez,9
the Supreme Court by 5-4 voided a criminal conviction under the Gun-Free School
Zones Act of 1990 as beyond Congress’ authority under the Commerce Clause.10
The majority explained that the Court’s decisions had identified three categories of
activity reached by the Clause – the now-canonical test.11 First, Congress may
regulate use of the channels of interstate commerce. Second, Congress may regulate
and protect the instrumentalities of, or persons or things in, interstate commerce,
even though the threat may come only from intrastate activities. And third, the
Commerce Clause includes the power to regulate intrastate activities that alone or in
the aggregate “substantially affect” interstate commerce. As to the last category, the
Court strongly suggested that only economic activity may be aggregated to establish
substantial effect. Finding that possession of a gun in a schoolyard lay outside the
last category (the only one that potentially applied), the conviction was reversed.
In 2000 and 2001, the Court showed that Lopez was no anomaly. In United
States v. Morrison,12 it again held (and again by 5-4) that Congress exceeded its
commerce power – this time in creating a federal civil remedy for victims of gender-

7U.S. Const. art. I, § 8, cl. 3.
8The key decision ushering in the modern period of expansive interpretation was NLRB v.
Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). There, the Court rejected its previous
distinction between “direct” and “indirect” effects on interstate commerce, recasting the
Commerce Clause inquiry as whether the intrastate activities “have such a close and
substantial relation to interstate commerce that their control is essential or appropriate to
protect that commerce ....” Id. at 36-38.
9514 U.S. 549 (1995).
10See generally Kenneth R. Thomas, United States v. Lopez: The Limits of Federal Power
Under the Commerce Clause, CRS Rept. No. 95-1047 (1995) (archived).
11514 U.S. at 558-559.
12529 U.S. 598 (2000).

motivated violence, as part of the Violence Against Women Act.13 As in Lopez, the
Court focused on the noneconomic, violent nature of the federally proscribed activity
in refusing to aggregate impacts on interstate commerce under the “substantially
affects” category.14 Further (and raising eyebrows among the commentators), the
Court refused to be bound by congressional findings in the Act asserting such
impacts on interstate commerce. These findings, it said, relied on a line of reasoning
– “but for” causation – that the Court had previously rejected in the Commerce
Clause context. After Morrison, the Court twice construed federal statutes narrowly
at least in part to avoid questions as to their possible invasion of intrastate realms
beyond Congress’ commerce power.15 While purely statutory rulings, these two
decisions show the continuing importance of the constitutional issue to the Court, and
its determination that the line between the proper realms of federal and state power
not be obliterated.
At the same time, nothing in Lopez or Morrison overruled any of the Court’s
prior Commerce Clause decisions. The Court even cited with approval Wickard v.
Filburn,16 widely seen as the pinnacle of its expansive Commerce Clause
jurisprudence. Lopez and Morrison are thus best regarded not as a retrenchment, but
rather as a clarification of where the line has long been, and a warning that the line
will not be shifted further toward federal power to accommodate Congress.
Are Federal Environmental Statutes Vulnerable?
No sooner had the ink dried on the Lopez decision than concerns were raised
that some federal environmental statutes might be on shaky Commerce Clause
footing.17 Vulnerabilities were suggested in the Superfund Act (cleanup sites where
the contamination remains within one state), Clean Water Act (“isolated waters”),
Safe Drinking Water Act (publicly owned drinking water systems providing service
within one state), and Endangered Species Act (species located entirely within one
state, affected by noneconomic activity).
The bulk of federal environmental provisions seems to be on constitutional terra
firma. Either the activity regulated is an economic one that, alone or in the aggregate,

13See T.J. Halstead, United States v. Morrison, the Supreme Court Declares 42 U.S.C. 13981
Unconstitutional, CRS Rept. No. RS20584 (May 22, 2000).
14“While we need not adopt a categorical rule against aggregating the effects of any
noneconomic activity ... , thus far in our Nation’s history our cases have upheld Commerce
Clause regulation of intrastate activity only where that activity is economic in nature.” 529
U.S. at 613.
15Jones v. United States, 529 U.S. 848 (2000) (federal arson statute); Solid Waste Agency
of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (federal
statute creating permit program for discharges into “isolated waters”).
16317 U.S. 111 (1942), cited in Lopez, 514 U.S. at 560-561.
17See generally John P. Dwyer, The Commerce Clause and the Limits of Congressional
Authority to Regulate the Environment, 25 ENVTL. L. RPTR. 10421 (1995); J. Blanding
Holman, Note, After United States v. Lopez: Can the Clean Water Act and the Endangered
Species Act Survive Commerce Clause Attack?, 15 VA. ENVTL. L. J. 139 (1995).

has substantial effect on interstate commerce (e.g., industrial activity causing air
pollution), or the statute is explicit that it reaches only activities in or affecting
interstate commerce,18 or there are congressional findings that the regulated activity
affects interstate commerce.19 Moreover, case law indicates that the concept of
economic activity, the prerequisite for aggregating the interstate impacts of intrastate
activity, may be broadly construed20 – though undeniably amorphous and
manipulable.21 Finally, the Court has cautioned that congressional enactments
should be judicially invalidated only upon “a plain showing” that Congress exceeded
its constitutional bounds.22
Some further words are in order about congressional findings in the wake of
Lopez and Morrison. In both decisions, the Court cautioned that “[s]imply because
Congress may conclude that a particular activity substantially affects interstate
commerce does not necessarily make it so.”23 Particularly is this true, said Morrison,
when a “but for” causal chain is asserted by Congress as providing the nexus between
the regulated act and interstate commerce. Such a chain of inference piled on
inference knows no bounds, said the Court, allowing Congress to regulate almost any
area of “traditional state regulation.” Thus, concluded the Court, this method of
reasoning must be rejected “if we are to maintain the Constitution’s enumeration of
powers.”24 The pertinence for this report is that few federal environmental statutes
use a “but for” rationale to support Commerce Clause jurisdiction – recall the
preceding paragraph. Probably the chief exception is the Endangered Species Act,

18See, e.g., Federal Hazardous Substances Act, 15 U.S.C. § 1263; Toxic Substances Control
Act, 15 U.S.C. § 2602(3)-(4); Migratory Bird Treaty Act, 16 U.S.C. § 705; Clean Air Act,
42 U.S.C. § 7511b(e)(1)(C); Clean Water Act, 33 U.S.C. § 1342(a); Hazardous Materials
Transportation Act, 49 U.S.C. § 5102(1).
In other instances, the statute may not explicitly impose such a constraint, but may
limit its application to entities that are presumptively engaged in interstate commerce – for
example, manufacturers and distributors.
19See, e.g., Toxic Substances Control Act, 15 U.S.C. § 2601(a)(3); Marine Mammal
Protection Act, 16 U.S.C. § 1361(5). Such findings are persuasive, even if not controlling.
Lopez, 514 U.S. at 562-563.
20See, e.g., Gibbs v. Babbitt, 214 F.3d 483, 491 (4th Cir. 2000), cert. denied, 531 U.S. 1145
(2001); GDF Realty Investments, Ltd. v. Norton, 169 F. Supp. 2d 648, 660-661 (W.D. Tex.

2001), appeal pending.

21In his majority opinion in Lopez, Chief Justice Rehnquist noted this problem: “Admittedly,
a determination whether intrastate activity is commercial or noncommercial may in some
cases result in legal uncertainty.” 514 U.S. at 566. See, e.g., United States v. Gregg, 226
F.3d 253 (3d Cir. 2000) (majority and dissenting opinions state opposite conclusions as to
whether protesters at abortion clinics are engaged in “economic” activity for purposes of
Commerce Clause analysis), cert. denied, 532 U.S. 971 (2001).
22Morrison, 529 U.S. at 607.
23Id. at 614, quoting Lopez, 514 U.S. at 557 n.2. This absence of judicial deference to
Congress’ findings is part of a more general trend, visible in even more pronounced fashion
in the area of congressional abrogation of state sovereign immunity through the Fourteenth
Amendment. See discussion of Board of Trustees v. Garrett in note 178 infra.
24529 U.S. at 615.

justified (as to noneconomic activities harming intrastate species) on the grounds of
persons travelling interstate to observe or study the species, specimens going to out-
of-state museums, or the ultimate effects of diminished biodiversity on interstate
commerce. It has also been speculated that Congress’ ability to enact certain new
environmental laws, perhaps addressing land use sprawl or global warming, may be
There are other clouds on the environmental horizon as well. First, Lopez and
Morrison suggest that Commerce Clause scrutiny will be closer when federal
regulation intrudes on an area of traditional state control. Of course, environmental
law has been a heavily federalized area for several decades now.26 In a post-
Morrison decision, however, the Court’s Commerce Clause discussion refers to the
states’ “traditional and primary power over land and water use,”27 suggesting that the
Court still views the federal government as something of an interloper in such
matters. Several federal environmental statutes, such as the Clean Water Act
wetlands permitting program and the Endangered Species Act, authorize direct
federal regulation of “land and water use.” Second, this same post-Morrison
decision suggests doubt in the Court’s mind as to whether intrastate economic
activities that are a step or two removed from the statute’s environmental concerns
may be aggregated to show the requisite substantial effect on interstate commerce.28
If this judicial doubt bears fruit in later Court opinions, we may see some contraction
in the constitutionally permissible scope of federal environmental laws.29
More optimistically from Congress’ point of view, it may be that the moderate
conservatives on the Court – that is, Justices O’Connor and Kennedy – are not yet
ready to take on a body of law such as federal environmental statutes that by and
large, if not in every instance, has an adequate interstate-commerce nexus. To do so
would also open up the federal civil rights laws, many federal criminal statutes, and
other federal statutes to Commerce Clause attack.

25Charles Tiefer, After Morrison, Can Congress Preserve Environmental Laws from
Commerce Clause Challenge?, 30 ENVTL. L. RPTR. 10888 (2000).
26See, e.g., Gibbs v. Babbitt, 214 F.3d 483, 499-501 (4th Cir. 2000) (noting long history of
federal protection of natural resources, including endangered species), cert. denied, 531 U.S.
1135 (2001); GDF Realty, 169 F. Supp. 2d at 663 (noting long federal involvement in
wildlife conservation). The predecessor of the Clean Air Act was first enacted in 1955; the
predecessor of the Clean Water Act in 1948.
27Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers,

531 U.S. 159, 174 (2001).

28Id. at 173 (municipal landfill to be built on filled ponds, though plainly an economic
activity, is “a far cry, indeed” from question whether Clean Water Act may reach those
ponds under Commerce Clause). See also id. at 195 (Stevens, J., dissenting).
29Charles Tiefer, SWANCC: Constitutional Swan Song for Environmental Laws or No More
than a Swipe at Their Sweep, 31 ENVTL. L. RPTR. 11493 (Dec. 2001); Maya R. Moiseyev,
Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers: The Clean
Water Act Bypasses a Commerce Clause Challenge, But Can the Endangered Species Act?,


One thing is clear: federal environmental statutes were not written with the
current judicial focus on discerning an economic-activity justification in mind.
Unsurprisingly, they were written to protect the environment, with regulation of
economic activity only as a means to that end. The Court’s recently revived interest
in the Commerce Clause will likely force those defending such laws, and
congressional drafters of new ones, to make explicit for the courts the full economic
context of environmental protection.
Post-Lopez Decisions Involving Federal Environmental
Since Lopez, lower-court decisions have continued to discern a Commerce
Clause foundation in federal environmental laws, rejecting the idea that Lopez and
Morrison state a broad prescription for narrowing such programs. Lower courts have
sided with the federal government in numerous cases involving the Superfund Act,30313233
Clean Air Act, Clean Water Act, Endangered Species Act, and Migratory Bird
Treaty Act.34 The Supreme Court has denied several petitions for certiorari from
these decisions, even though some of them arguably push the envelope of the Court’s
Lopez/Morrison jurisprudence. There are as yet no circuit splits to tempt the Court,

30USA v. Olin Corp.,107 F.3d 1506 (11th Cir. 1997); Cooper Industries, Inc. v. Agway, 43
Env’t Rptr. (Cases) 1933 (N.D.N.Y. 1996); United States v. Alcan Aluminum Corp., 1996
WL 637559 (N.D.N.Y. 1996); United States v. NL Industries, Inc., 936 F. Supp. 545 (S.D.
Ill. 1996); Nova Chemicals v. GAF Corp., 945 F. Supp. 1098 (E.D. Tenn. 1996).
31Allied Local and Regional Mfrs. Caucus v. U.S. EPA, 215 F.3d 61 (D.C. Cir. 2000) (EPA
rule limiting volatile organic compounds in architectural coatings), cert. denied, 532 U.S.

1018 (2001).

32United States v. Hartsell, 127 F.3d 343 (4th Cir. 1997) (Act’s coverage of discharges into
public sewer systems), cert. denied, 523 U.S. 1030 (1998).
33Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000) (2-1) (application of Act’s “take” prohibition
to red wolves on private land), cert. denied, 531 U.S. 1145 (2001); National Ass’n of Home
Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997) (2-1) (application of Act’s “take”
prohibition to Delhi Sands Flower-Loving Fly, a subspecies located entirely in one state),
cert. denied, 524 U.S. 937 (1998); GDF Realty Investments, Ltd. v. Norton, 169 F. Supp.

2d 648 (S.D. Tex. 2001) (application of “take” prohibition to six species of “cave bugs”

located entirely in one state), appeal pending; Building Industry Ass’n of Superior
California v. Babbitt, 979 F. Supp. 893 (D.D.C. 1997) (listing as endangered or threatened
of four species of fairy shrimp residing in state’s vernal pools), 247 F.3d 1241, 1247 n.8
(D.C. Cir. 2001) (Commerce Clause claim conceded by plaintiff association to fail under
Nat’l Ass’n of Home Builders v. Babbitt, supra this note, but asserted to preserve possibility
of en banc review), cert. denied, 122 S. Ct. 913 (2002).
In addition to GDF Realty, supra this note, the Fifth Circuit recently had before it the
Commerce Clause compatibility of the Endangered Species Act “take” prohibition as
applied to several listed species living on the Edwards Aquifer in Texas. The court held theth
suit unripe, however, and so did not address the merits. Shields v. Norton, 289 F.3d 832 (5
Cir. 2002), cert. denied, 71 U.S.L.W. 3283 (Dec. 9, 2002).
34United States v. Bramble, 103 F.3d 1475 (9th Cir. 1997).

