Constitutional Bounds on Congress' Ability to Protect the Environment

Congressional research reportDec 18, 2002

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Order Code RL30670

Report for Congress

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Constitutional Bounds

on Congress’ Ability to

Protect the Environment

Updated December 18, 2002

name redacted

Legislative Attorney

American Law Division

Congressional Research Service ˜ The Library of Congress

Constitutional Bounds on Congress’ Ability to Protect

the Environment

Summary

Federal protection of the environment must hew to the same constitutional

bounds as any other federal activity. In the past decade, the Supreme Court has

invigorated several of these bounds in ways that present new challenges to

congressional drafters of environmental statutes. This report reviews five of these

newly emergent constitutional areas. For each area, the focus is its significance for

current and future federal environmental legislation.

First, the Commerce Clause, requiring that activities regulated by federal laws

enacted under the Clause have a sufficient nexus with interstate commerce. In 1995,

the Supreme Court sustained a Commerce Clause challenge to a federal law for the

first time in 60 years, and did so again in 2000. Thus far, lower courts have rejected

such challenges to federal environmental laws, but in 2001 the Supreme Court opted

for a narrow reading of federal Clean Water Act jurisdiction over “isolated waters,”

in part to avoid Commerce Clause issues.

Second, standing to sue in the federal courts. Article III restricts standing (who

is a proper party to bring suit) to those who can demonstrate injury in fact, causation,

and redressability. In a series of decisions during the 1990s, the Supreme Court

interpreted these requirements with increasing stringency, making standing more

difficult to establish and lessening the viability of many potential environmental

citizen suits. In a sharp turnabout, however, the Court in 2000 eased the injury-infact and redressability components.

Third, the Takings Clause of the Fifth Amendment, declaring that when the

federal government “takes” property, just compensation is owed. The federal

environmental program most commonly attacked in takings suits is the Clean Water

Act section 404 wetlands program. Other federal programs occasionally challenged

as effecting takings include the Endangered Species Act, Surface Mining Control and

Reclamation Act, Rails to Trails Act, and Superfund Act.

Fourth, the Tenth Amendment, stating that powers not granted to the Federal

Government are reserved to the states. Invoking this Amendment, Supreme Court

decisions during the 1990s held that Congress cannot compel the participation of

state legislatures or state executive-branch officials in federal programs. But

conditions on the grant of federal funds to the states and other noncoercive

approaches to enlisting state cooperation with federal environmental initiatives have

been judicially approved.

Fifth, the Eleventh Amendment, which together with general principles of state

sovereign immunity bars Congress from authorizing private lawsuits against

unconsenting states. Because the Amendment applies only to private suits against

states and does not prohibit suits against state officials for injunctive relief, it has thus

far not been a major constraint on congressional environmental efforts. Noncoercive

approaches (preceding paragraph) are also available.

Finally, the report briefly sketches two constitutional doctrines that, while

recently active, have not received Supreme Court resuscitation. One, the Article I

nondelegation doctrine, was used by a lower court to void Clean Air Act regulations

before being returned to its former quiescent status by the Supreme Court in 2001.

The other, Article II’s vesting of enforcement authority in the executive branch, is

today argued by some citizen-suit defendants as being inconsistent with citizen

enforcement of federal environmental laws. The Supreme Court has yet to resolve

the issue.

Contents

Article I: Commerce Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Are Federal Environmental Statutes Vulnerable? . . . . . . . . . . . . . . . . . . . . . 4

Post-Lopez Decisions Involving Federal Environmental Statutes . . . . . . . . . 7

A Special Case: “Isolated Waters” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Article III: Standing to Sue in Federal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Environmental Standing Before Laidlaw . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Friends of the Earth v. Laidlaw . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Implications of Laidlaw for Environmental Citizen Suits . . . . . . . . . . . . . . 15

Fifth Amendment: The Takings Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Cases Involving Federal Environmental Statutes . . . . . . . . . . . . . . . . . . . . 22

Tenth Amendment:

Federal Intrusions on State Sovereignty . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Environmental Cases in the Wake of New York and Printz . . . . . . . . . . . . . 26

When the State Itself Engages in the Regulated Activity . . . . . . . . . . . . . . 27

Eleventh Amendment and State Sovereign Immunity: Federal

Authorization of Private Suits Against States . . . . . . . . . . . . . . . . . . . . . . . 28

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Observations as to Federal Environmental Statutes . . . . . . . . . . . . . . . . . . . 33

Case Law Involving Federal Environmental Statutes . . . . . . . . . . . . . . . . . 35

Addendum 1: Article I’s Nondelegation Doctrine . . . . . . . . . . . . . . . . . . . . . . . . 38

Addendum 2: Article II’s Vesting of Law-Enforcement Authority in the

Executive Branch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Summary and Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Constitutional Bounds on Congress’ Ability

to Protect the Environment

Congress’ efforts to protect the environment have always been required to

respect the same constitutional bounds as any other federal actions. Today, however,

this fact is newly important. In the past decade or so, the Supreme Court has

invigorated five of these constitutional bounds in ways that present fresh challenges

to congressional drafters of environmental statutes.

These five constitutional strictures are (1) the Commerce Clause,1 demanding

that congressional enactments based on the Clause address activities having a

sufficient link to interstate commerce, (2) Article III standing doctrine, limiting who

is a proper party to invoke the jurisdiction of Article III federal courts, (3) the Fifth

Amendment Takings Clause, requiring that certain government interferences with

private property be accompanied by compensation of the owner, (4) the Tenth

Amendment, barring direct federal regulation of state legislatures and state executivebranch officials, and (5) the Eleventh Amendment, limiting federal authorization of

private suits against unconsenting states.

What these five constitutional areas share is that in each instance the Court –

often, though not always, through the five conservative justices2 – has redrawn or at

least underscored a fundamental limit on federal power. In the Court’s Commerce

Clause, Tenth Amendment, and Eleventh Amendment decisions, that line is the one

between the proper domains of federal and state power. These are known as the

“federalism” cases.3 In the Court’s standing-to-sue decisions, it is the line between

the judiciary and the political branches of the federal government. And in its Takings

Clause decisions, it is the line between the rights of the community, as effectuated

by government, and those of individual property owners. A goodly number of these

Supreme Court decisions arise out of suits directly involving federal environmental

statutes, but even where they do not, their relevance to such statutes is clear.

Until the 1990s, Congress legislated in the environmental area with relatively

few constitutional concerns. Thus, the Supreme Court’s renewed attention to the

five areas mentioned has hardly escaped notice, particularly because the new focus

comes chiefly from one side of the political spectrum: the conservative majority on

the Court. Some commentators have seen in the Court’s new direction a severe

threat to the future of federal environmental law -1

U.S. CONST. art. I, § 8, cl. 3.

Chief Justice William Rehnquist, and Justices Antonin Scalia, Clarence Thomas, Sandra

Day O’Connor, and Anthony Kennedy.

See also (name redacted),

Federalism and the Constitution: Limits on Congressional

Power, CRS Rept. No. RL30315 (updated March 21, 2001).

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In the last decade, judges have imposed a gauntlet of new

hurdles in the path of environmental regulators, slammed the

courthouse doors in the face of citizens seeking to protect the

environment, and sketched the outline of a jurisprudence of

“economic liberties” under the Takings Clause and the U.S.

Commerce Clause of the U.S. Constitution that would frustrate

or repeal most federal environmental statutes.4

Others find the threat overstated, at least in regard to the federalism cases -Collectively, these rulings proscribe federal power, but this does

not mean that environmental protection is threatened. Thus far,

the Court’s federalist decisions have been exceedingly modest,

trimming federal power only on the margins. Congress retains

substantial authority to adopt environmental measures,

especially in those areas of particular federal concern. [In any

event,] Federal regulation is not the only means to advance

environmental values ....5

Herein we offer a survey of these newly rehabilitated constitutional bounds.6

For each, the report presents a hornbook review of the jurisprudence, then moves on

to its key focus: how the jurisprudence has been, or may be, applied to federal

environmental programs. The reader should have little difficulty seeing the

significance of the discussion for many non-environmental federal programs as well.

Following discussion of the five constitutional areas above, the report gives a

cursory nod to two constitutional doctrines that, while recently active, have not been

the beneficiaries of Supreme Court promotion. One, the Article I nondelegation

doctrine, was briefly resurrected by a lower court in a challenge to Clean Air Act

regulations before being reigned in by the Supreme Court in 2001. The other, Article

II’s vesting of enforcement authority in the executive branch, is today argued by

some citizen-suit defendants as inconsistent with citizen enforcement of federal

environmental laws. The Supreme Court has yet to resolve this issue.

Douglas T. Kendall et al., Conservative Judicial Activism and the Environment: An

Assessment of the Threat, 32 ENVTL. L. RPTR. 10835 (July 2002) (citations omitted).

Jonathan H. Adler, Judicial Federalism Not Anti-Environment, in Who’s in Charge?,

ENVTL. FORUM, July/Aug. 2002, p. 50.

Constitutional areas that are not “newly” important for federal environmental lawmaking,

and accordingly are not discussed in this report, include the Property Power in Article IV

(authorizing congressional regulation of the public lands), preemption doctrine under the

Article VI Supremacy Clause (defining when a federal statute will be held to have displaced

state regulation), and the Fourth Amendment (limiting the use of administrative searches).

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Article I: Commerce Clause

Background

The Commerce Clause of Article I bestows upon Congress the power "[t]o

regulate Commerce ... among the several States ...."7 As the basis for much of the

environmental, social, and economic legislation enacted by Congress, the scope of

this power is of more than passing interest. The Supreme Court has often been

treated to cases where the validity of a federal statute hinged on whether the activity

sought to be regulated, alone or aggregated with similar activity of others, had a

sufficient effect on interstate commerce to fall within the Commerce Power.

Fortunately from Congress’ point of view, the Supreme Court beginning in the 1930s

adopted an expansive interpretation of the Clause’s reach.8 Indeed, from 1937 until

1995, the Court rebuffed every Commerce Clause challenge to federal law.

In 1995, Congress’ winning streak came to a halt. In United States v. Lopez,9

the Supreme Court by 5-4 voided a criminal conviction under the Gun-Free School

Zones Act of 1990 as beyond Congress’ authority under the Commerce Clause.10

The majority explained that the Court’s decisions had identified three categories of

activity reached by the Clause – the now-canonical test.11 First, Congress may

regulate use of the channels of interstate commerce. Second, Congress may regulate

and protect the instrumentalities of, or persons or things in, interstate commerce,

even though the threat may come only from intrastate activities. And third, the

Commerce Clause includes the power to regulate intrastate activities that alone or in

the aggregate “substantially affect” interstate commerce. As to the last category, the

Court strongly suggested that only economic activity may be aggregated to establish

substantial effect. Finding that possession of a gun in a schoolyard lay outside the

last category (the only one that potentially applied), the conviction was reversed.

In 2000 and 2001, the Court showed that Lopez was no anomaly. In United

States v. Morrison,12 it again held (and again by 5-4) that Congress exceeded its

commerce power – this time in creating a federal civil remedy for victims of gender-

U.S. Const. art. I, § 8, cl. 3.

The key decision ushering in the modern period of expansive interpretation was NLRB v.

Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). There, the Court rejected its previous

distinction between “direct” and “indirect” effects on interstate commerce, recasting the

Commerce Clause inquiry as whether the intrastate activities “have such a close and

substantial relation to interstate commerce that their control is essential or appropriate to

protect that commerce ....” Id. at 36-38.

514 U.S. 549 (1995).

See generally (name redacted), United States v. Lopez:

The Limits of Federal Power

Under the Commerce Clause, CRS Rept. No. 95-1047 (1995) (archived).

514 U.S. at 558-559.

529 U.S. 598 (2000).

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motivated violence, as part of the Violence Against Women Act.13 As in Lopez, the

Court focused on the noneconomic, violent nature of the federally proscribed activity

in refusing to aggregate impacts on interstate commerce under the “substantially

affects” category.14 Further (and raising eyebrows among the commentators), the

Court refused to be bound by congressional findings in the Act asserting such

impacts on interstate commerce. These findings, it said, relied on a line of reasoning

– “but for” causation – that the Court had previously rejected in the Commerce

Clause context. After Morrison, the Court twice construed federal statutes narrowly

at least in part to avoid questions as to their possible invasion of intrastate realms

beyond Congress’ commerce power.15 While purely statutory rulings, these two

decisions show the continuing importance of the constitutional issue to the Court, and

its determination that the line between the proper realms of federal and state power

not be obliterated.

At the same time, nothing in Lopez or Morrison overruled any of the Court’s

prior Commerce Clause decisions. The Court even cited with approval Wickard v.

Filburn,16 widely seen as the pinnacle of its expansive Commerce Clause

jurisprudence. Lopez and Morrison are thus best regarded not as a retrenchment, but

rather as a clarification of where the line has long been, and a warning that the line

will not be shifted further toward federal power to accommodate Congress.

Are Federal Environmental Statutes Vulnerable?

No sooner had the ink dried on the Lopez decision than concerns were raised

that some federal environmental statutes might be on shaky Commerce Clause

footing.17 Vulnerabilities were suggested in the Superfund Act (cleanup sites where

the contamination remains within one state), Clean Water Act (“isolated waters”),

Safe Drinking Water Act (publicly owned drinking water systems providing service

within one state), and Endangered Species Act (species located entirely within one

state, affected by noneconomic activity).

The bulk of federal environmental provisions seems to be on constitutional terra

firma. Either the activity regulated is an economic one that, alone or in the aggregate,

See (name redacted), United States v. Morrison,

the Supreme Court Declares 42 U.S.C. 13981

Unconstitutional, CRS Rept. No. RS20584 (May 22, 2000).

“While we need not adopt a categorical rule against aggregating the effects of any

noneconomic activity ... , thus far in our Nation’s history our cases have upheld Commerce

Clause regulation of intrastate activity only where that activity is economic in nature.” 529

U.S. at 613.

Jones v. United States, 529 U.S. 848 (2000) (federal arson statute); Solid Waste Agency

of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (federal

statute creating permit program for discharges into “isolated waters”).

317 U.S. 111 (1942), cited in Lopez, 514 U.S. at 560-561.

See generally John P. Dwyer, The Commerce Clause and the Limits of Congressional

Authority to Regulate the Environment, 25 ENVTL. L. RPTR. 10421 (1995); J. Blanding

Holman, Note, After United States v. Lopez: Can the Clean Water Act and the Endangered

Species Act Survive Commerce Clause Attack?, 15 VA. ENVTL. L. J. 139 (1995).

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has substantial effect on interstate commerce (e.g., industrial activity causing air

pollution), or the statute is explicit that it reaches only activities in or affecting

interstate commerce,18 or there are congressional findings that the regulated activity

affects interstate commerce.19 Moreover, case law indicates that the concept of

economic activity, the prerequisite for aggregating the interstate impacts of intrastate

activity, may be broadly construed20 – though undeniably amorphous and

manipulable.21 Finally, the Court has cautioned that congressional enactments

should be judicially invalidated only upon “a plain showing” that Congress exceeded

its constitutional bounds.22

Some further words are in order about congressional findings in the wake of

Lopez and Morrison. In both decisions, the Court cautioned that “[s]imply because

Congress may conclude that a particular activity substantially affects interstate

commerce does not necessarily make it so.”23 Particularly is this true, said Morrison,

when a “but for” causal chain is asserted by Congress as providing the nexus between

the regulated act and interstate commerce. Such a chain of inference piled on

inference knows no bounds, said the Court, allowing Congress to regulate almost any

area of “traditional state regulation.” Thus, concluded the Court, this method of

reasoning must be rejected “if we are to maintain the Constitution’s enumeration of

powers.”24 The pertinence for this report is that few federal environmental statutes

use a “but for” rationale to support Commerce Clause jurisdiction – recall the

preceding paragraph. Probably the chief exception is the Endangered Species Act,

See, e.g., Federal Hazardous Substances Act, 15 U.S.C. § 1263; Toxic Substances Control

Act, 15 U.S.C. § 2602(3)-(4); Migratory Bird Treaty Act, 16 U.S.C. § 705; Clean Air Act,

42 U.S.C. § 7511b(e)(1)(C); Clean Water Act, 33 U.S.C. § 1342(a); Hazardous Materials

Transportation Act, 49 U.S.C. § 5102(1).

