Environmental law poses many intriguing questions of constitutional law, including issues involving separation of powers. Separation-of-powers questions stemming from environmental law disputes have affected significantly the allocation of authority among the three branches of the federal government to determine the appropriate degree of restrictions to place on government and private conduct with the potential to harm the environment. The implications of judicial resolution of constitutional issues in environmental disputes are not confined to the environmental law arena, however. In some areas, such as the law governing standing to sue in federal court, environmental cases dominate the constitutional landscape, establishing landmark precedents that then apply to myriad other areas of law. In other cases, separation-of-powers jurisprudence outside the arena of environmental law has the potential to alter the ways in which the government adopts and implements environmental law.

This Article addresses two aspects of the separation of powers that have the potential to enhance the powers of the executive branch of the federal government vis-à-vis the U.S. Congress and the courts in the implementation of environmental legislation. First, I address the role of the Take Care Clause of Article II in restricting standing to sue in cases involving environmental law issues. Second, I address the potential for judicial invocation of the "unitary executive" theory to restrict congressional oversight of agency implementation of environmental laws. Although I focus on the impact of the unitary executive theory on the constitutionality of independent agencies, I also briefly address the theory's effect on presidential control of the exercise of agency discretion provided by statutory delegations of authority to agencies with environmental protection responsibilities. These two aspects of the separation of powers to date have been of relatively minor importance to environmental law. Increased reliance by the courts on the Take Care Clause to limit standing and on the unitary executive theory to loosen congressional control over the exercise of delegated authority to administrative agencies, however, has the potential to reshape environmental law in some potentially far-reaching ways.