Worthy of special note are the following decisions handed down after Morrison,
the latest Supreme Court holding directly on the Commerce Clause. All of these
decisions reject the Commerce Clause challenge, and all do so on the same ground --
that the “substantially affects” factor of Lopez was satisfied.
In Gibbs v. Babbitt,35 the Fourth Circuit – the same court that struck down the
Violence Against Women Act provision on its way to the Supreme Court36 (and a
circuit generally seen as quite conservative) – held 2-1 that an aspect of the
Endangered Species Act (ESA) was within Congress’ commerce power. The issue
was whether the United States, under the ESA, could limit the “taking” of
reintroduced red wolves on private land. The Fourth Circuit invoked the
“substantially affects” criterion on which Lopez and Morrison hinged, this time
finding the criterion satisfied. Unlike gender-based violence and guns near schools,
it said, the taking of red wolves is connected with economic enterprise. For one
thing, “the protection of ... economic assets is a primary reason for taking the
wolves.”37 For another, without the wolves, there would be no wolf-related tourism
or scientific research, and no commercial trade in pelts. Because of this economic
nexus, the effects of individual wolf takings may be aggregated. And when so
aggregated, they sufficiently affect interstate commerce to satisfy the “substantially
affects” prong of Lopez. The absence of congressional findings to that effect, said
the Circuit, did not preclude this conclusion.
Also involving the ESA was GDF Realty Investments, Inc. v. Norton,38
addressing a use of the Act to block construction of a shopping center that would
“take” endangered “cave bugs” by destroying their cave habitat. Outside of museum
collections, the cave bugs were known to exist only in one county in Texas.
Notwithstanding, the court found the “substantially affects” criterion satisfied – both
because the development of the shopping center, standing alone, satisfied the
“substantially affects” test, and because, as clearly economic activity, it could be
aggregated with other such development to “substantially affect.” Important,
however, the court cautioned that on different facts, it might have ruled otherwise.
The “broad terms” of the ESA, it said, “certainly cover[] purely local, intrastate
activities having no connection whatsoever with interstate commerce.”39 This raises
the possibility that use of the ESA to thwart a non-economic activity harming an
endangered species existing within one state would run into constitutional difficulty.
Finally, in Allied Local and Regional Mfrs. Caucus v. U.S. EPA,40 the D.C.
Circuit held that Clean Air Act section 183(e), instructing EPA to limit volatile
organic compounds (VOCs) in architectural coatings as part of the Act’s goal of

35214 F.3d 483 (4th Cir. 2000), cert. denied, 531 U.S. 1145 (2001).
36Brzoncala v. Virginia Polytechnic Inst., 169 F.3d 820 (4th Cir. 1999), aff’d sub nom.United
States v. Morrison, 529 U.S. 598 (2000).
37214 F.3d at 492.
38169 F. Supp. 2d 648 (W.D. Tex. 2001), appeal pending.
39Id. at 664.
40215 F.3d 61 (D. C. Cir. 2000), cert. denied, 532 U.S. 1018 (2001).

minimizing ground-level ozone, was within Congress’ commerce power. Industry
plaintiffs argued that there was an insufficient nexus under the “substantially affects”
Lopez factor between coatings manufacture, which they described as an intrastate
event, and the interstate phenomenon of ozone formation. “[N]one of the
considerations that led the [Supreme] Court to find Congress’ authority wanting in
Lopez and Morrison,” said the Circuit, “has any application to section 183(e) ....”41
For example, the VOC provision regulated only manufacturers, processors,
distributors, or importers of products “for sale or distribution in interstate
commerce,” or their suppliers.
A Special Case: “Isolated Waters”
One of the most high-profile Lopez challenges in the environmental realm
involves the EPA/Corps of Engineers’ assertion of Clean Water Act authority over
“isolated waters” under the “migratory bird rule.”42 Federal regulation of isolated
waters – nonnavigable, intrastate waters lacking surface hydrological connections to
navigable waters – plainly raises the issue of whether an adequate nexus with
interstate commerce is present. Indeed, even before Lopez, the Seventh Circuit had
gone both ways on the issue -- ruling first against, then for, the Commerce Clause
compatibility of Corps jurisdiction over isolated waters.43 Following Lopez, the
Fourth Circuit in United States v. Wilson44 invalidated Corps regulations asserting
jurisdiction over wetlands the use of which merely “could,” as opposed to “did,”
affect interstate commerce.
The isolated-waters/migratory-bird rule question leaped to the fore when the
Supreme Court in 2000 agreed to hear Solid Waste Agency of Northern Cook County
(SWANCC) v. U.S. Army Corps of Engineers. This case arose when SWANCC,
wishing to use a tract of land for a trash disposal facility, asked the Corps of
Engineers whether the ponds on the site were jurisdictional – that is, waters requiring
a “dredge and fill” permit from the Corps under Clean Water Act section 404. The
Corps answered yes, citing the presence of migratory birds on the ponds and invoking
its “migratory bird rule.” It then denied the permit.
This requires some background. The Clean Water Act of 1972 makes its
regulatory programs, such as section 404, applicable to “navigable waters,” an
ancient phrase given a new and expansive definition in the Act as “waters of the
United States.”45 The Act does not define “waters of the United States,” but
legislative history says that Congress intended the phrase to apply broadly to the

41215 F.3d at 83.
4233 U.S.C. § 1344.
43Hoffman Homes, Inc. v. U.S. EPA, 999 F.2d 256 (7th Cir. 1993) (reversing earlier decision
of circuit).
44133 F.3d 251 (4th Cir. 1997).
45CWA § 502(7); 33 U.S.C. § 1362(7).

outer limits of Congress’ commerce power.46 Taking their cue from this legislative
history (not to mention a court order demanding expanded jurisdiction), the Corps
of Engineers and EPA defined “waters of the United States” in the mid-1970s to
include a whole new component: non-navigable “intrastate lakes, rivers, streams ...
, or natural ponds, the use, degradation, or destruction of which could affect interstate
or foreign commerce.”47 Now comes the key part. The Corps and EPA interpreted
this component of “waters of the United States” to include all waters “which are or
would be used as habitat by birds protected by Migratory Bird Treaties” or by “other
migratory birds that cross state lines.”48 This is the controversial “migratory bird
rule”– more accurately, not a rule but an interpretive guideline.
In the decision below, the Seventh Circuit found that the migratory bird rule
satisfies the “substantially affects” prong of Lopez. Pointing out that “3.1 million
Americans spent $1.3 billion to hunt migratory birds in 1996, and that about 11% of
them traveled across state lines to do so,” the court found the aggregate impact of the
destruction of migratory bird habitats to substantially affect interstate commerce.49
The Supreme Court decision50 never reached the constitutional question, at least
not directly. Rather, the majority opinion (the Court split yet again 5-4) confined
itself to the statutory issue as to the scope of section 404. It held, depending on
which part of the opinion one looks at, either that Congress never intended section
404 to extend to isolated waters at all, or that Congress never intended section 404
to extend to isolated waters solely on the basis of the migratory bird rule. The effect
of this ruling, however interpreted, is to narrow the reach of not only the section 404
program, but also other components of the Clean Water Act, such as point-source
permitting,51 whose reach likewise is defined by the term “navigable waters.”
More important for present purposes, the Court, in arriving at its reading of
section 404, drew support from the Commerce Clause and considerations of
federalism. (Chief Justice Rehnquist, who authored the majority opinion, also wrote
the majority opinions in Lopez and Morrison.) Because the migratory bird rule
“invokes the outer limits of congressional power,” said the Court, “we expect a clear
indication that Congress intended that result”52 – an indication the Court did not find.
As noted earlier, the Court also injected two hints of serious import for the scope of
federal environmental law generally – one suggesting closer Commerce Clause

46See, e.g., Sen. Conf. Rept. No. 92-1236 at 144 (1972).
47Now codified at 33 C.F.R. § 328.3(a)(3).
4851 Fed. Reg. 41,206, 41,217 (1986) (in preamble).
49191 F.3d at 850.
50531 U.S. 159 (2001). See generally Robert Meltz and Claudia Copeland, The Supreme
Court Addresses Corps of Engineers Jurisdiction Over “Isolated Waters”: The SWANCC
Decision, CRS Rept. No. RL30849 (Feb. 16, 2001); Robin K. Craig, Navigating
Federalism: The Missing Statutory Analysis in Solid Waste Agency, 31 ENVTL. L. RPTR.

10508 (2001).

51Point-source permitting is more formally called the National Pollutant Discharge
Elimination System. CWA § 402; 33 U.S.C. § 1342.
52531 U.S. at 172.

scrutiny when the federal enactment regulates the use of non-federal land and water,
and the other casting doubt on whether the economic activity relied on by some of
the earlier-discussed decisions is sufficiently closely linked to the goals of those
statutes to qualify for aggregation under the “substantially affects” Lopez factor.
Article III: Standing to Sue in Federal Court
Standing doctrine is concerned with who is a proper party to raise a particular
issue in the federal courts. Some precepts of standing are merely “prudential” – that
is, developed by the courts as part of their inherent power of judicial self-
management. Our concern, rather, is with those aspects of standing mandated by
Article III of the Constitution – in particular, by that Article’s confinement of the
jurisdiction of federal courts created under it (such as district courts) to “Cases” and
“Controversies.” The case-or-controversy requirement has long been construed to
restrict Article III courts to the adjudication of real, live disputes; they are not
empowered to decide academic matters. As famously put, standing doctrine demands
a plaintiff who has “such a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends ....”53
In the Supreme Court’s current thinking, this case-or-controversy prerequisite
imposes as a constitutional minimum for standing in an Article III court that the
plaintiff show three things: (1) he/she has suffered an “injury in fact” that is concrete
and particularized (not common to the entire public), and actual or imminent; (2) the
injury is fairly traceable to the challenged action of the defendant;54 and (3) it is likely
that the injury will be redressed by a favorable decision.55
Environmental Standing Before Laidlaw
Once upon a time, environmental plaintiffs had a relatively easy time
establishing standing. In Sierra Club v. Morton,56 the Supreme Court in 1972 held
that injury to aesthetic and environmental well-being may constitute “injury in fact”
for purposes of establishing standing to seek judicial review under the Administrative
Procedure Act (APA).57 Moreover, the fact that the injury was “shared by the many”

53Baker v. Carr, 369 U.S. 186, 204 (1962).
54Within limits, “Congress has the power to define injuries and articulate chains of causation
that will give rise to a case or controversy where none existed before ....” Lujan v. Defenders
of Wildlife, 504 U.S. 555, 580 (1992) (Kennedy, J., concurring). Accord, Vermont Agency
of Natural Resources v. United States, 529 U.S. 765, 773 (2000).
55See, e.g., Vermont Agency, 529 U.S. at 771.
56 405 U.S. 727 (1972).
57The APA requires that those seeking review under that statute have “suffer[ed] legal

did not make it less deserving.58 The following year, in what is regarded as the
apogee of relaxed standing law, the Court in United States v. SCRAP59 found APA
standing based on an attenuated argument by a student group seeking to compel the
ICC to suspend a proposed freight rate increase. The group argued that the rate
increase would raise the price of recyclable materials, which would discourage their
use, which would result in increased use of nonrecyclable materials, which would
lead to adverse environmental impacts (e.g., increased litter) on the forests and
streams in the D.C. area that group members used for recreation.
Following Sierra Club and SCRAP, the standing hurdle remained easily
surmounted in environmental cases for almost two decades. In 1983, however, then-
Judge Antonin Scalia argued in a law review article that federal courts were
conferring standing too liberally,60 complaining in particular of their “love affair with
environmental litigation.”61 For one thing, he said, courts need to accord greater
weight to the traditional requirement that plaintiff’s alleged injury be a particularized
one, which sets him or her apart from the public at large. For another, he asserted
that courts should be less intrusive into executive branch affairs, particularly when
the plaintiff seeks to vindicate majoritarian interests. The law of standing, in Judge
Scalia’s view, should restrict courts to protecting the minority against the majority.
Important here, he seemed to place many environmental suits in the undesirable
vindication-of-the-majority category.62
When Judge Scalia ascended to the Supreme Court in 1986, this article assumed
some significance. And indeed, now-Justice Scalia authored the majority opinions
in each of the Supreme Court’s environmental standing decisions in the 1990s. Not
surprisingly, these opinions reflect his law review article, and define a new phase of
the Court’s environmental standing jurisprudence.
All the decisions in this new phase that involved environmental plaintiffs found
them to lack standing. In Lujan v. National Wildlife Federation,63 the Court held 5-4
that where individual plaintiffs averred only that they recreated on unspecified

wrong,” or be “adversely affected” or “aggrieved,” by the challenged agency action. 5
U.S.C. § 702. Courts typically assume congruence between the APA test and the “injury
in fact” test for Article III standing.
58 To be sure, the Court denied the Sierra Club standing, because the Club had failed to
allege that it or its members were among the injured. This deficiency was easily remedied
on remand by the Club’s amending its complaint to allege recreational harm to those of its
members who visited the affected area.
59412 U.S. 669 (1973).
60Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of
Powers, 17 SUFFOLK L. REV. 881 (1983).
61Id. at 884.
62Also underlying Justice Scalia’s narrow view of standing is his dissent in Morrison v.
Olson, 487 U.S. 654, 697 (1988). There, he opined that the Constitution permits only the
executive branch to enforce a public law.
63497 U.S. 871 (1990).

portions of public land, there was insufficient geographic specificity to say they were
“adversely affected” under the APA by a Bureau of Land Management action
affecting particular tracts. Similarly, in Lujan v. Defenders of Wildlife,64 the Court
held 7-2 that allegations by the environmental group’s members that they intended
“some day” to visit an area where endangered species might be harmed by the
challenged federal action, lacked the temporal specificity needed to meet the “injury
in fact” prong of Article III standing. Finally, in Steel Co. v. Citizens for a Better
Environment,65 the Court ruled 6-3 that where the defendant came into compliance
during the 60-day notice period before the citizen suit could be filed, the plaintiffs
failed the “redressability” component of Article III standing. For example, the civil
penalties sought by the suit were payable to the U.S. Treasury, not the plaintiffs, and
so could not redress any lingering injury plaintiffs may suffer from the former
violation. 66
Because environmental groups usually seek to establish standing by asserting
the standing of their individual members – known as “associational standing”67 – the
foregoing cases made it more difficult for such organizations as well to sue.
The 1990s drift of the Supreme Court toward an increasingly narrow concept
of environmental standing was abruptly reversed in 2000, through the Court’s
decision in Friends of the Earth v. Laidlaw.68
Friends of the Earth v. Laidlaw
Laidlaw operated a hazardous waste incinerator that discharged wastewater into
a river. Friends of the Earth (FOE) brought a Clean Water Act (CWA) citizen suit69
against Laidlaw, alleging that the incinerator had committed hundreds of violations
of its effluent permit. FOE submitted the affidavits of several of its members
alleging that they were injured by the violations in that they used the river
downstream of Laidlaw’s point of discharge and had curtailed their use because of
concerns about the effect of the violations on human health and fish.