In other instances, the statute may not explicitly impose such a constraint, but may

limit its application to entities that are presumptively engaged in interstate commerce – for

example, manufacturers and distributors.

See, e.g., Toxic Substances Control Act, 15 U.S.C. § 2601(a)(3); Marine Mammal

Protection Act, 16 U.S.C. § 1361(5). Such findings are persuasive, even if not controlling.

Lopez, 514 U.S. at 562-563.

See, e.g., Gibbs v. Babbitt, 214 F.3d 483, 491 (4th Cir. 2000), cert. denied, 531 U.S. 1145

(2001); GDF Realty Investments, Ltd. v. Norton, 169 F. Supp. 2d 648, 660-661 (W.D. Tex.

2001), appeal pending.

In his majority opinion in Lopez, Chief Justice Rehnquist noted this problem: “Admittedly,

a determination whether intrastate activity is commercial or noncommercial may in some

cases result in legal uncertainty.” 514 U.S. at 566. See, e.g., United States v. Gregg, 226

F.3d 253 (3d Cir. 2000) (majority and dissenting opinions state opposite conclusions as to

whether protesters at abortion clinics are engaged in “economic” activity for purposes of

Commerce Clause analysis), cert. denied, 532 U.S. 971 (2001).

Morrison, 529 U.S. at 607.

Id. at 614, quoting Lopez, 514 U.S. at 557 n.2. This absence of judicial deference to

Congress’ findings is part of a more general trend, visible in even more pronounced fashion

in the area of congressional abrogation of state sovereign immunity through the Fourteenth

Amendment. See discussion of Board of Trustees v. Garrett in note 178 infra.

529 U.S. at 615.

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justified (as to noneconomic activities harming intrastate species) on the grounds of

persons travelling interstate to observe or study the species, specimens going to outof-state museums, or the ultimate effects of diminished biodiversity on interstate

commerce. It has also been speculated that Congress’ ability to enact certain new

environmental laws, perhaps addressing land use sprawl or global warming, may be

constrained.25

There are other clouds on the environmental horizon as well. First, Lopez and

Morrison suggest that Commerce Clause scrutiny will be closer when federal

regulation intrudes on an area of traditional state control. Of course, environmental

law has been a heavily federalized area for several decades now.26 In a postMorrison decision, however, the Court’s Commerce Clause discussion refers to the

states’ “traditional and primary power over land and water use,”27 suggesting that the

Court still views the federal government as something of an interloper in such

matters. Several federal environmental statutes, such as the Clean Water Act

wetlands permitting program and the Endangered Species Act, authorize direct

federal regulation of “land and water use.” Second, this same post-Morrison

decision suggests doubt in the Court’s mind as to whether intrastate economic

activities that are a step or two removed from the statute’s environmental concerns

may be aggregated to show the requisite substantial effect on interstate commerce.28

If this judicial doubt bears fruit in later Court opinions, we may see some contraction

in the constitutionally permissible scope of federal environmental laws.29

More optimistically from Congress’ point of view, it may be that the moderate

conservatives on the Court – that is, Justices O’Connor and Kennedy – are not yet

ready to take on a body of law such as federal environmental statutes that by and

large, if not in every instance, has an adequate interstate-commerce nexus. To do so

would also open up the federal civil rights laws, many federal criminal statutes, and

other federal statutes to Commerce Clause attack.

Charles Tiefer, After Morrison, Can Congress Preserve Environmental Laws from

Commerce Clause Challenge?, 30 ENVTL. L. RPTR. 10888 (2000).

See, e.g., Gibbs v. Babbitt, 214 F.3d 483, 499-501 (4th Cir. 2000) (noting long history of

federal protection of natural resources, including endangered species), cert. denied, 531 U.S.

1135 (2001); GDF Realty, 169 F. Supp. 2d at 663 (noting long federal involvement in

wildlife conservation). The predecessor of the Clean Air Act was first enacted in 1955; the

predecessor of the Clean Water Act in 1948.

Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers,

531 U.S. 159, 174 (2001).

Id. at 173 (municipal landfill to be built on filled ponds, though plainly an economic

activity, is “a far cry, indeed” from question whether Clean Water Act may reach those

ponds under Commerce Clause). See also id. at 195 (Stevens, J., dissenting).

Charles Tiefer, SWANCC: Constitutional Swan Song for Environmental Laws or No More

than a Swipe at Their Sweep, 31 ENVTL. L. RPTR. 11493 (Dec. 2001); Maya R. Moiseyev,

Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers: The Clean

Water Act Bypasses a Commerce Clause Challenge, But Can the Endangered Species Act?,

7 HASTINGS WEST-NORTHWEST J. ENVTL. L. & POL’Y 191 (2001).

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One thing is clear: federal environmental statutes were not written with the

current judicial focus on discerning an economic-activity justification in mind.

Unsurprisingly, they were written to protect the environment, with regulation of

economic activity only as a means to that end. The Court’s recently revived interest

in the Commerce Clause will likely force those defending such laws, and

congressional drafters of new ones, to make explicit for the courts the full economic

context of environmental protection.

Post-Lopez Decisions Involving Federal Environmental

Statutes

Since Lopez, lower-court decisions have continued to discern a Commerce

Clause foundation in federal environmental laws, rejecting the idea that Lopez and

Morrison state a broad prescription for narrowing such programs. Lower courts have

sided with the federal government in numerous cases involving the Superfund Act,30

Clean Air Act,31 Clean Water Act,32 Endangered Species Act,33 and Migratory Bird

Treaty Act.34 The Supreme Court has denied several petitions for certiorari from

these decisions, even though some of them arguably push the envelope of the Court’s

Lopez/Morrison jurisprudence. There are as yet no circuit splits to tempt the Court,

however.

USA v. Olin Corp.,107 F.3d 1506 (11th Cir. 1997); Cooper Industries, Inc. v. Agway, 43

Env’t Rptr. (Cases) 1933 (N.D.N.Y. 1996); United States v. Alcan Aluminum Corp., 1996

WL 637559 (N.D.N.Y. 1996); United States v. NL Industries, Inc., 936 F. Supp. 545 (S.D.

Ill. 1996); Nova Chemicals v. GAF Corp., 945 F. Supp. 1098 (E.D. Tenn. 1996).

Allied Local and Regional Mfrs. Caucus v. U.S. EPA, 215 F.3d 61 (D.C. Cir. 2000) (EPA

rule limiting volatile organic compounds in architectural coatings), cert. denied, 532 U.S.

1018 (2001).

United States v. Hartsell, 127 F.3d 343 (4th Cir. 1997) (Act’s coverage of discharges into

public sewer systems), cert. denied, 523 U.S. 1030 (1998).

Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000) (2-1) (application of Act’s “take” prohibition

to red wolves on private land), cert. denied, 531 U.S. 1145 (2001); National Ass’n of Home

Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997) (2-1) (application of Act’s “take”

prohibition to Delhi Sands Flower-Loving Fly, a subspecies located entirely in one state),

cert. denied, 524 U.S. 937 (1998); GDF Realty Investments, Ltd. v. Norton, 169 F. Supp.

2d 648 (S.D. Tex. 2001) (application of “take” prohibition to six species of “cave bugs”

located entirely in one state), appeal pending; Building Industry Ass’n of Superior

California v. Babbitt, 979 F. Supp. 893 (D.D.C. 1997) (listing as endangered or threatened

of four species of fairy shrimp residing in state’s vernal pools), 247 F.3d 1241, 1247 n.8

(D.C. Cir. 2001) (Commerce Clause claim conceded by plaintiff association to fail under

Nat’l Ass’n of Home Builders v. Babbitt, supra this note, but asserted to preserve possibility

of en banc review), cert. denied, 122 S. Ct. 913 (2002).

In addition to GDF Realty, supra this note, the Fifth Circuit recently had before it the

Commerce Clause compatibility of the Endangered Species Act “take” prohibition as

applied to several listed species living on the Edwards Aquifer in Texas. The court held the

suit unripe, however, and so did not address the merits. Shields v. Norton, 289 F.3d 832 (5th

Cir. 2002), cert. denied, 71 U.S.L.W. 3283 (Dec. 9, 2002).

United States v. Bramble, 103 F.3d 1475 (9th Cir. 1997).

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Worthy of special note are the following decisions handed down after Morrison,

the latest Supreme Court holding directly on the Commerce Clause. All of these

decisions reject the Commerce Clause challenge, and all do so on the same ground -that the “substantially affects” factor of Lopez was satisfied.

In Gibbs v. Babbitt,35 the Fourth Circuit – the same court that struck down the

Violence Against Women Act provision on its way to the Supreme Court36 (and a

circuit generally seen as quite conservative) – held 2-1 that an aspect of the

Endangered Species Act (ESA) was within Congress’ commerce power. The issue

was whether the United States, under the ESA, could limit the “taking” of

reintroduced red wolves on private land. The Fourth Circuit invoked the

“substantially affects” criterion on which Lopez and Morrison hinged, this time

finding the criterion satisfied. Unlike gender-based violence and guns near schools,

it said, the taking of red wolves is connected with economic enterprise. For one

thing, “the protection of ... economic assets is a primary reason for taking the

wolves.”37 For another, without the wolves, there would be no wolf-related tourism

or scientific research, and no commercial trade in pelts. Because of this economic

nexus, the effects of individual wolf takings may be aggregated. And when so

aggregated, they sufficiently affect interstate commerce to satisfy the “substantially

affects” prong of Lopez. The absence of congressional findings to that effect, said

the Circuit, did not preclude this conclusion.

Also involving the ESA was GDF Realty Investments, Inc. v. Norton,38

addressing a use of the Act to block construction of a shopping center that would

“take” endangered “cave bugs” by destroying their cave habitat. Outside of museum

collections, the cave bugs were known to exist only in one county in Texas.

Notwithstanding, the court found the “substantially affects” criterion satisfied – both

because the development of the shopping center, standing alone, satisfied the

“substantially affects” test, and because, as clearly economic activity, it could be

aggregated with other such development to “substantially affect.” Important,

however, the court cautioned that on different facts, it might have ruled otherwise.

The “broad terms” of the ESA, it said, “certainly cover[] purely local, intrastate

activities having no connection whatsoever with interstate commerce.”39 This raises

the possibility that use of the ESA to thwart a non-economic activity harming an

endangered species existing within one state would run into constitutional difficulty.

Finally, in Allied Local and Regional Mfrs. Caucus v. U.S. EPA,40 the D.C.

Circuit held that Clean Air Act section 183(e), instructing EPA to limit volatile

organic compounds (VOCs) in architectural coatings as part of the Act’s goal of

214 F.3d 483 (4th Cir. 2000), cert. denied, 531 U.S. 1145 (2001).

Brzoncala v. Virginia Polytechnic Inst., 169 F.3d 820 (4th Cir. 1999), aff’d sub nom.United

States v. Morrison, 529 U.S. 598 (2000).

214 F.3d at 492.

169 F. Supp. 2d 648 (W.D. Tex. 2001), appeal pending.

Id. at 664.

215 F.3d 61 (D. C. Cir. 2000), cert. denied, 532 U.S. 1018 (2001).

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minimizing ground-level ozone, was within Congress’ commerce power. Industry

plaintiffs argued that there was an insufficient nexus under the “substantially affects”

Lopez factor between coatings manufacture, which they described as an intrastate

event, and the interstate phenomenon of ozone formation. “[N]one of the

considerations that led the [Supreme] Court to find Congress’ authority wanting in

Lopez and Morrison,” said the Circuit, “has any application to section 183(e) ....”41

For example, the VOC provision regulated only manufacturers, processors,

distributors, or importers of products “for sale or distribution in interstate

commerce,” or their suppliers.

A Special Case: “Isolated Waters”

One of the most high-profile Lopez challenges in the environmental realm

involves the EPA/Corps of Engineers’ assertion of Clean Water Act authority over

“isolated waters” under the “migratory bird rule.”42 Federal regulation of isolated

waters – nonnavigable, intrastate waters lacking surface hydrological connections to

navigable waters – plainly raises the issue of whether an adequate nexus with

interstate commerce is present. Indeed, even before Lopez, the Seventh Circuit had

gone both ways on the issue -- ruling first against, then for, the Commerce Clause

compatibility of Corps jurisdiction over isolated waters.43 Following Lopez, the

Fourth Circuit in United States v. Wilson44 invalidated Corps regulations asserting

jurisdiction over wetlands the use of which merely “could,” as opposed to “did,”

affect interstate commerce.

The isolated-waters/migratory-bird rule question leaped to the fore when the

Supreme Court in 2000 agreed to hear Solid Waste Agency of Northern Cook County

(SWANCC) v. U.S. Army Corps of Engineers. This case arose when SWANCC,

wishing to use a tract of land for a trash disposal facility, asked the Corps of

Engineers whether the ponds on the site were jurisdictional – that is, waters requiring

a “dredge and fill” permit from the Corps under Clean Water Act section 404. The

Corps answered yes, citing the presence of migratory birds on the ponds and invoking

its “migratory bird rule.” It then denied the permit.

This requires some background. The Clean Water Act of 1972 makes its

regulatory programs, such as section 404, applicable to “navigable waters,” an

ancient phrase given a new and expansive definition in the Act as “waters of the

United States.”45 The Act does not define “waters of the United States,” but

legislative history says that Congress intended the phrase to apply broadly to the

215 F.3d at 83.

33 U.S.C. § 1344.

Hoffman Homes, Inc. v. U.S. EPA, 999 F.2d 256 (7th Cir. 1993) (reversing earlier decision

of circuit).

133 F.3d 251 (4th Cir. 1997).

CWA § 502(7); 33 U.S.C. § 1362(7).

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outer limits of Congress’ commerce power.46 Taking their cue from this legislative

history (not to mention a court order demanding expanded jurisdiction), the Corps

of Engineers and EPA defined “waters of the United States” in the mid-1970s to

include a whole new component: non-navigable “intrastate lakes, rivers, streams ...

, or natural ponds, the use, degradation, or destruction of which could affect interstate

or foreign commerce.”47 Now comes the key part. The Corps and EPA interpreted

this component of “waters of the United States” to include all waters “which are or

would be used as habitat by birds protected by Migratory Bird Treaties” or by “other

migratory birds that cross state lines.”48 This is the controversial “migratory bird

rule”– more accurately, not a rule but an interpretive guideline.

In the decision below, the Seventh Circuit found that the migratory bird rule

satisfies the “substantially affects” prong of Lopez. Pointing out that “3.1 million

Americans spent $1.3 billion to hunt migratory birds in 1996, and that about 11% of

them traveled across state lines to do so,” the court found the aggregate impact of the

destruction of migratory bird habitats to substantially affect interstate commerce.49

The Supreme Court decision50 never reached the constitutional question, at least

not directly. Rather, the majority opinion (the Court split yet again 5-4) confined

itself to the statutory issue as to the scope of section 404. It held, depending on

which part of the opinion one looks at, either that Congress never intended section

404 to extend to isolated waters at all, or that Congress never intended section 404

to extend to isolated waters solely on the basis of the migratory bird rule. The effect

of this ruling, however interpreted, is to narrow the reach of not only the section 404

program, but also other components of the Clean Water Act, such as point-source

permitting,51 whose reach likewise is defined by the term “navigable waters.”

More important for present purposes, the Court, in arriving at its reading of

section 404, drew support from the Commerce Clause and considerations of

federalism. (Chief Justice Rehnquist, who authored the majority opinion, also wrote

the majority opinions in Lopez and Morrison.) Because the migratory bird rule

“invokes the outer limits of congressional power,” said the Court, “we expect a clear

indication that Congress intended that result”52 – an indication the Court did not find.

