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Justice Rehnquist and the Dismantling of Environmental Law

August 2006

Citation: ELR 10585

Author: James R. May and Robert L. Glicksman

Editor's Summary: Chief Justice William H. Rehnquist was uniquely situated to have a profound impact on the development of federal environmental law--both because of the overlap of his tenure with the development of the field of environmental law and because of his four-decade tenure on the U.S. Supreme Court, more than one-half of which was as Chief Justice. Before his death on September 3, 2005, Rehnquist heard the vast majority of the Court's environmental cases during the modern environmental era, penning opinions in 25% of them, and affording him an opportunity to shape environmental law, especially during its formative years, that no Justice is likely to match. This Article discusses how Justice (and then Chief Justice) Rehnquist interpreted federal constitutional and public law in the opinions he wrote in environmental cases. It concludes that Rehnquist's environmental opinions reflect a three-tiered agenda. First, if a case involved a constitutional or statutory property rights question, Justice Rehnquist almost always chose to protect property rights over competing environmental concerns. Second, in the absence of a property rights issue, Rehnquist almost always decided cases so as to protect state sovereignty, sometimes but not invariably with pro-environmental results. Third, in cases lacking a property rights or state sovereignty component, he almost always decided them in a way that curtailed federal power, and with it, the effectiveness of environmental law. The Article, which is part of a larger ongoing study of Justice Rehnquist's environmental law jurisprudence, explores the extent to which Justice Rehnquist's three-tiered approach has already weakened environmental law and whether that approach is likely to contribute to further diminishment of effective environmental protection under the pollution control and natural resource management legislation in the future.

James R. May is a Professor of Law at the Widener University School of Law, and a Visiting Scholar at the Environmental Law Institute (ELI). He would like to thank Prof. Robert Percival for inviting him to present this paper as part of the faculty development series at the University of Maryland School of Law, Scott Schang and Leslie Carothers of ELI for inviting him to present the paper as part of the ELI's seminar series, and Jay Austin for comments on a draft version. Robert L. Glicksman is the Robert W. Wagstaff Professor of Law at the University of Kansas. He would like to thank Prof. Richard Lazarus for inviting him to present this Article as part of his environmental law seminar series at Georgetown University Law Center and to all of those who provided feedback on the presentation.

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