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State Liability for Environmental Violations: The U.S. Supreme Court's "New" Federalism

November 1999

Citation: 29 ELR 10665

Issue: 11

Author: Stephen R. McAllister and Robert L. Glicksman

Editors' Summary: In this Article, the authors examine whether the U.S. Supreme Court's recent "federalism trilogy"—Alden v. Maine, College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, and Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank—restrict the ability of Congress to regulate state compliance with federal environmental statutes. The authors begin with a review of the facts and holdings of the cases. They then discuss the enforcement mechanisms—"good faith of the states," voluntary state consent to suits (and the scope of Congress' "spending power" after South Dakota v. Dole), Fourteenth Amendment powers to statutorily enforcethe due process and equal protection guarantees, suits against municipal governments, Ex parte Young-type suits, and suits by the United States against states—that according to Justice Kennedy's opinion in Alden remain. In addition, Congress retains the ability to use its commerce power, seemingly undiminished in the environmental arena after United States v. Lopez, to regulate most matters that have potential environmental implications. The authors conclude that the federalism decisions will, in light of the surviving enforcement options, likely have limited practical impact upon Congress' authority to enact and ensure enforcement of environmental statutes.

Stephen R. McAllister is the Associate Dean for Academic Affairs and Professor of Law, University of Kansas School of Law. Robert L. Glicksman is the Robert W. Wagstaff Professor of Law, University of Kansas School of Law. Professor McAllister also serves as the State Solicitor for the state of Kansas. Views expressed in this Article, however, are the personal views of the authors and do not necessarily represent the views of the state of Kansas on the issues addressed. The authors thank Ann D. Fellows, University of Kansas School of Law, Class of 2000, for her research assistance.

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