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Commerce Clause

Minimizing Constitutional Risk in State Energy Policy: A Survey of the State of the Law

Constitutional challenges to new state energy policies have been mounting in state and federal courts. This Article surveys the state of the relevant law, focusing on the dormant Commerce Clause and the Supremacy Clause, and draws five...

Pike Balancing: Vulnerabilities of State Greenhouse Gas Regulations and Possible Solutions

The dormant Commerce Clause prohibits state-level regulations that improperly discriminate against out-of-state-interests or unduly burden interstate commerce. As such, this doctrine may present a barrier to state-level greenhouse gas...

California, Climate Change, and the Constitution

Editors' Summary: Climate change, like many environmental challenges, is a global problem requiring local solutions. While the United States has of yet not passed meaningful legislation that addresses climate change, several U.S. states...

U.S. Supreme Court Review of <i>Rapanos v. United States and Carabell v. United States Army Corps of Engineers</i>: Implications for Wetlands and Interstate Commerce

Editor's Summary: The exact contours of wetlands jurisdiction has been in dispute ever since the U.S. Supreme Court's decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers. Today, the Court has been...

Redefining Federalism

Editors' Summary: Federalism has become a highly politicized term in environmental law, with some parties having adopted the term to signify an ideology of devolving federal authority over environmental protection back to the states. In...

Should There Be a Constitutional Right to a Clean/Healthy Environment?

As was noted in the Introduction to my recently published book The Clean Water Act and the Constitution: Legal Structure and the Public's Right to a Clean and Healthy Environment, as a result of a fairly comprehensive array of federal...

The Clean Water Act: What's Commerce Got to Do With It?

I. Introduction

Few commentators doubt the value of clean, unadulterated waters teeming with varied and colorful aquatic life. The debate centers instead on more pragmatic concerns, that is, how to best...

Centralization and the Commerce Clause

There is a crucial, although implicit, empirical assumption in the debate about federal judicial review under the affirmative U.S. Commerce Clause. The assumption, indulged by many different camps in the debate, is that increasing the...

Commerce by Another Name: Lopez, Morrison, SWANCC, and Gibbs

The Constitution of the United States gives Congress the authority to "regulate Commerce . . . among the several States."1 From the beginning of judicial review, the U.S. Supreme Court has struggled...

Federal Environmental Regulation in a Post-Lopez World: Some Questions and Answers

In the span of just a few years, the U.S. Supreme Court has brought the venerable constitutional concept of federalism back to life with a vengeance. In the 1999 Term alone, the Rehnquist Court struck down three federal laws for...