As noted earlier, the Court also injected two hints of serious import for the scope of

federal environmental law generally – one suggesting closer Commerce Clause

See, e.g., Sen. Conf. Rept. No. 92-1236 at 144 (1972).

Now codified at 33 C.F.R. § 328.3(a)(3).

51 Fed. Reg. 41,206, 41,217 (1986) (in preamble).

191 F.3d at 850.

531 U.S. 159 (2001). See generally (name redacted) and (name redacted),The Supreme

Court Addresses Corps of Engineers Jurisdiction Over “Isolated Waters”: The SWANCC

Decision, CRS Rept. No. RL30849 (Feb. 16, 2001); Robin K. Craig, Navigating

Federalism: The Missing Statutory Analysis in Solid Waste Agency, 31 ENVTL. L. RPTR.

10508 (2001).

Point-source permitting is more formally called the National Pollutant Discharge

Elimination System. CWA § 402; 33 U.S.C. § 1342.

531 U.S. at 172.

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scrutiny when the federal enactment regulates the use of non-federal land and water,

and the other casting doubt on whether the economic activity relied on by some of

the earlier-discussed decisions is sufficiently closely linked to the goals of those

statutes to qualify for aggregation under the “substantially affects” Lopez factor.

Article III: Standing to Sue in Federal Court

Background

Standing doctrine is concerned with who is a proper party to raise a particular

issue in the federal courts. Some precepts of standing are merely “prudential” – that

is, developed by the courts as part of their inherent power of judicial selfmanagement. Our concern, rather, is with those aspects of standing mandated by

Article III of the Constitution – in particular, by that Article’s confinement of the

jurisdiction of federal courts created under it (such as district courts) to “Cases” and

“Controversies.” The case-or-controversy requirement has long been construed to

restrict Article III courts to the adjudication of real, live disputes; they are not

empowered to decide academic matters. As famously put, standing doctrine demands

a plaintiff who has “such a personal stake in the outcome of the controversy as to

assure that concrete adverseness which sharpens the presentation of issues upon

which the court so largely depends ....”53

In the Supreme Court’s current thinking, this case-or-controversy prerequisite

imposes as a constitutional minimum for standing in an Article III court that the

plaintiff show three things: (1) he/she has suffered an “injury in fact” that is concrete

and particularized (not common to the entire public), and actual or imminent; (2) the

injury is fairly traceable to the challenged action of the defendant;54 and (3) it is likely

that the injury will be redressed by a favorable decision.55

Environmental Standing Before Laidlaw

Once upon a time, environmental plaintiffs had a relatively easy time

establishing standing. In Sierra Club v. Morton,56 the Supreme Court in 1972 held

that injury to aesthetic and environmental well-being may constitute “injury in fact”

for purposes of establishing standing to seek judicial review under the Administrative

Procedure Act (APA).57 Moreover, the fact that the injury was “shared by the many”

Baker v. Carr, 369 U.S. 186, 204 (1962).

Within limits, “Congress has the power to define injuries and articulate chains of causation

that will give rise to a case or controversy where none existed before ....” Lujan v. Defenders

of Wildlife, 504 U.S. 555, 580 (1992) (Kennedy, J., concurring). Accord, Vermont Agency

of Natural Resources v. United States, 529 U.S. 765, 773 (2000).

See, e.g., Vermont Agency, 529 U.S. at 771.

405 U.S. 727 (1972).

The APA requires that those seeking review under that statute have “suffer[ed] legal

(continued...)

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did not make it less deserving.58 The following year, in what is regarded as the

apogee of relaxed standing law, the Court in United States v. SCRAP59 found APA

standing based on an attenuated argument by a student group seeking to compel the

ICC to suspend a proposed freight rate increase. The group argued that the rate

increase would raise the price of recyclable materials, which would discourage their

use, which would result in increased use of nonrecyclable materials, which would

lead to adverse environmental impacts (e.g., increased litter) on the forests and

streams in the D.C. area that group members used for recreation.

Following Sierra Club and SCRAP, the standing hurdle remained easily

surmounted in environmental cases for almost two decades. In 1983, however, thenJudge Antonin Scalia argued in a law review article that federal courts were

conferring standing too liberally,60 complaining in particular of their “love affair with

environmental litigation.”61 For one thing, he said, courts need to accord greater

weight to the traditional requirement that plaintiff’s alleged injury be a particularized

one, which sets him or her apart from the public at large. For another, he asserted

that courts should be less intrusive into executive branch affairs, particularly when

the plaintiff seeks to vindicate majoritarian interests. The law of standing, in Judge

Scalia’s view, should restrict courts to protecting the minority against the majority.

Important here, he seemed to place many environmental suits in the undesirable

vindication-of-the-majority category.62

When Judge Scalia ascended to the Supreme Court in 1986, this article assumed

some significance. And indeed, now-Justice Scalia authored the majority opinions

in each of the Supreme Court’s environmental standing decisions in the 1990s. Not

surprisingly, these opinions reflect his law review article, and define a new phase of

the Court’s environmental standing jurisprudence.

All the decisions in this new phase that involved environmental plaintiffs found

them to lack standing. In Lujan v. National Wildlife Federation,63 the Court held 5-4

that where individual plaintiffs averred only that they recreated on unspecified

(...continued)

wrong,” or be “adversely affected” or “aggrieved,” by the challenged agency action. 5

U.S.C. § 702. Courts typically assume congruence between the APA test and the “injury

in fact” test for Article III standing.

To be sure, the Court denied the Sierra Club standing, because the Club had failed to

allege that it or its members were among the injured. This deficiency was easily remedied

on remand by the Club’s amending its complaint to allege recreational harm to those of its

members who visited the affected area.

412 U.S. 669 (1973).

Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of

Powers, 17 SUFFOLK L. REV. 881 (1983).

Id. at 884.

Also underlying Justice Scalia’s narrow view of standing is his dissent in Morrison v.

Olson, 487 U.S. 654, 697 (1988). There, he opined that the Constitution permits only the

executive branch to enforce a public law.

497 U.S. 871 (1990).

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portions of public land, there was insufficient geographic specificity to say they were

“adversely affected” under the APA by a Bureau of Land Management action

affecting particular tracts. Similarly, in Lujan v. Defenders of Wildlife,64 the Court

held 7-2 that allegations by the environmental group’s members that they intended

“some day” to visit an area where endangered species might be harmed by the

challenged federal action, lacked the temporal specificity needed to meet the “injury

in fact” prong of Article III standing. Finally, in Steel Co. v. Citizens for a Better

Environment,65 the Court ruled 6-3 that where the defendant came into compliance

during the 60-day notice period before the citizen suit could be filed, the plaintiffs

failed the “redressability” component of Article III standing. For example, the civil

penalties sought by the suit were payable to the U.S. Treasury, not the plaintiffs, and

so could not redress any lingering injury plaintiffs may suffer from the former

violation.66

Because environmental groups usually seek to establish standing by asserting

the standing of their individual members – known as “associational standing”67 – the

foregoing cases made it more difficult for such organizations as well to sue.

The 1990s drift of the Supreme Court toward an increasingly narrow concept

of environmental standing was abruptly reversed in 2000, through the Court’s

decision in Friends of the Earth v. Laidlaw.68

Friends of the Earth v. Laidlaw

Laidlaw operated a hazardous waste incinerator that discharged wastewater into

a river. Friends of the Earth (FOE) brought a Clean Water Act (CWA) citizen suit

against Laidlaw,69 alleging that the incinerator had committed hundreds of violations

of its effluent permit. FOE submitted the affidavits of several of its members

alleging that they were injured by the violations in that they used the river

downstream of Laidlaw’s point of discharge and had curtailed their use because of

concerns about the effect of the violations on human health and fish.

504 U.S. 555 (1992).

523 U.S. 83 (1998).

Conversely, a unanimous Supreme Court opinion authored by Justice Scalia granted

standing under the Endangered Species Act’s citizen suit provision to ranchers and irrigation

districts opposing restrictions under the Act. Bennett v. Spear, 520 U.S. 154 (1997).

In Hunt v. Washington State Advertising Comm’n, 432 U.S. 333 (1977), the Supreme

Court articulated the test for determining whether an organization can assert associational

standing on behalf of its members: (1) its members would otherwise have standing to sue

in their own right; (2) the interests the organization seeks to protect are germane to its

purpose; and (3) neither the claim asserted nor the relief requested requires the participation

of individual members in the lawsuit.

528 U.S. 167 (2000).

CWA § 505(a); 33 U.S.C. § 1365(a).

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The district court denied injunctive relief since Laidlaw was in substantial

compliance by the time the court issued its order.70 However, it ordered Laidlaw to

pay civil penalties. The Fourth Circuit vacated.71 In its view, the case became moot

once Laidlaw fully complied with its permit and FOE declined to appeal the district

court’s denial of injunctive relief. FOE’s appeal only sought a higher civil penalty

than the district court imposed, and under Steel Co., civil penalties do not meet

redressability requirements since they are not payable to the plaintiff (they go to the

U.S. Treasury).

In 2000, the Supreme Court reversed. Writing for a 7-justice majority,72 Justice

Ginsburg held that the Fourth Circuit erred in concluding that a citizen suit claim for

civil penalties must be dismissed as moot when the defendant, after filing of the suit,

comes into compliance.

The majority first resolved the Article III standing question. As for injury in

fact, it ruled that the relevant showing is injury to the plaintiff, not injury to the

environment. Thus, it was sufficient that FOE members lived downstream from the

point of discharge and were concerned enough by the defendant’s discharges that

they curtailed their use of the river. Plaintiffs did not have to demonstrate harm to

the environment. As for redressability, the Court declared that all civil penalties

have some deterrent effect. Indeed, Congress had said so in the specific context of

CWA enactment and “[t]his congressional determination warrants judicial attention

and respect.”73 Steel Co. does not dictate otherwise, said the Court, since that

decision denied standing for citizen suitors seeking civil penalties for violations that

had abated by the time of suit. Steel Co. did not reach the issue here: standing to

seek penalties for violations ongoing at such time. Thus, plaintiffs had standing.

Turning to the mootness issue (again, raised by the defendant’s coming into

compliance during the district court’s deliberations), the Court charged the Fourth

Circuit with confusing standing and mootness. The confusion was understandable,

the Court conceded, given its past characterization of mootness as “standing set in

a time frame.” In Laidlaw, the Court backed away from that description. It noted,

for example, that the prospect of future noncompliance may be too speculative to

support standing, but not too speculative to overcome mootness. Then, too, the

underlying purpose of the two doctrines counsels greater hesitancy in dismissing a

case on mootness, as opposed to absence of standing, grounds. Standing doctrine

acts to ensure that the scarce resources of the federal courts are devoted to disputes

in which the parties have a concrete interest. In contrast, by the time mootness is an

issue, the case may have been in the courts for years, making abandonment without

compelling reason a wasteful practice.

956 F. Supp. 588 (D.S.C. 1997).

149 F.3d 303 (4th Cir. 1998). An earlier CRS report addresses this Fourth Circuit ruling:

(name redacted),

The Future of the Citizen Suit After Steel Co. and Laidlaw, CRS Report No.

RS20012 (Jan. 5, 1999).

The dissenters were Justices Scalia and Thomas.

528 U.S. at 185.

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That the facility in question had since been closed, however, gave the majority

pause. The closure might indeed moot the case if this event, or Laidlaw’s earlier

achievement of substantial compliance with its permit requirements, made it

“absolutely clear” that Laidlaw’s permit violations could not reasonably be expected

to recur. These factual issues, not explored by the district court, were found to be

open for consideration on remand.74

Implications of Laidlaw for Environmental Citizen Suits

The Laidlaw decision is a significant win for the plaintiff side of the

environmental citizen suit, likely to make such suits much easier to bring.75 Two

commentators clarify that notwithstanding the increasingly restrictive standing rules,

the number of environmental citizen suits may have doubled from the 1980s to the

1990s.76 They then speculate that while Laidlaw likely will make such suits less

expensive to bring, it may not cause them to be filed in greater number.

Some implications of Laidlaw –

1. It will be easier for plaintiffs to show “injury in fact.” The Laidlaw majority

asserted that where the injury to plaintiff results from a reasonable concern, there is

little need for plaintiff to demonstrate injury to the environment as a predicate. This

altered the prior situation, where plaintiffs’ attorneys were expending substantial

effort (lab analysis of water samples, ecological testing, witness depositions, etc.) just

to get past this threshold issue in the case.

Laidlaw has already borne fruit. One month later, the en banc Fourth Circuit

reversed the panel decision in Friends of the Earth v. Gaston Copper Recycling

Corp., which had denied standing to bring a CWA citizen suit.77 The en banc court

noted that on the facts presented, denying standing “encroaches on congressional

authority by erecting barriers to standing so high as to frustrate citizen enforcement

of the Clean Water Act.” The citizen suit provision at issue, it observed, uses

language that cannot be reconciled with the strict standard of injury employed in the

decisions below. To Gaston Copper’s defense that plaintiff had not adequately

proved environmental degradation to show injury in fact for Article III purposes, the

court held up Laidlaw’s focus on injury to the plaintiff. “[Plaintiff’s] reasonable fear

The Supreme Court therefore remanded the case to the Fourth Circuit, which, in turn,

remanded to the district court. 208 F.3d 209 (4th Cir. 2000) (table entry). Since then,

Laidlaw has gone bankrupt.

See, e.g., Symposium, Citizen Suits and the Future of Standing in the 21st Century: From

Lujan to Laidlaw and Beyond, DUKE ENV’L L. & POL’Y FORUM (Spring, 2001 and Fall,

2001); Michael P. Healy, Standing in Environmental Citizen Suits: Laidlaw’s Clarification

of the Injury-in-Fact and Redressability Requirements, 30 ENVTL. L. RPTR. 10455 (2000).

Our discussion of Laidlaw omits the attorneys’ fee issue in the case, an important one

for cash-strapped public interest groups considering whether to file citizen suits, but outside

the constitutional focus of this report.

Robert V. Percival and Joanna Groger, Escaping the Common Law’s Shadow: Standing

in the Light of Laidlaw, 12 DUKE ENV’L L. & POL’Y FORUM 147 (2001).

204 F.3d 149 (4th Cir. 2000) (en banc).

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and concern about the effects of Gaston Copper’s discharge, supported by objective

evidence ... constitutes injury in fact.”

Laidlaw also calls into question the no-standing holding in Public Interest

Research Group of New Jersey, Inc. v. Magnesium Elektron, Inc.,78 yet another CWA

citizen-suit decision. There, the Third Circuit correctly said that the mere knowledge

that a company has polluted is insufficient to confer standing, since this is a

generalized grievance shared by the public at large. In conflict with the future

Laidlaw decision, however, the court went on to conclude that standing requires a

showing of actual, tangible injury to the environment. This aspect of Magnesium

Elektron no longer appears to be good law.

2. It will be easier for plaintiffs seeking civil penalties to satisfy the

“redressability” component of standing, even though the penalties are not payable to

the plaintiff. The Court’s statement that “all civil penalties have some deterrent

effect” is a powerful one for citizen suitors. There are currently several citizen-suit

provisions that allow claims for money penalties payable to the U.S. Treasury. Note

also: because the Court seems inclined to defer to congressional findings in this area,

it may be useful in the future for proponents of new citizen-suit provisions

authorizing civil penalties to accompany them with assertions of deterrent effect.

3. The majority retained the traditional view that makes it hard for a defendant

to obtain a dismissal based on mootness once a plaintiff has established standing.

4. Two facts suggest that Laidlaw’s reversal of the 1990s trend toward higher

standing hurdles may be more than temporary. First, the Court did not have to decide

the standing question at all in the case; mootness was the principal issue presented,

and the petitioner’s briefs were focused there. That Justice Ginsburg reached out to

resolve the standing issue when it was unnecessary to do so points to a desire on the

part of at least some justices to move the pendulum back to some extent. Second, it

may be significant that the majority opinion commanded fully 7 votes, including

some justices normally on the no-standing side of the Court’s decisions.

5. It now appears that only a minority of the justices are sympathetic to Justice

Scalia’s view that the Constitution prohibits a private party from enforcing a public

law.