64504 U.S. 555 (1992).
65523 U.S. 83 (1998).
66Conversely, a unanimous Supreme Court opinion authored by Justice Scalia granted
standing under the Endangered Species Act’s citizen suit provision to ranchers and irrigation
districts opposing restrictions under the Act. Bennett v. Spear, 520 U.S. 154 (1997).
67In Hunt v. Washington State Advertising Comm’n, 432 U.S. 333 (1977), the Supreme
Court articulated the test for determining whether an organization can assert associational
standing on behalf of its members: (1) its members would otherwise have standing to sue
in their own right; (2) the interests the organization seeks to protect are germane to its
purpose; and (3) neither the claim asserted nor the relief requested requires the participation
of individual members in the lawsuit.
68528 U.S. 167 (2000).
69CWA § 505(a); 33 U.S.C. § 1365(a).

The district court denied injunctive relief since Laidlaw was in substantial
compliance by the time the court issued its order.70 However, it ordered Laidlaw to
pay civil penalties. The Fourth Circuit vacated.71 In its view, the case became moot
once Laidlaw fully complied with its permit and FOE declined to appeal the district
court’s denial of injunctive relief. FOE’s appeal only sought a higher civil penalty
than the district court imposed, and under Steel Co., civil penalties do not meet
redressability requirements since they are not payable to the plaintiff (they go to the
U.S. Treasury).
In 2000, the Supreme Court reversed. Writing for a 7-justice majority,72 Justice
Ginsburg held that the Fourth Circuit erred in concluding that a citizen suit claim for
civil penalties must be dismissed as moot when the defendant, after filing of the suit,
comes into compliance.
The majority first resolved the Article III standing question. As for injury in
fact, it ruled that the relevant showing is injury to the plaintiff, not injury to the
environment. Thus, it was sufficient that FOE members lived downstream from the
point of discharge and were concerned enough by the defendant’s discharges that
they curtailed their use of the river. Plaintiffs did not have to demonstrate harm to
the environment. As for redressability, the Court declared that all civil penalties
have some deterrent effect. Indeed, Congress had said so in the specific context of
CWA enactment and “[t]his congressional determination warrants judicial attention
and respect.”73 Steel Co. does not dictate otherwise, said the Court, since that
decision denied standing for citizen suitors seeking civil penalties for violations that
had abated by the time of suit. Steel Co. did not reach the issue here: standing to
seek penalties for violations ongoing at such time. Thus, plaintiffs had standing.
Turning to the mootness issue (again, raised by the defendant’s coming into
compliance during the district court’s deliberations), the Court charged the Fourth
Circuit with confusing standing and mootness. The confusion was understandable,
the Court conceded, given its past characterization of mootness as “standing set in
a time frame.” In Laidlaw, the Court backed away from that description. It noted,
for example, that the prospect of future noncompliance may be too speculative to
support standing, but not too speculative to overcome mootness. Then, too, the
underlying purpose of the two doctrines counsels greater hesitancy in dismissing a
case on mootness, as opposed to absence of standing, grounds. Standing doctrine
acts to ensure that the scarce resources of the federal courts are devoted to disputes
in which the parties have a concrete interest. In contrast, by the time mootness is an
issue, the case may have been in the courts for years, making abandonment without
compelling reason a wasteful practice.

70956 F. Supp. 588 (D.S.C. 1997).
71149 F.3d 303 (4th Cir. 1998). An earlier CRS report addresses this Fourth Circuit ruling:
Robert Meltz, The Future of the Citizen Suit After Steel Co. and Laidlaw, CRS Report No.
RS20012 (Jan. 5, 1999).
72The dissenters were Justices Scalia and Thomas.
73528 U.S. at 185.

That the facility in question had since been closed, however, gave the majority
pause. The closure might indeed moot the case if this event, or Laidlaw’s earlier
achievement of substantial compliance with its permit requirements, made it
“absolutely clear” that Laidlaw’s permit violations could not reasonably be expected
to recur. These factual issues, not explored by the district court, were found to be
open for consideration on remand.74
Implications of Laidlaw for Environmental Citizen Suits
The Laidlaw decision is a significant win for the plaintiff side of the
environmental citizen suit, likely to make such suits much easier to bring.75 Two
commentators clarify that notwithstanding the increasingly restrictive standing rules,
the number of environmental citizen suits may have doubled from the 1980s to the
1990s.76 They then speculate that while Laidlaw likely will make such suits less
expensive to bring, it may not cause them to be filed in greater number.
Some implications of Laidlaw –
1. It will be easier for plaintiffs to show “injury in fact.” The Laidlaw majority
asserted that where the injury to plaintiff results from a reasonable concern, there is
little need for plaintiff to demonstrate injury to the environment as a predicate. This
altered the prior situation, where plaintiffs’ attorneys were expending substantial
effort (lab analysis of water samples, ecological testing, witness depositions, etc.) just
to get past this threshold issue in the case.
Laidlaw has already borne fruit. One month later, the en banc Fourth Circuit
reversed the panel decision in Friends of the Earth v. Gaston Copper Recycling
Corp., which had denied standing to bring a CWA citizen suit.77 The en banc court
noted that on the facts presented, denying standing “encroaches on congressional
authority by erecting barriers to standing so high as to frustrate citizen enforcement
of the Clean Water Act.” The citizen suit provision at issue, it observed, uses
language that cannot be reconciled with the strict standard of injury employed in the
decisions below. To Gaston Copper’s defense that plaintiff had not adequately
proved environmental degradation to show injury in fact for Article III purposes, the
court held up Laidlaw’s focus on injury to the plaintiff. “[Plaintiff’s] reasonable fear

74The Supreme Court therefore remanded the case to the Fourth Circuit, which, in turn,
remanded to the district court. 208 F.3d 209 (4th Cir. 2000) (table entry). Since then,
Laidlaw has gone bankrupt.
75See, e.g., Symposium, Citizen Suits and the Future of Standing in the 21st Century: From
Lujan to Laidlaw and Beyond, DUKE ENVL L. & POLY FORUM (Spring, 2001 and Fall,
2001); Michael P. Healy, Standing in Environmental Citizen Suits: Laidlaw’s Clarification
of the Injury-in-Fact and Redressability Requirements, 30 ENVTL. L. RPTR. 10455 (2000).
Our discussion of Laidlaw omits the attorneys’ fee issue in the case, an important one
for cash-strapped public interest groups considering whether to file citizen suits, but outside
the constitutional focus of this report.
76Robert V. Percival and Joanna Groger, Escaping the Common Law’s Shadow: Standing
in the Light of Laidlaw, 12 DUKE ENVL L. & POLY FORUM 147 (2001).
77204 F.3d 149 (4th Cir. 2000) (en banc).

and concern about the effects of Gaston Copper’s discharge, supported by objective
evidence ... constitutes injury in fact.”
Laidlaw also calls into question the no-standing holding in Public Interest
Research Group of New Jersey, Inc. v. Magnesium Elektron, Inc.,78 yet another CWA
citizen-suit decision. There, the Third Circuit correctly said that the mere knowledge
that a company has polluted is insufficient to confer standing, since this is a
generalized grievance shared by the public at large. In conflict with the future
Laidlaw decision, however, the court went on to conclude that standing requires a
showing of actual, tangible injury to the environment. This aspect of Magnesium
Elektron no longer appears to be good law.
2. It will be easier for plaintiffs seeking civil penalties to satisfy the
“redressability” component of standing, even though the penalties are not payable to
the plaintiff. The Court’s statement that “all civil penalties have some deterrent
effect” is a powerful one for citizen suitors. There are currently several citizen-suit
provisions that allow claims for money penalties payable to the U.S. Treasury. Note
also: because the Court seems inclined to defer to congressional findings in this area,
it may be useful in the future for proponents of new citizen-suit provisions
authorizing civil penalties to accompany them with assertions of deterrent effect.
3. The majority retained the traditional view that makes it hard for a defendant
to obtain a dismissal based on mootness once a plaintiff has established standing.
4. Two facts suggest that Laidlaw’s reversal of the 1990s trend toward higher
standing hurdles may be more than temporary. First, the Court did not have to decide
the standing question at all in the case; mootness was the principal issue presented,
and the petitioner’s briefs were focused there. That Justice Ginsburg reached out to
resolve the standing issue when it was unnecessary to do so points to a desire on the
part of at least some justices to move the pendulum back to some extent. Second, it
may be significant that the majority opinion commanded fully 7 votes, including
some justices normally on the no-standing side of the Court’s decisions.
5. It now appears that only a minority of the justices are sympathetic to Justice
Scalia’s view that the Constitution prohibits a private party from enforcing a public
Following Laidlaw, the Court again found standing in Vermont Agency of
Natural Resources v. United States.79 This case involved the specialized context of
qui tam suits, but has some relevance to environmental citizen suits. Under the False
Claims Act, a private person may bring suit against an entity that submits a false
money claim to the federal government. Such suit, says the Act, is brought “for the
person and for the United States Government”80 and, if successful, entitles the
plaintiff (called the “relator”) to a portion of any proceeds from the action. These are
the defining characteristics of a qui tam action. But since the relator himself suffers

78123 F.3d 111 (3rd Cir. 1997).
79529 U.S. 765 (2000).
8031 U.S.C. § 3730(b)(1) (emphasis added).

no injury supporting a finding of injury in fact (unlike the citizen-suit plaintiff), the
issue arose whether a qui tam relator has standing.
The Vermont Agency Court found an adequate basis for the relator’s standing
by viewing the relator as a partial assignee of the United States’ claim against the
alleged false claimant. Citing the doctrine that the assignee of a claim may assert the
injury in act suffered by the assignor, the holding of relator standing directly
followed. The interesting question is whether this rationale opens the door for
congressional redefinition of citizen-suit plaintiffs as assignees of federal law-
enforcement interests. However, the liberalization of standing rules by Laidlaw
undercuts the need for such an effort.
Fifth Amendment: The Takings Issue
The Takings Clause of the Fifth Amendment states: [N]or shall private property
be taken for public use, without just compensation.” But when, precisely, does a
government action sufficiently interfere with private property as to effectively “take”
it – outside of the obvious circumstance when the government formally condemns
or confiscates property? Answering this question has involved the courts in a
delicate and usually ad hoc balancing act between the needs of society at large and
the rights of the individual property owner.
The rise of the takings issue coincides with the growth during the twentieth
century of government regulation of land use – from the advent of comprehensive
municipal zoning in the early part of the century, to the widespread use of
environmental, historic preservation, growth control, open space preservation, and
other government interventions by the 1960s and 1970s. In 1978, a takings challenge
to a historic preservation ordinance yielded a Supreme Court decision clearly
signaling the Court’s interest in developing a coherent theoretical framework in the
takings area.81 Since then, the advent of a conservative majority on the Supreme
Court interested in expanding Takings Clause protections has ensured that every
Court term includes at least one takings decision. (In the Congress and many state
legislatures, property rights partisans, particularly during the 1990s, gave the issue
a legislative face as well as a judicial one, by introducing “property rights bills.”
Some of these bills would have given the property owner aggrieved by regulation a
right of action against the government considerably more favorable than that under
the Takings Clause. None were enacted by Congress.)
When a landowner brings a “taking action” against the United States (or state
or local government for that matter), there are myriad threshold issues that must be
surmounted before the merits of the case are even reached. Is the government action
at issue more appropriately viewed as something other than a taking – perhaps a

81Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978).

breach of contract or a tort?82 Is plaintiff in the right court?83 Is the interest plaintiff
claims to have been taken one that the Takings Clause recognizes as “property”? (If
not, there can be no taking.) Did plaintiff own the property as of the date of the
alleged taking? (If not, any physical taking claim, and some regulatory takings
claims, will be precluded.) Has the statute of limitations expired?84 Is the case ripe
– that is, has there been a “final” government decision?85 (Except when challenging
a government delay, a “final decision” is a prerequisite for a taking claim.) Was the
federal agency action in question authorized?86 (If not, it cannot be the basis for a
taking claim.) Did the federal agency assert merely private (non-sovereign) property
rights – i.e., the same as any property owner might assert?87 (If so, the Takings
Clause is inapplicable.) Many takings cases founder at the outset on these shoals.
If the substantive takings issue is reached, one confronts a body of law often
described as muddled and vague. This is doubtless true to a degree, though today’s
takings jurisprudence plainly has come a long way from the almost completely ad hoc
situation before 1978. In any event, the initial question in the merits phase is which
of the three basic categories of takings, and which subcategory, best describes the
property owner’s claim. The court’s answer significantly affects the owner’s chances
of success.
1. Regulatory takings. In a regulatory taking claim, the property owner asserts
that despite the absence of any physical intrusion by government or its
instrumentalities onto the private property or any government appropriation of that
property, a taking has been effected by government regulation of the property’s use.
There are two subcategories of regulatory takings. If the regulation deprives
the property of all economic use and/or value, a taking automatically will be found
– provided the regulation could not have been imposed under “background principles
of the State’s law of property and nuisance” existing when the property was

82See note 83 infra.
83Under the Tucker Act, 28 U.S.C. § 1491(a), jurisdiction over almost all takings claims
against the United States is vested in the U.S. Court of Federal Claims (CFC). This CFC
jurisdiction is effectively exclusive as to takings claims for more than $10,000, since the
Little Tucker Act, 28 U.S.C. § 1346(a), grants the district courts jurisdiction over takings
claims against the United States only for claims seeking $10,000 or less. The Tucker Act
does not give the CFC jurisdiction over tort claims against the United States, which must
be heard in the district courts.
84The statute of limitations for takings claims against the United States is six years, whether
the claim is one over which the CFC has jurisdiction (28 U.S.C. § 2501) or not (28 U.S.C.
§ 2401).
85The leading authority for the “final decision” ripeness requirement of takings law is
Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985).
86See, e.g., Del Rio Drilling Programs, Inc. v. United States, 146 F.3d 1358 (Fed. Cir. 1998).
87See, e.g., Janicki Logging Co. v. United States, 36 Fed. Cl. 338 (1996), affirmed, 124 F.3d

226 (1997) (table entry).

