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The Commerce Clause and the Limits of Congressional Authority to Regulate the Environment

August 1995

Citation: 25 ELR 10421

Issue: 8

Author: John P. Dwyer

Editors' Summary: In United States v. Lopez, the U.S. Supreme Court for the first time in 62 years struck down a federal statute on grounds that it violated the Commerce Clause of the U.S. Constitution. The Gun-Free School Zones Act of 1990 was unconstitutional because it intruded into an area of traditional state concern and did not regulate a commercial activity, either directly or as part of a pervasive regulatory scheme. Although United States v. Lopez involved only a discreet, isolated federal statute, the case may well have significant reverberations throughout all areas of federal law, including environmental law. The author examines in detail the majority, concurring, and dissenting opinions in the case, and then analyzes how the case is likely to affect federal environmental legislation. He concludes that while United States v. Lopez may signal judicial readiness to apply stricter scrutiny to federal legislation, most federal environmental laws — with their close ties to commerce — should still survive constitutional challenges.

John P. Dwyer is a Professor of Law at Boalt Hall School of Law, University of California, Berkeley, where he teaches environmental law and policy, environmental enforcement, energy law and policy, and real property. His scholarship covers legislative process, risk assessment, economic incentives for pollution control, and federalism. His most recent book is JOHN P. DWYER & MARIKA F. BERGSUND, FEDERAL ENVIRONMENTAL LAWS ANNOTATED (1995), from Shepard's/McGraw-Hill. Professor Dwyer received his B.A. from DePauw University in 1973, his Ph.D. in chemistry from the California Institute of Technology in 1978, and his J.D. from Boalt in 1980, where he was Editor-in-Chief of the ECOLOGY LAW QUARTERLY, Professor Dwyer also clerked for Sandra Day O'Connor and worked as a staff attorney in the Public Defender Service in Washington, D.C.

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