Following Laidlaw, the Court again found standing in Vermont Agency of

Natural Resources v. United States.79 This case involved the specialized context of

qui tam suits, but has some relevance to environmental citizen suits. Under the False

Claims Act, a private person may bring suit against an entity that submits a false

money claim to the federal government. Such suit, says the Act, is brought “for the

person and for the United States Government”80 and, if successful, entitles the

plaintiff (called the “relator”) to a portion of any proceeds from the action. These are

the defining characteristics of a qui tam action. But since the relator himself suffers

123 F.3d 111 (3rd Cir. 1997).

529 U.S. 765 (2000).

31 U.S.C. § 3730(b)(1) (emphasis added).

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no injury supporting a finding of injury in fact (unlike the citizen-suit plaintiff), the

issue arose whether a qui tam relator has standing.

The Vermont Agency Court found an adequate basis for the relator’s standing

by viewing the relator as a partial assignee of the United States’ claim against the

alleged false claimant. Citing the doctrine that the assignee of a claim may assert the

injury in act suffered by the assignor, the holding of relator standing directly

followed. The interesting question is whether this rationale opens the door for

congressional redefinition of citizen-suit plaintiffs as assignees of federal lawenforcement interests. However, the liberalization of standing rules by Laidlaw

undercuts the need for such an effort.

Fifth Amendment: The Takings Issue

Background

The Takings Clause of the Fifth Amendment states: [N]or shall private property

be taken for public use, without just compensation.” But when, precisely, does a

government action sufficiently interfere with private property as to effectively “take”

it – outside of the obvious circumstance when the government formally condemns

or confiscates property? Answering this question has involved the courts in a

delicate and usually ad hoc balancing act between the needs of society at large and

the rights of the individual property owner.

The rise of the takings issue coincides with the growth during the twentieth

century of government regulation of land use – from the advent of comprehensive

municipal zoning in the early part of the century, to the widespread use of

environmental, historic preservation, growth control, open space preservation, and

other government interventions by the 1960s and 1970s. In 1978, a takings challenge

to a historic preservation ordinance yielded a Supreme Court decision clearly

signaling the Court’s interest in developing a coherent theoretical framework in the

takings area.81 Since then, the advent of a conservative majority on the Supreme

Court interested in expanding Takings Clause protections has ensured that every

Court term includes at least one takings decision. (In the Congress and many state

legislatures, property rights partisans, particularly during the 1990s, gave the issue

a legislative face as well as a judicial one, by introducing “property rights bills.”

Some of these bills would have given the property owner aggrieved by regulation a

right of action against the government considerably more favorable than that under

the Takings Clause. None were enacted by Congress.)

When a landowner brings a “taking action” against the United States (or state

or local government for that matter), there are myriad threshold issues that must be

surmounted before the merits of the case are even reached. Is the government action

at issue more appropriately viewed as something other than a taking – perhaps a

Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978).

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breach of contract or a tort?82 Is plaintiff in the right court?83 Is the interest plaintiff

claims to have been taken one that the Takings Clause recognizes as “property”? (If

not, there can be no taking.) Did plaintiff own the property as of the date of the

alleged taking? (If not, any physical taking claim, and some regulatory takings

claims, will be precluded.) Has the statute of limitations expired?84 Is the case ripe

– that is, has there been a “final” government decision?85 (Except when challenging

a government delay, a “final decision” is a prerequisite for a taking claim.) Was the

federal agency action in question authorized?86 (If not, it cannot be the basis for a

taking claim.) Did the federal agency assert merely private (non-sovereign) property

rights – i.e., the same as any property owner might assert?87 (If so, the Takings

Clause is inapplicable.) Many takings cases founder at the outset on these shoals.

If the substantive takings issue is reached, one confronts a body of law often

described as muddled and vague. This is doubtless true to a degree, though today’s

takings jurisprudence plainly has come a long way from the almost completely ad hoc

situation before 1978. In any event, the initial question in the merits phase is which

of the three basic categories of takings, and which subcategory, best describes the

property owner’s claim. The court’s answer significantly affects the owner’s chances

of success.

1. Regulatory takings. In a regulatory taking claim, the property owner asserts

that despite the absence of any physical intrusion by government or its

instrumentalities onto the private property or any government appropriation of that

property, a taking has been effected by government regulation of the property’s use.

There are two subcategories of regulatory takings. If the regulation deprives

the property of all economic use and/or value, a taking automatically will be found

– provided the regulation could not have been imposed under “background principles

of the State’s law of property and nuisance” existing when the property was

See note 83 infra.

Under the Tucker Act, 28 U.S.C. § 1491(a), jurisdiction over almost all takings claims

against the United States is vested in the U.S. Court of Federal Claims (CFC). This CFC

jurisdiction is effectively exclusive as to takings claims for more than $10,000, since the

Little Tucker Act, 28 U.S.C. § 1346(a), grants the district courts jurisdiction over takings

claims against the United States only for claims seeking $10,000 or less. The Tucker Act

does not give the CFC jurisdiction over tort claims against the United States, which must

be heard in the district courts.

The statute of limitations for takings claims against the United States is six years, whether

the claim is one over which the CFC has jurisdiction (28 U.S.C. § 2501) or not (28 U.S.C.

§ 2401).

The leading authority for the “final decision” ripeness requirement of takings law is

Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985).

See, e.g., Del Rio Drilling Programs, Inc. v. United States, 146 F.3d 1358 (Fed. Cir. 1998).

See, e.g., Janicki Logging Co. v. United States, 36 Fed. Cl. 338 (1996), affirmed, 124 F.3d

226 (1997) (table entry).

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acquired.88 This is called the “total taking” rule. If, far more commonly, the

regulation removes only a portion – even a very substantial portion – of the

property’s use or value, then ad hoc balancing is used. to decide whether a taking

occurred. Under this “partial regulatory taking” test, a court assesses the government

action for its (1) economic impact on the property, (2) degree of interference with the

property owner’s “reasonable investment-backed expectations,” and (3) “character.”89

While recent Supreme Court rulings strongly suggest that the above multifactor

balancing approach governs in the overwhelming majority of regulatory takings

cases,90 it has done little to explicate the three factors. Based on the case law,

however, we can reasonably say the following. As to the economic impact factor, the

degree of loss (in use or value) must be very substantial before a taking occurs.

Plaintiff’s ability to recoup his/her cost basis is also relevant. And both direct and

indirect benefits conferred by the regulatory scheme may offset the immediate

economic impact on the property owner. As to interference with investment-backed

expectations, the fact that the regulatory scheme in question predates plaintiff’s

acquisition of the property does not automatically preclude the taking action (see

“notice rule” discussion below). But those who enter a heavily regulated field have

limited expectations of being free of any subsequent strengthening of the regulatory

strictures. As to the “character” of the government action, the Supreme Court

initially explained that this factor chiefly referred to the fact that takings are more

readily found in the case of physical invasions, as compared to purely regulatory

interferences. Yet other elements are now understood to be within this most elastic

of the three factors. For example, it includes a balancing of the public interest

advanced by the government measure against the burden imposed on the property

owner and a requirement that plaintiff allege the taking of a specific property interest,

rather than, say, only a generalized monetary liability.

A cross-cutting issue arising with both total takings claims and partial regulatory

takings claims is the question of the “parcel as a whole.” This conundrum stems

from the fact that takings law, in assessing the economic impact and interference with

investment-backed expectations factors, looks not at the absolute amount of the

property owner’s loss, but rather at the loss relative to what the owner retains. To

assess what the property owner retains, a court is required to look at the parcel as a

whole, in any of its three dimensions. The spatial dimension asks which acreage

owned by plaintiff should be included in the assessment of the government action’s

Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1029 (1992). Despite the

reference in the text quote to “State’s,” references elsewhere in Lucas and in subsequent

case law make clear that federal law as well can be the source of “background principles.”

Penn Central, 438 at 124.

An independent test for regulatory takings created by the Supreme Court finds a taking

when the government action fails to substantially advance a legitimate government interest.

Agins v. City of Tiburon, 447 U.S. 255, 260 (1980). This means-end test is a very different

animal than the prevailing multifactor balancing method just described in the text, which

primarily looks at the economic effects of government action. Perhaps reflecting judicial

awareness of this uncomfortable fit, the “substantially advance” test has been infrequently

used by courts. In any event, there can be little argument that federal environmental statutes

do substantially advance a legitimate government purpose.

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impact. At a minimum, we know that acreage cannot be excluded from the parcel

as a whole merely because it is in a different regulatory status than the restricted

acreage claimed to have been taken. The functional dimension of parcel as a whole

focuses on the rights plaintiff still has in the property – one must examine, in the

common metaphor, the entire “bundle of rights” possessed by plaintiff. And the

temporal dimension asks whether, notwithstanding plaintiff’s inability to make

economic use of the property during one period in the life span of the property

interest, there is another period when the property can be so used.

Two specialized issues in regulatory takings law have occupied the Supreme

Court recently. First, the notice rule. In the 1990s, many courts held that a taking

action was barred absolutely whenever a land-use restriction was imposed under a

regulatory scheme predating plaintiff’s acquisition of the property. This is known as

the “notice rule.” It was justified on the grounds that a land buyer assumes the risk

that development will be thwarted under the pre-existing regime and presumably

bought at a discounted price reflecting that risk. The notice rule’s importance can

hardly be overstated; after another decade or two, few landowners will be left who

purchased prior to the advent of many federal environmental programs, and thus can

bypass the rule.91 In 2001, however, the Supreme Court emphatically rejected the

absolute version of the notice rule, holding that the pre-acquisition existence of a

regulatory program was not a per se bar to later takings actions.92 A year later, the

Court clarified, albeit in dicta, that a pre-acquisition regime still retains some

persuasive role in the regulatory takings equation, even if not a dispositive one.93

Second, the expressly temporary restriction. Typically, the regulation

challenged as a regulatory taking is of indefinite duration. In the most recent

Supreme Court taking decision,94 however, the Court dealt with a very different

entity: the regulation declared at the outset to be temporary. Such expressly

temporary land-use restrictions commonly take the form of development moratoria

imposed by local governments to maintain the status quo until a study of the impacts

of future development can be completed. Congress as well has used temporary

moratoria, as in connection with Outer Continental Shelf oil and gas production.

The Court declared that for such expressly temporary development bans, the per

se “total taking” analysis used for initially indefinite bans is inappropriate.

Notwithstanding the owner’s inability to make of his/her property for a time, the

former ban is generally to be analyzed under the multifactor balancing test for partial

regulatory takings. Under this test, the economic impact and duration of the ban are

merely two of many factors, and the ban, if of reasonable duration and for a

legitimate public purpose, is likely not to be a taking.

For example, the statutory authority for the federal wetlands permitting program, in Clean

Water Act section 404, was enacted in 1972.

Palazzolo v. Rhode Island, 533 U.S. 606 (2001).

Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 122 S. Ct. 1465

(2002).

Id.

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Overall, a wide spectrum of federal activities has sparked regulatory takings

claims, including bankruptcy laws, controls on health care costs, required funding of

pension plans and other employee benefits, settlement of private international claims

and freezing of aliens’ assets, and, our interest here, environmental regulation.

2. Physical takings. A physical taking claim asserts that the government,

directly or through third parties, has effected a physical invasion of private property.

As with regulatory takings, there are two subtypes. If the invasion is deemed

“permanent,” it will be held a taking in almost all instances.95 If the invasion is only

temporary, the three-factor regulatory taking test above is invoked, under which the

invasion may or may not be a taking (but generally not).

Federal actions that often bring on physical takings claims include flooding from

federal dams and other water projects, overflights of federal aircraft, and, in the

environmental arena, the rails-to-trails and Superfund cleanup programs.

3. Exaction conditions on development permits. Here, the government doesn’t

forbid the land use, but rather demands a concession (“exaction”) from the landowner

in return for approving the use. To survive takings challenge, such an exaction

condition must satisfy two criteria. It must substantially advance the same

government purpose as justified the permit program in question.96 And the burden

imposed on the property owner by the exaction must be no greater than “roughly

proportional” to the burden that the property owner’s proposed project would have

on the community.97 Exactions-based takings claims are myriad at the local level.

Curiously, however, the exactions test has never been invoked by a court deciding

a taking claim against the United States, though some federal activity, such as the

mitigation conditions imposed on wetlands permits and “incidental take permits”

under the Endangered Species Act, arguably falls within the test’s reach.98

So much for how courts determine whether a taking has occurred. We come

finally to the question of the constitutionally mandated remedy once a taking is

found, a long unresolved matter. The government, says the Supreme Court,

generally must pay compensation. In the usual case, it does not satisfy the

Constitution for the court to invalidate the act found to have caused a taking, or for

the government agency to rescind it.99

Loretto v. Teleprompter Manhattan CATV, 458 U.S. 419 (1982).

Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987).

Dolan v. City of Tigard, 512 U.S. 374 (1994).

See (name redacted),

Wetlands Regulation and the Law of Property Rights “Takings”at 2425, CRS Report No. RL30423 (Feb. 17, 2000) (hereinafter Wetlands Regulation).

First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304

(1987). In a few exotic circumstances, the remedy of judicial invalidation for a taking

remains. See, e.g., Eastern Enterprises v. Apfel, 524 U.S. 498, 521-522 (1998) (statute

requiring direct transfer of funds); Babbitt v. Youpee, 519 U.S. 234 (1997) (statute

substantially interfering with rights of descent and devise).

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Cases Involving Federal Environmental Statutes

Though the takings issue most often arises in disputes over local land-use

regulation, several federal environmental programs have been implicated, as noted.

In the regulatory takings realm, the federal environmental program most

commonly attacked is the Corps of Engineers/EPA wetlands permitting scheme

under the Clean Water Act – known as the “404 program.”100 Almost the entire

spectrum of regulatory takings issues has arisen at some point in these wetlands

cases.101

Two fact scenarios are common in the wetlands/takings cases. In the first, the

wetland owner is denied a 404 permit. As a result, he/she argues that the property

of which the wetland is a part has severely declined in economic use or value – that

is, has been effectively taken.102 Establishing ripeness here has proved much easier

than for landowners dealing with local land-use agencies. The latter must deal with

frequent judicial demands that following denial of the owner’s initial proposal, he/she

must return to the land-use agency with scaled-down or reconfigured proposals, so

the court can ascertain the degree of development that will be accepted. By contrast,

the Court of Federal Claims (CFC, where most takings claims against the United

States must be brought) has thus far always accepted the first permit denial – if on

the merits – as indicating the Corps’ disinclination to permit any development

whatsoever, making subsequent applications by the landowner futile.103

Once past the ripeness hurdle, permit-denied plaintiffs have enjoyed some

success in convincing the CFC and its appellate court, the Federal Circuit, that a

taking occurred – under either the “total taking” rule or the three-factor balancing

test. Five section 404 permit-denial cases to date have found takings,104 while a

somewhat greater number have been unsuccessful. Prominent issues in these

wetlands/takings cases include how to define the “parcel as a whole” to be used in

the takings analysis – e.g., whether to include acreage sold off prior to the permit

denial (depends on the facts), or contiguous subdivision lots owned by the plaintiff

(generally yes). Another recurring issue is how great the drop in market value must

100

CWA § 404; 33 U.S.C. § 1344.

101

For more detailed treatment, see Wetlands Regulation, supra note 98.

102

The Corps’ mere designation of a parcel as within its wetlands permit jurisdiction cannot

by itself be a taking, since it leaves open the possibility that the permit, if applied for, will

be granted. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985). The

same holds true when the Corps orders construction on a wetland to cease and desist until

the owner secures a permit. Tabb Lakes, Inc. v. United States, 10 F.3d 796 (Fed. Cir. 1993).

103

See, e.g., Cooley v. United States, 46 Fed. Cl. 538 (2000), appeal pending; Cristina Inv.

Corp. v. United States, 40 Fed. Cl. 571 (1998); City Nat’l Bank v. United States, 30 Fed. Cl.