acquired.88 This is called the “total taking” rule. If, far more commonly, the
regulation removes only a portion – even a very substantial portion – of the
property’s use or value, then ad hoc balancing is used. to decide whether a taking
occurred. Under this “partial regulatory taking” test, a court assesses the government
action for its (1) economic impact on the property, (2) degree of interference with the
property owner’s “reasonable investment-backed expectations,” and (3) “character.”89
While recent Supreme Court rulings strongly suggest that the above multifactor
balancing approach governs in the overwhelming majority of regulatory takings
cases,90 it has done little to explicate the three factors. Based on the case law,
however, we can reasonably say the following. As to the economic impact factor, the
degree of loss (in use or value) must be very substantial before a taking occurs.
Plaintiff’s ability to recoup his/her cost basis is also relevant. And both direct and
indirect benefits conferred by the regulatory scheme may offset the immediate
economic impact on the property owner. As to interference with investment-backed
expectations, the fact that the regulatory scheme in question predates plaintiff’s
acquisition of the property does not automatically preclude the taking action (see
“notice rule” discussion below). But those who enter a heavily regulated field have
limited expectations of being free of any subsequent strengthening of the regulatory
strictures. As to the “character” of the government action, the Supreme Court
initially explained that this factor chiefly referred to the fact that takings are more
readily found in the case of physical invasions, as compared to purely regulatory
interferences. Yet other elements are now understood to be within this most elastic
of the three factors. For example, it includes a balancing of the public interest
advanced by the government measure against the burden imposed on the property
owner and a requirement that plaintiff allege the taking of a specific property interest,
rather than, say, only a generalized monetary liability.
A cross-cutting issue arising with both total takings claims and partial regulatory
takings claims is the question of the “parcel as a whole.” This conundrum stems
from the fact that takings law, in assessing the economic impact and interference with
investment-backed expectations factors, looks not at the absolute amount of the
property owner’s loss, but rather at the loss relative to what the owner retains. To
assess what the property owner retains, a court is required to look at the parcel as a
whole, in any of its three dimensions. The spatial dimension asks which acreage
owned by plaintiff should be included in the assessment of the government action’s

88Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1029 (1992). Despite the
reference in the text quote to “State’s,” references elsewhere in Lucas and in subsequent
case law make clear that federal law as well can be the source of “background principles.”
89Penn Central, 438 at 124.
90An independent test for regulatory takings created by the Supreme Court finds a taking
when the government action fails to substantially advance a legitimate government interest.
Agins v. City of Tiburon, 447 U.S. 255, 260 (1980). This means-end test is a very different
animal than the prevailing multifactor balancing method just described in the text, which
primarily looks at the economic effects of government action. Perhaps reflecting judicial
awareness of this uncomfortable fit, the “substantially advance” test has been infrequently
used by courts. In any event, there can be little argument that federal environmental statutes
do substantially advance a legitimate government purpose.

impact. At a minimum, we know that acreage cannot be excluded from the parcel
as a whole merely because it is in a different regulatory status than the restricted
acreage claimed to have been taken. The functional dimension of parcel as a whole
focuses on the rights plaintiff still has in the property – one must examine, in the
common metaphor, the entire “bundle of rights” possessed by plaintiff. And the
temporal dimension asks whether, notwithstanding plaintiff’s inability to make
economic use of the property during one period in the life span of the property
interest, there is another period when the property can be so used.
Two specialized issues in regulatory takings law have occupied the Supreme
Court recently. First, the notice rule. In the 1990s, many courts held that a taking
action was barred absolutely whenever a land-use restriction was imposed under a
regulatory scheme predating plaintiff’s acquisition of the property. This is known as
the “notice rule.” It was justified on the grounds that a land buyer assumes the risk
that development will be thwarted under the pre-existing regime and presumably
bought at a discounted price reflecting that risk. The notice rule’s importance can
hardly be overstated; after another decade or two, few landowners will be left who
purchased prior to the advent of many federal environmental programs, and thus can
bypass the rule.91 In 2001, however, the Supreme Court emphatically rejected the
absolute version of the notice rule, holding that the pre-acquisition existence of a
regulatory program was not a per se bar to later takings actions.92 A year later, the
Court clarified, albeit in dicta, that a pre-acquisition regime still retains some
persuasive role in the regulatory takings equation, even if not a dispositive one.93
Second, the expressly temporary restriction. Typically, the regulation
challenged as a regulatory taking is of indefinite duration. In the most recent
Supreme Court taking decision,94 however, the Court dealt with a very different
entity: the regulation declared at the outset to be temporary. Such expressly
temporary land-use restrictions commonly take the form of development moratoria
imposed by local governments to maintain the status quo until a study of the impacts
of future development can be completed. Congress as well has used temporary
moratoria, as in connection with Outer Continental Shelf oil and gas production.
The Court declared that for such expressly temporary development bans, the per
se “total taking” analysis used for initially indefinite bans is inappropriate.
Notwithstanding the owner’s inability to make of his/her property for a time, the
former ban is generally to be analyzed under the multifactor balancing test for partial
regulatory takings. Under this test, the economic impact and duration of the ban are
merely two of many factors, and the ban, if of reasonable duration and for a
legitimate public purpose, is likely not to be a taking.

91For example, the statutory authority for the federal wetlands permitting program, in Clean
Water Act section 404, was enacted in 1972.
92Palazzolo v. Rhode Island, 533 U.S. 606 (2001).
93Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 122 S. Ct. 1465

Overall, a wide spectrum of federal activities has sparked regulatory takings
claims, including bankruptcy laws, controls on health care costs, required funding of
pension plans and other employee benefits, settlement of private international claims
and freezing of aliens’ assets, and, our interest here, environmental regulation.

2. Physical takings. A physical taking claim asserts that the government,

directly or through third parties, has effected a physical invasion of private property.
As with regulatory takings, there are two subtypes. If the invasion is deemed95
“permanent,” it will be held a taking in almost all instances. If the invasion is only
temporary, the three-factor regulatory taking test above is invoked, under which the
invasion may or may not be a taking (but generally not).
Federal actions that often bring on physical takings claims include flooding from
federal dams and other water projects, overflights of federal aircraft, and, in the
environmental arena, the rails-to-trails and Superfund cleanup programs.
3. Exaction conditions on development permits. Here, the government doesn’t
forbid the land use, but rather demands a concession (“exaction”) from the landowner
in return for approving the use. To survive takings challenge, such an exaction
condition must satisfy two criteria. It must substantially advance the same
government purpose as justified the permit program in question.96 And the burden
imposed on the property owner by the exaction must be no greater than “roughly
proportional” to the burden that the property owner’s proposed project would have
on the community.97 Exactions-based takings claims are myriad at the local level.
Curiously, however, the exactions test has never been invoked by a court deciding
a taking claim against the United States, though some federal activity, such as the
mitigation conditions imposed on wetlands permits and “incidental take permits”
under the Endangered Species Act, arguably falls within the test’s reach.98
So much for how courts determine whether a taking has occurred. We come
finally to the question of the constitutionally mandated remedy once a taking is
found, a long unresolved matter. The government, says the Supreme Court,
generally must pay compensation. In the usual case, it does not satisfy the
Constitution for the court to invalidate the act found to have caused a taking, or for
the government agency to rescind it.99

95Loretto v. Teleprompter Manhattan CATV, 458 U.S. 419 (1982).
96Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987).
97Dolan v. City of Tigard, 512 U.S. 374 (1994).
98See Robert Meltz, Wetlands Regulation and the Law of Property Rights “Takings”at 24-

25, CRS Report No. RL30423 (Feb. 17, 2000) (hereinafter Wetlands Regulation).

99First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304
(1987). In a few exotic circumstances, the remedy of judicial invalidation for a taking
remains. See, e.g., Eastern Enterprises v. Apfel, 524 U.S. 498, 521-522 (1998) (statute
requiring direct transfer of funds); Babbitt v. Youpee, 519 U.S. 234 (1997) (statute
substantially interfering with rights of descent and devise).

Cases Involving Federal Environmental Statutes
Though the takings issue most often arises in disputes over local land-use
regulation, several federal environmental programs have been implicated, as noted.
In the regulatory takings realm, the federal environmental program most
commonly attacked is the Corps of Engineers/EPA wetlands permitting scheme
under the Clean Water Act – known as the “404 program.”100 Almost the entire
spectrum of regulatory takings issues has arisen at some point in these wetlands
cases. 101
Two fact scenarios are common in the wetlands/takings cases. In the first, the
wetland owner is denied a 404 permit. As a result, he/she argues that the property
of which the wetland is a part has severely declined in economic use or value – that
is, has been effectively taken.102 Establishing ripeness here has proved much easier
than for landowners dealing with local land-use agencies. The latter must deal with
frequent judicial demands that following denial of the owner’s initial proposal, he/she
must return to the land-use agency with scaled-down or reconfigured proposals, so
the court can ascertain the degree of development that will be accepted. By contrast,
the Court of Federal Claims (CFC, where most takings claims against the United
States must be brought) has thus far always accepted the first permit denial – if on
the merits – as indicating the Corps’ disinclination to permit any development
whatsoever, making subsequent applications by the landowner futile.103
Once past the ripeness hurdle, permit-denied plaintiffs have enjoyed some
success in convincing the CFC and its appellate court, the Federal Circuit, that a
taking occurred – under either the “total taking” rule or the three-factor balancing
test. Five section 404 permit-denial cases to date have found takings,104 while a
somewhat greater number have been unsuccessful. Prominent issues in these
wetlands/takings cases include how to define the “parcel as a whole” to be used in
the takings analysis – e.g., whether to include acreage sold off prior to the permit
denial (depends on the facts), or contiguous subdivision lots owned by the plaintiff
(generally yes). Another recurring issue is how great the drop in market value must

100CWA § 404; 33 U.S.C. § 1344.
101For more detailed treatment, see Wetlands Regulation, supra note 98.
102The Corps’ mere designation of a parcel as within its wetlands permit jurisdiction cannot
by itself be a taking, since it leaves open the possibility that the permit, if applied for, will
be granted. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985). The
same holds true when the Corps orders construction on a wetland to cease and desist until
the owner secures a permit. Tabb Lakes, Inc. v. United States, 10 F.3d 796 (Fed. Cir. 1993).
103See, e.g., Cooley v. United States, 46 Fed. Cl. 538 (2000), appeal pending; Cristina Inv.
Corp. v. United States, 40 Fed. Cl. 571 (1998); City Nat’l Bank v. United States, 30 Fed. Cl.

715 (1994); Formanek v. United States, 18 Cl. Ct. 785 (1989); Beure-Co. v. United States,

16 Cl. Ct. 42 (1988); Loveladies Harbor, Inc. v. United States, 15 Cl. Ct. 381 (1988).

104In reverse chronological order: Cooley v. United States, 46 Fed. Cl. 538 (2000), appeal
pending; Florida Rock Industries, Inc. v. United States, 45 Fed. Cl. 21 (1999); Loveladies
Harbor, Inc. v. United States, 28 F.3d 1171 (Fed. Cir. 1994); Bowles v. United States, 31
Fed. Cl. 37 (1994); Formanek v. United States, 26 Cl. Ct. 332 (1992).

be as a result of the permit denial to support a finding of a taking (recent decisions
say that a 60-70% value loss is sufficient, a lowering of the threshold suggested in
earlier takings cases105).
The second common scenario in the wetlands/takings cases arises when actions
of the Corps cause delay in developing a parcel, though eventually the project
proceeds. Such delays are addressed through claims of temporary, rather than
permanent, takings. Most of the delay cases involve property owner objection to the
time taken by the Corps to process permit applications. Courts hold that the key
factor in the takings analysis is whether the wait was, under the circumstances,
unreasonable or extraordinary.106 The extraordinariness inquiry entails a look at
whether the delay was unduly protracted in light of the complexity of the regulatory
scheme, whether the owner failed to take actions that might have shortened the
processing time, and other circumstances. To date, federal courts have held that
waiting periods for section 404 permits up to two years did not, under the
circumstances presented, work a taking.107 Another delay scenario is when a Corps
action is withdrawn because of agency error. Viewing such delays as part of
government decisionmaking, the courts have again applied the extraordinary delay
standard and rejected all takings claims so far.108
Many federal environmental programs outside the wetlands realm also have
generated regulatory takings decisions – but far fewer per program. The Endangered
Species Act,109 despite its high profile in the property rights debate, has produced
only a few reported takings decisions, and only one in which the property owner
succeeded.110 Surface mining restrictions under the Surface Mining Control and
Reclamation Act111 have prompted a few claims – with some being successful.112
Regulatory takings claims against the Superfund Act, largely targeting its retroactive
liability scheme, have all failed.113

105Florida Rock Industries, Inc. v. United States, 18 F.3d 1560, 1567 (Fed. Cir. 1994) (62-
1/2% value loss might be sufficient to take), on remand, 45 Fed. Cl. 21 (1999) (73.1% value
loss found to be taking).
106See, e.g., Walcek v. United States, 44 Fed. Cl. 462, 467 (1999); Norman v. United States,

38 Fed. Cl. 417, 427 (1997) (collecting cases).

107See, e.g., 1902 Atlantic, Ltd. v. United States, 26 Fed. Cl. 575 (1992); Dufau v. United
States, 22 Cl. Ct. 156 (1990).
108See, e.g., Tabb Lakes, Inc. v. United States, 10 F.3d 796 (Fed. Cir. 1993).
10916 U.S.C. §§ 1531-1544.
110The one successful claim is Tulare Lake Basin Water Storage Dist. v. United States, 49
Fed. Cl. 313 (2001), which is still subject to appeal.
11130 U.S.C. §§ 1201-1328.
112One successful claim is Whitney Benefits, Inc. v. United States, 926 F.2d 1169 (Fed.
Cir.), cert. denied, 502 U.S. 952 (1995), in which the parties settled for $200 million – the
largest regulatory takings payment by the United States revealed by our research.
113See, e.g., Franklin County Convention Facilities Auth. v. American Premier Underwriters,
Inc. 240 F.3d 534, 552-553 (6th Cir. 2001).

