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Federal Environmental Law in the "New" Federalism Era

December 2000

Citation: 30 ELR 11122

Issue: 12

Author: Stephen R. McAllister & Robert L. Glicksman

As we wrote last year, the U.S. Supreme Court has shown considerable interest during the past decade in reconsidering many constitutional doctrines regarding federalism and congressional power.1 In a series of important decisions, always decided with the same five justices in the majority,2 the Court has begun to redefine the federal-state relationship and the scope of federal authority.3 The past term generally continued that trend, with one important commerce power decision,4 one significant Eleventh Amendment/Fourteenth Amendment § 5 decision,5 and a number of decisions that involve or affect federalism and the scope of federal power, although the Court sometimes relied on statutory interpretation to avoid serious constitutional issues.6 Part I of this Article describes the most recent decisions.

This continuing redefinition of the scope of federal power in relation to that of the states is potentially significant for the implementation and enforcement of federal environmental laws, the main focus of this Article. The effectiveness of federal environmental regulation depends not only, however, on the degree to which the federal government is authorized to control activities with potential adverse environmental effects, but also on the manner in which that authority is allocated among the three branches of the federal government. The Court did not immerse itself in the last two years in this second aspect of the two main branches of structural constitutional inquiry to the same degree that it tackled high-profile federalism issues. A couple of decisions handed down during the Court's last term concerning standing to sue and a case the Court has agreed to hear during the October Term 2000 may yet bring these separation-of-powers questions to the fore, however. To round out the analysis of the status of federal power to affect matters environmental, therefore, this Article seeks as a secondary matter to consider briefly the potential impact of the Court's separation-of-powers jurisprudence on federal environmental law.

Stephen McAllister is Dean and Professor of Law, University of Kansas School of Law. Robert Glicksman is Robert W. Wagstaff Professor of Law, University of Kansas School of Law. The authors thank James Proffitt, University of Kansas School of Law, class of 2002, for his research assistance.

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