715 (1994); Formanek v. United States, 18 Cl. Ct. 785 (1989); Beure-Co. v. United States,

16 Cl. Ct. 42 (1988); Loveladies Harbor, Inc. v. United States, 15 Cl. Ct. 381 (1988).

104

In reverse chronological order: Cooley v. United States, 46 Fed. Cl. 538 (2000), appeal

pending; Florida Rock Industries, Inc. v. United States, 45 Fed. Cl. 21 (1999); Loveladies

Harbor, Inc. v. United States, 28 F.3d 1171 (Fed. Cir. 1994); Bowles v. United States, 31

Fed. Cl. 37 (1994); Formanek v. United States, 26 Cl. Ct. 332 (1992).

CRS-23

be as a result of the permit denial to support a finding of a taking (recent decisions

say that a 60-70% value loss is sufficient, a lowering of the threshold suggested in

earlier takings cases105).

The second common scenario in the wetlands/takings cases arises when actions

of the Corps cause delay in developing a parcel, though eventually the project

proceeds. Such delays are addressed through claims of temporary, rather than

permanent, takings. Most of the delay cases involve property owner objection to the

time taken by the Corps to process permit applications. Courts hold that the key

factor in the takings analysis is whether the wait was, under the circumstances,

unreasonable or extraordinary.106 The extraordinariness inquiry entails a look at

whether the delay was unduly protracted in light of the complexity of the regulatory

scheme, whether the owner failed to take actions that might have shortened the

processing time, and other circumstances. To date, federal courts have held that

waiting periods for section 404 permits up to two years did not, under the

circumstances presented, work a taking.107 Another delay scenario is when a Corps

action is withdrawn because of agency error. Viewing such delays as part of

government decisionmaking, the courts have again applied the extraordinary delay

standard and rejected all takings claims so far.108

Many federal environmental programs outside the wetlands realm also have

generated regulatory takings decisions – but far fewer per program. The Endangered

Species Act,109 despite its high profile in the property rights debate, has produced

only a few reported takings decisions, and only one in which the property owner

succeeded.110 Surface mining restrictions under the Surface Mining Control and

Reclamation Act111 have prompted a few claims – with some being successful.112

Regulatory takings claims against the Superfund Act, largely targeting its retroactive

liability scheme, have all failed.113

105

Florida Rock Industries, Inc. v. United States, 18 F.3d 1560, 1567 (Fed. Cir. 1994) (621/2% value loss might be sufficient to take), on remand, 45 Fed. Cl. 21 (1999) (73.1% value

loss found to be taking).

106

See, e.g., Walcek v. United States, 44 Fed. Cl. 462, 467 (1999); Norman v. United States,

38 Fed. Cl. 417, 427 (1997) (collecting cases).

107

See, e.g., 1902 Atlantic, Ltd. v. United States, 26 Fed. Cl. 575 (1992); Dufau v. United

States, 22 Cl. Ct. 156 (1990).

108

See, e.g., Tabb Lakes, Inc. v. United States, 10 F.3d 796 (Fed. Cir. 1993).

109

16 U.S.C. §§ 1531-1544.

110

The one successful claim is Tulare Lake Basin Water Storage Dist. v. United States, 49

Fed. Cl. 313 (2001), which is still subject to appeal.

111

30 U.S.C. §§ 1201-1328.

112

One successful claim is Whitney Benefits, Inc. v. United States, 926 F.2d 1169 (Fed.

Cir.), cert. denied, 502 U.S. 952 (1995), in which the parties settled for $200 million – the

largest regulatory takings payment by the United States revealed by our research.

113

See, e.g., Franklin County Convention Facilities Auth. v. American Premier Underwriters,

Inc. 240 F.3d 534, 552-553 (6th Cir. 2001).

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Federal environmental laws that have produced physical takings rulings include,

first, the rails-to-trails program.114 Here, the holder of the fee title underlying the

railroad right of way asserts a permanent physical occupation of his/her land when

the right of way is taken over by recreational trail users. If the railroad holds only an

easement for railroad use, the fee title holder wins.115 Second, the Superfund

program has been found to cause a physical taking where monitoring equipment and

government inspections are imposed on an unwilling owner of contaminated (or

possibly contaminated) property.116 The benefits accruing to the plaintiff from the

government-funded action, however, may be viewed by the court as offsetting the

compensation otherwise owed, producing an award of zero dollars – taking

notwithstanding.117

Tenth Amendment:

Federal Intrusions on State Sovereignty

Background

The Tenth Amendment states: “The powers not delegated to the United States

by the Constitution, nor prohibited by it to the States, are reserved to the States

respectively, or to the people.” Once dismissed by the Supreme Court as “but a

truism,”118 the Court today discerns in these words a bulwark of states’ rights in our

federal-state system of government. On other occasions, the Court has derived the

same protection for states’ rights by inquiring whether an act of Congress is

authorized by one of the powers delegated to Congress in Article I, such as the

commerce power. “[T]he two inquiries,” says the Court, “are mirror images of each

other.”119

The invigoration of the Tenth Amendment has played out in cases dealing with

Congress’ ability to regulate the states directly – instances where a federal mandate

tells a state or state official what that entity must do. Initially, the context was

whether Congress could subject states to the same restrictions it applies to private

parties. In a series of decisions beginning in the 1960s, the Court agonized over this

issue, eventually concluding in 1985 that its earlier effort to immunize the

“traditional governmental functions” of the states from federal mandates was “both

impractical and doctrinally barren.”120 For the most part, it indicated, states must

seek protection from the impact of federal regulation in the political process, not in

114

16 U.S.C. §1247(d).

115

See, e.g., Preseault v. United States, 100 F.3d 1525 (Fed. Cir. 1996).

116

Hendler v. United States, 952 F.2d 1364 (Fed. Cir. 1991).

117

Hendler, 38 Fed. Cl. 611 (1997).

118

United States v. Darby, 312 U.S. 100, 124 (1941).

119

New York v. United States, 505 U.S. 144, 156 (1992).

120

Garcia v. San Antonio Metropolitan Transit Auth., 469 U.S. 528, 557 (1985), overruling

National League of Cities v. Usery, 426 U.S. 833 (1976) .

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any limitations imposed by the Tenth Amendment or the Commerce Clause.

Prophetically, a dissent by then-Justice Rehnquist predicted a future time when the

Court would restore those abandoned limitations on federal power.121

In the 1990s, that time came. With a conservative majority now solidified on

the Court, the pendulum swung back toward state immunity – in a related, but

different, context. The new cases asked whether Congress can compel state

legislative branch and executive branch participation in the implementation of

Commerce Clause-based federal programs.122 The Court’s answer was no, if the state

is being made to act in its sovereign capacity.

The first decision was New York v. United States,123 invalidating a federal law

requiring that any state failing to provide for permanent disposal of low-level

radioactive waste generated within its borders must take title to the waste. The Court

held that Congress may not "commandeer the legislative processes of the States by

directly compelling them to enact and enforce a federal regulatory program."124 At

the same time, it hastened to add, Congress may "encourage" states to regulate in a

particular way. For example, Congress may, under its Spending Power,125 attach

conditions to the receipt of federal funds (at least where they bear some relationship

to the purpose of the federal spending). Or Congress may offer states the choice

between regulating an activity according to federal standards or having state law

preempted by federal regulation. The Court specifically noted the Clean Water Act,

Resource Conservation and Recovery Act, and Alaska National Interest Lands

Conservation Act as examples of the preemption route.126

In the second decision, Printz v. United States,127 the Supreme Court voided a

provision of the Brady Handgun Violence Protection Act requiring the chief law

enforcement officer of a local jurisdiction to do a background check on would-be

purchasers of handguns. The Brady Act thus commanded such officers to participate

in administering a federal regulatory scheme. The Court concluded, this time in the

executive branch context, that the United States may not compel state involvement

in a federal program. "Congress," said the Court, "cannot circumvent [New York's

prohibition on compelling sovereign acts] by conscripting the State's officers

directly."128

121

469 U.S. at 580.

122

The Court had flirted with the question of compelled state participation earlier, in 1981,

and hinted in dictum at its unconstitutionality. Hodel v. Virginia Surface Mining &

Reclamation Ass’n, 452 U.S. 264, 288 (1981).

123

505 U.S. 144 (1992).

124

Id. at 161.

125

U.S. Const. art. I, § 8, cl. 1.

126

505 U.S. at 167-168.

127

521 U.S. 898 (1997).

128

Id. at 935. In contrast with the state’s legislative and executive branches, Printz made

clear that it is permissible for Congress to impose an obligation on state judges to enforce

(continued...)

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Environmental Cases in the Wake of New York and Printz

Since New York, research reveals only one successful Tenth Amendment

challenge to a federal environmental statute. ACORN v. Edwards129 addressed a Safe

Drinking Water Act (SDWA) provision that required each state to establish a

program, meeting federal standards, to assist schools in remedying potential lead

contamination in their drinking water systems. Failure to do so subjected the states

to federal civil enforcement. Such "[c]ongressional conscription of state legislative

functions," said the Fifth Circuit, "is clearly prohibited under [New York] ...."130

Congress is free to regulate drinking water coolers in interstate commerce directly,

but not through the states as conduits to the people. The SDWA provision, it

concluded, deprives the state of the option of declining to regulate drinking water

systems, and is therefore unconstitutional.

ACORN, it need hardly be said, was an easy case for the challenger. In another

post-New York decision, the Fourth Circuit in Virginia v. Browner131 failed to find

the direct compulsion of state action that the Supreme Court prohibited. Virginia

was a state challenge to EPA’s use of sanctions against the state, required under the

Clean Air Act when a state submits an inadequate stationary source permitting

scheme. In sustaining EPA’s cut-off of certain federal highway funds to the state, the

decision echoes the settled view that reasonable conditions on the grant of federal

funds are not legally equivalent to compulsion, even when they have significant

consequences for a state.132 Arguing unconstitutionality here is particularly difficult

now that New York has specifically endorsed reasonable funding conditions as a

means of encouraging state participation in federal programs.133

A second federal-environmental-statute technique blessed by Virginia is

sanctions triggered by state inaction, but applying solely to private activity. EPA had

imposed on the state the Clean Air Act’s “offset sanction,” under which the quantity

of existing emissions that has to be eliminated for every ton of new emissions (from

a new factory or modified existing one) was set at 2:1 – greater than the ratio that

otherwise would apply. While this sanction may burden the state's citizens

128

(...continued)

federal prescriptions. Id. at 905-907.

129

81 F.3d 1387 (5th Cir. 1996), cert. denied, 521 U.S. 1129 (1997).

130

81 F.3d at 1394.

131

80 F.3d 869 (4th Cir. 1996), cert. denied, 519 U.S. 1090 (1997).

132

80 F.3d at 881-882 (Clean Air Act highway funds sanction is reasonably limited, hence

is not outright coercion). Earlier decisions in accord are Pacific Legal Found. v. Costle, 14

ENVT. RPTR. (CASES) 2121, 2128 (E.D. Cal.), affirmed, 627 F.2d 917 (9th Cir. 1980), cert.

denied, 450 U.S. 914 (1981) (also sustaining the Clean Air Act highway funds sanction),

and Texas Landowners Rights Ass’n v. Harris, 453 F. Supp. 1025 (D.D.C. 1978), affirmed

without op., 598 F.2d 311 (D.C. Cir. 1979) (National Flood Insurance Program).

133

505 U.S. at 167.

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(individuals proposing to build or modify a factory), the court held that it did not

burden the state as a government, and thus did not offend the Tenth Amendment.134

Third and finally, federal implementation of a federally desired program within

a state when the state fails to act, another common approach, is constitutional.135 As

above, the state is not compelled to regulate. For the same reason, the mirror image

of this arrangement -- ending the federal program within the state if the state adopts

its own program meeting federal criteria -- is also constitutional.136

When the State Itself Engages in the Regulated Activity

There appears to be one circumstance when the United States may regulate the

state or political subdivision directly: when the state or local authority itself engages

in an activity that Congress legitimately may regulate under the commerce power.

This may occur, for example, when a county operates a fleet of waste-collection

trucks, with their attendant emissions, or a solid waste landfill.137 Here, federal

regulation burdens the state not as sovereign government, but solely in its

"enterprise" capacity. Such burdens do not implicate the federalism concerns raised

by federal encroachments on state sovereignty.138

A recent and unanimous Supreme Court opinion affirms this

sovereign/enterprise distinction. In Reno v. Condon,139 the Court was faced with the

federal Driver’s Privacy Protection Act, a statute that regulates the disclosure of

personal information contained in the records of state motor vehicle departments.

Many states sell such information, generating significant revenues. The statute was

inoffensive to Tenth Amendment federalism principles, held the Court; it regulates

states as owners of databases, rather than requiring states in their sovereign capacity

to regulate their own citizens. It does not compel states to enact any laws,

unconstitutional under New York v. United States, or require state officials to assist

in administering a federal program, unconstitutional under Printz v. United States.

134

80 F.3d at 882 (Clean Air Act emissions offset sanction).

135

Id. at 882-883 (Clean Air Act federal permit program implementation). Another example

is Clean Air Act section 110(c)(1), 42 U.S.C. § 7410(c)(1), authorizing U.S. EPA to

promulgate a federal implementation plan for a state when it fails to submit an adequate

plan.

136

80 F.3d at 882-883, noting approval of this technique in the Surface Mining Control and

Reclamation Act by Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264

(1981). Another example is Clean Water Act section 402(b), 33 U.S.C. § 1342(b),

authorizing the substitution of federally approved state discharge permitting programs for

the existing federal program.

137

Whether current Tenth Amendment jurisprudence applies to political subdivisions of

states, as well as to the states themselves, appears not to have been directly addressed by the

Supreme Court. However, the plaintiffs in Printz were county sheriffs.

138

This state-as-polluter exemption raises serious constitutional questions, however, if

broadly construed to embrace state actions or inactions that cause pollution only indirectly,

such as building highways. Brown v. EPA, 566 F.2d 665, 672 (9th Cir. 1977).

139

528 U.S. 141 (2000).

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Things blur a bit when the act which constitutes the regulated activity is an act

of the state government in its sovereign capacity. In Strahan v. Coxe,140 a state’s

regulation of commercial fishing was held likely to be a “taking” of Northern Right

Whales prohibited under the Endangered Species Act. Here, said the court, it is

proper to conclude that the state’s scheme cannot continue insofar as it is inconsistent

with the preemptive federal act. As long as the court’s order does not command

specific regulatory action by the state, it will be held not to have “commandeered”

the state government – as forbidden by New York. Thus, the court could order the

state to consider means by which fishing practices might be modified to avoid

authorizing takings in state waters, but could not order the state to adopt specific

modifications.

Eleventh Amendment and State Sovereign

Immunity: Federal Authorization of Private Suits

Against States

Background

The Eleventh Amendment is another constitutional provision being used by the

conservative majority on the Supreme Court to effect a more states-rights-oriented

concept of federalism. It states: “The judicial power of the United States shall not

be construed to extend to any suit in law or equity, commenced or prosecuted against

one of the United States by Citizens of another State ....” In simpler terms, a federal

court may not hear suits against a state brought by citizens of other states. The

Amendment stands for the proposition that the Supremacy Clause141 of the U.S.

Constitution notwithstanding, not all exercises of congressional power override state

sovereign immunity. The Court’s Eleventh Amendment jurisprudence seeks to

reconcile these two competing principles.

More accurately, it is the not the Eleventh Amendment itself, but rather broader

principles of state sovereign immunity, upon which the Supreme Court has

increasingly relied. In the view of the Court’s conservative majority, the Eleventh

Amendment merely exemplifies the principles of state sovereign immunity otherwise

implicit in the Constitution; it emphatically does not exhaust them.142 The Court

makes a three-step argument. One: “Dual sovereignty is a defining feature of our

140

127 F.3d 155 (1st Cir. 1997), cert. denied, 528 U.S. 830, 978 (1998).

141

The Supremacy Clause provides: “This Constitution, and the Laws of the United States

which shall be made in Pursuance thereof ... , shall be the supreme Law of the Land, and the

Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any

state to the Contrary notwithstanding.” U.S. Const. art. VI.

