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New and Emerging Constitutional Theories and the Future of Environmental Protection

Citation: 40 ELR 10989

Issue: 10

Author: James R. May

I am honored to moderate and participate in today's panel, "New and Emerging Constitutional Theories and the Future of Environmental Protection." My charge is to introduce our esteemed panel speakers, and then to provide preliminary remarks outlining the landscape at the intersection of constitutional and environmental law in general and the political question doctrine in particular. My role is largely provocateur. In short, I'm to raise questions that challenge constitutional order as it applies to environmental protection.

Constitutionalism and constitutional law have unavoidable, ineluctable impacts on the fields of environmental, natural resources, and energy law, and these fields in turn shape constitutional law. The Constitution sets the boundaries for federal and state authority to exploit or protect natural resources and the environment. At the federal level, this includes defining the extent to which Congress may conserve rare species or regulate pollutant releases from mineral extractions on private property. Constitutional questions likewise infuse state actions designed to control the precursors of climate change or the interstate movement of energy, carbon allowances, natural resources, and wastes. Many states in the United States and national constitutions across the globe also explicitly address environmental concerns.

Accordingly, constitutional issues occupy center stage in federal and state efforts to protect land, air, water, species, and habitat, perhaps fueled by the U.S. Supreme Court's ambivalence about environmental protection. Indeed, from 2005­2010, more than 50 percent of the nearly 400 federal cases yielding a reported decision involving environmental, natural resources or energy law and policy turned on a constitutional question, including most often standing, sovereign immunity, takings and due process, and with increasing frequency, political question, preemption and federalism.

James R. May is Professor of Law and H. Albert Young Fellow in Constitutional Law, Widener University.

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