Federal environmental laws that have produced physical takings rulings include,
first, the rails-to-trails program.114 Here, the holder of the fee title underlying the
railroad right of way asserts a permanent physical occupation of his/her land when
the right of way is taken over by recreational trail users. If the railroad holds only an
easement for railroad use, the fee title holder wins.115 Second, the Superfund
program has been found to cause a physical taking where monitoring equipment and
government inspections are imposed on an unwilling owner of contaminated (or
possibly contaminated) property.116 The benefits accruing to the plaintiff from the
government-funded action, however, may be viewed by the court as offsetting the
compensation otherwise owed, producing an award of zero dollars – taking
notwithstanding. 117
Tenth Amendment:
Federal Intrusions on State Sovereignty
The Tenth Amendment states: “The powers not delegated to the United States
by the Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people.” Once dismissed by the Supreme Court as “but a118
truism,” the Court today discerns in these words a bulwark of states’ rights in our
federal-state system of government. On other occasions, the Court has derived the
same protection for states’ rights by inquiring whether an act of Congress is
authorized by one of the powers delegated to Congress in Article I, such as the
commerce power. “[T]he two inquiries,” says the Court, “are mirror images of each
The invigoration of the Tenth Amendment has played out in cases dealing with
Congress’ ability to regulate the states directly – instances where a federal mandate
tells a state or state official what that entity must do. Initially, the context was
whether Congress could subject states to the same restrictions it applies to private
parties. In a series of decisions beginning in the 1960s, the Court agonized over this
issue, eventually concluding in 1985 that its earlier effort to immunize the
“traditional governmental functions” of the states from federal mandates was “both120
impractical and doctrinally barren.” For the most part, it indicated, states must
seek protection from the impact of federal regulation in the political process, not in

11416 U.S.C. §1247(d).
115See, e.g., Preseault v. United States, 100 F.3d 1525 (Fed. Cir. 1996).
116Hendler v. United States, 952 F.2d 1364 (Fed. Cir. 1991).
117Hendler, 38 Fed. Cl. 611 (1997).
118United States v. Darby, 312 U.S. 100, 124 (1941).
119New York v. United States, 505 U.S. 144, 156 (1992).
120Garcia v. San Antonio Metropolitan Transit Auth., 469 U.S. 528, 557 (1985), overruling
National League of Cities v. Usery, 426 U.S. 833 (1976) .

any limitations imposed by the Tenth Amendment or the Commerce Clause.
Prophetically, a dissent by then-Justice Rehnquist predicted a future time when the
Court would restore those abandoned limitations on federal power.121
In the 1990s, that time came. With a conservative majority now solidified on
the Court, the pendulum swung back toward state immunity – in a related, but
different, context. The new cases asked whether Congress can compel state
legislative branch and executive branch participation in the implementation of
Commerce Clause-based federal programs.122 The Court’s answer was no, if the state
is being made to act in its sovereign capacity.
The first decision was New York v. United States,123 invalidating a federal law
requiring that any state failing to provide for permanent disposal of low-level
radioactive waste generated within its borders must take title to the waste. The Court
held that Congress may not "commandeer the legislative processes of the States by
directly compelling them to enact and enforce a federal regulatory program."124 At
the same time, it hastened to add, Congress may "encourage" states to regulate in a
particular way. For example, Congress may, under its Spending Power,125 attach
conditions to the receipt of federal funds (at least where they bear some relationship
to the purpose of the federal spending). Or Congress may offer states the choice
between regulating an activity according to federal standards or having state law
preempted by federal regulation. The Court specifically noted the Clean Water Act,
Resource Conservation and Recovery Act, and Alaska National Interest Lands
Conservation Act as examples of the preemption route.126
In the second decision, Printz v. United States,127 the Supreme Court voided a
provision of the Brady Handgun Violence Protection Act requiring the chief law
enforcement officer of a local jurisdiction to do a background check on would-be
purchasers of handguns. The Brady Act thus commanded such officers to participate
in administering a federal regulatory scheme. The Court concluded, this time in the
executive branch context, that the United States may not compel state involvement
in a federal program. "Congress," said the Court, "cannot circumvent [New York's
prohibition on compelling sovereign acts] by conscripting the State's officers

121469 U.S. at 580.
122The Court had flirted with the question of compelled state participation earlier, in 1981,
and hinted in dictum at its unconstitutionality. Hodel v. Virginia Surface Mining &
Reclamation Ass’n, 452 U.S. 264, 288 (1981).
123505 U.S. 144 (1992).
124Id. at 161.
125U.S. Const. art. I, § 8, cl. 1.
126505 U.S. at 167-168.
127521 U.S. 898 (1997).
128Id. at 935. In contrast with the state’s legislative and executive branches, Printz made
clear that it is permissible for Congress to impose an obligation on state judges to enforce

Environmental Cases in the Wake of New York and Printz
Since New York, research reveals only one successful Tenth Amendment
challenge to a federal environmental statute. ACORN v. Edwards129 addressed a Safe
Drinking Water Act (SDWA) provision that required each state to establish a
program, meeting federal standards, to assist schools in remedying potential lead
contamination in their drinking water systems. Failure to do so subjected the states
to federal civil enforcement. Such "[c]ongressional conscription of state legislative
functions," said the Fifth Circuit, "is clearly prohibited under [New York] ...."130
Congress is free to regulate drinking water coolers in interstate commerce directly,
but not through the states as conduits to the people. The SDWA provision, it
concluded, deprives the state of the option of declining to regulate drinking water
systems, and is therefore unconstitutional.
ACORN, it need hardly be said, was an easy case for the challenger. In another
post-New York decision, the Fourth Circuit in Virginia v. Browner131 failed to find
the direct compulsion of state action that the Supreme Court prohibited. Virginia
was a state challenge to EPA’s use of sanctions against the state, required under the
Clean Air Act when a state submits an inadequate stationary source permitting
scheme. In sustaining EPA’s cut-off of certain federal highway funds to the state, the
decision echoes the settled view that reasonable conditions on the grant of federal
funds are not legally equivalent to compulsion, even when they have significant
consequences for a state.132 Arguing unconstitutionality here is particularly difficult
now that New York has specifically endorsed reasonable funding conditions as a
means of encouraging state participation in federal programs.133
A second federal-environmental-statute technique blessed by Virginia is
sanctions triggered by state inaction, but applying solely to private activity. EPA had
imposed on the state the Clean Air Act’s “offset sanction,” under which the quantity
of existing emissions that has to be eliminated for every ton of new emissions (from
a new factory or modified existing one) was set at 2:1 – greater than the ratio that
otherwise would apply. While this sanction may burden the state's citizens

federal prescriptions. Id. at 905-907.
12981 F.3d 1387 (5th Cir. 1996), cert. denied, 521 U.S. 1129 (1997).
13081 F.3d at 1394.
13180 F.3d 869 (4th Cir. 1996), cert. denied, 519 U.S. 1090 (1997).
13280 F.3d at 881-882 (Clean Air Act highway funds sanction is reasonably limited, hence
is not outright coercion). Earlier decisions in accord are Pacific Legal Found. v. Costle, 14
ENVT. RPTR. (CASES) 2121, 2128 (E.D. Cal.), affirmed, 627 F.2d 917 (9th Cir. 1980), cert.
denied, 450 U.S. 914 (1981) (also sustaining the Clean Air Act highway funds sanction),
and Texas Landowners Rights Ass’n v. Harris, 453 F. Supp. 1025 (D.D.C. 1978), affirmed
without op., 598 F.2d 311 (D.C. Cir. 1979) (National Flood Insurance Program).
133505 U.S. at 167.

(individuals proposing to build or modify a factory), the court held that it did not
burden the state as a government, and thus did not offend the Tenth Amendment.134
Third and finally, federal implementation of a federally desired program within
a state when the state fails to act, another common approach, is constitutional.135 As
above, the state is not compelled to regulate. For the same reason, the mirror image
of this arrangement -- ending the federal program within the state if the state adopts
its own program meeting federal criteria -- is also constitutional.136
When the State Itself Engages in the Regulated Activity
There appears to be one circumstance when the United States may regulate the
state or political subdivision directly: when the state or local authority itself engages
in an activity that Congress legitimately may regulate under the commerce power.
This may occur, for example, when a county operates a fleet of waste-collection
trucks, with their attendant emissions, or a solid waste landfill.137 Here, federal
regulation burdens the state not as sovereign government, but solely in its
"enterprise" capacity. Such burdens do not implicate the federalism concerns raised
by federal encroachments on state sovereignty.138
A recent and unanimous Supreme Court opinion affirms this
sovereign/enterprise distinction. In Reno v. Condon,139 the Court was faced with the
federal Driver’s Privacy Protection Act, a statute that regulates the disclosure of
personal information contained in the records of state motor vehicle departments.
Many states sell such information, generating significant revenues. The statute was
inoffensive to Tenth Amendment federalism principles, held the Court; it regulates
states as owners of databases, rather than requiring states in their sovereign capacity
to regulate their own citizens. It does not compel states to enact any laws,
unconstitutional under New York v. United States, or require state officials to assist
in administering a federal program, unconstitutional under Printz v. United States.

13480 F.3d at 882 (Clean Air Act emissions offset sanction).
135Id. at 882-883 (Clean Air Act federal permit program implementation). Another example
is Clean Air Act section 110(c)(1), 42 U.S.C. § 7410(c)(1), authorizing U.S. EPA to
promulgate a federal implementation plan for a state when it fails to submit an adequate
13680 F.3d at 882-883, noting approval of this technique in the Surface Mining Control and
Reclamation Act by Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264
(1981). Another example is Clean Water Act section 402(b), 33 U.S.C. § 1342(b),
authorizing the substitution of federally approved state discharge permitting programs for
the existing federal program.
137Whether current Tenth Amendment jurisprudence applies to political subdivisions of
states, as well as to the states themselves, appears not to have been directly addressed by the
Supreme Court. However, the plaintiffs in Printz were county sheriffs.
138This state-as-polluter exemption raises serious constitutional questions, however, if
broadly construed to embrace state actions or inactions that cause pollution only indirectly,
such as building highways. Brown v. EPA, 566 F.2d 665, 672 (9th Cir. 1977).
139528 U.S. 141 (2000).

Things blur a bit when the act which constitutes the regulated activity is an act
of the state government in its sovereign capacity. In Strahan v. Coxe,140 a state’s
regulation of commercial fishing was held likely to be a “taking” of Northern Right
Whales prohibited under the Endangered Species Act. Here, said the court, it is
proper to conclude that the state’s scheme cannot continue insofar as it is inconsistent
with the preemptive federal act. As long as the court’s order does not command
specific regulatory action by the state, it will be held not to have “commandeered”
the state government – as forbidden by New York. Thus, the court could order the
state to consider means by which fishing practices might be modified to avoid
authorizing takings in state waters, but could not order the state to adopt specific
Eleventh Amendment and State Sovereign
Immunity: Federal Authorization of Private Suits
Against States
The Eleventh Amendment is another constitutional provision being used by the
conservative majority on the Supreme Court to effect a more states-rights-oriented
concept of federalism. It states: “The judicial power of the United States shall not
be construed to extend to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State ....” In simpler terms, a federal
court may not hear suits against a state brought by citizens of other states. The
Amendment stands for the proposition that the Supremacy Clause141 of the U.S.
Constitution notwithstanding, not all exercises of congressional power override state
sovereign immunity. The Court’s Eleventh Amendment jurisprudence seeks to
reconcile these two competing principles.
More accurately, it is the not the Eleventh Amendment itself, but rather broader
principles of state sovereign immunity, upon which the Supreme Court has
increasingly relied. In the view of the Court’s conservative majority, the Eleventh
Amendment merely exemplifies the principles of state sovereign immunity otherwise
implicit in the Constitution; it emphatically does not exhaust them.142 The Court
makes a three-step argument. One: “Dual sovereignty is a defining feature of our

140127 F.3d 155 (1st Cir. 1997), cert. denied, 528 U.S. 830, 978 (1998).
141The Supremacy Clause provides: “This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof ... , shall be the supreme Law of the Land, and the
Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any
state to the Contrary notwithstanding.” U.S. Const. art. VI.
142As stated in Alden v. Maine, 527 U.S. 706, 728-729 (1999):
The Eleventh Amendment confirmed rather than established
sovereign immunity as a constitutional principle; it follows that the
scope of the States’ immunity from suit is demarcated not by the text
of the Amendment alone but by fundamental postulates inherent in
the constitutional design.

Nation’s constitutional blueprint.”143 Two: Thus “[s]tates, upon ratification of the
Constitution ... entered the Union with their sovereignty intact.”144 Three: inherent
in that state sovereignty is immunity from unconsented-to suit.
This view of the Eleventh Amendment as merely illustrative of broader
immunity principles has an important consequence: it largely frees the Court of the
Amendment’s textual constraints. Thus, while the Amendment speaks only to suits
against states by citizens “of another state,” the Supreme Court has disallowed
federally authorized suits against unconsenting states even when brought by citizens
of the same state.145 While the Amendment speaks only to suit in federal court, the
Court has barred suits in state court as well.146 While the text deals solely with the
“judicial power” of the United States and “suit[s] in law or equity,” the Court has
barred proceedings against unconsenting states before federal-agency adjudicative
bodies, too.147 And while the Amendment speaks only to suits by “Citizens,” the
Court has prohibited suits by recognized Indian tribes,148 federal corporations,149 and
foreign countries.150
Pivotal to the applicability of the Eleventh Amendment and principles of state
sovereign immunity is the identity of the plaintiff and defendant. As to the plaintiff,
no immunity from suit exists for suits against states by the United States151 or by
another state.152 The states, in ratifying the Constitution, are deemed to have
surrendered at least that portion of their inherent immunity.153 Thus the Amendment
and related immunity principles are limited to private actions against unconsenting
states. As for defendants, the Amendment and related immunity principles extend
to alter egos of the state – state agencies, departments, and officers (when sued in
their official capacity)154 – but not to municipal corporations or other governmental

143Federal Maritime Comm’n v. South Carolina State Ports Auth., 122 S. Ct. 1864, 1870
(2002) (citations omitted).
144Id. “States entering the Union after 1789 did so on an `equal footing’ with the original
states.” Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 283 (1997).
145Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 363 (2001)
(collecting cases). The original decision establishing the text proposition is Hans v.
Louisiana, 134 U.S. 1 (1890).
146Alden v. Maine, 527 U.S. 706 (1999).
147Federal Maritime Comm’n, 122 S. Ct. 1864.
148Blatchford v. Native Village of Noatak, 501 U.S. 775 (1991).
149Smith v. Reeves, 178 U.S. 436 (1900).
150Principality of Monaco v. Mississippi, 292 U.S. 313 (1934).
151Alden v. Maine, 527 U.S. 706, 755 (1999), citing Principality of Monaco v. Mississippi,