142

As stated in Alden v. Maine, 527 U.S. 706, 728-729 (1999):

The Eleventh Amendment confirmed rather than established

sovereign immunity as a constitutional principle; it follows that the

scope of the States’ immunity from suit is demarcated not by the text

of the Amendment alone but by fundamental postulates inherent in

the constitutional design.

CRS-29

Nation’s constitutional blueprint.”143 Two: Thus “[s]tates, upon ratification of the

Constitution ... entered the Union with their sovereignty intact.”144 Three: inherent

in that state sovereignty is immunity from unconsented-to suit.

This view of the Eleventh Amendment as merely illustrative of broader

immunity principles has an important consequence: it largely frees the Court of the

Amendment’s textual constraints. Thus, while the Amendment speaks only to suits

against states by citizens “of another state,” the Supreme Court has disallowed

federally authorized suits against unconsenting states even when brought by citizens

of the same state.145 While the Amendment speaks only to suit in federal court, the

Court has barred suits in state court as well.146 While the text deals solely with the

“judicial power” of the United States and “suit[s] in law or equity,” the Court has

barred proceedings against unconsenting states before federal-agency adjudicative

bodies, too.147 And while the Amendment speaks only to suits by “Citizens,” the

Court has prohibited suits by recognized Indian tribes,148 federal corporations,149 and

foreign countries.150

Pivotal to the applicability of the Eleventh Amendment and principles of state

sovereign immunity is the identity of the plaintiff and defendant. As to the plaintiff,

no immunity from suit exists for suits against states by the United States151 or by

another state.152 The states, in ratifying the Constitution, are deemed to have

surrendered at least that portion of their inherent immunity.153 Thus the Amendment

and related immunity principles are limited to private actions against unconsenting

states. As for defendants, the Amendment and related immunity principles extend

to alter egos of the state – state agencies, departments, and officers (when sued in

their official capacity)154 – but not to municipal corporations or other governmental

143

Federal Maritime Comm’n v. South Carolina State Ports Auth., 122 S. Ct. 1864, 1870

(2002) (citations omitted).

144

Id. “States entering the Union after 1789 did so on an `equal footing’ with the original

states.” Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 283 (1997).

145

Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 363 (2001)

(collecting cases). The original decision establishing the text proposition is Hans v.

Louisiana, 134 U.S. 1 (1890).

146

Alden v. Maine, 527 U.S. 706 (1999).

147

Federal Maritime Comm’n, 122 S. Ct. 1864.

148

Blatchford v. Native Village of Noatak, 501 U.S. 775 (1991).

149

Smith v. Reeves, 178 U.S. 436 (1900).

150

Principality of Monaco v. Mississippi, 292 U.S. 313 (1934).

151

Alden v. Maine, 527 U.S. 706, 755 (1999), citing Principality of Monaco v. Mississippi,

292 U.S. 313, 328-329 (1934) (collecting cases).

152

Kansas v. Colorado, 206 U.S. 46, 83 (1907).

153

Federal Maritime Comm’n, 122 S. Ct. at 1870.

154

Edelman v. Jordan, 415 U.S. 651 (1974); MCI Telecomm. Corp. v. Bell AtlanticPennsylvania, 271 F.3d 491, 503 (3d Cir. 2001). A plaintiff can state a claim against a state

(continued...)

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entities that are not an arm of the state.155 In contrast with the identity of plaintiff

and defendant, the nature of the relief sought – damages, injunction, or other – is not

relevant to whether suit is barred.156

The Amendment and the constitutional principle of state sovereign immunity

have three exceptions.157

1. Ex parte Young suits. While state immunity extends to state agencies and

state officials who act on behalf of the state, Ex parte Young allows a federal court

to prospectively enjoin a state official from violating federal law.158 The legal fiction

behind this exception is that a suit against a state officer is not a suit against the state

when an injunction is sought against an illegal action, since an officer is seen as not

acting on behalf of the state when he or she acts illegally. Conversely, Ex parte

Young doctrine does not cover retroactive relief that requires the payment of funds

from the state treasury – e.g., imposing civil money penalties for past

noncompliance.159

The Supreme Court recently has narrowed the Ex parte Young doctrine, but only

minimally – as yet. The more important of its narrowing decisions, at least for

environmental purposes, came in Seminole Tribe of Florida v. Florida.160 There, the

Court held that petitioner’s claim against the state, which was barred by the Eleventh

Amendment, also could not be brought as an Ex parte Young suit against the state

governor. The Court reasoned that “where Congress has prescribed a detailed

remedial scheme for the enforcement against a state of a statutorily created right, the

court should hesitate before casting aside those limitations and permitting an action

against a state officer under Ex parte Young.”161 Particularly is this so where the

“detailed regulatory scheme” involves only “quite modest” sanctions against the state

or state official. Not that Congress cannot, if it chooses, authorize Ex parte Young

suits against state officials even in this circumstance, the Court hastened to add.

154

(...continued)

officer in his individual capacity, as long as payment is not required from the state treasury.

155

Mt. Healthy School Dist. v. Doyle, 429 U.S. 274, 280 (1977).

156

Seminole Tribe of Florida v. Florida, 517 U.S. 44, 58 (1996).

157

These are also summarized in Alden v. Maine, 527 U.S. 706, 754-757 (1999).

158

209 U.S. 123 (1908). The restriction of Ex parte Young suits to state officials accused of

violating federal law derives from Pennhurst State School & Hospital v. Halderman, 465

U.S. 89 (1984). In support, Pennhurst explains that if the violation is of state law, the

intrusion on state sovereignty is great in that a federal court is being asked to instruct state

officials on their own law, while there is no offsetting Supremacy Clause interest.

159

Pennhurst, 465 U.S. at 102-103. To be sure, a purely prospective injunction against a

state official may have financial consequences for the state as well. But such consequences,

when the ancillary result of state compliance with decrees that are prospective in nature, “is

a permissible and often an inevitable consequence of the principle announced in Ex Parte

Young ....” Edelman v. Jordan, 415 U.S. 651, 668 (1974).

160

517 U.S. 44, 73-76 (1996). The other narrowing opinion is Idaho v. Coeur d’Alene Tribe

of Idaho, 521 U.S. 261, 287 (1997).

161

517 U.S. at 74.

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Indeed, Congress had done precisely that, in the Court’s view, in the Clean Water Act

citizen-suit provision (by authorizing suit against “any person”) and the Emergency

Planning and Community Right-to-Know Act (holding “the Governor” responsible

for nonperformance).162

As an addendum to our Ex parte Young discussion, passing mention may be

made of the continuing possibility, Eleventh Amendment notwithstanding, of suits

against state officials in their individual capacities for money damages.163 In the

environmental context, however, such suits pale in importance next to the

aforementioned suits for prospective injunctive relief.

2. State consent (waiver). It is well-settled that a state may waive its sovereign

immunity – as, for example, that embodied in the Eleventh Amendment – by

consenting to be sued.164 The more difficult question is what constitutes consent. In

general, the Court insists that waivers of sovereign immunity be “unequivocal.”165

Thus, enactment of a state statute or constitutional provision explicitly consenting to

suit in federal court generally passes muster.166 The same goes for a clear statement

of a state’s agreement to administer a federal-state program that imposes federal

standards on the state. Consent may also take the form of the state’s voluntarily

invoking federal jurisdiction,167 as by its voluntary appearance in federal court as an

intervenor and defense of the case on the merits168 or its removal of a lawsuit from

state court to federal court.169 But in general, the Court has become increasingly

stingy in finding that states waive their immunity by exercising the rights given them

by federal law. Important to environmental regulation, consent will not be presumed

based on the state’s mere presence in a field that is federally regulated – even if the

state activity is one it could realistically choose to abandon, is undertaken for profit,

or is traditionally performed by the private sector.170

162

517 U.S. at 75 n.17.

163

Hafer v. Melo, 502 U.S. 21, 29-31 (1991).

164

College Savings Bank v. Florida Prepaid Post-Secondary Education Expense Bd., 527

U.S. 666, 675 (1999). Consenting to be sued raises a significant issue when the federal

court is blocked from hearing an action because of the Eleventh Amendment proper, rather

than broader notions of sovereign immunity. The Amendment is phrased in terms of federal

court jurisdiction, yet jurisdictional barriers to the courthouse door generally are held not

to be waivable by litigants.

165

Id at 680.

166

To underscore the text point, the waiver must specify the state’s intention to subject itself

to suit in federal court Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985).

167

Id. at 675.

168

Clark v. Barnard, 108 U.S. 435 (1883).

169

Lapides v. Board of Regents of the University System of Georgia, 122 S. Ct. 1640 (2002).

The waiver principle in the text does not turn on the nature of the relief sought. Id. at 1644.

170

College Savings Bank, 527 U.S. at 684.

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Mere receipt of federal funds cannot establish consent, though Congress has

broad authority to condition financial grants on state waiver.171 Of course, the

voluntariness of the consent, hence its effectiveness, is destroyed when that which

is attached to refusal to waive immunity is the exclusion of the state from otherwise

lawful activity.172

3. Congressional abrogation of state sovereign immunity. Congress, says the

Supreme Court, may abrogate state immunity pursuant to section 5 of the Fourteenth

Amendment.173 That Amendment, adopted after the Civil War, bars states from

depriving persons of life, liberty, or property without due process of law, or denying

to any person equal protection of the laws. Section 5 authorizes Congress “to

enforce, by appropriate legislation” the amendment. By contrast, Congress may not

abrogate state immunity under its Article I authorities, which include the commerce

power.174

When acting under proper constitutional authority, Congress, if it intends to

abrogate state sovereign immunity, must make its intention “unmistakably clear in

the language of the statute.”175 The mere fact that a statute was passed under the

Fourteenth Amendment is not enough to show that Congress intended to circumvent

state sovereign immunity.176 Also, for legislation to be an “appropriate” remedy

under section 5 of the Fourteenth Amendment, it must be plausibly cast as responsive

to, or designed to prevent, unconstitutional behavior – and not be simply an effort to

define the substance of the Amendment. To that end, there must be a “congruence

171

South Dakota v. Dole, 483 U.S. 203 (1987). However, a leading text asks: “Given [the

conservative majority on the Court’s] apparent willingness to chip away at other established

constitutional doctrines in order to protect its vision of untrammeled state sovereign

immunity, ... is the broad authority recognized in Dole ... a technique that may be narrowed

or eliminated?” Richard H. Fallon et al., Hart and Wechsler’s The Federal Courts and the

Federal System (4th ed.) 111 (1999 Supp.).

Depending on the wording of the federal statute authorizing the federal financial

assistance, the waiver may apply only to the state agency that receives the money. See, e.g.,

Koslow v. Commonwealth of Pennsylvania, 302 F.3d 161 (3d Cir. 2002), petition for cert.

filed, 71 U.S.L.W. 3400 (Nov. 19, 2002) (No. 02-801).

172

College Savings Bank v. Florida Prepaid Postsecondary Education Expense Bd., 527 U.S.

666, 687 (1999).

173

Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 364 (2001),

citing Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976).

174

Board of Trustees, 531 U.S. at 364; Seminole Tribe of Florida v. Florida, 517 U.S. 44

(1996). The type of relief sought against the state (e.g., prospective injunctive relief rather

than retroactive monetary relief) is irrelevant to whether Congress has power to abrogate the

state’s immunity. So is the fact that a congressional enactment extends to the states a power

withheld from them by the Constitution. Id. at 58.

175

Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73 (2000), quoting Dellmuth v. Muth, 491

U.S. 223, 227-228 (1989). The “unmistakably clear” standard is met by statutory

authorization of suits against the states; it is unnecessary for the statute to state in so many

words that waiver of state sovereign immunity is intended. See, e.g., Seminole Tribe, 517

U.S. at 56-57; Kimel, 528 U.S. at 73-74.

176

Seminole Tribe, 517 U.S. 44.

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and proportionality between the injury to be prevented or remedied and the means

adopted to that end.”177 To establish such congruence and proportionality, a court

must ensure that (1) the legislation reaches primarily conduct likely to be

unconstitutional under some Fourteenth Amendment guarantee, and (2) Congress has

made well-supported findings that there exists a widespread pattern of abuse by the

states (not local governments) as to that guarantee.178

Observations as to Federal Environmental Statutes

Since the Eleventh Amendment and the broader constitutional embodiment of

state sovereign immunity assure that nonconsenting states cannot be privately sued

through the Commerce Clause, such suits under most federal environmental statutes

cannot proceed. Most such statutes – the Clean Air Act, Clean Water Act, Superfund

Act, Resource Conservation and Recovery Act, etc. – were enacted pursuant to that

very Clause, not section 5 of the Fourteenth Amendment. Indeed, in the leading

decision rejecting use of the Commerce Clause for such abrogations, the Supreme

Court had to overrule its earlier decision allowing private suits against the states

under the Commerce Clause-based Superfund Act.179

Notwithstanding, these immunity-based constraints are of limited scope.180

Recall that we are talking only about suits against states, not against political

177

Boerne, Texas v. Flores, 521 U.S. 507 (1997); Kimel, 528 U.S. 62.

178

As to item (2), the Supreme Court’s recent decisions have set a demanding standard for

Congress as to what constitutes “well-supported” findings of state abuse. Most notably, in

Board of Trustees, a dozen examples in the Americans with Disabilities Act’s legislative

history of adverse state actions against the disabled were still deemed by the Court to “fall

far short of even suggesting” the required pattern of unconstitutional discrimination. 531

U.S. at 369-374. (Justice Breyer in dissent countered that Congress had compiled a “vast”

record documenting massive state discrimination. Id. at 377.) Moreover, the Act’s remedies

against the states were seen to raise congruence and proportionality concerns. In Kimel, the

Court held the Age Discrimination in Employment Act not to satisfy the test because it

prohibited substantially more state employment practices than would be unconstitutional

under the Fourteenth Amendment, and its legislative history failed to identify any pattern

of unconstitutional age discrimination by the states. As to the latter item, “isolated

statements clipped from floor debates and legislative reports” are insufficient. 528 U.S. at

89. In Florida Prepaid Postsecondary Education Expense Bd. v. College Savings Bank, 527

U.S. 627 (1999), a sparser legislative history led the Court to the same holding with regard

to federally authorized patent-infringement suits against the states.

The Fourteenth Amendment violations must be by the states, not their political

subdivisions. Board of Trustees, 531 U.S. 356, 368-369 (2001).

179

Seminole Tribe of Florida v. Florida, 517 U.S. 44, 66 (1996), overruling Pennsylvania v.

Union Gas Co., 491 U.S. 1 (1989) (plurality opinion).

180

See generally Stephen R. McAllister and Robert L. Glicksman, State Liability for

Environmental Violations: The U.S. Supreme Court’s “New” Federalism, 29 ENVTL. L.

RPTR. 10665 (1999) (concluding that Supreme Court’s Eleventh Amendment decisions “do

not ultimately appear to preclude Congress from regulating environmental matters in any

significant measure”).

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subdivisions of states or nongovernmental actors.181 And we are not talking about

suits that seek to coerce states to participate in their sovereign capacity in federal

programs. That option was already lost to Congress through the Tenth Amendment

cases. As the cases discussed below indicate, the Eleventh Amendment and related

immunity have been a stumbling block for federal environmental programs in

principally two narrow situations. The first is non-sovereign state activity. As noted

earlier, this might include a state’s use of vehicles (e.g., police cars) and state

ownership or operation of landfills. The second situation occurs when a state

chooses to participate in a federal regulatory effort by developing its own program

meeting federal standards and submitting it for federal approval, but – the key part

– the approved state program retains a purely state-law status. Thus far, this second

scenario has arisen solely under the Surface Mining Control and Reclamation Act.

A third realm where the Amendment has insulated states is whistleblower actions

brought under federal environmental statutes by state employees alleging retaliatory

treatment by their state employers.182 Due to the marginal relevance of such litigation

to our topic here, we do not discuss it further.

