June 01, 2012


Jonathan Scoll

As this issue of NR&E goes to press, the running debate over the role of Washington in our lives is reaching election-year intensity. The Supreme Court’s recent decision on the Affordable Care Act has called into question the Commerce Clause foundation on which much federal environmental law is also based. Energy-market forces and extractive technologies, such as hydraulic fracturing, as well as climate-change impacts, are roiling an already-polarized electorate. A snapshot of the current state of the federalism dialogue in environmental and natural resource law is timely.

Ever since New York State sought to regulate an upstart transportation technology of the day—steamboats—in Gibbons v. Ogden, 22 U.S. 1 (1824), the lines of the Commerce Clause battle front have been in constant flux. The recent decision in Rapanos v. United States, 547 U.S. 715 (2006), attempts—with far less clarity than John Marshall’s Court—to draw Commerce Clause boundaries in the context of wetlands preservation, with results as divisive today as Gibbons was for its time.

Chief Justice Roberts’ opinion in the health care decision echoes an earlier dissent as a circuit court judge in which he derided the application of the Endangered Species Act to “a hapless toad that, for reasons of its own, lives its entire life in California.” Rancho Viejo, LLC v. Norton, 334 F.3rd 1158, 1160 (D.C. Cir. 2003). Grounding environmental regulatory jurisdiction on the significance of its subject for “commerce” may indeed require legal artifice. But such is the limitation of a Constitution crafted in the age of Adam Smith. The alternative—which at least some on the current Supreme Court appear to favor—is to abandon federal protection of large swaths of the environmental landscape altogether.

Five of our nine features deal with the conflicts currently engendered under statutory variants of “cooperative federalism”—regulatory power-sharing between states and the federal government. The federalism model adopted by a particular statute mirrors the alignment of political forces at the time of its enactment; this alignment, too, has shifted over the decades since “legacy” statutes such as CERCLA or the Clean Air Act were enacted.

Federalism need not always produce conflict. Our issue explores ways it can invite state innovation in renewable energy, federal initiatives in Tribal management of federal forest and wildlife resources, and state partnerships with Canadian provinces or Mexican states in cross-border cap and trade programs.

From a longer-distance perspective, we survey the European Union environmental legislative process. EU environmental regulation is often hailed as more far-sighted than ours. But such regulation, as the article notes, is conceived in a less than transparent fashion. The very foundation of the EU, its common currency, is itself under challenge as citizens of recession-stressed EU member states take to the streets in classic European fashion.

In contrast, in the words the Progressive Era humorist Finley Peter Dunne put into the mouth of his creation, “Mr. Dooley,” the racket you hear on this side of the Atlantic in an election year “is not th’ first gun in a revolution. It’s on’y th’ people in the United States beatin’ a carpet.” The debate over environmental federalism is another aspect of such house cleaning.

Jonathan Scoll

Jonathan Scoll is the issue editor for the Summer 2012 issue of Natural Resources & Environment.