292 U.S. 313, 328-329 (1934) (collecting cases).

152Kansas v. Colorado, 206 U.S. 46, 83 (1907).
153Federal Maritime Comm’n, 122 S. Ct. at 1870.
154Edelman v. Jordan, 415 U.S. 651 (1974); MCI Telecomm. Corp. v. Bell Atlantic-
Pennsylvania, 271 F.3d 491, 503 (3d Cir. 2001). A plaintiff can state a claim against a state

entities that are not an arm of the state.155 In contrast with the identity of plaintiff
and defendant, the nature of the relief sought – damages, injunction, or other – is not
relevant to whether suit is barred.156
The Amendment and the constitutional principle of state sovereign immunity
have three exceptions.157
1. Ex parte Young suits. While state immunity extends to state agencies and
state officials who act on behalf of the state, Ex parte Young allows a federal court
to prospectively enjoin a state official from violating federal law.158 The legal fiction
behind this exception is that a suit against a state officer is not a suit against the state
when an injunction is sought against an illegal action, since an officer is seen as not
acting on behalf of the state when he or she acts illegally. Conversely, Ex parte
Young doctrine does not cover retroactive relief that requires the payment of funds
from the state treasury – e.g., imposing civil money penalties for past
noncompliance. 159
The Supreme Court recently has narrowed the Ex parte Young doctrine, but only
minimally – as yet. The more important of its narrowing decisions, at least for
environmental purposes, came in Seminole Tribe of Florida v. Florida.160 There, the
Court held that petitioner’s claim against the state, which was barred by the Eleventh
Amendment, also could not be brought as an Ex parte Young suit against the state
governor. The Court reasoned that “where Congress has prescribed a detailed
remedial scheme for the enforcement against a state of a statutorily created right, the
court should hesitate before casting aside those limitations and permitting an action
against a state officer under Ex parte Young.”161 Particularly is this so where the
“detailed regulatory scheme” involves only “quite modest” sanctions against the state
or state official. Not that Congress cannot, if it chooses, authorize Ex parte Young
suits against state officials even in this circumstance, the Court hastened to add.

officer in his individual capacity, as long as payment is not required from the state treasury.
155Mt. Healthy School Dist. v. Doyle, 429 U.S. 274, 280 (1977).
156Seminole Tribe of Florida v. Florida, 517 U.S. 44, 58 (1996).
157These are also summarized in Alden v. Maine, 527 U.S. 706, 754-757 (1999).
158209 U.S. 123 (1908). The restriction of Ex parte Young suits to state officials accused of
violating federal law derives from Pennhurst State School & Hospital v. Halderman, 465
U.S. 89 (1984). In support, Pennhurst explains that if the violation is of state law, the
intrusion on state sovereignty is great in that a federal court is being asked to instruct state
officials on their own law, while there is no offsetting Supremacy Clause interest.
159Pennhurst, 465 U.S. at 102-103. To be sure, a purely prospective injunction against a
state official may have financial consequences for the state as well. But such consequences,
when the ancillary result of state compliance with decrees that are prospective in nature, “is
a permissible and often an inevitable consequence of the principle announced in Ex Parte
Young ....” Edelman v. Jordan, 415 U.S. 651, 668 (1974).
160517 U.S. 44, 73-76 (1996). The other narrowing opinion is Idaho v. Coeur d’Alene Tribe
of Idaho, 521 U.S. 261, 287 (1997).
161517 U.S. at 74.

Indeed, Congress had done precisely that, in the Court’s view, in the Clean Water Act
citizen-suit provision (by authorizing suit against “any person”) and the Emergency
Planning and Community Right-to-Know Act (holding “the Governor” responsible
for nonperformance).162
As an addendum to our Ex parte Young discussion, passing mention may be
made of the continuing possibility, Eleventh Amendment notwithstanding, of suits
against state officials in their individual capacities for money damages.163 In the
environmental context, however, such suits pale in importance next to the
aforementioned suits for prospective injunctive relief.
2. State consent (waiver). It is well-settled that a state may waive its sovereign
immunity – as, for example, that embodied in the Eleventh Amendment – by
consenting to be sued.164 The more difficult question is what constitutes consent. In
general, the Court insists that waivers of sovereign immunity be “unequivocal.”165
Thus, enactment of a state statute or constitutional provision explicitly consenting to
suit in federal court generally passes muster.166 The same goes for a clear statement
of a state’s agreement to administer a federal-state program that imposes federal
standards on the state. Consent may also take the form of the state’s voluntarily
invoking federal jurisdiction,167 as by its voluntary appearance in federal court as an
intervenor and defense of the case on the merits168 or its removal of a lawsuit from
state court to federal court.169 But in general, the Court has become increasingly
stingy in finding that states waive their immunity by exercising the rights given them
by federal law. Important to environmental regulation, consent will not be presumed
based on the state’s mere presence in a field that is federally regulated – even if the
state activity is one it could realistically choose to abandon, is undertaken for profit,
or is traditionally performed by the private sector.170

162517 U.S. at 75 n.17.
163Hafer v. Melo, 502 U.S. 21, 29-31 (1991).
164College Savings Bank v. Florida Prepaid Post-Secondary Education Expense Bd., 527
U.S. 666, 675 (1999). Consenting to be sued raises a significant issue when the federal
court is blocked from hearing an action because of the Eleventh Amendment proper, rather
than broader notions of sovereign immunity. The Amendment is phrased in terms of federal
court jurisdiction, yet jurisdictional barriers to the courthouse door generally are held not
to be waivable by litigants.
165Id at 680.
166To underscore the text point, the waiver must specify the state’s intention to subject itself
to suit in federal court Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985).
167Id. at 675.
168Clark v. Barnard, 108 U.S. 435 (1883).
169Lapides v. Board of Regents of the University System of Georgia, 122 S. Ct. 1640 (2002).
The waiver principle in the text does not turn on the nature of the relief sought. Id. at 1644.
170College Savings Bank, 527 U.S. at 684.

Mere receipt of federal funds cannot establish consent, though Congress has
broad authority to condition financial grants on state waiver.171 Of course, the
voluntariness of the consent, hence its effectiveness, is destroyed when that which
is attached to refusal to waive immunity is the exclusion of the state from otherwise
lawful activity.172
3. Congressional abrogation of state sovereign immunity. Congress, says the
Supreme Court, may abrogate state immunity pursuant to section 5 of the Fourteenth173
Amendment. That Amendment, adopted after the Civil War, bars states from
depriving persons of life, liberty, or property without due process of law, or denying
to any person equal protection of the laws. Section 5 authorizes Congress “to
enforce, by appropriate legislation” the amendment. By contrast, Congress may not
abrogate state immunity under its Article I authorities, which include the commerce
power. 174
When acting under proper constitutional authority, Congress, if it intends to
abrogate state sovereign immunity, must make its intention “unmistakably clear in
the language of the statute.”175 The mere fact that a statute was passed under the
Fourteenth Amendment is not enough to show that Congress intended to circumvent
state sovereign immunity.176 Also, for legislation to be an “appropriate” remedy
under section 5 of the Fourteenth Amendment, it must be plausibly cast as responsive
to, or designed to prevent, unconstitutional behavior – and not be simply an effort to
define the substance of the Amendment. To that end, there must be a “congruence

171South Dakota v. Dole, 483 U.S. 203 (1987). However, a leading text asks: “Given [the
conservative majority on the Court’s] apparent willingness to chip away at other established
constitutional doctrines in order to protect its vision of untrammeled state sovereign
immunity, ... is the broad authority recognized in Dole ... a technique that may be narrowed
or eliminated?” Richard H. Fallon et al., Hart and Wechsler’s The Federal Courts and theth
Federal System (4 ed.) 111 (1999 Supp.).
Depending on the wording of the federal statute authorizing the federal financial
assistance, the waiver may apply only to the state agency that receives the money. See, e.g.,
Koslow v. Commonwealth of Pennsylvania, 302 F.3d 161 (3d Cir. 2002), petition for cert.
filed, 71 U.S.L.W. 3400 (Nov. 19, 2002) (No. 02-801).
172College Savings Bank v. Florida Prepaid Postsecondary Education Expense Bd., 527 U.S.

666, 687 (1999).

173Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 364 (2001),
citing Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976).
174Board of Trustees, 531 U.S. at 364; Seminole Tribe of Florida v. Florida, 517 U.S. 44
(1996). The type of relief sought against the state (e.g., prospective injunctive relief rather
than retroactive monetary relief) is irrelevant to whether Congress has power to abrogate the
state’s immunity. So is the fact that a congressional enactment extends to the states a power
withheld from them by the Constitution. Id. at 58.
175Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73 (2000), quoting Dellmuth v. Muth, 491
U.S. 223, 227-228 (1989). The “unmistakably clear” standard is met by statutory
authorization of suits against the states; it is unnecessary for the statute to state in so many
words that waiver of state sovereign immunity is intended. See, e.g., Seminole Tribe, 517
U.S. at 56-57; Kimel, 528 U.S. at 73-74.
176Seminole Tribe, 517 U.S. 44.

and proportionality between the injury to be prevented or remedied and the means
adopted to that end.”177 To establish such congruence and proportionality, a court
must ensure that (1) the legislation reaches primarily conduct likely to be
unconstitutional under some Fourteenth Amendment guarantee, and (2) Congress has
made well-supported findings that there exists a widespread pattern of abuse by the
states (not local governments) as to that guarantee.178
Observations as to Federal Environmental Statutes
Since the Eleventh Amendment and the broader constitutional embodiment of
state sovereign immunity assure that nonconsenting states cannot be privately sued
through the Commerce Clause, such suits under most federal environmental statutes
cannot proceed. Most such statutes – the Clean Air Act, Clean Water Act, Superfund
Act, Resource Conservation and Recovery Act, etc. – were enacted pursuant to that
very Clause, not section 5 of the Fourteenth Amendment. Indeed, in the leading
decision rejecting use of the Commerce Clause for such abrogations, the Supreme
Court had to overrule its earlier decision allowing private suits against the states
under the Commerce Clause-based Superfund Act.179
Notwithstanding, these immunity-based constraints are of limited scope.180
Recall that we are talking only about suits against states, not against political

177Boerne, Texas v. Flores, 521 U.S. 507 (1997); Kimel, 528 U.S. 62.
178As to item (2), the Supreme Court’s recent decisions have set a demanding standard for
Congress as to what constitutes “well-supported” findings of state abuse. Most notably, in
Board of Trustees, a dozen examples in the Americans with Disabilities Act’s legislative
history of adverse state actions against the disabled were still deemed by the Court to “fall
far short of even suggesting” the required pattern of unconstitutional discrimination. 531
U.S. at 369-374. (Justice Breyer in dissent countered that Congress had compiled a “vast”
record documenting massive state discrimination. Id. at 377.) Moreover, the Act’s remedies
against the states were seen to raise congruence and proportionality concerns. In Kimel, the
Court held the Age Discrimination in Employment Act not to satisfy the test because it
prohibited substantially more state employment practices than would be unconstitutional
under the Fourteenth Amendment, and its legislative history failed to identify any pattern
of unconstitutional age discrimination by the states. As to the latter item, “isolated
statements clipped from floor debates and legislative reports” are insufficient. 528 U.S. at
89. In Florida Prepaid Postsecondary Education Expense Bd. v. College Savings Bank, 527
U.S. 627 (1999), a sparser legislative history led the Court to the same holding with regard
to federally authorized patent-infringement suits against the states.
The Fourteenth Amendment violations must be by the states, not their political
subdivisions. Board of Trustees, 531 U.S. 356, 368-369 (2001).
179Seminole Tribe of Florida v. Florida, 517 U.S. 44, 66 (1996), overruling Pennsylvania v.
Union Gas Co., 491 U.S. 1 (1989) (plurality opinion).
180See generally Stephen R. McAllister and Robert L. Glicksman, State Liability for
Environmental Violations: The U.S. Supreme Court’s “New” Federalism, 29 ENVTL. L.
RPTR. 10665 (1999) (concluding that Supreme Court’s Eleventh Amendment decisions “do
not ultimately appear to preclude Congress from regulating environmental matters in any
significant measure”).

subdivisions of states or nongovernmental actors.181 And we are not talking about
suits that seek to coerce states to participate in their sovereign capacity in federal
programs. That option was already lost to Congress through the Tenth Amendment
cases. As the cases discussed below indicate, the Eleventh Amendment and related
immunity have been a stumbling block for federal environmental programs in
principally two narrow situations. The first is non-sovereign state activity. As noted
earlier, this might include a state’s use of vehicles (e.g., police cars) and state
ownership or operation of landfills. The second situation occurs when a state
chooses to participate in a federal regulatory effort by developing its own program
meeting federal standards and submitting it for federal approval, but – the key part
– the approved state program retains a purely state-law status. Thus far, this second
scenario has arisen solely under the Surface Mining Control and Reclamation Act.
A third realm where the Amendment has insulated states is whistleblower actions
brought under federal environmental statutes by state employees alleging retaliatory
treatment by their state employers.182 Due to the marginal relevance of such litigation
to our topic here, we do not discuss it further.
Even in those limited situations where the Amendment has been held to apply,
it can hardly be said that states are free to violate standards imposed under federal
environmental laws. As an initial matter, most states presumably would comply as
a matter of good faith.183 More to the legal point, and as noted above, state officials
still could be constrained by injunctions in private suits demanding compliance with
federal laws. And, states could still be sued by the Federal Government (or, as
presumably would occur only rarely, by other states). The second category above
may present higher barriers to enforcement against the states, though even here the
United States can bypass the states and enforce directly against the regulatee. And,
of course, the state may consent to be sued in its own courts.
An interesting question is whether Congress could authorize private suits against
state activity, Eleventh Amendment notwithstanding, by statutorily characterizing
such suits as being on behalf of the United States. A similar question recently was
presented to the Supreme Court involving a private qui tam suit against a state under
the federal False Claims Act, but was sidestepped by the Court when it construed the
Act as not extending to states.184

181The text point is important in that under the citizen-suit provisions found in most federal
environmental statutes, suits against localities have been numerous. See, e.g., City of
Chicago v. Environmental Defense Fund, 511 U.S. 328 (1994).
182See, e.g., Rhode Island Dep’t of Environmental Management v. United States, 304 F.3d

31 (1st Cir. 2002) (involving whistleblower provision in Solid Waste Disposal Act).