Even in those limited situations where the Amendment has been held to apply,

it can hardly be said that states are free to violate standards imposed under federal

environmental laws. As an initial matter, most states presumably would comply as

a matter of good faith.183 More to the legal point, and as noted above, state officials

still could be constrained by injunctions in private suits demanding compliance with

federal laws. And, states could still be sued by the Federal Government (or, as

presumably would occur only rarely, by other states). The second category above

may present higher barriers to enforcement against the states, though even here the

United States can bypass the states and enforce directly against the regulatee. And,

of course, the state may consent to be sued in its own courts.

An interesting question is whether Congress could authorize private suits against

state activity, Eleventh Amendment notwithstanding, by statutorily characterizing

such suits as being on behalf of the United States. A similar question recently was

presented to the Supreme Court involving a private qui tam suit against a state under

the federal False Claims Act, but was sidestepped by the Court when it construed the

Act as not extending to states.184

181

The text point is important in that under the citizen-suit provisions found in most federal

environmental statutes, suits against localities have been numerous. See, e.g., City of

Chicago v. Environmental Defense Fund, 511 U.S. 328 (1994).

182

See, e.g., Rhode Island Dep’t of Environmental Management v. United States, 304 F.3d

31 (1st Cir. 2002) (involving whistleblower provision in Solid Waste Disposal Act).

183

To be sure, there are recurring reasons why states, on occasion, do not comply: (1) the

federal obligation imposes onerous financial burdens on the state; (2) the federal obligation

trenches on an area traditionally considered a matter of state prerogative; and (3) there is

public opposition to the consequences of compliance. See Stephen R. McAllister and

Robert L. Glicksman, note 180 supra (giving examples of state noncompliance).

184

Vermont Agency of Natural Resources v. United States ex rel Stevens, 529 U.S. 765

(2000).

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To the extent that private suits against states are desired by Congress,

consideration also might be given to encouraging state waiver of sovereign immunity

by making waiver a condition to receiving delegation of the federal program, or to

receiving federal money. As to the latter, we mentioned earlier that the Court has

upheld (for now) the power of Congress, in the exercise of its spending power, to

condition its grant of funds to the states upon their taking specified actions that

Congress could not mandate them to take.185

The citizen suit provisions found in most federal environmental statutes make

the Eleventh Amendment limit on suits against the states explicit. Typical language

is that of the Clean Air Act:

[A]ny person may commence a civil action on his own behalf ...

against any person (including (i) the United States, and (ii) any

other governmental instrumentality or agency to the extent

permitted by the Eleventh Amendment to the Constitution) who

is alleged to have violated ... or to be in violation of (A) an

emission standard or limitation under this [Clean Air Act], or

(B) an order issued by the [EPA] Administrator or a State with

respect to such a standard or limitation.186

Of course, the Eleventh Amendment would have constrained suits under this and

similar citizen-suit provisions even without the explicit mention. Yet mentioning the

Amendment has not been for naught; several court decisions have used it to support

an inference that Congress intended to authorize suits against state officials.187

Finally, congressional abrogation of state immunity pursuant to section 5 of the

Fourteenth Amendment may be viable in rare instances. Probably the most

compelling example would be federal laws to prevent the disciminatory application

of environmental laws by the states – such as the disproportionate permitting of toxic

hazards or other environmental threats in minority neighborhoods. As noted,

Supreme Court decisions make amply clear that the legislative history for such

enactments would have to contain substantial evidence of a pattern, or future

likelihood, of unconstitutional activity by the states.188

Case Law Involving Federal Environmental Statutes

Clean Water Act/Clean Air Act. Several Eleventh Amendment decisions stem

from Clean Water Act (CWA) and Clean Air Act (CAA) citizen suits against states

or state officials. These rulings have all permitted suits against state officials for

prospective injunctive relief, citing Ex parte Young. For example, an early CWA

decision held that the Amendment does not bar suit against members of the

185

See note 171 supra and accompanying text.

186

Clean Air Act § 304(a)(1); 42 U.S.C. § 7604(a)(1). Emphasis added.

187

See, e.g., Strahan v. Coxe, 127 F.3d 155, 166 (1st Cir. 1997), cert. denied, 525 U.S. 830

(1998).

188

See note 178 supra and accompanying text.

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California Regional Water Quality Control Board seeking an injunction ordering that

discharges from an acid-mine-drainage collection facility operated by the Board be

terminated until a NPDES permit was obtained.189

Subsequent to Seminole Tribe’s narrowing of Ex parte Young in 1996,190 a Ninth

Circuit decision continued to look kindly on CWA citizen suits seeking prospective

relief against state officers. The court noted Seminole Tribe’s view of the CWA

citizen-suit provision as implicitly authorizing citizens to bring Ex parte Young suits

against state officials.191 But as Eleventh Amendment jurisprudence plainly requires,

the court found barred the claim in the citizen suit against the state itself, and the

claim against a state official for civil penalties based on past violations of the

CWA.192

Clean Air Act (CAA) citizen suits against state officials, all decided since

Seminole Tribe, also have been able to bypass the Eleventh Amendment through Ex

parte Young. Court decisions cite Seminole Tribe’s apparent view that Congress

intended to allow CWA citizen suits under Ex parte Young, then point to the nearidentical wording of the CAA citizen-suit provision.193

In another CWA citizen suit, Eleventh Amendment immunity was denied to the

New York State Thruway Authority on the ground that it was not an “arm of the

state.”194

Surface Mining Control and Reclamation Act. A less hospitable reception has

been extended to citizen suits against state officials under the Surface Mining Control

and Reclamation Act (SMCRA). In Bragg v. West Virginia Coal Ass’n,195 plaintiffs

argued that by issuing permits for mountaintop-removal coal mining, a state official

violated state regulations adopted under SMCRA. The Fourth Circuit asserted that

in contrast with many federal environmental laws, under which a federally approved

189

Committee to Save Mokelumne River v. East Bay Utilities District, 13 F.3d 305, 309-310

(9th Cir. 1993), cert. denied, 513 U.S. 873 (1994). To similar effect is Pennsylvania Envtl.

Defense Found. v. Mazurkiewicz, 712 F. Supp. 1184 (M.D. Pa. 1989) (suit for injunction

against future discharges by state prison exceeding NPDES permit limits authorized by Ex

Parte Young) .

190

See text accompanying notes 160-162 supra.

191

NRDC v. California Dep’t of Transp., 96 F.3d 420, 424 (9th Cir. 1996). Said the court:

“When Congress enacted the Clean Water Act citizen suit provision, it specified that it was

legislating to the extent permitted by the Eleventh Amendment. .... Congress enacted the

citizen suit provision so that `a citizen enforcement action might be brought against an

individual or a government agency.’ It would seem reasonable then, that Congress implicitly

intended to authorize citizens to bring Ex Parte Young suits against state officials with the

responsibility to comply with clean water standards and permits.” Id. (citation omitted).

192

NRDC, 96 F.3d at 423.

193

Clean Air Council v. Mallory, 2002 Westlaw 31323360 (E.D. Pa. Oct.18, 2002); Sweat

v. Hull, 200 F. Supp. 2d 1162, 1168 n.8 (D. Ariz. 2001).

194

Mancuso v. New York State Thruway Authority, 86 F.3d 289 (2d Cir.), cert. denied, 519 U.S.

992 (1996).

195

248 F.3d 275 (4th Cir. 2001), cert. denied, 534 U.S. 1113 (2002).

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state program has a dual federal-state status, such a state program under SMCRA is

exclusively state law. It applies as state law to the exclusion of any federal law or

federal jurisdiction.196 By asking the district court to order conformance with this

purely state law, the citizen suit, in the court’s view, asked for too great an intrusion

on state sovereignty. Hence, Ex parte Young was unavailable, and the Eleventh

Amendment/sovereign immunity bar applied. Nor did the state waive its sovereign

immunity by submitting its program to the Secretary of Interior for approval.

Partly for the same reason – the purely state-law status of federally approved

state SMCRA programs – the Third Circuit also rejected Ex parte Young application

and barred most counts of a SMCRA citizen suit against a state environmental

official.197 This time plaintiffs alleged that the state official had failed to perform

nondiscretionary duties in the state’s reclamation bonding program.198 “The

appropriate inquiry for Ex parte Young purposes,” said the court, “is whether a court

is being asked to enforce state law or federal law as against an individual state

officer.”199 As to other counts of the citizen suit that did allege violations of federal

law, Ex parte Young was available to permit suit. And as with CAA and CWA

citizen suits, the Seminole Tribe exception to Ex parte Young availability was found

inapplicable.

Superfund Act/ Resource Conservation and Recovery Act. In the wake of

Seminole Tribe’s announcement that Congress cannot abrogate state sovereign

immunity through a Commerce Clause-based statute, states have successfully

asserted the Eleventh Amendment as a shield to Superfund Act and Resource

Conservation and Recovery Act monetary liability. For example, Prisco v. State of

New York200 dismissed on Eleventh Amendment grounds a landfill owner’s

Superfund Act claims against a state alleged to have run the landfill as a sting

operation to uncover organized crime in the waste industry. The court also

dismissed plaintiff’s Superfund claims against state officials because they sought

monetary relief, not covered by Ex parte Young. By contrast, plaintiff’s RCRA

196

Under SMCRA, once a state’s program for regulating surface mining within its borders

has been federally approved, the state is accorded “exclusive jurisdiction over the regulation

of surface coal mining and reclamation operations” on non-federal lands within its borders.

30 U.S.C. § 1253(a).

197

Pennsylvania Federation of Sportsmen’s Clubs v. Hess 297 F.3d 310 (3d Cir. 2002).

198

One presumes that this suit did not bump into Tenth Amendment problems because the

state voluntarily submitted its program for federal approval. The Tenth Amendment cases,

principally New York and Printz, focus on federal initiatives that “commandeer” state

functions.

199

Id. at 325. In addition, the court rejected plaintiff’s argument that the state program had

been “codified” into federal law by federal regulations stating that each state program is to

be “codified in the part [of the Code of Federal Regulations] reserved” for that state.”

Nor, in the court’s view, could the regulations have done so constitutionally: “[I]f Congress

could empower the [federal Office of Surface Mining] to incorporate state law into federal

law ... such that states could be sued by citizens in federal court, the limitations on

Congress’ authority to override the Eleventh Amendment by means of legislation would be

rendered a virtual nullity.” Id. at 327.

200

1996 Westlaw 596546 (S.D.N.Y. Oct. 16, 1996) (not published in official reporters).

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citizen suit seeking prospective injunctive relief against state officials was held

constitutional. As with the CWA, CAA, and SMCRA, RCRA was deemed not to be

the sort of “detailed remedial scheme for the enforcement against a state of a

statutorily created right” found by Seminole Tribe to bar Ex parte Young suits.201

Endangered Species Act. Finally, an Endangered Species Act (ESA) decision

by the First Circuit holds that the Ex parte Young exception does not limit courts to

simply ordering a cessation of the state official’s unlawful activity.202 Other equitable

relief appropriate to achieving that end is also proper. The unlawful activity in

question was the state’s regulatory scheme for commercial fishing, under which the

state was issuing permits for use of gear harmful to an endangered whale. This

activity, declared the lower court, constituted a “take” of the whale by the state,

unlawful under the ESA.203 The circuit’s scope-of-relief ruling allowed it to affirm

the lower court’s injunction requiring state officials to apply for an incidental-take

permit under the ESA for the endangered whale, and to prepare a proposal for

restricting use of fixed-fishing gear in state waters to minimize harm to such

whales.204

Addendum 1: Article I’s Nondelegation Doctrine

This doctrine is relegated to an addendum because unlike the constitutional

principles in the preceding chapters, the Supreme Court has not been the instrument

of its recent resuscitation, but rather of its recent confinement.

The nondelegation doctrine blocks Congress from surrendering too much

legislative-type discretion to another branch of government.205 The doctrine flows

from the separation of powers in the constitutional structure, and in particular from

Article I’s vesting of “[a]ll legislative Powers” in the Congress.206 While the Court

gives lip service to an absolute reading of this constitutional grant – insisting that no

legislative power may be delegated – it has adopted a corollary that largely

201

The RCRA citizen suit against state officials was dismissed, however, on the ground that

they could not be held liable for actions of subordinates acting outside the scope of their

employment.

202

Strahan v. Coxe, 127 F.3d 155 (1st Cir. 1997), cert. denied, 528 U.S. 830, 978 (1998).

203

ESA § 9(a)(1)(B); 16 U.S.C. § 1538(a)(1)(B).

204

Ordering state officials to perform affirmative acts under a federal scheme raises Tenth

Amendment issues as well, of course. The particular order in this case was found

inoffensive to the Tenth Amendment, on the ground that it did not order the state to take

specific regulatory actions. See discussion in Tenth Amendment section.

205

The nondelegation doctrine is not the only constitutional constraint upon Congress’ ability

to delegate its powers. The principle of unconstitutional vagueness, and due process, also

have been invoked. See, e.g., United States v. L. Cohen Grocery Co., 255 U.S. 81, 92

(1921). The Line Item Veto Act case, Clinton v. City of New York, 524 U.S. 417 (1998),

found that abdications of legislative authority to the executive branch could also be barred

by the Presentment Clause in Article I, section 7.

206

U.S. Const. art. I, § 1 (emphasis added).

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circumvents that reading. The Court has long held that legislative-like powers may

be delegated to agencies if Congress gives the agency an intelligible principle to

guide its exercise of that authority. This is merely a recognition that Congress

routinely and necessarily delegates legislative-type powers to noncongressional

bodies. In particular, Congress frequently commits to the specialized expertise of

executive-branch agencies the task of rulemaking and standard setting in technical

areas — such as environmental control.

Except for two decisions in 1935, the Supreme Court has never agreed with a

nondelegation-doctrine challenge,207 and the doctrine “has often been declared

deceased.”208 Delegations sustained by the Court sometimes have been extremely

broad, including statutes instructing the FCC to regulate broadcast licensing “in the

public interest,”209 and authorizing the Price Administrator during World War II to

set “fair and equitable” prices.210 All that the Court seems to insist on (sometimes)

is that Congress employ a delegation which “sufficiently marks the field within

which the [Price] Administrator is to act so that it may be known whether he has kept

within it in compliance with the legislative will.”211 Where the congressional

standard is combined with requirements of notice and hearing and agency statements

of findings and considerations, so that judicial review under due process standards

is possible, the constitutional requirements of delegation have been fulfilled.212

In 1999, the D.C. Circuit breathed new life into the nondelegation doctrine,

becoming apparently the first court to bless a nondelegation attack on a federal

statute since 1935. At issue in American Trucking Associations v. EPA213 was EPA’s

promulgation in 1997 of revised primary national ambient air quality standards

(NAAQSs) for ozone and particulate matter. The 2-judge majority found that EPA

had construed Clean Air Act (CAA) section 109(b)(1)214 – requiring that primary

NAAQSs be set at a level “requisite to protect the public health” with an additional

“adequate margin of safety” – so loosely as to render it an unconstitutional delegation

of legislative power.

The D.C. Circuit majority had no quarrel with the factors used by EPA to assess

the public health threat posed by air pollutants. Rather, it said, EPA had articulated

no “intelligible principle” for translating the factors into a particular NAAQS. Nor,

it said, is one apparent from the statute. Going from the impact factors to a numerical

NAAQS requires more, insisted the court, than asserting that a higher NAAQS would

allow greater public health harm, and a lower NAAQS less harm. This is always true

207

See Mistretta v. United States, 488 U.S. 361, 371-379 (1989) (reviewing case law).

208

Consumer Energy Council of America v. FERC, 673 F.2d 425, 448 n.82 (D.C. Cir. 1982).

209

National Broadcasting Co. v. United States, 319 U.S. 190 (1943). See also New York

Central Securities Corp. v. United States, 287 U.S. 12, 24-25 (1932).

210

Yakus v. United States, 321 U.S. 414, 426-427 (1944).

211

Id. at 425.

212

Id. at 426.

