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After Morrison, Can Congress Preserve Environmental Laws from Commerce Clause Challenge?

October 2000

Citation: ELR 10888

Author: Charles Tiefer

Environmental laws seem to face, in the Rehnquist Court, a situation like that old silent movie serial "The Perils of Pauline." Environmental laws hardly ever seem to have even a single U.S. Supreme Court Term's respite from mortal danger, between Article III standing attacks on the citizen suit provisions, Takings Clause attacks on land use restrictions,1 federalism or sovereign immunity attacks on provisions for government liability or restriction, and nondelegation doctrine attacks on regulatory provisions2—yet, with all this, the Court has not yet struck such laws a lethal blow.

Now, the Court's bombshell last spring in United States v. Morrison,3 building on the 1995 doctrinal turnaround in United States v. Lopez,4 threatens the environmental laws from yet another direction: the U.S. Commerce Clause.5 The problem arises not so much from the narrow holding of either case, since neither case involved environmental laws: Morrison struck down the Violence Against Women Act (VAWA), and Lopez struck down a drugs-near-schools provision, neither even remotely resembling an environmental law.

The author is Associate Professor, University of Baltimore Law School; B.A., summa cum laude, Columbia College, 1974; J.D., magna cum laude, Harvard Law School, 1977. Professor Tiefer would like to thank Jennifer Ferragut for her research assistance, and the skilled staff of Emily R. Greenberg for their library/computer assistance.

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