183To be sure, there are recurring reasons why states, on occasion, do not comply: (1) the
federal obligation imposes onerous financial burdens on the state; (2) the federal obligation
trenches on an area traditionally considered a matter of state prerogative; and (3) there is
public opposition to the consequences of compliance. See Stephen R. McAllister and
Robert L. Glicksman, note 180 supra (giving examples of state noncompliance).
184Vermont Agency of Natural Resources v. United States ex rel Stevens, 529 U.S. 765

To the extent that private suits against states are desired by Congress,
consideration also might be given to encouraging state waiver of sovereign immunity
by making waiver a condition to receiving delegation of the federal program, or to
receiving federal money. As to the latter, we mentioned earlier that the Court has
upheld (for now) the power of Congress, in the exercise of its spending power, to
condition its grant of funds to the states upon their taking specified actions that
Congress could not mandate them to take.185
The citizen suit provisions found in most federal environmental statutes make
the Eleventh Amendment limit on suits against the states explicit. Typical language
is that of the Clean Air Act:
[A]ny person may commence a civil action on his own behalf ...
against any person (including (i) the United States, and (ii) any
other governmental instrumentality or agency to the extent
permitted by the Eleventh Amendment to the Constitution) who
is alleged to have violated ... or to be in violation of (A) an
emission standard or limitation under this [Clean Air Act], or
(B) an order issued by the [EPA] Administrator or a State with
respect to such a standard or limitation.186
Of course, the Eleventh Amendment would have constrained suits under this and
similar citizen-suit provisions even without the explicit mention. Yet mentioning the
Amendment has not been for naught; several court decisions have used it to support
an inference that Congress intended to authorize suits against state officials.187
Finally, congressional abrogation of state immunity pursuant to section 5 of the
Fourteenth Amendment may be viable in rare instances. Probably the most
compelling example would be federal laws to prevent the disciminatory application
of environmental laws by the states – such as the disproportionate permitting of toxic
hazards or other environmental threats in minority neighborhoods. As noted,
Supreme Court decisions make amply clear that the legislative history for such
enactments would have to contain substantial evidence of a pattern, or future
likelihood, of unconstitutional activity by the states.188
Case Law Involving Federal Environmental Statutes
Clean Water Act/Clean Air Act. Several Eleventh Amendment decisions stem
from Clean Water Act (CWA) and Clean Air Act (CAA) citizen suits against states
or state officials. These rulings have all permitted suits against state officials for
prospective injunctive relief, citing Ex parte Young. For example, an early CWA
decision held that the Amendment does not bar suit against members of the

185See note 171 supra and accompanying text.
186Clean Air Act § 304(a)(1); 42 U.S.C. § 7604(a)(1). Emphasis added.
187See, e.g., Strahan v. Coxe, 127 F.3d 155, 166 (1st Cir. 1997), cert. denied, 525 U.S. 830
188See note 178 supra and accompanying text.

California Regional Water Quality Control Board seeking an injunction ordering that
discharges from an acid-mine-drainage collection facility operated by the Board be
terminated until a NPDES permit was obtained.189
Subsequent to Seminole Tribe’s narrowing of Ex parte Young in 1996,190 a Ninth
Circuit decision continued to look kindly on CWA citizen suits seeking prospective
relief against state officers. The court noted Seminole Tribe’s view of the CWA
citizen-suit provision as implicitly authorizing citizens to bring Ex parte Young suits
against state officials.191 But as Eleventh Amendment jurisprudence plainly requires,
the court found barred the claim in the citizen suit against the state itself, and the
claim against a state official for civil penalties based on past violations of the
CWA. 192
Clean Air Act (CAA) citizen suits against state officials, all decided since
Seminole Tribe, also have been able to bypass the Eleventh Amendment through Ex
parte Young. Court decisions cite Seminole Tribe’s apparent view that Congress
intended to allow CWA citizen suits under Ex parte Young, then point to the near-
identical wording of the CAA citizen-suit provision.193
In another CWA citizen suit, Eleventh Amendment immunity was denied to the
New York State Thruway Authority on the ground that it was not an “arm of the
st at e.”194
Surface Mining Control and Reclamation Act. A less hospitable reception has
been extended to citizen suits against state officials under the Surface Mining Control
and Reclamation Act (SMCRA). In Bragg v. West Virginia Coal Ass’n,195 plaintiffs
argued that by issuing permits for mountaintop-removal coal mining, a state official
violated state regulations adopted under SMCRA. The Fourth Circuit asserted that
in contrast with many federal environmental laws, under which a federally approved

189Committee to Save Mokelumne River v. East Bay Utilities District, 13 F.3d 305, 309-310
(9th Cir. 1993), cert. denied, 513 U.S. 873 (1994). To similar effect is Pennsylvania Envtl.
Defense Found. v. Mazurkiewicz, 712 F. Supp. 1184 (M.D. Pa. 1989) (suit for injunction
against future discharges by state prison exceeding NPDES permit limits authorized by Ex
Parte Young) .
190See text accompanying notes 160-162 supra.
191NRDC v. California Dep’t of Transp., 96 F.3d 420, 424 (9th Cir. 1996). Said the court:
“When Congress enacted the Clean Water Act citizen suit provision, it specified that it was
legislating to the extent permitted by the Eleventh Amendment. .... Congress enacted the
citizen suit provision so that `a citizen enforcement action might be brought against an
individual or a government agency.’ It would seem reasonable then, that Congress implicitly
intended to authorize citizens to bring Ex Parte Young suits against state officials with the
responsibility to comply with clean water standards and permits.” Id. (citation omitted).
192NRDC, 96 F.3d at 423.
193Clean Air Council v. Mallory, 2002 Westlaw 31323360 (E.D. Pa. Oct.18, 2002); Sweat
v. Hull, 200 F. Supp. 2d 1162, 1168 n.8 (D. Ariz. 2001).
194Mancuso v. New York State Thruway Authority, 86 F.3d 289 (2d Cir.), cert. denied, 519 U.S.

992 (1996).

195248 F.3d 275 (4th Cir. 2001), cert. denied, 534 U.S. 1113 (2002).

state program has a dual federal-state status, such a state program under SMCRA is
exclusively state law. It applies as state law to the exclusion of any federal law or
federal jurisdiction.196 By asking the district court to order conformance with this
purely state law, the citizen suit, in the court’s view, asked for too great an intrusion
on state sovereignty. Hence, Ex parte Young was unavailable, and the Eleventh
Amendment/sovereign immunity bar applied. Nor did the state waive its sovereign
immunity by submitting its program to the Secretary of Interior for approval.
Partly for the same reason – the purely state-law status of federally approved
state SMCRA programs – the Third Circuit also rejected Ex parte Young application
and barred most counts of a SMCRA citizen suit against a state environmental
official.197 This time plaintiffs alleged that the state official had failed to perform
nondiscretionary duties in the state’s reclamation bonding program.198 “The
appropriate inquiry for Ex parte Young purposes,” said the court, “is whether a court
is being asked to enforce state law or federal law as against an individual state
officer.”199 As to other counts of the citizen suit that did allege violations of federal
law, Ex parte Young was available to permit suit. And as with CAA and CWA
citizen suits, the Seminole Tribe exception to Ex parte Young availability was found
Superfund Act/ Resource Conservation and Recovery Act. In the wake of
Seminole Tribe’s announcement that Congress cannot abrogate state sovereign
immunity through a Commerce Clause-based statute, states have successfully
asserted the Eleventh Amendment as a shield to Superfund Act and Resource
Conservation and Recovery Act monetary liability. For example, Prisco v. State of
New York200 dismissed on Eleventh Amendment grounds a landfill owner’s
Superfund Act claims against a state alleged to have run the landfill as a sting
operation to uncover organized crime in the waste industry. The court also
dismissed plaintiff’s Superfund claims against state officials because they sought
monetary relief, not covered by Ex parte Young. By contrast, plaintiff’s RCRA

196Under SMCRA, once a state’s program for regulating surface mining within its borders
has been federally approved, the state is accorded “exclusive jurisdiction over the regulation
of surface coal mining and reclamation operations” on non-federal lands within its borders.

30 U.S.C. § 1253(a).

197Pennsylvania Federation of Sportsmen’s Clubs v. Hess 297 F.3d 310 (3d Cir. 2002).
198One presumes that this suit did not bump into Tenth Amendment problems because the
state voluntarily submitted its program for federal approval. The Tenth Amendment cases,
principally New York and Printz, focus on federal initiatives that “commandeer” state
199Id. at 325. In addition, the court rejected plaintiff’s argument that the state program had
been “codified” into federal law by federal regulations stating that each state program is to
be “codified in the part [of the Code of Federal Regulations] reserved” for that state.”
Nor, in the court’s view, could the regulations have done so constitutionally: “[I]f Congress
could empower the [federal Office of Surface Mining] to incorporate state law into federal
law ... such that states could be sued by citizens in federal court, the limitations on
Congress’ authority to override the Eleventh Amendment by means of legislation would be
rendered a virtual nullity.” Id. at 327.
2001996 Westlaw 596546 (S.D.N.Y. Oct. 16, 1996) (not published in official reporters).

citizen suit seeking prospective injunctive relief against state officials was held
constitutional. As with the CWA, CAA, and SMCRA, RCRA was deemed not to be
the sort of “detailed remedial scheme for the enforcement against a state of a
statutorily created right” found by Seminole Tribe to bar Ex parte Young suits.201
Endangered Species Act. Finally, an Endangered Species Act (ESA) decision
by the First Circuit holds that the Ex parte Young exception does not limit courts to
simply ordering a cessation of the state official’s unlawful activity.202 Other equitable
relief appropriate to achieving that end is also proper. The unlawful activity in
question was the state’s regulatory scheme for commercial fishing, under which the
state was issuing permits for use of gear harmful to an endangered whale. This
activity, declared the lower court, constituted a “take” of the whale by the state,
unlawful under the ESA.203 The circuit’s scope-of-relief ruling allowed it to affirm
the lower court’s injunction requiring state officials to apply for an incidental-take
permit under the ESA for the endangered whale, and to prepare a proposal for
restricting use of fixed-fishing gear in state waters to minimize harm to such
whal es. 204
Addendum 1: Article I’s Nondelegation Doctrine
This doctrine is relegated to an addendum because unlike the constitutional
principles in the preceding chapters, the Supreme Court has not been the instrument
of its recent resuscitation, but rather of its recent confinement.
The nondelegation doctrine blocks Congress from surrendering too much
legislative-type discretion to another branch of government.205 The doctrine flows
from the separation of powers in the constitutional structure, and in particular from
Article I’s vesting of “[a]ll legislative Powers” in the Congress.206 While the Court
gives lip service to an absolute reading of this constitutional grant – insisting that no
legislative power may be delegated – it has adopted a corollary that largely

201The RCRA citizen suit against state officials was dismissed, however, on the ground that
they could not be held liable for actions of subordinates acting outside the scope of their
202Strahan v. Coxe, 127 F.3d 155 (1st Cir. 1997), cert. denied, 528 U.S. 830, 978 (1998).
203ESA § 9(a)(1)(B); 16 U.S.C. § 1538(a)(1)(B).
204Ordering state officials to perform affirmative acts under a federal scheme raises Tenth
Amendment issues as well, of course. The particular order in this case was found
inoffensive to the Tenth Amendment, on the ground that it did not order the state to take
specific regulatory actions. See discussion in Tenth Amendment section.
205The nondelegation doctrine is not the only constitutional constraint upon Congress’ ability
to delegate its powers. The principle of unconstitutional vagueness, and due process, also
have been invoked. See, e.g., United States v. L. Cohen Grocery Co., 255 U.S. 81, 92
(1921). The Line Item Veto Act case, Clinton v. City of New York, 524 U.S. 417 (1998),
found that abdications of legislative authority to the executive branch could also be barred
by the Presentment Clause in Article I, section 7.
206U.S. Const. art. I, § 1 (emphasis added).

circumvents that reading. The Court has long held that legislative-like powers may
be delegated to agencies if Congress gives the agency an intelligible principle to
guide its exercise of that authority. This is merely a recognition that Congress
routinely and necessarily delegates legislative-type powers to noncongressional
bodies. In particular, Congress frequently commits to the specialized expertise of
executive-branch agencies the task of rulemaking and standard setting in technical
areas — such as environmental control.
Except for two decisions in 1935, the Supreme Court has never agreed with a
nondelegation-doctrine challenge,207 and the doctrine “has often been declared
deceased.”208 Delegations sustained by the Court sometimes have been extremely
broad, including statutes instructing the FCC to regulate broadcast licensing “in the
public interest,”209 and authorizing the Price Administrator during World War II to
set “fair and equitable” prices.210 All that the Court seems to insist on (sometimes)
is that Congress employ a delegation which “sufficiently marks the field within
which the [Price] Administrator is to act so that it may be known whether he has kept
within it in compliance with the legislative will.”211 Where the congressional
standard is combined with requirements of notice and hearing and agency statements
of findings and considerations, so that judicial review under due process standards
is possible, the constitutional requirements of delegation have been fulfilled.212
In 1999, the D.C. Circuit breathed new life into the nondelegation doctrine,
becoming apparently the first court to bless a nondelegation attack on a federal
statute since 1935. At issue in American Trucking Associations v. EPA213 was EPA’s
promulgation in 1997 of revised primary national ambient air quality standards
(NAAQSs) for ozone and particulate matter. The 2-judge majority found that EPA
had construed Clean Air Act (CAA) section 109(b)(1)214 – requiring that primary
NAAQSs be set at a level “requisite to protect the public health” with an additional
“adequate margin of safety” – so loosely as to render it an unconstitutional delegation
of legislative power.
The D.C. Circuit majority had no quarrel with the factors used by EPA to assess
the public health threat posed by air pollutants. Rather, it said, EPA had articulated
no “intelligible principle” for translating the factors into a particular NAAQS. Nor,
it said, is one apparent from the statute. Going from the impact factors to a numerical
NAAQS requires more, insisted the court, than asserting that a higher NAAQS would
allow greater public health harm, and a lower NAAQS less harm. This is always true

207See Mistretta v. United States, 488 U.S. 361, 371-379 (1989) (reviewing case law).
208Consumer Energy Council of America v. FERC, 673 F.2d 425, 448 n.82 (D.C. Cir. 1982).
209National Broadcasting Co. v. United States, 319 U.S. 190 (1943). See also New York
Central Securities Corp. v. United States, 287 U.S. 12, 24-25 (1932).
210Yakus v. United States, 321 U.S. 414, 426-427 (1944).
211Id. at 425.
212Id. at 426.
213175 F.3d 1027 (D.C. Cir. 1999), modified, 195 F.3d 4 (D.C. Cir. 1999).
21442 U.S.C. § 7409(b)(1).

for a nonthreshold pollutant,215 but does not fix the maximum acceptable degree of
harm. EPA also argued that at pollution levels below the promulgated standard,
health effects are less certain. The court rejected this argument as well. “[T]he
increasing uncertainty argument,” it said, “is helpful only if some principle reveals
how much uncertainty is too much.”
In Whitman v. American Trucking Associations,216 the Supreme Court
unanimously rejected any nondelegation-doctrine infirmity in CAA section 109,
reversing the court of appeals. The Court read the term “requisite” in the section 109
NAAQS standard to mean no higher and no lower than necessary to protect the
public health, with an adequate margin of safety. With EPA’s discretion so
constrained, the justices found section 109 to be “well within the outer limits of our
nondelegation precedents.”217 The majority of the justices voiced no disapproval of
those precedents.
The Court further opined that “the degree of agency discretion that is acceptable
varies according to the scope of the power congressionally conferred.”218 Thus, while
Congress need not provide any direction to EPA on the meaning of a narrowly
applicable statutory term, it must give “substantial guidance” on setting air standards
that affect the entire national economy.219 Even in the latter instance, however, the
Court asserted that Congress need not provide a “‘determinate criterion’ for saying
“how much [of the regulated harm] is too much.’” 220
Finally, the Supreme Court rejected the D.C. Circuit’s approach of allowing the
agency, rather than Congress, an opportunity to supply the missing intelligible
principle. 221
With its decision in Whitman, the Supreme Court appears to have discouraged
judicial invocation of the nondelegation doctrine, restoring the legal situation prior
to the D.C. Circuit decision. According to one academic, the doctrine “is going back
to sleep and hibernating for a long, long time.”222 It is possible, however, that the