213

175 F.3d 1027 (D.C. Cir. 1999), modified, 195 F.3d 4 (D.C. Cir. 1999).

214

42 U.S.C. § 7409(b)(1).

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for a nonthreshold pollutant,215 but does not fix the maximum acceptable degree of

harm. EPA also argued that at pollution levels below the promulgated standard,

health effects are less certain. The court rejected this argument as well. “[T]he

increasing uncertainty argument,” it said, “is helpful only if some principle reveals

how much uncertainty is too much.”

In Whitman v. American Trucking Associations,216 the Supreme Court

unanimously rejected any nondelegation-doctrine infirmity in CAA section 109,

reversing the court of appeals. The Court read the term “requisite” in the section 109

NAAQS standard to mean no higher and no lower than necessary to protect the

public health, with an adequate margin of safety. With EPA’s discretion so

constrained, the justices found section 109 to be “well within the outer limits of our

nondelegation precedents.”217 The majority of the justices voiced no disapproval of

those precedents.

The Court further opined that “the degree of agency discretion that is acceptable

varies according to the scope of the power congressionally conferred.”218 Thus, while

Congress need not provide any direction to EPA on the meaning of a narrowly

applicable statutory term, it must give “substantial guidance” on setting air standards

that affect the entire national economy.219 Even in the latter instance, however, the

Court asserted that Congress need not provide a “‘determinate criterion’ for saying

“how much [of the regulated harm] is too much.’” 220

Finally, the Supreme Court rejected the D.C. Circuit’s approach of allowing the

agency, rather than Congress, an opportunity to supply the missing intelligible

principle.221

With its decision in Whitman, the Supreme Court appears to have discouraged

judicial invocation of the nondelegation doctrine, restoring the legal situation prior

to the D.C. Circuit decision. According to one academic, the doctrine “is going back

to sleep and hibernating for a long, long time.”222 It is possible, however, that the

215

According to the court, “EPA regards ozone definitely, and [particulate matter] likely, as

nonthreshold pollutants, i.e., ones that have a possibility of adverse health impact (however

slight) at any exposure level above zero.” 175 F.3d at 1034.

216

531 U.S. 457 (2001).

217

Id. at 474.

218

Id. at 475.

219

Id.

220

Id.

221

In separate concurrences, Justice Thomas questioned whether the Court’s delegation

jurisprudence had strayed too far from the Founder’s understanding of separation of powers,

while Justice Stevens argued for a candid recognition that agencies routinely exercise

legislative power, and that nothing in Article I, section 1, precludes congressional delegation

of legislative power.

222

Remarks of Prof. David Hodas, Widener Univ. School of Law, quoted in “High Court

(continued...)

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pendulum has not swung all the way back to somnolence. To be sure, the Court in

Whitman cited with approval many of its laxest nondelegation precedents. Still, the

Court’s insistence that regulations of national application be predicated on

“substantial guidance” from Congress appears to be a new component of the doctrine,

or at least one that has not been made explicit before now. If “substantial guidance”

is to have any meaning at all, rumors of the demise of the nondelegation doctrine

may, in the familiar expression, be premature. It is difficult, for example, to discern

even an amorphous statutory standard for the granting of individual permits under the

Clean Water Act wetlands permitting program.223

Perhaps the most important statement in Whitman, for environmental law

purposes, is that the “substantial guidance” required for national regulations does not

require Congress to specify how much of the regulated harm is too much. Thus, the

typical standards for how protective a federal regulation must be – for example,

“necessary to protect human health and the environment” under the Resource

Conservation and Recovery Act,224 or when needed to address emissions that “may

reasonably be anticipated to endanger public health or welfare” under the Clean Air

Act’s mobile sources title225 – should pass muster readily. Regulations of less-thannational scope would seem to be virtually unassailable.226

Addendum 2: Article II’s Vesting of LawEnforcement Authority in the Executive Branch

This constitutional issue, frequently raised during the 1980s, seems to have a

new generation of supporters today. We treat it in an addendum because it has not

222

(...continued)

Upholds Revised Clean Air Standards in Landmark Case,” vol. 29, no. 9 Haz. Waste Lit.

Rptr. 3 (Mar. 16, 2001).

223

CWA § 404; 33 U.S.C. § 1344

224

RCRA § 3002(a); 42 U.S.C. § 6922(a).

225

CAA § 202(a)(1); 42 U.S.C. § 7521(a)(1).

226

See Michigan v. U.S. EPA, 213 F.3d 663, 680-681 (D.C. Cir. 2000), cert. denied, 532 U.S.

904 (2001), which, soon after the D.C. Circuit decision in American Trucking Ass’ns,

refused to find an impermissible delegation in another CAA provision. This provision

allowed EPA to require states to revise their implementation plans whenever it finds they

are inadequate to prevent emissions within the state that “contribute significantly” to

ambient standard nonattainment in another state. Invoking this authority, EPA in 1998

required 22 states to revise their plans to reduce nitrogen oxides (NOx, an ozone precursor)

by the amount accomplishable through controls that remove NOx at a cost of $2000/ton or

less. Though EPA viewed its latitude in choosing the dollars per ton cut-off as “essentially

unbounded,” the court found the delegation lawful. Unlike cases where the agency’s

claimed power encompassed “all American enterprise,” here EPA must make a number of

fact findings (e.g., emissions migrating into another state) that “confined the statute to a

modest role.” Delegations of narrow scope, the court said based on its reading of precedent,

can be “effectively standardless.”

CRS-42

been authoritatively addressed by the Supreme Court (nor accepted by any lower

court). However, some justices of the Court recently have signalled interest.

The locus of concern is the citizen-suit device in many federal environmental

statutes – especially its use to seek civil penalties (versus injunctive relief) against

polluters. The question is whether the exaction of public fines by a private litigant

is a constitutionally offensive delegation of law enforcement power to an entity

outside the federal government’s executive branch. More specifically, do private

suits for public fines offend various clauses of Article II of the Constitution (the

Vesting Clause,227 Take Care Clause228 and Appointments Clause 229) that vest federal

law-enforcement authority in the executive branch? The resurrected interest in the

issue likely derives from remarks of the justices in the Supreme Court’s 2000

decision in Friends of the Earth v. Laidlaw.230

The Supreme Court has never resolved whether citizen suits offend Article II,

nor have any reported decisions of the federal appellate courts. However, an ample

body of district-court decisions beginning in the 1980s unanimously reject the Article

II argument in connection with citizen suits under the Clean Water Act231 and

Emergency Planning and Community Right-to-Know Act.232 These courts endorsed

four key arguments. First, they say, the separation-of-powers decisions relied on by

citizen-suit defendants are inapposite. Those cases implicate the Constitution’s

concern that one branch of government not expand its powers at the expense of

another branch of government – e.g., Congress expanding its powers into the lawenforcing domain of the executive branch. They do not stand for the proposition that

private persons, who are not controlled by Congress, may not enforce federal laws.

Second, the Appointments Clause does not preclude private enforcement. It simply

means that when federal laws are enforced by a person within the executive branch,

227

The Vesting Clause states: “The executive power shall be vested in a President of the

United States.” U.S. Const. art. II, § 1.

228

The Take Care Clause states: “[The President] shall take Care that the Laws be faithfully

executed ....” U.S. Const. art. II, § 3.

229

The Appointments Clause states: “[The President] ... by and with the Advice and Consent

of the Senate, shall appoint ... Officers of the United States.” U.S. Const. art. II, § 2.

230

In a one-justice concurrence in Laidlaw, Justice Kennedy wrote: “Difficult and

fundamental questions are raised when we ask whether exactions of public fines by private

litigants, and the delegation of Executive power which might be inferable from the

authorization, are permissible in view of the responsibilities committed to the Executive by

Article II ....” 528 U.S. 167, 197 (2000). He declined to answer these questions because

Article II was not invoked by the petition for certiorari. Writing for himself and Justice

Thomas, Justice Scalia also expressly declined to reach the issue, but did offer related

remarks suggesting that he saw Article II as being transgressed. Id. at 209-210.

See also Vermont Agency of Natural Resources v. United States, 529 U.S. 765, 778

n.8, 801 (2000) (noting Article II issue as to qui tam actions, where the private “relator” gets

to keep a portion of any money penalties imposed).

231

See, e.g., Atlantic States Legal Fdn. v. Universal Tool & Stamping Co., 735 F. Supp. 1404

(N.D. Ind. 1990) (collecting cases).

232

See, e.g., Atlantic States Legal Fdn. v. Buffalo Envelope, 823 F. Supp. 1065 (W.D.N.Y.

1993).

CRS-43

that person must have been appointed in accordance with the Clause. Citizen suitors,

plainly, are not within the executive branch. Third, subject to the above limitations

Congress has the power to determine who will enforce the statutory rights and

obligations it creates. And fourth, citizen suit provisions contain safeguards to limit

their intrusion on the enforcement authority of the executive branch – e.g., allowing

the United States to intervene in the suit.233

To amplify on the fourth point, the initiation of a citizen suit most definitely

can affect how an agency allocates its enforcement resources. If, for example, EPA

became concerned that arguments raised by a citizen-suit defendant were not being

adequately addressed by the plaintiff, the agency might fear that the court’s decision

would make bad law from its point of view. That fear might effectively compel the

agency to intervene in the suit, shifting its attorneys from other enforcement efforts.

The skewing of agency resource allocation involved in such citizen-suit scenarios has

not been seen by courts as infringing on executive branch law-enforcement

responsibilities to a constitutionally suspect degree.

Thus far, the new crop of Article II/citizen-suit decisions has fallen in line with

the first generation, rejecting the constitutional challenge.234 It is tempting, therefore,

to dismiss the current cases as posing little threat to this private-enforcement

mechanism. Unlike the first generation of cases, however, defense counsel in the

current litigation have clear suggestion from the Supreme Court that it might be

interested in hearing an Article II challenge. One can expect, therefore, that counsel

will press these cases to the petition for certiorari stage. But though Justices Scalia

and Thomas likely would respond sympathetically to an Article II attack on citizen

suits,235 it is doubtful that the remainder of the Court, as presently constituted, could

supply the three additional votes for a majority.

Summary and Comments

To recap: (1) the Commerce Clause is now a concern for congressional drafters,

given that the large majority of federal pollution-control laws, and some federal

wildlife-protection laws, rest on this Clause and the Court appears determined to

scrutinize federal regulation of noneconomic activity in areas of traditional state

regulation. Certain applications of the Endangered Species Act, in seeking to

regulate noneconomic land uses harming intrastate species, may be too much for the

Supreme Court to resist. (2) Standing doctrine is much less of a barrier to

environmental plaintiffs since Laidlaw, though certainly not something any such

plaintiff can safely ignore. Congress, for its part, can dispense with standing’s

prudential aspects, but not those elements (injury in fact, causation, redressability)

233

See, e.g., Clean Water Act § 505(c)(2), 33 U.S.C. § 1365(c)(2).

234

See, e.g., United States v. American Elec. Power Service Corp., 137 F. Supp. 2d 1060

(S.D. Ohio 2001) (Clean Air Act citizen suit provision); North Carolina Shellfish Growers

Ass’n v. Holly Ridge Assocs., No. 7:01-CV-36 (E.D.N.C. Nov. 8, 2001) (Clean Water Act

citizen suit provision). See also Riley v. St. Luke’s Episcopal Hosp., 252 F.3d 749,752 (5th

Cir. 2001) (en banc) (holding qui tam provision inoffensive to Article II).

235

See note 230 supra.

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derived from Article III. (3) The takings issue remains a spectre for federal

environmental laws implemented through substantial land use controls, such as

wetlands, endangered species, and surface mining statutes.

(4) The Tenth Amendment blocks Congress from compelling the participation

of state legislatures and state executive-branch officials in federal programs.

However, an ample number of “carrot” approaches (such as conditions on federal

funds) remains to encourage state participation should Congress desire a surrogate

for direct federal regulation. (5) Finally, the Eleventh Amendment applies broadly

to block Congress from authorizing private suits against states. Even so, the

Amendment is likely to be a modest constraint on congressional environmental

efforts, since it admits of several exemptions (some of which the Supreme Court

seems disposed to narrow, however) and does not apply to suits against political

subdivisions of states.

Another constitutional bound, the nondelegation doctrine, appears to no longer

be a serious impediment to congressional drafters of environmental laws, after the

American Trucking Associations decision. Yet another constitutional issue, whether

Article II bars the private enforcement of federal laws through citizen suits, has thus

far been universally rejected by the courts.

As the above indicates, the most significant of these constitutional bounds for

Congress’ environmental initiatives are the Commerce Clause and the Takings

Clause.

Where is the Supreme Court headed in the application of our five constitutional

constraints? Most obviously, the 5-justice conservative majority seems intent on

nudging the jurisprudence toward greater protection of states rights and private

property. It has been suggested as well that their interest lies in, as much as the

balance between federal and state power, that between the judicial and legislative

branches. Recall the distinctly undeferential responses of the Supreme Court to the

congressional findings in the Violence Against Women Act,236 and to Congress’

recent efforts to invoke section 5 of the Fourteenth Amendment.237 At a minimum,

congressional drafters should be aware that the days of reflexive judicial acceptance

of statutory findings may, in select constitutional areas, be over.

When the Court’s constitutional analysis occurs in an environmental case, there

seems to be an additional consideration. Commentators have observed that the

Supreme Court’s warm endorsement of national environmental goals in its 1970s

decisions seems to have progressively withered in each decade since.238 Indeed, one

commentator asserts that environmental protection seems “increasingly ... to be

236

See text following note 14 supra.

237

See note 178 supra.

238

Richard J. Lazarus, Restoring What’s Environmental About Environmental Law in the

Supreme Court, 47 U.C.L.A. L. REV. 703, 735-736 (2000); J. William Futtrell, The

Ungreening of the Court, ENVTL. FORUM, Jan.-Feb. 1992, at 12, 16.

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serving a disfavored role in influencing the Court’s outcome.”239 Still, the moderate

conservatives on the Court – Justices O’Connor and Kennedy – do not yet appear

ready to carry the Court’s new federalism and takings jurisprudence to any extreme

conclusions. As the Court is presently constituted, this means there appear to be at

most three votes (Chief Justice Rehnquist, and Justices Scalia and Thomas) out of the

required five for any significant constitutional voiding of federal environmental

law.240 Of course, new appointments to the Court may alter these numbers.

Moreover, if in fact there is a decreased friendliness on the Court towards

federal environmental statutes, it probably should be understood not as an antipathy

towards the broad goals of such laws. Rather, the unease of the Court’s conservative

majority likely stems from some of the recurring features of federal environmental

statutes: increased regulation and federal bureaucracy, expansive construction of the

Commerce Clause, broadened standing rules, contraction of permissible property

uses, and insertion of federal standards into realms of historic state and local control.

Each of these features has been asserted by some commentators to be necessitated by

current environmental problems, while opposed by others (such as free market

environmentalists). Either way, Congress, in its future environmental efforts, may

wish to be mindful of these Supreme Court concerns.

239

240

Lazarus, supra note 238, at 737.

In the lower courts, a similar schism between conservatives judges was evident in Gibbs

v. Babbitt, 214 F.3d 483 (4th Cir. 2000), cert. denied, 531 U.S. 1145 (2001). There, the

court rejected 2-1 a Commerce Clause challenge to an Endangered Species Act regulation

limiting the taking of reintroduced red wolves on private land. See text accompanying notes

35-37 supra. Writing for the 2-judge majority, Chief Judge J. Harvie Wilkinson III, a noted

conservative jurist, set the tone of his opinion in the first sentence: “In this case we ask

whether the national government can act to conserve scarce national resources of value to

our entire country.” A few sentences further he called for “[j]udicial deference to the

judgment of the democratic branches ....” In sharp contrast, Judge J. Michael Luttig, a

conservative generally viewed as “to the right” of Chief Judge Wilkinson, argued matter of

factly that the killing of red wolves is not an economic activity, as is required for

aggregating effects on interstate commerce. For this and other reasons, he would have

“faithfully” applied Lopez and Morrison to invalidate the challenged regulation. The limits

of the Commerce Clause, he said, “do not wax and wane depending on the subject matter

....”

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