215According to the court, “EPA regards ozone definitely, and [particulate matter] likely, as
nonthreshold pollutants, i.e., ones that have a possibility of adverse health impact (however
slight) at any exposure level above zero.” 175 F.3d at 1034.
216531 U.S. 457 (2001).
217Id. at 474.
218Id. at 475.
221 In separate concurrences, Justice Thomas questioned whether the Court’s delegation
jurisprudence had strayed too far from the Founder’s understanding of separation of powers,
while Justice Stevens argued for a candid recognition that agencies routinely exercise
legislative power, and that nothing in Article I, section 1, precludes congressional delegation
of legislative power.
222Remarks of Prof. David Hodas, Widener Univ. School of Law, quoted in “High Court

pendulum has not swung all the way back to somnolence. To be sure, the Court in
Whitman cited with approval many of its laxest nondelegation precedents. Still, the
Court’s insistence that regulations of national application be predicated on
“substantial guidance” from Congress appears to be a new component of the doctrine,
or at least one that has not been made explicit before now. If “substantial guidance”
is to have any meaning at all, rumors of the demise of the nondelegation doctrine
may, in the familiar expression, be premature. It is difficult, for example, to discern
even an amorphous statutory standard for the granting of individual permits under the
Clean Water Act wetlands permitting program.223
Perhaps the most important statement in Whitman, for environmental law
purposes, is that the “substantial guidance” required for national regulations does not
require Congress to specify how much of the regulated harm is too much. Thus, the
typical standards for how protective a federal regulation must be – for example,
“necessary to protect human health and the environment” under the Resource
Conservation and Recovery Act,224 or when needed to address emissions that “may
reasonably be anticipated to endanger public health or welfare” under the Clean Air
Act’s mobile sources title225 – should pass muster readily. Regulations of less-than-
national scope would seem to be virtually unassailable.226
Addendum 2: Article II’s Vesting of Law-
Enforcement Authority in the Executive Branch
This constitutional issue, frequently raised during the 1980s, seems to have a
new generation of supporters today. We treat it in an addendum because it has not

Upholds Revised Clean Air Standards in Landmark Case,” vol. 29, no. 9 Haz. Waste Lit.
Rptr. 3 (Mar. 16, 2001).
223CWA § 404; 33 U.S.C. § 1344
224RCRA § 3002(a); 42 U.S.C. § 6922(a).
225CAA § 202(a)(1); 42 U.S.C. § 7521(a)(1).
226See Michigan v. U.S. EPA, 213 F.3d 663, 680-681 (D.C. Cir. 2000), cert. denied, 532 U.S.

904 (2001), which, soon after the D.C. Circuit decision in American Trucking Ass’ns,

refused to find an impermissible delegation in another CAA provision. This provision
allowed EPA to require states to revise their implementation plans whenever it finds they
are inadequate to prevent emissions within the state that “contribute significantly” to
ambient standard nonattainment in another state. Invoking this authority, EPA in 1998
required 22 states to revise their plans to reduce nitrogen oxides (NOx, an ozone precursor)
by the amount accomplishable through controls that remove NOx at a cost of $2000/ton or
less. Though EPA viewed its latitude in choosing the dollars per ton cut-off as “essentially
unbounded,” the court found the delegation lawful. Unlike cases where the agency’s
claimed power encompassed “all American enterprise,” here EPA must make a number of
fact findings (e.g., emissions migrating into another state) that “confined the statute to a
modest role.” Delegations of narrow scope, the court said based on its reading of precedent,
can be “effectively standardless.”

been authoritatively addressed by the Supreme Court (nor accepted by any lower
court). However, some justices of the Court recently have signalled interest.
The locus of concern is the citizen-suit device in many federal environmental
statutes – especially its use to seek civil penalties (versus injunctive relief) against
polluters. The question is whether the exaction of public fines by a private litigant
is a constitutionally offensive delegation of law enforcement power to an entity
outside the federal government’s executive branch. More specifically, do private
suits for public fines offend various clauses of Article II of the Constitution (the
Vesting Clause,227 Take Care Clause228 and Appointments Clause 229) that vest federal
law-enforcement authority in the executive branch? The resurrected interest in the
issue likely derives from remarks of the justices in the Supreme Court’s 2000
decision in Friends of the Earth v. Laidlaw.230
The Supreme Court has never resolved whether citizen suits offend Article II,
nor have any reported decisions of the federal appellate courts. However, an ample
body of district-court decisions beginning in the 1980s unanimously reject the Article
II argument in connection with citizen suits under the Clean Water Act231 and
Emergency Planning and Community Right-to-Know Act.232 These courts endorsed
four key arguments. First, they say, the separation-of-powers decisions relied on by
citizen-suit defendants are inapposite. Those cases implicate the Constitution’s
concern that one branch of government not expand its powers at the expense of
another branch of government – e.g., Congress expanding its powers into the law-
enforcing domain of the executive branch. They do not stand for the proposition that
private persons, who are not controlled by Congress, may not enforce federal laws.
Second, the Appointments Clause does not preclude private enforcement. It simply
means that when federal laws are enforced by a person within the executive branch,

227The Vesting Clause states: “The executive power shall be vested in a President of the
United States.” U.S. Const. art. II, § 1.
228The Take Care Clause states: “[The President] shall take Care that the Laws be faithfully
executed ....” U.S. Const. art. II, § 3.
229The Appointments Clause states: “[The President] ... by and with the Advice and Consent
of the Senate, shall appoint ... Officers of the United States.” U.S. Const. art. II, § 2.
230In a one-justice concurrence in Laidlaw, Justice Kennedy wrote: “Difficult and
fundamental questions are raised when we ask whether exactions of public fines by private
litigants, and the delegation of Executive power which might be inferable from the
authorization, are permissible in view of the responsibilities committed to the Executive by
Article II ....” 528 U.S. 167, 197 (2000). He declined to answer these questions because
Article II was not invoked by the petition for certiorari. Writing for himself and Justice
Thomas, Justice Scalia also expressly declined to reach the issue, but did offer related
remarks suggesting that he saw Article II as being transgressed. Id. at 209-210.
See also Vermont Agency of Natural Resources v. United States, 529 U.S. 765, 778
n.8, 801 (2000) (noting Article II issue as to qui tam actions, where the private “relator” gets
to keep a portion of any money penalties imposed).
231See, e.g., Atlantic States Legal Fdn. v. Universal Tool & Stamping Co., 735 F. Supp. 1404
(N.D. Ind. 1990) (collecting cases).
232See, e.g., Atlantic States Legal Fdn. v. Buffalo Envelope, 823 F. Supp. 1065 (W.D.N.Y.


that person must have been appointed in accordance with the Clause. Citizen suitors,
plainly, are not within the executive branch. Third, subject to the above limitations
Congress has the power to determine who will enforce the statutory rights and
obligations it creates. And fourth, citizen suit provisions contain safeguards to limit
their intrusion on the enforcement authority of the executive branch – e.g., allowing
the United States to intervene in the suit.233
To amplify on the fourth point, the initiation of a citizen suit most definitely
can affect how an agency allocates its enforcement resources. If, for example, EPA
became concerned that arguments raised by a citizen-suit defendant were not being
adequately addressed by the plaintiff, the agency might fear that the court’s decision
would make bad law from its point of view. That fear might effectively compel the
agency to intervene in the suit, shifting its attorneys from other enforcement efforts.
The skewing of agency resource allocation involved in such citizen-suit scenarios has
not been seen by courts as infringing on executive branch law-enforcement
responsibilities to a constitutionally suspect degree.
Thus far, the new crop of Article II/citizen-suit decisions has fallen in line with
the first generation, rejecting the constitutional challenge.234 It is tempting, therefore,
to dismiss the current cases as posing little threat to this private-enforcement
mechanism. Unlike the first generation of cases, however, defense counsel in the
current litigation have clear suggestion from the Supreme Court that it might be
interested in hearing an Article II challenge. One can expect, therefore, that counsel
will press these cases to the petition for certiorari stage. But though Justices Scalia
and Thomas likely would respond sympathetically to an Article II attack on citizen
suits,235 it is doubtful that the remainder of the Court, as presently constituted, could
supply the three additional votes for a majority.
Summary and Comments
To recap: (1) the Commerce Clause is now a concern for congressional drafters,
given that the large majority of federal pollution-control laws, and some federal
wildlife-protection laws, rest on this Clause and the Court appears determined to
scrutinize federal regulation of noneconomic activity in areas of traditional state
regulation. Certain applications of the Endangered Species Act, in seeking to
regulate noneconomic land uses harming intrastate species, may be too much for the
Supreme Court to resist. (2) Standing doctrine is much less of a barrier to
environmental plaintiffs since Laidlaw, though certainly not something any such
plaintiff can safely ignore. Congress, for its part, can dispense with standing’s
prudential aspects, but not those elements (injury in fact, causation, redressability)

233See, e.g., Clean Water Act § 505(c)(2), 33 U.S.C. § 1365(c)(2).
234See, e.g., United States v. American Elec. Power Service Corp., 137 F. Supp. 2d 1060
(S.D. Ohio 2001) (Clean Air Act citizen suit provision); North Carolina Shellfish Growers
Ass’n v. Holly Ridge Assocs., No. 7:01-CV-36 (E.D.N.C. Nov. 8, 2001) (Clean Water Actth
citizen suit provision). See also Riley v. St. Luke’s Episcopal Hosp., 252 F.3d 749,752 (5
Cir. 2001) (en banc) (holding qui tam provision inoffensive to Article II).
235See note 230 supra.

derived from Article III. (3) The takings issue remains a spectre for federal
environmental laws implemented through substantial land use controls, such as
wetlands, endangered species, and surface mining statutes.
(4) The Tenth Amendment blocks Congress from compelling the participation
of state legislatures and state executive-branch officials in federal programs.
However, an ample number of “carrot” approaches (such as conditions on federal
funds) remains to encourage state participation should Congress desire a surrogate
for direct federal regulation. (5) Finally, the Eleventh Amendment applies broadly
to block Congress from authorizing private suits against states. Even so, the
Amendment is likely to be a modest constraint on congressional environmental
efforts, since it admits of several exemptions (some of which the Supreme Court
seems disposed to narrow, however) and does not apply to suits against political
subdivisions of states.
Another constitutional bound, the nondelegation doctrine, appears to no longer
be a serious impediment to congressional drafters of environmental laws, after the
American Trucking Associations decision. Yet another constitutional issue, whether
Article II bars the private enforcement of federal laws through citizen suits, has thus
far been universally rejected by the courts.
As the above indicates, the most significant of these constitutional bounds for
Congress’ environmental initiatives are the Commerce Clause and the Takings
Where is the Supreme Court headed in the application of our five constitutional
constraints? Most obviously, the 5-justice conservative majority seems intent on
nudging the jurisprudence toward greater protection of states rights and private
property. It has been suggested as well that their interest lies in, as much as the
balance between federal and state power, that between the judicial and legislative
branches. Recall the distinctly undeferential responses of the Supreme Court to the
congressional findings in the Violence Against Women Act,236 and to Congress’
recent efforts to invoke section 5 of the Fourteenth Amendment.237 At a minimum,
congressional drafters should be aware that the days of reflexive judicial acceptance
of statutory findings may, in select constitutional areas, be over.
When the Court’s constitutional analysis occurs in an environmental case, there
seems to be an additional consideration. Commentators have observed that the
Supreme Court’s warm endorsement of national environmental goals in its 1970s
decisions seems to have progressively withered in each decade since.238 Indeed, one
commentator asserts that environmental protection seems “increasingly ... to be

236See text following note 14 supra.
237See note 178 supra.
238Richard J. Lazarus, Restoring What’s Environmental About Environmental Law in the
Supreme Court, 47 U.C.L.A. L. REV. 703, 735-736 (2000); J. William Futtrell, The
Ungreening of the Court, ENVTL. FORUM, Jan.-Feb. 1992, at 12, 16.

serving a disfavored role in influencing the Court’s outcome.”239 Still, the moderate
conservatives on the Court – Justices O’Connor and Kennedy – do not yet appear
ready to carry the Court’s new federalism and takings jurisprudence to any extreme
conclusions. As the Court is presently constituted, this means there appear to be at
most three votes (Chief Justice Rehnquist, and Justices Scalia and Thomas) out of the
required five for any significant constitutional voiding of federal environmental
law.240 Of course, new appointments to the Court may alter these numbers.
Moreover, if in fact there is a decreased friendliness on the Court towards
federal environmental statutes, it probably should be understood not as an antipathy
towards the broad goals of such laws. Rather, the unease of the Court’s conservative
majority likely stems from some of the recurring features of federal environmental
statutes: increased regulation and federal bureaucracy, expansive construction of the
Commerce Clause, broadened standing rules, contraction of permissible property
uses, and insertion of federal standards into realms of historic state and local control.
Each of these features has been asserted by some commentators to be necessitated by
current environmental problems, while opposed by others (such as free market
environmentalists). Either way, Congress, in its future environmental efforts, may
wish to be mindful of these Supreme Court concerns.

239Lazarus, supra note 238, at 737.
240In the lower courts, a similar schism between conservatives judges was evident in Gibbs
v. Babbitt, 214 F.3d 483 (4th Cir. 2000), cert. denied, 531 U.S. 1145 (2001). There, the
court rejected 2-1 a Commerce Clause challenge to an Endangered Species Act regulation
limiting the taking of reintroduced red wolves on private land. See text accompanying notes
35-37 supra. Writing for the 2-judge majority, Chief Judge J. Harvie Wilkinson III, a noted
conservative jurist, set the tone of his opinion in the first sentence: “In this case we ask
whether the national government can act to conserve scarce national resources of value to
our entire country.” A few sentences further he called for “[j]udicial deference to the
judgment of the democratic branches ....” In sharp contrast, Judge J. Michael Luttig, a
conservative generally viewed as “to the right” of Chief Judge Wilkinson, argued matter of
factly that the killing of red wolves is not an economic activity, as is required for
aggregating effects on interstate commerce. For this and other reasons, he would have
“faithfully” applied Lopez and Morrison to invalidate the challenged regulation. The limits
of the Commerce Clause, he said, “do not wax and wane depending on the subject matter